Mitchell v. Sakara

THE STATE OF SOUTH CAROLINA In The Court of Appeals Bobby L. Mitchell, Appellant, v. Debra Mitchell Sakara, Michael Sakara and Corey Michael Sakara, a minor under the age of 14 years, Respondents. Appeal From Richland County Donna S. Strom, Family Court Judge Unpublished Opinion No. 2003-UP-322 Submitted February 20, 2003 - Filed May 7, 2003 AFFIRMED James W. Corley, of Columbia; for Appellant. Lori D. Hall, of W. Columbia; for Respondents. PER CURIAM: Bobby L. Mitchell appeals the order of the family court that denies his Rule 60 motion to set aside an order and judgment allowing Michael Andrew Sakara to adopt Corey Michael Mitchell. Debra Mitchell Sakara and Mitchell were once married. Corey is their son. Mitchell contends the family court lacked jurisdiction to order the adoption because the affidavit that supported the order that allowed for service by publication of the summons and complaint in the adoption proceedings was facially defective. We disagree and affirm. [1] The family court granted Mitchell and Debra a divorce on November 12, 1992. They had one child, a son born on October 20, 1989. Sometime after Debra married Sakara, they brought an action against Mitchell and the child in which Sakara sought to adopt the child. After attempting to serve Mitchell by certified mail, Sakara served Mitchell by publication pursuant to an order of publication dated November 3, 1998, and signed by the clerk of court. An affidavit executed by Edward A. Harter, Jr., an attorney for Sakara and Debra, supported the publication order. The affidavit recites in part: A cause of action for adoption of the minor child . . . exists in this Court against . . . [the] father, as appears from the Petition for Adoption filed with the Court. His residence is not known nor can it with reasonable diligence be ascertained. A letter to him attempting service by Certified Mail under Rule (d)(1)(8) SCRCP is attached hereto. Attached to the affidavit is an envelope listing the address of Bobby L. Mitchell as 105 Hillpine Road, Apartment J-5, Columbia, South Carolina 29212. A notation appears on the envelope that reads: “RETURN TO SENDER[.] NO FORWARD ORDER ON FILE[.] UNABLE TO FORWARD[.] RETURN TO SENDER[.]” A letter dated October 21, 1998, addressed to Mitchell, and informing him of the adoption proceeding is also attached to the affidavit. Attached to the letter is a copy of the certified mail receipt. The clerk of court thereafter signed an order of publication. It reads in part: It appearing to my satisfaction from the Affidavit of Petitioners’ attorney, and the verified Petition filed in the action, that a cause of action for the adoption of the . . . minor child exists against the Respondent . . . [the child’s] father, and is pending in this county but that said Respondent is presently a person upon whom service cannot be had within the state. NOW THEREFORE, in accordance with Section 15-9-710 and 15-9-740 of the Code of Laws of South Carolina, 1976 as amended; IT IS ORDERED that the service of the Summons in this action be made by publication thereof, together with Notice of the filing of the Petition, in The STAR REPORTER, a newspaper published weekly in the City of Columbia, County of Richland, State of South Carolina once a week for three (3) weeks and that the first publication be made within ten (10) days from the date of this Order. In an affidavit executed on December 3, 1998, by the publisher of The Columbia Star, he states his newspaper published a summons and notice in the adoption case on November 19, 26, and December 3, 1998. A copy of a clipping of the summons and notice accompanies the affidavit. On June 29, 2001, Mitchell moved to set aside the order and judgment of adoption on the ground the judgment was void. He maintained the family court never acquired jurisdiction over him because Sakara never properly served him with process. ISSUE ON APPEAL Whether the family court acquired jurisdiction over Mitchell’s person. STANDARD OF REVIEW “The power to open, modify or vacate a judgment is possessed solely by the court that rendered the judgment. Whether to grant or deny a motion under SCRCP 60(b) is within the sound discretion of the judge.” [2] DISCUSSION AND HOLDING Rule 4(d)(8) of the South Carolina Rules of Civil Procedure provides in pertinent part for service of a summons and complaint by certified mail. Service of a summons and complaint upon a defendant . . . may be made by the plaintiff . . . by registered or certified mail, return receipt requested and delivery restricted to the addressee. . . . If delivery of the process . . . is returned undelivered, service shall be made as otherwise provided by these rules. [3] Rule 4(d)(7) provides in pertinent part: Service upon a defendant . . . is also sufficient if the summons and complaint are served in the manner prescribed by statute. [4] South Carolina Code section 15-9-710 permits service upon an individual by publication. It provides in pertinent part: When the person on whom the service of the summons is to be made cannot, after due diligence, be found within the State and . . . that fact appears by affidavit to the satisfaction of the . . . the clerk of court of common pleas . . . of the county in which the case is pending[,] . . . the . . . clerk . . . may grant an order that the service be made by the publication of the summons in any one of the following cases: . . . (6) When the defendant is a party to an adoption proceeding and is . . . a person upon whom service cannot be had within the State after due diligence. [5] Here, Sakara attempted to serve Mitchell by certified mail. When that attempt failed, Sakara turned to Section 15-9-710(6), a method of service allowed by Rule 4(d)(7) and thus embraced within the meaning of the term “rules” as used in Rule 4(d)(8). His counsel presented to the clerk of court an affidavit that Mitchell’s residence was not known and could not be ascertained with reasonable diligence and that evidenced an unsuccessful attempt to serve Mitchell by certified mail. [6] Based on that affidavit, the clerk of court found Mitchell was a person upon whom service could not be had within the state and ordered Mitchell served by publication. We cannot fault this finding, supported as it was by affidavit and there being no suggestion of fraud or collusion. [7] AFFIRMED. HEARN, C.J., and CURETON and GOOLSBY, JJ., concur. [1] Because oral argument would not aid the court in resolving the issue on appeal, we decide this case without oral argument pursuant to Rule 215, SCACR. [2] Coleman v. Dunlap, 306 S.C. 491, 494, 413 S.E.2d 15, 17 (1992) (citations omitted). [3] Rule 4(d)(8), SCRCP. [4] Id., Rule 4(d)(7). [5] S.C. Code Ann. § 15-9-710(6) (Supp. 2002). [6] Although not part of counsel’s affidavit supporting an order for publication, the family court found Sakara, after the return of the summons and complaint that Sakara attempted to serve by certified mail and his learning that Mitchell left no forwarding address, tried to serve a person with the same name as Mitchell whose name was listed in the telephone book. [7] Cf. Wachovia Bank of S.C. v. Player, 341 S.C. 424, 535 S.E.2d 128 (2000) (stating that, absent fraud or collusion, once the issuing officer is satisfied by affidavit, the decision to order service by publication is final); Montgomery v. Mullins, 325 S.C. 500, 480 S.E.2d 467 (Ct. App. 1997) (holding the trial court acted within its discretion in finding that an attempted service by publication by not timely).