"proper service"

[NoLongerLost]

My husband submitted his Petition for contempt and form CS-47. He received a case action summary in the mail indicating the case is "active" but the judge wrote at the bottom:

"It appears that petitioner has not attempted proper service. Case will be set when service obtained. Petitioner granted 90 days to properly perfect service."

What does this mean? He submitted "with exhibits" and served his ex via certified mail. Can anyone help? Apparently the form(s) themselves were okay because case was entered into computer at courthouse. thanks for input.

I've researched the past few minutes and there is a Form C-15 "certificate of service" that can be filed. Is this it? It's a form that the clerk's office sends on my huband's behalf to verify she is served with correct papers. It makes sense. A return receipt from him personally could be for a birthday card or empty envelope. There'd be no way for him to prove he sent actual copies. Makes sense. The directions say to also submit a copy of the complaint (which i assume is the petition for contempt) and two summonses. What are these?

It also appears that the judge can rule without a court hearing. She just has to respond within a certain amount of time. Are we reading this correctly? Thanks again for all help and input.

[m_t]

Have you checked Lee's Alabama page? I'd bet there's something there regarding what constitutes proper service. That, or Google. I'm thinking certified mail may not qualify - personal service may be required first.

[livealittle]

I had to have a sheriff's deputy serve my x.

[NoLongerLost]

According to what I have found my husband can send the green certified card and copies via the clerk's office with the appropriate paperwork OR have the sheriff do it for a fee. I'm still investigating, but thanks.

[NoLongerLost]

Well, my husband sent the paperwork back to the clerk's office with the "green" certified card, etc. The letter was "accepted" May 13, 2009 at 2:40 PM. I am assuming this means she signed for it. I am thankful that we figured this out ourselves as an attorney was going to charge quite a bit to do this.

I suppose that now he has to wait for a response from the courthouse. The paperwork required that she respond within 30 days so now the waiting begins. It's hurry up to wait. 

Hopefully she will respond without having to go to court. It would make everyone's life so much easier. Just an update.

Has anyone had a similar experience? If she doesn't respond, I am assuming there is MORE paperwork involved. The internet, actually, has some excellent resources for this kind of thing.

My husband just called me and said ex called and said "there was no way in hell she was going to respond because there's nothing you can do about it." I know he must wait the 30 days, but then can he request a default judgment? Will there be a court hearing? Evidence was submitted. Is there another filing fee?

Sheesh.

[Lee Borden]

Let me start with two broad statements. Broad statement #1: Service of process is a creature of statute, not common law, so there's no "reasonableness" standard. You have to do what the statute says. You get no points for good intentions.

Broad statement #2: I don't know squat about this stuff, because my work is totally focused on cooperative couples, and by definition I don't need to mess with this.

Okay, with those statements out of the way, my guess is that Dad doesn't yet have service. Here's Ala. R. Civ. Proc. 4(i)(2). It sounds like he needs to request service by certified mail, and I gather he hasn't done that.

(2) Service by certified mail.

   (A) When proper. When the plaintiff files a written request with the clerk for service by certified mail, service of process shall be made by that method. Alternatively, the attorney or party filing the process and complaint may initiate service by certified mail as provided in this rule.

   (B) How served.

     (i) In the event of service by certified mail by the clerk, the clerk shall place a copy of the process and complaint or other document to be served in an envelope and shall address the envelope to the person to be served with instructions to forward. In the case of an entity within the scope of one of the subdivisions of Rule 4(c), the addressee shall be a person described in the appropriate subdivision. The clerk shall affix adequate postage and place the sealed envelope in the United States mail as certified mail with instructions to forward, return receipt requested, with instructions to the delivering postal employee to show to whom delivered, date of delivery, and address where delivered. The case number of the case in which the pleading has been filed shall be included on the return receipt. The clerk shall forthwith enter the fact of mailing on the docket sheet of the action and make a similar entry when the return receipt is received.

     (ii) Alternatively, the attorney or party filing the process and complaint or other document to be served may obtain a copy of the filed pleading from the clerk or, if the pleading was filed electronically, use the copy returned electronically by the clerk. The attorney or party shall then place that copy of the process and complaint or other document to be served in an envelope and address the envelope to the person to be served with instructions to forward. In the case of an entity within the scope of one of the subdivisions of Rule 4(c), the addressee shall be a person described in the appropriate subdivision. The attorney or party shall affix adequate postage and place the sealed envelope in the United States mail as certified mail with instructions to forward, return receipt requested, with instructions to the delivering postal employee to show to whom delivered, date of delivery, and address where delivered. The return receipt shall be addressed to the clerk of the court issuing the process and shall identify the case number of the case in which the pleading has been filed. Upon mailing, the attorney or party shall immediately file with the court an "Affidavit of Certified Mailing of Process and Complaint." That affidavit shall verify that a filed copy of the process and complaint or other document to be served has been mailed by certified mail in accordance with this rule.

   (C) When effective. Service by certified mail shall be deemed complete and the time for answering shall run from the date of delivery to the named addressee or the addressee's agent as evidenced by signature on the return receipt. Within the meaning of this subdivision, "agent" means a person or entity specifically authorized by the addressee to receive the addressee's mail and to deliver that mail to the addressee. Such agent's authority shall be conclusively established when the addressee acknowledges actual receipt of the summons and complaint or the court determines that the evidence proves the addressee did actually receive the summons and complaint in time to avoid a default. An action shall not be dismissed for improper service of process unless the service failed to inform the defendant of the action within time to avoid a default. In the case of an entity included in one of the provisions of Rule 4(c), "defendant," within the meaning of this subdivision, shall be such a person described in the applicable subdivision of 4(c).

   (D) Failure of delivery. If the receipt shows failure of delivery to the addressee or the addressee's agent, the clerk shall follow the notification procedure set forth in subdivision (i)(1)(D) of this rule. Failure to make service within the thirty-(30-)day period and failure to make proof of service do not affect the validity of service.

[NoLongerLost]

My husband did have her served based on the rules of civil procedure. He sent the clerk's office an Order of Service and Return with certified, return receipt first class postage as well as extra copies for his ex and the clerk's office. Friday he got his copies back, stamped by the courthouse, and as of today the post office has attempted to deliver twice and has left a notice at her home. They will hold the item for 15 days and then return it to the clerk's office. By then the 30 days will be almost up. My husband is sure she will not pick up the item.

Can he then file for default judgment once the 30 days has expired? Thanks for any input.

Thanks as always for all the good advice.

[Lee Borden]

Read the rule I just posted. The answer is no.

[NoLongerLost]

Read the rule I just posted. The answer is no.

I didn't see anything about filing for default judgment. I understand that the service is valid the way he sent it via the clerk. It was a motion for contempt, so will the judge set a court date, or can my husband request the judge make a decision without a hearing? Thanks for any help. He tried so often to do this without going to court. Firstly, it's time consuming and financially consuming. Secondly, it puts a strain on everyone involved.

Any idea what he should do next other than wait, wait, wait?

[Lee Borden]

He needs to get service of process on her using a process server. It's not that expensive, but I'm not the one to help with it, because my work is focused on couples who are able to be reasonably cooperative. This is why I think both of you are making this a lot harder than it needs to be by insisting on doing it yourselves.

[NoLongerLost]

Used a process server and the courthouse recorded the copies. The 30 days is up Monday, so my husband says he'll wait until Friday for a response to the order for contempt from her to him and courthouse.

Can he file a motion for default if she fails to respond, now that she has been "officially" served, or does he have to request a hearing? It's very inconvenient for him to drive for a hearing so he is trying every other avenue. Since she refused to sign 4 efforts at certified mail, should he request that she pay for the process server? He has the copies from the post office and the courthouse actually has the original documents.

It seems reasonable that if she fails to respond to a court order, the judge should rule in favor of my husband. Any input or suggestions from anyone who has been through the same thing?

[Lee Borden]

No hearing needed for a default. Plaintiff just needs to file an application with the clerk.

[NoLongerLost]

Someone in Alabama told him that he could not request a default judgment in a Contempt Of Court Case. He did send documentation, etc. with the original Contempt Request.

Can he use form C-25 "Application and Affidavit for Entry of Default" in a divorce contempt request? If so, he has one. Thanks again for all of the great help and advise.

[Lee Borden]

I'm not familiar with the form (remember, my work is focused on reasonably cooperative couples who don't need this), but it sounds like it would work fine.

[livealittle]

Someone in Alabama told him that he could not request a default judgment in a Contempt Of Court Case. He did send documentation, etc. with the original Contempt Request.

Can he use form C-25 "Application and Affidavit for Entry of Default" in a divorce contempt request? If so, he has one. Thanks again for all of the great help and advise.

I filed a counterclaim for contempt and got the judgement by default and I'm in Alabama.