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Unpublished Opinion No.    2003-UP-322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).