In a divorce and alimony action, like most legal proceedings, a court cannot award all forms of relief unless the plaintiff has properly served the defendant with a summons and complaint or the defendant has waived service of process. Georgia law recognizes multiple methods to serve process or to confirm a defendant’s waiver of service, but not all of those methods seem created equal, at least for divorce and alimony actions. A two-part series will explore the requisites of the various service methods in this state, the issues surrounding those service methods in divorce and alimony actions, and the impact of the alternative service methods on the relief which a court may award in a divorce and alimony case. This Part I discusses the rules for perfecting service under the statutorily-permitted methods.
In Georgia, if a defendant has not waived service of process, the primary means of serving process in a divorce and alimony action consists of delivering a copy of the summons attached to a copy of the complaint “to the defendant personally, or by leaving copies thereof at the defendant’s dwelling house or usual place of abode with some person of suitable age and discretion then residing therein, or by delivering a copy of the summons and complaint to an agent authorized by appointment or by law to receive service of process.”(1)
Whether process can be served on another resident at defendant’s usual place of abode if that place is located outside of Georgia remains somewhat unclear. In one case, the Supreme Court of Georgia held that the statutory provision for leaving copies with another resident at the defendant’s usual place of abode applies only if service is made in Georgia, and that out-of-state service on a Georgia resident must be made by personal service on the defendant himself.(2) In a later case though, the Court held that where a nonresident defendant either maintains a matrimonial domicile in Georgia at the time of the commencement of the divorce action or resided in this state preceding the commencement of the action, he may be served outside of Georgia as if he resided in this state, by serving him personally or by leaving a copy of the summons and complaint with another qualified resident at defendant’s abode.(3)
If a divorcing spouse cannot personally serve the defendant or another suitable person at defendant’s abode, the plaintiff may be able to serve the defendant-spouse by publication. The statutory requisites to seek service by publication are as follows: When the person on whom service is to be made resides outside the state, or has departed from the state, or cannot, after due diligence, be found within the state, or conceals himself or herself to avoid the service of the summons, and the fact shall appear, by affidavit, to the satisfaction of the judge or clerk of the court, and it shall appear, either by affidavit or by a verified complaint on file, that a claim exists against the defendant in respect to whom the service is to be made, and that he or she is a necessary or proper party to the action, the judge or clerk may grant an order that the service be made by the publication of summons, provided that when the affidavit is based on the fact that the party on whom service is to be made resides outside the state, and the present address of the party is unknown, it shall be a sufficient showing of such fact if the affiant shall state generally in the affidavit that at a previous time such person resided outside this state in a certain place (naming the place and stating the latest date known to affiant when the party so resided there); that such place is the last place in which the party resided to the knowledge of affiant; that the party no longer resides at the place; that affiant does not know the present place of residence of the party or where the party can be found; and that affiant does not know and has never been informed and has no reason to believe that the party now resides in this state; and, in such case, it shall be presumed that the party still resides and remains outside the state, and the affidavit shall be deemed to be a sufficient showing of due diligence to find the defendant. This Code section shall apply to all manner of civil actions, including those for divorce.(4)
Upon entry of an order for service by publication, the following procedures must be followed to perfect service: When the court orders service by publication, the clerk shall cause the publication to be made in the paper in which sheriff's advertisements are printed, four times within the ensuing 60 days, publications to be at least seven days apart. The party obtaining the order shall, at the time of filing, deposit the cost of publication. The published notice shall contain the name of the parties plaintiff and defendant, with a caption setting forth the court, the character of the action, the date the action was filed, the date of the order for service by publication, and a notice directed and addressed to the party to be thus served, commanding him or her to file with the clerk and serve upon the plaintiff's attorney an answer within 60 days of the date of the order for service by publication and shall bear teste in the name of the judge and shall be signed by the clerk of the court. Where the residence or abiding place of the absent or nonresident party is known, the party obtaining the order shall advise the clerk thereof; and it shall be the duty of the clerk, within 15 days after filing of the order for service by publication, to enclose, direct, stamp, and mail a copy of the notice, together with a copy of the order for service by publication and complaint, if any, to the party named in the order at his or her last known address, if any, and make an entry of this action on the complaint or other pleadings filed in the case. The copy of the notice to be mailed to the nonresident shall be a duplicate of the one published in the newspaper but need not necessarily be a copy of the newspaper itself. When service by publication is ordered, personal service of a copy of the summons, complaint, and order of publication outside the state in lieu of publication shall be equivalent to serving notice by publication and to mailing when proved to the satisfaction of the judge or otherwise. The defendant shall have 30 days from the date of such personal service outside the state in which to file defensive pleadings.(5)
Case law has supplied a number of clarifications to the statutory provisions for service by publication. Among those clarifications, a plaintiff does not have to attempt personal service before seeking service by publication.(6) Instead, to obtain an order for service by publication on the basis that a defendant cannot be found within this state, the plaintiff must show that she pursued every reasonable “channel of information” (among which are tax and deed records) in attempting to locate the defendant, including showing the channels of information that were not reasonably available or that would have been impractical or fruitless to employ.(7) No published appellate decision has yet explicitly stated whether the same standard would apply to a resident defendant who has concealed himself within Georgia to avoid service.
Case law also has established that the clerk or the plaintiff’s attorney may mail the requisite notice to be published to the newspaper and mail the notice and other papers to a defendant whose address is known, despite the statutory references to the clerk as the one who must cause publication to be made and to mail papers to the defendant.(8) In any event, the clerk must certify the mailing of the requisite materials on the complaint filed in the case, in order to perfect service.(9)
In divorce cases involving service by publication, the law deems service to occur “on the date of the first publication of notice following the order for service of publication … and such divorce cases shall be triable any time after 60 days have elapsed since the date of the first publication of notice.”(10)
(1) O.C.G.A. § 9-11-4(e)(7). (2) Burkhardt v. Burkhardt, 275 Ga. 142, 142(1) and (2), 561 S.E.2d 822 (2002). (3) Guerrero v. Guerrero, 296 Ga. 432, 434, 768 S.E.2d 451 (2015). (4) O.C.G.A. § 9-11-4(f)(1)(A). (5) O.C.G.A. § 9-11-4(f)(1)(C). (6) Cohen v. Allstate Ins. Co., 277 Ga.App. 437, 439-440, 626 S.E.2d 628 (2006), citing Wilson v. State Farm etc. Ins. Co., 239 Ga. App. 168, 170-171, 520 S.E.2d 917 (1999). (7) Styles v. Spyke Ten, LLC., 802 S.E.2d 369, 372 (Ga. Ct. App., 2017). (8) Smith v. Pearce, 334 Ga.App. 84, 91-92(2), 778 S.E.2d 248 (Ga. App. 2015). (9) Vasile v. Addo, 800 S.E.2d 1, 4 (Ga. Ct. App., 2017). (10) O.C.G.A. § 9-11-40(a).