Public-domain · open source
OpenJurist

477 So. 2d 786

Drago v. Drago

Louisiana Court of Appeal

Decided October 10, 1985

Louisiana Court of Appeal · decided 1985-10-10

Key passage — most relied on by later courts

““The Long Arm Statute provides that a certified copy of the petition and citation shall be sent to the defendant by registered or certified mail. § 3204. The statute further provides that no default judgment can be taken against the defendant without an affidavit of the individual who mailed the process to the defendant, showing that it was enclosed in an envelope properly addressed to the defendant ‘to which [affidavit] shall be attached the return receipt of the defendant.’ § 3205. “In the affidavit of 701’s attorney, John F. Whitney, verifying Long Arm Service, he stated that he sent a copy of the petition and citation to Mitchel R. Dukov at 1991 Crocker Road in Cleveland and he attached the return receipt signed by J. Huszai at that address. “The first question is whether the envelope containing the petition and citation was properly addressed. 701 Corporation was suing Dukov personally. The Crocker Road address was that of the corporation of which he was the president. His involvement in this affair with Breazeale and 701 Corporation had been in his representative capacity, not in his personal capacity. Breazeale had sought to get Dukov personally involved when it asked him to guarantee the note of the corporation but he declined to do so. “In any event, even if the envelope was properly addressed pursuant to § 3204 by mailing it to Dukov’s place of business a problem remains with the requirement of § 3205 that a return receipt of the defendant must be filed in the recor”

quoted by 1 later decision, including 141 So. 3d 974 - Lanier v. McMath Construction, Inc.

““In Louisiana service of process can be effected on a defendant either personally or at his domicile by leaving the papers with a competent person at the defendant’s domicile. In Roper v. Dai-ley, 393 So.2d 85 (La.l981)[,] the Supreme Court concluded ‘a party can be validly served at his place of business only by citation served on him personally.’ In other words, service of process cannot be effected on a defendant by leaving the papers to be served at his place of business.””

quoted by 1 later decision, including 141 So. 3d 974 - Lanier v. McMath Construction, Inc.

Relies on 302 So. 2d 5 - Imperial v. Hardy · 393 So. 2d 85 - Roper v. Dailey · 398 So. 2d 1257 - White v. White

Good law ✅— No negative treatment on recordhow we know

Decided 1985-10-10

How this case has been cited

Cited by 4 later decisions — most recently September 2013

4 state decisions

201985199020002010decided

Later decisions citing this case, by decade. The current decade is in progress, and our corpus holds fewer opinions from the most recent years, so the latest bars are undercounted — not a real decline.

View the full empirical analysis of this case →

KLIEBERT, Judge.

¶1This is an appeal by the father, Victor Louis Drago, Sr., from a judgment granting his former wife, Sharyn Delacroix Dra-go, an increase in monthly child support payments for the two children born of their previous marriage. The father contends the judgment is invalid because of an inadequate service of the motion for an increase in child support. For the reasons which follow, we reverse and set aside the trial court judgment.

¶2The record reflects that the wife filed a petition for divorce on September 24, 1974. The sheriffs return shows personal service on Mr. Drago on September 30, 1974. Mr. Drago failed to answer the petition and a default judgment was entered on November 6, 1974 condemning him to pay $200.00 per week for the support of each of the two minor children.

¶3On June 29, 1984 a rule to increase child support was filed and requested service be made via the Louisiana Long Arm Statute, i.e., R.S. 13:3201 et seq., on the defendant at his place of employment in Houston, Texas. At the hearing on the rule held on August 22, 1984, in an effort to show compliance with R.S. 13:32041 (service of process) counsel for Mrs. Drago filed into the record a United States Post Office return receipt showing a certified mailed item was received by a Margaret Curry at Mr. Dra-go’s place of employment in Houston, Texas, on August 2, 1984. At the conclusion of the hearing, at which the husband made no appearance, the trial court rendered the judgment increasing the child support payments to $300.00 per month per child. It is this judgment from which the husband appealed.

¶4On appeal the husband contends the delivery of the documents to a co-employee at the place of employment was inadequate to effect a service of process on the husband; hence, the judgment is invalid. The wife contends, however, that the original jurisdiction over the husband over the marital status, custody and support obtained through personal service of the initial pleadings on the husband in Louisiana is sufficient for the court to exercise jurisdiction and increase the original support award and cites Imperial v. Hardy, 302 So.2d 5 (La.1974); Chaplin v. Chaplin, 402 So.2d 795 (La.App. 4th Cir.1981).

¶5It is true as contended by counsel for the wife that under the concept of continuing jurisdiction adopted by Louisiana Courts, once jurisdiction attaches it continues to the final adjudication of the subject matter over which the jurisdiction attached. Notwithstanding such continuity of jurisdiction, however, in order to meet the requirement of the federal constitution as to due process, there must be a sufficient service of process on the defendant of the particular rule or pleading involved. White v. White, 398 So.2d 1257 (La.App. 4th Cir.1981). In the cases cited by the wife, service of process of the particular rule involved was effected by service on the defendant’s attorney or curator ad hoc appointed to represent him, either of which were held to satisfy the due process requirements of a valid service of process on the defendant.

¶6*788Here the wife attempted to meet the due process requirements of a valid service on the non-resident husband via the Long Arm Statute. Thus, the question posed is not whether the court had jurisdiction, but rather, whether the wife’s effort was sufficient.

¶7In Louisiana service of process can be effected on a defendant either personally or at his domicile by leaving the papers with a competent person at the defendant’s domicile. In Roper v. Dailey, 393 So.2d 85 (La.1981) the Supreme Court concluded “a party can be validly served at his place of business only by citation served on him personally.” In other words, service of process cannot be effected on a defendant by leaving the papers to be served at his place of business.

¶8Applying the same rationale to the facts involved here, we hold a valid service of process under the Long Arm Statute cannot be effected on a defendant by directing same to his place of employment by certified mail. Accordingly, the judgment of the trial court is reversed and set aside. All costs to be borne by the appellee.

¶9REVERSED AND SET ASIDE.

¶10. § 3204. Service of process

A certified copy of the citation and of the petition in a suit under R.S. 13:3201 shall be sent by counsel for the plaintiff to the defendant by registered or certified mail, or actually delivered to the defendant by an individual designated by the court in which the suit is filed, or by one authorized by the law of the place where the service is made to service the process of any of its courts of general jurisdiction.
Service of process so made has the same legal force and validity as personal service on the defendant in this state. Added Acts 1964, No. 47, § 3.
/477/so2d/786 · .json · Public domain