Service by Publication

By: Trev E. Peterson

In Francisco v. Gonzalez, 301 Neb. 1045, ___ N.W.2d ___ (2019), the mother of two minor children sought a judicial determination of paternity and custody and for the district court to make findings that would have allowed for special juvenile status under federal immigration law. The mother moved from Guatemala to Omaha after the birth of the first child and while pregnant with her second child. The mother filed a motion to serve the father by publication. In support of the motion, the mother filed an affidavit indicating that she had not had contact with the father for nearly 2 years; did not know of any friends or family that knew of the father’s whereabouts and that she knew of no other way to locate him. The district court granted the motion to serve the father by publication and notice of suit was published in a legal newspaper in Douglas County.

Following publication of the notice of suit, the district court held a hearing on the merits of the case and entered an order determining that the father was the father of the children, awarding the mother the sole custody of the children, but declining to make any finding that it was in the children’s’ best interest to remain in the United States and not return to Guatemala. The father did not appear at and was not represented at the hearing.

The mother filed a motion to alter or amend the findings and the district court vacated part of its order regarding the older child and the mother filed a second motion to alter or amend the order with regard to the older child. At the hearing, the district court held that it did not have personal jurisdiction over the father because the mother did not comply with the statute governing service by publication, due to her failure to mail a copy of the published notice to the defendant’s last known residence and due to her failure to file the affidavit required by the statute governing service by publication, Neb. Rev. Stat. §25-520.01. The mother appealed.

On appeal the Supreme Court held that the district court did not have jurisdiction due to the failure of the mother to comply with §25-520.01. Proper service or a voluntary appearance in an action is necessary to acquire personal jurisdiction over a defendant. Where service is by publication, and the party fails to comply with §25-520.01, the district court lacks personal jurisdiction over the defendant. A judgment entered without personal jurisdiction is void.

Applying the law to the case, the Supreme Court noted that §25-520.01 requires that a party providing notice by publication take two steps beyond publication of the notice. First, the party or their attorney must mail a copy of the notice to the last known address of every party whose name and address are known to the party serving by publication. Proof of mailing is by affidavit within 10 days after the mailing of the notice. The affidavit also must contain a statement that the party and his or her attorney after diligent investigation and inquiry were unable to ascertain and do not know the post office address of any other party appearing to have a direct legal interest in the action, other than those to whom the notice was mailed.

Section 25-520.01 has been interpreted to require that notice be sent to the last known address of a person with an interest in the proceedings. At oral argument the mother’s attorney conceded that she knew the father’s address at the time she left Guatemala, but she or her attorney did not mail a copy of the published notice to the father’s last known address.

On appeal, the mother argued that she did not know of the father’s whereabouts at the time of the publication of the notice of suit, and that she was, therefore, not required to mail the notice. The problem is that while §25-520.01 contemplates situations where parties may not know the location of the other party, the party relying on service by publication must file an affidavit that the party and their attorney after diligent investigation and inquiry do not know the post office address of any parties having an interest who were not mailed a copy of the published notice. In this case, no affidavit of service was filed, so that even assuming that the mother did not know the address of the father, there was no affidavit complying with the requirements of the statute.

The Court noted that the affidavit filed to obtain the order for service by publication did not comply with the requirements of §25-520.01 for a number of reasons, including the requirement that the affidavit state that both the party and her attorney were unable to ascertain the address after diligent investigation and inquiry. The affidavit did not refer to any investigation made by the mother or her attorney. The mother knew where the father lived when she left Guatemala and because the affidavit provides no indication that she or her attorney attempted to determine whether the father still lived at the last known address she did not demonstrate that a reasonably diligent investigation and inquiry was made.

Because of the failure to comply with the requirements of §25-520.01, the Court concluded that the district court did not have jurisdiction over the father and any order issued by the district court was void. The Court vacated the orders issued by the district court and dismissed the appeal for lack of jurisdiction.

The take away from the case is that in any case where service by publication is used, the party arranging for publication must comply with §25-520.01.