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Saysavanh v. Saysavanh 2006 UT App 385

Link to Official Court Opinion

Case Summary

Bounthay Saysavanh (Husband) filed for divorce from Meg McGary Saysavanh (Wife) after Wife moved to Mexico with the parties’ child and refused to return the child to Utah. Husband sought and obtained court approval for alternative service by mail to Wife in Mexico, but the return receipt came back unsigned, and the trial court proceeded to enter a default decree of divorce after Wife failed to appear. Wife later moved under rule 60(b) to set aside the default decree for lack of personal jurisdiction, arguing she had never been properly served; the trial court denied the motion, and Wife appealed. Because the jurisdictional question was dispositive, the Court of Appeals did not reach Wife’s other issues on appeal.

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Facts

Separation and Custody Dispute

  • Husband and Wife separated in February 2001; Wife moved to Mexico while Husband and the parties’ minor child remained in Utah.
  • During the summer of 2001, the child visited Wife in Mexico, and Wife refused to return the child to Husband; Wife and the child have remained in Mexico ever since.

Divorce Petition and Service Attempts

  • Husband filed a petition for divorce in October 2001, along with a motion for an ex parte temporary restraining order and order to show cause, which the trial court denied because the child was not born during the marriage and paternity had not been established.
  • In October 2003, Husband filed an amended petition for divorce and a motion for an order to show cause, followed about a week later by a motion for alternative service under rule 4(d)(3)(B)(iii) of the Utah Rules of Civil Procedure.
  • The trial court granted the motion for alternative service, and in November 2003 the court clerk mailed the Amended Verified Petition for Divorce, Summons, Motion for Order to Show Cause, and Order to Show Cause to Wife in Mexico, requesting a return receipt.
  • The return receipt was later returned to the court clerk unsigned, with no other indication that delivery to Wife had been effected.

Default Decree and Motion to Set Aside

  • Wife asserts she never received the mailed documents and was unaware of the order to show cause hearing; the trial court nonetheless granted Husband’s motion for order to show cause in her absence and later entered a default decree of divorce.
  • Wife contends she first learned of the default decree in 2005, after learning the FBI was investigating her for removing the child from the United States, at which point she retained Utah counsel and moved under rule 60(b) to set aside the default decree for lack of jurisdiction.
  • The trial court denied Wife’s motion, finding Husband had made every effort to apprise Wife of the proceedings and had strictly complied with rule 4(d)(3)(B)(iii); Wife appealed that denial.

Issues of the Case

Wife, as appellant, raised one dispositive issue on appeal; because the jurisdictional issue was dispositive, the court did not reach Wife’s remaining issues.

  • Issue 1: Personal Jurisdiction and Sufficiency of Service of Process Under Rule 4 and the Hague Service Convention

The Court of Appeals reversed the trial court’s denial of Wife’s rule 60(b) motion and remanded, holding that service of process was never properly effectuated and that the trial court therefore lacked personal jurisdiction to enter the default decree.

  • Civil Procedure — Jurisdiction

    1. Personal Jurisdiction and Sufficiency of Service of Process Under Rule 4 and the Hague Service Convention

    Claim on Appeal: Wife argued the trial court erred in denying her rule 60(b) motion to set aside the default divorce decree because she was never properly served under rule 4 of the Utah Rules of Civil Procedure, depriving the court of personal jurisdiction over her.

    Holding: — Reversed and Remanded. Because an internationally agreed means of service exists between the United States and Mexico under the Hague Service Convention, rule 4(d)(3)(A) — not 4(d)(3)(B), which both parties and the trial court had assumed applied — governed service, and Husband never attempted service through Mexico’s designated Central Authority as the Convention requires; service was therefore never properly effectuated and the trial court lacked personal jurisdiction to enter the default decree.

    Statutory Authority: Utah R. Civ. P. 4(d)(3) (service of process in a foreign country) and Utah R. Civ. P. 60(b) (relief from judgment); the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters, 20 U.S.T. 361, T.I.A.S. No. 6638 (Nov. 15, 1965), incorporated into rule 4(d)(3)(A) as an internationally agreed means of service.

    Standard of Review:

    • Abuse of discretion — ordinarily applies to denial of a motion to set aside a judgment.
    • No deference / question of law — where, as here, the motion to set aside is based on a claim of lack of jurisdiction, the trial court has no discretion and the jurisdictional determination is reviewed for correctness.

    Controlling Cases:

    • Jackson Constr. Co. v. Marrs, 2004 UT 89, 100 P.3d 1211 (a court must have proper issuance and service of summons to acquire jurisdiction).
    • State Dep’t of Soc. Servs. v. Vijil, 784 P.2d 1130 (Utah 1989) (lack of personal jurisdiction is fatal to a court’s authority to decide a case as to a particular litigant).
    • Murdock v. Blake, 26 Utah 2d 22, 484 P.2d 164 (1971) (jurisdiction is conferred by service of process in the prescribed statutory mode, not by actual knowledge of the action).
    • De James v. Magnificence Carriers, Inc., 654 F.2d 280 (3d Cir. 1981) (the Hague Service Convention permits service without the Central Authority only where the receiving nation has not objected to the method used).

    Why It Matters: The decision establishes that Utah trial courts and litigants must independently verify whether an internationally agreed means of service (such as the Hague Service Convention) governs foreign service before defaulting to rule 4(d)(3)(B)’s alternative-service provisions — even where neither party raises the issue. It also reaffirms that actual notice, however clearly established, cannot substitute for compliance with the applicable service rule, making strict procedural compliance essential to a valid default judgment against a party served abroad.

Rules of Evidence

Utah Codes

Rules of Civil Procedure

Utah Code of Judicial Administration

Utah Rules of Appellate Procedure

Utah Rules of Professional Conduct

Case Cited

  • Franklin Covey Client Sales, Inc. v. Melvin, 2000 UT App 110, 2 P.3d 451 (standard of review for denial of a motion to set aside a judgment based on lack of jurisdiction).
  • State Dep’t of Soc. Servs. v. Vijil, 784 P.2d 1130 (Utah 1989) (defining personal jurisdiction and its jurisdictional significance).
  • Jackson Constr. Co. v. Marrs, 2004 UT 89, 100 P.3d 1211 (proper issuance and service of summons required to acquire jurisdiction).
  • Carlson v. Bos, 740 P.2d 1269 (Utah 1987) (service of process implements procedural due process by informing a defendant of pending legal action).
  • Murdock v. Blake, 26 Utah 2d 22, 484 P.2d 164 (1971) (service of process, not actual knowledge, confers jurisdiction; actual notice cannot supplant statutory service requirements).
  • De James v. Magnificence Carriers, Inc., 654 F.2d 280, 288 (3d Cir. 1981) (Hague Service Convention permits service outside the Central Authority only absent an objection by the receiving nation).
  • Greenfield v. Suzuki Motor Co., Ltd., 776 F. Supp. 698, 701-03 (E.D.N.Y. 1991) (Hague Convention’s translation requirement applies only to service through a foreign Central Authority, not direct postal service).
  • Lemme v. Wine of Japan Imp., Inc., 631 F. Supp. 456, 463-64 (E.D.N.Y. 1986) (same translation-requirement principle).

Litigation and Appellate Strategy

Reversal Predictor

  • A default judgment is entered against a party served abroad without confirming whether an internationally agreed means of service, such as the Hague Service Convention, applies to that country.
  • A trial court relies on a party’s alternative-service argument under rule 4(d)(3)(B) without first determining that no internationally agreed means of service exists under rule 4(d)(3)(A).
  • A party relies on actual notice, rather than compliance with the applicable service rule, to defend a default judgment against a jurisdictional challenge.

Mandatory Factor Checklist

  • Whether an internationally agreed means of service exists between the United States and the foreign country where the party is to be served.
  • If the Hague Service Convention applies, whether service was attempted through the receiving country’s designated Central Authority with a conforming request form and any required translation.
  • Whether documentation exists establishing that the served documents were actually delivered, or served by a method prescribed by the foreign state’s internal law.
  • Whether any Hague Convention Article 15 default-judgment exception applies, including the six-month waiting period and the receiving country’s declarations regarding that article.

Signal Cluster (High-Risk Appeal Profile)

  • A default judgment entered against a party served in a foreign country without any Central Authority involvement, where that country is a Hague Service Convention member.
  • An unsigned or missing return receipt as the sole evidence of service on a foreign party.
  • A trial court record showing reliance on actual notice or substantial compliance in place of strict adherence to the governing service rule.
  • Entry of default judgment less than six months after mailing service documents abroad, without any certificate of service or delivery.

Strategy Insight

Wife prevailed by framing her challenge as a pure legal-error argument about which subsection of rule 4(d)(3) applied and whether the Hague Service Convention’s Central Authority requirement was satisfied, rather than disputing the facts of what was mailed or received. Because jurisdictional determinations receive no deference, practitioners representing a party challenging service abroad should focus on identifying the correct governing rule or treaty provision as a matter of law, since that framing removes any need to prevail on a contested factual record.

Insights

Utah-Only Jurisprudence

The opinion blends Utah authority on jurisdiction and service with substantial reliance on an international treaty (the Hague Service Convention) and federal case law interpreting it (the Third Circuit and Eastern District of New York). The core procedural framework, however, remains rooted in the Utah Rules of Civil Procedure, with Utah Supreme Court and Court of Appeals precedent governing the jurisdictional and standard-of-review analysis.

Doctrinal Anchors (Utah Supreme Court)

  • Jackson Constr. Co. v. Marrs, 2004 UT 89, 100 P.3d 1211 — established that proper issuance and service of summons is required for a court to acquire jurisdiction; anchors the court’s threshold jurisdictional analysis.
  • State Dep’t of Soc. Servs. v. Vijil, 784 P.2d 1130 (Utah 1989) — established that lack of personal jurisdiction is fatal to a court’s authority over a litigant; frames the stakes of the service defect.
  • Murdock v. Blake, 26 Utah 2d 22, 484 P.2d 164 (1971) — established that service of process, not actual notice, confers jurisdiction; anchors the court’s rejection of Husband’s actual-notice argument.

The Most Important Holding

The most significant holding is that where an internationally agreed means of service — such as the Hague Service Convention — exists between the United States and the foreign country in question, rule 4(d)(3)(A) controls service, not the alternative-service provisions of rule 4(d)(3)(B), even if neither party nor the trial court identified this at the outset. Because Husband never attempted service through Mexico’s Central Authority as the Convention requires, the alternative service he did complete was legally insufficient to confer jurisdiction, regardless of the trial court’s finding that he made every reasonable effort.

Reversal Based on Legal Error vs. Factual Error

The reversal rests entirely on legal error: the trial court and both parties misidentified which subsection of rule 4(d)(3) governed service, and the trial court’s actual-notice reasoning was legally incorrect. No factual dispute was remanded for further proceedings on the jurisdictional question itself; rather, the case returns to the trial court because the underlying default decree cannot stand once the service defect is corrected.

Practitioner Takeaways

  • Trial Lawyers: Before seeking alternative service on a party located abroad, research whether the United States has a Hague Service Convention (or other treaty) relationship with that country — if so, service must proceed through the foreign Central Authority, and a court order approving mail service will not cure a Convention violation.
  • Appellate Lawyers: A jurisdictional defect in service can be raised and win reversal even where the parties briefed the wrong subsection of the governing rule below — courts of appeals may identify and apply the correct legal framework sua sponte on a pure question of law.
  • Family Law Practitioners: In cross-border custody and divorce matters involving a party in a Hague Convention country, budget additional time and translation costs for Central Authority service; do not rely on alternative service by mail even where the opposing party appears to be evading process.

Majority Opinion

This opinion is subject to revision before
publication in the Pacific Reporter.
IN THE UTAH COURT OF APPEALS
—-ooOoo—-
Bounthay Saysavanh,
Petitioner and Appellee,
v.
Meg McGary Saysavanh,
Respondent and Appellant.
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OPINION
(For Official Publication)
Case No. 20050803-CA
F I L E D
(September 21, 2006)
2006 UT App 385
—–
Third District, Salt Lake Department, 014904542
The Honorable Sandra N. Peuler
Attorneys: Clayne I. Corey, Sandy, for Appellant
Randall L. Skeen and Todd R. Mecham, Salt Lake City,
for Appellee
—–
Before Judges Bench, Orme, and Thorne.
BENCH, Presiding Judge:
¶1 Meg McGary Saysavanh (Wife) appeals the trial court’s denial
of her motion to set aside a default decree of divorce. Wife
argues that the trial court lacked jurisdiction because she was
not properly served with process according to rule 4 of the Utah
Rules of Civil Procedure. See Utah R. Civ. P. 4. We reverse and
remand.
BACKGROUND
¶2 Bounthay Saysavanh (Husband) and Wife separated in February
2001. Wife moved to Mexico while Husband and their minor child
remained in Utah. During the summer of 2001, the child visited
Wife, and Wife refused to return the child to Husband. To date,
Wife and the child remain in Mexico.
¶3 In October 2001, Husband filed a petition for divorce. In
addition to the petition, Husband filed a motion for an ex parte
temporary restraining order and order to show cause. The trial
court denied the ex parte motion because the child was not born
1Because our decision on the issue of jurisdiction is
dispositive, we do not reach Wife’s other issues on appeal.
20050803-CA 2
during the parties’ marriage and Husband had not established
paternity.
¶4 In October 2003, Husband filed an amended petition for
divorce and a motion for an order to show cause. About a week
later, Husband filed a motion for alternative service pursuant to
rule 4(d)(3)(B)(iii) of the Utah Rules of Civil Procedure. See
Utah R. Civ. P. 4(d)(3)(B)(iii). The trial court granted the
motion for alternative service, and in November 2003, the court
clerk mailed certain documents to Wife in Mexico, requesting a
return receipt. These documents included the Amended Verified
Petition for Divorce, Summons, Motion for Order to Show Cause,
and Order to Show Cause. The receipt was later returned to the
court clerk unsigned and without any other indication that
delivery to Wife had been effected.
¶5 Wife asserts that she did not receive any of the documents
mailed by the court clerk and was unaware of the order to show
cause hearing. Despite Wife’s absence at the hearing, the trial
court granted Husband’s motion for order to show cause. Later,
the trial court also entered a default decree of divorce.
¶6 Wife contends that she first became aware of the default
decree in 2005, after receiving information that the Federal
Bureau of Investigation was investigating her for removing the
child from the United States. Wife immediately obtained counsel
in Utah and filed a motion to set aside the default decree of
divorce pursuant to rule 60(b). See Utah R. Civ. P. 60(b). The
trial court denied Wife’s motion to set aside the default decree
and held that Husband “made every effort possible to apprise
[Wife] of the divorce proceedings, including strict compliance
with Rule 4(d)(3)(B)(iii) of the Utah Rules of Civil Procedure.”
Wife now appeals.
ISSUE AND STANDARD OF REVIEW1
¶7 Wife argues that the trial court erred in denying her rule
60(b) motion to set aside the default decree of divorce because
the court lacked jurisdiction. See Utah R. Civ. P. 60(b). A
denial of a motion to set aside a judgement is ordinarily
reviewed for an abuse of discretion. See Franklin Covey Client
Sales, Inc. v. Melvin, 2000 UT App 110,¶8, 2 P.3d 451. “However,
when a motion to [set aside] a judgment is based on a claim of
lack of jurisdiction, the district court has no discretion.” Id.
20050803-CA 3
“[T]he propriety of the jurisdictional determination . . .
becomes a question of law upon which we do not defer to the
district court.” Id.
ANALYSIS
¶8 “Personal jurisdiction . . . is the court’s ability to
exercise its power over a person for the purposes of adjudicating
his or her rights and liabilities. A lack of [personal
jurisdiction] is fatal to a court’s authority to decide a case
with respect to a particular litigant.” State Dep’t of Soc.
Servs. v. Vijil, 784 P.2d 1130, 1132 (Utah 1989) (citations
omitted).
¶9 “For a court to acquire jurisdiction, there must be a proper
issuance and service of summons.” Jackson Constr. Co. v. Marrs,
2004 UT 89,¶10, 100 P.3d 1211. “Service of process implements
the procedural due process requirement that a defendant be
informed of pending legal action and be provided with an
opportunity to defend against the action.” Carlson v. Bos, 740
P.2d 1269, 1271 (Utah 1987).
¶10 Rule 4 of the Utah Rules of Civil Procedure governs service
of process, and subsection 4(d)(3) specifically governs service
of process in a foreign country. See Utah R. Civ. P. 4(d)(3).
In order to determine which part of subsection 4(d)(3) is
applicable, we first assess whether there is an internationally
agreed means of service in Mexico, “such as those means
authorized by the Hague Convention on the Service Abroad of
Judicial and Extrajudicial Documents.” Utah R. Civ. P.
4(d)(3)(A). If there exists an internationally agreed means of
service between the countries, rule 4(d)(3)(A) is applicable.
See id. If there is no internationally agreed means of service,
rule 4(d)(3)(B) is applicable. See Utah R. Civ. P 4(d)(3)(B).
Finally, rule 4 allows the trial court to direct service “by
other means not prohibited by international agreement.” Utah R.
Civ. P. 4(d)(3)(C).
I. Rule 4(d)(3)(A)
¶11 In their briefs on appeal, both parties presume that there
is no internationally agreed means for service of process in
Mexico and argue whether service was satisfied under subsection
4(d)(3)(B) of the rule. That was also the subsection relied upon
by the trial court. We conclude that because there is an
internationally agreed means of service in Mexico, subsection
4(d)(3)(A) applies.
2Although not briefed by the parties, at oral argument
questions arose concerning whether the Hague Service Convention
applies only to citizens or to both citizens and noncitizens of
member countries. We have found no authority for such a
distinction, at least as to persons residing in Mexico.
20050803-CA 4
¶12 The Hague Convention on the Service Abroad of Judicial and
Extrajudicial Documents in Civil or Commercial Matters (the Hague
Service Convention) establishes international procedures for
service of process between individuals or entities of member
countries.2 See Hague Service Convention, concluded Nov. 15,
1965, 20 U.S.T. 361, T.I.A.S. No. 6638. The United States
adopted the convention in 1967, effective on February 10, 1969.
See Hague Conference on Private International Law, Status Table,
http://hcch.e-vision.nl/index_en.php?act=conventions.text&cid=17
(last visited Sep. 18, 2006). Mexico adopted the convention in
1999, effective on June 1, 2000. See id. The United States and
Mexico therefore have an internationally agreed means for service
of process. Because there exists an agreed means of service,
rule 4(d)(3)(A) is the applicable rule for determining whether
service of process was properly effectuated in Mexico.
¶13 Rule 4(d)(3)(A) provides that service shall be made “by any
internationally agreed means reasonably calculated to give
notice, such as those means authorized by the Hague Convention on
the Service Abroad of Judicial and Extrajudicial Documents.”
Utah R. Civ. P. 4(d)(3)(A). By the plain language of the rule,
the terms of the Hague Service Convention therefore control
whether process was properly served in Mexico.
¶14 Article 2 of the Hague Service Convention provides that
“[e]ach contracting State shall designate a Central Authority
which will undertake to receive requests for service coming from
other contracting States and to proceed in conformity with
[other] provisions [of the convention].” Hague Service
Convention, art. 2. Article 3 of the convention provides that
the “judicial officer competent under the law of the State in
which the documents originate shall forward to the Central
Authority of the State addressed a request conforming to the
model annexed to the present Convention.” Hague Service
Convention, art. 3 (emphasis added). The model form is easily
accessible and available on the internet. See Hague Conference
on Private International Law, Request for Service Abroad of
Judicial or Extrajudicial Documents, http://www.hcch.net/upload
/act_form14e.pdf (last visited Sep. 18, 2006). After the form is
completed and sent to the destination Central Authority, the
Central Authority then reviews the request, determines its
compliance, and “shall itself serve the document or shall arrange
3Courts have ruled that the translation requirement of
Article 5 applies only to service of documents by the foreign
Central Authority, and not direct postal service. See Greenfield
(continued…)
20050803-CA 5
to have it served by an appropriate agency.” Hague Service
Convention, art. 5 (emphasis added).
¶15 For purposes of effectuating international service of
process under the Hague Service Convention, Mexico has designated
its Central Authority as follows:
Ministry of Foreign Affairs
General Direction of Legal Affairs
Plaza Juárez No. 20, piso 5
Edificio Tlatelolco
Colonia Centro, delegación Cuauhtémoc
C.P. 06010
Mexico, Distrito Federal
Hague Conference on Private International Law, Mexico Central
Authority & Practical Information, http://www.hcch.net/index_en.
php?act=authorities.details&aid=267 (last visited Sep. 18, 2006).
The Mexican Central Authority also lists its own website and
several phone numbers and contact names for assistance. See id.
¶16 Our review of the record in this matter reflects that
neither Husband nor the trial court clerk ever completed a
request form conforming to the Hague Service Convention, or sent
the request form along with all documents to be served upon Wife
to the designated Mexican Central Authority. As a result,
process was not served consistent with Articles 2 or 3 of the
Hague Service Convention.
¶17 Furthermore, the Hague Service Convention and the country
specific declarations indicate that Mexico has enacted language
requirements, specifying that judicial documents, including a
request form, must be in Spanish or that “when the judicial and
extrajudicial documents to be served in Mexican territory are
written in a language other than Spanish, they must be
accompanied by the corresponding translation.” Hague Conference
on Private International Law, Declarations–Mexico,
http://www.hcch.net/index_en.php?act=status.comment&csid=412&
disp=resdn (last visited Sep. 18, 2006). Based on our review of
the record, neither Husband nor the trial court clerk ever sent
any accompanying Spanish translation of the documents to be
served on Wife. Husband, therefore, did not comply with Mexico’s
language declaration concerning Article 5 of the Hague Service
Convention. See id.3
3(…continued)
v. Suzuki Motor Co., Ltd., 776 F. Supp. 698, 701-03 (E.D.N.Y.
1991); Lemme v. Wine of Japan Imp., Inc., 631 F. Supp. 456,
463-64 (E.D.N.Y. 1986).
20050803-CA 6
¶18 The Hague Service Convention also “allows service to be
effected without utilizing the Central Authority as long as the
nation receiving service has not objected to the method used.”
De James v. Magnificence Carriers, Inc. , 654 F.2d 280, 288 (3d
Cir. 1981). Mexico’s declaration concerning Article 10 states
that Mexico is “opposed to the direct service of documents
through diplomatic or consular agents.” Hague Conference on
Private International Law, Declarations–Mexico, http://www.hcch.
net/index_en.php?act=status.comment&csid=412&disp=resdn (last
visited Sep. 18, 2006). It is unclear, however, whether Mexico
is categorically opposed to service via postal channels from
individuals or entities that are not diplomatic or consular
agents. Compare U.S. Department of State, Service of Legal
Documents Abroad, http://travel.state.gov/law/info/judicial/
judicial_680.html (last visited Sep. 18, 2006) (stating that
“[s]ervice by registered mail should not be used [in Mexico],
which notified the treaty repository that it objected to the
method described in Article 10(a) (postal channels)”), with U.S.
Department of State, International Judicial Assistance–Mexico,
http://travel.state.gov/law/info/judicial/judicial_677.html (last
visited Sep. 18, 2006) (“There is no provision in Mexico law
specifically prohibiting service by international registered
mail, if enforcement of a judgment in Mexico courts is not
anticipated.”).
¶19 There remains, however, a clearly articulated and defined
method for service via the Mexican Central Authority, as
specified in the Hague Service Convention. Therefore, Husband’s
only clear alternative for effectuating service upon Wife in
Mexico is by service through the designated Central Authority,
which Husband failed to attempt or complete.
II. Article 15
¶20 Even if we were to assume that Mexico permits service of
process via direct mailing from nondiplomatic and nonconsular
individuals, Husband failed to satisfy Article 15 of the Hague
Service Convention for several reasons.
¶21 First, the initial paragraph of Article 15 states that:
Where a writ of summons or an equivalent
document had to be transmitted abroad for the
20050803-CA 7
purpose of service, under the provisions of
the present Convention, and the defendant has
not appeared, judgment shall not be given
until it is established that:
a) the document was served by a method
prescribed by the internal law of the State
addressed for the service of documents in
domestic actions upon persons who are within
its territory, or
b) the document was actually delivered to the
defendant or to his residence by another
method provided for by this Convention[.]
Hague Service Convention, art 15, para. 1 (emphasis added). In
this matter, there is no documentation establishing that the
documents to be served were either served according to Mexican
law or delivered to Wife or her residence in Mexico. Husband’s
only documentation is an unsigned return receipt request, which
evidences neither delivery nor service.
¶22 Second, paragraph two of Article 15 states that:
Each Contracting State shall be free to
declare that the judge, notwithstanding the
provisions of the first paragraph of this
Article, may give judgment even if no
certificate of service or delivery has been
received, if all the following conditions are
fulfilleda) the document was transmitted by one of the
methods provided for in this Convention,
b) a period of time of not less than six
months, considered adequate by the judge in
the particular case, has elapsed since the
date of the transmission of the document,
c) no certificate of any kind has been
received, even though every reasonable effort
has been made to obtain it through the
competent authorities of the State addressed.
Hague Service Convention, art. 15, para. 2 (emphasis added).
With respect to this second paragraph in Article 15, Mexico has
specifically declared that:
20050803-CA 8
the Government of Mexico does not recognize
the faculty of the judicial authority to give
judgment when the defendant has not appeared
and there is no communication establishing
that the document was served, or that
documents originating outside the country
were indeed delivered, according to
sub-paragraphs a) and b) of the first
paragraph.
Hague Conference on Private International Law, Declarations–
Mexico, http://www.hcch.net/index_en.php?act=status.comment&csid=
412&disp=resdn (last visited Sep. 18, 2006) (emphasis added).
Therefore, according to the Mexican declarations under the Hague
Service Convention, Mexico does not recognize default judgments
of foreign judicial authorities where the defendant has not
appeared and there is no communication that the documents were
served or delivered. See id. Because Wife did not personally
appear, and there is no evidence that the documents were served
or delivered to Wife, the second paragraph of Article 15 is not
applicable.
¶23 Third, even assuming that the second paragraph of Article 15
of the convention could apply in this case, the six-month waiting
requirement has not been met. Under Article 15, paragraph two,
subpart (b), in order for the requesting State to have authority
to enter default judgment against a defendant without a
certificate of service and without documentation of delivery, “a
period of time of not less than six months, considered adequate
by the judge in the particular case, [must have] elapsed since
the date of the transmission of the document.” Hague Service
Convention, art. 15, para. 2(b). In the instant matter, the
documents were mailed by the court clerk on November 10, 2003,
and the trial court entered default decree of divorce on February
20, 2004. As a result, six months did not elapse between the
alleged transmission of the documents and the entry of judgment.
Therefore, Article 15, paragraph two, subpart (b), was not
satisfied.
III. Actual Notice
¶24 Husband argues in his brief that Wife “had actual notice of
the proceedings” and that this “falls within the scope of
‘reasonably calculated to give notice'” under rule 4 of the Utah
Rules of Civil Procedure. Utah R. Civ. P. 4. However, actual
notice does not satisfy the requirements of rule 4.
¶25 “Service of summons in conformance with the mode prescribed
by statute is deemed jurisdictional, for it is service of
20050803-CA 9
process, not actual knowledge of the commencement of the action,
which confers jurisdiction.” Murdock v. Blake, 26 Utah 2d 22,
484 P.2d 164, 167 (1971). “The proper issuance and service of
summons is the means of invoking the jurisdiction of the court
and of acquiring jurisdiction over the defendant; these cannot be
supplanted by mere notice by letter, telephone or any other such
means.” Id. (emphasis added). As a result, whether Wife had
actual notice is immaterial because such notice cannot supplant
the jurisdictional requirements of rule 4 of the Utah Rules of
Civil Procedure.
CONCLUSION
¶26 Husband has failed to properly serve Wife according to rule
4(d) of the Utah Rules of Civil Procedure and the Hague Service
Convention. As a result, service of process was not properly
effectuated and the trial court lacks personal jurisdiction. We
therefore reverse the trial court’s denial of Wife’s motion to
set aside the default decree of divorce.
______________________________
Russell W. Bench,
Presiding Judge
—–
¶27 WE CONCUR:
______________________________
Gregory K. Orme, Judge
______________________________
William A. Thorne Jr., Judge

Reversed

The reviewing court determined that the lower court committed reversible error and overturned the judgment.

Remanded

The reviewing court returned the case to the lower court for further proceedings consistent with its opinion.