Supreme Court provides guidance on service by publication

Virginia Code §§ 8.01-316 et seq. allow service by publication in certain cases, including where the identity or whereabouts of the defendant are unknown. The process is initiated by affidavit attesting to the grounds for proceeding by publication followed by entry of an order setting a time for the defendant to appear and/or plead in defense of the action. The order is then posted at the “Courthouse door” and published in a local newspaper once a week for four (4) weeks.

In the landmark case, Mullane v. Central Hanover Bank, 339 U.S. 306 (1950), the United States Supreme Court upheld service by publication as consistent with due process requirements as the “best notice practicable” in this situation. In a recent decision, Evans v. Evans, 300 Va. 134, 860 S.E.2d 381 (2021), the Virginia Supreme Court has provided valuable guidance to Virginia lawyers seeking to use this process.

Evans v. Evans background

Evans v. Evans was a divorce case where the parties last cohabited in Virginia Beach. Post separation Ms. Evans moved with the children to Martinsville, at which point she lost contact with her husband. A couple of years later, she filed for divorce in Martinsville Circuit Court. She filed an affidavit where she attested that notwithstanding a diligent effort to locate her husband, she was unable to do so. She listed his last known address as simply “unknown.” 

The record reflects that her attempt to locate her husband consisted of calling various family members and asking if they knew where he was living. The trial court entered an order of publication, which was posted at the Courthouse and published in the Martinsville Bulletin. Mr. Evans failed to appear and the trial court awarded Ms. Evans judgment not only for divorce but a personal judgment for child support. Later, Mr. Evans discovered the foregoing and brought an action to vacate the judgment, which was the decision that went up on appeal.

Justices evaluate service by publication as last potential service method

Justice Arthur D. Kelsey wrote the opinion for a unanimous court.  Justice Kelsey’s opinion is a treatise on the subject, beginning with the diligence requirement. The opinion is highly critical of Ms. Evans’ efforts to locate her husband. Among other things, the record reflects that Mr. and Ms. Evans were in communication electronically up until shortly before the divorce proceeding was initiated. (Although not in effect at the time, § 8.01-317 would now allow the judge to order publication to occur via e-mail, text, social media, etc. in this situation). Ms. Evans’ lack of diligence in locating her husband alone, perhaps, could have justified vacating the judgment, but Justice Kelsey instead goes on to address even more fundamental issues related to proceeding by publication.

The opinion then discusses the possibility of service under the Long Arm Statute. This service method is frequently thought of as available against “nonresidents” only but, as Justice Kelsey points out, there is no such limitation in the statute. The opinion goes on to state that the various service methods set out in the Code should not be considered as alternatives but rather as successive means to be employed with personal service being preferred, then substituted service, and finally constructive service.

Service by publication, in particular, should be regarded as the last potential service method and should be used only after all other means are exhausted. The court faulted plaintiff’s counsel for not serving the Secretary of the Commonwealth under the Long Arm Statute, which the court considered to be a superior form of service over publication. But, again, this was offered more as an observation than the actual holding of the case.

The opinion then turns to the in personam/in rem distinction. Interestingly, nowhere in the statutes does it explicitly state that an order of publication will support in rem jurisdiction only; yet numerous decisions treat this as a given. Ms. Evans was arguing there was no distinction to be made and that service by publication where authorized by statute would support both.

The opinion — citing both Kent Sinclair’s Virginia Civil Procedure and Hamilton Bryson’s Handbook on Virginia Procedure — came down that “generally” an order of publication will support in rem jurisdiction only. However, in instances where a defendant is actively attempting to avoid service, the opinion suggests that publication would support entry of a personal judgment. However, there was no suggestion of active avoidance by Mr. Evans in this case, so the holding was that the divorce (considered to be an in rem remedy) was validly entered but the personal judgment for child support was not.

Perhaps the most interesting part of the opinion is toward the end where the Virginia Supreme Court states that the law has “tolerated” service by publication only because, for a long time, there was no more practical alternative. However, with declining readership of traditional daily newspapers, increased mobility of the population and the advent of the internet as a means of collecting information and communicating with people, that was no longer necessarily the case.

The opinion notes recent statutory amendments in this area, including revision of § 8.01-324 (2019 Acts, ch. 635), which added a requirement that in order to qualify to publish legal notices, newspapers must post all notices to a “statewide searchable database” (such as Virginia Press Association’s www.publicnoticevirginia.com) and the amendment to § 8.01-317 (2020 Acts, ch. 159) allowing trial judges to order electronic service via e-mail, text, social media, etc., in addition to or in lieu of newspaper publication.

Conclusion

The opinion concludes: “How these developments will change things in the future we do not know. But for now, the historic judicial skepticism of service by order of publication will tolerate its presumed utility only in situations in which all other alternatives have been diligently exhausted.” Before initiating service by publication in any case, a thorough reading of Evans v. Evans is highly advised.

John Walk is a partner at Hirschler. He counsels clients in resolving civil disputes with a particular emphasis on cases arising in connection with the development of real property, such as land-use, environmental law, eminent domain, property assessment, insurance and contract disputes. He may be reached at [email protected].