Certified Mail Service - Affidavit Required by Rule 4(i)(2)(B)(ii)


Ex parte Loyd Jenkins, [Ms. 2190272, Aug. 14, 2020] __ So. 3d __ (Ala. Civ. App. 2020). The court (Moore, J.; Donaldson, Edwards, and Hanson, JJ., concur; Thompson, P.J., concurs specially) vacates a default judgment entered by the Montgomery Circuit Court modifying custody of the parties’ minor children and reserving the issue of child support. In its discretion, the court treats the father’s appeal from the non-final judgment as a petition for the writ of mandamus. Ms. *4.

The court explains that

“Failure of proper service under Rule 4[, Ala. R. Civ. P.,] deprives a court of jurisdiction and renders its judgment void.” Ex parte Pate, 673 So. 2d 427, 428-29 (Ala. 1995). “When the service of process on the defendant is contested as being improper or invalid, the burden of proof is on the plaintiff to prove that service of process was performed correctly and legally.” Ex parte Volkswagenwerk Aktiengesellschaft, 443 So. 2d 880, 884 (Ala. 1983). “‘[S]trict compliance with the rules regarding service of process is required.’” Johnson v. Hall, 10 So. 3d 1031, 1037 (Ala. Civ. App. 2008) (quoting Ex parte Pate, 673 So. 2d at 429).

Ms. *5.

The court concludes certified mail service on the father was improper because the mother failed to file the affidavit required by Rule 4(i)(2)(B)(ii), Ala. R. Civ. P., which provides that an attorney or party who attempts service by certified mail must, “[u]pon mailing, ... immediately file with the court an ‘Affidavit of Certified Mailing of Process and Complaint.’” Ms. *6.

The trial court had found that a tracking form from the United States Postal Service indicated that service by certified mail was completed to “328 Brown Street.” Ms. *6. The court rejects that finding as “not supported by the materials [because] [t]he tracking form in the record indicates only that service was perfected in “Hutto, TX,” without referencing the actual street address.” Ms. **6-7.

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