GRANT PHILLIP POPPINGA v. ARRIANNA MONET WALLACE (2025)

¶1 This matter originated as a paternity proceeding filed by Father, Grant Phillip Poppinga. Father filed a petition of paternity seeking a determination of parentage, custody, visitation, and support for the minor daughter (Child) he shares with Arrianna Monet Wallace, Mother. Father attempted service of the petition by publication and thereafter filed a motion for default judgment when Mother failed to appear. The district court granted Father's requested default judgment. When Mother learned of the judgment against her, she sought to have it vacated claiming errors in the service by publication as well as in the award of default judgment. The district court denied Mother's request and she appealed. We retained the matter to address whether Father's service by publication was sufficient and whether the district court erred in failing to grant Mother's motion to vacate the default judgment. We find error in both the service by publication and in the district court's denial of the motion to vacate.

FACTS AND PROCEDURAL BACKGROUND

¶2 On December 10, 2021, Father filed a Petition of Paternity seeking custody of Child. Sometime before this, Mother had reportedly taken Child from their shared home and left the state leaving Father unable to locate them. Father failed to obtain personal service on Mother and on January 4, 2022, the case was stricken for lack of service. The record does not reflect a request for an Alias Summons nor was one granted. After obtaining new counsel, Father filed a new Summons and an Affidavit for Service by Publication. The Affidavit, signed by Father's counsel, provided:

Affiant states that this Petition of Paternity is one wherein service by publication is authorized by the laws of this State. Affiant further states that Petitioner does not know and upon diligent inquiry is unable to ascertain the whereabouts of the Respondent Arrinna [sic] Monet Wallace. Petitioner believes that Respondent has removed herself and the minor child from the State of Oklahoma and relocated to St. Peters, Missouri. Petitioner has obtained the services of a Private Detective and Process Server to locate and serve the Respondent, but the Respondent has refused all attempts of service. The Petitioner is therefore unable to make service of summons upon said Respondent within or without the State of Oklahoma by any other method and desires the Court to accept service by publication upon said Respondents [sic].

The notice was thereafter published in the Logan County Courier on June 2, 9, and 16, 2022. The first publication occurred one hundred and seventy-four days after Father filed his petition. The third and final publication was completed one hundred and eighty-eight days after the filing of Father's petition.

¶3 The Proof of Publication set forth the following notice as published in the Courier:

IN THE DISTRICT COURT OF LOGAN COUNTY STATE OF OKLAHOMA GRANT PHELLIP [sic] POPPINGA, Petitioner, Vs. ARRINNA [sic] MONET WALLACE, Respondent Case No. FP-2021-36 SUMMONS AND NOTICE BY PUBLICATION THE STATE OF OKLAHOMA TO: ARRINNA [sic] MONET WALLACE.

Take notice that you have beea [sic] sued by Arrinna [sic] Monet Wallace in the above named court for divorce based on inconpatibility [sic] and that said suit has asked for the division of property and debt of the marriage. You must answer the Petition filed by said Plaintiff on or before the 15th day of July, 2022 or the ailegatioi-is [sic] contained in said Petition filed by plaintiff will be taken as true and an Order will be granted for Grant Phlllip [sic] Poppinga.

¶4 On July 20, 2022, Father filed a Motion for Default Judgment. There is no record of notice of a hearing requested or held on Father's Motion. The same day Father filed the Motion, the district court entered an order granting Father's Motion for Default Judgment. This order affirmatively established Father's paternity, awarded him sole custody of Child, and set visitation and child support. The Default Order granted by the court did not reference the service by publication but stated “that Respondent was lawfully notified of the time and place of this hearing, and that Respondent is wholly in default.” The court further “found that this matter was properly presented for hearing by Petitioner at this time.” The certificate of service attached to Father's motion for default judgment indicates it was mailed to Mother at an address in Guthrie, Oklahoma, on the same day it was filed and decided by the court.

¶5 When Mother discovered the default order, her counsel filed a special entry of appearance, a Motion to Vacate Default Decree, Writ of Habeas Corpus and Motion to Dismiss. The district court overruled all motions. Mother appealed and this Court retained the matter.

STANDARD OF REVIEW

¶6 Oklahoma courts view default judgments with disfavor, preferring, when possible, to allow the parties to have their day in court so that a decision on the merits may be reached. Williams v. Meeker N. Dawson Nursing, LLC, 2019 OK 80, ¶ 12, 455 P.3d 908, 913. This is particularly true when a party has not yet been heard on the merits. Velasco v. Ruiz, 2019 OK 46, ¶ 6, 457 P.3d 1014, 1017. In cases where the trial court has vacated or refused to vacate a default judgment, this Court's role is to assess whether there has been an abuse of discretion. Id. An abuse of discretion occurs when a court's “decision is based on an erroneous interpretation of the law, on factual findings that are unsupported by proof, or represents an unreasonable judgment in weighing relevant factors.” Oklahoma City Zoological Trust v. State ex rel. Pub. Emps. Relations Bd., 2007 OK 21, ¶ 5, 158 P.3d 461, 464. The decision to vacate a default judgment should be exercised to promote justice. Ferguson Enters., Inc. v. H. Webb Enters., Inc., 2000 OK 78, ¶ 5, 13 P.3d 480. Another consideration is whether substantial hardship would result from granting or refusing to grant the motion to vacate. Id.

¶7 Here, the record reflects the district court erred in finding the service by publication was sufficient and in failing to grant Mother's motion to vacate the default judgment. These decisions constitute an abuse of discretion.¹ We reverse and remand the case to the trial court for further proceedings in accordance with this opinion.

DISCUSSION

¶8 A parent's right to a relationship with their child is a fundamental, constitutionally protected right that cannot be altered without due process. Nelson v. Nelson, 1998 OK 10, ¶ 16, 954 P.2d 1219, 1225. Due process “begins with a party's right to notice of the pendency of an action and of the nature of any relief sought.” Id. ¶ 21, 954 P.2d at 1228 (Emphasis in original). Adequate notice provides a realistic opportunity to be heard in court and the right “to participate in a meaningful manner before one's rights are irretrievably altered.” Purcell v. Parker, 2020 OK 83, ¶10, 475 P.3d 834, 842. A jurisdictional infirmity arises when there is a lack of requisite notice. Id.

¶9 A review of the proof of publication filed by Father reveals that the published notice was riddled with defects from the misspelling of the names of both parties and other grammatical errors to the failure to identify the correct nature of the suit. These errors alone are fatal to the court's jurisdiction over Mother, but Father also failed to complete the service by publication within one hundred and eighty (180) days of the filing of his petition. This multitude of errors denied Mother due process when her child custody and visitation rights were altered without adequate notice that such rights were in jeopardy.

¶10 Oklahoma law makes clear that service by publication is a matter of last resort reserved for cases where “service cannot be made upon the defendant by any other method.” 12 O.S.2021, § 2004 (C)(3)(a). The rules for proper service by publication require the published notice to be “signed by the court clerk, one (1) day a week for three (3) consecutive weeks in a newspaper authorized by law to publish legal notices which is published in the county where the petition is filed.” 12 O.S.2021, § 2004(C)(3)(c). The statute also requires the notice to “state the court in which the petition is filed and the names of the plaintiff and the parties served by publication.” Id. Finally, the notice must also “state that the named defendants and their unknown successors have been sued and must answer the petition on or before a time to be stated (which shall not be less than forty-one (41) days from the date of the first publication), or judgment, the nature of which shall be stated, will be rendered accordingly.” Id.

¶11 Mother argues the district court lacked jurisdiction to enter the default order due to Father's failure to serve her and put her on notice of the proceeding let alone that such important matters as child custody and child support were at issue. The publication notice posted in the paper merely identified the action as a divorce proceeding seeking the division of marital property and debt, not one where child custody and visitation would be determined. Mother further states that Father did not provide her with notice of the time, date, and place for the hearing on the Motion for Default Judgment and that the court granted Father's motion for default judgment the same day the motion was filed and mailed to Mother per the certificate of mailing. Mother alleges she did not learn that a custody proceeding was pending prior to Father obtaining the Default Judgment. As a result of the Default Decree, Mother claims her visitation with Child is extremely limited and that she has no unsupervised visits with Child.

¶12 Though Oklahoma's Pleading Code requires only substantial compliance, when notice is given by publication, “the general rule tends toward strictness”. Tucker v. New Dominion, L.L.C., 2010 OK 14, ¶15, 230 P.3d 882, 886. Indeed, this Court recently found that a trial court abused its discretion when it failed to vacate a default judgment despite substantial errors with service of process and notice. Velasco v. Ruiz, 2019 OK 46, ¶ 12, 457 P.3d 1014, 1019. In Velasco, our Court recognized that the procedures set forth in the statutes for service of process provide a defendant with certain due process rights, the violation of which undermines jurisdiction and constitutes reversible error. Id; 12 O.S.2021, § 2004.

¶13 Even if the parties and nature of the suit had been correctly identified, Father's proof of publication appears untimely. Section 2004 (I) provides that service not made within one hundred eighty (180) days after the filing of the petition “shall be deemed dismissed” where the plaintiff has not shown good cause for the delay. 12 O.S.2021, § 2004(I). In order to complete service by publication, the statute requires the publication of a notice “one (1) day a week for three (3) consecutive weeks in a newspaper authorized by law to publish legal notices which is published in the county where the petition is filed.” 12 O.S.2021, § 2004(C)(3)(c). Father filed his petition herein on December 10, 2021. The proof of publication indicates Father's notice was published on June 2, 9, and 16, 2022. While the first date of publication occurred within the 180-day window, the remaining two dates did not and, as such, the service was untimely. There is nothing in the record to establish good cause for the delay.

¶14 Further compounding the errors related to service herein, the trial court failed to follow proper court procedure to ensure the accuracy of Father's alleged due diligence. Rule 16 of the Rules for District Court of Oklahoma provides that “[w]hen a request for service by publication is made, the trial court is required to conduct a judicial inquiry into the specific facts concerning what methods of due diligence were exercised in conducting a legitimate search for the Respondent.² Likewise, Section 2004(C)(3)(e) states: “Before entry of a default judgment or order against a party who has been served solely by publication under this paragraph, the court shall conduct an inquiry to determine whether the plaintiff․made a distinct and meaningful search of all reasonably available sources to ascertain the whereabouts of any named parties who have been served solely by publication under this paragraph.” The district court erred in failing to consider these factors and in failing to vacate the default judgment.

CONCLUSION

¶15 While default judgments have not been eliminated in Oklahoma, they are disfavored, especially when a party has yet to be heard on the merits. Here, Mother was not given adequate notice that her child custody and visitation rights were in peril and, consequently, she was deprived of due process. The trial court should have granted Mother's motion to vacate the default judgment. The trial court's final order refusing to vacate the default decree of paternity, visitation, and child support is therefore reversed. Because there is no longer any determination of paternity, the matter is remanded for the trial court (1) to reconsider Mother's motion to dismiss for lack of jurisdiction--particularly in light of the Uniform Child Custody Jurisdiction & Enforcement Act (UCCJEA), 43 O.S.2021, §§ 551-101 et seq.--and for insufficiency of service of process, (2) to reconsider her motion to vacate the writ of habeas corpus, and (3) to conduct such further proceedings as necessary in a manner consistent with this opinion.

REVERSED AND REMANDED WITH INSTRUCTIONS.

Citationizer© Summary of Documents Citing This Document

Cite Name Level None Found. Citationizer: Table of Authority Cite Name Level Oklahoma Supreme Court Cases Cite Name Level 1998 OK 10, 954 P.2d 1219, 69 NELSON v. NELSON OBJ 452, Discussed 2000 OK 78, 13 P.3d 480, 71 OBJ FERGUSON ENTERPRISES, INC. v. H. WEBB ENTERPRISES, INC. Discussed 2590, 2007 OK 21, 158 P.3d 461, OKLAHOMA CITY ZOOLOGICAL TRUST v. STATE ex rel. PUBLIC Discussed EMPLOYEES RELATIONS BD. 2010 OK 14, 230 P.3d 882, TUCKER v. NEW DOMINION, L.L.C. Discussed 2019 OK 46, 457 P.3d 1014, VELASCO v. RUIZ Discussed at Length 2019 OK 80, 455 P.3d 908, WILLIAMS v. MEEKER NORTH DAWSON NURSING LLC Discussed 2020 OK 83, 475 P.3d 834, PURCELL v. PARKER Discussed Title 12. Civil Procedure Cite Name Level 12 O.S. 2004, Process Discussed at Length Title 43. Marriage Cite Name Level 43 O.S. 551-101, Short Title Cited

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FOOTNOTES

1.   Per this Court's Order of June 5, 2023, appellate review of this matter is limited to the March 7, 2023, judgment denying Mother's motion to vacate.

2.   Rule 16 of the Rules for District Courts of Oklahoma provides in pertinent part as follows:When a default judgment sought in any action against a party-defendant who was served solely by publication (i.e., upon whom no notice by mailing was effected), the judge shall conduct an inquiry either in open court or in chambers to determine judicially whether plaintiff, or someone acting in his behalf, did make a diligent and meaningful search of all reasonably available sources at hand and failed to ascertain from it the following data:(a) the whereabouts or mailing address of every person named as defendant who was so served in the action․․If, after hearing the evidence the judge finds that plaintiff did in fact exercise due diligence in conducting a meaningful search, the following recitation should be included in the journal entry of judgment:‘The Court conducted a judicial inquiry into the sufficiency of plaintiff's search to determine the names and whereabouts of the defendants who were served herein by publication, and based on the evidence adduced the Court finds that plaintiff has exercised due diligence and has conducted a meaningful search of all reasonably available sources at hand. The Court approves the publication service given herein as meeting both statutory requirements and the minimum standards of state and federal due process.’

WINCHESTER, J.

CONCUR: Rowe, C.J., Kuehn, V.C.J., Winchester, Edmondson, Combs, Gurich, Darby, and Kane, JJ.