What is Proper Service of a Summons and Complaint for Divorce in South Carolina?
I received this question on the blog recently:
My papers were stuck in the door jamb at my house when I was out for the day. There were big storms that afternoon, high winds and heavy rain. These papers could have blown away and I NOT show up at the meeting. This is a big deal to me. Must a server actually hand you the papers or can they be dropped off like they were?
If this type of service of process were effective, then this could lead to total disaster for defendants of family court matters in that someone could leave a document in an obscure location at someone's home where they would never find it so that they would miss any hearing and the moving party would get everything they asked for without contest from their spouse. Right off the bat that sounds ridiculous, but let's look at the South Carolina Rules of Civil Procedure just to make sure the proper ways to service a Summons and Complaint.Rule 4 of the SC Rules of Civil Procedure provides us the guidance we are looking for:
(c) By Whom Served. Service of summons may be made by the sheriff, his deputy, or by any other person not less than eighteen (18) years of age, not an attorney in or a party to the action. Service of all other process shall be made by the sheriff or his deputy or any other duly constituted law enforcement officer or by any person designated by the court who is not less than eighteen (18) years of age and not an attorney in or a party to the action, except that a subpoena may be served as provided in Rule 45.
I quoted paragraph (c) just to point out who can properly effect service of summons and complaint in South Carolina. The Sheriff, his deputy, or any other person 18 years or older who is not an attorney or party to the action may serve the summons and complaint in a case. So that means if the plaintiff was the person who stuck the papers in the door or delivered them in some other valid way to the Defendant there would not be valid service of process.
(d) Summons: Personal Service. The summons and complaint must be served together. The plaintiff shall furnish the person making service with such copies as are necessary. Voluntary appearance by defendant is equivalent to personal service; and written notice of appearance by a party or his attorney shall be effective upon mailing, or may be served as provided in this rule. Service shall be made as follows:
(d)(1) Individuals. Upon an individual other than a minor under the age of 14 years or an incompetent person, by delivering a copy of the summons and complaint to him personally or by leaving copies thereof at his dwelling house or usual place of abode with some person of suitable age and discretion then residing therein, or by delivering a copy to an agent authorized by appointment or by law to receive service of process.
When serving an individual as done in a family court case, the process server must deliver the summons and complaint to the defendant personally. That means the summons and complaint must be placed in the defendant's hands. Leaving it under the mat or jammed in the door is not personal service. Also, it is proper service is the papers are left with a person of "suitable age and discretion" who also resides in the usual place of abode (the home) of the defendant.
(d)(8) Service by Certified Mail. Service of a summons and complaint upon a defendant of any class referred to in paragraph (1) or (3) of this subdivision of this rule may be made by the plaintiff or by any person authorized to serve process pursuant to Rule 4(c), including a sheriff or his deputy, by registered or certified mail, return receipt requested and delivery restricted to the addressee. Service is effective upon the date of delivery as shown on the return receipt. Service pursuant to this paragraph shall not be the basis for the entry of a default or a judgment by default unless the record contains a return receipt showing the acceptance by the defendant. Any such default or judgment by default shall be set aside pursuant to Rule 55(c) or Rule 60(b) if the defendant demonstrates to the court that the return receipt was signed by an unauthorized person. If delivery of the process is refused or is returned undelivered, service shall be made as otherwise provided by these rules.
The rule also goes on to state that it is proper to serve a summons and complaint to individuals by mailing the documents through the U.S. Postal Service via certified mail, return receipt requested and with delivery restricted to the addressed defendant. The post office is not supposed to let a letter sent in this manner be signed by someone other than the addressee, but sometimes it happens and that would not be proper service upon the defendant and could yield any relief received based on that service void.
(j) Acceptance of Service. No other proof of service shall be required when acceptance of service is acknowledged in writing and signed by the person served or his attorney, and delivered to the person making service. The acknowledgement shall state the place and date service is accepted.
Also wanted to point out another way that service can be made on a defendant. An acceptance of service is mostly used by attorneys when the defendant already has an attorney representing him/her prior to service of process or in an uncontested case where the defendant agrees to receive the papers. Essentially, this requires the defendant to sign a document known as an Acceptance of Service that states that he is has received the specified documents, and the date and location of the acceptance of service.