NCA holds that "certified" mail is not "first class mail"

Wife who filed contempt motion in Dakota County District Court against husband to compel transfer of certain properties the court awarded her could not get personal service on the Husband and then the Court allowed substitute service which included posting the contempt citation on the doors of Husband's residence and business PLUS mailing the notices by "first class mail." When the wife mailed the notice certified the NCA hold that this did not meet the necessary strict compliance with the statute on substitute service and the court order for substitute service. The husband's cross motion for contempt was filed after the court had held him in contempt and so he had not voluntarily submitted to the court's jurisdiction Thornton v thornton Personal Service. Ronnie first alleges that the trial court erred when it found that there had been “personal service” upon him. It is true that on June 8, 2001, the trial court made a journal entry finding that “there has been personal service upon [Ronnie] concerning [Barbara’s] Application for an Order and Citation for Contempt.” The record does not support a finding of “personal service,” because it is clear that Ronnie was never personally served. However, the trial court had earlier granted Barbara’s motion for substitute service, and we believe that the court’s journal entry was intended to convey that substitute service had been effectively completed. Therefore, we must address whether the substitute service upon Ronnie was effective. In its order granting Barbara’s motion for substitute service, the court permit[ed] service to be made by the Woodbury County, Iowa, Sheriff’s office by leaving the Summons and Show Cause Order with a person of suitable age or securely affixing the same at a prominent point on said property at both [Ronnie’s] usual place of residence and usual place of employment and by [Barbara] mailing a copy of the Summons and Show Cause Order by First Class Mail to [Ronnie’s] last known address of his residence and his place of employment. However, although the record does show that the Woodbury County sheriff’s office did affix the summons and show cause order as ordered by the trial court, Barbara did not strictly comply with the order. The documents she was ordered to send to Ronnie were sent via certified mail, rather than by first-class mail as ordered by the trial court. [4] The acceptable methods of substitute service in Nebraska are found in Neb. Rev. Stat. § 25-517.02 (Reissue 1995), which provides: Upon motion and showing by affidavit that service cannot be made with reasonable diligence by any other method provided by statute, the court may permit service to be made (1) by leaving the process at the defendant’s usual place of residence and mailing a copy by first-class mail to the defendant’s last-known address, (2) by publication, or (3) by any manner reasonably calculated under the circumstances to provide the party with actual notice of the proceedings and an opportunity to be heard. [5,6] Therefore, both the statute and the court’s order required Barbara to mail a copy of the process by first-class mail rather than by certified mail. Statutes prescribing the manner of service of summons are mandatory and must be strictly complied with. Anderson v. Autocrat Corp., 194 Neb. 278, 231 N.W.2d 560 (1975). A statute which authorizes the use of postal service to notify a defendant that he has been sued in court is strictly construed and must be specifically observed. Id. Further, the record establishes that the certified letters sent to Ronnie were not accepted by Ronnie, and there is no showing that these certified letters were ever received by him. As a result, we find that there was no effective substitute service upon Ronnie and that the district court erred when it found that Ronnie had been effectively served. Because there was no effective service upon Ronnie at the time he was found in contempt and because he had not yet voluntarily submitted to the court’s jurisdiction, the trial court lacked jurisdiction over Ronnie at that time. The trial court erred when it overruled Ronnie’s special appearance on the basis that service had already been perfected upon him. Further, the court’s May 16, 2002, journal entry finding Ronnie in contempt of the August 26, 2000, decree, its November 19, 2002, order and bench warrant, and its November 20, 2003, award of attorney fees to Barbara are all vacated. Ronnie’s Motion for Contempt Citation.