In an article published on December 20, 2021 for Virginia Lawyers Weekly, Hirschler partner John Walk explores the impact of the Virginia Supreme Court decision in Evans v. Evans on the use of service by publication where the identity or whereabouts of the lawsuit’s defendant are unknown.
Evans v. Evans was a divorce case where Ms. Evans lost contact with her husband after moving to Martinsville from their Virginia Beach home with her children. Upon filing for divorce a couple years late, she filed an affidavit attesting notwithstanding a diligent effort to locate her husband that she was unable to do so. With the record reflecting that her attempt to locate her husband consisted of calling various family members and asking if they know where he was living, the Martinsville Circuit Court entered an order of publication which was published at the Courthouse and in the Martinsville Bulletin. Mr. Evans failed to appear, and the trial court awarded Ms. Evans judgment for the divorce as well as a personal judgment for child support, which Mr. Evans sought to vacate upon discovering the foregoing.
The Supreme Court justices issued a unanimous opinion, written by Justice Arthur D. Kelsey, that evaluated service by publication as a last potential service method, especially noting that Ms. Evans’ diligence to locate her husband prior to service by publication were particularly lacking.
The opinion states that various service methods under Virginia code should not be considered as alternatives but rather successive means to be employed, and service by publication should be regarded as the last potential service method and only after all other means are exhausted.
“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,” Walk said. “However, with declining readership of traditional daily newspapers, increased mobility of the population and the advent of the internet as a means for collecting information and communicating with people, that was no longer necessarily the case.” In discussing the more advanced means of communication available today, the opinion noted recent statutory amendments, including the added requirement that newspapers must post all notices to a “statewide searchable database,” such as Virginia Press Association’s (www.publicnoticevirginia.com), in order to qualify to publish legal notices.
To view the full Virginia Lawyers Weekly article, click here.
Luis F. Ruiz