Full Opinion

Cite as 2026 Ark. App. 413 ARKANSAS COURT OF APPEALS DIVISION IV No. CV-25-469 DEBORAH K. TALLEY Opinion Delivered September 16, 2026 APPELLANT APPEAL FROM THE CRAWFORD COUNTY CIRCUIT COURT V. [NO. 17DR-09-660] MARK TALLEY HONORABLE MARC MCCUNE, APPELLEE JUDGE REVERSED AND REMANDED CINDY GRACE THYER, Judge In this appeal from the Crawford County Circuit Court, appellant Deborah Talley asks this court to reverse the lower court’s decision refusing to set aside a 2016 order enjoining the disbursement of funds from appellee Mark Talley’s retirement account. Deborah argues that the circuit court erred in finding that she was properly served with Mark’s pleadings that led to that order. Deborah and Mark were divorced by a decree entered on March 30, 2010. The decree provided that each party was entitled to one-half interest in the other party’s retirement account and directed that qualified domestic relations orders (QDROs) be entered. Mark filed a QDRO on August 1, 2012, establishing Deborah as an alternate payee and directing the Arkansas Local Police and Fire Retirement System (LOPFI) to pay Deborah 50 percent of Mark’s monthly benefit accrued during the marriage. On September 28, 2015, Mark filed a motion for contempt against Deborah asserting that although he had prepared and filed a QDRO as ordered by the court, Deborah had yet to provide any information to allow for the entry of a QDRO pertaining to her retirement. The summons for Mark’s contempt motion, also dated September 28, 2015, was mailed to Deborah at an address in Fort Smith.1 On November 5, 2015, Mark filed an affidavit for warning order. In his affidavit, Mark stated that he was over the age of eighteen and was the plaintiff in the instant proceeding. In addition, he averred, I do not know where the Defendant, Deborah K. Talley resides, where she might be found, or a manner to find out where she is. I have tried to send notice to her at her last address we have for her with no response. I have made diligent inquiry as to the residence or whereabouts of Deborah K. Talley and cannot find same. In response, the Crawford County Circuit Clerk issued a warning order on November 12, 2015, directed to Deborah and informing her that Mark had filed a motion for contempt against her. The warning order was published in the Press Argus-Courier, a Van Buren-based newspaper, on November 18and 25, 2015. In July 2016, Mark’s attorney filed an affidavit of service by warning order, noting that Deborah’s last known location was in Sebastian County; that a copy of the warning order and motion for contempt had been mailed to 1 A second summons mailed to the same address was issued on October 22, 2015. 2 Deborah at her last known address; and that more than thirty days had elapsed since both the order and motion had been mailed and since the warning order had been published.2 At an August 29, 2016 hearing held at Mark’s request, the court had the bailiff sound the hall for Deborah, who did not answer. The court asked Mark’s attorney if she had any information about where Deborah might be or what her last address was. Counsel replied that she had sent certified mail to the last address. In addition, she subpoenaed Mark’s retirement-plan records in an attempt to find an address for Deborah that might be contained in them. She added that she used the address that LOPFI had given her when she tried serving Deborah. Despite the affidavit for warning order and the publication of that order, she and Mark were “at a loss.” Since no disbursements had yet been made from Mark’s retirement account at that time, the court suggested enjoining any future disbursements “until she shows up.” The court added that if Deborah did not appear within sixty days, the order could be made final. The court entered a temporary order to that effect on September 6, 2016. After noting that it had continuing jurisdiction over the matter and reciting the procedural history of the case, including the service of Mark’s motion for contempt via warning order, the court found that LOPFI was enjoined from disbursing to Deborah any funds relating to Mark’s retirement account until such time as she appeared before the court. The court also directed 2 The record also contains a copy of an envelope mailed from the circuit court to Deborah at her Fort Smith address that is stamped “Return to Sender; Not Deliverable as Addressed; Unable to Forward.” 3 that if Deborah failed to appear before it within sixty days of the entry of the order, the temporary order would become permanent, and no disbursements from the LOPFI retirement account would be made to her. On March 18, 2024, Deborah filed a verified motion to set aside the September 2016 order.3 Citing Arkansas Rule of Civil Procedure 60, Deborah asked the court to set aside the 2016 order because Mark failed to conduct the sort of diligent inquiry required by Arkansas Rule of Civil Procedure 4 for service by warning order. She said that she moved to Florida in March 2014, purchased a house in Live Oak, Florida, in May 2015, and updated her current address with LOPFI in 2014 and 2015. She asserted that she maintained the same phone number that she had had throughout her marriage to Mark and claimed that she had kept in continuous contact with their mutual friends since moving to Florida. In addition, she claimed that Mark had communicated with her family, had her sister’s phone number and address, and had been Facebook friends with that sister over the years between the entry of the divorce decree and the issuance of the warning order.4 As such, Deborah argued, Mark 3 Deborah apparently hired a new attorney in 2023; however, after counsel entered his appearance, the circuit court’s court assistant sent an email notifying counsel that the case had been closed on April 26, 2023 (“well after the 60 [day] mark” on which the court’s temporary order became permanent), and advising that the matter would need to be reopened. 4 Deborah’s assertions were supported by affidavits from herself; Daniel Dikeman, a family friend who stated he told Mark that Deborah had moved to Florida; and Sherry Pierre, Deborah’s sister, who stated that Mark had communicated with her several times via phone and Facebook between 2010 and 2016. 4 failed to make diligent inquiry into her whereabouts as required by Rule 4; service by warning order was thus ineffective; and the circuit court therefore lacked personal jurisdiction over her to enter the September 2016 order. She therefore asked the court to vacate the order pursuant to Rule 60 in order to prevent the miscarriage of justice and to preserve her right to due process. Mark answered Deborah’s motion in April 2024, asserting that it was untimely under Rule 60(c)(2).5 In addition, with respect to the factual claims she made in her petition (specifically with reference to her address), he affirmatively pled that the address on file with LOPFI when the October 22, 2015 summons was issued was the same Fort Smith address he used to attempt service. Mark further denied having been provided an updated address for Deborah and asserted that he had “unfriended” her sister when he remarried in 2011. After generally denying most of the remaining allegations in Deborah’s motion, Mark affirmatively pled that Deborah’s Rule 60 motion to set aside was untimely under Rule 60(c)(2) because it had been over six years since the terms of the temporary order were made final. He further noted that even after Deborah’s counsel filed an entry of appearance in May 2023, there was another delay of ten months before she filed her motion to set aside the judgment in March 2024, thus “evidencing [her] continuous pattern of choosing not to act in this matter.” 5 Rule 60(c)(2) provides that a court may set aside an order after ninety days of the filing of that order “[b]y a new trial granted in proceedings against defendants constructively summoned, and who did not appear, upon a motion filed within two years after the filing of the judgment with the clerk of the court[.]” 5 The circuit court held a hearing on Deborah’s motion to set aside the September 2016 order on April 15, 2025, and heard from various witnesses who testified about Deborah’s whereabouts over the preceding years and Mark’s knowledge regarding the same. At the conclusion of the hearing, the circuit court found that Deborah had not met her burden of showing that Mark had access to her contact information and that the 2015 affidavit for warning order showed that he had made sufficiently diligent efforts. Accordingly, the court denied Deborah’s motion to set aside the order enjoining disbursement from Mark’s retirement account. The court entered its order denying Deborah’s motion on April 28, 2025. The court specifically found that Mark had complied with the Arkansas Rules of Civil Procedure regarding service of process on Deborah in the proceedings leading up to the entry of the September 2016 order, further concluding that Mark showed that he made a diligent inquiry to locate Deborah “at the time the warning order was issued pursuant to Ark. R. Civ. P. 4.” Accordingly, the court found that service was proper, that the entry of the September 2016 order was proper due to Deborah’s failure to appear or respond after being served via warning order, and that Deborah had failed to present sufficient grounds to warrant setting aside the order. Deborah timely appealed. On appeal, Deborah raises two arguments for reversal: first, the circuit court erred in finding that Mark complied with the Arkansas Rules of Civil Procedure regarding service of process on her; and second, the circuit court erred in finding that Mark conducted a diligent inquiry into her whereabouts before asking the circuit clerk to issue a warning order. This 6 court reviews the question of whether an affidavit is sufficient to issue service via a warning order under a de novo standard of review. Buzbee v. Blann Transp., Inc., 2025 Ark. App. 206, 712 S.W.3d 362. Before addressing Deborah’s arguments, we note that while the parties cite the current version of Arkansas Rule of Civil Procedure 4, the applicable version was the one in effect when Mark attempted to serve Deborah via warning order—i.e. the 2015 edition of the rules. Thus, the sections and subsections cited herein are different than those cited in the parties’ briefs. The “diligent inquiry” requirements for an affidavit for a warning order, however, have not changed. Pursuant to former Rule 4(f), service may be had by warning order in the following circumstances: (1) If it appears by the affidavit of a party seeking judgment or his or her attorney that, after diligent inquiry, the identity or whereabouts of a defendant remains unknown, or if a party seeks a judgment that affects or may affect the rights of persons who are not and who need not be subject personally to the jurisdiction of the court, service shall be by warning order issued by the clerk. (2) The warning order shall state the caption of the pleadings; include, if applicable, a description of the property or other res to be affected by the judgment; and warn the defendant or interested person to appear within 30 days from the date of first publication of the warning order or face entry of judgment by default or be otherwise barred from asserting his or her interest. The party seeking judgment shall cause the warning order to be published weekly for two consecutive weeks in a newspaper having general circulation in the county where the action is filed and to be mailed, with a copy of the complaint, to the defendant or interested person at his or her last known address by any form of mail with delivery restricted to the addressee or the agent of the addressee.[6] 6 Rule 4 was substantially revised and reorganized in 2019. Service by warning order is now accomplished pursuant to Rule 4(g)(3), which provides in pertinent part as follows: 7 In short, Rule 4(f)(1) authorizes service by warning order if it appears from the affidavit of a party or his or her attorney that “after diligent inquiry, the identity or whereabouts of a defendant remains unknown.” Ark. R. Civ. P. 4(f)(1). Affidavits that do not sufficiently recite the steps taken to conduct the required “diligent inquiry” fail under Rule 4. See XTO Energy, Inc. v. Thacker, 2015 Ark. App. 203, 467 S.W.3d 161. In other words, the party seeking to serve legal process using the warning-order method must provide enough detail in the required diligent-inquiry affidavit about the steps that were taken to locate the defendant and complete service; and the case-specific details must themselves demonstrate that a party has diligently tried to locate the defendant but cannot do so. Id. This information must be included in the affidavit when the warning order is first sought, not after the fact to bolster an otherwise insufficient diligent-inquiry affidavit. Id. To be sufficient, the affidavit must provide the details of the attempted service, including the address or addresses at which service was attempted, and explain any further attempts to locate the defendants. Buzbee, supra. If the plaintiff seeks a judgment that affects or may affect the rights of persons who need not be subject personally to the jurisdiction of the court, service may be by warning order issued by the clerk. On the filing by the plaintiff or his or her attorney of an affidavit showing that, after diligent inquiry, the identity or whereabouts of the defendant remains unknown, the clerk shall issue a warning order to be published in a newspaper of general circulation as described in paragraph (B) or posted at the courthouse as provided in paragraph (C). 8 In Bloodman v. Bank of America, N.A., 2016 Ark. App. 67, 482 S.W.3d 340, this court held that an affidavit for warning order was sufficient when it provided that the appellant was no longer a resident at her last known address, that five personal-service attempts had been made at that address, that the property had continually been unoccupied, and that service by certified mail had been attempted at the post office box listed by the appellant on her pleadings. Similarly, in Morgan v. Big Creek Farms of Hickory Flat, Inc., 2016 Ark. App. 121, 488 S.W.3d 535, we held that a warning-order affidavit complied with the rules when it described four failed attempts at personal service by the sheriff’s department at the appellants’ last-known address; provided that the appellee then hired a private detective and learned of a possible second address of the appellants; described three failed attempts at personal service by the sheriff’s department at the second address; and described unsuccessful attempts to serve the complaint via certified mail, restricted delivery to addressee only, at both the first and second addresses. On the other hand, in Thomas v. Robinson, 2018 Ark. App. 550, 562 S.W.3d 905, an affidavit for warning order, prepared by the plaintiff’s attorney, stated: 1. I am attorney for the Plaintiff and am licensed to practice law in the State of Arkansas. 2. Plaintiffs engaged the services of a process server to obtain service on Defendant. The professional process server attempted service on numerous occasions but has been unable to locate the Defendant. See attached Exhibit A, non-est return of service.[7] 7 No exhibit was attached. 9 3. After a diligent inquiry, the whereabouts of the Defendant, Travis Thomas, remain unknown. 4. Therefore, a Warning Order should be issued for this Defendant and duly published. Thomas, 2018 Ark. App. 550, at 2, 562 S.W.3d at 907. On appeal from the circuit court’s order denying Thomas’s motion to set aside the default judgment that had been entered against him after he failed to timely answer, Thomas argued that the affidavit was insufficient. This court agreed, holding that the affidavit lacked sufficient detail regarding the efforts made to locate the defendant and personally serve him with legal process before attempting to constructively serve him using the warning-order method. The court wrote that “[t]he affidavit failed to provide any details of the attempted service, including the address or addresses at which service was attempted, and failed to explain any further attempts to locate Thomas. Because it is conclusory, the affidavit did not meet Rule 4’s ‘diligent inquiry’ requirement.” Id. at 7, 562 S.W.3d at 910; see also Self v. Hustead, 2017 Ark. App. 339, at 8, 525 S.W.3d 33, 38 (statement that counsel had made “diligent inquiry” into defendant’s whereabouts was conclusory and lacking in details, and record revealed that the plaintiffs failed to use available information to locate the defendant, such as the plaintiffs’ real estate agent’s knowledge of the defendant’s cell phone number); Billings v. U.S. Bank Nat’l Ass’n, 2016 Ark. App. 134, 484 S.W.3d 715 (reversing denial of motion to vacate default judgment when the affidavit for warning order stated only that after diligent inquiry, it was determined that the defendants were no longer at their last known address and that their present addresses were unknown); XTO Energy, supra (affidavit for 10 warning order was insufficient because it was conclusory and contained no indication of what steps had been taken as part of the required diligent inquiry as to the whereabouts of the defendant and his heirs). In the instant case, Mark’s affidavit for warning order reads in its entirety as follows: Comes now the Affiant, Mark Talley, and states the following under oath: 1. That I [am] over the age of eighteen and competent to make this Affidavit. 2. That I am the Plaintiff in this instant proceeding. 3. That I do not know where the Defendant, Deborah K. Talley, resides, where she might be found, or a manner to find out where she it. I have tried to send notice to her at her last address we have for her with no response. 4. That I have made diligent inquiry as to the residence or whereabouts of Deborah K. Talley and cannot find same. FURTHER THE AFFIANT SAYETH NOT. We conclude that Mark’s affidavit suffers from the same infirmities presented in Thomas, Self, Billings, and XTO Energy. It is conclusory; it contains no details concerning what steps were taken to conduct the purported “diligent inquiry”; and it provides no proof of any attempts Mark might have taken to send notice to Deborah. As noted above, the burden is on the moving party to demonstrate to the court that he or she actually attempted to locate the defendant, Morgan, supra, and a mere recitation in an affidavit that a diligent inquiry was made is not sufficient. XTO Energy, supra. Mark’s affidavit for warning order, therefore, was insufficient to satisfy the requirements of Rule 4. Accordingly, we reverse the circuit court’s 11 decision and order finding that Mark’s affidavit for warning order was sufficient to obtain service on Deborah.8 Although we find error in the circuit court’s decision and reverse on the basis of the arguments presented to us by the appellant, we must point out the appellate elephant in the room. All the parties to this case, both below and on appeal, have proceeded as though Rule 4 were the operative rule. It is not. Service in this case should actually have been made pursuant to Arkansas Rule of Civil Procedure 5. Rule 5 governs the service and filing of pleadings and other papers filed subsequent to the complaint, which Mark’s motion for contempt, filed within the context of the divorce proceedings, certainly was. Relevant here, Rule 5(b) provides in pertinent part as follows: (1) Whenever under this rule or any statute service is required or permitted to be made upon a party represented by an attorney, the service shall be upon the attorney, except that service shall be upon the party if the court so orders or the action is one in which a final judgment has been entered and the court has continuing jurisdiction. (2) Except as provided in paragraph (3) of this subdivision, service upon the attorney or upon the party shall be made by delivering a copy to him or by sending it to him by regular mail or commercial delivery company at his last known address or, if no address is known, by leaving it with the clerk of the court. . . . 8 Because Mark’s affidavit was insufficient on its face, it is unnecessary to address Deborah’s second point on appeal—that the circuit court erred in finding that Mark conducted a diligent inquiry into her whereabouts before requesting that the clerk issue a warning order. The necessary information regarding a party’s “diligent inquiry” must be included in the affidavit when the warning order is first sought, not after the fact to bolster an otherwise insufficient diligent-inquiry affidavit. Buzbee, 2025 Ark. App. 206, at 12, 712 S.W.3d at 370. Although it not necessary to our decision, the circuit court nonetheless erred in considering the testimony introduced at the April 2025 hearing to determine whether Mark’s affidavit was sufficient. 12 (3) If a final judgment or decree has been entered and the court has continuing jurisdiction, service upon a party by mail or commercial delivery company shall comply with the requirements of Rule 4(g)(1) and (2), respectively. Because this was a case in which a final judgment––the divorce decree––had been entered and in which the court had continuing jurisdiction, Mark should have served his motion for contempt on Deborah in accordance with the requirements of Rule 5(b). This rule contemplates service on the party being served only by personal service, certified mail, or commercial delivery company that results in a signed receipt––not by warning order.9 We cannot reverse on the grounds that service should have been made pursuant to Rule 5 since the application of this rule was neither raised nor argued either below or on appeal. See Houston v. State, 82 Ark. App. 556, 559 n.2, 120 S.W.3d 115, 117 n.2 (2003) (“It is a familiar rule of practice that an appellate court does not reverse on a ground not argued by the appellant.”); White v. Winston, 302 Ark. 345, 348–49, 789 S.W.2d 459, 461 (1990) (refusing to consider an issue posited by the dissent because it was not argued below and was not argued to the supreme court and noting that “[w]e do not reach out and find an unargued issue on which to reverse a trial court.”). Indeed, we have noted that although it may be difficult to allow an apparent error to go uncorrected, we must sometimes do so because we may not reach out and find an unargued issue on which to reverse a trial court. Houston, 82 9 In 2016, Rule 5(b)(3) referred to Rule 4(d)(8)(A) and (C). Like the corresponding provisions in current Rule 4(g)(1) and (2), they required either a signature of the party or the party’s agent confirming receipt or proof the party or agent expressly refused to accept service. See, e.g., Connally v. Connally, 95 Ark. App. 42, 233 S.W.3d 168 (2006). 13 Ark. App. at 559 n.2, 120 S.W.3d at 117 n.2 (citing White, supra). As such, our reversal is not and cannot be premised on Rule 5. Nonetheless, we caution the parties that if they take further action or file further pleadings below following our remand, they should be mindful of the appropriate rules of civil procedure. Reversed and remanded. GLADWIN and MURPHY, JJ., agree. Kevin L. Hickey and Michael Graugnard, for appellant. Nathan Roop, for appellee. 14