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Rules are rules – without them, it would be anarchy. Thanks to Colorado having a different standard of service requirement depending upon what legal documents are being served, even courts are confused about when email service of process may be permitted.

For non-contempt cases, the most common types of service required in family law cases in Colorado are:

  • Personal service of summons to start a case. Colo. R. Civ. P. 4(e)(1) requires that an adult who is not a party to the action serve a summons by personally handing it to the respondent or an adult in his/her home or workplace.
  • Substituted service of summons to start a case. Colo. R. Civ. P. 4(f) allows service by publication or mail, including email service of process, when a respondent cannot be located to serve personally. Since this limits the court’s jurisdiction, substituted service is a cumbersome last resort, not a shortcut.
  • Service of pleadings after the case has started. This is the easiest service of all – per Colo. R. Civ. P. 5, once a case has started, routine documents can be served by personal service, mailing to the party’s last known address per the court file, or electronic service through the court’s e-filing system.
  • Waiver of Service. Per Colo. R. Civ. P. 4(i), the other party or his/her counsel can always sign a waiver of service.

Direct Service of Process in Contempt Cases

The service requirements are more stringent when a party has initiated contempt of court proceedings. Rather than “personal service,” Colo. R. Civ. P. 107(c) requires that “The citation and a copy of the motion, affidavit and order shall be served directly upon such person at least 21 days before the time designated for the person to appear.” (Emphasis added).

Last month, the Colorado Supreme Court held that this “direct service” requirement does not permit email service of process or other substituted service.

In Conners, the parties were divorced, and the mother filed contempt of court against the father for non-payment of his child support. The trial court issued an order to show cause, directing the father to appear at a contempt advisement. However, after the mother’s process server was twice unable to serve the father, the court granted the mother’s request for email service of process of the contempt paperwork, per Colo. R. Civ. P. 4(f)’s substituted service provisions.

After the father unsuccessfully challenged the service of process, he petitioned the Colorado Supreme Court for relief under Colo. R. App. P. 21, a process by which the court may, in its sole discretion, grant limited relief without requiring a party to go through the normal appellate process.

Personal Jurisdiction Not Obviate Service Requirement

The Colorado Attorney General, arguing on behalf of the district court, asserted that personal service should not even be required since the trial court already had personal jurisdiction over the father. The Colorado Supreme Court rejected that argument:

“Personal jurisdiction and proper service of process are interrelated but distinct concepts: Proper service of process alone does not confer personal jurisdiction, nor does the existence of personal jurisdiction obviate the need for proper service of process. Rule 107 imposes service-of process requirements even though most alleged contemnors are already subject to personal jurisdiction. Allowing initial service of process and continuing personal jurisdiction to satisfy the notice requirement for contempt would render meaningless significant portions of Rule 107, an outcome we strive to avoid.”

Conners, ¶ 12 (Cleaned Up).

Punitive Contempt is Still Civil Proceeding Subject to Rule 107

The state AG’s next argument was creative but similarly unsuccessful – Colo. R. Civ. P. 107 applies to civil contempt proceedings (i.e. “remedial contempt”), but when a party is seeking punitive contempt sanctions, then the Colorado Rules of Criminal Procedure should apply instead, and Rule 57(b) allows for more flexible service of process.

The Court acknowledged that its precedent was ambiguous: “Admittedly, there is some cause for confusion. Our case law and the prior version of C.R.C.P. 107 have referred to contempt as ‘civil’ and ‘criminal.'” Conners, ¶ 15. However, those terms were used solely to describe the criminal nature of the sanctions, not “which set of procedural rules applies to the action.”

In other words, Colo. R. Civ. P. 107 applies to both civil and punitive contempt:

“We recognize that C.R.C.P. 107 is entitled ‘Civil Contempt’ and that subsection (e) of the rule could be interpreted to imply that criminal contempt proceedings are not governed by C.R.C.P. 107. Yet, the title of the rule is not fully descriptive of the rule’s content, for C.R.C.P. 107 clearly includes a definition encompassing, and procedures governing, both civil and criminal contempt…”

Conners, ¶ 15, quoting from Razatos, 699 P.2d at 974 n.1.

“Direct Service” Does Not Permit Substituted Service

Finally, after establishing that the Colo. R. Civ. P. 107 service of process requirements apply to all contempt cases, the Court analyzed what the phrase “shall be served directly upon such person” means. The case notes that the word “directly” was added in 1995; before that, the rule required the documents “shall be served upon such person.”

Email Service of Process is Not Direct Service

Email is an indirect service, so it does not satisfy the requirements of Rule 107:

“E-mail service doesn’t satisfy Rule 107(c)’s requirements. First, it’s not physical service. It’s digital. Nor is it delivered directly to the contemnor. E-mails are sent to a third-party server housed on the recipient’s computer (in the case of client-based e-mail server systems like Microsoft Outlook) or on the internet (in the case of web-based e-mail server systems like Gmail, the system Father uses). To access the e-mail, the recipient must log on to the third-party server. The recipient doesn’t receive direct notice. We therefore hold that e-mail service is improper under Rule 107(c).”

Conners, ¶¶ 21-22 (Cleaned Up).

Rule 4 Substituted Service Not Apply to Contempt

The Colo. R. Civ. P. 4(f) substituted service provisions do not apply to contempt of court proceedings because Rule 4(a) explicitly states that it “applies to all process except as otherwise provided.” Rule 107 does “otherwise provide” by mandating direct service on the contemnor: “Rule 107(c)’s mandatory language thus operates as a rejection of Rule 4(f) substituted service in contempt proceedings.” Conners, ¶ 24.

Time to Allow Email Service of Process?

Colorado’s service of process requirements are intended to ensure that the other party has actual notice of proceedings. Maybe requiring personal service makes sense when the only alternative was a letter, and the parties could still argue over (1) whether the mailing was sent, (2) whether it was received, and (3) whether the envelope sent contained the documents at issue.

Hand with a blue sky background and email icons.

However, in an era when information and documents can circle the globe in seconds with texts, email, or even alternative means of communicating, such as “Talking Parents,” proving that a party received the documents served should not require their physical delivery. Society uses email for so much – why not email service of process?

Justice Hart addressed this issue in her concurring opinion: “I fully join the majority’s opinion, as it correctly applies the current law. I write separately to suggest that we amend C.R.C.P. 107(c) to permit substituted service of process in accordance with C.R.C.P. 4(f).” Conners, ¶ 27 (Hart, J concurring).

While the concurring opinion does not go so far as proposing email service of process as a primary means of serving documents, it should be available to a party who has tried and failed to effect personal service:

“I agree with the majority that our rules do not permit this alternative. But I also recognize a good faith effort to effectuate service, and I think we should examine the possibility that our rules should provide a safety valve in a situation like the one we confront here.”

Conners, ¶ 31 (Hart, J concurring).

Justice Hart discussed other states that already permit substituted service in family law contempt of court proceedings:

“These jurisdictions have recognized that family disputes may require some flexibility. We should do the same. This is particularly the case in light of the different technological reality that we live in today as compared to 1995—the year we amended Rule 107(c) to require that process be served “directly” upon the contemnor. E-mail was a novelty in 1995. The modern ubiquity of e-mail, text messaging, and other forms of notification provide strong reason for this court to reconsider rules—like Rule 107(c)—which require in-person service.”

Conners, ¶ 331 (Hart, J concurring).

If that’s not a call for Colorado Courts to join the 21st century, I don’t know what is. I hope her fellow justices accept her invitation to modernize the service of process requirements and consider going even further by allowing email service of process without jumping through the hoops of first showing that personal service failed. Colorado permits electronic signatures instead of requiring documents to be physically signed; permitting electronic service instead of physical service is the next logical step.

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Email service of process

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