In re Change of Name of K.G.M. to K.G.S.
2016 Ohio 7998
| Ohio Ct. App. | 2016Background
- Appellee Kirk Sherrill filed (Apr. 30, 2013) an application in Trumbull County probate court to change the name of the parties’ minor daughter, K.G.S.; service and newspaper notice were made.
- A Guardian ad Litem (GAL) was appointed, interviewed the parties and child, and recommended granting the name change as in the child’s best interest.
- A full evidentiary hearing was held (Oct. 18, 2013); the magistrate recommended granting the change and the trial court adopted that decision on November 4, 2013. No timely objections or appeal were filed by appellant Julie McCool.
- More than two years later (Jan. 11, 2016), McCool moved to vacate the November 2013 judgment, arguing Sherrill was not a Trumbull County resident when he filed the application and thus the probate court lacked jurisdiction.
- The magistrate and trial court denied the motion to vacate; McCool appealed. The appellate court affirmed.
Issues
| Issue | Plaintiff's Argument (McCool) | Defendant's Argument (Sherrill) | Held |
|---|---|---|---|
| Whether the probate court lacked jurisdiction/venue because Sherrill was not a Trumbull County resident when he filed the name-change application | Sherrill was not a resident of Trumbull County at filing, so the court lacked authority to hear the case | Sherrill represented he was a bona fide Trumbull County resident for at least one year prior to filing; McCool produced no evidence to refute that | The claim challenged venue (not subject-matter jurisdiction) and was waived because McCool failed to raise it before or during the hearing; alternatively, McCool failed to rebut Sherrill’s residency statement, so the court had proper venue |
| Whether McCool’s motion to vacate satisfied Civ.R. 60(B) (timeliness and grounds) | The judgment should be vacated due to improper venue; filed under Civ.R. 60(B) more than two years after judgment | The motion was untimely and did not establish any of the specific 60(B)(1)-(3) grounds or justify delay under 60(B)(5) | The motion was untimely (filed over two years later); McCool did not state a timely ground under 60(B)(1)-(3) and failed to show reasonable promptness under 60(B)(5), so relief was properly denied |
Key Cases Cited
- Neirbo Co. v. Bethlehem Shipbuilding Corp., 308 U.S. 165 (U.S. 1939) (distinguishes subject-matter jurisdiction from venue)
- Wachovia Bank v. Schmidt, 546 U.S. 303 (U.S. 2006) (explains difference between jurisdiction and venue and the effect of waiver)
- Rose Chevrolet, Inc. v. Adams, 36 Ohio St.3d 17 (Ohio 1988) (sets the three-part Civ.R. 60(B) test)
- GTE Automatic Elec., Inc. v. ARC Indus., Inc., 47 Ohio St.2d 146 (Ohio 1976) (authoritative on Civ.R. 60(B) standards)