2019 Ohio 4666
Ohio Ct. App.2019Background
- Mother filed an application (Feb 1, 2013) to change her minor son's surname from Fulk to Rowe, listing Father's name but no address and checking that his address was "unknown and cannot with reasonable diligence be ascertained."
- Probate court instructed Mother to publish notice at least once, 30 days before the hearing; Mother caused a single publication in the Scioto Voice on March 28, 2013 listing Father’s last known address as Wheelersburg, Ohio. Proof of publication was filed May 2, 2013.
- Probate court entry (file‑stamped May 2, 2013) granted the name change; the entry contained a hand‑written date of 4/22/13 (a scrivener’s error). No transcript of the hearing exists.
- Father did not receive personal service, filed motions in 2015 and later to vacate for lack of personal jurisdiction and defective publication, then appealed (notice filed May 21, 2018) arguing the probate court’s order was void for lack of jurisdiction.
- Appellate court reviewed whether R.C. 2717.01 (name‑change statute) or Civ.R. 4.4 governs publication/service, whether publication here satisfied statutory requirements, whether the trial court had personal jurisdiction, and whether the appeal was timely; it affirmed and directed correction of the hearing date nunc pro tunc.
Issues
| Issue | Plaintiff's Argument (Fulk) | Defendant's Argument (Rowe) | Held |
|---|---|---|---|
| Adequacy of notice by publication under R.C. 2717.01 vs Civ.R. 4.4 | Publication defective: lacked required content/ frequency and no affidavit of due diligence per Civ.R.4.4 | R.C.2717.01 governs name‑change proceedings and requires only one publication when a parent's address is unknown; Mother complied | R.C.2717.01 is a special statutory procedure; one publication satisfied the statute, so service was proper |
| Personal jurisdiction over Father | Probate court lacked personal jurisdiction because Father was not properly served | Publication under the statute conferred notice sufficient for the proceeding when address is unknown | Court had personal jurisdiction; name‑change hearing and order valid |
| Timeliness of appeal | Appeal is timely because Father was never served under Civ.R.58(B) so the 30‑day appeal clock never began | Clerk’s notation/service would start the appeal period; record showed Father was not served | Appeal considered timely (Clermont Cty. Transp. v. Gator Milford rule governs start of 30‑day clock) |
| Clerical error in judgment entry date | Incorrect date (hand‑written 4/22/13) might undermine notice | Publication and court correspondence show correct hearing date; entry date is scrivener’s error | Date treated as scrivener’s error; court instructed to correct judgment nunc pro tunc |
Key Cases Cited
- Clermont Cty. Transp. Improvement Dist. v. Gator Milford, L.L.C., 141 Ohio St.3d 542, 26 N.E.3d 806 (2015) (30‑day appeal period starts on clerk’s service/notation, not on actual knowledge)
- Maryhew v. Yova, 11 Ohio St.3d 154, 464 N.E.2d 538 (1984) (personal jurisdiction requires service, voluntary appearance, or equivalent submission)
- State ex rel. Wegman v. Ohio Police & Fire Pension Fund, 155 Ohio St.3d 223, 120 N.E.3d 786 (2018) (abuse‑of‑discretion standard explained)
- Price v. Westinghouse Elec. Corp., 70 Ohio St.2d 131, 435 N.E.2d 1114 (1982) (Civ.R.1 is inclusive; a civil rule does not apply where it is clearly inapplicable to a special statutory proceeding)
- Abbott v. Potter, 78 Ohio App.3d 335, 604 N.E.2d 804 (4th Dist. 1992) (application of Civ.R.1(C) to special statutory proceedings; statute can control procedural timing where not clearly inapplicable)
- Knapp v. Edwards Laboratories, 61 Ohio St.2d 197, 400 N.E.2d 384 (1980) (when necessary transcript portions are omitted, appellate court presumes regularity of lower‑court proceedings)