In re R.P.
2012 Ohio 4799
Ohio Ct. App.2012Background
- Mother and child tested positive for cocaine; CSB removed R.P. and filed abuse/dependent action.
- R.P. placed with a maternal cousin (the Atheys) after adjudication and temporary custody.
- CSB sought and obtained legal custody of R.P. for the relatives in December 2007.
- Father learned of the proceedings in 2011, established paternity, and moved for Civ.R. 60(B)(5) relief, visitation, and custody.
- Trial court denied relief; Father appealed challenging service and personal jurisdiction.
- Court of Appeals reversed, holding the 2007 custody judgment void for lack of proper service; remanded.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Was service by publication valid and did it confer jurisdiction? | Father contends service was defective; he was not unknown to CSB. | CSB maintained no father acknowledged or appeared; publication was proper as last resort. | Service defective; no personal jurisdiction; judgment void; remanded. |
| Is the Civ.R. 60(B) ruling moot where service was improper and judgment void? | Relief under Civ.R. 60(B) should be considered; errors in service justify relief. | Relief moot since jurisdiction never attached; issues moot. | moot; court treated as void judgment; remanded for proceedings consistent with voidity. |
Key Cases Cited
- Bell v. Midwestern Educational Serv., Inc., 89 Ohio App.3d 193 (Ohio App.3d 1993) (personal jurisdiction requires proper service; actual knowledge does not cure)
- Haley v. Hanna, 93 Ohio St. 49 (1915) (service requirements are mandatory for jurisdiction)
- In re Miller, 33 Ohio App.3d 224 (8th Dist.1986) (service by publication is reserved for unknown residence with strict requirements)
- W2 Properties, L.L.C. v. Haboush, 196 Ohio App.3d 194 (1st Dist.2011) (publication service defective when affidavits misstate facts)
- Patton v. Diemer, 35 Ohio St.3d 68 (1988) (void judgments can be vacated when service is ineffective)
- CompuServe, Inc. v. Trionfo, 91 Ohio App.3d 157 (10th Dist.1993) (lack of proper service renders judgment voidable/void)
- Maryhew v. Yova, 11 Ohio St.3d 154 (1984) (void judgments; lack of service invalidates proceedings)
- Lincoln Tavern, Inc. v. Snader, 165 Ohio St. 61 (1956) (due process requirements for service of process)
- 9150 Group L.P. v. DeWine, 9th Dist No. 25939, 2012-Ohio-3339 (2012) (common-law motion to vacate void judgment; Civ.R. 60(B) not controlling)