2018 Ohio 3196
Ohio Ct. App.2018Background
- Parties divorced in Aug. 2016; a shared-parenting plan for their minor child was incorporated into the decree.
- In May 2017 Jezzeth (defendant) filed to modify or alternatively terminate the shared-parenting plan and reallocate parental rights; she planned to move to Florida.
- A June 2017 magistrate hearing proceeded in Jezzeth’s presence; Sabastian (plaintiff) did not appear. The magistrate relied on the clerk’s electronic record showing service on June 15, 2017, and heard the matter in Sabastian’s absence.
- The magistrate in Sept. 2017 granted Jezzeth’s motion, awarded her legal custody, and permitted her to relocate with the child; the trial court adopted the magistrate’s decision.
- Sabastian then filed late objections asserting he never received service and submitted an uncontradicted affidavit that he had lived at a different address for over a year and did not learn of the motion until September.
- The trial court overruled Sabastian’s objection, finding a FedEx signed receipt (showing “S. Jardine”) established notice; the court also cited Sabastian’s failure to update his address per the parenting-order requirement.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether plaintiff was properly served and whether the court should have held a hearing on service before overruling the objection | Sabastian: he did not receive service; he had lived at a different address for >1 year; the FedEx signature is not his; he first learned of the magistrate’s decision in Sept. | Jezzeth: docket shows service was made at the old address (FedEx signed receipt); plaintiff failed to notify court of address change per the parenting order | Court of Appeals: trial court should have held an evidentiary hearing on service; reversed and remanded. |
Key Cases Cited
- Ohio Civ. Rights Comm. v. First Am. Properties, Inc., 113 Ohio App.3d 233 (2d Dist. 1996) (sending service to an incorrect address corroborates a defendant’s claim of nonreceipt and may warrant a hearing)
- Griffin v. Braswell, 187 Ohio App.3d 281 (6th Dist. 2010) (presumption of valid service from signed receipt can be rebutted by sufficient evidence of nonservice)
- W2 Properties, L.L.C. v. Haboush, 196 Ohio App.3d 194 (1st Dist. 2011) (signed return receipt creates presumption of proper service by certified mail)