Beachler v. BeachlerBeachler v. Beachler
{¶ 1} Respondent-appellant, Jennifer Beachler, appeals a domestic violence civil protection order issued against her by the Preble County Common Pleas Court on behalf of petitioner-appellee, Brian Beachler.
{¶ 2} Appellant and appellee were married on September 13, 1999, in Winter Haven, Florida. The parties are the parents of two minor children.
{¶ 3} In May 2005, appellee left Florida with the parties’ children and came to Eaton,
{¶ 4} On July 27, 2005, the trial court held a hearing on the issuance of a civil protection order. Appellee, who was represented by counsel, showed up for the hearing, but appellant did not. Later that same day, the trial court issued a final, five-year order of protection, ordering appellant to stay away from appellee and the parties’ minor children.
{¶ 5} On December 5, 2005, appellant moved for relief from judgment pursuant to
{¶ 6} The day before the January 6th hearing, appellant moved for a continuance on the ground that she could not afford at that time to travel from her home in Florida to Ohio. The trial court granted appellant a continuance of the matter until February 15, 2006.
{¶ 7} On February 15, 2006, appellant again failed to attend the hearing. Appellant‘s counsel informed the trial court that appellant could not attend because she again lacked the money to travel from Florida to Ohio. Appellant‘s counsel also stated that appellant was afraid of appellee.
{¶ 8} On February 28, 2006, the trial court issued an entry and order, denying appellant‘s
{¶ 9} Appellant now appeals from the trial court‘s February 28, 2006 entry and order, raising the following assignment of error:
{¶ 10} “THE TRIAL COURT ERRED TO THE PREJUDICE OF THE RESPONDENT-APPELLANT IN OVERRULING HER MOTION TO VACATE THE CIVIL PROTECTION ORDER.”
{¶ 11} Appellant argues that the trial court‘s July 27, 2005 order of protection was void because the trial court had not obtained personal jurisdiction over her by the time the court held a full hearing on appellee‘s petition and issued the civil protection order. We agree with this argument.
{¶ 12} In order to render a valid judgment, a court must have jurisdiction over the defendant in the action. Maryhew v. Yova (1984), 11 Ohio St.3d 154, 156. A court may acquire personal jurisdiction over the defendant “either by service of process upon the defendant, the voluntary appearance and submission of the defendant or his legal representative, or by certain acts of the defendant or his legal representative which constitute an involuntary submission to the jurisdiction of the court.” Id.
{¶ 13} Any judgment rendered by a court that has not acquired personal jurisdiction over the defendant is void, and not merely voidable. See Peoples Banking Co. v. Brumfield Hay Grain Co. (1961), 172 Ohio St. 545, paragraph two of the syllabus; Lincoln Tavern, Inc. v. Snader (1956), 165 Ohio St. 61, 64; Keybank Natl. Assn. v. Tawill (1998), 128 Ohio App.3d 451, 454; and CompuServe, Inc. v. Trionfo (1993), 91 Ohio App.3d 157, 161.
{¶ 14} Jurisdiction over the person is presumed to exist in the absence of an objection.
{¶ 15} The trial court must resolve the question of whether or not it has personal jurisdiction over the defendant by making a determinative finding on the issue. See Speck, 65 Ohio App.3d at 815; Fudge, 59 Ohio App.2d at 132. The court may hear the matter on affidavits, depositions, or interrogatories, or it may hold a hearing on the issue and receive oral testimony. Jurko, 43 Ohio App.2d at 85.
{¶ 16} If the court decides the issue of its jurisdiction without holding an evidentiary hearing, it must view the allegations in the pleadings or any documentary evidence submitted by the parties in a light most favorable to the non-moving party, resolving all competing inferences in the nonmoving party‘s favor. Speck at 815, and Giachetti, 14 Ohio App.3d at 307.
{¶ 17} In most civil actions, the defense of lack of jurisdiction over the person usually must be raised either in the defendant‘s answer or in a motion filed prior to the filing of an answer. Franklin v. Franklin (1981), 5 Ohio App.3d 74, 75-76. If the defendant makes an appearance in the action, either in person or through his or her attorney, without raising the defense of lack of personal jurisdiction, then the defendant is considered to have waived that defense. See Maryhew, 11 Ohio St.3d at 156-159 (finding that defendant had not submitted to the court‘s jurisdiction, which would have waived the issue of lack of personal jurisdiction), and Mortgage Lenders Network USA, Inc. v. Riggin, Summit App. No. 22901, 2006-Ohio-3292 (trial court acquired personal jurisdiction over appellant when she made a voluntary appearance in the matter).
{¶ 18} A party seeking to challenge a void judgment must file a motion to vacate or set aside the judgment. Compuserve, 91 Ohio App.3d at 161. A party should not file a
{¶ 19} Nevertheless, where a party attempts to vacate a void judgment through a
{¶ 20} In the case sub judice, appellant argues that the trial court lacked personal jurisdiction to rule on the matter because she did not receive service of process in a timely manner. Appellant attempted to vacate the court‘s July 27, 2005 order by filing a
{¶ 21} Furthermore, by moving to vacate or set aside the trial court‘s judgment granting the civil protection order on the basis that the court lacked personal jurisdiction over her, appellant clearly raised an objection to the court‘s lack of personal jurisdiction. This, in turn, placed the burden of proof on appellee to demonstrate that the trial court had personal jurisdiction over appellant by the time the court held a full hearing on the matter and issued
{¶ 22} Appellant attached an affidavit to her
{¶ 23} Nevertheless, appellee himself represented to the trial court at the February 15 hearing that appellant had not been served with notice of the proceedings until July 28, 2005, which was the day after the full hearing on appellee‘s petition was held and the trial court issued its civil protection order. Thus, there was evidence in the record that rebutted the presumption that the trial court had personal jurisdiction over appellant at the time the full hearing was held on appellee‘s petition, and at the time the trial court issued the civil protection order on July 27, 2005.
{¶ 24} Furthermore, appellant did not affirmatively waive service of process in this action, nor did she waive the lack-of-personal-jurisdiction issue by making an appearance in these proceedings without objecting to the trial court‘s lack of personal jurisdiction. Cf. Maryhew, 11 Ohio St.3d at 156-159, and Mortgage Lenders Network USA, Inc., 2006-Ohio-3292 at ¶ 6-8. Given the foregoing, the trial court did not have personal jurisdiction over appellant at the time the court issued its July 27, 2005 civil protection order and, therefore, that order is void.
{¶ 25} This court is aware of the fact that appellant failed to show up for the December 1, 2005 hearing on her motion for relief from judgment, at which point the matter was continued until January 6, 2006; that appellant, through her counsel, sought and received a
{¶ 26} Nevertheless, the record clearly shows that the trial court failed to obtain personal jurisdiction over appellant at the time it issued the July 27, 2005 domestic violence civil protection order against appellant and, therefore, that order is void, and not merely voidable. See Peoples Banking Co., 172 Ohio 545 at paragraph two of the syllabus; Lincoln Tavern, Inc., 165 Ohio St.3d at 64; Keybank Natl. Assn., 128 Ohio App.3d at 454; and CompuServe, Inc., 91 Ohio App.3d at 161.
{¶ 27} Finally, it must be remembered that the process for obtaining a domestic violence civil protection order pursuant to
{¶ 28} Appellant‘s assignment of error is sustained.
{¶ 29} The trial court‘s judgment is reversed, and this cause is remanded for further proceedings consistent with this opinion and in accordance with the laws of this state.
WALSH and YOUNG, JJ., concur.