{¶ 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, *2
in Preble County, Ohio. On July 22, 2005, appellee petitioned for a domestic violence civil protection order, pursuant to R.C.
{¶ 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 Civ.R. 60(B)(5), asking the trial court to set aside the July 27, 2005 protection order on the ground that she had not been timely served with notice of the full hearing, as required under R.C.
{¶ 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. *3
{¶ 8} On February 28, 2006, the trial court issued an entry and order, denying appellant's Civ.R. 60(B) motion due to appellant's failure to attend the February 15th hearing, and ordering that the July 27, 2005 domestic violence civil protection order remain in full force and effect.
{¶ 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),
{¶ 13} Any judgment rendered by a court that has not acquired personal jurisdiction over the defendant is void, and not merely voidable. SeePeoples Banking Co. v. Brumfield Hay Grain Co. (1961),
{¶ 14} Jurisdiction over the person is presumed to exist in the absence of an objection. *4 In re Fudge (1977),
{¶ 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,
{¶ 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, andGiachetti,
{¶ 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),
{¶ 18} A party seeking to challenge a void judgment must file a motion to vacate or set aside the judgment. Compuserve,
{¶ 19} Nevertheless, where a party attempts to vacate a void judgment through a Civ.R. 60(B) motion, courts treat the motion as a common law motion to vacate or set aside the judgment, finding that it is "not significant" that the motion has been styled as a Civ.R. 60(B) motion.Compuserve,
{¶ 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 Civ.R. 60(B) motion for relief from judgment. While appellant's attempted use of Civ.R. 60(B) to vacate the trial court's judgment was technically incorrect, the trial court erred by not treating appellant's Civ.R. 60(B) motion as a common law motion to vacate or set aside the court's judgment based on a lack of personal jurisdiction. Compuserve, citing U.S. SprintCommunications Co., Franklin App. No. 90AP-629.
{¶ 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 *6
its July 27, 2005 domestic violence civil protection order. SeeSpeck,
{¶ 22} Appellant attached an affidavit to her Civ.R. 60(B) motion in which she stated that she had not been served with timely notice of the full hearing held on appellee's petition. However, in light of appellant's failure to attend the February 15, 2006 hearing, appellant's affidavit, standing alone, may well have been insufficient to overcome the presumption that the trial court had personal jurisdiction over her. See Fudge,
{¶ 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,
{¶ 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 *7 continuance of the scheduled January 6, 2006 hearing until February 15, 2006; and that appellant then failed to attend the February 15 hearing. It is apparent why the trial court became frustrated with appellant's behavior and entered judgment against her, and we are reluctant to reward appellant's conduct by finding for her in this case.
{¶ 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.,
{¶ 27} Finally, it must be remembered that the process for obtaining a domestic violence civil protection order pursuant to R.C.
{¶ 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.