C.L.A. v. D.P.M.
No. 112831
COURT OF APPEALS OF OHIO, EIGHTH APPELLATE DISTRICT, COUNTY OF CUYAHOGA
March 7, 2024
[Cite as C.L.A. v. D.P.M., 2024-Ohio-836.]
C.L.A., Plaintiff-Appellee, v. D.P.M., Defendant-Appellant.
JOURNAL ENTRY AND OPINION
JUDGMENT: DISMISSED IN PART, REVERSED IN PART, AND REMANDED
RELEASED AND JOURNALIZED: March 7, 2024
Appearances:
Stafford Law Co., L.P.A., Joseph G. Stafford, Nicole A. Cruz, and Kelley R. Tauring, for appellee.
Costanzo & Lazzaro, PPL and Raymond J. Costanzo, for appellant.
MARY EILEEN KILBANE, P.J.:
{¶ 1} Defendant-appellant D.P.M. (“Husband“) appeals the trial court‘s May 11, 2023 and May 25, 2023 judgment entries that granted plaintiff-appellee C.L.A.‘s (“Wife“) motion to dismiss Husband‘s postdecree motions for lack of service. For the following reasons, we dismiss
Factual and Procedural History
{¶ 2} On April 18, 1997, Wife and Husband married and during the marriage had one child, A.M. (d.o.b. 10/23/2006). On July 18, 2017, the trial court executed a divorce decree that dissolved the parties’ marriage and addressed child and spousal support. Pursuant to the divorce decree, Husband was ordered to pay $1,000 per month for child support and $104 per month for cash medical support as well as $4,500 for 78 months in payment of spousal support.
{¶ 3} On February 19, 2020, the Office of Child Support Services (“OCSS“) issued an Administrative Adjustment Recommendation (“OCSS Recommendation“) as to Husband‘s monthly child support and cash medical support obligations for A.M. The OCSS Recommendation indicated that Husband should pay $817.88 and $20.07 for child support and cash medical support, respectively. The OCSS Recommendation also stated that the trial court had granted a deviation under the existing order, but OCSS could not determine the monetary or percentage of the deviation.
{¶ 4} On March 4, 2020, Husband filed a motion for court hearing or judicial review (“motion for judicial review“), pursuant to
{¶ 5} On May 18, 2020, Wife‘s counsel filed a notice of appearance, and on May 19, 2020, Wife‘s counsel issued a subpoena duces tecum on Husband‘s employer seeking wage and employee benefits information.
{¶ 6} On December 23, 2020, Husband filed three postdecree motions: a motion to determine arrearages (“arrearages motion“), a motion to modify child and spousal support (“support modification motion“), and a motion to show cause and demand attorney fees (“show cause motion“) (collectively “December 23, 2020 motions“). The arrearages motion stated the OCSS miscalculated the spousal and child support arrearages that had accrued since the trial court‘s July 18, 2017 order, including a miscalculation of temporary support. The support modification motion sought to decrease Husband‘s obligations for child and spousal support pursuant to the July 18, 2017 court order. The show cause motion requested that Husband have visitation with A.M. and that Wife refinance her residence to remove Husband‘s name from the mortgage.
{¶ 7} On January 6, 2021, Wife filed briefs in opposition to Husband‘s December 23, 2020 motions, arguing the merits of the motions. Wife did not argue that Husband failed to properly serve her with copies of the December 23, 2020 motions. Wife filed numerous motions between January and November 2021.
{¶ 8} On November 29, 2021, Wife filed a motion to dismiss alleging that Husband‘s motion for judicial review filed on March 4, 2020, and his December 23, 2020 motions were not properly served upon Wife. Within the motion to dismiss, Wife stated the issue of lack of service relative to the March 4, 2024 motion was raised at a hearing on or about November 15, 2020.
{¶ 9} On November 29, 2021, Husband filed a brief in opposition to Wife‘s motion to dismiss. In his brief, Husband conceded he did not perfect service of the motions. Husband argued that from March 4, 2020, through October 28, 2021, the parties had conducted discovery on the pending motions;
{¶ 10} On December 1, 2021, Husband requested service of process on three motions — the motion for judicial review, the arrearages motion, and the support modification motion — by certified mail at Wife‘s home address. The U.S. Postal Service assigned receipt number 46149786 to Husband‘s request for service of process.
{¶ 11} On December 1, 2021, under a separate request for service, Husband‘s show cause motion was sent by certified mail to Wife‘s home address and assigned U.S. Postal Service receipt number 46125837. On December 2, 2021, the U.S. Postal Service delivered Husband‘s show cause motion, referenced as receipt number 46125837, to the wrong address. The motion was delivered to the correct street but the incorrect street number.
{¶ 12} The record also indicates that Husband‘s three motions — the motion for judicial review, the arrearages motion, and the support modification motion — served under receipt number 46149786 were delivered by certified mail on December 8, 2021, to Wife‘s correct address.
{¶ 13} Almost one year later on the date of trial — November 22, 2022 — Wife orally renewed her motion to dismiss for failure of proper service. Wife argued that Husband‘s postdecree motions were required to be served pursuant to
{¶ 14} The magistrate acknowledged there was an attempt at service, but her review of the docket indicated that all of Husband‘s postdecree motions were delivered to an incorrect address. The magistrate granted Wife‘s motion to dismiss on the basis that service of the motions was not perfected, and Wife withdrew her pending motions.
{¶ 15} On November 25, 2022, Husband filed four proofs of service with the trial court. Attached to each proof of service was a copy of Husband‘s four motions that allegedly lacked service. Each proof of service identified the date the attached motion was originally filed electronically with the clerk of courts and stated that at the time of the original filing, the motion was sent to all counsel of record by operation of the court‘s electronic filing system.
{¶ 16} On December 21, 2022, a magistrate‘s decision was filed, and it granted Wife‘s oral motion to dismiss Husband‘s postdecree motions. The decision also ordered the adoption of the OCSS recommendation in a separate order and denied all other procedural motions filed by Wife as moot. On January 3, 2023, Husband filed objections to the magistrate‘s decision as well as supplemental objections on February 2, 2023. Husband‘s objections disputed the magistrate‘s decision to grant Wife‘s motion to dismiss due to lack of service.
{¶ 17} On May 11, 2023, the trial court issued a judgment entry that overruled Husband‘s objections to the magistrate‘s decision and adopted the magistrate‘s decision. On May 25, 2023, the trial court issued a judgment entry that adopted the
{¶ 18} On June 7, 2023, Husband filed a timely notice of appeal presenting three assignments of error:
Assignment of Error I: The trial court committed reversible error in failing to find [Wife] voluntarily submitted herself to the court‘s jurisdiction and waived the
Civ.R. 75(J) requirement of issuance and service of process.Assignment of Error II: The trial court committed reversible error in dismissing [Husband‘s] motions under
Civ.R. 4(E) .Assignment of Error III: The trial court committed reversible error in finding that a motion for court hearing emanating from an administrative child support review recommendation is subject to
Civ.R. 75(J) service of process requirement.
On November 3, 2023, this court, sua sponte, directed the parties to submit supplemental briefs addressing whether the trial court‘s orders constituted final, appealable orders. The parties provided supplemental briefing and this issue is now ripe for review.
Legal Analysis
I. Final, Appealable Order
{¶ 19} Before reviewing the merits of this case, we must first consider whether we have jurisdiction to hear this appeal. An appellate court‘s review is limited to final judgments and orders. Cooney v. Radostitz, 8th Dist. Cuyahoga No. 110009, 2021-Ohio-2521, ¶ 12. “If an order is not final and appealable, then an appellate court has no jurisdiction to review the matter and the appeal must be dismissed.” Assn. of Cleveland Firefighters, #93 v. Campbell, 8th Dist. Cuyahoga No. 84148, 2005-Ohio-1841, ¶ 6. “[T]his court has a duty to examine, sua sponte, potential deficiencies in jurisdiction.” Cooney at ¶ 12.
{¶ 20} We have two issues to address with regard to our jurisdiction over this case: (1) did the trial court‘s failure to adopt the OCSS Recommendation prevent the May 25, 2023 order from constituting a final, appealable order, and (2) did the trial court‘s dismissal of Husband‘s postdecree motions constitute a final, appealable order under
OCSS Recommendation
{¶ 21} The trial court‘s May 25, 2023 order (1) adopted the magistrate‘s December 21, 2022 decision in its entirety; (2) granted Wife‘s motion to dismiss thereby dismissing Husband‘s postdecree motions; (3) ordered the adoption of the OCSS Recommendation by separate order; (4) recognized several of Wife‘s motions were withdrawn; and (5) denied as moot several of Wife‘s motions.
{¶ 22} On June 7, 2023, Husband filed his notice of appeal from the court‘s judgment. At that time, the trial court had not issued a separate order adopting the OCSS Recommendation even though the May 25, 2023 order stated the court would do so. Additionally, the OCSS Recommendation was not filed on the trial court‘s docket but was attached to Husband‘s motion for judicial review. For these reasons, this court sua sponte requested supplemental briefing on whether the absence of a court order adopting the OCSS Recommendation resulted in an unresolved matter that required further action and, therefore, rendered the May 25, 2023 order not a final, appealable order.
{¶ 24} This court has found that
a QDRO is not an independent judgment entry but rather an enforcement mechanism pertaining to the trial court‘s previous judgment entry of divorce.
E.O.W. v. L.M.W., 2021-Ohio-2040, 174 N.E.3d 414, ¶ 35 (8th Dist.), citing Ballinger v. Ballinger, 8th Dist. Cuyahoga No. 105180, 2017-Ohio-7077, ¶ 6. A QDRO is “merely a tool used to execute the divorce decree.” Wilson at ¶ 19.
{¶ 25} Similarly, we find here that the trial court intended to adopt the OCSS Recommendation as proposed without any modifications, and the trial court‘s failure to adopt the OCSS Recommendation under a separate order did not prevent the issuance of a final, appealable order.
R.C. 2505.02
{¶ 26} The types of orders that qualify as final, appealable orders are delineated in
An order is a final order that may be reviewed, affirmed, modified, or reversed, with or without retrial, when it is one of the following:
(1) An order that affects a substantial right in an action that in effect determines the action and prevents a judgment;
(2) An order that affects a substantial right made in a special proceeding or upon a summary application in an action after judgment;
(3) An order that vacates or sets aside a judgment or grants a new trial;
(4) An order that grants or denies a provisional remedy and to which both of the following apply:
(a) The order in effect determines the action with respect to the provisional remedy and prevents a judgment in the action in favor of the appealing party with respect to the provisional remedy.
(b) The appealing party would not be afforded a meaningful or effective remedy by an appeal following final judgment as to all proceedings, issues, claims, and parties in the action.
(5) An order that determines that an action may or may not be maintained as a class action;
(6) An order determining the constitutionality of any changes to the Revised Code made by Am. Sub. S.B. 281 of the 124th general assembly, * * * or any changes made by Sub. S.B. 80 of the 125th general assembly, * * *;
(7) An order in an appropriation proceeding that may be appealed pursuant to division (B)(3) of section 163.09 of the Revised Code.
{¶ 27} A “substantial right” is “a right that the United States Constitution, the Ohio Constitution, a statute, the common law, or a rule of procedure entitles a person to enforce or protect.”
{¶ 28} A divorce action is a special proceeding. Thomasson v. Thomasson, 153 Ohio St.3d 398, 2018-Ohio-2417, 106 N.E.3d 1239, ¶ 12, citing Wilhelm-Kissinger v. Kissinger, 129 Ohio St.3d 90, 2011-Ohio-2317, 950 N.E.2d 516, ¶ 6. A motion to modify child support may qualify as a special proceeding pursuant to
{¶ 29} In addition to showing the motions were made in a special proceeding, Husband must demonstrate that the trial court‘s May 11, 2023 and May 25, 2023 orders affected Husband‘s substantial rights. This court has found that
[a]n order affects a substantial right if, in the absence of an immediate appeal, one of the parties would be foreclosed from appropriate relief in the future. See, e.g., Crown Servs. v. Miami Valley Paper Tube Co., 162 Ohio St. 3d 564, 2020-Ohio-4409, 166 N.E.3d 1115, ¶ 16 (“An order affects a substantial right ‘only if an immediate appeal is necessary to protect the right effectively.‘“), quoting Wilhelm-Kissinger v. Kissinger, 129 Ohio St. 3d 90, 2011-Ohio-2317, 950 N.E.2d 516, ¶ 7, citing Bell v. Mt. Sinai Med. Ctr., 67 Ohio St.3d 60, 63, 616 N.E.2d 181 (1993).
Cooney at ¶ 23.
{¶ 30} We will evaluate Husband‘s postdecree motions separately to address whether the trial court‘s dismissal of each created a final, appealable order. In his appeal, Husband argues that the trial court erred when it dismissed his motion for judicial review, arrearages motion, and support modification motion. Husband‘s appeal does not address his show cause motion, and thus, we will not analyze the dismissal of this motion for a final, appealable order.
A. Motion for Judicial Review
{¶ 31} Husband sought judicial review of an OCSS Recommendation to modify the parties’ child support order. OCSS Recommendations are governed by
{¶ 32} We find that the facts here are unique where Husband filed a motion for a judicial hearing under
B. Arrearages Motion
{¶ 33} Husband filed an arrearages motion requesting that the trial court determine his arrearages in child and spousal support following the July 18, 2017 court order.
{¶ 34} Orders affect a substantial right only if they have “immediate consequences” or “if not immediately appealable, would foreclose appropriate relief in the future.” Ossai-Charles v. Charles, 188 Ohio App.3d 503, 2010-Ohio-3558, 935 N.E.2d 944, ¶ 19 (12th Dist.), quoting Walburn v. Dunlap, 121 Ohio St.3d 373, 2009-Ohio-1221, ¶ 24, 904 N.E.2d 863, and Southside Community Dev. Corp. v. Levin, 116 Ohio St.3d 1209, 2007-Ohio-6665, 878 N.E.2d 1048, ¶ 7.
{¶ 35} Here, the trial court‘s order on the arrearages motion did not have immediate consequences for Husband. The trial court made no determination whether arrearages exist. The dismissal of this motion did not foreclose Husband from refiling this motion so that he can attempt to obtain appropriate relief in the future. The trial court‘s dismissal of Husband‘s arrearages motion did not affect a substantial right and, therefore, does not amount to a final, appealable order.
C. Support Modification Motion
{¶ 36} In his support modification motion, Husband seeks a decrease in his child and spousal support obligations that were issued on July 18, 2017. Husband argues on appeal that a dismissal of this motion will foreclose his substantial right to have his spousal and child support reduced retroactively to the initial filing date of December 23, 2020.
{¶ 37} “As a general rule, because of the time it takes to modify child support orders, an order modifying child support order may be made retroactive to the date the motion to modify child support was filed unless special circumstances dictate otherwise.” In re J.C., 8th Dist. Cuyahoga Nos. 109747 and 109748, 2021-Ohio-2451, ¶ 12, quoting Phelps v. Saffian, 8th Dist. Cuyahoga No. 106475, 2018-Ohio-4329, ¶ 37.
{¶ 38} Wife cites to M.E.D., 8th Dist. Cuyahoga No. 112070, 2023-Ohio-3471, in support of her position that Husband‘s modified support modification motion is not a final, appealable order. In M.E.D., Father filed a postdecree motion to modify a parenting order and perfected service of the motion. Father then filed a second postdecree motion to modify child support (“child support motion“) without serving Wife under
{¶ 39} M.E.D. is distinguishable from the instant case. Father in M.E.D. failed to serve Mother properly with the motion to modify support and, therefore, did not invoke the trial court‘s continuing jurisdiction. Mother timely raised the issue of failed service within three months of Father filing his motion to modify support. There is also the matter of whether Father‘s compliance with the service rules on his first postdecree motion impacted the service necessary on his second postdecree motion.
{¶ 40} Here, as is demonstrated by the record and discussed below in our analysis of Husband‘s second assignment of error, Husband‘s support modification motion was properly served on Wife thereby invoking the trial court‘s continuing jurisdiction. Further, Wife‘s motion to dismiss for lack of service was filed in response to Husband‘s postdecree motions originally filed on March 4, 2020, and December 23, 2020. Wife did not file her motion to dismiss until November 29, 2021. From January 2021 through November 2021, Wife actively participated in litigation of the postdecree motions. Wife states in her motion to dismiss that the issue of service relative to the March 4, 2020 motion was previously raised in November 2020, but there is no record of such a discussion nor any filing by Wife prior to November 2021. Thus, we find the facts and holding of M.E.D. are distinguishable from the instant matter.
{¶ 41} While Husband has the ability to refile his support modification motion, any award will relate back to the new filing date rather than the original filing date of December 23, 2020. Husband would be prevented from benefitting from a potential modification between the period of December 23, 2020, and the new filing date. For this reason, we find that the dismissal of Husband‘s support modification motion would impact a significant right of Husband, and the dismissal of this motion was a final, appealable order. See In re K.A.V., 2d Dist. Montgomery No. 26312, 2014-Ohio-5575 at ¶ 11 (Although court‘s dismissal of Father‘s motion to modify child support did not prevent him from refiling the motion, Father would be entitled to a support reduction retroactive only to the date of the new filing; the loss of the reduction retroactively to the date of his initial filing qualified as a substantial right under
{¶ 42} In summary, we find that the trial court‘s May 11 and May 25, 2020 orders resulted in final, appealable orders on Husband‘s motion for judicial review and support modification motion. We find further that the trial court orders were not final, appealable orders on Husband‘s arrearages motion. We will address the merits of Husband‘s appeal as it relates to his
II. Assignments of Error
{¶ 43} For ease of discussion, we will address Husband‘s assignments of error out of order.
A. Third Assignment of Error
{¶ 44} In his third assignment of error, Husband argues that the trial court committed reversible error when it determined his motion for judicial review filed pursuant to
{¶ 45} A trial court‘s dismissal for lack of personal jurisdiction is a question of law subject to a de novo review. Kauffman Racing Equip., L.L.C. v. Roberts, 126 Ohio St.3d 81, 2010-Ohio-2551, 930 N.E.2d 784, ¶ 27.
{¶ 46} Generally, after the resolution of divorce proceedings that include child and spousal support, the trial court‘s continuing jurisdiction must be invoked for postdecree motions through service of process. “When a party fails to invoke the continuing jurisdiction of the trial court by not meeting the requirements for service of process, the court lacks personal jurisdiction to enter judgment upon the motion.” Sweeney v. Sweeney, 2016-Ohio-1384, 63 N.E.3d 542, ¶ 24 (8th Dist.).
{¶ 47} One manner to invoke a trial court‘s continuing jurisdiction on a postdecree motion for modification of custody, support, or alimony is through service of process under
{¶ 48} Accordingly, Husband invoked the trial court‘s continuing jurisdiction when he filed his motion for judicial review in accordance with
B. Second Assignment of Error
{¶ 49} In his second assignment of error, Husband argues that the trial court committed reversible error when it dismissed his support modification motion pursuant to
{¶ 50} We review a trial court‘s dismissal due to lack of proper service for an abuse of discretion. Troxel v. Mabe, 12th Dist. Clermont No. CA2008-02-018, 2008-Ohio-5420, ¶ 18. The term abuse of discretion “implies that the court‘s attitude is unreasonable, arbitrary or unconscionable.” Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983). An abuse of discretion occurs when a court exercises its judgment in an unwarranted way regarding a matter over which it has discretionary authority. Johnson v. Abdullah, 166 Ohio St.3d 427, 2021-Ohio-3304, 187 N.E.3d 463, ¶ 35.
{¶ 51} To invoke the domestic relations court‘s continuing jurisdiction, Husband needed to file his support modification motion pursuant to
Continuing jurisdiction. The continuing jurisdiction of the court shall be invoked by motion filed in the original action, notice of which shall be served in the manner provided for the service of process under
Civ.R. 4 to4.6 . When the continuing jurisdiction of the court is invoked pursuant to this division, the discovery procedures set forth inCiv.R. 26 to37 shall apply.
{¶ 52} On December 23, 2020, Husband filed his support modification motion with the trial court but failed to serve the motion in accordance with
{¶ 53} On November 29, 2021, almost one year after Husband filed his support modification motion, Wife filed a motion to dismiss Husband‘s motion due to its failure to comply with the service rules. Wife conceded during oral argument that she did not recognize a potential service issue until that later date. On the same day Wife filed her motion to dismiss, Husband filed a brief in opposition to Wife‘s motion to dismiss, arguing that Wife waived service of process by conducting discovery, receiving continuances, and defending the merits of Husband‘s motions. Husband further argued that from March 4, 2020 — when his first postdecree motion was filed — through October 28, 2021, the parties had conducted discovery on motions filed by both Husband and Wife, participated in more than 15 pretrials and settlement conferences, and set at least two trial dates.
{¶
{¶ 55} The record indicates that on December 15, 2021, Husband‘s motion served under receipt number 46149786 was delivered by certified mail on December 8, 2021, to Wife‘s correct address. The receipt information provided by the U.S. Postal Service and included in the record shows the signature of the recipient and the address of the recipient. The signature of the recipient is illegible, and we are not able to ascertain the name of the signatory. The address of the recipient is difficult to decipher, but the street numbers are legible — which reflect Wife‘s correct address — and the receipt states the item was delivered in the Wife‘s correct city and state. Husband‘s support modification motion was not delivered to an incorrect address.2
{¶ 56} According to
{¶ 57} Here, the return receipt shows that certified mail service of Husband‘s support modification motion was sent to Wife‘s home address, signed, and returned. Under
{¶ 58} As to his support modification motion, Husband satisfied the service rules. However, Husband did not serve the motion within six months of its filing and, therefore, the support modification motion
Summons; Time limit for service. If a service of the summons and complaint [support modification motion] is not made upon a defendant within six months after the filing of the complaint and the party on whose behalf such service was required cannot show good cause why such service was not made within that period, the action shall be dismissed as to that defendant without prejudice upon the court‘s own initiative with notice to such party or upon motion. This division shall not apply to out-of-state service pursuant to
Rule 4.3 or to service in a foreign country pursuant toRule 4.5 .
{¶ 59}
{¶ 60} The record reflects that the first written claim of lack of jurisdiction was made on November 29, 2021, when Wife filed her motion to dismiss due to lack of service. On that same day, Husband filed a brief in opposition and argued that Wife waived service by her continued participation in litigation of his motions. Just a few days later, on December 1, 2021, Husband filed a request for service in an attempt to perfect service of the support modification motion on Wife. And Husband successfully perfected service of the motion on December 8, 2021. The trial court granted Wife‘s motion to dismiss due to lack of service, and thereby dismissed Husband‘s support modification motion in May 2023, over a year after Husband perfected service.
{¶ 61} As this court stated previously,
[w]e do not believe that
Civ.R. 4(E) is meant to be used as a vehicle to dismiss cases once service has been properly perfected, but rather is intended to apply to those situations where there is no service and where the plaintiff has been dilatory in attempting to obtain service on a defendant.
Briggs v. Glenbeigh Health Servs., 8th Dist. Cuyahoga Nos. 77395 and 77665, 2000 Ohio App. LEXIS 5587, 11 (Nov. 30, 2000). “Like all procedural rules,
{¶ 62} By the time the trial court ruled on Wife‘s motion to dismiss, Husband had perfected service of the support modification motion. We find Husband‘s timely response to Wife‘s motion to dismiss and his reasoning for good cause, coupled with Husband‘s successful service of his support modification motion just days after Wife filed her motion to dismiss, demonstrate just cause for Husband‘s delay in perfecting service. Additionally, adopting the reasoning behind
{¶ 63} Judgment is dismissed in part, reversed in part, and remanded for further proceedings consistent with this opinion. As to Husband‘s second and third assignments of error, the dismissals of Husband‘s support modification motion and motion for judicial review, respectively, are reversed and remanded for further proceedings consistent with this opinion. As to Husband‘s arrearages motion, we conclude that the trial court‘s May 11, 2023 and May 25, 2023 orders dismissing the motion for lack of service were not final, appealable orders and, therefore, dismiss that portion of Husband‘s appeal relative to that motion.
It is ordered that appellant recover from appellee costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the common pleas court, domestic relations division, to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
MARY EILEEN KILBANE, PRESIDING JUDGE
EMANUELLA D. GROVES, J., and MICHAEL JOHN RYAN, J., CONCUR