Green v. HuntleyGreen v. Huntley
Rendered on March 16, 2010
Tammie M. Osler, for appellant.
Melissa A. Waterfield, for Franklin County Child Support Enforcement Agency.
APPEAL from the Franklin County Court of Common Pleas, Division of Domestic Relations, Juvenile Branch.
FRENCH, J.
{¶1} Defendant-appellant, Sean Huntley (“appellant“), appeals the judgment of the Franklin County Court of Common Pleas, Division of Domestic Relations, Juvenile Branch, denying his motion to vacate a judgment regarding child support rendered against him on March 21, 2002. For the following reasons, we reverse.
{¶3} On June 4, 2003, appellant filed in the trial court a Complaint to Establish Non-Existence of Father and Child Relationship with respect to C.B. In his complaint, appellant acknowledged the support judgment against him, stating that he “had paternity established by default,” but he alleged that he was not C.B.‘s biological father. Appellant‘s complaint was eventually dismissed with no resolution of the paternity issue.
{¶4} On October 12, 2007, FCCSEA filed a motion to vacate the March 21, 2002 judgment and to set aside its January 17, 2002 complaint, stating that the evidence attached to the complaint did not establish appellant‘s paternity of C.B., but, instead, established appellant‘s paternity of a different minor child, J.H. FCCSEA‘s
{¶5} On February 25, 2009, appellant filed his own motion to vacate the March 21, 2002 judgment. Appellant argued that the judgment was void because he was not properly served with a summons and complaint. Alternatively, appellant argued that he was entitled to relief from judgment pursuant to
{¶6} The trial court held a hearing on the motions to vacate on May 29, 2009, during which it heard arguments from counsel for all parties. FCCSEA‘s counsel stated that the 2002 Complaint to Set Support incorrectly assumed appellant‘s paternity of C.B. and that judgment was essentially entered without proving paternity. Appellant‘s counsel agreed and further argued that appellant was not served with the complaint, did not receive notice of the hearing to set support, and did not learn of the action against him until after the judgment of support had been entered. Appellant‘s counsel additionally argued that the support judgment was based on incorrect evidence of his income. Green‘s counsel added, however, that appellant paid support, pursuant to the
{¶7} When appellant‘s counsel requested permission to present evidence at the May 29, 2009 hearing, the trial court responded that it was “not sure” it would “let [appellant] put on evidence on a Motion to Vacate.” (Tr. 13.) The court went on to state, “I am not required on a Motion to Set Aside to allow evidence to be taken – additional evidence to be taken. That‘s up to my discretion. I don‘t believe that that‘s necessary for me to make a decision in this case.” (Tr. 15.) Appellant‘s counsel nevertheless proffered evidence that appellant had not lived at the address where service was attempted since August 2001 and that appellant was never actually personally served with a copy of the complaint and had no advance notice of the magistrate‘s hearing to set support.
{¶8} On June 12, 2009, the trial court issued a decision and judgment entry denying the motions to vacate. The trial court summarily rejected appellant‘s claim that he was not served, based on indications in the court file that appellant was served personally and by certified mail. The court went on to deny appellant‘s motion because it was not filed within a reasonable time, as required for relief under
FIRST ASSIGNMENT OF ERROR
The trial court erred in applying the standard for deciding a Civ. R. 60(B) motion due to lack of personal jurisdiction over Appellant.
SECOND ASSIGNMENT OF ERROR
The trial court abused its discretion when it failed to grant Appellant a hearing on his Motion to Vacate.
THIRD ASSIGNMENT OF ERROR
The trial court erred and abused its discretion in denying Appellant‘s Motion to Vacate.
Appellant‘s assignments of error are interrelated, and we address them together.
{¶10} Appellant moved the trial court to vacate the 2002 judgment as void for lack of service of process or, alternatively, pursuant to
{¶11} Under Ohio law, a judgment rendered without personal jurisdiction over the defendant is void, and Ohio courts have inherent power to vacate a void judgment. Gupta v. Edgecombe, 10th Dist. No. 03AP-807, 2004-Ohio-3227, ¶12, citing CompuServe, Inc. v. Trionfo (1993), 91 Ohio App.3d 157, 161; TCC Mgt., Inc v. Clapp, 10th Dist. No. 05AP-42, 2005-Ohio-4357, ¶9-10. While a party against whom a void
{¶12} Personal jurisdiction is the authority of a court to enter a constitutionally binding judgment on a particular defendant, and it is an affirmative defense that may be waived. Harris v. Mapp, 10th Dist. No. 05AP-1347, 2006-Ohio-5515, ¶9, citing NetJets, Inc. v. Binning, 10th Dist. No 04AP-1257, 2005-Ohio-3934, ¶4;
{¶13} When a party challenges the existence or sufficiency of service of process, the court is ” ‘guided by the premise that service is proper where the civil rules
{¶14} This court has held that, when service ” ‘is made at an address reasonably calculated to reach the defendant, a sworn statement by a defendant that he or she never was served with the complaint at least warrants the trial court‘s conducting a hearing to determine the validity of defendant‘s assertions.’ ” Gupta at ¶13, quoting Wilson‘s Auto Serv., Inc. v. O‘Brien (Mar. 4, 1993), 10th Dist. No. 92AP-1406. See also Nationwide Ins. Co. v. Mahn (1987), 36 Ohio App.3d 251, 252. Thus, “a trial court errs in summarily overruling a defendant‘s motion to set aside a judgment for lack of service, when the defendant submits a sworn statement that she did not receive service of process, without affording the defendant a hearing.” Clapp at ¶15, citing Baumann v. Purchase Plus Buyer‘s Group, Inc. (Nov. 29, 2001), 10th Dist. No. 01AP-297.
{¶15} In Mahn, the defendant in a subrogation action moved to vacate a default judgment for failure of service of process. The defendant asserted, via affidavit, that she neither resided at nor received mail at the address to which the summons and complaint were sent. Upon review, we stated that the defendant‘s uncontradicted affidavit should have, at least, afforded the defendant the opportunity to contest the issue of service at an evidentiary hearing. Similarly, in Baumann, this court reversed
{¶16} Here, there is no suggestion that FCCSEA did not comply with the Ohio Rules of Civil Procedure in its attempts to serve appellant. The court file contains a certified mail receipt showing that the complaint and notice of the magistrate‘s hearing were delivered to 889 Caroway Boulevard in Gahanna, Ohio, the address listed on appellant‘s driver‘s license, and were signed for by someone with the last name of Huntley on January 26, 2002. When service is attempted via certified mail, a signed receipt returned to the sender establishes a prima facie case of delivery to the addressee. Clapp at ¶11. Valid service is presumed when any person at the defendant‘s address received the certified mail. Id. In addition to the evidence of certified mail service, the court file also contains a personal service return, stating that appellant was personally served at the same address on February 3, 2002.
{¶17} Appellant supported his motion to vacate with an affidavit containing a sworn statement that he did not reside at the Caroway Boulevard address at the time of the alleged service and that he did not receive a copy of the complaint as a result of personal service, certified mail or ordinary mail. Based on his sworn statement, and pursuant to the above-stated authority, appellant was entitled to an evidentiary hearing in order for the trial court to properly evaluate and determine the credibility of his affidavit concerning failure of service. Although the trial court did hold a hearing on the motions to vacate, it refused appellant the opportunity to present evidence regarding the alleged failure of service, despite appellant‘s express request to present evidence. Instead, the court summarily rejected appellant‘s claimed lack of service based solely on the court file. Without an evidentiary hearing, however, “the trial court could not have appropriately assessed [appellant‘s] credibility or the persuasiveness of [appellant‘s] evidence and could not have determined whether [appellant] was truthful in alleging that he did not receive proper service of process.” Cincinnati Ins. Co. v. Emge (1997), 124 Ohio App.3d 61, 64. See also Wilson‘s Auto Serv., Inc. For this reason, we sustain appellant‘s second assignment of error, reverse the trial court‘s judgment, and remand this matter for the trial court to conduct an evidentiary hearing on appellant‘s motion to vacate.
{¶18} Having determined that the trial court erred by not affording appellant an evidentiary hearing regarding failure of service, we conclude that appellant‘s first and
Judgment reversed and cause remanded.
TYACK, P.J., and SADLER, J., concur.