In Re B.P.H.
{¶ 1} Defendant-appellant, AT., appeals the decision of the Butler County Common Pleas Court, Juvenile Division, granting legal custody of her child to plaintiff-appellee, P.H., the child‘s father.1 For the reasons that follow, we reverse the judgment of the juvenile court.
{¶ 2} In July 2005, appellee filed an action in the juvenile court for legal custody of the child. Appellee requested that the clerk serve appellant with a summons and a copy of the complaint by simultaneous certified and ordinary mail at the Middletown address provided by
{¶ 3} The summons required appellant to appear at a hearing before the juvenile court in November 2005. Appellant did not appear at that hearing, at which the juvenile court magistrate ordered a study of appellee‘s home and scheduled a custody hearing for February 2006. The clerk sent notification of the custody hearing by simultaneous certified and ordinary mail to appellant at the Middletown address previously provided by appellee. The certified mail was returned “unclaimed,” while the ordinary mail was not returned. Aрpellant did not appear at the custody hearing. In a decision filed February 23, 2006, the magistrate granted legal custody to appellee, allowing appellant visitation as arranged by thе parties. On the same day, the juvenile court issued an entry adopting the magistrate‘s decision as a final judgment of the court.
{¶ 4} On February 24, 2006, after the child was removed from her care, appellаnt filed her own motion for legal custody in the juvenile court. Listing a West Alexandria, Ohio address, appellant asserted in her motion that she “was never notified of any court date or times to apрear.”
{¶ 5} On February 28, 2006, appellant timely filed objections to the magistrate‘s decision. Appellant asserted that she was never properly served, and that all of the clerk‘s mailings had been “gоing to [the] wrong address.” On March 3, 2006, appellant, then represented by counsel, filed a motion to set aside the magistrate‘s decision, again asserting failure of service.
{¶ 6} Also on March 3, 2006, apрellant filed an “ex parte motion for return of legal custody.” Appellant asserted that the matter was an emergency because appellant had always been the child‘s custodian and the child would suffer great trauma due to the sudden removal from her care. After a hearing on March 13, 2006, the juvenile court denied
{¶ 7} After a hearing on March 20, 2006, the juvenile court overruled apрellant‘s objections to the magistrate‘s decision and denied appellant‘s motion to set aside the magistrate‘s decision. The court found that the matter was “not necessarily controllеd by [Civ.R.] 4.6 but whether or not [appellant] had notice of the hearing.” The court indicated that its decision, filed March 21, 2006, was a final appealable order.
{¶ 8} Appellant now appeals thе juvenile court‘s March 21, 2006 decision, assigning two errors.2
{¶ 9} Assignment of Error No. 1:
{¶ 10} “THE TRIAL COURT ERRED WHEN IT OVERRULED THE OBJECTIONS OF APPELLANT AND APPELLANT‘S MOTION TO SET ASIDE MAGISTRATE DECISION/ORDER. APPELLANT HAD OBJECTED TO THE MAGISTRATE GRANTING LEGAL CUSTODY OF HER CHILD TO APPELLEE WHEN APPELLANT HAD NOT BEEN PROPERLY SERVED WITH APPELLEE‘S COMPLAINT FOR CUSTODY.”
{¶ 11} In her first assignment of error, appellant argues that she was never properly served with appellant‘s complaint for legal custody. Appellant argues that service was defective under
{¶ 12}
{¶ 13} The record shows that there was not compliance with thе Civil Rules regarding service of the complaint. The record shows that the clerk, upon appellee‘s request, sent the complaint by certified and ordinary mail at the same time. This court has stаted that sending certified and ordinary mail simultaneously is not in compliance with
{¶ 14} Completion of original process is necessary to clothe the trial court with the jurisdiction to proceed. Sampson v. Hooper Holmes, Inc. (1993), 91 Ohio App.3d 538, 540; O.B. Corp. v. Cordell (1988), 47 Ohio App.3d 170, 171. Whеre service of process has not been accomplished, any judgment rendered is void ab initio. Sampson at 540; Hoffman v. New Life Fitness Centers, Inc. (1996), 116 Ohio App.3d 737, 739.
{¶ 15} Appellee cites Cheatham v. Cheatham (Dec. 18, 1992), Greene App. No. 92-CA-0057, 1992 WL 371846, in support of his argument that any error was harmless because
{¶ 16} Appellеe also argues that appellant waived her personal jurisdiction defense and submitted herself to the jurisdiction of the juvenile court when she filed her own pro se motion for legal custody the day after the juvenile court issued its judgment granting legal custody to the father. Four days later, appellant filed her objections to the magistrate‘s decision, in which she raised the service of process issue.
{¶ 17} Aside from service of process, a court can acquire personal jurisdiction over a defendant via voluntary appearance and submission of the defendant or his оr her legal representative, and via certain acts of the defendant or his or her legal representative which involuntarily submit the defendant to the jurisdiction of the trial court. Maryhew v. Yova (1984), 11 Ohio St.3d 154, 156; Austin v. Payne (1995), 107 Ohio App.3d 818, 821. However, impliсit in the above principle is that the submission to the court‘s jurisdiction takes
{¶ 18} The record shows that the court adopted the magistrate‘s decision and issued a final judgment granting legal custody to appellee prior to appellant‘s filing of her legаl custody motion. Therefore, the court did not have jurisdiction over the mother at the time it issued the judgment.
{¶ 19} Accordingly, we sustain appellant‘s first assignment of error. Because service of proсess was not accomplished and the juvenile court did not otherwise acquire jurisdiction over appellant, the court‘s judgment granting legal custody of the child to appellee was void ab initio. Due to our resolution of appellant‘s first assignment of error, appellant‘s second assignment of error, in which she raises a due process argument, is moot. See
WALSH and YOUNG, JJ., concur.