IN RE: M.A.H., A Minor Child
No. 97963
Court of Appeals of Ohio, EIGHTH APPELLATE DISTRICT, COUNTY OF CUYAHOGA
May 24, 2012
[Cite as In re M.A.H., 2012-Ohio-2318.]
Civil Appeal from the Cuyahoga County Court of Common Pleas, Juvenile Division, Case No. CU 11107326
BEFORE: Keough, J., Sweeney, P.J., and Jones, J.
John H. Lawson, Brownhoist Building, 4403 St. Clair Avenue, Cleveland, OH 44103
FOR APPELLEE
For Father: Jimmy Hernandez, pro se, 11610 Treadway Avenue, Cleveland, OH 44109
Guardian Ad Litem: William T. Beck, 2035 Crocker Road, Suite 201, Westlake, OH 44145
{¶1} Appellant-mother (“Mother“) appeals the judgment of the trial court denying her motion to vacate the court‘s judgment awarding legal custody of M.A.H., a minor child, to appellee-father (“Father“). For the reasons that follow, we reverse and remand.
I. Facts and Procedural History
{¶2} Mother gave birth to M.A.H. February 22, 2010, as an unwed mother. Father and Mother signed and filed a voluntary acknowledgement of paternity affidavit establishing Father as M.A.H.‘s legal father.
{¶3} On April 21, 2011, Father filed an application to determine custody of M.A.H. pursuant to
{¶4} Mother did not appear for trial. At trial, the magistrate found that the docket indicated that the court had mailed the summons and complaint on November 1, 2011 by regular mail to 70 Briarwood Court, Howell, New Jersey, 07731, and, therefore, service was perfected. The magistrate further found that Mother had notice of trial
{¶5} Father testified at trial that Mother, who had relocated to New Jersey at the end of August 2011, had not granted him visitation with M.A.H. since November 2010. He stated further that he lived with his wife and two children, there was a crib in his daughter‘s room for M.A.H., and his wife would care for M.A.H. when he was working.
{¶6} The guardian ad litem stated that Father‘s home was “appropriate,” and had “the necessities available for the child and a place for the child to sleep.” He stated further that Father had unsuccessfully attempted to arrange visitation with M.A.H. with Mother. He stated that Mother worked for Continental Airlines and traveled periodically to Cleveland so her son from her previous marriage could visit with her ex-husband, and he did not know why Mother did not also bring M.A.H. with her to allow Father visitation with her. “Based on that,” the guardian ad litem recommended that custody be granted to Father.
{¶7} The magistrate then rendered a decision finding that it was in the best interests of the child that Father be designated as the residential parent and legal custodian of M.A.H. On December 3, 2011, when Mother arrived at Cleveland Hopkins International Airport from New Jersey, Father took possession of M.A.H. with the assistance of the Cleveland Police Department. On December 5, 2011, the trial court entered a judgment adopting the magistrate‘s decision.
{¶9} Attached to Mother‘s motion for relief from judgment was the sworn affidavit of her mother, Nilda Landrau, in which Ms. Landrau averred that she lived at 22650 Lenox Drive in Fairview Park, Ohio. Ms. Landrau further averred that in mid-April 2011, pursuant to the terms of Mother‘s divorce decree, Mother, Mother‘s son from her previous marriage, and M.A.H., vacated their home at 4805 Ardmore Avenue, Cleveland, Ohio and moved in with her. Ms. Landrau averred that they stayed with her through April 30, 2011.
{¶10} Also attached to Mother‘s motion was a copy of a notice of intent to relocate filed by Mother on April 29, 2011, in the Cuyahoga County Domestic Relations Court in Case No. DR-09324834. The notice advised the domestic relations court that Mother, who had been designated the residential parent and legal custodian of her son, would be relocating to 70 Briarwood Court, Howell, New Jersey.
{¶11} Also attached to Mother‘s motion was the sworn affidavit of Brian Cains. Mr. Cains averred that he lives at 70 Briarwood Court, Howell, New Jersey, and that Mother and her two children lived with him from May 1, 2011 through August 31, 2011.
{¶12} Mother also filed on December 7, 2011, a motion to dismiss Father‘s application to determine custody. Mother argued that she was never personally served with the application and, therefore, the application should be dismissed pursuant to
{¶13} Father did not oppose Mother‘s motion for relief from judgment, motion for emergency hearing, or motion to dismiss. Nevertheless, on December 12, 2011, the magistrate denied the motion for relief from judgment without a hearing, finding that after “review[ing] the pleadings and the court file, good cause is not shown for the
{¶14} Mother now appeals from the trial court‘s judgment overruling her objections and affirming the magistrate‘s decision denying her motion for relief from judgment.
II. Analysis
{¶15} It is axiomatic that a court lacks jurisdiction to enter judgment against a defendant where effective service of process has not been made upon the defendant and the defendant has not appeared in the case or otherwise waived service. In re McAllister, 10th Dist. No. 94APF07-1100, 1996 WL 361387 (Feb. 16, 1995). If service of process has not been accomplished, or otherwise waived, any judgment rendered is void. Westmoreland v. Valley Homes Mut. Hous. Corp., 42 Ohio St.2d 291, 293, 328 N.E.2d 406 (1975).
{¶16} In her first assignment of error, Mother contends that the trial court erred in denying her motion for relief from judgment. Specifically, she argues that the court should have vacated its judgment granting legal custody of M.A.H. to Father because service of process was never perfected and, therefore, the trial court was without jurisdiction to enter judgment upon Father‘s application to determine custody.
{¶18} Although Mother asserted that she brought her motion pursuant to
{¶19} Proper service of process is an essential component in the acquisition of personal jurisdiction over a party. State ex rel. Strothers v. Madden, 8th Dist. No. 74547, 1998 WL 741909 (Oct. 22, 1998), citing Holm v. Smilowitz, 83 Ohio App.3d 757, 615
{¶20} A party‘s affidavit, if unchallenged, is sufficient to overcome the presumption of proper service. Rafalski v. Oates, 17 Ohio App.3d 65, 477 N.E.2d 1212 (8th Dist.1984); Clark v. Glassman, 8th Dist. No. 82578, 2003-Ohio-466, ¶ 30; Carter, supra. Where a party seeking a motion to vacate makes an uncontradicted sworn statement that she never received service of a complaint, she is entitled to have judgment against her vacated even if her opponent complied with
{¶21} Here, Mother‘s sworn affidavit averred that she never received Father‘s application for custody. Father produced no evidence in response to demonstrate that Mother actually was served. Because there was no evidence to refute Mother‘s claim that she never received the application to determine custody, the presumption of service is rebutted.
{¶23} Without proper service, the court never obtained jurisdiction over Mother. Accordingly, its judgment designating Father legal custodian of M.A.H. is void and the trial court abused its discretion in denying Mother‘s motion to vacate its judgment.
{¶24} Finally, we note that as of December 3, 2011, when Father took possession of M.A.H., the trial court had not yet adopted the magistrate‘s decision awarding legal custody of M.A.H. to Father. Magistrates’ decisions are not final judgments until adopted by the trial court.
{¶25} Appellant‘s first assignment of error is sustained. The judgment granting custody of M.A.H. to Father and designating him the residential parent and legal custodian is hereby vacated.
{¶26} In her second assignment of error, Mother argues that the trial court erred in denying the motion to dismiss under
If a service of the summons and complaint 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 .
{¶27} Father did not complete service within six months of filing the application to determine custody. He also failed to respond to Mother‘s motion to dismiss and thereby failed to demonstrate good cause as to why service was not completed within six months. Nevertheless, Mother‘s argument that the application should have been dismissed under
{¶28} The second assignment of error is therefore overruled.
{¶29} Reversed and remanded with instructions to the trial court to vacate its judgment granting legal custody of M.A.H. to Father and return M.A.H. to Mother without delay.
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 be sent to said court to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to
KATHLEEN ANN KEOUGH, JUDGE
JAMES J. SWEENEY, P.J., and
LARRY A. JONES, SR., J., CONCUR