Jardine v. JardineJardine v. Jardine
JAMES KIRKLAND, Atty. Reg. No. 0009731, 10532 Success Lane, Dayton, Ohio 45458 Attorney for Defendant-Appellee
Rendered on the 10th day of August, 2018.
HALL, J.
{¶ 1} Sabastian Jardine appeals from the trial court‘s judgment, which overruled his objection to the magistrate‘s decision, sustained the motion to terminate shared parenting filed by Jezzeth Jardine, his former wife, and awarded custody of their minor child to her. Sabastian‘s sole objection was that he did not find out about the motion until after the magistrate had issued the decision, because he never received service of process. We conclude that the trial court at least should have held a hearing on the matter of service. We reverse and remand for further proceedings.
I. Background
{¶ 2} The parties were divorced on August 19, 2016, and a shared-parenting plan for their minor child was incorporated into the divorce decree. Jezzeth decided to move to Florida. In May 2017, she filed a motion to modify the shared-parenting plan, or alternatively, to terminate the plan and reallocate parental rights and responsibilities.
{¶ 3} In June 2017, a hearing on the motion was held before a magistrate. While Jezzeth was present, Sabastian was not. At the beginning of the hearing, the magistrate noted that Sabastian was not present and asked if anyone had heard from him. Jezzeth told the court that she had not spoken to him about the hearing: “Well, I see him, but I didn‘t talk to him about a hearing because the fighting and stuff start[s] if I talk to him about it.” (Tr. 2). The magistrate proceeded without Sabastian, saying: “Clerk‘s Web[site] shows that the Plaintiff was served on June 15, 2017. It‘s now 13 minutes after the appointed time for the hearing, and he has failed to appear so we‘re going to go forward without his input.” (Tr. 3).
{¶ 4} On September 6, 2017, the magistrate entered a decision sustaining the
{¶ 5} On December 4, 2017, the trial court overruled Sabastian‘s objection. His sole objection was that he was not given notice of the hearing before the magistrate. Sabastian presented an affidavit that said that for over a year he no longer lived at the address in the instructions for service by the clerk. The court found that the record showed that attempted service by certified mail was returned as unclaimed. But the court also found that on June 15, 2017, “S. Jardine” signed for a FedEx delivery of service at the address. So the trial court found that Sabastian had notice of the hearing. The court also noted that he never informed the court of a change of address, as the Standard Order of Parenting Time, incorporated in the shared-parenting plan, required.
{¶ 6} Sabastian appeals.
II. Analysis
{¶ 7} The sole assignment of error alleges that the trial court erred by overruling Sabastian‘s objection.
{¶ 8}
{¶ 9} Here, it could be that
{¶ 10} In appeals of a denial of a motion for relief from judgment,1 we have said that when service is delivered by ordinary mail to an incorrect address, ” ‘the fact that the service of process has been sent to an incorrect address is strong corroboration of the defendant‘s otherwise unsupported and obviously self-serving testimony that he did not receive service of process.’ ” Ohio Civ. Rights Comm. v. First Am. Properties, Inc., 113 Ohio App.3d 233, 238, 680 N.E.2d 725 (2d Dist.1996), quoting Sec. Natl. Bank & Trust Co. v. Murphy, 2d Dist. Clark No. 2552, 1989 WL 80954, *2 (July 20, 1989). When service is delivered by certified mail to the correct address and someone at the address accepted the delivery, we have said that “a defendant‘s affidavit in which he attests that he did not actually receive the process does not necessarily rebut the presumption of valid service.” Id. at 239. But, we continued, “[t]he trial court must hold a hearing on the matter, and the court may properly deny a motion for relief from judgment on the grounds that it does not find the defendant‘s testimony credible and that there is insufficient evidence of nonservice. Actual service need not be proved to contradict the affidavit.” Id.
{¶ 12} Jezzeth did not respond to Sabastian‘s objection in the trial court. But in Appellee‘s brief, her current counsel acknowledges that Jezzeth knew where Sabastian
{¶ 13} We note Jezzeth filed her motion to modify or terminate shared parenting in May 2017, and Sabastian says he did not find out about it until the following September. Yet it appears from the record that they saw each other regularly in the intervening time, when Jezzeth dropped off the child. We question, as alleged by Sabastian, whether Jezzeth never mentioned the pending motion during all that time to gain an advantage in the trial court. But these are not things for us to decide. Given Sabastian‘s claims and the evidence in this case, we think that, at the very least, the trial court should have held an evidentiary hearing on whether Sabastian received service of process.
{¶ 14} Finally, while Sabastian might possibly have avoided this problem by notifying the assignment commissioner of the trial court of his address change as stated in the Standard Order of Parenting time, that he did not is irrelevant to the question of service. In the context of support payments, we have noted that courts typically order the parties to notify the court of any address changes. In re Alexander-Segar, 2d Dist. Montgomery No. 22080, 2008-Ohio-1580, ¶ 13. But “any failure to do that,” we have said, “cannot justify ineffective service of process when the court‘s continuing jurisdiction is invoked, because those service requirements are rooted in a defending party‘s constitutional due process right to notice and an opportunity to be heard.” Id. We think
{¶ 15} The sole assignment of error is sustained.
III. Conclusion
{¶ 16} The trial court‘s judgment is reversed. This matter is remanded for further proceedings.
WELBAUM, P. J., and DONOVAN, J., concur.
Copies mailed to:
H. Charles Wagner
James Kirkland
Hon. Denise L. Cross