Pulice v. CollinsPulice v. Collins
Lead Opinion
{¶ 2} The parties in this case, appellant, Michael Collins, and appellee, Denise Collins, n.k.a. Pulice, were divorced in 1992. As a result of errors by CSEA and a change of custody of the minor children from Denise to Michael, Denise had received overpayments in child support from Michael. In 2002, Michael filed a motion with the trial court, properly served on Denise in compliance with
{¶ 3} In the motion for reimbursement, Michael listed Denise as "Denise Collins" rather than by her new name of "Denise Pulice." Nearly five months after the court had entered judgment, Michael filed a motion requesting the court for a nunc pro tunc order changing the caption of the order to reflect Denise's new surname of Pulice. Michael requested service of this motion by certified mail from the Clerk of Courts, in compliance with
{¶ 4} In her motion for relief from judgment, Denise pointed out to the trial court, first, that she was never served with Michael's motion, and, second, that the trial court had misapplied
Upon review of [Denise's] motion for relief from judgment, the Court finds that the order of August 21, 2002 * * * should be vacated. It appears that [Denise] was never served through the Clerk of Courts with this motion. As such the order is void abinitio for failure of service.
The Court additionally notes that a 60(A) motion is limited to correcting a clerical error. The nunc pro tunc in question appears to be attempting to correct a substantive pleading error in that [Denise's] current name was never set forth on any of the earlier pleadings.
Judgment Entry of June 21, 2005.
{¶ 5} Michael filed a motion for reconsideration of the court's ruling vacating its nunc pro tunc order. The court denied that motion, which order Michael now appeals, stating one assignment of error:
I. THE TRIAL COURT ERRED IN GRANTING PLAINTIFF-APPELLEE'S MOTION FOR RELIEF FROM JUDGMENT.
{¶ 6} The trial court stated two reasons for vacating the nunc pro tunc order: failure of service on plaintiff and misapplication of
Failure of Service
{¶ 7} First, the court noted that Denise "was never served through the Clerk of Courts with this motion. As such the order is void ab initio for failure of service." Judgment entry of June 21, 2005.
{¶ 8} Domestic relations cases have different service requirements than general civil cases. In general cases,
Except as otherwise provided in these rules, * * * every pleading subsequent to the original complaint * * * every paper relating to discovery required to be served upon a party unless the court otherwise orders, every written motion other than one which may be heard ex parte, and every written notice, appearance, demand, offer of judgment, and similar paper shall be served upon each of the parties. Service is not required on parties in default for failure to appear except that pleadings asserting new or additional claims for relief or for additional damages against them shall be served upon them in the manner provided for service of summons in
(B) Service: how made. — Whenever under these rules service is required or permitted to be made upon a party who is represented by an attorney of record in the proceedings, the service shallbe made upon the attorney unless service upon the party is ordered by the court. (Emphasis added.)
{¶ 9}
The continuing jurisdiction of the court shall be invoked by motion filed in the original action, notice of which shall beserved in the manner provided for the service of process under
{¶ 10} The reason for this requirement is practical. In a domestic relations case the trial court retains jurisdiction over certain issues, including child support and visitation, even though disputes in these areas may not arise for months or years after the initial divorce decree is entered. Once the decree is final, it is unlikely that the parties would stay in contact with their attorneys.
{¶ 11} In other words, regular civil cases are "transactional" in nature: that is, once the matter has been decided, apart from any appeal, the case is "dead." Domestic relations cases, on the other hand, are "relational" in nature: even after the original case is ended by the divorce decree, the relationships between parents are not ended just because the marriage is ended. They still must interact in matters concerning their mutual children, and the case law demonstrates that these disputes are common. Resolving these disputes between the parties requires the trial court to retain jurisdiction over the parties and those restricted issues.
{¶ 12} Because years can pass between the final decree and changed circumstances motivating a motion for a change in custody or support, therefore, practicality and due process require that the motion be served upon the original party, in the same manner as a newly filed case. Service other than according to
{¶ 13} As the Third Appellate District noted in a similar case:
It is clear from the language of the rule that in order to invoke the continuing jurisdiction of the court, service must be made as provided by
Hansen v. Hansen (1985),
{¶ 14} "Where a party fails to meet the requirements of service of process under
{¶ 15} In the case at bar, it is undisputed that Denise did not receive a copy of the motion for nunc pro tunc order to change the caption. The return of certified mail as undeliverable is in the file, and the docket does not reflect, nor does Michael claim, that he requested subsequent service by ordinary mail. Further, due process issues exist: because the original judgment against her was only in the name "Collins," and her deed to her home is in the name "Pulice," Denise did not receive notice that her home was subject to the judgment. Also, Denise's new husband, Mr. Pulice, has a dower interest in the home and had a right to notice of any judgment that could affect his property interest.
{¶ 16} Because Michael failed under
{¶ 17} The second reason the trial court gave for vacating the nunc pro tunc entry was "[t]he nunc pro tunc in question appears to be attempting to correct a substantive pleading error in that [Denise's] current name was never set forth on any of the earlier pleadings." The court ruled, therefore,
{¶ 18} "It is axiomatic that a court has the power to correct a clerical error pursuant to
{¶ 19} Michael argues that the name change was appropriate as a correction pursuant to
Clerical mistakes in judgments, orders or other parts of the record and errors therein arising from oversight or omission may be corrected by the court at any time on its own initiative or on the motion of any party and after such notice, if any, as the court orders. During the pendency of an appeal, such mistakes may be so corrected before the appeal is docketed in the appellate court, and thereafter while the appeal is pending may be so corrected with leave of the appellate court.
{¶ 20} To be appropriate for correction under
{¶ 21} In the case at bar, the change of name on the judgment entry finding Denise obliged to Michael for the overpayment did not change the nature or effect of the court's order. It would not have violated
{¶ 22} The analysis does not, however, end there. As part of his reason for vacating the nunc pro tunc order, the judge stated: "[t]he nunc pro tunc in question appears to attempt to correct a substantive pleading error in that [Denise's] current name was never set forth on any of the earlier pleadings." Judgment entry of June 21, 2005. What information the court worked from is pertinent to the issue of whether a
When the judge acted upon his own recollection, or upon memorandum found in the records which displayed beyond question that an entry previously made had been entered by mistake of the clerk, or that the error was clerical in its character, the court can proceed in the exercise of its discretion to correct the same without previous notice being given to any of the parties affected, but, where the court has to rely upon extraneous evidence in order to determine whether or not a clerical error has been made in the journal of the court, proper practice would require that the parties affected thereby should be duly notified, and that no action should be taken by the court until both sides have had an opportunity to be present to present their facts and arguments, and likewise to take exceptions to any action of the court which they deem objectionable.
Ruby v. Wolf (1931),
{¶ 23} Defendant cites to the Seventh Appellate District's opinion in Bobb Forest Products, Inc. v. Morbark Industries,Inc (2002),
{¶ 24} Morbark differs from the case at bar, however, because in Morbark the plaintiff had corrected his complaint to state the correct name of the defendant. In the case at bar, Michael served Denise under the name of "Collins." Nothing in the record reflects any correction to reflect her new name until the 2005 nunc pro tunc motion, which postdates the judgment entry against Denise by at least two years.
{¶ 25} Further, any nunc pro tunc entry a court makes to change its entry "must be grounded on personal recollection of the court, or upon records or minutes or the testimony of witnesses having knowledge thereof." Ruby v. Wolf (1931),
{¶ 26} When it vacated the nunc pro tunc order, therefore, the trial court correctly ruled that Denise had not been properly served and that Denise's "current name was never set forth on any of the earlier pleadings." Accordingly, this assignment of error is overruled.
Affirmed.
It is ordered that appellee recover of appellant her 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 Domestic Relations Court 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.
Dyke, P.J., Concurs in Judgment Only; Corrigan, J., Dissents (with separate opinion)
Dissenting Opinion
{¶ 27} I would reverse the court's decision to grant relief from judgment under
{¶ 28} First, Denise Collins did not file her motion for relief from judgment in a timely manner. She asserted surprise under
{¶ 29} Second, the majority undermines the purpose of a nunc pro tunc entry under
{¶ 30} Denise's attempts to block the name change appear to be nothing more than a tactic designed either to delay execution of the judgment against her or to harass Michael Collins.