Shell v. HigginsShell v. Higgins
KYLE J. LENNEN, Atty. Reg. No. 0085726, 120 West Second Street, Suite 2150, Dayton, Ohio 45402
Attorney for Plaintiff-Appellee
RICHARD P. ARTHUR, Atty. Reg. No. 0033580, 1634 South Smithville Road, Dayton, Ohio 45410
Attorney for Defendant-Appellant
Facts and Course of Proceedings
{¶ 2} On September 26, 2016, Higgins‘s wife, Abbie M. Shell, filed a complaint for divorce against Higgins. Shell instructed the trial court to serve the complaint and summons by certified mail to Higgins at 321 Bissell Avenue, Oil City, Pennsylvania, 16301. On October 17, 2016, the complaint and summons were returned as “unclaimed” and “unable to forward.”
{¶ 3} Since service of the complaint and summons failed, on October 21, 2017, Shell once again instructed the trial court to serve the complaint and summons by certified mail to Higgins at the Bissell Avenue address. On December 13, 2016, the trial court received notice that service at that address had failed again, as the complaint and summons were returned as “not deliverable as addressed” and “unable to forward.”
{¶ 4} Following the two failed attempts at serving Higgins, on December 14, 2016, the trial court issued a written notice advising the parties that a pretrial hearing would be
{¶ 5} After the pretrial hearing, on January 5, 2017, the trial court issued a written notice advising the parties that a final divorce hearing would be held on March 14, 2017. Once again, in an effort to serve Higgins with the hearing notice, the trial court sent the notice to the Bissell Avenue address by regular mail.
{¶ 6} A month after the hearing notice was issued, Shell instructed the trial court to serve the complaint and summons by certified mail to Higgins at 10340 Milton Potsdam Road, West Milton, Ohio, 45383. On February 15, 2017, the trial court received a certified mailer signed by Higgins showing that service of the complaint and summons was perfected at that address on February 13, 2017.
{¶ 7} The summons served on Higgins advised that he was required to serve Shell with an answer to the divorce complaint within 28 days, and that failing to do so would result in a default judgment being taken against him. Higgins never filed an answer and never made an appearance during the divorce proceedings. As a result, the final divorce hearing proceeded as scheduled on March 14, 2017, without Higgins in attendance.
{¶ 8} A month after the final hearing, on April 17, 2017, the trial court issued a final judgment and decree of divorce based on the information provided by Shell. It is from that judgment Higgins now appeals, raising a single assignment of error for our review.
Assignment of Error
{¶ 9} As his sole assignment of error, Higgins claims that he was not afforded due
{¶ 10} Due process of law is guaranteed by the
{¶ 11}
Notice of Trial. In all cases where there is no counsel of record for the adverse party, the court shall give the adverse party notice of the trial upon the merits. The notice shall be made by regular mail to the party‘s last known address, and shall be mailed at least seven days prior to the commencement of trial.
{¶ 12} The notice requirement in
{¶ 13}
{¶ 14} In this case, the divorce action was not commenced until Higgins was served with the complaint and summons at the Milton Potsdam Road address on February 13, 2017. Before this, the trial court was without jurisdiction to take any substantive action regarding the case. Upon commencement of the case, Higgins‘s last known address was at Milton Potsdam Road.
{¶ 15} The trial court also violated
Hearing. No action for divorce, annulment, or legal separation may be heard and decided until the expiration of forty-two days after the service of process or twenty-eight days after the last publication of notice of the complaint, and no action for divorce, annulment, or legal separation shall be heard and
decided earlier than twenty-eight days after the service of a counterclaim, which under this rule may be designated a cross-complaint, unless the plaintiff files a written waiver of the twenty-eight day period.
{¶ 16} “[T]he 42-day rule under
{¶ 17} Here, Higgins was served with process on February 13, 2017, and the final divorce hearing was held 29 days later on March 14, 2017. Therefore, the trial court failed to comply with the 42-day rule in
{¶ 18} Moreover, since
{¶ 19} Having found that notice of the final divorce hearing was never mailed to Higgins‘s last known address as required by
Conclusion
{¶ 20} The judgment of the trial court is reversed and the matter is remanded for a new hearing.
FROELICH, J. and TUCKER, J., concur.
Copies mailed to:
Kyle J. Lennen
Richard P. Arthur
Hon. Jonathan P. Hein