Young v. YoungYoung v. Young
Morris K. Young, Marion, Ohio, Appellant, pro se.
Robert C. Anderson, Ironton, Ohio, for Appellee.
McFarland, J.:
{¶1} Appellant Morris K. Young appeals the decision of the Lawrence County Court of Common Pleas denying his motion for relief from judgment. Appellant argued the trial court should have vacated his divorce decree because 1) he was not served with the complaint; and, 2) his wife misled him into believing she had withdrawn the complaint for divorce. Having reviewed the record, we find the trial court‘s decision denying Appellant‘s motion was not an abuse of discretion and we affirm its judgment.
{¶2} Appellant‘s wife Diana Young (“Young“) filed a complaint for divorce on February 1, 1989, while Appellant was incarcerated in the Lawrence County Jail. A Lawrence County Sheriff‘s deputy personally served a copy of the complaint on Appellant the same day.
{¶3} On March 29, 1989, finding Appellant in default for failing to answer the complaint for divorce, the trial court entered its divorce decree. The decree awarded all marital assets to Young, including the marital debt. In exchange for Young having to pay the marital debts, the court awarded her the proceeds of Appellant‘s pension and his two life insurance policies.
{¶4} Appellant claims Young visited him in 1989 while he was incarcerated and told him she had “put a stop to the divorce.” Appellant claims in 1995 he attempted to add Young to his list of approved visitors while he was still incarcerated, but prison staff informed him it was improper to list Young as his “wife” because they were divorced and instead Appellant had to list her as a “friend.” Appellant claims this is the first he knew that Young was not his wife and she had not actually withdrawn her complaint for divorce.
{¶5} Despite the original divorce decree granting Young the proceeds of Appellant‘s pension, despite allegedly learning in 1995 that Young had indeed divorced him, and despite attempting to amend a qualified domestic relations order
{¶6} The court set the matter for a hearing on May 25, 2011, and on May 26, 2011, the magistrate recommended the court deny Appellant‘s motion. Appellant did not file any objections to the magistrate‘s recommendation. The court then adopted the magistrate‘s decision and denied Appellant‘s motion on August 8, 2011. Appellant timely appealed the trial court‘s decision.
ASSIGNMENT OF ERROR
I. “TRIAL COURT IMPROPERLY DISMISSED RELIEF”
A. Standard of Review
{¶7} “Our standard of review regarding a trial court‘s
B. Legal Analysis
On motion and upon such terms as are just, the court may relieve a party or his legal representative from a final judgment, order or proceeding for the following reasons: (1) mistake, inadvertence, surprise or excusable neglect; (2) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59(B); (3) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation or other misconduct of an adverse party; (4) the judgment has been satisfied,
released or discharged, or a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective application; or (5) any other reason justifying relief from the judgment.
To prevail on a
{¶8} A defendant may raise the issue of insufficient service of process through a
{¶9} Here, the trial court did not abuse its discretion in denying Appellant‘s
{¶10} First, the complaint accurately listed Appellant‘s address on February 1, 1989 as the Lawrence County Jail. This is the address at which a sheriff‘s deputy had personally served a copy of the complaint upon Appellant, as evidenced by the signed return of service.
{¶11} Second, although Appellant claimed he had no notice of the complaint, he admitted in his motion and in his affidavit of April 20, 2011 that he
{¶12} Regarding Appellant‘s argument that Young committed fraud by telling him she had withdrawn the complaint for divorce, Appellant‘s argument is untimely. Assuming Appellant‘s representation of the facts is true, he knew in 1995 that the complaint for divorce had not been withdrawn and the divorce had proceeded to completion. If Appellant is arguing fraud under
{¶13} Accordingly, we find the trial court did not abuse its discretion when it denied Appellant‘s
JUDGMENT AFFIRMED.
It is ordered that the JUDGMENT BE AFFIRMED and that the Appellee recover of Appellant 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 Lawrence County Common Pleas Court to carry this judgment into execution.
Any stay previously granted by this Court is hereby terminated as of the date of this entry.
A certified copy of this entry shall constitute the mandate pursuant to
Exceptions.
Harsha, J. and Kline, J.: Concur in Judgment and Opinion.
For the Court,
BY:
Matthew W. McFarland, Judge
NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a final judgment entry and the time period for further appeal commences from the date of filing with the clerk.