[Cite as C.L.A. v. D.P.M., 2024-Ohio-836.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
C.L.A., :
Plaintiff-Appellee, : No. 112831 v. :
D.P.M., :
Defendant-Appellant. :
JOURNAL ENTRY AND OPINION
JUDGMENT: DISMISSED IN PART, REVERSED IN PART, AND REMANDED RELEASED AND JOURNALIZED: March 7, 2024
Civil Appeal from the Cuyahoga County, Court of Common Pleas Domestic Relations Division Case No. DR-15-358274
Appearances:
Stafford Law Co., L.P.A., Joseph G. Stafford, Nicole A. Cruz, and Kelley R. Tauring, for appellee.
Costanzo & Lazzaro, PPL and Raymond J. Costanzo, for appellant.
MARY EILEEN KILBANE, P.J.:
Defendant-appellant D.P.M. (“Husband”) appeals the trial court’s
May 11, 2023 and May 25, 2023 judgment entries that granted plaintiff-appellee
C.L.A.’s (“Wife”) motion to dismiss Husband’s postdecree motions for lack of service. For the following reasons, we dismiss in part, reverse in part, and remand
for further proceedings consistent with this opinion.
Factual and Procedural History
On April 18, 1997, Wife and Husband married and during the
marriage had one child, A.M. (d.o.b. 10/23/2006). On July 18, 2017, the trial court
executed a divorce decree that dissolved the parties’ marriage and addressed child
and spousal support. Pursuant to the divorce decree, Husband was ordered to pay
$1,000 per month for child support and $104 per month for cash medical support
as well as $4,500 for 78 months in payment of spousal support.
On February 19, 2020, the Office of Child Support Services (“OCSS”)
issued an Administrative Adjustment Recommendation (“OCSS
Recommendation”) as to Husband’s monthly child support and cash medical
support obligations for A.M. The OCSS Recommendation indicated that Husband
should pay $817.88 and $20.07 for child support and cash medical support,
respectively. The OCSS Recommendation also stated that the trial court had granted
a deviation under the existing order, but OCSS could not determine the monetary or
percentage of the deviation.
On March 4, 2020, Husband filed a motion for court hearing or
judicial review (“motion for judicial review”), pursuant to R.C. 3119.60, so that the
trial court could determine whether the revised child support calculated by the OCSS
was an appropriate amount and whether the child support order should be revised. Husband served the March 4, 2020 motion by regular mail on the OCSS. Husband
did not serve the motion on Wife.
On May 18, 2020, Wife’s counsel filed a notice of appearance, and on
May 19, 2020, Wife’s counsel issued a subpoena duces tecum on Husband’s
employer seeking wage and employee benefits information.
On December 23, 2020, Husband filed three postdecree motions: a
motion to determine arrearages (“arrearages motion”), a motion to modify child and
spousal support (“support modification motion”), and a motion to show cause and
demand attorney fees (“show cause motion”) (collectively “December 23, 2020
motions”). The arrearages motion stated the OCSS miscalculated the spousal and
child support arrearages that had accrued since the trial court’s July 18, 2017 order,
including a miscalculation of temporary support. The support modification motion
sought to decrease Husband’s obligations for child and spousal support pursuant to
the July 18, 2017 court order. The show cause motion requested that Husband have
visitation with A.M. and that Wife refinance her residence to remove Husband’s
name from the mortgage.
On January 6, 2021, Wife filed briefs in opposition to Husband’s
December 23, 2020 motions, arguing the merits of the motions. Wife did not argue
that Husband failed to properly serve her with copies of the December 23, 2020
motions. Wife filed numerous motions between January and November 2021.
On November 29, 2021, Wife filed a motion to dismiss alleging that
Husband’s motion for judicial review filed on March 4, 2020, and his December 23, 2020 motions were not properly served upon Wife. Within the motion to dismiss,
Wife stated the issue of lack of service relative to the March 4, 2024 motion was
raised at a hearing on or about November 15, 2020.
On November 29, 2021, Husband filed a brief in opposition to Wife’s
motion to dismiss. In his brief, Husband conceded he did not perfect service of the
motions. Husband argued that from March 4, 2020, through October 28, 2021, the
parties had conducted discovery on the pending motions; defended the motions on
their merits; obtained continuances with the court; participated in more than 15
pretrial hearings and settlement conferences; and set at least two trial dates.
Husband argued that Wife waived her claim of lack of service of process by
voluntarily submitting to the court’s jurisdiction.
On December 1, 2021, Husband requested service of process on three
motions — the motion for judicial review, the arrearages motion, and the support
modification motion — by certified mail at Wife’s home address. The U.S. Postal
Service assigned receipt number 46149786 to Husband’s request for service of
process.
On December 1, 2021, under a separate request for service, Husband’s
show cause motion was sent by certified mail to Wife’s home address and assigned
U.S. Postal Service receipt number 46125837. On December 2, 2021, the U.S. Postal
Service delivered Husband’s show cause motion, referenced as receipt number
46125837, to the wrong address. The motion was delivered to the correct street but
the incorrect street number. The record also indicates that Husband’s three motions — the motion
for judicial review, the arrearages motion, and the support modification motion —
served under receipt number 46149786 were delivered by certified mail on
December 8, 2021, to Wife’s correct address.
Almost one year later on the date of trial — November 22, 2022 —
Wife orally renewed her motion to dismiss for failure of proper service. Wife argued
that Husband’s postdecree motions were required to be served pursuant to Civ.R. 4
through 4.6 to invoke the court’s jurisdiction. Specifically, Wife argued that the
motions did not contain proofs of service and were never served on her personally.
Wife conceded that service may have been attempted in December 2021, but the
motions were delivered to an incorrect address. Husband argued that Wife waived
service, and the docket reflects service of his motions was perfected on Wife, via
certified mail, on December 8, 2021.
The magistrate acknowledged there was an attempt at service, but her
review of the docket indicated that all of Husband’s postdecree motions were
delivered to an incorrect address. The magistrate granted Wife’s motion to dismiss
on the basis that service of the motions was not perfected, and Wife withdrew her
pending motions.
On November 25, 2022, Husband filed four proofs of service with the
trial court. Attached to each proof of service was a copy of Husband’s four motions
that allegedly lacked service. Each proof of service identified the date the attached
motion was originally filed electronically with the clerk of courts and stated that at the time of the original filing, the motion was sent to all counsel of record by
operation of the court’s electronic filing system.
On December 21, 2022, a magistrate’s decision was filed, and it
granted Wife’s oral motion to dismiss Husband’s postdecree motions. The decision
also ordered the adoption of the OCSS recommendation in a separate order and
denied all other procedural motions filed by Wife as moot. On January 3, 2023,
Husband filed objections to the magistrate’s decision as well as supplemental
objections on February 2, 2023. Husband’s objections disputed the magistrate’s
decision to grant Wife’s motion to dismiss due to lack of service.
On May 11, 2023, the trial court issued a judgment entry that
overruled Husband’s objections to the magistrate’s decision and adopted the
magistrate’s decision. On May 25, 2023, the trial court issued a judgment entry that
adopted the magistrate’s December 21, 2022 decision in its entirety; granted Wife’s
motion to dismiss; dismissed Husband’s motions because of the failure of service
upon Wife; ordered the OCSS Recommendation be adopted by separate order; and
ordered Wife’s pending motions either withdrawn or denied as moot.
On June 7, 2023, Husband filed a timely notice of appeal presenting
three assignments of error:
Assignment of Error I: The trial court committed reversible error in failing to find [Wife] voluntarily submitted herself to the court’s jurisdiction and waived the Civ.R. 75(J) requirement of issuance and service of process.
Assignment of Error II: The trial court committed reversible error in dismissing [Husband’s] motions under Civ.R. 4(E). Assignment of Error III: The trial court committed reversible error in finding that a motion for court hearing emanating from an administrative child support review recommendation is subject to Civ.R. 75(J) service of process requirement.
On November 3, 2023, this court, sua sponte, directed the parties to submit
supplemental briefs addressing whether the trial court’s orders constituted final,
appealable orders. The parties provided supplemental briefing and this issue is now
ripe for review.
Legal Analysis
I. Final, Appealable Order
Before reviewing the merits of this case, we must first consider
whether we have jurisdiction to hear this appeal. An appellate court’s review is
limited to final judgments and orders. Cooney v. Radostitz, 8th Dist. Cuyahoga No.
110009, 2021-Ohio-2521, ¶ 12. “If an order is not final and appealable, then an
appellate court has no jurisdiction to review the matter and the appeal must be
dismissed.” Assn. of Cleveland Firefighters, #93 v. Campbell, 8th Dist. Cuyahoga
No. 84148, 2005-Ohio-1841, ¶ 6. “[T]his court has a duty to examine, sua sponte,
potential deficiencies in jurisdiction.” Cooney at ¶ 12.
We have two issues to address with regard to our jurisdiction over this
case: (1) did the trial court’s failure to adopt the OCSS Recommendation prevent
the May 25, 2023 order from constituting a final, appealable order, and (2) did the
trial court’s dismissal of Husband’s postdecree motions constitute a final,
appealable order under R.C. 2505.02. OCSS Recommendation
The trial court’s May 25, 2023 order (1) adopted the magistrate’s
December 21, 2022 decision in its entirety; (2) granted Wife’s motion to dismiss
thereby dismissing Husband’s postdecree motions; (3) ordered the adoption of the
OCSS Recommendation by separate order; (4) recognized several of Wife’s motions
were withdrawn; and (5) denied as moot several of Wife’s motions.
On June 7, 2023, Husband filed his notice of appeal from the court’s
judgment. At that time, the trial court had not issued a separate order adopting the
OCSS Recommendation even though the May 25, 2023 order stated the court would
do so. Additionally, the OCSS Recommendation was not filed on the trial court’s
docket but was attached to Husband’s motion for judicial review. For these reasons,
this court sua sponte requested supplemental briefing on whether the absence of a
court order adopting the OCSS Recommendation resulted in an unresolved matter
that required further action and, therefore, rendered the May 25, 2023 order not a
final, appealable order.
Husband analogizes the OCSS Recommendation to a qualified
domestic relations order (“QDRO”) and argues neither vehicle requires further
adjudication on the merits of the case but are simply ministerial tools used in
furtherance of an order. A “QDRO implements a trial court’s decision of how a
pension is to be divided incident to divorce or dissolution.” Wilson v. Wilson, 116
Ohio St.3d 268, 2007-Ohio-6056, 878 N.E.2d 16, ¶ 7. Wife argues that any
judgment that leaves issues unresolved is not a final, appealable order. Wife also argues that consistent with the holding in M.E.D. v. P.K., 8th Dist. Cuyahoga No.
112070, 2023-Ohio-3471, the current appeal should be dismissed for a lack of a final,
appealable order.
This court has found that
a QDRO is not an independent judgment entry but rather an enforcement mechanism pertaining to the trial court’s previous judgment entry of divorce.
E.O.W. v. L.M.W., 2021-Ohio-2040, 174 N.E.3d 414, ¶ 35 (8th Dist.), citing
Ballinger v. Ballinger, 8th Dist. Cuyahoga No. 105180, 2017-Ohio-7077, ¶ 6. A
QDRO is “merely a tool used to execute the divorce decree.” Wilson at ¶ 19.
Similarly, we find here that the trial court intended to adopt the OCSS
Recommendation as proposed without any modifications, and the trial court’s
failure to adopt the OCSS Recommendation under a separate order did not prevent
the issuance of a final, appealable order.
R.C. 2505.02
The types of orders that qualify as final, appealable orders are
delineated in R.C. 2505.02(B):
An order is a final order that may be reviewed, affirmed, modified, or reversed, with or without retrial, when it is one of the following: (1) An order that affects a substantial right in an action that in effect determines the action and prevents a judgment; (2) An order that affects a substantial right made in a special proceeding or upon a summary application in an action after judgment; (3) An order that vacates or sets aside a judgment or grants a new trial; (4) An order that grants or denies a provisional remedy and to which both of the following apply: (a) The order in effect determines the action with respect to the provisional remedy and prevents a judgment in the action in favor of the appealing party with respect to the provisional remedy. (b) The appealing party would not be afforded a meaningful or effective remedy by an appeal following final judgment as to all proceedings, issues, claims, and parties in the action. (5) An order that determines that an action may or may not be maintained as a class action; (6) An order determining the constitutionality of any changes to the Revised Code made by Am. Sub. S.B. 281 of the 124th general assembly, * * * or any changes made by Sub. S.B. 80 of the 125th general assembly, ***; (7) An order in an appropriation proceeding that may be appealed pursuant to division (B)(3) of section 163.09 of the Revised Code.
R.C. 2505.02(B).
A “substantial right” is “a right that the United States Constitution,
the Ohio Constitution, a statute, the common law, or a rule of procedure entitles a
person to enforce or protect.” R.C. 2505.02(A)(1). A “special proceeding” is “an
action or proceeding that is specially created by statute and that prior to 1853 was
not denoted as an action at law or a suit in equity.” R.C. 2505.02(A)(2).
A divorce action is a special proceeding. Thomasson v. Thomasson,
153 Ohio St.3d 398, 2018-Ohio-2417, 106 N.E.3d 1239, ¶ 12, citing Wilhelm-
Kissinger v. Kissinger, 129 Ohio St.3d 90, 2011-Ohio-2317, 950 N.E.2d 516, ¶ 6. A
motion to modify child support may qualify as a special proceeding pursuant to R.C.
2505.02(B)(2). Cooney, 8th Dist. Cuyahoga No. 110009, 2021-Ohio-2521, at ¶ 22;
In re K.A.V., 2d Dist. Montgomery No. 26312, 2014-Ohio-5575, ¶ 13; Worch v.
Worch, 2d Dist. Darke No. 98 CA 1477, 1999 Ohio App. LEXIS 2589, 8-9 (June 11,
1999), citing Koroshazi v. Koroshazi, 110 Ohio App.3d 637, 640, 674 N.E.2d 1266 (9th Dist.1996) (“Motions to modify child support are special proceedings.”); see
Jennings v. Hall, 12th Dist. Butler No. CA2012-12-259, 2013-Ohio-1731, ¶ 6
(“Matters within the juvenile court setting child support are special proceedings”).
We also find a motion for judicial review filed pursuant to R.C. 3119.60, such as
Husband’s March 4, 2020 motion, is a proceeding created by statute and qualifies
as a special proceeding.
In addition to showing the motions were made in a special
proceeding, Husband must demonstrate that the trial court’s May 11, 2023 and May
25, 2023 orders affected Husband’s substantial rights. This court has found that
[a]n order affects a substantial right if, in the absence of an immediate appeal, one of the parties would be foreclosed from appropriate relief in the future. See, e.g., Crown Servs. v. Miami Valley Paper Tube Co., 162 Ohio St. 3d 564, 2020-Ohio-4409, 166 N.E.3d 1115, ¶ 16 (“An order affects a substantial right ‘only if an immediate appeal is necessary to protect the right effectively.’”), quoting Wilhelm-Kissinger v. Kissinger, 129 Ohio St. 3d 90, 2011-Ohio-2317, 950 N.E.2d 516, ¶ 7, citing Bell v. Mt. Sinai Med. Ctr., 67 Ohio St.3d 60, 63, 616 N.E.2d 181 (1993).
Cooney at ¶ 23.
We will evaluate Husband’s postdecree motions separately to address
whether the trial court’s dismissal of each created a final, appealable order. In his
appeal, Husband argues that the trial court erred when it dismissed his motion for
judicial review, arrearages motion, and support modification motion. Husband’s
appeal does not address his show cause motion, and thus, we will not analyze the
dismissal of this motion for a final, appealable order.
A. Motion for Judicial Review Husband sought judicial review of an OCSS Recommendation to
modify the parties’ child support order. OCSS Recommendations are governed by
R.C. 3119.60. According to R.C. 3119.63, after Husband received a copy of the OCSS
Recommendation, he could request a court hearing or administrative hearing on the
issue, but either request was required to be filed within 14 days after Husband
received the OCSS Recommendation. The OCSS issued its recommendation on
February 19, 2020, and Husband filed his motion for judicial hearing on March 3,
2020, within the 14-day time requirement. No hearing was held on the motion
because the trial court dismissed Husband’s motion for judicial hearing for lack of
service. If Husband is unable to appeal the dismissal of his motion for judicial
review at this time, the trial court will adopt the OCSS Recommendation in its
entirety and the modification will relate back to the date the OCSS Recommendation
was sent. R.C. 3119.772. Husband will be prevented from arguing to the court his
objections to the OCSS Recommendation. R.C. 3119.60 offers no method by which
Husband can request a subsequent hearing. Thus, Husband, in the absence of the
current appeal, would be denied a substantial right because he would be foreclosed
from presenting his arguments against the OCSS Recommendation.
We find that the facts here are unique where Husband filed a motion
for a judicial hearing under R.C. 3119.60; the trial court did not conduct a hearing
as requested by Husband; and Husband is now outside the time parameters of the
statute to request another hearing on this issue. The instant matter is a case where
the trial court’s dismissal otherwise than on the merits will prevent Husband from refiling his motion for judicial review. Thus, we find that the trial court’s May 11,
2023 and May 25, 2023 orders resulted in a final, appealable order on Husband’s
motion for judicial review.
B. Arrearages Motion
Husband filed an arrearages motion requesting that the trial court
determine his arrearages in child and spousal support following the July 18, 2017
court order.
Orders affect a substantial right only if they have “immediate
consequences” or “if not immediately appealable, would foreclose appropriate relief
in the future.” Ossai-Charles v. Charles, 188 Ohio App.3d 503, 2010-Ohio-3558,
935 N.E.2d 944, ¶ 19 (12th Dist.), quoting Walburn v. Dunlap, 121 Ohio St.3d 373,
2009-Ohio-1221, ¶ 24, 904 N.E.2d 863, and Southside Community Dev. Corp. v.
Levin, 116 Ohio St.3d 1209, 2007-Ohio-6665, 878 N.E.2d 1048, ¶ 7.
Here, the trial court’s order on the arrearages motion did not have
immediate consequences for Husband. The trial court made no determination
whether arrearages exist. The dismissal of this motion did not foreclose Husband
from refiling this motion so that he can attempt to obtain appropriate relief in the
future. The trial court’s dismissal of Husband’s arrearages motion did not affect a
substantial right and, therefore, does not amount to a final, appealable order.
C. Support Modification Motion
In his support modification motion, Husband seeks a decrease in his
child and spousal support obligations that were issued on July 18, 2017. Husband argues on appeal that a dismissal of this motion will foreclose his substantial right
to have his spousal and child support reduced retroactively to the initial filing date
of December 23, 2020.
“As a general rule, because of the time it takes to modify child support
orders, an order modifying child support order may be made retroactive to the date
the motion to modify child support was filed unless special circumstances dictate
otherwise.” In re J.C., 8th Dist. Cuyahoga Nos. 109747 and 109748, 2021-Ohio-
2451, ¶ 12, quoting Phelps v. Saffian, 8th Dist. Cuyahoga No. 106475, 2018-Ohio-
4329, ¶ 37.
Wife cites to M.E.D., 8th Dist. Cuyahoga No. 112070, 2023-Ohio-
3471, in support of her position that Husband’s modified support modification
motion is not a final, appealable order. In M.E.D., Father filed a postdecree motion
to modify a parenting order and perfected service of the motion. Father then filed a
second postdecree motion to modify child support (“child support motion”) without
serving Wife under Loc.R. 19 of the Court of Common Pleas of Cuyahoga County,
Domestic Relations Division (“Loc.R. 19”) and Civ.R. 75(J) (collectively “service
rules”). At issue in M.E.D. was whether Father was required to follow the service
rules for the child support motion where the court’s continuing jurisdiction had
already been triggered by the initial motion to modify a parenting order. Father in
M.E.D. served the child support motion on Wife’s counsel rather than Wife, which
was not in compliance with the service rules. This court found in M.E.D. that where
Father did not invoke the trial court’s continuing jurisdiction through compliance with the service rules and Father had the opportunity to refile his motion upon
dismissal of the case, there was no final, appealable order.
M.E.D. is distinguishable from the instant case. Father in M.E.D.
failed to serve Mother properly with the motion to modify support and, therefore,
did not invoke the trial court’s continuing jurisdiction. Mother timely raised the
issue of failed service within three months of Father filing his motion to modify
support. There is also the matter of whether Father’s compliance with the service
rules on his first postdecree motion impacted the service necessary on his second
postdecree motion.
Here, as is demonstrated by the record and discussed below in our
analysis of Husband’s second assignment of error, Husband’s support modification
motion was properly served on Wife thereby invoking the trial court’s continuing
jurisdiction. Further, Wife’s motion to dismiss for lack of service was filed in
response to Husband’s postdecree motions originally filed on March 4, 2020, and
December 23, 2020. Wife did not file her motion to dismiss until November 29,
2021. From January 2021 through November 2021, Wife actively participated in
litigation of the postdecree motions. Wife states in her motion to dismiss that the
issue of service relative to the March 4. 2020 motion was previously raised in
November 2020, but there is no record of such a discussion nor any filing by Wife
prior to November 2021. Thus, we find the facts and holding of M.E.D. are
distinguishable from the instant matter. While Husband has the ability to refile his support modification
motion, any award will relate back to the new filing date rather than the original
filing date of December 23, 2020. Husband would be prevented from benefitting
from a potential modification between the period of December 23, 2020, and the
new filing date. For this reason, we find that the dismissal of Husband’s support
modification motion would impact a significant right of Husband, and the dismissal
of this motion was a final, appealable order. See In re K.A.V., 2d Dist. Montgomery
No. 26312, 2014-Ohio-5575 at ¶ 11 (Although court’s dismissal of Father’s motion to
modify child support did not prevent him from refiling the motion, Father would be
entitled to a support reduction retroactive only to the date of the new filing; the loss
of the reduction retroactively to the date of his initial filing qualified as a substantial
right under R.C. 2505.02.); Smith v. Smith, 5th Dist. Fairfield No. 2008 CA 00030,
2009-Ohio-3978, ¶ 41 (Trial court’s judgment entry involuntarily dismissing a
motion to modify child support is a final, appealable order because the “order
modifying child support cannot be retroactive beyond the date that a motion for
modification of child support is made.”).
In summary, we find that the trial court’s May 11 and May 25, 2020
orders resulted in final, appealable orders on Husband’s motion for judicial review
and support modification motion. We find further that the trial court orders were
not final, appealable orders on Husband’s arrearages motion. We will address the
merits of Husband’s appeal as it relates to his motion for judicial review and support
modification motion. II. Assignments of Error
For ease of discussion, we will address Husband’s assignments of
error out of order.
A. Third Assignment of Error
In his third assignment of error, Husband argues that the trial court
committed reversible error when it determined his motion for judicial review filed
pursuant to R.C. 3119.63 was subject to Civ.R. 75(J) service requirements and
dismissed the motion for lack of personal jurisdiction. Wife argues Husband was
required to follow the service requirements of Loc.R. 19 and Civ.R. 75.
A trial court’s dismissal for lack of personal jurisdiction is a question
of law subject to a de novo review. Kauffman Racing Equip., L.L.C. v. Roberts, 126
Ohio St.3d 81, 2010-Ohio-2551, 930 N.E.2d 784, ¶ 27.
Generally, after the resolution of divorce proceedings that include
child and spousal support, the trial court’s continuing jurisdiction must be invoked
for postdecree motions through service of process. “When a party fails to invoke the
continuing jurisdiction of the trial court by not meeting the requirements for service
of process, the court lacks personal jurisdiction to enter judgment upon the motion.”
Sweeney v. Sweeney, 2016-Ohio-1384, 63 N.E.3d 542, ¶ 24 (8th Dist.).
One manner to invoke a trial court’s continuing jurisdiction on a
postdecree motion for modification of custody, support, or alimony is through
service of process under Civ.R. 75(J). Hansen v. Hansen, 21 Ohio App.3d 216, 217,
486 N.E.2d 1252 (3d Dist.1985). But that is not the only way to invoke the court’s jurisdiction. R.C. 3119.60 also independently imparts jurisdiction on the trial court
to resolve motions such as Husband’s motion for judicial review. See Dragon v.
Dragon, 8th Dist. Cuyahoga No. 104019, 2016-Ohio-7304, ¶ 7 (where the statutory
framework delineated by R.C. 3119.96, rather than Civ.R. 75(J), invoked the trial
court’s continuing jurisdiction). R.C. 3119.60 has no service requirement.
Jurisdiction is predicated on a party filing a motion for a court hearing no later than
14 days after the party received an OCSS Recommendation. Once a request for a
court hearing is filed, the court is required to conduct a hearing in compliance with
R.C. 3119.66. Further, the court must provide notice of the hearing to the parties
and the child support enforcement agency (“CSEA”) at least 30 days prior to the
hearing. R.C. 3119.67. Thus, any reference to a trial court’s continuing jurisdiction
under Civ.R. 75(J) in relation to an OCSS Recommendation generated under R.C.
3119.60 is misplaced.
Accordingly, Husband invoked the trial court’s continuing
jurisdiction when he filed his motion for judicial review in accordance with R.C.
3119.63. The trial court’s determination that the motion for judicial review was
subject to Civ.R. 75(J) and the subsequent dismissal of Husband’s motion for
judicial review was erroneous. For these reasons, we sustain Husband’s third
assignment of error.
B. Second Assignment of Error
In his second assignment of error, Husband argues that the trial court
committed reversible error when it dismissed his support modification motion pursuant to Civ.R. 4(E).1 Specifically, Husband argues that service of his support
modification motion was perfected within the time required under Civ.R. 3(A) and
prior to the court’s ruling on Wife’s motion to dismiss. Husband also argues that a
dismissal pursuant to Civ.R. 4(E) will foreclose his substantial right to have his
spousal and child support reduced retroactively to the initial filing date of December
23, 2020.
We review a trial court’s dismissal due to lack of proper service for an
abuse of discretion. Troxel v. Mabe, 12th Dist. Clermont No. CA2008-02-018,
2008-Ohio-5420, ¶ 8. The term abuse of discretion “implies that the court’s attitude
is unreasonable, arbitrary or unconscionable.” Blakemore v. Blakemore, 5 Ohio
St.3d 217, 219, 450 N.E.2d 1140 (1983). An abuse of discretion occurs when a court
exercises its judgment in an unwarranted way regarding a matter over which it has
discretionary authority. Johnson v. Abdullah, 166 Ohio St.3d 427, 2021-Ohio-3304,
187 N.E.3d 463, ¶ 35.
To invoke the domestic relations court’s continuing jurisdiction,
Husband needed to file his support modification motion pursuant to Civ.R. 75(J).
Civ.R. 75(J) reads:
1 In regard to Husband’s first assignment of error, appellant’s and appellee’s briefs
address the filing of Husband’s motion for judicial review, arrearages motion, and support modification motion. Husband’s second assignment of error discusses Husband’s arrearages motion and support modification motion. Since we find that there is no final, appealable order on Husband’s arrearages motion, and our discussion on Husband’s third assignment of error is dispositive on Husband’s motion for judicial review, we will address only the support modification motion during our analysis of the first and second assignments of error. Continuing jurisdiction. The continuing jurisdiction of the court shall be invoked by motion filed in the original action, notice of which shall be served in the manner provided for the service of process under Civ.R. 4 to 4.6. When the continuing jurisdiction of the court is invoked pursuant to this division, the discovery procedures set forth in Civ.R. 26 to 37 shall apply.
Civ.R. 75(J). Pursuant to Civ.R. 4(A), upon the filing of a complaint — or Husband’s
support modification motion — the clerk shall issue a summons for service upon
each defendant. The document shall be served by either certified or express mail,
unless otherwise permitted in the civil rules, as evidenced by “return receipt signed
by any person.” Civ.R. 4(A)(1)(a).
On December 23, 2020, Husband filed his support modification
motion with the trial court but failed to serve the motion in accordance with Civ.R.
75 and Civ. R. 4 through 4.6. Instead, Husband simply filed the motion through the
court’s electronic filing system.
On November 29, 2021, almost one year after Husband filed his
support modification motion, Wife filed a motion to dismiss Husband’s motion due
to its failure to comply with the service rules. Wife conceded during oral argument
that she did not recognize a potential service issue until that later date. On the same
day Wife filed her motion to dismiss, Husband filed a brief in opposition to Wife’s
motion to dismiss, arguing that Wife waived service of process by conducting
discovery, receiving continuances, and defending the merits of Husband’s motions.
Husband further argued that from March 4, 2020 — when his first postdecree
motion was filed — through October 28, 2021, the parties had conducted discovery on motions filed by both Husband and Wife, participated in more than 15 pretrials
and settlement conferences, and set two trial dates.
Two days later, on December 1, 2021, Husband filed with the court a
request for service that instructed the clerk of courts to serve the support
modification motion on Wife, by certified mail, at her home address. The U.S. Postal
Service assigned receipt number 46149786 to the service of the motion.
The record indicates that on December 15, 2021, Husband’s motion
served under receipt number 46149786 was delivered by certified mail on December
8, 2021, to Wife’s correct address. The receipt information provided by the U.S.
Postal Service and included in the record shows the signature of the recipient and
the address of the recipient. The signature of the recipient is illegible, and we are
not able to ascertain the name of the signatory. The address of the recipient is
difficult to decipher, but the street numbers are legible — which reflect Wife’s correct
address — and the receipt states the item was delivered in the Wife’s correct city and
state. Husband’s support modification motion was not delivered to an incorrect
address.2
2 The trial court erred when it found that Husband served the support modification
motion to the incorrect address. It appears that the trial court confused service of Husband’s support modification motion with service of his show cause motion; the show cause motion is not subject to this appeal. A thorough review of the record indicates that on November 22, 2021, Husband requested service of his show cause motion on Wife. On December 1, 2021, Husband’s show cause motion was sent by certified mail to Wife’s correct address, and that mailing was assigned U.S. Postal Service receipt number 46125837. U.S. Postal Service receipt number 46125837 was delivered on December 2, 2021, to the wrong street address rather than Wife’s address. The show cause motion was delivered to the incorrect address. According to Civ.R. 4.1(A), “service of process may be made by
certified mail ‘evidenced by return receipt signed by any person * * *.’” Belovich v.
Crowley, 8th Dist. Cuyahoga No. 109523, 2021-Ohio-2039, ¶ 31, quoting Matteo v.
Principe, 8th Dist. Cuyahoga No. 92894, 2010-Ohio-1204, ¶ 10, quoting Civ.R.
4.1(A). Certified mail must be sent to an address “reasonably calculated to cause
service to reach the defendant.” Ohio Civ. Rights Comm. v. First Am. Properties,
113 Ohio App.3d 233, 237, 680 N.E.2d 725 (2d Dist.1996). “‘There is a rebuttable
presumption of proper service when the civil rules governing service are followed.’”
Belovich at ¶ 31, quoting Roscoe v. Delfraino, 7th Dist. Mahoning No. 19 MA 0038,
2019-Ohio-5253, ¶ 25, citing Draghin v. Issa, 8th Dist. Cuyahoga No. 98890, 2013-
Ohio-1898, ¶ 10. This presumption of proper service is rebuttable by sufficient
evidence. Rafalski v. Oates, 17 Ohio App.3d 65, 66, 477 N.E.2d 1212 (8th Dist.1984).
Here, the return receipt shows that certified mail service of Husband’s
support modification motion was sent to Wife’s home address, signed, and returned.
Under Civ.R. 4.1(A), service was presumptively completed. See Castellano v.
Kosydar, 42 Ohio St.2d 107, 110, 326 N.E.2d 686 (1975) (“[C]ertified mail, under
the Rules of Civil Procedure, no longer requires actual service upon the party
receiving the notice but is effective upon certified delivery.”). Wife introduced no
evidence to rebut proper service, but argued erroneously that the motion was served
to the wrong address.
As to his support modification motion, Husband satisfied the service
rules. However, Husband did not serve the motion within six months of its filing and, therefore, the support modification motion could be subject to dismissal
pursuant to Civ.R. 4(E) that reads:
Summons; Time limit for service. If a service of the summons and complaint [support modification motion] 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 to Rule 4.5.
Civ.R. 4(E).
Civ.R. 4(E) states a trial court will dismiss an action if service of the
summons and complaint is not made upon the defendant within six months of filing
the complaint and the party filing the complaint does not show good cause as to why
service was not perfected in that time frame. In his supplemental objections filed
on February 2, 2023, Husband argued service of the motion was delayed for good
cause. Husband argued that upon Wife’s responding to the motion on January 6,
2021, he believed Wife had subjected herself to the court’s jurisdiction. Husband
also noted that Wife’s January 2021 motions argued the merits of the case but did
not question service of the motion. The parties actively litigated the case from
January 2021 through November 2023, when the trial court dismissed the case for
lack of proper service. Husband also argued that service was perfected on December
8, 2021, and the delay in obtaining service did not interfere with the progression of
the case. Husband argued dismissal of the matter for lack of service would be unjust. The record reflects that the first written claim of lack of jurisdiction
was made on November 29, 2021, when Wife filed her motion to dismiss due to lack
of service. On that same day, Husband filed a brief in opposition and argued that
Wife waived service by her continued participation in litigation of his motions. Just
a few days later, on December 1, 2021, Husband filed a request for service in an
attempt to perfect service of the support modification motion on Wife. And
Husband successfully perfected service of the motion on December 8, 2021. The
trial court granted Wife’s motion to dismiss due to lack of service, and thereby
dismissed Husband’s support modification motion in May 2023, over a year after
Husband perfected service.
As this court stated previously,
[w]e do not believe that Civ.R. 4(E) is meant to be used as a vehicle to dismiss cases once service has been properly perfected, but rather is intended to apply to those situations where there is no service and where the plaintiff has been dilatory in attempting to obtain service on a defendant.
Briggs v. Glenbeigh Health Servs., 8th Dist. Cuyahoga Nos. 77395 and 77665, 2000
Ohio App. LEXIS 5587, 11 (Nov. 30, 2000). “Like all procedural rules, Civ.R. 4(E)
must be ‘construed and applied to effect just results by eliminating delay,
unnecessary expense and all other impediments to the expeditious administration
of justice.’” Carter v. Univ. Park Dev. Corp., 2017-Ohio-5795, 94 N.E.3d 1019, ¶ 22
(9th Dist.), quoting Civ.R. 1(B); see Gibson v. Williams, 11th Dist. Ashtabula No.
2023-A-0026, 2023-Ohio-3760, ¶ 16 (The trial court found “there was little
justification for dismissal inasmuch as Gibson had shown cause for not obtaining service within six months of filing the Complaint and had shown diligence in
obtaining service.”).
By the time the trial court ruled on Wife’s motion to dismiss, Husband
had perfected service of the support modification motion. We find Husband’s timely
response to Wife’s motion to dismiss and his reasoning for good cause, coupled with
Husband’s successful service of his support modification motion just days after Wife
filed her motion to dismiss, demonstrate just cause for Husband’s delay in
perfecting service. Additionally, adopting the reasoning behind Civ.R. 4(E) and this
court’s reluctance to dismiss an action where service has been perfected, we
determine that the trial court abused its discretion when it found Husband did not
perfect service of the support modification motion and dismissed that motion.
Therefore, we sustain Husband’s second assignment of error. Further, our finding
on the second assignment of error renders Husband’s first assignment of error moot.
Judgment is dismissed in part, reversed in part, and remanded for
further proceedings consistent with this opinion. As to Husband’s second and third
assignments of error, the dismissals of Husband’s support modification motion and
motion for judicial review, respectively, are reversed and remanded for further
proceedings consistent with this opinion. As to Husband’s arrearages motion, we
conclude that the trial court’s May 11, 2023 and May 25, 2023 orders dismissing the
motion for lack of service were not final, appealable orders and, therefore, dismiss
that portion of Husband’s appeal relative to that motion.
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 issue out of this court directing the
common pleas court, domestic relations division, 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.
MARY EILEEN KILBANE, PRESIDING JUDGE
EMANUELLA D. GROVES, J., and MICHAEL JOHN RYAN, J., CONCUR