Etter v. Etter

2024 Ohio 1805

• Court: Ohio Court of Appeals
• Decided: May 10, 2024
• Docket: 2024-CA-2
• Status: Published

Opinion

[Cite as Etter v. Etter, 2024-Ohio-1805.]

IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT MIAMI COUNTY

CANDACE LYNN ETTER nka TURNER : : Appellee : C.A. No. 2024-CA-2 : v. : Trial Court Case No. 21 DR 30 : MICHAEL LARRY ETTER : (Appeal from Common Pleas Court- : Domestic Relations) Appellant : :

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OPINION

Rendered on May 10, 2024

JAY M. LOPEZ & CHARLYNE L. ADAMS, Attorneys for Appellant

ANDREW H. JOHNSTON, Attorney for Appellee

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HUFFMAN, J.

{¶ 1} Defendant-Appellant Michael Larry Etter (“Etter”) appeals from the trial

court’s adoption of the magistrate’s decision denying his motion for relief from judgment.

For the following reasons, we affirm the judgment of the trial court.

I. Factual and Procedural Background

{¶ 2} On February 4, 2021, Plaintiff-Appellee Candace Lynn Etter nka Turner

(“Turner”) filed a complaint for divorce against Etter. Service of process was issued to -2-

FedEx for delivery to the parties’ shared residence.

{¶ 3} Thereafter, Etter did not answer or otherwise plead in response to the divorce

complaint. The magistrate sent a hearing notice for an uncontested divorce to both parties

on March 12, 2021, and later set the matter for a video hearing on April 8, 2021. Etter did

not participate in the divorce hearing. On April 14, 2021, the magistrate issued a decision,

and a final judgment and decree of divorce was entered on May 27, 2021.

{¶ 4} On January 30, 2023, more than 20 months later, Etter filed a motion for relief

from judgment. He claimed that he had not been properly served with service of process

and therefore argued improper service and lack of personal jurisdiction. The magistrate

set Etter’s motion seeking relief from judgment for a hearing, and both parties testified at

the hearing.

{¶ 5} According to Turner’s hearing testimony, on February 9, 2021, Turner

verbally accepted the service of process packet from a FedEx driver at the parties’ shared

address. However, Turner did not sign for the packet because of the social distancing

restrictions in place during the COVID-19 pandemic, and the FedEx driver signed for the

packet on the electronic pad instead. The return of service stated that service was “Signed

for by A. Etter,” and service was deemed completed.

{¶ 6} Turner also testified that, upon her receipt of the service packet, she placed

it on the kitchen counter and gave it to Etter later that day, but Etter refused to open it.

The next day, Etter opened the packet and reviewed the documents after Turner asked

him to discuss the divorce, at which time Etter became very angry. Turner also testified

that she and Etter had discussed the divorce hearing and division of property and that -3-

she had suggested that Etter go with her to her attorney’s office for additional dialogue,

but Etter refused. Turner testified that, after the magistrate issued the decision related to

the divorce, she and Etter went over it together and discussed splitting their assets and

household items, opening bank accounts, and moving out of the shared residence. After

the entry of the final decree, Etter moved out of the marital residence and into an

apartment on June 6, 2021. Turner testified that she was unaware until 2023 that Etter

was claiming that he had not been properly served.

{¶ 7} Etter testified that he was not at the residence when FedEx delivered the

service packet and that, although Turner told him about the packet, he received his first

notice of the divorce with the entry of the final decree. Etter also testified that he did not

seek relief from judgment until after he had received only a small portion of the pictures

and memorabilia that he had requested from Turner and after he learned that Turner was

remarrying. Although Etter acknowledged that the parties had discussed divorcing before

2021, Etter stated that he never had received the divorce complaint or the uncontested

divorce hearing notice.

{¶ 8} On August 7, 2023, the magistrate overruled Etter’s motion for relief from

judgment. In overruling Etter’s motion, the magistrate noted that the evidence before the

court was limited to the testimony of the parties. The magistrate found that Turner’s

testimony had been clear in establishing that she placed the service packet on the kitchen

counter and that Etter opened it the next day. The magistrate also found that Etter had

delivered a “somewhat confusing, occasionally incoherent statement about his

relationship to the documents” sent by the court and unconvincingly denied knowing -4-

anything about the divorce until after the magistrate’s decision had been issued. The

magistrate stated that Turner’s testimony was more credible than Etter’s and, thus, Etter

failed to satisfy his burden of proof concerning failure of service.

{¶ 9} On August 14, 2023, Etter filed objections to the magistrate’s decision. On

December 19, 2023, the trial court overruled Etter’s objections. It stated that Turner had

complied with Civ.R. 4.1, which allows for service by commercial carrier like FedEx. The

trial court also noted that Turner credibly testified concerning her discussion with Etter

regarding their divorce and that Etter opened the service packet and studied its contents

the day after it was delivered to the parties’ shared residence. Under these

circumstances, the trial court found that Turner was entitled to the presumption that

service was valid, and, thus, Etter had the burden to rebut the presumption of proper

service.

{¶ 10} In finding that Etter had failed to meet his burden, the trial court gave

deference to the magistrate’s determination that Etter had “delivered a somewhat

confusing, occasionally incoherent statement about his relationship to the documents

sent by the court and denied knowing anything about the divorce until after the

magistrate’s [first] decision [rendered on Apr. 14, 2021] or the decree.” (Brackets sic.)

The trial court found that the magistrate’s credibility determination was supported by

Etter’s incomprehensible response when asked when he became aware of the service

packet: “I became aware when it was delivered when it was questioned that a package

from the court was delivered to my name.” The trial court observed that Etter’s own

attorney even had to seek clarification as to when Etter first received notice of the divorce -5-

filing, to which Etter disjointedly replied, “What I’m trying to say is that I had information

that she had told me about a package - - - I’m trying to remember because I don’t have

the best memory of when I received this information but what it was - - - I did receive the

final divorce decree. It didn’t say there were filings of when I’d been served.” The trial

court further emphasized that Etter had admitted to being told by Turner that she wanted

a divorce prior to 2021 and to receiving the final decree in May 2021, yet he did not seek

counsel or file for relief from judgment for improper service until January 2023.

{¶ 11} The trial court ultimately determined that Turner’s testimony had been more

credible than Etter’s. The court also concluded that service of process was presumed

when the packet was received by any person at Etter’s residence, including Turner, and

that the recipient was not required to be Etter or an agent of Etter. In so concluding, the

trial court found that Etter had failed to rebut the presumption of proper service and,

consequently, it overruled Etter’s objections and adopted the magistrate’s decision.

{¶ 12} Etter appeals.

II. Assignments of Error

{¶ 13} Etter asserts the following two assignments of error:

THE TRIAL COURT ERRED IN FINDING THAT DEFENDANT WAS

PROPERLY SERVED WITH SUMMONS FOR THE DIVORCE

PROCEEDINGS.

THE TRIAL COURT ABUSED ITS DISCRETION BY ISSUING A

DECISION THAT WAS INCONSISTENT WITH THE FACTS, TESTIMONY

AND EVIDENCE PRESENTED AT THE TRIAL. -6-

{¶ 14} We review a trial court’s adoption of a magistrate’s decision under an

abuse-of-discretion standard. State Farm Mut. Auto. Ins. Co. v. Fox, 2d Dist. Montgomery

No. 22725, 2009-Ohio-1965, ¶ 11. “Claims of trial court error must be based on the

actions taken by the trial court itself, rather than the magistrate’s findings or proposed

decision.” Id. “An abuse of discretion is more than an error of law or of judgment; it implies

that the trial court’s attitude is unreasonable, arbitrary, or unconscionable.” Blakemore v.

Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983).

{¶ 15} In his first assignment of error, Etter contends that the trial court erred when

it found that Etter was properly served with the divorce summons, and, thus, Etter was

not entitled to relief from judgment. Etter asserts that, although Turner accepted service

for Etter when he was away from home on February 9, 2021, service was not perfected

on Etter regardless of whether Turner informed Etter of the summons or provided the

service packet to Etter. We disagree.

{¶ 16} “Service of process must be made in a manner reasonably calculated to

apprise interested parties of the action and to afford them an opportunity to respond.”

Carter-Jones Lumber Co. v. Meyers, 2d Dist. Clark No. 2005-CA-97, 2006-Ohio-5380,

¶ 10, citing Akron-Canton Regional Airport Auth. v. Swinehart, 62 Ohio St.2d 403, 406,

406 N.E.2d 811 (1980), quoting Mullane v. Central Hanover Bank & Trust Co., 339 U.S.

306, 314, 70 S.Ct. 652, 94 L.Ed. 865 (1950). “The plaintiff bears the burden of obtaining

proper service on a defendant.” Id., citing Cincinnati Ins. Co. v. Emge, 124 Ohio App.3d

61, 63, 705 N.E.2d 408 (1st Dist.1997). When the plaintiff follows the civil rules governing

service of process, “courts presume that service is proper unless the defendant rebuts -7-

this presumption with sufficient evidence of non-service.” Id.

{¶ 17} Civ.R. 4.1 governs methods of service, wherein Civ.R. 4.1(A)(1)(b) provides

for service by commercial carrier:

Unless the serving party furnishes written instructions to the clerk

that service be made pursuant to Civ.R. 4.1(A)(1)(a), the clerk may make

service of any process by a commercial carrier service utilizing any form of

delivery requiring a signed receipt. The clerk shall deliver a copy of the

process and complaint or other document to be served to a commercial

carrier service for delivery at the address set forth in the caption or at the

address set forth in written instructions furnished to the clerk, with

instructions to the carrier to return a signed receipt showing to whom

delivered, date of delivery, and address where delivered.

“Valid service of process is presumed when the envelope is received by any person at

the defendant’s residence; the recipient need not be the defendant or an agent of the

defendant.” (Emphasis added.) Burns at ¶ 14, citing Castellano v. Kosydar, 42 Ohio St.2d

107, 110, 326 N.E.2d 686 (1975); Ohio Civ. Rights Comm. v. First Am. Properties, Inc.,

113 Ohio App.3d 233, 237, 680 N.E.2d 725 (2d Dist.1996).

{¶ 18} “Where service of process is not properly made pursuant to Civ.R. 4 et seq.,

the court lacks jurisdiction to consider the complaint and any judgment on that complaint

is void ab initio.” Meyers at ¶ 10, citing Rite Rug Co., Inc. v. Wilson, 106 Ohio App.3d 59,

62, 665 N.E.2d 260 (10th Dist.1995). “Because a court has the inherent authority to

vacate a void judgment, a party who asserts that the trial court lacks personal jurisdiction -8-

over him due to a faulty service of process does not need to satisfy the requirements of

Civ.R. 60(B)” for a motion for relief form judgment. Id., citing United Home Fed. v.

Rhonehouse, 76 Ohio App.3d 115, 123, 601 N.E.2d 138 (6th Dist. 1991). In other words,

a Civ.R. 60(B) motion for relief from judgment “is not necessary when a court renders a

judgment without proper service of the summons, because, under those circumstances,

the court lacks personal jurisdiction, and its judgment is void.” LVNV Funding, Inc. v.

Burns, 2d Dist. Clark No. 2013-CA-67, 2014-Ohio-732, ¶ 13, citing State ex rel. Ballard v.

O'Donnell, 50 Ohio St.3d 182, 553 N.E.2d 650 (1990); Midland Funding L.L.C. v. Dixon,

2d Dist. Greene No. 2013-CA-27, 2013-Ohio-5052, ¶ 8. Thus, in this case, Etter was only

required to establish the fact of non-service to warrant vacating the judgment.

{¶ 19} On appeal, Etter claims that he did not have notice of the divorce action

until after the entry of the final decree of divorce. However, it is undisputed that Turner

accepted service for Etter at their shared address when he was apparently still at work

on February 9, 2021. Turner testified that she placed the service packet on the kitchen

counter and that the parties discussed the contents of the packet the next day after Etter

opened it, reviewed the documents, and became angry. Etter also admitted that Turner

advised him that she wanted a divorce, that they discussed the division of their property,

and that he received the final decree in May 2021.

{¶ 20} Under these circumstances, we conclude that the magistrate and trial court

reasonably determined that service by commercial carrier to the address that Etter shared

with Turner was reasonably calculated to reach Etter, as the parties continued to live

together, and that proper service had been perfected at that address when Turner -9-

accepted service for Etter. Valid service of process was presumed when the packet was

received by any person at Etter’s residence, including Turner, because the recipient was

not required to be Etter or an agent of Etter. Moreover, the only evidence that Etter did

not receive proper service in February 2021 was his own self-serving testimony. The trial

court’s evaluation of the lack of credibility in Etter’s testimony was further supported by

his statement that he chose to challenge service of process 20 months after the decree

of divorce was entered, and only then when he learned that Turner was remarrying and

did not believe he had received his share of the family photographs and personal property.

Thus, because Etter failed to rebut the presumption of proper service, we cannot say that

the trial court abused its discretion in adopting the magistrate’s decision denying Etter’s

motion for relief from judgment. Etter’s first assignment of error is overruled.

{¶ 21} In his second assignment of error, Etter contends that the trial court abused

its discretion when it issued a decision that was inconsistent with the facts, testimony,

and evidence presented at the hearing on the motion for relief from judgment. Etter

asserts that the magistrate provided little explanation as to why Turner was more credible

and then argues that the trial court abused its discretion when it deferred to the

magistrate’s opinion on credibility.

{¶ 22} A magistrate is “a subordinate officer of the trial court, not an independent

officer performing a separate function.” Mandelbaum v. Mandelbaum, 2d Dist.

Montgomery No. 21817, 2007-Ohio-6138, ¶ 102, quoting Wingard v. Wingard, 2d Dist.

Greene No. 2005-CA-09, 2005-Ohio-7066, ¶ 17. When reviewing a magistrate’s decision,

the trial court conducts a de novo review and “should not adopt the magistrate’s factual -10-

findings unless it agrees with them.” Id., citing Crosby v. McWilliams, 2d Dist. Montgomery

No. 19856, 2003-Ohio-6063, ¶ 33-34. Still, “where a magistrate comments on credibility

and the trial court does not take additional evidence as is authorized under Civ. R.

53(D)(4)(b), ‘the judgment of the magistrate on issues of credibility is, absent other

evidence, the last word on the issue for all practical purposes.’ ” Mandelbaum at ¶ 103,

quoting Quick v. Kwiatkowski, 2d Dist. Montgomery No. 18620, 2001 WL 871406, *4

(Aug. 3, 2001); see MacConnell v. Nellis, 2d Dist. Montgomery No. 19924, 2004-Ohio-

170, ¶ 16, fn. 1 (indicating that a trial court does not improperly defer to the magistrate

where it gives “some deference to the magistrate’s credibility determinations” but also

independently considers the evidence before it).

{¶ 23} We do not agree that the trial court simply deferred to the magistrate without

assessing the testimony and evidence. Indeed, the trial court gave deference to the

magistrate’s determination that Etter delivered “a somewhat confusing, occasionally

incoherent statement about his relationship to the documents sent by the court and

denied knowing anything about the divorce until after the magistrate’s [first] decision

[rendered on Apr. 14, 2021] or the decree.” However, while the trial court gave some

deference to the magistrate’s credibility determinations, the court also independently

considered the evidence before it, finding that the magistrate’s credibility findings were

supported by Etter’s incomprehensible response when asked about when he became

aware of the packet. The trial court also observed that Etter’s own attorney had to seek

clarification as to when Etter first received notice of the divorce filing due to Etter’s

confusing responses. Additionally, as noted in the trial court’s judgment, Turner testified -11-

that she had placed the service packet on the kitchen counter and, by the following day,

Etter had opened the packet and studied its contents while the parties discussed it. Etter

did not seek counsel or relief from judgment until January 2023, approximately 20 months

after Etter had moved out of the shared residence and the parties’ marital assets had

been divided. Further still, Etter admittedly waited and did not seek relief from judgment

until after he had received only a small portion of the pictures and memorabilia that he

requested from Turner and after he learned that Turner was remarrying.

{¶ 24} Despite Etter’s argument that the trial court simply gave deference to the

magistrate’s credibility findings, the trial court made its own determination that his version

of events was not credible. Upon our review of the record, it is evident that the trial court

considered the evidence before it, and thus we cannot say that the trial court abused its

discretion when it adopted the magistrate’s decision denying Etter’s motion for relief from

judgment based on the facts, testimony, and evidence at the hearing. Etter’s second

assignment of error is overruled.

III. Conclusion

{¶ 25} Having overruled Etter’s assignments of error, the judgment of the trial court

is affirmed.

WELBAUM, J. and TUCKER, J., concur.