Fancher v. Fancher

455 N.E.2d 1344, 8 Ohio App. 3d 79, 8 Ohio B. 111, 1982 WL 4801, 1982 Ohio App. LEXIS 11213
CourtOhio Court of Appeals
DecidedNovember 3, 1982
DocketC-820032 and C-820068
StatusPublished
Cited by91 cases

This text of 455 N.E.2d 1344 (Fancher v. Fancher) is published on Counsel Stack Legal Research, covering Ohio Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Fancher v. Fancher, 455 N.E.2d 1344, 8 Ohio App. 3d 79, 8 Ohio B. 111, 1982 WL 4801, 1982 Ohio App. LEXIS 11213 (Ohio Ct. App. 1982).

Opinion

Palmer, J.

On July 20, 1977, the plaintiff-wife filed her complaint for divorce against the defendant-husband, alleging, inter alia, that they were married in 1976 and that she was pregnant. Service by certified mail was had, and a return receipt signed by Ernest Fancher, Jr., was duly entered, all in conformity *80 with Civ. R. 4.1. On April 4, 1978, an “Amended Complaint” was filed alleging the birth of a child, issue of the marriage, on February 20, 1978. Pursuant to plaintiff’s affidavit that defendant’s residence was then unknown, defendant was served the amended complaint by publication. In default of answer or appearance throughout the process, the defendant suffered a decree of divorce to be entered on June 16,1978, finding, inter alia, that one child was born the issue of the marriage, awarding custody and support of $50 per week to plaintiff, and entering a divorce. The defendant failed to pay the support ordered and an entry finding the defendant in contempt for arrearages amounting to $7,600 was entered May 22, 1981. This apparently provoked the defendant’s first response to the process when, on June 30, 1981, he filed a motion for relief from judgment, alleging an absence of jurisdiction over the person of the defendant necessary to provide the fundament for a determination of paternity and for the support order. Following an eviden-tiary hearing, findings of fact and conclusions of law were entered by a referee and were subsequently confirmed by the court over objections from both parties. Specifically, the entry granted the motion for relief from judgment as to the support and alimony awards and set aside the determination of arrearage because of an absence of personal jurisdiction over the defendant, but overruled the motion as to the determination of the child’s paternity. Appeals were timely filed, the wife objecting to the order with respect to relief from support and alimony payments, and the husband cross-appealing from that part of the order confirming the paternity determination.

Our examination of the issues raised in this appeal will best be served by directing attention to the defendant’s challenge to the in personam aspects of the trial court’s initial decree, a challenge which successfully — but erroneously, we conclude — convinced the court to afford Civ. R. 60(B) relief. Thus, the defendant argues, first, that the initial service of process under the July 20,1977 complaint was inadequate to secure jurisdiction over his person because, it is maintained, he did not authorize his brother, Ernest, to receive and receipt the service, nor did he thereby or elsewhere learn of the penden-cy of the.action. 1 Proceeding from this, defendant argues that the only service of process successfully completed was service by publication pursuant to Civ. R. 4.4, a form of service constitutionally inadequate to bottom those aspects of the decree requiring jurisdiction over his person, 2 citing Kulko v. Superior Court of California (1978), 436 U.S. 84, and Sutovich v. Sutovich (1964), 120 Ohio App. 473 [29 O.O.2d 371]. Alternately, defendant argues that even if the initial service by certified mail was sufficient to confer jurisdiction over his person, the filing of an amended complaint asserting new or additional claims for relief required the issuance under Civ. R. 5(A) of new service upon him and could not rest upon the old service. Defendant concludes by asserting that where such new service was by publication only, it was inadequate to support an order imposing a personal obliga *81 tion. We find no merit in these arguments.

We hold, first, that the initial service of process under the July 20, 1977 complaint by certified mail pursuant to Civ. R. 4.1 sufficed to confer jurisdiction over the person of the defendant. As stated in Mitchell v. Mitchell (1980), 64 Ohio St. 2d 49, 51 [18 O.O.3d 254]:

“The Staff Note pertaining to Civ. R. 4.3(B)(1) states that certified mail service under the rule does not require delivery to the defendant only. This court in Castellano v. Kosydar (1975), 42 Ohio St. 2d 107, 110, certiorari denied, 423 U.S. 932, declared that certified mail service under the Rules of Civil Procedure does not require actual service upon the defendant, but is effective upon certified delivery. This court recognized that a need for actual service would be contrary to modern service requirements.
<<* * *
“Accordingly, certified mail service under Civ. R. 4.3(B)(1) is valid where the envelope containing the documents to be served is delivered to a person other than the defendant, at the defendant’s address. The Civil Rules do not require that delivery be restricted to the defendant or to a person authorized by appointment or by law to receive service of process for the defendant. Regional Airport Authority v. Swinehart (1980), 62 Ohio St. 2d 403 [16 O.O.3d 436].”

It is immaterial that the certified mail receipt was signed by the defendant’s brother, and that his brother was not specifically authorized to do so. The envelope was addressed to the defendant’s address and was there received; this is sufficient to comport with the requirements of due process that methods of service be reasonably calculated to reach interested parties. See Mullane v. Central Hanover Bank & Trust Co. (1950), 339 U.S. 306, 314. 3

Having determined that the initial service of process under Civ. R. 4.1(1) was effective, the next question involves the effect of the “amended complaint” filed by the plaintiff following the birth of the child. Specifically, the question arises whether the amended complaint falls within the commandment of Civ. R. 5(A), requiring service upon parties in default where a pleading subsequent to the initial complaint. asserts “new or additional claims for relief.” 4 If the answer to this question is affirmative, then new service *82 was required on the defendant, a service accomplished here in a manner arguably insufficient to confer in personam jurisdiction. If, however, the answer is negative, no new service was required and the actual service by publication assayed by plaintiff was, at worst, supererogatory. We conclude that the latter was, in fact, the case.

This answer to the dispositive question in the instant appeal derives from two sources: first, from an understanding of the new direction appointed by Civ. R. 8 5 with respect to pleadings, and, second, from an analysis of the two pleadings themselves.

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Bluebook (online)
455 N.E.2d 1344, 8 Ohio App. 3d 79, 8 Ohio B. 111, 1982 WL 4801, 1982 Ohio App. LEXIS 11213, Counsel Stack Legal Research, https://law.counselstack.com/opinion/fancher-v-fancher-ohioctapp-1982.