Fritz v. Burch

2011 Ohio 299

• Court: Ohio Court of Appeals
• Decided: January 24, 2011
• Docket: 2010CA00072
• Status: Published

Opinion

[Cite as Fritz v. Burch, 2011-Ohio-299.]

COURT OF APPEALS STARK COUNTY, OHIO FIFTH APPELLATE DISTRICT

: JUDGES: MARK FRITZ : Julie A. Edwards, P.J. : William B. Hoffman, J. Plaintiff-Appellee : Patricia A. Delaney, J. : -vs- : Case No. 2010CA00072 : : CARRIE BURCH : OPINION

Defendant-Appellant

CHARACTER OF PROCEEDING: Civil Appeal from Stark County Court of Common Pleas, Domestic Relations Division, Case No. 2008-CV-00781

JUDGMENT: Affirmed

DATE OF JUDGMENT ENTRY: January 24, 2011

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant

MARK FRITZ JOHN JUERGENSEN 119 Star Circle, S.W. John L. Juergensen Law Co., LPA Massillon, Ohio 44646 6545 Market Avenue, North North Canton, Ohio 44721 [Cite as Fritz v. Burch, 2011-Ohio-299.]

Edwards, P.J.

{¶1} Appellant, Carrie Burch, appeals a judgment of the Stark County Common

Pleas Court, Domestic Relations Division, granting legal custody and residential parent

status of her minor daughter to appellee Mark Fritz, the natural father of the child.

STATEMENT OF FACTS AND CASE

{¶2} Appellant gave birth to L.B. on September 6, 2006. On July 14, 2008,

appellee filed a complaint to determine a father and child relationship. Appellee

attempted service on appellant at 1445 School Ave., NE, North Canton. On July 25,

2008, the certified mail green card was signed by appellant’s father, who listed his

address as 6426 Harborview Ave., NW, Canton.

{¶3} On September 9, 2008, appellant moved to quash the certified mail

service which indicated she had been served at her parents’ home. The motion was

denied. Appellee was named the temporary legal custodian of the child. Appellant filed

a notice of appeal, and the appeal was dismissed by this Court for want of a final,

appealable order.

{¶4} The court conducted a trial on appellee’s complaint on March 11, 2010.

Counsel for appellant appeared solely to argue that the court lacked personal

jurisdiction over appellant because she was never properly served with the complaint.

Counsel argued that at the time the complaint was filed, appellee was aware that

appellant was moving from the School Ave. address because her lease was not being

renewed, and, therefore, the School Ave. address at which service was attempted was

not her last known address. Counsel also argued that appellee and his mother knew in

September, 2008, that appellant was living at an address in Bloomington, Indiana, yet Stark County App. Case No. 2010CA00072 3

did not attempt service at that location. Appellant and the child disappeared during the

pendency of the action.

{¶5} The court took evidence on the issue of service. Appellee testified that

when he spoke to appellant in July of 2008, she told him she was moving in with her

parents at the Harborview address because her lease at the School Avenue address

had not been renewed. Appellee’s mother testified that in September, 2008, she

received an anonymous phone call informing her that appellant was living in

Bloomington, Indiana, and giving her an address. Appellee also testified that he

received a telephone call from appellant two days before the hearing in which she

directed death threats at him, told him he would never find her, and stated that there

was “no chance in hell she would ever show her face in Stark County again.” Tr. 10.

{¶6} The court found that service was properly perfected as evidenced by the

certified receipt signed by appellant’s father. After the motion to dismiss was overruled,

counsel for appellant withdrew from the hearing. The court continued with the hearing,

concluding that a parent-child relationship existed between appellee and the child, and

naming appellee the residential parent and legal custodian of the child. Appellant

assigns a single error on appeal:

{¶7} “THE TRIAL COURT LACKED PERSONAL JURISDICTION OVER

DEFENDANT-APPELLANT CARRIE BURCH.”

{¶8} As this Court noted in G.F.S. Leasing & Management Inc. v. Mack (June

27, 2000), Stark App. Nos. 1999CA00391, 1999CA00390, Ohio law clearly provides

that a judgment rendered without personal jurisdiction over a defendant is void ab initio

rather than voidable. See, e.g., CompuServe, Inc. v. Trionfo (1993), 91 Ohio App.3d Stark County App. Case No. 2010CA00072 4

157, 161, 631 N.E.2d 1120. Accordingly, a judgment rendered without proper service is

a nullity and is void. Lincoln Tavern, Inc. v. Snader (1956), 165 Ohio St. 61, 64, 133

N.E.2d 606.

{¶9} Civ. R. 4.1 provides for service by certified mail:

{¶10} “Service by certified or express mail. Evidenced by return receipt

signed by any person, service of any process shall be by certified or express mail

unless otherwise permitted by these rules.”

{¶11} There is a presumption of proper service when the civil rules governing

service are followed, but this presumption is rebuttable. Graham Dealerships v.

Chavero, Richland App. No. 2007-CA-0098, 2008-Ohio-2966, ¶7. If service of process

has not been accomplished, or otherwise waived, any judgment rendered is void ab

initio. Id.

{¶12} “Courts will presume service to be proper in cases where the civil rules

are followed unless the defendant rebuts the presumption by sufficient evidence.” State

ex rel. Fairfield County CSEA v. Landis, Fairfield App. No. 2002CA00014, 2002-Ohio-

5432, ¶17, citing Bank One Cincinnati, N.A. v. Wells (Sept. 18, 1996), Hamilton App.

No. C-950279.

{¶13} Appellant argues that appellee knew she did not live at the School Avenue

address when he attempted service at that address in July, 2008. However, appellee

testified at the hearing that when he spoke to appellant around Father’s Day in 2008,

she told him her lease at the School Avenue apartment was not being renewed and she

was moving in with her parents. Tr. 7. He further testified that her lease was up in July.

Tr. 10. Therefore, at the time the complaint was filed on July 14, 2008, appellee’s best Stark County App. Case No. 2010CA00072 5

knowledge was that service could be accomplished at the School Avenue address.

Appellant failed to present sufficient evidence to rebut the presumption that the certified

mail receipt, signed by her father, accomplished proper service.

{¶14} The assignment of error is overruled.

{¶15} The judgment of the Stark County Common Pleas Court, Domestic

Relations Division, is affirmed.

By: Edwards, P.J.

Hoffman, J. and

Delaney, J. concur

______________________________

JUDGES

JAE/r1013 [Cite as Fritz v. Burch, 2011-Ohio-299.]

IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO

FIFTH APPELLATE DISTRICT

MARK FRITZ : : Plaintiff-Appellee : : : -vs- : JUDGMENT ENTRY : CARRIE BURCH : : Defendant-Appellant : CASE NO. 2010CA00072

For the reasons stated in our accompanying Memorandum-Opinion on file, the

judgment of the Stark County Court of Common Pleas, Domestic Relations Division, is

affirmed. Costs assessed to appellant.

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