Hill v. Ramey

744 N.E.2d 509, 2001 Ind. App. LEXIS 270, 2001 WL 135674

• Court: Indiana Court of Appeals
• Decided: February 19, 2001
• Docket: 40A01-0005-CV-166
• Status: Published

Opinions

OPINION

MATTINGLY, Judge.

Philip P. Hill appeals the trial court's denial of his Motion for Relief from Order pursuant to Trial Rule 60(B)(6). We reverse.

FACTS AND PROCEDURAL HISTORY

On April 16, 1999, Daniel and Christina Ramey filed a Petition for Temporary Protective Order and Notice of Filing P.O. (Protective Order) with the Jennings Superior Court.¹ A temporary protective order was issued, and the trial court scheduled a hearing on the Protective Order for April 28, 1999.

On April 20, 1999, the Jackson County Sheriff's Department placed a copy of the Protective Order and summons addressed to Hill in the door of the house in Seymour, Indiana, where Hill's parents lived.² On April 28, 1999, a hearing on the Protective Order was held. Hill did not appear, and a "Permanent Protective Order" was issued.³ (R. at 9.)

After receiving a letter from Christina Ramey complaining that Hill had violated the Protective Order, the trial court issued an "Order to Set for Hearing" for July 21, 1999. Service on Hill was again attempted at the Seymour address; this time, however, sheriff's deputies spoke with Hill's father, who advised that Hill was residing in Louisville, Kentucky. The trial court acknowledged that no service had been obtained on Hill and the hearing was reset for August 11, 1999. The Order resetting the hearing designated Hill's Louisville address.⁴

In March of 2000, Hill filed a Motion for Relief from Order, asking that the Protective Order issued by the court on April 28, 1999, be set aside. After a hearing, the trial court denied Hill's motion.⁵

DISCUSSION AND DECISION

At the outset, we note that the Rameys did not submit an appellee's brief. In such a situation, we do not undertake the burden of developing arguments for the appellee. Applying a less stringent standard of review with respect to showings of reversible error, we may reverse the lower court if the appellant can establish prima facie error. Fisher v. Board of Sch. Trustees, 514 N.E.2d 626, 628 (Ind.Ct.App.1986). Prima facie, in this context, is defined as "at first sight, on first appearance, or on the face of it." Johnson County Rural Elec. Membership Corp. v. Burmell, 484 N.E.2d 989, 991 (Ind.Ct.App.1985). Where an appellant is unable to meet that burden, we will affirm. Blair v. Emmert, 495 N.E.2d 769, 771 (Ind.Ct.App.1986).

Hill moved into an apartment in Louisville, Kentucky, in December of 1998. Because the Seymour, Indiana, address was not his "dwelling house or usual place of abode," ⁶ he claims proper service was not obtained, and the court was without personal jurisdiction to issue the April 28, 1999, Protective Order. At the hearing on Hill's motion for relief, he introduced into evidence a copy of his lease, a copy of a Kentucky driver's license showing the Louisville address, and copies of rent receipts and a cancelled check.

Also at the hearing, Hill, his mother, and his father testified that Hill did not live at the Seymour, Indiana, house in April of 1999. Hill testified that he told Christina Ramey in December of 1998 that he had moved to Louisville: Hill's mother testified that if mail came to the house for Hill, she kept it for him until he picked it up. She did not remember whether a letter from the court to Hill had come to the Seymour, Indiana, address.

Christina Ramey testified that Hill had not told her he had moved to Louisville, and that his last known address was the Seymour, Indiana, address.

The trial court issued Findings of Fact and Conclusions of Law at Hill's request. The Conclusions of Law read:

A. Trial Rule 4.1(B) Copy Service To Be Followed With Mail. Whenever service is made under Clause (8) or (4) of subdivision (A), the person making the service also shall send by first class mail a copy of the summons without the complaint to the last known address of the person being served, and this fact shall be shown upon the return.

1. Deputy Wayman left the paper pursuant to Trial Rule 4.1(A)8) and mailed a copy by first class mail pursuant to Trial Rule 4.1(B).

2. Proof of mailing was done by placing an "X" on line after 'copy also mailed'.

B. The Petitioner, Christina Ramey, stated she believed the Respondent was still living with his parents in April, 1999, and did not know he had moved to Louisville until July, 1999.

C. Therefore Ms. Ramey believed the Respondent's last known address was at his parent's residence. This is where the papers were served by Deputy Way-man and where he sent a copy by first class mail.

D. Mrs. Carol Hill testified she kept first class mail sent to Phillip Hill at 211 W. Harrison Drive, Seymour, Indiana, for him to pick up.

E. Also, Sarah Hill signed for Philip Hill's certified mail in a criminal case. This certified mail was sent to his parent's address. This obviously got to Philip because he hired an attorney and appeared for a hearing on August 31, 1999.

F. The Respondent testified that he provided the Petitioner with his Louisville, Kentucky telephone number in December, 1998, and she had called him. The Petitioner denied this happened.

G. The Petitioner had no reason to lie about knowing the Respondent's location. Once she learned that the Respondent moved to Kentucky in July, 1999, she tracked him down and reported this new address to the Court in order to get a contempt hearing.

(R. at 47-48.) (Emphasis in original.)

A judgment rendered without personal jurisdiction is void. Stidhaom v. Wheilchel, 698 N.E.2d 1152, 1156 (Ind. 1998).⁷ In light of our standard of review which requires a showing only of prima facie error, we believe this case to be controlled by Mills v. Coil, 647 N.E.2d 679 (Ind.Ct.App.1995), and so find that the Protective Order is void for lack of personal jurisdiction. <

In Mills, the plaintiff attempted service on the defendant at the defendant's last known address. The plaintiff was unaware that the defendant had moved out of the state three months before service was attempted. The court issued a default judgment, which it later set aside. We upheld the trial court's ruling, finding that "[slervice upon a defendant's former residence is insufficient to confer personal jurisdiction." ⁸ Id. at 681.

Even if Hill eventually received the summons and motion for protective order the Sheriff mailed to him at the Seymour address, such receipt does not, without more, guarantee sufficient service. "The mere fact that the defendant has knowledge of the action will not grant the eourt personal jurisdiction." Barrow v. Pennington, 700 N.E.2d 477, 479-80 (Ind. Ct.App.1998).

Finally, we note that the Protective Order entered by the court contained a provision that purported to modify Hill's child visitation arrangements. Even if Hill actually received the Rameys' Petition for Protective Order, the visitation arrangements were modified without notice to Hill, as the Petition does not address visitation. This modification is also improper because the order includes no finding that modification would serve the child's best interests. Ind.Code § 31-17-4-2.

Reversed.

MATHIAS, J., concurs. ROBB, J., dissents with opinion.

1 . The Petition filed with the court was a "form'" petition, and refers to Indiana Code § 34-4-5.1-1 et seq. as its supporting code sections. This is incorrect, as those sections were repealed in 1998, before the filing of the Protective Order. The statute now governing protective orders is Indiana Code chapter 34-26-2. The revision of the controlling statutes does not affect our analysis.

2 . At some point, Hill's mother returned the Protective Order and summons to the court with this note attached: "Placed in door at 211 W. Harrison-person does not reside at this address." (R. at 5.) Since the returned summons and Protective Order do not have "received" date stamps, it is not known whether these documenis were received by the court before or after the April 28, 1999, hearing on the Protective Order.

3 . In addition to the usual protective order terms, Hill's child visitation arrangements were modified in that he was ordered to pick up the children at the Jennings County Jail.

4 . A second Order reset the hearing for September 1, 1999. On August 31, 1999, an attorney filed a motion for continuance on Hill's behalf. However, that attorney never filed an appearance. As a result of the motion for continuance, the hearing was resel for October 6, 1999. Since the Chronological Case Summary is not included in the record, it is not known whether this hearing was held.

5 . We note that Hill's Motion for Relief might normally be moot, as a protective order, unless renewed, expires after one year. However, the record and brief indicate that there were criminal actions filed against Hill for violating the Protective Order. We do not address the accuracy of this indication, other than to comment that in light of this information we will treat this issue as one that is not moot.

6 . Ind. Trial Rule 4.1(A)(3) provides that service may be made upon an individual by leaving a copy of the summons or complaint alt the individual's dwelling house or usual place of abode.

7 . A defendant can waive the lack of personal jurisdiction and submit himself to the jurisdiction of the court if he responds or appears and does not contest the lack of jurisdiction. Stidham, 698 N.E.2d at 1155. The motion for continuance filed by an attorney on Hill's behalf does not demonstrate a waiver, as that attorney never entered an appearance for Hill in this case.

8 . The dissent, relying on Kelly v. Bennett, 732 N.E.2d 859 (Ind.Ct.App.2000), would find service was effected "in substantial compliance with Trial Rule 4.1 by leaving a copy of the summons and petition at what the Ramseys believed to be Hill's dwelling house...." (Emphasis supplied.) In Kelly we addressed the rule governing service on a business address and not the rule governing the case before us. Furthermore, we did not reach the issue whether the address to which the summons and complaint was a valid business address for the defendant. In Kelly, we found service insufficient where the summons and complaint was left by the sheriff at the defendant's business address but was not personally served or properly mailed in accordance with TR. 4.1(A)(1).

We acknowledge that the determination of what is or is not a person's dwelling house or abode turns on the particular facts of each case. Doyle v. Barneit, 658 N.E.2d 107, 109 (Ind.Ct.App.1995). However, we must decline to adopt the purely subjective standard suggested by the dissent, under which a plaintiff's "belief," without more, would determine the location of a defendant's dwelling house for Rule 4.1 purposes.