In re K.J.

2023 Ohio 615

• Court: Ohio Court of Appeals
• Decided: March 2, 2023
• Docket: 111824
• Status: Published

Opinion

[Cite as In re K.J., 2023-Ohio-615.]

COURT OF APPEALS OF OHIO

EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

IN RE K.J. : No. 111824 A Minor Child :

[Appeal by S.W., Father] :

JOURNAL ENTRY AND OPINION

JUDGMENT: AFFIRMED RELEASED AND JOURNALIZED: March 2, 2023

Civil Appeal from the Cuyahoga County Court of Common Pleas Juvenile Division Case No. PR11715790

Appearances:

Cullen Sweeney, Cuyahoga County Public Defender, and Britta Barthol, Assistant Public Defender, for appellant.

Michael C. O’Malley, Cuyahoga County Prosecuting Attorney, and Ashley Gluss, Marilyn Orkin Weinberg, and Daniel A. Starett, Assistant Prosecuting Attorneys, for appellee.

MICHAEL JOHN RYAN, J.:

S.W. (“appellant”), the father of K.J., appeals the juvenile court’s

July 23, 2022 judgment denying his motion to vacate default judgments for

paternity and child support entered against him in 2012. After a thorough review of

the facts and pertinent law, we affirm. Procedural History

The issue in this appeal is whether appellant was properly served with

the complaint in this paternity and child support case. The record demonstrates the

following procedural background.

In August 2011, appellee Office of Child Support Services (“OCSS”)

filed a complaint in juvenile court to establish paternity and child support for the

child and named appellant as the alleged father. Service on appellant was initially

attempted at 14313 Sylvia Avenue, Cleveland, Ohio, 44110; however, the return

receipt came back marked “not deliverable as addressed.”

On February 2, 2012, OCSS filed instructions to serve appellant at

2134 W. 101st Street, UP, Cleveland, Ohio 44102. On February 3, 2012, a summons

and complaint were sent out by certified mail to that address. On February 27, 2012,

the return receipt came back “unclaimed.” A summons and the complaint were

thereafter sent out on February 27, 2012, to the same address via ordinary mail. The

summons included notice that a hearing would be held on May 9, 2012. The

ordinary mail envelope was not returned by the postal authorities with an

endorsement showing failure of delivery.

In March 2012, a magistrate of the juvenile court found that service

had been perfected on appellant by ordinary mail and ordered appellant to submit

to genetic testing by April 9, 2012. Appellant did not file an answer, otherwise

respond to the complaint, or appear in the action at that time. On May 9, 2012, the trial court held the scheduled hearing, at which

the child’s mother and counsel for OCSS were present. The child’s mother testified

at the hearing, and thereafter, the magistrate issued a decision establishing

appellant as the child’s father and ordering him to pay child support. The

magistrate’s decision was affirmed, approved, and adopted by the juvenile court on

May 30, 2012.

Several years later, in October 2017, OCSS filed a motion to show

cause against appellant for nonpayment of child support. In December 2017,

appellant appeared for an arraignment hearing and requested counsel. The trial

court continued the matter for trial to January 2018. Appellant signed a notice of

hearing for the trial date. However, appellant failed to appear on the day of trial and

a warrant was issued for his arrest.

In early September 2021, OCSS filed a “motion to recall warrant and

set for further hearing.” A hearing was set for September 29, 2021, but the matter

was continued to allow appellant time to consult with counsel.

Another hearing was held in late November 2021. At that hearing,

appellant raised, for the first time, the issue of whether he had been properly served

with the original complaint and motion for genetic testing. The juvenile court noted

that appellant’s concern about paternity could be addressed through a private

genetic test and continued the matter to allow time for appellant to pursue the issue.

A new trial date was set for April 26, 2022. On the date of trial,

appellant’s counsel filed a “motion to vacate the default judgments for paternity and child support.” In his motion, appellant stated that he “never lived at” the W. 101st

Street address. Appellant further stated that he was “willing to attest” that he had

not receive service. However, appellant failed to submit to an affidavit averring to

that. Instead, appellant submitted documents from a LexisNexis public records

search and a credit report from “credit karma” in support of his claim that he never

lived at the W. 101st Street address. The LexisNexis document purports to show

different addresses where appellant lived, none of which were the W. 101st Street

address. The LexisNexis document does not reflect appellant’s supposed address at

the time the summons and complaint were sent by ordinary mail, i.e., February

2012.1 The “credit karma” document does not provide any time periods for the

addresses purportedly associated with appellant. Like the LexisNexis document, the

W. 101st Street address was not on the “credit karma” document.

The trial court continued the matter to give OCSS an opportunity to

respond, which the agency did in June 2022. In opposition to appellant’s motion to

vacate, OCSS submitted an affidavit of one of its support officers who averred that

appellant received a public assistance grant on December 1, 2011, and the W. 101st

Street address was the address associated with the grant. The employee averred that

the agency’s records show that on December 12, 2011, appellant spoke with an

employee at Cuyahoga County Job and Family Services and verified that he was

1 The document shows addresses for the following time periods: (1) August 2004 through May 2009, (2) October 2012 through August 2018; (3) March 2013 through July 2014; (4) April 2018, and (5) September 2018 through the time of the search, which was in April 2022. living at the W. 101st Street address. The employee further averred that on February

27, 2012 (i.e., the day the summons and complaint were sent to appellant by

ordinary mail), appellant’s last known address was the W. 101st Street address.

The juvenile court denied appellant’s motion. This appeal followed.

Law and Analysis

In his sole assignment of error, appellant contends that the trial court

erred in denying his motion to vacate without an evidentiary hearing and testimony.

We disagree.

A trial court cannot render judgment against a defendant over whom

it has no personal jurisdiction. “[T]o enter a valid judgment, a court must have

personal jurisdiction over the defendant.” Mayfran Internatl., Inc. v. Eco-Modity,

L.L.C., 2019-Ohio-4350, 135 N.E.3d 792, ¶ 9 (8th Dist.), citing Maryhew v. Yova, 11

Ohio St.3d 154, 156, 464 N.E.2d 538 (1984). “[A] judgment rendered without

personal jurisdiction over a defendant is void.” GGNSC Lima, L.L.C. v. LMOP,

L.L.C., 8th Dist. Cuyahoga No. 105910, 2018-Ohio-1298, ¶ 14, citing Patton v.

Diemer, 35 Ohio St.3d 68, 518 N.E.2d 941 (1988), paragraph three of the syllabus.

A defendant may challenge such a judgment through a motion to vacate. Green v.

Huntley, 10th Dist. Franklin No. 09AP-652, 2010-Ohio-1024, ¶ 11. An appellate

court reviews the denial of a motion to vacate under an abuse of discretion standard.

Stonehenge Condominium Assn. v. Davis, 10th Dist. Franklin No. 04AP-1103,

2005-Ohio-4637, ¶ 13. A court does not acquire personal jurisdiction over a defendant

unless and until the defendant is properly served with the complaint and summons

or the defendant makes an appearance in the case. State ex rel. Ballard v.

O’Donnell, 50 Ohio St.3d 182, 553 N.E.2d 650 (1990), paragraph one of the syllabus.

Appellant did not make an appearance in this case prior to default judgment being

entered against him. Thus, the issue is whether OCSS properly achieved mail service

on appellant.

Service of process, which is governed by Civ.R. 4.1 through 4.6, must

be made in a manner reasonably calculated to apprise the defendant of the action

and to afford him or her an opportunity to respond. Akron-Canton Regional

Airport Auth. v. Swinehart, 62 Ohio St.2d 403, 406, 406 N.E.2d 811 (1980). As is

relevant here, Civ.R. 4.6(D) contemplates instances where service sent through

certified mail is returned marked “unclaimed.” Civ.R. 4.6(D). In these situations,

the civil rules allow a serving party, such as OCSS, to use “ordinary mail service.”

Civ.R. 4.6(D). OCSS complied with this process in 2012. When ordinary mail is not

returned marked “failure of delivery,” service is “deemed complete.” Id.; Lakhodar

v. Madani, 8th Dist. Cuyahoga No. 91564, 2008-Ohio-6502, ¶ 12. The record here

does not indicate that the summons and complaint sent to appellant via ordinary

mail were returned because of “failure of delivery.” Therefore, under the plain

language of Civ.R. 4.6(D), service on appellant was “deemed complete” in 2012.

The plaintiff bears the burden of obtaining proper service on a

defendant. Cincinnati Ins. Co. v. Emge, 124 Ohio App.3d 61, 63, 705 N.E.2d 408 (1st Dist.1997). Where the plaintiff follows the civil rules governing service of

process, courts presume that service is proper unless the defendant rebuts this

presumption with sufficient evidence of nonservice. Hook v. Collins, 8th Dist.

Cuyahoga No. 104825, 2017-Ohio-976, ¶ 14, citing Carter-Jones Lumber Co. v.

Meyers, 2d Dist. Clark No. 2005 CA 97, 2006-Ohio-5380, ¶ 11. “In order to rebut

the presumption of proper service, the other party must produce evidentiary-quality

information demonstrating that he or she did not receive service.” Hook at id., citing

McWilliams v. Schumacher, 8th Dist. Cuyahoga Nos. 98188, 98288, 98390, and

98423, 2013-Ohio-29, ¶ 51, citing Thompson v. Bayer, 5th Dist. Fairfield No. 2011-

CA-00007, 2011-Ohio-5897, ¶ 23.

When the movant’s motion to vacate contains allegations of operative

facts that would warrant relief, the trial court should grant a hearing on such motion.

Adomeit v. Baltimore, 39 Ohio App.2d 97, 105, 316 N.E.2d 469 (8th Dist.1974). This

court has held that a trial court commits reversible error by “summarily overruling

a defendant’s motion to set aside a judgment for lack of service, when the defendant

submits a sworn statement that [he or] she did not receive service of process,

without affording the defendant a hearing.” Money Tree Loan Co. v. Williams, 169

Ohio App.3d 336, 2006-Ohio-5568, 862 N.E.2d 885, ¶ 16 (8th Dist.); see also

Khatib v. Peters, 8th Dist. Cuyahoga No. 102663, 2015-Ohio-5144, ¶ 25; Goodwin

v. Goodwin, 8th Dist. Cuyahoga No. 961151, 2011-Ohio-3263, ¶ 14.

For example, this court recently held that a defendant was, at the

least, entitled to a hearing on the issue of service in light of his sworn affidavit attesting that (1) he was never served with the complaint; (2) he was not residing at

the address where service was purportedly effected; (3) although he owned the home

where service was sent, he had been removed from the home pursuant to the

issuance of a civil protection order and was residing at a different address; and (4)

he had no knowledge of the lawsuit until he was made aware of a levy after the

default judgment had been rendered against him. Kassouf v. Barylak, 8th Dist.

Cuyahoga No. 111594, 2023-Ohio-314, ¶ 23-24. Further, the defendant’s averments

were not contested by the plaintiff. Id. at ¶ 23.

Here, appellant did not submit evidentiary-quality information to

corroborate his contention that he was not served. Although he stated that he was

“willing to attest” that he had not received service, he failed to submit to an affidavit

averring to that. Further, the documentation appellant did submit was not

evidentiary quality. In addition to being unauthenticated, the documentation did

not create an issue as to whether appellant lived at the W. 101st Street address at the

time in question. The LexisNexis document was missing the relevant time period

and the “credit karma” document did not have any dates associated with it at all.

Neither document can be deemed as a complete, authoritative source of every place

appellant ever lived and when he lived there.

On the other hand, OCSS filed evidentiary-quality information to

support its position that appellant had been served. Specifically, it submitted an

affidavit of one of its support officers who averred that appellant received a public

assistance grant on December 1, 2011, and the W. 101st Street address was the address associated with the grant. The employee averred that the agency’s records

show that on December 12, 2011, appellant spoke with an employee at Cuyahoga

County Job and Family Services and verified that he was living at the W. 101st Street

address. Further, the employee averred that on February 27, 2012 (i.e., the day the

summons and complaint were sent to appellant by regular mail), appellant’s last

known address was the W. 101st Street address.

We note — as appellant calls our attention to it — that hearing notices

and journal entries from the court sent to him at the W. 101st Street address in April

and May 2012 were returned to the court for failure of delivery. However, the issue

here on appeal is whether the trial court obtained jurisdiction over appellant by

OCSS obtaining service of the complaint on him. The record demonstrates that it

did, and appellant has failed to rebut that presumption of service.

On this record, we find no error or abuse of discretion in the trial

court’s decision to deny appellant’s motion to vacate without a hearing. Appellant’s

sole assignment of error is therefore overruled.

Judgment affirmed.

It is ordered that appellee recover from appellant costs herein taxed.

The court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate be sent to said court 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.

MICHAEL JOHN RYAN, JUDGE

FRANK DANIEL CELEBREZZE, III, P.J., and MICHELLE J. SHEEHAN, J., CONCUR