In re R.P.

2012 Ohio 4799

• Court: Ohio Court of Appeals
• Decided: October 17, 2012
• Docket: 26271
• Status: Published

Opinion

[Cite as In re R.P., 2012-Ohio-4799.]

STATE OF OHIO ) IN THE COURT OF APPEALS )ss: NINTH JUDICIAL DISTRICT COUNTY OF SUMMIT )

IN RE: R.P. C.A. No. 26271

APPEAL FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF SUMMIT, OHIO CASE No. DN07-07-0694

DECISION AND JOURNAL ENTRY

Dated: October 17, 2012

CARR, Presiding Judge.

{¶1} Appellant, Julian T. (“Father”), appeals from the judgment of the Summit County

Court of Common Pleas, Juvenile Division. This Court reverses.

I.

{¶2} Tiara P. (“Mother”) gave birth to R.P. on July 11, 2007. Both Mother and R.P.

tested positive for cocaine. The next day, Summit County Children Services Board (“CSB”)

removed the infant from the hospital and filed a complaint in juvenile court, alleging that R.P.

was an abused and dependent child. The agency claimed that Mother had ongoing problems

with substance abuse. The agency also pointed to the fact that R.P. is Mother’s sixth child in the

last seven years and that her other five children have all been removed from her care. The oldest

three children are in the legal custody of the maternal grandmother, the fourth is in the legal

custody of a maternal cousin, and the fifth is currently in the temporary custody of the agency.

The complaint asserts that, at the time, CSB did not know the identity or whereabouts of R.P.’s 2

father. Mother reportedly left town after she was released from the hospital and did not leave a

forwarding address.

{¶3} The juvenile case proceeded in the absence of both parents. In due course, the

trial court entered an adjudication of abuse and granted temporary custody to the agency. The

agency placed R.P. with a maternal cousin and his wife, Donald and Angela Athey, a couple who

already had legal custody of Mother’s fourth child. On November 7, 2007, the agency moved

for legal custody to the Atheys, and on December 21, 2007, the trial court granted the motion.

{¶4} Three years later, in February 2011, CSB telephoned Julian T. (“Father”) to

inquire whether he might be the father of a subsequently-born child of Mother. Father claims

that, during that telephone call, he first learned of the 2007 proceedings regarding R.P. and that

R.P. had been placed in the legal custody of relatives. Upon receiving that information, Father

obtained counsel, established his paternity, and filed motions for relief from judgment under

Civ.R. 60(B)(5), visitation, and legal custody.

{¶5} The legal custodians opposed Father’s motion for relief from judgment and his

motion for legal custody. The trial court denied the motion for relief from judgment on the

grounds that Father failed to comply with the requirements of Civ.R. 60(B). Father appeals from

that order and assigns two errors for review.

II.

Assignment of Error I

THE JUVENILE COURT COMMITTED REVERSIBLE ERROR BY IMPROPERLY FINDING THAT SERVICE ON “JOHN DOE” WAS PERFECTED BY POSTING.

{¶6} Father asserts that the trial court erred in failing to vacate its judgment granting

legal custody of R.P. to relatives. He claims that the judgment is void because the original 3

service of process was ineffective and the trial court never obtained personal jurisdiction over

him. The question of whether Father received proper notice of the proceedings involving his

child is a legal question that is reviewed by this Court de novo. State ex rel. DeWine v. 9150

Group L.P., 9th Dist. No. 25939, 2012-Ohio-3339, ¶ 8.

{¶7} Father claims that, on July 13, 2007, the day of the shelter care hearing, he placed

two calls to CSB, telling the agency that he might be the father of R.P. and informing the agency

of his telephone number. Father claims he made the calls out of concern that Mother might harm

the child because she was addicted to cocaine. The agency nevertheless proceeded on the notion

that the child’s father was unknown and attempted service of the father by publication in the

name of John Doe. Eventually, the agency obtained an order granting legal custody of R.P. to

maternal relatives of the child.

{¶8} On May 24, 2011, Father sought to vacate that judgment on the basis that he had

never properly been served with notice of the action. The trial court summarized Father’s claim

as follows: “Father alleges that [CSB] committed a fraud upon the court when [CSB] failed to

serve or name father in [this] case even though [CSB] had contact information for Father and

knowledge that he believed he may have been the Father of R.P.” The trial court denied Father’s

motion because it found that he failed to meet two of the requirements of Civ.R. 60(B): i.e., that

he failed to demonstrate a meritorious claim and he failed to bring the motion within a

reasonable time under the rule. See GTE Automatic Elec., Inc. v. ARC Industries, Inc., 47 Ohio

St.2d 146 (1976), paragraph two of the syllabus. For the reasons that follow, this Court sustains

Father’s first assignment of error.

{¶9} During the 2007 proceedings, the agency consistently maintained that no person

claiming to be the father of R.P. had contacted the agency, but after Father filed his motion for 4

relief from judgment, the agency changed its earlier position and conceded that Father did call its

office early in the proceedings, informed the agency that he might be the father of R.P. and

provided the agency with his telephone number. CSB added that Father requested that the

agency maintain his anonymity and also admitted that the agency obtained Father’s address “at

some point.” On appeal, the legal custodians have accepted the validity of these facts. There is

no evidence in the record that anyone at the agency informed Father of the 2007 court action

while it was ongoing. Nor is there any evidence that Father attended any of the proceedings in

2007 or that he otherwise appeared in that action. Nevertheless, for purposes of securing

personal jurisdiction, “it does not matter that a party has actual knowledge of the lawsuit and has

not in fact been prejudiced by the method of service.” Bell v. Midwestern Educational Serv.,

Inc., 89 Ohio App.3d 193, 203 (1993), citing Haley v. Hanna, 93 Ohio St. 49 (1915).

{¶10} “The jurisdiction of the juvenile court does not attach until notice of the

proceedings has been provided to the parties.” In re Miller, 33 Ohio App.3d 224, 225-226 (8th

Dist.1986). Parents are parties to custody proceedings and must, therefore, be served. Loc.R.

6.02 of the Court of Common Pleas of Summit County, Juvenile Division; Juv.R. 2(Y). A lack

of service of summons will render a custody order invalid and void ab initio. Williams v.

Williams, 44 Ohio St.2d 28, 31 (1975); In re B.P.H., 12th Dist. No. CA2006-04-090, 2007-Ohio-

1366, ¶ 14. Accordingly, a judgment rendered without proper service is a nullity and void.

Maryhew v. Yova, 11 Ohio St.3d 154, 156 (1984); Lincoln Tavern, Inc. v. Snader, 165 Ohio St.

61, 64 (1956); CompuServe, Inc. v. Trionfo, 91 Ohio App.3d 157, 161 (10th Dist.1993).

{¶11} With few exceptions inapplicable here, when the residence of a party is unknown,

service by publication – whether by newspaper or posting and mail – is required. Juv.R. 16(A);

Loc.R. 6.03(A) of the Court of Common Pleas of Summit County, Juvenile Division. Because 5

“[s]ervice by publication is a method of last resort; [] the requirements of Juv.R. 16(A) are

mandatory and shall be strictly enforced.” In re Miller, 33 Ohio App.3d at 226. See also

Anstaett v. Benjamin, 1st Dist. No. C-010376, 2002-Ohio-7339, ¶ 14, citing Moor v. Parsons 98

Ohio St. 233, 238 (1918).

{¶12} Any request for service by publication must be accompanied by an affidavit

executed by the party or the party’s attorney stating that service cannot be made because the

residence of the person is unknown and that the person’s residence cannot be ascertained with

reasonable diligence. Juv.R. 16(A); Loc.R. 6.03(B) of the Court of Common Pleas of Summit

County, Juvenile Division. The affidavit must also set forth what attempts were made to

ascertain the address of the person. Id.

{¶13} The facts regarding the attempted service of R.P.’s father are as follows. A CSB

employee prepared an affidavit for the purpose of requesting service of summons by posting. In

her affidavit of July 31, 2007, she specifically affirmed: “No man has come forward claiming to

be the father of this child.” The affiant stated that the residences of both parents were unknown

and could not be ascertained with reasonable diligence. In attesting to the attempts made to

ascertain the addresses of the parents, the affiant listed: “Lexis-Nexis; SCCJIS; ODRC; and

CRIS-E.” The affiant made no reference to Father’s telephone call to the agency, and she did not

include calling the telephone number listed by Father among the efforts utilized to ascertain

Father’s address.

{¶14} When the process of posting was completed, in-house counsel for CSB prepared

an affidavit of completion. In her affidavit, she affirmed that service of summons cannot be

made on “John Doe, the father” because his place of residence is unknown and further that “[n]o

other man has come forward claiming to be the father of said child.” 6

{¶15} Father has argued that the agency’s attempted service on him was defective for

two reasons. First, he claims he was not unknown to the agency as the father of R.P. in that he

had notified the agency of that possibility and provided the agency with his telephone number.

Although the agency denied any knowledge of Father and his telephone call during the 2007

proceedings, the agency and the legal custodians have now conceded that Father’s claims are

true.

{¶16} Second, Father argues that the agency did not use reasonable diligence in

attempting to ascertain his residence. Despite having Father’s telephone number, there is no

evidence that the agency attempted to call Father to obtain his address. “Minimal efforts do not

constitute reasonable diligence[;]” rather, it is demonstrated by “‘such diligence, care, or

attention as might be expected from a man of ordinary prudence and activity.’” Sizemore v.

Smith, 6 Ohio St.3d at 332, quoting Black’s Law Dictionary 412 (5 Ed.1979). By any measure,

the failure to return a telephone call to an admitted possible father does not amount to reasonable

diligence.

{¶17} As a final point, there is no evidence that the agency informed the trial court that a

potential father of R.P. had contacted the agency until after Father filed his motion for relief from

judgment. Pleadings, testimony, and attestations by the CSB caseworker and counsel during the

2007 proceedings repeatedly indicated that no one claiming to be the father of R.P. had contacted

the agency.

{¶18} Upon review, the record reveals that the agency failed to comply with the

applicable rules of procedure. The agency is, therefore, not accorded a presumption of proper

service that compliance with the civil rules normally permits. See W2 Properties, L.L.C. v

Haboush, 196 Ohio App.3d 194, 2011-Ohio-4231, at ¶ 15 (1st Dist.). Publication service is 7

reserved for those cases in which the residence of the parent is unknown and is not ascertainable

with reasonable diligence. Juv.R. 16(A); Loc.R. 6.03(B) of the Court of Common Pleas of

Summit County, Juvenile Division. CSB proceeded upon the false notion that no potential father

of R.P. had contacted the agency, and so declared in the affidavit requesting publication service.

“Service by publication based upon a false affidavit is defective.” Dragich v. Dragich, 10th

Dist. No. 86AP-178, 1986 WL 10409, at *1. See also In re Miller, 33 Ohio App.3d at 226

(service is defective when the record does not indicate reasonable diligence in ascertaining an

address). Where service of original process is defective, and the court does not otherwise

acquire jurisdiction of the defendant, the trial court lacks personal jurisdiction to proceed.

Dragich, citing Demianczuk. v. Demianczuk, 20 Ohio App.3d 244 (8th Dist.1984). This is no

less true in a child custody case. See, e.g., B.P.H., at ¶ 19. “Where service of process has not

been accomplished, any judgment rendered is void ab initio.” Id. at ¶ 14. See also Patton v.

Diemer, 35 Ohio St.3d 68 (1988); CompuServe, 91 Ohio App.3d at 161.

{¶19} The trial court overruled Father’s motion solely on grounds relevant to Civ.R.

60(B). Although Father styled his motion as one brought under Civ.R. 60(B)(5), the motion

specifically challenged the court’s personal jurisdiction over him on the basis that he was never

served with the original complaint. While a Civ.R. 60(B) motion for relief from judgment

applies to judgments that are voidable, a common law motion to vacate is the appropriate means

by which to challenge a judgment that is void. State ex rel. DeWine v. 9150 Group L.P., 9th

Dist. No. 25939, 2012-Ohio-3339, ¶ 7. This is so because Ohio courts have the inherent power

to vacate a void judgment. Patton, 35 Ohio St.3d 68, at paragraph four of the syllabus.

“Therefore, a common law motion to vacate a void judgment need not meet the standards

applicable to a Civ.R. 60(B) motion.” 9150 Group L.P., 2012-Ohio-3339, ¶ 7. See also 8

CompuServe, 91 Ohio App.3d at 161 (it is insignificant that a common law motion to vacate is

titled as a Civ.R. 60(B) motion). See also Dragich, supra (decision reversed because of false

affidavit and defective service though party brought action on Civ.R. 60(B)). Accordingly,

because the judgment granting legal custody was void, it is inconsequential that Father’s motion

may not have been brought within a “reasonable time” under Civ.R. 60(B) or that he may have

failed to demonstrate a meritorious claim if relief was granted, as found by the trial court.

{¶20} Further consideration of Dragich, supra, may be useful. In Dragich, the plaintiff

offered an affidavit in support of his request for service by publication. The plaintiff knew the

address of defendant at which she could be served, but instead, “fraudulently” obtained service

by publication, secure in the knowledge that defendant would be in Yugoslavia at the time. Id.

The defendant filed a motion under Civ.R. 60(B)(5) to set aside the previous judgment entry.

The trial court found that plaintiff had obtained service by publication by false affidavit and held

that relief might be obtained pursuant to Civ.R. 60(B)(5). The trial court denied the motion,

however, because defendant had failed to demonstrate anything inequitable in the court’s

judgment. The court of appeals, per Judges McCormac, Moyer, and Whiteside, reversed the

judgment of the trial court, finding service by publication based on a false affidavit to be

defective. Id. at *1. “In that event, the trial court lacks jurisdiction over the person upon which a

default judgment can be granted.” Id.

{¶21} Father’s first assignment of error is sustained. Because personal jurisdiction

never attached, the trial court judgment granting legal custody to the relatives is void and must

be vacated. The judgment is remanded for further proceedings consistent with this opinion. 9

Assignment of Error II

THE JUVENILE COURT COMMITTED REVERSIBLE ERROR BY DENYING FATHER’S 60(B) MOTION WHEN SERVICE WAS NOT PERFECTED ACCORDING TO STATUTE, CSB MISREPRESENTED FUNDAMENTAL FACTS TO THE COURT THROUGHOUT THE PROCEEDINGS AND FATHER MET ALL THREE PRONGS OF THE TEST.

{¶22} Based on this Court’s resolution of the first assignment of error, Father’s second

assignment of error has been rendered moot. See App.R. 12(A)(1)(c).

III.

{¶23} Father’s first assignment of error is sustained. Father’s second assignment of

error is overruled as moot. The judgment of the Summit County Court of Common Pleas,

Juvenile Division, is reversed and this matter is remanded for further proceedings consistent with

this opinion.

Judgment reversed and cause remanded.

There were reasonable grounds for this appeal.

We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.

Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is 10

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

Costs taxed to Appellee.

DONNA J. CARR FOR THE COURT DICKINSON, J. CONCURS.

BELFANCE, J. CONCURS IN JUDGMENT ONLY.

APPEARANCES:

DENISE E. FERGUSON, Attorney at Law, for Appellant.

ESTELLE FLASCK, Attorney at Law, for Appellee.