Purcell v. Estes , 2014 Ohio 1027 ( 2014 )

[Cite as Purcell v. Estes, 2014-Ohio-1027.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
Tara R. Purcell, :
Petitioner-Appellee, :
No. 13AP-606
v. : (C.P.C. No. 12JU-07-9078)
Adam D. Estes, : (REGULAR CALENDAR)
Respondent-Appellant. :
D E C I S I O N
Rendered on March 18, 2014
James E. Eby, for Franklin County Child Support
Enforcement Agency.
Christopher J. Minnillo, for appellant.
APPEAL from the Franklin County Court of Common Pleas,
Division of Domestic Relations, Juvenile Branch
SADLER, P.J.
{¶ 1} Adam D. Estes, respondent-appellant, appeals from the June 27, 2013
judgment of the Franklin County Court of Common Pleas, Division of Domestic Relations,
Juvenile Branch, wherein the trial court dismissed appellant's objections to the
magistrate's decision and adopted the decision of the magistrate. For the following
reasons, we affirm.
No. 13AP-606 2
I. BACKGROUND
{¶ 2} On July 3, 2012, the Franklin County Child Support Enforcement Agency
("FCCSEA"), responsible for the establishment and enforcement of child support orders,1
filed and registered with the trial court a petition to establish child support. FCCSEA,
pursuant to the Uniform Interstate Family Support Act ("UIFSA"),2 made the filing at the
request of the Australian Child Support Agency, which received a request for the petition
from Tara R. Purcell, petitioner-appellee. FCCSEA issued a notice informing appellant
that "[f]ailure to contest the validity of enforcement of the registered order in a timely
manner will result in confirmation of the order and enforcement of the order." (July 3,
2012 Notice to Non-Registering Party, 1.) The notice also included contact information
for appellee.
{¶ 3} Appellant filed a motion with the trial court contesting the validity and
enforcement of the order to pay child support, and a magistrate conducted a hearing on
the issue. In denying appellant's motion, the magistrate confirmed the registered order,
stating "the State of Ohio may enforce Australia's child support assessment."
(Magistrate's Decision, 4). The trial court approved and adopted the magistrate's decision
on February 26, 2013. On March 12, 2013, appellant filed "Objection of Respondent
Adam [D.] Estes to the Magistrate's Decision." The filing stated only that "Respondent,
through undersigned counsel, objects to the Magistrate's decision filed February 26, 2013.
Respondent reserves the right to supplement the objections upon the receipt of the
transcript of the proceedings." (Mar. 12, 2013 Objection of Respondent Adam [D.] Estes
to the Magistrate's Decision.) According to the certificate of service, appellant served both
appellee and FCCSEA.
{¶ 4} On May 2, 2013, the trial granted appellant's March 12, 2013 "request" to
supplement his objection upon the filing of the transcript and continued the hearing on
appellant's objection to June 27, 2013. Appellant filed supplemental objections to the
1 R.C. 3125.03 provides, "[t]he program of child support enforcement shall include the * * * establishment
and modification of child support orders and * * * enforcement of support orders, * * * and any other actions
appropriate to child support enforcement."
2 As codified in R.C 3115.01 to 3115.59.
No. 13AP-606 3
magistrate's decision on May 10, 2013.3 According to the certificate of service, appellant
only served FCCSEA with the supplemental objections.
{¶ 5} On June 27, 2013, the trial court issued an entry stating that, "[u]pon the
call of the case, respondent's counsel has failed to appear for the hearing before 10:00
A.M. for the hearing scheduled for 9:00 A.M. Respondent has also failed to perfect
service on petitioner." The trial court then dismissed appellant's objections to the
magistrate's decision for "lack of service and failure to appear for hearing." (June 27,
2013 Entry.) This appeal followed.
II. ASSIGNMENTS OF ERROR
{¶ 6} Appellant brings the following assignments of error for our review
[I.] It was an abuse of discretion and reversible error for the
trial court to dismiss objections based upon the
nonappearance of counsel at a hearing that was not requested
by the objecting party. Civil Rule 53 does not provide for a
hearing unless requested by the objecting party, which did not
occur in the case at bar.
[II.] It was an abuse of discretion and reversible error for the
trial court to involuntarily dismiss appellant's objections
without notice in advance as required by Civil Rule 41(B)(1).
[III.] It was an abuse of discretion and reversible error for the
trial court to dismiss appellant's objections because of the
short, excusable delay occasioned by the non-appearance of
appellant's counsel at a time when the appellant was present
in court. The facts and the law did not show that appellant
had no right to relief, thereby entitling appellee to dismissal of
the objections.
[IV.] It was reversible error for the trial court to dismiss
appellant's objections because of a lack of service. Appellant,
the non-initiating party, was not required to serve appellee,
the initiating party. The record shows that service of
pleadings and other papers subsequent to the original
initiating document were made or, alternatively, service was
waived by the appearance of petitioner/appellee's counsel
3 We agree with appellant that "[a]s of May 13, 2013, Appellant had submitted his objections." (Reply brief,
2.) Thus, because appellant's March 12, 2013 filing did not include any objections, we treat that filing only as
a Civ.R. 53(D)(5) motion for an extension of time under which to file objections to the magistrate's decision.
No. 13AP-606 4
before trial, at trial, and at subsequent proceedings before the
lower court.
III. DISCUSSION
A. Fourth Assignment of Error
{¶ 7} Because we find appellant's fourth assignment of error to be dispositive of
this appeal, we address it first. In appellant's fourth assignment of error, he argues
"[t]here was no failure of service which would justify the involuntary dismissal of
Appellant's objections." (Appellant's brief, 15.) Specifically, appellant argues that the
presence of FCCSEA's counsel at the June 27, 2013 hearing constituted a waiver of
service.
{¶ 8} Civ.R. 5(A) states that every written pleading, motion, and "similar paper
shall be served upon each of the parties." (Emphasis added.) Further, Civ.R. 5(D)
provides that "[p]apers filed with the court shall not be considered until proof of service is
endorsed thereon or separately filed." " '[W]here there is no proof of service either
attached to the filing or separately filed with the trial court, the trial court simply may not
consider the filing.' " Samaan v. Walker, 10th Dist. No. 07AP-767, 2008-Ohio-5370, ¶ 11,
quoting Nosal v. Szabo, 8th Dist. No. 83974, 2004-Ohio-4076, ¶ 21; Discover Bank v.
Schiefer, 10th Dist. No. 09AP-1178, 2010-Ohio-2980, ¶ 11 (holding the trial court did not
err in refusing to consider a motion to dismiss without certificate of service). Loc.R. 19 of
the Franklin County Court of Common Pleas similarly states that no paper delivered to
the court or a judge without a certificate of service shall be considered.
{¶ 9} Here, appellant's supplemental objections fail to demonstrate proof of
service upon appellee, and the record contains no evidence that the supplemental
objections were ever served upon appellee. Because Civ.R. 5(D) requires proof of service
upon all parties, the trial court was precluded from considering appellant's supplemental
objections to the magistrate's decision. To the extent appellant argues that FCCSEA and
appellee are the same party for purposes of service, R.C. 3115.18(C) provides that the
UIFSA does "not create or negate a relationship of attorney and client or other fiduciary
relationship between a support enforcement agency or the attorney for the agency and the
individual being assisted by the agency." As such, here, we find FCCSEA and appellee
required separate service.
No. 13AP-606 5
{¶ 10} Appellant next asserts that service upon appellee was not required because
"[appellee] did not make an appearance at any time during the proceedings in this case."
(Appellant's Reply Brief, 6.) Appellant's argument relies upon Civ.R. 5(A), which
provides "[s]ervice is not required on parties in default for failure to appear." Upon
review, the trial court never made a finding that appellee was in default for failing to
appear. Indeed, R.C. 3115.27(A) of the UIFSA provides "[t]he physical presence of the
plaintiff in a responding tribunal of this state is not required for the issuance,
enforcement, or modification of a support order." As such, appellee's non-appearance did
not effect appellant's requirement to serve all documents upon appellee. Because
appellant failed to provide proof of service to appellee, we find the trial court did not err in
dismissing appellant's supplemental objections to the magistrate's decision for lack of
service.
{¶ 11} Accordingly, appellant's fourth assignment of error is overruled.
B. First, Second, and Third Assignments of Error
{¶ 12} Our disposition of appellant's fourth assignment of error renders appellant's
first, second, and third assignments or error moot.
C. Motion
{¶ 13} On August 30, 2013, appellant filed a motion for leave to supplement the
record pursuant to App.R. 9(C). However, we find our disposition of appellant's fourth
assignment of error renders appellant's motion for leave to supplement the record moot.
IV. CONCLUSION
{¶ 14} For the foregoing reasons, appellant's fourth assignment of error is
overruled, and appellant's first, second, and third assignments of error are rendered
moot. The judgment of the Franklin County Court of Common Pleas, Division of
Domestic Relations, Juvenile Branch, is hereby affirmed.
Motion for leave to supplement
record rendered moot;
judgment affirmed.
TYACK and CONNOR, JJ., concur.
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