Abouharga v. Elghadban , 2024 Ohio 3413 ( 2024 )

[Cite as Abouharga v. Elghadban, 2024-Ohio-3413.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
Nancy Abouharga, :
Plaintiff-Appellee, :
No. 23AP-532
v. : (C.P.C. No. 22DR-1210)
Yasser Elghadban, : (REGULAR CALENDAR)
Defendant-Appellant. :
D E C I S I O N
Rendered on September 5, 2024
On brief: Collin P. Finn, for appellee. Argued: Collin P.
Finn.
On brief: Eugene R. Butler, for appellant.
APPEAL from the Franklin County Court of Common Pleas,
Division of Domestic Relations
BOGGS, J.
{¶ 1} Defendant-appellant, Yasser Elghadban, appeals the judgment of the
Franklin County Court of Common Pleas, Division of Domestic Relations, denying his
motion for relief from a final judgment and decree of divorce. For the following reasons,
we reverse the trial court’s judgment denying that motion.
I. FACTS AND PROCEDURAL BACKGROUND
{¶ 2} Plaintiff-appellee, Nancy Abouharga, filed a complaint for divorce from
Elghadban on April 14, 2022, along with a motion for designation of a process server. The
complaint stated that Abouharga and Elghadban resided at the same address: “The parties
have effectively lived separate for the past 18 months, but it is within the same house.”
(Apr. 14, 2022 Compl. at ¶ 4.) The trial court issued an order designating John Hurst as a
process server to personally serve Elghadban with a summons and all pleadings, including
No. 23AP-532 2
Abouharga’s complaint, affidavits, and documents, and “to make due return of his service.”
(Apr. 20, 2022 Entry and Order on Mot. for Designation of Process Server.)
{¶ 3} The clerk of courts issued a Personal Service Return, which included space
for the process server to indicate the date of service and the documents served or, if service
was not accomplished, the reason the process server was unable to serve Elghadban. The
Personal Service Return states, “YOU WILL MAKE DUE RETURN OF THIS ORDER BY
THE 28 DAY OF APRIL, 2022.” (Emphasis sic.) (Apr. 20, 2022 Personal Service Return.)
Civ.R. 4.1(B)(2)(a) requires a civil process server, to endorse on the process the fact that a
copy of the process has been served and to “return [the process] to the clerk, who shall make
the appropriate entry on the appearance docket.”
{¶ 4} Hurst did not complete and file the Personal Service Return with the clerk.
Instead, more than three weeks after the date by which the Personal Service Return was to
be returned to the clerk of courts, a different document, captioned “Return Service,” was
filed with the trial court on May 18, 2022. The document, which contains what purports to
be Hurst’s electronic signature, dated April 21, 2022, states:
The defendant, Yasser Elghadban, was served the requested
documents on April 21, 2022, at 1:00pm. Service was
completed at his residence 2955 Northwest Blvd. Upper
Arlington, Ohio 43221[.]
John Hurst, Powel [sic] Detective and Protection Agency, 185
S. Liberty Street, Powell, Ohio 43065, di[d] serve summons
and all other pleadings in this matter, including but not limited
to Plaintiff’s Complaint for Divorce, Plaintiff’s Motion for
Temporary Restraining Order, Entry Granting Plaintiff’s
Motion for Temporary Restraining Order, Plaintiff’s
Supplemental Affidavit in Support of Temporary Order
service[.]
(May 18, 2022 Return Service at 1.)
{¶ 5} Elghadban did not file an answer to Abouharga’s complaint and did not enter
an appearance.
{¶ 6} On September 23, 2022, the trial court issued a judgment entry and decree
of divorce following an uncontested final divorce hearing. With respect to Elghadban’s
nonparticipation, the judgment entry stated that Elghadban “was properly served by
No. 23AP-532 3
private process server,” but he was not present at the divorce hearing and did not file a
responsive pleading. (Sept. 13, 2022 Jgmt. Entry Decree of Divorce at 1.)
{¶ 7} On November 21, 2022, nearly two months after the trial court issued its final
judgment entry, attorney Craig M. Stewart entered a notice of appearance for Elghadban.
{¶ 8} On January 30, 2023, Abouharga filed a motion asking the trial court to hold
Elghadban in contempt of court for failing to pay spousal and child support and for failing
to transfer to Abouharga half the value of a Robinhood Crypto LLC account, as ordered in
the final judgment entry and decree of divorce.
{¶ 9} Elghadban filed his motion for relief from judgment on February 9, 2023,
claiming he had not been served with a summons and a copy of Abouharga’s divorce
complaint. He stated that at 1:00 p.m. on a Thursday afternoon, when service was alleged
to have occurred, he would have been asleep and unable to answer the door, as he worked
on Thursdays from 5:00 p.m. to 2:00 a.m. Elghadban also argued that the divorce decree
was improper because Loc.R. 5 of the Franklin County Court of Common Pleas, Domestic
Relations Division, prohibits the hearing of any divorce action until the parties have lived
separate and apart for at least 30 days, unless that period is waived in the discretion of the
assigned judge. The parties continued to reside together when Elghadban filed his motion
for relief from judgment, and Elghadban argued that there was no indication in the
judgment entry and decree of divorce that the judge had waived the rule’s time
requirement. Elghadban submitted with his motion an affidavit attesting to the
truthfulness of the facts and allegations stated in the motion.
{¶ 10} Abouharga did not file a memorandum in opposition to Elghadban’s motion,
which the trial court scheduled for a hearing on May 22, 2023. The notices of hearing did
not indicate whether the hearing would consist only of oral arguments or if the parties
would also be entitled to present evidence in support of and in opposition to the motion for
relief from judgment. Elghadban, Abouharga, and their respective attorneys appeared for
the May 22 hearing. Neither Elghadban’s attorney nor Abouharga’s attorney called any
witness or presented any evidence regarding the motion for relief from judgment, even after
the trial court offered them the opportunity to do so. Elghadban’s attorney reiterated the
arguments from the motion that Elghadban had not been served and that the divorce decree
violated the local rule requiring parties to have lived separately for at least 30 days.
No. 23AP-532 4
Abouharga’s attorney argued that the appointed process server completed service on
Elghadban, as indicated in the Return Service. He also stated, “my client was home at the
time -- at the point of the service -- and witnessed it,” although there is no direct statement
from Abouharga to that effect in the record. (May 22, 2023 Tr. at 7.) At the conclusion of
the brief hearing1, the trial court took the matter under advisement.
{¶ 11} The trial court subsequently denied Elghadban’s motion for relief from
judgment. The trial court rejected Elghadban’s argument under Loc.R. 5 of the Franklin
County Court of Common Pleas, Domestic Relations Division, stating that it had clearly
waived the 30-day requirement as a matter of discretion. With respect to Elghadban’s claim
that he was not served, the trial court noted Elghadban’s assertion that he would have been
asleep and unable to answer the door at the time he was claimed to have been served, as
well as Abouharga’s attorney’s contrary “represent[ation] that [Abouharga] witnessed John
Hurst serve” Elghadban. (Aug. 4, 2023 Decision & Jgmt. Entry at 3.) The trial court,
however, did not decide whether Elghadban had been served. Instead, it stated, “[e]ven if
the Court were to find [Elghadban’s] claim that he was not served credible, there is no
evidence before the court to justify [Elghadban’s] untimeliness” in moving for relief from
judgment. Id. at 4. In other words, the trial court denied Elghadban’s motion for relief
from judgment based on his supposed failure to meet the burden of establishing the
timeliness of his motion under Civ.R. 60(B).
{¶ 12} Elghadban appeals and raises two assignments of error:
[1.] THE TRIAL COURT ABUSED ITS DISCRETION IN
DENYING DEFENDANT’S MOTION TO VACATE BASED ON
CIV. R. 60(B).
[2.] THE DENIAL OF DEFENDANT’S MOTION TO VACATE
THE DECREE FOR LACK OF SERVICE IS AN ABUSE OF
DISCRETION.
II. ANALYSIS
A. First assignment of error
{¶ 13} In his first assignment of error, Elghadban argues that the trial court erred
by applying the wrong legal standard when analyzing his motion for relief from judgment.
1 The transcript of the hearing is less than 10 pages long.
No. 23AP-532 5
{¶ 14} The trial court analyzed Elghadban’s motion under Civ.R. 60(B), which sets
out one method for obtaining relief from a final judgment, and correctly noted the
requirements for obtaining relief under that rule. To prevail on a motion under Civ.R.
60(B), the movant must establish: (1) a meritorious claim or defense to present in the event
relief is granted, (2) entitlement to relief under one of the provisions of Civ.R. 60(B)(1)
through (5), and (3) the timeliness of the motion. GTE Automatic Elec., Inc. v. ARC
Industries, Inc., 47 Ohio St.2d 146 (1976), paragraph two of the syllabus.
{¶ 15} Civ.R. 60(B) provides a means for obtaining relief from voidable judgments,
but it does not apply when a motion to vacate is premised on jurisdictional grounds. First
Resolution Invest. Corp. v. Davis, 10th Dist. No. 05AP-328, 2005-Ohio-4976, ¶ 9. “Proper
service of process is an essential component in the acquisition of personal jurisdiction over
a party, and a judgment in the absence of personal jurisdiction is void ab initio.” Id. Thus,
when a movant seeks vacation of a judgment based on a lack of service, the motion concerns
“whether the trial court had jurisdiction to render judgment,” and it is therefore “not
governed by Civ.R. 60(B).” J.M. v. J.C., 10th Dist. No. 19AP-739, 2020-Ohio-4963, ¶ 22.
See also, Shah v. Simpson, 10th Dist. No. 13AP-24, 2014-Ohio-675, ¶ 24. In that
circumstance, the movant need not present a meritorious defense or show that the motion
was timely filed. J.M. at ¶ 22, citing Gupta v. Edgecombe, 10th Dist. No. 03AP-807, 2004-
Ohio-3227, ¶ 12. “A court has inherent power to vacate a void judgment because such an
order simply recognizes the fact that the judgment was always a nullity.” Van DeRyt v. Van
DeRyt, 6 Ohio St.2d 31, 36 (1966). A void judgment may be challenged at any time. Howell
v. Howell, 10th Dist. No. 13AP-961, 2014-Ohio-2195, ¶ 8.
{¶ 16} Instead of determining whether Elghadban was properly served and was
subject to its jurisdiction, the trial court denied Elghadban’s motion for relief from
judgment because it concluded that Elghadban did not meet the burden under Civ.R. 60(B)
of establishing that he filed his motion in a timely manner. But because Elghadban was
moving for relief on the basis that he was not served with process and that the trial court’s
judgment was void ab initio, the requirements under Civ.R. 60(B), including the timeliness
requirement, did not apply. Accordingly, the trial court’s application of those requirements
and denial of Elghadban’s motion for failure to satisfy the timeliness requirement was
erroneous.
No. 23AP-532 6
{¶ 17} Abouharga has conceded, both in her brief and during oral argument, that
the trial court should have decided Elghadban’s motion for relief from judgment as a
common-law motion to vacate judgment, not as a motion under Civ.R. 60(B), but she
nevertheless argues that the trial court did not abuse its discretion in holding Elghadban to
the inapposite requirements of Civ.R. 60(B) because it held a hearing on Elghadban’s
motion. That argument is misplaced. The Supreme Court of Ohio has clearly stated, “[t]his
should be axiomatic: a court does not have discretion to misapply the law.” Johnson v.
Abdullah, 166 Ohio St.3d 427, 2021-Ohio-3304, ¶ 38. “ ‘No court—not a trial court, not an
appellate court, nor even a supreme court—has the authority, within its discretion, to
commit an error of law.’ ” Id., quoting State v. Boles, 187 Ohio App.3d 345, 2010-Ohio-
278, ¶ 26 (3d Dist.). A trial court commits an error of law when it applies an incorrect legal
standard. See Glasco v. Ohio Dept. of Job & Family Servs., 10th Dist. No. 03AP-871, 2004-
Ohio-2168, ¶ 23; Hartford Cas. Ins. Co. v. Easley, 10th Dist. No. 93AP-86, 1993 Ohio App.
LEXIS 6512 (Sept. 28, 1993).
{¶ 18} Because the trial court applied an incorrect legal standard, denied
Elghadban’s motion for relief from judgment based on Elghadban’s noncompliance with
the inapplicable requirements of Civ.R. 60(B), and did not determine whether Elghadban
was properly served, we conclude that the trial court committed a legal error that requires
us to sustain appellant’s first assignment of error and reverse the trial court’s judgment.
B. Second assignment of error
{¶ 19} Elghadban’s second assignment of error states: “THE DENIAL OF
DEFENDANT’S MOTION TO VACATE FOR LACK OF SERVICE IS AN ABUSE OF
DISCRETION.” Having already determined that we must reverse the trial court’s judgment
denying Elghadban’s motion to vacate and remand this matter to the trial court for it to
decide that motion under the appropriate legal framework, by determining whether
Elghadban was properly served, we conclude that Elghadban’s second assignment of error
is not ripe for review.
III. CONCLUSION
{¶ 20} For these reasons, we sustain Elghadban’s first assignment of error, decline
to address Elghadban’s second assignment of error, reverse the trial court’s decision
denying Elghadban’s motion for relief from judgment, and remand this matter to the
No. 23AP-532 7
Franklin County Court of Common Pleas, Division of Domestic Relations for further
proceedings consistent with this decision.
Judgment reversed,
cause remanded.
DORRIAN and JAMISON, JJ., concurs.