M.E.D. v. P.K. , 2023 Ohio 3471 ( 2023 )

[Cite as M.E.D. v. P.K., 2023-Ohio-3471.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
M.E.D., :
Plaintiff-Appellee, :
No. 112070
v. :
P.K., :
Defendant-Appellant. :
JOURNAL ENTRY AND OPINION
JUDGMENT: DISMISSED
RELEASED AND JOURNALIZED: September 28, 2023
Civil Appeal from the Cuyahoga County Court of Common Pleas
Domestic Relations Division
Case No. DR-15-357855
Appearances:
Stafford Law Co., L.P.A., Joseph G. Stafford, Nicole A.
Cruz, and Kelley R. Tauring, for appellee.
P.K., pro se.
ANITA LASTER MAYS, A.J.:
I. Introduction and Background
Defendant-appellant P.K., proceeding pro se, appeals the trial court’s
dismissal of a motion to modify child support for lack of jurisdiction due to failure
to perfect service on plaintiff-appellee M.E.D. For the reasons set forth herein, we
dismiss the appeal.
The parties divorced in July 2016, and appellee was designated the
residential parent. On August 9, 2019, appellant filed a motion to modify allocation
of parental rights and an emergency motion for supervised visitation. On
December 17, 2020, the trial court suspended appellant’s parenting time pending an
evidentiary hearing.
Appellant states he hired counsel on September 23, 2020, who filed a
motion to modify child support and obligation for medical insurance on
November 20, 2020, the motion at issue herein. On February 25, 2021, appellant
filed motions to stay and to suspend child support disbursements pending
resolution of the motion to modify child support. The stay was granted on March 5,
2021. Appellee moved for reconsideration on March 15, 2021, on the ground that
the trial court did not allow appellee time to respond pursuant to Civ.R. 6, and that
the stay was not in the best interests of the children. The trial court granted
reconsideration and subsequently denied the stay.
On February 15, 2022, appellee moved to dismiss appellant’s motion
to modify due to insufficient service of process. The motion was denied on
February 18, 2022. On February 22, 2022, the magistrate heard the motion to
modify.
Appellee objected to the motion based on lack of jurisdiction for
failure to comply with Loc.R. 19 that provides “[a] motion that requests a change or
modification of an existing child support or spousal support order must be filed and
served upon the opposing party according to methods of service in Civil Rule 4
through 4.6.” Loc.R. 19 also prescribes the content of the motion and the hearing
procedure. The magistrate acknowledged that appellee was renewing the motion to
dismiss, which the magistrate denied. The hearing proceeded.
During the hearing, appellee requested that the trial court examine
the motion for modification required by Loc.R. 19:
Counsel: Go to his affidavit, could you please? Go to the service
first, the motion.
Go to service.
Your Honor, will you take judicial notice the service of
process was made, I believe pursuant to Civ.R. 5 and not
4, through 4.6. If you could take judicial notice of that, I
would appreciate it.
Magistrate: Yes. Can you identify the document for the record?
Counsel: For the record, Your Honor, Exhibit 35 was a Motion to
Modify Support filed on November 20, 2020, and this is,
we just printed it off from the docket.
Could you go to his affidavit, please?
(Tr. 61-62.) Appellant was also questioned about the contents of the accompanying
affidavit of income and expense.
On June 9, 2022, the magistrate issued a decision modifying support
to zero. Appellee objected to the: (1) denial of the dismissal for improper service
under Civ.R. 4 and Loc.R. 19, rendering the decision void; (2) denial of dismissal for
failure to submit a completed affidavit pursuant to Loc.R. 19; (3) finding that a
change of circumstances warranted modification of the support obligation; (4) grant
of modification of the support obligation contrary to the children’s best interest; and
(5) modification of support under R.C. 3119.05.
On September 23, 2022, the trial court granted the objections, finding
that appellant failed to perfect service by serving appellee’s attorney and not the
appellee in contravention of the express requirements of Loc.R. 19 and Civ.R. 75(J).
Thus, the trial court held that it lacked jurisdiction, vacated and set aside the
magistrate’s decision, and dismissed the motion to modify.
Appellant appeals.
II. Assignments of Error
Appellant assigns three errors:
I. The trial court committed an error of law when it used a local
rule which is inconsistent with Ohio state law and the Ohio
Supreme Court Rules of Civil Procedure to deny its own court
jurisdiction over a Motion to Modify Child Support.
II. The trial court abused its discretion when it issued an order
disclaiming its jurisdiction over the parties and issues
concerning a motion to modify child support, of which it
previously allowed.
III. The trial court abused its discretion in not taking into
consideration that the plaintiff had waived her rights to make a
motion to dismiss defendant’s motion to modify child support
for lack of jurisdiction when plaintiff previously made motions
asking the court to apply its jurisdiction over the motion to
modify child support, had been given the opportunity to address
the jurisdiction issue at many hearings, and did not include in
her motion to dismiss the local rule later proposed at trial.
III. Jurisdiction
An appellate court’s jurisdiction is limited to review of final orders
and judgments. Cooney v. Radostitz, 8th Dist. Cuyahoga No. 110009, 2021-Ohio-
2521, ¶ 12, citing Article IV, Section 3(B)(2), Ohio Constitution; R.C. 2505.02 and
2505.03. Prior to a review of the merits, an appellate court “‘has a duty to examine,
sua sponte, potential deficiencies in jurisdiction.’” Id., citing Scheel v. Rock Ohio
Caesars Cleveland, L.L.C., 8th Dist. Cuyahoga No. 105037, 2017-Ohio-7174, ¶ 7;
Arch Bay Holdings, L.L.C. v. Goler, 8th Dist. Cuyahoga No. 102455, 2015-Ohio-
3036, ¶ 9; see also Scanlon v. Scanlon, 8th Dist. Cuyahoga No. 97724, 2012-Ohio-
2514, ¶ 5 (“In the absence of a final, appealable order, the appellate court does not
possess jurisdiction to review the matter and must dismiss the case sua sponte.”).
R.C. 2505.02(B) lists the types of orders that qualify as final,
appealable orders:
An order is a final order that may be reviewed, affirmed, modified, or
reversed, with or without retrial, when it is one of the following:
(1) An order that affects a substantial right in an action that in
effect determines the action and prevents a judgment;
(2) An order that affects a substantial right made in a special
proceeding or upon a summary application in an action after
judgment;
(3) An order that vacates or sets aside a judgment or grants a new
trial;
(4) An order that grants or denies a provisional remedy and to
which both of the following apply:
(a) The order in effect determines the action with respect
to the provisional remedy and prevents a judgment in
the action in favor of the appealing party with respect
to the provisional remedy.
(b) The appealing party would not be afforded a
meaningful or effective remedy by an appeal following
final judgment as to all proceedings, issues, claims, and
parties in the action.
(5) An order that determines that an action may or may not be
maintained as a class action;
(6) An order determining the constitutionality of any changes to
the Revised Code made by Am. Sub. S.B. 281 of the 124th
general assembly * * * or any changes made by Sub. S.B. 80
of the 125th general assembly * * *;
(7) An order in an appropriation proceeding that may be
appealed pursuant to division (B)(3) of section 163.09 of the
Revised Code.
The dismissal in this case was for lack of personal jurisdiction. A
dismissal for lack of personal jurisdiction ‘“operate[s] as a failure otherwise than on
the merits,’” Crown Servs. v. Miami Valley Paper Tube Co., 162 Ohio St.3d 564,
2020-Ohio-4409, 166 N.E.3d 1115, ¶ 22, quoting Natl. City Commer. Capital
Corp. v. AAAA at Your Serv., Inc., 114 Ohio St.3d 82, 2007-Ohio-2942, 868 N.E.2d
663, ¶ 8, quoting Civ.R. 41(B)(4)(a). 1
1 This court has previously questioned whether Civ.R. 41 cited in Natl. City applies
to motion practices. Reinhard v. Reinhard, 8th Dist. Cuyahoga No. 95000, 2011-Ohio-
343, ¶ 17 (“We are not convinced that Civ.R. 41 applies to motion practice because it is
entitled ‘Dismissal of actions’ and speaks specifically to dismissals of causes of actions
and counterclaims”). We find that we need not delve into that issue here because the
matter is not determined by Civ.R. 41 but by the presence of a void judgment due to lack
of personal jurisdiction as required by Civ.R. 75(J). “‘[T]o enter a valid judgment, a court
must have personal jurisdiction over the defendant.’” Midland Funding, L.L.C. v.
Cherrier, 8th Dist. Cuyahoga No. 108595, 2020-Ohio-3280, ¶ 9, quoting Mayfran Intl.,
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 is void. GGNSC Lima, L.L.C. v. LMOP, L.L.C., 8th Dist.
Ordinarily, a dismissal “otherwise than on the merits” does not
prevent a party from refiling and, therefore, ordinarily, such a dismissal is not a final,
appealable order. Id. at ¶ 8. In this case, not only is appellant able to refile, this
court was informed during oral arguments that appellant filed a new motion to
modify child support in November 2022.
The requirements of Loc.R. 19 and Civ.R. 75(J) must be met to invoke
continuing jurisdiction. Appellant did not meet those requirements. “A judgment
in the absence of personal jurisdiction over the defendant is void.” Lakhodar v.
Madani, 8th Dist. Cuyahoga No. 91564, 2008-Ohio-6502, ¶ 11, citing Lincoln
Tavern, Inc. v. Snader, 165 Ohio St. 61, 64, 133 N.E.2d 606 (1956).
IV. Conclusion
The appeal is dismissed.
It is ordered that appellee recover from appellant costs herein taxed.
It is ordered that a special mandate be sent to said court to carry this judgment
into execution.
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 certified copy of this entry shall constitute the mandate pursuant to
Rule 27 of the Rules of Appellate Procedure.
ANITA LASTER MAYS, ADMINISTRATIVE JUDGE
MARY EILEEN KILBANE, J., CONCURS;
SEAN C. GALLAGHER, J., DISSENTS (WITH SEPARATE OPINION)
SEAN C. GALLAGHER, J., DISSENTING:
The motion to modify child support and obligation for medical
insurance (“the motion”) was filed on November 20, 2020, over a year after P.K.
first invoked the domestic relations court’s continuing jurisdiction through the filing
of a motion to modify a parenting order. That first motion was properly served on
M.E.D. under Loc.R. 19 of the Court of Common Pleas of Cuyahoga County,
Domestic Relations Division, and Civ.R. 75(J) (collectively “service rules”), thereby
invoking the domestic relations court’s continuing jurisdiction. At the time the
motion was filed in November, the court had yet to resolve the parties’ ongoing
litigation. Compliance with those service rules was unnecessary with respect to the
motion as long as the domestic relations court possessed continuing jurisdiction
over the post-decree matters. M.E.D. has not established, much less presented an
argument in favor of, a requirement that each separate, post-decree motion must
comply with the initial service rules.
The trial court’s conclusion that it lacked jurisdiction over the motion
effectively denied J.K. relief. Generally speaking, the denial of a motion to modify
support is a final appealable order because the modification cannot be retroactive
beyond the date of the request. Smith v. Smith, 5th Dist. Fairfield No. 2008 CA
00030, 2009-Ohio-3978, ¶ 41; Zamos v. Zamos, 11th Dist. Portage No. 2002-P-
0085, 2004-Ohio-2310, ¶ 13. Thus, any refiling of the motion would limit the date
upon which the subsequent modification, if any, could be retroactively awarded,
which affects “a substantial right in an action that in effect determines the action
and prevents judgment.” R.C. 2505.02(B)(1).
Refiling a motion to modify child support will not afford the party any
relief. If no immediate appeal is permitted, none can be had and the domestic
relations court’s decision would never be subject to appellate scrutiny.
For this reason, I respectfully dissent and would reverse the decision
of the domestic relations court. The denial of the motion to modify is a final,
appealable order, and in light of the procedural posture of the case at the time the
motion was filed, the court’s continuing jurisdiction was not in question. Dismissal
of the motion was not proper.
KEYWORDS
#112070
Civ.R. 4; Civ.R. 75; Loc.R. 19; motion to modify child support; lack of personal
jurisdiction. The trial court properly dismissed appellant’s motion to modify child
support for lack of personal jurisdiction. Appellant failed to perfect service
pursuant to Civ.R. 4, Civ.R. 75, and Loc.R. 19.