Young v. Young

[Cite as Young v. Young, 2012-Ohio-3480.]
IN THE COURT OF APPEALS OF OHIO
FOURTH APPELLATE DISTRICT
LAWRENCE COUNTY
DIANA YOUNG, :
:
Plaintiff-Appellee, : Case No. 11CA19
:
vs. : Released: July 24, 2012
:
MORRIS K. YOUNG, : DECISION AND JUDGMENT
: ENTRY
Defendant-Appellant. :
APPEARANCES:
Morris K. Young, Marion, Ohio, Appellant, pro se.
Robert C. Anderson, Ironton, Ohio, for Appellee.
McFarland, J.:
{¶1} Appellant Morris K. Young appeals the decision of the Lawrence
County Court of Common Pleas denying his motion for relief from judgment.
Appellant argued the trial court should have vacated his divorce decree because 1)
he was not served with the complaint; and, 2) his wife misled him into believing
she had withdrawn the complaint for divorce. Having reviewed the record, we find
the trial court’s decision denying Appellant’s motion was not an abuse of
discretion and we affirm its judgment.
Lawrence App. No. 11CA19 2
FACTS
{¶2} Appellant’s wife Diana Young (“Young”) filed a complaint for divorce
on February 1, 1989, while Appellant was incarcerated in the Lawrence County
Jail. A Lawrence County Sheriff’s deputy personally served a copy of the
complaint on Appellant the same day.
{¶3} On March 29, 1989, finding Appellant in default for failing to answer
the complaint for divorce, the trial court entered its divorce decree. The decree
awarded all marital assets to Young, including the marital debt. In exchange for
Young having to pay the marital debts, the court awarded her the proceeds of
Appellant’s pension and his two life insurance policies.
{¶4} Appellant claims Young visited him in 1989 while he was incarcerated
and told him she had “put a stop to the divorce.” Appellant claims in 1995 he
attempted to add Young to his list of approved visitors while he was still
incarcerated, but prison staff informed him it was improper to list Young as his
“wife” because they were divorced and instead Appellant had to list her as a
“friend.” Appellant claims this is the first he knew that Young was not his wife
and she had not actually withdrawn her complaint for divorce.
{¶5} Despite the original divorce decree granting Young the proceeds of
Appellant’s pension, despite allegedly learning in 1995 that Young had indeed
divorced him, and despite attempting to amend a qualified domestic relations order
Lawrence App. No. 11CA19 3
that issued in July 2010 Appellant waited until April 22, 2011 to file a motion
pursuant to Civ.R. 60(B), requesting the court vacate its judgment entry,
presumably the divorce decree from 1989. Appellant’s basis for his motion was
Young had committed fraud and perjury by listing an inaccurate address for
Appellant, fabricating a story to receive Appellant’s pension, and a claim that
Appellant had no knowledge of the complaint.
{¶6} The court set the matter for a hearing on May 25, 2011, and on May 26,
2011, the magistrate recommended the court deny Appellant’s motion. Appellant
did not file any objections to the magistrate’s recommendation. The court then
adopted the magistrate’s decision and denied Appellant’s motion on August 8,
2011. Appellant timely appealed the trial court’s decision.
ASSIGNMENT OF ERROR
I. “TRIAL COURT IMPROPERLY DISMISSED RELIEF”
A. Standard of Review
{¶7} “Our standard of review regarding a trial court’s Civ.R. 60(B) decision
is well-settled: ‘Absent an abuse of discretion, we will not disturb a trial court’s
decision to grant or deny a Civ.R. 60(B) motion.’” PHH Mtge. Corp. v. Northup,
4th Dist. No. 11CA6, 2011-Ohio-6814, at ¶ 11, quoting Griffey v. Rajan, 33 Ohio
St.3d 75, 77, 514 N.E.2d 1122 (1987). “‘The term “abuse of discretion” connotes
more than an error of law or judgment; it implies that the court’s attitude is
Lawrence App. No. 11CA19 4
unreasonable, arbitrary or unconscionable.’” (Citations omitted.) Blakemore v.
Blakemore, 5 Ohio St. 3d 217, 219, 450 N.E.2d 1140 (1983), quoting State v.
Adams, 62 Ohio St. 2d 151, 157, 404 N.E.2d 144 (1980). “Under this highly
deferential standard of review, we may not simply substitute our judgment for that
of the trial court.” Woody v. Woody, 4th Dist. No. 09CA34, 2010-Ohio-6049, at ¶
35, citing In re Jane Doe I, 57 Ohio St. 3d 135, 137-138, 566 N.E.2d 1181 (1991).
“Rather, we are limited to determining whether considering the totality of the
circumstances, the trial court acted unreasonably, arbitrarily or unconscionably.”
Id., citing Briganti v. Briganti, 9 Ohio St. 3d 220, 222, 459 N.E.2d 896 (1984),
citing Blakemore, 5 Ohio St. 3d at 218-220.
B. Legal Analysis
Civ.R. 60(B) provides:
On motion and upon such terms as are just, the court may relieve a
party or his legal representative from a final judgment, order or
proceeding for the following reasons: (1) mistake, inadvertence,
surprise or excusable neglect; (2) newly discovered evidence which
by due diligence could not have been discovered in time to move for a
new trial under Rule 59(B); (3) fraud (whether heretofore
denominated intrinsic or extrinsic), misrepresentation or other
misconduct of an adverse party; (4) the judgment has been satisfied,
Lawrence App. No. 11CA19 5
released or discharged, or a prior judgment upon which it is based has
been reversed or otherwise vacated, or it is no longer equitable that
the judgment should have prospective application; or (5) any other
reason justifying relief from the judgment.
To prevail on a Civ.R. 60(B) motion, the movant must demonstrate: (1) the party
has a meritorious defense or claim to present if relief is granted; (2) the party is
entitled to relief under one of the grounds stated in Civ.R. 60(B)(1) through (5);
and (3) the motion is made within a reasonable time, and, where the grounds of
relief are Civ.R. 60(B)(1), (2) or (3), not more than one year after the judgment,
order or proceeding was entered or taken. GTE Automatic Elec., Inc. v. ARC
Industries, Inc., 47 Ohio St. 2d 146, 351 N.E.2d 113 (1976), at paragraph two of the
syllabus.
{¶8} A defendant may raise the issue of insufficient service of process
through a Civ.R. 60(B) motion, but he “need not establish either a meritorious
defense or that the motion was timely under Civ.R. 60(B).” CompuServe, Inc. v.
Trionfo, 91 Ohio App. 3d 157, 161, 631 N.E.2d 1120 (10th Dist. 1993). This is so
because “[w]here a plaintiff has not perfected service on a defendant, and the
defendant has not appeared in the case or waived service, the court lacks
jurisdiction to render a default judgment against the defendant.” Waterford Tower
Condominium Assoc. v. Transamerica Real Estate Group, 10th Dist. No. 05AP-
Lawrence App. No. 11CA19 6
593, 2006-Ohio-508, at ¶ 17, citing Rite Rug Co., Inc. v. Wilson, 106 Ohio App. 3d
59, 62, 665 N.E.2d 260 (10th Dist. 1995). Thus, where effective service is lacking,
a default judgment is void, and the Court’s “‘authority to vacate a void judgment
“is not derived from Civ.R. 60(B), but rather constitutes an inherent power
possessed by Ohio courts.”’” Id., citing Bowling v. Grange Mut. Cas. Co., 10th
Dist. No. 05AP-51, 2005-Ohio-5924, at ¶ 27, citing Neiswinter v. Nationwide Mut.
Fire Ins. Co., 9th Dist. No. 21691, 2004-Ohio-3943, and quoting Gupta v.
Edgecombe, 10th Dist. No. 03AP-807, 2004-Ohio-3227, at ¶ 12, quoting
CompuServe, at 161.
{¶9} Here, the trial court did not abuse its discretion in denying Appellant’s
Civ.R. 60(B) motion. Appellant’s contention that he did not receive notice of the
complaint is meritless. To the extent Appellant contends Young prevented him
from filing a timely answer by misleading him to believe she had withdrawn the
complaint, that portion of Appellant’s motion is untimely.
{¶10} First, the complaint accurately listed Appellant’s address on February
1, 1989 as the Lawrence County Jail. This is the address at which a sheriff’s
deputy had personally served a copy of the complaint upon Appellant, as
evidenced by the signed return of service.
{¶11} Second, although Appellant claimed he had no notice of the
complaint, he admitted in his motion and in his affidavit of April 20, 2011 that he
Lawrence App. No. 11CA19 7
actually received the complaint. Consequently, Appellant’s contention that he had
no notice of the complaint is simply untrue.
{¶12} Regarding Appellant’s argument that Young committed fraud by
telling him she had withdrawn the complaint for divorce, Appellant’s argument is
untimely. Assuming Appellant’s representation of the facts is true, he knew in
1995 that the complaint for divorce had not been withdrawn and the divorce had
proceeded to completion. If Appellant is arguing fraud under Civ.R. 60(B)(3) or
excusable neglect under Civ.R. 60(B)(1), he had to file his Civ.R. 60(B) motion
within one year. Instead, Appellant waited 16 years, rendering his motion
untimely. Even if Appellant’s motion can be understood as invoking the catchall
provision of Civ.R. 60(B)(5), which does not contain the one-year limitation
period, we find filing a motion 16 years later is untimely.
{¶13} Accordingly, we find the trial court did not abuse its discretion when
it denied Appellant’s Civ.R. 60(B) motion and we affirm its judgment.
JUDGMENT AFFIRMED.
Lawrence App. No. 11CA19 8
JUDGMENT ENTRY
It is ordered that the JUDGMENT BE AFFIRMED and that the Appellee
recover of Appellant costs herein taxed.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the
Lawrence County Common Pleas Court to carry this judgment into execution.
Any stay previously granted by this Court is hereby terminated as of the date
of this entry.
A certified copy of this entry shall constitute the mandate pursuant to Rule
27 of the Rules of Appellate Procedure.
Exceptions.
Harsha, J. and Kline, J.: Concur in Judgment and Opinion.
For the Court,
BY: _________________________
Matthew W. McFarland, Judge
NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a final
judgment entry and the time period for further appeal commences from the
date of filing with the clerk.