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In re S.A.

Court of Appeals of Ohio, Second District

July 12, 2013

IN RE: S.A.

Civil appeal from Common Pleas Court, Juvenile Division T.C. NO. 2010-8794

PATRICK J. CONBOY II, Atty. Reg. No. 0070073, 5613 Brandt Pike, Huber Heights, Attorney for Plaintiff-Appellant.

D.G., Miamisburg, Defendant-Appellee (Father)

OPINION

DONOVAN, J.

{¶ 1} Plaintiff-appellant Mother appeals a judgment of the Montgomery County Court of Common Pleas, Juvenile Division, overruling her objections and adopting the decision of the magistrate which awarded custody of S.A. to defendant-appellee Father.

{¶ 2} The magistrate's decision awarding Father legal custody of S.A. was issued on October 18, 2012. On November 16, 2012, the trial court issued its judgment adopting the decision of the magistrate. Mother filed a timely notice of appeal with this Court on December 14, 2012.

{¶ 3} The instant action commenced on April 12, 2012, when Father filed a motion for change of custody regarding his daughter, S.A., born January 26, 2009. Instructions for service to Mother were filed by Father on April 12, 2012. On April 30, 2012, a summons was sent to Mother at her last known residence in Indiana regarding the motion for change of custody and the accompanying hearing scheduled to be held on July 16, 2012. The summons was sent by both certified mail and regular mail. On July 25, 2012, a notice of failure of service was filed with respect to the summons issued by certified mail. Conversely, the summons sent by regular mail was not returned, and there is no indication in the record that it was sent back or otherwise refused.

{¶ 4} On August 1, 2012, the magistrate granted a continuance of the custody hearing at the request of Mother. The reason for Mother's request does not appear in the record. The magistrate rescheduled the hearing by entry dated for October 12, 2012. On October 10, 2012, just two days before the re-scheduled hearing, Mother filed a motion with the magistrate to continue the October 12, 2012, hearing date. In her motion, Mother stated that the she was pregnant and, according to her doctor, at a high risk for miscarriage. Thus, Mother argued that she was unable to travel from Florida where she resided at the time. In support of her motion, Mother faxed a letter from her doctor citing complications from her pregnancy as the reason she could not travel by air.

{¶ 5} Nevertheless, the magistrate proceeded with the custody hearing on October 12, 2012, as scheduled. Father attended the hearing, but Mother did not. On October 18, 2012, the magistrate issued its decision granting custody of S.A. to Father. Mother filed timely objections to the magistrate's decision on October 29, 2012. On November 16, 2012, the trial court overruled Mother's objections and adopted the decision of the magistrate.

{¶ 6} It is from this judgment that Mother now appeals.

{¶ 7} Mother's first assignment of error is as follows:

{¶ 8} "THE TRIAL COURT ABUSED ITS DISCRETION IN GRANTING FATHER'S MOTION FOR CHANGE OF CUSTODY."

{¶ 9} In her first assignment, Mother contends that the trial court erred in adopting the decision of the magistrate granting Father's motion for change of custody. Specifically, Mother argues that she was not properly served with a copy of the motion to change custody, and she did not "voluntarily or involuntarily submit to the jurisdiction of the Court." Accordingly, Mother asserts that the judgment against her is void.

{¶ 10} Personal jurisdiction can be obtained through service of process pursuant to the Civil Rules, voluntary appearance, or waiver. Turner v. Duncan, 2d Dist. Montgomery No. 20208, 2004-Ohio-6790, citing Maryhew v. Yova, 11 Ohio St.3d 154, 464 N.E.2d 538 (1984). Without personal jurisdiction, a trial court is without authority to render judgment against a party to an action. Id. at 156. Pursuant to Civ. R. 75(J), Father was required to obtain service of process over Mother in order to invoke the court's continuing jurisdiction to hear his motion for a change in custody. In re Seitz, 11th Dist. Trumbull No. 2002-T-0097, 2003-Ohio-5218. The determination of the ...


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