In re Change of Name of W.A.G. , 91 N.E.3d 225 ( 2017 )

[Cite as In re Change of Name of W.A.G., 2017-Ohio-2997.]
STATE OF OHIO, NOBLE COUNTY
IN THE COURT OF APPEALS
SEVENTH DISTRICT
IN RE:, ) CASE NO. 16 NO 0435
)
CHANGE OF NAME OF: )
)
W.A.G., )
C.T.G., ) OPINION
P.C.G. )
)
)
)
CHARACTER OF PROCEEDINGS: DomRel Prob Appeal from the Probate
Court of Noble County, Ohio
Case No. 20169006
JUDGMENT: Vacated and Remanded.
APPEARANCES:
For Plaintiff-Appellee: Atty. Ryan Regel
Yoss Law Office
425-1/2 Main Street
Caldwell, Ohio 43724
For Defendant-Appellant: Gabriel Bocek, pro se
129 Timber Meadows Drive
O’Fallon, Missouri 63366
JUDGES:
Hon. Carol Ann Robb
Hon. Cheryl L. Waite
Hon. Mary DeGenaro
Dated: May 25, 2017
[Cite as In re Change of Name of W.A.G., 2017-Ohio-2997.]
ROBB, P.J.
{¶1} Defendant-Appellant Gabriel Bocek appeals the decision of Noble
County Probate Court granting Plaintiff-Appellee Kimberly Baker’s Applications for
Change of Name of a Minor. Appellant, pro se, raises two discernable issues. The
first is whether he was properly served with the Applications for Change of Name of a
Minor and notice of the hearing on those Applications. The second is whether the
probate court abused its discretion when it granted the applications.
{¶2} For the reasons expressed below, the trial court’s decision is vacated.
Appellant was not properly served with the Applications and notice of the hearing on
those Applications. Accordingly, the trial court did not obtain personal jurisdiction
over Appellant. This determination renders Appellant’s second argument moot.
Statement of the Case
{¶3} On May 9, 2016 Appellee filed an Application for Change of Name of
Minor pursuant to R.C. 2717.01 for each of the three children fathered by Appellant.
Appellee sought to have the last name of all three children changed from Appellant’s
surname, Bocek, to her maiden name, Gregg. She also sought to have the youngest
child’s middle name become his first name and his middle name become Christian.
The reasons Appellee asked for the name changes were she and her family would
like the Gregg name to be carried on; she has a brother who has two daughters and
will not be having any more children. She also stated she is the one raising the boys
and Appellant does not consistently exercise visitation. Therefore, it would make for
a more cohesive home unit. Also, Appellant has a criminal record; he allegedly
recorded Appellee’s daughter from a previous relationship getting undressed in the
bathroom. Thus, she contends having their father’s last name and the youngest child
having his father’s first name causes embarrassment and will impact their future
negatively.
{¶4} A hearing on the applications was set for June 20, 2016. In the
applications, Appellee stated Appellant was the alleged father and listed his address
as 129 Timber Meadows Driver, O Fallon, Missouri. This is undisputedly the address
for Appellant’s parents, where he sometimes stays. Appellant was sent a notice of
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hearing for the name change by certified mail to that address. The Notice of Hearing
was also published in The Journal-Leader for a one week period.
{¶5} The certified mail was returned unsigned. The envelope stated,
“RETURN TO SENDER UNCLAIMED UNABLE TO FORWARD.” 6/8/16 Certified
Mail Envelope.
{¶6} The hearing was held on June 20, 2016. Appellant did not attend the
hearing. Appellee told the court the Missouri address, Appellant’s parent’s address, is
the only address she has to contact Appellant. Tr. 4-5. Appellee told the court why
she wanted the names changed; she wanted to carry on the Gregg name, she was
never married to Appellant, she is the one who is raising the children, and Appellant
has nothing to do with the children. Tr. 2. She further explained Appellant only saw
them twice the previous year - once at Christmas time for a week and one 24 hour
period in May. Tr. 3. She also stated Appellant does pay child support, but he is not
always current. Tr. 4.
{¶7} The probate court granted the applications. 6/20/16 J.E. Appellant
appealed the decision; his appeal was deemed timely because there was no notation
on the docket he was served with the final order. 8/16/16 NOA; 11/2/16 J.E.
Arguments
{¶8} Appellant filed a letter with this court, which we stated would be
construed as a brief. 12/29/16 Letter; 1/26/17 J.E. There are two discernable
arguments in the letter. The first argument is Appellant was not properly served with
notice of the hearing and applications. The second is the probate court abused its
discretion in granting the application.
A. Service
{¶9} Appellant alleges he was not served with notice of the hearing and
name change applications. This is a challenge to the probate court’s personal
jurisdiction over him.
{¶10} The Application for Change of Name of a Minor is governed by R.C.
2717.01(B). That provision provides:
(B) An application for change of name may be made on behalf of a
minor by either of the minor's parents, a legal guardian, or a guardian
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ad litem. When application is made on behalf of a minor, in addition to
the notice and proof required pursuant to division (A) of this section, the
consent of both living, legal parents of the minor shall be filed, or notice
of the hearing shall be given to the parent or parents not consenting by
certified mail, return receipt requested. If there is no known father of the
minor, the notice shall be given to the person who the mother of the
minor alleges to be the father. If no father is so alleged, or if either
parent or the address of either parent is unknown, notice pursuant to
division (A) of this section shall be sufficient as to the father or parent.
Any additional notice required by this division may be waived in writing
by any person entitled to the notice.
R.C. 2717.01(B).
{¶11} A parent of a minor child is a necessary party who must consent to the
child's name change or be given notice of the proceedings so that he or she may be
heard in the matter. R.C. 2717.01(B); In re Name Change of Denny, 6th Dist. No. L-
05-1134, 2005-Ohio-5023, ¶ 13 (Father filed motion to vacate, which was denied. He
appealed the decision denying the motion to vacate.) See also In re Name Change
of T.N.M.W., 2d Dist. No. 2015-CA-4, 2015-Ohio-2790, ¶ 11. In order to obtain
personal jurisdiction over the non-moving parent, such parent must voluntarily
appear, commit acts which waive a jurisdictional defense, or properly receive service
of process. Id. A judgment rendered by a court that lacks personal jurisdiction over a
defendant is invalid. Maryhew v. Yova, 11 Ohio St.3d 154, 156–159, 464 N.E.2d 538(1984). Thus, a judgment entered without proper service is null and void. In re Name
Change of Denny at ¶ 13.
{¶12} Generally, defendants who do not appear in the trial court proceedings
challenge the trial court’s lack of personal jurisdiction by filing in the trial court a
common law motion to vacate the final judgment as void for lack of personal
jurisdiction. Mayiras v. Sunrise Motors, Inc., 9th Dist. No. 27931, 2017-Ohio-279, ¶
5; Hayes v. A. Bonamase Contracting, Inc., 7th Dist. No. 12 MA 62, 12 MA 161,
2013-Ohio-5383, ¶ 17. Civ.R. 60(B) motions to vacate are not applicable in this
situation because a judgment entered without personal jurisdiction is void and the
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authority to vacate such a judgment “is not derived from Civ.R. 60(B), but rather
constitutes an inherent power possessed by Ohio courts.” C & W Investment Co. v.
Midwest Vending, Inc., 10th Dist. No. 03AP–40, 2003–Ohio–4688, at ¶ 7, citing
Lincoln Tavern v. Snader, 165 Ohio St. 61, 133 N.E.2d 606 (1956), paragraph one of
the syllabus.
{¶13} Appellant, however, has not challenged personal jurisdiction by means
of a collateral attack, i.e., a motion to vacate. Rather, he has raised the issue on
direct appeal, which is permissible. Mayiras, 2017-Ohio-279 at ¶ 5-6; Hayes, 2013-
Ohio-5383 at ¶ 17. By raising the argument on direct appeal and not through a
collateral attack, our consideration of the jurisdictional issue is limited to the
documents filed in the trial court proceedings below. Mayiras, 2017-Ohio-279 at ¶ 6,
citing State v. Hill, 90 Ohio St.3d 571, 573, 740 N.E.2d 282 (2001).
{¶14} The record before us indicates the notice was published in accordance
with R.C. 2717.01(A) and Appellee attempted to have Appellant served by certified
mail, return receipt requested, in accordance with R.C. 2717.01(B). The record
indicates the address on the certified mail was the address Appellee used to contact
Appellant; it was his parents’ address. Furthermore, this is also the address he used
for purposes of filing his appeal. The certified mail, however, was not returned to the
Clerk of Courts signed. Rather, the envelope stated, “RETURN TO SENDER
UNCLAIMED UNABLE TO FORWARD.” 6/08/16 Envelope.
{¶15} R.C. 2717.01 indicates the moving parent must cause notice to be
published in the newspaper of general circulation in the county at least thirty days
before the hearing on the application. R.C. 2717.01(A)(2), (B). The moving parent
must also serve the nonmoving parent by certified mail when the nonmoving parent’s
address is known. R.C. 2717.01(B). If the address of the nonmoving parent is not
known published notice pursuant to division (A) is sufficient notice. R.C. 2717.01(B).
{¶16} Here, Appellant’s address was known; however, the certified mail came
back unclaimed. The fact that the certified mail was returned unclaimed did not
render Appellant’s address unknown and permit only published notice. Rather,
Appellee should have utilized Civ.R. 4 to perfect service on Appellant. See State ex
rel. Loyd v. Lovelady, 108 Ohio St.3d 86, 2006-Ohio-161, 840 N.E.2d 1062, ¶ 6
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(“Section 5(B), Article IV of the Ohio Constitution states that the Supreme Court is
vested with exclusive authority to ‘prescribe rules governing practice and procedure
in all courts of the state, which rules shall not abridge, enlarge, or modify any
substantive right. * * * All laws in conflict with such rules shall be of no further force or
effect after such rules have taken effect.’ Pursuant to this constitutional authority, the
court has adopted the Rules of Civil Procedure, which ‘prescribe the procedure to be
followed in all courts of this state in the exercise of civil jurisdiction.’ Civ.R. 1(A)”).
{¶17} Civ.R. 4.6 titled Process: Limits; Amendment; Service Refused; Service
Unclaimed provides the next step a plaintiff is required to take to have a complaint
served on a defendant when certified mail is unclaimed. Section (D) of that rule
provides:
(D) United States certified or express mail service unclaimed
If a United States certified or express mail envelope attempting service
within or outside the state is returned with an endorsement stating that
the envelope was unclaimed, the clerk shall forthwith notify the attorney
of record or, if there is no attorney of record, the party at whose
instance process was issued and enter the fact and method of
notification on the appearance docket. If the attorney, or serving party,
after notification by the clerk, files with the clerk a written request for
ordinary mail service, the clerk shall send by United States ordinary
mail a copy of the summons and complaint or other document to be
served to the defendant at the address set forth in the caption, or at the
address set forth in written instructions furnished to the clerk. The
mailing shall be evidenced by a certificate of mailing which shall be
completed and filed by the clerk. Answer day shall be twenty-eight days
after the date of mailing as evidenced by the certificate of mailing. The
clerk shall endorse this answer date upon the summons which is sent
by ordinary mail. Service shall be deemed complete when the fact of
mailing is entered of record, provided that the ordinary mail envelope is
not returned by the postal authorities with an endorsement showing
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failure of delivery. If the ordinary mail envelope is returned undelivered,
the clerk shall forthwith notify the attorney, or serving party.
Ohio Civ. R. 4.6.
{¶18} This rule indicates when certified mail is unclaimed, service can be
perfected by regular U.S. mail if the regular mail envelope is not returned by the
postal authorities with an endorsement showing failure of delivery.
{¶19} In holding Civ.R. 4.6 is applicable to the matter at hand, we note our
sister districts have also looked to Civ.R. 4 to determine the requirements for
publication under R.C. 2717.01. In re Name Change of Denny, 6th Dist. No. L-05-
1134, 2005-Ohio-5023, ¶ 14; In re Randolph, 11th Dist. Nos. 2003-T-0017, 2003-T-
0018, 2005-Ohio-414, ¶ 53. Those courts referred to and applied Civ.R. 4.4, which is
titled Process: service by publication. In re Name Change of Denny; In re Randolph.
In Randolph, the non-moving parent sought vacation of the name change for multiple
reasons, one of which was the publication notice failed to state his name and last
known address. In re Randolph at ¶ 53. Nonmoving parent argued publication failed
to comply with Civ.R. 4.4. Id. In holding the publication was required to comply with
Civ.R. 4.4, the appellate court noted R.C. 2717.01(A) does not specifically require
non-moving parent’s name and last known address to be included in the publication.
Id. However, since R.C. 2717.01(B) expressly provides for service on a
nonconsenting parent, the appellate court held Civ.R. 4.4 applies and requires a
notice by publication to include the name and last known address of the
nonconsenting parent. Id.{¶20} We agree with the reasoning from our sister districts and find it to be
persuasive authority for holding Civ.R. 4.6 applicable to R.C. 2717.01(B) when
certified mail is returned unclaimed.
{¶21} Application of Civ.R. 4.6 to the facts of this case indicate the probate
court did not obtain personal jurisdiction over Appellant. The record indicates there
was no attempt of service by regular mail; there is no indication on the record
Appellee directed the clerk of court to attempt service by regular mail. Thus, there
was no compliance with Civ.R. 4.6. The probate court’s decision is void and must be
vacated.
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B. Merits of the Applications for Name Change
{¶22} Appellant’s second argument is the probate court abused its discretion
when it granted the applications for name change. Our resolution of the personal
jurisdiction argument renders this argument moot. As such, it will not be addressed.
Conclusion
{¶23} In conclusion, the probate court did not acquire personal jurisdiction
over Appellant. Accordingly, the probate court’s decision is vacated.
Waite, J., concurs.
DeGenaro, J., concurs.