[Cite as Young v. Young,

.]

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she had withdrawn the complaint for divorce.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and she had not actually withdrawn her complaint for divorce.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,

, quoting Griffey v. Rajan,

,

(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,

,

(1983), quoting State v.

Adams,

,

(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,

, citing In re Jane Doe I,

,

(1991).

“Rather, we are limited to determining whether considering the totality of the

circumstances, the trial court acted unreasonably, arbitrarily or unconscionably.”

citing Briganti v. Briganti,

,

(1984),

citing Blakemore,

.

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.,

,

(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,

,

(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,

, citing Rite Rug Co., Inc. v. Wilson,

,

(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.”’”

citing Bowling v. Grange Mut. Cas. Co., 10th

Dist. No. 05AP-51,

, citing Neiswinter v. Nationwide Mut.

Fire Ins. Co., 9th Dist. No. 21691,

, and quoting Gupta v.

Edgecombe, 10th Dist. No. 03AP-807,

, 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.