[Cite as Shell v. Higgins, 2017-Ohio-8186.]




                             IN THE COURT OF APPEALS OF OHIO
                                SECOND APPELLATE DISTRICT
                                      DARKE COUNTY

 ABBIE M. SHELL                                     :
                                                    :
         Plaintiff-Appellee                         :   Appellate Case No. 2017-CA-5
                                                    :
 v.                                                 :   Trial Court Case No. 16-DIV-527
                                                    :
 DUSTIN M. HIGGINS                                  :   (Domestic Relations Appeal)
                                                    :
         Defendant-Appellant                        :
                                                    :

                                               ...........

                                              OPINION

                           Rendered on the 13th day of October, 2017.

                                               ...........

KYLE J. LENNEN, Atty. Reg. No. 0085726, 120 West Second Street, Suite 2150, Dayton,
Ohio 45402
      Attorney for Plaintiff-Appellee

RICHARD P. ARTHUR, Atty. Reg. No. 0033580, 1634 South Smithville Road, Dayton,
Ohio 45410
      Attorney for Defendant-Appellant

                                              .............




WELBAUM, J.
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       {¶ 1} Defendant-appellant, Dustin M. Higgins, appeals from a final judgment and

decree of divorce issued by the Darke County Court of Common Pleas, Division of

Domestic Relations. In support of his appeal, Higgins contends that he was not afforded

due process during the divorce proceedings because the trial court failed to provide him

with reasonable notice of the final divorce hearing, which Higgins did not attend.

Because the record indicates that notice was never mailed to Higgins’s last known

address as required by Civ.R. 75(L), the judgment of the trial court will be reversed and

the matter will be remanded for a new hearing.



                           Facts and Course of Proceedings

       {¶ 2} On September 26, 2016, Higgins’s wife, Abbie M. Shell, filed a complaint for

divorce against Higgins.    Shell instructed the trial court to serve the complaint and

summons by certified mail to Higgins at 321 Bissell Avenue, Oil City, Pennsylvania,

16301. On October 17, 2016, the complaint and summons were returned as “unclaimed”

and “unable to forward.”

       {¶ 3} Since service of the complaint and summons failed, on October 21, 2017,

Shell once again instructed the trial court to serve the complaint and summons by certified

mail to Higgins at the Bissell Avenue address. On December 13, 2016, the trial court

received notice that service at that address had failed again, as the complaint and

summons were returned as “not deliverable as addressed” and “unable to forward.”

       {¶ 4} Following the two failed attempts at serving Higgins, on December 14, 2016,

the trial court issued a written notice advising the parties that a pretrial hearing would be
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held on January 5, 2017. In an effort to serve Higgins with the hearing notice, the trial

court sent the notice to the Bissell Avenue address by regular mail. Higgins did not

attend the pretrial hearing.

       {¶ 5} After the pretrial hearing, on January 5, 2017, the trial court issued a written

notice advising the parties that a final divorce hearing would be held on March 14, 2017.

Once again, in an effort to serve Higgins with the hearing notice, the trial court sent the

notice to the Bissell Avenue address by regular mail.

       {¶ 6} A month after the hearing notice was issued, Shell instructed the trial court

to serve the complaint and summons by certified mail to Higgins at 10340 Milton Potsdam

Road, West Milton, Ohio, 45383.        On February 15, 2017, the trial court received a

certified mailer signed by Higgins showing that service of the complaint and summons

was perfected at that address on February 13, 2017.

       {¶ 7} The summons served on Higgins advised that he was required to serve Shell

with an answer to the divorce complaint within 28 days, and that failing to do so would

result in a default judgment being taken against him. Higgins never filed an answer and

never made an appearance during the divorce proceedings. As a result, the final divorce

hearing proceeded as scheduled on March 14, 2017, without Higgins in attendance.

       {¶ 8} A month after the final hearing, on April 17, 2017, the trial court issued a final

judgment and decree of divorce based on the information provided by Shell. It is from

that judgment Higgins now appeals, raising a single assignment of error for our review.



                                   Assignment of Error

       {¶ 9} As his sole assignment of error, Higgins claims that he was not afforded due
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process during the divorce proceedings because he never received notice of the final

divorce hearing on March 14, 2017. We agree.

       {¶ 10} Due process of law is guaranteed by the Fourteenth Amendment to the

United States Constitution and Section 16, Article I of the Ohio Constitution.          Due

process requires that a party receive reasonable notice of judicial proceedings and a

reasonable opportunity to be heard. Ohio Valley Radiology Associates, Inc. v. Ohio

Valley Hosp. Association, 28 Ohio St.3d 118, 125, 502 N.E.2d 599 (1986); Zink v. Zink,

2d Dist. Champaign No. 2006 CA 22, 2007-Ohio-790, ¶ 21.               “The issue of what

constitutes reasonable notice is left for a case-by-case analysis.” Zashin, Rich, Sutula

& Monastra Co., L.P.A. v. Offenberg, 90 Ohio App.3d 436, 443, 629 N.E.2d 1057 (8th

Dist.1993).

       {¶ 11} Civ.R. 75 applies to divorce proceedings and section (L) of that rule

provides the following with regard to notice:

       Notice of Trial. In all cases where there is no counsel of record for the

       adverse party, the court shall give the adverse party notice of the trial upon

       the merits. The notice shall be made by regular mail to the party’s last

       known address, and shall be mailed at least seven days prior to the

       commencement of trial.

       {¶ 12} The notice requirement in Civ.R. 75(L) “is designed to provide an

unrepresented party with the opportunity to appear at the final hearing should he or she

so choose.” Klein v. Cruden, 2d Dist. Montgomery No. 19952, 2004-Ohio-1479, ¶ 23,

citing Somerset v. Somerset, 2d Dist. Montgomery No. 14419, 1995 WL 127891 (Mar.

22, 1995). The requirement is mandatory and a trial court commits reversible error by
                                                                                         -5-

entering judgment without first providing proper notice. Hightower v. Hightower, 10th

Dist. Franklin No. 02AP-37, 2002-Ohio-5488, ¶16.

       {¶ 13} Civ.R. 3(A), which is applicable to divorce actions, see Civ.R. 75(A),

provides in pertinent part that “a civil action is commenced by filing a complaint with the

court if service is obtained within one year from such filing upon a named defendant * *

*.” Therefore, “[u]nder Civ.R. 3(A), an action is not deemed to be ‘commenced’ unless

service of process is obtained within one year from the date of the filing of the action.”

Jacobs v. Szakal, 9th Dist. Summit No. 22219, 2005-Ohio-2146, ¶ 10. Where service of

process is not properly made, a court lacks jurisdiction to consider the complaint.

(Citations omitted.) Lewis v. Moore, 2017-Ohio-4049, ___ N.E.3d ___, ¶ 9 (10th Dist.).

       {¶ 14} In this case, the divorce action was not commenced until Higgins was

served with the complaint and summons at the Milton Potsdam Road address on

February 13, 2017.      Before this, the trial court was without jurisdiction to take any

substantive action regarding the case. Upon commencement of the case, Higgins’s last

known address was at Milton Potsdam Road. Civ.R. 75(L) required notice of the final

hearing date to be sent to that address, but the record indicates a notice was never mailed

there. The final hearing, therefore, occurred without the requisite notice being sent to

Higgins in violation of Civ.R. 75(L).

       {¶ 15} The trial court also violated Civ.R. 75(K), which provides as follows:

       Hearing. No action for divorce, annulment, or legal separation may be heard

       and decided until the expiration of forty-two days after the service of process

       or twenty-eight days after the last publication of notice of the complaint, and

       no action for divorce, annulment, or legal separation shall be heard and
                                                                                        -6-


       decided earlier than twenty-eight days after the service of a counterclaim,

       which under this rule may be designated a cross-complaint, unless the

       plaintiff files a written waiver of the twenty-eight day period.

       {¶ 16} “[T]he 42-day rule under Civ.R. 75(K) is based on Ohio’s now-repealed

statutory ‘cooling-off’ period between filing and hearing in divorce cases.” Crawford v.

Fisher, 10th Dist. Franklin No. 14AP-366, 2015-Ohio-114, ¶ 14, citing Clark v. Clark, 5th

Dist. Fairfield No. 06 CA 8, 2006-Ohio-2902, ¶ 7, citing former G.C. 11985 and former

R.C. 3105.09.    The rule is procedural rather than substantive in nature. Wagner v.

Wagner, 2d Dist. Miami No. 81-CA-1, 1981 WL 2845, *2 (July 1, 1981). Accord Howell

v. Howell, 10th Dist. Franklin No. 13AP-961, 2014-Ohio-2915, ¶ 11-12. Accordingly, any

error in complying with the rule renders a judgment of divorce voidable. Howell at ¶ 12.

       {¶ 17} Here, Higgins was served with process on February 13, 2017, and the final

divorce hearing was held 29 days later on March 14, 2017. Therefore, the trial court

failed to comply with the 42-day rule in Civ.R. 75(K) as well as failing to provide Higgins

with notice of the final hearing as required by Civ.R. 75(L).

       {¶ 18} Moreover, since Civ.R. 75(F) provides that the default judgment rule in

Civ.R. 55 does not apply to divorce proceedings, Higgins was still permitted to appear at

the final divorce hearing and present evidence despite his failure to answer the divorce

complaint or otherwise appear in the action within 28 days of being served. See Rue v.

Rue, 169 Ohio App.3d 160, 862 N.E.2d 166, 2006-Ohio-5131, ¶ 63 (2d Dist.); Wood v.

Hein, 10th Dist. Franklin No. 14AP-382, 2014-Ohio-5564, ¶ 8. Therefore, if Higgins had

appeared for the final divorce hearing, his failure to answer the complaint would not have

barred his participation. However, Higgins claims that he did not appear at the hearing
                                                                                        -7-


due to lack of notice, which is supported by the record of the mailings in this case.

       {¶ 19} Having found that notice of the final divorce hearing was never mailed to

Higgins’s last known address as required by Civ.R. 75(L), and that the final divorce

hearing was not held in compliance with the 42-day rule in Civ.R. 75(K), Higgins’s sole

assignment of error is sustained.



                                       Conclusion

       {¶ 20} The judgment of the trial court is reversed and the matter is remanded for a

new hearing.



                                     .............



FROELICH, J. and TUCKER, J., concur.



Copies mailed to:

Kyle J. Lennen
Richard P. Arthur
Hon. Jonathan P. Hein
