[Cite as Howell v. Howell, 2014-Ohio-2195.]

                             IN THE COURT OF APPEALS OF OHIO

                                  TENTH APPELLATE DISTRICT


Cynthia L. Howell,                                :

                Plaintiff-Appellant,             :               No. 13AP-961
                                                         (C.P.C. No. 10DR-10-4384)
v.                                               :
                                                        (REGULAR CALENDAR)
Cecil Howell,                                     :

                Defendant-Appellee.               :




                                        D E C I S I O N

                                      Rendered on May 22, 2014


                Mark K. Sabath, for appellant.

                  APPEAL from the Franklin County Court of Common Pleas,
                             Division of Domestic Relations.

BROWN, J.
        {¶ 1} Cynthia L. Howell, plaintiff-appellant, appeals from a judgment of the
Franklin County Court of Common Pleas, Division of Domestic Relations, in which the
court dismissed appellant's motion for contempt and found void the decree of divorce
between appellant and Cecil Howell, defendant-appellee.
        {¶ 2} On November 9, 1985, appellant and appellee were married. Three children
were born during the marriage. On October 22, 2010, appellant filed a complaint for
divorce. Appellee waived service of summons on the same date pursuant to Civ.R. 4(D).
On November 29, 2010, the trial court entered an agreed judgment entry decree of
divorce and shared parenting plan.
No. 13AP-961                                                                                2

        {¶ 3} On May 14, 2013, appellant filed a motion for contempt alleging appellee
had not complied with the terms of the shared parenting plan. The trial court held a
hearing on the motion for contempt on July 16, 2013.
        {¶ 4} On October 10, 2013, the trial court issued a judgment entry in which it
dismissed appellant's motion for contempt and found the parties' decree of divorce void
based upon a violation of Civ.R. 75(K), which requires that 42 days must elapse between
service and the filing of the divorce decree. Appellant appeals the judgment of the trial
court, asserting the following assignment of error:
               THE    TRIAL     COURT      ERRED       AND     ABUSED      ITS
               DISCRETION WHEN IT FOUND THAT CIVIL RULE 75(K)
               IS SUBSTANTIVE AND NOT PROCEDURAL.
        {¶ 5} Appellant argues in her assignment of error that the trial court erred when it
found that Civ.R. 75(K) is substantive and not procedural. Civ.R. 75(K) provides, in
pertinent part:
               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.

        {¶ 6} Here, the trial court found that appellant filed her divorce action on
October 22, 2010, with appellee filing a waiver of service of summons, pursuant to Civ.R.
4(D) the same date, and the divorce decree was filed on November 29, 2010. The court
noted that the elapsed time between the service of process waiver and the divorce decree
was 38 days, which is less than the mandated 42-day period required by Civ.R. 75(K). The
trial court concluded that, because Civ.R. 75(K) is substantive, rather than procedural, the
parties' divorce decree was void.
        {¶ 7} "Jurisdiction" is a court's statutory or constitutional power to adjudicate the
case. Morrison v. Steiner, 32 Ohio St.2d 86, 87 (1972), paragraph one of the syllabus. The
term "jurisdiction" encompasses jurisdiction over the subject matter, over the person, and
over the particular case. Pratts v. Hurley, 102 Ohio St.3d 81, 2004-Ohio-1980, ¶ 11.
Jurisdiction over the particular case involves the trial court's authority to determine a
specific case within the class of cases that is within its subject-matter jurisdiction. Id. at
¶ 12.
No. 13AP-961                                                                             3

       {¶ 8} Procedural irregularities affect the court's jurisdiction over the particular
case and render a judgment voidable, whereas a judgment rendered by a court that lacks
subject-matter jurisdiction is void. In re J.J., 111 Ohio St.3d 205, 2006-Ohio-5484,
paragraph one of syllabus. A voidable judgment is one rendered by a court having subject-
matter jurisdiction and, although seemingly valid, is irregular and erroneous. GMAC,
L.L.C. v. Greene, 10th Dist. No. 08AP-295, 2008-Ohio-4461, ¶ 26, citing State v.
Montgomery, 6th Dist. No. H-02-039, 2003-Ohio-4095, ¶ 9, citing Black's Law
Dictionary 848 (7th Ed.1999). A void judgment is considered a legal nullity. Id. at ¶ 27,
citing Montgomery at ¶ 10, citing Clark v. Wilson, 11th Dist. No. 2000-T-0063 (July 28,
2000). A court has the inherent authority to vacate a void judgment and that void
judgment may be challenged at any time. Milton Banking Co. v. Dulaney, 4th Dist. No.
09CA10, 2010-Ohio-1907, ¶ 26. To the contrary, a voidable judgment may be challenged
only on direct appeal or a Civ.R. 60(B) motion. GMAC at ¶ 26, citing Montgomery at ¶ 9.
A court has no inherent authority to vacate voidable judgments. McIntyre v. Braydich,
11th Dist. No. 96-T-5602 (Dec. 5, 1997).
       {¶ 9} Accordingly, in the present case, if the trial court's failure to comply with
Civ.R. 75(K) rendered the decree of divorce void, then the trial court possessed the
inherent authority to vacate the same at any time. However, if the trial court's failure to
comply with Civ.R. 75(K) rendered the decree of divorce voidable, then the trial court did
not possess inherent authority to vacate it.
       {¶ 10} In arriving at its conclusion that Civ.R. 75(K) is substantive and the
violation thereof rendered the decree void, the trial court relied upon Clark v. Clark, 5th
Dist. No. 06 CA 8, 2006-Ohio-2902. In Clark, the court vacated a final divorce decree
that had been issued 38 days after service of process, based upon Civ.R. 75(K). The court
in Clark, in turn, relied upon Robinette v. Robinette, 41 Ohio App.3d 25 (5th Dist.1988).
In Robinette, the court discussed the history of Ohio's "cooling off" or waiting period
between filing and hearing, which was found in Civ.R. 75(J) at that time. The court found
that Civ.R. 75(J) continued the 42-day hearing waiting period after the repeal of R.C.
3105.09, which included a similar provision. The court in Robinette "reject[ed] the
argument that the Civil Rule adoption and statutory repeal converted the waiting period
from a nonwaivable (substantive) right to a waivable (procedural) right, and conclude[d]
No. 13AP-961                                                                                4

that the Ohio Supreme Court intended to preserve the concept of a 'waiting period' as
previously recited in Ohio legislation, i.e., the forty-two day (twenty-eight day) waiting
period may not be waived." Id. at 27. Thus, the court in Robinette found a "trial court errs
as a matter of law when it grants an alimony decree prior to forty-two days after service of
process, or waiver thereof, or twenty-eight days after completion of service by
publication." Id.
       {¶ 11} However, the court in Clark acknowledged that the Second District Court of
Appeals in Wagner v. Wagner, 2d Dist. No. 81-CA-1 (July 1, 1981), came to a different
conclusion. In Wagner, the court found that the waiting period in Civ.R. 75(J), as part of a
procedural civil rule, neither extended nor limited the jurisdiction of the common pleas
court. In addressing whether Civ.R. 75(J) was a substantive or procedural law, the court
noted that Civ.R. 82 provides that the Ohio Rules of Civil Procedure "shall not be
construed to extend or limit the jurisdiction of the courts of this state." The court went on
to explain that the staff note to Civ.R. 82 states that subject-matter jurisdiction of several
courts is established by the Constitution and statutes of Ohio, and the Ohio Rules of Civil
Procedure do not broaden or narrow that jurisdiction; the rules, procedural in nature,
merely facilitate the application of that jurisdiction. The court in Wagner found that,
while "cooling off" statutes in other jurisdictions have been held to be jurisdictional, Ohio
has no such "cooling off" statute with the repeal of R.C. 3105.09. Id. Rather, the court
found, "cooling off" provisions are now contained in a procedural civil rule that neither
extends nor limits the jurisdiction of the common pleas court pursuant to Civ.R. 82.
       {¶ 12} We believe Wagner provides the better analysis and concur that, given the
explicit wording of Civ.R. 82 that the Ohio Rules of Civil Procedure cannot broaden or
narrow the jurisdiction of the courts, the 42-day waiting period provided in Civ.R. 75(K) is
procedural in nature. See, e.g., Buckles v. Buckles, 46 Ohio App.3d 118 (10th Dist.1988)
(neither the Civil Rules nor any other procedural rule promulgated by the Supreme Court
of Ohio can determine the jurisdiction of a court even if they purport to do so, because the
Ohio Constitution, Article IV, Section 5(B), does not permit the procedural rules to
determine jurisdiction or any substantive right, citing Civ.R. 82); Dowdle v. Dowdle, 7th
Dist. No. 482 (Aug. 7, 1997) (the Civil Rules do not determine the jurisdiction of an
appellate court, a trial court, or any other court; jurisdiction is determined by the Ohio
No. 13AP-961                                                                               5

Constitution, and Civ.R. 82 validates such); Brooks v. Brooks, 2d Dist. No. 15789 (Nov. 8,
1996) (unquestionably, all civil rules are procedural devices that do not extend or limit the
jurisdiction of the courts of this state, as declared in Civ.R. 82). Thus, because a
procedural irregularity renders a judgment merely voidable, and a court does not have
any inherent authority to vacate a voidable judgment, the trial court here could not vacate
the parties' divorce decree for failure to comply with the 42-day rule in Civ.R. 75(K) while
only appellant's motion for contempt was before the court. For these reasons, the trial
court erred when it found the divorce decree void. Therefore, appellant's assignment of
error is sustained.
       {¶ 13} Accordingly, we sustain appellant's sole assignment of error and reverse the
judgment of the Franklin County Court of Common Pleas, Division of Domestic Relations.
                                                                        Judgment reversed.

                      O'GRADY and LUPER SCHUSTER, JJ., concur.

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