[Cite as Goodwin v. Goodwin, 2011-Ohio-3263.]


         Court of Appeals of Ohio
                               EIGHTH APPELLATE DISTRICT
                                  COUNTY OF CUYAHOGA


                          JOURNAL ENTRY AND OPINION
                                   No. 96151


                              EVONNE GOODWIN
                                                      PLAINTIFF-APPELLEE

                                                vs.

                              JEFFREY GOODWIN
                                                      DEFENDANT-APPELLANT




                                JUDGMENT:
                          REVERSED AND REMANDED


                                 Civil Appeal from the
                        Cuyahoga County Court of Common Pleas
                             Domestic Relations Division
                                  Case No. D-309526

        BEFORE:          S. Gallagher, J., Stewart, P.J., and Rocco, J.

        RELEASED AND JOURNALIZED: June 30, 2011
FOR APPELLANT

Jeffrey Goodwin, pro se
Inmate #A551-030
Grafton Correctional Institution
2500 South Avon-Belden Road
Grafton, OH 44044

FOR APPELLEE

Evonne Goodwin, pro se
9606 Talbot Avenue
Cleveland, OH 44106




SEAN C. GALLAGHER, J.:

       {¶ 1} This cause came to be heard upon the accelerated calendar

pursuant to App.R. 11.1 and Loc.R. 11.1, the trial court records, and

appellant’s brief.

       {¶ 2} Appellant Jeffery Goodwin (“husband”), pro se, appeals the decision of the

Cuyahoga County Court of Common Pleas, Domestic Relations Division, that denied, without

hearing, his motion to vacate the final entry of divorce entered on July 7, 2006. For the

following reasons, we reverse the decision of the domestic relations court and remand for

further proceedings.
       {¶ 3} On June 2, 2003, Goodwin married appellee Evonna Goodwin (“wife”) in

Marion, Ohio.      Wife, pro se, filed for divorce on March 14, 2006.      Wife perfected service
               1




of the complaint by regular mail service on husband at 748 Eddy Road, Cleveland, Ohio

(“Eddy Road address”), after the certified mailer was returned “unclaimed” to the same

address.   The domestic relations court proceeded to hold a hearing and granted the

uncontested divorce.    The court journalized its final order on July 7, 2006.

       {¶ 4} On November 9, 2010, husband filed a motion to vacate the divorce judgment

pursuant to Civ.R. 60(B).    Among other arguments, husband claimed that he had no notice of

the divorce action “until after the decree,” the allegations in the complaint for divorce were

false, wife knew where he was when the complaint was filed, and wife committed perjury by

providing false information in an affidavit of poverty.            The domestic relations court

summarily denied husband’s uncontested motion.           It is from this decision that husband

appeals, asserting two assignments of errors, which are as follows:

       “The domestic relations court erred through failure to adhere to the statutory
       mandates of O.R.C. §3105.171(B) by failure to make a determination of the
       division of marital property in violation of clearly established law.”

       “The domestic relations court erred by refusing to set asside [sic] the default
       judgment order in light of an averment of operative facts in regards to fraud
       upon the court through perjury within the poverty affidavit and failure to
       comply with civil rule 4.1 and, 4.4.”


       1
           We note that husband’s name appears in the record as “Jeffrey,” “Jeffray,” and “Jeffery,”
and that wife’s name appears as “Evonna” and “Evonne.”
       {¶ 5} Husband essentially argues that the domestic relations court abused its

discretion by not vacating the judgment of divorce and by not holding a hearing in order for

husband to establish the evidentiary basis of his motion.       Husband’s discussion of R.C.

3105.171(B) goes to the meritorious defense aspect of a motion to vacate.     Both assignments

of error relate to the domestic relations court’s failing to vacate the judgment of divorce, and

therefore we will address both assignments together.

       {¶ 6} The standard of review on an appeal of a Civ.R. 60(B) motion to vacate is an

abuse of discretion.    Rose Chevrolet, Inc. v. Adams (1988), 36 Ohio St.3d 17, 20, 520

N.E.2d 564. “Abuse of discretion connotes more than an error of law or of judgment; it

implies an unreasonable, arbitrary or unconscionable attitude on the part of the court.”

(Citations and quotations omitted.) Landis v. Grange Mut. Ins. Co., 82 Ohio St.3d 339, 342,

1998-Ohio-387, 695 N.E.2d 1140.

       {¶ 7} In order to prevail on a motion brought under Civ.R. 60(B), the moving party

must demonstrate all of the following elements: (1) a meritorious claim or defense; (2)

entitlement to relief under one of the grounds stated in Civ.R. 60(B)(1) through (5); and (3)

timeliness of the motion.   GTE Automatic Elec., Inc. v. ARC Industries, Inc. (1976), 47 Ohio

St.2d 146, 150-151, 351 N.E.2d 113.        In cases where the grounds of relief are Civ.R.

60(B)(1), (2), or (3), a motion to vacate is timely if filed not more than one year after the
judgment was entered.       Id.   Where the grounds for relief are based on Civ.R. 60(B)(4) or

(5), the motion to vacate must be filed within a reasonable time, which is fact dependent.

       {¶ 8} Trial courts must grant a hearing to take evidence if a Civ.R. 60(B) motion

contains allegations of operative facts that would warrant relief from judgment. Kay v. Marc

Glassman, Inc., 76 Ohio St.3d 18, 1996-Ohio-430, 665 N.E.2d 1102.              “Conversely, an

evidentiary hearing is not required where the motion and attached evidentiary material do not

contain allegations of operative facts which would warrant relief under Civ.R. 60(B).”

(Internal citations omitted.)     State ex rel. Richard v. Seidner, 76 Ohio St.3d 149, 151,

1996-Ohio-54, 666 N.E.2d 1134.

       {¶ 9} “[I]t is a fundamental tenet of judicial review in Ohio that courts should decide

cases on the merits.”      DeHart v. Aetna Life Ins. Co. (1982), 69 Ohio St.2d 189, 192, 431

N.E.2d 644.    While we cannot ignore the Rules of Civil Procedure, we can allow some

degree of latitude to litigants appearing pro se.     It is with this overarching rubric that we

review the current case.

       {¶ 10} In order to be entitled to a hearing pursuant to Civ.R. 60(B), husband need only

include operative facts in his motion to vacate that satisfy the three elements set forth by the

Supreme Court in GTE Automatic Elec., 47 Ohio St.2d at 150-151.            Wife did not file an

opposition brief with the domestic relations court.    On appeal, husband claims the domestic
relations court should have held a hearing based on the allegations of operative facts contained

in the motion to vacate.     We agree, but not for the reason cited by husband.

        {¶ 11} The final judgment of divorce was entered in July 2006, over four years prior to

husband’s filing a motion to vacate pursuant to Civ.R. 60(B).       The domestic relations court

normally would not abuse its discretion in summarily denying a motion to vacate that does not

contain operative facts to satisfy the three GTE Automatic elements listed above, especially in

light of the fact that there was no reason behind the delay in filing the motion to vacate. Kay,

76 Ohio St.3d 18.      However, buried and easily overlooked within his brief were two

references to lack of service of process, which challenge the domestic relations court’s

jurisdiction over husband.

        {¶ 12} Husband stated that he never lived at the Eddy Road address and that wife’s

attempts to locate a proper address did not constitute the “reasonable diligence required of

Civ.R. 4.4(B).”   We acknowledge that the rule cited is inapplicable to the disposition of his

motion and further complicated review of it — Civ.R. 4.4(B) deals with serving by publication

when the defendant’s residence is known.        Service was perfected by regular mail.   Despite

the error in citation, husband sufficiently raised the improper service issue with the domestic

relations court, at least necessitating a hearing to take evidence and determine the witness’s

credibility.
       {¶ 13} A trial court lacks jurisdiction to render a judgment against a defendant if

service of process is improper and the defendant has not appeared or waived service. Money

Tree Loan Co. v. Williams, 169 Ohio App.3d 336, 341, 2006-Ohio-5568, 862 N.E.2d 885.

The authority to vacate such a judgment does not derive from Civ.R. 60(B), but from the

inherent power of the court. Patton v. Diemer (1988), 35 Ohio St.3d 68, 518 N.E.2d 941.

Compliance with Civ.R. 60(B) is unnecessary to vacate a void decree.       Id.   A review of the

record reveals that husband did not appear or waive service prior to the final judgment entry.

       {¶ 14} “[S]ervice of process must be made in a manner reasonably calculated to

apprise interested parties of the action and to afford them an opportunity to respond.”   Money

Tree Loan Co., 169 Ohio App.3d at 341. In Money Tree, this court held that a “trial court

errs in summarily overruling a defendant’s motion to set aside a judgment for lack of service,

when the defendant submits a sworn statement that she did not receive service of process,

without affording the defendant a hearing.”   Id. at ¶ 11.

       {¶ 15} The domestic relations court properly relied on the presumption of service

reflected on its docket.   Wife complied with Civ.R. 4.1 by causing the clerk to send regular

mail service to the Eddy Road address when the certified mailer was returned “unclaimed.”

Husband, however, argued that he never lived at the Eddy Road address and that wife’s

attempts to locate a proper address did not constitute reasonable diligence because she was

aware he never lived there.
       {¶ 16} We acknowledge husband in this case did not submit the required affidavit or

otherwise provide a sworn statement to substantiate the allegation he never lived at the Eddy

Road address.     We nonetheless extend the rationale from Money Tree in this specific

instance.   Husband’s allegation sufficiently challenges the presumption of proper service in

the divorce proceedings, and there is no indication that a proper affidavit would have differed

from the factual allegations included in his motion.    The procedural deficiency in failing to

include a properly framed affidavit with his motion and the fact the opposing party failed to

respond should not deprive the domestic relations court of the ability to address the merits of

the motion.

       {¶ 17} Again, we understand how a pro se motion challenging the jurisdiction of the

court, filed more than four years after the final judgment entry, can result in denial of the

motion without hearing.     Nevertheless, we find the domestic relations court erred when it

denied the motion to vacate without first holding a hearing to determine the witness’s

credibility and the sufficiency of the evidence.    We note that it is not necessary to prove

actual service on the defendant in order to contradict sworn evidence attesting to non-service.

In re H.T., Summit App. No. 24087, 2008-Ohio-3436, ¶ 21.          The trial court may find that

the evidence presented at such a hearing, if any, is insufficient or incredible and thereby fails

to rebut the presumption of proper service.   We reverse the decision of the domestic relations

court and remand for further proceedings consistent with this opinion.
       It is ordered that appellant recover from appellee 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 common pleas

court to carry this judgment into execution.

       A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the

Rules of Appellate Procedure.




SEAN C. GALLAGHER, JUDGE

MELODY J. STEWART, P.J., and
KENNETH A. ROCCO, J., CONCUR
