[Cite as Pezzenti v. Pezzenti, 2020-Ohio-3585.]




             IN THE COURT OF APPEALS OF OHIO
                              SEVENTH APPELLATE DISTRICT
                                  MAHONING COUNTY

                                     DEBORAH A. PEZZENTI,

                                           Plaintiff-Appellee,

                                                      v.

                                       ALBERT F. PEZZENTI,

                                        Defendant-Appellant.


                        OPINION AND JUDGMENT ENTRY
                                          Case No. 19 MA 0085


                              Domestic Relations Appeal from the
                       Court of Common Pleas of Mahoning County, Ohio
                                    Case No. 18 DR 444

                                          BEFORE:
                   Gene Donofrio, Cheryl L. Waite, Carol Ann Robb, Judges.


                                                  JUDGMENT:
                                                    Affirmed



 Atty. David Anthony, Anthony & Zomoida, LLC., 40 South Main Street, Poland, Ohio
 44514, for Plaintiff-Appellee and

 Atty. James Gentile, DeGenova & Yarwood, Ltd., The Liberty Building, 42 North
 Phelps Street, Youngstown, Ohio 44503 for Defendant-Appellant.
                                                                                         –2–



                                          Dated:
                                       June 25, 2020

 Donofrio, J.

       {¶1}     Defendant-appellant, Albert Pezzenti, appeals the judgment of the
Mahoning County Common Pleas Court, Domestic Relations Division overruling his
objection to a magistrate’s decision following a bench trial.
       {¶2}     On September 12, 2018, plaintiff-appellee, Deborah Pezzenti, filed a
complaint for divorce against appellant. Appellee instructed the clerk to serve appellant
process at 1980 Ridgelawn Drive in Youngstown, Ohio. At the time, appellant owned this
residence and the parties’ adult daughter, Tina Pezzenti, resided at this residence.
Service was completed on September 15, 2018. The clerk received the signed service
return receipt on September 17, 2018.
       {¶3}     Appellant did not appear in this action. At some point, it was discovered
that appellant may not have been residing at 1980 Ridgelawn Drive. Additionally, the
magistrate noted that appellee’s complaint did not contain an affidavit of property or an
affidavit of income and expenses. On February 6, 2019, the magistrate ordered appellee
to file those affidavits and ordered appellee to instruct the clerk to serve them on appellant
at 1980 Ridgelawn Drive and at 3610 Edgewater Drive in Vermillion, Ohio.                 The
instructions for service indicates that appellant’s address was not updated and the
affidavits were only sent to appellant at 1980 Ridgelawn Drive. But appellee’s certificate
of service on both affidavits indicates that they were sent by regular mail to appellant at
both addresses.
       {¶4}     On April 3, 2019, the magistrate held a trial on appellee’s complaint for
divorce. Appellant did not appear for trial. On May 9, 2019, the magistrate issued its
decision which divided the marital property and decided that appellant was to pay spousal
support of $2,800 per month to appellee.
       {¶5}     On May 22, 2019, appellant filed an objection to the magistrate’s decision.
Appellant argued that he was not properly served notice of this action or notice of any
hearings because he did not reside at 1980 Ridgelawn Drive.




Case No. 19 MA 0085
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       {¶6}    Appellant filed two affidavits in support of his objection: one from him and
one from the parties’ daughter Tina. Appellant’s affidavit averred that he had not resided
at 1980 Ridgelawn Drive since September 12, 2018. Appellant also averred that: Tina
resided at that property; Tina was not served with process; service failed on four other
occasions; and that he was not provided notice of the trial date. Tina’s affidavit averred
that she was the only resident at 1980 Ridgelawn Drive and that appellant had not resided
there since September 12, 2018. Tina also averred that she did not sign for the service.
       {¶7}    On July 5, 2019, the trial court overruled appellant’s objection and adopted
the magistrate’s decision. The trial court held that because there was a signed return
receipt with the original service, there was a presumption that service was effective. The
trial court held that appellant did not provide sufficient evidence to rebut the presumption
of effective service and that appellant’s and Tina’s affidavits were self-serving.
       {¶8}    Appellant timely filed his notice of appeal on July 29, 2019. Appellant now
raises one assignment of error.
       {¶9}    Appellant’s sole assignment of error states:

               THE COURT LACKED JURISDICTION TO HEAR THE DIVORCE
       CASE SINCE APPELLANT WAS NOT SERVED WITH THE DIVORCE
       COMPLAINT IN ACCORDANCE WITH THE OHIO CIVIL RULES AND AS
       A RESULT VIOLATED APPELLANT’S DUE PROCESS RIGHTS.

       {¶10}   Appellant argues that the trial court erred when it overruled his objection
because he was not properly served process. He argues that he did not reside at 1980
Ridgelawn Drive and the fact that someone signed for service at that address is of no
consequence because it was not his residence.
       {¶11}   A trial court’s ruling on a magistrate’s decision is subject to an abuse of
discretion standard of review. Kniszek v. Kniszek, 7th Dist. Belmont No. 08 JE 30, 2009-
Ohio-3249, ¶ 26. An abuse of discretion is more than an error of law or judgment; it
implies that the trial court's judgment was unreasonable, arbitrary, or unconscionable.
Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983).
       {¶12}   Due process requires that service of process be accomplished in a manner
“reasonably calculated, under all the circumstances, to apprise [interested parties] of the



Case No. 19 MA 0085
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pendency of the action.” Samson Sales, Inc. v. Honeywell, Inc., 66 Ohio St.2d 290, 293,
421 N.E.2d 522 (1981). Service of process must comply with Civ.R. 4.1 through 4.6. The
plaintiff bears the burden of achieving proper service on the defendant. Draghin v. Issa,
8th Dist. Cuyahoga No. 98890, 2013-Ohio-1898, ¶ 21. There is a rebuttable presumption
of proper service when the civil rules governing service are followed. Id. at ¶ 10.
       {¶13}   Appellant’s argument is that he did not receive service and any service
sent to 1980 Ridgelawn Drive was not effective. In support of these arguments, he cites
his and Tina’s affidavits where they both aver that, as of September 12, 2018 (the date
appellee filed the complaint for divorce), appellant did not live at 1980 Ridgelawn Drive.
       {¶14}   Appellant’s argument implicates two rules: Civ.R. 4.1 (Process: Methods
of Service) and Civ.R. 4.2 (Process: Who May be Served).                Pursuant to Civ.R.
4.1(A)(1)(a), the clerk can deliver service by U.S. certified or express mail evidenced by
a return receipt signed by any person.
       {¶15} In this case, the clerk sent service by U.S. certified mail on September 12,
2018. The clerk received the signed returned receipt for service of the summons and
complaint on September 17, 2018. There are three boxes that have been filled out on
the return receipt: the signature box, the printed name box, and a box labeled “[i]s delivery
address different from Item 1?” “Item 1” on the return receipt is the address and the name
of the addressee. The “delivery address different” box has been checked “no.” As the
trial court notes, the signature box appears to be a capital “G” or “T” followed by a capital
“P.” The printed name box clearly reads “Tina Pezzenti.” Based on this return receipt,
appellee satisfied Civ.R. 4.1(A)(1)(a).
       {¶16}   As for Civ.R. 4.2, subsection (A) provides that service shall be made
“[u]pon an individual, other than a person under sixteen years of age or an incompetent
person, by the serving individual.” The record indicates and the parties agree that, at all
times relevant, Tina was an adult. There is no indication that Tina was incompetent.
Thus, appellee satisfied Civ.R. 4.2(A) and there is a rebuttable presumption of effective
service.
       {¶17}   As for appellant’s argument that he did not reside at 1980 Ridgelawn
Drive, his and Tina’s affidavit both aver that he had not resided there since September
12, 2018 (the day appellee filed the original complaint and five days before the clerk



Case No. 19 MA 0085
                                                                                        –5–


received the return receipt). This indicates that the last day appellant resided at 1980
Ridgelawn Drive was September 12, 2018, the day the complaint for divorce was filed.
The record also indicates that appellant owned that residence and the parties’ adult
daughter lived at this residence.       Thus, pursuant to Samson Sales, service was
reasonably calculated under the circumstances to apprise appellant of the pendency of
this action when it was sent to 1980 Ridgelawn Drive. Therefore, the trial court did not
abuse its discretion when it overruled appellant’s objection.
         {¶18}   Appellant also argues that the complaint was defective because it did not
contain an affidavit of property or an affidavit of income and expenses. Appellant’s
objection to the magistrate’s decision does not make this specific argument. Thus, this
issue is waived. Patrick v. Ressler, 10th Dist. Franklin No 04AP-149, 2005-Ohio-4971, ¶
23-24.
         {¶19}   In any event, this argument would not change the result. Appellant cites
Civ.R. 84 in support of this argument, but this rule does not mandate these affidavits be
filed along with a complaint for divorce. Civ.R. 84 provides “[t]he forms contained in the
Appendix of Forms which the Supreme Court from time to time may approve are sufficient
under these rules and shall be accepted for filing by courts of this state.”
         {¶20}   Accordingly, appellant’s sole assignment of error lacks merit and is
overruled.
         {¶21}   For the reasons stated above, the trial court’s judgment is hereby affirmed.




Waite, P. J., concurs.
Robb, J., concurs.




Case No. 19 MA 0085
[Cite as Pezzenti v. Pezzenti, 2020-Ohio-3585.]




          For the reasons stated in the Opinion rendered herein, the sole assignment of
 error is overruled and it is the final judgment and order of this Court that the judgment
 of the Court of Common Pleas of Mahoning County, Ohio, is affirmed. Costs to be
 taxed against the Appellant.
          A certified copy of this opinion and judgment entry shall constitute the mandate
 in this case pursuant to Rule 27 of the Rules of Appellate Procedure. It is ordered that
 a certified copy be sent by the clerk to the trial court to carry this judgment into
 execution.




                                         NOTICE TO COUNSEL

          This document constitutes a final judgment entry.
