IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
Anita J. Kvinta,
:
Plaintiff-Appellee,
:
v.
:
No. 99AP-
508
Charles J. Kvinta,
:
(RE
GULAR CALENDAR)
Defendant-Appellant.
:
O P I N I O N
Rendered on February 22, 2000
Kemp, Schaeffer, Rowe & Lardiere Co., L.P.A.,
and
Harold R. Kemp , for appellee.
Tyack, Blackmore & Liston Co., L.P.A ., and Thomas M.
Tyack, for appellant.
APPEAL from the Franklin County Court of Common Ple as,
Division of Domestic Relations.
LAZARUS, J.
Defendant-appellant, Charles J. Kvinta, appeals f rom the April 19, 1999
judgment of the Franklin County Court of Common Ple as, Division of Domestic
Relations, finding him in contempt for failure to c omply with a prior order of the court
regarding discovery and fining him $100 per day unt il such time as compliance occurs.
For the reasons that follow, we affirm in part, rev erse in part, and remand for further
proceedings.
No. 99AP-508
2
On January 9, 1995, appellee, Anita J. Kvinta, fi led a complaint for legal
separation. For the next year, appellee attempted
to serve appellant who lives and
works in Kuwait. Attempts at registered mail servi ce were returned as unclaimed, and
numerous attempts at personal service were also uns uccessful. Finally, on January 3,
1996, service on appellant was made by ordinary mai l, and this mailing was not
returned.
Thereafter, appellant filed a motion to dismiss c laiming lack of jurisdiction
over the subject matter (appellee could not establi sh the existence of a common law
marriage), lack of jurisdiction over the person, an d insufficiency of service of process.
The magistrate conducted an evidentiary hearing on the motion on May 16, 1996. On
October 1, 1996, the magistrate issued a decision f inding that service of process had
not been perfected upon appellant.
The magistrate
dismissed the action without
reaching the other bases for appellant's motion.
Appellee filed objections to the magistrate’s dec ision but did not order a
complete transcript of the hearing.
Rather, appell ee submitted only six pages of
transcript from the evidentiary hearing. The recor d before us does not contain those
pages. A full transcript of the hearing was eventu ally filed with the trial court on
January 8, 1998, in connection with the issue of wh ether appellee had established the
existence of a common law marriage. However, this
transcript was not available to the
trial court at the time it ruled on the objections
concerning service of process and
personal jurisdiction.
Appellant asked that the tr ial court "revisit" the issues of
sufficiency of service of process and jurisdiction over the person in connection with his
No. 99AP-508
3
objections to the magistrate’s decision finding the existence of a common law marriage.
In its decision of March 24, 1998, overruling appel lant’s objections, the trial court
declined to revisit those issues.
Appellee’s objections to the magistrate’s decisio n were set for hearing on
November 18, 1996. In the interim, the Ohio Suprem e Court had issued an order
designating a visiting judge "to preside in the Fra nklin County Court of Common Pleas,
Domestic Relations and Juvenile Divisions, for the week of November 18-22, 1996 and
to conclude any proceedings in which she participat ed that are pending at the end of
that period." (Certification of Assignment, filed
Nov. 18, 1996.) The visiting judge
conducted the hearing on appellee’s objections.
Th e hearing did not include the
introduction of any new evidence. A transcript of
that hearing was not made part of the
record.
On February 28, 1997, the original trial court ju dge, not the visiting judge,
rendered her decision sustaining appellee’s objecti ons and finding that appellant had
been properly served by ordinary mail pursuant to C iv.R. 4.6(D).
Appellant filed a motion to reconsider, arguing:
(1) that the trial court erred
in ruling on a matter that had been submitted to a
visiting judge without conducting its
own hearing; (2) that it was error for the trial co urt to make findings of fact that were at
variance with the magistrate’s decision when a full transcript of the proceedings had not
been filed; and (3) that the trial court’s decision was incorrect in that the other two bases
for the motion to dismiss, jurisdiction over the pe rson, and the existence of a common
law marriage, had not been ruled on by the magistra te.
No. 99AP-508
4
On April 29, 1997, the trial court overruled the
motion to reconsider. With
respect to the issue of personal jurisdiction, the
trial court found that appellant had
admitted in his motion to dismiss that he owned rea l property in Mansfield, Ohio. Based
on appellant’s property ownership in Ohio, which ma y be subject to division in the action
for legal separation, the trial court concluded tha t appellant had sufficient minimum
contacts with the state of Ohio to subject him to s ervice under Civ.R. 4.3(A)(6). The trial
court remanded the matter to the magistrate for con sideration of whether the parties
lived in a common law marital relationship after th eir divorce in 1979.
1
Appellee then filed numerous discovery requests, and ultimately a motion
to compel discovery. The trial court sustained the motion to compel and, on October 1,
1998, ordered appellant to provide the requested ma terials within thirty days of its
decision.
On December 14, 1998, appellee filed a motion for
contempt, as appellant
had not complied with the discovery order. A heari ng was held before the successor
judge to the trial court, who found appellant in co ntempt. It is from this judgment entry
that appellant has appealed, assigning as error the following:
1
On October 24, 1997, the magistrate found that a c ommon law marriage exists between the parties as
of September 1981. Appellant filed objections to t he magistrate’s decision that were overruled by the trial
court on March 24, 1998.
No. 99AP-508
5
Assignment of Error No. 1
THE CASE HAVING BEEN ASSIGNED TO JUDGE KERN
IN NOVEMBER 1996, JUDGE SUSAN BROWN AND HER
SUCCESSOR LACKED JURISDICTION TO RULE ON THE
OBJECTIONS SUBMITTED TO JUDGE KERN OR TO
TAKE FURTHER ACTION ON SAID CASE.
Assignment of Error No. 2
THE
TRIAL
COURT
ERRED
IN
FINDING
THE
DEFENDANT GUILTY OF CONTEMPT FOR FAILING TO
COMPLY WITH JUDGE SUSAN BROWN’S ORDER AS TO
DISCOVERY WHEN THE COURT HAD NO JURISDICTION
OVER DEFENDANT SINCE HE WAS NOT SERVED
PROPERLY WITH PROCESS AND WAS NOT SUBJECT
TO IN PERSONAM JURISDICTION PURSUANT TO RULE
4.3
[sic]
(8)
IN
THIS
ACTION
FOR
SEPARATE
MAINTENANCE.
In his first assignment of error, appellant conte nds that the trial court
lacked jurisdiction to rule on appellee’s objection s or take further action on the case
unless or until the Ohio Supreme Court issued an or der restoring the case to her docket
and authorizing her to proceed. In support of this
argument, appellant cites Berger v.
Berger (1981), 3 Ohio App.3d 125, and Arthur Young & Co. v. Kelly (1990), 68 Ohio
App.3d 287.
In Berger, different judges from the same court made rulings
in a divorce
case without a journal entry or order transferring
the case from the original assigned
judge. The Cuyahoga County Court of Appeals held t hat such substitution did not go to
the jurisdiction of the court or render the rulings void. However, in those cases where a
party timely objected to a judge’s individual autho rity to act on a matter and there was
No. 99AP-508
6
no journal entry stating a justifiable reason for t ransferring the case to another judge,
the rulings by the successor judge were voidable.
In Young, an evidentiary hearing on a contempt motion was h eld, and the
trial court took the matter under advisement. Befo re the court could act, the trial judge
was defeated in the judicial election. Eventually,
the successor judge ruled on the
matter over the defendant’s objection.
The court r eviewed the transcripts of the
contempt hearing and post-hearing memoranda and fou nd defendant in contempt. On
appeal, this court noted numerous credibility issue s were involved at the contempt
proceeding and held that the trial court erred in a djudging the defendant in contempt on
the basis of the transcript. Id. at 298.
The instant case is factually different. Here, t he Ohio Supreme Court
appointed a visiting judge for a specific period of
time. After the visiting judge’s
appointment had expired, the original assigned judg e then ruled on the matter.
Appellant argues that, because proceedings were p ending in which the
visiting judge had participated, the trial court wa s without jurisdiction to rule unless the
assignment made by the Ohio Supreme Court were resc inded or modified. We decline
to take such an expansive view of the term "proceed ings that are pending."
The hearing conducted by the visiting judge was n ot an evidentiary
hearing involving matters of credibility. If the v isiting judge had conducted a hearing in
which she heard additional evidence, the situation
would be more akin to that of
Young, supra, and may have necessitated the trial court conduct ing a new hearing.
Here, however, the facts of appellee’s numerous att empts at service were contained
No. 99AP-508
7
within the file. The trial court familiarized itse lf with the file, examined the notes of the
visiting judge, and studied the portions of the tra nscript submitted by appellee. A
hearing on appellant’s objections was not mandatory , and the trial court had before it
all the factual information necessary to determine
if appellant had been served.
Credibility was not an issue. Appellant, therefore , cannot show that he was prejudiced
by the trial court’s action. Accordingly, the firs t assignment of error is not well-taken
and is overruled.
In his second assignment of error, appellant argu es it was error to find him
in contempt because: (1) he had never been properl y served with the summons and
complaint; and (2) that the trial court lacked in p ersonam jurisdiction over appellant.
Civ.R. 4.5 addresses service of process
in a foreign country and provides
as follows:
(A) Manner. When Civ. R. 4.3 or Civ. R. 4.4 or both allow
service upon a person outside this state and servic e is to be
effected in a foreign country, service of the summo ns and
complaint may also be made:
(1) In the manner prescribed by the law of the fore ign
country for service in that country in an action in
any of its
courts of general jurisdiction when service is calc ulated to
give actual notice;
(2) As directed by the foreign authority in respons e to a letter
rogatory when service is calculated to give actual notice;
(3) Upon an individual by delivery to him personall y;
(4) Upon a corporation or partnership or associatio n by
delivery to an officer, a managing or general agent ;
No. 99AP-508
8
(5) By any form of mail requiring a signed receipt,
when the
clerk of the court addresses and dispatches this ma il to the
party to be served;
(6) As directed by order of the court.
Service under division (A)(3) or (A)(6) of this rul e may be
made by any person not less than eighteen years of
age
who is not a party and who has been designated by o
rder of
the court, or by the foreign court. On request the
clerk shall
deliver the summons to the plaintiff for transmissi on to the
person or the foreign court or officer who will mak e the
service.
(B) Return. Proof of service may be made as prescribed by
Civ. R. 4.1(B), or by the law of the foreign countr y, or by
order of the court. When mail service is made pursu ant to
division (A)(5) of this rule, proof of service shal l include a
receipt signed by the addressee or other evidence o f
delivery to the addressee satisfactory to the court .
In this case, it is undisputed that appellee neve r perfected service on
appellant by any of the means set forth in Civ.R. 4 .5(A). Appellee hired a special
process server in Kuwait who indicated the reason h e was not able to serve appellant
in Kuwait was because appellant was "hiding." Regi stered mail service was returned
as unclaimed. Appellee then served appellant by or dinary mail pursuant to Civ.R.
4.6(D). The issue is whether appellee could avail
herself of the provisions in Civ.R.
4.6(D) and serve appellant by ordinary mail after r egistered mail service was returned
as unclaimed. We answer the question in the affirm ative.
Civ.R. 4.6(D) provides:
Service unclaimed. If a certified or express mail envelope is
returned with an endorsement showing that the envel ope
was unclaimed, the clerk shall forthwith notify, by mail, the
attorney of record or, if there is no attorney of r ecord, the
No. 99AP-508
9
party at whose instance process was issued. If the
attorney,
or serving party, after notification by the clerk,
files with the
clerk a written request for ordinary mail service,
the clerk
shall send by ordinary mail a copy of the summons a nd
complaint or other document to be served to the def endant
at the address set forth in the caption, or at the
address set
forth in written instructions furnished to the cler k. The mailing
shall be evidenced by a certificate of mailing whic h shall be
completed and filed by the clerk. Answer day shall
be
twenty-eight days after the date of mailing as evid enced by
the certificate of mailing. The clerk shall endorse this answer
date upon the summons which is sent by ordinary mai l.
Service shall be deemed complete when the fact of m ailing
is entered of record, provided that the ordinary ma il envelope
is not returned by the postal authorities with an e ndorsement
showing failure of delivery. If the ordinary mail e nvelope is
returned undelivered, the clerk shall forthwith not ify the
attorney, or serving party, by mail.
Civ.R. 4 through 4.6 deals with process and shoul d be read together.
Fink, Greenbaum, Wilson, Guide To The Ohio Rules Of
Civil Procedure (2 Ed.1999)
49, Section 4-1. Ordinary mail service under Civ.R . 4.6(D) is routinely requested by
the plaintiff when Civ.R. 4.3(B)(1) certified mail service sent to another state has been
returned as unclaimed.
E.g., Olezewski v. Niam (Sept. 22, 1993), Montgomery App.
No. 13936, unreported.
Therefore, it is proper to
conclude that, subject to the
provisions of the Hague Convention or other applica ble treaties, as well as the law of
the country in which service is to be made, if out- of-state service is authorized by
Civ.R. 4.3(A), but certified or registered mail ser vice made under Civ.R. 4.5 is returned
refused or unclaimed, then under Civ.R. 4.6(C) or ( D) service may be made by ordinary
mail. Cf. R.C. 1.02(G) ("Registered mail" includes
certified mail and "certified mail"
includes registered mail).
No. 99AP-508
10
In addition, Civ.R. 4.5(B) provides that when mai l service is made
pursuant to division (A)(5) of that rule, "proof of
service shall include a receipt signed
by the addressee or other evidence of delivery to the addressee satisfa ctory to the
court." (Emphasis added.) In Fieno v. Beaton (1980), 68 Ohio App.2d 13, the plaintiff
filed a civil assault action against a professional hockey player who had played for the
Cincinnati Stingers at the time of the alleged assa ult but who had subsequently been
traded to the Edmonton Oilers. Service was made by
registered mail, return receipt
requested, directed to the defendant in care of the
Edmonton Oilers at the team’s
business address in Edmonton, Alberta, Canada.
Id. at 14.
No return receipt
appeared in the record, although an inquiry was dir ected by the U.S. Postal Service to
the Alberta postal authorities, who responded, "'Su bject register delivered on 20/7/77
[sic] to Signature of recognized representative.'"
Id. The Hamilton County Court of
Appeals concluded that "one could at least permissi bly infer that [defendant] or his
employer or co-employees allegedly intended to thwa rt [plaintiff’s] earlier attempts to
serve [defendant] with process *** [and] that [defe ndant] in fact knew that [plaintiff] had
filed a complaint against him."
Id. at 15. "For example, a process server testified
that
when he attempted to serve [defendant] with process at the Cincinnati Coliseum when
[defendant] was there to play hockey, he was preven ted from seeing [defendant] either
before or after the game by people who worked with
[defendant]." Id. at 15-16, fn. 2.
Based upon these facts, even without a receipt sign ed by the defendant, the court
found "other evidence of delivery to the addressee satisfactory to the court." Id.
No. 99AP-508
11
Likewise, in the instant case, there was evidence
in the record from which
the trial court could infer that appellant intentio nally sought to thwart service of process.
Ordinary mail was sent to the same address where re gistered mail was returned as
unclaimed, and that ordinary mail was not returned.
This was evidence of delivery to
appellant satisfactory to the trial court. Under t hese circumstances, we find that the
trial court correctly found service of process.
Appellant argues that, even if service was proper ly perfected, the trial
court lacked jurisdiction over his person. In orde r for a court to render a valid judgment,
it must have personal jurisdiction over the parties . Maryhew v. Yova (1984), 11 Ohio
St.3d 154, 156. Therefore, if the trial court were
without personal jurisdiction over
appellant at the time it entered judgment finding h im in contempt, appellant would be
entitled to have the judgment vacated.
State ex rel. Ballard v. O'Donnell (1990), 50
Ohio St.3d 182.
Civ.R. 4.3(A) states the requirements for service
on out-of-state parties
and is substantially equivalent to Ohio’s long-arm statute, R.C. 2307.382. The long-arm
statute authorizes the exercise of personal jurisdi ction over nonresident defendants,
while Civ.R. 4.3 provides for service to effectuate that jurisdiction. Kentucky Oaks Mall
Co. v. Mitchell’s Formal Wear, Inc. (1990), 53 Ohio St.3d 73, 75. Civ.R. 4.3(A)(6) an d
(8) provides, in pertinent part:
(A) when service permitted. Service of process may be
made outside of this state, as provided in this rul e, in any
action in this state, upon a person who, at the tim e of service
of process, is a nonresident of this state or is a
resident of
this state who is absent from this state. "Person"
includes an
No. 99AP-508
12
individual, an individual's executor, administrator , or other
personal representative, or a corporation, partners hip,
association, or any other legal or commercial entit y, who,
acting directly or by an agent, has caused an event
to occur
out of which the claim that is the subject of the c omplaint
arose, from the person's:
***
(6) Having an interest in, using, or possessing rea l property
in this state;
***
(8) Living in the marital relationship within this
state
notwithstanding subsequent departure from this stat e, as to
all obligations arising for spousal support, custod y, child
support, or property settlement, if the other party
to the
marital relationship continues to reside in this st ate[.]
Here, without the benefit of the full transcript
of the hearing before the
magistrate, the trial court could not find that it
could exercise personal jurisdiction over
appellant pursuant to Civ.R. 4.3(A)(8). Appellee a rgues that, based on the transcript of
the May 16, 1996 hearing, it is clear that Civ.R. 4 .3(A)(8) does apply.
The trial court then considered whether appellant
was subject to process
under Civ.R. 4.3(A)(6). The trial court found that
appellant acknowledged owning real
estate in Mansfield, Ohio, and that appellee sought to be awarded an equitable division
of the assets. Based on this finding, the trial co urt found that it had acquired jurisdiction
over the person of appellant. We disagree.
Few cases discuss long-arm jurisdiction pursua nt to R.C. 2307.382(A)(6),
which is substantially equivalent to Civ.R. 4.3(A)( 6). See U.S. Sprint Communications
Co. Ltd. Partnership v. Mr. K’s Foods, Inc. (1994), 68 Ohio St.3d 181 (Civ.R. 4.3[A] and
No. 99AP-508
13
R.C. 2307.382[A] are consistent and compliment each other). Those cases that do
discuss personal jurisdiction under R.C. 2307.382(A )(6) hold that the claim in question
must be related to the property.
In The Bank of Nova Scotia v. McGregor (Dec. 24, 1991), Fairfield App.
No. 19-CA-91, unreported, the defendant established his residence in Canada and,
while there, executed a promissory note to the plai ntiff bank. The Fairfield County Court
of Appeals held that personal jurisdiction was lack ing when there was no nexus
between an action on an unsecured signature loan an d the defendant’s interest in real
property in Ohio.
Similarly, in Leonesio v. Carter (May 11, 1992), Butler App. No. CA91-08-
136, unreported, the court of appeals upheld dismis sal of an action when there was no
nexus between the cause of action, a complaint upon a promissory note executed in the
state of Michigan, and the defendant’s alleged inte rest in real property in Butler County,
Ohio.
Here, the action is one for legal separation. Alt hough appellee has sought
a division of property, the action is not one arisi ng from appellant’s interest in,
possession, or use of the real property in Mansfiel d, Ohio. Accordingly, it was error for
the trial court to find personal jurisdiction pursu ant to Civ.R. 4.6(A)(6).
Appellee argues that even if this court finds tha t Civ.R. 4.3(A)(6) does not
apply, it is clear that Civ.R. 4.3(A)(8) does apply , and any error by the trial court in
finding Civ.R. 4.3(A)(6) applicable is harmless. H owever, an appellate court cannot
consider a transcript on appeal that was not filed
with the lower court before it made its
No. 99AP-508
14
judgment. State ex rel. Duncan v. Chippewa Twp. Trustees (1995), 73 Ohio St.3d 728,
730; State v. Ishmail (1978), 54 Ohio St.2d 402. Accordingly, we cannot
consider the
May 16, 1996 transcript in connection with the issu es raised on this appeal.
The issue of whether the court can exercise perso nal jurisdiction over
appellant by means of Civ.R. 4.3(A)(8) has not been ruled on by the trial court because,
at the time it made its ruling, it did not have bef
ore it the full transcript of the May 16,
1996 hearing.
2
On remand, the trial court may wish to review the
full transcript of the
May 16, 1996 hearing to determine if sufficient fac ts exist to establish the parties were
"living in the marital relationship within the stat e." If the trial court finds personal
jurisdiction, pursuant to Civ.R. 4.3(A)(8), is lack ing, the judgment of contempt must be
vacated. The second assignment of error is sustain ed in part and overruled in part.
Based on the foregoing, appellant’s first assignme nt of error is overruled,
and the second assignment of error is sustained in
part and overruled in part. The
judgment of the Franklin County Court of Common Ple as, Division of Domestic
Relations, is affirmed in part and reversed in part , and this matter is remanded to the
trial court for further proceedings in accordance w ith this opinion.
Judgment affirmed in part, reversed
in part, and remanded for further proceedings.
KENNEDY and PETREE, JJ., concur.
__________________
2
Appellee was not required to submit a full transcr ipt of the May 16, 1996 hearing, as the only basis
for
her objections was the issue of sufficiency of serv ice of process. The issue of personal jurisdiction
pursuant to Civ.R. 4.3 was not addressed by the mag istrate and was not grounds for objection.