COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 68916 ALAYNA LITTLEJOHN : : ACCELERATED DOCKET Plaintiff-appellant : : JOURNAL ENTRY -vs- : AND : OPINION SGT. W. MICHAEL LEACH : : PER CURIAM Defendant-appellee : : DATE OF ANNOUNCEMENT OF DECISION: NOVEMBER 22, 1995 CHARACTER OF PROCEEDING: Civil appeal from Court of Common Pleas Juvenile Division Case No. 9273221 JUDGMENT: Affirmed. DATE OF JOURNALIZATION: APPEARANCES: For plaintiff-appellant: For defendant-appellee: TIMOTHY G. SPACKMAN, ESQ. MITCHELL JOHNSON, ESQ. ASSISTANT COUNTY PROSECUTOR 1729 Superior Avenue 1910 Carnegie Ave., 2nd Fl. Superior Loft Building, #300 Cleveland, Ohio 44115 Cleveland, Ohio 44114-2925 - 2 - PER CURIAM: Appellant, the Cuyahoga County Support Enforcement Agency (CSEA) appeals a decision of the Court of Common Pleas, Juvenile Division, which granted defendant, Michael Leach's motions to vacate an ex- parte adjudication of paternity and to stay enforcement of child 1 support orders pursuant to Civ.R. 60(B)(1). In its first assignment of error, appellant claims that the court abused its discretion by ruling upon defendant's motion only one day after it was filed and by terminating its wage deduction order four months later. Appellant also claims the orders were void due to improper service upon the parties. In its second and third assignments of error, appellant claims the court failed to give timely notice of its vacation and termination orders and that defendant's motion was insufficient to warrant relief from judgment. Upon review, we find appellant has failed to establish that the court committed prejudicial error or that it abused its discretion in granting defendant's motion. Hence, the judgment of the court is affirmed. On November 17, 1992 appellant filed an action on behalf of plaintiff, Alayna Littlejohn to establish a parent child relationship between Alissa Littlejohn (D.O.B. 11/28/91) and defendant. Defendant was duly served. However, a stay of proceedings was granted due to defendant's military assignment to 1 This appeal was filed solely by the CSEA. Also, no appellee brief was filed in this matter. - 3 - 2 Korea. The matter was re-set for pre-trial on September 30, 1993. The defendant appeared pro se at that time and the court granted plaintiff's motion for genetic testing which indicated a 99.88% probability of paternity. On February 7, 1994 defendant filed a pro se admission of paternity. On March 3, 1994 Mitchell Johnson, Esq., filed a notice of appearance in the case. On March 8, 1994 a hearing was conducted with all parties present except for defendant. Counsel moved for a continuance to consult with defendant based upon counsel's assertion that defendant filed the admission without counsel's knowledge. A continuance was granted and another pre-trial was held on April 28, 1994. Counsel did not appear but phoned the court to request another continuance for further consultation which was granted. On July 27, 1994 an ex parte trial was conducted after counsel and defendant failed to appear. Based upon plaintiff's testimony and genetic test results, the defendant was adjudicated to be the father of Alissa Littlejohn. Child support in the amount of $92.60 per week and a past care judgment of $9,135 were ordered. The court journalized its opinion and order on September 21, 1994 mailing same to counsel and defendant on September 27, 1994. On November 3, 1994 the instant motion was filed. Attached was counsel's sworn affidavit indicating that he had moved his law offices on or about May 1, 1994 and had not received notice of the July 27, 1994 trial date. 2 See, Soldier's and Sailor's Relief Act of 1940, 50 U.S.C. (1988) Appendix, Sections 501-548, 560-598. - 4 - The court granted defendant's motion journalizing same on November 4, 1994. Notice of this entry was not mailed to the parties until March 6, 1995. On March 7, 1995 the court sua sponte signed an entry terminating defendant's wage deduction order journalizing same on March 13, 1995. Notice of this entry was not mailed to the parties until March 31, 1995. The instant appeal followed. I THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION, BY RULING ON THE DEFENDANT/APPELLEE'S POST DECREE MOTION TO VACATE AND STAY ENFORCEMENT, ONE DAY AFTER THE FILING OF SAID MOTION, AND BY TERMINATING THE WAGE WITHHOLDING ORDER SUA SPONTE FOUR MONTHS LATER, WHERE THE PLAINTIFF WAS NOT SERVED WITH THE MOTION, AND WHERE THE COURTS CONTINUING JURISDICTION WAS NEVER PROPERLY INVOKED, NOR WAS PROPER SERVICE OF PROCESS AND SUMMONS EVER ISSUED TO THE PLAINTIFF FOR HEARING ON SAID MOTION PURSUANT TO CIV. R. 4 THROUGH 4.6, THEREFORE RENDERING THE JOURNAL ENTRIES OF NOVEMBER 4, 1994 AND MARCH 13, 1995 VOID AB-INITIO. In its first assignment of error, appellant claims that defendant failed to serve the attorney of record and also failed to serve plaintiff, Alayna Littlejohn so as to invoke the continuing jurisdiction of the juvenile court pursuant to Civ.R. 75(I) and 3 Civ.R. 4-4.6. Appellant's arguments are devoid of merit. The record demonstrates that defendant attached a certificate of service to his motion in the name of Lynne A. Yohe, Assistant 3 Appellant's argument regarding the trial court's preemptive ruling upon appellee's motion will be addressed in response to appellant's third assignment of error. - 5 - 4 County Prosecutor. Such certificate is sufficient to prove actual notice to appellant and constructive notice to appellant's counsel of record. Defendant also filed a separate "Proof of Service" on November 4, 1994 indicating that he had mailed a copy of the motion to the plaintiff via certified and regular mail on November 3, 1994. Additionally, appellant admits that there is no published authority to support its contention that the mandates of Civ.R. 75(I) apply to child support orders arising out of the juvenile court. Hence, the court's November 4, 1994 and March 13, 1995 rulings granting defendant's motion and terminating its prior wage deduction order were not void ab-initio. Appellant's first assignment of error is overruled. Appellant's second and third assignments of error are related and shall be addressed together. II THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION BY FAILING TO MAIL NOTICE OF ITS JOURNAL ENTRY OF NOVEMBER 4, 1994 UNTIL MARCH 6, 1995 TO THE PARTIES, AND FURTHER ERRED AND ABUSED ITS DISCRETION BY FAILING TO MAIL NOTICE OF ITS JOURNAL ENTRY OF MARCH 13, 1995, WHICH TERMINATED THE WAGE WITHHOLDING NOTICE ON THE OBLIGOR'S EMPLOYER UNTIL MARCH 31, 1995, THUS VIOLATING THE PLAINTIFF'S RIGHT TO DUE PROCESS OF LAW UNDER THE OHIO AND UNITED STATES CONSTITUTIONS. III THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION BY NOT DISMISSING THE APPELLEE'S MOTION TO VACATE AND TO STAY 4 Ms. Yohe represented the appellant on at least two occasions having filed a motion to continue and a notice of service on the defendant of plaintiff's request for production of documents. The latter filing immediately preceded counsel's notice of appearance in the case. - 6 - ENFORCEMENT, AND IN ISSUING ORDERS PERTAINING TO THE APPELLEE'S MOTION, WHERE THE APPELLEE'S 60(B) MOTION ON ITS FACE DOES [sic] CONTAIN SUFFICIENT FACTS THAT WOULD ENTITLE GRANTING RELIEF TO THE APPELLEE, AND FURTHER ERRED BY REFUSING TO IMPUTE THE NEGLIGENCE OF THE DEFENDANT APPELLEE'S ATTORNEY TO THE DEFENDANT/APPELLEE. Appellant has established two instances where the court failed to mail notice of its judgments within three days of journalization in violation of Civ.R. 58(B). However, appellant has failed to establish that such non-compliance resulted in prejudicial error or that the court abused its discretion in granting defendant's motion. In order to prevail on a motion for relief from judgment pursuant to Civ. R. 60(B) the movant must demonstrate: (1) a meritorious claim or defense; (2) entitlement to relief under one of the grounds stated in Civ.R. 60(B) through (5); and (3) timeliness of the motion. GTE Automatic Electric v. ARC Industries (1976), 47 Ohio St.2d 146, paragraph two of the syllabus. If any of these three requirements is not met, the motion should be overruled. Svoboda v. Brunswick (1983), 6 Ohio St. 348, 351. The question of whether relief should be granted is addressed to the sound discretion of the trial court. Griffey v. Rajan (1987), 33 Ohio St.3d 75, 77. An abuse of discretion connotes more than an error of law or judgment; it implies that the court's attitude is 5 Appellant argues that counsel should have informed the court of his new address on April 28, 1994 when he phoned to request a continuance and that his negligence in failing to do so, particularly where his affidavit indicates a May 1, 1994 move, should have been imputed to the defendant to defeat his motion. - 7 - unreasonable, arbitrary or unconscionable. Blakemore v. Blakemore (1983), 5 Ohio St.3d 217, 219. Appellee predicated his timely motion on Civ.R. 60(B)(1) which provides in relevant part that: (B) *** On motion and upon such terms as are just, the court may relieve a party or his legal representative from a final judgment, order or proceeding for the following reasons: (1) mistake, inadvertence, surprise or excusable neglect * * * . When a defendant makes a motion for relief from judgment and in support of that motion attaches an uncontradicted, sworn statement that he never received notice of a proceeding, such as trial, he is entitled to have the judgment against him vacated. Allside Supply Company v. Wager (September 14, 1989) Cuyahoga App. No 55860, unreported at 2 citing Rafalski v. Oates (1984), 17 Ohio App.3d 65, 66. See, also, Zeev Apel et al., v. Shai Katz, et al., (April 29, 1993), Cuyahoga App. No. 63084, unreported citing Weaver v. Colwell Financial Corp. (1992), 73 Ohio App.3d 139. In the instant case, counsel attached a sworn affidavit to defendant's motion indicating that he had moved his law offices from 1367 East 6th Street-419 Lincoln Building, Cleveland, Ohio 44114 on or about May 1, 1994; that he never received notice of the court's July 27, 1994 trial date; that he had no communication with the court regarding a trial date and that he filed a notice of change of address with the court. Significantly, at the time defendant filed his motion, the record demonstrated that the court had mailed notice of trial to the above-cited, vacated address on - 8 - June 6, 1994. See, Notice No. 9273221. The record also contained two unopened letters addressed to counsel at his vacated and new address which had been returned to the court by the post office. The first letter, post marked on May 4, 1994, bore counsel's vacated address and the following legend: "forwarding order expired." The second letter post marked on September 27, 1994, bore counsel's new address which was correct with respect to number and street but incorrect with respect to zip code. This second letter also did not bear the name of counsel's office building or suite number. While the record does not contain a returned letter post-marked June 6, 1994 we cannot say, in light of the above, that the court abused its discretion in granting defendant's motion one day after it was filed as counsel's sworn affidavit, asserting lack of notice set forth sufficient operative facts of mistake, inadvertence and or excusable neglect which were uncontradicted by the record. See, Allside, Rafalski, Apel and Weaver, supra. See, also, C.E. Morris Co. v. Foley Constr. Co. (1978) 54 Ohio St.2d 279. Appellant's second and third assignments of error are overruled. The judgment of the juvenile court is affirmed. 6 This cause is remanded for re-trial. It is so ordered. 6 Having affirmed the court's ruling, we are nevertheless disturbed by the juvenile court's failure to issue timely notices of its journalizations. However, we also disturbed by counsel's management of the instant case as its lengthy procedural history, which includes this court's imposition of sanctions for counsel's failure to appear for settlement discussions ordered pursuant to Loc.R. 22, is not without the appearance of dilatory tactics, particularly where defendant's paternity was virtually confirmed by genetic testing conducted nearly two years ago. - 9 - It is ordered that appellee recover of appellant its 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, Juvenile Division, 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. _________________________________ JAMES D. SWEENEY, PRESIDING JUDGE _________________________________ DAVID T. MATIA, JUDGE _________________________________ ANN DYKE, JUDGE N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announcement of decision (see Rule 26). Ten (10) days from the date hereof this document will be stamped to indicate journalization, at which time .