Fancher v. Fancher

• Decision Date: 03 November 1982
• Citation: 455 N.E.2d 1344,8 OBR 111,8 Ohio App.3d 79
• Parties: , 8 O.B.R. 111 FANCHER, Appellant, v. FANCHER, Appellee.
• Court: Ohio Court of Appeals

Page 79

8 Ohio App.3d 79

455 N.E.2d 1344, 8 O.B.R. 111

FANCHER, Appellant, v. FANCHER, Appellee.

Court of Appeals of Ohio, First District, Hamilton County.

Nov. 3, 1982.

Syllabus by the Court

1. Certified mail service under Civ.R. 4.1(1) is valid where the envelope containing the documents to be served is delivered to a person other than the defendant, at the defendant's address; this is sufficient to comport with the requirements of due process that methods of service be reasonably calculated to reach interested parties.

2. A pleading which sets forth a claim for relief need not state with precision all elements that give rise to a legal basis for recovery as long as fair notice of the action is provided; however, the pleading must contain either direct allegations on every material point necessary to sustain a recovery on any legal theory, even though it may not be the theory suggested or intended by the pleader, or contain allegations from which an inference fairly may be drawn that evidence on these material points will be introduced at trial. (Civ.R. 8[A], construed.)

Stephen W. Young, Cincinnati, for appellant.

James F. McCarthy, Cincinnati, for appellee.

PALMER, Judge.

On July 20, 1977, the plaintiff-wife filed her complaint for divorce against the defendant-husband, alleging, inter alia, that they were married in 1976 and that she was pregnant. Service by certified mail was had, and a return receipt signed by Ernest Fancher, Jr., was duly entered, all in conformity with Civ.R. 4.1. On April 4, 1978, an "Amended Complaint" was filed alleging the birth of a child, issue of the marriage, on February 20, 1978. Pursuant to plaintiff's affidavit that defendant's residence was then unknown, defendant was served the amended complaint by publication. In default of answer or appearance throughout the process, the defendant suffered a decree of divorce to be entered on June 16, 1978, finding, inter alia, that one child was born the issue of the marriage, awarding custody and support of $50 per week to plaintiff, and entering a divorce. The defendant failed to pay the support ordered and an entry finding the defendant in contempt for arrearages amounting to $7,600 was entered May 22, 1981. This apparently provoked the defendant's first response to the process when, on June 30, 1981, he filed a motion for relief from judgment, alleging an absence of jurisdiction over the person of the defendant necessary to provide the fundament for a determination of paternity and for the support order. Following an evidentiary hearing, findings of fact and conclusions of law were entered by a referee and were subsequently confirmed by the court over objections from both parties. Specifically, the entry granted the motion for relief from judgment as to the support and alimony awards and set aside the determination of arrearage because of an absence of personal jurisdiction over the defendant, but overruled the motion as to the determination of the child's paternity. Appeals were timely filed, the wife objecting to the order with respect to relief from support and alimony payments, and the husband cross-appealing from that part of the order confirming the paternity determination.

Our examination of the issues raised in this appeal will best be served by directing attention to the defendant's challenge to the in personam aspects of the trial court's initial decree, a challenge which successfully--but erroneously, we conclude--convinced the court to afford Civ.R. 60(B) relief. Thus, the defendant argues, first, that the initial service of process under the July 20, 1977 complaint was inadequate to secure jurisdiction over his person because, it is maintained, he did not authorize his brother, Ernest, to receive and receipt the service, nor did he thereby or elsewhere learn of the pendency of the action. ¹ Proceeding from this, defendant argues that the only service of process successfully completed was service by publication pursuant to Civ.R. 4.4, a form of service constitutionally inadequate to bottom those aspects of the decree requiring jurisdiction over his person, ² citing Kulko v. Superior Court of California (1978), 436 U.S. 84, 98 S.Ct. 1690, 56 L.Ed.2d 132, and Sutovich v. Sutovich (1964), 120 Ohio App. 473, 200 N.E.2d 716 . Alternatively, defendant argues that even if the initial service by certified mail was sufficient to confer jurisdiction over his person, the filing of an amended complaint asserting new or additional claims for relief required the issuance under Civ.R. 5(A) of new service upon him and could not rest upon the old service. Defendant concludes by asserting that where such new service was by publication only, it was inadequate to support an order imposing a personal obligation. We find no merit in these arguments.

We hold, first, that the initial service of process under the July 20, 1977 complaint by certified mail pursuant to Civ.R. 4.1 sufficed to confer jurisdiction over the person of the defendant. As stated in Mitchell v. Mitchell (1980), 64 Ohio St.2d 49, 51, 413 N.E.2d 1182 :

"The Staff Note pertaining to Civ.R. 4.3(B)(1) states that certified mail service under the rule does not require delivery to the defendant only. This court in Castellano v. Kosydar (1975), 42 Ohio St.2d 107, 110, 326 N.E.2d 686, certiorari denied, 423 U.S. 932, 96 S.Ct. 284, 46 L.Ed.2d 261, declared that certified mail service under the Rules of Civil Procedure does not require actual service upon the defendant, but is effective upon certified delivery. This court recognized that a need for actual service would be contrary to modern service requirements.

" * * *

"Accordingly, certified mail service under Civ.R. 4.3(B)(1) is valid where the envelope containing the documents to be served is delivered to a person other than the defendant, at the defendant's address. The Civil Rules do not require that delivery be restricted to the defendant or to a person authorized by appointment or by law to receive service of process for the defendant. Regional Airport Authority v. Swinehart (1980), 62 Ohio St.2d 403 [406 N.E.2d 811, 16 O.O.3d 436]."

It is immaterial that the certified mail receipt was signed by the defendant's brother, and that his brother was not specifically authorized to do so. The envelope was addressed to the defendant's address and was there received; this is sufficient to comport with the requirements of due process that methods of service be reasonably calculated to reach interested parties. See Mullane v. Central Hanover Bank & Trust Co. (1950), 339 U.S. 306, 314, 70 S.Ct. 652, 94 L.Ed. 865. ³

Having determined that the initial service of process under Civ.R. 4.1(1) was effective, the next question involves the effect of the "amended complaint" filed by the plaintiff following the birth of the child. Specifically, the question arises whether the amended complaint falls within the commandment of Civ.R. 5(A), requiring service upon parties in default where a pleading subsequent to the initial complaint asserts "new or additional claims for relief." ⁴ If the answer to this question is affirmative, then new service was required on the defendant, a service accomplished here in a manner arguably insufficient to confer in personam jurisdiction. If, however, the answer is negative, no new service was required and the actual service by publication assayed by plaintiff was, at worst, supererogatory. We conclude that the latter was, in fact, the case.

This answer to the dispositive question in the instant appeal derives from two sources: first, from an understanding of the new direction appointed by Civ.R. 8 ⁵ with respect to pleadings, and, second, from an analysis of the two pleadings themselves. Together, they require our conclusion that the so-called amended complaint asserted no new or additional claim for relief requiring a new service on the defendant.

With respect to the significance of the adoption in 1970 of the Rules of Civil Procedure, and Civ.R. 8 thereof in particular, one begins by noting the abandonment under the rules system of the pre-1970 "cause-of-action" pleading, in which the petitioning party was expected to allege the existence of respective elements of the cause of action relied upon. In exchange was substituted something considerably simpler, under which the adverse party is given notice of the incident upon which a claim for relief is based. Millican v. Mr. Steak, Inc. (1973), 38 Ohio Misc. 24 . One authority put the distinction thusly:

"Any legal theory applicable to the short and plain statement of the incident upon which relief is based will support a recovery. This is contrasted with the factual statement of all elements of a cause of action which was formerly required." McCormac, Ohio Civil Rules Practice (1970) 94, Section 5.04.

The significance of the change, beyond the obvious, is explored at some length in 4 Anderson's Ohio Civil Practice (1975), Section 151.03 et seq., where the concept of pleading a "claim for relief" is examined with the help of cases dealing with the federal analogue of the Ohio rule. Clearly, it is concluded, the former cause-of-action concept of pleading is more limiting than a claim for relief pleading, which is unlimited as to right and remedy, citing the following language from a decision interpreting the federal rule:

" * * * [I]t is necessary to remember that in the Federal Rules of Civil Procedure the word 'claim' has a somewhat broader connotation than that which prior to the Rules pertained to a 'cause of action.' 'It is used to denote the aggregate of operative facts which give rise to a right enforceable in the courts.' * * * 'The theory adopted in the new rules * * * has been that the "transaction" or "occurrence" is the subject matter of a claim, rather than the legal rights arising therefrom; additions to or subtractions from the central core of fact do not change this substantial identity * * *.' " (Emphasis added.) Dery...