Torres v. Torres

• Decision Date: 26 August 1982
• Citation: 4 OBR 414,4 Ohio App.3d 224,447 N.E.2d 1318
• Parties: , 4 O.B.R. 414 TORRES, Appellee, v. TORRES; Board of County Commissioners of Cuyhoga County et al., Appellants. WEEMS, Appellee, v. WEEMS; Fuerst, Clerk, Appellant. *
• Court: Ohio Court of Appeals

Page 224

4 Ohio App.3d 224

447 N.E.2d 1318, 4 O.B.R. 414

TORRES, Appellee, v. TORRES; Board of County Commissioners of Cuyhoga County et al., Appellants.

WEEMS, Appellee, v. WEEMS; Fuerst, Clerk, Appellant. ^*

Court of Appeals of Ohio, Eighth District, Cuyahoga County.

Aug. 26, 1982.

Syllabus by the Court

1. The mere filing of a poverty affidavit in a divorce action can be sufficient in and of itself to effectuate a waiver of filing fee and cost of service by publication; however, where the trial court or the clerk of courts questions the truthfulness of such an affidavit, the court, on its own motion, or the clerk, on his motion, may request an oral hearing to investigate the litigant's indigency.

2. Where prepayment by the county of costs of service by publication are appropriate in a divorce action, neither the clerk of courts nor the commissioners need be made parties to the action. The authority for the court to order the clerk to pay such costs is contained in R.C. 2303.26.

Thomas Weeks and Carolyn Carter, Cleveland, for appellees.

John T. Corrigan, Pros. Atty., and Patrick Carroll, Asst. Pros. Atty., for appellants.

PATTON, Presiding Judge.

This appeal is a consolidation of two cases from the Division of Domestic Relations. In case No. 44310, entitled Torres v. Torres, Mrs. Torres filed suit for divorce against her husband on the grounds that, inter alia, the two had lived separate and apart for two years prior to the filing of the complaint. ¹ Along with her complaint, Mrs. Torres filed a poverty affidavit wherein she stated she was unemployed and received Aid to Families with Dependent Children payments of $263 per month. Service of process was attempted upon Mr. Torres in Chicago, Illinois; however, no return receipt was ever received by the court. Hence, Mrs. Torres' only alternative was to give notice to Mr. Torres by publication. R.C. 3105.06 ²; Civ.R. 4.4(A). ³ Because Mrs. Torres claimed she was indigent, she moved the court to waive prepayment of the costs necessary to cause notice of the divorce action to be published. Her motion was granted; however, no order was made regarding who was to pay the cost of publication. Mrs. Torres therefore moved to join the clerk of courts and the county commissioners on the grounds they were responsible for payment. Her motion to join was granted, and the trial court subsequently entered judgment against the new party defendants.

In case No. 45036, entitled Weems v. Weems, Mrs. Weems brought an action for divorce on the grounds that her husband had been guilty of gross neglect of duty and extreme cruelty. With her complaint, Mrs. Weems submitted an affidavit wherein she stated her sole source of income was approximately $80 per week from Aid to Families with Dependent Children, and that her sole assets consisted of equity in real estate in the amount of $1,800 and household furniture. Mrs. Weems attempted to serve her husband by certified mail but was unsuccessful. She then asked the clerk for service by publication but was told she must first deposit $50. Claiming she was indigent, Mrs. Weems filed a motion to waive prepayment of publication fees and served the motion on the clerk of courts and the county commissioners. Thereafter, the trial court granted Mrs. Weems' motion and ordered the clerk of courts to cause service of notice by publication upon Mr. Weems without requiring Mrs. Weems to prepay the cost of service.

The clerk subsequently moved to vacate on the grounds that he had not been made a party to the action and that therefore the court had no jurisdiction over him. The trial court rejected the clerk's contentions and denied his motion.

In Torres v. Torres, the clerk and the board of commissioners appealed and raise as their sole assignment of error:

"The trial court erred in granting judgment for the plaintiff solely on the basis of an affidavit."

In Weems v. Weems, only the clerk appeals. He raises the following assignment of error:

"The trial court erred by overruling the motion to vacate a judgment against the clerk of courts in a civil action in which the clerk had not been made a party."

Because both cases raise issues regarding the proper procedure to be followed by an indigent in a divorce action in obtaining prepaid service by publication, we have consolidated these cases.

At the outset, we note that there is no dispute as to whether Mrs. Torres and Mrs. Weems are entitled to a waiver of the prepayment of service by publication. The United States Supreme Court in Boddie v. Connecticut (1971), 401 U.S. 371, 91 S.Ct. 780, 28 L.Ed.2d 113, specifically held that where indigent divorce litigants were precluded from filing for divorce because they could not afford the filing fee and the costs for service of process, they were denied due process of law. The United States Supreme Court premised its decision upon the fact that the marriage relationship enjoys an esteemed position in our society's hierarchy of values and that the states monopolize the means for legally dissolving this relationship.

In Monroe v. Monroe (1972), 33 Ohio Misc. 223, 294 N.E.2d 250 , the Court of Common Pleas of Hamilton County found that where the plaintiff in that divorce action was the recipient of public assistance and could not pay the costs of service by publication without depriving her family of the necessities of life, the decision in Boddie required the county to pay for the costs of service by publication.

Hence, it is clear under Boddie and Monroe that Mrs. Torres and Mrs. Weems, once determined to be indigent, were entitled to have the county prepay the costs of service by publication. However, both Boddie and Monroe left unanswered two questions presented in the instant cases. ⁴ The first is: What quantum of proof is necessary to establish a litigant's indigency? The second is what are the mechanics for prepayment by the county of service by publication costs, i.e., must the clerk of courts and/or county commissioners be made party defendants to the divorce action before they can be required to pay the costs?

I Proof of Indigency

The first issue we will discuss is what proof is required to be given by an indigent before prepayment of service by publication will be granted.

In order to waive prepayment of a filing fee in a domestic relations matter, the court requires only that an affidavit be filed by the plaintiff alleging she is indigent. See R.C. 2323.31 ⁵; Sections 2 and 3 of the Poverty Affidavit Rule of the Domestic Relations Division ⁶; and Rule 7(D) of the Cuyahoga County Court of Common Pleas. ⁷ Indeed, in both Torres and Weems, the trial court waived prepayment of the filing fee because both Mrs. Torres and Mrs. Weems had submitted proverty affidavits with the court. The rules do not, however, state whether the mere filing of a poverty affidavit is sufficient to waive prepayment of costs for service by publication.

A reading of these rules does refer to costs which may accrue during the pendency of a lawsuit. To illustrate, R.C. 2323.31 provides: "[I]f a plaintiff makes an affidavit of inability either to prepay or give security for costs, the clerk of the court shall receive and file the petition." (Emphasis added.) Likewise, Section 2 of the Poverty Affidavit Rule of the Domestic Relations Division provides: "The Clerk of Courts shall accept for filing a pleading if [the] same is accompanied by prescribed poverty affidavit in lieu of security for cost * * *." (Emphasis added.) In addition, Section 3 of the Poverty Affidavit Rule of the Domestic Relations Division refers to "security for costs." Finally, Rule 7(D) of the Cuyahoga County Court of Common Pleas states: "A poverty affidavit filed in lieu of a cash deposit must state the reasons for the inability to prepay costs * * *." (Emphasis added.) We hold that the cost of service by publication comes within the scope of the term "costs" as it is used in these rules. Thus, like the cost of the filing fee, the cost of service by publication can be waived by the court upon the filing of a poverty affidavit by the movant.

Although we hold that the mere filing of a poverty affidavit can be sufficient of and in itself to effectuate a waiver of the filing fee and cost of service by publication, we do not mean to intimate that such an affidavit will operate to waive such costs in every case. Where the trial court or the clerk of courts questions the truthfulness of such an affidavit, the court, on its own motion, or the clerk, on his motion, may request an oral hearing to investigate the litigant's indigency. Our holding is in full compliance with Rule 7(D) of the Cuyahoga County Court of Common Pleas, which provides that the poverty affidavit filed to waive prepayment of costs "is subject to court review at any stage of the proceedings." See, also, Section 3 of the Poverty Affidavit Rule of the Domestic Relations Division, which states that the court may dismiss the case "if it finds the party who filed the poverty affidavit is not indigent." ⁸

Other jurisdictions in implementing Boddie have reached basically the same conclusion as we have in the instant cases. See Earls v. Superior Court (1971), 6 Cal.3d 109, 98 Cal.Rptr. 302, 490 P.2d 814 (holding that where petitioner filed a petition for dissolution of marriage and request to proceed in forma pauperis, supported by an affidavit setting forth facts indicating that she was indigent, the trial court erred in denying her motion to proceed without prepayment of filing fees. The court intimated that a hearing on a plaintiff's alleged indigency may be proper where the trial court had doubts as to the factual statements contained in the poverty affidavit); Tolson v. Lane (Ky.1978), 569 S.W.2d 159 (holding that where plaintiff filed an affidavit with facts supporting her alleged indigency, the trial court erred in refusing her to proceed in forma pauperis. The court did not discuss whether an affidavit was always legally...