[Cite as In re Name Change of Biggerstaff , 2021-Ohio-591.]

COURT OF APPEALS PERRY COUNTY, OHIO FIFTH APPELLATE DISTRICT

IN RE: CHANGE OF NAME OF ABIGAIL BIGGERSTAFF

ASHLEY DECOT Applicant-Appellee

-vsGREGORY BIGGERSTAFF Respondent-Appellant JUDGES: Hon. Craig R. Baldwin, P. J. Hon. John W. Wise, J. Hon. Earle E. Wise, Jr., J.

Case No. 20 CA 00012

O P I N I O N

CHARACTER OF PROCEEDING: Civil Appeal from the Court of Common Pleas, Probate Division, Case No. 20209010

JUDGMENT: Reversed and Remanded

DATE OF JUDGMENT ENTRY: March 4, 2021

APPEARANCES: For Applicant-Appellee For Respondent-Appellant ASHLEY DECOT, PRO SE KYLE C. HENDERSON 2421 Cooperriders Road, NW 30 West Hunter Street Glenford, Ohio 43739 Logan, Ohio 43138Perry County, Case No. 20 CA 00012 2

Wise, John, J. {¶1} Appellant Gregory Biggerstaff appeals the May 4, 2020, decision of the Perry County Court of Common Pleas, Probate Division, granting a change of name of

minor child. {¶2} Appellee Ashley Decot has not filed a brief in this matter. App .R. 18(C) states in pertinent part: “If an appellee fails to file the app ellee's brief within the time provided by this rule, or within the time as extended, the appe llee will not be heard at oral argument * * * and in determining the appeal, the court may acc ept the appellant's statement of the facts and issues as correct and reverse the ju dgment if appellant's brief reasonably appears to sustain such action.”

STATEMENT OF THE FACTS AND CASE {¶3} Appellant Gregory Biggerstaff is the biological father of Abiga il Renee Biggerstaff (DOB 3/11/2011). He and the minor child’s Mother, Ashley Decot, were divorced by an agreed order dated September 14, 2014, in the Co urt of Common Pleas of Crawford County, Pennsylvania, where the parties shared phys ical custody of the

minor child. {¶4} On March 11, 2020, Appellee Ashley Decot, filed an Application for Change of Name of Minor with the Perry County Probate Court, to change the name of the minor child, Abigail Renee Biggerstaff to Abigail Renee Decot. {¶5} In said Application, Appellee Ashley Decot did not indicate on the Application that the address of Father was unknown. Instead, Gr egory Biggerstaff was identified as the father of the minor child, with an address of 3067 Fitzgerald Road, Simi Valley, CA 93065.Perry County, Case No. 20 CA 00012 3

{¶6} A hearing was scheduled upon the Application for May 4, 2020. {¶7} No certified mail was served upon father at the aforementioned address. {¶8} On April 1, 2020, Notice of Hearing on Change of Name was publi shed in the Perry County Tribune. {¶9} On May 4, 2020, the trial court summarily approved the Applicat ion without hearing. {¶10} On May 18, 2020, Appellant filed an Objection to Name Change an d a motion for reconsideration of the trial court’s ruling. {¶11} On June 3, 2020, Appellant filed a Request for Transcript. {¶12} On June 3, 2020, a letter from the trial court judge was filed stating no hearing was held in this matter and no transcript existed. {¶13} It is from this decision that Appellant now appeals, raising th e following assignments of error:

ASSIGNMENTS OF ERROR {¶14} “I. APPLICANT, ASHLEY DECOT, FAILED TO GIVE PROPER NOTICE TO FATHER, GREGORY BIGGERSTAFF, P ROPER NOTICE PURSUANT TO RC 2717.01(B). {¶15} “II. THE TRIAL COURT ABUSED ITS DISCRETION IN GRANTING APPLICANTS [SIC] PETITION TO CHANGE THE MINOR'S NAME BY FAILING TO

CONDUCT A HEARING AND FAILING TO APPLY THE BEST INTEREST STANDA RD.”Perry County, Case No. 20 CA 00012 4

I., II. {¶16} In his two assignments of error, Appellant argues the trial cou rt abused its discretion and ruled against the manifest weight of the evidenc e in granting Appellee's request to change the name of the minor child. We agree. {¶17} Proceedings for a name change are governed by R.C. §2717.01. T he statute provides: (A)(1) A person desiring a change of name may file an applicati on in the probate court of the county in which the person resides. T he application shall set forth that the applicant has been a bona fide residen t of that county for at least one year prior to the filing of the application, t he cause for which the change of name is sought, and the requested new name. *** (2) Except as provided in division (A)(4) of this section, noti ce of the application shall be given once by publication in a newspaper o f general circulation in the county at least thirty days before the heari ng on the application. The notice shall set forth the court in which the application was filed, the case number, and the date and time of the hearing. (3) Except as provided by division (C) of this section, upon pr oof that proper notice was given or that notice was waived under divisio n (A)(4) of this section and proof that the facts set forth in the applicat ion show reasonable and proper cause for changing the name of the applic ant, the court may order the change of name. (4) If an applicant for a change of name submits to the court, along with the application described in division (A)(1) of this secti on, satisfactoryPerry County, Case No. 20 CA 00012 5

proof that the publication of the notice under division (A)(2) of this section would jeopardize the applicant's personal safety, both of the f ollowing apply: (a) The court shall waive the notice requirement. (b) If the court orders the change of name under division (A)(3 ) of this section, the court shall order the records of the change o f name proceeding to be sealed and to be opened only by order of the c ourt for good cause shown or at the request of the applicant for any rea son. (B) An application for change of name may be made on behalf of a minor by either of the minor's parents, a legal guardian, or a guardian ad litem. When application is made on behalf of a minor, in additi on to the notice and proof required pursuant to division (A) of this sect ion, the consent of both living, legal parents of the minor shall be filed, or n otice of the hearing shall be given to the parent or parents not consenting by certified mail, return receipt requested. If there is no known father of the minor, the notice shall be given to the person who the mother of the minor alleges to be the father. If no father is so alleged, or if either parent or the address of either parent is unknown, notice pursuant to division (A) of th is section shall be sufficient as to the father or parent. Any additional notice required by this division may be waived i n writing by any person entitled to the notice. {¶18} R.C. §2717.01(B) makes clear that a parent of a minor child is a necessary party who must consent to the child's name change or be given n otice of the proceedings so that he or she may be heard in the matter. See In the matter of Randolph, 11th Dist.Perry County, Case No. 20 CA 00012 6

No. 2003-T-0017, 2005-Ohio-414, at ¶ 8-9. In order to obtain pe rsonal jurisdiction over such a parent, her or she must voluntarily appear, commit acts which waive a jurisdictional defense or properly receive service of process. Id. at ¶ 8; Maryhew v. Yova (1984), 11 Ohio St.3d 154, 156, 464 N.E.2d 538. A judgment entered without proper service is null

and void. State ex rel. Ballard v. O'Donnell (1990), 50 Ohio St.3d 182, 183, 553 N.E.2d 650, citing Lincoln Tavern, Inc. v. Snader (1956), 165 Ohio St. 61, 64, 133 N.E.2d 606. {¶19} Both R.C. §2717.01(B) and Civ.R. 4.4 predicate effective servic e of process by publication upon the address of the party to be served being unknown. If the parent's address is known, or by the exercise of reasonable diligence ma y be discovered, then notice of hearing must be had by “certified mail, return receip t requested.” See In the matter of Randolph, supra , at ¶ 15; Civ.R. 4.4(A). {¶20} In this matter, the record, including the Application filed by Appellee, is sufficient to establish that Appellee knew Appellant’s address. {¶21} In such a circumstance, R.C. §2717.01 requires service by certi fied mail to establish personal jurisdiction over the non-consenting parent. In re the matter of Randolph at ¶ 8. There was no service made or even attempted to Appella nt by certified mail; therefore, personal jurisdiction for him was never establ ished. Absent personal jurisdiction, the judgment of the court is void. A judgment whi ch is void due to a lack of personal jurisdiction constitutes a reason for vacating a judgm ent pursuant to Civ.R. 60(B)(5), GBS Corp. v. Creative Horizons, L.L.C. (Mar. 27, 2000), 5th Dist. No.1999-CA356, or, perhaps more properly, may be set aside within the cou rt's inherent power to vacate a judgment undermined by a jurisdictional defect. Id . In either event, vacation of the judgment at issue was proper.Perry County, Case No. 20 CA 00012 7

{¶22} Based on the foregoing, Appellant’s assignments of error are su stained. {¶23} The judgment of the Court of Common Pleas, Probate Division, Pe rry County, Ohio, is reversed and this matter is remanded for furth er proceedings consistent with the law and this opinion. Specifically, the trial court is instructed to enter judgment vacating its previous judgment granting the name change.

By: Wise, John, J. Baldwin, J., and Wise, Earle, J., concur.

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