I respectfully disagree with the majority and would sustain the appellant's assignments of error. I believe that the trial court's dismissal of the defendant-appellant's motion to modify spousal support for failure of service is contrary to law and constitutes an abuse of discretion.
I generally have no fault with the recitation of facts that are set forth in the majority opinion. I do believe, however, that the facts in this case warrant following Carson v. Carson (1989),62 Ohio App.3d 670, 673. This case held that an objection to service invoking continuing jurisdiction must be timely made. In this case, the appellant filed its motion to modify spousal support on January 13, 1994. At the time of this filing, the appellee had a pending motion to show cause which had been filed on December 20, 1993. It is clear that the appellant did not properly serve the appellee, but did serve her attorney.
The magistrate recommended dismissing the appellant's motion to modify spousal support. The appellant filed objections to the report and the appellee filed its brief in opposition. It is interesting to note that the magistrate addressed the issue of service in her decision dated October 29, 1996, where she found:
The magistrate finds that service upon said motions was duly and properly made; that notice containing the date and time of this proceeding was mailed to counsel of record * * *.
The trial court sustained the objections to the report and reinstated the appellant's motion. On January 26, 1996, more than two years after the original filing of the motion to modify, the appellee for the first time filed a motion to dismiss alleging ineffective service. It seems to me that the appellee in this case had a duty to make her objection in a timely fashion. Having failed to do so, I believe that in this case, based upon its unique facts, coupled with the fact that the court's jurisdiction had been invoked for matters intricately intertwined with *Page 718 the appellant's motion, the appellee was barred from raising the service issue on the day of the scheduled hearing.
The majority attempts to distinguish the holding in Carson from the facts of the present case by stating in the majority opinion on no less than three occasions that the appellee "timely" objected to the failure of the appellant to personally serve her with his motion to modify spousal support. I completely fail to understand how the majority can characterize an objection made two years after alleged improper service as "timely made," especially given the innumerable opportunities the appellee had to object earlier in the proceedings. The majority opinion also ignores the reasoning in Carson that by himself invoking the continuing jurisdiction of the court, a party waives any objection to that court's jurisdiction.
The trial court did not permit the appellant to attempt to show that there had been a "substantial change of circumstance" rendering the original order unreasonable. Had the trial court resolved the motion on its merits and failed to find a "substantial change in circumstance," then I would agree with remaining rulings of the trial court and overrule assignments of error II through VI.
It is a well-recognized rule in Ohio that a party cannot be permitted to occupy inconsistent positions or to take a position in regard to a matter which is contrary to one previously assumed by him. A person who voluntarily submits to the exercise of jurisdiction by a court upon a matter which it has the power to take cognizance is estopped from subsequently objecting thereto. A party who consents that a court shall enter judgment and accepts benefits thereunder cannot be heard to object to the court's power to render such judgment. See, generally, 22 Ohio Jurisprudence 3d (1983, Supp. 1997), Estoppel and Waiver, Sections 56-62. Ohio has long recognized the principal of estoppel where one party with knowledge of the facts has stood by without asserting his rights or asserting an objection while others have incurred large expenditures or detriment by reason of such silence. This principle is recognized in the legal maxim "[i]f one is silent when he should speak, justice will compel him to silence when he would speak."
In the instant case, the appellee voluntarily submitted to the continuing jurisdiction of the trial court on numerous occasions, but then objected to the manner in which the appellant had invoked such jurisdiction two years after the fact. The trial court, as well, repeatedly acted in a manner consistent with the appellant's belief that the court's continuing jurisdiction had been properly invoked. The mistake in the method of service of the appellant's motion to modify spousal support could have been easily remedied if the appellee had timely raised the matter for consideration by the trial court. *Page 719
A waiver is the voluntary surrender or relinquishment of a known legal right by agreement or by failure to exercise a privilege to claim a right. State ex rel. Ryan v. State TeachersRetirement Sys. (1994), 71 Ohio St.3d 362. Failure to act, or acting in a manner inconsistent with the known legal right, may constitute implied waiver. Failure to raise matters for the consideration of a court may raise a presumption of waiver of the right to do so. Feazel v. Feazel (1915), 5 Ohio App. 63.
It is clear that the dismissal of the motion to modify other than on the merits severely compromised the appellant's ability to defend against the appellee's motions. It is equally clear that the dismissal led directly to the contempt finding, as well as the court's ancillary findings in favor of the appellee. As a result of the delay tactics employed by the appellee and the ruling of the trial court, the appellant was precluded from challenging the amount of court-ordered spousal support for the approximately two-year period preceding the ruling by the court. It is abundantly obvious from the record that the appellee could have brought the procedural defect to the attention of the court at a much earlier date, but chose not to for purely strategic reasons. I believe that this constitutes an abuse of the Civil Rules of Procedure.
I would, therefore, sustain the appellant's assignments II through VI and remand this matter to the trial court for further proceedings consistent with this opinion.