Ohio Civ.R. 4.4

As amended through March 13, 2024

Rule 4.4 - Process: Service by Publication

(A) Residence unknown.

(1)Service by Publication in a Newspaper. Except in an action or proceeding governed by division (A)(2) of this rule, when service of process is required upon a party whose residence is unknown, service shall be made by publication in actions where such service is authorized by law. Before service by publication can be made, an affidavit of the party requesting service or that party's counsel shall be filed with the court. The affidavit shall aver that service of summons cannot be made because the residence of the party to be served is unknown to the affiant, all of the efforts made on behalf of the party to ascertain the residence of the party to be served, and that the residence of the party to be served, cannot be ascertained with reasonable diligence.

Upon the filing of the affidavit, the clerk shall cause service of notice to be made by publication in a newspaper of general circulation in the county in which the action or proceeding is filed. If no newspaper is published in that county, then publication shall be in a newspaper published in an adjoining county. The publication shall contain the name and address of the court, the case number, the name of the first party on each side, and the name and last known address, if any, of the person or persons whose residence is unknown. The publication also shall contain a summary statement of the object of the pleading or other document seeking relief against a party whose residence is unknown, a summary statement of the demand for relief, and shall notify the party to be served that such party is required to answer or respond either within twenty-eight days after the publication or at such other time after the publication that is set as the time to appear or within which to respond after service of such pleading or other document. The publication shall be published at least once a week for six successive weeks unless publication for a lesser number of weeks is specifically provided by law. Service of process shall be deemed complete at the date of the last publication.

After the last publication, the publisher or its agent shall file with the court an affidavit showing the fact of publication together with a copy of the notice of publication. The affidavit and copy of the notice shall constitute proof of service of process.

(2)Service by Publication by Posting and Mail.

(a)Actions and Proceedings other than Civil Protection Order Proceedings. In divorce, annulment, or legal separation actions and in actions pertaining to the care, custody, and control of children whose parents are not married, and in all post-decree proceedings:

(i) if the residence of the party upon whom service is sought is unknown; and,

(ii) if the matter is not governed by Civ.R. 65.1; and,

(iii) if the party requesting service upon another party is proceeding with a poverty affidavit; service by publication shall be made by posting and mail. Before service by posting and mail can be made under this division (A)(2)(a), an affidavit of the party requesting service or that party's counsel shall be filed with the court. The affidavit shall contain the same averments required by division (A)(1) of this rule and, in addition, shall set forth the defendant's last known address.

Upon the filing of the affidavit, the clerk shall cause service of notice to be made by posting in a conspicuous place in the courthouse or courthouses in which the general and domestic relations divisions of the court of common pleas for the county are located and in two additional public places in the county that have been designated by local rule for the posting of notices pursuant to this rule. Alternatively, the postings, except for protection orders issued pursuant to Civ.R. 65.1, under this division (A)(2)(a), may be made on the website of the clerk of courts, if available, in a section designated for such purpose. The notice shall contain the same information required by division (A)(1) of this rule to be contained in a newspaper publication. The notice shall be posted for six successive weeks.

(b)Civil Protection Order Proceedings. In civil protection order proceedings where the party's residence upon whom service is sought is unknown, service may be made by posting and mail without the necessity of a poverty affidavit. Before service by posting and mail can be made under this division (A)(2)(b), an affidavit of the party requesting service or that party's counsel shall be filed with the court. The affidavit shall contain the same averments required by division (A)(1) of this rule and, in addition, shall set forth the last known address of the party to be served.

Upon the filing of the affidavit, the clerk shall cause service of notice to be made by posting in a conspicuous place in the courthouse or courthouses within the county where Civ.R. 65.1 civil protection order proceedings may be filed and in two additional public places in the county that have been designated by local rule for the posting of notices pursuant to this rule. The postings under this division (A)(2)(b) shall not be made on the website of the clerk of courts. The notice shall contain the same information required by division (A)(1) of this rule to be contained in a newspaper publication. The notice shall be posted for six successive weeks.

(c) Additional Requirement for Mailing. When service by publication is sought by posting and mail under either division (A)(2)(a) or division (A)(2)(b) of this rule, the clerk shall also cause the documents for service to be mailed by United States ordinary mail, address correction requested, to the last known address of the party to be served. The clerk shall obtain a certificate of mailing from the United States Postal Service. If the clerk is notified of a corrected or forwarding address of the of the party to be served within the six-week period that notice is posted pursuant to division (A)(2)(a) or division (A)(2)(b) of this rule, the clerk shall cause the documents for service to be mailed to the corrected or forwarding address. The clerk shall note the name, address, and date of each mailing on the docket.

(d)Docket Entry of Posting; Completion of Service. After the last week of posting ,under either division (A)(2)(a) or division (A)(2)(b) of this rule, the clerk shall note on the docket where and when notice was posted. Service shall be complete upon the entry of posting.

(B) Residence known. If the residence of a party to be served is known and the action is one in which service by publication is authorized by law, service of process shall be effected by a method other than by publication as provided by:

(1) Civ.R. 4.1, if the party to be served is a resident of this state,

(2) Civ.R. 4.3(B) if party to be served is not a resident of this state, or

(3) Civ.R. 4.5, in the alternative, if service on party to be served is to be effected in a foreign country.

If service of process cannot be effected under the provisions of this subdivision or Civ.R. 4.6(C) or Civ.R. 4.6(D), service of process shall proceed by publication.

Ohio. Civ.R. 4.4

Effective: 7/1/1970; amended effective 7/1/1971; 7/1/1991; 7/1/2012; 7/1/2013; 7/1/2016; amended effective 7/1/2018.

Staff Notes (July 1, 2018 Amendment)

Background to the July 1, 2018 Amendments to Civ.R. 4.4.

As initially adopted in 1970, Civ.R. 4.4(A) provided that when the defendant's residence was unknown, service could be obtained by publication, but only by publication in a newspaper.

In 1991, Civ.R. 4.4(A) was divided into two divisions -- Civ.R. 4.4(A)(1) set forth essentially the same "publication by newspaper" provisions contained in the then-existing rule, while a new Civ.R.4.4(A)(2) allowed an indigent plaintiff in a divorce, annulment, or legal separation action to obtain service by publication "by posting and mail" when the defendant's residence is unknown. In 2013, the application of the publication "by posting and mail" provisions of Civ.R. 4.4(A)(2) were expanded to include an indigent plaintiff in actions pertaining to the care, custody, and control of children whose parents are not married, and in all post-decree proceedings; and a provision for posting at a website of the clerk of courts was added.

In 2016, the application of the publication "by posting and mail" provisions of Civ.R. 4.4(A)(2) were again expanded to include an indigent plaintiff in a civil protection order proceeding pursuant to Civ.R. 65.1; but such civil protection order plaintiffs were precluded from publishing protection orders at a website of the clerk of courts since such publication is prohibited by 18 U.S.C. Section 2265(d)(3).

After the adoption of the 2016 amendments to the rule, the Supreme Court Advisory Committee on Domestic Violence requested that the rule be further amended to allow any petitioner in a civil protection order proceeding, regardless of indigency, to make use of the publication "by posting and mail" provisions of Civ.R. 4.4(A)(2) when the defendant's residence is unknown.

The July 1, 2018 amendments amend and reorganize the rule to eliminate confusion resulting from the existing structure and terminology of its provisions, and to address and account for a number of matters related to its application, including the following:

. Service by publication may be sought by parties other than plaintiffs and may be sought against parties other than defendants, particularly in divorce, annulment, or legal separation actions; in actions pertaining to the care, custody, and control of children whose parents are not married; in post-decree proceedings in such actions; and in civil protection order proceedings governed by Civ.R. 65.1;

. Service by publication may be sought for the service of documents other than complaints -- such as petitions, motions, and orders -- in divorce, annulment, or legal separation actions; in actions pertaining to the care, custody, and control of children whose parents are not married; in post-decree proceedings in such actions; and in civil protection order proceedings governed by Civ.R. 65.1;

. A time other than within twenty-eight days of service may be required to respond or appear in response to service of a document other than a complaint -- such as service of a petition, motion, or order in divorce, annulment, or legal separation actions; in actions pertaining to the care, custody, and control of children whose parents are not married; in post-decree proceedings in such actions; and in civil protection order proceedings governed by Civ.R. 65.1.

Although the basis for the 1991 exemption from the payment of court costs due to indigency, and the basis provided by R.C. 3113.31(J) for the exemption from the payment of court costs in civil protection order proceedings are decidedly different, part of the rationale which apparently supported the 1991 adoption of Civ.R. 4.4(A)(2) justifies permitting parties in civil protection order proceedings, regardless of indigency, to obtain service by publication by posting and mail, i.e., those parties are not required to pay the substantial costs of service by publication in a newspaper. See Boddie v. Connecticut, 401 U.S. 371, 91 S.Ct. 780, 28 L.Ed.2d 113 (1971) and State ex rel. Blevins, v. Mowery, 45 Ohio St.3d 20, 543 N.E.2d 99 (1989); also see the Staff Notes to the 1998 amendments to Juv.R. 16.

Division (A)(1). Service by Publication in a Newspaper.

The rule is amended by replacing the terms "plaintiff" and "defendant" with the terms "party requesting service" and "party to be served."

The rule is amended by replacing "where the complaint is filed" with "where the action or proceeding is filed."

The rule is amended by replacing "object of the complaint" with "object of the pleading or other document."

The rule is amended to provide "within twenty-eight days after the publication or at such other time after the publication that is set as the time to appear or within which to respond after service of such pleading or other document."

Division (A)(2). Service by Publication by Posting and Mail.

The rule is amended by further sub-dividing it into division (A)(2)(a) addressing service by publication by posting and mail in actions or proceedings other than civil protection order proceedings, and division (A)(2)(b) addressing service by publication by posting and mail in civil protection order proceedings; division (A)(2)(c) addresses the additional requirement for mailing; and division (A)(2)(d) addresses the docketing of the entry of posting and completion of service.

The rule is amended by replacing "proceeding in forma pauperis" with "proceeding with a poverty affidavit."

The rule is amended by replacing the "defendant" with the "party upon whom service is sought."

Division (A)(2)(b). Civil Protection Order Proceedings.

The new division (A)(2)(b) contains the same general requirements of division (A)(2)(a) except:

The requirement of a poverty affidavit is eliminated.

"Courthouses within which domestic relations divisions * * * are located" is replaced with "Courthouses within the county where Civ.R. 65.1 civil protection order proceedings may be filed[;]"

Posting on the website of the clerk of courts is prohibited.

Division (A)(2)(c). Additional Requirements for Mailing.

The rule is amended by replacing "complaint and summons" with "documents for service."

The rule is amended by replacing "defendant's last known address" with "last known address of the party to be served."

Division (B). Residence known.

The rule is amended by replacing "defendant" with "party to be served."

Staff Notes (July 1, 2016 Amendment)

Division (A): Residence unknown. Division (A)(2) of this rule is amended to provide that publication by posting service of process is an appropriate method of service in Civ.R. 65.1 civil protection order proceedings under the conditions described in that division of the rule. As stated in division (A)(2) of the rule, a petitioner who is proceeding in forma pauperis and who requests publication by posting service of process must file an affidavit with the court containing the same averments required by division (A)(1) of the rule, i.e., that service of summons cannot be made because the residence of the defendant is unknown to the affiant, all of the efforts made on behalf of the party to ascertain the residence of the defendant, and that the residence of the defendant cannot be ascertained with reasonable diligence.

The service of process by publication by way of posting of a civil protection order shall not impact the prompt entry of such an order into the protection order file of the National Crime Information Center. It is to be noted that the alternative method of posting on the website of the clerk of courts is not available for service of protection orders issued pursuant to Civ.R. 65.1.