2021 Ohio 1308
Ohio Ct. App.2021Background
- Parties divorced May 14, 2019; decree included allocation of parental rights for the parties’ 2013-born child.
- Wife filed a contempt motion Oct 17, 2019; she served Husband by certified mail (return receipt) on Dec 4, 2019.
- Husband served discovery to Wife’s counsel Dec 27, 2019 and later filed (but did not serve with a certificate) two motions on Dec 30, 2019: a motion to reallocate parental rights and a motion for contempt.
- Wife’s counsel first discovered the Dec 30 motions on the court docket Jan 29, 2020, requested copies, and received them by regular mail on Feb 5, 2020; Husband’s counsel admitted at the hearing he had not served opposing counsel because no appearance had been entered.
- The magistrate dismissed Husband’s Dec 30, 2019 motions for failure to serve Wife’s counsel and granted Wife’s contempt motion; the trial court adopted the magistrate’s decision and Husband appealed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Husband was required to serve Wife’s attorney with post-decree motions | Wife: Civ.R.5(B) requires service on counsel where a party is represented; Wife’s counsel was counsel of record (he had been served earlier). | Husband: Civ.R.4–4.6 and Civ.R.75 govern continuing-jurisdiction filings and do not require service on opposing counsel; he need only serve the party. | Court: Civ.R.5(B) applies to post-decree filings; because Wife was represented and counsel had been served on other papers, Husband abused discretion by failing to serve counsel; dismissal of Husband’s motions was proper. |
| Whether dismissal of Husband’s motions required dismissal of Wife’s contempt for alleged failure to serve Husband’s counsel | Wife: (Implicit) Wife’s contempt was properly served and prosecuted; Husband’s procedural complaint does not negate service she obtained. | Husband: Trial court should have dismissed Wife’s contempt because his motions were dismissed for lack of service on opposing counsel. | Court: Husband’s argument was not raised below and is unsupported by the record (Husband had served discovery and other pleadings); argument fails. |
Key Cases Cited
- Miller v. Miller, 37 Ohio St.3d 71, 523 N.E.2d 846 (Ohio 1988) (standard for appellate review of post-decree domestic-relations rulings cited for abuse-of-discretion review)
- Blakemore v. Blakemore, 5 Ohio St.3d 217, 450 N.E.2d 1140 (Ohio 1983) (definition of abuse of discretion)