2014 Ohio 2195
Ohio Ct. App.2014Background
- Cynthia Howell and Cecil Howell married in 1985 and had three children.
- Cynthia filed for divorce on October 22, 2010; Cecil waived service under Civ.R. 4(D) on the same date; a divorce decree and shared parenting plan were entered November 29, 2010.
- Cynthia moved for contempt on May 14, 2013 alleging Cecil failed to comply with the shared parenting plan; a hearing occurred July 16, 2013.
- On October 10, 2013, the trial court dismissed the contempt motion and held the decree void for violating Civ.R. 75(K)’s 42-day waiting period.
- Cynthia appeals arguing Civ.R. 75(K) is procedural, not substantive, and the decree was not properly voidable.
- The appellate court held Civ.R. 75(K) is procedural; a procedural irregularity renders a judgment voidable, not void, so the decree was not void; the trial court erred in vacating it.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Civ.R. 75(K) is substantive or procedural | Howell argues Civ.R. 75(K) is procedural. | Howell argues Civ.R. 75(K) creates a substantive right delaying divorce. | Civ.R. 75(K) is procedural. |
Key Cases Cited
- Morrison v. Steiner, 32 Ohio St.2d 86 (1972) (defines jurisdiction as power to adjudicate; sets framework for void vs voidable decisions)
- In re J.J., 111 Ohio St.3d 205 (2006-Ohio-5484) (distinguishes void vs voidable judgments and where challenges may be raised)
- GMAC, L.L.C. v. Greene, 10th Dist. No. 08AP-295 (2008-Ohio-4461) (void vs voidable distinction; inherent authority to vacate void judgments)
- Montgomery, 2003-Ohio-4095 (2003) (discusses void vs voidable and standards for challenging judgments)
- Clark v. Clark, 5th Dist. No. 06 CA 8 (2006-Ohio-2902) (considered Civ.R. 75(K) and its impact on divorce decrees in context of waiting period)
- Buckles v. Buckles, 46 Ohio App.3d 118 (1988) (notes that procedural rules do not determine jurisdiction)