2014 Ohio 5775
Ohio Ct. App.2014Background
- Richard E. Winkler, II (appellant) moved the Lake County Juvenile Court to assume jurisdiction over a paternity case previously pending in Indiana; Indiana consented and Ohio court took the case.
- Appellant signed an affidavit acknowledging an ongoing duty to immediately notify the court of any address change; the court repeatedly reminded parties of that duty.
- Counsel for appellant moved to withdraw on September 12, 2013; the magistrate granted the motion on September 17, 2013; appellant was served with counsel’s withdrawal motion by e-mail.
- Trial proceeded before the magistrate on October 1, 2013; appellant did not appear, and the magistrate held the hearing in his absence, found him in contempt for unpaid child support and related arrears, and imposed a purgeable 30-day jail term.
- The trial court adopted the magistrate’s decision on October 18, 2013. Appellant filed a timely Civ.R. 60(B) motion (excusable neglect) arguing he believed the case would not proceed after counsel’s withdrawal and contending he did not receive notice; the trial court denied relief.
Issues
| Issue | Plaintiff's Argument (Winkler) | Defendant's Argument (Radmanic) | Held |
|---|---|---|---|
| Whether appellant’s failure to appear because counsel withdrew shortly before trial constituted excusable neglect under Civ.R. 60(B)(1) | Counsel withdrew 13 days before trial; counsel failed to update the court with appellant’s new address; appellant reasonably believed the case would not proceed and thus his absence was excusable | Appellant had an ongoing duty to notify the court of an address change; notices were sent and not returned; appellant received some post-trial orders; he had notice of the trial and failed to move for a continuance | Court affirmed denial: appellant did not show excusable neglect; failure to keep court informed and to seek continuance amounted to simple neglect, not excusable neglect |
| Whether the circumstances amounted to attorney abandonment justifying relief under Civ.R. 60(B)(5) | Permitting counsel to withdraw so close to trial amounted to abandonment and justifies relief under 60(B)(5) | Argument not raised below; no evidence counsel abandoned client (unlike disciplinary/suspension cases); cannot raise new theory on appeal | Court refused to consider new abandonment theory and found no controlling authority to treat a routine withdrawal as abandonment; appeal barred on that unraised argument |
Key Cases Cited
- GTE Automatic Elec., Inc. v. ARC Industries, Inc., 47 Ohio St.2d 146 (establishes three-prong test for Civ.R. 60(B) relief)
- Kay v. Marc Glassman, Inc., 76 Ohio St.3d 18 (excusable neglect is an elusive concept; courts exercise discretion)
- Colley v. Bazell, 64 Ohio St.2d 243 (Civ.R. 60(B) is remedial and should be liberally construed)
- Ohio Valley Radiology Associates, Inc. v. Ohio Valley Hosp. Ass’n., 28 Ohio St.3d 118 (docket entry of trial date gives constructive notice)
- State ex rel. Worcester v. Donnellon, 49 Ohio St.3d 117 (a court speaks only through its journal)
- Perry v. G.M.C., 113 Ohio App.3d 318 (examples where unusual circumstances can support excusable neglect)
- State ex rel. Heller v. Miller, 61 Ohio St.2d 6 (parental rights are fundamental — cited in dissent)