87-CA-12 | Ohio Ct. App. | Feb 23, 1988
Defendant-appellant John Robert Adkins appeals from a judgment of divorce, asserting multiple assignments of error. Although we reject all of his other assignments of error, we agree with Mr. Adkins that the trial court committed error when it declined to exercise discretion, pursuant to Civ. R. 63(B), whether to order a new trial. We conclude that the trial court incorrectly understood that it was precluded from exercising its discretion whether to order a new trial by virtue of the opinion of this court in a previous appeal in this case. Because we conclude that the trial court had discretion, the judgment of the trial court will be reversed, and this cause will be remanded to the trial court for the exercise of its discretion to determine whether to order a new trial.
Mr. Adkins cites Brown v. Brown (1984),
"`[C]ase transfers after a trial is commenced or concluded are governed by Civ. R. 63. * * * That * * * Rule allow[s] the administrative judge, or the Chief Justice of the Ohio Supreme Court in the instance of a single-judge division, to designate a replacement judge when the assigned judge "is unable to proceed with the trial" or is "unable to perform the duties of the court after a verdict." Here again, reassignment is permitted only where there is a record showing of the assigned judge's inability to act.'" Brown, supra, at 46, 15 OBR at 74,
Mr. Adkins claims that Judge Mowrey should not have been allowed to recuse himself because no "good cause" was given for such removal as required under Brown and Berger. This case, however, differs from both Brown and Berger in that the Chief Justice of the Ohio Supreme Court acquiesced in the withdrawal of Judge Mowrey and ordered the assignment of Judge Clark to this case. Therefore, the requirements of Civ. R. 63 were followed in this case, and Mr. Adkins was not denied due process of law.
To the extent that Mr. Adkins seeks in this court to question the propriety of the Chief Justice's assignment of Judge Clark, our conclusion is that that is not a proper subject of our appellate review. With respect to the assignment of an out-of-county judge to a court of common pleas, Civ. R. 63 merely implements the grant of power found in Section
Finally, both Brown and Berger declare that a party can waive his right to object to a reassignment of judges if the objection is not made within reasonable time:
"* * * [A]ny party objecting to reassignment must raise that objection at the first opportunity to do so. If the party has knowledge of the transfer with sufficient time to object before the new judge takes any action, that party waives any objection to the transfer by failing to raise that issue on the record before the action is taken. If the party first learns about the transfer after action is taken by the new judge, the party waives any objection to the transfer by failing to raise that issue within a reasonable time thereafter." Berger, supra, at 131, 3 OBR at 147-148,
In this case, Mr. Adkins failed to object to the assignment of Judge Clark. Therefore, he waived his right to object to the assignment.
Mr. Adkins' first assignment of error is overruled.
Judge Clark said in paragraph (4) of his opinion: "Taking into consideration all of the factors set forth in R.C.
Except as noted in Part VIII of this opinion, we conclude that Judge Clark correctly followed the mandate of this court in its earlier opinion in this case. We do not find that he acted improperly or that he abused his discretion.
Mr. Adkins' second assignment of error is overruled.
"The findings and conclusions in the case at bar bear little resemblance to the events at trial. The findings and conclusions are rife with factually and legally inaccurate statements. The *98 findings and conclusions are not consistent with the manifest weight of the evidence." Id. at 356.
But the court also remarked:
"* * * We do not suggest that a trial court may not adopt proposed findings and conclusions verbatim. It may. See Civ. R. 52 * * *. Before adopting proposed findings and conclusions, however, the trial judge has a duty to read the document thoroughly, and ensure that it is completely accurate in fact and law." Id. at 355.
Upon review of the record, we find that the trial court did not abuse its discretion in adopting Mrs. Adkins' proposed findings and conclusions of law. There were no apparent inaccuracies in Mrs. Adkins' proposed findings of fact and conclusions of law, and they were not against the manifest weight of the evidence.
Therefore, Mr. Adkins' fourth assignment of error is overruled.
"The trial court did not give proper consideration to the factors set forth in R.C.
Thus, our previous decision required the trial court to reevaluate its sustenance alimony and enter a new order consistent with our opinion, and that is exactly what Judge Clark did — he did not modify a prior sustenance order, he entered a new and proper sustenance alimony order as instructed by this court.
Mr. Adkins' fifth assignment of error is overruled.
Although the transcript of the first trial of this cause is not in the record before us, it appears from the following excerpt from the decree of divorce entered on October 8, 1982, following that trial, that there was an in-court agreement:
"17. The parties agreed and stipulated that an appropriate division of personal property had been effected by and between themselves, with the property at 144 Montclair Avenue to the Plaintiff less certain exceptions to Defendant and the property at 432 N. Court Street to the Defendant."
Notwithstanding this finding in the original divorce decree, this court, in its opinion following the first appeal in this case, held that an inequitable amount of the property was awarded to Mr. Adkins. Even if that was an erroneous holding, in view of the parties' in-court agreement, that holding is now part of the law of the case, since it involved facts and issues substantially identical to those argued in connection with Mr. Adkins' sixth assignment of error in the present appeal. Accordingly, *99
it is now too late to argue that the prior holding of this court was erroneous in that respect.1 State, ex rel. Potain, v.Mathews (1979),
Mr. Adkins' sixth assignment of error is overruled.
"The fifth assignment of error also is well taken in part since the trial court did apparently overlook some of the evidence as to the income and assets of defendant. However, we find no ambiguity with respect to the support order. The order specifically states that, if a child remains with defendant for more than seven consecutive days, support payments shall be abated for the number of consecutive days in excess of seven that the child remains with defendant. This applies to all periods of consecutive days a child is with defendant. Support is to be paid plaintiff for the first seven days, but not for any days in excess of seven where the days are consecutive."
The fifth assignment of error, in the previous appeal in this case, referred to above, stated:
"The trial court erred and abused its discretion in that its findings of fact and conclusions of law are incomplete and ambiguous so as to cause substantial injustice to the plaintiff and to the minor children."
Upon reading these two statements in conjunction, we do not believe that the trial court erred by ordering an increase in support payments. Our previous decision merely held that the support order was unambiguous — it did not hold that the support order was adequate; on the contrary, in our previous decision we held that the fifth assignment of error was well-taken in part because the "trial court did apparently overlook some of the evidence as to the income and assets of defendant." This language suggests that the child support payments might not be adequate when the additional income and assets are considered. Therefore, Judge Clark acted within the mandate of this court's prior opinion when he decided to increase child support payments after reviewing the record.
Mr. Adkins' seventh assignment of error is overruled.
Third Assignment of Error
"Judge Clark, a succeeding trial judge, erred by failing to conduct a retrial when such judge was incapable of constituting findings of fact and conclusions of law, not having tried the original action or by failing to substantiate Judge Mowrey's findings."
Eighth Assignment of Error
"Judge Clark erred and abused his discretion by failing to grant defendant's request for a new trial."
In both of these assignments of error, Mr. Adkins contends that Judge Clark erred by drafting new findings of fact and conclusions of law without first conducting a retrial. *100
Civ. R. 63(B) provides as follows:
"If for any reason the judge before whom an action has been tried is unable to perform the duties to be performed by the court after a verdict is returned or findings of fact and conclusions of law are filed, another judge designated by the administrative judge, or in the case of a single-judge division by the chief justice of the supreme court, may perform those duties; but if such other judge is satisfied that he cannot perform those duties, he may in his discretion grant a newtrial." (Emphasis added.)
In Elsnau v. Weigel (1983),
"Civ. R. 63(B) allows certain duties to be performed by a successor when the original judge has died or become disabled. Under this rule, the successor judge in the case at bar assumed full responsibility to carry out the post-verdict duties of his predecessor. As a consequence, one of the responsibilities of the successor judge was to rule on appellees' motion for a new trial."
In the case before us, Judge Clark assumed full responsibility to carry out the post-verdict duties of his predecessor in the case, Judge Mowrey. Pursuant to Civ. R. 63(B), a decision whether to grant a motion for a new trial is left to the sound discretion of the succeeding judge. But, see, Welsh v. Brown-Graves LumberCo. (1978),
In this case, while it appears likely that Judge Clark would have exercised his discretion to order a new trial, based on his remarks at page 9 of the transcript of proceedings of July 18, 1986, it also appears, based on the same remarks, that he concluded that he was precluded from exercising discretion whether to order a new trial by virtue of the mandate of this court in its opinion concluding the first appeal in this case.
We have reviewed this court's opinion in the first appeal in this case and, even after giving Judge Clark the benefit of the doubt,2 we cannot find anything in the earlier opinion of this court that would have precluded Judge Clark from exercising the discretion provided for in Civ. R. 63(B). Consequently, we hold that Judge Clark erred as a matter of law when he concluded that he was precluded from exercising his discretion, and this cause will be remanded in order that the trial court may exercise its discretion whether to order a new trial. In this connection, we note that Judge Clark, *101 should this case come back to him for the exercise of his discretion, need not consider himself bound by his remarks at page 9 of the transcript of July 18, 1986, in which he indicated his preference for having a new trial. In the exercise of the trial court's sound discretion, the trial court may consider the present posture of the case, which includes another year and a half of delay in litigation that has already seen more than its share of delays, and the prospect of a judgment that has already been determined by this court to be free of error in all other respects if the trial court should exercise its discretion by not ordering a new trial.3
Mr. Adkins' third and eighth assignments of error are sustained to the extent that we hold that the trial court erroneously declined to exercise the discretion that it had, pursuant to Civ. R. 63(B), to determine whether a new trial should be ordered. Accordingly, that part of the judgment of the trial court awarding a divorce will be affirmed, the judgment will be reversed in all other respects, and this cause will be remanded to the trial court for the exercise of its pursuant to Civ. R. 63(B), whether to order a new trial. If the trial court should decide, in the exercise of its discretion, not to order a new trial, it may simply re-file its judgment entry in this case.
Judgment accordingly.
STEPHENSON and ABELE, JJ., concur.
MIKE FAIN, J., of the Second Appellate District, sitting by assigment.