FOUROUGH BAKHTIAR v. MEHDI SAGHAFI
No. 106587
Court of Appeals of Ohio, EIGHTH APPELLATE DISTRICT, COUNTY OF CUYAHOGA
September 20, 2018
2018-Ohio-3796
Civil Appeal from the Cuyahoga County Court of Common Pleas, Domestic Relations Division, Case No. DR-13-346931
For Mehdi Saghafi
Charles V. Longo
Charles V. Longo Company, L.P.A.
25550 Chagrin Boulevard, Suite 320
Cleveland, Ohio 44122
Bradley Hull
3681 South Green Road, Suite 208
Beachwood, Ohio 44122
David G. Weilbacher
12711 Gordon Street
North Royalton, Ohio 44133
For Dariush Saghafi
Dariush Saghafi, pro se
2741 Belgrave Road
Pepper Pike, Ohio 44124
For Jamesheed Saghafi
Jamesheed Saghafi, pro se
6314 Gale Drive
Seven Hills, Ohio 44131
For Kourosh Saghafi
Kourosh Saghafi, pro se
5620 Kenneth Avenue
Parma, Ohio 44129
William J. Stavole
Tucker Ellis, L.L.P.
950 Main Avenue, Suite 1100
Cleveland, Ohio 44113
For Key Bank
William Patrick Cloonan
4910 Tiedman, Third Floor
Brooklyn, Ohio 44144
ATTORNEYS FOR APPELLEES
For Fourough Bakhtiar
Joyce E. Barrett
James P. Reddy, Jr.
Law Offices of Joyce E. Barrett
55 Public Square, Suite 1260
Cleveland, Ohio 44113
For Zachary Simonoff
Zachary B. Simonoff
124 Middle Avenue, Unit 500
Elyria, Ohio 44052
PATRICIA ANN BLACKMON, J.:
{¶2} Having reviewed the record and pertinent law, we affirm. The apposite facts follow.
{¶3} The parties were married in 1959 in Iran. On May 3, 2013, the husband and the couples’ son filed applications in the Lorain County Court of Common Pleas, Probate Division, to be appointed guardian of the wife. Several days later, the wife filed a complaint for divorce in the Cuyahoga County Court of Common Pleas, Domestic Relations Division. State ex rel. Saghafi v. Celebrezze, 8th Dist. Cuyahoga No. 102746, 2015-Ohio-1159, ¶ 2. In July 2013, the husband moved to stay the divorce action pending the outcome of the probate action, asking the court to dismiss or “stay the proceedings until such time as an appropriate guardian has been appointed, and said guardian can intervene on [the wife‘s] behalf.” On October 31, 2013, while the motion to stay was pending, the parties agreed in the probate court that the wife is in need of a guardianship. On November 25, 2013, the couple‘s daughter was appointed interim guardian of the wife‘s person and Steven Sartchev was appointed interim guardian of her estate, but the probate court further directed that the parties not proceed with the divorce until it issued final orders. In January 2014, the wife retained her present counsel, and
{¶4} In December 2014, the guardians filed a motion in probate court seeking permission to proceed with the divorce case. In re Guardianship of Bakhtiar, 9th Dist. Lorain No. 15CA010721, 2016-Ohio-8199, at ¶ 2. In December 2014, the probate court issued a judgment authorizing the wife‘s guardian “to proceed in the Cuyahoga County Domestic Relations case through to final divorce.” Id. at ¶ 2-7; State ex rel. Saghafi v. Celebrezze, 2015-Ohio-1159 ¶ 3. In relevant part, the probate court stated:
1. That the ward, [the wife] has expressed her desire to be divorced from her husband * * * on numerous occasions.
2. That the GAL‘s report confirms that [the wife] wants to be divorced and that she “knows” what she wants.
3. That [the wife] previously filed for divorce.
4. While [the wife] needs a Guardian to oversee her needs, she has the ability to express that she wants a divorce and why.
In the present case, the probate court exercised its discretion as superior guardian of [the wife] when it authorized the guardian to proceed with the final divorce hearing. In its December 3, 2014 judgment entry, the probate court stated that after reviewing the Guardian Ad Litem report and the briefs in opposition and support, it found the report confirmed that [the wife] “wants to be divorced and that she ‘knows’ what she wants.” Additionally, the probate court found that “[w]hile [the wife] needs a Guardian to oversee her needs she has the ability to express that she wants a divorce and why.” Upon review of the Guardian Ad Litem report, it states that “[the wife] is an extremely articulate and intelligent woman who is able to express herself well.” The probate court considered the Guardian Ad Litem‘s findings in making its decision and reviewed the briefs in opposition and support; therefore, I do not hold that the probate court abused its discretion in finding the ward is capable of expressing her feelings regarding divorce and authorizing the guardian to proceed through final decree.
{¶6} The husband next sought a writ of prohibition to bar the domestic relations court from proceeding, arguing that there was no “complaining party to the divorce action willing and able to proceed.” State ex rel. Saghafi, 2015-Ohio-1159, at ¶ 4. In denying the writ, this court determined that the domestic relations court had subject matter jurisdiction, and that the challenge to the wife‘s competency did not deprive the domestic relations court of jurisdiction. Id. at ¶ 7. This court additionally framed the husband‘s challenge to the domestic relations court‘s jurisdiction as a “lack of standing to prosecute
{¶7} The husband again moved to dismiss the divorce proceedings on February 2, 2015, arguing that the wife is incompetent and is being subjected to undue influence from her daughter. The domestic relations court denied this motion and the divorce proceeded to trial in June 2015. The domestic relations court issued a final divorce decree on October 28, 2015. As is relevant herein, the court noted that it had relied upon:
a stipulation made by the parties in 2013 that [the wife] had “clearly and cogently” stated to the probate court that she desired to be divorced and also relied on testimony from her legal guardian to establish that [the wife] desired a divorce.
Bakhtiar v. Saghafi, 2016-Ohio-8052, 75 N.E.3d 80, ¶ 1 (8th Dist.). The court also noted that “jurisdiction and venue are proper.”
{¶8} On appeal, the husband raised eight assignments of error. As is relevant herein, the husband argued that the trial court erred by: failing to determine whether the wife was competent to speak on her own behalf regarding her desire to obtain a divorce; “imposing a divorce upon [the wife] through the guardian” in the absence of testimony from the wife; “relying upon the hearsay testimony [of the guardian] regarding the wife‘s intentions and desire for the divorce“; and relying upon the findings of the probate court. This court rejected all eight assigned errors and affirmed the couple‘s divorce decree. This court noted that “[t]here is no indication in this case that [the wife] did not want a
{¶9} On August 21, 2017, the husband‘s present counsel filed a notice of appearance in the action. On that same date, the husband‘s new counsel initiated the current proceedings by filing a motion in the domestic relations court to vacate and declare void all judgments rendered by the domestic relations court. In relevant part, the husband argued that the domestic relations court “did not possess personal jurisdiction” over the wife due to her incompetence and her former counsel‘s failure to timely advise the court of the wife‘s mental status. He argued that the wife‘s attorney violated
Suggestion of Incompetence
{¶10} The husband asserts that in dealing with an incompetent party, the motion for substitution must be filed within 90 days of counsel‘s knowledge of incompetence,
{¶11}
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(A) Death. (1) If a party dies and the claim is not thereby extinguished, the court shall, upon motion, order substitution of the proper parties. * * * Unless the motion for substitution is made not later than ninety days after the death is suggested upon the record by service of a statement of the fact of the death as provided herein for the service of the motion, the action shall be dismissed as to the deceased party.
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(B) Incompetency. If a party is adjudged incompetent, the court upon motion served as provided in division (A) of this rule shall allow the action to be continued by or against the party‘s representative. (Emphasis added.)
{¶12} The husband asserts that in dealing with an incompetent party, the motion for substitution must be filed within 90 days of counsel‘s knowledge of incompetence. However,
{¶13} Further,
{¶14} Moreover, insofar as the husband argues that there was a defective lack of standing at the time the domestic relations complaint was filed, the issue of lack of standing is an issue that is cognizable on appeal, and therefore it cannot be used to
{¶15} In accordance with the foregoing, we conclude that this matter is not void and subject to collateral attack for failure to timely move for substitution of parties.
Res Judicata -- Personal Jurisdiction
{¶16} The husband also argues that the wife could not obtain a divorce due to the incompetency guardianship. He asserts that the domestic relations court did not obtain personal jurisdiction over the wife, rendering all of the court‘s proceedings void and outside the bar of res judicata.
{¶17} Under the doctrine of res judicata, a valid, final judgment rendered upon the merits bars all subsequent actions based upon any claim arising out of the transaction or occurrence that was the subject matter of the previous action. Grava v. Parkman Twp., 73 Ohio St.3d 379, 382, 653 N.E.2d 226 (1995); State ex rel. Ballard v. O‘Donnell, 50 Ohio St.3d 182, 553 N.E.2d 650 (1990).
{¶18} The authority to vacate a void judgment is an inherent power possessed by Ohio courts and is not derived from
{¶19} In the event that a trial court does not obtain personal jurisdiction over a party to an action, any resulting judgment is void. Illum. Co. v. Riverside Racquet Club, Ltd., 165 Ohio App.3d 153, 2005-Ohio-5548, 845 N.E.2d 526, ¶ 12 (8th Dist.). If the prior judgment was void, then it cannot be res judicata. Id.; DeFranco v. Shaker Square, 158 Ohio App.3d 105, 2004-Ohio-3864, 814 N.E.2d 93, ¶ 3 (8th Dist.). However, after litigation of a personal jurisdiction question, the trial court‘s determination that it has personal jurisdiction is not subject to collateral attack. State ex rel. DeWine v. C & D Disposal Techs., 2016-Ohio-476, 58 N.E.3d 614, ¶ 26 (7th Dist.), citing Sherrer v. Sherrer, 334 U.S. 343, 68 S.Ct. 1087, 92 L.Ed. 1429 (1948). See also Emig v. Massau, 140 Ohio App.3d 119, 124, 746 N.E.2d 707 (10th Dist.2000); Prouse, Dash & Crouch, L.L.P. v. DiMarco, 8th Dist. Cuyahoga No. 96728, 2012-Ohio-12, ¶ 15.
{¶20} In this matter, the issue of the domestic relations court‘s personal jurisdiction over the wife was extensively litigated throughout the proceedings. That is, the husband raised this issue in July 2013 and February 2015. The contention was rejected twice by the trial court before it was raised in 2017, giving rise to the instant proceedings. Moreover, in the 2016 appeal, the husband also raised the challenge of personal jurisdiction by disputing the guardian‘s right to participate in the domestic relations case, a position which is inconsistent with the one he takes herein.
Subject Matter Jurisdiction
{¶21} The bar of res judicata does not apply where the prior action was void for lack of subject matter jurisdiction. See State v. Wilson, 73 Ohio St.3d 40, 46, 652 N.E.2d 196 (1995), fn. 6. However, where the question of subject matter jurisdiction has been fully litigated, res judicata applies to the final determination and it is not subject to collateral attack. Lewis v. Cleveland, 8th Dist. Cuyahoga No. 95110, 2011-Ohio-347, ¶ 18.
{¶23} The assigned errors are without merit.
{¶24} The order of the trial court is affirmed.
It is ordered that appellee recover of appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate be sent to said court to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
PATRICIA ANN BLACKMON, JUDGE
TIM MCCORMACK, P.J., and MELODY J. STEWART, J., CONCUR