Grundey v. GrundeyGrundey v. Grundey
Rendered on April 16, 2015
Elizabeth N. Gaba, for appellee.
Isaac Wiles Burkholder & Teetor, LLC, Danielle M. Skestos, Christopher J. Geer, and Dale D. Cook, for appellant.
APPEAL from the Franklin County Court of Common Pleas, Division of Domestic Relations
SADLER, J.
{¶ 1} Defendant-appellant, Christine L. Grundey, appeals from a judgment of the Franklin County Court of Common Pleas, Division of Domestic Relations, granting a divorce and terminating her marriage to plaintiff-appellee, Joseph W. Grundey. For the reasons that follow, we reverse.
I. FACTS AND PROCEDURAL HISTORY
{¶ 2} Appellant and appellee were married on September 23, 2000. Two children were born of the marriage, Payton Grundey and Max Grundey. On February 18, 2010, appellee filed a complaint for divorce and motion for temporary orders. On February 19, 2010, appellant filed an answer, a counterclaim for divorce, and a request for temporary orders. Over the next three years, the trial court issued numerous temporary orders
{¶ 3} The case was tried to the court in June 2014, and on March 10, 2014, the trial court issued a Decree of Divorce. On April 4, 2014, appellant filed a motion for a new trial pursuant to
This Court‘s Judgment Entry/Decree of Divorce was originally issued on March 10, 2014.
Civ.R. 59(B) provides that “[a] motion for a new trial shall be served no later than fourteen days after the entry of judgment.”Civ.R. 59(B) . Defendant‘s Motion for a New Trial was not timely filed.”Therefore, Defendant‘s Motion for a New Trial pursuant to
Civ.R. 59 filed April 4, 2014, is hereby DENIED.
(Emphasis sic.)
{¶ 4} Appellee filed a notice of appeal to this court on May 16, 2014. Appellant filed her notice of appeal on May 21, 2014. In an entry dated October 17, 2014, this court acknowledges that appellee dismissed his appeal in case No. 14AP-407, but that appellant‘s appeal in case No. 14AP-420 remains pending.
II. ASSIGNMENTS OF ERROR
[I.] The trial court erred in denying the motion for new trial on the basis of an outdated version of Civil Rule 59.
[II.] The trial court abused its discretion in failing to award any spousal support to Christine Grundey.
[III.] The trial court abused its discretion in its calculation of child support and in failing to impute day care expenses to Christine Grundey.
[IV.] The trial court abused its discretion in its division of property and valuation of the marital residence as Joseph Grundey improperly dissipated marital assets in violation of court orders.
[V.] The trial court erred in considering the testimony of John Grundey that was not part of the record.
{¶ 5} “The decision to grant or deny a motion for a new trial, pursuant to
{¶ 6} In her appeal to this court, appellant alleges that the trial court erred when it relied on a former version of
IV. LEGAL ANALYSIS
{¶ 7} In her motion for a new trial, appellant challenges nearly every major component of the trial court‘s Decree of Divorce, including spousal support, child support, and division of marital property. The motion for a new trial also challenges various trial court rulings regarding appellee‘s alleged financial misconduct and contempt of prior court orders. The stated grounds for the motion are accident or surprise, pursuant to
{¶ 8} In July 2013,
{¶ 9} The trial court entered judgment on March 10, 2014. The record shows that the trial court accepted appellant‘s motion for electronic filing on April 4, 2014. The certificate of service filed with appellant‘s motion provides as follows:
The foregoing document was submitted for electronic filing on April 4, 2014, the service date. Per administrative order, notification of filing sent by the court‘s electronic filing system constitutes service upon all registered users. Upon the undersigned‘s receipt of notification that the document is accepted for e-filing, a copy of the filed document has or will be served upon non-registered parties and counsel by regular U.S. mail.
{¶ 10} Appellee concedes that the trial court committed an error of law when it determined that appellant was required to serve her motion within 14 days of the entry of the judgment. However, in defense of the trial court‘s decision, appellee argues appellant‘s April 4, 2014 motion should be treated as a motion for continuing jurisdiction pursuant to
The continuing jurisdiction of the court shall be invoked by motion filed in the original action, notice of which shall be served in the manner provided for the service of process under Civ.R. 4 to 4.6. When the continuing jurisdiction of the court is invoked pursuant to this division, the discovery procedures set forth in
Civ.R. 26 to37 shall apply.
(Emphasis added.)
{¶ 11}
{¶ 12} Appellee contends that when appellant‘s motion is treated as a motion for continuing jurisdiction under
{¶ 13} In Szymczak, appellant/ex-husband appealed from a trial court order holding him in contempt for failure to pay spousal support and denying his motions for modification of spousal support. The trial court determined that it did not have jurisdiction of appellant‘s motion to modify support due to appellant‘s failure to serve his ex-wife. On appeal, the ex-husband argued that his motion should have been treated as a motion to vacate the trial court‘s prior judgment brought pursuant to
{¶ 14} In holding that the trial court lacked jurisdiction to consider the ex-husband‘s motion, the Szymczak court reasoned as follows:
Civ.R. 75(I) [nowCiv.R. 75(J) ] provides that the continuing jurisdiction of the court shall be invoked by motion filed in the original action and notice of such shall be served in accordance withCiv.R. 4 to4.6 .Civ.R. 75(I) is used to seek a change in a domestic relations order on the ground that circumstances have changed since the original order was entered. McKinnon v. McKinnon (1983), 9 Ohio App.3d 220, 221, 459 N.E.2d 590. On the other hand,Civ.R. 60(B) involves a procedure for granting relief from a judgment not otherwise modifiable. Id. This rule does not speak to the amendment of a final judgment, but to the vacation of that judgment. Therefore, the choice of which rule applies depends on the particular reasons for the motion. Where a change of circumstances justifies a different result, the court may modify a decree when its continuing jurisdiction is properly invoked pursuant toCiv.R. 75(I) . ACiv.R. 60(B) motion would be used in the event of inadvertence, mistake, newly discovered evidence, fraud or neglect which existed at the time of the original judgment.
{¶ 15} Here, appellant styled her motion as one brought pursuant to
{¶ 16} Moreover, we note that, unlike a motion for continuing jurisdiction under
If a party files a notice of appeal from an otherwise final judgment but before the trial court has resolved one or more of the filings listed in this division, then the court of appeals, upon suggestion of any of the parties, shall remand the matter to the trial court to resolve the post-judgment filings in question and shall stay appellate proceedings until the trial court has done so. After the trial court has ruled on the post-judgment filing on remand, any party who wishes to appeal from the trial court‘s orders or judgments on remand shall do so.
(Emphasis added.)
{¶ 17} Based upon the plain language of
{¶ 18} Furthermore, we disagree with appellee‘s suggestion that a motion for a new trial should be treated as a motion for continuing jurisdiction, and served accordingly, when it is filed in an action for divorce, dissolution or legal separation. In Pulice v. Collins, 8th Dist. No. 86669, 2006-Ohio-3950, the court explained the reason for the service requirements of
The reason for this requirement is practical. In a domestic relations case the trial court retains jurisdiction over certain issues, including child support and visitation, even though disputes in these areas may not arise for months or years after the initial divorce decree is entered. Once the decree is final, it is unlikely that the parties would stay in contact with their attorneys.
* * *
Because years can pass between the final decree and changed circumstances motivating a motion for a change in custody or support, therefore, practicality and due process require that the motion be served upon the original party, in the same manner as a newly filed case. Service other than according to
Civ.R. 4 through4.6 , therefore, is not sufficient guarantee of notice to fulfill due process requirements.
(Emphasis added.) Id. at ¶ 10, 12. See also Tuckosh v. Cummings, 7th Dist. No. 07 HA 9, 2008-Ohio-5819, ¶ 29-32.
{¶ 19} Given the timing of the motion for a new trial, service upon the opposing party, pursuant to
{¶ 20} For the foregoing reasons, we hold that the trial court erred when it denied appellant‘s motion for a new trial as untimely filed, without first determining whether appellant served the motion no later than 28 days after entry of judgment.1 Appellant‘s first assignment of error is sustained.
{¶ 21} Because the trial court erroneously denied appellant‘s motion for a new trial as untimely filed, the trial court did not consider the merits of appellant‘s claim of surprise and newly discovered evidence. A ruling on the merits of such a claim will necessarily require resolution of disputed factual issues. Therefore, we will not determine the merits of the stated grounds for new trial for the first time in this appeal. Similarly, because the newly discovered evidence proffered by appellant, if accepted by the trial court, may require recalculation of both child support and spousal support, and because the other allegations of trial court error made by appellant in her motion for a new trial mirror the arguments advanced by appellant in her remaining assignments of error, we will not consider those issues for the first time in this appeal.
{¶ 22} In short, given our resolution of appellant‘s first assignment of error, appellant‘s four remaining assignments of error are rendered moot.
V. CONCLUSION
{¶ 23} For the foregoing reasons, appellant‘s first assignment of error is sustained, and appellant‘s four remaining assignments of error are rendered moot. Accordingly, we reverse the judgment of the Franklin County Court of Common Pleas, Division of
Judgment reversed; cause remanded.
KLATT and BRUNNER, JJ., concur.
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