In re Dissolution of the Marriage of Smith & Smith
Case No. 2014-P-0056
IN THE COURT OF APPEALS ELEVENTH APPELLATE DISTRICT PORTAGE COUNTY, OHIO
2015-Ohio-5522
DIANE V. GRENDELL, J.
IN THE COURT OF APPEALS
ELEVENTH APPELLATE DISTRICT
PORTAGE COUNTY, OHIO
IN THE MATTER OF THE DISSOLUTION : O P I N I O N
OF THE MARRIAGE OF: NATHAN M.
SMITH AND KELLY M. SMITH :
CASE NO. 2014-P-0056
:
Civil Appeal from the Portage County Court of Common Pleas, Domestic Relations Division, Case No. 2008 DR 00274.
Judgment: Reversed and vacated.
Robert E. Rosenberg and Michael D. Dailey, 533 East Main Street, Ravenna, OH 44266 (For Appellee, Nathan M. Smith).
Mary E. Randazzo, 6555 Dean Memorial Parkway, Boston Heights, OH 44236 (For Appellant, Kelly M. Smith).
DIANE V. GRENDELL, J.
{¶1} Petitioner-appellant, Kelly M. Smith, appeals from the September 11, 2014 Judgment Entry of the Portage County Court of Common Pleas, Domestic Relations Division, sua sponte vacating the Decree of Dissolution of her marriage with petitioner-appellee, Nathan M. Smith. The issues to be determined in this case are whether a party can raise the failure to file a parenting affidavit pursuant to
{¶3} On July 21, 2008, a Judgment Entry Decree of Dissolution was filed, with an attached Separation Agreement and Shared Parenting Plan, and the dissolution was granted. The transcript of the hearing showed that the parties were questioned about their consent to the Separation Agreement, established that it was signed voluntarily, and that both parties wanted a dissolution. Only Nathan was represented by an attorney.
{¶4} An Agreed Judgment Entry was filed on August 4, 2008, in which the parties agreed that the court would not retain jurisdiction over Nathan’s spousal support obligation, which, pursuant to the Separation Agreement was $6,500 per month beginning January 1, 2013, until 2020, when it became $9,100 per month. The Entry stated that the spousal support would continue until Kelly’s remarriage or Nathan’s death.
{¶5} Beginning on January 4, 2013, Nathan filed various Motions to Vacate the Judgment Entry Decree of Dissolution, on the grounds that the court did not have jurisdiction, for reasons including that the Decree did not state whether Kelly was pregnant at the time of the final hearing, no evidence was presented to show the parties were living apart at the time of the dissolution, there was a discrepancy in the amount of loans owed by the parties, a hearing was not held regarding the disclosure of Nathan’s address, and information was not presented regarding Kelly’s military status. Nathan also filed various motions relating to parenting rights and his spousal support obligation.
{¶7} Nathan filed a Motion for Summary Judgment on April 18, 2014, requesting that the Decree of Dissolution be declared void.
{¶8} On August 22, 2014, the lower court issued a Judgment Entry declaring the Decree of Dissolution void due to the court’s lack of jurisdiction, stating that the parties had not filed the parenting affidavits required under
{¶9} Kelly subsequently filed a Motion to Reconsider and Motion to Vacate the Judgment Entry. On September 11, 2014, the court issued a Judgment Entry vacating the August 22, 2014 judgment. On the same date, the trial court issued a Judgment Entry, finding that Kelly had not filed a parenting affidavit and that it was a “mandatory jurisdictional requirement.” It stated that “this Court, on its own Motion, finds that the Trial Court lacked jurisdiction in the above-captioned matter and the Decree of
{¶10} Kelly appealed from that decision in the present matter. Nathan filed a Motion to Dismiss the appeal, arguing that, since he and Kelly had been granted a divorce in Pennsylvania while the appeal in the present case was pending, the appeal is moot. We denied this Motion in order to protect Kelly’s right to appeal and based on her attempt to preserve that right through a stay.
{¶11} On appeal, Kelly raises the following assignment of error:
{¶12} “The trial court committed reversible error by vacating [the] Decree of Dissolution from six (6) years prior due to one party’s failure to file parenting affidavit in accordance with
{¶13} As Kelly’s argument raises the issue of whether the lower court properly decided the issue of jurisdiction as it related to the Decree of Dissolution, we review this matter under a de novo standard of review. JP Morgan Chase Banks v. Ritchey, 11th Dist. Lake No. 2014-L-089, 2015-Ohio-1606, ¶ 16 (“[a] determination as to whether the trial court has subject-matter jurisdiction * * * is a question of law reviewed de novo”).
{¶14} Kelly argues that the court erred in determining that it had been without jurisdiction to enter the Decree of Dissolution and the August 4, 2008 Agreed Judgment Entry, since this issue was not raised at that time and is not permitted through a collateral attack.
{¶15} Nathan argues that, since there was not at least substantial compliance with the parenting affidavit requirement, the court properly vacated the Decree of Dissolution.
{¶17} The Supreme Court of Ohio has held that “[t]he requirement in [former]
If we were to deny subject-matter jurisdiction by a mechanistic interpretation of
R.C. 3109.27 , it would be possible for any party to completely obstruct a custody proceeding by willfully failing to file anR.C. 3109.27 affidavit or pleading. Such a result would not only contravene the clear intent ofR.C. 3109.27 but could potentially render the custody statutes of this state a nullity. Moreover, such a result would hamstring our long-established rule that ultimately the issue must be what is in the best interests of the child.
{¶18} In the present matter, Kelly argues that, regardless of whether a parenting affidavit should have been filed or substantial compliance with that requirement occurred, it is not appropriate for this issue to be raised in a Motion to Vacate over four years after the Decree of Dissolution was filed.
{¶19} The Ohio Supreme Court has held that “the initial failure to comply with
{¶21} Further, it is noteworthy that the purpose of
{¶22} While there are several cases that apply
{¶24} Nathan asserts that Kelly essentially waived the ability to dispute the jurisdiction question because she did not address this below. We emphasize that the court was not permitted to, sua sponte, vacate a Decree of Dissolution and accompanying rights and responsibilities of the parties merely on the basis that a party did not dispute a legal issue. Further, the cases cited by Nathan relate to situations in
{¶25} Nathan similarly argues that the trial court’s decision should be affirmed because it was “tantamount to granting husband’s unopposed motion for summary judgment.” There are several reasons why this argument fails.
{¶26} It is initially unclear the necessity of either filing or responding to a motion for summary judgment in this matter. Motions for summary judgment are appropriate when a party is “seeking to recover upon a claim, counterclaim, or cross-claim or to obtain a declaratory judgment.”
{¶27} In addition, the court did not specifically rule on Nathan’s motions, but vacated the Decree of Dissolution “on its own motion”, i.e., sua sponte. Thus, it did not rely on any Motion for Summary Judgment or related response.
{¶28} Nathan argues that, regardless of the foregoing, the court’s judgment should be upheld because it was also proper to vacate the Decree of Dissolution on the ground that his due process rights were violated when the court failed to hold a hearing to determine whether his address/identifying information should not be disclosed, as he requested in his parenting affidavit.
{¶30} While Nathan argues that the failure to hold a hearing on the foregoing matter was a due process violation, he does not establish how the lack of a hearing, even if it was an error, allows for the vacating of the Decree of Dissolution. The lack of a hearing on whether his address should be confidential bears no relation to whether the dissolution was proper. While he cites several cases in support of his contention that a judgment can be void when there is a due process violation, those cases found a judgment void that related specifically to the due process error. For example, in State v. Buchanan, 43 Ohio App.2d 93, 96, 334 N.E.2d 503 (8th Dist.1974), it was held that a guilty plea is void when not given knowingly and voluntarily, and in Stevenson v. Stevenson, 5th Dist. Stark No. 1999CA00365, 2000 Ohio App. LEXIS 2840, 3-4 (June 26, 2000), a judgment was void when a party was not able to be present for the hearing on the motion that led to that judgment. In these cases, the due process violation directly impacted the judgment that was subsequently declared void. Such was not the case here, as the disclosure of Nathan’s address impacted no part of the dissolution or separation agreement.
{¶31} Finally, Nathan argues that the trial court’s decision should be affirmed on the grounds that the court lacked jurisdiction and violated his due process rights when Kelly failed to follow Portage County Domestic Relations Court Local Rules, including
{¶32} Nathan fails to explain how Kelly’s lack of compliance with the local rules implicates his due process rights. The issues that he raises did not deprive him of any rights and could have been resolved prior to the entry of the Decree of Dissolution by merely requesting that the necessary information be provided. This is not the case, like Hillabrand v. Drypers Corp., 87 Ohio St.3d 517, 721 N.E.2d 1029 (2000), cited by Nathan, where he was deprived of a right to respond or to defend himself.
{¶33} Further, while Nathan cites cases where the lower court’s decision to dismiss an action for noncompliance with local rules was upheld on appeal, these are entirely inapplicable to the present matter. Here, the lower court did not dismiss the action for noncompliance prior to the issuance of the decree, Nathan did not appeal that failure, and he now tries to raise the issue several years later. There is no authority to vacate a Decree of Dissolution in a collateral proceeding based on a party’s failure to follow local rules. Even if this were a direct appeal, this court has noted that the enforcement of local rules “is a matter within the discretion of the court promulgating the rules.” Dvorak v. Petronzio, 11th Dist. Geauga No. 2007-G-2752, 2007-Ohio-4957, ¶ 30; also Yoel v. Yoel, 11th Dist. Lake No. 2009-L-063, 2012-Ohio-643, ¶ 40 (a violation of local rules “is by itself typically insufficient to constitute grounds for reversal”).
{¶34} This issue is also not jurisdictional such that it can be raised in a collateral attack, as Nathan claims, for the reasons outlined above, as to the parenting affidavit. Nathan cites no authority for the proposition that the issue regarding military service can be raised in this manner either.
{¶36} The sole assignment of error is with merit.
{¶37} For the foregoing reasons, the September 11, 2014 Judgment Entry of the Portage County Court of Common Pleas, Domestic Relations Division is reversed and vacated. Costs to be taxed against appellee.
TIMOTHY P. CANNON, P.J., concurs with a Concurring Opinion.
COLLEEN MARY O’TOOLE, J., concurs with a Concurring Opinion.
TIMOTHY P. CANNON, P.J., concurring.
{¶38} I concur in the opinion of the majority. By an interlineation initialed by the parties, the separation agreement indicated that the court would retain jurisdiction over husband’s spousal support obligation. The original decree, adopting the terms of the separation agreement, also ruled that the court retained jurisdiction by incorporating this separation agreement. This became a final order of the trial court.
{¶39} Thereafter, the parties filed a joint motion to modify the separation agreement, which had been approved by final order. The trial court approved this motion, and modified its own prior final order. That decree, filed just days later, stated: “The parties both agree that they have exchanged mutual promises and consideration in exchange for this modification of the Separation Agreement.” However, at oral
{¶40} The parties have neither addressed the trial court’s jurisdiction to modify its own final order nor whether there was, in fact, consideration for this significant contractual modification. Consequently, we will not address these questions on appeal.
COLLEEN MARY O’TOOLE, J., concurs with Concurring Opinion.
{¶41} I concur with the well-reasoned opinion of the majority. I write separately simply to note my belief that the failure by one party to a divorce or dissolution proceeding to file an affidavit in compliance with
{¶42} A trial court may modify spousal support if it finds that a substantial change in circumstances has occurred, and that the change was not contemplated at the time the award was made. Mencini v. Mencini, 11th Dist. Geauga No. 2009-G-