Diane J. Moore, Appellee v. Gerry L. Moore, Appellant
Court of Appeals Nos. E-17-011
Trial Court Nos. 2015-DR-0064
IN THE COURT OF APPEALS OF OHIO SIXTH APPELLATE DISTRICT ERIE COUNTY
Decided: April 20, 2018
[Cite as Moore v. Moore, 2018-Ohio-1545.]
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Robert M. Reno, for appellee.
Amanda A. Andres, for appellant.
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JENSEN, J.
{¶ 1} Defendant-appellant, Gerry L. Moore, appeals the February 10, 2017 judgments of the Erie County Court of Common Pleas, Domestic Relations Division, denying his motions to vacate judgment and for a new trial. For the reasons that follow, we affirm.
{¶ 2} Gerry L. Moore (Gerry) and Diane J. Moore (Diane) were married on March 30, 1996. On May 1, 2015, Diane filed a complaint for divorce in the Erie County Court of Common Pleas, Domestic Relations Division. Gerry filed a counterclaim for legal separation or, in the alternative, divorce. On September 12, 2016, a hearing was held relative to the distribution of their assets.
{¶ 3} On September 23, 2016, Diane filed proposed findings of fact and conclusions of law. Gerry moved for an extension of time to do the same. The motion was granted, but Gerry never submitted his own proposed findings of fact and conclusions of law. The magistrate issued a decision dated November 4, 2016. That decision was a verbatim recitation of the findings and conclusions proposed by Diane.
{¶ 4} Gerry filed non-specific objections to the magistrate‘s decision, claiming that the decision was contrary to law, against the manifest weight of the evidence, and an abuse of discretion, but he filed no brief in support of his objections, no argument, and no record or case citations. He sought an extension of time by which to supplement his objections, file a transcript of the hearing, and prepare a brief in support of his objections. On November 21, 2016, the magistrate granted Gerry an extension of time to file the transcript and, thereafter, 30 days within which to file his brief in support of his objections, along with any supplemental objections. Diane moved the court for an order specifying the date by which Gerry must file the transcript. The magistrate set a date of December 30, 2016.
{¶ 6} The transcript was not filed on December 30, 2016, and no motion for an extension was filed with the court. In a judgment entry journalized on January 19, 2017, the trial court approved the magistrate‘s decision in its entirety. In its judgment, the court summarized the procedural posture of the case relative to Gerry‘s objections and to his request for an extension of time to obtain the transcript. The court apparently had been apprised of the circumstances relative to efforts to obtain the transcript. It described the circumstances as follows:
On December 12, 2016 [the court reporter] received a telephone call from [Gerry‘s former attorney] to the effect that [she] was in the process of withdrawing from Gerry‘s representation [and] no longer had any need for a transcript. [The court reporter] thereupon ceased working upon the same. On December 13, 2016, [Gerry‘s former counsel‘s] motion to withdraw was granted. Nothing further transpired until December 27 or perhaps 28, 2016. On one of those two dates, Gerry‘s son * * * paid a visit to [the court reporter‘s] office wishing to pay a deposit to her for the purpose of having a
transcript prepared. [She] refused to accept money because she had been told by [Gerry‘s former counsel] that a transcript would not be needed. * * * On December 28, 2016, [Gerry‘s new attorney] entered her appearance * * *. On December 30, 2016 [she] spoke with [the court reporter] over the telephone indicating that she would be in need of a transcript; [she] explained she would send [Gerry‘s son] back to [her] office with a deposit. [She] also indicated to [the court reporter] that [she] would be filing a motion seeking an extension of the December 30, 2016 deadline. No such motion was ever filed. December 30, 2016, has come and gone and the Court still has no transcript of the proceedings [Gerry] wishes the court to review.
{¶ 7} On January 27, 2017, Gerry filed (1) a motion for extension of time to file transcripts, (2) a motion to vacate judgment under
ASSIGNMENT OF ERROR I
ASSIGNMENT OF ERROR IV [sic]
THE TRIAL COURT ERRED IN DENYING APPELLANT‘S
II. Law and Analysis
{¶ 8} The factual bases for Gerry‘s motions for a new trial and to vacate judgment are essentially the same. First, he claims that his trial counsel never provided him with a copy of Diane‘s proposed findings of fact and conclusions of law, and he says he did not see them until he hired his current counsel.2 He insists that they were “littered with inaccuracies and failed to take into consideration a number of the parties’ marital assets.” He maintains that he “never was afforded the opportunity to provide the Court with his version of events as to what the evidence truly showed at the time of trial based upon his Counsel‘s failure to file [proposed findings of fact and conclusions of law].”
{¶ 9} Second, Gerry maintains that he believed that the trial transcript had been ordered and was being prepared, but shortly after hiring new counsel, it was discovered
{¶ 10} Third, Gerry contends that his trial counsel provided ineffective assistance of counsel based on her “inability to (a) present the evidence substantially; (b) present relevant evidence; (c) question witnesses; and (d) submit findings of fact and conclusions of law.” He says that her ineffective assistance persisted through all phases of the litigation.
{¶ 11} Diane maintains that the lower court proceedings were conducted fairly and properly. She claims that Gerry is responsible for his own situation which was complicated by the fact that he (1) hired and fired multiple attorneys, and (2) was imprisoned during the course of the litigation for crimes he perpetrated against her. She submits that the magistrate considered the evidence and testimony offered by both parties at the September 12, 2016 hearing, but ultimately believed Diane. And she points out that after learning that the request for the transcript had been canceled, Gerry waited until after judgment was entered on January 19, 2017, to request an extension of time. Diane submits that under the circumstances of this case, Gerry cannot establish the grounds for a new trial under
A. The motion for new trial was properly denied.
{¶ 12} Gerry claims that the January 19, 2017 trial court judgment and the underlying magistrate‘s decision were based on erroneous facts and are contrary to law. He insists that if he had been afforded sufficient counsel, he would have submitted his
{¶ 13} Under
- Irregularity in the proceedings of the court, jury, magistrate, or prevailing party, or any order of the court or magistrate, or abuse of discretion, by which an aggrieved party was prevented from having a fair trial;
- Misconduct of the jury or prevailing party;
- Accident or surprise which ordinary prudence could not have guarded against;
- Excessive or inadequate damages, appearing to have been given under the influence of passion or prejudice;
- Error in the amount of recovery, whether too large or too small, when the action is upon a contract or for the injury or detention of property;
- The judgment is not sustained by the weight of the evidence * * *;
- The judgment is contrary to law;
- Newly discovered evidence, material for the party applying, which with reasonable diligence he could not have discovered and produced at trial;
Error of law occurring at the trial and brought to the attention of the trial court by the party making the application.
In addition to the above grounds, a new trial may also be granted in the sound discretion of the court for good cause shown.
{¶ 14} The standard of review of a trial court judgment denying a motion for new trial under
{¶ 15} Although not specifically identified in his brief, Gerry sought a new trial in the lower court under
{¶ 16} Ohio courts recognize that “[i]n the context of civil cases, a party may not obtain a new trial based upon an assertion that his or her attorney was ineffective.” Schmidt v. Worthington, 5th Dist. Perry No. 11 CA 1, 2011-Ohio-4088, ¶ 22; Sexton v. Haines, 5th Dist. Delaware No. 2010-CA-090067, 2011-Ohio-3531, ¶ 16. In Goldfuss v. Davidson, 79 Ohio St.3d 116, 122, 1679 N.E.2d 1099 (1997), the Ohio Supreme Court discussed the rationale for this holding. It explained that parties in civil litigation choose their own counsel and, therefore, bear the responsibility for their attorney‘s choices in
{¶ 17} Here, Gerry‘s motion for new trial was wholly based on what he claimed were errors of counsel. While he submits generally that the judgment is not sustained by the weight of the evidence, is contrary to law, and contains errors of law, his only explanation for these contentions is that his attorney was ineffective in presenting evidence on his behalf. Accordingly, we find that the trial court properly denied his motion.
{¶ 18} We find Gerry‘s first assignment of error not well-taken.
B. The motion to vacate judgment was properly denied.
{¶ 19} As with his motion for a new trial, Gerry‘s motion to vacate is premised on his trial counsel‘s purported errors in failing to file proposed findings of fact and conclusions of law, failing to file timely objections to the magistrate‘s decision, and failing to “properly represent him.” He argues that under
{¶ 20} Under
- mistake, inadvertence, surprise or excusable neglect;
- newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under
Rule 59(B) ;
fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation or other misconduct of an adverse party; - the judgment has been satisfied, released or discharged, or a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective application; or
- any other reason justifying relief from the judgment.
{¶ 21} The Supreme Court of Ohio has held that to prevail on a motion for relief from judgment under
{¶ 22} To prove a meritorious defense under the first element of GTE Automatic Electric, “a movant must provide operative facts which, if true, would constitute a meritorious defense; ultimate success on the merits need not be established.” Kerger &
{¶ 23} As to the second GTE element, Gerry contends only that his counsel was ineffective. Ohio courts hold that the neglect of a party‘s attorney generally will be imputed to the party and is not a proper basis to support a motion to vacate judgment under
{¶ 24} We find Gerry‘s second assignment of error not well-taken.
III. Conclusion
{¶ 25} The trial court properly denied Gerry‘s motions to vacate judgment and for a new trial. We, therefore, find Gerry‘s two assignments of error not well-taken, and we affirm the February 10, 2017 judgments of the Erie County Court of Common Pleas, Domestic Relations Division. Gerry is ordered to pay the costs of this appeal under App.R. 24.
Judgment affirmed.
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27. See also 6th Dist.Loc.App.R. 4.
Mark L. Pietrykowski, J. JUDGE
Thomas J. Osowik, J. JUDGE
James D. Jensen, J. JUDGE CONCUR.
This decision is subject to further editing by the Supreme Court of Ohio‘s Reporter of Decisions. Parties interested in viewing the final reported version are advised to visit the Ohio Supreme Court‘s web site at: http://www.supremecourt.ohio.gov/ROD/docs/.