Roemmich v. Roemmich, 07ca99 (11-21-2008)Roemmich v. Roemmich, 07ca99 (11-21-2008)
{¶ 2} Dirk and Ernestina Roemmich were married in Texas on July 29, 2000. They subsequently moved to Greenе County. No *2 children were born of the marriage. On June 26, 2006, Dirk1 commenced an action for divorce, alleging incompatibility and gross neglect of duty. On July 28, 2006, Ernestina filed an answer and counterclaim, alleging incompatibility, gross neglect of duty, and extreme cruelty. On August 21, 2006, the court ordered Dirk to pay Ernestina $875 per month in temporary spousal support, beginning July 28, 2006.
{¶ 3} The parties filed pre-trial statements and a final hearing was scheduled for January 8, 2007. On the day of the final hearing, the parties, through their attorneys, read an agreement into the record. On March 29, 2007, the trial court granted a Final Judgment and Decree of Divorce which had beеn submitted and approved by counsel for both parties.
{¶ 4} On April 11, 2007, Dirk, proceeding pro se, filed a motion to correct the final judgment and decree of divorce. He stated that he did not rеview or concur with the final judgment and decree that was presented to the trial court for signature by the parties' respective counsel. According to Dirk, the attorneys made "blatant еrrors" in translating the transcript from the January 8, 2007 hearing into the final decree that was signed by the trial court. On April 24, 2007, *3 Dirk's counsel filed a motion to withdraw as his counsel of record. The trial court granted thе motion to withdraw.
{¶ 5} Dirk's motion to correct the final judgment and decree was referred to a magistrate. On November 1, 2007, the court adopted the magistrate's decision denying the motion. Per
{¶ 6}
{¶ 7} On appeal, Dirk argues that the judgment and decree of divorce varies in several material respects from the agreement the parties read into the record on January 8, 2007. We construe Dirk's contention to be that, therefore, the trial court abused its discretion when it denied his motion. The court construed the motion to be a claim for
{¶ 8} Dirk filed no objections to the decision of the magistrate denying his motion.
{¶ 9} "Waiver of right to assign adoption by court as error onappeal. Except for a claim of plain error, a party shall not assign as error on appeal the court's adoption of any factual finding or legal conclusion, whether or not specifically designated as a finding of fact or conclusion of law under
{¶ 10} Because Dirk failed to file objections to the magistrate's decision, he has waived all but plain error in *5
the court's adoption of the decision. "In appeals of civil cases, the plain error doctrine is not favored and may be applied only in the extremely rare case involving exceptional circumstances where error, to which no objection was made at the trial court, seriously affects the basic fairness, integrity, or public reputation of the judicial process, thereby challenging the legitimacy of the underlying judicial process itself." Goldfuss v. Davidson,
{¶ 11} In order to determine whether the trial court committed plain error, we must first determine whether Dirk satisfied the threshold requirements of
{¶ 12} Dirk's motion was made within a reasonable time, and *6
on the allegations in his motion Dirk demonstrated the ground of mistake pursuant to
{¶ 13} Next, we must determine whether the errors complained of meet the high "plain error" standard applicable to civil cases.Goldfuss. Dirk argues that the divorce decree changed the agreement the parties had made with regard to spousal supрort. We agree.
{¶ 14} Although the transcript from the hearing is less than a model of clarity on certain issues, the transcript is very clear with regard to the spousal support agreement. At the time of the hearing on January 8, 2007, Dirk had been paying temporary spousal support since July of 2006 in a monthly amount of $875. At the hearing, Dirk agreed to pay an additional 18 months of spousal support, beginning on February 1, 2007, at the rate of $975 per month. (Tr. 12-14, 17.) Further, the parties agreed that the spousal support would be for a fixed term and amount, and that the trial court would *7 not exercise continuing jurisdiction оver the spousal support issue. (Tr. 15.)
{¶ 15} Despite the agreement at the formal hearing, the trial court made the following order in the divorce decree with regard to spousal support:
{¶ 16} "Husband shall pay spousal support to wife in the amount of ONE THOUSAND THREE HUNDRED DOLLARS ($1,300.00) per month, for 18 months, commencing August 1, 2006, for a total of $23,400.00 and shall end upon the death of the wife, death of the husband, re-marriage of the wife, wife's co-habitation with an unrelated person who contributed to her income in accordance with Perri v. Perri (1992)
{¶ 17} "Husband shall pay spousal support directly to wife. Husband can extend the spousal support payments over 24 months to coincide with his pay periods.
{¶ 18} "The Court retains jurisdiction over the issue of the amount of spousal support and not the length of the spousal suppоrt and may modify the amount or terms of the spousal support order upon the change of circumstances of a party,. . . ." (Dkt. 31.)
{¶ 19} Comparing the divorce decree with the transcript from the final hearing, it is clear that substantial changes *8
were made to the agreement of the parties relating to Dirk's spousal support obligation. The monthly amount of the eighteen month spousal support obligation was increased from the $975 that was agreed to $1300.00. Also, the beginning date for the spousal support obligation was changed retroactively from February of 2007 to August of 2006, months before the final judgment and decree was entered and while a temporary support order was yet in effect.
{¶ 20} Overall, the divorce decree substantiаlly altered the spousal support obligations to which both parties had agreed. The retroactive order of an amount greater than Dirk's temporary support payments creаtes an immediate arrearage, and Dirk may be unable to pay $1,300.00 per month. *9
We believe such a situation "seriously affects the basic fairness, integrity, or public reputation of the judicial рrocess, thereby challenging the legitimacy of the underlying judicial process itself."Goldfuss. As such, the trial court committed plain error when it overruled Dirk's
{¶ 21} Dirk also argues that the divorce decree contains errors with regard to the payment of credit cards, the division of his retirement benefits, and the requirement of life insurance. Based on our review of the record, however, Dirk has failed to show that thе trial court erred in this regard and how he has suffered any prejudice from any alleged error. Therefore, he has not carried the heavy burden of showing plain error and the remainder of his аssignment of error is overruled.
{¶ 22} The judgment of the trial court will be reversed, in part, and affirmed, in part. The cause is remanded for further proceedings consistent with this Opinion. *10
BROGAN, J. and FAIN, J., concur.
Copies mailed to:
Dirk A. Roemmich Gary C. Schaengold, Esq. Hon. Steven L. Hurley