STATE OF OHIO, EX REL. LORI ANN BROWNING NKA BURNS v. TERRY DEAN BROWNING
Case No. CT2011-CA-55 & CT2011-CA-0060
COURT OF APPEALS MUSKINGUM COUNTY, OHIO FIFTH APPELLATE DISTRICT
May 14, 2012
2012-Ohio-2158
Hon. W. Scott Gwin, P.J., Hon. Sheila G. Farmer, J., Hon. Julie A. Edwards, J.
CHARACTER OF PROCEEDING: Criminal appeal from the Muskingum County Court of Common Pleas, Domestic Relations Division, Case No. JV00036341
For Plaintiff-Appellee
GREGORY A. STARCHER MCJ&FS 1830 East Pike Zanesville, OH 43702
LORI ANN (BROWNING) BURNS 200 Willis Drive, Lot 109 Zanesville, OH 43701
For Defendant-Appellant
ELIZABETH N. GABA 1231 East Broad Street Columbus, OH 43205
{¶1} Defendant-appellant Terry Dean Browning (“Father“) appeals in Fifth District Case No. CT-2011-55, the September 21, 2011 Judgment Entry of the Muskingum County Court of Common Pleas, Domestic Relations Division denying his motion to dismiss and vacate1. Father appeals in Fifth District Case No. CT2011-0060, the October 27, 2011 Judgment Entry of the Muskingum County Court of Common Pleas, Domestic Relations Division overruling his objections to the magistrate‘s decision.2 Plaintiff-appellee in both cases is the Muskingum County Job and Family Services, Child Support Division (“MCCSEA“). This Court has consolidated these cases for appeal by Judgment Entry filed January 3, 2012.
Facts and Procedural History
{¶2} On February 1, 1982 Lori A. Browning (nka Burns) (“Mother“) and Father were married in Zanesville, Ohio. The couple had two children, Joshua Browning b. May 5, 1982 and Jason Browning, b. January 31, 1991. On or about September 1, 1995, Father and Mother ceased living with one another. No divorce or separation proceedings were initiated at that time.
{¶3} These cases originated in the Muskingum County Juvenile Court on July 15, 1996 as an application requesting Father pay child support and obtain health care insurance for the parties’ two minor children. The case caption is styled as Case No. 36341.
{¶5} By Judgment Entry filed September 24, 1996, the trial court found,
The Court has jurisdiction over this action and the parties to this action, including jurisdiction to determine custody of the minor children of the parties under
Section 2151.23 andChapter 3109.36 of the Revised Code .* * *
The parties are agreed that custody shall remain with the Plaintiff.
* * *
Pursuant to
O.R.C. Section 2151.23(A) (2) , Plaintiff is granted custody of the minor children. Pursuant toO.R.C. Section 2151.23(F)(1) , custody shall mean that this Order is a Parenting Decree as defined inO.R.C Section 3109.21(D) , and that Plaintiff is designated as the residential parent and legal custodian of the children. Defendant is designated as the noncustodial or nonresidential parent.* * *
Plaintiff shall maintain hospitalization and medical insurance coverage for the minor children through her employer. All medical and health care needs of the Children not paid by any insurance shall be paid by the parties as follows:
Plaintiff shall pay first $100.00 per child per year in expenses not paid by insurance, including any deductible. Any additional expenses not paid by insurance shall be divided between the parties with Defendant paying 50% and Plaintiff paying the remaining 50%. * * *
{¶6} Neither party appealed the adoption of those findings by the trial court.
{¶7} The parties ultimately commenced a civil action by a Complaint for Divorce in the Domestic Relations Division of the Court of Common Pleas of Muskingum County, Ohio filed on May 23, 1997.
{¶8} In connection with the divorce action, the parties filed a Separation Agreement on November 24, 1997. That Separation Agreement states in part:
This Agreement is made and entered into between Terry D. Browning, hereinafter referred to as Husband, and Lori A. Browning, hereinafter referred to as Wife, both of whom represent that:
There are two children born as issue of said marriage, to wit: Joshua born May 25, 1982 and Jason born January 31, 1991. The care, custody and control of the minor children are with the Muskingum County Juvenile Court in Case Number: 36341.
{¶9} A Judgment Entry Decree of Divorce was filed on December 8, 1997. Paragraph two of the Decree states, “That the parties were married on 1st day of February, 1982 at Zanesville, Ohio and that there are two children born as issue of said marriage, to wit: Joshua born May 25, 1982 and Jason born January 31, 1991. The
{¶10} MCCSEA filed their first Motion for Contempt on June 24, 1997. The Motion moved the Court for an Order requiring Father to appear and show cause why he should not be held in contempt of Court for failing to pay child support as previously ordered by the Court. On September 26, 1997, Father, without counsel, admitted to being guilty of contempt of Court for failing to pay his child support as ordered. This contempt was further resolved on January 26, 1998. Father was represented by counsel at that time.
{¶11} Other contempt actions were filed in October 1998, December 1999, and January 2007. Father admitted contempt each time and was approximately $9,500.00 behind in his child support in the 1998 action, $14,800.00 behind in his 1999 action, and $16,000.00 behind in his 2007 action. Each Order to Appear and Show Cause directed Father to contact his caseworker before the hearing to try to resolve any discrepancies.
{¶12} On October 30, 2000, the current child support order for the parties’ oldest child, Joshua, was terminated, subject to any remaining arrears.
{¶13} In 2003, in Muskingum County Court of Common Pleas Case No. CR2003-0040, Father was charged with two counts of criminal nonsupport. Counsel different from the previous counselors who had represented him in his divorce action and the contempt actions represented Father. By entry filed August 18, 2003, Father waived the reading of the indictment, the time and manner of service, and any deficiencies therein. Father withdrew his former plea of not guilty and pled guilty to both counts in the indictment. That plea was accepted by the Court. The counts were merged
{¶14} In January 2006, Mother requested a modification of the child support order. This matter went to the Court upon objections to the MCCSEA‘s recommendation. Both parties attended that hearing. A hearing was held and an order was issued. Neither party objected to, or appealed, that order.
{¶15} In order to avoid being incarcerated, Father made an $840.00 payment to bring him into compliance with the 2007 court order. Another request was made to impose the suspended sentence. Father paid $6,000.00 to avoid the jail sentence. By separate entry filed April 3, 2009, Father was placed in the “pay or appear” program of the Court. That program required Father to pay not less than $615.90 per month or appear each month to explain his non-compliance. Father‘s participation in that program ran from April 2009 through September 2009.
{¶16} The child support order for the youngest child of the parties was terminated effective May 23, 2009 as that child had reached the age of 18 and graduated from high school on May 23, 2009. As of April 30, 2009, Father still owed over $12,000.00 in arrears.
{¶17} Father objected to the amount ordered to be paid on his remaining arrears. On August 4, 2009, the Court issued an order requiring Father to pay $250.00 per month, and processing charge, toward his overdue and unpaid child support arrears balance of approximately $12,800.00.
{¶19} On June 29, 2011, Father filed a motion titled “Defendant-Respondent Terry Browning‘s Memorandum Contra the MCCSEA Motion, and Motion to Dismiss the MCCSEA‘s Case and Vacate All Orders and/or Judgments.” The Court set this Motion for non-oral hearing July 29, 2011. MCCSEA filed a reply and Father filed a Response to MCCSEA‘s reply.
{¶20} The magistrate denied Father‘s motion by Judgment Entry filed August 4, 2011. Father timely filed an objection to the magistrate‘s decision August 18, 2011. The Court overruled Father‘s objections September 21, 2011. Father filed a Notice of Appeal from the September 21, 2011 Judgment Entry in Case No. CT2011-0055 on October 20, 2011.
{¶21} On October 27, 2011, a second Judgment Entry was filed similarly denying Father‘s Motion to Dismiss the MCCSEA‘s Case and Vacate All Orders and/or Judgments and adopting the magistrate‘s decision of August 4, 2011. Father filed a Notice of Appeal of this entry on November 14, 2011 in Case No. CT2011-0060. This Court has consolidated these cases for appeal by Judgment Entry filed January 3, 2012.
{¶22} Father raises the following assignments of error:4
{¶23} “I. THE TRIAL COURT ERRED TO THE PREJUDICE OF APPELLANT WHEN IT DID NOT DISMISS THE CASE AND VACATE ALL ORDERS IN THE CASE, AND ERRED BY FINDING THAT THE “MOTION FOR CHILD SUPPORT” FILED BY THE MCCSEA COULD EFFECTIVELY OPEN THE CASE. APPELLEE‘S “MOTION” DID NOT ADHERE TO THE MANDATES OF
{¶24} “II. THE TRIAL COURT ERRED TO THE PREJUDICE OF APPELLANT WHEN IT DID NOT DISMISS THE CASE AND VACATE ALL ORDERS IN THE CASE, AND ERRED BY FINDING THAT THE “MOTION FOR CHILD SUPPORT” FILED BY THE MCCSEA COULD EFFECTIVELY OPEN THE CASE WITHOUT A
{¶25} “III. THE TRIAL COURT ERRED TO THE PREJUDICE OF APPELLANT WHEN IT DID NOT DISMISS THE CASE AND VACATE ALL ORDERS IN THE CASE, AND ERRED BY FINDING THAT THE CSEA HAD STATUTORY AUTHORITY TO ATTEMPT TO BRING AN “ACTION” IN ITS OWN NAME WHEN RELATOR AND HUSBAND WERE MARRIED, DID NOT DISPUTE PARENTAGE, AND DID NOT RECEIVE PUBLIC ASSISTANCE.
{¶26} “IV. THE TRIAL COURT ERRED TO THE PREJUDICE OF APPELLANT WHEN IT DID NOT DISMISS THE CASE AND VACATE ALL ORDERS IN THE CASE,
Analysis
I, II, III & IV
{¶27} In each of his four assignments of error, Father challenges the subject matter jurisdiction of the trial court. Father additionally contends that a
{¶28} The underlying support action was brought by the MCCSEA on behalf of the mother, a nominal co-plaintiff in 1996.
{¶29} Juvenile courts have jurisdiction over child support matters concurrent with domestic relation and common pleas courts. Newton v. Newton, 11th Dist. No. 2011-L-048, 2011-Ohio-6520, ¶15; Madewell v. Powell, 12th Dist. No. CA2006-05-053, 2006-Ohio-7046, ¶5. Under
(A) The juvenile court has exclusive original jurisdiction under the Revised Code as follows:
* * *
(11) * * * to hear and determine a request for an order for the support of any child if the request is not ancillary to an action for divorce, dissolution of marriage, annulment, or legal separation, * * * ”
{¶31} Because Mother‘s request in 1996 for support was “not ancillary to an action for divorce, dissolution of marriage, annulment, or legal separation,” the action was properly brought in the juvenile court, vesting that court with exclusive and continuing jurisdiction over the child support issue. Madewell, supra at ¶6. MCCSEA‘s motion to intervene in that case was granted, permitting the agency to participate and assert a claim in the juvenile court. Id. At that time, the court granted custody of the minor children to Mother as was agreed by the parties. The court further ordered Father to pay support for his children. No appeal was taken.
{¶32} By Judgment Entry filed in the subsequent divorce action, the trial court noted the jurisdiction of the Juvenile Court, as well as the prior establishment of custody and support. No appeal was taken from the trial court‘s Judgment Entry granting the divorce.
{¶33} Thus, in the case at bar there is no doubt that the juvenile court had subject matter jurisdiction.
{¶35} A judgment entered by a court that lacks subject matter jurisdiction is void ab initio Patton v. Diemer, 35 O.St.3d 68, 518 N.E.2d 941(1988). The authority to vacate a void judgment is an inherent common law power. Patton syllabus paragraph 4, citing Lincoln Tavern, Inc. v. Snader, 165 Ohio St. 61, 133 N.E.2d 606(1956), paragraph one of the syllabus; Westmoreland v. Valley Homes Corp., 42 Ohio St.2d 291, 294 (1975).
{¶36} By contrast,
Every action shall be prosecuted in the name of the real party in interest. * * * No action shall be dismissed on the ground that it is not prosecuted in the name of the real party in interest until a reasonable time has been allowed after objection for ratification of commencement of the action by, or joinder or substitution of, the real party in interest. Such ratification, joinder, or substitution shall have the same effect as if the action had been commenced in the name of the real party in interest.
{¶38} If one who is not the real party in interest asserts a claim, then the party lacks standing to prosecute the action, but the court is not deprived of subject matter jurisdiction. See State ex rel. Tubbs Jones v. Suster, 84 Ohio St.3d 70, 701 N.E.2d 1002(1998), citing State ex rel. Smith v. Smith, 75 Ohio St.3d 418, 420, 662 N.E.2d 366, 369(1996); and State ex rel. LTV Steel Co. v. Gwin, 64 Ohio St.3d 245, 251, 594 N.E.2d 616, 621(1992). The lack of standing may be cured by substituting the proper party so that a court otherwise having subject matter jurisdiction may proceed to adjudicate the matter.
{[39} Because compliance with
{¶40} In the case at bar, Father could have, but did not, challenge the standing of MCCSEA to bring the support action in 1996 or in 1997. He did not. Accordingly, Father has waived any defect or objection to MCCSEA‘s initiating the original action by his over fourteen-year delay to assert his claim.
{¶42}
(A) Commencement
A civil action is commenced by filing a complaint with the court, if service is obtained within one year from such filing upon a named defendant, or upon an incorrectly named defendant whose name is later corrected pursuant to
Civ.R. 15(C) , or upon a defendant identified by a fictitious name whose name is later corrected pursuant toCiv.R. 15(D) .
{¶43} Courts of this state have recognized that the name given to a pleading or motion is not controlling. Lungard v. Bertram, 86 Ohio App. 392, 395, 88 N.E.2d 308(1949). Rather, the substance of the pleading or motion determines the operative effect thereof. Id. Accord, Morris v. Children‘s Hospital Medical Ctr., 73 Ohio App.3d 437, 441, 597 N.E.2d 1110, 1112(1991); Cooke v. United Dairy Farmers, Inc. 10th Dist. No. 05 AP-1307, 2006-Ohio-4365, ¶29. Pleadings are to be construed to do substantial justice, and claims for relief should concisely set forth only those operative facts as are necessary to give “fair notice of the nature of the action.” Salamon v. Taft Broadcasting Co., 16 Ohio App.3d 336, 475 N.E.2d 1292(1984);
{¶45} Accordingly, in the case at bar, captioning the matter as a “motion” rather that a “complaint” did not deprive the trial court of subject matter jurisdiction.
{¶46} Father next contends that the trial court lacked subject matter jurisdiction because the requirement in
{[47} The Ohio Supreme Court has held that a mechanistic interpretation of
Stipulation to the truth of facts necessary to insure jurisdiction may suffice to confer jurisdiction through estoppel. See Beatrice Foods Co. v. Porterfield (1972), 30 Ohio St.2d 50, 282 N.E.2d 355, at paragraph one of the syllabus.
Application of the rule of estoppel is necessarily limited to the factual exigencies of each case.
* * *
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. In re Cunningham (1979), 59 Ohio St.2d 100, 391 N.E.2d 1034. Under the present circumstances, a rigid interpretation ofR.C. 3109.27 would only serve to prolong the agony of the children herein. Moreover, in instances when a public agency is a party, rigid adherence toR.C. 3109.27 would open the door to the contingency where a child, inarticulate, injured, neglected and found by the roadside, could not be provided for because the public agency could not ascertain the information required underR.C. 3109.27 with regard to the places where the child had lived within the past five years, and the names and present addresses of those persons with whom the child had lived during that period.
{¶48} We conclude that any failure to comply with
{[49} In the case at bar, we find that a blind adherence to the affidavit requirement in the instant case would frustrate the policy behind the rule. No party in this case claims to have instituted or have knowledge of custody proceedings pending in another jurisdiction. Further, the parties have litigated the issues for over fourteen years without claiming prejudice because of the failure to file the affidavit. Finally, both children have long since been emancipated.
Conclusion
{¶50} Father‘s first and fourth assignments of error are overruled in their entirety because the trial court had subject matter jurisdiction over the proceedings and properly exercised that jurisdiction.
{¶52} Father‘s third assignment of error is overruled in its entirety because Father has waived any defect or objection to MCCSEA‘s initiating the original action by his over fourteen year delay to assert his claim.
{¶53} Accordingly, for the foregoing reasons, the judgments of the Muskingum County Court of Common Pleas, Domestic Relations Division are affirmed.
By: Gwin, P.J.,
Farmer, J., and
Edwards, J., concur
WSG:clw 0430
HON. W. SCOTT GWIN
HON. SHEILA G. FARMER
HON. JULIE A. EDWARDS
STATE OF OHIO, EX REL. LORI ANN BROWNING NKA BURNS v. TERRY DEAN BROWNING
CASE NO. CT2011-CA-55
IN THE COURT OF APPEALS FOR MUSKINGUM COUNTY, OHIO FIFTH APPELLATE DISTRICT
JUDGMENT ENTRY
For the reasons stated in our accompanying Memorandum-Opinion, the judgments of the Muskingum County Court of Common Pleas, Domestic Relations Division are affirmed. Costs to appellant.
HON. W. SCOTT GWIN
HON. SHEILA G. FARMER
HON. JULIE A. EDWARDS
STATE OF OHIO, EX REL. LORI ANN BROWNING NKA BURNS v. TERRY DEAN BROWNING
CASE NO. CT2011-CA-60
IN THE COURT OF APPEALS FOR MUSKINGUM COUNTY, OHIO FIFTH APPELLATE DISTRICT
JUDGMENT ENTRY
For the reasons stated in our accompanying Memorandum-Opinion, the judgments of the Muskingum County Court of Common Pleas, Domestic Relations Division are affirmed. Costs to appellant.
HON. W. SCOTT GWIN
HON. SHEILA G. FARMER
HON. JULIE A. EDWARDS