THE STATE EX REL. LITTY v. LESKOVYANSKY, JUDGE.
No. 96-1482
Supreme Court of Ohio
Submitted September 10, 1996 — Decided November 13, 1996.
77 Ohio St.3d 97 | 1996-Ohio-340 | 671 N.E.2d 236
IN PROHIBITION.
{¶ 1} In December 1994, John C. Litty, Jr. filed a divorce action against his wife, relator, Carol-Lou Wоlverton Litty, in the Mahoning County Court of Common Pleas. Respondent, Judge John J. Leskovyansky, is presiding over the case. On January 5, 1996, during the pendency of the divorce action, relator filed an affidavit of bias and disqualification regarding Judge Leskovyansky with the court pursuant to
{¶ 2} On January 8, 1996, John C. Litty, Jr., the plaintiff in the divorce action, died. At the time of the decedent‘s death, trial in the divorce action had not commenced, and the issues in thе case had not been presented to Judge Leskovyansky for determination. On January 11, Judge Leskovyansky, on his own motion, dismissed the divorce case because of the plaintiff‘s death. On January 16, the Chief Justice ruled that relator‘s affidavit of disqualification concerning Judgе Leskovyansky was moot due to the January 11 dismissal of the divorce case.
{¶ 3} In February 1996, the Mahoning County Court of Common Pleas, Probate Division appointed the daughter of the decedent, Brenda Dobson, executor of his estate. In March 1996, Dobson filed a motion to substitutе herself, in her capacity as executor of the decedent‘s estate, as the plaintiff in the previously
“Pursuant to [Civ.] Rule 60(A) the court, having dismissed this action in error, does hereby reinstate the same and must await the decision of the Supreme Court of Ohio with regard to the pending affidavit for disqualification filed previous to the death of plaintiff by the defendant.”
{¶ 4} Shortly thereafter, relator instituted this action for a writ of prohibition preventing Judge Leskovyansky from continuing further proceedings in the divorce case. This court granted an alternative writ and issued a schedule for the presentation of evidence and briefs. 76 Ohio St.3d 1407-1408, 666 N.E.2d 567-568.
John V. Heutsche Co., L.P.A., and John V. Heutsche, for relator.
James A. Philomena, Mahoning County Prosecuting Attorney, and Linette S. Baringer, Assistant Prosecuting Attorney, for respondent.
Per Curiam.
{¶ 5} In her various propositions of law, relator asserts that she is entitled to extraordinary relief in prohibition. In order for a writ of prohibition to issue, relator must establish that (1) Judge Leskovyansky is about to exercise judicial power, (2) the exercise of such pоwer is unauthorized by law, and (3) if the writ is denied, relator will suffer injury for which no other adequate remedy exists. State ex rel. Barclays Bank PLC v. Hamilton Cty. Court of Common Pleas (1996), 74 Ohio St.3d 536, 540, 660 N.E.2d 458, 461.
{¶ 6} Judge Leskovyansky initially contends that relator has not established the first requirement for the issuance of a writ of рrohibition because he has already exercised judicial power by reinstating the divorce case. However, where an
{¶ 7} As for the remaining requirements of a writ of prohibition, prohibition will not lie where relator has an adequate remedy in the ordinary course of law. State ex rel. Newton v. Court of Claims (1995), 73 Ohio St.3d 553, 555, 653 N.E.2d 366, 369. Absent a patent and unambiguous lack of jurisdiсtion, a court having general subject-matter jurisdiction can determine its own jurisdiction, and a party challenging the court‘s jurisdiction has an adequate remedy by appeal. State ex rel. Lipinski v. Cuyahoga Cty. Court of Common Pleas (1995), 74 Ohio St.3d 19, 22, 655 N.E.2d 1303, 1306.
{¶ 8} Relator asserts that a writ of prоhibition should issue because Judge Leskovyansky patently and unambiguously lacked jurisdiction to revive and proceed with the divorce action. Relator claims that the death of the plaintiff in the divorce action divested the common pleas court of jurisdiction over the case.
{¶ 9}
{¶ 10} Conversely, if a party in a divorce action dies following a decree determining property rights and granting a divorce but prior to the journalization of the decree, the action does not abate upon the party‘s death. Porter, 129 Ohio St. at 56, 1 O.O. at 360, 193 N.E. at 770; Caprita v. Caprita (1945), 145 Ohio St. 5, 60 N.E.2d 483, pаragraph three of the syllabus. In these circumstances, the decree may be journalized by nunc pro tunc entry. Id. at paragraph four of the syllabus; see, generally, 2 Spike, Ohio Family Law and Practice (1994) 688-689, Section 21.107.
{¶ 11} In the case at bar, Judge Leskovyansky did not decide any of the issues in the divorce action prior to the death of relator‘s husband. The decedent died prior to the scheduled commencement of trial in the divorce case. Based on these uncontroverted facts, Judge Leskovyansky lacked jurisdiction to proceеd in the underlying divorce action. See, e.g., Diemer v. Diemer (1994), 99 Ohio App.3d 54, 62-63, 649 N.E.2d 1285, 1290-1291 (divorce action abated upon plaintiff‘s death prior to domestic relations court‘s commencing proceedings or determining any issues, and probate court, rather than domestic relations court, possessed jurisdiction to determine rights and liabilities of parties with respect to antenuptial agreement); Koch v. Koch (Mar. 4, 1994), Sandusky App. No. S-93-5, unreported, 1994 WL 69358 (where trial court had taken no action to finally decide issues in divorce action рrior to death of one of the parties, nunc pro tunc entry could not be used to journalize decisions on those issues and trial court had no further
{¶ 12} Judge Leskovyansky vacated his previous dismissal of the divorce case pursuant to
{¶ 13}
{¶ 14} Judge Leskovyansky‘s May 1996 entry also did not constitute a proper nunc pro tunc entry. While courts possess inherent authority to correct errors in judgment entries so that the record speaks the truth, nunc pro tunc entries are limited in proper use to reflecting what the court actually decided, not what the
{¶ 15} Therefore, Judge Leskovyansky lacked jurisdiction to vacate the prior dismissal and proceed in the divorce action following the death of relator‘s husband before the commencement of trial. In these circumstances, the lack of jurisdiction is patent and unambiguous, rendering the availability of appeal immaterial and permitting the court to vacate any prior jurisdictionally unauthorized actions like the revival of the divorce case. See State ex rel. Sullivan v. Brigner (Nov. 25, 1992), Montgomery App. No. 13461, unreported, 1992 WL 348253, where the court of appeals granted a writ of prohibition to prevent a domestic relations court from deciding a custody dispute when one of thе parties to the divorce action died prior to the determination of the case.
{¶ 16} Judge Leskovyansky claims that his prior dismissal of the divorce action was a nullity because of the then-pending affidavit of disqualification filed against him by relator. Judge Leskovyansky relies on cases which generally prohibit a judge from determining a cause or hearing any matter that affects the substantive rights of the parties when an affidavit of prejudice has been properly filed. See State ex rel. Lomaz v. Portage Cty. Court of Common Pleаs (1988), 36 Ohio St.3d 209, 210-211, 522 N.E.2d 551, 553, fn. 2, which noted, without expressly approving, cases supporting the foregoing proposition; Bland v. Graves (1994), 99 Ohio App.3d 123, 132, 650 N.E.2d 117, 124. However, not all courts agree that an affidavit of prejudice prevents a court from proceeding with the case. See, e.g., Rife v. Morgan (1995), 106 Ohio App.3d 843, 850, 667 N.E.2d 450, 454-455 (“Taking into account the ease with which a disgruntled litigant may file an
{¶ 17} Further, even assuming, arguendo, that the authorities cited by Judge Leskovyansky are correct, he was not divested of authority to act in an administrative or ministerial capacity. Lomaz, 36 Ohio St.3d at 211, 522 N.E.2d at 553, fn. 2; Evans v. Dayton Newspapers, Inc. (1989), 57 Ohio App.3d 57, 58, 566 N.E.2d 704, 706. As discussed previously, the death of relator‘s husband prior to adjudicаtion of the issues in the divorce case caused the action to abate and ended any jurisdiction that Judge Leskovyansky had over the case except to dismiss it. See Porter, Diemer, Koch, and Sullivan, supra. Consequently, following the decedent‘s demise, the decision to dismiss the case was a required, ministerial decision rather than a substantive ruling requiring the Chief Justice‘s decision on relator‘s affidavit of disqualification.
{¶ 18} In addition, Judge Leskovyansky‘s May 1996 entry reinstated the divorce case until there was a ruling on the “pending” affidavit of disqualification. However, the affidavit is no longеr pending, since it has been ruled moot by the Chief Justice, and Judge Leskovyansky thus lacks jurisdiction to proceed in the divorce action. Judge Leskovyansky concedes that relator‘s affidavit of disqualification is no longer pending because he argues that if relator wants to prohibit him from hearing the divorce action and dividing the parties’ property, relator “simply needs to file a second affidavit of prejudice against Respondent
{¶ 19} In sum, for the foregoing reasons, relator has established all of the requirements necessary for the issuance of the requested writ. We grant a writ of prohibition preventing Judge Leskovyansky from proceeding with the divorce action.1
Writ granted.
DOUGLAS, RESNICK, F.E. SWEENEY, PFEIFER, COOK and STRATTON, JJ., concur.
MOYER, C.J., not participating.