MONIQUE L. ALLEN-STORY v. JIMMY LEE STORY
No. 107750
COURT OF APPEALS OF OHIO EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
September 26, 2019
2019-Ohio-3888
Civil Appeal from the Cuyahoga County Court of Common Pleas Domestic Relations Division Case No. DR-17-365966
JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: September 26, 2019
Appearances:
Brian P. Scherf, for appellee.
Jimmy Lee Story, pro se.
PATRICIA ANN BLACKMON, J.:
{¶ 1} Jimmy Lee Story (“Appellant“) appeals pro se from several aspects of his September 5, 2018 divorce from Monique L. Allen-Story (“Appellee“) and assigns the following errors1 for our review:
The triаl court errored, abused its discerption, violated state/federal rules and due process (or any which apply) by issuing orders without service. - The court errored, abused its discerption, violated state/federal rules and due process (or any which apply) by issuing orders when it lost jurisdiction because of lack of service.
- The court errored, abused its discerption, violated state/federal rules and due process (or any which apply) by issuing orders when the appellant was not served witness list, exhibits, and discovery to fight allegations.
- The court errоred, abused its discerption, violated state/federal rules and due process (or any which apply) by not dismissing appellee case for fraud on the court
- The court errored, abused its discerption, violated state/federal rules and due process (or any which apply) by issuing orders without
- The court errored, abused its discerption, violated state/federal rules and due process (or any which apply) by awarding spousal support, child support, and arrearages
- The court errored, abused its discerption, violated state/fedеral rules and due process (or any which apply) by awarding custody to the appellee.
- The court errored, abused its discerption, violated state/federal rules and due process (or any which apply) by division of property unequally (house personal prоperty, automobile, financial accounts, and retirement).
- The court errored, abused its discerption, violated state/federal rules and due process (or any which apply) by ordering the appellant to pay court cost
{¶ 2} Having reviewed the record and рertinent law, we affirm the trial court‘s judgment. The apposite facts follow.
Service of Process
{¶ 4} Pursuant to
{¶ 5} In Appellant‘s first and second assigned errors, he argues that he was not properly served with Appellee‘s complaint. Specifically, Appellant argues that he was homeless at the time the divorce was filed, and he “gave the court and [Appellee] his P.O. Box address.” However, as noted, Appellant filed an answer on March 28, 2017. Furthermore, he filed numerous documents, notices, and motions throughout the proceedings. Additionally, he appeared at сourt hearings on April 25, 2017, January 22, 2018, and April 3, 2018, as well as at trial on April 10 and 11, 2018 and June 11 through 14, 2018.
Discovery
{¶ 7} “Discovery matters fall within the broad discretion of the trial court, and we review a trial court‘s decision in discovery matters for an abuse of discretion.” Reddy v. Plain Dealer Publishing Co., 8th Dist. Cuyahoga No. 98834, 2013-Ohio-2329, ¶ 26.
{¶ 8} In Appellant‘s third assigned error, he argues that he was not served with “subpoenas, witness lists, еxhibits, and discovery * * *.” The domestic relations court filed a trial order on January 9, 2018, which instructed the parties in part as follows: “Witness Lists * * * shall be filed pursuant to Local Rule 12(B). Subpoenas
{¶ 9} The court‘s trial order also states that “[n]o later than 7 business days before commencement of trial, counsel shall prepare and exchange lists describing or idеntifying each of the exhibits s/he intends to use or offer at trial. Counsel shall serve on opposing counsel a complete set of exhibits no less than 7 business days in advance of trial.” Appellee‘s appellate brief states that her counsel sent her exhibit lists to Appellаnt at his designated P.O. Box address via ordinary mail on March 27, 2018. Furthermore, Appellee filed her affidavit of income and expenses on April 3, 2018, and her trial brief on April 10, 2018.
{¶ 10} Similar to his arguments regarding service of process, Appellant argues under this assigned error that he did not receive required copies of discovery documents from Appellee despite clear evidence to the contrary. Appellee filed copies of many of the documents with the court, thus making them part of the record. Her attorney attested, via a signed cеrtificate of service, that he sent the remaining documents to Appellant via ordinary mail or email. See Draghin v. Issa, 8th Dist. Cuyahoga No. 98890, 2013-Ohio-1898, ¶ 21 (“[t]here is a rebuttable presumption of proper service when the civil rules governing service are followed“).
{¶ 11} Appellant did not file any motions to comрel or motions to strike in this case. Additionally, he presents no evidence to dispute the following: he received the documents in question; Appellee complied with the court‘s trial order; and the
{¶ 12} Accordingly, Appellant‘s third assigned error is overruled.
Fraud on the Court
{¶ 13} In his fourth аssigned error, Appellant argues that the court erred by not dismissing his case because of “fraud on the court.” Although unclear from his brief, we infer Appellant‘s argument under this assigned error to essentially be as follows: Appellee, through her attorney, failed to serve him various documents pertinent to this case; the magistrate of the civil protection order case2 refused to review his video of the incident; the court refused to discuss Jimmy‘s fraud allegations; “[t]he family evaluation and GAL report of commission and omission is a distortion of justice“; and the judge refused to recuse herself despite “a small appearance impropriety [sic].”
{¶ 14} Although not referenced in his appellate brief, we again assume that Appellant is arguing that the court erred by denying his motion for relief from
{¶ 15} A court may grant a party‘s motion for relief from judgment, pursuant to
“Fraud upon the court” is an еlusive concept. * * * [It] “embrace[s] only that species of fraud which does or attempts to, defile the court itself, or is a fraud perpetrated by the officers of the court so that the judicial machinery can not [sic] perform in the usual manner its impartial task of adjudging сases that are presented for adjudication.” * * * Where an officer of the court, e.g., an attorney * * * actively participates in defrauding the court, then the court may entertain a
Civ.R. 60(B)(5) motion for relief from judgment.
Coulson v. Coulson, 5 Ohio St.3d 12, 15, 448 N.E.2d 809 (1983) (quoting 7 Moore, Federal Practice 515, Paragraph 60.33 (2d Ed. 1971)).
{¶ 16} Appellant‘s motion for rеlief from judgment states as follows in its entirety:
Now comes defendant not served with anything from plaintiff almost the entire proceeding (complaints, affidavit, etc.) before all hearings and orders. Furthermore, the defendant is without legal representation and objects to the hold рrocedure because of lack of service which prevents him from fighting his case and caused serious harm, ask the court for relief from all judgments because of fraud on the court and the lack of jurisdiction because he was not served at the time of all hearing and orders (including all support orders) in accordance to federal rule 60 and any local rules, state, or federal which apply which defendant is not aware of because of lack of knowledge and being pro se.
App.R. 16
{¶ 18} In Appellant‘s fifth assigned error, he alleges that the court erred “by issuing orders without,” and then he fails to сomplete the remainder of his argument. Pursuant to
Weight of the Evidence
{¶ 20} It is undisputed that Appellant failed to file the transcripts from any proceedings in the domestic relations court concerning this case. In Appellant‘s appellate brief, he states that he “might not be able to afford transcript but he has thе audio and will be given them to this great court.” Our review of the record shows that Appellant did not file “the audio” either. Appellant‘s appellate brief further states that he “does not have the money for the transcript, but begs this great court to listen to the appellant tеstimony and get transcripts.”
{¶ 21} This court has repeatedly held the following:
The appellant has the duty to file the transcript or such parts of the transcript that are necessary for evaluating the trial court‘s decision.
App.R. 9(B) ; State v. Peterson, 8th Dist. Cuyahoga No. 96958, 2012-Ohio-87, ¶ 7. Failure to file the transcript prevents an appellate court from reviewing an appellant‘s assigned errors. State v. Turner, 8th Dist. Cuyahoga No. 91695, 2008-Ohio-6648, ¶ 13. Thus, absent a transcript or alternative record underApp.R.9(C) or(D) , we must presume regularity in the proceedings below.
Lakewood v. Collins, 8th Dist. Cuyahoga No. 102953, 2015-Ohio-4389, ¶ 9.
{¶ 22} We are compelled to presume regularity concerning the weight of the evidence in the instant case, because Appellant did not file the transcripts, and there
Court Costs
{¶ 23} In the final divorce decree, the court ordered that costs be split equally by both parties. Although Appellant‘s ninth assigned error purports to concern court costs, the argument under this section of his appellate brief cites no law whatsoever and makes no mention of court costs. Pursuant to
{¶ 24} Judgment affirmed.
It is ordered that appellee recover from appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate be sent to said court to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to
PATRICIA ANN BLACKMON, JUDGE
MARY EILEEN KILBANE, A.J., and
EILEEN T. GALLAGHER, J., CONCUR