V.C. v. O.C.V.C. v. O.C.
JUDGMENT: DISMISSED
RELEASED AND JOURNALIZED: February 1, 2024
Appearances:
Ronald A. Skingle, for appellee.
O.C., pro se.
JOURNAL ENTRY AND OPINION
EILEEN A. GALLAGHER, P.J.:
{¶ 1} Father-appellant, O.C. (Father), pro se, appeals from the trial court‘s judgment entry (1) dismissing his motions to modify parental rights and responsibilities and to show cause for contempt of court and (2) overruling his motion to stay an order requiring him to serve appellee V.C. (Mother) and the guardian ad litem with copies of his motions and to pay a deposit for the guardian ad litem‘s fee. Father contends that the trial court erred and abused its discretion by dismissing or overruling his motions without a hearing or referring the matter to mediation.
{¶ 2} For the reasons that follow, we dismiss this appeal.
Procedural and Factual Background
{¶ 3} Mother and Father were married on August 21, 1999. They have four children, two of whom are still minors — daughter C.T.C. (d.o.b. 8/24/06) and son U.C.C. (d.o.b. 5/28/10). A final divorce decree was entered on April 25, 2018 that included a shared parenting plan. Following the divorce, the parties filed a number of post-decree motions seeking to terminate the shared parenting plan and modify the parties’ child support obligations.
{¶ 4} On September 25, 2020, the trial court issued a judgment entry that terminated the parties’ shared parenting plan, designated Mother as the residential parent and legal custodian of the parties’ minor children and ordered Father to pay monthly child support. Father appealed to this court, challenging, among other things, the trial court‘s designation of Mother as the residential parent and legal custodian of the minor children and its order requiring Father to pay child support to Mother. V.C. v. O.C., 8th Dist. Cuyahoga No. 109988, 2021-Ohio-1491, ¶ 41, 43, 74.
{¶ 5} On appeal, this court affirmed the trial court‘s decision to the extent it terminated the parties’ shared parenting plan and designated Mother the residential parent and legal custodian of the pаrties’ minor children. Id. at ¶ 2, 72-73. However, concluding that the trial court had applied the wrong standard in determining Father‘s child support obligation, this court reversed the child support order and remanded the case for a redetermination of Father‘s child support obligation. Id. at ¶ 82, 96. On appeal after remand, this court affirmed the trial court‘s redetermination of Father‘s child support obligation. V.C. v. O.C., 8th Dist. Cuyahoga No. 110009, 2022-Ohio-1506.
{¶ 6} On July 18, 2023, Father filed (1) a motion to modify parental rights and responsibilities, requesting that the court modify its September 25, 2020 judgment entry to designate him the residential parent and legal сustodian of C.T.C. and U.C.C. (motion to modify parental rights) and (2) a motion to show cause for contempt of court, requesting that Mother be ordered to show cause why she should not be held in contempt of court for claiming C.T.C. in her 2022 tax return and for multiple violations and interference with * * * parenting time (motion to show cause). Attached to the motions were certificates of service indicating that copies of the motions had been mailed and electronically transmitted to [Mother] through her attorney. On August 4, 2023, the trial court issued an order, stating that Father‘s mоtions would be taken under advisement pending [Father‘s] compliance with the following orders on or before August 31, 2023:
- [Father] shall make an initial partial deposit of $1,500 to Attorney John Lawson, who will be reappointed as the GAL; [and]
- [Father] shall properly serve [Mother] and the GAL with all pleadings he filed in this reopening. ([Father] served prior counsel of [Mother] who was relieved of further obligations to represent [Mother] upon termination of the prior case.)
The court indicated that failure to comply will result in dismissal of this case.
{¶ 7} Father did not serve (or even attempt to serve) Mother or the guardian ad litem (GAL) with copies of his motions as ordered by the trial court. Instead, on August 29, 2023, Father filed a motion to stay the judgment entry of August 4, 2023 (motion to stay) (which he, again, served only on Mother‘s counsel) and further requested that the trial court order the parties to mediate their differences, claiming that there was an ongoing settlement agreement between the parties.
{¶ 8} Mother‘s attorney filed an opposition to Father‘s motion to modify parental rights, asserting that Father had not alleged a change in circumstances with regard to U.C.C., that the issues Father raised in his motion with respect to U.C.C. had been previously addressed in the trial court‘s September 25, 2020 judgment entry, this court‘s April 29, 2021 opinion and a motion to modify custody that was dismissed on March 6, 2023 and that the relitigation of custody for C.T.C. did not make sense given that C.T.C. was 17, had the ability to travel and stay with either parent as she desires and would soon be emancipated. Mother‘s attorney filed an opposition to Father‘s motion to show cause in which Mother denied claiming C.T.C. on her 2022 federal income tax return or limiting or interfеring with Father‘s parenting time. Mother‘s attorney filed an opposition to Father‘s motion to stay in which Mother denied that there was any ongoing settlement agreement between the parties and stated that she was not agreeable to engage in mediation with [Father]. Mother requested that the trial court‘s August 4, 2023 order not be stayed and that Father be required to comply with the terms of the order if he intended to pursue his motions. Father filed replies in support of each of his motions (which he, again, served only on Mother‘s counsel) disputing Mother‘s claims.
{¶ 9} On Seрtember 7, 2023, the trial court issued a judgment entry dismissing Father‘s motion to modify parental rights and his motion to show cause for want of
{¶ 10} Father appealed, raising the following six assignments of error for review:
Assignment of Error 1: The trial court erred and abused its discretion when, on 09/07/2023, it dismissed the motion to show cause for contempt of court, filed by O.C. (Appellant) on 07/18/2023, without a hearing, contrary to
O.R.C. 2705.05(A) andO.R.C. 3119.82 .Assignment of Error 2: The trial court erred and abused its discretion when, on 09/07/2023, it dismissed the motion to modify parental rights and privileges filed by O.C. (Appellant) on 07/18/2023 without a hearing or referral for mediation, as required by
O.R.C. 3109.052(A) andO.R.C. 3109.04 .Assignment of Error 3: The trial court erred and abused its discretion when, on 09/07/2023, it dismissed the appellant‘s motion to order the parties for mediation and to stay the trial court‘s order made on 08/04/2023 without any hearing, contrary to the requirements of
O.R.C. 3109.052(A) andOhio Civ. R. 62(A) .Assignment of Error 4: The trial court erred and abusеd its discretion when, on 08/04/2023, it ordered the appellant to make an initial partial deposit of $1,500 to Attorney John Lawson, who will be reappointed as the GAL, contrary to the provisions in Ohio R. Superi. Ct. 48.02(H)(1)(a).
Assignment of Error 5: The trial court erred and abused its discretion when, on 08/04/2023, it stated that the appellant served prior counsel of the Plaintiff who was relieved of further obligations to represent Plaintiff upon termination of the prior case, whereas the appellant served the plaintiff‘s present counsel (Mr. Ronald Skingle), and did not serve the prior сounsel of the plaintiff (Mr. Kevin Starrett). The false statement made by the court, which formed the basis of the court‘s final decision on 09/07/2023, was contrary to the provisions of
O.R.C. 2921.11 .Assignment of Error 6: The trial court erred and abused its discretion when, on 09/07/2023 it claimed that the Defendant‘s motions filed on August 29, 2023, are patently without merit and are OVERRULED.
(Emphasis deleted.)
Law and Analysis
{¶ 11} Before considering the merits of Father‘s assignments of error, we must first determine whether we have jurisdiction to hear this appeal.
{¶ 12} Our appellate jurisdiction is limited to reviewing judgments and orders that are final. M.E.D. v. P.K., 8th Dist. Cuyahoga No. 112070, 2023-Ohio-3471, ¶ 11; Article IV, Section 3(B)(2), Ohio Constitution;
{¶ 13}
[a]n order is a final order that may be reviewed, affirmed, modified, or reversed, with or without retrial, when it is one of the following:
(1) An order that affects a substantial right in an action that in effect determines the action and prevents a judgment;
(2) An order that affects a substantial right made in a special proceeding or upon a summary application in an action after judgment;
(3) An order that vacates or sets aside a judgment or grants a new trial;
(4) An order that grants or denies a provisional remedy аnd to which both of the following apply:
(a) The order in effect determines the action with respect to the provisional remedy and prevents a judgment in the action in favor of the appealing party with respect to the provisional remedy.
(b) The appealing party would not be afforded a meaningful or effective remedy by an appeal following final judgment as to all proceedings, issues, claims, and parties in the action.
(5) An order that determines that an action may or may not be maintained as a class action;
(6) An оrder determining the constitutionality of any changes to the Revised Code made by Am. Sub. S.B. 281 of the 124th general assembly, including the amendment of sections 1751.67, 2117.06, 2305.11, 2305.15, 2305.234, 2317.02, 2317.54, 2323.56, 2711.21, 2711.22, 2711.23, 2711.24, 2743.02, 2743.43, 2919.16, 3923.63, 3923.64, 4705.15, and 5111.018 (renumbered as 5164.07 by H.B. 59 of the 130th general assembly), and the enactment of sections 2305.113, 2323.41, 2323.43, and 2323.55 of the Revised Code or any changes made by Sub. S.B. 80 of the 125th general assembly, including the amendment of sections 2125.02, 2305.10, 2305.131, 2315.18, 2315.19, and 2315.21 of the Revised Code;
(7) An order in an appropriation proceeding that may be appealed pursuant to division (B)(3) of section 163.09 of the Revised Code.
{¶ 14} A divorce action qualifies as a special proceeding. Thomasson v. Thomasson, 153 Ohio St.3d 398, 2018-Ohio-2417, 106 N.E.3d 1239, ¶ 12, citing Wilhelm-Kissinger v. Kissinger, 129 Ohio St.3d 90, 2011-Ohio-2317, 950 N.E.2d 516, ¶ 6. A substantial right is a right that the United States Constitution, the Ohio Constitution, а statute, the common law, or
{¶ 15} [A]n order affects a substantial right for purposes of
{¶ 16} In this case, with the filing of his motions to show cause and to modify parental rights, Father sought to invoke the continuing jurisdiction of the trial court pursuant to
Service. It is the responsibility of the party filing the motion to perfect service on the opposing party.
(1) Pending Cases. In pending cases, all motions shall be filed with the Clerk of Courts and served on opposing counsel, on the self-represented party, and on the guardian ad litem, where one has been appointed.
(2) Post-Decree. All post-decree motions invoking the continuing jurisdiction of the court shall be accompanied by Instructions for Service. Service through the Clerk of Courts shall be made pursuant to
Civ.R. 4 through4.6 .
{¶ 17} Loc.R. 19(A) similarly provides, in relevant part: A motion that requests a change or modification of an existing child support * * * order must be filed and served upon the opposing party according to methods of service in Civil Rule 4 through 4.6.2 See also M.E.D., 2023-Ohio-3471, at ¶ 15 (The requirements of Loc.R. 19 and
{¶ 18}
The reason for this requirement is practical. In a domestic relations case the trial court retains jurisdiction over certain issues, including child support and visitation, even though disputes in these areas may not arise for months or years after the initial divorce decree is entered. Once the decree is final, it is unlikely that the parties would stay in contact with their attorneys.
In other words, regular civil cases are transactional in nature: that is, once the matter has been decided, apart from any appeal, the case is dead. Domestic relations cases, on the other hand, are relational in nature: even after the original cаse is ended by the divorce decree, the relationships between parents are not ended just because the marriage is ended. They still must interact in matters concerning their mutual children, and the case law demonstrates that these disputes are common. Resolving these disputes between the parties requires the trial court to retain jurisdiction over the parties and those restricted issues.
Because years can pass between the final decree and changed circumstances motivating a motion for a change in custody оr support, therefore, practicality and due process require that the motion be served upon the original party, in the same manner as a newly filed case. Service other than according to
Civ.R. 4 through4.6 , therefore, is not sufficient guarantee of notice to fulfill due process requirements.
Id. at ¶ 10-12; see also Grundey at ¶ 18; Tuckosh v. Cummings, 7th Dist. Belmont No. 07 HA 9, 2008-Ohio-5819, ¶ 29-32.
{¶ 19} The trial court, after noticing that Father had served only Mother‘s prior counsel (and not Mother) with copies of his motions, ordered that Father serve Mother with copies of the motions. He also reappointed Attorney John Lawson as GAL for the children and ordered that Father serve the GAL with all the motions he had filed in the reopened case. The trial court, thereafter, dismissed Father‘s motions, sua sponte, for want of prosecution and failure to comply with [the] Court‘s orders when Father failed to comply with its order.
{¶ 20}
{¶ 21} The trial court‘s September 7, 2023 judgment entry dismissing Father‘s motions to show cause and to modify parental rights and overruling Father‘s motion to stay compliance with the court‘s August 4, 2023 order was not based on the merits, i.e., no final ruling was made on the substance of the motions to show cause or to modify parental rights. A dismissal thаt is not based on the merits and is without prejudice is generally not a final, appealable order because it does not prevent a party from refiling. M.E.D. at ¶ 14, citing Natl. City Commer. Capital Corp. v. AAAA at Your Serv., Inc., 114 Ohio St.3d 82, 2007-Ohio-2942, 868 N.E.2d 663, ¶ 8. Father could refile his motions, ensure that Mother is properly served and reinvoke the continuing jurisdiction of the trial court. See, e.g., Fallang v. Fallang, 12th Dist. Butler No. CA2002-12-316, 2003-Ohio-5105, ¶ 8. Accordingly, the trial court‘s dismissal here was without prejudice.
{¶ 22} In M.E.D., 2023-Ohio-3471, this court recently dismissed an appeal in which a parent sought to invoke the continuing jurisdiction of the trial court under
{¶ 23} The dissent argued that a motion to modify child support affected a substantial right even if it could be refiled because the modification of support could not be retroactive beyond the date of the request. Thus, the dissent maintained, any refiling of the motion would limit the date upon which the subsequent modification, if any, could be retroactively awarded, which affects a substantial right in an action that in effect determines the action and prevents judgment under
{¶ 24} There are some potential differences between M.E.D. and this case. First, in M.E.D., this court held that the trial court lacked jurisdiction over the father‘s motion under
{¶ 25} As one court has observed, [i]n the context of domestic relations cases, there appears to be * * * a difference in holdings based on the аpplication of
{¶ 26} In Davis v. Paige, 5th Dist. Stark No. 2007 CA 00248, 2008-Ohio-6415, for example, the Fifth District held that a judgment entry involuntarily dismissing a father‘s motion for
{¶ 27} In Moir v. Denkewalter, 9th Dist. Medina No. 13CA0082-M, 2015-Ohio-3171, by contrast, the Ninth District held that the dismissal without prejudice of a mother‘s motion to reallocate parental rights was a final, appealable order. In that case, the mother filed a motion to reallocate parental rights and responsibilities in June 2012, arguing that the parties’ shared parenting plan should be terminated because the children‘s father had been arrested on charges of possessing marijuana. Id. at ¶ 3. A magistrate heard the matter in September 2012, at which time evidence was taken and the сhildren were interviewed in camera. Id. The magistrate referred the matter to mediation and ordered the children to attend counseling with the father stating that the father would have parenting time as the children and [f]ather agree. Id. In February 2013, the magistrate again ordered counseling and stated that [e]ither party may request a second initial hearing after ten sessions are completed. Violations of this Order will result in contempt and a probable jail sentence, and dismissal of the non-complying party‘s motions. Id.
{¶ 28} Five months later, the magistrate issued a decision dismissing the mother‘s motion to reallocate parental rights because neither party had requested another hearing date after the completion of ten counseling sessions. Id. at ¶ 4. Over the mother‘s objections to the dismissal of her motion with prejudice and without notice, the trial court adopted the magistrate‘s decision in part and dismissed the mother‘s motion without prejudice, noting that she was free to refile. Id.
{¶ 29} On appeal, the Ninth District concluded that, on the specific facts of this case, the trial court‘s dismissal order was a finаl, appealable order because it affected a substantial right, i.e., the mother‘s right to make decisions with respect to the care and custody of her child. Id. at ¶ 8-9. The court explained:
In this case, [the mother‘s] motion to reallocate parental rights based on the alleged changed circumstances in 2012 has been dismissed, and there is no final judgment from which she can obtain relief by means of appeal in the future. Although it is true that she can file another motion, that is a qualification
without meaning in this context. A parent can always invoke the continuing jurisdiction of the domestic relations court to consider reallocation of parental rights. [The mother] can certainly file a new motion; such is her right. What she cannot do is obtain a ruling on the motion that she filed in 2012 based on circumstances as they existed at that time and upon which the trial court took evidence at that time. Therefore, on the specific facts of this case, we conclude that [the mother‘s] appeal is final and appealable under R.C. 2505.02(B)(2) because the trial court‘s order affects a substantial right in the context of a spеcial proceeding.
Id. at ¶ 9; see also Parish v. Potter, 9th Dist. Medina No. 07CA0078-M, 2008-Ohio-3212 (reviewing the merits of the dismissal without prejudice of multiple postdecree motions without specifically addressing jurisdiction).
{¶ 30} In this case, Father does not claim that his motions could not be refiled for further consideration by the trial court if he were to properly invoke its continuing jurisdiction or that he would be prejudiced if required to refile his motions. Father did not state (in his motions or in this appeal) that there were certain rights he would be relinquishing if he had to refile his motions or that a refiling of his motions would prejudice his ability to seek the relief sought in his motions with respect to his children. In the affidavit Father submitted in support of his motions, Father asserted that C.T.C. had already been living with him 24/7 for over 15 months with Mother‘s agreement and that he was having parenting time with U.C.C. After filing his motions, instead of seeking prompt resolution of the motions, Father filed a motion to stay based on the existence on a purported ongoing settlement agreement that related to C.T.C. only.
{¶ 31} Based on the particular facts and circumstances of this case, we conclude that the trial court‘s September 7, 2023 order dismissing the mattеr for lack of prosecution was not a final, appealable order.
{¶ 32} Appeal dismissed.
It is ordered that appellee recover from appellant the costs herein taxed.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
EILEEN A. GALLAGHER, PRESIDING JUDGE
LISA B. FORBES, J., and
ANITA LASTER MAYS, J., CONCUR