[Cite as Helms v. Helms, 2013-Ohio-183.]
IN THE COURT OF APPEALS FOR GREENE COUNTY, OHIO
JOHN A. HELMS :
Plaintiff-Appellant : C.A. CASE NO. 2012 CA 53
v. : T.C. NO. 10DR187
MONACA G. HELMS : (Civil appeal from Common
Pleas Court, Domestic Relations)
Defendant-Appellee :
:
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OPINION
Rendered on the 25th day of January , 2013.
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RICHARD P. ARTHUR, Atty. Reg. No. 0033580, 1634 S. Smithville Road, Dayton, Ohio
45410
Attorney for Plaintiff-Appellant
ADRIENNE D. BROOKS, Atty. Reg. No. 0078152, 36 N. Detroit Street, Suite 102, Xenia,
Ohio 45385
Attorney for Defendant-Appellee
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DONOVAN, J.
{¶ 1} This matter is before the Court on the Notice of Appeal of John A. Helms,
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filed August 15, 2012. John’s Notice of Appeal provides that he appeals from the domestic
relations court’s July 25, 2012 “Decision and Order to Reopen Case” as well as the Final
Judgment and Decree of Divorce issued by the court on July 27, 2012.
{¶ 2} John and Monaca Helms were married in Gatlinburg, Tennessee on October
28, 2000, and no children were born of the marriage. John filed his Complaint for divorce
on June 7, 2010, and Monaca answered and filed a counterclaim for divorce. A hearing was
held on May 23, 2011 and continued on June 10, 2011. On July 20, 2011, the trial court
issued a “Decision and Order Regarding Spousal Support [and] Order to Prepare Final
Decree,” which provides in part that counsel for John “will prepare the final decree of
divorce and incorporate this spousal support finding as part of the decree” within thirty days
of the entry’s time-stamped date.
{¶ 3} On October 21, 2011, the court issued a “Nunc Pro Tunc Order” that
provides in part, “In the decision filed July 20, 2011, the Court inadvertently omitted a ruling
on the Universal One [c]redit card debt. It is the finding and order of the Court that the
Defendant shall be responsible for the payment of said debt.”
{¶ 4} On November 4, 2011, the trial court issued a “Notice of Dismissal for
Failure to Prosecute” that provides, “[I]t is the Order of the Court that the Complaint for
Divorce filed June 7, 2010 and any subsequent Motion, be DISMISSED, at Plaintiff’s cost,
without prejudice, on November 28, 2011 if the Decree is not presented for review and
signature.”
{¶ 5} On November 17, 2011, John filed a “Notice of Bankruptcy,” in which he
asserted that Monaca filed a petition for bankruptcy in the United States Bankruptcy Court
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for the Southern District of Ohio, Western Division, seeking relief under Chapter 13 of Title
11, United States Code. John requested that “all proceedings herein be stayed until such
other and further orders of the United States Bankruptcy Court.”
{¶ 6} On November 22, 2011, the trial court issued a Judgment Entry that
provides, “Upon the Court’s own motion and pursuant to Civil Rule 41(B)(1) 1 , the
Complaint for Divorce and all Motions filed subsequent, are DISMISSED, at Plaintiff’s
costs. The Parties have failed to comply with the Civil Rules of Procedure.”
{¶ 7} On January 31, 2012, Monaca filed a “Motion to Re-Open Case for the
Purpose of Filing a Decree of Divorce,” and the court granted the motion on the same day.
{¶ 8} On February 29, 2012, the trial court issued a “PreTrial Order” which
provides that “unless the final decree is presented to the Court for signature by close of
business on March 12, 2012 then the case will once again be dismissed and will not be
reopened. The parties will have to refile the divorce complaint or file a dissolution
petition.”
{¶ 9} On March 16, 2012, the court issued an “Order Dismissing the Case,” that
provides that “the Parties have failed to present a final decree for filing as previously
ordered.” It further provides that “it is the ORDER of the Court that this case is dismissed
without prejudice to the filing of a new complaint for divorce. This case will not be
reopened again as counsel and the parties have had that opportunity and failed to present a
1
Civ.R. 41(B)(1) provides: “(1) Failure to prosecute. When the plaintiff
fails to prosecute, or comply with these rules or any court order, the court, upon
motion of a defendant or on its own motion may, after notice to the plaintiff’s
counsel, dismiss an action or claim.”
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document which could be sign[e]d and filed as a final decree.”
{¶ 10} On March 27, 2012, Monaca filed a “Motion to Reconsider and a Request
for Hearing.” It provides in part as follows:
After the Order to Re-Open the case was granted, undersigned counsel
contacted defendant’s bankruptcy attorney and started the proceedings for a
Relief From Stay to file the decree. The Relief from Stay was filed with the
U.S. Bankruptcy Court and granted. Counsel for the Defendant prepared a
decree based on the Judge’s Decision with respect to spousal support, and the
issues that were read into the record. The client approved the same and the
decree was forwarded to Plaintiff’s counsel. The staff at the office of
counsel for Defendant contacted Mr. Arthur’s office almost every day for two
weeks, and even faxed and emailed the decree. Mr. Arthur did respond with
some modifications and such changes were immediately made and returned
promptly to Mr. Arthur’s office. On March 12, 2012, opposing counsel had
not returned executed documents to our office, therefore, only the Defendant
and Defendant’s counsel’s signatures were scribed.
Prior to submitting the Decree to the Court, counsel for Defendant
contacted Defendant’s bankruptcy attorney who stated as long as there is not
a transfer of property to Defendant, a separate court order from bankruptcy
court is not needed to file the decree. The Relief from the Automatic Stay
was only required.
Wherefore, it is the position of the Defendant that the decree reflects
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this Court’s journal and record, and the same shall be accepted for filing. It
is not the fault of the defendant that the Plaintiff is in dispute with the spousal
support order and refused to sign. This is effectively awarding him for
disobeying a court order.
{¶ 11} On April 6, 2012, John filed a response which provides in relevant part as
follows:
* * * The case was dismissed on November 22, 2011 due to
Defendant’s failure to obtain or seek relief from bankruptcy stay. Two (2)
months later on January 31, 2012, counsel for Defendant filed a motion to
reinstate the case which was filed and granted without notice to counsel for
Plaintiff. On February 12, 2012, a conditional stay was granted by the
Bankruptcy Court stating that “the debtor must move this Court for a further
Order prior to transferring any property of the estate.”
The proposed Decree settles all issues concerning real estate, vehicles,
and debts. However, no further Motion has been filed with the bankruptcy
Court.
On February 29, 2012, the Court stated that the case would be
dismissed and not reopened if no Decree was filed by March 12, 2012.
Upon request of counsel for Defendant, a copy of the proposed Decree was
forwarded to her attention on March 26, 2012. To this date, no relief to
settle property division has been sought or received.
Plaintiff wishes to remain married and that [the] case remain
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dismissed as earlier ordered by this Court.
{¶ 12} A hearing was held on Monaca’s motion to reconsider the dismissal of the
case on July 24, 2012. At the hearing, counsel for John indicated to the court that “one, the
Court ordered that the case be dismissed and not re-opened without a new complaint being
filed. And, secondly, that the Court now no longer has jurisdiction as a new complaint has
been filed and served out of Franklin County.” In response, the court stated in part, “I’m
going to change my mind about not reopening again. I’ll reopen the case. I’ll get it
finalized and the case will be over.”
{¶ 13} On July 25, 2012, the court issued a “Decision and Order to Reopen Case,”
which provides:
This matter is again before the Court upon the request of the
Defendant to reconsider the Order dismissing the case for the failure of the
parties to present the final decree for filing. The Plaintiff opposed the
reopening of the case and a hearing was held on July 25, 2012. Both parties
were present along with their counsel of record. The Court finds that the
attorney for the Plaintiff has now prepared a Final Decree and has presented it
to the Court for consideration and filing. 2 Counsel for the Plaintiff has
reviewed the proposed decree and correctly pointed out that the only thing not
included in this draft decree was the decision on the debt owed to Universal
One [C]redit Union which was dealt with in the decision of the Court filed
October 21, 2011. Counsel for Defendant agreed and has consented to add
2
Counsel for Monaca in fact prepared the Final Decree.
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that decision to the draft and return it to the Court for filing. It was
acknowledged by counsel for the Plaintiff that all other provision[s] of the
draft decree reflect the previous agreements of the parties and the decisions
made by the Court.
* * * While a proposed decree may have been presented to counsel for
the Defendant no such decree has ever been presented to the Court by the
Defendant or his attorney. Plaintiff’s attorney argues that a bankruptcy filing
prevented him from proceeding. This is incorrect. Nothing in the
bankruptcy code prevented the attorney for the Plaintiff from preparing and
presenting a proposed decree. This Court would then need to decide if the
decree was appropriate for filing. It is possible that this Court would have
agreed with counsel for the Plaintiff regarding the bankruptcy stay and the
Court could have communicated with the Bankruptcy Judge and Trustee in an
effort to obtain permission to file the Decree. The actions of the Plaintiff
and his counsel denied the Court this opportunity. The necessity for such
action is now moot as the attorney for the Defendant has obtained a
conditional relief from the bankruptcy stay. The Final Decree when filed
herein can be presented to the Bankruptcy Court for it’s (sic) consideration
and approval pursuant to the conditional relief. Plaintiff is now attempting
to use his own counsel’s failure to present the decree to the Court as a means
to obtain another “bite of the apple” [in] an attempt to delay the divorce or to
obtain a more favorable ruling in some other jurisdiction. In the interest of
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judicial economy and as a matter of equity this Court will reverse it’s (sic)
previous decision and reopen the case for the purpose of filing the Final
Decree as presented by the attorney for the Defendant.
Therefore it is the ORDER of the Court that the previous dismissal of
the case is reversed and the case is reopened for the purpose of filing the final
decree prepared and presented by the attorney for the Defendant. Said
Decree has been seen and reviewed by the Plaintiff and his counsel but has
not been signed.
{¶ 14} The “Final Judgment and Decree of Divorce” was filed on July 27, 2012.
{¶ 15} On September 13, 2012, John filed a “Motion to Stay” in this Court, which
Monaca opposed. On October 3, 2012, this Court issued a Decision and Entry overruling the
Motion to Stay and expediting the matter in accordance with Loc.App.R. 2.8(B).
{¶ 16} John asserts three assignments of error herein. We will consider his first
two assigned errors together. They are as follows:
“THE TRIAL COURT ERRED BY REOPENING A CASE AFTER DISMISSAL
UPON DEFENDANT’S MOTION TO REOPEN CASE.”
And,
“THE TRIAL COURT ERRED IN REOPENING A CASE WHEN FRANKLIN
COUNTY HAS A CASE PENDING.”
{¶ 17} John asserts that there “are no provisions under the Ohio Revised Code to
reopen a case that has been dismissed.” He further asserts that on July 20, 2012, after
having “relocated,” he filed a Complaint for Divorce in Franklin County, “securing service
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on July 23, 2012.” According to John, “proper venue for [the] case is in Franklin County as
no case was pending in Greene County and there is no request to transfer case.” Attached to
John’s brief is a copy of a document from the Franklin County Common Pleas Court,
Domestic Division, which indicates that Monaca was personally served with a certified copy
of a summons and complaint on July 23, 2012.
{¶ 18} Monaca responds that the trial court did not abuse its discretion in reopening
the matter, and that John’s “reason for filing in Franklin County was in the hopes * * * for a
lower spousal support order.” Monaca asserts that “Franklin County did not have
jurisdiction to host a new complaint for divorce on behalf of” John. Monaca asserts that
service of process was first perfected in Greene County and “priority is given to the court
where service of process is first successfully accomplished.”
{¶ 19} Regarding the first dismissal of this matter, we note that the trial court’s
November 4, 2011 Notice of Dismissal indicates that the matter would be subject to
dismissal without prejudice on November 28, 2011, in the absence of a final decree. The
court, however, issued its Judgment Entry dismissing the matter on November 22, 2011,
six days earlier than it indicated it would do so, and it also failed to indicate that the
dismissal was without prejudice. In vacating the erroneous dismissal, the court exercised its
inherent authority to correct the erroneous judgment entry.
{¶ 20} Regarding the second dismissal, we note that in its Pretrial Order, the court
indicated that, in the absence of a decree, “the case will once again be dismissed and will not
be reopened. The parties will have to refile the divorce complaint or file a dissolution
petition.” In its Order Dismissing the Case, the court indicated that “this case will not be
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reopened again * * * ,” and it dismissed the matter without prejudice.
{¶ 21} As this Court has previously noted, “‘[a] dismissal without prejudice
relieves the court of all jurisdiction over the matter, and the action is treated as though it had
never been commenced.’ * * * .” Ebbets Partners, Ltd. v. Day, 171 Ohio App.3d 20,
2007-Ohio-1667, 869 N.E.2d 110, ¶ 11 (2d Dist.). In other words, either of the parties, as
the court so indicated prior to the second dismissal, was required to refile a complaint for
divorce upon dismissal, and John apparently did so albeit in Franklin County. Since the
court was without authority to “reopen” the matter and issue the final decree, John’s first two
assigned errors are sustained, and the Final Decree of Divorce is vacated. John’s third
assigned error is addressed to the issue of spousal support and is not properly before us,
given our resolution of the first two assigned errors. Judgment reversed and vacated.
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FROELICH, J., concurs.
HALL, J., concurring:
{¶ 22} I agree with the conclusion of the majority that the trial court could not
reopen this case once unconditionally dismissed. I do however note there is a distinction
between this case and reopening of a dismissed case when there has been a reservation of
that possibility in the dismissal entry. See, e.g., Page v. Riley, 85 Ohio St.3d 621, 623, 710
N.E.2d 690 (1999). Because the dismissal in this case was without reservation, it could not
be reopened.
{¶ 23} I do find it is perhaps unreasonable that when a case is dismissed for failure
to prosecute, a trial court cannot entertain a motion for relief from judgment under Civ. R.
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60(B). Ebbets Partners, Ltd. v. Day, 171 Ohio App.3d 20, supra. This result applies even if
the reason the court uses to dismiss the case is decidedly wrong. When a trial court
erroneously dismisses a case for failure to prosecute, for instance where the court fails to
observe that a party has complied with a previous court order, there should be a means to
bring that apparent error to the attention of the trial court and obtain relief.
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Copies mailed to:
Richard P. Arthur
Adrienne D. Brooks
Hon. Steven L. Hurley