Bruce v. Bruce

[Cite as Bruce v. Bruce, 2012-Ohio-45.]

IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
MARION COUNTY

BRITTANIE BRUCE,

PLAINTIFF-APPELLANT, CASE NO. 9-10-57

v.

DANIEL PIETER BRUCE, OPINION

DEFENDANT-APPELLEE.

Appeal from Marion County Common Pleas Court,
Domestic Relations Division
Trial Court No. 2009 DR 0378

Judgment Vacated and Cause Remanded

Date of Decision: January 9, 2012

APPEARANCES:

Jeff Ratliff and Jon L. Jensen for Appellant

Judith E. Galeano for Appellee
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ROGERS, P.J.

{¶1} Plaintiff-Appellant, Brittanie Bruce (hereinafter “Brittanie”), appeals

the judgment of the Marion County Court of Common Pleas, Family Division,

(hereinafter “Marion County Family Court”) granting Defendant-Appellee’s,

Daniel Bruce (hereinafter “Daniel”), motion to terminate the parties’ shared

parenting plan, modifying the parties’ parental rights and responsibilities, and

designating Daniel as the residential parent and legal custodian of their minor

children. On appeal, Brittanie contends that the case was improperly transferred

from Hardin to Marion County; that the trial court erred in finding that a change in

circumstances had occurred; that the trial court erred when it limited her cross-

examination of Daniel; that the trial court erred when it permitted the introduction

of evidence that predated the prior custody decree; and, that the trial court erred

when it permitted the introduction of exhibits which were not disclosed to her in

accordance with a pre-existing order mandating disclosure. Based on the

following, we reverse the judgment of the trial court.

{¶2} The parties divorced on November 16, 2006, pursuant to a decree of

dissolution of marriage entered by the Hardin County Court of Common Pleas

(hereinafter “Hardin County Court”). As part of the dissolution order, Brittanie

was designated residential parent and legal custodian of the parties’ children: R.B.,

born in April of 2001, and W.B., born in July of 2004.

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{¶3} On July 31, 2007, Daniel filed a motion to reallocate parental rights

and responsibilities. On March 13, 2008, while his prior motion was still pending,

Daniel filed a motion for shared parenting. On August 7, 2008, the parties filed a

joint shared parenting plan with the Hardin County Court. According to the

shared parenting plan, each party was designated residential and custodial parent

of the children and Brittanie was designated residential parent for school

placement purposes. The parties’ shared parenting plan was adopted by the

Hardin County Court and journalized in its September 17, 2008 Judgment Entry.

On October 17, 2008, Brittanie filed a notice of intent to relocate, stating that she

intended to move with the children to neighboring Marion County.

{¶4} On September 29, 2009, Daniel filed a motion to terminate or, in the

alternative, modify the parties’ shared parenting plan. Daniel also filed a motion

to transfer the case to Marion County. Daniel’s motion stated, in pertinent part,

that:

Petitioner-Father, in the best interest of his children, requests
this court to use its discretion and transfer the matter to a more
convenient forum in Marion County.

***

The more convenient forum for the parties to litigate issues
pertaining to the minor children would be the county is (sic)
which the minor children currently reside, Marion County.

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Motion to Change Venue, p. 3. In response, Brittanie filed objections to Daniel’s

motion to terminate or modify the shared parenting plan, as well as a motion in

opposition to Daniel’s motion for a change of venue. Subsequently, Daniel filed a

reply to Brittanie’s objections and motion in opposition.

{¶5} On November 20, 2009, the Hardin County Court granted Daniel’s

motion to transfer the case to Marion County. The Hardin County Court’s order

stated, in its entirety:

This cause came on for consideration by the Court upon motion
of Defendant, Daniel Bruce, for transfer of venue.

The Court upon review of the original motion, the memorandum
contra filed by Plaintiff, Brittanie Bruce, and Defendant’s
motion to dismiss finds same to be well taken and for good cause
shown grants same.

It is therefore that this matter be transferred to the Marion
County Family Court.

This certification is made with the prior consent and approval of
the Honorable Deborah A. Alspach, Judge of the Marion County
Family Court.

The Hardin County Clerk of Courts is hereby ordered to certify
this case to the Marion County Family Court. November 20,
2009, Order Granting Change of Venue.

{¶6} Thereafter, the case was transferred to the Marion County Family

Court, which entered an order assigning a Family Services Coordinator to review

the case and file a report providing recommendations on the matter of the parties’

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parental rights. On June 2, 2010, the Family Services Coordinator filed his report

on the case.

{¶7} On August 17, 2010, Brittanie filed a motion for modification of the

shared parenting plan and a proposed shared parenting plan. Daniel subsequently

filed a motion for shared parenting and an amended parenting plan. On September

27 and 28, 2010, the Marion County Family Court held a two-day trial on the

matter of the parties’ parental rights and heard the testimony of eleven witnesses.

{¶8} On October 20, 2010, the Marion County Family Court entered its

judgment terminating the shared parenting plan in place and designating Daniel as

the children’s residential parent and legal custodian.

{¶9} It is from this judgment Brittanie appeals, presenting the following

assignments of error for our review.

Assignment of Error No. I

VENUE WAS IMPROPERLY TRANSFERRED FROM THE
COURT OF COMMON PLEAS FOR HARDIN COUNTY,
OHIO, DOMESTIC RELATIONS DIVISION, TO THE
COURT OF COMMON PLEAS FOR MARION COUNTY,
OHIO, FAMILY DIVISION.

Assignment of Error No. II

THE TRIAL COURT ERRED AND ABUSED ITS
DISCRETION IN FINDING THERE HAD OCCURRED A
CHANGE IN CIRCUMSTANCES AND THAT SUCH
CHANGE HAD A MATERIAL ADVERSE EFFECT ON THE

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CHILDREN WARRANTING A MODIFICATION OF
CUSTODY.

Assignment of Error No. III

THE TRIAL COURT ERRED AND ABUSED ITS
DISCRETION BY REFUSING TO PERMIT APPELLANT’S
COUNSEL THE OPPORTUNITY TO QUESTION OR IN THE
ALTERNATIVE, THE OPPORTUNITY TO PROFFER ON
CROSS-EXAMINATION OF APPELLEE.

Assignment of Error No. IV

THE TRIAL COURT ERRED AND ABUSED ITS
DISCRETION IN PERMITTING THE INTRODUCTION OF
EVIDENCE PREDATING THE PRIOR CUSTODY DECREE
CONTRARY TO THE AGREEMENT AND STIPULATION
OF THE PARTIES AND THE DOCTRINE OF RES
JUDICATA.

Assignment of Error No. V

THE TRIAL COURT ERRED AND ABUSED ITS
DISCRETION IN PERMITTING THE APPELLEE’S
COUNSEL TO INTRODUCE NUMEROUS EXHIBITS OVER
THE OBJECTION OF COUNSEL WHEN OPPOSING
COUNSEL FAILED TO DISCLOSE THE SAME IN
ACCORDANCE WITH THE TRIAL COURT’S FEBRUARY 8,
2010 ORDER.

Assignment of Error No. I

{¶10} In her first assignment of error, Brittanie contends that the Hardin

County Court erred when it granted Daniel’s motion for a change of venue and

transferred the case to Marion County. Specifically, Brittanie contends that the

Hardin County Court improperly granted Daniel’s motion because Daniel’s

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motion requested the transfer based solely upon the parties’ convenience, and

failed to demonstrate that a fair and impartial trial cannot be had in Hardin County

as required by Civ.R. 3(C)(4).

{¶11} Though an order granting or denying a change of venue from one

Ohio county to another Ohio county may be challenged on appeal, the order,

standing alone, is not a final, appealable order. State ex rel. Lyons v. Zaleski, 75

Ohio St.3d 623, 625, 665 N.E.2d 212 (1996); Buxton v. Mancuso, 5th Dist. No. 09

CA 22, 2009-Ohio-6839, ¶ 13. Therefore, a party who wishes to appeal an order

granting or denying a change of venue must wait to appeal said issue until a final

judgment has been rendered in the case. Zaleskiat 625. The present appeal stems

from the Marion County Family Court’s judgment entry designating Daniel as the

residential parent. This judgment is a final, appealable order. Consequently,

Brittanie’s first assignment of error challenging the Hardin County Court’s order

granting the change of venue is properly before this Court.

{¶12} Furthermore, we find that the Hardin County Court’s order granting a

change of venue was properly preserved for appeal. Though Brittanie did not file

an objection with the Marion County Family Court opposing the change of venue,

we find that such an objection was not required in order to preserve the matter for

appeal. Where a party files a motion, in the original forum, opposing a change of

venue, we find that the matter is preserved for appeal. Because Brittanie filed a

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motion opposing a change of venue with the Hardin County Court, we find that

the matter was preserved for appeal.

{¶13} The decision to change venue is within the trial court’s sound

discretion and will not be overturned absent an abuse of that discretion. Burns v.

Prudential Securities, Inc., 167 Ohio App.3d 809, 2006-Ohio-3550, 857 N.E.2d

621, ¶ 67, citing State ex rel. Dunbar v. Ham, 45 Ohio St.2d 112, 114, 341, 341

N.E.2d 594 (1976).1 A trial court will be found to have abused its discretion when

its decision is contrary to law, unreasonable, not supported by the evidence, or

grossly unsound. See State v. Boles, 2d Dist. No. 23037, 2010-Ohio-278, ¶ 17-18,

citing Black’s Law Dictionary (8 Ed.Rev.2004) 11. When applying the abuse of

discretion standard, a reviewing court may not simply substitute its judgment for

that of the trial court. Blakemore v. Blakemore (1983), 5 Ohio St.3d 217, 219, 450

N.E.2d 1140 (1983).

{¶14} Change of venue in a civil action is governed by Civ.R. 3(C). In

particular, Civ.R. 3(C)(4) governs the intrastate transfer of a civil action, which is

at issue here. Civ.R. 3(C)(4) provides:

1
Although the dissent also cites to Prudential and Dunbar, it appears that the dissent has failed to notice
the distinctions. In Prudential the trial court allowed extensive voir dire prior to a determination that a
change of venue was not necessary. Dunbar was a case in which the venue was transferred prior to trial,
and its holding must now be viewed in light of the more recent decision in Zaleski which was decided
twenty years after Dunbar.

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Upon motion of any party or upon its own motion the court may
transfer any action to an adjoining county within this state when
it appears that a fair and impartial trial cannot be had in the
county in which the suit is pending.

Under this provision, “the only basis for a transfer of venue from a county where

the venue is proper [to another county] is when the transfer is necessary to obtain a

fair trial.” (Emphasis added.) Bowersock v. Bowersock, 3d Dist. No. 1-98-10,

1998 WL 378410 (June 29, 1998), quoting State ex rel. Starner v. DeHoff, 18

Ohio St.3d 163, 165, 480 N.E.2d 449 (1985).

{¶15} It is undisputed that Hardin County was a proper venue for the

present action. See Civ.R. 3(B)(9). Nevertheless, Daniel filed a motion requesting

that the case be transferred to Marion County. Review of Daniel’s motion reveals

that Daniel’s request was not predicated on the inability to receive a fair and

impartial trial. Instead, Daniel’s motion requested a change of venue based solely

upon the parties’ convenience. A case, which is pending in a county with proper

venue, may not be transferred to another county, based solely upon convenience.

{¶16} In Chambers v. Merrell-Dow Pharmaceuticals, Inc., the Supreme

Court of Ohio recognized that the principle of forum non conveniens applies to

cases in which the more convenient forum is in another state or another country.

35 Ohio St.3d 123, 132, 519 N.E.2d 370 (1988). The Court expressly rejected the

application of forum non conveniens with regard to intrastate transfers, stating

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“forum non conveniens may not be applied to a transfer of a properly venued

action in an Ohio county to another Ohio county, since Civ.R. 3(C)(4) limits

intrastate transfers to transfers to an ‘adjoining county * * * ‘when it appears that a

fair and impartial trial cannot be had in the county in which the suit is pending.’’”

Zaleski, 75 Ohio St.3d at 624, 665 N.E.2d 212, quoting Chambers at 132. The

Court explained that Civ.R. 3 recognizes that “[t]ransfer of a case from one proper

venue to another proper venue within the state for means of convenience is

unnecessary in a geographically small state such as Ohio, and that any

inconvenience to witnesses in such a situation could be remedied by the use of

depositions.” Chambers at 131.

{¶17} Based on the foregoing authority, we conclude that the Hardin

County Court erred when it granted Daniel’s motion to transfer the case, which

was requested solely upon the basis of the parties’ convenience. As noted above,

the only reason a case may be transferred from one Ohio county to another occurs

when it is necessary to obtain a fair trial. Civ.R. 3(C)(4). In the process of

requesting and granting this transfer, neither Daniel, nor the Hardin County Court,

nor the Marion County Family Court raised any issue pertaining to the ability of

either party to obtain a fair trial in Hardin County. As a result, we find that the

record contains no permissible basis under Civ.R. 3(C)(4) for transferring the case

to Marion County.

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{¶18} Furthermore, we are not persuaded by Daniel’s contention that

Civ.R. 3(G) prohibits reversal of a judgment where the sole basis for said reversal

is an improper change of venue. In his argument, Daniel quotes Civ. R. 3(G) as

follows: “The provisions of this rule relate to venue and are not jurisdictional. No

order, judgment, or decree shall be void or subject to collateral attack solely on the

ground that there was improper venue.” Daniel, however, quoted only a portion of

the rule. The portion omitted by Daniel states: “however, nothing here shall affect

the right to appeal an error of court concerning venue.” Civ.R. 3(G). As

previously mentioned, the present appeal represents the first and only time

Brittanie could have challenged the Hardin County Court’s order granting Daniel’s

motion for change of venue. Consequently, we find no merit in Daniel’s reliance

on his edited portion of Civ.R. 3(G), as Brittanie clearly has a right to appeal the

order transferring the case from Hardin County to Marion County. See, also,

Lorenz Equip. Co. v. Ultra Builders, Inc., 10th Dist. No. 92AP-1445, 1993 WL

51095 (Feb. 23, 1993) (a judgment may be reversed and remanded solely due to an

error concerning venue), citing, Grange Mut. Cas. Co. v. Thompson, 61 Ohio

App.3d 190, 572 N.E.2d 237 (10th Dist. 1990).

{¶19} Given the foregoing, we conclude that the Hardin County Court

abused its discretion when it transferred the present case to Marion County.

Accordingly, we sustain Brittanie’s first assignment of error.

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{¶20} The dissent claims that our decision in this case “1) creates prejudice

for the parties and their family members where none existed before, 2) generally

manages to waste judicial resources across two counties of the district, and 3)

comes up with a decision on venue that promotes after-the-fact, post-trial forum

shopping in a domestic relations case.”

{¶21} The dissent fails to accept that: 1) the prejudice here is created by the

removal of a case from a trial court that is familiar with the parties, their prior

dealings with each other, and the reasons for the trial court’s prior orders, to a trial

court that does not know either of the parties, their children, their prior problems,

or the reasons for the current custody orders; 2) that the waste of judicial resources

was created by Daniel requesting something to which he was not entitled and the

trial court’s disregard for Brittanie’s rights by ignoring the clear mandate of the

Civil Rules; and 3) that the forum shopping was done by Daniel in his motion for

change of venue to which Brittanie properly objected at her earliest opportunity.

{¶22} Based upon our resolution of Brittanie’s first assignment of error, we

need not address her remaining assignments of error. Therefore, Brittanie’s

second, third, fourth, and fifth assignments of error are rendered moot, and we

decline to address them. App.R. 12(A)(1)(c).

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{¶23} Accordingly, the judgment of the Marion County Family Court is

vacated and the cause is remanded for further proceedings consistent with this

opinion.

Judgment Vacated and
Cause Remanded

WILLAMOWSKI, J., concurring separately.

{¶23} I concur with the judgment and the reasoning of the majority.

However, I am writing a separate concurrence to address the issues raised by the

dissent. The November 20, 2009 order granting the change of venue made no

finding that it appears that a fair and impartial trial cannot be had in Hardin

County as would be required by Civil Rule 3(C)(4). The dissent claims there was

no abuse of discretion. The abuse of discretion in this case is that the trial court

arbitrarily ignored the requirements of the civil rules in granting the motion.

While one may empathize with the dissent in that the trial and all of the

preliminary proceedings that occurred in Marion County must now be vacated and

the matter must be re-litigated in Hardin County, arbitrarily ignoring the

unambiguous requirements of the Civil Rules is a clear abuse of discretion. “No

court—not a trial court, not an appellate court, nor even a supreme court—has the

authority, within its discretion, to commit an error of law.” State v. Boles, 2d Dist.

No. 23037, 2010-Ohio-278.

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{¶24} Finally, the dissent, in pointing out that “convenience” and

“fairness” are not mutually exclusive, which seems to concede that the transfer

was in fact made solely for convenience, argues that the Hardin County court’s

transfer could have involved the issue of “fairness.” The dissent implies that since

one party lived in Union County and the other in Marion County, both of which

abut Hardin County incidentally, it would be “fair” for it to be transferred to

Marion County. However, the fact that a fair trial could be had in Marion County,

which is not a requirement of Civil Rule 3(C)(4), is not the same as a

determination that “a fair and impartial trial cannot be had” in Hardin County.

The latter determination is the one required by Civil Rule 3(C)(4) before a case

can be transferred to another county. This determination was never evidenced by

the Hardin County Court. Thus, I concur with the majority opinion.

SHAW, J., Dissents.

{¶25} From a legal standpoint, the majority 1) openly disregards several

basic principles of appellate review such as what constitutes an abuse of discretion

or the difference between error and prejudicial error, 2) reverses a trial judge in

one county for allegedly failing to follow “requirements” of Civ. R. 3(C)(4) that

do not exist in the Rule, and 3) vacates an entire trial and related proceedings in

another county without finding any error in those proceedings.

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{¶26} From a practical standpoint, the majority 1) creates prejudice for the

parties and their family members where none existed before, 2) generally manages

to waste judicial resources across two counties of the district, and 3) comes up

with a decision on venue that promotes after-the-fact, post-trial forum shopping

by a party in a domestic relations case.

{¶27} The decision whether to change venue is within the trial court’s

sound discretion and will not be overturned absent an abuse of that discretion.

Burns v. Prudential Securities, Inc., 167 Ohio App.3d 809, 857 N.E.2d 621 citing

State ex rel. Dunbar v. Ham (1976), 45 Ohio St.2d 112, 114, 74 O.O.2d 213, 341

N.E.2d 594. Abuse of discretion implies that the trial court’s decision was

unreasonable, arbitrary or unconscionable. Blakemore v. Blakemore (1983), 5

Ohio St.3d 217, 219, 450 N.E.2d 1140.

{¶28} Moreover, the change of venue, even if erroneous, does not impact

the jurisdiction of the Marion County Family Court over this case. See Civ. R.

3(G); see also Morrison v. Steiner (1972) 32 Ohio St.2d 86, 88; and Walp v. Walp,

3rd Dist. No. 02-05-10, (stating “venue is a procedural matter primarily concerned

with choosing a convenient forum and raises no jurisdictional implications.”)

{¶29} The fact that the jurisdiction of the Marion court to conduct a valid

trial and adjudication remains intact under the foregoing authority, even if the

change of venue is found to be erroneous, is significant. If erroneous transfers

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were reversible per se as the majority holds, then the Civil Rules would no doubt

provide for an immediate appeal at the time of transfer and by now, existing case

authority would no doubt have construed an erroneous transfer order to be a final

appealable order at the time of transfer. There is no such authority.

{¶30} Consequently, an appellate court has the responsibility to evaluate

any error in the transfer of this case in the context of the entire record, which now

includes a valid trial and judgment entered on the merits in another court; a trial

and judgment which this court has not found to contain a single error. More

importantly, a court of appeals has a responsibility to act with a sense of

practicality toward the parties and the trial courts, not based on some presumed

error or rule practice that might be contrary to what we would have done, but on

the appellant’s demonstration of actual prejudicial resulting from substantiated

error.

{¶31} In short, it is apparent in this case from the foregoing authorities on

venue and jurisdiction, that there must be something that produces an

unreasonable, arbitrary or unconscionable effect on the parties in the order of

transfer, beyond the mere fact that the majority believes Civ. R. 3(C)(4) was not

followed, and beyond the fact that one party is now not satisfied with the final

judgment, in order to constitute an abuse of discretion sufficient to effectively

reverse and vacate all the proceedings in Marion County.

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{¶32} The reality is that we do not even know for certain that the Hardin

County court actually violated Civ.R. 3(C)(4), only that the court did not recite the

language of the rule in its judgment entry of transfer. The separate concurrence

insists that the trial judge is required to enter findings that a fair trial cannot be had

in Hardin County and supports reversal because those findings were not made part

of the transfer order in this case. However, if we are going to elevate every

suspected Rule violation to the status of per se reversible error, we should perhaps

at least get the language of the rule right. The actual language of Civ. R. 3(C)(4)

mentions nothing about findings by the trial court:

(4) Upon motion of any party or upon its own motion the court
may transfer any action to an adjoining county within this state
when it appears that a fair and impartial trial cannot be had in
the county in which the suit is pending.

{¶33} When this case was transferred from Hardin County to Marion

County, neither party, nor any of their children resided in Hardin County. The

husband resided in Union County and the wife and children resided in Marion

County. This fact was cited in the husband’s motion to transfer. Notably, the

husband did not request transfer to his own residential county but to the county

where the wife and children resided.

{¶34} Obviously a transfer under these circumstances would likely make all

further proceedings and the enforcement of any future judgments more convenient

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for the very parties who will be the most affected by those proceedings and

judgments. The majority opinions seem to believe that if a transfer is found to

serve convenience, it must constitute reversible error. However, I reiterate,

“convenience” and “fairness” are not mutually exclusive.

{¶35} For example, convenience, in terms of the hardships of time off work

or travel and additional expense of securing witnesses for attendance at the trial

could well constitute one factor determining whether a fair trial can or cannot be

conducted in a particular county. Civ. R. 3(C)(4) as it is actually written only

seems to require that upon taking these matters and any other factors into account,

it appears to the trial court that proceeding with litigation in Hardin County would

not be fair to one side or the other. Outrageous as it may seem to the majority, the

Rule does not require the trial judge to share his reasoning with us. Thus, while it

might well be better practice to include those findings in any judgment entry of

transfer, the trial judge is not required to do so and it is certainly not plain error for

the judge not to do so.

{¶36} Thus, I do not concur with the premise of the majority that the sole

reference to convenience in the motion to transfer somehow precludes the trial

court or this court from considering that any order of transfer was based upon the

issue of a fair trial under Civ. R. 3(C)(4). On the contrary, given the circumstances

of this case, it is appropriate to afford the trial court the usual presumptions of

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regularity. Accordingly, absent clear evidence to the contrary, we must presume

that both the Hardin County and the Marion County Courts did consider the

fairness requirements of the Civil Rules in making and accepting the transfer.

{¶37} However, even assuming that the transfer of this case did not follow

the dictates of Civ. R. 3(C)(4), the only “prejudice” resulting from the transfer to

Marion is apparently that one party is not satisfied with the judgment in Marion

County and would like another bite of the apple back in Hardin County. Of course,

no issue was raised about venue in the Marion County Court prior to, during or

after the trial. Nor, as noted earlier, have we determined anything erroneous,

prejudicial or unfair in the Marion County proceedings. On the other hand, there

will now be significant prejudice to the party satisfied with the Marion judgment

who now must face a second and completely unnecessary trial on exactly the same

evidence in another county.

{¶38} Moreover, the Hardin County court could now rule that a fair trial for

one party cannot be had in Hardin County because there has already been a trial

without any demonstrated error and it would not be fair to require that party to go

through a second, identical trial in a county where none of the parties reside. Or

the Hardin County court could simply recite the language of the Rule as the

majority wishes into a new judgment entry and re-transfer the case on that basis.

Since the majority believes that any omission of Rule language from the judge's

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order of transfer must be per se reversed without further review, does this mean

that a judgment entry of transfer which recites the Rule language must be per se

affirmed without further review?

{¶39} For all of these reasons, I respectfully dissent. The decision of our

court in this case is irresponsible from both a legal and a practical standpoint. As

such, it constitutes an abuse of our discretion. Finding no reversible error in this

case, I would overrule the first assignment of error and address the remaining

issues and assignments of error on their merits.

/jlr

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