Askin v. Askin

[Cite as Askin v. Askin, 2013-Ohio-5606.]

IN THE COURT OF APPEALS OF OHIO

TENTH APPELLATE DISTRICT

Ray W. Askin, :

Plaintiff-Appellee, :
No. 13AP-404
v. : (C.P.C. No. 09DR-11-4411)

Linda Askin, : (REGULAR CALENDAR)

Defendant-Appellant. :
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D E C I S I O N

Rendered on December 19, 2013
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David G. Hasselback, for appellee.

Linda Askin, pro se.
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APPEAL from the Franklin County Court of Common Pleas
Division of Domestic Relations

DORRIAN, J.
{¶ 1} Plaintiff-appellee, Ray W. Askin ("appellee"), filed a complaint for divorce
from defendant-appellant, Linda Askin ("appellant"), on November 10, 2009. This has
been a long drawn-out case, in large part due to appellant's filing numerous motions and
premature appeals. On August 7, 2012, the trial court issued a "Judgment Entry-Decree
of Divorce" ("Decree"), which determined spousal support and addressed some of the
issues related to property division. It deferred, however, and set for subsequent hearing,
other issues related to division of property, including division of appellant's State
Teacher's Retirement System ("STRS") pension, household goods, and the business,
Lindsey Custom Stucco and Cultured Stone LLC ("the business"). Subsequent to the
Decree, appellant filed numerous motions. Appellee also filed numerous motions,
including: (1) on December 11, 2012, a motion for contempt against appellant alleging,
No. 13AP-404 2

she violated the Decree as it related to the court's efforts to divide the STRS pension; (2)
on December 11, 2012, a motion for partial relief from judgment of the Decree requesting
relief from the court's deferral of property division as it related to the business; (3) on
February 13, 2013, a motion for contempt against appellant, alleging she violated the
Decree by failing to reimburse appellant for attorney fees in the amount of $7,698 within
the 180-day period set by the court; (4) on February 25, 2013, a motion for an award of
attorney fees and costs in accordance with Civ.R. 11 and R.C. 2323.51; and (5) on
March 22, 2013, a motion that appellant be designated a vexatious litigator in accordance
with R.C. 2323.52. On April 9, 2013, the trial court held a hearing on these motions, as
well as other motions filed by appellant. Appellee and his counsel were present; appellant
was not present.
{¶ 2} On April 18, 2013, the trial court filed a judgment entry and order in which
it ruled upon the aforementioned motions of appellees, as follows: (1) the December 11,
2012 motion for contempt was not properly docketed but will come on for hearing the
same time as the December 11, 2012 motion for partial relief from judgment; (2) the
December 11, 2012 motion for partial relief from judgment is granted in part, and appellee
is ordered to schedule a hearing on the issue of the value of the business, at which time
the court will consider the evidence so as to issue a distributive order (it does not appear
from the docket that, as of May 15, 2013, when appellant filed her notice of appeal, that
such hearing had been scheduled or heard); (3) the February 13, 2013 motion for
contempt is granted, and appellant may purge herself of contempt by paying appellee
$7,698, plus an additional $500 in attorney fees within 60 days (the court did not,
however, impose any sanction for failure to purge except to generally caution, in the final
paragraph of the order, that continued disregard of the valid orders of the court "will very
likely result in a period of incarceration"); (4) the February 25, 2013 motion for an award
of attorney fees and costs is granted, and the court awards $500 for attorney fees as the
documents filed by appellant in July 2012 were in violation of Civ.R. 11 and R.C. 2323.51
as they served no legitimate purpose, were intended to harass and maliciously injure both
appellee and appellee's counsel's reputations, and were not supported by law or fact; and
(5) the March 22, 2013 motion that appellant be designated a vexatious litigator is
granted, and an additional $500 in attorney fees is awarded.
No. 13AP-404 3

{¶ 3} On May 15, 2013, appellant timely filed a notice of appeal informing the
court that she is appealing the April 18, 2013 judgment entry. She asserts the following
nine assignments of error:
I. THE TRIAL COURT ABUSED ITS DISCRETION AND
COMMITTED REVERSIBLE ERROR BY ENFORCING AND
EXECUTING ITS JUDGMENT ENTRY-DECREE OF DI-
VORCE, FILED AUGUST 7, 2012, AS A FINAL APPEALABLE
ORDER CONTRARY TO THE SUPREME COURT OF OHIO'S
RULING IN WALKER V. DOUP.

II. THE TRIAL COURT ABUSED ITS DISCRETION AND
COMMITTED REVERSIBLE ERROR BY CONDUCTING A
HEARING ON APRIL 9, 2013 WHEN APPELLANT HAD
NOT RECEIVED PROPER SERVICE NOR PROPER NOTICE;
AND BY FAILING TO CONDUCT SEPARATE HEARINGS
FOR CONTEMPT OF COURT AND VEXATIOUS LITIGATOR
PROCEEDINGS.

III. THE TRIAL COURT ABUSED ITS DISCRETION AND
COMMITTED REVERSIBLE ERROR WHEN IT FAILED TO
PERFORM ITS STATUTORY AND OBLIGATORY DUTY TO
REQUIRE APPELLEE TO FULLY AND COMPLETELY
DISCLOSE APPELLEE'S MARITAL, SEPARATE PROPERTY,
AND OTHER ASSETS, DEBTS, INCOMES AND EXPENSES;
AND PURSUANT TO R.C. 3105.171(E)(3).

IV. THE TRIAL COURT ABUSED ITS DISCRETION AND
COMMITTED REVERSIBLE ERROR WHEN IT FAILED TO
PERFORM ITS STATUTORY AND OBLIGATORY DUTY TO
ENSURE THE EQUAL DIVISION OF MARITAL PROPERTY;
AND PURSUANT TO R.C. 3105.171(C)(1).

V. THE TRIAL COURT ABUSED ITS DISCRETION AND
COMMITTED REVERSIBLE ERROR WHEN IT FAILED TO
PERFORM ITS STATUTORY AND OBLIGATORY DUTY TO
ENSURE THAT APPELLANT'S SEPARATE PROPERTY WAS
RETURNED TO APPELLANT; AND PURSUANT TO R.C.
3105.171(4)(D).

VI. THE TRIAL COURT ABUSED ITS DISCRETION AND
COMMITTED REVERSIBLE ERROR WHEN IT FAILED TO
PERFORM ITS STATUTORY AND OBLIGATORY DUTY TO
DETERMINE WHETHER APPELLEE ENGAGED IN
No. 13AP-404 4

FINANCIAL MISCONDUCT; AND PURSUANT TO R.C.
3105.171(E)(4) AND (E)(5).

VII. THE TRIAL COURT ABUSED ITS DISCRETION AND
COMMITTED REVERSIBLE ERROR WHEN IT FAILED TO
PERFORM ITS STATUTORY AND OBLIGATORY DUTY TO
AWARD APPELLANT A DISTRIBUTIVE AWARD AND
SPOUSAL SUPPORT; AND PURSUANT TO R.C.
3105.171(E)(2), (E)(4), (E)(5).

VIII. THE TRIAL COURT ERRED TO THE PREJUDICE OF
APPELLANT, ABUSED ITS DISCRETION, AND RENDERED
DECISIONS AGAINST THE MANIFEST WEIGHT OF
EVIDENCE IN DETERMINING THE PARTIES' EQUITABLE
DIVISION OF MARITAL AND SEPARATE PROPERTY,
DISTRIBUTIVE AWARD, AND SPOUSAL SUPPORT.

IX. THE TRIAL COURT ERRED TO THE PREJUDICE OF
APPELLANT, ABUSED ITS DISCRETION, AND RENDERED
AWARDS OF APPELLEE'S ATTORNEY'S FEES WHICH ARE
UNWARRANTED BASED ON APPELLEE'S AND
COUNSEL'S CONTUMACIOUS CONDUCT, FAILURE TO
PROSECUTE, AND FINANCIAL MISCONDUCT.

{¶ 4} In her first assignment of error, appellant alleges that the trial court erred in
designating the Decree as a final, appealable order. She argues that the judgment entry
does not become final and appealable until the findings of facts and conclusions of law are
filed by the trial court. On September 20, 2012, this court, in a journal entry of dismissal,
determined that appellant's appeal of the Decree was premature, as appellant's motion for
new trial was still pending in the trial court. We also note that neither the trial court, nor
this court, has granted a stay of the Decree. Furthermore, to the extent the first
assignment of error asserts the trial court erred on January 14, 2013 in denying
appellant's August 15, 2012 motion for findings of fact and conclusions of law, we decline
to address the merits of such an argument. The January 14, 2013 entry is not before this
court, as appellant only identified the April 18, 2013 entry in her notice of appeal.
{¶ 5} Accordingly, we find appellant's first assignment of error to be moot.
{¶ 6} We also decline to address the merits of appellant's third, fourth, fifth, sixth,
seventh, and eighth assignments of error as they assert that the trial court erred in
No. 13AP-404 5

deciding the Decree. The Decree is not before this court, as appellant only identified the
April 18, 2013 entry in her notice of appeal.
{¶ 7} Accordingly, we overrule appellant's third, fourth, fifth, sixth, seventh, and
eighth assignments of error.
{¶ 8} Appellant argues in her ninth assignment of error that the trial court erred
in awarding attorney fees related to appellee's motions for contempt and vexatious
litigator status because it held a hearing on appellee's motions without providing proper
notice to appellant of the hearing and without holding a separate hearing on the motion
for vexatious litigator status. Whether the trial court erred as alleged in the ninth
assignment of error turns on whether the trial court erred as alleged in the second
assignment of error. Since we find that the trial court erred as alleged in the second
assignment of error, we therefore find that the trial court erred as alleged in the ninth
assignment of error.
{¶ 9} In her second assignment of error, appellant first alleges that she was not
properly served notice of the April 9, 2013 hearing. She alleges that the court's attempts
to serve her via certified mail failed. She also notes that she was served by ordinary mail
but only shortly before the April 9, 2013 hearing. Appellee argues that appellant was
served as evidenced by her acknowledgment of the hearing and show-cause order in a
motion she filed in this court on March 27, 2013 in a separate appeal, case No. 12AP-1068.
He argues that appellant chose not to appear at the April 9, 2013 hearing and, thus, if
there was error, it was invited.
{¶ 10} R.C. 2705.03 requires that a contempt charge in writing "shall be filed with
the clerk of the court, an entry thereof made upon the journal, and an opportunity given
to the accused to be heard, by himself or counsel." R.C. 2705.05(A) requires that, "[i]n all
contempt proceedings, the court shall conduct a hearing. At the hearing, the court shall
investigate the charge and hear any answer or testimony that the accused makes or offers
and shall determine whether the accused is guilty of the contempt charge." "It is axiomatic
that an alleged contemnor must be afforded due process in a civil contempt proceeding."
(Citations omitted.) Poptic v. Poptic, 12th Dist. No. CA2005-06-145, 2006-Ohio-2713.
Due process requirements, together with R.C. 2705.03, require that an individual accused
of indirect contempt be given " 'adequate notice, time to prepare any defense and an
No. 13AP-404 6

opportunity to be heard.' " Id., citing State ex rel. Miller v. Waller, 10th Dist. No. 04AP-
574, 2004-Ohio-6612, ¶ 7, quoting Rose v. Rose, 10th Dist. No. 96APF09-1150; see
also Culberson v. Culberson, 60 Ohio App.2d 304, 306 (1st Dist.1978).
{¶ 11} We have carefully reviewed the record before us and do not find that
appellant was served with adequate notice or given time to prepare a defense. The record
reveals numerous failed attempts at service via certified mail. It also reveals efforts by
appellee to serve appellant via process server on March 26, 2013. This request, however,
identifies numerous documents to be served including: motion and exhibits filed
March 22, 2013, motion for attorney fees filed February 25, 2013, motion for Civ.R. 60(B)
relief filed December 11, 2012, motion for appointment of receiver filed December 11,
2012, summons and order to appear filed March 8, 2013, notice of hearing filed March 7,
2013, and a motion for contempt filed December 11, 2012. The motion for contempt filed
February 13, 2013 is not identified. Furthermore, the summons and order to appear filed
March 8, 2013 orders appellant to appear "to show cause why [she] should not be found
in contempt for failure to obey a prior court order for support, visitation, or any other
matter alleged herein." There is no attachment or other indication that the allegations of
contempt filed February 13, 2013 were "alleged herein." We find, therefore, that the trial
court erred in not properly serving appellant notice of the April 9, 2013 hearing on
appellee's motion for contempt filed February 13, 2013.
{¶ 12} In her second assignment of error, appellant also alleges that the trial court
erred in deciding appellee's motion for vexatious litigator status at the same April 9, 2013
hearing when the motion for contempt was heard. Preliminarily, we address appellant's
motion "For Leave and Petition for Definite Statement, Instanter, Whether the Lower
Court's Judgment Entry and Order, filed April 18, 2013, is a Final Appealable Order" filed
in this court on September 30, 2013. This court has recently determined that an order
declaring an individual to be a vexatious litigator is a final order under R.C.
2505.02(B)(4). R.C. 2505.02(A)(3) defines a "provisional remedy" as a "proceeding
ancillary to an action, including, but not limited to, a proceeding for a preliminary
injunction, attachment, discovery of privileged matter, [or] suppression of evidence."
Furthermore, because a vexatious litigator order concerns a provisional remedy, Civ.R.
54(B) is inapplicable. Whipps v. Ryan, 10th Dist. No. 12AP-685, 2013-Ohio-4382.
No. 13AP-404 7

Accordingly, in this regard, the April 18, 2013 entry is a final, appealable order and,
therefore, appellant's motion is moot.
{¶ 13} On March 22, 2013, appellee filed a motion asking the court to declare
appellant a vexatious litigator. R.C. 2323.52, the vexatious litigator statute, provides in
pertinent part, as follows:
(B) A person * * * who has defended against habitual and
persistent vexatious conduct in the court of claims or in a
court of appeals, court of common pleas, municipal court, or
county court may commence a civil action in a court of
common pleas with jurisdiction over the person who allegedly
engaged in the habitual and persistent vexatious conduct to
have that person declared a vexatious litigator. The person
* * * may commence this civil action while the civil action or
actions in which the habitual and persistent vexatious conduct
occurred are still pending or within one year after the
termination of the civil action or actions in which the habitual
and persistent vexatious conduct occurred.

(C) A civil action to have a person declared a vexatious
litigator shall proceed as any other civil action, and the Ohio
Rules of Civil Procedure apply to the action.

(Emphasis added.)
{¶ 14} In Kinstle v. Union Cty. Sheriff's Office, 3d Dist. No. 14-07-16, 2007-Ohio-
6024, ¶ 10, the court held that R.C. 2323.52 "unambiguously requires the commencement
of a 'civil action,' and * * * a motion is not the equivalent of a complaint." "[F]iling
a motion in a pending cause of action is not the equivalent of 'commencing a civil action'
as intended by both R.C. 2323.52 and Civ.R. 3." (Emphasis sic.) Id. at ¶ 9. We followed
this precedent in Whipps by finding that a trial court erred in granting a motion to declare
defendant Ryan a vexatious litigator. We noted in our decision that "R.C.
2323.52 unambiguously requires a party to commence a civil action, by filing a complaint,
to have the trial court declare a person a vexatious litigator * * * [and] [t]he filing of a
motion in a pending case does not satisfy the requirements of R.C. 2323.52." Id. at ¶ 22.
{¶ 15} For these same reasons, we find that the trial court erred in considering and
granting appellee's motion that appellant be designated a vexatious litigator, which was
filed and heard in the context of this pending case.
No. 13AP-404 8

{¶ 16} Accordingly, we sustain appellant's second assignment of error both as it
relates to the trial court's granting of the motion for contempt filed February 13, 2013, and
the motion that appellant be designated a vexatious litigator filed March 22, 2013.
{¶ 17} As noted above, because we find the trial court erred as alleged in the
second assignment of error, we likewise find the trial court erred as alleged in the ninth
assignment of error in awarding attorney fees for contempt and for being a vexatious
litigator.
{¶ 18} Accordingly, we sustain appellant's ninth assignment of error.
{¶ 19} For the foregoing reasons, we find appellant's first assignment of error to be
moot. We sustain the second and ninth assignments of error and overrule appellant's
third, fourth, fifth, sixth, seventh, and eighth assignments of error. The judgment of the
Franklin County Court of Common Pleas, Division of Domestic Relations, is affirmed in
part and reversed in part. The April 18, 2013 judgment entry and order is vacated in part
to the extent it granted appellee's February 13, 2013 motion for contempt, designated
appellant a vexatious litigator, and awarded attorney fees for the same. This case is
remanded to that court with instructions to: (1) serve appellant with proper notice of a
hearing to be held on appellee's February 13, 2013 motion for contempt; (2) hold a
hearing on the February 13, 2013 motion for contempt; and (3) dismiss appellee's
March 22, 2013 motion that appellant be designated a vexatious litigator.
Judgment affirmed in part, reversed in part,
and cause remanded with instructions.
.
TYACK and T. BRYANT, JJ.

T. BRYANT, J., retired, of the Third Appellate District,
assigned to active duty under the authority of the Ohio
Constitution, Article IV, Section 6(C).
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