[Cite as Denkewalter v. Denkewalter, 2015-Ohio-3171.]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF MEDINA )
GABRIELLA MOIR C.A. No. 13CA0082-M
fka DENKEWALTER
Appellant
APPEAL FROM JUDGMENT
v. ENTERED IN THE
COURT OF COMMON PLEAS
JACK KURT DENKEWALTER COUNTY OF MEDINA, OHIO
CASE No. 04DR0638
Appellee
DECISION AND JOURNAL ENTRY
Dated: August 10, 2015
WHITMORE, Judge.
{¶1} Appellant, Gabriella Moir, fka Denkewalter, appeals an order from the Medina
County Court of Common Pleas, Domestic Relations Division. This Court affirms in part and
reverses in part.
I
{¶2} Jack and Gabriella Denkewalter divorced on March 6, 2006. At that time, they
were the parents of two minor children, one of whom is now emancipated. The divorce litigation
was contentious, and the animosity between the parties continued unabated after the marriage
ended. During the course of the proceedings, the Supreme Court of Ohio appointed Judge Carol
J. Dezso of the Summit County Court of Common Pleas to preside over the case.
{¶3} At issue in this appeal is a motion to reallocate parental rights and responsibilities
that Ms. Moir filed on June 27, 2012. In her motion, Ms. Moir argued that the shared parenting
plan should be terminated because Mr. Denkewalter had been arrested on charges of possessing
2
marijuana. A magistrate heard the matter on September 25, 2012, at which time it appears that
evidence was taken and the children were interviewed in camera. The magistrate referred the
matter to mediation, ordered the children to attend counseling with Mr. Denkewalter at his cost,
and provided that Mr. Denkewalter would have parenting time “as the children and Father
agree.” The counseling sessions were postponed during the criminal case against Mr.
Denkewalter, and on February 20, 2013, the magistrate revisited the issue. At that time, the
magistrate ordered counseling through a different service with the costs to be divided equally by
the parties. The magistrate’s order also provided 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.”
{¶4} Five months later, the magistrate issued a decision that dismissed Ms. Moir’s
motion to reallocate parental rights, noting that “[p]ursuant to a February 20, 2013, Order, either
party had an option to request a second initial hearing after attending ten family counseling
sessions * * * [and] [t]o date, neither party has requested another hearing date.” The trial court
adopted the magistrate’s decision and dismissed the pending motions on the same date, but that
order was signed by a Summit County judge other than the one appointed to hear the case. Ms.
Moir objected to the dismissal of her motion with prejudice and without notice. The trial court
sustained Ms. Moir’s objections in part, noting that she had not been provided with notice of the
impending dismissal. The trial court then dismissed Ms. Moir’s motion without prejudice,
noting that she was free to refile. The trial court also ordered Mr. Denkewalter and the children
to continue counseling “as the counselor recommends.”
3
{¶5} Ms. Moir filed this appeal. During the course of the proceedings, Mr.
Denkewalter withdrew his opposition to her appeal. Nonetheless, we must address the merits of
her assignments of error, which are rearranged for ease of disposition.
II
Jurisdiction
{¶6} As an initial matter, this Court must determine whether we have jurisdiction to
consider Ms. Moir’s appeal. This Court has jurisdiction to review judgments, decrees, and final
orders. See R.C. 2505.03. Two provisions of R.C. 2505.02(B), which defines a “final order,”
are applicable in this case. They provide that “[a]n order is a final order * * * when it is * * *
[a]n order that affects a substantial right in an action that in effect determines the action and
prevents a judgment [or] * * * affects a substantial right made in a special proceeding * * * .”
R.C. 2505.02(B)(1)/(2).
{¶7} Under R.C. 2505.02(B)(1), an order “determines the action and prevents a
judgment” when it “dispose[s] of the merits of the cause or some separate and distinct branch
thereof [leaving] nothing for the determination of the court.” VIL Laser Sys., L.L.C. v. Shiloh
Industries., Inc., 119 Ohio St.3d 354, 2008-Ohio-3920, ¶ 8, citing Miller v. First Internatl. Fid.
& Trust Bldg., Ltd., 113 Ohio St.3d 474, 2007-Ohio-2457, ¶ 6. Courts have concluded that when
a motion in a domestic case is dismissed without prejudice, the court has not made a final
determination of the rights of the parties, and there is no final appealable order for purposes of
R.C. 2505.02(B)(1). See Kopina v. Kopina, 5th Dist. Knox No. 13CA30, 2014-Ohio-287, ¶ 19-
20. Considered under R.C. 2505.02(B)(1), the trial court’s order that dismissed Ms. Moir’s
motion to terminate shared parenting without prejudice did not make a final determination of the
rights of the parties by resolving a distinct branch of the case.
4
{¶8} Our analysis, however, cannot end there. Divorce actions are special proceedings.
State ex rel. Papp v. James, 69 Ohio St.3d 373, 379 (1994). Decisions involving the care and
custody of a child implicate substantial rights of the natural parents. State ex rel. V.K.B. v. Smith,
138 Ohio St.3d 84, 2013-Ohio-5477, ¶ 16. Consequently, we must consider whether the trial
court’s order dismissing Ms. Moir’s motion without prejudice is final and appealable under R.C.
2505.02(B)(2). For purposes of that section, an order “affects” a substantial right when
appropriate relief cannot be obtained in an appeal from final judgment. Southside Community
Dev. Corp. v. Levin, 116 Ohio St.3d 1209, 2007-Ohio-6665, ¶ 7, quoting Bell v. Mt. Sinai Med.
Ctr., 67 Ohio St.3d 60, 63 (1993).
{¶9} In this case, Ms. Moir’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. Ms. Moir 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 Ms. Moir’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 special
proceeding. Compare Parish v. Potter, 9th Dist. Medina No. 07CA0078-M, 2008-Ohio-3212, ¶
4 (reviewing the merits of the dismissal without prejudice of multiple postdecree motions).
5
Assignment of Error Number One
THE COURT ABUSED ITS DISCRETION WHEN IT DISMISSED
MOTHER’S MOTION TO MODIFY PARENTAL RIGHTS AND
RESPONSIBILITIES AND MOTION FOR ATTORNEY FEES IN VIOLATION
OF CIV.R. 41(B) REGARDING NOTICE TO THE PLAINTIFF.
{¶10} Ms. Moir’s first assignment of error is that the trial court erred by dismissing her
motion for failure to prosecute without first providing notice. We agree that the trial court erred.
{¶11} Civ.R. 41 governs the dismissal of actions. With respect to failure to prosecute,
Civ.R. 41(B)(1) provides that “[w]here 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.” A dismissal under this section is an
adjudication of the merits of the dispute unless otherwise provided by the trial court. Civ.R.
41(B)(3). As this Court has recognized, the provisions of Civ.R. 41(B)(1) apply to actions and
claims, but not to postdecree motions in domestic cases. Parish at ¶ 12. In these circumstances,
a trial court may dismiss a motion for failure to prosecute, but the specific procedural
requirements of Civ.R. 41(B)(1) do not apply. Ms. Moir’s arguments regarding Civ.R. 41(B)(1)
are, therefore, misplaced.
{¶12} Nonetheless, the essential point that Ms. Moir has made is correct: the record in
this case does not indicate that there was a failure to prosecute, and the trial court erred by
construing the magistrate’s previous order in a manner that made it appear otherwise and
dismissing the motion sua sponte. After the initial hearing on Ms. Moir’s motion, the magistrate
ordered Mr. Denkewalter to attend ten counseling sessions with his sons and informed the parties
that either “may request a second initial hearing” once the counseling had been completed. The
magistrate had taken evidence on the motion, and the plain language of the magistrate’s order did
not require either party to request a second hearing as a prerequisite for a ruling on the merits.
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The docket demonstrates that both parties were vigorously engaged in the postdecree litigation.
Put simply, there is no failure to prosecute evident from the record, and the trial court erred by
dismissing Ms. Moir’s motion sua sponte on that basis.
{¶13} Ms. Moir’s first assignment of error is sustained.
Assignment of Error Number Five
THE COURT ERRED AS A MATTER OF LAW WHEN IT APPOINTED
MAGISTRATES OR ALLOWED NONAPPOINTED MAGISTRATES AND
OTHER JUDGES TO HEAR MATTERS AND ISSUE AND SIGN DECISIONS
WHEN THE OHIO SUPREME COURT HAD SPECIFICALLY ASSIGNED
JUDGE CAROL DEZSO.
{¶14} Ms. Moir’s fifth assignment of error challenges the authority of a trial court judge
other than the one appointed to preside over the case to sign orders and the ability of the assigned
judge to refer proceedings to a Summit County magistrate. Because we have reversed the trial
court’s decision dismissing Ms. Moir’s motion, this assignment of error is moot with respect to
the participation of a judge who had not been assigned to the case in that decision. With respect
to the participation of an unassigned Summit County magistrate, Ms. Moir failed to object to the
magistrate’s decision, and this argument is forfeited.
{¶15} The crux of Ms. Moir’s argument is that because the Supreme Court of Ohio
assigned Judge Carol Dezso to preside over this case, actions taken by another trial court judge
or by a magistrate are void for lack of subject matter jurisdiction. We disagree.
{¶16} In In re J.J., 111 Ohio St.3d 205, 2006-Ohio-5484, the Supreme Court of Ohio
considered whether the improper assignment of visiting judges by a magistrate was void or
merely voidable. In that case, a magistrate acted beyond the scope of his authority by
transferring a permanent custody case to a visiting judge and, subsequently, a series of
unassigned visiting judges presided over the proceedings. Id. at ¶ 4-6. Ultimately, a visiting
7
judge terminated the appellant’s parental rights and granted permanent custody of his child to the
Department of Children and Family Services. Id. at ¶ 6. The appellant never objected during the
trial court proceedings and raised the issue for the first time on appeal. Id. The Supreme Court
concluded that the errors related not to subject matter jurisdiction, but to the exercise of
jurisdiction over the case. Id. at ¶ 15. The Court noted that because such errors render a
judgment voidable, it is “the duty of a complaining party seeking review to object in the trial
court and timely preserve the error for appeal * * *.” Id. at 15. More specifically, the Court
concluded that “the magistrate’s order [of reference], although erroneous, did not divest the
juvenile court of jurisdiction” and held that “because [the appellant] failed to object at any time
during any of the proceedings, he has not properly preserved the error * * * for purposes of
appellate review.” Id. at ¶ 16.
{¶17} The Ohio Supreme Court has consistently reached a similar conclusion in other
cases. See Miller v. Nelson-Miller, 132 Ohio St.3d 381, 2012-Ohio-2845 (a magistrate’s
signature on behalf of the trial court judge who presided over the case rendered the judgment
voidable, not void); Pratts v. Hurley, 102 Ohio St.3d 81, 2004-Ohio-1980 (failure to convene a
three-judge panel to accept a guilty plea in a case involving a death penalty specification did not
deprive the single trial court judge who presided of subject matter jurisdiction); State v. Thomas,
97 Ohio St.3d 309, 2002-Ohio-6624, ¶ 58 (the improper referral of an evidentiary matter in a
death penalty case to a visiting judge “did not go to the jurisdiction of the court or render the
judgment void.”); Ex Parte Strang, 21 Ohio St. 610 (1871), paragraph one of the syllabus (“[t]he
acts of an officer de facto, when questioned collaterally, are as binding as those of an officer de
jure.”)
8
{¶18} This Court has grave concerns about the procedures that were employed in this
case. Nonetheless, any possible errors in the assignment of other judicial personnel would render
the judgment voidable, not void. “Under Civ.R. 53(D)(3)(b)(iv), a party forfeits all but plain
error with respect to the appeal of any finding of fact or legal conclusion to which no objection is
made in the trial court.” Lakota v. Lakota, 9th Dist. Medina No. 10CA0122-M, 2012-Ohio-
2555, ¶ 9. Ms. Moir did not object to the magistrate’s decision in this respect, so she has
forfeited all but plain error, which she has not argued in this Court. See Hendy v. Wright, 9th
Dist. Summit No. 26422, 2013-Ohio-5786, ¶ 14. Ms. Moir’s fifth assignment of error is
overruled.
Assignment of Error Number Two
THE TRIAL COURT ERRED AS A MATTER OF LAW WHEN IT ORDERED
PSYCHOLOGICAL COUNSELING FOR THE MINOR CHILDREN AFTER
THE COURT HAD DISMISSED ALL MOTIONS.
Assignment of Error Number Three
THE COURT ABUSED ITS DISCRETION WHEN IT ASSUMED
JURISDICTION WHERE SERVICE WAS DEFECTIVE.
Assignment of Error Number Four
THE COURT ABUSED ITS DISCRETION WHEN IT ORDERED
PSYCHOLOGICAL COUNSELING WHERE NO HEARING WAS HELD TO
DETERMINE THE CHILDREN’S BEST INTERESTS.
{¶19} Ms. Moir’s second, third, and fourth assignments of error all challenge aspects of
the trial court’s decision that flowed from its decision to dismiss her motion for reallocation of
parental rights. Having sustained Ms. Moir’s first assignment of error, consideration of her
second, third, and fourth assignments of error is premature.
III
9
{¶20} Ms. Moir’s first assignment of error is sustained. Her fifth assignment of error is
overruled. Her second, third, and fourth assignments of error are not ripe for decision. The
judgment of the Medina County Court of Common Pleas, Domestic Relations Division, is
affirmed in part and reversed in part, and the matter is remanded for proceedings consistent with
this opinion.
Judgment affirmed in part,
reversed in part,
and cause remanded.
There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common
Pleas, County of Medina, State of Ohio, to carry this judgment into execution. A certified copy
of this journal entry shall constitute the mandate, pursuant to App.R. 27.
Immediately upon the filing hereof, this document shall constitute the journal entry of
judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the
period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is
instructed to mail a notice of entry of this judgment to the parties and to make a notation of the
mailing in the docket, pursuant to App.R. 30.
Costs taxed equally to both parties.
BETH WHITMORE
FOR THE COURT
HENSAL, P. J.
CARR, J.
CONCUR.
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APPEARANCES:
CHERYL A. LUKACS, Attorney at Law, for Appellant.
J. KURT DENKEWALTER, pro se, Appellee.