Anderson v. Anderson

[Cite as Anderson v. Anderson, 2017-Ohio-2827.]

IN THE COURT OF APPEALS OF OHIO
FOURTH APPELLATE DISTRICT
ROSS COUNTY

MELISSA ANDERSON, :
: Case No. 16CA3571
Plaintiff-Appellant, :
:
vs. : DECISION AND JUDGMENT
: ENTRY
RONDAL ANDERSON, JR., :
:
Defendant-Appellee. : Released: 05/11/17
_____________________________________________________________
APPEARANCES:

Stephen S. Gussler, Margulis, Gussler & Hall, Circleville, Ohio, for
Appellant.

Stephen K. Sesser, Benson & Sesser, Chillicothe, Ohio, for Appellee.1
_____________________________________________________________

McFarland, J.

{¶1} Melissa Anderson appeals the judgment entry decree of divorce

journalized August 19, 2016 in the Ross County Court of Common Pleas.

Upon review, we find all the issues between the parties to the divorce were

adjudicated on June 23, 2016, and prior to Appellee Rondal J. Anderson,

Jr.’s death on July 31, 2016. Thus, the divorce action did not abate upon the

date of his death. Accordingly, the trial court retained jurisdiction to enter

the judgment entry decree of divorce on August 19, 2016. As such, we find
1
In the underlying proceedings, counsel for Appellee advised that Appellant had failed to join Rondal J.
Anderson Jr.’s estate as a party, and that counsel was entering a limited appearance on behalf of the
Appellee.
Ross App. No. 16CA3571 2

no merit to Appellant’s sole assignment of error and we affirm the judgment

of the trial court.

FACTS

{¶2} The record shows that Appellant and Appellee were married on

October 31, 2008 and no children were born during the marriage. On July

30, 2015, Appellant filed a complaint for divorce alleging incompatibility,

gross neglect of duty, and extreme cruelty, along with a motion for mutual

restraining order. Appellee filed an answer to the complaint, admitting the

parties were incompatible.

{¶3} On December 4, 2015, the trial court issued an order submitting

the case to the magistrate to hear any disputed issues. On June 20, 2016,

Appellant filed a motion for leave to file an amended complaint instanter,

asserting additional grounds for divorce. On June 23, 2016, the matter came

on for a final uncontested divorce hearing before the magistrate.

{¶4} At the hearing, counsel for the parties indicated Appellant and

Appellee had reached an agreement to resolve all the disputed issues. The

agreement was read into the record. Appellant and Appellee were duly

sworn. On the record, both acknowledged their understanding of, and

agreement with, the terms of the agreement for division of their marital

property and acquired marital debt.
 {¶5} The magistrate found the parties were incompatible and rendered

an oral decision granting Appellant’s complaint for divorce and approving

and adopting the parties’ agreement. Counsel for Appellee was charged

with preparing the written magistrate’s decision confirming the agreement.

Appellee died unexpectedly on July 31, 2016.

{¶6} On August 19, 2016, the magistrate’s decision, which made no

mention of the decedent’s death, was filed at 8:42 a.m. and contained the

signatures of both attorneys for the parties. At 9:04 a.m. on that same date,

the judgment entry decree of divorce, which recited the additional fact of

Appellee’s death, was filed. It also contained the signatures of counsel for

both parties and a handwritten date of “8/15/16.”

{¶7} On August 26, 2016, counsel for Appellant filed a motion to

vacate the judgment entry decree of divorce, asserting that the trial court did

not independently review the magistrate’s decision until after the decedent’s

death and thus, no judgment was rendered while Appellee was alive.

Appellee’s counsel filed a memorandum in opposition to the motion to

vacate.

{¶8} Appellant filed a notice of appeal in this court on September 16,

2016. On September 29, 2016, the trial court dismissed the motion to
Ross App. No. 16CA3571 4

vacate, finding that it lost jurisdiction after the appeal had been perfected.

Where pertinent, additional facts are set forth below.

ASSIGNMENT OF ERROR

“I. TRIAL COURT ERRED IN APPROVING AND
ADOPTING THE MAGISTRATE’S DECISION AND
ISSUING JUDGMENT ENTRY DECREE OF DIVORCE
NINETEEN (19) DAYS AFTER THE DEATH OF
DEFENDANT RONDAL J. ANDERSON, JR.”

A. STANDARD OF REVIEW

{¶9} In accordance with Civ.R. 53, the trial court reviews a

magistrate's decision de novo. In re Estate of Humphrey, 10th Dist. Franklin

No. 14AP-233, 2014-Ohio-5859, ¶ 15, citing Mayle v. Ohio Dept. of Rehab.

& Corr., 10th Dist. Franklin No. 09AP–541, 2010-Ohio-2774, ¶ 15. In

reviewing objections to a magistrate's decision, the trial court must make an

independent review of the matters objected to in order “to ascertain

[whether] the magistrate has properly determined the factual issues and

appropriately applied the law.” Civ.R. 53(D)(4)(d). An appellate court, by

contrast, applies an abuse-of-discretion standard when reviewing a trial

court's adoption of a magistrate's decision. Humphrey, supra, at ¶ 15. An

abuse of discretion connotes more than an error of law or judgment; it

implies that the trial court's attitude is unreasonable, arbitrary or

unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450
Ross App. No. 16CA3571 5

N.E.2d 1140 (1983). Claims of error by the trial court must be based on the

trial court's actions, rather than on the magistrate's findings. Mayle at ¶ 15.

Therefore, we may reverse the trial court's adoption of the magistrate's

decision only if the trial court acted unreasonably, arbitrarily or

unconscionably. Id.

{¶10} However, this case presents a jurisdictional question, in that

Appellant argues that the trial court lacked jurisdiction to review and

approve the magistrate’s decision after Appellee’s death. “The existence of

the trial court's subject-matter jurisdiction is a question of law that we

review de novo.” Martindale v. Martindale, 4th Dist. Athens No. 14CA30,

2016-Ohio-524, ¶ 27, quoting Barber v. Williamson, 4th Dist. Ross No.

11CA3265, 2012-Ohio-4925, ¶ 12, quoting Yazdani–Isfehani v. Yazdani–

Isfehani, 170 Ohio App.3d 1, 2006-Ohio-7105, 865 N.E.2d 924, ¶ 20 (4th

Dist). As such, we proceed to determine whether the trial court’s exercise of

jurisdiction, journalizing the judgment entry decree of divorce after

Appellee’s death, was legally correct.
Ross App. No. 16CA3571 6

B. LEGAL ANALYSIS

{¶11} The parties’ briefs contain additional disputed facts which are

not entirely pertinent to this appeal.2 Appellant asserts that she decided to

appeal the trial court’s decision after she learned that his death certificate,

issued prior to the judgment entry decree of divorce, listed him as

“divorced.” Both parties’ briefs acknowledge a lifetime annuity was payable

to Appellee’s spouse if he was married at the time of his death.3

{¶12} Further, Appellee’s brief advises that on August 1, 2016, the

parties’ counsel met with the trial court to discuss how to proceed upon

Appellee’s death. At that time, the trial court indicated it planned to grant

the divorce and adopt and approve the parties’ agreement. Counsel for

Appellee further advises that he submitted a revised judgment entry decree

of divorce which acknowledged the fact of Appellee’s death, and that

Appellant’s counsel consented to and approved the magistrate’s decision and

revised judgment entry decree of divorce. While we have no reason to doubt

counsel’s representation, the record does not contain a hearing notice for the

2
Appellant advises that Appellee had a dependency on prescription drugs, unknown to her at the time they
married, which developed into full-blown addiction and caused financial problems. Appellant infers that
Appellee removed a large amount of his 401(k) retirement plan as a result of his drug issues. Appellant
also asserts that the parties separated in August 2013, but she had always hoped that Appellee would defeat
his drug problems and they would reconcile.
3
Appellee’s counsel asserts that greed is the basis for Appellant’s appeal.
Ross App. No. 16CA3571 7

date of August 1, 2016. As this information is a matter outside of the record,

we cannot consider it.4

{¶13} Appellant contends that the trial court lacked jurisdiction to

review and approve the magistrate’s decision after Appellee’s death because

no judge ever heard the evidence in this matter or reached a decision while

Appellee was alive. Notwithstanding that the case was heard by a magistrate

and the parties waived their right to object, Appellant argues the trial judge

still had a duty to review the magistrate’s decision and issue his own

judgment. Appellant concludes the case was not decided at the time of the

decedent’s death.

{¶14} Appellee, however, responds that the appeal does not present

any novel issues as the matter of the trial court’s retention of jurisdiction to

enter judgment following the death of a party to a divorce is well-settled.

Appellee directs our attention to Grashel v. Grashel, 4th Dist. Scioto No.

02CA2826, 2002-Ohio-4612. Appellee points out: (1) there were no issues

in dispute at the time of the final hearing before the magistrate; (2) the

agreement was read into the record; (3) the parties testified under oath that

they understood the terms of the agreement and believed them to be fair and

4
“[A] reviewing court should be limited to what transpired in the trial court as reflected by the record made
of the proceedings.” Clayton v. Walker, 9th Dist. Summit No. 26538, 2013-Ohio-2318, ¶ 11, quoting State
v. Ishmail, 54 Ohio St.2d 402, 406, 377 N.E. 2d 500 (1978). “Matters outside the record cannot be used to
demonstrate error, nor can they be considered in defense of the judgment.” In re J.C. 186 Ohio App.3d 243,
2010-Ohio-637, ¶ 14 (9th Dist.) at ¶ 15.
Ross App. No. 16CA3571 8

equitable; and (4) an oral decision was rendered prior to the decedent’s

death. We agree with Appellee that the law in Ohio is well-settled with

regard to the trial court’s continuing jurisdiction on the abatement of an

action upon the death of a party.

{¶15} The Supreme Court of Ohio, other appellate districts, and this

Court have observed that the provisions of R.C. 2311.21 generally provide

that no action or proceeding pending in any court shall abate by the death of

a party except for actions for libel, slander, malicious prosecution, nuisance

or against a judge of a county court for misconduct of office. King v. King,

4th Dist. Adams No. 01CA719, 2002-Ohio-1060,*4. While divorce actions

are not explicitly denoted in the above statute, when one or both parties to a

divorce case dies before the final decree, the action abates (because

circumstances have achieved the primary objective sought). State ex rel.

Litty v. Leskovyansky, 77 Ohio St.3d 97, 99, 671 N.E.2d 236, 239 (1996);

Porter v. Lerch, 129 Ohio St. 47, 56, 193 N.E. 766, 770 (1934).

{¶16} However, the Supreme Court of Ohio has carved out an

exception to this general rule of abatement, and held that a divorce action is

not abated by a party's death when that death occurs after a decision is

rendered but before it is journalized. King, supra, citing State ex rel. Litty,

supra, at 99, 671 N.E.2d 236, 671 N.E.2d at 239; Caprita v. Caprita, 145
Ross App. No. 16CA3571 9

Ohio St. 5, 60 N.E.2d 483 (1945), at paragraph three of the syllabus. Under

such circumstances, the decree may be journalized by nunc pro tunc entry.

See Caprita, supra, at paragraph four of the syllabus. The Supreme Court of

Ohio reasoned that when a party to an action dies after a trial and

determination of the issues, the interests of justice require that trial courts

continue to possess jurisdiction to enter judgment nunc pro tunc. Id. at 7, 60

N.E.2d at 484, citing in part In re Estate of Jarrett, 42 Ohio St. 199 (1984),

at the syllabus. The court has the discretion to either dismiss the action or

enter a judgment nunc pro tunc. Caprita, at paragraphs four and six of the

syllabus; Miller v. Trapp, 20 Ohio App.3d 191, 485 N.E.2d 738 (1984); and

King v. King, 4th Dist. Adams No. 01CA719, 2002-Ohio-1060.

{¶17} Conversely, if the court has not yet decided any of the issues,

the action abates as a matter of law and the court lacks jurisdiction to

proceed. Gregg v. Gregg, 145 Ohio App.3d 218, 762 N.E.2d 434 (2001);

Estate of Grashel v. Grashel, 4th Dist. Scioto No. 02CA2826, 2002-Ohio-

4612; Ramminger v. Ramminger (June 11, 2001), Butler App. No. CA2000-

07-132; and Koch v. Koch (Mar. 4, 1994), Sandusky App. No. S-93-5,

overruled on other grounds, Wright v. Wright (Nov. 10, 1994), Hocking

App. No. 94CA02.
Ross App. No. 16CA3571 10

{¶18} In Grashel, supra, the husband filed a divorce action, and then

died after final hearing, but before judgment was entered. The trial court

dismissed the action, and the husband's estate appealed. This Court held that

the death of the husband following the final hearing, but before the trial

court had rendered a decision on the merits, abated the divorce action.

{¶19} The record in Grashel revealed that when Grashel died in

December 2001, his attorney filed a “motion and suggestion of death,” and

asked that a nunc pro tunc judgment of divorce be entered. In our decision,

we pointed out the pivotal issue is to determine the exact course and stage of

the proceedings at the time of the party's death. Although two evidentiary

hearings had been held and the case had been submitted for determination,

the trial court had not rendered a decision on the merits at the time of Mr.

Grashel's death.

{¶20} The trial court's judgment entry granting the motion to dismiss

expressly stated that “no decision had been made or filed, as of the date of

death, granting the divorce or dividing the property and debt.” We further

observed that the appellant could point to nothing in the record to contradict

that representation, and we found nothing to that effect upon our own

review. We agreed with the trial court's conclusion that the divorce action
Ross App. No. 16CA3571 11

abated on Mr. Grashel's death, and found no error in the trial court's decision

to dismiss the case.

{¶21} In Brooks v. Brooks, 6th Dist. Lucas No. L-02-1286, 2003-

Ohio-5177, the husband, age 66, filed for divorce from the wife, age 59, in

2001, following a 22-year marriage. The wife filed an answer and counter-

claim and the case was scheduled for trial in May, 2002. At some point, the

husband had a stroke. However, two days prior to trial, a settlement

agreement was read into the record by counsel.

{¶22} Based upon the parties' testimonies, the judge found the facts in

the complaint and counterclaim were true and granted the parties a divorce

on the grounds of incompatibility. The judge further stated that he found the

settlement agreement to be fair and reasonable and indicated that he would

sign a final judgment entry which incorporated the agreement read into the

record. The husband’s attorney was directed to prepare the proposed final

judgment entry. The husband died shortly thereafter.

{¶23} Appellant, the husband’s estate, filed a Motion for Approval of

a Proposed Judgment Order of Divorce. In August 2002, the court

dismissed the complaint for divorce relying on Miller v. Trapp, 20 Ohio

App.3d 191, 485 N.E.2d 738 (2nd Dist.1984). The estate appealed, arguing
Ross App. No. 16CA3571 12

that the trial court abused its discretion by dismissing the divorce action

because of the husband’s death.

{¶24} The appellate court noted the Brooks’ case presented an

unusual situation:

“The court was not required to adjudicate the facts because the
parties had reached an agreement which they presented to the
court. The court had orally approved the agreement and
directed one of the parties to prepare a final judgment
incorporating the settlement agreement. However, before the
final judgment could be signed, one of the parties died. The
trial court, exercising its discretion, decided to dismiss the
divorce action because, as it noted in the judgment entry, it had
concerns that the settlement agreement had not fully resolved
the issues between the parties.” Id. at ¶ 13.

{¶25} In Brooks, the parties’ dispute centered upon whether the

proposed judgment entry accurately recited the settlement agreement

approved by the court. Upon review of the oral settlement agreement and

the proposed nunc pro tunc judgment entry, the appellate court found several

discrepancies; however, the appellate court found the court did not dismiss

the action because there were discrepancies. Instead, it dismissed the case

because it reconsidered the issue of the settlement agreement and determined

that the settlement agreement had not fully resolved all of the issues between

the parties.

{¶26} The appellate court found, as a matter of law, since the

settlement agreement had been approved by the court, but not yet reduced to
Ross App. No. 16CA3571 13

a judgment entry, that the divorce action did not abate at the death of the

husband. However, in resolving the matter, the appellate court further

observed:

“The trial court stated its reason for dismissing the action was
that it believed there were issues between the parties that the
settlement agreement had not fully resolved. We find that
appellant has failed to demonstrate that the trial court's decision
was ‘unreasonable, arbitrary, or unconscionable.’ ” Id. at ¶ 16.

{¶27} In Gregg v. Gregg, 145 Ohio App.3d, 762 N.E.2d 434, (12th

Dist.2001), the abatement of an action for divorce and property division was

required as a matter of law following the husband's death, despite the

allegation that the wife attempted to murder her husband. The appellate

court, noting that application of the rule nevertheless rendered a harsh result,

pointed out that before the husband's death, no issues were adjudicated other

than an interim order of spousal support. “* * * [T]he law is clear:

abatement of the action for divorce and property division was required as a

matter of law because no adjudication had taken place.” Id. at 762 N.E.2d

437. As such, the trial court no longer had jurisdiction, and did not err and

abuse its discretion in dismissing the action for divorce.

{¶28} In King v. King, supra, this Court noted although the decedent’s

precise date of death was not clear from the record, it was clear that his

death occurred sometime during the pendency of a prior appeal (King I) and,
Ross App. No. 16CA3571 14

by that time, the trial court had adjudicated the pertinent issues. Although

the court had dismissed King I for lack of a final appealable order, the

dismissal did not change the fact that the trial court's decision had already

been made (albeit not properly journalized). Thus, the trial court possessed

jurisdiction.

{¶29} In Melosh v. Melosh, 5th Dist. Licking Nos. 14CA20,

14CA21, and 14CA30, 2014-Ohio-5029, the appellate court affirmed the

trial court’s dismissal of the divorce action and denial of motions to

substitute parties. Citing the abatement rule and exception, and the relevant

case law discussed herein, the Melosh court further noted: “A trial court's

authority to enforce in-court settlement agreements is discretionary.”

Franchini v. Franchini, 11th Dist. Geauga No. 2002–G–2467, 2003-Ohio-

6233, 2003 WL 22763520, ¶ 8. “Case law clearly provides that a trial court

has discretionary authority to enforce in-court settlement agreements or to

modify them out of equity.” Melosh, supra, quoting Hileman v. Hileman

(July 26, 1999), Stark App. Nos. 1998CA00256, 1998CA00257, 1999 WL

547934 (additional citations omitted). Ultimately, the appellate court held

that the trial court did not abuse its discretion in dismissing the action when,

although an agreement between the parties had apparently been reached and
Ross App. No. 16CA3571 15

reduced to writing, the court was later informed one of the parties refused to

sign it.

{¶30} More recently, in Kraus v. Kraus, 6th Dist. Erie No. E-15-012,

2016-Ohio-972, a plaintiff-decedent died after execution and journalization

of the divorce decree. The appellate court found that because a final decree

is unaffected by the subsequent death of a party, the decedent's death had no

impact on the then-resolved divorce action. Thus, the appellate court found

that the trial court did not err in failing to find that decedent's death abated

the underlying divorce action.

{¶31} Upon our review of the record in this case, we find

the transcript of the June 23, 2016 uncontested divorce hearing that

summarizes the key provisions for division of property and debt, was read

into the record and indeed reflects the parties’ agreement. The agreement

clarified that both Appellant and Appellee were living separate and apart,

and that both acknowledged incompatibility. Further, the parties agreed on

the record to waive the objection period.

{¶32} The transcript also reflects the parties were duly sworn and the

magistrate took brief testimony. Appellant affirmed that she considered the

agreement to be fair and equitable, and further, that she was asking the court

to make it a final court order. Appellee also testified that he agreed with the
Ross App. No. 16CA3571 16

terms read into the record, and that he believed the terms to be a fair and

equitable division of marital assets and debts. Counsel for Appellee advised

he would prepare the final entry for the court. The magistrate then stated as

follows:

“Then based upon counsel’s representations to the court and the
testimony of the parties, the court will grant the plaintiff,
Melissa Anderson, a divorce and therefore, terminate your
marriage, and the court will further approve and adopt the
agreement you’ve reached here today and which you recited
into our record regarding the division of your debts and assets.”

{¶33} Based upon the above, we find all the issues in the divorce were

adjudicated prior to Appellee’s death. Appellant’s chief argument is that no

judge independently reviewed the case before granting the divorce. It is true

the trial court has this duty. Pursuant to Civ.R. 53(D)(4)(d), a trial court

“shall undertake an independent review as to the objected matters to

ascertain that the magistrate has properly determined the factual issues and

appropriately applied the law.” Radford v. Radford, 8th Dist. Cuyahoga Nos.

96267, 92455, 2011-Ohio-6263, ¶ 13. The trial court must conduct a de

novo review of the facts and an independent analysis of the issues to reach

its own conclusions about the issues in the case. Id., citing Kapadia v.

Kapadia, 8th Dist. Cuyahoga No. 94456, 2011-Ohio-2255, ¶ 9, citing Inman

v. Inman, 101 Ohio App.3d 115, 655 N.E.2d 199 (2nd Dist.1995).
Ross App. No. 16CA3571 17

{¶34} However, Appellant points us to no evidence to support her

assertion that the trial court did not fulfill its Civ.R. 53 duty to review the

magistrate’s decision. First, we point out the rule’s language provides that

the trial court must independently review the “objected matters.” The

parties’ herein waived any objections. Nevertheless, the trial court’s

judgment entry and decree of divorce states as follows at paragraphs 2 and 3:

“The Court independently reviewed the Magistrate’s Decision
and finds that there are no errors of fact or law contained
therein. The Court, after carefully reviewing the parties’
agreement and the testimony of the parties, further finds that the
agreement of the parties is fair and equitable and that the same
should be approved.”

{¶35} In the absence of evidence to the contrary, we presume the

regularity of the trial court proceedings and presume that the trial court

independently reviewed the magistrate’s decision as stated in the judgment

entry decree of divorce. See Savage v. Savage, 4th Dist. Pike No. 15CA856,

2015-Ohio-5290, ¶ 23. There is nothing in the record to suggest that the trial

court failed to independently review the record as required or to correctly

apply the relevant law.

{¶36} In conclusion, we find the parties’ divorce action did not abate

upon the death of the Appellee. The record demonstrates that all issues were

adjudicated in that the parties reached an agreement on June 23, 2016.

While the final divorce decree was not journalized prior to Appellee’s death,
Ross App. No. 16CA3571 18

there were no unadjudicated issues. The record further demonstrates that the

trial court independently reviewed the trial court’s decision. As such, the

trial court retained jurisdiction to journalize the judgment entry decree of

divorce on August 19, 2016, and did not err and abuse its discretion in doing

so.

{¶37} As a final consideration, we note that Appellant did not join

Appellee’s estate as a party in the underlying or the appellate court

proceedings. Civ.R. 25(A)(1) provides that a motion for substitution of a

party upon the death of a party may be made by any party or by the

successors or representatives of the deceased party. Further, “[u]nless the

motion for substitution is made not later than ninety days after the death is

suggested upon the record * * * the action shall be dismissed as to the

deceased party.” Id. In this matter, while there was no formal suggestion of

death upon the record, the trial court rendered its final decision and

journalized the judgment entry decree of divorce on August 19, 2016. On

this date, the fact of Appellee’s death was at least noted in the judgment

entry decree of divorce, which was well within the 90-day period provided

by the rule. Alternatively, dismissal of the underlying action was not

necessitated on this basis.
Ross App. No. 16CA3571 19

{¶38} For the foregoing reasons, we find the trial court did not err in

approving and adopting the magistrate’s decision after the death of Appellee,

nor did it err in continuing to exercise its jurisdiction and issue the judgment

entry decree of divorce. Appellant’s sole assignment of error is without

merit and is overruled.

JUDGMENT AFFIRMED.
Ross App. No. 16CA3571 20

JUDGMENT ENTRY

It is ordered that the JUDGMENT BE AFFIRMED and costs be
assessed to Appellant.

The Court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate issue out of this Court directing
the Ross County Common Pleas Court to carry this judgment into execution.

Any stay previously granted by this Court is hereby terminated as of
the date of this entry.

A certified copy of this entry shall constitute the mandate pursuant to
Rule 27 of the Rules of Appellate Procedure.

Hoover, J.: Concurs in Judgment and Opinion.
Harsha, J.: Concurs in Judgment Only.

For the Court,

BY: ___________________________
Matthew W. McFarland

NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a final
judgment entry and the time period for further appeal commences from
the date of filing with the clerk.