[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.
Anderson v. Anderson
Combined Opinion