Lucas v. Byers

[Cite as Lucas v. Byers, 2021-Ohio-2467.]

IN THE COURT OF APPEALS OF OHIO
ELEVENTH APPELLATE DISTRICT
LAKE COUNTY

JASON C. LUCAS, CASE NO. 2020-L-122

Plaintiff-Appellee,
Juvenile Appeal from the
-v- Court of Common Pleas,
Juvenile Division
LINDSAY N. BYERS,

Defendant-Appellant. Trial Court No. 2016 CV 00054

OPINION

Decided: July 19, 2021
Judgment: Affirmed

Kenneth J. Cahill, Dworken & Bernstein Co., LPA, 60 South Park Place, Painesville,
OH 44077 (For Plaintiff-Appellee).

Joseph G. Stafford and Nicole A. Cruz, Stafford Law Co., LPA, 55 Erieview Plaza, 5th
Floor, Cleveland, OH 44114 (For Defendant-Appellant).

Cory R. Hinton, Hanahan & Hinton, LLC, 8570 Mentor Avenue, Mentor, OH 44060
(Guardian ad litem).

CYNTHIA WESTCOTT RICE, J.

{¶1} Appellant, Lindsay N. Byers (“mother”), appeals from the nunc pro tunc

judgment of the Lake County Court of Common Pleas, Juvenile Division, entered to

apparently clarify a previous final judgment relating to allocation of parental rights and

responsibilities of the parties’ minor child, D.L., which included various conditions mother
was required to meet before she could commence unsupervised parenting time. We

affirm.

{¶2} In January 2016, father filed a complaint requesting allocation of parental

rights and responsibilities. The matter proceeded to a hearing which resulted in a January

18, 2017, order naming mother the residential parent for school purposes. On May 11,

2018, father moved the trial court to designate him the sole residential parent and legal

custodian of the minor child. The parties filed voluminous motions subsequent to father’s

May 2018 filing. Ultimately, on December 7, 2018, father filed an ex parte motion for

immediate temporary sole residential placement and legal custody. A pretrial conference

was held on December 12, 2018, at which the parties and the guardian ad litem (“GAL”)

indicated they had reached an agreement regarding custody and an agreed judgment

entry was subsequently filed.

{¶3} After mother’s counsel had withdrawn, new counsel filed a motion to vacate

the previous agreed entry, which was granted on March 19, 2019. The matter then

proceeded to a 13-day bench trial on, inter alia, father’s May 11, 2018 motion. Following

trial, on December 31, 2019, the trial court issued an order which found the circumstances

had changed since the initial allocation of parental rights; the court additionally concluded

D.L.’s best interests would be served by designating father the sole residential parent and

legal custodian. The court also ordered mother to have supervised visitation with D.L.

Mother appealed and, on January 29, 2021, in Lucas v. Byers, 11th Dist. Lake Nos. 2020-

L-010, 2020-L-049, and 2020-L-050, 2021-Ohio-246 (“Byers I”), this court affirmed the

judgments of the trial court.

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 {¶4} On September 22, 2020, mother filed a motion to show cause regarding the

parenting schedule. She argued that father has failed to comply with the December 31,

2019 order, which stated, as of August 27, 2020, she shall have parenting time pursuant

to the Lake County Ohio Juvenile Rule V (which set forth general rules for unsupervised

visitation). She claimed father has deprived her of this time, in violation of the order. The

trial court held the matter in abeyance. Later, on November 18, 2020, father filed a

combined motion to show cause and “modify” the December 2020 judgment to reflect the

court’s actual intention; namely, that, to the extent mother has failed to meet all conditions

precedent set forth in the order, i.e., participate in an eight-week intensive outpatient

program, as recommended by Dr. Afsarifard; engage a parenting coordinator, Attorney

Ann D’Amico; engage in ongoing joint counseling with father through Dr. Steven

Neuhaus, she was not entitled to Rule V parenting. According to father, mother has failed

to meet any of these conditions; and, father alleged, he and mother commenced the joint-

parenting therapy, but did not complete the same owing only to mother’s noncompliance.

{¶5} On November 24, 2020, while the appeal of the December 2019 judgment

was still pending, the trial court issued a nunc pro tunc entry with the following change:

“If the foregoing conditions are complete as of August 27, 2020, Mother shall have

parenting time pursuant to Lake County Ohio Juvenile Rule V.” (Emphasis sic.) The

“foregoing conditions” referred to the above-referenced orders to the parties. It is from

this judgment that the instant appeal is premised.

{¶6} After the trial court issued the November 2020 order, mother filed an original

action in prohibition with this court. Mother requested this court to issue an order

preventing the trial court from enforcing the November 2020 nunc pro tunc entry, arguing

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the trial judge did not have jurisdiction to modify the December 31, 2019 entry while the

appeal of that original judgment was pending with this court. The trial judge filed a motion

to dismiss the appeal, pursuant to Civ.R. 12(B)(6).

{¶7} On April 19, 2021, this court granted the motion, concluding:

{¶8} Judge Lawson, as the judge of the court of common pleas’ juvenile
division, generally has subject matter jurisdiction over an action for
parental rights and responsibilities. Further, once an appeal is
perfected, a trial court is not divested of all jurisdiction - the trial court
retains jurisdiction over issues not inconsistent with the appellate
court’s jurisdiction and to act in aid of the appeal. In re S.J., 106 Ohio
St.3d 11, 2005-Ohio-3215, ¶9, citing State ex rel. Special
Prosecutors v. Judges, Court of Common Pleas, 55 Ohio St.2d 94,
97 (1978) and Yee v. Erie Cty. Sheriff's Dept., 51 Ohio St.3d 43, 44
(1990). Thus, Judge Lawson’s authority to issue and enforce the
nunc pro tunc entry depended on the specific facts before her at the
time, rendering any jurisdictional defect neither patent nor
unambiguous.

{¶9} Because Judge Lawson had jurisdiction to determine her own
jurisdiction, Mother has an adequate remedy by way of a direct
appeal, whereby she may challenge the nunc pro tunc entry as an
act inconsistent with this court’s jurisdiction while the previous appeal
was pending, a violation of Civ.R. 60(A), or otherwise. State ex rel.
L.N.B. v. Lawson, 11th Dist. Lake No. 2020-L-121, 2021-Ohio-1365,
¶10-11 (“Byers II”).

{¶10} Mother’s appeal of the November 24, 2020 judgment, now before this court,

assigns two errors. Her first assignment of error states:

{¶11} “The trial court erred as a matter of law and abused its discretion by sua

sponte modifying the December 31, 2019 judgment entry during the pendency of the

appellant’s appeal.”

{¶12} Mother asserts the trial court lacked jurisdiction to issue the November 24,

2020 nunc pro tunc judgment entry while the previous appeal was pending. She

maintains the trial court was divested of jurisdiction to act because the entry interfered

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with this court’s ability to review, affirm, reverse, or modify the appealed order. She

argues that her prior appeal specifically challenged the trial court’s determination of

custody and parenting time with the parties’ minor child. Thus, mother concludes, the

trial court’s nunc pro tunc entry interfered with this court’s jurisdiction and therefore was

void ab initio. We do not agree.

{¶13} “The continuing jurisdiction of the juvenile court is invoked by motions filed

in the original proceeding.” Coleman v. Campbell, 11th Dist. Geauga No. 2001-G-2401,

2002-Ohio-3841, ¶9 citing Juv.R. 35(A). “A court that attains jurisdiction over and enters

orders concerning the custody and support of children retains continuing and exclusive

jurisdiction over such matters.” Coleman, supra., citing Hardesty v. Hardesty, 16 Ohio

App.3d 56, 58 (10th Dist.1984); see, also, Singer v. Dickinson, 63 Ohio St.3d 408, 413

(1992) (“It has long been recognized in Ohio that a [juvenile] court retains

continuing jurisdiction over its orders concerning the custody, care, and support of

children * * *.”) In light of these points, and the procedural fact that the court was prompted

to act upon father’s motion, the trial court had prima facie jurisdiction to enter the nunc

pro tunc order. The question, therefore, is whether the court’s action interfered with this

court’s jurisdiction to address the merits of the previous appeal filed in relation to the

original December 2019 judgment.

{¶14} Mother properly states that “the trial court loses jurisdiction except to take

action in aid of the appeal,” Bishop v. Bishop, 11th Dist. Portage Nos. 98-P-0055 and 98-

P-0080, 2000 WL 757592, *7 (June 9, 2000), and “the trial court retains jurisdiction over

issues not inconsistent with the appellate court’s jurisdiction to reverse, modify, or affirm

the judgment appealed from.” Yee v. Erie County Sheriff’s Department, 51 Ohio St.3d

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43, 44 (1990). Mother’s appeal of the original December 2019 judgment challenged the

following issues: (1) the trial court’s granting of father’s motion to designate him sole

residential parent and legal custodian; (2) the trial court’s decision to deny mother’s

motion to disqualify the guardian ad litem; (3) the trial court’s alleged violation of her due

process rights by requiring her to proceed with evidence prior to father doing so; (4) the

trial court’s denial of her motion for a new trial; and (5) the trial court’s denial of her motion

to modify visitation.

{¶15} Mother did take issue with the ultimate decision to grant father legal custody

and status as residential parent. The action the trial court took vis-à-vis its November

2020 nunc pro tunc order, however, was to clarify that the conditions it set on mother’s

visitation must be met before Juvenile Rule V visitation could commence. This was not

inconsistent with this court’s ability to affirm, reverse, or vacate the principal order

regarding custody or designation of residential parent. Moreover, while mother challenged

the court’s denial of her motion to modify visitation, that motion (and her argumentation

before this court) did not challenge the conditions placed on mother in the original

December 2019 judgment. And, in Byers I, this court stated:

{¶16} In its judgment, the trial court noted that mother failed to attach
anything to her affidavit (which accompanied her motion) indicating
she had completed the intensive outpatient program; the court
further noted that neither party requested a hearing on mother’s
motion. And, because the motion was filed a mere two weeks after
the court’s December 31, 2019 judgment re-designating father as
residential and custodial parent, it concluded that “significant
progress could not have been made with these parties in that period
of time.” Id. at ¶95.

{¶17} The trial court’s clarification in the November 2020 nunc pro tunc judgment

did not affect this court’s jurisdiction to address the points challenged by mother in Byers

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I. The court made it clear that the conditions it imposed had to be completed by August

27, 2020, if mother wished to automatically have Juvenile Rule V parenting time. Because

mother did not challenge the nature of the conditions or assert that compliance with the

conditions was somehow unreasonable or impracticable, we conclude the trial court’s

action was not inconsistent with this court’s jurisdiction.

{¶18} Mother’s first assignment of error lacks merit.

{¶19} “The trial court lacked jurisdiction to issue a nunc pro tunc entry after the

perfection of the Mother’s appeal under Civ.R. 60.”

{¶20} Appellant initially asserts the entry at issue was a material alteration of the

original entry and, as a result, was an impermissible modification of the original final

judgment. She additionally claims the trial court erred in entering its nunc pro tunc entry

clarifying the December 31, 2019 judgment because neither father nor the court sought

leave of this court as required by Civ.R. 60(A).

{¶21} With respect to mother’s initial assertion, “[t]he purpose of a nunc pro tunc

order is to have the judgment of the court reflect its true action.” (Emphasis sic.) McKay

v. McKay, 24 Ohio App.3d 74, 75 (11th Dist.1985). The power to enter a

judgment nunc pro tunc is restricted to placing upon the record evidence of judicial action

which has actually been taken. State ex rel. Phillips v. Indus. Comm., 116 Ohio St. 261,

264 (1927). The authority, however, “does not extend beyond the power to make the

journal entry speak the truth.” McKay, supra.

{¶22} Here, the trial court’s original judgment entry regularly highlighted the

extreme measures mother took to have father deemed an abusive parent; none of the

allegations mother leveled, however, were confirmed. The court expressed concern

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regarding mother’s behavior and, in its final order made it clear that she should have

supervised parenting time provided through a third party. After entering its order, the

court proceeded to set forth the conditions the parties were required to meet, pursuant to

the general parenting and custody decree. These conditions were those set forth above

and were the subject of father’s show-cause motion.

{¶23} After setting forth the conditions, the trial court, in the original entry, stated

that, as of August 27, 2020, mother shall have Juvenile Rule V parenting time. It would

make no sense, however, to conclude the trial court found this seemingly arbitrary date

an automatic trigger for mother having typical Rule V, unsupervised parenting time where

she has failed to meet the conditions of the parenting and custody decree. This is

especially true where the conditions were inextricably tied to mother’s mental health as

well as her ability to effectively parent jointly with father.

{¶24} We therefore conclude the trial court’s nunc pro tunc entry, which

pronounced that the conditions of the decree must be met before mother could be

awarded Rule V parenting time, reflected the trial court’s true action. Thus, we hold, in

light of the entirety of the findings and orders of the original judgment, the court’s use of

a nunc pro tunc order was proper. Accordingly, we conclude the insertion of the clause

“If the foregoing conditions are complete” was not a material alteration of the December

31, 2019 judgment.

{¶25} Next, mother takes issue with the failure of either father or the court to follow

Civ.R. 60(A). Civ.R. 60(A) provides:

{¶26} Clerical Mistakes. Clerical mistakes in judgments, orders or other
parts of the record and errors therein arising from oversight or
omission may be corrected by the court at any time on its own
initiative or on the motion of any party and after such notice, if any,

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 as the court orders. During the pendency of an appeal, such
mistakes may be so corrected before the appeal is docketed in the
appellate court, and thereafter while the appeal is pending may be
so corrected with leave of the appellate court. (Emphasis added.)

{¶27} Mother is correct that leave of this court was not sought to correct the

December 31, 2019 judgment, even though the appeal of that judgment was pending

when the court issued the nunc pro tunc entry. Moreover, we additionally recognize that

this court has previously stated that “the failure to secure leave [pursuant to Civ.R. 60(A)]

renders a nunc pro tunc decision a nullity.” State ex rel. Ames v. Portage Cunty

Republican Central-Executive Committee, 11th Dist. Portage No. 2018-P-0001, 2019-

Ohio-74, ¶11. Under the circumstances, however, we conclude this pronouncement,

while not incorrect where a trial court makes a substantive modification of a judgment, is

an overstatement of the effect of failing to obtain leave.

{¶28} Despite the failure to secure leave, mother has failed to show prejudice.

“Our limited power permits us to reverse a lower court’s decision only upon a finding of

‘prejudicial error committed by such lower court.’ R.C. 2501.02. Where the harm is not

immediately apparent, the appellant must explain how the result would have materially

differed were it not for the intervening error. Prejudice is not presumed.” Mangan v.

Mangan, 2d Dist. Green No. 07-CA-100, 2008-Ohio-3622, ¶9. Although the failure to

obtain leave was a technical error, our resolution of mother’s first assignment of error

renders any such error harmless. Because the trial court’s clarification was not

inconsistent with this court’s jurisdiction, leave, in this instance, would have been freely

granted. We therefore conclude the omission and technical error was harmless. See

Doran v. Doran, 11th Dist. Geauga No. 1351, 1988 WL 12946, *4 (Feb 5, 1988).

(“Pursuant to Civ.R. 60(A), clerical or inadvertent mistakes or omissions may be corrected
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during a pending appeal at any time before the appeal is docketed and thereafter while

the appeal is pending with leave of the appellate court. In the instant case, the correction

was made without leave of this court. However, any failure of the lower court to request

leave to correct this error was harmless. Leave in such an instance would be freely

given.”); see also Kachman v. Kachman, 7th Dist. Mahoning No. 2008 MA 90, 2010-Ohio-

1311, ¶76 (applying harmless error doctrine to application of Civ.R. 60(A)).

{¶29} Mother’s second assignment of error lacks merit.

{¶30} For the reasons discussed in this opinion, the judgment of the Lake County

Court of Common Pleas, Juvenile Division, is affirmed.

MARY JANE TRAPP, P.J.,

MATT LYNCH, J.,

concur.

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