Andrews v. Andrews , 2023 Ohio 293 ( 2023 )

[Cite as Andrews v. Andrews, 2023-Ohio-293.]
IN THE COURT OF APPEALS OF OHIO
SIXTH APPELLATE DISTRICT
OTTAWA COUNTY
Amanda Ann-Carmen Andrews Court of Appeals No. OT-22-010
Appellant Trial Court No. 2017-DR-A-136
v.
Bridge R. Andrews DECISION AND JUDGMENT
Appellee Decided: January 30, 2023
*****
Amanda Ann-Carmen Andrews, Pro se.
*****
OSOWIK, J.
I. Introduction
{¶ 1} This appeal arises from the January 27, 2022 judgment of the Ottawa County
Court of Common Pleas, Domestic Relations Division, finding appellant in contempt of
court, modifying the parties’ shared parenting plan, and ordering the creation of a
judgment lien against any real property appellant owns in Ottawa County, Ohio. For the
following reasons we reverse the trial court’s judgment.
A. Facts and Procedural Background
{¶ 2} The parties to this appeal were previously granted a divorce on
November 26, 2019. Since that time, the parties have engaged in extensive post-decree
litigation, including appeals to this court.1
{¶ 3} Relevant to this appeal, the trial court’s divorce decree ordered appellant to
either refinance a vehicle jointly owned by the parties and removing appellee as a debtor
on the lien or to sell the vehicle with the proceeds to be divided between the parties.
Appellant was also ordered to pay child support as well as tuition fees for the parties’
children. Any electronic communication between the parties was to take place through a
court-approved communication system rather than through direct communication.
Finally, the decree ordered the parties to share the costs of the guardian ad litem’s
services during the proceedings equally.
{¶ 4} On June 4, 2021, appellee, proceeding pro se, filed a motion for contempt of
court alleging appellant failed to refinance or sell the parties’ jointly-owned vehicle in
accordance with the November 26, 2019 divorce decree. Appellee’s certificate of service
indicated that she served the motion via Certified U.S. Mail. The certificate also
indicated that she emailed a copy of the motion to appellant, who was also appearing pro
se. The record reflects that the Ottawa County Clerk of Courts office also attempted
1
For a full recitation of post-decree proceedings prior to this appeal, see Andrews v.
Andrews, 179 N.E.3d 1050, 2022-Ohio-3854 (6th Dist.).
2.
Certified U.S. Mail service on appellant at the identified address. The July 13, 2021
return on service notes that the attempted service went “unclaimed.” The record shows
that appellee made no further attempts at service of the June 4, 2021 motion for
contempt.
{¶ 5} Appellee filed another motion for contempt of court on June 17, 2021. In
this motion, appellee alleged that appellant failed to pay her child support as ordered in
their divorce decree and had harassed appellee telephonically outside of the court-
approved communication system. With this motion, appellee included a praecipe for
service instructing the clerk of courts to serve the motion both via Certified U.S. Mail and
to furnish a copy to the Ottawa County Sheriff’s for personal and residential service.
The July 13, 2021 return on service notes that the attempted Certified U.S. Mail service
went “unclaimed.” The return does not reflect the status of the Ottawa County Sheriff’s
office’s attempts on service of the July 17, 2021 motion. As with the prior motion, the
record shows that appellee made no further attempts to serve the June 17, 2021 motion
for contempt.
{¶ 6} On July 6, 2021, appellant appeared for a purge hearing after having been
previously held in contempt on October 14, 2020. Appellant began that hearing
discussing the recently-filed motions for contempt. Appellant informed the trial court
that she had not yet been served with either of the June, 2021 motions in the following
exchange:
3.
APPELLANT: Thank you, your honor. I received—well, actually, it was
probably around June 14th, [appellee’s] motion, as well as a second motion
for contempt issues, but we’re just here for the—just the—
THE COURT: I don’t know if you had service on your motion for
contempt, ma’am; that I don’t know.
APPELLEE: (Unitelligible)—I have not yet—[an unidentified third party]
told me that UPS—
THE COURT: Okay.
APPELLEE: —she hadn’t picked—
THE COURT: If you—if you have a copy of it, would you please give that
to her today in open court, please.
APPELLANT: Well, that’s what we said—I was going to say, your honor,
is, I will accept service of that one, ‘cause there was an issue—the first
issue, your honor, is the issue—
THE COURT: Hold on just a second.
APPELLANT: Sure.
THE COURT: So you accept service on that motion. We can set it for
hearing?
APPELLANT: I do, your honor.
4.
Following this exchange, the parties moved into their arguments on the merits of whether
appellant had satisfied the purge conditions on her previous contempt finding. There was
no further reference to the motion provided to appellant during the hearing.
{¶ 7} Appellee filed her next post-decree motion on August 19, 2021. In addition
to a separate request unrelated to this appeal, that motion requested that the trial court
grant an emergency order modifying appellant’s parental rights. Appellee relied on
appellant’s alleged inability to comply with court orders in unrelated matters, her recent
arrest record, and her inability to properly supervise the children due to her alcohol
consumption as the basis for modifying the parenting plan. Appellee filed a praecipe
instructing the clerk of courts to serve the August 19, 2021 motion via Certified U.S.
Mail. The record shows that this service was never attempted. The trial court set a
hearing for hearing on October 27, 2021. The notice identified the subject of the hearing
as a “motion hearing.”
{¶ 8} On October 6, 2021, appellee filed her third2 motion for contempt. In this
motion, appellee argued that appellant was in contempt of her obligations under the
parties’ divorce decree for failing to pay costs related to the parties’ children’s school
tuition. Appellee’s certificate of service stated that this motion was sent to appellant via
email only. The record shows that appellee did not file a praecipe to serve appellant by
any other method.
2
As addressed in this appeal.
5.
{¶ 9} Two days prior to the October 27, 2021 hearing on appellee’s emergency
motion, appellee filed a motion to continue the hearing citing transportation issues. The
trial court granted appellee’s motion. The trial court then set a “show cause hearing” for
December 17, 2021. On December 13, 2021, appellee filed her own motion to continue
the December 17, 2021 hearing. The trial court denied appellee’s motion and conducted
the hearing on the assigned date.
{¶ 10} At the hearing, the trial court noted that appellant, who was in the custody
of the Ottawa County Sheriff’s Department on an unrelated matter, declined to be
transported for her appearance. The trial court stated:
She was requested to be here. She refused to attend. Furthermore, my
recollection and the record will bear me out is that she accepted this date in
open court on the record as a date for hearing on these motions, on motions
that were pending, not the emergency motions because it wasn’t pending at
the time, but the motions that were pending, she accepted this date. So with
all of that, I am going to have the matter proceed and call the case.
The trial court then proceeded with the hearing, permitting appellee to offer her sworn
testimony as to the merits of her August 19, 2021 emergency motion to modify
appellant’s parental rights. Appellee also offered testimony in support of her June 4,
2021, June 17, 2021, and October 6, 2021 motions to hold appellant in contempt.
Appellee withdrew the portion of her June 17, 2021 motion related to appellant’s alleged
6.
failure to pay child support. The trial court also accepted the guardian ad litem report
regarding the parties’ parental rights, but did not receive any testimony from the guardian
or appellee as to the contents of that report.
{¶ 11} On January 26, 2021, the trial court granted appellee’s emergency motion
to modify the shared parenting plan as well as all three of appellee’s motions for
contempt. The trial court’s judgment was memorialized on January 27, 2021.
B. Assignments of Error
{¶ 12} Appellant timely appealed and asserts the following errors for our review:
1. The trial court erred by finding appellant in contempt of court
given improper service, lack of statutory notice, and lack of hearing.
2. The trial court erred by changing the custody agreement of the
parties without the presence of the guardian ad litem [and] appellant; as
well as without proper notice and evidence of appellee’s claims.
3. The trial court erred in ordering matters involving the real
property of the parties as it was not an issue pending before the court at the
time of hearing.
Because they are interrelated, we address appellant’s first and second assignments of
error together.
7.
II. Law and Analysis
A. The record shows that appellant was denied her due process rights of notice
and an opportunity to be heard on each of appellee’s motions for contempt.
{¶ 13} In her first assignment of error, appellant argues that she was not properly
served, pursuant to R.C. 2705.031, with appellee’s June 4, 2021, June 17, 2021, and
October 6, 2021 motions for contempt. In her second assignment of error, appellant
argues that she was not properly served, pursuant to R.C. 3109.04, with appellee’s
August 19, 2021 emergency motion to modify her parental rights under the divorce
decree. Appellant also argues, in each assignment, that she did not receive notice of the
issues to be addressed at the December 17, 2021 hearing, denying her of due process.
1. Required Service of Appellee’s Motions for contempt and scope of
required notice
{¶ 14} Before addressing the merits of appellant’s assigned errors, we must
determine the manner of service to which she was entitled on appellee’s motions and the
scope of any required notice of the allegations against her before being held in contempt
of court. Appellee’s June 4, 2021 motion for contempt alleges that appellant failed to
comply with the trial court’s order related to the division of personal property—a vehicle
jointly-owned by the parties. Appellee’s June 17, 2021 motion alleged that appellant
disobeyed the trial court’s order by harassing appellee telephonically. Appellee’s
October 6, 2021 motion alleged appellant failed to pay for their children’s school tuition.
8.
{¶ 15} Generally, trial courts have inherent jurisdiction to enforce their orders
through contempt proceedings. Cincinnati v. Cincinnati Dist. Council 51, Am.
Federation of State, County, and Municipal Employees, AFL-CIO, 35 Ohio St.2d 197,
299 N.E.2d 686 (1973) (“The power to punish for contempt is said to be inherent in the
courts and to exist independently from express constitutional or legislative comment.”).
An individual accused of contempt must be afforded due process before a court can order
punishment. McNall v. Cunard, 6th Dist. Sandusky No. S-07-013, 2008-Ohio-378, ¶ 20.
Due process is a constitutional right arising under both the United States and Ohio
Constitutions. Sassya v. Morgan, 11th Dist. Trumbull No. 2018-T-0013, 2019-Ohio-
1301, ¶ 28, citing State v. Hochhausler, 76 Ohio St.3d 455, 459, 668 N.E.2d 457 (1996).
Due process for contempt proceedings includes providing the alleged contemnor with
notice of the allegations and an opportunity to be heard on those allegations. Id.; R.C.
2705.03. Importantly, R.C. 2705.03 does not specify the form of notice an alleged
contemnor must receive for contempt in violation of R.C. 2705.02. That notice, however,
“to comply with due process requirements, must be given sufficiently in advance of
scheduled court proceedings so that the [contemnor] has reasonable opportunity to
prepare for the specific issues presented.” Id. See also State ex rel. Johnson v. County
Court of Perry County, 25 Ohio St.3d 53, 495 N.E.2d 16 (1986) (emphasis added).
{¶ 16} R.C. 2705.02 codifies Ohio courts’ inherent authority and identifies
specific instances of contempt that are subject to sanctions. This inherent jurisdiction
9.
permits trial courts to enforce the terms of divorce decrees as they relate to the division of
marital property. See Godbey-Martin v. Godbey, 6th Dist. Lucas No. L-08-1046, 2009-
Ohio-662 (holding that it was within the trial court’s discretion to determine whether a
party was in contempt of the divorce decree for failing to deliver personal property to
former spouse); Westhoven v. Westhoven, 6th Dist. Ottawa No. OT-10-037, 2011-Ohio-
3610 (trial court did not abuse its discretion in finding appellee was not in contempt for
failing to deliver personal property to former spouse). A motion for contempt alleging
the failure to make tuition payments is also governed by the R.C. 2705.02(A)’s due
process requirements. See Blazic v. Blazic, 1st Dist. Nos. C-040414, C-040440, 2005-
Ohio-4417 (holding that a motion for contempt for failure to pay school expenses are
enforced as disobedience of a lawful order of the court pursuant to R.C. 2705.02(A)).
{¶ 17} We first address appellant’s argument as to an alleged lack of statutory
service of each motion for contempt, collectively, before reviewing each motion
individually as to appellant’s due process arguments.
a. Appellant was not entitled to notice of the contempt allegations through the
issuance of a summons pursuant to R.C. 2705.031(C).
{¶ 18} As to each of appellee’s motions for contempt, appellant argues that she
was entitled to service of a summons pursuant to R.C. 2705.031(C) before the trial court
could find her in contempt. This argument is without merit.
{¶ 19} When the alleged contempt relates to the failure to pay ordered support or
interfering with another parties’ parenting rights, R.C. 2705.031(B)(1) and (2) establishes
10.
a specific procedure that must be followed before the trial court can determine the
contempt motion. For a motion alleging the failure to pay under a support order, the
alleged contemnor is entitled to service of process pursuant to R.C. 2705.031(C) which
states “[i]n any contempt action initiated pursuant to division (B) of this section, the
accused shall appear upon the summons and order to appear that is issued by the court.”
The statute then identifies the specific contents that must be included in the summons.
R.C. 2705.031(C)(1) through (C)(4). The issuance of this summons and its contents is
mandatory before a trial court may hold an alleged contemnor in contempt on a motion
pursuant to R.C. 2705.031(B). See In re. Yeauger, 83 Ohio App.3d 493, 615 N.E.2d 689(3d Dist.1992), citing Courtney v. Courtney, 16 Ohio App.3d 329, 475 N.E.2d 1284 (3d
Dist.1984) (holding that the statutory requirements ensuring due process as described in
R.C. 2705.031(C) are mandatory before an alleged contemnor may be held in contempt.).
{¶ 20} The record here shows that the trial court did not issue a summons pursuant
to R.C. 2705.031(C) in response to any of appellee’s motions for contempt. Appellant
argues that the trial court’s failure to issue a summons renders service of all three motions
for contempt invalid. Appellant is incorrect. The issuance of a summons is only required
when the alleged contempt is for failing to pay a support order. Only appellee’s June 17,
2021 motion alleged that appellant was in contempt for failing to pay the child support
ordered in the parties’ divorce decree. Appellant was certainly entitled to service of a
properly-issued summons on that motion pursuant to R.C. 2705.031(C). However,
11.
appellee eventually withdrew that allegation at the December 17, 2021 hearing and
appellant was not found in contempt on an allegation for which she did not receive the
required summons. Instead, the trial court only found appellant in contempt for
allegations that arose under R.C. 2705.02 for which no summons was required.
Therefore, we reject appellant’s argument that the lack of a summons issued to her serves
as a basis for reversing the trial court’s judgment.
{¶ 21} This finding addresses only one basis on which appellant argues the trial
court erred. We address her remaining arguments as they apply to each individual
motion.
b. Appellee’s June 4, 2021 motion for contempt
{¶ 22} In her June 4, 2021 motion for contempt, appellee alleged that appellant did
not comply with the trial court’s order to either sell a jointly-owned vehicle or refinance
it into appellant’s name only. Appellee attempted to serve appellant with the June 4,
2021 motion via certified U.S. Mail and email. The record clearly shows that the
attempted certified U.S. Mail service went “unclaimed.” Appellee made no further
attempts to serve this motion. At the July 6, 2021 hearing on a prior contempt finding,
appellant stated that she had not been served with either of appellee’s most recent
motions for contempt. While appellant agreed to accept service of one motion for
contempt, both appellee’s June 4, 2021 and June 17, 2021 motions for contempt were
12.
pending at the time of that hearing. The record does not specify which motion was
personally served at the hearing.
{¶ 23} It is undisputed that R.C. 2705.05 requires the alleged contemnor be
provided with notice of the allegations against them and an opportunity to be heard on
those allegations. McNall v. Cunard, 6th Dist. Sandusky No. S-07-013, 2008-Ohio-378,
at ¶ 20. The type of notice—summons and personal service, service upon counsel,
constructive notice, etc.—that must be afforded to the alleged contemnor is the subject of
significant dispute among Ohio’s appellate court districts. See In re. Contemnor Caron,
744 N.E.2d 787, 110 Ohio Misc.2d 58, (C.P. 1992).3 When service of a motion alleging
indirect civil contempt is disputed, this court has held that “notice which apprises the
3
(There is disagreement among the courts regarding the technical requirements of service
of notice of contempt charges. McWhorter v. Curran, 57 Ohio App. 233, 244, 423, 13
N.E.2d 362 (1935); “It is essential * * * that [the contemnor] have notice * * * either
actual or by service * * * upon him;” McGill v. McGill, 3 Ohio App.3d 455, 457, 445
N.E.2d 1163 (1982): “[N]otice which is reasonably calculated to reach the individual
alleged to be in contempt * * * will withstand objection. Despite the potential for
imprisonment there is no requirement that such notice must be personally served upon the
individual”; Rose v. Rose, Franklin No. 96APF09-1150, 1997 WL 142718 (Mar. 31,
1997), citing State v. Union, Ohio St. 75, 78, 173 N.E.2d 331 (1961), for rule that
“[s]ervice upon [the contemnor] is not required when he has actual notice.” See also
Hansen v. Hansen, 132 Ohio App.3d 795, 800, 726 N.E.2d at 560–561 (1999) (personal
service may be required under the Civil Rules depending upon the circumstances).
Contrary to Hansen, see Courtney v. Courtney, 16 Ohio App.3d 329, 475 N.E.2d
1284 (3d Dist.1984) (Civil Rules do not apply to contempt proceedings under Civ.R.
1(C)(7), since they are sui generis actions, not civil actions). Contrary to Courtney, see
Quisenberry v. Quisenberry, 91 Ohio App.3d 341, 632 N.E.2d 916 (1993) (service of
contempt citation and notice must be in accordance with Civil Rules)).
13.
alleged contemnor of the nature of the charge against [them] so that [they] may prepare a
defense is sufficient for due process purposes.”4 Camp-out, Inc. v. Adkins, 6th Dist.
Wood No. WD-06-057, 2007-Ohio-3946, ¶ 21, citing Cincinnati Dist. Council 51, 35
Ohio St.2d 197, 203, 299 N.E.2d 686 (1973). In order for that notice to comply with due
process requirements, it must “set forth the alleged misconduct with particularity.”
Sassya, 11th Dist. Trumbull No. 2018-T-0013, 2019-Ohio-1301, at ¶ 28.
{¶ 24} Here, we find that if the motion for contempt appellant accepted at the
hearing was the June 17, 2021 motion, she could not have accepted service of appellee’s
June 4, 2021 motion. Because there is nothing in the record to show that appellant was
otherwise served with the June 4, 2021 motion, the complete failure of service of that
motion is sufficient to show that appellant was denied her right to notice of the
allegations in that motion. However, the record is unclear as to which motion was served
so we also address whether appellant was afforded her due process rights had she
accepted service of the June 4, 2021 motion.
4
“We determine the nature of contempt proceedings, primarily, based on the purpose the
trial court sought to accomplish in imposing the sanction.” State v. Arnold, 6th Dist.
Lucas Nos. L-20-1007, L-20-1008, 2020-Ohio-3749, ¶ 11. “If the sanction is remedial,
or seeks to coerce conduct for the benefit of the complainant and not the court, the
proceeding is generally a civil contempt proceeding.” Id. at ¶ 12. “‘Often, civil contempt
is characterized by conditional sanctions’ and the contemnor has the ability to avoid the
sanction by complying with the court’s order.” Id. “In contrast, a criminal contempt
proceeding involves a sanction meant to punish and vindicate the court’s authority.” Id.
at ¶ 13.
14.
{¶ 25} We find that accepting service of the June 4, 2021 motion satisfies the first
part of appellant’s due process rights. This does not end our analysis, however, and we
find that the trial court’s inconsistent orders as to when that motion was to be heard
deprived appellant of her right to be heard on those allegations. The record shows that
the trial court scheduled three separate hearings following appellee’s filing of her motions
for contempt and her emergency motion to modify the shared parenting plan. On June
22, 2021, the trial court set a “motion hearing” for July 6, 2021. In the notice of
assignment, the trial court specified that this was a “hearing on motion for imposition of
sentence” on its previous contempt finding against appellant. On August 30, 2021, the
trial court scheduled a “motion hearing” for October 27, 2021. The notice of assignment
does not identify with any particularity which motions—of which at least three were
pending at the time—would be addressed at the hearing. On November 10, 2021, after
granting appellee’s motion for continuance, the trial court scheduled a “show cause
hearing scheduled before Judge Yarbrough” for December 17, 2021. Again, that notice
does not specify the motions to be addressed at the hearing or the manner of service on
appellant. At this point, appellee had three pending motions for contempt filed against
appellant as she had filed a third motion for contempt on October 6, 2021.
{¶ 26} On December 13, 2021, appellant filed her own motion to continue the
December 17, 2021 hearing. Appellant informed the court that she was reviewing all
motions pending against her as well as reviewing documents necessary for her to prepare
15.
her defense to the contempt allegations. Appellant sought the continuance so that she
could retain counsel to help her prepare for the hearing. The trial court did not address
appellant’s motion until the hearing. At that time, the trial court noted that appellant,
who was in the custody of the Ottawa County Sheriff’s Department on an unrelated
matter, declined to be transported to the courthouse for the hearing. The trial court
denied appellant’s motion to continue stating that no attorney had entered an appearance
on her behalf and that postponement of the hearing would prejudice appellee who had
traveled to attend. The trial court also stated “my recollection and the record will bear
me out is that [appellant] accepted this date in open court on the record as a date for
hearing on these motions, on motions that were pending, not the [motion to modify]
because it wasn’t pending at the time, but the motions that were pending, she accepted
this date. So with all of that, I am going to have the matter proceed and call the case.”
{¶ 27} The record does not support the trial court’s recollection. As noted above
the record does not specify which motion appellant accepted service of at the July 6, 2021
hearing. Moreover, there is no reference in the record that appellant accepted the
December 17, 2021 hearing date as the date on which all of appellee’s motions for
contempt would be addressed. Lastly, the trial court’s orders setting the hearing dates are
ambiguous as to what motions were to be heard. The August 30, 2021 notice described
the upcoming hearing only as a “motion hearing.” The November 10, 2021 notice
rescheduling that hearing did describe it as a “show cause” hearing but did not offer any
16.
specifics as to which of the three motions that would be heard on that date. While
appellant clearly learned that the hearing was to take place, as evidenced by her
December 13, 2021 motion to continue, there is nothing in the record to show when she
learned of the hearing. What we are left with, then, is a record that is ambiguous as to
what motions were to be heard at the December 17, 2021 hearing and appellant’s attempt
to receive more time to prepare a defense to all of the pending motions.
{¶ 28} “[T]he element of notice for a finding of indirect contempt is a prerequisite
for a valid contempt finding.” Goe v. Goe, 5th Dist. Stark No. 2006CA0341, 2007-Ohio-
6767, ¶ 31. “The notice essential to due process of law is notice that affords a reasonable
opportunity to be heard.” State ex re. Miller v. Wallar, 10th Dist. Franklin No. 04AP-
574, 2004-Ohio-6612, ¶ 8, citing New York Cent. R. Co. v. Public Utilities Comm., 157
Ohio St. 257, 264, 105 N.E.2d 410, (1952). The open question as to whether appellant
was ever served with appellee’s June 4, 2021 motion, and the ambiguous notices of
hearing on the motions to be heard, provide no bases on which appellant could discern
the allegations against her to prepare a defense or provide her with an opportunity to be
heard.
{¶ 29} We recognize that appellant’s refusal to be transported to the December 17,
2021 hearing raises concerns as to whether she waived her right to argue the lack of due
process in this appeal. Due process is a constitutional right. Sassya, 11th Dist. Trumbull
No. 2018-T-0013, 2019-Ohio-1301, at ¶ 28. The waiver of a constitutional right must be
17.
made knowingly, intelligently, and voluntarily. Matter of C.B., 2020-Ohio-5151, 161
N.E.3d 770, ¶ 12 (4th Dist.). Appellant’s refusal to attend the hearing was certainly ill-
advised and may subject her to further sanctions by the trial court. In light of the record
before us, however, we cannot say that appellant refusing to appear constitutes a knowing
and intelligent waiver of her opportunity to be heard on the contempt issues when the
trial court’s notices of hearing were deficient as to the specific issues the trial court would
address at that hearing. As a result, we find that appellant did not waive her right to due
process on the contempt issues and they have been fairly raised in this appeal.
{¶ 30} In sum, notice and an opportunity to be heard are the due process rights
owed to appellant. We find that the significant questions as to service of the motion and
the scope of the notices of hearing precluded appellant from being heard on the
allegations against her. Therefore, we find that the trial court erred in granting appellee’s
June 4, 2021 motion for contempt.
c. Appellee’s June 17, 2021 motion for contempt
{¶ 31} In appellee’s June 17, 2021 motion for contempt, she argued that appellant
had violated the trial court’s order by communicating with her directly rather than
through the court-approved communication system. As with appellee’s June 4, 2021
motion, we cannot determine which motion was served at the July 6, 2021 hearing. If the
June 17, 2021 motion was not served, appellant clearly was denied her right to notice of
the allegations against her. In the scenario in which the June 17, 2021 motion was served
18.
at the hearing, we have already found that the trial court’s ambiguous notices of hearing,
along with its erroneous belief that appellant had accepted a hearing date on which to
argue the contents of appellee’s motions, shows that appellant was denied her right to be
heard. For these reasons, we find that appellant was denied her right to notice and the
opportunity to be heard on appellee’s June 17, 2021 motion. As a result, the trial court
erred in granting that motion.
d. Appellee’s October 6, 2021 motion for contempt
{¶ 32} In her October 6, 2021 motion for contempt, appellee alleged that appellant
had not paid her portion of the parties’ children’s tuition expenses as ordered in the
divorce decree. Appellant was entitled to the same due process for this motion—notice
and opportunity to be heard—as for appellee’s June 4, 2021 and June 17, 2021 motions
for failing to comply with a court order as described in R.C. 2907.02. See Blazic v.
Blazic, 1st Dist. Hamilton Nos. C-040414, C-040440, 2005-Ohio-4417.
{¶ 33} As to service, we note that the October 6, 2021 motion clearly was not
served at the July 6, 2021 hearing as it was filed three months later. Appellee’s motion
did include a certificate of service alleging that the motion was served on appellant via
electronic mail the same date that it was filed. This creates a rebuttable presumption that
the motion was served on appellant. Yost v. McNea, 6th Dist. Erie No. , 2021-Ohio-2145,
¶ 22, citing Kapszukiewicz v. Samual, 6th Dist. Lucas No. L-06-1206, 2007-Ohio-2152, ¶
14 (holding that a moving party’s compliance with the Ohio Rules of Civil Procedure
19.
creates a rebuttable presumption that service has been made). “The complaining party
bears the burden of rebutting the presumption.” Id. Here, appellant offers only her
argument that she did not receive the October 6, 2021 motion. This is insufficient to find
that appellant was not served with a copy of the motion. Cf. Calvary Invest., L.L.C. v.
Clevenger, 6th Dist. Lucas No. L-05-1103, 2005-Ohio-7003 (holding that an
uncontroverted affidavit by the complaining party is sufficient to rebut the presumptions
of service).
{¶ 34} Therefore, we find appellant’s argument that she was not served with the
October 6, 2021 motion is without merit. Nevertheless, we find that appellant was denied
her due process rights of notice and an opportunity to be heard on that motion. As our
analysis as to appellee’s June 4, 2021, and June 17, 2021 motions is equally applicable to
appellee’s October 6, 2021 motion, we find that the trial court likewise denied appellant
her due process right to be heard on appellee’s October 6, 2021 motion for contempt and
erred in granting the same.
2. Conclusion as to appellee’s motions for contempt
{¶ 35} The record reflects significant procedural issues related to appellant’s
notice of the contempt allegations against her and her opportunity to be heard on those
allegations. As a result, we find that appellant was denied her due process rights when
the trial court granted appellee’s June 4, 2021, June 17, 2021, and October 6, 2021
20.
motions for contempt. For these reasons, we find appellant’s first and second
assignments of error well-taken as to the trial court’s error in granting these motions.
B. The record shows that appellee failed to invoke the trial court’s continuing
jurisdiction to consider her motion to modify the parties’ shared parenting
plan.
{¶ 36} On August 19, 2021, appellee filed a motion requesting that the trial court
modify the parties’ shared parenting plan by “suspending” appellant’s rights to visitation
with the parties’ children. 5 The trial court granted appellee’s motion and modified the
parties’ shared parenting plan by rescinding all of appellant’s visitation rights. In her
second assignment of error, appellant argues that she did not receive proper notice of the
evidence against her on which appellee sought to modify the parties’ shared parenting
plan. We agree.
{¶ 37} A post-decree motion to modify a shared parenting plan is governed by
R.C. 3109.04. Fisher v. Hasenjar, 116 Ohio St.3d 53, 2007-Ohio-5589, 876 N.E.2d 546,
¶ 21, 29. The party seeking such a modification must invoke the trial court’s continuing
jurisdiction through Civ.R. 75(J). Hansen v. Hansen, 21 Ohio App.3d 216, 218, 486
N.E.2d 1252 (3d Dist.1985). Civ.R. 75(J) states:
5
We note that appellee’s pro se motion does not specify the statutory vehicle under
which she sought suspension of the appellee’s rights. Because appellee’s motion does
not satisfy the procedural requirements of any other statutory provision that might
authorize a trial court’s temporary suspension of appellant’s rights—for example, filing a
petition for a protection order under R.C. 3113.31—we presume that appellee sought
modification of the parties’ shared parenting plan pursuant to R.C. 3109.04.
21.
The continuing jurisdiction of the court shall be invoked by motion filed in
the original action, notice of which shall be served in the manner provided
for the service of process under Civ.R. 4 to 4.6. When the continuing
jurisdiction of the court is invoked pursuant to this division, the discovery
procedures set forth in Civ.R. 26 to 37 shall apply.
“Where the notice requirements under Civ.R. 75(J) are not met, the court’s continuing
jurisdiction is not invoked, the court lacks personal jurisdiction over the nonmoving
party, and it may not consider a motion for modification of custody, child support or
spousal support.” Grundey v. Grundey, 10th Dist. Franklin No. 14AP-420, 2015-Ohio-
1469, ¶ 11, citing Hamad v. Hamad, 10th Dist. Franklin No. 08AP–53, 2008-Ohio-4111,
¶ 3; Rondy v. Rondy, 13 Ohio App.3d 19, 21–22, 468 N.E.2d 81 (9th
Dist.1983); Szymczak at 711; Carson v. Carson, 62 Ohio App.3d 670, 673, 577 N.E.2d
391 (12th Dist.1989); Hansen at 219. In light of the specific requirements of Civ.R.
75(J), we review the record to determine, as a threshold matter, whether appellee properly
invoked the trial court’s continuing jurisdiction to consider her motion to modify.
{¶ 38} Contemporaneous with her motion to modify, appellee filed a praecipe
instructing the clerk to “issue service of a court-stamped copy of the [motion] (once a
hearing date is set) via certified mail upon [appellant]” at two addresses. Notably absent
from appellee’s praecipe is the request for issuance of a summons in accordance with
Civ.R. 75(J). That deficiency notwithstanding, the record shows that no summons or any
22.
other copy of appellee’s motion purporting to be a summons was ever served on appellant
through the clerk’s office. When the issuance of a summons is required, it is the duty of
the party seeking service to accomplish proper service on the opposing party. See
Capital One Bank v. Coleman, 6th Dist. Lucas No. L-18-1173, 2019-Ohio-3700, ¶ 11,
citing Griffin v. Braswell, 187 Ohio App.3d 281, 2010-Ohio-1597, 931 N.E.2d 1131, ¶
165 (6th Dist.). Appellee failed to satisfy this burden. Appellee filed a single praecipe
requesting service of her motion to modify. That praecipe did not generate the summons
necessary to invoke the trial court’s continuing jurisdiction pursuant to Civ.R. 75(J). The
record shows that appellee made no efforts to cure the lack of service. As a result, the
trial court had no continuing jurisdiction to modify the parties’ shared parenting plan and
the trial court erred in granting appellee’s August 19, 2021 motion requesting that
modification.
C. Appellant’s first and second assignment of error are found well-taken.
{¶ 39} For the foregoing reasons, we find that the trial court denied appellant’s
due process right to notice and an opportunity to be heard on appellee’s June 4, 2021,
June 17, 2021, and October 6, 2021 motions for contempt. We also find that the trial
court lacked jurisdiction over appellant related to appellee’s August 19, 2021 motion to
modify the parties’ shared parenting plan. Therefore, we find appellant’s first and second
assignments of error well-taken.
23.
D. The trial court’s erred in attempting to create a judicial lien on appellant’s
real property.
{¶ 40} In her third assignment of error, appellant argues that the trial court erred
when it held that its January 27, 2022 judgment entry created a judicial lien on any real
property owned by appellant. In its judgment entry, the trial court ordered that its
judgment reallocating the parties’ obligation to pay the guardian ad litem’s fees—
appellant to pay 75%, appellee to pay 25%—creates “a judicial lien against any real
estate owned by the Plaintiff in this county and that any proceeds of sale be held by the
clerk of courts until disbursed by this court.” Appellant argues that the issue of a judicial
lien was not pending before the trial court at the time so the trial court aired in addressing
that issue. We agree, albeit for a different reason than that identified by appellant.
{¶ 41} Initially, we note that appellant does not challenge the trial court’s
reallocation of guardian ad litem fees among the parties in its January 27, 2022 judgment
entry. Therefore, we limit our analysis only to the trial court’s “creation” of a judicial
lien.
{¶ 42} Judgment liens are governed by R.C. 2329.02 which states:
Any judgment or decree rendered by any court * * * within this state shall
be a lien upon lands and tenements of each judgment debtor with any
county of this state from the time there is filed in the office of the clerk of
court of common pleas of such county a certificate of judgment, setting
forth the court in which the same was rendered, the title and number of the
24.
action, the names of the judgment creditors and judgment debtors, the
amount of the judgment and costs, the rate of interest, if the judgment
provides for interest, and the date from which such interest accrues, the date
of rendition of the judgment, and the volume and page of the journal entry
thereof.
(emphasis added). “Judgment liens are a creature of statute.” Dietl v. Sipka, 185 Ohio
App.3d 218, 2009-Ohio-6225, 923 N.E.2d 692, ¶ 18. “[T]he creation, existence and
validity of judgment liens are strictly dependent upon statutory provisions.” Id. (internal
citations omitted). “It is well-settled, ‘when a certificate of judgment is filed [pursuant to
R.C. 2923.02] with the county’s clerk of courts office, a lien is immediately created[.]’”
Fifth Third Bank v. Mufleh, 6th Dist. Lucas Nos. L-04-1188, L-04-1157, L-04-1262,
2005-Ohio-2351, ¶ 22. Conversely, “no judgment lien is created or enforceable against a
real property unless a certificate of judgment is filed in accordance with R.C. 2329.02.”
Dietl at ¶ 16. Put simply, the trial court’s attempt to “create” a judicial lien simply by
imposing its judgment rather than a party filing a certificate of judgment is entirely
invalid as a matter of law. 6
6
We note that the trial court’s judgment does not order a specific monetary award but
only orders that any amount obtained by the clerk of courts through its “creation” of a
lien is to be “equitably divided by the court for the payment of Guardian ad litem fees
and other costs and fees due to the Defendant.” We offer no opinion as to whether that
judgment is one on which a certificate of judgment could be issued as it was not raised by
appellant and is not relevant to our resolution of this assignment of error.
25.
{¶ 43} App.R. 12(B) states:
[w]hen the court of appeals determines that the trial court committed error
prejudicial to the appellant, and that the appellant is entitled to have
judgment or final order rendered in his favor as a matter of law, the court of
appeals shall reverse the judgment or final order of the trial court and
render the judgment or final order that the trial court should have rendered,
or remand the cause to the court with instructions to render such judgment
or final order.
Here, the trial court, without any legal authority, ordered the Ottawa County Clerk of
Courts office to “hold” any proceeds from the sale of any real property appellant owns
through the unauthorized “creation” of a judicial lien. Although it is unclear what
mechanism the trial court intends for the clerk to utilize to impound those proceeds, it
cannot be disputed that any attempt to hold these proceeds by claiming any priority as
creditor through a fictitious lien is to appellant’s prejudice. As a result, the trial court has
entered judgment against appellant, to her prejudice, that constitutes error as a matter of
law. Pursuant to App.R. 12(B), we find appellant’s third assignment of error well-taken
and reverse the judgment of the trial court. Further, we remand this matter to the trial
court to enter judgment striking the improper “creation” of a judicial lien to avoid any
further prejudice against appellant.
26.
III. Conclusion
{¶ 44} We find each of appellant’s assignments of error well-taken. We therefore
reverse the January 27, 2022 judgment of the Ottawa County Court of Common Pleas,
Domestic Relations Division and remand this matter for proceedings consistent with this
opinion.
{¶ 45} Appellee is ordered to pay the costs of this appeal pursuant to App.R. 24.
Judgment Reversed,
and Remanded.
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.
Mark L. Pietrykowski, J. ____________________________
JUDGE
Thomas J. Osowik, J.
____________________________
Gene A. Zmuda, J. JUDGE
CONCUR.
____________________________
JUDGE
This decision is subject to further editing by the Supreme Court of
Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
version are advised to visit the Ohio Supreme Court’s web site at:
http://www.supremecourt.ohio.gov/ROD/docs/.
27.