Uber v. Uber ( 2017 )

[Cite as Uber v. Uber, 2017-Ohio-1205.]
IN THE COURT OF APPEALS
ELEVENTH APPELLATE DISTRICT
TRUMBULL COUNTY, OHIO
DANA LYN UBER, : OPINION
Plaintiff-Appellee, :
CASE NOS. 2016-T-0037
- vs - : and 2016-T-0040
LOGAN OTTO UBER, :
Defendant-Appellant. :
Civil Appeals from the Trumbull County Court of Common Pleas, Domestic Relations
Division, Case Nos. 2011 DR 00380 and 2011 JC 00052.
Judgment: Appeals dismissed.
Terry A. Swauger, 1129 Niles-Cortland Road, S.E., Warren, OH 44484 (For Plaintiff-
Appellee).
John H. Chaney, III, Daniel Daniluk, L.L.C., 1129 Niles-Cortland Road, S.E., Warren,
OH 44484 (For Defendant-Appellant).
Jennifer R. Robbins, 7081 West Boulevard, Youngstown, OH 44512 (Guardian ad
Litem).
COLLEEN MARY O’TOOLE, J.
{¶1} Appellant, Logan Otto Uber, appeals from the March 15, 2016 judgment of
the Trumbull County Court of Common Pleas, Domestic Relations Division, granting
appellee’s, Dana Lyn Uber, March 11, 2016 motion for reconsideration and remanding
the matter to the magistrate for further consideration. For the reasons that follow, we
dismiss this appeal.
{¶2} The parties were married on June 21, 2008. Two children were born as
issue of the marriage, L.M.U. (d.o.b. May 19, 2008) and W.J.U. (d.o.b. April 25, 2011).
{¶3} On October 11, 2011, appellee filed a complaint for divorce. A guardian
ad litem was appointed for the minor children. On August 28, 2012, an agreed entry for
divorce was filed. The marital property and debts were divided and a shared parenting
plan was adopted.
{¶4} On July 31, 2014, appellant filed a motion to modify the shared parenting
plan and requested a reduction in child support. On October 13, 2015, a hearing
commenced before the magistrate. On October 26, 2015, the magistrate issued a
decision and recommended granting appellant’s motion to modify. The trial court
approved and adopted the magistrate’s decision that same date.
{¶5} On November 9, 2015, appellee filed objections to the magistrate’s
decision indicating, inter alia, that:
{¶6} “The magistrate failed to properly consider all relevant and admissible
evidence as the magistrate was inattentive to the testimony of [appellee]. The
magistrate appeared to be suffering from an illness or other infirmity that prevented him
from paying due attention to the testimony offered by the parties and denied [appellee]
of her right to a fair hearing.” (T.d. 84).
{¶7} On March 7, 2016, the trial court overruled appellee’s objections to the
magistrate’s decision finding that she failed to file a transcript. Appellee did not appeal
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that decision. Instead, appellee filed a motion for reconsideration on March 11, 2016,
stating in part:
{¶8} “Specifically, the primary objection of [appellee] was a denial of her
fundamental due process right to a fair and complete hearing. That right was denied
when the magistrate assigned to the case failed to properly adjudicate the motion
before the court. The magistrate assigned was not attentive to the proceedings and
appeared to be sleeping during the testimony of [appellee]. A transcript of the hearing
would not provide any evidence of his sleeping as there is nothing said by the
Magistrate during this time.
{¶9} “The court has access to the video and audio recording of the hearing,
and such access is not available to [appellee]. This access would afford the court the
opportunity to review the denial of due process rights to [appellee] and adjudicate the
objections of [appellee].
{¶10} “Based upon the foregoing, and the fact the objection of [appellee] was not
based on any fact which would be available in a transcript, [appellee] asks [the trial]
court to reconsider her objections to the magistrate’s decision.” (Emphasis sic.) (T.d.
87).
{¶11} On March 15, 2016, the trial court granted appellee’s motion for
reconsideration and remanded the matter to the magistrate for further consideration.
Appellant filed a timely appeal and asserts the following assignment of error:
{¶12} “The trial court erred, and abused its discretion, in granting Appellee’s
Motion for Reconsideration, where the March 7, 2016 Judgment Order (Objection to
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Magistrate’s Order) was a final appealable order and the trial court lacked authority
under applicable law to reconsider such order.”
{¶13} Appellant correctly points out that a motion for reconsideration filed after
final judgment is a legal nullity. Ventling v. Champion Twp. Bd. of Trustees, 11th Dist.
Trumbull No. 2013-T-0046, 2013-Ohio-5846, ¶11, citing Pitts v. Ohio Dept. of Transp.,
67 Ohio St. 2d 378, paragraph one of the syllabus (1981); Brys v. Trumbull Cement
Products, 11th Dist. Trumbull No. 2005-T-0057, 2006-Ohio-4941, ¶9; Meadows v.
Owner/Liberty Constr., Inc., 8th Dist. Cuyahoga No. 85985, 2005-Ohio-4146, ¶5.
{¶14} As stated, on March 11, 2016, appellee filed a motion for reconsideration
following the trial court’s March 7, 2016 judgment overruling her objections to the
magistrate’s decision. On March 15, 2016, the trial court granted appellee’s motion for
reconsideration and remanded the matter to the magistrate for further consideration.
Appellant timely appealed asserting the trial court lacked authority to reconsider such
order.
{¶15} Thereafter, this court sua sponte remanded the matter to the trial court to
clarify whether it treated appellee’s March 11, 2016 motion for reconsideration as a
Civ.R. 60(B) motion.1 See Judgment Entry, filed February 10, 2017 (Cannon, J.,
dissenting with a Dissenting Opinion). In accordance with this court’s remand, the trial
court filed a judgment entry on February 16, 2017, stating in part:
{¶16} “On March 11, 2016, [appellee] filed a Motion for Reconsideration of the
Objection to the Magistrate’s Decision. The Court did not treat the Motion as a 60(B)
Motion and inadvertently ruled on the Motion for Reconsideration, which should have
1. See Ventling, supra, at ¶11, citing Brys, supra, at ¶16 (A trial court acts within its discretion by
construing a motion for reconsideration as a Civ.R. 60(B) motion.)
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been and is hereby denied, as the Court does not have jurisdiction to reconsider its own
final order.”2
{¶17} We note that appellant’s appeal stems from the trial court’s original March
15, 2016 judgment granting appellee’s March 11, 2016 motion for reconsideration.
However, pursuant to this court’s remand, the trial court changed that earlier judgment
and denied appellee’s motion for reconsideration on February 16, 2017. Accordingly,
since the trial court has acknowledged its own error, and has denied appellee’s motion
for reconsideration, appellant’s assignment of error is now moot. See Chojnacki v.
Cordray, 126 Ohio St. 3d 321, 2010-Ohio-3212, ¶6; In re R.A.S., 11th Dist. Geauga No.
2015-G-0016, 2016-Ohio-1359, ¶4-5.
{¶18} Appeals dismissed.
DIANE V. GRENDELL, J.,
TIMOTHY P. CANNON, J.,
concur.
2. The trial court does have the authority, however, to review or modify its order pursuant to the
procedures accorded under Civ.R. 60(B). Appellee can file a Civ.R. 60(B) motion, to which appellant may
respond, and upon which the trial court may rule.
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