Galluzzo v. Galluzzo ( 2012 )

[Cite as Galluzzo v. Galluzzo, 2012-Ohio-502.]
IN THE COURT OF APPEALS OF CHAMPAIGN COUNTY, OHIO
:
TERESA A. GALLUZZO (nka COOK)
Plaintiff-Appellee : C.A. CASE NO. 2011-CA-11
vs. : T.C. CASE NO. 93-DR-247
: (Civil Appeal from
MICHAEL A. GALLUZZO Common Pleas Court)
Defendant-Appellant :
. . . . . . . . .
O P I N I O N
Rendered on the 10th day of February, 2012.
. . . . . . . . .
Mark M. Feinstein, Atty. Reg. No. 0065183, 214 Scioto Street,
Urbana, OH 43078
Attorney for Plaintiff-Appellee
Michael A. Galluzzo, P.O. Box 710, St. Paris, OH 43072
Defendant-Appellant, Pro Se
. . . . . . . . .
GRADY, P.J.:
This appeal arises from a divorce proceeding between Michael
Galluzzo and Teresa Galluzzo (n.k.a. Cook). The history of the
proceeding before the trial court is quite lengthy. It is not
necessary for disposition of this appeal to recount the full history
of this lengthy litigation, but we will highlight a few, pertinent
2
points.
Michael1 and Teresa were divorced in June of 1994. Teresa
was designated the residential parent of the two children born
during their marriage: Sara, who was born on August 4, 1989, and
Kelsie, who was born on June 22, 1992. In October of 1998, Michael
filed a motion to reallocate parental rights and responsibilities
and to designate him the residential parent and legal custodian
of the two minor children. Over the next decade, the parties filed
numerous motions.
On February 5, 2009, the trial court ruled on thirteen pending
motions, denying the relief requested. As the trial court noted
in Journal Entry:
delay in this case occurred in part due to numerous
filings by the parties; continuance requests;
objections; mediation; change of counsel; psychological
evaluations; appeals; criminal proceedings; and
litigation in federal court initiated by [Michael], said
litigation occurring at both trial and appellate levels.
Both parties appealed from the February 5, 2009 judgment.
We dismissed those appeals for lack of a final order. On March
9, 2011, the trial court entered an order determining the remaining
1
For purposes of clarity and convenience, the parties
are referred to by their first names.
3
motions the parties had filed. Michael filed a notice of appeal
from the March 9, 2011 order.
FIRST ASSIGNMENT OF ERROR
“AS A MATTER OF LAW, THE TRIAL COURT ERRED IN DISMISSING
APPELLANT/DEFENDANT’S TIMELY-FILED MOTIONS WITHOUT PROVIDING HIM
A MEANINGFUL OPPORTUNITY TO BE HEARD AND HOLDING
STATUTORILY-REQUIRED HEARINGS WITHIN A MEANINGFUL TIME.”
Michael identifies nine motions he filed that were denied
by the trial court on February 5, 2009. A number of these motions
pertain to the orders allocating parental rights and
responsibilities for the care of minor children pursuant to R.C.
3109.04. It is undisputed that both children have now attained
the age of majority. There is no relief we can now grant to remedy
the errors Michael assigns. Therefore, any errors involving these
motions are moot. Michael concedes as much on page six of his
appellate brief.
Michael argues that the trial court’s denial of his remaining
motions denied him the opportunity to be heard in violation of
his right to due process. However, Michael does not identify when
that occurred, how it occurred, or where in the record the error
is portrayed. Defendant’s appellate brief, therefore, is not in
compliance with App.R. 16(A)(6) and (7), which require:
(A) Brief of the appellant
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The appellant shall include in its brief,
under the headings and
in the order indicated,
all of the following:
(6) A statement of facts relevant to the assignments
of error presented for review, with appropriate
references to the record in accordance with division
(D) of this rule.
(7) An argument containing the contentions of the
appellant with respect to each assignment of error
presented for review and the reasons in support of the
contentions, with citations to the authorities,
statutes, and parts of the record on which appellant
relies. The argument may be preceded by a summary.
Because we must presume the regularity of the trial court’s
proceedings, Michael’s failure to comply with App.R. 16 requires
us to overrule the errors he assigns.
The first assignment of error is overruled.
SECOND ASSIGNMENT OF ERROR
“AS A MATTER OF LAW, THE COURT COMMITTED PLAIN ERROR IN DENYING
JUDGMENT WHERE PLAINTIFF FAILED TO RESPOND TO DEFENDANT’S MOTIONS
AND FAILED TO RESPOND TO DEFENDANT’S MOTION FOR DEFAULT JUDGMENT.”
5
Michael argues that because Teresa failed to file a response
to his October 3, 2008 motion to vacate the orders of the trial
court pertaining to custody, after the court on October 7, 2008,
had set a deadline of October 31, 2008, for Teresa’s response,
Michael was entitled to a default judgment pursuant to Civ.R. 55
and costs pursuant to Civ.R. 54(C). We do not agree.
Civ.R. 75(F) provides, in part: “The provisions of Civ.R.
55 shall not apply in actions for divorce, annulment, legal
separation, or civil protection orders.” The underlying case was
a divorce action. Consequently, Michael could not obtain a default
judgment pursuant to Civ.R. 55.
The second assignment of error is overruled.
THIRD ASSIGNMENT OF ERROR
“THE COURT ABUSED ITS DISCRETION TO MODIFY CUSTODY TO
DEFENDANT WHERE THE TESTIMONY OF CONTINUED HOSTILITY BY PLAINTIFF,
CUSTODIAL INTERFERENCE BY THE PLAINTIFF, AND PLAINTIFF’S REPEATED
DENIAL OF ACCESS TO THE PARTY’S CHILDREN FOR DEFENDANT’S
COURT-ORDERED VISITATION, IS AGAINST THE MANIFEST WEIGHT OF THE
EVIDENCE.”
Michael argues that the trial court erred in failing to grant
a motion he filed in 1998 to modify a prior order allocating parental
rights and responsibilities and grant him sole custody of the two
minor children. As we discussed above, both children are now
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emancipated. Consequently, the error assigned is moot for the
reasons previously explained.
The third assignment of error is overruled.
FOURTH ASSIGNMENT OF ERROR
“AS A MATTER OF LAW, IT IS PLAIN ERROR FOR THE COURT TO FAIL
TO COMPLETE A STATUTORILY-REQUIRED CHILD SUPPORT RECALCULATION
AS REQUESTED, AND WHERE THE COURT SUBSTITUTED A CHILD SUPPORT
RECALCULATION MADE BY THE CSEA IN THE RECORD, WHICH RECALCULATION
THE AGENCY WAS WITHOUT JURISDICTION TO PERFORM.”
Michael argues that the trial court erred when it failed to
perform the child support recalculation that R.C. 3119.79(A)
requires when Michael sought that relief, and instead adopted a
recalculation made by the Child Support Enforcement Agency
(“CSEA”). Michael relies on O.A.C. 5101:12-60-05.1(G), which
provides:
The CSEA is not required to administratively review or
adjust a child support order when either party elects
to proceed through court, either through
self-representation or through private counsel, or an
action has been filed with the court by either party
that may have an impact on the administrative review.
O.A.C. 5101:12-60-05.1(G) does not prohibit a CSEA
recalculation, and instead provides that such an administrative
7
review or adjustment is not required.
Michael also argues that the “jurisdictional priority rule”
precludes the trial court’s adoption of the CSEA calculation.
However, CSEA is not another “court.” Furthermore, the
recalculation that R.C. 3119.79(A) requires the court to perform
does not require the court to perform the mathematical
calculations. The court may adopt a recalculation submitted by
a party or performed by CSEA if the court finds that recalculation
is correct and reasonable. Michael does not contend that the
recalculation the court adopted failed to satisfy those
requirements.
The fourth assignment of error is overruled. The judgment
of the trial court will be affirmed.
DONOVAN, J. and HALL, J. concur.
Copies mailed to:
Mark M. Feinstein, Esq.
Michael Galluzzo
Hon. Lori L. Reisinger