Calhoun v. Calhoun , 2014 Ohio 703 ( 2014 )

[Cite as Calhoun v. Calhoun, 2014-Ohio-703.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 99955
RITA J. CALHOUN
PLAINTIFF-APPELLANT
vs.
TYRONE CALHOUN
DEFENDANT-APPELLEE
JUDGMENT:
AFFIRMED
Civil Appeal from the
Cuyahoga County Court of Common Pleas
Domestic Relations Division
Case No. CP D-263552
BEFORE: Blackmon, J., Keough, P.J., and E.A. Gallagher, J.
RELEASED AND JOURNALIZED: February 27, 2014
FOR APPELLANT
Rita J. Calhoun, Pro Se
25340 Easy Street
Bedford Hts., Ohio 44146
ATTORNEY FOR APPELLEE
George W. MacDonald
514 Glen Park Drive
Bay Village, Ohio 44140
PATRICIA ANN BLACKMON, J.:
{¶1} Appellant Rita Calhoun (“Mother”) appeals from an order of the court of
common pleas, domestic relations division, dated May 31, 2013. Having reviewed the
record and pertinent law, we affirm the trial court’s order. The apposite facts follow.
{¶2} On October 14, 1998, Mother filed for divorce from appellee, Tyrone Calhoun
(“Father”). On October 1, 1999, the trial court filed a judgment entry that granted the
divorce, dispensed of the parties’ assets, awarded Mother primary custody of their disabled
child, Aaron, presently 22 years old, outlined Father’s child support obligations, and
provided a visitation schedule. Over the next several years, the parties filed numerous
motions regarding visitation and child support issues.
{¶3} On March 26, 2012, Father filed a motion to terminate child support citing
his belief that Aaron was capable of providing for his own support. On September 11,
2012, Mother filed a motion to modify child support. On November 8, 2012, the matter
proceeded to a full hearing before a magistrate.
During the hearing, Mother voluntarily withdrew her motion to modify child support.
{¶4} Father testified that based on Aaron’s disability, he had agreed to continue
paying child support past Aaron’s nineteenth birthday. He also testified that based on the
training and education that Aaron had been receiving, he was capable of providing his own
support. In addition, Father testified about his desire to retire, citing a myriad of medical
issue including heart, vision, and hearing as a basis.
{¶5} Mother presented a journalized order from the probate court that determined
Aaron to be incompetent and that appointed Mother as guardian. Mother also presented a
Guardian’s Report, dated June 15, 2012, that included a Statement of Expert Evaluation.
The self-authenticating expert report characterized Aaron as having Down syndrome,
being severely disabled, and requiring constant supervision.
{¶6} On November 16, 2012, Mother filed a motion styled “Motion To Strike
Trial Held on November 8, 2012 Without Pre Trials with Inclusion of ‘Special Mandate’
which Denies Proper Support of Disabled Child and Allows County Case Tampering.”
{¶7} On February 11, 2013, the magistrate issued a decision denying Father’s
motion to terminate child support. The magistrate’s decision also dismissed Mother’s
motion to modify child support, based on Mother’s voluntary withdrawal of the motion.
In addition, the magistrate’s decision denied Mother’s motion to strike the trial held on
November 8, 2012.
{¶8} On February 25, 2013, Mother filed objections to the magistrate’s decision.
On that same date, Father filed preliminary objections, and on March 18, 2013, filed
supplemental objections to the magistrate’s decision. On March 28, 2013, Mother filed a
motion to strike Father’s supplemental objections. On May 31, 2013, the trial court
adopted the magistrate’s decision.
{¶9} Mother now appeals and asserts as error, the following:
I. The lower court erred when it joined the motion to modify child support
with non-parenting deviation filed on September 11, 2012 to the motion to
terminate child support filed on March 26, 2012 as the later was ordered into
full hearing, without pretrial, on September 12, 2012.
II. The lower court erred on October 25, 2012, when it scheduled both
causes for full hearing on November 8, 2012 and mailed notification to an
incorrect address allowing less than 14 days to discover the notice and
prepare for full trial.
III. The lower court erred when it moved to full trial on a motion to modify
child support without the parties’ completion of the required income and
expense statement with affidavit (post decree) in accordance with Local Rule
19 and Ohio Revised Code 3119.05(A).
IV. The lower court erred when it used these proceedings for the purposes of
illegally terminating the child support of this mentally disabled child.
V. The lower court erred when it ignored the defendant’s income and
entered a support order without obtaining the financial information upon
which it should be based according to law.
{¶10} In the instant case, Mother’s first three errors concern the trial court’s alleged
failure to grant a continuance relative to her motion to modify the child support.
However, the record reveals that Mother voluntarily withdrew the motion to modify the
child support, thus rendering the aforementioned errors moot.
{¶11} Further, Mother’s remaining errors concern Father’s motion to terminate
child support. However, the record reveals that the trial court denied Father’s motion to
terminate. As such, Mother was the prevailing party, again rendering these errors
moot.
{¶12} An appeal is moot when there is no actual controversy to be resolved by the
appeal, which would result in this court issuing a mere advisory opinion on abstract
questions. 2115-2121 Ontario Bldg., L.L.C. v. Anter, 8th Dist. Cuyahoga Nos. 98255 and
98296, 2013-Ohio-2993, citing Thomas v. Cleveland, 140 Ohio App.3d 136, 142, 746
N.E.2d 1130 (8th Dist. 2000).
{¶13} An appeal is moot when it is impossible for this court to decide the case in
favor of the appellant and provide the appellant any effectual relief. Id., citing State ex
rel. Eliza Jennings, Inc. v. Noble, 49 Ohio St.3d 71, 74, 551 N.E.2d 128 (1990).
{¶14} Finally, the conduct of Mother, through the continued filing of appeals, may
result in Mother being declared a vexatious litigator. Pursuant to Loc.App.R. 23(A), an
appeal or original action shall be considered frivolous if it is not reasonably grounded in
fact or warranted by existing law. Loc.App.R. 23(B) further provides that a party that
habitually, persistently, and without reasonable cause engages in frivolous conduct, may
be declared a vexatious litigator subject to filing restrictions. Mother has taxed the
limited resources of this court through the continuous filing of appeals that are not
reasonably grounded in fact or warranted by existing law. Thus, Mother is forewarned
that the continued filing of appeals, that are not reasonably grounded in fact or warranted
by existing law, shall result in the declaration of her being a vexatious litigator.
Accordingly, we overrule Mother’s assigned errors.
{¶15} Judgment affirmed.
It is ordered that appellee recover from appellants costs herein taxed.
It is ordered that a special mandate be sent to said court to carry this judgment into
execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the
Rules of Appellate Procedure.
PATRICIA ANN BLACKMON, JUDGE
KATHLEEN ANN KEOUGH, P.J., and
EILEEN A. GALLAGHER, J., CONCUR