Guadalupe v. Minadeo ( 2012 )

[Cite as Guadalupe v. Minadeo, 2012-Ohio-5071.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 98077
GLADISA M. GUADALUPE
PLAINTIFF-APPELLEE
vs.
LAWRENCE MINADEO
DEFENDANT-APPELLEE
[Appeal by Steven E. Wolkin, Guardian Ad Litem]
JUDGMENT:
AFFIRMED
Civil Appeal from the
Cuyahoga County Common Pleas Court
Domestic Relations Division
Case No. D-333104
BEFORE: S. Gallagher, J., Stewart, P.J., and E. Gallagher, J.
RELEASED AND JOURNALIZED: November 1, 2012
ATTORNEY FOR APPELLANT
Steven E. Wolkin
820 W. Superior Avenue
Suite 510
Cleveland, OH 44113
ATTORNEYS FOR APPELLEES
For Gladisa M. Guadalupe
John V. Heutsche
John V. Heutsche Co., L.P.A.
Hoyt Block Building, Suite 220
700 West St. Clair Avenue
Cleveland, OH 44113-1274
For Lawrence Minadeo
Anne C. Fantelli
Gregory J. Moore
Stafford & Stafford Co., L.P.A.
55 Erieview Plaza, 5th Floor
Cleveland, OH 44114
SEAN C. GALLAGHER, J.:
{¶1} This cause came to be heard upon the accelerated calendar pursuant to
App.R. 11.1 and Loc.R. 11.1, the trial court records, and briefs of counsel. The guardian
ad litem and counsel on behalf of the child appeals from the denial by the Cuyahoga
County Court of Common Pleas, Domestic Relations Division, of his motion for relief of
judgment and motion for guardian ad litem fees. For the reasons that follow, we affirm.
{¶2} The parties were married on July 5, 2001, and had one child. Mother filed
her complaint for divorce on August 25, 2010. Father filed his answer on September 29,
2010.
{¶3} The parties engaged in settlement negotiations relating to custody and
visitation on November 7, 2011, the day set for trial before a magistrate. The guardian
ad litem participated in the negotiations. The parties reached and signed a shared
parenting plan following the negotiations.
{¶4} Because the parties signed the shared parenting plan and all that remained to
be decided was the division of property, and the parties’ assets and debts, the magistrate
told the guardian ad litem that it was not necessary for him to attend the next day’s
negotiations. The parties settled all remaining issues on November 8, 2011.
{¶5} The guardian ad litem received on November 14, 2011, a copy of the divorce
decree dated November 9, 2011. He found the following language inserted in it:
The Report of the Guardian Ad Litem is stricken from the record and that
Report * * * shall remain confidential and under seal. Plaintiff,
Defendant, or any counsel involved in these proceedings are enjoined from
discussing any portion of [the report] with any person or from publishing,
disseminating, or circulating the [report] or any portions thereof.
{¶6} On December 13, 2011, the guardian ad litem filed a motion for relief of
judgment and a motion for guardian ad litem fees. In the motion for relief of judgment,
he asserted the parties and their counsel inserted the above language in the divorce decree
without his knowledge and consent. In his other motion, the guardian ad litem sought
additional fees for the work done in connection with the motion for relief from judgment.1
The trial court denied the motions on March 6, 2012, without holding a hearing on either
motion.
{¶7} In his first assignment of error, the guardian ad litem repeats the arguments
contained in his motion for relief of judgment. He asserts the trial court abused its
discretion by not granting the motion and thereby removing the contested language from
the divorce decree and returning the guardian ad litem’s report to the court file. The
guardian ad litem argues that by not doing so, he is barred from ever communicating with
any future guardian appointed on behalf of the child, either verbally or through his report.
In the second assignment of error, the guardian ad litem argues that the trial court abused
1
The guardian ad litem was paid for all other fees for services provided in this matter.
its discretion when it failed to conduct an evidentiary hearing before ruling on his motion
for relief of judgment and motion for guardian ad litem fees.
{¶8} A Civ.R. 60(B) motion for relief from judgment, however, may not be used
as a substitute for a timely appeal. Doe v. Trumbull Cty. Children Servs. Bd., 28 Ohio
St.3d 128, 502 N.E.2d 605 (1986), paragraph two of the syllabus. When a party merely
reiterates arguments that concern the merits of the case and that could have been raised on
appeal, relief under Civ.R. 60(B) is not available as a substitute for appeal. Wozniak v.
Tonidandel, 121 Ohio App.3d 221, 228, 699 N.E.2d 555 (8th Dist.1997).
{¶9} The guardian ad litem’s appeal and Civ.R. 60(B) motion relate to the final
divorce decree dated November 9, 2011. In his appellate brief, the guardian ad litem
admitted to receiving a copy of the decree on November 14, 2011. The guardian ad
litem did not timely appeal from the decree; rather, he filed a Civ.R. 60(B) motion for
relief of judgment on December 13, 2011. In that motion, the guardian ad litem failed to
allege or demonstrate any circumstances arising under Civ.R. 60(B)(1) through (5) to
support relief from judgment that could not have been raised in a direct appeal. His
motion was, therefore, improperly filed as a substitute for an appeal, and the trial court
correctly denied it as well as the motion for guardian ad litem fees. Doe; Wozniak.
{¶10} The guardian ad litem’s assignments of error are overruled.
{¶11} Judgment affirmed.
It is ordered that appellees recover from appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the common
pleas court, domestic relations division, 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.
SEAN C. GALLAGHER, JUDGE
EILEEN A. GALLAGHER, J., CONCURS;
MELODY J. STEWART, P.J., CONCURS IN JUDGMENT ONLY WITH SEPARATE
OPINION
MELODY J. STEWART, P.J., CONCURRING IN JUDGMENT ONLY:
{¶12} I concur with the decision reached by the majority, but write separately only
to state that I believe the guardian ad litem appropriately filed a Civ.R. 60(B) motion for
relief from judgment. The motion was not a substitute for an appeal because the reason
the guardian sought relief from judgment was because there were provisions included in
the order about which he was not consulted and to which he did not agree. I do not see
how this claim could be examined via the record on appeal.