Simon v. Simon , 2014 Ohio 1390 ( 2014 )

[Cite as Simon v. Simon, 2014-Ohio-1390.]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT )
PAUL SIMON C.A. No. 26767
Appellee
v. APPEAL FROM JUDGMENT
ENTERED IN THE
MALINDA SIMON COURT OF COMMON PLEAS
COUNTY OF SUMMIT, OHIO
Appellant CASE No. 2007-06-1815
DECISION AND JOURNAL ENTRY
Dated: March 31, 2014
CARR, Judge.
{¶1} Appellant, Malinda Simon (“Mother”), appeals from a judgment of the Summit
County Court of Common Pleas, Domestic Relations Division, that granted her a divorce from
appellee, Paul Simon (“Father”), and determined that the more convenient forum for the child
custody matters was in the family court in Hardin County, Kentucky, where Father had been
residing for several years with the parties’ minor children. This Court affirms.
I.
{¶2} The long procedural history of this case began in June 2007 when Father filed a
complaint for divorce against Mother. During the marriage, Mother had been a homemaker and
earned no income outside the home. Although Father had been a business executive with a six-
figure salary, he lost his job at about the same time the parties’ marriage ended. He was unable
to find comparable employment and later relocated to Kentucky, where he started his own
business earning a much lower income.
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{¶3} The loss of Father’s significant income caused financial hardship for both parties.
They lost the marital home to foreclosure and eventually sought bankruptcy protection. Because
there were few marital assets left to divide, and the parties lacked adequate income to pay
spousal or child support throughout most of this case, their primary dispute was the allocation of
parental rights and responsibilities for their four minor children. The dispute ultimately centered
on Father’s relocation to Kentucky, and the opinions of the guardian ad litem, the family court
services department, and a court-appointed psychologist that Mother had untreated mental health
problems that were negatively affecting the children and that, as a result, it was in their best
interests to reside with Father.
{¶4} The trial court issued a divorce decree in September 2008, in which it designated
Father as the residential parent of the children. It left unresolved companionship rights and the
division of the parties’ property. Mother appealed from that order, but this Court dismissed the
appeal for lack of a final, appealable order.
{¶5} On December 10, 2010, Father filed a motion pursuant to R.C. 3127.21 to transfer
the child custody matters to Hardin County, Kentucky, where he had been residing with the
children. In a brief journal entry, which made no reference to R.C. 3127.21, the trial court found
“that this case is better heard * * * in the Hardin County Family Court” and the trial court
transferred “all [matters]” to that court. Mother filed a timely appeal from that order.
{¶6} In Simon v. Simon, 9th Dist. No. 25933, 2012-Ohio-3443, this Court reversed the
trial court’s transfer of jurisdiction to the Kentucky court because it failed to follow the
requirements of R.C. 3127.21. This Court did not address Mother’s other assignments of error
because the trial court had failed to issue a final, appealable order on those issues.
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{¶7} On remand, the trial court found that the parties had divided all marital property
to their satisfaction, and ordered that the Kentucky court was a more convenient forum for the
child custody matters. Until such time as the Kentucky court assumed jurisdiction, the trial court
ordered that Mother would have parenting time with the children pursuant to the standard out-of-
state parenting time order. Mother appeals and raises four assignments of error.
II.
ASSIGNMENT OF ERROR I
BY FAILING TO FOLLOW THE MANDATE OF THIS COURT’S REMAND,
THE TRIAL COURT ERRED IN GRANTING APPELLEE’S MOTION TO
TRANSFER JURISDICTION.
{¶8} Mother’s first assignment of error is that the trial court failed to follow this court’s
mandate on remand and “committed the same errors it committed previously.” In Simon v.
Simon, 2012-Ohio-3443, this Court reversed the trial court’s April 2011 transfer of jurisdiction to
Kentucky because the trial court failed to comply with the requirements of R.C. 3127.21.
Specifically, this Court held that the trial court exceeded its authority under R.C. 3127.21(A) by
transferring the entire case, including property and spousal support issues, because R.C.
3127.21(A) authorized it to transfer jurisdiction over only “child custody” matters, and it was
authorized to do so only after considering all “relevant” factors set forth in R.C. 3127.21(B). See
R.C. 3127.21(A) and (B). Given the trial court’s violation of R.C. 3127.21 and that it had failed
to mention the statute or any of the specific factors set forth in subsection (B), this Court would
not presume that the trial court considered the mandatory factors set forth in R.C. 3127.21(B).
See Simon, 2012-Ohio-3443, at ¶ 8-10. This Court reversed and remanded solely on that basis.
Id. at ¶ 12.
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{¶9} On remand, the trial court issued a new judgment on November 29, 2012, in
which it stated that it had considered all of the factors set forth in R.C. 3127.21(B) and ordered
that all matters pertaining to the children were transferred to the family court in Hardin County,
Kentucky. It further ordered that “[u]ntil such time as the Kentucky Court shall modify, the
parties shall follow the ‘Standard Out-of-State Visitation Order.’”
{¶10} Mother argues that the trial court’s 2012 judgment still did not comply with the
requirements of R.C. 3127.21(B). First, without citing any authority to support her argument,
Mother asserts that the trial court failed to comply with R.C. 3127.21(B) because it failed to
make specific findings on each of the enumerated factors, even those that were not relevant to
the facts of this case. Although the trial court was required to consider each of the enumerated
factors, if relevant, this Court did not mandate that the trial court make findings on each factor.
In fact, in the prior appeal, this Court explicitly recognized that the trial court’s consideration of
the specific factors will usually be presumed, absent something on the record to suggest
otherwise. Simon, 2012-Ohio-3443, at ¶ 8. In its judgment on remand, the trial court explicitly
stated that it had considered each of the required factors and there is nothing in its order or on the
record to contradict that statement.
{¶11} Mother further argues, as she did in her prior appeal, that the trial court failed to
comply with the requirement of R.C. 3127.21(C) that, if the court decides that a transfer to
another forum is appropriate, “it shall stay the proceedings upon condition that a child custody
proceeding be promptly commenced in another designated state[.]” To “stay” the child custody
proceedings means that the trial court postponed, halted, or suspended them. Black’s Law
Dictionary 1453 (8th Ed.2004).
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{¶12} Although the trial court did not explicitly state that it was issuing a “stay” of the
child custody proceedings, it did effectively halt or suspend them until the Kentucky court
exercised jurisdiction. The record reflects that the trial court took no further action on the child
custody matters in this case except to preserve the status quo. In its November 2012 judgment,
the trial court ordered that the parties would continue to follow the standard out-of-state
visitation schedule until the Kentucky court took action on the child custody issues.
Consequently, the trial court did not violate the requirements of R.C. 3127.21(C). Compare Witt
v. Walker, 2d Dist. Clark No. 2012-CA-58, 2013-Ohio-714, ¶ 27 (court violated R.C. 3127.21(C)
by dismissing the custody proceedings rather than staying them until the other court assumed
jurisdiction); Javigan-Nejad v. Navadeh, 8th Dist. Cuyahoga No. 95406, 2011-Ohio-2283, ¶ 54
(court erred in relinquishing jurisdiction before the other court made a decision on the matter).
Because Mother has failed to demonstrate that the trial court failed to follow this Court’s
mandate on remand, her first assignment of error is overruled.
REMAINING ASSIGNMENTS OF ERROR
{¶13} Before addressing Mother’s remaining assignments of error, this Court must
emphasize that none of them raise any further challenge to the propriety of the trial court’s
transfer of jurisdiction over the child custody matters to Kentucky. Given that this Court has
addressed Mother’s first assignment of error and determined that the trial court properly
transferred jurisdiction of the child custody matters to Kentucky, the trial court no longer has
jurisdiction to revisit those issues. See R.C. 3127.20(A) and (C); R.C. 3127.20(A).
Consequently, as we cannot provide Mother with any relief on issues pertaining to the custody of
her children, even if the trial court erred, we will confine our review of her remaining
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assignments of error to those aspects of her arguments that do not involve parental rights and
responsibilities.
ASSIGNMENT OF ERROR II
THE TRIAL COURT’S FAILURE TO GRANT A CONTINUANCE DESPITE
APPELLANT’S TWO REQUESTS WAS AN ABUSE OF DISCRETION
WHEN HER PRIOR COUNSEL WAS ALLOWED TO WITHDRAW ON THE
DAY OF TRIAL AND THE APPELLEE PRODUCED AN EXPERT REPORT
THREE DAYS BEFORE TRIAL COMMENCED.
{¶14} Mother’s second assignment of error is that the trial court erred by refusing to
grant her a continuance of the 2008 divorce hearing. The grant or denial of a continuance is
within the sound discretion of the trial judge. “An appellate court must not reverse the denial of
a continuance unless there has been an abuse of discretion.” State v. Unger, 67 Ohio St.2d 65,
67 (1981). Factors to guide the court’s discretion include:
the length of the delay requested; whether other continuances have been requested
and received; the inconvenience to litigants, witnesses, opposing counsel and the
court; whether the requested delay is for legitimate reasons or whether it is
dilatory, purposeful, or contrived; whether the [party] contributed to the
circumstance which gives rise to the request for a continuance; and other relevant
factors, depending on the unique facts of each case.
Id. at 67-68, 423 N.E.2d 1078.
{¶15} Throughout the many years that this case was pending in the trial court, the
parties continued to represent to the court that they had no significant assets to divide. They had
filed for bankruptcy protection and ultimately divided their personal property by agreement.
{¶16} On August 1, 2008, the date initially set for the divorce hearing, Mother’s counsel
requested permission to withdraw and asked the court to continue the hearing. Because an
additional trial date had already been set for August 19, nearly three weeks later, the trial judge
continued the hearing until that date to allow Mother time to obtain new counsel. The trial judge
told Mother to find a new attorney during that time.
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{¶17} Two weeks later, on August 12 and August 15, Mother filed two separate motions
for a continuance of the August 19 hearing date. The explanation for her first request was that
she needed to retain a new attorney and that no prior continuances had been granted. Her second
motion indicated that she had a “medical” reason for seeking an extension. She attached single
sheets from the prescription pads of two medical doctors, on which each doctor had briefly hand
written that Mother was under his care for depression and anxiety and that she needed a
continuance because of her emotional state at that time. Neither doctor stated that Mother was
hospitalized or unable to attend a court hearing at that time, nor did they give a projected date
when Mother would likely be more emotionally stable and prepared to proceed.
{¶18} The trial court denied the requests for an additional continuance and the matter
proceeded on August 19 without Mother in attendance. Given the circumstances in this case,
this Court cannot conclude that the trial court acted arbitrarily or unreasonably in denying
Mother an additional continuance of the hearing. Mother had already been granted one
continuance of the hearing, so that she could obtain new counsel, which was the third time that
she had changed counsel in this case because she had been unable to agree with each counsel’s
strategy. Her first request for a continuance came at the commencement of the August 1 hearing,
at which Father was prepared to proceed and had driven from Kentucky to attend, only to have
the hearing continued because Mother again wanted a new attorney. Mother continued to
request continuances without any explanation of whether she had taken any steps to retain new
counsel or when she thought she would be ready to proceed with the hearing. This case had been
pending for more than one year and the parties were in need of resolving disputes about the
custody of their four children within a reasonable time. Mother’s second assignment of error is
overruled.
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ASSIGNMENT OF ERROR III
BY FAILING TO RULE ON [MOTHER’S] THREE MOTIONS TO COMPEL
PRODUCTION OF DOCUMENTS, THE TRIAL COURT DEPRIVED
[MOTHER] OF NECESSARY FINANCIAL INFORMATION TO MODIFY
SPOUSAL SUPPORT.
{¶19} Mother’s third assignment of error is that the trial court erred in refusing to order
Father to provide her with his financial records because she needed the information to prosecute
her motion to modify spousal support. Throughout the many years that this case was pending,
Mother’s different attorneys have filed requests for production of Father’s financial documents.
Nonetheless, each time Mother and Father appeared on the record before the trial court, they
agreed that the parties had lost their home, become insolvent, and had no significant marital
assets to divide.
{¶20} Prior to the hearing on remand, Mother filed another discovery request, followed
by a motion to compel production of Father’s financial documents. At the hearing on remand,
however, Mother’s counsel did not mention Father’s failure to provide financial documentation,
nor was there anything pending before the court that required it to delve into Father’s financial
situation at that time. The parties stipulated that, aside from one computer and a compact disc
collection, they had divided their marital property to their satisfaction. Although Mother
expressed her belief that Father could be earning a much higher annual income and she now
suggests that the trial court denied her request for a modification of spousal support, she had not
filed a motion to modify the court’s order that Father would pay no spousal support. Mother’s
third assignment of error is overruled.
ASSIGNMENT OF ERROR IV
THE TRIAL COURT ERRED IN NOT GRANTING THE MOTIONS FOR
NEW TRIAL FILED SEPTEMBER 16, 2008 AND DECEMBER 13, 2012.
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{¶21} Through her final assignment of error, Mother argues that the trial court erred in
failing to grant her motions for a new divorce trial. Her arguments in support of her new trial
motions on the non-custody aspects of this case were similar to those raised in her second and
third assignments of error. She asserts that, by going forward with the August 2008 divorce
proceedings, despite the fact that her attorney had withdrawn and “her doctor’s orders” that she
could not attend, the trial court abused its discretion by failing to grant her a new trial. Mother
argues that she was entitled to a new trial under Civ.R. 59(A)(1) because these circumstances
constituted an “irregularity” in the proceedings that prevented her from having a fair trial. We
review a trial court’s decision to grant or deny a motion for a new trial for an abuse of discretion.
See Savage v. Correlated Health Servs. Ltd., 64 Ohio St.3d 42 (1992).
{¶22} An “irregularity” that would justify a new trial under Civ.R. 59(A)(1) must be “a
departure from the due, orderly and established mode of proceeding therein, where a party, with
no fault on [her] part, has been deprived of some right or benefit otherwise available to [her].”
Meyer v. Srivastava, 141 Ohio App.3d 662, 667 (2d Dist.2001). The “irregularity” alleged by
Mother is that the trial court went forward with the trial despite Mother’s doctor’s “orders” that
she could not attend. As explained already, Mother did not provide the court with doctors’
orders that she was not medically able to attend the hearing.
{¶23} Because Mother has failed to demonstrate that the trial court abused its discretion
by denying her motion for a new trial, her fourth assignment of error is overruled.
III.
{¶24} Mother’s assignments of error are overruled. The judgment of the Summit
County Court of Common Pleas, Domestic Relations Division, is affirmed.
Judgment affirmed.
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There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common
Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy
of this journal entry shall constitute the mandate, pursuant to App.R. 27.
Immediately upon the filing hereof, this document shall constitute the journal entry of
judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the
period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is
instructed to mail a notice of entry of this judgment to the parties and to make a notation of the
mailing in the docket, pursuant to App.R. 30.
Costs taxed to Appellant.
DONNA J. CARR
FOR THE COURT
MOORE, P. J.
WHITMORE, J.
CONCUR.
APPEARANCES:
GEORGE M. MILLER, Attorney at Law, for Appellant.
RANDAL LOWRY, Attorney at Law, for Appellee.