Howell v. Howell , 2014 Ohio 2195 ( 2014 )


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  • [Cite as Howell v. Howell, 
    2014-Ohio-2195
    .]
    IN THE COURT OF APPEALS OF OHIO
    TENTH APPELLATE DISTRICT
    Cynthia L. Howell,                                :
    Plaintiff-Appellant,             :               No. 13AP-961
    (C.P.C. No. 10DR-10-4384)
    v.                                               :
    (REGULAR CALENDAR)
    Cecil Howell,                                     :
    Defendant-Appellee.               :
    D E C I S I O N
    Rendered on May 22, 2014
    Mark K. Sabath, for appellant.
    APPEAL from the Franklin County Court of Common Pleas,
    Division of Domestic Relations.
    BROWN, J.
    {¶ 1} Cynthia L. Howell, plaintiff-appellant, appeals from a judgment of the
    Franklin County Court of Common Pleas, Division of Domestic Relations, in which the
    court dismissed appellant's motion for contempt and found void the decree of divorce
    between appellant and Cecil Howell, defendant-appellee.
    {¶ 2} On November 9, 1985, appellant and appellee were married. Three children
    were born during the marriage. On October 22, 2010, appellant filed a complaint for
    divorce. Appellee waived service of summons on the same date pursuant to Civ.R. 4(D).
    On November 29, 2010, the trial court entered an agreed judgment entry decree of
    divorce and shared parenting plan.
    No. 13AP-961                                                                                2
    {¶ 3} On May 14, 2013, appellant filed a motion for contempt alleging appellee
    had not complied with the terms of the shared parenting plan. The trial court held a
    hearing on the motion for contempt on July 16, 2013.
    {¶ 4} On October 10, 2013, the trial court issued a judgment entry in which it
    dismissed appellant's motion for contempt and found the parties' decree of divorce void
    based upon a violation of Civ.R. 75(K), which requires that 42 days must elapse between
    service and the filing of the divorce decree. Appellant appeals the judgment of the trial
    court, asserting the following assignment of error:
    THE    TRIAL     COURT      ERRED       AND     ABUSED      ITS
    DISCRETION WHEN IT FOUND THAT CIVIL RULE 75(K)
    IS SUBSTANTIVE AND NOT PROCEDURAL.
    {¶ 5} Appellant argues in her assignment of error that the trial court erred when it
    found that Civ.R. 75(K) is substantive and not procedural. Civ.R. 75(K) provides, in
    pertinent part:
    No action for divorce, annulment, or legal separation may be
    heard and decided until the expiration of forty-two days after
    the service of process or twenty-eight days after the last
    publication of notice of the complaint.
    {¶ 6} Here, the trial court found that appellant filed her divorce action on
    October 22, 2010, with appellee filing a waiver of service of summons, pursuant to Civ.R.
    4(D) the same date, and the divorce decree was filed on November 29, 2010. The court
    noted that the elapsed time between the service of process waiver and the divorce decree
    was 38 days, which is less than the mandated 42-day period required by Civ.R. 75(K). The
    trial court concluded that, because Civ.R. 75(K) is substantive, rather than procedural, the
    parties' divorce decree was void.
    {¶ 7} "Jurisdiction" is a court's statutory or constitutional power to adjudicate the
    case. Morrison v. Steiner, 
    32 Ohio St.2d 86
    , 87 (1972), paragraph one of the syllabus. The
    term "jurisdiction" encompasses jurisdiction over the subject matter, over the person, and
    over the particular case. Pratts v. Hurley, 
    102 Ohio St.3d 81
    , 
    2004-Ohio-1980
    , ¶ 11.
    Jurisdiction over the particular case involves the trial court's authority to determine a
    specific case within the class of cases that is within its subject-matter jurisdiction. Id. at
    ¶ 12.
    No. 13AP-961                                                                             3
    {¶ 8} Procedural irregularities affect the court's jurisdiction over the particular
    case and render a judgment voidable, whereas a judgment rendered by a court that lacks
    subject-matter jurisdiction is void. In re J.J., 
    111 Ohio St.3d 205
    , 
    2006-Ohio-5484
    ,
    paragraph one of syllabus. A voidable judgment is one rendered by a court having subject-
    matter jurisdiction and, although seemingly valid, is irregular and erroneous. GMAC,
    L.L.C. v. Greene, 10th Dist. No. 08AP-295, 
    2008-Ohio-4461
    , ¶ 26, citing State v.
    Montgomery, 6th Dist. No. H-02-039, 
    2003-Ohio-4095
    , ¶ 9, citing Black's Law
    Dictionary 848 (7th Ed.1999). A void judgment is considered a legal nullity. Id. at ¶ 27,
    citing Montgomery at ¶ 10, citing Clark v. Wilson, 11th Dist. No. 2000-T-0063 (July 28,
    2000). A court has the inherent authority to vacate a void judgment and that void
    judgment may be challenged at any time. Milton Banking Co. v. Dulaney, 4th Dist. No.
    09CA10, 
    2010-Ohio-1907
    , ¶ 26. To the contrary, a voidable judgment may be challenged
    only on direct appeal or a Civ.R. 60(B) motion. GMAC at ¶ 26, citing Montgomery at ¶ 9.
    A court has no inherent authority to vacate voidable judgments. McIntyre v. Braydich,
    11th Dist. No. 96-T-5602 (Dec. 5, 1997).
    {¶ 9} Accordingly, in the present case, if the trial court's failure to comply with
    Civ.R. 75(K) rendered the decree of divorce void, then the trial court possessed the
    inherent authority to vacate the same at any time. However, if the trial court's failure to
    comply with Civ.R. 75(K) rendered the decree of divorce voidable, then the trial court did
    not possess inherent authority to vacate it.
    {¶ 10} In arriving at its conclusion that Civ.R. 75(K) is substantive and the
    violation thereof rendered the decree void, the trial court relied upon Clark v. Clark, 5th
    Dist. No. 06 CA 8, 
    2006-Ohio-2902
    . In Clark, the court vacated a final divorce decree
    that had been issued 38 days after service of process, based upon Civ.R. 75(K). The court
    in Clark, in turn, relied upon Robinette v. Robinette, 
    41 Ohio App.3d 25
     (5th Dist.1988).
    In Robinette, the court discussed the history of Ohio's "cooling off" or waiting period
    between filing and hearing, which was found in Civ.R. 75(J) at that time. The court found
    that Civ.R. 75(J) continued the 42-day hearing waiting period after the repeal of R.C.
    3105.09, which included a similar provision. The court in Robinette "reject[ed] the
    argument that the Civil Rule adoption and statutory repeal converted the waiting period
    from a nonwaivable (substantive) right to a waivable (procedural) right, and conclude[d]
    No. 13AP-961                                                                                4
    that the Ohio Supreme Court intended to preserve the concept of a 'waiting period' as
    previously recited in Ohio legislation, i.e., the forty-two day (twenty-eight day) waiting
    period may not be waived." Id. at 27. Thus, the court in Robinette found a "trial court errs
    as a matter of law when it grants an alimony decree prior to forty-two days after service of
    process, or waiver thereof, or twenty-eight days after completion of service by
    publication." Id.
    {¶ 11} However, the court in Clark acknowledged that the Second District Court of
    Appeals in Wagner v. Wagner, 2d Dist. No. 81-CA-1 (July 1, 1981), came to a different
    conclusion. In Wagner, the court found that the waiting period in Civ.R. 75(J), as part of a
    procedural civil rule, neither extended nor limited the jurisdiction of the common pleas
    court. In addressing whether Civ.R. 75(J) was a substantive or procedural law, the court
    noted that Civ.R. 82 provides that the Ohio Rules of Civil Procedure "shall not be
    construed to extend or limit the jurisdiction of the courts of this state." The court went on
    to explain that the staff note to Civ.R. 82 states that subject-matter jurisdiction of several
    courts is established by the Constitution and statutes of Ohio, and the Ohio Rules of Civil
    Procedure do not broaden or narrow that jurisdiction; the rules, procedural in nature,
    merely facilitate the application of that jurisdiction. The court in Wagner found that,
    while "cooling off" statutes in other jurisdictions have been held to be jurisdictional, Ohio
    has no such "cooling off" statute with the repeal of R.C. 3105.09. Id. Rather, the court
    found, "cooling off" provisions are now contained in a procedural civil rule that neither
    extends nor limits the jurisdiction of the common pleas court pursuant to Civ.R. 82.
    {¶ 12} We believe Wagner provides the better analysis and concur that, given the
    explicit wording of Civ.R. 82 that the Ohio Rules of Civil Procedure cannot broaden or
    narrow the jurisdiction of the courts, the 42-day waiting period provided in Civ.R. 75(K) is
    procedural in nature. See, e.g., Buckles v. Buckles, 
    46 Ohio App.3d 118
     (10th Dist.1988)
    (neither the Civil Rules nor any other procedural rule promulgated by the Supreme Court
    of Ohio can determine the jurisdiction of a court even if they purport to do so, because the
    Ohio Constitution, Article IV, Section 5(B), does not permit the procedural rules to
    determine jurisdiction or any substantive right, citing Civ.R. 82); Dowdle v. Dowdle, 7th
    Dist. No. 482 (Aug. 7, 1997) (the Civil Rules do not determine the jurisdiction of an
    appellate court, a trial court, or any other court; jurisdiction is determined by the Ohio
    No. 13AP-961                                                                               5
    Constitution, and Civ.R. 82 validates such); Brooks v. Brooks, 2d Dist. No. 15789 (Nov. 8,
    1996) (unquestionably, all civil rules are procedural devices that do not extend or limit the
    jurisdiction of the courts of this state, as declared in Civ.R. 82). Thus, because a
    procedural irregularity renders a judgment merely voidable, and a court does not have
    any inherent authority to vacate a voidable judgment, the trial court here could not vacate
    the parties' divorce decree for failure to comply with the 42-day rule in Civ.R. 75(K) while
    only appellant's motion for contempt was before the court. For these reasons, the trial
    court erred when it found the divorce decree void. Therefore, appellant's assignment of
    error is sustained.
    {¶ 13} Accordingly, we sustain appellant's sole assignment of error and reverse the
    judgment of the Franklin County Court of Common Pleas, Division of Domestic Relations.
    Judgment reversed.
    O'GRADY and LUPER SCHUSTER, JJ., concur.
    __________________
    

Document Info

Docket Number: 13AP-961

Citation Numbers: 2014 Ohio 2195

Judges: Brown

Filed Date: 5/22/2014

Precedential Status: Precedential

Modified Date: 4/17/2021