Crites v. Crites , 2019 Ohio 1043 ( 2019 )


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  • [Cite as Crites v. Crites, 2019-Ohio-1043.]
    IN THE COURT OF APPEALS OF OHIO
    THIRD APPELLATE DISTRICT
    DEFIANCE COUNTY
    ROBYN D. CRITES,
    PLAINTIFF-APPELLEE,                              CASE NO. 4-18-03
    v.
    DOUGLAS CRITES,                                          OPINION
    DEFENDANT-APPELLANT.
    Appeal from Defiance County Common Pleas Court
    Domestic Relations Division
    Trial Court No. 13 DR 42537
    Motion Granted and Appeal Dismissed
    Date of Decision: March 25, 2019
    APPEARANCES:
    Jason N. Flower for Appellant
    Clayton J. Crates for Appellee
    Case No. 4-18-03
    PRESTON, J.
    {¶1} Defendant-appellant, Douglas Crites (“Douglas”), appeals the May 3,
    2018 judgment of the Defiance County Court of Common Pleas that, among other
    things, granted Douglas a divorce from plaintiff-appellee, Robyn Crites (“Robyn”),
    and ordered Douglas to pay a share of the attorney’s fees Robyn incurred in
    connection with the divorce proceedings. For the reasons that follow, we find that
    Douglas voluntarily satisfied the portion of the trial court’s judgment relevant to his
    appeal. Accordingly, we conclude that Douglas’s appeal has been rendered moot,
    and we dismiss his appeal.
    {¶2} On September 4, 2013, Robyn filed a complaint requesting a divorce
    from Douglas. (Doc. No. 1). On November 3, 2017, after more than four years of
    litigation, the magistrate issued his decision recommending that Robyn be granted
    a divorce from Douglas “on the grounds of incompatibility.” (Doc. No. 129).
    Relevant to this appeal, the magistrate also recommended that Douglas be ordered
    to pay Robyn’s attorney’s fees in the amount of $13,000 “within 120 days of the file
    date of the final judgment entry.” (Id.). Neither Douglas nor Robyn filed objections
    to the magistrate’s decision.
    {¶3} On May 3, 2018, the trial court filed its judgment adopting the
    magistrate’s findings and recommendations.         (Doc. No. 130).     In addition to
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    granting Robyn and Douglas “an absolute divorce from each other,” the trial court
    ordered in pertinent part:
    The Defendant shall pay to Plaintiff attorney fees in the amount of
    Thirteen Thousand Dollars ($13,000.00). Said amount shall be paid
    within one hundred twenty (120) days from the filing of this Final
    Judgment Entry. Plaintiff is hereby granted a lump sum judgment in
    the amount of $13,000.00 not to be enforced unless Defendant
    violates the terms of this order.
    (Id.).
    {¶4} On June 1, 2018, Douglas filed a notice of appeal. (Doc. No. 132). He
    raises one assignment of error for our review.
    Assignment of Error
    The trial court committed plain error by ordering Appellant to
    pay $13,000.00 to Appellee for attorney fees.
    {¶5} Before addressing the merits of Douglas’s assignment of error, we must
    determine whether intervening events have rendered Douglas’s appeal moot. On
    January 4, 2019, Robyn filed in this court a motion to dismiss Douglas’s appeal.
    Douglas filed a memorandum in opposition to Robyn’s motion to dismiss on
    February 1, 2019. In her motion, Robyn states that “[i]n compliance with the Final
    Judgment Entry, [Douglas] paid the Thirteen Thousand Dollars ($13,000.00) of
    [her] attorney’s fees on August 10, 2018.” (Appellee’s Motion to Dismiss at 2).
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    Robyn further notes that Douglas “never filed a supersedeas bond pursuant to ORC
    §2505.09 or requested a stay of execution from the order.” (Id. at 1). Robyn
    concludes that Douglas thus “voluntarily satisfied the judgment that is the basis of
    his appeal,” and as a result, his appeal “should be dismissed as being moot.” (Id. at
    3).
    {¶6} “The doctrine of mootness is rooted both in the ‘case’ or ‘controversy’
    language of Section 2, Article III of the United States Constitution and in the general
    notion of judicial restraint.” James A. Keller, Inc. v. Flaherty, 
    74 Ohio App. 3d 788
    ,
    791 (10th Dist.1991). “While Ohio has no constitutional counterpart to Section 2,
    Article III, the courts of Ohio have long recognized that a court cannot entertain
    jurisdiction over a moot question.” 
    Id. “‘The duty
    of [the court] * * * is to decide actual controversies by a
    judgment which can be carried into effect, and not to give opinions
    upon moot questions or abstract propositions, or to declare principles
    or rules of law which cannot affect the matter in issue in the case
    before it.’”
    Empaco Equip. Corp. v. Maximus Consulting, L.L.C, 9th Dist. Summit No. 27468,
    2015-Ohio-1801, ¶ 5, quoting Miner v. Witt, 
    82 Ohio St. 237
    , 238 (1910), quoting
    Mills v. Green, 
    159 U.S. 651
    , 653, 
    16 S. Ct. 132
    (1895). “In other words, an issue
    is moot when it has no practical significance, being instead merely hypothetical or
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    academic.” In re Guardianship of Weller, 2d Dist. Montgomery No. 24337, 2011-
    Ohio-5816, ¶ 7. “‘“It necessarily follows that when, pending an appeal from the
    judgment of a lower court, * * * an event occurs which renders it impossible for
    th[e] court * * * to grant [the party] any effectual relief whatever, the court will not
    proceed to a formal judgment, but will dismiss the appeal.”’” Empaco at ¶ 5,
    quoting Miner at 238, quoting Mills at 653.
    {¶7} Robyn argues that Douglas’s appeal is moot because he voluntarily
    satisfied the part of the trial court’s judgment directing him to pay her $13,000 for
    attorney’s fees. In support of this argument, Robyn attaches three exhibits to her
    motion to dismiss: a photocopy of a check payable to Robyn for $13,000 dated
    August 10, 2018 that is signed by Douglas and that specifies that it is for “Attorney
    fees”; a photocopy of a checking deposit slip showing that Robyn deposited $13,000
    into her checking account on August 13, 2018; and a photocopy of a check for
    $13,000 dated August 15, 2018 that is signed by Robyn and payable to “Arthur Law
    Firm Co., L.P.A.” (Appellee’s Motion to Dismiss, Exs. A, B, C). Ordinarily, this
    court may not consider evidence outside of the record. Sullivan v. Willhoite, 2d
    Dist. Montgomery No. 27968, 2018-Ohio-4234, ¶ 11 (“Under well-established law,
    appellate courts are limited to the record before the trial court and cannot consider
    documents or matters that are not in the record.”). However, “‘“an event that causes
    a case to be moot may be proved by extrinsic evidence outside the record.”’” Solon
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    v. Solon, 5th Dist. Stark No. 2017CA00210, 2018-Ohio-3147, ¶ 23, quoting State
    ex rel. Nelson v. Russo, 
    89 Ohio St. 3d 227
    , 228 (2000), quoting Pewitt v. Lorain
    Corr. Inst., 
    64 Ohio St. 3d 470
    , 472 (1992). Therefore, we may properly consider
    whether the documents Robyn attaches to her motion to dismiss support her claim
    that Douglas’s appeal is moot.
    {¶8} Robyn’s exhibits establish that Douglas’s tendered check for $13,000
    contained a notation indicating that the check was for “Attorney fees,” that Robyn
    promptly deposited the funds into her personal bank account, and that Robyn then
    tendered her payment of $13,000 to her trial counsel’s law firm on August 15, 2018.
    (Appellee’s Motion to Dismiss, Exs. A, B, C). Douglas does not dispute the
    authenticity of Robyn’s exhibits, and we have not found any reason to question their
    legitimacy. Additionally, and significantly, Douglas concedes that he made a
    “payment of the attorney’s fees” to Robyn. (Appellant’s Reply Brief at 6-7). Hence,
    we find that Douglas paid Robyn $13,000 on August 10, 2018 in accordance with
    the trial court’s judgment.
    {¶9} Having found that Douglas gave $13,000 to Robyn in August 2018 as
    payment for attorney’s fees, we next consider whether Douglas’s payment
    constitutes a voluntary satisfaction of the portion of the trial court’s judgment
    relevant to his appeal. “It is a well-established principle of law that a satisfaction of
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    judgment renders an appeal from that judgment moot.” Blodgett v. Blodgett, 
    49 Ohio St. 3d 243
    , 245 (1990).
    “‘Where the court rendering judgment has jurisdiction of the subject-
    matter of the action and of the parties, and fraud has not intervened,
    and the judgment is voluntarily paid and satisfied, such payment puts
    an end to the controversy, and takes away from the defendant the right
    to appeal or prosecute error or even to move for vacation of
    judgment.’”
    (Emphasis added.) 
    Id., quoting Rauch
    v. Noble, 
    169 Ohio St. 314
    , 316 (1959),
    quoting Lynch v. Lakewood City School Dist. Bd. of Edn., 
    116 Ohio St. 361
    (1927),
    paragraph three of the syllabus. See Haendiges v. Haendiges, 
    82 Ohio App. 3d 720
    ,
    724 (3d Dist.1992). This principle applies with equal force in circumstances where
    the trial court’s judgment contains multiple discrete, severable judgments and the
    appealing party has satisfied one or more but fewer than all of the judgments. See
    Hoover Kacyon, L.L.C. v. Martell, 5th Dist. Stark No. 2018CA00018, 2018-Ohio-
    4928, ¶ 26-31; Ross v. Wendel, 12th Dist. Clermont No. CA2016-10-070, 2017-
    Ohio-7804, ¶ 20; Shumaker v. Hamilton Chevrolet, Inc., 
    184 Ohio App. 3d 326
    ,
    2009-Ohio-5263, ¶ 13-16 (4th Dist.). But see Blood v. Nofzinger, 
    162 Ohio App. 3d 545
    , 2005-Ohio-3859, ¶ 3, 9-10, 20 (6th Dist.). In such cases, complete satisfaction
    of one of the judgments renders an appeal from that judgment moot without
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    necessarily rendering moot appeals from the other judgments for which satisfaction
    has not been obtained. See Hoover Kacyon at ¶ 26-31; Shumaker at ¶ 13-16.
    {¶10} Douglas does not contest that the trial court had subject-matter
    jurisdiction or jurisdiction over him and Robyn, and he does not allege fraud of any
    kind. Furthermore, Douglas does not dispute that he satisfied the portion of the trial
    court’s judgment ordering him to pay Robyn $13,000 for attorney’s fees. Instead,
    Douglas notes that a satisfaction of judgment renders an appeal from that judgment
    moot only when the appealing party voluntarily satisfies the judgment. See Blodgett
    at 245. He argues that he did not voluntarily satisfy the judgment for attorney’s fees
    and that consequently, his appeal from that portion of the trial court’s judgment is
    not moot. Douglas offers two primary arguments to explain why the satisfaction
    was not voluntary.
    {¶11} First, Douglas argues that “the payment of the attorney’s fees was not
    voluntary because [he] * * * file[d] a motion to stay, therefore showing that he did
    not agree with the court’s order.” (Appellant’s Reply Brief at 6). Generally, a party
    may avoid a voluntary satisfaction of judgment by moving to stay execution of the
    judgment and by posting a supersedeas bond in an amount deemed by the trial court
    to be adequate to secure the judgment. See R.C. 2505.09; Civ.R. 62(B); App.R.
    7(A), (B). “‘Once the appellant obtains the stay of execution, neither the trial court
    nor the non-appealing party is able to enforce the judgment.’” Alan v. Burns, 9th
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    Dist. Medina No. 3271-M, 2002-Ohio-7313, ¶ 5, quoting LaFarciola v. Elbert, 9th
    Dist. Lorain No. 98CA007134, 
    1999 WL 1215115
    , *2 (Dec. 8, 1999). “‘The lone
    requirement of Civ.R. 62(B) is the giving of an adequate supersedeas bond.’” 
    Id., quoting State
    ex rel. Ocasek v. Riley, 
    54 Ohio St. 2d 488
    , 490 (1978). Conversely,
    “[a] judgment is voluntarily satisfied ‘where the party fails to seek a stay prior to
    the satisfaction of [the] judgment.’” Summit Servicing Agency, L.L.C. v. Hunt, 9th
    Dist. Summit No. 28699, 2018-Ohio-2494, ¶ 13, quoting CommuniCare Health
    Servs., Inc. v. Murvine, 9th Dist. Summit No. 23557, 2007-Ohio-4651, ¶ 20.
    {¶12} Here, Douglas did file a motion to stay execution of the trial court’s
    May 3, 2018 judgment. (Doc. No. 138). However, the scope of the requested stay
    was limited:
    Defendant * * * hereby requests that this Court stay the execution of
    the distribution of property pursuant to Exhibits 29, 31, and 33, as
    these issues are a part of the appeal Defendant has filed
    contemporaneously.
    Defendant makes this request as there is no supporting evidence * * *
    explain[ing] the Court’s decision to include the above referenced
    exhibits in the property distribution, as they were not included in the
    original Separation Agreement approved by this Court’s Magistrate’s
    Decision and again by this Court’s Judgment Entry.
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    (Id.). Exhibits 29, 31, and 33 are lists of personal property that Robyn wished to
    retain after her divorce from Douglas. (See Doc. No. 130, Plaintiff’s Exs. 29, 31,
    33). Exhibits 29, 31, and 33 do not contain any reference to attorney’s fees, and
    Douglas’s motion to stay does not otherwise mention attorney’s fees. Accordingly,
    even if the trial court had granted Douglas’s motion to stay,1 the stay would have
    affected only the portion of the trial court’s judgment relating to the distribution of
    the property listed in Exhibits 29, 31, and 33; execution of the judgment for
    attorney’s fees would not have been stayed. Thus, with respect to the judgment for
    attorney’s fees, Douglas completely failed to seek any stay prior to the satisfaction
    of judgment. Because Douglas had the opportunity to move to stay execution of the
    judgment for attorney’s fees but neglected to do so, the satisfaction was voluntary.
    See Atlantic Veneer Corp. v. Robbins, 4th Dist. Pike No. 03CA719, 2004-Ohio-
    3710, ¶ 17 (“[S]atisfaction of a judgment renders an appeal moot where an appellant
    may preserve her appeal rights by seeking a stay of execution pending appeal.”).
    {¶13} Alternatively, Douglas argues that “[t]he payment was made pursuant
    to a court order, to avoid a possible contempt; it was not voluntary.” (Appellant’s
    Reply Brief at 6). He further contends that he “involuntarily paid his ‘fine’ because
    1
    It does not appear that the trial court formally ruled on Douglas’s motion to stay. On July 10, 2018, the
    magistrate “stayed” Douglas’s motion to stay pending an informal resolution of the parties’ dispute over the
    distribution of the personal property listed in Exhibits 29, 31, and 33. (Doc. No. 145). On July 31, 2018, a
    consent judgment entry was filed that resolved the parties’ dispute over the distribution of the personal
    property. (Doc. No. 148). After the magistrate’s July 10, 2018 order, there is no further mention of Douglas’s
    motion to stay.
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    the trial court ordered him to make a payment” and he “had no choice but to pay the
    award or he would risk * * * be[ing] held in contempt and incarcerated due to the
    nonpayment.” (Id.).
    {¶14} In some circumstances, the threat of imprisonment may support a
    conclusion that a party did not voluntarily pay a fine or judgment. See Baker-
    Chaney v. Chaney, 5th Dist. Holmes No. 16CA005, 2017-Ohio-5548, ¶ 49, fn. 2
    (finding no voluntary satisfaction where the trial court instructed the judgment
    debtor “to come with her toothbrush if she had not complied with the order [for
    payment of attorney’s fees] within fourteen days as she would be going to jail,” thus
    denying her the opportunity to stay the award of attorney’s fees pending appeal);
    Janosek v. Janosek, 8th Dist. Cuyahoga Nos. 86771 and 86777, 2007-Ohio-68, ¶
    125-127 (where the trial court ordered husband to pay $680,000 by 4:00 p.m. on the
    day of the hearing or face 10 days’ incarceration, husband did not voluntarily pay
    his contempt purge); In re Contempt of Morris, 
    110 Ohio App. 3d 475
    , 479 (8th
    Dist.1996) (although an attorney paid his fine stemming from a finding of contempt,
    an appeal of the contempt finding was not moot because the attorney “was ordered
    by the trial court to pay his fine before he left the courtroom”). The common thread
    in these cases is that the payor paid the fine or judgment under some degree of
    compulsion, either by being deprived of a meaningful opportunity to file a motion
    to stay execution of the trial court’s judgment or by being threatened with the
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    prospect of immediate incarceration for failure to pay. These conditions are not
    present in this case.
    {¶15} First, as more than three months elapsed between the date the
    judgment was filed and the date he paid Robyn, Douglas had ample time to seek a
    stay of execution. Furthermore, Douglas was not threatened with the likelihood of
    imminent imprisonment for failure to pay Robyn’s attorney’s fees. While Douglas
    may have been concerned that he could be imprisoned at some uncertain point in
    the future for failure to pay Robyn’s attorney’s fees, this does not mean that Douglas
    was compelled to satisfy the judgment when he did. Douglas was not facing a
    concrete threat of imprisonment when he satisfied the judgment for attorney’s fees.
    {¶16} In addition, to the extent that Douglas may actually have been subject
    to liability for contempt at the time he paid Robyn’s attorney’s fees, such potential
    liability would not have stemmed from the judgment for attorney’s fees. On June
    1, 2018, Robyn filed a motion for contempt requesting that Douglas “appear * * *
    to show cause why he should not be held in contempt of Court for his failure to
    abide by Paragraph 9 of this Court’s Final Judgment Entry * * *, wherein [Douglas]
    has failed to pay to [Robyn] spousal support since the date of filing the Final
    Judgment Entry.” (Doc. No. 135). As indicated in Robyn’s motion for contempt,
    Paragraph 9 of the trial court’s May 3, 2018 judgment deals with the payment of
    spousal support, not the payment of attorney’s fees, which is addressed in Paragraph
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    13. (Doc. No. 130). Therefore, when Douglas paid Robyn $13,000 for attorney’s
    fees in August 2018, he did not do so in order to avoid a potential fine or
    incarceration that could have resulted from Robyn’s motion for contempt.
    Altogether, under the facts presented in this case, Douglas’s claims that he paid
    Robyn’s attorney’s fees to avoid contempt and the possibility of incarceration are
    insufficient to make his satisfaction of judgment involuntary.
    {¶17} Finally, Douglas advances a secondary argument that his payment was
    “not voluntary because he made a payment on the day the court ordered him to do
    so.” (Appellant’s Reply Brief at 7). From the available evidence, this claim appears
    to be untrue. The trial court’s May 3, 2018 judgment ordered Douglas to pay
    Robyn’s attorney’s fees within 120 days of the filing of the final judgment entry.
    (Doc. No. 130). Thus, Douglas was required to pay Robyn on or before August 31,
    2018. Douglas gave Robyn the check for $13,000 on August 10, 2018. (Appellee’s
    Motion to Dismiss, Ex. A). We have found no indication in the record or elsewhere
    that the trial court ordered Douglas to pay Robyn on August 10, 2018. Instead, the
    evidence suggests that Douglas paid Robyn with three weeks to spare—three weeks
    during which he could have filed a motion to stay execution of the trial court’s
    judgment for attorney’s fees.
    {¶18} In conclusion, the evidence establishes that Douglas voluntarily
    satisfied the judgment that is the basis of his appeal, thereby rendering his appeal
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    moot. Accordingly, because Robyn’s motion to dismiss has merit, we grant her
    motion and dismiss Douglas’s appeal.
    Motion Granted and
    Appeal Dismissed
    ZIMMERMAN, P.J. and WILLAMOWSKI, J., concur.
    /jlr
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