Lindsey v. Lindsey

[Cite as Lindsey v. Lindsey, 2020-Ohio-3567.]
IN THE COURT OF APPEALS
ELEVENTH APPELLATE DISTRICT
GEAUGA COUNTY, OHIO
CHRISTINE LINDSEY, : MEMORANDUM OPINION
Plaintiff-Appellant, :
CASE NO. 2020-G-0250
- vs - :
DANIEL LINDSEY, :
Defendant-Appellee. :
Civil Appeal from the Geauga County Court of Common Pleas, Case No. 2016 DC
000693.
Judgment: Appeal dismissed.
R. Russell Kubyn, Kubyn & Ghaster, 8373 Mentor Avenue, Mentor, Ohio 44060, and
Pamela D. Kurt, Kurt Law, LLC, 401 South Street, 2-B, Chardon, Ohio 44024 (For
Plaintiff-Appellant).
Carol. A. Szczepanik, Law Office of Carol A. Szcaepanik, LLC, P.O. Box 214, 10808
Kinsman Road, Newbury, Ohio 44065. (For Defendant-Appellee).
MARY JANE TRAPP, J.
{¶1} Appellant, Christine Lindsey, appeals from the judgment of the Geauga
County Court of Common Pleas denying her motion to remove Magistrate Sarah Heffter.
Ms. Lindsey premised her motion upon an alleged conflict of interest between Magistrate
Heffter and her co-counsel, Attorney Pamela Kurt, who Ms. Lindsey retained two days
prior to a hearing before the magistrate. For the reasons discussed in this opinion, we
conclude the judgment at issue is not a final, appealable order and the appeal of that
judgment is therefore dismissed.
Statement of Relevant Facts and Procedural History
{¶2} Ms. Lindsey and appellee, Daniel Lindsey, were divorced in March 2019.
The trial court’s adoption of Mr. Lindsey’s shared-parenting plan was appealed to this
court by appellant and appellee filed a cross-appeal on a separate issue. In Lindsey v.
Lindsey, 11th Dist. Geauga No. 2019-G-0208, 2019-Ohio-4920, this court affirmed the
trial court’s judgment.
{¶3} In March 2020, Mr. Lindsey filed an emergency motion to show cause and
for attorney fees and litigation expenses. A show-cause hearing was set for April 15,
2020. On April 13, 2020, Attorney Kurt filed a notice of appearance as co-counsel for Ms.
Lindsey. At the commencement of the show-cause hearing, Ms. Lindsey’s attorney, R.
Russell Kubyn, Esq., orally moved to remove Magistrate Heffter due to a potential conflict
of interest. Attorney Kubyn asserted Attorney Kurt had purchased Magistrate Heffter’s
law practice upon her acceptance of the position of magistrate on the Geauga County
Court of Common Pleas. Apparently, Attorney Kubyn’s position was premised upon
arguable bias based upon co-counsel’s alleged conflict relating to collection of fees and/or
debts of the magistrate’s former law firm. The issue was briefed and the trial court denied
the motion, concluding “[t]here is no indication in [appellant’s] response that the Magistate
plays any role whatsoever in Kurt’s collection efforts and receipt of funds.” Ms. Lindsey
now appeals.
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Applicability of R.C. 2701.03
{¶1} Mr. Lindsey cites R.C. 2701.03(A) for the proposition that, to disqualify the
magistrate, Ms. Lindsey was required to file an affidavit of disqualification with the clerk
of the Supreme Court of Ohio. In support he cites this court’s ruling in Aloi v. Enervest,
11th Dist. Portage No. 2011-P-0023, 2011-Ohio-5112. While Aloi was dismissed for want
of jurisdiction partially on the grounds that the appealing party did not comport with the
procedures of R.C. 2701.03(A), that party’s motion sought to disqualify both the
magistrate and judge of the court of common pleas. This matter presents different
procedural facts; Ms. Lindsey sought to disqualify only the magistrate. “R.C.
2701.03 does not permit the Chief Justice to rule on allegations of bias or prejudice made
against magistrates.” In re Disqualification of Wilson, 77 Ohio St.3d 1250, 1251 (1996).
Rather, “the removal of a magistrate is within the discretion of the judge who referred the
matter to the magistrate and should be sought by a motion filed with the trial court.” Id.,citing In re Disqualification of Light, 36 Ohio St.3d 604 (1988). Ms. Lindsey moved the
trial judge to remove Magistrate Heffter and therefore utilized the proper procedural
vehicle.
Appellate Jurisdiction
{¶2} It is well settled that an appellate court does not have jurisdiction to review
a lower court’s order that is not final. Noble v. Colwell, 44 Ohio St.3d 92, 96. For a
judgment to be final and appealable it must satisfy the requirements of R.C. 2505.02.
See Children’s Hospital med. Ctr. v. Tomalko, 11th Dist. Portage No. 2011-P-0103, 2011-
Ohio-6838.
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{¶3} Ms. Lindsey claims this matter is a final, appealable order pursuant to R.C.
2505.02(B)(2), which provides an order is final and appealable “if it affects a substantial
right made in a special proceeding.” A “[s]pecial proceeding” is “an action or proceeding
that is specially created by statute and that prior to 1853 was not denoted as an action at
law or a suit in equity.” R.C. 2505.02(A)(2).
{¶4} Ms. Lindsey correctly points out that divorce is a special statutory
proceeding under R.C. 2505.02(B)(2) because “[t]here was no common-law right to
divorce. Divorce is purely a matter of statute.” State ex rel. Papp v. James, 69 Ohio St.3d
373, 379 (1994). Although the underlying proceedings in this case involved a show-cause
hearing, the contempt matter was related to visitation matters, which are inherently
connected to the original divorce proceeding. Hence, we conclude the hearing at which
the objection occurred necessitating the underlying judgment was a special proceeding.
Id. (Divorce and ancillary custody proceedings are special proceedings.)
{¶5} A substantial right is one that “the United States Constitution, the Ohio
Constitution, a statue, the common law, or a rule of procedure entitles a person to enforce
or protect.” R.C. 2505.02(A)(1). Ms. Lindsey claims her substantial rights were affected
because she is constitutionally entitled to have her case adjudicated by an unbiased
magistrate. While we agree that Ms. Lindsey is entitled to have a fair and unbiased
magistrate and/or judge to preside over the show-cause proceeding, this does not imply
the issue of removal requires immediate appellate attention.
{¶6} A substantial right is affected “for purposes of R.C. 2505.02(B)(2) only if ‘in
the absence of immediate review of the order [Ms. Lindsey] will be denied effective relief
in the future.’” (Emphasis added.) Thomasson v. Thomasson, 153 Ohio St.3d 398, 2018-
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Ohio-2417, ¶10, quoting Bell v. Mt. Sinai Med. Ctr., 67 Ohio St.3d 60, 63 (1993). If Mr.
Lindsey prevails in the contempt proceedings, Ms. Lindsey may appeal that order as well
as the denial of the motion to remove Magistrate Heffter. There is nothing that would
prevent Ms. Lindsey from challenging that interlocutory order upon resolution of the
contempt matter.
{¶7} Accordingly, we hold the Geauga County Court of Common Pleas’ denial of
her motion to remove Magistrate Heffter does not affect a substantial right and thus, that
order is not final and appealable. The appeal must be dismissed and Ms. Lindsey’s
pending motion to stay and waive bond is overruled as moot.
TIMOTHY P. CANNON, P.J.,
THOMAS R. WRIGHT, J.,
concur.
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