Melosh v. Melosh

[Cite as Melosh v. Melosh, 2014-Ohio-5029.]
COURT OF APPEALS
LICKING COUNTY, OHIO
FIFTH APPELLATE DISTRICT
CHARLES MELOSH JUDGES:
Hon. W. Scott Gwin, P. J.
Plaintiff-Appellee Hon. Sheila G. Farmer, J.
Hon. John W. Wise, J.
-vs-
Case Nos. 14 CA 20,
PATRICIA MELOSH 14 CA 21 and 14 CA 30
Defendant-Appellant OPINION
CHARACTER OF PROCEEDING: Civil Appeal from the Court of Common
Pleas, Domestic Relations Division, Case
No. 12 DR 1061
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: November 10, 2014
APPEARANCES:
For Executor of the Estate of For Kenneth Schlaegel, Administrator
Charles Melosh of the Estate of Patricia Melosh
DETRIA HILES, PRO SE GARY J. GOTTFRIED
Post Office Box 304 ERIC M. BROWN
Thurston, Ohio 43157 GARY J. GOTTFRIED CO. LPA
608 Office Parkway, Suite B
Westerville, Ohio 43082
[Cite as Melosh v. Melosh, 2014-Ohio-5029.]
Wise, J.
{¶1}. Appellant Kenneth Schlaegel, as substitute party for and administrator of
the estate of Patricia Melosh, appeals from the dismissal of a divorce action, as well as
two denials of motions to substitute parties, in the Licking County Court of Common
Pleas, Domestic Relations Division. Appellee is Detria Hiles, administrator for the
estate of Charles Melosh, Patricia's spouse at the time of her death. The relevant
procedural facts leading to this appeal are as follows.
{¶2}. Charles Melosh and Patricia Melosh were married on March 31, 2001,
having purportedly entered into an antenuptial agreement on March 20, 2001. No
children were born of the marriage. On August 23, 2012, Charles filed a complaint for
divorce in the Licking County Court of Common Pleas, Domestic Relations Division. On
April 9, 2013, Patricia filed an answer and counterclaim. Patricia was battling leukemia
as the divorce case progressed.
{¶3}. The trial court ultimately scheduled the matter for a final hearing on
November 8, 2013. Charles appeared on that date with counsel, but Patricia was unable
to attend the final hearing due to her health issues. However, counsel appeared on her
behalf. In addition, Patricia's children, Kenneth Schlaegel (appellant herein) and Lisa
Tilk, attended the hearing. The trial court took the testimony of Charles, and trial
counsel for Patricia affirmed that Patricia agreed to the terms of the settlement
memorandum and that she believed it was fair and equitable. Tr. at 17-18. Trial counsel
for Patricia affirmed that he had talked to her several times via telephone that day. Tr. at
18. The trial court thereupon accepted a written settlement memorandum resolving the
remaining issues in the pending divorce action. The trial court instructed trial counsel for
Licking County, Case Nos. 14 CA 20, 14 CA 21 and 14 CA 30 3
Charles to prepare an appropriate separation agreement and divorce decree within
fourteen days of said final hearing.
{¶4}. Unfortunately, both parties passed away before a final divorce decree was
submitted and journalized. Patricia died on December 28, 2013. Approximately one
month later, on January 27, 2014, Charles died.
{¶5}. A notice of suggestion of Patricia's death was filed with the trial court on
January 10, 2014. In addition, a notice of suggestion of Charles' death was filed on
February 10, 2014.
{¶6}. On January 24, 2014, the trial court issued a judgment entry stating that it
would permit the parties to submit any motions for substitution of party within ninety
days.
{¶7}. However, on March 14, 2014, and before the expiration of that ninety-day
period, the trial court dismissed the entire divorce action.
{¶8}. Nonetheless, Patricia's son, Appellant Kenneth Schlaegel, as
administrator of Patricia's estate, filed a motion with the trial court on March 31, 2014,
asking the trial court to substitute him as a party for Patricia. The trial court denied said
motion in an entry issued the same day.
{¶9}. On April 9, 2014, Appellant Schlaegel (hereinafter “appellant”) filed notices
of appeal as to the March 14th entry (dismissal of the divorce action) and March 31st
entry (denial of appellant's request to be substituted as party for Patricia).
{¶10}. On April 21, 2014, appellant also filed a motion seeking substitution of
Detria Hiles, as executor of Charles' estate, as a party for Charles. In an entry dated
Licking County, Case Nos. 14 CA 20, 14 CA 21 and 14 CA 30 4
April 22, 2014, the trial court concluded that it did not have jurisdiction to consider said
motion due to the aforesaid pending notices of appeal.
{¶11}. On April 25, 2014, appellant filed a notice of appeal as to the April 22d
judgment entry (denial of appellant's request to have Detria Hiles substituted as party
for Charles). Appellant also requested consolidation of the three appeals. This Court
granted that request on May 5, 2014. This Court also ordered substitution by Appellant
Schlaegel and Appellee Hiles, for purposes of appeal, on June 2, 2014.
{¶12}. On June 5, 2014, appellant submitted a brief in support of all three
appeals, identified as Case Nos. 14CA20, 14CA21 and 14CA30. Appellee Hiles
attempted to file a late brief in response, which this Court denied.
{¶13}. Appellant's Assignments of Error in this consolidated appeal are as
follows:
{¶14}. “I. THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION WHEN
IT DISMISSED THE DIVORCE ACTION PRIOR TO THE EXPIRATION OF TIME
PROVIDED FOR THE SUBSTITUTION OF PARTIES PURSUANT TO CIVIL RULE 25.
{¶15}. “II. THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION WHEN
IT DENIED SUBSTITUTION OF KENNETH SCHLAEGEL AS A PARTY FOR
PATRICIA MELOSH AND SUBSTITUTION OF DETRIA HILES AS A PARTY FOR
CHARLES MELOSH.”
I., II.
{¶16}. In his First and Second Assignments of Error, appellant contends the trial
court erred and/or abused its discretion in dismissing the divorce action and denying
substitution of parties as to Patricia and Charles after they passed away. We disagree.
Licking County, Case Nos. 14 CA 20, 14 CA 21 and 14 CA 30 5
{¶17}. Civ.R. 25 states in pertinent part as follows:
{¶18}. "(A) Death
{¶19}. "(1) If a party dies and the claim is not thereby extinguished, the court
shall, upon motion, order substitution of the proper parties. The motion for substitution
may be made by any party or by the successors or representatives of the deceased
party and, together with the notice of hearing, shall be served on the parties as provided
in Rule 5 and upon persons not parties in the manner provided in Rule 4 through Rule
4.6 for the service of summons. Unless the motion for substitution is made not later than
ninety days after the death is suggested upon the record by service of a statement of
the fact of the death as provided herein for the service of the motion, the action shall be
dismissed as to the deceased party.
{¶20}. " ***
{¶21}. "(E) Suggestion of death or incompetency
{¶22}. "Upon the death or incompetency of a party it shall be the duty of the
attorney of record for that party to suggest such fact upon the record within fourteen
days after he acquires actual knowledge of the death or incompetency of that party. The
suggestion of death or incompetency shall be served on all other parties as provided in
Rule 5."
{¶23}. Appellant correctly posits that three essential issues come into play
considering the application of Civ.R. 25 in situations where a party in a pending case
has died. These issues are: (1) whether the motion seeking substitution is timely; (2)
whether the person seeking substitution is "proper" as a real party in interest; and (3)
whether the claim was or was not extinguished upon death. In the case sub judice, we
Licking County, Case Nos. 14 CA 20, 14 CA 21 and 14 CA 30 6
find the third factor, the question of whether the divorce claims herein were extinguished
by death, to be dispositive, and we will focus our analysis accordingly.
{¶24}. Generally, death of one or both of the parties to a pending divorce abates
the action, because " *** [the] circumstance of death has effectively accomplished the
primary objective of the lawsuit, i.e., dissolution of the marital relationship." In re
Guardianship of Schnierle, 5th Dist. Stark No. 2007 CA 00260, 2009-Ohio-1580, ¶44.
{¶25}. However, in Caprita v. Caprita, 145 Ohio St.5, 60 N.E.2d 483 (1945), the
Ohio Supreme Court held in pertinent part as follows: “An action for a divorce and
division of property is not abated by the death of a party after a decree therefor has
been rendered but before it has been journalized." Id. at paragraph three of the
syllabus.
{¶26}. We note that in Caprita, the plaintiff (husband) had filed a petition for a
divorce in Stark County, and the defendant (wife) countered with a cross-petition. The
case was tried on October 19, 1943, at which time husband plaintiff dismissed his
petition. At the conclusion of the trial on the wife's cross-petition, the trial court
"announced" a decree entitling the defendant wife to a divorce and division of property.
The court then continued the matter in order to obtain a full appraisal of property. On
December 13, 1943, the court announced that husband was ordered to pay wife the
sum of $1,000 as property division. Two days later, on December 15, 1943, husband
died. On December 31, 1943, the final decree was entered upon the court journal. On
the same day, wife sought leave to dismiss her cross-petition with prejudice, which the
trial court denied. The Ohio Supreme Court concluded the Court of Appeals was not in
Licking County, Case Nos. 14 CA 20, 14 CA 21 and 14 CA 30 7
error in affirming the decree of the Stark County Court of Common Pleas. See id. at 6-
10.
{¶27}. Our reading of Caprita does not reveal a bright-line rule forbidding a trial
court from finding a divorce action extinguished by the death of a party or both parties
between the announcement of decision and the issuance of the final written decree. The
Ohio Supreme Court therein invoked an abuse-of-discretion standard as to the trial
court's decision to disallow wife's request for leave to dismiss her cross-petition. See id.
at 10-11, citing 17 American Jurisprudence 324. We find the abuse-of-discretion
standard likewise applicable where, as in the case sub judice, the trial court chooses to
dismiss a divorce where the parties have died after the announcement of decision, but
before the decree is finalized.
{¶28}. Furthermore, Caprita does not appear to involve a settlement agreement.
“A trial court's authority to enforce in-court settlement agreements is discretionary.”
Franchini v. Franchini, 11th Dist. Geauga No. 2002-G-2467, 2003-Ohio-6233, ¶ 8. We
have similarly held: “Case law clearly provides that a trial court has discretionary
authority to enforce in-court settlement agreements or to modify them out of equity."
Hileman v. Hileman (July 26, 1999), Stark App. Nos. 1998CA00256, 1998CA00257,
1999 WL 547934 (additional citations omitted). If a party later disputes the terms of the
agreement, the trial court should hold an evidentiary hearing to resolve any dispute
about the existence of an agreement or its terms. See Waddell v. Waddell (Dec. 16,
1996), Butler App. No. CA96-03-056, 1996 WL 723551.
Licking County, Case Nos. 14 CA 20, 14 CA 21 and 14 CA 30 8
{¶29}. In the case sub judice, the trial court adopted the separation agreement
and orally granted the parties their divorce. See Tr. at 20. It appears that the parties
waived their signatures upon the final decree. Tr. at 21. The trial judge then accepted
and signed the original memorandum of agreement. Tr. at 21. Said memorandum was
filed with the clerk. It was confirmed by the attorneys that all pending matters had been
resolved at that time. See Tr. at 22. The trial court afforded Charles' trial counsel two
weeks to prepare and submit a written divorce decree.
{¶30}. As previously noted, before dismissing the divorce action, the trial court
waited more than four months for the submission of the proposed final decree, which
never occurred. In its subsequent judgment entry denying appellant's motion for
substitution of Patricia, the trial court, citing Montei v. Montei, 2nd Dist. Clark No. 2013
CA 24, 2013-Ohio-5343, ¶ 22, aptly expressed its concern that it would be necessary to
conduct an evidentiary hearing due to an apparent factual dispute or disagreement
regarding the settlement agreement, which would be unfeasible following the death of
Patricia and Charles. See Judgment Entry, March 31, 2014, at 3. Thus, having been
"advised that one of the parties was unwilling to sign the proposed divorce decree" (id.
at 2), the trial court refused to grant substitution under Civ.R. 25. Although appellant
urges that the law favors a trial court's adoption of a settlement agreement where said
agreement has been referenced on the record, reduced to writing, and filed with the
clerk, under the unusual procedural circumstances presented in this matter, we find no
error of law or abuse of discretion in the trial court's decision to dismiss the action and
thereafter deny substitution of party as to Patricia.
Licking County, Case Nos. 14 CA 20, 14 CA 21 and 14 CA 30 9
{¶31}. Finally, although the trial court did not reach the merits of appellant's
motion to substitute as to Charles due to the existence of appellant's notice of appeal,
we find a similar result to the above would have been warranted in that regard.
{¶32}. Appellant's First and Second Assignments of Error are therefore
overruled.
{¶33}. For the foregoing reasons, the judgment of the Court of Common Pleas,
Domestic Relations Division, Licking County, Ohio, is hereby affirmed.
By: Wise, J.
Gwin, J., and
Farmer, J., concur.
JWW/d 1023