Solon v. Solon

[Cite as Solon v. Solon, 2018-Ohio-3147.]
COURT OF APPEALS
STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT
JULIE C. SOLON : JUDGES:
:
: Hon. William B. Hoffman, P.J.
Plaintiff-Appellee : Hon. Patricia A. Delaney, J.
: Hon. Craig R. Baldwin, J.
-vs- :
: Case No. 2017CA00210
:
SEAN M. SOLON :
:
:
Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Stark County Court of
Common Pleas, Domestic Relations
Division, Case No. 2016DR00975
JUDGMENT: AFFIRM
DATE OF JUDGMENT ENTRY: August 6, 2018
APPEARANCES:
For Plaintiff-Appellee: For Defendant-Appellant:
DAVID E. BUTZ ELIZABETH E. COLLINS
ALETHA M. CARVER TIM L. COLLINS
4775 Munson St. NW 3300 Terminal Tower
P.O. Box 36963 50 Public Square
Canton, OH 44735-6963 Cleveland, OH 44113-2289
Stark County, Case No. 2017CA00210 2
Delaney, J.
{¶1} Defendant-Appellant Sean M. Solon appeals the October 27, 2017
judgment entry of the Stark County Court of Common Pleas, Domestic Relations Division.
FACTS AND PROCEDURAL HISTORY
{¶2} Plaintiff-Appellee Julie C. Solon filed a complaint for divorce against
Defendant-Appellant Sean M. Solon on October 14, 2016.
{¶3} One of the disputed issues in the divorce was the sale of the marital home.
In February 2017, Wife moved to list the marital home for sale due to the parties’ financial
issues. The trial court granted Wife’s motion to sell the marital home on March 15, 2017.
{¶4} On March 29, 2017, the parties were before the trial court due to their
disagreement on the listing price for the marital home. The trial court ordered the listing
price of the marital home would be $440,000.
{¶5} As of May 2017, Husband had not signed the listing agreement. Wife filed
a motion to show cause and the hearing was held on May 10, 2017. The trial court ordered
Husband to cooperate with the listing of the marital home by May 15, 2017, or he would
be found in contempt of court. Husband signed the listing agreement on May 14, 2017.
{¶6} Issues as to the sale of the marital home arose again in August 2017.
Husband signed the listing agreement but would not respond to offers to purchase from
the parties’ realtor. The trial court held a hearing on August 23, 2017. Wife requested the
realtor be given full authority to sell the marital home. Husband objected, stating the
realtor could have a conflict of interest. Husband’s counsel told the trial court that
sometimes, in cases like these, the trial court can appoint a receiver to negotiate the sale
Stark County, Case No. 2017CA00210 3
contract. Husband’s request, however, was to pay Wife $20,000 and he would assume
the mortgage. At the time of the hearing, Husband was unemployed.
{¶7} On August 28, 2017, the trial court appointed Attorney John Rambacher as
the receiver in charge of the sale of the marital home.
{¶8} On September 26, 2017, Husband filed an emergency ex parte motion to
stay the sale of the marital home. The trial court denied the motion on September 28,
2017.
{¶9} On September 28, 2017, the receiver filed a Notice of Sale of Real Estate
Pursuant to R.C. 2735.04(D)(2)(b). The notice provided that all parties would have ten
days to request a hearing. Husband filed a pro se request for a hearing.
{¶10} The trial court convened a hearing on October 11, 2017 to consider
Husband’s motion to stay and Husband’s objections to the notice of sale. Husband
represented himself at the hearing. The receiver had received three offers on the marital
home: one for $385,000 and two for $400,000. The receiver ultimately settled on an offer
of $425,000. Husband objected to the appointment of the receiver based on an alleged
business relationship between the receiver and the realtor. He argued the receiver
breached his fiduciary duty by not getting the best offer for the marital home. Husband
next argued he was currently employed and should be allowed to purchase the home.
Husband did not bid on the home; rather, he wished to work out an agreement with Wife
to purchase the home.
{¶11} On October 12, 2017, the trial court granted the receiver’s application for
authority to sell the marital home under R.C. 2735.04(D)(2)(a)(ii). The trial court overruled
Stark County, Case No. 2017CA00210 4
Husband’s objections to the sale of the marital home and ordered the sale proceed. The
marital home was transferred to the buyers on October 12, 2017.
{¶12} On October 20, 2017, the trial court issued an order denying Husband’s
motion for reconsideration and emergency motion for stay of orders filed on September
26, 2017. In this entry, the trial court detailed its reasons for overruling Husband’s
objections to the receiver’s sale of the marital home. The trial court found Husband could
not show the receiver failed in his responsibilities based on the sale price the receiver
was able to obtain for the marital home. The trial court further found Husband’s
statements as to his financial ability to purchase the home were unsupported by the
evidence. The swift sale of the marital home was necessary to protect the marital assets.
{¶13} On October 27, 2017, the trial court issued a judgment entry confirming the
sale of the marital home and ordered the distribution of the sale assets. The net proceeds
of the sale of the home were $18,308.51.
{¶14} Husband filed a motion for reconsideration and stay on November 9, 2017.
Husband also filed a notice of appeal on November 9, 2017.
ASSIGNMENT OF ERROR
{¶15} Husband raises one Assignment of Error:
{¶16} “THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION BY
FAILING TO PROVIDE A REASONABLE REDEMPTION PERIOD REQUIRED UNDER
R.C. 2735.04(D)(7) AS PART OF ITS ORDER APPROVING THE RECEIVER’S
APPLICATION FOR AUTHORITY TO SELL REAL ESTATE UNDER R.C.
2375.04(D)(2)(A)(II), AND THEN SUBSEQUENTLY CONFIRMING THE SALE.
Stark County, Case No. 2017CA00210 5
ANALYSIS
{¶17} Husband argues the trial court erred in failing to provide him with a statutory
redemption period as part of its order approving the receiver’s application for authority to
sell the marital home. We first note that Husband does not object to the trial court’s
authority to appoint a receiver. Ohio Revised Code Chapter 2735 grants Ohio courts the
authority to appoint receivers pursuant to their sound discretion. King v. King, 11th Dist.
Geauga Nos. 2012-G-3068, 2012-G-3079, 2013-Ohio-2038, ¶ 37 citing Lockard v.
Lockard, 175 Ohio App. 3d 245, 2008-Ohio-1577, 886 N.E.2d 276, ¶ 7 (4th Dist.).
“Receiverships are generally appropriate, and in fact sometime necessary, in domestic
relations matters to ensure the sale and/or distribution of marital property.” King at ¶ 41
citing Parker v. Elsass, 10th Dist. Franklin No. 02AP-144, 2002-Ohio-3340.
{¶18} Husband contends when the trial court approved the receiver’s application
for authority to sell the marital home via judgment entry on October 12, 2017, the trial
court failed to follow the proper statutory guidelines as outlined in R.C. 2735.04(D)(7).
The statute reads:
The court's order approving the application by a receiver or first mortgage
holder for authority to sell real property under division (D)(2)(a) of this
section shall establish a reasonable time, but not less than three days, after
the date of the order approving the specific sale or the sale process for the
owner and all other parties possessing an equity of redemption in the real
property to exercise their equity of redemption in the real property or to have
that equity of redemption forever barred. Section 2329.33 of the Revised
Code does not apply to a sale by a receiver under this section.
Stark County, Case No. 2017CA00210 6
R.C. 2735.04. Husband argues the trial court failed to include in its October 12, 2017
judgment entry language regarding a right of redemption period pursuant to R.C.
2735.04(D)(7). Husband states the right of redemption period is statutorily mandated, as
shown by the use of the word “shall” in the statute. Husband concludes the trial court’s
failure to include the language in the court order rendered the order per se defective and
therefore, the trial court abused its discretion.
{¶19} It is Husband’s argument that this Court should reverse the trial court’s
judgment entry confirming the sale of the marital home and remand the matter for the trial
court to establish a reasonable redemption period pursuant to R.C. 2735.04(D)(7). The
marital home was transferred to the buyers on October 12, 2017. The sale of the marital
home was confirmed by the trial court on October 27, 2017. The sale of the marital home
to a third party in 2017 requires this Court to ask whether Husband’s appeal is moot.
The Mootness Doctrine
{¶20} “Mootness is a jurisdictional question because the Court ‘is not empowered
to decide moot questions or abstract propositions.” State v. Feister, 5th Dist. Tuscarawas
No. 2018 AP 01 0005, 2018-Ohio-2336, ¶ 28 quoting United States v. Alaska S.S. Co.,
253 U.S. 113, 116, 40 S. Ct. 448, 449, 64 L. Ed. 808 (1920), quoting California v. San
Pablo & Tulare R. Co., 149 U.S. 308, 314, 13 S. Ct. 876, 878, 37 L. Ed. 747 (1893); Accord,
North Carolina v. Rice, 404 U.S. 244, 246, 92 S. Ct. 92, 30 L. Ed. 2d 244(1971). Because
mootness is a jurisdictional question, the question of mootness is one that must be
addressed even if the parties do not raise it. North Carolina v. Rice, 404 U.S. at 246, 92
S. Ct. 92, 30 L. Ed. 2d 244.
Stark County, Case No. 2017CA00210 7
{¶21} Ohio courts have long exercised judicial restraint in cases that are not actual
controversies. Fortner v. Thomas, 22 Ohio St. 2d 13, 14, 257 N.E.2d 371, 372(1970). No
actual controversy exists where a case has been rendered moot by an outside event. “It
is not the duty of the court to answer moot questions, and when, pending proceedings in
error in this court, an event occurs without the fault of either party, which renders it
impossible for the court to grant any relief, it will dismiss the petition in error.” Miner v.
Witt, 82 Ohio St. 237, 92 N.E. 21(1910), syllabus; Tschantz v. Ferguson, 57 Ohio St. 3d
131, 133, 566 N.E.2d 655(1991).
{¶22} In Bradley v. Ohio Dept. of Job and Family Services our brethren from the
Tenth Appellate District observed,
“The doctrine of mootness is rooted 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 (1991), 74 Ohio
App.3d 788, 791, 600 N.E.2d 736. “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. “It has
been long and well established that it is the duty of every judicial tribunal to
decide actual controversies between parties legitimately affected by specific
facts and to render judgments which can be carried into effect. It has
become settled judicial responsibility for courts to refrain from giving
opinions on abstract propositions and to avoid the imposition by judgment
of premature declarations or advice upon potential controversies.” Fortner
v. Thomas (1970), 22 Ohio St. 2d 13, 14, 257 N.E.2d 371. In other words,
Stark County, Case No. 2017CA00210 8
an issue is moot when it has no practical significance, being instead merely
hypothetical or academic.
10th Dist. Franklin No. 10AP-567, 2011-Ohio-1388, ¶11; Accord, Boncek v. Stewart, 9th
Dist. Summit No. 21054, 2002-Ohio-5778, ¶10. Although the mootness doctrine has
exceptions, none apply in the case at bar. See, e.g., In re Appeal of Suspension of Huffer
from Circleville High School, 47 Ohio St. 3d 12, 546 N.E.2d 1308 (1989), paragraph one
of the syllabus (noting the two exceptions to the mootness doctrine are when “the issues
are capable of repetition, yet evading review” or the case “involves a matter of public or
great general interest”).
{¶23} A court may take judicial notice of mootness. “In fact, ‘an event that causes
a case to be moot may be proved by extrinsic evidence outside the record.’ Pewitt v.
Lorain Correctional Inst. (1992), 64 Ohio St. 3d 470, 472, 1992-Ohio-91, 597 N.E.2d 92,
94.” State ex rel. Nelson v. Russo, 89 Ohio St. 3d 227, 228, 2000-Ohio-141, 729 N.E.2d
1181(2000). Accord, Miner v. Witt, 82 Ohio St. 237, 239, 92 N.E.2d 21(1910).
{¶24} The outside event in this case is the sale of the marital home to a third party
on October 12, 2017. Husband argues this Court should reverse and remand the matter
to the trial court to enforce his alleged right of redemption period, but we must recognize
that if this matter is remanded, the trial court’s application of the right of redemption period
would not occur in a vacuum. The marital home was purchased by good-faith buyers and
has been in their possession since October 12, 2017. Husband does not address in his
appeal the impact of his requested remedy on the 2017 sale of the marital home to a third
party. He has not shown how a resolution of this conflict by the Court can be carried into
effect because of that outside event. In this case, we find Husband proposes an issue
Stark County, Case No. 2017CA00210 9
that is hypothetical or academic and has not provided any evidence that it has practical
significance to the present case.
{¶25} Our conclusion there is no actual controversy is further supported by the
record, discussed below. The record in this case shows Husband’s objections to the sale
of the home were heard by the trial court and Husband did not provide evidence he had
the financial capacity to fulfill his alleged right of redemption.
Harmless Error
{¶26} Assuming arguendo the trial court did err in failing to state a right of
redemption period under R.C. 2735.04(D)(7), we find the record in this case shows the
error to be harmless.
{¶27} Civ.R. 61 governs harmless error and states the following:
No error in either the admission or the exclusion of evidence and no error
or defect in any ruling or order or in anything done or omitted by the court
or by any of the parties is ground for granting a new trial or for setting aside
a verdict or for vacating, modifying or otherwise disturbing a judgment or
order, unless refusal to take such action appears to the court inconsistent
with substantial justice. The court at every stage of the proceeding must
disregard any error or defect in the proceeding which does not affect the
substantial rights of the parties.
{¶28} The record shows the trial court provided Husband was provided multiple
opportunities to be heard as to the sale of the marital home before the trial court granted
the application for sale on October 12, 2017. On September 28, 2017, the receiver filed
a Notice of Sale of Real Estate Pursuant to R.C. 2735.04(D)(2)(b). The notice provided
Stark County, Case No. 2017CA00210 10
that all parties would have ten days to request a hearing. Husband filed a pro se request
for a hearing. Husband also filed a pro se emergency ex parte motion to stay the sale of
the marital home. The trial court denied the ex parte motion to stay, but a hearing was
held on October 11, 2017 where the trial court heard Husband’s objections to the sale of
the home and arguments on the motion to stay.
{¶29} At the October 11, 2017 hearing, Husband stated he did not place a bid on
the marital home. Husband preferred to work out a purchase agreement with Wife. While
Husband was previously unemployed, he stated he was currently employed but had not
yet received a paycheck. On October 20, 2017, the trial court issued an order denying
Husband’s motion for reconsideration and emergency motion for stay of orders filed on
September 26, 2017. In this entry, the trial court detailed its reasons for overruling
Husband’s objections to the receiver’s sale of the marital home. The trial court found
Husband could not show the receiver failed in his responsibilities based on the sale price
the receiver was able to obtain for the marital home. The trial court further found
Husband’s statements as to his financial ability to purchase the home were unsupported
by the evidence. The swift sale of the marital home was necessary to protect the marital
assets.
{¶30} We find that any alleged error by the trial court for failing to include the right
of redemption language in the October 12, 2017 judgment entry was harmless due to
Husband’s previous opportunities to be heard and the lack of evidence that Husband was
financially able to fulfill his right of redemption. The perceived error of failing to include
the right of redemption language in the October 12, 2017 judgment entry did not affect
Husband’s substantial rights. The trial court appointed the receiver to take the necessary
Stark County, Case No. 2017CA00210 11
actions to protect and preserve the parties’ marital assets. In this case, the issue
presented by Husband is moot and if not moot, then harmless error.
{¶31} Husband’s sole Assignment of Error is overruled.
CONCLUSION
{¶32} The judgment of the Stark County Court of Common Pleas, Domestic
Relations Division, is affirmed.
By: Delaney, J., and
Baldwin, J. concur;
Hoffman, P.J., concurring in part
and dissenting in part