Benedetti v. Benedetti

[Cite as Benedetti v. Benedetti, 2019-Ohio-3988.]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT )
JESSICA BENEDETTI C.A. No. 29038
Appellee
v. APPEAL FROM JUDGMENT
ENTERED IN THE
STEVEN D. BENEDETTI COURT OF COMMON PLEAS
COUNTY OF SUMMIT, OHIO
Appellant CASE No. 2013-10-2932
DECISION AND JOURNAL ENTRY
Dated: September 30, 2019
TEODOSIO, Presiding Judge.
{¶1} Steven D. Benedetti appeals the order of the Summit County Court of Common
Pleas, Domestic Relations Division, finding him in contempt for failure to pay child support. We
affirm.
I.
{¶2} In 2013, Jessica R. Benedetti filed her complaint for divorce against her then
husband, Steven D. Benedetti, with whom she had two minor children. A trial was held in
September 2015. On October 6, 2015, Ms. Benedetti filed an emergency motion to order the
return of the minor children back to plaintiff; suspend all of defendant’s companionship with the
minor children; and suspend all contact by defendant with plaintiff and the minor children. The
case was scheduled for a “meeting” with counsel for both parties, and on October 14, 2015, the
trial court put on a judgment entry granting Ms. Benedetti sole and exclusive temporary custody
of the minor children; ordering Mr. Benedetti to return the children to Ms. Benedetti; suspending
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Mr. Benedetti’s parenting time; and ordering Mr. Benedetti to have a psychological assessment
to be conducted by Dr. Robin Tenner prior to any unsupervised parenting time being granted.
{¶3} On April 14, 2016, the trial court entered a decree of divorce allocating sole
parental rights and responsibilities to Ms. Benedetti and allocating certain parenting time to Mr.
Benedetti. The trial court, however, suspended this parenting time based upon events that
occurred subsequent to trial, and until Mr. Benedetti completed the psychological assessment
with Dr. Robin Tener as required by the court’s prior order. The decree further ordered that Mr.
Benedetti pay child support. Mr. Benedetti filed a notice of appeal to this Court, but voluntarily
dismissed the appeal after this Court questioned our jurisdiction based upon the decree’s
potential noncompliance with Civ.R. 75 as to spousal support.
{¶4} On January 20, 2017, upon the motion of Mr. Benedetti, the trial court issued an
order stating that it would further consider the issue of spousal support at the request of Ms.
Benedetti on the occasion when Mr. Benedetti became employed, with the trial court specifically
retaining jurisdiction to do so. On December 6, 2017, the Child Support Enforcement Agency
motioned the trail court to find Mr. Benedetti in contempt for failure to pay child support. After
a hearing on the matter with Mr. Benedetti appearing with counsel, the trial court entered
judgment on April 17, 2018, finding Mr. Benedetti in contempt for failure to pay child support
and sentencing him to 30 days of jail time, suspended on the condition of monthly payment of
the arrearage.
{¶5} Mr. Benedetti now appeals, raising two assignments of error.
II.
ASSINGMENT OF ERROR ONE
THE TRIAL COURT COMMITTED PLAIN ERROR WHEN IT VIOLATED
DEFENDANT’S DUE PROCESS RIGHTS BY SUSPENDING HIS
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PARENTING RIGHTS WITHOUT A HEARING THEREFORE CREATING A
VOID AND UNENFORCEABLE JUDGMENT ENTRY.
{¶6} In his first assignment of error, Mr. Benedetti argues the trial court erred when it
suspended his parental rights without a hearing prior to issuing its order of October 14, 2015.
Mr. Benedetti goes on to state that the trial court “violated [his] due process rights by suspending
his parenting rights without a hearing therefore creating a void and unenforceable judgment.
{¶7} In his notice of appeal, Mr. Benedetti states “he is appealing to the Ninth District
Court of Appeals, Summit County, Ohio, from the [t]rial [c]ourt’s ruling on State of Ohio’s
Motion to Appear and Show Cause dated December 6, 2017. The [t]rial court’s final appealable
sentencing entry was filed on April 17, 2018.” Likewise, Mr. Benedetti’s docketing statement to
this Court states that the judgment that he is appealing is dated April 17, 2018. The motion filed
by the Summit County Child Support Enforcement Agency on December 6, 2017, was a motion
for contempt against Mr. Benedetti for the non-payment of child support. The trial court’s order
of April 17, 2018, found Mr. Benedetti in contempt, and sentenced him to 30 days in the Summit
County Jail, suspended on the condition of payment of the child support obligation.
{¶8} Mr. Benedetti’s argument under this assignment of error is not that the trial court
erred in finding him in contempt, but rather, that the trial court erred when it suspended his
parental rights without a hearing prior to issuing its order of October 14, 2015. That issue,
however, is not raised or implicated in the order from which Mr. Benedetti now appeals.
{¶9} An appeal is initiated when the appellant files a notice of appeal. See App.R.
3(A). “The notice of appeal * * * shall designate the judgment, order or part thereof ap[p]ealed
from * * *.” App.R. 3(D). Mr. Benedetti’s notice of appeal states he is appealing from the entry
filed on April 17, 2018, and therefore the scope of Mr. Benedetti’s appeal is limited to issues
pertaining to that entry alone. Mr. Benedetti’s first assignment of error asks for relief from a
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ruling that is not presently appealed to this Court on an issue that is not the subject of the order
presently being appealed.
{¶10} Because Mr. Benedetti’s first assignment of error fails to raise any issues
germane to the journal entry of April 17, 2018, which found Mr. Benedetti in contempt for
failure to pay child support, we conclude that it is beyond the limited scope of this appeal and not
properly before this Court. See State v. Hamilton, 9th Dist. Lorain No. 17CA011143, 2018-Ohio-
2551, ¶ 10.
{¶11} Mr. Benedetti’s first assignment of error is therefore overruled.
ASSIGNMENT OF ERROR TWO
THE TRIAL COURT ERRORED [sic] BY HOLDING THE APPELLANT IN
CONTEMPT OF COURT BEFORE ISSUING A PROPER NUNC PRO TUNC
ORDER THAT WOULD PERMIT THE APPELLANT TO FILE AN APPEAL
CHALLENGING THE SUBSTANCE OF THE UNDERLYING DIVORCE
DECREE.
{¶12} In his second assignment of error, Mr. Benedetti argues the trial court erred in
finding him in contempt without issuing a final, appealable order. We disagree.
{¶13} Mr. Benedetti states that is was not until the April 14, 2015, decree of divorce that
the trial court ordered him to pay child support in the amount of $442.26 per month for child
support. He incorrectly states that this Court determined that the decree was not a final,
appealable order on June 19, 2016. We surmise he is referring to the magistrate’s order of May
19, 2016, which questioned whether we had jurisdiction to consider his previous appeal because
it was unclear whether the order of the trial court complied with Civ.R. 75 in that the divorce
decree did not appear to address spousal support. Benedetti v. Benedetti, 9th Dist. Summit No.
28239 (May 19, 2016). We therefore ordered appellant to file a response addressing the issue,
noting that failure to comply would result in dismissal of the appeal. Id. On June 10, 2016, we
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dismissed the appeal upon Mr. Benedetti’s motion, without a responsive brief having been filed.
On August 3, 2016, Mr. Benedetti filed a motion for judgment nunc pro tunc, asking the trial
court for a judgment incorporating a finding regarding spousal support, and on January 20, 2017,
the trial court issued its order on said motion.
{¶14} Mr. Benedetti now argues that neither the divorce decree, nor the January 20,
2017, order of the trial court constitute a final, appealable order. Mr. Benedetti contends that as
a consequence, the child support ordered in the divorce decree was unenforceable, and that
therefore that the order finding him in contempt was entered in error.
{¶15} Mr. Benedetti fails to provide any substantiation for his theory that a non-final or
non-appealable order is “unenforceable” and cannot be the source of a contempt order.
Moreover, it is axiomatic that a trial court has the capacity to enforce its non-final orders,
whether they pertain to scheduling deadlines, discovery matters, or myriad other orders.
{¶16} Mr. Benedetti further argues that the divorce decree was void and unenforceable
because it was ambiguous and confusing, citing to the trial court’s having concluded:
Based upon the events that occurred subsequent to trial, this parenting time is
suspended until defendant completes the psychological assessment with Dr. Robin
Tener as required by the order of October 14, 2015. Once this assessment is
complete, defendant may file a motion to reinstate the parenting time order
contemplated above if appropriate.
Mr. Benedetti contends “the order is uncertain as to what is appropriate or what he needs to do
to restore his rights.” (Emphasis sic.)
{¶17} Mr. Benedetti points us to Brown v. Brown, for the proposition that an ambiguous
order may be “void for uncertainty and, therefore, not a final, appealable order.” Brown v.
Brown, 183 Ohio App. 3d 384, 2009-Ohio-3589, ¶ 21 (4th Dist.). Brown, however, relied upon
NovaStar Mtge., Inc. v. Akins, 11th Dist. Trumbull Nos. 2007-T-0111 and 2007-T-0117, 2008-
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Ohio-6055, which was subsequently overruled by Geauga Sav. Bank v. McGinnis, 11th Dist.
Trumbull Nos. 2010-T-0052 and 2010-T-0060, 2010-Ohio-6247, ¶ 18. McGinnis stated that the
NovaStar Court had utilized improper nomenclature, and that the “judgment entry should have
been deemed erroneous and voidable, but not ‘void for uncertainty.’” McGinnis at ¶ 18. The
Court went on to observe that “[t]he distinction between ‘void’ and ‘voidable’ is crucial” and
that while “a void judgment is considered a legal nullity and may be attacked collaterally[,] * * *
a voidable judgment, although imposed irregularly or erroneously, has the effect of a proper legal
order unless it is successfully challenged on direct appeal.” Id. “In general, a void judgment is
one that has been imposed by a court that lacks subject-matter jurisdiction over the case or the
authority to act. Unlike a void judgment, a voidable judgment is one rendered by a court that has
both jurisdiction and authority to act, but the court's judgment is invalid, irregular, or erroneous.”
State v. Holcomb, 184 Ohio App. 3d 577, 2009-Ohio-3187, ¶ 13 (9th Dist.), quoting State v.
Simpkins, 117 Ohio St. 3d 420, 2008-Ohio-1197, ¶ 12. Consequently, even if Mr. Benedetti were
correct in his contention that the order was ambiguous or confusing, the result would not be a
void judgment, but rather, a voidable judgment.
{¶18} Mr. Benedetti’s second assignment of error is overruled.
III.
{¶19} Mr. Benedetti’s assignments of error are overruled. The judgment of the Summit
County Court of Common Pleas, Domestic Relations Division is affirmed.
Judgment affirmed.
There were reasonable grounds for this appeal.
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We order that a special mandate issue out of this Court, directing the Court of Common
Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy
of this journal entry shall constitute the mandate, pursuant to App.R. 27.
Immediately upon the filing hereof, this document shall constitute the journal entry of
judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the
period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is
instructed to mail a notice of entry of this judgment to the parties and to make a notation of the
mailing in the docket, pursuant to App.R. 30.
Costs taxed to Appellant.
THOMAS A. TEODOSIO
FOR THE COURT
SCHAFER, J.
CONCURS.
CARR, J.
CONCURS IN JUDGMENT ONLY.
APPEARANCES:
RHONDA KOTNIK, Attorney at Law, for Appellant.
DARREN W. DEHAVEN, Attorney at Law, for Appellee.
SHERRI BEVAN WALSH, Prosecuting Attorney, and HEAVEN GUEST, Assistant Prosecuting
Attorney, for Appellee.