Burchett v. Burchett

[Cite as Burchett v. Burchett, 2017-Ohio-8124.]
IN THE COURT OF APPEALS OF OHIO
FOURTH APPELLATE DISTRICT
SCIOTO COUNTY
JANE C. BURCHETT,
nka WOLFINGER, :
Plaintiff-Appellee, : Case No. 16CA3784
vs. :
KEITH BURCHETT, : DECISION AND JUDGMENT ENTRY
Defendant-Appellant. :
_________________________________________________________________
APPEARANCES:
C. Andrew Sturgill, Portsmouth, Ohio, for appellant.
Justin R. Blume, Wheelersburg, Ohio, for appellee.
CIVIL CASE FROM COMMON PLEAS COURT
DATE JOURNALIZED: 9-27-17
ABELE, J.
{¶ 1} This is an appeal from a Scioto County Common Pleas Court decision that
dismissed post-divorce decree motions filed by Keith Burchett, defendant below and appellant
herein. Appellant raises the following assignments of error for review:
FIRST ASSIGNMENT OF ERROR:
“THE TRIAL COURT ERRED IN CONSIDERING ITS OWN
RESEARCH AND COMMUNICATIONS WITH THIRD
PARTIES IN ITS DECISION DISMISSING APPELLANT’S
CLAIMS FOR RELIEF.”
SECOND ASSIGNMENT OF ERROR:
“THE TRIAL COURT ERRED IN DISMISSING APPELLANT’S
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CLAIMS WITHOUT HOLDING AN EVIDENTIARY HEARING
WHEN THERE REMAINED QUESTIONS OF FACT TO BE
DETERMINED.”
THIRD ASSIGNMENT OF ERROR:
“THE TRIAL COURT ERRED IN DISMISSING APPELLANT’S
CLAIMS FOR RELIEF INASMUCH AS THE COURT’S
DECISION DISMISSED APPELLANT’S MOTIONS ON THE
GROUNDS THAT THE COURT LACKED PERSONAL OR
SUBJECT MATTER JURISDICTION.”
{¶ 2} In April 2000, appellant and Jane C. Burchett (nka Wolfinger), plaintiff below and
appellee herein, divorced. The divorce decree awarded each party a one-half interest in the
other’s retirement funds earned during the marriage. With respect to appellee’s retirement fund,
the decree stated that appellant “shall be entitled to one-half of [appellee]’s pension with State
Teacher’s Retirement which was accumulated during the term of the marriage.”
{¶ 3} In 2009, the trial court filed a Division of Property Order (DOPO) regarding
appellee’s retirement fund. The DOPO names appellant as an alternate payee and states that
appellant is entitled to receive payment “[u]pon [appellee] receiving a payment from the Public
Retirement Program.” The DOPO further notifies appellee that his “right to payment under this
Order is conditional on [appellee]’s right to a benefit payment or lump sum payment from the
Public Retirement Program.” The DOPO states that payments “shall commence as provided”
under the applicable provisions of the Ohio Revised Code.
{¶ 4} On August 16, 2016, appellant filed a motion to show cause and a motion to
enforce the divorce decree and DOPO. Appellant alleged that appellee has not elected to receive
her retirement benefits in an attempt to purposely deprive appellant of his share of her STRS
retirement benefits. Appellant contended that appellee’s failure to elect to receive retirement
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benefits “is in direct contradiction to the manifest intentions of the Court at the time the Court
issued its prior orders.” Appellant thus claimed that appellee is in contempt of the April 2000
divorce decree. Appellant alternatively requested the trial court to modify the DOPO in order to
effectuate the parties’ intentions at the time of the divorce decree.
{¶ 5} The trial court set a hearing date for appellant’s contempt motion. Prior to the
hearing date, appellee filed a motion to convert the hearing to a pre-trial conference and to allow
appellee to appear by telephone. The court granted the motion.
{¶ 6} The record does not reveal what transpired at the pre-trial conference, but shortly
thereafter, appellee filed a combined motion to dismiss appellant’s two motions, a motion for
sanctions, and a motion to strike. Appellee argued that she is not in contempt of the divorce
decree because the decree does not require her to begin drawing her funds at a particular point in
time, and thus, she cannot be found in contempt of a court order.
{¶ 7} Appellee also contended that the trial court lacked jurisdiction to grant appellant’s
request to modify the divorce decree or DOPO. Appellee contended that granting appellant’s
requested relief would essentially constitute an improper modification of the divorce decree.
Appellee thus asserted that the trial court must dismiss appellant’s motion to the extent it asked
the court to modify the divorce decree or DOPO.
{¶ 8} In response, appellant claimed that “questions of fact” remain regarding the
parties’ intentions and the current status of appellee’s interest in her retirement account.
{¶ 9} On November 17, 2016, the trial court determined that appellee is not contempt of
any court order and overruled appellant's motions. The court found that even though appellee is
not working, “she has not retired and cannot elect to take her retirement benefits from STRS
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without a reduction in her benefits.” The court stated that until appellee elects to receive
benefits, appellant “cannot receive his portion of the benefits that have been determined to be his
by the previously filed DOPO.” The court concluded that because appellee has thus far
complied with the court’s orders, it could not now impose additional requirements upon her or
appellant. The court additionally indicated that it relied upon its “research * * * with legal
counsel from the Ohio STRS” to reach its decision. The court noted, however, that it maintains
power to enforce its prior orders. The court stated:
As an aside, the Court notes that [appellant]’s portion of [appellee]’s retirement
account is intact. It is the belief of the Court that [appellee] cannot deprive
[appellant] of his portion of the STRS retirement benefits. The Court further
believes that [appellant]’s motions, although being dismissed, may not be ripe for
discussion. Thus, any future scheme designed to deprive [appellant] of his
court-ordered benefits may bring in to play the issue of ‘ambiguity’ of prior
orders. And, because [appellee] has yet to retire, the Court chooses not to
address these issues as they are not ripe for discussion at this time.
This appeal followed.
I
{¶ 10} For ease of discussion, we first consider appellant’s second assignment of error.
In his second assignment of error, appellant asserts that the trial court erred as a matter of law by
dismissing his contempt motion without holding an evidentiary hearing. In particular, appellant
asserts that (1) the contempt statute requires the court to hold a hearing, and (2) the court
improperly dismissed his contempt motion when factual disputes remain.
{¶ 11} R.C. 2705.02(A) permits a court to “punish[] as for a contempt” a person the court
finds “guilty” of the following act, among others: “Disobedience of, or resistance to, a lawful
writ, process, order, rule, judgment, or command of a court or officer[.]” A contempt charge
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brought pursuant to R.C. 2705.02(A) must be in writing and filed with the clerk. R.C. 2705.03.
Additionally, the court must afford the alleged contemnor an opportunity to be heard. Id.Furthermore, R.C. 2705.05(A) requires a court to conduct a hearing to “investigate the charge
and hear any answer or testimony that the accused makes or offers and shall determine whether
the accused is guilty of the contempt charge.”
{¶ 12} “The purpose of a contempt hearing is to provide the accused with the opportunity
to explain his actions. In contempt proceedings, the statutory provisions and due process require
that the accused be provided an opportunity to be heard.” Hillman v. Edwards, 10th Dist.
Franklin No. 10AP-950, 2011-Ohio-2677, ¶29 (citation omitted). A trial court ordinarily has
discretion, however, when determining whether to afford the complainant a hearing. Id., citing
Taylor v. Taylor, 8th Dist. Cuyahoga No. 62249 (May 27, 1993); Perry v. Emmett, 8th Dist.
Cuyahoga No. 53997, 1988 WL 86722, *2 (June 16, 1988) (“In contempt proceedings the
statutory provisions allow only the accused an opportunity to be heard; therefore, it is within the
trial court’s discretion to give the complainant an opportunity to be heard. Appellant’s argument
the trial court failed to give appellant, the complainant sub judice, an opportunity to be heard is,
therefore, meritless.”); accord State ex rel. DeWine v. C & D Disposal Techs., L.L.C., 7th Dist.
Jefferson No. 11 JE 19, 2012-Ohio-3005, 2012 WL 2522288, ¶28.
{¶ 13} In the case sub judice, we initially observe that the trial court originally scheduled
appellant’s contempt motion for a hearing. Appellee, however, requested the trial court to
convert the hearing to a pre-trial conference. Appellant did not object, and the trial court
granted appellee’s motion. The trial court did not make a record of what transpired during the
pre-trial conference. Appellee, however, subsequently filed her motion to dismiss. The court
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then set her motion for a non-oral hearing. Appellant responded to appellee's motion and did not
object to the lack of an oral hearing concerning his contempt motion. Under these
circumstances, we believe that appellant waived any arguable error associated with the court’s
decision not to hold a hearing on the contempt motion. See Carr-Woodard v. Woodard, 8th Dist.
Cuyahoga No. 103283, 2016-Ohio-5134, quoting Morgan v. Morgan, 8th Dist. Cuyahoga No.
102498, 2016–Ohio–104, ¶9 (determining that trial court did not abuse its discretion by failing to
hold hearing to consider contempt motion and stating that “‘Ohio courts have consistently
recognized that a trial court does not abuse its discretion in not conducting a hearing when the
movant never requested one’”).
{¶ 14} It is well-established that “‘an appellate court will not consider any error which
counsel for a party complaining of the trial court’s judgment could have called but did not call to
the trial court’s attention at a time when such error could have been avoided or corrected by the
trial court.’” State v. Quarterman, 140 Ohio St.3d 464, 2014–Ohio–4034, 19 N.E.3d 900, ¶15,
quoting State v. Awan, 22 Ohio St.3d 120, 122, 489 N.E.2d 277 (1986), quoting State v. Childs,
14 Ohio St.2d 56, 236 N.E.2d 545 (1968), paragraph three of the syllabus. Appellate courts
nevertheless have discretion to consider forfeited issues using a plain-error analysis. E.g.,
Risner v. Ohio Dept. of Natural Resources, Ohio Div. of Wildlife, 144 Ohio St.3d 278,
2015–Ohio–3731, 42 N.E.3d 718, ¶ 27; Hill v. Urbana, 79 Ohio St.3d 130, 133–34, 679 N.E.2d
1109 (1997), citing In re M.D., 38 Ohio St.3d 149, 527 N.E.2d 286 (1988), syllabus (stating that
“[e]ven where [forfeiture] is clear, [appellate] court[s] reserve[] the right to consider
constitutional challenges to the application of statutes in specific cases of plain error or where the
rights and interests involved may warrant it’”); State v. Pyles, 7th Dist. Mahoning No.
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13–MA–22, 2015–Ohio–5594, ¶82, quoting State v. Jones, 7th Dist. No. 06–MA–109,
2008–Ohio–1541, ¶65 (explaining that the plain error doctrine “‘is a wholly discretionary
doctrine’”); DeVan v. Cuyahoga Cty. Bd. of Revision, 8th Dist. Cuyahoga No. 102945,
2015–Ohio–4279, ¶9 (noting that appellate court retains discretion to consider forfeited
argument). For the plain error doctrine to apply, the party claiming error must establish (1) that
“‘an error, i.e., a deviation from a legal rule’” occurred, (2) that the error was “‘an “obvious”
defect in the trial proceedings,’” and (3) that this obvious error affected substantial rights, i.e., the
error “‘must have affected the outcome of the trial.’” State v. Rogers, 143 Ohio St.3d 385,
2015–Ohio–2459, 38 N.E.3d 860, ¶22, quoting State v. Barnes, 94 Ohio St.3d 21, 27, 759
N.E.2d 1240 (2002); Schade v. Carnegie Body Co., 70 Ohio St.2d 207, 209, 436 N.E.2d 1001,
1003 (1982) (“A ‘plain error’ is obvious and prejudicial although neither objected to nor
affirmatively waived which, if permitted, would have a material adverse affect on the character
and public confidence in judicial proceedings.”).
{¶ 15} The plain error doctrine is not, however, readily invoked in civil cases. Instead,
an appellate court “must proceed with the utmost caution” when applying the plain error doctrine
in civil cases. Goldfuss v. Davidson, 79 Ohio St.3d 116, 121, 679 N.E.2d 1099 (1997). The
Ohio Supreme Court has set a “very high standard” for invoking the plain error doctrine in a civil
case. Perez v. Falls Financial, Inc., 87 Ohio St.3d 371, 721 N.E.2d 47 (2000). Thus, “the
doctrine is sharply limited to the extremely rare case involving exceptional circumstances where
error, to which no objection was made at the trial court, seriously affects the basic fairness,
integrity, or public reputation of the judicial process, thereby challenging the legitimacy of the
underlying judicial process itself.” Goldfuss, 79 Ohio St.3d at 122, 679 N.E.2d 1099 (emphasis
SCIOTO, 16CA3784 8
sic); accord Gable v. Gates Mills, 103 Ohio St.3d 449, 2004–Ohio–5719, 816 N.E.2d 1049, ¶43.
{¶ 16} In the case at bar, we do not believe that any error the trial court may have
arguably committed by failing to hold a hearing regarding appellant’s contempt motion seriously
affects the basic fairness, integrity, or public reputation of the judicial process. Instead,
appellant’s (1) absence of an objection when the court converted the contempt hearing into a
pre-trial conference, (2) participation in the pre-trial conference, (3) response to appellee’s
motion to dismiss, and (4) absence of an objection when the court set her motion for a non-oral
hearing suggest that appellant acquiesced to the procedure the court employed. Therefore,
appellant not only forfeited any arguable error that might be associated with the trial court’s
decision not to hold a hearing regarding his contempt motion, but he also invited any error by
acquiescing to the court’s procedure. Goldfuss, 79 Ohio St.3d at 121-122 (stating that party
ordinarily should not be permitted to claim plain error when party invited the error); see State v.
Jackson, 149 Ohio St.3d 55, 2016–Ohio–5488, 73 N.E.3d 414, ¶ 108, quoting State ex rel. Kline
v. Carroll, 96 Ohio St.3d 404, 2002–Ohio–4849, 775 N.E.2d 517, ¶ 27 (“‘Under [the
invited-error] doctrine, a party is not entitled to take advantage of an error that he himself invited
or induced the court to make’”); id. at ¶ 122 (noting that invited error doctrine applies “when a
party * * * affirmatively consented to a procedure that the trial court proposed”); State v.
Rohrbaugh, 126 Ohio St.3d 421, 2010–Ohio–3286, 934 N.E.2d 920, ¶7-10 (explaining that even
plain error is waived when error is invited). Consequently, we reject appellant’s argument that
the trial court erred by failing to hold a hearing to consider his contempt motion.
{¶ 17} Appellant next asserts that disputed factual issues precluded the trial court from
granting appellee’s motion to dismiss his contempt motion. Initially, we observe that it is not
SCIOTO, 16CA3784 9
clear what particular legal standard the trial court applied when evaluating appellee’s motion to
dismiss appellant’s contempt motion. In her motion to dismiss, appellee asserted that the court
lacked personal jurisdiction over her and that it lacked subject matter jurisdiction to consider
appellant’s motions. On appeal, appellee asserts that appellant’s contempt motion fails to state a
claim for relief.
{¶ 18} Our review of the trial court’s decision suggests that the trial court actually ruled
upon the merits of appellant’s contempt motion. The court does not appear to have dismissed
appellant’s motion based upon a lack of jurisdiction or failure to state a claim upon which relief
may be granted. Therefore, we review appellant’s second assignment of error using the standard
of review applicable to trial court decisions regarding contempt motions.
{¶ 19} Generally, a trial court possesses broad discretion when considering a contempt
motion. State ex rel. Cincinnati Enquirer v. Hunter, 138 Ohio St.3d 51, 2013-Ohio-5614, 3
N.E.3d 179, ¶29, citing Denovchek v. Trumbull Cty. Bd. of Commrs., 36 Ohio St.3d 14, 16, 520
N.E.2d 1362 (1988) (“the primary interest involved in a contempt proceeding is the authority and
proper functioning of the court, [and therefore] great reliance should be placed upon the
discretion of the [court]”). Thus, absent an abuse of discretion, an appellate court will uphold a
trial court’s contempt decision. E.g., id.; Welch v. Muir, 4th Dist. No. 08CA32,
2009–Ohio–3575, ¶10. “‘[A]buse of discretion’ [means] an ‘unreasonable, arbitrary, or
unconscionable use of discretion, or * * * a view or action that no conscientious judge could
honestly have taken.’” State v. Kirkland, 140 Ohio St.3d 73, 15 N.E.3d 818, 2014-Ohio-1966,
¶67, quoting State v. Brady, 119 Ohio St.3d 375, 2008-Ohio-4493, 894 N.E.2d 671, ¶23. “An
abuse of discretion includes a situation in which a trial court did not engage in a ‘“sound
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reasoning process.”’” State v. Darmond, 135 Ohio St.3d 343, 2013-Ohio-966, 986 N.E.2d 971,
¶34, quoting State v. Morris, 132 Ohio St.3d 337, 2012-Ohio-2407, 972 N.E.2d 528, ¶14,
quoting AAAA Ents., Inc. v. River Place Community Urban Redevelopment Corp., 50 Ohio St.3d
157, 161, 553 N.E.2d 597 (1990). The abuse-of-discretion standard is deferential and does not
permit an appellate court to simply substitute its judgment for that of the trial court. Darmond at
¶ 34.
{¶ 20} In general, contemptuous conduct is conduct that “‘brings the administration of
justice into disrespect, or which tends to embarrass, impede or obstruct a court in the
performance of its functions.’” Denovchek v. Bd. of Trumbull Cty. Commrs., 36 Ohio St.3d 14,
15, 520 N.E.2d 1362 (1988), quoting Windham Bank v. Tomaszczyk, 27 Ohio St.2d 55, 271
N.E.2d 815 (1971), paragraph one of the syllabus. “The law of contempt is intended to uphold
and ensure the effective administration of justice,” “to secure the dignity of the court and to
affirm the supremacy of law.” Cramer v. Petrie, 70 Ohio St.3d 131, 133, 637 N.E.2d 882(1994).
{¶ 21} Contempt may be civil or criminal and indirect or direct. Criminal contempt
ordinarily involves “‘offenses against the dignity or process of the court.’” State ex rel. Johnson
v. Cty. Court of Perry Cty., 25 Ohio St.3d 53, 55, 495 N.E.2d 16, 18–19, 25 O.B.R. 77 (1986),
quoting State v. Local Union 5760, 172 Ohio St. 75, 82-83, 173 N.E.2d 331 (1961) (citations
omitted). Civil contempt, on the other hand, generally involves “‘violations which are on their
surface offenses against the party for whose benefit the order was made.’” Id., quoting Local
Union 5760, 172 Ohio St. at 82-83. “‘A direct contempt is one committed in the presence of or
so near the court as to obstruct the due and orderly administration of justice.’” Id. at 57, quoting
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In Matter of Lands, supra, 146 Ohio St.2d at 595, 67 N.E.2d 433. “‘An indirect contempt is one
committed outside the presence of the court but which also tends to obstruct the due and orderly
administration of justice.’” Id.{¶ 22} In the case at bar, appellant alleged that appellee was in contempt of a court order,
i.e., the divorce decree. The party seeking to enforce a court order must establish, by clear and
convincing evidence, the existence of a court order and the nonmoving party’s noncompliance
with the terms of that order. Wolf v. Wolf, 1st Dist. Hamilton No. C–090587, 2010–Ohio–2762,
¶4; Morford v. Morford, 85 Ohio App.3d 50, 55, 619 N.E.2d 71 (4th Dist. 1993). The burden
then shifts to the defendant to establish any defense. Morford.
“Clear and convincing evidence is that measure or degree of proof which is more
than a ‘preponderance of the evidence,’ but not to the extent of such certainty as is
required ‘beyond a reasonable doubt’ in criminal cases, and which will produce in
the mind of the trier of fact a firm belief or conviction as to the facts sought to be
established.”
Cross v. Ledford, 161 Ohio St. 469, 120 N.E.2d 118 (1954), paragraph three of the syllabus.
{¶ 23} In the case sub judice, appellant presented the trial court with the existence of a
trial court order. However, the plain terms of the order do not show that appellee failed to
comply with the order. The divorce decree entitles appellant to one-half of appellee’s retirement
account. The divorce decree is silent as to when appellant is to receive his one-half of her
retirement account. A subsequently drafted DOPO indicates that appellant is eligible to receive
his share when appellee starts to receive benefits. It is undisputed that appellee has not started
receiving benefits. Thus, under the plain terms of the divorce decree and DOPO, appellant is
not yet entitled to receive his share of appellee’s retirement benefits, and appellee has not failed
to comply with a court order. Appellant has not alleged any facts to show that appellee is
SCIOTO, 16CA3784 12
required to begin receiving retirement benefits or that she has violated a court order by failing to
do so. See generally Beddell v. Beddell, 5th Dist. Stark No. 2008CA00292, 2009-Ohio-6252,
2009 WL 4263631, ¶22 (observing that an alternate payee only has the rights and privileges as
provided for in the Revised Code and that there is no provision in the Revised Code that permits
an alternate payee to decide what type of benefit a plan participant must elect or that permits a
court to order whether a plan participant must select monthly benefits or a lump sum payment);
R.C. 3307.371(C) (stating that STRS “shall comply” with a DOPO “at the following times as
appropriate: (1) If the participant has applied for or is receiving a benefit or has applied for but
not yet received a lump sum payment, as soon as practicable; (2) If the participant has not applied
for a benefit or lump sum payment, on application by the participant for a benefit or lump sum
payment”). Consequently, we conclude that the trial court did not abuse its discretion by
refusing to find that appellee is in contempt of the divorce decree.
{¶ 24} We note that in his second assignment of error, appellant does not raise a specific
argument that the trial court incorrectly dismissed his motion to enforce the divorce decree and
DOPO, or his alternative request to modify the DOPO. Instead, his second assignment of error
generically asserts that the trial court should have held a hearing to consider his “motions” and
that factual disputes remain.
{¶ 25} Under App.R. 16(A)(7), an appellant’s brief shall include “[a]n argument
containing the contentions of the appellant with respect to each assignment of error presented for
review and the reasons in support of the contentions, with citations to the authorities, statutes,
and parts of the record on which appellant relies.” Appellate courts do not have any duty “to
root out” an argument in support of an assignment of error. Prokos v. Hines, 4th Dist. Athens
SCIOTO, 16CA3784 13
Nos. 10CA51 and 10CA57, 2014-Ohio-1415, 2014 WL 1339676, ¶55; Thomas v. Harmon, 4th
Dist. Lawrence No. 08CA17, 2009–Ohio–3299, ¶14; State v. Carman, 8th Dist. Cuyahoga No.
90512, 2008–Ohio–4368, ¶31. “It is not the function of this court to construct a foundation for
[an appellant’s] claims; failure to comply with the rules governing practice in the appellate courts
is a tactic which is ordinarily fatal.” Cantanzarite v. Boswell, 9th Dist. Summit No. 24184,
2009–Ohio–1211, ¶16, quoting Kremer v. Cox, 114 Ohio App.3d 41, 60, 682 N.E.2d 1006 (9th
Dist. 1996). Appellate courts possess discretion to disregard any assignment of error that fails to
include citations to the authorities in support. Robinette v. Bryant, 4th Dist. Lawrence No.
14CA28, 2015-Ohio-119, 2015 WL 223007, ¶33; State v. Adkins, 4th Dist. Lawrence No.
13CA17, 2014–Ohio–3389, ¶34, citing Frye v. Holzer Clinic, Inc., 4th Dist. Gallia No. 07CA4,
2008–Ohio–2194, ¶12; App.R. 12(A)(2).
{¶ 26} In the case sub judice, appellant did not construct an argument regarding the trial
court’s decision to dismiss his motion to enforce/modify. Consequently, we will not address
this “undeveloped argument[] or assume [appellant]’s duty and formulate an argument for him.”
State v. Palmer, 9th Dist. Summit No. 28303, 2017-Ohio-2639, 2017 WL 1749087; see State v.
Baskerville, 9th Dist. Summit No. 28148, 2017-Ohio-4050, 2017 WL 2366554, ¶52, citing State
v. Watson, 9th Dist. Summit No. 24232, 2009-Ohio-330, 2009 WL 187885, ¶5, citing App.R.
16(A)(7) (“An appellant bears the burden of formulating an argument on appeal and supporting
that argument with citations to the record and to legal authority.”).
{¶ 27} Accordingly, based upon the foregoing reasons, we overrule appellant’s second
assignment of error.
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II
{¶ 28} We now consider appellant's first assignment of error wherein he asserts that the
trial court erred as a matter of law by disposing of the case on the basis of information it obtained
by conducting research with legal counsel from the Ohio STRS. Appellant contends that the
court improperly relied upon evidence outside of the record when ruling on his motion. We
believe, however, that even if we assume that the trial court erred by conducting its own inquiry,
any arguable error would constitute harmless error that we must disregard. See Civ.R. 61
(explaining that court “must disregard any error or defect in the proceeding” that does not affect a
party’s substantial rights); Niskanen v. Giant Eagle, Inc., 122 Ohio St.3d 486, 2009-Ohio-3626,
912 N.E.2d 595, ¶26, quoting Smith v. Flesher, 12 Ohio St.2d 107, 110, 233 N.E.2d 137 (1967)
(explaining that “‘in order to secure a reversal of a judgment,’” a party “‘must not only show
some error but must also show that that error was prejudicial to him’”); Theobald v. Univ. of
Cincinnati, 160 Ohio App.3d 342, 2005-Ohio-1510, 827 N.E.2d 365, ¶17 (“When avoidance of
the error would not have changed the outcome of the proceedings, then the error neither
materially prejudices the complaining party nor affects a substantial right of the complaining
party.”). Even if the trial court improperly conducted its own research with legal counsel from
the Ohio STRS,1 the language of the divorce decree and DOPO fail to support a finding that
1 While a trial court may not consider evidence (i.e., facts) outside of the record, a court ordinarily may consider opinions and
public records accessible from the internet. Draughon v. Jenkins, 4th Dist. Ross No. 16CA3528, 2016–Ohio–5364, 2016 WL 4262984,
¶26, citing State ex rel. Everhart v. McIntosh, 115 Ohio St.3d 195, 2007–Ohio–4798, 974 N.E.2d 516, ¶8 and ¶10 (stating that court can
take judicial notice of judicial opinions and public records accessible from the internet); see State ex rel. Scott v. Cleveland, 112 Ohio St.3d
324, 2006–Ohio–6573, 859 N.E.2d 923, ¶26 (explaining that court can take judicial notice of appropriate matters in determining Civ.R.
12(B)(6) motion without converting it to a motion for summary judgment).
We further note, however, that Rule 2.9(A)(2) of the Ohio Code of Judicial Conduct states:
SCIOTO, 16CA3784 15
appellee violated the terms of either the decree or DOPO. Consequently, any arguable error that
the court may have committed by relying upon advice from legal counsel for the Ohio STRS did
not affect the outcome of the proceeding and thus, constitutes harmless error that we must
disregard.
{¶ 29} Accordingly, based upon the foregoing reasons, we overrule appellant’s first
assignment of error.
III
{¶ 30} In his third assignment of error, appellant asserts that the trial court erred by
dismissing his motions to the extent the court believed that it lacked jurisdiction to consider
them.
{¶ 31} On April 14, 2017, this court issued an entry discussing appellee’s motion to
dismiss the appeal and determined that the trial court did not dismiss appellant’s motions based
upon a belief that it lacked jurisdiction to rule on the motions. Burchett v. Burchett, 4th Dist.
Scioto No. 16CA3784, 2017-Ohio-2667, 2017 WL 1741578, ¶19-20. We therefore overrule
appellant’s third assignment of error.
{¶ 32} Accordingly, based upon the foregoing reasons, we overrule appellant’s third
assignment of error and affirm the trial court’s judgment.
(A) A judge shall not initiate, receive, permit, or consider ex parte communications, except as follows:
****
(2) A judge may obtain the advice of a disinterested expert on the law applicable to a proceeding before the
judge, if the judge gives notice to the parties of the person consulted and the subject-matter of the advice solicited, and
affords the parties a reasonable opportunity to object or respond to the advice received;
****
Nevertheless, the preamble indicates that the Code of Judicial Conduct is not “intended to be the basis for litigants to seek collateral remedies
SCIOTO, 16CA3784 16
JUDGMENT AFFIRMED.
against each other or to obtain tactical advantages in proceedings before a court.”
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JUDGMENT ENTRY
It is ordered that the judgment be affirmed and that appellee recover of appellant the costs
herein taxed.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the Scioto County
Common Pleas Court to carry this judgment into execution.
A certified copy of this entry shall constitute that mandate pursuant to Rule 27 of the
Rules of Appellate Procedure.
Harsha, J.: Concurs in Judgment & Opinion
McFarland, J.: Dissents
For the Court
BY:
Peter B. Abele, Judge
SCIOTO, 16CA3784 18
NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a final judgment entry and the
time period for further appeal commences from the date of filing with the clerk.