Lee v. Lee

[Cite as Lee v. Lee, 2012-Ohio-1557.]
COURT OF APPEALS
LICKING COUNTY, OHIO
FIFTH APPELLATE DISTRICT
JUDGES:
TERI D. LEE : Hon. W. Scott Gwin, P.J.
: Hon. John W. Wise, J.
Plaintiff-Appellee : Hon. Julie A. Edwards, J.
:
-vs- :
: Case No. 2011-CA-00068
DENNIS N. LEE :
:
Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Civil appeal from the Licking County Court
of Common Pleas, Domestic Relations
Division, Case No. 10 DR 01432 RPW
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: April 4, 2012
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
JULIA K. FIX MILES D. FRIES
172 Hudson Avenue Gottlieb, Johnston, Beam & Dal Ponte,
Newark, OH 43055 P.L.L.
320 Main St., Box 190
Zanesville, OH 43702-0190
[Cite as Lee v. Lee, 2012-Ohio-1557.]
Gwin, P.J.
{1} Defendant-appellant Dennis N. Lee appeals a judgment of the Court of
Common Pleas, Domestic Relations Division, of Licking County, Ohio which granted a
divorce and accepted the terms of the parties’ settlement. Appellee is plaintiff Teri D.
Lee. For the reasons that follow, we affirm the judgment.
{2} On May 31, 2011, the trial court entered a judgment decree of divorce. On
June 15, 2011, appellant filed a motion to set aside the settlement memorandum
executed by the parties, and to vacate the decree of divorce because, he alleged, the
terms of the decree are inconsistent with the terms of the settlement memorandum. On
June 30, 2011, appellant filed a notice of appeal from the divorce decree and on the
same day appellee filed a motion for show cause to enforce the decree. On August 2,
2011, the trial court filed a judgment entry finding there was no stay from either the trial
court or the court of appeals, and the show cause motion was set for hearing. The court
reviewed and overruled the motion to vacate, except that the court agreed there was an
error in the decree of divorce and corrected it nunc pro tunc.
{3} Appellant assigns two errors to the trial court:
{4} “I. THE TRIAL COURT ERRED IN FAILING TO VACATE A DECREE OF
DIVORCE WHICH INCORPORATED THE TERMS OF A SETTLEMENT
MEMORANDUM THAT WAS NOT KNOWINGLY AND VOLUNTARILY EXECUTED.
{5} “II. THE TRIAL COURT SHOULD HAVE VACATED THE DIVORCE
DECREE THAT WAS VOIDABLE BECAUSE IT DEPRIVED THE COURT OF IT’S (sic)
INHERENT AUTHORITY TO ENFORCE IT’S OWN ORDER.”
Licking County, Case No. 2011-CA-00068 3
{6} If an appeal is pending the trial court does not have jurisdiction to consider
a Civ. R. 60 motion for relief from judgment unless the reviewing court remands the
matter for consideration of the motion. Howard v. Catholic Social Services of Cuyahoga
County, Inc., 70 Ohio St. 3d 141, 147, 637 N.E. 2d 890 (1994). A trial court has
jurisdiction to correct a clerical oversight pursuant to Civ. R. 60 (A), so long as any
mistake is corrected before the appeal is docketed in the appellate court. After the case
is docketed, the court may correct a clerical mistake in a judgment with leave of the
appellate court.
{7} We find the trial court did not have jurisdiction to rule on appellant’s motion
to vacate the settlement agreement and divorce decree. Following our disposition here,
the trial court regains jurisdiction to determine the appellant’s motion for relief. State ex
rel. Newton v. Court of Claims, 73 Ohio St. 3d, 553, 558, 653 N.E. 2d 366.
{8} Neither of appellant’s assignments of error are directed to the May 31
judgment from which the appeal is taken, but rather to the court’s ruling on the motion to
vacate the court journalized after appellant filed the notice of appeal.
{9} Because appellant’s assignments of error do not relate to the judgment
from which the appeal is taken, we affirm the judgment of the trial court.
Licking County, Case No. 2011-CA-00068 4
{10} For the foregoing reasons, the judgment of May 31, 2011 is affirmed and
the cause is remanded to the trial court for ruling on the Motion to Vacate, which is
pending before it.
By Gwin, P.J.,
Wise, J., and
Edwards, J., concur
_________________________________
HON. W. SCOTT GWIN
_________________________________
HON. JOHN W. WISE
_________________________________
HON. JULIE A. EDWARDS
WSG:clw 0222
[Cite as Lee v. Lee, 2012-Ohio-1557.]
IN THE COURT OF APPEALS FOR LICKING COUNTY, OHIO
FIFTH APPELLATE DISTRICT
TERI D. LEE :
:
Plaintiff-Appellee :
:
:
-vs- : JUDGMENT ENTRY
:
DENNIS N. LEE :
:
:
Defendant-Appellant : CASE NO. 2011-CA-00068
For the reasons stated in our accompanying Memorandum-Opinion, the judgment of
May 31, 2011 is affirmed and the cause is remanded to the trial court for ruling on the
Motion for Relief, which is pending before it. Costs to appellant.
_________________________________
HON. W. SCOTT GWIN
_________________________________
HON. JOHN W. WISE
_________________________________
HON. JULIE A. EDWARDS