Kubasco v. Kubasco

[Cite as Kubasco v. Kubasco, 2021-Ohio-1031.]
COURT OF APPEALS
STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT
JUDGES:
CHRISTENA KUBASCO : Hon. W. Scott Gwin, P.J.
: Hon. William B. Hoffman, J.
Plaintiff-Appellee : Hon. Earle E. Wise, J.
:
-vs- :
: Case No. 2020 CA 00122
DALE KUBASCO :
:
Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Civil appeal from the Stark County Court of
Common Pleas, Domestic Relations
Division, Case No. 2010DR00911
JUDGMENT: Reversed and Remanded
DATE OF JUDGMENT ENTRY: March 29, 2021
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
CHRISTENA KUBASCO PRO SE MICHAEL A. PARTLOW
8011 Garnet Ave. N.E. 112 S. Water Street, Suite C
Canton, OH 44721 Kent, OH 44240
[Cite as Kubasco v. Kubasco, 2021-Ohio-1031.]
Gwin, P.J.
{¶1} Appellant appeals the July 31, 2020 judgment entry of the Stark County
Court of Common Pleas, Domestic Relations Division, denying his motion to modify
spousal support.
Facts & Procedural History
{¶2} Appellant Dale Kubasco and appellee Christena Kubasco were married in
1987. In 1996, appellant was convicted of sexually assaulting one of appellee’s children
from a prior relationship.
{¶3} Appellee filed a complaint for divorce in 2010. At the time of the divorce,
appellant was in prison. The pensions of appellant and appellee were thus considered in
order to determine spousal support. In 2011, a magistrate awarded appellee indefinite
spousal support of $454.59 per month. The magistrate’s decision provides, “the judgment
entry of divorce shall contain a provision which specifically authorizes the court to modify
the amount or term of spousal support in the event the circumstances of either party
should change.” The magistrate’s decision also states, “Plaintiff’s counsel shall submit a
Judgment Entry of Divorce consistent with this Magistrate’s Decision within thirty (30)
days of having been served with this Magistrate’s Decision unless timely objections are
filed by either party.”
{¶4} Both parties filed objections to the magistrate’s decision. The trial court
issued a judgment entry on November 21, 2011, approving and adopting the magistrate’s
decision. The trial court did not enter a judgment entry of divorce and did not instruct
either party to do so in its November 21, 2011 judgment entry.
Stark County, Case No. 2020 CA 00122 3
{¶5} Appellant appealed the trial court’s decision to this Court. Neither party
informed this Court or argued that the judgment entry of divorce had not been filed. Thus,
this Court proceeded to a determination on the merits of the case, pursuant to the trial
court’s November 21, 2011 judgment entry overruling the objections to the magistrate’s
decision.
{¶6} Appellant argued the trial court abused its discretion in awarding appellee
spousal support, and abused its discretion in awarding appellee spousal support for an
indefinite period of time. Relying on the trial court’s November 2011 judgment entry, this
Court overruled appellant’s objections and affirmed the decision of the trial court.
Kubasco v. Kubasco, 5th Dist. Stark No. 2011CA00282, 2012-Ohio-4072.
{¶7} Since 2011, appellee has received appellant’s full pension amount because
appellant was incarcerated. Appellee gets her monthly payment directly from the pension
fund via a Qualified Domestic Relations order.
{¶8} Appellant filed a motion to modify spousal support on September 27, 2019.
Appellant filed a memorandum in support of his motion to modify on February 4, 2020.
Appellant argued a substantial change in circumstances has occurred because he is no
longer incarcerated.
{¶9} The trial court issued a judgment entry on July 31, 2020. The trial court
stated because a final decree of divorce has not been filed in this case, appellant’s motion
to modify spousal support is denied because the trial court does not have jurisdiction to
address the requested relief. As stated by the trial court, “the authority of the court to
address the issue of spousal support was to flow through the Final Entry Decree of
Divorce which has not been filed herein.” The trial court also noted while service had
Stark County, Case No. 2020 CA 00122 4
been perfected on appellee, she did not appear for any court hearing after the filing of the
motion to modify.
{¶10} Appellant appeals the July 31, 2020 judgment entry of the Stark County
Court of Common Pleas, Domestic Relations Division, and assigns the following as error:
{¶11} “I. THE TRIAL COURT ERRED, AS A MATTER OF LAW, BY
DETERMINING THAT IT HAD NO JURISDICTION TO GRANT APPELLANT RELIEF.”
{¶12} In his assignment of error, appellant contends the trial court committed error
in finding it did not have jurisdiction to address his motion to modify spousal support.
{¶13} The trial court in this case found its authority to address the issue of spousal
support was to flow through the final divorce decree, which was never filed. The trial court
thus denied appellant’s motion to modify.
{¶14} We agree with the trial court that the authority to address the issue of
spousal support comes from the final divorce decree and that there is no final judgment
entry of divorce in this case. Aguirre v. Sandoval, 5th Dist. Stark No. 2010CA00001,
2010-Ohio-6006. However, rather than deny and dismiss appellant’s motion, we find the
trial court has a duty to issue the final divorce decree.
{¶15} In this case, it is unclear how the judgment entry of divorce was to be
submitted. While the magistrate ordered counsel for appellee to submit the judgment
entry of divorce within thirty days, the magistrate qualified this language by stating,
“unless timely objections are filed by either party.” Timely objections were filed by both
parties. When the trial court issued its judgment entry overruling the objections, it did not
issue a divorce decree, did not order either party to submit one, and did not clarify whether
counsel for appellee was still responsible for the entry.
Stark County, Case No. 2020 CA 00122 5
{¶16} While a trial court has the inherent power to regulate procedure before it
and can direct counsel to submit a judgment entry to the court, it is ultimately the trial
court’s obligation to issue a judgment entry. State ex rel. Rodgers v. Cuyahoga County
Court of Common Pleas, 83 Ohio App.3d 684, 615 N.E.2d 689 (8th Dist. Cuyahoga 1992).
Once a decision has been announced, Civil Rule 58(A) places the burden on the court to
“promptly cause the judgment to be prepared.” Civ.R. 58(A). Rule 7 of the Rules of
Superintendence, promulgated by the Supreme Court of Ohio, provides, “the judgment
entry specified in Civil Rule 58 * * * shall be filed and journalized within thirty days of the
verdict, decree, or decision. If the entry is not prepared and presented by counsel, it shall
be prepared and filed by the court.” Sup.R. 7. The commentary to Rule 7 states, “the
purpose of the rule is to assure the entry of judgment in a civil case is not delayed by
failure of counsel to prepare and file the entry.” Id.{¶17} In his 2011 order, the magistrate specifically detailed what should be
contained in the final judgment entry decree of divorce. The trial court overruled both
parties’ objections to the magistrate’s order. Accordingly, the trial court should issue a
final judgment entry decree of divorce consistent with the magistrate’s 2011 decision.
The trial court should then proceed to rule on appellant’s September 27, 2019 motion to
modify spousal support.
{¶18} Based on the foregoing, appellant’s assignment of error is sustained.
Stark County, Case No. 2020 CA 00122 6
{¶19} The July 31, 2020 judgment entry of the Stark County Court of Common
Pleas, Domestic Relations Division, is reversed and remanded to the trial court to issue
a final judgment entry and rule on appellant’s September 27, 2019 motion to modify.
By Gwin, P.J.,
Hoffman, J., and
Wise, Earle E., J, concur