Perozeni v. Perozeni

[Cite as Perozeni v. Perozeni, 2023-Ohio-1140.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
ALICIA PEROZENI, :
Plaintiff-Appellee, :
No. 111771
v.
RENE PEROZENI, :
Defendant-Appellant. :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: April 6, 2023
Civil Appeal from the Cuyahoga County Court of Common Pleas
Domestic Relations Division
Case No. DR-20-383044
Appearances:
The Law Offices of LeeDaun C. Williams, LLC, and
LeeDaun C. Williams, for appellee.
Carrabine & Reardon Co., LPA, and James W. Reardon,
for appellant.
MICHAEL JOHN RYAN, J.:
In this accelerated appeal under App.R. 11.1 and Loc.App.R. 11.1.,
defendant-appellant Rene Perozeni (“Rene”) appeals from the trial court’s
July 19, 2022 judgment denying his motion to vacate. The purpose of an accelerated
appeal is to allow the appellate court to render a brief and conclusory opinion.
Crawford v. Eastland Shopping Mall Assn., 11 Ohio App.3d 158, 463 N.E.2d 655(10th Dist.1983); App.R. 11.1(E). After careful review of the facts and pertinent law,
we affirm.
Procedural History
In October 2020, plaintiff-appellee Alicia Perozeni (“Alicia”) filed this
divorce action against Rene. Relevant to this appeal, on June 7, 2022, Alicia filed a
motion to sell the marital residence; Rene opposed the motion. On July 7, 2022, the
trial court granted Alicia’s motion. On July 14, 2022, Rene filed a motion to vacate
the order. On July 19, 2022, the trial court denied Rene’s motion to vacate. On July
22, 2022, Rene appealed from the trial court’s judgment denying his motion to
vacate. Rene’s sole assignment of error reads, “The trial court erred when it granted
plaintiff/appellee’s motion to sell marital residence.”
Final, Appealable Order Issue
This court requested that the parties brief whether the judgment Rene
appeals from — the July 19, 2022 judgment denying his motion to vacate — is a final,
appealable order. The court noted that although this court has held that a pretrial
order for the sale of a marital home is a final, appealable order, see Malik v. Malik,
8th Dist. Cuyahoga No. 107183, 2018-Ohio-4901, Rene did not appeal from the trial
court’s order granting the sale of the home; rather he appealed from the trial court’s
order judgment denying his motion to vacate. In addition to Malik, this court
directed the parties’ attention to the following cases for consideration in their
briefing: Dickerson v. Cleveland Metro. Hous. Auth., 8th Dist. Cuyahoga No. 96726,
2011-Ohio-6437; Hummer v. Hummer, 8th Dist. Cuyahoga No. 96132, 2011-Ohio-
3767; and Lorain Edn. Assn. v. Lorain City School Dist. Bd. of Edn., 46 Ohio St.3d
12, 544 N.E.2d 687 (1989).
Rene’s Position
In his supplemental brief, Rene only cites Malik in support of his
position that we have jurisdiction to consider this appeal. In Malik, the husband
filed for a divorce from the wife. At the time the complaint was filed, the husband
lived in rented quarters and the wife lived in the marital home with the couple’s two
minor children. The husband filed a motion for an order to sell the marital home,
which the wife did not oppose. The case proceeded to trial but was continued several
times. Approximately six months after the husband filed his motion, while the case
was still pending conclusion of the trial, the husband renewed his motion for an
order to sell the marital home. Again, the wife did not oppose the motion. The trial
court granted the husband’s motion on April 16, 2018. On April 20, 2018, the wife
filed a motion for reconsideration. Prior to the trial court ruling on the motion for
reconsideration, the wife filed a timely appeal.
This court held that it had jurisdiction to hear the appeal because the
wife had appealed from the trial court’s judgment ordering the sale of the marital
home, which is a final, appealable order. See id. at ¶ 11-15. The court noted that the
wife’s motion for reconsideration, which was filed after a final, appealable order had
been entered, was a nullity and, thus, the trial court properly disregarded it.
Id. at ¶ 17.
Thus, Rene contends that because Malik holds that a pretrial order of
sale of property in a divorce case is a final order, and that is what occurred in this
case, we have jurisdiction to consider this appeal.
Alicia’s Position
Alicia, on the other hand, posits that we do not have jurisdiction to
hear this appeal because the order Rene appealed from — the judgment denying his
motion to vacate — is not a final, appealable order. She relies on Hummer, 8th Dist.
Cuyahoga No. 96132, 2011-Ohio-3767, and Lorain Edn. Assn., 46 Ohio St.3d 12, 544
N.E.2d 687.
Hummer was also a divorce proceeding. Several months after filing
her complaint for divorce, the wife filed a motion to appoint a receiver and requested
a specific person be named as receiver. In June 2010, the trial court granted the
wife’s motion and appointed the requested receiver. In July 2010, the trial court
issued an order extending the receiver’s authority and responsibility. In August
2010, the trial court confirmed the receiver’s motion for an order confirming the sale
of marital real property.
Meanwhile, the husband retained new counsel who, in November
2010, filed a motion to set aside and vacate the order appointing the receiver. In
December 2010, the trial court granted the receiver’s motion to confirm the sale of
property and denied the husband’s motion to vacate. The husband filed a notice of
appeal five days later. This court dismissed the case for lack of a final, appealable
order. Hummer at ¶ 1, 6, 25.
This court noted that the husband’s “sole assignment of error
challenges the trial court’s denial of his motion to set aside and vacate the order
appointing the receiver[,]” and “[i]t is well settled that an order appointing a receiver
is a final, appealable order that affects a substantial right in a special proceeding.”
Id. at ¶ 7-8. Thus, this court held that the husband should have appealed the order
appointing the receiver within 30 days. Id. at ¶ 8. The judgment denying vacation
of the receivership, however, did not affect any substantial right and was not a final,
appealable order. Id. at ¶ 9.
Lorain Edn. Assn., 46 Ohio St.3d 12, 544 N.E.2d 687, involved an
administrative appeal, in which a school association filed an unfair labor practice
charge against the school board with the State Employment Relations Board
(“SERB”) alleging that a school representative had been unlawfully denied access to
a member by the board. SERB ordered the dispute to arbitration under the parties’
collective bargaining agreement. The school association appealed the SERB order
to two separate common pleas courts, those being, the Franklin County Court of
Common Pleas and the Lorain County Court of Common Pleas.
The school association filed a motion for reconsideration with SERB
of the referral to arbitration order in the Franklin County case. SERB denied the
motion, and the school association appealed SERB’s denial to the Franklin County
Court of Common Pleas. The common pleas court affirmed SERB’s denial of the
school association’s motion for reconsideration. The school association then
appealed to the Tenth District Court of Appeals. The appellate court vacated the
trial court’s judgment and remanded with instructions for the court to dismiss the
administrative appeal for lack of a final, appealable order. The school association
appealed to the Ohio Supreme Court.
In the Lorain County case, the school association sought to arbitrate
its dispute with the board, but the board refused due to the pending appeal of the
arbitration order. Because of the board’s refusal to arbitrate, the school association
filed a motion with SERB to vacate the referral to arbitration order. SERB denied
the motion on the ground that it lacked jurisdiction. The school association
appealed the denial of the motion to vacate to the Lorain County Court of Common
Pleas, which dismissed the case for lack of jurisdiction. The school association
appealed to the Ninth District Court of Appeals, which affirmed the common pleas
court. Thereafter, the school association appealed to the Supreme Court of Ohio.
The school association contended that the decision of SERB to order
the dispute to arbitration was a final, appealable order. The Supreme Court noted,
however, that the arbitration order was not the subject of the appeals before the
court. Rather, the subject of the appeals before the court arose in the context of
SERB’s denial of the school association’s motion for reconsideration of the
arbitration order and its subsequent denial of the motion to vacate the order. The
appeals of the arbitration order itself remained pending in the Franklin County and
Lorain County Courts of Common Pleas. Thus, the court found that only the denial
of these motions on jurisdictional grounds was presented for its review.
The Supreme Court held that when a notice of appeal from a decision
of an administrative agency has been filed, the agency is divested of jurisdiction to
reconsider, vacate, or modify the decision unless there is express statutory language
to the contrary. Lorain Edn. Assn., 46 Ohio St.3d at 15, 544 N.E.2d 687. Thus,
SERB lost jurisdiction to alter its earlier decision once the school association
appealed the decision. Id. The court held that it would not determine the school
association’s position that the decision of SERB to order the dispute to arbitration
was a final, appealable order. Id. The court noted that R.C. 119.12 governed the
appeal of SERB orders and that these issues must be considered in the first instance
by the courts in which the appeals of the arbitration order were then pending. Id.Dickerson Case
In Dickerson, 8th Dist. Cuyahoga No. 96726, 2011-Ohio-6437, which
neither party addressed in their supplemental briefings, the defendant housing
authority was granted summary judgment in its favor on the plaintiffs’ complaint.
Subsequently, without explanation, the trial court sua sponte vacated its order
granting summary judgment in favor of the housing authority. The housing
authority appealed.
This court held that although a trial court has authority to vacate its
own void judgment, i.e., a judgment rendered by the trial court without jurisdiction
or where the court acts contrary to law, it does not have authority to sua sponte
vacate or modify its own final orders. Id. at ¶ 6-7. Rather, Civ.R. 60(B) is the
exclusive means for a trial court to vacate a final judgment. Id. at ¶ 7.
Analysis
With the above-discussed cases in mind, we consider the final,
appealable order issue. Lorain Edn. Assn. presents a somewhat different factual
and procedural situation than is presented here because it involved an
administrative appeal, which are first heard on appeal in the trial court; the issue of
a final order had not been decided in the trial court, however.
Malik, Hummer, and Dickerson are more instructive for this appeal.
The upshot of Malik and Hummer is that decisions on motions to sell marital real
estate and to appoint a receiver are final orders subject to appeal. An appeal cannot
be taken from a decision on a motion for reconsideration or motion to vacate the
decision on the underlying issue, however.1 The upshot of Dickerson is that the only
way a trial court can modify or vacate its final orders is through Civ.R. 60(B).
The distinction between Malik and this case is that in Malik the wife
did not file a motion to vacate. Rather, she filed a motion for reconsideration. It is
1
But see Gasper v. Bank of Am., N.A., 2019-Ohio-1150, 133 N.E.3d 1037, ¶ 7, 8
(9th Dist.), (“A decision granting a common law motion to vacate is a final order, subject
to immediate appellate review”; “A motion to vacate, however, is only proper when the
underlying judgment is a final order.”). (Citations omitted.)
well-established that the Ohio Rules of Civil Procedure do not provide for motions
for reconsideration in the trial court and that such motions are considered a nullity.
Pitts v. Dept. of Transp., 67 Ohio St.2d 378, 380, 423 N.E.2d 1105 (1981). As the
Sixth District Court of Appeals has stated, “[O]nce a final judgment is entered, it
cannot be reconsidered by the trial court. * * * Where no final judgment has been
entered, a trial court has continuing jurisdiction to revise its order at any time and
can entertain a motion for reconsideration.” Phillips v. Mufleh, 95 Ohio App.3d 289,
293, 642 N.E.2d 411 (6th Dist.1994). Thus, this court in Malik treated the wife’s
motion for reconsideration as a nullity and, because she had timely appealed from
the date of the final order, accepted jurisdiction over it.
In Hummer, the husband appellant did not challenge the final order
(the appointment of the receiver) for approximately five months after the order, at
which time he filed his motion to set aside and vacate. Thus, at the time the husband
appealed from the judgment denying his motion to set aside and vacate, the time for
an appeal from the final judgment (the appointment of the receiver) had expired.
Here, although Rene did not appeal from the final order granting sale
of the marital residence, he nonetheless appealed within 30 days of that order as
required under App.R. 4(A)(1). Timeliness is not an issue in this case. Additionally,
at least according to Dickerson, Rene’s motion to vacate was a nullity (similar to the
wife’s motion for reconsideration in Malik) because the only way he could have
challenged the final judgment in the trial court was through a Civ.R. 60(B) motion.
The timely filing of a notice of appeal is the only jurisdictional
requirement for perfecting a valid appeal. Transamerica Ins. Co. v. Nolan, 72 Ohio
St.3d 320, 649 N.E.2d 1229 (1995), syllabus. “Failure of an appellant to take any
step other than the timely filing of a notice of appeal does not affect the validity of
the appeal, but is ground only for such action as the court of appeals deems
appropriate, which may include dismissal of the appeal.” App.R. 3(A). Thus, the
Supreme Court of Ohio has held that “[w]hen presented with other defects in the
notice of appeal, a court of appeals is vested with discretion to determine whether
sanctions, including dismissal, are warranted, and its decision will not be
overturned absent an abuse of discretion.” Transamerica at 322.
App.R. 3(D) sets forth the required content of a notice of appeal and
states, in pertinent part, that “[t]he notice of appeal shall specify the party or parties
taking the appeal; shall designate the judgment, order or part thereof appealed
from; and shall name the court to which the appeal is taken.” In Transamerica, the
Supreme Court treated a failure to comply with App.R. 3(D) as a “step other than
the timely filing of a notice of appeal” and held that a failure to specifically identify
all of the appellants, as required by that rule, was not a jurisdictional defect.
Transamerica at id. The court held that the court of appeals had discretion to
determine whether sanctions, including dismissal, were warranted as a result of a
failure to comply with App.R. 3(D). The court ultimately concluded that the court
of appeals abused its discretion by refusing to consider the appeal of one of the
appellants because of the absence of an express designation of her as an appellant
in the notice of appeal. Id. at 323.
This court has also held that defects in a notice of appeal, other than
timeliness, are not fatal to an appeal.
[I]t is the timely filing of the notice of appeal that is a jurisdictional
prerequisite to this court’s authority, not the contents of that notice.
Indeed, a reviewing court is free to take whatever action it believes is
appropriate, including dismissal of the appeal when a notice of appeal
is defective under App.R. 3. When it does so, however, it is not because
of any jurisdictional impediment, but as an exercise of its discretion
under this rule.
In re: S.G. & M.G., 8th Dist. Cuyahoga No. 84228, 2005-Ohio-1163, ¶ 17; see also
In re A.D., 8th Dist. Cuyahoga No. 87510, 2006-Ohio-6036, ¶ 18-22; In re A.C.,
160 Ohio App.3d 457, 2005-Ohio-1742, 827 N.E.2d 824, ¶ 20 (8th Dist.) (“It is
within the discretion of the appellate court to allow or disallow an appeal that lacks
one of the prerequisites contained in App.R. 3(D).”); but see Wallace v. Halder,
8th Dist. Cuyahoga No. 95324, 2011-Ohio-850, ¶ 9 (holding that the court lacked
jurisdiction to consider an assignment of error regarding an order not specified in
the notice of appeal).
There is a defect in Rene’s notice of appeal — he has only attached,
and identified as the judgment he is appealing, the July 19, 2022 judgment denying
his motion to vacate. His sole assignment of error challenges the trial court’s
judgment granting Alicia’s motion to sell the marital residence, however. In light of
the Supreme Court’s holding in Transamerica, and at least some precedent from
this court, in our discretion, we find that we have jurisdiction to consider this appeal.
Thus, we now consider the merits of the appeal.
Judgment Ordering Sale of the Marital Home
Alicia made her motion to sell the marital residence under
R.C. 3105.171(J)(2). R.C. 3105.171(J)(2) provides that a trial court may issue any
orders that it determines equitable, including “[a]n order requiring the sale * * * of
any real or personal property, with the proceeds from the sale * * * to be applied as
determined by the court.” We review a trial court’s predecree order of sale of a
marital residence for an abuse of discretion. See Malik, 8th Dist. Cuyahoga
No. 107183, 2018-Ohio-4901, at ¶ 16. “Abuse of discretion,” which is “‘commonly
employed to justify an interference by a higher court with the exercise of
discretionary power by a lower court, implies not merely error of judgment, but
perversity of will, passion, prejudice, partiality, or moral delinquency.’” Johnson v.
Abdullah, 166 Ohio St.3d 427, 2021-Ohio-3304, 187 N.E.3d 463, ¶ 35, quoting
Black’s Law Dictionary 11 (2d Ed.1910).
In her motion, Alicia requested that the proceeds of the sale of the
marital residence be equally divided between herself and Rene. Rene raised the
following contentions in opposition: (1) sale of the home should be reserved for trial;
(2) there is a lack of evidence regarding the fair market value of the property and the
value of liens or encumbrances associated with the property; (3) Rene wishes to
retain the marital residence and buy out Alicia’s interest in it; (4) there is a
component of separate property Rene wishes to pursue at trial; (5) there is no
evidence that the parties are financially unable to maintain the residence; and (6) if
the residence is sold through a real estate company the parties will lose equity due
to costs of the sale, such as commission fees.
In its order granting Alicia’s motion, the trial court ordered that
(1) the residence be listed within 15 days of the date of the order; (2) Alicia and Rene
jointly select a realtor and cooperate to facilitate the sale of the residence, including
executing the necessary documents; (3) no reasonable offer will be declined; and (4)
the proceeds of the sale are to be held in the IOLTA account of Alicia’s counsel until
further order of the court or agreement of the parties.
We find no abuse of discretion in the trial court’s decision. Sale of a
marital home does not have to be reserved for trial, and because the trial court
ordered that the proceeds of the sale be placed in escrow, Rene can still pursue his
separate property claim at trial. The fair market value and liens or encumbrances
associated with the property will necessarily be established and resolved through a
sale.2
In regard to Rene’s contention that he wanted to buy out Alicia’s
interest in the property and there is no evidence regarding his financial inability to
do so, we note that Alicia filed this action in October 2020, and in December 2021,
Rene filed for bankruptcy, which stayed the case until March 2022. As a general
rule, a trial court has the inherent authority to manage its own proceedings and
2
The trial court ordered an appraisal of the residence in October 2021.
control its own docket. See Love Properties, Inc. v. Kyles, 5th Dist. Stark
No. 2006CA00101, 2007-Ohio-1966, ¶ 37, citing State ex rel. Nat. City Bank v.
Maloney, 7th Dist. Mahoning No. 03 MA 139, 2003-Ohio-7010, ¶ 5. On the record
before us, the trial court’s predecree order of the sale of the marital home was a
means of managing this proceeding and controlling its docket, and there was no
abuse of its discretion. Finally, the trial court’s rejection of Rene’s contention that if
the residence is sold through a real estate company the parties will lose equity due
to costs of the sale, such as commission fees, is not an abuse of discretion.
Appellant’s sole assignment of error is without merit and hereby
overruled.
Judgment affirmed.
It is ordered that appellee recover from appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate be sent to said court to carry this judgment
into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule
27 of the Rules of Appellate Procedure.
MICHAEL JOHN RYAN, JUDGE
KATHLEEN ANN KEOUGH, P.J., and
EMANUELLA D. GROVES, J., CONCUR