Buckles v. Buckles

• Decision Date: 29 March 1988
• Docket Number: No. 87AP-824,87AP-824
• Citation: 546 N.E.2d 965,46 Ohio App.3d 118
• Parties: BUCKLES, Appellant, v. BUCKLES, Appellee.
• Court: Ohio Court of Appeals

Page 118

46 Ohio App.3d 118

546 N.E.2d 965

BUCKLES, Appellant, v. BUCKLES, Appellee.

No. 87AP-824.

Court of Appeals of Ohio, Tenth District, Franklin County.

March 29, 1988.

Syllabus by the Court

1. During the pendency of an appeal a trial court continues to have jurisdiction to exercise so long as the exercise of that jurisdiction does not interfere with the power of the appellate court to review the judgment under appeal and affirm, modify, or reverse that judgment.

2. Neither Civ.R. 75(G) nor App.R. 7(A) pertains to or affects the jurisdiction of the trial court or the court of appeals. Rather, both pertain to procedural methods by which a party may seek relief.

Brownfield Law Offices, C. William Brownfield and William H. Arnold, Columbus, for appellant.

Jeffrey A. Grossman Co., L.P.A., Jeffrey A. Grossman, Schottenstein, Zox & Dunn and Harvey Dunn, Columbus, for appellee.

WHITESIDE, Presiding Judge.

Plaintiff, Gretchen S. Buckles, appeals from an order of the Franklin County Court of Common Pleas, Division of Domestic Relations and raises three assignments of error as follows:

"1. The Common Pleas Court, Division of Domestic Relations, erred in granting to the defendant-appellee an order, pending appeal, staying the payment of alimony to plaintiff-appellant which was due within one year after entry of the court's judgment entry-decree of divorce, such a stay order being proscribed under Rule 75(G), Ohio Rules of Civil Procedure.

"2. The Common Pleas Court, Division of Domestic Relations, erred in modifying the terms of its judgment entry-decree of divorce pertinent to alimony and support of the plaintiff-appellant during the pendency of her appeal of said decree, whether or not such modification was termed a 'stay' or otherwise, the trial court having lacked jurisdiction to grant such a modification pursuant to Civil Rule 75(G).

"3. The Common Pleas Court, Division of Domestic Relations, abused its discretion in denying plaintiff-appellant financial discovery of the defendant-appellee pertinent to his post-trial motion to stay enforcement of alimony provisions of the judgment entry-decree of divorce entered by the court."

Plaintiff and defendant Andre M. Buckles were granted a divorce on July 24, 1986, the decree including, among other things, an award of a lump-sum alimony payment to be made by defendant to plaintiff on or before July 24, 1987. The decree further provided that interest at the statutory legal rate of ten percent per annum was required to be paid monthly by defendant to plaintiff until such time as the entire principal sum was paid in full. Since the entering of the decree, defendant has paid plaintiff $1,500 per month, that amount representing the interest on the entire amount. Plaintiff was not awarded sustenance alimony nor was she awarded attorney fees. In the direct appeal from the judgment in this case. Buckles v. Buckles (1988), 46 Ohio App.3d 102, 546 N.E.2d 950, plaintiff appealed, among other issues, the sufficiency of the lump-sum award.

On April 30, 1987, defendant filed a motion in the trial court seeking a partial stay of the decree, specifically requesting an order that defendant not be required to pay plaintiff the entire lump-sum alimony award at issue until the parties' appeal from the decree was determined. The trial court, after a hearing on the motion, issued a stay order to be secured by a $190,000 supersedeas bond to be posted by defendant. It is from this order that plaintiff appeals in this case, although, by a subsequent agreed entry, a mortgage on certain real estate was substituted for the monetary supersedeas bond ordered. Defendant was required to continue to pay plaintiff the $1,500 per month interest on the lump-sum alimony award.

In her first two assignments of error, plaintiff contends that the trial court lacked jurisdiction to grant a stay order predicated upon an argument that such a stay is specifically proscribed by Civ.R. 75(G), which provides, in pertinent part, that:

"The trial court may, when a motion to modify a custody, support or alimony order is filed prior to the filing of the notice of appeal, modify the order for the period of the pendency of the appeal upon such terms as to bond or otherwise as it considers proper for the security of the rights of the adverse party and in the best interests of the children involved. Rule 62(B) does not apply to custody, alimony or support orders. When an appeal is taken by any party, the court of appeals may grant like orders concerning custody, support or alimony during the pendency of the appeal."

Relying upon Rahm v. Rahm (1974), 39 Ohio App.2d 74, 68 O.O.2d 225, 315 N.E.2d 495, plaintiff contends that the trial court lacks jurisdiction to modify an alimony or support award after the filing of the notice of appeal. The Rahm decision, even though its conclusions may be questionable, is not applicable herein. Rahm involved the question of granting temporary alimony during the pendency of an appeal in a case where no sustenance alimony had been awarded. Rahm would be applicable herein only if plaintiff were seeking an award of temporary alimony during the pendency of an appeal. The Rahm court did suggest that a stay order would reinstate a temporary alimony award ordered during the pendency of the litigation in the trial court. We need not determine whether the decision in Rahm is correct since it is not pertinent to the issue before us. However, we do note that some of the language in Rahm is suggestive of other decisions of that district court of appeals which conflict with many unreported decisions of this court pertaining to the continuing jurisdiction of the trial court during the pendency of an appeal to a court of appeals. In those decisions we hold, in accordance with Supreme Court decisions, that during the pendency of an appeal a trial court continues to have jurisdiction to exercise so long as the exercise of that jurisdiction does not interfere with the power of this appellate court to review the judgment under appeal and affirm, modify, or reverse that judgment. The fact that an action of the trial court might make the appeal moot, such as ordering execution, does not interfere with this court's jurisdiction to review. See In re Kurtzhalz (1943), 141 Ohio St. 432, 25 O.O. 574, 48 N.E.2d 657.

At the outset it must be noted that, contrary to the suggestion in Rahm and the argument of plaintiff, the Civil Rules neither determine nor affect the jurisdiction of either the trial court or this court, Civ.R. 82 expressly providing that "[t]hese rules shall not be construed to extend or limit the jurisdiction of the courts of this state."

More importantly, neither the Civil Rules nor any other procedural rule promulgated by the Supreme Court can determine the jurisdiction of a court even if they purported to do so, since the Constitution does not permit the procedural rules to determine jurisdiction. Section 5(B), Article IV, Ohio Constitution provides that "[t]he supreme court shall prescribe rules governing practice and procedure in all courts of the state, which rules shall not abridge, enlarge, or modify any substantive right. * * * All laws in conflict with such rules shall be of no further force or effect after such rules have taken effect."

The jurisdiction of a court is determined by the Ohio Constitution and statutes adopted by the Ohio Legislature. Section 4(B), Article IV, Ohio Constitution provides that "[t]he courts of common pleas and divisions thereof shall have such original jurisdiction over all justiciable matters and such powers of review of proceedings or administrative officers and agencies as may be provided by law." Section 3(B)(2), Article IV, Ohio Constitution provides that "[c]ourts of appeals shall have such jurisdiction as may be provided by law to review and affirm, modify, or reverse judgments or final orders of the courts of record inferior to the court of appeals within the district * * *." Section 2(B)(1)(f) does provide that courts of appeals shall have original jurisdiction "[i]n any cause on review as may be necessary to its complete determination."

R.C. 2305.01 confers upon courts of common pleas original jurisdiction in all civil cases where the sum or matter in controversy exceeds the exclusive jurisdiction of county courts. R.C. 3105.011 specifically provides that "[t]he court of common pleas including divisions of courts of domestic relations, has full equitable powers and jurisdiction appropriate to the determination of all domestic relations matters. * * * " R.C. 2301.03(A) provides that, with respect to the Franklin County Court of Common Pleas, certain judges "shall be elected and designated as judges of the court of common pleas, division of domestic relations," and that "divorce, dissolution, alimony, and annulment cases shall be assigned to them."

Accordingly, it is clear that Civ.R. 75(G) neither purports to, nor does, affect the jurisdiction of the trial court but, instead, only governs procedure in that court. Likewise, Civ.R. 75(G) as to procedure must be read so as to be consistent with the Appellate Rules. As App.R. 7(A) specifically provides:

"Application for...