Daryle E. Nielsen-Mayer v. Jorgen Nielsen-Mayer

• Decision Date: 15 March 2001
• Docket Number: 77112,01-LW-0698
• Parties: DARYLE E. NIELSEN-MAYER, Plaintiff-Appellant v. JORGEN NIELSEN-MAYER, Defendant-Appellee
• Court: Ohio Court of Appeals

DARYLE E. NIELSEN-MAYER, Plaintiff-Appellant v. JORGEN NIELSEN-MAYER, Defendant-Appellee

No. 77112

01-LW-0698 (8th)

Court of Appeals of Ohio, Eighth District Cuyahoga

March 15, 2001

Civil appeal from Domestic Relations Division Court of Common Pleas Case No. D-221632

For Plaintiff-Appellant: ALEXANDER JURCZENKO, ESQ., 1750 Standard Building, 1370 Ontario Street, Cleveland, Ohio 44113

For Defendant-Appellee: KEITH E. BELKIN, ESQ., 1111 Tower East 20600 Chagrin Boulevard, Shaker Hts., Ohio 44122-5334

OPINION

COLLEEN CONWAY COONEY, J.:

Appellant appeals an order of the Cuyahoga County Court of Common Pleas, Division of Domestic Relations, which granted appellee's motion to modify spousal support, motion to show cause and overruled appellant's motion to show cause. Appellant raises a single assignment of error, which contends that the order was entered in error because it was filed after the appellee's death. Counsel for appellee has raised the question of whether the appeal should be dismissed for lack of jurisdiction because the notice of appeal was filed naming a deceased party as appellee. As explained below, the appeal of this matter is dismissed for lack of jurisdiction. Appellant, Daryle E. Nielsen-Mayer, and appellee, Jorgen Nielsen-Mayer, were divorced by judgment entry dated December 27, 1994. A separation agreement was incorporated into the judgment entry. Pursuant to the terms of the separation agreement, appellee was to pay to appellant $1,200 a month in spousal support. In addition, appellee transferred to appellant his interest in the marital property, for which appellant was to pay $32,000, in two installments, to appellee. Subsequent to the divorce appellee became disabled, and filed a motion to modify spousal support. Additionally, appellee filed a motion to show cause alleging appellant's failure to pay the required installments to appellee for the marital property. Appellee filed a cross motion to show cause for appellant's alleged failure to pay spousal support. On January 22, 1999, a hearing on the above motions was held before a magistrate. Subsequent to the hearing, appellee died on July 4, 1999. On August 9, 1999, appellant filed a suggestion of death with the court. On August 13, 1999, a magistrate's decision -3- was filed which modified appellee's spousal support payment to $700 a month granted appellee's motion to show cause, and overruled appellant's cross motion to show cause. No objection to the magistrate's decision was filed. On September 16, 1999, the trial court adopted the magistrate's decision. Appellant appeals the domestic relations court's decision, asserting that the trial court did not have jurisdiction to render a decision on September 16, 1999, because of appellee's death on July 4, 1999. In his motion to dismiss appellant's appeal, appellee argues that the appeal is moot because appellant failed to substitute parties in the action and failed to make a claim against appellee's estate. It is well established that both plaintiff and defendant in a lawsuit must be legal entities with the capacity to be sued. Patterson v. V & M Auto Body (1992), 63 Ohio St.3d 573, 574; 589 N.E.2d 1306, 1308, Cf. Civ.R. 17(B); Barnhart v. Schultz (1978), 53 Ohio St.2d 59, 61, 7 O.O.3d 142, 143, 372 N.E.2d 589, 591, overruled on other grounds, Baker v. McKnight (1983), 4 Ohio St.3d 125, 4 OBR 371, 447 N.E.2d 104. Because a party must actually or legally exist 'one deceased cannot be a party to an action.'" Baker, 4 Ohio St.3d at 127; 447 N.E.2d at 106. As such, appellee ceased to be a party to the action in the trial court at the time of his death. Generally, only a party to the action in the trial court has a right to appeal a judgment entered in that action. Petitioners v. Bd. of Township Trustees (1965), 4 Ohio App.2d 171, 176, 211 N.E.2d 880, 884; Amherst v. Wragg (1941), 72 Ohio App. 303, 305, affirmed on other grounds (1942), 139 Ohio St. 371. See also, State, ex rel. Dayton, v. Kerns (1977), 49 Ohio St.2d 295, 298; Bd. of Edn. v. Bd. of Revision (1973), 34 Ohio St.2d 231, 234; State, ex rel. Lipson, v. Hunter (1965), 2 Ohio St.2d 225. Although appellant is a party to the underlying suit, and thus has a right to appeal, appellee ceased to be a party to the suit upon his death. Therefore, appellee is without capacity to be a party on appeal. Schectman v. Manitsas, (Mar. 26, 1990) Butler App. No. CA89-04-056, unreported, 1990 Ohio App. LEXIS 1060, at *3.

App.R. 29(A) does not apply to the instant action. App. R. 29 (A) provides:

"(A) Death of a party. If a party dies after a notice of appeal is filed or while a proceeding is otherwise pending in the court of appeals, the personal representative of the deceased party may be substituted as a party on motion filed by the representative, or by any party, with the clerk of court of appeals.

The motion of a party shall be served upon the representative in accordance with the provisions of Rule 13. If the deceased party has no representative, any party may suggest the death on the record and proceedings shall then be had as the court of appeals may direct. If a party against whom an appeal may be taken dies after entry of a judgment or order in the trial court but before a notice of appeal is filed, an appellant may proceed as if death had not occurred.

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