In re the Adoption of Ronald Lee Addington Case

• Decision Date: 31 July 1995
• Docket Number: 94 CA 2271,95-LW-0449
• Parties: IN THE MATTER OF THE ADOPTION OF RONALD LEE ADDINGTON CASE
• Court: Ohio Court of Appeals

IN THE MATTER OF THE ADOPTION OF RONALD LEE ADDINGTON

No. 94 CA 2271.

95-LW-0449 (4th)

Court of Appeals of Ohio, Fourth District Scioto

July 31, 1995

COUNSEL FOR APPELLANTS: R. Alan Lemons, Miller, Searl & Fitch, 300 Bank One Plaza, P.O. Box 991, Portsmouth, Ohio 45662.

COUNSEL FOR APPELLEES: Roger L. Clark & Margaret Apel-Miller, 622 Sixth Street, Portsmouth, Ohio 45662.

DECISION

ABELE P.J.

This is an appeal from a Scioto County Common Pleas Court, Probate Division, judgment finding that the twenty-four appellants are not proper parties to this action and have no standing to bring a motion for relief from a June 30, 1992 judgment setting aside Appellee Ronald Lee Addington's 1950 adotion by his step-father.

Appellee's natural father, Charles L. Arthurs, died intestate in the State of Washington on May 22, 1990. The twenty-four appellants in this action claim that they are nieces and nephews of Charles L. Arthurs. The twenty-four appellants further claim that they will not inherit from Charles L. Arthurs's estate unless the trial court grants them relief from the June 30, 1992 judgment setting aside appellee's 1950 adoption.

Appellants assign the following errors:

FIRST ASSIGNMENT OF ERROR:

"THE TRIAL COURT ERRED IN HOLDING THAT APPELLANTS WERE NOT PROPER PARTIES AND LACKED STANDING TO REQUEST RELIEF FROM THE JUDGMENT TERMINATING THE ADOPTION OF RONALD LEE ADDINGTON. [J.E. DENYING RELIEF FROM JUDGMENT.]"

SECOND ASSIGNMENT OF ERROR:

"THE TRIAL COURT ERRED IN HOLDING THAT APPELLANTS WERE NOT ENTITLED TO RELIEF AS STATED IN RULE 60(B)(1) THROUGH (5). [J.E. DENYING RELIEF FROM JUDGMENT)."

THIRD ASSIGNMENT OF ERROR:

"THE TRIAL COURT ERRED IN DENYING APPELLANTS REQUEST FOR RELIEF FROM JUDGMENT. [J.E. DENYING RELIEF FROM JUDGMENT]" (sic)

FOURTH ASSIGNMENT OF ERROR:

THE TRIAL COURT ERRED IN FAILING TO HOLD THAT THE ADOPTION WAS IMPROPERLY VACATED BASED UPON AN INCORRECT STATUTE THEREBY, INFORMING THE WASHINGTON COURT THAT THE VACATION ORDER DOES NOT DESERVE FULL FAITH AND CREDIT. [J.E. DENYING RELIEF FROM JUDGMENT]"

Appellants first appeared in this action on February 26, 1993, when they filed their motion for relief from the trial court's June 30, 1992 judgment vacating appellee's 1950 adoption. In a memorandum accompanying the motion for relief from judgment, appellants argued that: (1) appellee made a critical mistake in his motion to vacate the adoption by relying upon an adoption consent statute that had been repealed prior to the adoption; (2) the trial court consequently erred by granting the motion to motion for relief from judgment as one also requesting the court to grant them the right of intervention under Civ.R. 24(A)(2) or in the alternative to recognize this memorandum also as a motion to intervene." We note Civ.R. 24(A)(2) provides in pertinent part as follows:

"(A) Intervention of right. Upon timely application anyone shall be permitted to intervene in an action: * * * (2) when the applicant claims an interest relating to the property or transaction which is the subject of the action and he is so situated that the disposition of the action may as a practical matter impair or impede his ability to protect that interest, unless the applicant's interest is adequately represented by existing parties."

On September 24, 1993, appellee filed another memorandum in opposition to appellants' motion for relief from judgment. In the memorandum, appellee argued, inter alia, that appellants "have, in effect, attempted to intervene without following the procedure mandated by Civil Rule 24(C)." Appellee noted that the rule requires those who wish to intervene to serve amotion upon the parties in accordance with Civ.R. 5. Civ.R. 24(C) provides in pertinent part as follows:

"(C) Procedure. A person desiring to intervene shall serve a motion to intervene upon the parties as provided in Rule 5. The motion shall state the grounds therefor and shall be accompanied by a pleading setting forth the claim or defense for which intervention is sought. * * *"

(Emphasis added.)

On December 22, 1993, appellants filed another memorandum in support of their motion for relief from judgment. In the memorandum, appellants again argued that they were entitled to notice of appellee's motion to vacate the adoption. Appellants, however, did not respond to appellee's argument that appellants failed to file a motion to intervene in accordance with Civ.R. 24(C) and serve that motion in accordance with Civ.R. 5.

On July 22, 1994, the trial court issued judgment as follows:

"This matter came on to be heard upon the motion for relief from judgment filed by the movants herein, and upon consideration, the Court hereby finds as follows:

1) The movants herein are not proper parties to this action and have no standing or justiciably [sic] interest in this matter.

2) Further, pursuant to Rule 60-B the movants have not shown that they have a meritorious defense or claim to be presented, or that they are entitled to relief as stated in Rule 60-B 1 through 5.

WHEREFORE, the Court finds the motion for relief from judgment to be not well taken and the same is hereby ORDERED overruled and dismissed."

Appellants filed a notice of appeal from the July 22, 1994 judgment.

Initially, we note that appellants did not file a lotion to intervene in accordance with Civ.R. 24(C). In State ex rel. Jones v. Wilson (1976), 48 Ohio St.2d 349, 358 N.E.2d 605, and State ex rel. Lipson v. Hunter (1965), 2 Ohio St.2d 205, 208 N.E.2d 133, the court held that a person who is not a party to an action and has not attempted to intervene as a party is without capacity to appeal. In Januzzi v. Hickman (1991), 61 Ohio St.3d 40, 572 N.E.2d 642, the court followed Jones and Lipson and held that the non-party garnishee's "failure even to seek intervention is fatal to its argument that it has standing to appeal from the order to pay into court." See, also, In re 730 Chickens (1991), 75 Ohio App.3d 476, 599 N.E.2d 828, where we cited Lipson and Whiteside, Ohio Appellate Practice (1987) 14, Section 3.13.

In In the Estate of Landrum (Jan. 31, 1991), Ross App. No. 1645, unreported, we noted that merely appearing in an action and making a statement does not make one a party who can appeal. In In re McAuley (1979), 63 Ohio App.2d 5, 408 N.E.2d 697, the Eighth District similarly noted that merely being allowed to appear in an action and to submit a brief in the trial court does not make the real party in interest a party in the proceedings. To become a party in the proceedings, the real party in interest must file a Civ.R. 24 motion to intervene.

Although on July 30, 1993 appellants asked the trial court to consider either his February 26, 1993 motion for relief from judgment or his July 30, 1993 memorandum as a motion to intervene, the fact remains that appellants did not file a motion to intervene and did not serve that motion and an accompanying pleading in accordance with Civ.R. 24(C) and Civ.R. 5. Even after appellee brought this procedural lapse to appellants' attention, appellants did not file and serve a proper motion to intervene.

Under the circumstances, we find appellants have no capacity to appeal. Accordingly, we must dismiss this appeal.

Assuming, arguendo, appellants had filed a proper Civ.R. 24(A) motion to intervene and had served that motion and an accompanying pleading on appellee, we would find no abuse of discretion with a judgment denying the motion. We note that when reviewing a trial court's decision on a Civ.R. 24(A) motion to intervene, we must determine whether the trial court abused its discretion in determining: (1) the timeliness of the motion; (2) whether the applicant claims an interest relating to the property or transaction which is the subject of the action; (3) whether the applicant is so situated that the disposition of the action may as a practical matter impair or impede the applicant's ability to protect that interest; and (4) whether the applicant's interest is adequately represented by existing parties. See Fouche v. Denihan (1990), 66 Ohio App.3d 120; 583 N.E.2d 457; Blackburn v. Hamoudi (1986), 29 Ohio App.3d 350; 505 N.E.2d 1010; Southern Ohio Coal Co. v. Kidney (Jan. 19, 1995), Meigs App. No. 93 CA 522, unreported; State v. Duren (Sept. 26, 1994), Warren App. No. CA94-01-002, unreported. The failure of a party to satisfy each of the requirements of Civ.R. 24(A)(2) will result in denial of the motion to intervene. Fairview Gen. Hosp. v. Fletcher (1990), 69 Ohio App.3d 827, 591 N.E.2d 1312, Duren, supra. We note that an abuse of discretion connotes more than an error of law or judgment; it implies that the court's attitude is unreasonable, arbitrary or unconscionable. In re Jane Doe 1 (1991), 57 Ohio St.3d 135, 566 N.E.2d 1181; and Blakemore v. Blakemore (1983), 5 Ohio St.3d 217, 450 N.E.2d 1140. When applying the abuse of discretion...