Klayman v. Luck, 2008 Ohio 4572 (Ohio App. 9/5/2008), 91897.
Decision Date | 05 September 2008 |
Docket Number | No. 91897.,91897. |
Citation | 2008 Ohio 4572 |
Parties | Larry Elliot Klayman, Relator, v. Stephanie Ann Luck, Respondent. |
Court | Ohio Court of Appeals |
Larry Klayman, pro se, 3415 SW 24th Street, Miami, Florida 33145, for Relator.
Suzanne M. Jambe, Baker & Hostetler, LLP, 1900 East Ninth Street, 3200 National City Center, Cleveland, Ohio 44114-3485, Attorney for Respondent.
Jennifer L. Malensek, 815 Superior Avenue E., Suite 1915, Cleveland, Ohio 44114, Attorney for Guardian Ad Litem.
JOURNAL ENTRY AND OPINION
{¶ 1} Relator, Larry Elliot Klayman ("Klayman"), and respondent, Stephanie Ann Luck ("Luck"), entered into a Marital Settlement Agreement which was incorporated into a decree of divorce issued in Klayman v. Klayman, Fairfax Virginia Circuit Court Chancery Case No. 184596, in 2003. Klayman avers that he has filed this action "to enforce the marital agreement and divorce decree by and between himself and his former spouse, Stephanie Luck (n/k/a DeLuca) with regard to visitation." Complaint, Preamble. He requests that this court issue a writ of mandamus "to require enforcement of the visitation provisions of the marital agreement and divorce decree ***." Complaint, Ad Damnum Clause.
{¶ 2} Klayman's complaint does not state a claim in mandamus. State ex rel. Grahek v. McCafferty, Cuyahoga App. No. 86614, 2006-Ohio-4741, at ¶5. In this action, Klayman requests that this court compel enforcement of the terms of his divorce from Luck regarding visitation. Clearly, his request for relief is an attempt to enforce a private right against a private person. As a consequence, we must dismiss this action.
{¶ 3} Additionally, "***we find that [relator's] complaint for a writ of mandamus is defective since it is improperly captioned. A complaint for a writ of mandamus must be brought in the name of the state, on relation of the person applying. The failure of relator to properly caption his complaint for a writ of mandamus warrants dismissal. R.C. 2731.04;
Blankenship v. Blackwell, 103 Ohio St.3d 567, 2004 Ohio 5596, 817 N.E.2d 382; Gannon v. Gallagher (1945) 145 Ohio St. 170, 60 N.E.2d 666; Dunning v. Cleary (Jan. 11, 2001), Cuyahoga App. No. 78763." State v. McMonagle, Cuyahoga App. No. 91477, 2008-Ohio-3798, at ¶2.
{¶ 4} Similarly, relator has failed to comply with Loc.App.R. 45(B)(1)(a) which requires that complaints in original actions be supported by an affidavit from the plaintiff or relator specifying the details of the claim. State ex rel. Hightower v. Russo, Cuyahoga App. No. 82321, 2003-Ohio-3679. In the affidavit in support of the complaint, Klayman merely avers "that the facts set forth in his Emergency Petition of Writ [o]f Mandamus are true and correct." Klayman's statement, however, does not meet the standard of Loc.App.R. 45(B)(1)(a). In State ex rel. Bailey v. Mannen, Cuyahoga App. No. 86757, 2005-Ohio-6236, the relator averred that the contents of the complaint in mandamus were Bailey, supra, at ¶3. Likewise, we must conclude that Klayman's affidavit does not conform to the requirements of Loc.App.R. 45(B)(1)(a).
{¶ 5} Relator ...
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