Majnaric v. Majnaric

• Decision Date: 09 April 1975
• Parties: , 75 O.O.2d 250 MAJNARIC, Appellee, v. MAJANRIC, Appellant. 1
• Court: Ohio Court of Appeals

Page 157

46 Ohio App.2d 157

347 N.E.2d 552, 75 O.O.2d 250

MAJNARIC, Appellee, v. MAJANRIC, Appellant. ¹

Court of Appeals of Ohio, Ninth District, Summit County.

April 9, 1975.

Syllabus by the Court

1. When an appeal is pending, the trial court is divested of jurisdiction except to take action in aid of the appeal. The trial court is without power to grant relief under Civ.R. 59 or to vacate, alter, or amend the judgment under Civ.R. 60(B) whether the 60(B) mortion is made prior to or after the appeal is taken, except with permission of the appellate court. However, the trial court may accept the filing of papers relating to a case on appeal.

2. Where a motion to vacate a judgment is pending in the trial court and an appeal is also pending from the same judgment, the appellant may move the appellate court, for good cause, to remand the matter to the trial court for a hearing on the motion to vacate. Sustaining such a motion will not divest the appellate court of jurisdiction to hear the pending appeal if it is not rendered moot by the hearing on the motion to vacate.

3. Where a divorce decree, voluntarily agreed to by both parties, gives legal custody of minor children to their father but leaves the immediate care and control with their mother, it is not error for the Domestic Relations Court to approve a change of schools requested by the mother, since the immediate welfare of the children is in her hands.

Paul K. Christoff, Akron, for appellee.

Parker & Parker, Akron, for appellant.

MAHONEY, Judge.

An absolute decree of divorce was granted to the parties by the court below on April 29, 1974. Defendant was granted technical legal custody of the children, but the plaintiff had actual physical custody under the separation agreement. A notice of appeal was filed May 24, 1974, by the plaintiff, in a separate appeal (C.A. Summit No. 7510). On July 5, 1974, plaintiff filed a motion to vacate the judgment in the trial court on August 20, 1974, the plaintiff filed a motion in the trial court to change the school of the minor children. That motion was partially heard, but was not decided on August 26, 1974. The plaintiff dismissed ner appeal on August 28, 1974. On November 6, 1974, the trial court ruled that the children should be enrolled in public school and not in the Seventh Day Adventist School. Defendant has appealed from that order, and from an order entered October 11, 1974, wherein the court ruled it had jurisdiction to hear the motion to vacate.

For purposes of this decision, the motion to vacate will be treated in conjunction with defendant's first assignment of error, and part A of the second assignment of error. The motion to change schools will be considered separately in conjunction with the balance of assignment of error number two.

I. Motion to Vacate.

The issue raised herein is apparently one of first impression in Ohio under the new rules of civil procedure. It involves questions of jurisdiction and procedure where a motion to vacate a judgment is filed in a trial court while an appeal is pending from the same judgment. Which court should proceed first?

The law in Ohio is clear that a notice of appeal only divests the trial court of jurisdiction over that part of the final order, judgment or decree which is sought to be reviewed. As to the remainder, the court retains all jurisdiction not inconsistent with that of the appellate court to review, affirm, modify or reverse the appealed order or judgment. In re Kurtzhalz, 141 Ohio St. 432, 48 N.E.2d 657; Doode v. Wiggins, 12 Ohio St. 341; Fawick Airflex Co. v. United Electrical Radio & Machine Workers of America, 90 Ohio App. 24, 103 N.E.2d 283 (i. e. contempt, appointment of receiver, injunction). However, a motion to vacate under Civ.R. 60(B), or a motion for new trial under Civ.R. 59, is inconsistent with a notice of appeal of the judgment sought to be vacated or retried.

Defendant seeks to extend the rule stated in City of Akron v. Guardian, Inc., Ninth District Court of Appeals No. 7501, unreported, and Vavrina v. Greczanick (1974), 40 Ohio App.2d 129, 318 N.E.2d 408. In both of those cases the trial court heard, or entertained, a motion to vacate and vacated judgment while an appeal was pending. The Court of Appeals, in both cases, held that once the notice of appeal was filed, the trial court was precluded from vacating its judgment during the appeal period.

Such a holding is consistent with the general rule in the federal courts as stated in 7 Moore, Federal Practices, Par. 60:30(2) (2d ed. 1970), (hereinafter cited as Moore).

'But the general rule is that when an appeal is taken from the district court the latter court is divested of jurisdiction, except to take action in aid of the appeal, until the case is remanded to it by the appellate court. Hence, during the pendency of an appeal it is generally held that the district court is without power to grant relief under Rule 59, or to vacate, alter or amend the judgment under Rule 60(B), whether the 60(B) motion is made prior to or after the appeal is taken, except with permission of the appellate court.'

However, the general rule is not applicable in this particular case. Although a motion to vacate was filed, the trial court did not rule on it during the appeal period of the first appeal. That fact clearly distinguishes this case from those in which the trial court hears, and sustains a motion to vacate. We do not agree with defendant's contention that the trial court cannot even accept the filing of a motion during the appeal period. The clerk has a duty to accept such papers for filing purposes.

II. Procedure on Motion to Vacate Pending Appeal.

Defendant suggests that the proper procedure is to dismiss the appeal, the then file a motion to vacate in the court below, or to move this court to vacate the judgment and remand the case to the trial court.

(1) The first alternative is unacceptable because the appellant is placed on the horns of a dilemma in which he may be left without a forum. If the appellant dismisses the appeal and thirty days have elapsed from the day of judgment, he loses his appeal as of right on that judgment. If the appellant is rejected by the trial court on his motion to vacate the original judgment, his appeal is limited to that motion, on a subsequent appeal. Thus, the appellant could be precluded from appealing the judgment if this procedure is adopted.

(2) Defendant's second suggested procedure has some support in the federal courts. See, Baruch v. Beech Aircraft Corp. (C.A. 10, 1949), 172 F.2d 445, cert. den. (1949), 338 U.S. 900, 70 S.Ct. 251, 94 L.Ed. 554, and Zig Zag Spring Co. v. Comfort Spring Corp. (C.A. 3, 1953), 200 F.2d 901. A problem inherent in this procedure is that the Court of Appeals, to some extent, becomes a trier of the facts, and usurps the trial court's function. An additional problem is that the court of appeals is not as familiar with the case as the trial court and, in order to determine the motion to vacate, the appeals court will, of necessity, duplicate what has transpired in the trial court. Both of these reasons mulitate against adopting the second alternative.

(3) The majority view in the federal courts on the proper procedure is set out in 7 Moore, Federal Practice, Par. 60:30 (2d ed. 1970), at pages 422-424. According to that authority, the motion to vacate should be filed in the trial court, and if the court indicates that it will consider the motion, the appellant should then move the appellate court to remand the case to the trial court.

Professor Moore suggests that:

'If the appellate court remands the case to the trial court for consideration of the 60(B) motion, provision should be made in the remand order to the effect that if the trial court denies the motion for relief, the appeal may then be reinstituted in the appellate court without any necessity to perfect a new appeal. * * *' Id.

This precaution is necessary for the same reasons which made the first alternative discussed above unacceptable. Perhaps the most important thing Professor Moore emphasizes is '* * * that a litigant, who in good faith initiates a timely procedure for relief, should not be penaltized for choice of the 'wrong procedure." 7 Moore, supra at 424.

We, therefore, hold in accordance with the majority view in the federal courts that where a motion to vacate a judgment is pending in the trial court and an appeal is also pending on the same judgment, that the appellant may move the appellate court, for good cause, to remand the matter to the trial court for a hearing on the motion to vacate without divesting the appellate...