Milton R. Moores v. Patricia F. Moores

Decision Date13 October 1988
Docket Number10852,88-LW-3501
PartiesMilton R. MOORES, Plaintiff-Appellant, v. Patricia F. MOORES, Defendant-Appellee.
CourtOhio Court of Appeals

Thomas Liles, Dayton, for plaintiff-appellant.

Joseph P. Moore and Paul M. Courtney, Vandalia, for defendant-appellee.

OPINION

BROGAN Judge.

This appeal stems from a decision by the Montgomery County Court of Common Pleas, Division of Domestic Relations, finding Milton Moores, the husband, in contempt of court for failure to maintain certain custodial accounts pursuant to a 1978 Decree of Dissolution of Marriage from Patricia Moores, his wife. The wife filed a motion to show cause why the husband should not be held in contempt for his failure. A hearing on the issue was held before a referee. The husband did not appear as a result of being on active military duty. The referee found the husband in contempt and the husband filed timely objection to the referee's report and recommendations. The objections asserted three grounds: 1) the husband's active military service was not considered 2) notice was inadequate; and 3) certain unspecified factual and legal defenses to the motion were not presented due to the husband's absence at the hearing. The court below adopted the report over the objections.

The husband filed a timely notice of appeal and a Civ.R. 60(B) motion for relief from judgment on the same day. The motion for relief from judgment basically asserted the same objections raised previously by the husband in response to the referee's report and recommendations. The court below refused to decide the motion for a lack of jurisdiction arising out of the filing of the notice of appeal to this court. We remanded the cause back to the trial court for determination on the Civ.R. 60(B) motion, which determination can then be appealed when rendered, if a party so desired. We retained jurisdiction over the final order of contempt made by the trial court and we are presented with issues separate from those presented in the Civ.R. 60(B) motion. It is those issues which we address today.

Two assignments of error are raised on this appeal:

I.THE TRIAL COURT ABUSED ITS DISCRETION BY APPROVING THE REFEREE'S REPORT AND ADOPTING THE SAME AS THE JUDGMENT OF THE COURT IN THAT THE DECREE IS NOT SUFFICIENTLY DEFINITE.

II.THE TRIAL COURT ABUSED ITS DISCRETION BY APPROVING THE REFEREE'S REPORT AND ADOPTING THE SAME AS THE JUDGMENT OF THE COURT IN THAT THE COURT LACKED JURISDICTION OVER THE SUBJECT MATTER OF CUSTODIAL ACCOUNT FOR A MINOR CHILD AFTER THE CHILD HAD REACHED HIS OR HER AGE OF MAJORITY AND/OR EMANCIPATION.

The first assignment of error faults the following language in the Separation Agreement adopted by the 1978 Decree of Dissolution of Marriage as not specifically identifying the minor children:

CUSTODIAL ACCOUNTS FOR THE BENEFIT OF MINORS:

The parties agree that the minors are the owners of the following stocks and bonds, and that said stocks and bonds or other funds shall be held in the names of the husband and wife as joint custodians for the benefit of the minors:

1.Oppenheimer Mutual Fund^Approximately 146.704 shares;

2.Oppenheimer Fund^Approximately 131.427 shares;

3.USAA Capital Growth Fund^Approximately 439.492 shares;

4.Series E. Bonds^Approximate value $725.00;

5.Travis Federal Credit Union^Approximate balance 1,200.00 (per child)

a.Kelly^Acct. # 61092

b.David^Acct. # 64889

c.The husband shall remain as sole custodian on the Travis Federal Credit Union Custodial Account.

We have no trouble identifying the minors. Identification is found in the preamble to the Separation Agreement and reads as follows:

Witnesseth:

THAT, WHEREAS MILTON and PATRICIA are husband and wife, having been married on the 26th day of August, 1966, in Nashville, Tennessee, and that two children have been born as issue of said marriage, to wit: KELLY ANN MOORES, Born July 6, 1969, and DAVID ROSS MOORES, Born September 2, 1972.

A more specific contention raised by the husband is that the custodial account language is indefinite in that it lacks any provision for the distribution or disposition of the accounts. The older of the minor children was emancipated before filing the motion for the husband to show cause why he should not be held in contempt. There is present uncertainty surrounding the distribution or disposition of the custodial accounts.

The wife asserts that because this issue was not raised in the trial court, we need not address it now, though she does address the issue in her briefs in the alternative if we decide otherwise. Appellate Rule 12(A) indicates that it is within an appellate court's discretion to consider errors not specifically set forth in the record yet separately argued in counsel's briefs. However, the fundamental rule is that an appellate court will not consider any error which could have been brought to the trial court's attention where it could have been avoided or corrected. Schade v. Carnegie Body Co. (1982), 70 Ohio St.2d 207 (citing to State v. Glaros (1960), 170 Ohio St. 471). The trial court was not given the opportunity to rule on the issue presented. We choose not to rule on it now for the first time. Therefore, we will not address the first assignment of error since it was not raised below. The first assignment of error is accordingly overruled.

The second assignment of error, while also not raised below, deals with subject matter jurisdiction. Subject matter jurisdiction is a non-waivable defense whether raised at trial or not. In re King (1980), 62 Ohio St.2d 87; Fox v. Eaton Corp. (1976), 48 Ohio St.2d 236; Civ.R. 12(H). While this, too, would have been best raised below, we must address this assignment of error.

The second assignment of error contends that the domestic relations court lacks the ability to find the husband in contempt for failure to follow that court's previous decree solely because one of two beneficiaries of the custodial account became emancipated before the court ruled on the decree. On July 6, 1987, one child turned eighteen years old and became emancipated by agreement of the parties. R.C. 3109.01 places the age of majority at eighteen or more, therefore that one child was not a minor when the contempt charge was presented below. Even so, the other child was still subject to the court's jurisdiction, so that court did possess jurisdiction to issue an order of contempt for the squandering of funds required to be held for that child.

While we note that four of the custodial accounts were set up for both minor children, the fifth custodial account is divisible by account numbers. The question before us is whether or not the court below possessed subject matter jurisdiction over the action enforcing the Separation Agreement naming the husband as a joint custodian over the portion of the fifth account attributable to the emancipated child when that Separation Agreement is incorporated into the Decree of Dissolution of Marriage.

In...

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