Mona B. Dorsky v. William H. Dorsky, 81-LW-0709
| Decision Date | 10 December 1981 |
| Docket Number | 43587,81-LW-0709 |
| Parties | MONA B. DORSKY APPELLANT, v. WILLIAM H. DORSKY APPELLEE. |
| Court | Ohio Court of Appeals |
For plaintiff-appellant: Stephen J. Knerly.
For defendant-appellant: Alan L. Melamed.
JOURNAL ENTRY AND OPINION
This cause came on to be heard upon the pleadings and the transcript of the evidence and the record in the Common Pleas Court, and was argued by counsel for the parties; and upon consideration, the court finds no error prejudicial to the appellant and therefore the judgment of the Common Pleas Court is affirmed in part and reversed in part. Each assignment of error was reviewed and upon review the following disposition made:
In this appeal from the Court of Common Pleas, Mona Dorsky plaintiff-appellant, appeals from the judgment entered in favor of William Dorsky, defendant-appellee, on a counterclaim seeking a declaration of rights in certain items of real and personal property.
In a prior judgment entered on March 8, 1978, in Case No. D-86713 plaintiff was granted a divorce from defendant. Incorporated in that judgment was an agreement denominated "Separation and Property Settlement Agreement" (hereinafter "Agreement").
On February 5, 1979, plaintiff filed a complaint seeking foreclosure on a property for alleged failure to pay upon a promissory note given to plaintiff as part of the divorce settlement. Defendant responded with an answer and a counterclaim seeking a declaration that the Agreement imposed upon the plaintiff the obligation to convey to defendant all real property owned by the parties prior to the divorce and any insurance policies on the life of defendant owned by the plaintiff.
This case, designated Common Pleas Court Case No. 79-994543, was initially assigned to Judge Harry Jaffe. On July 23, 1980 Judge Jaffe ordered as follows:
At a pretrial hearing on October 2, 1980, a discussion occurred between counsel for the parties and Judge Sweeney as to whether the counterclaim had been properly transferred (Tr. 4-22). Counsel for plaintiff, Mr. Knerly, at no point specifically objected to the court's taking jurisdiction over the counterclaim. Nevertheless, Judge Sweeney stated that he was going to proceed on the assumption that Mr. Knerly was in fact objecting (Tr. 16).
A fair reading of Mr. Knerly's remarks indicates that the thrust of his complaint was that he felt Judge Jaffe lacked authority to unilaterally transfer the counterclaim. At the conclusion of this hearing, Judge Sweeney informed counsel that he would get back to them on this matter.
Upon commencement of trial on October 20, 1980, Judge Sweeney informed counsel that Judge Spellacy®1¯ had assigned him to hear the counterclaim. Upon being asked whether he had anything to say relative to this, Mr. Knerly responded: "I think that says it, Judge." (Tr. 23). No other objection was raised to the court's jurisdiction.
Footnote 1 Judge Leo M. Spellacy was the Presiding Judge of the Court of Common Pleas of Cuyahoga County.
At trial, Kenneth Weinberg, an attorney who represented defendant in the divorce case and a member of the same law firm as Alan L. Melamed, counsel for defendant, was permitted to testify, over objection, as to the negotiations which preceded the signing of the Agreement.
After trial, judgment was entered on the counterclaim by Judge Sweeney on February 11, 1981, ordering plaintiff to transfer three insurance policies and a quit-claim deed of her interest in a Florida condominium to defendant. Findings of fact and conclusions of law were filed.
On May 14, 1981, a notice of dismissal of the initial complaint was filed by plaintiff pursuant to Civ. R. 41(A)(1)(a).
In this timely filed appeal from the entry of judgment on the counterclaim, plaintiff assigns five errors.
This assignment of error is not well taken.
In Berger v. Berger (Cuy. Cty. Ct. App., Oct. 22, 1981), Case No. 43365, Ohio App. 2d , this court held that an administrative judge may, after initial assignment by lot, reassign a case to another judge of a division of the court over which he presides by a journalized order stating a justifiable reason for the reassignment. Absence of such an order renders voidable, on timely objection, the rulings of the judge to whom the case has been transferred.
We are concerned here with an attempt to transfer a case®2¯ between divisions of the Court of Common Pleas rather than within a single division. Nevertheless, the same principles that led this court to hold as it did in Berger may be applied here.
Footnote 2 The fact that a counterclaim only was to be adjudicated by Judge Sweeney and not the entire case is not material to the disposition of this assignment of error.
A judge is without authority to unilaterally transfer a matter assigned to him to another judge. C.P. Sup.R. 4. Moreover, the authority of an administrative judge extends no further than his own division. C.P. Sup.R. 3. Inter-division problems are within the province of the presiding judge.
The authority of the presiding judge or chief justice of the court of common pleas is spelled out in R.C. 2301.04 which states that the "chief justice of the court of common pleas shall have the general superintendence of the business of the court, and shall classify and distribute it among the judges." In Superintendence Rule 2 it is further specified that the presiding judge "shall assign judges from one division of the court to serve another division as the business of the court may require."
We believe these provisions give authority to a presiding judge to assign judges to sit in other divisions under much the same circumstances as may justify an administrative judge in reassigning cases, e.g., exigencies created by temporary absence or the protracted illness or absence of a judge. Berger v. Berger, supra. In such cases, a journalized entry by the presiding judge stating the reason for the reassignment is likewise necessary.
In the case under consideration, we find in the record no journalized entry by the presiding judge authorizing reassignment. Therefore, even assuming that the presiding judge has authority to approve a transfer because of a belief that a division of his court lacks jurisdiction to hear the cause, an issue upon which we need not and do not offer an opinion, the absence of a journal entry in this case renders the attempted transfer invalid.
The case having been improperly transferred to Judge Sweeney, he was without actual authority to adjudiciate it. However, he did have colorable indicia of judicial authority and was otherwise capable of being clothed with jurisdiction over the subject matter. His rulings were therefore voidable upon objection timely raised. See Tari v. State (1927), 117 Ohio St. 481.
We interpret Mr. Knerly's remarks at the pretrial hearing to have constituted an objection to Judge Jaffe's transfer of the counterclaim. However, upon being informed that Judge Spellacy had approved the transfer, it appears from the record that Mr. Knerly was satisfied the court at this point had properly assumed jurisdiction over the counterclaim. There was no objection to the lack of a journalized entry which, for whatever reason, was not subsequently filed. Mr. Knerly therefore waived his prior objection.
Having failed to adequately preserve this error in the court below, plaintiff may not now assert it on appeal.
This assignment of error is without merit.
Plaintiff here argues that...
To continue reading
Request your trial