State ex rel. Downs v. Panioto

• Decision Date: 11 January 2006
• Docket Number: No. 2005-0447.,2005-0447.
• Citation: 839 N.E.2d 911,107 Ohio St.3d 347,2006 Ohio 8
• Parties: The STATE ex rel. DOWNS, Appellee, v. PANIOTO, Judge, et al., Appellants.
• Court: Ohio Supreme Court

839 N.E.2d 911

107 Ohio St.3d 347

2006-Ohio-8

The STATE ex rel. DOWNS, Appellee, v. PANIOTO, Judge, et al., Appellants.

No. 2005-0447.

Supreme Court of Ohio.

Submitted September 20, 2005.

Decided January 11, 2006.

COPYRIGHT MATERIAL OMITTED

The Law Firm of Curt C. Hartman and Curt C. Hartman, for appellees.

Joseph T. Deters, Hamilton County Prosecuting Attorney, and Christian J. Schaefer and Mark C. Vollman, Assistant Prosecuting Attorneys, for appellants.

PER CURIAM.

{¶ 1} This is an appeal from a judgment granting a writ of prohibition preventing a domestic relations court from proceeding in a divorce case.

{¶ 2} In June 1959, appellee, David Downs, and Linda Downs married in Lawrenceburg, Indiana. David and Linda have one child born as issue of their marriage, Stephanie, who is emancipated. According to findings of fact in the divorce action, in 1988, Linda contracted an infection after a routine hysterectomy. Linda became disabled and suffered from chronic pain and severe depression. She attempted suicide on several occasions.

{¶ 3} In 1991, Linda attempted suicide by carbon monoxide poisoning. Although she survived, she sustained severe brain damage and became physically and mentally incapacitated. She began living in a nursing home.

{¶ 4} On November 19, 1997, Stephanie applied to the Hamilton County Probate Court for the appointment of an emergency guardian for her mother, Linda, on the basis that Linda was incompetent. On that same day, the probate court granted Stephanie's application and appointed her Linda's emergency guardian "with the authority to make decisions for the best interests of the ward regarding medical care and treatment." The probate court noted that David had "shown lack of interest in care of" his wife and in the need for appointment of an emergency guardian. On November 21, 1997, the probate court continued Stephanie's appointment as emergency guardian for Linda until December 22, 1997.

{¶ 5} On January 7, 1998, the probate-court magistrate determined that Linda was incompetent by reason of mental impairment and was incapable of taking proper care of herself. The magistrate further concluded that a guardianship of Linda's person was necessary and that Stephanie was a proper person to be appointed guardian. The probate court did not, however, appoint a guardian for Linda at that time.

{¶ 6} On March 10, 1998, David filed a complaint for divorce in appellant Hamilton County Court of Common Pleas, Domestic Relations Division. David named Linda as the sole defendant and did not allege that she was incompetent. He requested a divorce and a permanent property division. Service of the divorce complaint on Linda was perfected on March 14.

{¶ 7} On April 17, 1998, Linda, by and through her attorney, filed an answer to David's divorce complaint and a counterclaim. Linda requested a divorce, spousal support, and a reasonable division of property. On April 22, David replied to Linda's counterclaim.

{¶ 8} On May 4, 1998, the probate court appointed Stephanie as guardian of Linda's person. On September 8, 1998, the probate court appointed Stephanie as guardian of Linda's estate.

{¶ 9} In January 2001, the domestic relations court made an equitable division of the marital property. The court noted in its decision that Linda's guardian, Stephanie, had testified in the case.

{¶ 10} In September 2003, David moved to dismiss his complaint for divorce and Linda's counterclaim for divorce because Linda "was found to be mentally incompetent on November 21, 1997," by the probate court. David's motion contained no argument in support. On September 25, 2003, appellant Judge Ronald A. Panioto of the domestic relations court denied David's motion.

{¶ 11} On July 19, 2004, David filed a notice withdrawing his divorce complaint and dismissing his action.

{¶ 12} In September 2004, Linda moved to amend her counterclaim to add a claim for legal separation, division of marital property, and permanent spousal support. She also moved to disqualify David's counsel based on ethical misconduct and conflict of interest. On September 24, 2004, Judge Panioto granted Linda's motion to disqualify David's attorney.

{¶ 13} On November 23, 2004, David filed a complaint in the Court of Appeals for Hamilton County. In his amended complaint, David requested a "Peremptory Writ of Prohibition, or, in the alternative, an Alternative Writ of Prohibition, directing Respondents Ronald A. Panioto and the Hamilton County Court of Common Pleas, Domestic Relations Division, (i) to cease and desist any and all further proceedings in the case of David Downs v. Linda Downs, Case No. DR-98-00652, currently pending in the Court of Common Pleas, Domestic Relations Division, Hamilton County, Ohio; (ii) to dismiss due to lack of jurisdiction the case of David Downs v. Linda Downs, Case No. DR-98-00652, currently pending in the Court of Common Pleas, Domestic Relations Division, Hamilton County, Ohio; (iii) to declare all orders and decisions of the Divorce Court void ab initio; and (iv) to grant to Petitioner such other relief to which he may be entitled, in law or in equity." David claimed that appellants, Judge Panioto and the domestic relations court, lacked jurisdiction over the divorce proceedings because Linda had been declared incompetent before the commencement of the proceedings and continued to be a declared incompetent throughout the proceedings.

{¶ 14} Appellants answered the amended complaint and moved for judgment on the pleadings or, in the alternative, for summary judgment. David filed a memorandum in opposition to appellants' motions and moved for summary judgment.

{¶ 15} On February 25, 2005, the court of appeals denied David's request for a peremptory writ of prohibition and denied the parties' motions for summary judgment. Nevertheless, the court of appeals granted what it referred to as appellants' motion for an alternative writ and ordered "the domestic relations court not to proceed on any substantive motions until it and the parties can straighten out the record in both the domestic-relations and the probate cases." 2005-Ohio-778, 2005 WL 433438, at ¶ 21.

{¶ 16} This case is now before this court upon Judge Panioto and the domestic relations court's appeal as of right as well as David's motion to dismiss the appeal.

Motion to Dismiss

{¶ 17} David moves to dismiss this appeal for lack of a final appealable order. Appeals as a matter of right may be taken to the Supreme Court in cases originating in courts of appeals, including actions involving extraordinary writs. Section 2(B)(2)(a)(i), Article IV, Ohio Constitution; State ex rel. Scruggs v. Sadler, 97 Ohio St.3d 78, 2002-Ohio-5315, 776 N.E.2d 101, ¶ 4. R.C. 2505.03 restricts the appellate jurisdiction of this court to the review of final orders, judgments, or decrees. State ex rel. Wright v. Ohio Adult Parole Auth. (1996), 75 Ohio St.3d 82, 84, 661 N.E.2d 728.

{¶ 18} R.C. 2505.02 defines a final order for purposes of appeal. Under R.C. 2505.02(B)(1), "[a]n order is a final order that may be reviewed, affirmed, modified, or reversed, with or without retrial, when it is * * * [a]n order that affects a substantial right in an action that in effect determines the action and prevents a judgment."

{¶ 19} "`Substantial right' means a right that the United States Constitution, the Ohio Constitution, a statute, the common law, or a rule of procedure entitles a person to enforce or protect." R.C. 2505.02(A)(1); State ex rel. White v. Cuyahoga Metro. Hous. Auth. (1997), 79 Ohio St.3d 543, 545, 684 N.E.2d 72 ("A `substantial right' for purposes of R.C. 2505.02 is a legal right enforced and protected by law"). The court of appeals' order, which grants a writ of prohibition preventing Judge Panioto and the domestic relations court from proceeding on any substantive matters, affects their substantial rights to proceed in cases involving domestic relations matters. R.C. 3105.011 ("The court of common pleas including divisions of courts of domestic relations, has full equitable powers and jurisdiction appropriate to the determination of all domestic relations matters"); R.C. 2301.03(B)(2) ("The judges of the [Hamilton County] court of common pleas * * * elected and designated as judges of the court of common pleas, division of domestic relations * * * shall have assigned to them all divorce, dissolution of marriage, legal separation, and annulment cases coming before the court"). Therefore, the order meets the first part of the R.C. 2505.02(B)(1) definition of "final order."

{¶ 20} Regarding the remaining requirement, "[f]or an order to determine the action and prevent a judgment for the party appealing, it must dispose of the whole merits of the cause or some separate and distinct branch thereof and leave nothing for the determination of the court." Hamilton Cty. Bd. of Mental Retardation & Developmental Disabilities v. Professionals Guild of Ohio (1989), 46 Ohio St.3d 147, 153, 545 N.E.2d 1260; see, also, In re Election of Nov. 6, 1990 for Atty. Gen. of Ohio (1991), 58 Ohio St.3d 604, 567 N.E.2d 984, quoting State ex rel. Curran v. Brookes (1943), 142 Ohio St. 107, 26 O.O. 287, 50 N.E.2d 995, paragraph two of the syllabus (defining judgment as "`the final determination of a court of competent jurisdiction upon matters submitted to it'").

{¶ 21} The court of appeals claimed that it was granting an alternative writ. An alternative writ does not determine the action and prevent a judgment, because further action by the court that issues the writ is contemplated. See, e.g., Webster's Third New International Dictionary (1986) 63 ("a writ in the nature of an order to show cause * * * why a peremptory or final writ should not issue"); Whiteside, Ohio Appellate Practice (2002) 215, Section 10.8 ("An alternative writ commands the person to whom it is directed either to obey the mandate of the writ or show cause why it should not be obeyed. In essence, it is a...