State ex rel. Litty v. Leskovyansky

• Decision Date: 13 November 1996
• Docket Number: No. 96-1482,96-1482
• Citation: 77 Ohio St.3d 97,671 N.E.2d 236
• Parties: The STATE ex rel. LITTY v. LESKOVYANSKY, Judge.
• Court: Ohio Supreme Court

Page 97

77 Ohio St.3d 97

671 N.E.2d 236

The STATE ex rel. LITTY v. LESKOVYANSKY, Judge.

No. 96-1482.

Supreme Court of Ohio.

Submitted Sept. 10, 1996.

Decided Nov. 13, 1996.

In December 1994, John C. Litty, Jr. filed a divorce action against his wife, relator, Carol-Lou Wolverton Litty, in the Mahoning County Court of Common Pleas. Respondent, Judge John J. Leskovyansky, is presiding over the case. On January 5, 1996, during the pendency of the divorce action, relator filed an affidavit of bias and disqualification regarding Judge Leskovyansky with the court pursuant to R.C. 2701.03. Relator requested that Judge Leskovyansky be disqualified from the divorce action and that another judge be assigned.

On January 8, 1996, John C. Litty, Jr., the plaintiff in the divorce action, died. At the time of the decedent's death, trial in the divorce action had not commenced, and the issues in the case had not been presented to Judge Leskovyansky for determination. On January 11, Judge Leskovyansky, on his own motion, dismissed the divorce case because of the plaintiff's death. On January 16, the Chief Justice ruled that relator's affidavit of disqualification concerning Judge Leskovyansky was moot due to the January 11 dismissal of the divorce case.

In February 1996, the Mahoning County Court of Common Pleas, Probate Division, appointed the daughter of the decedent, Brenda Dobson, executor of his estate. In March 1996, Dobson filed a motion to substitute herself, in her capacity as executor of the decedent's estate, as the plaintiff in the previously dismissed divorce case and to revive the divorce action. Dobson's motion was "for the purpose of dividing the property in the divorce action." In May 1996, Judge Leskovyansky issued the following entry:

"Pursuant to [Civ.] Rule 60(A) the court, having dismissed this action in error, does hereby reinstate the same and must await the decision of the Supreme Court of Ohio with regard to the pending affidavit for disqualification filed previous to the death of plaintiff by the defendant."

Shortly thereafter, relator instituted this action for a writ of prohibition preventing Judge Leskovyansky from continuing further proceedings in the divorce case. This court granted an alternative writ and issued a schedule for the presentation of evidence and briefs. 76 Ohio St.3d 1407-1408, 666 N.E.2d 567-568.

John V. Heutsche Co., L.P.A., and John V. Heutsche, Cleveland, for relator.

James A. Philomena, Mahoning County Prosecuting Attorney, and Linette S. Baringer, Assistant Prosecuting Attorney, for respondent.

PER CURIAM.

In her various propositions of law, relator asserts that she is entitled to extraordinary relief in prohibition. In order for a writ of prohibition to issue, relator must establish that (1) Judge Leskovyansky is about to exercise judicial power, (2) the exercise of such power is unauthorized by law, and (3) if the writ is denied, relator will suffer injury for which no other adequate remedy exists. State ex rel. Barclays Bank PLC v. Hamilton Cty. Court of Common Pleas (1996), 74 Ohio St.3d 536, 540, 660 N.E.2d 458, 461.

Judge Leskovyansky initially contends that relator has not established the first requirement for the issuance of a writ of prohibition because he has already exercised judicial power by reinstating the divorce case. However, where an inferior court patently and unambiguously lacks jurisdiction over the cause, prohibition will lie both to prevent the future unauthorized exercise of jurisdiction and to correct the results of previous jurisdictionally unauthorized actions. State ex rel. Smith v. Frost (1995), 74 Ohio St.3d 107, 109, 656 N.E.2d 673, 676; State ex rel. Tollis v. Cuyahoga Cty. Court of Appeals (1988), 40 Ohio St.3d 145, 148, 532 N.E.2d 727, 730. In addition, Judge Leskovyansky intends to exercise further jurisdiction in the divorce action by dividing the property of relator and the decedent.

As for the remaining requirements of a writ of prohibition, prohibition will not lie where relator has an adequate remedy in the ordinary course of law. State ex rel. Newton v. Court of Claims (1995), 73 Ohio St.3d 553, 555, 653 N.E.2d 366, 369. Absent a patent and unambiguous lack of jurisdiction, a court having general subject-matter jurisdiction can determine its own jurisdiction, and a party challenging the court's jurisdiction has an adequate remedy by appeal. State ex rel. Lipinski v. Cuyahoga Cty. Court of Common Pleas (1995), 74 Ohio St.3d 19, 22, 655 N.E.2d 1303, 1306.

Relator asserts that a writ of prohibition should issue because Judge Leskovyansky patently and unambiguously lacked jurisdiction to revive and proceed with the divorce action. Relator claims that the death of the plaintiff in the divorce action divested the common pleas court of jurisdiction over the case.

R.C. 2311.21 states that "[u]nless otherwise provided, no action or proceeding pending in any court shall abate by the death of either or both of the parties thereto, except actions for libel, slander, malicious prosecution, for a nuisance, or against a judge of a county court for misconduct in office, which shall abate by the death of either party." Although divorce actions are not specified in R.C. 2311.21 as actions requiring abatement upon death of one or both parties, this court has stated that "[e]ven in the absence of statute, it stands to reason that where one or both parties to a divorce action die before a final decree of divorce the action abates and there can be no revival [because] [c]ircumstances have accomplished the primary object sought." Porter v. Lerch (1934), 129 Ohio St. 47, 56, 1 O.O. 356, 360, 193 N.E. 766, 770 (construing the similarly worded General Code version of R.C. 2311.21); see, also, Taylor v. Taylor (July 15, 1992), Hamilton App. No. C-910126, unreported, 1992 WL 166076 ("[I]t is now well settled in Ohio that an action for divorce is one of the exceptional cases where abatement results from the death of a party.").

Conversely, if a party in a divorce action dies following a decree determining property rights and granting a divorce but prior to the journalization of the decree, the action does not abate upon the party's death. Porter, 129 Ohio St. at 56, 1 O.O. at 360, 193 N.E. at 770; Caprita v. Caprita (1945), 145 Ohio St. 5, 30 O.O. 238, 60 N.E.2d 483, paragraph three of the syllabus. In these circumstances, the decree may be journalized by nunc pro tunc entry. Id. at paragraph four of the syllabus; see, generally, 2 Spike, Ohio Family Law and Practice (1994) 688-689, Section 21.107.

In the case at bar, Judge Leskovyansky did not decide any of the issues in the divorce action prior to the death of relator's husband. The decedent died prior to the scheduled commencement of trial in the divorce case. Based on these uncontroverted facts, Judge Leskovyansky lacked jurisdiction to proceed in the underlying divorce action. See, e.g., Diemer v. Diemer (1994), 99 Ohio App.3d 54, 62-63, 649 N.E.2d 1285, 1290-1291 (divorce action abated upon plaintiff's death prior to domestic relations court's commencing proceedings or determining any issues, and probate court, rather than domestic relations court, possessed jurisdiction to determine rights and liabilities of parties with respect to antenuptial agreement); Koch v. Koch (Mar. 4, 1994), Sandusky App. No. S-93-5, unreported, 1994 WL 69358 (where trial court had taken no action to finally decide issues in divorce action prior to death of one of the parties, nunc pro tunc entry could not be used to journalize decisions on those issues and trial court had no further jurisdiction to consider divorce case); Hook v. Hook (1987), 35 Ohio App.3d 51, 52-53, 519 N.E.2d 687, 689 (trial court properly dismissed divorce action when one of the parties died prior to the commencement of trial).

Judge Leskovyansky vacated his previous dismissal of the divorce case pursuant to Civ.R. 60(A), which provides that "[c]lerical mistakes in judgments, orders or other parts of the record and errors therein arising from oversight or omission may be corrected by the court at any time on its own initiative or on the motion of any party and after such notice, if any, as the court orders." Judge Leskovyansky contends that he properly exercised his authority to reinstate the divorce case pursuant to Civ.R. 60(A).

Civ.R. 60(A) permits a trial court, in its discretion, to correct clerical mistakes which are apparent on the record, but does not authorize a trial court to make substantive changes in judgments. Londrico v. Delores C. Knowlton, Inc. (1993), 88 Ohio App.3d 282, 285, 623 N.E.2d 723, 725. The term "clerical mistake" refers to a mistake or omission, mechanical in nature and apparent on the record which does not involve a legal decision or judgment. Id., 88 Ohio App.3d at 285, 623 N.E.2d at 725; ...