State ex rel. Zakany v. Avellone

• Decision Date: 18 April 1979
• Docket Number: No. 78-1006,78-1006
• Citation: 387 N.E.2d 1373,58 Ohio St.2d 25,12 O.O.3d 14
• Parties: , 12 O.O.3d 14 The STATE ex rel. ZAKANY, Appellant, v. AVELLONE, Judge, Appellee.
• Court: Ohio Supreme Court

Page 25

58 Ohio St.2d 25

387 N.E.2d 1373, 12 O.O.3d 14

The STATE ex rel. ZAKANY, Appellant, v. AVELLONE, Judge, Appellee.

No. 78-1006.

Supreme Court of Ohio.

April 18, 1979.

Lichtman Legal Clinic Co., L.P.A., and Robert M. Fertel, Cleveland, for appellant.

John E. Shoop, Pros. Atty., and Charles E. Coulson, Painesville, for appellee.

On June 12, 1978, relator, James Zakany, filed a complaint in prohibition, as well as a request for an alternative writ, in the Court of Appeals seeking to restrain respondent, Ross D. Avellone, Judge of the Court of Common Pleas of Lake County, Division of Domestic Relations, from making an order finding relator in contempt of court for failing to provide alimony Pendente lite to the defendant as ordered in a divorce action pending in that court styled "James Zakany v. Helen Zakany," and also to vacate the order for alimony Pendente lite.

The Court of Appeals denied the writ, from which relator brings an appeal as of right.

PER CURIAM.

Relator argues that the trial court had no power to grant the alimony Pendente lite because the request for such alimony was not in conformity with Civ.R. 75(M)(1) which requires that such request be contained "* * * in the complaint, answer, or counterclaim, or by motion served with the pleading * * * ." The request in this case was contained in a counterclaim which was voluntarily dismissed, but the request for alimony was renewed by motion. Relator, further wishes to prevent respondent from punishing him for contempt of court, claiming that such action is an unauthorized usurpation of judicial power.

"This court has held on numerous occasions that a writ of prohibition will issue only when the following conditions have been satisfied: (1) the court or officer against whom it is sought must be about to exercise judicial or quasi-judicial power; (2) the exercise of such power must amount to an unauthorized usurpation of judicial power; and (3) it must appear that the refusal of the writ would result in injury for which there is no adequate remedy. See, E. g., State, ex rel. Northern Ohio Tel. Co., v. Winter (1970), 23 Ohio St.2d 6, 8, 260 N.E.2d 827; State, ex rel. Gilligan, v. Hoddinott (1973), 36 Ohio St.2d 127, 130, 304 N.E.2d 382; State, ex rel. Allied Chemical Corp., v. Earhart (1974), 37 Ohio St.2d 153, 155, 310 N.E.2d 230." State, ex rel. D. P. & L. Co., v. Kistler (1979), 57 Ohio St.2d 21, 22, 385 N.E.2d 1076, 1077.

The first prerequisite to issuance of the writ is met. However, there is no "unauthorized usurpation of judicial power" herein.

With respect to this issue, there is no assertion that the court lacked jurisdiction of the parties, and under R.C. 2305.01 and R.C. Chapter 3105 it has jurisdiction of the subject matter. "* * * (T)his court has stated that '(t)he rule is firmly...