Taylor v. Taylor

• Decision Date: 04 June 1981
• Citation: 440 N.E.2d 823,2 OBR 87,2 Ohio App.3d 79
• Parties: , 2 O.B.R. 87 TAYLOR, Appellant, v. TAYLOR, Appellee.
• Court: Ohio Court of Appeals

Page 79

2 Ohio App.3d 79

440 N.E.2d 823, 2 O.B.R. 87

TAYLOR, Appellant, v. TAYLOR, Appellee.

Court of Appeals of Ohio, Eighth District, Cuyahoga County.

June 4, 1981.

Syllabus by the Court

1. It is an abuse of discretion for a court to dispose of issues by concluding that they are too difficult to resolve, then leaving the issues undecided.

2. When a trial court fails to dispose of difficult issues and chooses, instead, not to resolve them, the case poses neither a Civ.R. 54(B) problem nor a simple lack of a final appealable order. Nor does such a case quicken the necessity for the extraordinary remedies of procedendo or mandamus. Rather the issues will be remanded for merit determinations.

Joel A. Makee, Cleveland, for appellant.

Ann M. Taylor, pro se.

DAY, Judge.

This case is an appeal by plaintiff-appellant, Thornton Taylor (plaintiff), from a judgment by the Domestic Relations Division of the Court of Common Pleas of Cuyahoga County awarding a divorce to defendant-appellee, Ann M. Taylor (defendant). The court purported to dispose of all other issues in the case but it appears that some of the dispositions involved an abuse of discretion.

For the reasons adduced below the case is remanded to the trial court for further proceedings in accordance with this opinion.

I

Plaintiff sued defendant for divorce in July 1978, after more than thirty years of marriage. Defendant countersued in August. Trial was held before a Domestic Relations referee in January 1980, generating eight volumes of transcript. The referee's report was adopted by the trial judge in a judgment entry journalized August 6, 1980. A divorce was granted to defendant. Plaintiff filed a notice of appeal on September 2, 1980.

Plaintiff has been represented by counsel throughout these proceedings. Defendant has appeared pro se since September 1980.

From the August 6 judgment of the trial court plaintiff appeals, assigning four errors ^*:

"I. The trial court abused its discretion and committed prejudicial error in granting defendant-appellee a divorce on the grounds of gross neglect of duty and in denying plaintiff-appellant's request for a divorce on the grounds of gross neglect and extreme cruelty.

"II. The trial court abused its discretion and committed prejudicial error in making its determination of the division of marital assets and alimony.

"III. The trial court abused its discretion and committed prejudicial error by making the finding that neither party had proved its contention regarding possession of the missing coins, such finding being against the manifest weight of the evidence.

"IV. The trial court abused its discretion and committed prejudicial error by failing to make an order providing for disposition of the life insurance policies and other assets owned by the parties when ample proof of the existence and value of such life insurance and other property was offered and admitted into evidence during the trial by both parties."

II

This case does not pose a Civ.R. 54(B) problem. Nor is the issue a simple lack of a final appealable order. Rather the court below attempted to but did not perform its function adequately. It disposed of admittedly difficult issues by deciding it could not decide them. With the court's action in this stance, there is no occasion to refer the parties to the extraordinary remedies of procedendo or mandamus. Therefore, the lower ...