Opinion
C.A. No. 28324
06-07-2017
MELISSA M. SCHMITT Appellee v. SHAINE WARD Appellant
APPEARANCES: FRANK J. CIMINO, Attorney at Law, for Appellant. LESLIE S. GRASKE, Attorney at Law, for Appellee.
APPEAL FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF SUMMIT, OHIO
CASE No. 2007-07-2217
DECISION AND JOURNAL ENTRY
HENSAL, Presiding Judge.
{¶1} Shaine Ward appeals an order of the Summit County Court of Common Pleas, Domestic Relations Division, that granted his motion for continuance with conditions. For the following reasons, this Court affirms.
I.
{¶2} Shaine Ward and Melissa Schmitt married in 2005 and divorced in 2012. The decree directed Mr. Ward to make all of the payments on a loan that the parties had co-signed. In June 2015, Ms. Schmitt moved for a receiver to take control of the property that secured the loan, alleging that Mr. Ward had not been making any payments on the loan. The trial court set a hearing on her motion, but later continued it because the action had been appealed. In April 2016, the court set a hearing for June 27, 2016, to discuss all of the issues pending before the court. Mr. Ward moved to continue the hearing because the appeal was still pending. The court next set a hearing for July 27, 2016, but Mr. Ward moved to continue it because he was going to be out of the country. Ms. Schmitt responded to his motion for continuance the next day. In her response, Ms. Schmitt noted that her motion for receiver had been pending for a year and alleged that Mr. Ward still had not been making payments on the loan. She, therefore, requested that the court order Mr. Ward to escrow the rental income he was receiving from the mortgaged property. The trial court subsequently granted Mr. Ward's motion for continuance on the condition that he deposit the rental proceeds from the mortgaged property into his attorney's IOLTA account, as Ms. Schmitt had requested. Mr. Ward has appealed the court's order, assigning two errors.
II.
ASSIGNMENT OF ERROR I
THE COURT ERRED IN SIGNING THE JOURNAL ENTRY OF JULY 8, 2016 REGARDING THE DEPOSITING OF RENTAL MONIES FROM THE RANCH ROAD PROPERTIES INTO THE DEFENDANT-APPELLANT'S ATTORNEY'S IOLTA ACCOUNT WHEN NO NOTICE WAS PROVIDED TO OPPOSING COUNSEL AND A REASONABLE TIME TO RESPOND.
{¶3} Mr. Ward argues that the trial court incorrectly ordered him to place the rental proceeds into escrow because Ms. Schmitt did not make a formal motion requesting such relief under Civil Rule 7(B) or serve him with such a motion. He alleges that it is possible that Ms. Schmitt made an ex parte motion when she was before the court on another matter the same day that the court entered its order, but argues that an ex parte order would have been improper as well. He further argues that he did not receive notice of the gathering that took place on the day the court entered its order.
{¶4} Rule 7(B)(1) provides in relevant part that "[a]n application to the court for an order shall be by motion which, unless made during a hearing or a trial, shall be made in writing. A motion, whether written or oral, shall state with particularity the grounds therefor, and shall set forth the relief or order sought." In her response to Mr. Ward's motion, Ms. Schmitt "request[ed] that this Court schedule this matter for a hearing prior to the current (rescheduled) date or, in the alternative, that this Court order Shaine Ward to deposit all proceeds of rental from the Ranch Road properties with his attorney * * *."
{¶5} "[T]he name given to a pleading or motion is not controlling. It is the substance and not the caption that determines [its] operative effect * * *." Lungard v. Bertram, 86 Ohio App. 392, 395 (1st Dist.1949). Although Ms. Schmitt did not caption her response as a motion, she requested specific relief and stated with particularity the grounds for her request. The trial court, therefore, did not err when it construed her response as a motion under Rule 7(B)(1). See Cooke v. United Dairy Farmers, Inc., 10th Dist. Franklin No. 05AP-1307, 2006-Ohio-4365, ¶ 28-29 (concluding that "Notice of Opinion" satisfied the requirements of Civ.R. 7(B)(1)).
{¶6} Regarding whether Ms. Schmitt properly served her motion, her response contained a certificate of service, indicating that she sent a copy of it to Mr. Ward's attorney by electronic mail. Mr. Ward has not alleged that his attorney did not receive the response.
{¶7} Regarding the gathering that allegedly occurred on the date that the trial court issued its order, the record reflects that Ms. Schmitt filed an emergency motion that day, requesting that she be granted parenting time so that she could take the parties' child to a family funeral, and that the trial court granted her motion ex parte. There is no indication in the record that the trial court engaged in ex parte communications about Mr. Ward's motion to continue or Ms. Schmitt's escrow request.
{¶8} In his reply brief, Mr. Ward contends that the trial court's order was improper because the court did not have jurisdiction to issue it because an appeal was pending. Mr. Ward, however, may not raise a new issue in his reply brief. State v. Lane, 9th Dist. Medina No. 15CA0089-M, 2016-Ohio-5770, ¶ 6 (citing Loc.R. 7(D)). Furthermore, even if an appeal is pending, the trial court retains jurisdiction to take action in aid of the appeal and "over issues not inconsistent with the appellate court's jurisdiction to reverse, modify, or affirm the judgment appealed from." In re S.J., 106 Ohio St.3d 11, 2005-Ohio-3215, ¶ 9. Mr. Ward has not established that the trial court's escrow order was inconsistent with this Court's jurisdiction. Mr. Ward's first assignment of error is overruled.
ASSIGNMENT OF ERROR II
THE TRIAL COURT ERRED IN THAT THE PLAINTIFF'S COUNSEL, LESLIE S. GRASKE, HAS HAD EX PARTE COMMUNICATIONS WITH THE COURT IN THIS MATTER TO OBTAIN AN ORDER REGARDING THE DEPOSIT OF FUNDS CONTRARY TO THE RULES OF PROFESSIONAL CONDUCT ESTABLISHED BY THE SUPREME COURT OF OHIO.
{¶9} Mr. Ward argues that Ms. Schmitt's attorney had inappropriate ex parte conversations with the trial court regarding the court's decision to order him to place the rental income into his attorney's IOLTA account. In support of his argument, he points to the fact that the order that the trial court entered indicates that it was approved by Ms. Schmitt's attorney. According to Mr. Ward, the only way the court could have obtained such a document was through an ex parte communication.
{¶10} Ms. Schmitt argues that there is nothing in the record that indicates that her attorney had improper ex parte communications with the trial court. She asserts that the reason the court had a copy of an approved order is because the court's local rules required her to submit a proposed order with her motion. Local Rule 2.08(C) of the Court of Common Pleas of Summit County, Domestic Relations Division provides that "[a] party filing a motion on a routine matter which does not require a hearing * * * shall deliver a time-stamped copy of that motion, with a proposed order, to the Court."
{¶11} Upon review of the record, we agree with Ms. Schmitt that there is no evidence in the record that indicates that her attorney had improper ex parte communications with the trial court. Mr. Ward's second assignment of error is overruled.
III.
{¶12} Mr. Ward's assignments of error are overruled. The judgment of the Summit County Court of Common Pleas, Domestic Relations Division, is affirmed.
Judgment affirmed.
There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy of this journal entry shall constitute the mandate, pursuant to App.R. 27.
Immediately upon the filing hereof, this document shall constitute the journal entry of judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is instructed to mail a notice of entry of this judgment to the parties and to make a notation of the mailing in the docket, pursuant to App.R. 30.
Costs taxed to Appellant.
/s/_________
JENNIFER HENSAL
FOR THE COURT SCHAFER, J.
TEODOSIO, J.
CONCUR.
APPEARANCES:
FRANK J. CIMINO, Attorney at Law, for Appellant. LESLIE S. GRASKE, Attorney at Law, for Appellee.