Summary
holding that "[i]n order to avoid finding many alleged divorces complete nullities, ** the failure * * * to comply with [Civ.R. 53(E)] renders the resulting judgment voidable, and not void."
Summary of this case from In re DortchOpinion
No. 80-1127
Decided March 25, 1981.
Judgments — Divorce decree — Failure to comply with Civ. R. 53 — Judgment voidable — Contempt finding — Appealable, when — Mandamus, prohibition, habeas corpus, not appropriate remedies.
APPEALS from the Court of Appeals for Portage County.
In 1976, Judith Lesher filed for a divorce against Charles E. Lesher, appellant herein, in the Court of Common Pleas of Portage County. On July 19, 1977, a divorce hearing was held before a trial referee, J. Edward Meal. On that same date, an agreed entry of divorce was filed, signed by appellant, Mrs. Lesher, the parties' attorneys, Referee Meal, and Judge Joseph R. Kainrad, judge of the Court of Common Pleas. Pursuant to that judgment entry, Mrs. Lesher was granted a divorce from appellant on the grounds of extreme cruelty. Mrs. Lesher was given custody of the couple's four children and appellant was ordered to pay $20 per child per week in child support. Appellant did not file objections to the July 19th entry, nor did he file a timely appeal from that order.
In March of 1979, Mrs. Lesher filed a motion to cite appellant for contempt for appellant's failure to pay back child support. A hearing was held before Referee Meal on May 23, 1979. Pursuant to Civ. R. 53(E), the referee filed a report of that hearing on September 11, 1979. The referee found appellant to be in willful contempt of court, and recommended that appellant be sentenced to ten days in jail. Appellant's objections to that report were not timely filed. Civ. R. 53(E)(2). On January 24, 1980, Judge Kainrad issued an order approving the referee's recommendation. On February 21, appellant filed a notice of appeal in the Court of Appeals from the order of January 24.
On February 26, 1980, appellant filed actions in mandamus and prohibition against Judge Kainrad and Referee Meal in the Court of Appeals. The complaints alleged, inter alia, that all previous orders of the judge and referee were null and void since the requirements of Civ. R. 53(E), 54(A), and 58, and R.C. 2301.34 et seq. were not complied with and further requested that they be restrained from enforcing those previous orders.
The referee, on February 28, 1980, conducted another hearing regarding the alleged contempt of appellant. On March 12, the referee filed a Civ. R. 53(E) report, recommending that appellant be ordered to report to jail on March 28. Appellant timely filed objections to that report on March 21. The referee's recommendation was approved on March 27 by Judge George E. Martin of the Court of Common Pleas of Portage County.
On March 21, appellant filed a motion to stay execution pending his appeal filed on January 24. That motion was granted by the Court of Appeals.
Mrs. Lesher filed another motion in contempt against appellant on April 28. On May 8, Judge Martin held a hearing on that motion and ordered that appellant be immediately jailed. On May 13, appellant, while in jail, filed an action in habeas corpus in the Court of Appeals directed against the Sheriff of the Portage County Jail. On May 18, appellant filed a motion to stay execution of the order of May 8 pending his appeal. The stay was granted by the Court of Appeals and appellant was accordingly released from jail.
On June 16, 1980, the Court of Appeals dismissed appellant's actions in mandamus, prohibition, and habeas corpus. The appeal from the contempt proceeding was dismissed by the Court of Appeals on September 22, 1980, on the basis that there was no final appealable order.
The dismissals of the actions in mandamus, prohibition, and habeas corpus are now before this court on appeals as of right, having been consolidated for review and final determination.
Mr. Sanford J. Berger and Mr. Robert M. Fertel, for appellant.
Mr. John J. Plough, prosecuting attorney, and Mr. Louis R. Myers, for appellees.
Appellant's several propositions of law raised in this appeal can be grouped into two categories: (1) the validity of the divorce decree of July 19, 1977, due to the alleged failure to comply with Civ. R. 53, and (2) the validity of the findings that appellant was in contempt of court orders, due to alleged irregularities.
I.
Referee Meal was appointed by Judge Kainrad pursuant to Civ. R. 53, which reads, in part: "(C)***[T]he referee has and shall exercise the power to regulate all proceedings in every hearing before him as if by the court and to do all acts and take all measures necessary or proper for the efficient performance of his duties***."
Civ. R. 53 requires a referee to perform certain mandatory duties, as follows:
"(E)(1) The referee shall prepare a report upon the matters submitted to him by the order of reference. He shall file the report with the clerk of court and shall mail a copy to the parties. In an action on the merits of an issue to be tried without a jury, he shall file with his report a transcript of the proceedings and of the evidence only if the court so directs.
"(2) A party may, within fourteen days of the filing of the report, serve and file written objections to the referee's report. Such objections shall be considered a motion. Objections shall be specific and state with particularity the grounds therefor. Upon consideration of the objections the court may: adopt, reject or modify the report; hear additional evidence; return the report to the referee with instructions; or hear the matter itself.
"***
"(5) The report of a referee shall be effective and binding only when approved and entered as a matter of record by the court." (Emphasis added.)
After the July 19, 1977, hearing, Referee Meal did not prepare a report as required by Civ. R. 53(E)(1). Appellant, therefore, was never given the opportunity to file objections, as is his right under Civ. R. 53(E)(2). Apparently, on the same day of the hearing, Referee Meal prepared a judgment entry, signed it, and had Judge Kainrad sign it with the following notation: "The Court upon review finds the Referee's recommendations fair and equitable and hereby adopts same as an order of this Court."
Appellant contends that since Civ. R. 53 was not complied with, the order of July 19, 1977, and all subsequent orders arising out of the divorce are void. We stated in Romito v. Maxwell (1967), 10 Ohio St.2d 266, 267: "The effect of determining that a judgment is void is well established. It is as though such proceedings had never occurred; the judgment is a mere nullity."
In order to avoid finding many alleged divorces complete nullities, we hold that the failure of the appellees to comply with Civ. R. 53 renders the resulting judgment voidable, and not void. See Eisenberg v. Peyton (1978), 56 Ohio App.2d 144. Thus, if appellant would have pursued the appropriate remedies, the alleged divorce could have been voided. However, since we hold that the July 19, 1977, judgment was voidable, appellant's failure to pursue his appropriate remedies in a timely fashion acts as an estoppel to a remedy at this late date.
II.
Appellant appealed the finding of contempt to the Court of Appeals. That appeal was subsequently dismissed for lack of a final appealable order. Appellant need only have such an order entered by the trial court to comport with the requirements of Civ. R. 58. When that is accomplished, appellant can pursue the normal remedies. See, generally, In re Smith (1977), 50 Ohio St.2d 192.
Since an adequate remedy exists for appellant, the action in habeas corpus was properly dismissed by the Court of Appeals. See In re Calhoun (1976), 47 Ohio St.2d 15.
For the foregoing reasons, the judgments of the Court of Appeals are affirmed.
Judgments affirmed.
CELEBREZZE, C.J., W. BROWN, P. BROWN, STEPHENSON, LOCHER, HOLMES and C. BROWN, JJ., concur.
STEPHENSON, J., of the Fourth Appellate District, sitting for SWEENEY, J.