Opinion
No. 109602
10-30-2020
STATE OF OHIO, EX REL., S.Y.C., Relator, v. JUDGE ALISON L. FLOYD, Respondent.
Appearances: John W. Shryock, for relator. Michael C. O'Malley, Cuyahoga County Prosecuting Attorney, and Nora E. Poore, Assistant Prosecuting Attorney, for respondent.
JOURNAL ENTRY AND OPINION JUDGMENT: WRITS DENIED Writs of Procedendo and Mandamus
Motion No. 538691
Order No. 541850 Appearances: John W. Shryock, for relator. Michael C. O'Malley, Cuyahoga County Prosecuting Attorney, and Nora E. Poore, Assistant Prosecuting Attorney, for respondent. RAYMOND C. HEADEN, J.:
{¶ 1} Relator, S.Y.C., has filed a complaint for a writ of procedendo and a writ of mandamus. S.Y.C., through her complaint for a writ of procedendo, seeks to compel the respondent, Judge Alison L. Floyd, to render rulings with regard to pending motions. S.Y.C., through her complaint for a writ of mandamus, seeks an order that requires Judge Floyd to enforce a remand order that was entered by this Court in In re: J.C., 8th Dist. Cuyahoga Nos. 107292 and 107294, 2019-Ohio-107. Judge Floyd has filed a motion for summary judgment claiming that S.Y.C.'s claims are moot. This court grants Judge Floyd's motion for summary judgment for the following reasons.
I. Facts
{¶ 2} On June 4, 2018, S.Y.C. timely appealed the judgments rendered in Cuyahoga J.C. Nos. CU-16-101850 and CU-16-101851 that denied her motions to modify the allocation of parental rights and responsibilities concerning her two minor children. On January 10, 2019, this court reversed Judge Floyd's judgment and remanded the matter for a new hearing and compliance with R.C. 3109.051(G)(1):
Judgment reversed in part, and remanded to the lower court for further proceedings consistent with this opinion. The court's denial of Mother's motion for reallocation of parental rights and responsibilities is reversed. The court's order regarding Father's notice of intent to relocate is reversed. The court's denial of Father's motion to modify parenting time is not part of this appeal. This case is remanded to the trial court for a new hearing on Mother's motion for reallocation of parental rights and responsibilities, and to issue a new order complying with R.C. 3109.051(G)(1).
{¶ 3} Since the remand, S.Y.C. has filed multiple motions, which she claims have not been ruled upon by Judge Floyd in a timely fashion: 1) motion for transcript of the proceedings held on December 5, 2018; 2) motion for reconsideration of court-ordered enrollment of children in counseling; and 3) motion to allocate tax dependency exemptions and credits and to waive (deviate)/recalculate child support. In addition, S.Y.C. claims that Judge Floyd has not scheduled a new hearing, as required upon remand, with regard to the motion for reallocation of parental rights and responsibilities and issue a new order complying with R.C. 3109.051(G)(1).
{¶ 4} On March 16, 2020, S.Y.C. filed her complaint, in this court, seeking: 1) a writ of procedendo, to compel Judge Floyd to issue rulings with regard to pending motions; and 2) a writ of mandamus to compel Judge Floyd to comply with this court's remand order and conduct a new hearing with regard to the motion for reallocation of parental rights and responsibilities and to issue a new order complying with R.C. 3109.051(G)(1). On May 19, 2020, Judge Floyd filed a motion for summary judgment premised upon the claims that the request for procedendo and mandamus were moot. On June 3, 2020, S.Y.C. filed her brief in opposition to Judge Floyd's motion for summary judgment. On June 10, 2020, Judge Floyd filed a reply brief to S.Y.C.'s opposition brief to the motion for summary judgment.
{¶ 5} On August 20, 2020, this court issued a show cause order to determine whether the complaint for a writ of procedendo and a writ of mandamus was moot:
Sua sponte, the parties are ordered to show cause as to the status of pending Cuyahoga County Juvenile Case Nos. CU-16-101850 (JC) and CU-16-101851 (GC). Specifically, the parties are ordered to address the issue of whether the complaint for a writ of mandamus, in order to enforce the remand ordered by this court in In re J.C., 8th Dist. Cuyahoga No. 107292 and 107294, 2019-Ohio-107, is moot in light of the facts that: 1) the trial court continues to conduct telephone
conference hearings with the parties and has indicated that a final conference will be held on November 6, 2020, in order to schedule a trial date; and 2) the order extending the judicial emergency and continuity of operations of the court due to Covid-19 pandemic was extended by the Juvenile Court Administrative Judge on May 1, 2020. See also additional administrative orders issued by the Juvenile Court Administrative Judge on June 12, 2020, and June 25, 2020.
{¶ 6} On September 15, 2020, S.Y.C. filed a response to the show cause order. On September 17, 2020, Judge Floyd filed a response to the show cause order.
II. Standards for Procedendo and Mandamus
{¶ 7} In order for this court to grant a writ of procedendo, a relator must demonstrate a clear legal right to require a court to proceed, a clear legal duty on the part of the court to proceed, and a lack of an adequate remedy in the ordinary course of the law. State ex rel. Sherrills v. Cuyahoga Cty. Court of Common Pleas, 72 Ohio St.3d 461, 650 N.E.2d 899 (1995); State ex rel. Knox v. Russo, 8th Dist. Cuyahoga Nos. 102589 and 103003, 2015-Ohio-3773. A writ of procedendo is appropriate when a court has refused to enter judgment or has unnecessarily delayed proceeding to judgment. State ex rel. Brown v. Logan, 138 Ohio St.3d 286, 2014-Ohio-769, 6 N.E.3d 42; State ex rel. Crandall, Pheils & Wisniewski v. DeCessna, 73 Ohio St.3d 180, 652 N.E.2d 742 (1995).
{¶ 8} A writ of mandamus is the appropriate remedy to require a lower court to comply with an appellate court's judgment that is directed to the lower court. State ex rel. Heck v. Kessler, 72 Ohio St.3d 98, 647 N.E.2d 792 (1995); State ex rel. Potain v. Mathews, 59 Ohio St.2d 29, 391 N.E.2d 343 (1979); State ex rel. Schneider v. Brewer, 155 Ohio St. 203, 98 N.E.2d 2 (1951). However, a writ of mandamus will only issue against a lower court when there exists an extreme case of direct disobedience. State ex rel. Cowan v. Gallagher, 153 Ohio St.3d 13, 2018-Ohio-1463, 100 N.E.3d 407.
III. Legal Analysis
A. Procedendo — Pending Motions
{¶ 9} The request for a writ of procedendo, in order to require Judge Floyd to render rulings with regard to the motion for a transcript of the proceedings held on December 5, 2018, a motion for reconsideration of court-ordered enrollment of children in counseling, and a motion to allocate tax dependency exemptions and credits and to waive (deviate)/recalculate child support, is moot. Attached to Judge Floyd's motion for summary judgment are certified copies of judgment entries that demonstrate disposition of S.Y.C.'s pending motions: 1) motions for a transcript of the proceedings held on December 5, 2018, denied on April 29, 2019 — exhibits A and B; 2) motions for reconsideration of court ordered enrollment of children in counseling denied on April 13, 2020 — exhibits C and D; and 3) motions to allocate tax dependency exemptions and credits and to waive (deviate)/recalculate child support granted on April 13, 2020 — exhibits E and F. Procedendo will not compel the performance of a duty that has already been performed. State ex rel. Williams v. Croce, 153 Ohio St.3d 348, 2018-Ohio-2703, 106 N.E.3d 55; State ex rel. Hopson v. Cuyahoga Cty. Court of Common Pleas, 135 Ohio St.3d 456, 2013-Ohio-1911, 989 N.E.2d 49; State ex rel. Fontanella v. Kontos, 117 Ohio St.3d 514, 2008-Ohio-1431, 885 N.E.2d 220.
B. Mandamus — Enforce Appellate Remand Order
{¶ 10} In addition, we find that S.Y.C. is not entitled to a writ of mandamus to enforce the mandate of this court as previously rendered in In re: J.C., 8th Dist. Cuyahoga Nos. 107292 and 107294, 2019-Ohio-107. A review of the dockets maintained in Cuyahoga J.C. Nos. CU-16-101850 and CU-16-101851, clearly demonstrates that Judge Floyd has conducted various attorney conferences and has ruled on newly filed motions since remand of the appeal in 8th Dist. Cuyahoga Nos. 107292 and 107294. In fact, on August 10, 2020, Judge Floyd journalized an order and has scheduled a "final attorney conference, to exchange and review custody evaluation, and to schedule trial." See exhibit A attached to Judge Floyd's response to the show cause order issued by this court on August 20, 2020. Because Judge Floyd is acting pursuant this court's remand order and will conduct a new hearing with regard to the motion for reallocation of parental rights and responsibilities/compliance with R.C. 3109.051(G)(1), we find that the request for mandamus is moot. State ex rel. Rohrer v. Holzapfel, 149 Ohio St.3d 132, 2016-Ohio-7827, 73 N.E.3d 482; State ex rel. S.Y.C. v. Floyd, 8th Dist. Cuyahoga No. 106955, 2018-Ohio-2743.
{¶ 11} Finally, it has been firmly established that a trial court retains control over the disposition of its trial docket and the control falls within the sound discretion of the trial court. State ex rel. Charvat v. Frye, 114 Ohio St.3d 76, 2007-Ohio-2882, 868 N.E.2d 270; State v. Bayless, 48 Ohio St.2d 73, 357 N.E.2d 1035 (1976), vacated in part on other grounds, 438 U.S. 911, 98 S.Ct. 3135, 57 L.Ed.2d 1155 (1978); State v. Schwarzman, 8th Dist. Cuyahoga No. 100337, 2014-Ohio-2393. In light of the Covid-19 pandemic that has gripped this nation, and the four separate "Judicial Emergency and Continuity of Operations of the Court Due to Covid-19 Pandemic," issued by the Cuyahoga Court of Common Pleas, Juvenile Division, that severely restricted all trials and the physical appearance of parties and witnesses, we find that Judge Floyd has not abused her discretion in conducting extended attorney conferences and not immediately proceeding to conduct a hearing as required upon remand. In the Matter of B.G.W., 10th Dist. Franklin No. 08AP-181, 2008-Ohio-3693. See also Blakemore v. Blakemore, 5 Ohio St.3d 217, 450 N.E.2d 1140 (1983); In re: Lauder, 150 Ohio App.3d 277, 2003-Ohio-406, 780 N.E.2d 1025 (10th Dist.); In re: Guardianship of Reed, 10th Dist. Franklin No. 09AP-720, 2010-Ohio-345.
While a trial court may not consider evidence (i.e., facts) outside of the record, a court ordinarily may consider opinions and public records accessible from the internet. A court is permitted to take judicial notice of legal opinions and public records accessible from the internet. Draughon v. Jenkins, 4th Dist. Ross No. 16CA3528, 2016-Ohio-5364, citing State ex rel. Everhart v. McIntosh, 115 Ohio St.3d 195, 2007-Ohio-4798, 874 N.E.2d 516. --------
IV. Conclusion
{¶ 12} S.Y.C. has failed to establish that she is entitled to a writ of procedendo or a writ of mandamus. Accordingly, we grant Judge Floyd's motion for summary judgment. Costs to S.Y.C.; costs waived. The court directs the clerk of courts to serve all parties with notice of this judgment and the date of entry upon the journal as required by Civ.R. 58(B).
{¶ 13} Writs denied. /s/_________
RAYMOND C. HEADEN, JUDGE FRANK D. CELEBREZZE, JR., P.J., and
MICHELLE J. SHEEHAN, J., CONCUR