Buser v. Buser

2013 Ohio 2630

Opinion

[Cite as Buser v. Buser, 2013-Ohio-2630.]

COURT OF APPEALS DELAWARE COUNTY, OHIO FIFTH APPELLATE DISTRICT

JUDGES: TRINA BUSER (NKA FOWLER) : Hon. W. Scott Gwin, P.J. : Hon. Sheila G. Farmer, J. Petitioner-Appellant : Hon. Craig R. Baldwin, J. : -vs- : : Case No. 12-CAA- 0077 DAVID M. BUSER : : Petitioner-Appellee : OPINION

CHARACTER OF PROCEEDING: Civil appeal from the Delaware County Court of Common Pleas, Domestic Relations Division, Case No. 11 DSC 10 0575

JUDGMENT: Dismissed

DATE OF JUDGMENT ENTRY: June 21, 2013

APPEARANCES:

For Petitioner-Appellant For Petitioner-Appellee

DANIELLE DAVISROE ERIC BROWN CRAIG P. TRENEFF GARY GOTTFRIED ANDREA L. COZZA 608 Office Parkway, Ste. B 155 Commerce Park Drive, Ste. 5 Westerville, OH 43082 Westerville, OH 43082 [Cite as Buser v. Buser, 2013-Ohio-2630.]

Gwin, P.J.

{¶1} Appellant appeals the October 1, 2012 judgment entry of the Delaware

County Common Pleas Court, Domestic Relations Division, denying her Civil Rule

60(B)(1) motion.

Facts & Procedural History

{¶2} Appellant Trina L. Buser (nka Fowler) and appellee David M. Buser are

the parents of one minor child, J.K.B., born March 15, 2004. The parties were married

from July 13, 2002 to December 16, 2011.

{¶3} Without the assistance of counsel, the parties terminated their marriage

through a dissolution on December 20, 2011, with an agreed judgment entry and decree

of dissolution. The parties obtained the forms for the dissolution from the clerk of courts

office. The forms included, among other documents, a joint plan of shared parenting

and a separation agreement. The separation agreement of the parties was approved

and incorporated as part of the decree of dissolution. The separation agreement and

joint plan of shared parenting filed by the parties contained contradictory terms

regarding the custody of J.K.B. and parenting time. The joint plan of shared parenting

provided appellant would have parenting time pursuant to local rule, appellee would

have parenting time at all other times, and that appellee would be designated the

residential parent for school placement purposes. The separation agreement provided

appellant would have custody of J.K.B. and appellee would have parenting time

pursuant to local rule.

{¶4} On May 31, 2012, appellee filed a motion for modification of shared

parenting plan. On August 22, 2012, appellant filed a motion to set aside the agreed Delaware County, Case No. 12-CAA-0077 3

judgment/decree of dissolution and final entry of shared parenting pursuant to Civil Rule

60(B)(1). Appellant also filed a motion to modify allocation of parental rights. The trial

court determined an evidentiary hearing was necessary to determine if modification was

in the best interest of J.K.B. The evidentiary hearing has not yet been held as it has

been continued several times by request of the parties. The parties are operating under

a December 7, 2012 agreed temporary order.

{¶5} On October 1, 2012, the trial court issued a judgment entry denying

appellant’s motion to set aside pursuant to 60(B)(1). The trial court found, when taking

into consideration O.R.C. § 3109.04(G), the shared parenting order takes precedence

over any other pleading when there are inconsistencies. Further, that because O.R.C. §

3109.04(E)(2)(C) provides for the termination of a shared parenting decree and there is

a statutory means of terminating a shared parenting decree, it is unnecessary to employ

Civ.R. 60(B)(1) to vacate a shared parenting plan. Appellant asserts the following

assignments of error on appeal:

{¶6} “I. THE TRIAL COURT ERRED AS A MATTER OF LAW AND ABUSED

ITS DISCRETION IN HOLDING THAT IT IS UNNECESSARY TO APPLY OHIO RULE

OF CIVIL PROCEDURE 60(B)(1) TO VACATE THE DISSOLUTION DECREE.

{¶7} “II. THE TRIAL COURT ERRED AS A MATTER OF LAW AND ABUSED

ITS DISCRETION IN HOLDING THAT ANY PROVISIONS PERTAINING TO THE

CASE OF THE CHILD IN THE SEPARATION AGREEMENT ARE A NULLITY WHERE

THEY CONFLICT WITH THE SHARED PARENTING PLAN BECAUSE ANY

PROVISION CONTAINED IN THE SHARED PARENTING PLAN TAKES Delaware County, Case No. 12-CAA-0077 4

PRECEDENCE OVER ANY INCONSISTENT PROVISIONS CONTAINED IN ANY

OTHER PLEADINGS.

{¶8} “III. THE TRIAL COURT ERRED AS A MATTER OF LAW AND ABUSED

ITS DISCRETION IN HOLDING THAT IT IS UNNECESSARY TO APPLY OHIO RULE

OF CIVIL PROCEDURE 60(B)(1) TO VACATE THE SHARED PARENTING DECREE

BECAUSE OHIO REVISED CODE SECTION 3109.04(E)(2)(c) PROVIDES FOR THE

TERMINATION OF A SHARED PARENTING DECREE.”

I, II, III

{¶9} On April 15, 2013, the court scheduled the above-captioned matter for oral

argument on May 23, 2013. On May 14, 2013, the parties filed a notice of waiver of oral

argument and appellant dismissed her request for oral hearing previously filed on

December 4, 2012.

{¶10} On May 29, 2013, appellee filed a Notice of Suggestion of Death, stating

that appellant Trina Buser nka Fowler passed away on May 23, 2013. In this case,

appellant’s assignments of error relate solely to the discrepancy between the separation

agreement and the joint plan of shared parenting dealing with the custody and parenting

time each parent had with J.K.B. Appellant does not challenge any other provisions of

the separation agreement or entry of dissolution.

{¶11} Based upon the Notice of Suggestion of Death, we find the issues

presented are moot. Courts “will not resolve issues which are moot.” Fortner v.

Thomas, 22 Ohio St.2d 13, 14, 257 N.E.2d 371, 372 (1970), citing Miner v. Witt, 82

Ohio St. 237 (1910). Delaware County, Case No. 12-CAA-0077 5

{¶12} Accordingly, Assignments of Error I, II, and III are moot and appellant’s

appeal is dismissed.

By Gwin, P.J.,

Farmer, J., and

Baldwin, J., concur

_________________________________ HON. W. SCOTT GWIN

_________________________________ HON. SHEILA G. FARMER

_________________________________ HON. CRAIG R. BALDWIN

WSG:clw 0607 [Cite as Buser v. Buser, 2013-Ohio-2630.]

IN THE COURT OF APPEALS FOR DELAWARE COUNTY, OHIO

FIFTH APPELLATE DISTRICT

TRINA BUSER (NKA FOWLER) : : Petitioner-Appellant : : : -vs- : JUDGMENT ENTRY : DAVID M. BUSER : : : Petitioner-Appellee : CASE NO. 12-CAA-0077

For the reasons stated in our accompanying Memorandum-Opinion,the judgment of

the Delaware County Court of Common Pleas, Domestic Relations Division, is

dismissed. Costs to appellant.