Calhoun v. Calhoun

2014 Ohio 703

• Court: Ohio Court of Appeals
• Decided: February 27, 2014
• Docket: 99955
• Status: Published

Opinion

[Cite as Calhoun v. Calhoun, 2014-Ohio-703.]

Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION No. 99955

RITA J. CALHOUN PLAINTIFF-APPELLANT

vs.

TYRONE CALHOUN DEFENDANT-APPELLEE

JUDGMENT: AFFIRMED

Civil Appeal from the Cuyahoga County Court of Common Pleas Domestic Relations Division Case No. CP D-263552

BEFORE: Blackmon, J., Keough, P.J., and E.A. Gallagher, J.

RELEASED AND JOURNALIZED: February 27, 2014 FOR APPELLANT

Rita J. Calhoun, Pro Se 25340 Easy Street Bedford Hts., Ohio 44146

ATTORNEY FOR APPELLEE

George W. MacDonald 514 Glen Park Drive Bay Village, Ohio 44140 PATRICIA ANN BLACKMON, J.:

{¶1} Appellant Rita Calhoun (“Mother”) appeals from an order of the court of

common pleas, domestic relations division, dated May 31, 2013. Having reviewed the

record and pertinent law, we affirm the trial court’s order. The apposite facts follow.

{¶2} On October 14, 1998, Mother filed for divorce from appellee, Tyrone Calhoun

(“Father”). On October 1, 1999, the trial court filed a judgment entry that granted the

divorce, dispensed of the parties’ assets, awarded Mother primary custody of their disabled

child, Aaron, presently 22 years old, outlined Father’s child support obligations, and

provided a visitation schedule. Over the next several years, the parties filed numerous

motions regarding visitation and child support issues.

{¶3} On March 26, 2012, Father filed a motion to terminate child support citing

his belief that Aaron was capable of providing for his own support. On September 11,

2012, Mother filed a motion to modify child support. On November 8, 2012, the matter

proceeded to a full hearing before a magistrate.

During the hearing, Mother voluntarily withdrew her motion to modify child support.

{¶4} Father testified that based on Aaron’s disability, he had agreed to continue

paying child support past Aaron’s nineteenth birthday. He also testified that based on the

training and education that Aaron had been receiving, he was capable of providing his own

support. In addition, Father testified about his desire to retire, citing a myriad of medical

issue including heart, vision, and hearing as a basis. {¶5} Mother presented a journalized order from the probate court that determined

Aaron to be incompetent and that appointed Mother as guardian. Mother also presented a

Guardian’s Report, dated June 15, 2012, that included a Statement of Expert Evaluation.

The self-authenticating expert report characterized Aaron as having Down syndrome,

being severely disabled, and requiring constant supervision.

{¶6} On November 16, 2012, Mother filed a motion styled “Motion To Strike

Trial Held on November 8, 2012 Without Pre Trials with Inclusion of ‘Special Mandate’

which Denies Proper Support of Disabled Child and Allows County Case Tampering.”

{¶7} On February 11, 2013, the magistrate issued a decision denying Father’s

motion to terminate child support. The magistrate’s decision also dismissed Mother’s

motion to modify child support, based on Mother’s voluntary withdrawal of the motion.

In addition, the magistrate’s decision denied Mother’s motion to strike the trial held on

November 8, 2012.

{¶8} On February 25, 2013, Mother filed objections to the magistrate’s decision.

On that same date, Father filed preliminary objections, and on March 18, 2013, filed

supplemental objections to the magistrate’s decision. On March 28, 2013, Mother filed a

motion to strike Father’s supplemental objections. On May 31, 2013, the trial court

adopted the magistrate’s decision.

{¶9} Mother now appeals and asserts as error, the following:

I. The lower court erred when it joined the motion to modify child support with non-parenting deviation filed on September 11, 2012 to the motion to terminate child support filed on March 26, 2012 as the later was ordered into full hearing, without pretrial, on September 12, 2012. II. The lower court erred on October 25, 2012, when it scheduled both causes for full hearing on November 8, 2012 and mailed notification to an incorrect address allowing less than 14 days to discover the notice and prepare for full trial.

III. The lower court erred when it moved to full trial on a motion to modify child support without the parties’ completion of the required income and expense statement with affidavit (post decree) in accordance with Local Rule 19 and Ohio Revised Code 3119.05(A).

IV. The lower court erred when it used these proceedings for the purposes of illegally terminating the child support of this mentally disabled child.

V. The lower court erred when it ignored the defendant’s income and

entered a support order without obtaining the financial information upon

which it should be based according to law.

{¶10} In the instant case, Mother’s first three errors concern the trial court’s alleged

failure to grant a continuance relative to her motion to modify the child support.

However, the record reveals that Mother voluntarily withdrew the motion to modify the

child support, thus rendering the aforementioned errors moot.

{¶11} Further, Mother’s remaining errors concern Father’s motion to terminate

child support. However, the record reveals that the trial court denied Father’s motion to

terminate. As such, Mother was the prevailing party, again rendering these errors

moot.

{¶12} An appeal is moot when there is no actual controversy to be resolved by the

appeal, which would result in this court issuing a mere advisory opinion on abstract

questions. 2115-2121 Ontario Bldg., L.L.C. v. Anter, 8th Dist. Cuyahoga Nos. 98255 and 98296, 2013-Ohio-2993, citing Thomas v. Cleveland, 140 Ohio App.3d 136, 142, 746

N.E.2d 1130 (8th Dist. 2000).

{¶13} An appeal is moot when it is impossible for this court to decide the case in

favor of the appellant and provide the appellant any effectual relief. Id., citing State ex

rel. Eliza Jennings, Inc. v. Noble, 49 Ohio St.3d 71, 74, 551 N.E.2d 128 (1990).

{¶14} Finally, the conduct of Mother, through the continued filing of appeals, may

result in Mother being declared a vexatious litigator. Pursuant to Loc.App.R. 23(A), an

appeal or original action shall be considered frivolous if it is not reasonably grounded in

fact or warranted by existing law. Loc.App.R. 23(B) further provides that a party that

habitually, persistently, and without reasonable cause engages in frivolous conduct, may

be declared a vexatious litigator subject to filing restrictions. Mother has taxed the

limited resources of this court through the continuous filing of appeals that are not

reasonably grounded in fact or warranted by existing law. Thus, Mother is forewarned

that the continued filing of appeals, that are not reasonably grounded in fact or warranted

by existing law, shall result in the declaration of her being a vexatious litigator.

Accordingly, we overrule Mother’s assigned errors.

{¶15} Judgment affirmed.

It is ordered that appellee recover from appellants costs herein taxed.

It is ordered that a special mandate be sent to said court to carry this judgment into

execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the

Rules of Appellate Procedure.

PATRICIA ANN BLACKMON, JUDGE

KATHLEEN ANN KEOUGH, P.J., and EILEEN A. GALLAGHER, J., CONCUR