Forster v. De Young

2013 Ohio 679

• Court: Ohio Court of Appeals
• Decided: February 27, 2013
• Docket: 26467
• Status: Published

Opinion

[Cite as Forster v. De Young, 2013-Ohio-679.]

STATE OF OHIO ) IN THE COURT OF APPEALS )ss: NINTH JUDICIAL DISTRICT COUNTY OF SUMMIT )

MICHAEL A. FORSTER C.A. No. 26467

Appellant

v. APPEAL FROM JUDGMENT ENTERED IN THE LAURA A. DE YOUNG COURT OF COMMON PLEAS COUNTY OF SUMMIT, OHIO Appellee CASE No. 2007-05-1463

DECISION AND JOURNAL ENTRY

Dated: February 27, 2013

WHITMORE, Judge.

{¶1} Plaintiff-Appellant, Michael Forster (“Father”), appeals from the judgment of the

Summit County Court of Common Pleas, Domestic Relations Division. This Court affirms in

part and reverses in part.

I

{¶2} Father and Defendant-Appellee, Laura De Young (“Mother”), were married in

September 2005 and had one child together: a daughter born in April 2006. Father filed a

complaint for divorce in May 2007, and Mother filed a counterclaim for the same. The parties

were granted a divorce on October 31, 2008. On that day, the trial court journalized a decree of

divorce based upon an agreement that had been read into the record and a shared parenting plan

that had been submitted to the court. Per the agreement, both parties were named residential

parents of their child and afforded shared parenting time according to the schedule set forth in

the shared parenting plan. Certain aspects of the shared parenting plan were later modified by an 2

agreed entry, filed July 17, 2009. The agreed entry set forth Father’s child support obligation as

$250 per month.

{¶3} From the inception of the litigation, the parties filed a great deal of motions.

Because there were times that the parties were not represented by counsel, many of the motions

were filed pro se. The majority of the parties’ motions dealt with companionship issues, owing

to disputes over parenting time, but the amount of child support Father paid also became an

issue. Of particular importance to this appeal, on July 28, 2009, Mother filed a motion to adjust

the parties’ parenting time and to modify child support. When the trial court did not address the

portion of Mother’s motion requesting a support modification, Mother filed another motion on

September 1, 2009, to proceed with the child support modification. After a contempt hearing

later the same month, a magistrate issued a decision on Mother’s July 28th motion that the court

later adopted. Although the court’s decision addressed the companionship portion of Mother’s

July 28th motion, it did not address the child support issue. Over the next several months,

additional companionship issues arose.

{¶4} On May 25, 2010, the magistrate held a hearing to address Father’s motion to

hold Mother in contempt for failing to comply with the parenting time schedule. Father appeared

pro se at the hearing while Mother appeared with an attorney who had been appointed solely to

defend Mother on the contempt issue. Once the magistrate addressed the contempt motion, the

magistrate then indicated that Mother’s motion to modify child support would be addressed.

Father notified the magistrate that he was not aware the motion was going to be addressed at the

hearing and was not prepared to address it, but the magistrate nonetheless went forward on the

motion. The magistrate questioned both parties as to their employment and incomes. Both

parties indicated that they were unemployed with Father having lost his job in January 2010. 3

After the hearing, the magistrate issued a decision that addressed the outstanding companionship

issues and also increased Father’s child support obligation. The magistrate ordered Father to pay

retroactive support in the amount of $643.08 per month for the period of July 28, 2009, to

January 9, 2010, the date when Father lost his job. For the period of January 9, 2010, forward,

the magistrate ordered Father to pay support in the amount of $333.67 per month. The trial court

adopted the magistrate’s decision on June 29, 2010.

{¶5} On July 13, 2010, Father filed objections to the magistrate’s decision.

Inexplicably, the trial court did not rule on the objections until May 1, 2012. The trial court

overruled all of Father’s objections and entered judgment in accordance with the magistrate’s

recommendation on the issues of companionship and child support.

{¶6} Father now appeals from the trial court’s judgment and raises four assignments of

error for our review.

II

Assignment of Error Number One

APPELLANT WAS DENIED HIS CONSTITUTIONAL DUE PROCESS RIGHT TO REASONABLE NOTICE.

{¶7} In his first assignment of error, Father argues that he was denied his due process

rights when he was not afforded reasonable notice that the issue of child support would be

addressed at the May 25, 2010 hearing. We agree.

{¶8} Initially, we note that Mother did not file a responsive brief on appeal. As such,

this Court may “accept [Father’s] statement of the facts and issues as correct and reverse the

judgment if [his] brief reasonably appears to sustain such action.” App.R. 18(C). Father appears

pro se on appeal. With respect to pro se litigants, this Court has repeatedly held that: 4

pro se litigants should be granted reasonable leeway such that their motions and pleadings should be liberally construed so as to decide the issues on the merits, as opposed to technicalities. However, a pro se litigant is presumed to have knowledge of the law and correct legal procedures so that he remains subject to the same rules and procedures to which represented litigants are bound. He is not given greater rights than represented parties, and must bear the consequences of his mistakes. This Court, therefore, must hold [pro se appellants] to the same standard as any represented party.

(Internal citations omitted.) Sherlock v. Myers, 9th Dist. No. 22071, 2004-Ohio-5178, ¶ 3. With

the foregoing in mind, we turn to Father’s arguments.

{¶9} Father’s argument is essentially that he was denied his procedural due process

rights because he was not aware that the May 25, 2010 hearing would encompass Mother’s

motion to modify child support. “Due process requires that a party receive reasonable notice of

judicial proceedings and a reasonable opportunity to be heard.” Pearson v. Pearson, 9th Dist.

No. 10CA0068-M, 2011-Ohio-4880, ¶ 7, quoting Didado v. Didado, 9th Dist. No. 20832, 2002

WL 701945, *1 (Apr. 24, 2002). “The inquiry at to what process is due depends on the facts of

each case.” Ohio Assn. of Pub. School Emp., AFSCME, AFL-CIO v. Lakewood City Sch. Dist.

Bd. of Edn., 68 Ohio St.3d 175, 177 (1994). “Thus, we review the record to determine whether

[Father] received sufficient notice of the subject matter actually addressed at the hearing.” Hale

v. Hale, 9th Dist. No. 2935-M, 2000 WL 109101, *3 (Jan. 26, 2000).

{¶10} There is no question that Father received notice that a hearing would take place on

May 25, 2010. The hearing was prompted by Father’s motion to hold Mother in contempt for

interfering with his parenting time. The record reflects that the trial court originally set the

hearing for April 8, 2010. The order scheduling the hearing was entitled “Order to Appear and

Show Cause” and specifically indicated that Mother was to appear at the hearing to show cause

why she should not be held in contempt. Although the court granted several continuances of the

hearing before ultimately scheduling it for May 25th, none of the court’s orders indicated that 5

additional issues or motions would be addressed at the hearing. Interestingly, when Mother filed

a motion for a continuance on May 7, 2010, she specifically requested not only that the court

continue the hearing, but also that the court’s order include “the motions that will be heard that

day.” The court continued the hearing until May 25th, but never set forth the motions that would

be heard that day. A review of all the court’s orders regarding the hearing leads one to the

logical conclusion that the only motion that would be addressed at the May 25th hearing was

Father’s motion to hold Mother in contempt.

{¶11} The trial court determined that the magistrate acted within her discretion in

hearing Mother’s motion to modify child support at the May 25th hearing because the motion

was still outstanding and a magistrate “has broad discretion to deal with pending motions in the

most expeditious and judicially economical manner possible.” The court’s handling of Mother’s

motion to modify child support was hardly expeditious. Mother had filed her motion on July 28,

2009, almost ten months before the contempt hearing. Moreover, a court’s discretion in

managing its docket does not override the parties’ due process rights. Had the court wanted to

address the motion to modify at the contempt hearing, it need only have given the parties

reasonable notice that it would be doing so. Based upon the court’s filed orders, there was no

reason for either party to know that the magistrate intended to address Mother’s nearly ten-month

old motion at the contempt hearing. Father specifically informed the magistrate at the hearing

that he was not prepared to address the motion to modify because he was not aware the

magistrate intended to hear it that day. Further, neither party even had current financial

documents bearing upon the issue of child support with them at the hearing. The record supports

the conclusion that Father did not receive “sufficient notice of the subject matter actually 6

addressed at the hearing.” Hale, 2000 WL 109101, at *3. Accordingly, Father was denied his

procedural due process rights. His first assignment of error is sustained on that basis.

Assignment of Error Number Two

THE TRIAL COURT ERRED AS A MATTER OF LAW AND OR ABUSED ITS DISCRESSION (sic) IN ENFORCING AN “AGREED ENTRY” NEITHER SIGNED NOR SEEN PRIOR TO ITS JOURNALIZATION[.]

{¶12} In his second assignment of error, Father argues that the trial court lacked

jurisdiction to enforce the agreed entry that was filed on July 17, 2009. According to Father,

both parties had “misgivings” about the agreed entry and neither personally signed the entry

prior to its journalization.

{¶13} The July 17th agreed entry was signed by the court and the counsel of record for

both Mother and Father, as each had representation at that point in the proceedings. The fact that

Father and Mother did not sign the document themselves did not create a jurisdictional defect.

Moreover, the record reflects that Father failed to challenge the agreed entry at the trial court

level. Father never sought to vacate the entry or filed any motion to either remedy or create a

record of the alleged “misgivings” he argues that he had regarding the entry. “When reviewing

arguments on appeal, this Court cannot consider issues that are raised for the first time on

appeal.” Carnegie Cos., Inc. v. Summit Properties, Inc., 9th Dist. No. 25622, 2012-Ohio-1324, ¶

8, quoting Harris v. Akron, 9th Dist. No. 24499, 2009-Ohio-3865, ¶ 9. Consequently, we will

not reach the merits of Father’s argument. Father’s second assignment of error is overruled. 7

Assignment of Error Number Three

THE TRIAL COURT ERRED AS A MATTER OF LAW AND OR ABUSED ITS DISCRESSION (sic) IN HEARING IMPROPERLY FILED AND SERVED MOTIONS AS IT LACKS THE JURISDICTION TO DO SO[.]

{¶14} In his third assignment of error, Father argues that the trial court erred by

considering the motion to modify that Mother filed on July 28, 2009, because she never served

his counsel of record with the motion. He further argues that Mother failed to file and serve a

copy of her affidavit of income and expenses with the motion. The record reflects that Mother

filed several motions on July 28, 2009, in addition to a financial affidavit. Although Mother’s

motion to modify instructed the clerk to serve Father at his personal residence, Mother filed a

separate request for service the same day. The request for service asked the clerk to serve

Father’s attorney of record by certified mail with a copy of the items Mother had filed. The

record does not support Father’s contention that Mother failed to file and properly serve her July

28, 2009 motion and affidavit of income and expenses. His third assignment of error is

overruled.

Assignment of Error Number Four

THE TRIAL COURT SHOWED BIAS IN DISMISSING MOTIONS OF THE APPELLANT WHILE ALLOWING MOTIONS OF THE APPELLEE TO PROCEED DESPITE THE SAME FLAWS[.]

{¶15} In his fourth assignment of error, Father argues that the trial court demonstrated

bias by dismissing his June 2, 2010 motion due to procedural defects after it had considered

Mother’s procedurally defective July 28, 2009 motions on the merits. As set forth in Father’s

third assignment of error, Mother’s motion to modify and affidavit of income and expenses did

not suffer from the procedural defect(s) that Father alleged. Further, this Court “cannot vacate 8

[a] trial court’s judgment on the basis of judicial bias * * *.” Catanzarite v. Boswell, 9th Dist.

No. 24184, 2009-Ohio-1211, ¶ 9. Father’s fourth assignment of error is overruled.

III

{¶16} Father’s first assignment of error is sustained, and his remaining assignments of

error are overruled. The judgment of the Summit County Court of Common Pleas, Domestic

Relations Division, is affirmed in part, reversed in part, and the cause is remanded for further

proceedings consistent with the foregoing opinion.

Judgment affirmed in part, reversed in part, and cause remanded.

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 equally to both parties.

BETH WHITMORE FOR THE COURT 9

MOORE, P. J. CONCURS IN JUDGMENT ONLY.

BELFANCE, J. CONCURRING IN JUDGMENT ONLY.

{¶17} I concur that this case should be remanded. While the record does not contain

explicit evidence that Mr. Forster had notice that the hearing would address Ms. De Young’s

outstanding child-support motion, there is evidence that Ms. De Young knew that the hearing

would include her motion, which suggests that the parties, due to their frequent court

appearances and ongoing litigation, knew that the magistrate intended to consider the

outstanding child support motion. In light of the exchange occurring between the magistrate and

Mr. Forster, it appears that the magistrate may not have found Mr. Forster to be credible.

However, the magistrate never made a finding on this issue, nor identified on the record why she

thought Mr. Forster would have known about the matters to be considered at the hearing. This is

understandable since Mr. Forster never specifically objected to the hearing going forward.

Nevertheless, given Mr. Forster’s pro se status at the hearing,1 the fact that the record contains no

explicit notice about the hearing, and that the record is unclear as to Mr. Forster’s credibility, the

matter should be remanded for further proceedings. Accordingly, I concur in the majority’s

judgment.

APPEARANCES:

MICHAEL FORSTER, pro se, Appellant.

LAURA DE YOUNG, pro se, Appellee.

1 The transcript reveals that the magistrate was sympathetic of the pro se status of both parties and attempted to assist both of them in presenting the case, even allowing Mr. Forster to submit evidence following the hearing.