Moore v. Moore

2021 Ohio 4010

• Court: Ohio Court of Appeals
• Decided: November 10, 2021
• Docket: 109999
• Status: Published

Opinion

[Cite as Moore v. Moore, 2021-Ohio-4010.]

COURT OF APPEALS OF OHIO

EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

ANDREA MOORE, :

Plaintiff-Appellee, : No. 109999 v. :

GREGORY MOORE, :

Defendant-Appellant. :

JOURNAL ENTRY AND OPINION

JUDGMENT: VACATED; REMANDED RELEASED AND JOURNALIZED: November 10, 2021

Civil Appeal from the Cuyahoga County Court of Common Pleas Domestic Relations Division Case No. DR-19-379478

Appearances:

Kohrman Jackson & Krantz L.L.P., and John D. Ramsey, for appellee.

J.Y. Scott Law, L.L.C., and Jennifer J. Scott; Susan M. Oates, for appellant.

EILEEN A. GALLAGHER, J.:

Gregory Moore (“Husband”) appeals the judgment of the trial court

and contends that the trial court erred by holding an uncontested trial when he was

not sent appropriate notice and by entering an inequitable division of marital

property. Andrea Moore points to a single entry stating that service was issued. Admittedly, on the public access docket, there is a notation of 08/06/2020 —

“HEARING SCHEDULED. NOTICE(S) SENT.” However, the certified record from

the Cuyahoga County Clerk of Courts does not include this entry. The record from

the trial court clerk is so deficient that a presumption of regularity is inappropriate.

Accordingly, we vacate the judgment of the trial court and remand this matter for

further proceedings.

I. Factual and Procedural Background

On December 6, 2019, Andrea M. Moore filed an action for divorce in

the Cuyahoga County Court of Common Pleas Domestic Relations Division. The

docket shows that Husband was served on December 14, 2019 via the U.S. Postal

Service. No answer was filed to the complaint. On August 5, 2020, the case was set

for an uncontested trial on September 2, 2020. An August 6, 2020 journal entry on

the public docket states: “Hearing Scheduled, Notice(s) Sent[.]”

The trial court issued a final decree of divorce on September 3, 2020.

Husband appealed this judgment and assigned two errors for our review.

II. Law and Analysis

Assignment of Error I: The trial court erred and the appellant was denied due process when the trial court failed to properly serve a pro se party notice of the final hearing in the divorce proceeding.

In this assignment of error, Husband contends that the judgment of the

trial court must be reversed because the docket does not indicate that the notice

issued on August 6, 2020 was sent via ordinary mail as required by Civ.R. 75(L).

The rule provides: In all cases where there is no counsel of record for the adverse party, the court shall give the adverse party notice of the trial upon the merits. The notice shall be made by regular mail to the party’s last known address, and shall be mailed at least seven days prior to the commencement of trial.

Civ.R. 75(L).

Civ.R. 75(L)’s requirement that courts must provide notice to pro se

parties via regular mail “is mandatory[,] and a trial court commits reversible error

by entering judgment without first providing proper notice.” Shell v. Higgins, 2d

Dist. Darke No. 2017-CA-5, 2017-Ohio-8186, ¶ 12, citing Hightower v. Hightower,

10th Dist. Franklin No. 02AP-37, 2002-Ohio-5488, ¶ 16. In Shell, the Second

District reversed a divorce decree and remanded for a new trial in part because the

trial court did not mail the pro se defendant notice of the hearing to the correct

address. Shell at ¶ 14, 20. The Second District also explained that, pursuant to

Civ.R. 75(F), the default judgment rule does not apply to divorce proceedings and

defendants may present evidence at a final divorce hearing even if they fail to answer

the divorce complaint. Id. at ¶ 18. Therefore, if he received proper notice, husband

would have been able to present evidence at the trial even though he failed to answer

the complaint. Id.

The public electronic docket and both appellate briefs reference an

August 6, 2020 entry which provides “Hearing Scheduled, Notice(s) Sent[.]”

However, no such entry is within the certified record provided by the clerk. Indeed,

a significant number of the entries described in the briefs and public docket are not

included in the certified record provided to this court notwithstanding a significant number of entries described by both the appellant and the appellee prior to the

September 2, 2020 hearing. The certified record includes no entries whatsoever

between March 11, 2020 and September 3, 2020. For whatever reason, the certified

copy of the docket wholly fails to document the events immediately preceding the

final judgment in this case.

We must reverse a court of record where the lack of record prevents

effective judicial review. See Vang v. Cleveland, 8th Dist. Cuyahoga No. 104994,

2017-Ohio-4187, ¶ 13 (lack of record prevented “meaningful review”); Wayne Cty.

Sheriff v. Ohio Patrolmen’s Benevolent Assn., 9th Dist. Wayne No. 10CA0036, 2011-

Ohio-2707, ¶ 11 (“The lack of a written record in this case precluded effective judicial

review.”). Here, during the critical period of the case below, the certified record is

entirely devoid of any entries at all.

Our review is limited to the record as defined in App.R. 9. Pollock v.

Trustar Funding, L.L.C., 8th Dist. Cuyahoga Nos. 107355 and 107679, 2019-Ohio-

3272, ¶ 46. Pursuant to App.R. 9(A)(1), our record on appeal consists of (1) the

“original papers and exhibits thereto filed in the trial court,” (2) “the transcript of

proceedings, if any,” and (3) “a certified copy of the docket and journal entries

prepared by the clerk of the trial court[.]” The trial court’s public docket contains the

docket entry notation on August 6, 2020. However, no docket entries, journal

entries, or written notices are included in the certified copy of the docket and journal

entries prepared by the clerk of court between March 11, 2020 and September 3, 2020. Therefore, the “August 6, 2020 journal entry” is not part of our record on

appeal, and we cannot rely upon it here.

This court remanded this case to the trial court on September 14, 2021

to adjudicate a pending motion to vacate judgment for which the trial court entered

judgment, with dispatch, and the clerk then supplemented the record on

September 22, 2021. However, the additional materials concern events that took

place below after the notice of appeal and are not within the assigned errors nor has

counsel filed an appeal of that decision. Accordingly, this court is without

jurisdiction to consider those filings.

We sustain appellant’s first assignment of error and remand this

matter for retrial.

Assignment of Error II: The trial court erred by issuing a final decree of divorce without a just and equitable division of the marital estate.

Our resolution of the first assignment of error renders this

assignment of error moot.

This judgment is vacated and the case is remanded to the lower court

for further proceedings consistent with this opinion.

Each party to bear their own costs.

The court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate issue out of this court directing the

Cuyahoga County Common Pleas Court, Domestic Relations Division, 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.

EILEEN A. GALLAGHER, JUDGE

MARY J. BOYLE, A.J., CONCURS; SEAN C. GALLAGHER, J., CONCURS IN JUDGMENT ONLY WITH SEPARATE ATTACHED OPINION

SEAN C. GALLAGHER, J., CONCURRING IN JUDGMENT ONLY:

I concur in judgment only with the majority opinion. Under the

limited circumstances of this case in which notice is a contested issue, I am

constrained to agree that we cannot presume regularity when the certified record

prepared by the Cuyahoga County Clerk of Courts fails to show notice of the final

divorce hearing was issued to an unrepresented party in accordance with Civ.R.

75(L). Although there are many instances when the court or parties refer to the

public docket, in this case the record on appeal must reflect notice was sent to satisfy

due process.

“Ohio courts have traditionally held that some form of notice of a trial

date is required to satisfy due process.” Sanders v. Blue, 8th Dist. Cuyahoga No.

102447, 2015-Ohio-4376, ¶ 14, citing Ohio Valley Radiology Assocs., Inc. v. Ohio

Valley Hospital Assn., 28 Ohio St.3d 118, 125, 502 N.E.2d 599 (1986). In Sanders,

following a hearing at which a pro se defendant failed to appear, the defendant

objected and complained that he “was not sent or given service notification of the trial date[,]” and the trial court vacated the judgment. Id. at ¶ 4, 15. Although a

summary of the docket entries provided on appeal indicated notice was issued, the

entry itself and further additional records as to the mailing of notice of the hearing

were not provided on appeal or a part of the record presented. Id. As a result, this

court presumed regularity in the lower court’s conclusion that proper advance notice

was “not provided.” Id. at ¶ 15.

In this case, the certified record fails to show notice of the final

hearing was provided, and at the time this appeal was filed, no ruling had been made

on appellant’s motion to vacate. There is nothing in the record from which to

presume any regularity. It also is recognized that when this matter was returned to

the trial court, the trial court promptly ruled on matters, which are not before us,

and returned the case to the appellate court. This is a clerk problem, not a trial judge

problem. It is the clerk who compiled and certified the record for appellate review

in this matter in accordance with App.R. 9(A).

Under the circumstances of this case, because the record on appeal

fails to indicate that husband had reasonable notice of the hearing date sufficient to

satisfy minimal due process, I agree the judgment of the trial court should be

vacated.