State ex rel. Downs v. Panioto

107 Ohio St. 3d 347
CourtOhio Supreme Court
DecidedJanuary 11, 2006
DocketNo. 2005-0447
StatusPublished
Cited by40 cases

This text of 107 Ohio St. 3d 347 (State ex rel. Downs v. Panioto) is published on Counsel Stack Legal Research, covering Ohio Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State ex rel. Downs v. Panioto, 107 Ohio St. 3d 347 (Ohio 2006).

Opinion

Per Curiam.

{¶ 1} This is an appeal from a judgment granting a writ of prohibition preventing a domestic relations court from proceeding in a divorce case.

{¶ 2} In June 1959, appellee, David Downs, and Linda Downs married in Lawrenceburg, Indiana. David and Linda have one child born as issue of their [348]*348marriage, Stephanie, who is emancipated. According to findings of fact in the divorce action, in 1988, Linda contracted an infection after a routine hysterectomy. Linda became disabled and suffered from chronic pain and severe depression. She attempted suicide on several occasions.

{¶ 3} In 1991, Linda attempted suicide by carbon monoxide poisoning. Although she survived, she sustained severe brain damage and became physically and mentally incapacitated. She began living in a nursing home.

{¶ 4} On November 19, 1997, Stephanie applied to the Hamilton County Probate Court for the appointment of an emergency guardian for her mother, Linda, on the basis that Linda was incompetent. On that same day, the probate court granted Stephanie’s application and appointed her Linda’s emergency guardian “with the authority to make decisions for the best interests of the ward regarding medical care and treatment.” The probate court noted that David had “shown lack of interest in care of’ his wife and in the need for appointment of an emergency guardian. On November 21, 1997, the probate court continued Stephanie’s appointment as emergency guardian for Linda until December 22, 1997.

{¶ 5} On January 7, 1998, the probate-court magistrate determined that Linda was incompetent by reason of mental impairment and was incapable of taking proper care of herself. The magistrate further concluded that a guardianship of Linda’s person was necessary and that Stephanie was a proper person to be appointed guardian. The probate court did not, however, appoint a guardian for Linda at that time.

{¶ 6} On March 10, 1998, David filed a complaint for divorce in appellant Hamilton County Court of Common Pleas, Domestic Relations Division. David named Linda as the sole defendant and did not allege that she was incompetent. He requested a divorce and a permanent property division. Service of the divorce complaint on Linda was perfected on March 14.

{¶ 7} On April 17, 1998, Linda, by and through her attorney, filed an answer to David’s divorce complaint and a counterclaim. Linda requested a divorce, spousal support, and a reasonable division of property. On April 22, David replied to Linda’s counterclaim.

{¶ 8} On May 4, 1998, the probate court appointed Stephanie as guardian of Linda’s person. On September 8,1998, the probate court appointed Stephanie as guardian of Linda’s estate.

{¶ 9} In January 2001, the domestic relations court made an equitable division of the marital property. The court noted in its decision that Linda’s guardian, Stephanie, had testified in the case.

[349]*349{¶ 10} In September 2003, David moved to dismiss his complaint for divorce and Linda’s counterclaim for divorce because Linda “was found to be mentally incompetent on November 21, 1997,” by the probate court. David’s motion contained no argument in support. On September 25, 2003, appellant Judge Ronald A. Panioto of the domestic relations court denied David’s motion.

{¶ 11} On July 19, 2004, David filed a notice withdrawing his divorce complaint and dismissing his action.

{¶ 12} In September 2004, Linda moved to amend her counterclaim to add a claim for legal separation, division of marital property, and permanent spousal support. She also moved to disqualify David’s counsel based on ethical misconduct and conflict of interest. On September 24, 2004, Judge Panioto granted Linda’s motion to disqualify David’s attorney.

{¶ 13} On November 23, 2004, David filed a complaint in the Court of Appeals for Hamilton County. In his amended complaint, David requested a “Peremptory Writ of Prohibition, or, in the alternative, an Alternative Writ of Prohibition, directing Respondents Ronald A. Panioto and the Hamilton County Court of Common Pleas, Domestic Relations Division, (i) to cease and desist any and all further proceedings in the case of David Downs v. Linda Downs, Case No. DR-98-00652, currently pending in the Court of Common Pleas, Domestic Relations Division, Hamilton County, Ohio; (ii) to dismiss due to lack of jurisdiction the case of David Downs v. Linda Downs, Case No. DR-98-00652, currently pending in the Court of Common Pleas, Domestic Relations Division, Hamilton County, Ohio; (iii) to declare all orders and decisions of the Divorce Court void ab initio-, and (iv) to grant to Petitioner such other relief to which he may be entitled, in law or in equity.” David claimed that appellants, Judge Panioto and the domestic relations court, lacked jurisdiction over the divorce proceedings because Linda had been declared incompetent before the commencement of the proceedings and continued to be a declared incompetent throughout the proceedings.

{¶ 14} Appellants answered the amended complaint and moved for judgment on the pleadings or, in the alternative, for summary judgment. David filed a memorandum in opposition to appellants’ motions and moved for summary judgment.

{¶ 15} On February 25, 2005, the court of appeals denied David’s request for a peremptory writ of prohibition and denied the parties’ motions for summary judgment. _ Nevertheless, the court of appeals granted what it referred to as appellants’ motion for an alternative writ and ordered “the domestic relations court not to proceed on any substantive motions until it and the parties can straighten out the record in both the domestic-relations and the probate cases.” 2005-Ohio-778, 2005 WL 433438, at ¶ 21.

[350]*350{¶ 16} This case is now before this court upon Judge Panioto and the domestic relations court’s appeal as of right as well as David’s motion to dismiss the appeal.

Motion to Dismiss

{¶ 17} David moves to dismiss this appeal for lack of a final, appealable order. Appeals as a matter of right may be taken to the Supreme Court in cases originating in courts of appeals, including actions involving extraordinary writs. Section 2(B)(2)(a)(i), Article IV, Ohio Constitution; State ex rel. Scruggs v. Sadler, 97 Ohio St.3d 78, 2002-Ohio-5315, 776 N.E.2d 101, ¶4. R.C. 2505.03 restricts the appellate jurisdiction of this court to the review of final orders, judgments, or decrees. State ex rel. Wright v. Ohio Adult Parole Auth. (1996), 75 Ohio St.3d 82, 84, 661 N.E.2d 728.

{¶ 18} R.C. 2505.02 defines a final order for purposes of appeal. Under R.C. 2505.02(B)(1), “[a]n order is a final order that may be reviewed, affirmed, modified, or reversed, with or without retrial, when it is * * * [a]n order that affects a substantial right in an action that in effect determines the action and prevents a judgment.”

{¶ 19} “ ‘Substantial right’ means a right that the United States Constitution,the Ohio Constitution, a statute, the common law, or a rule of procedure entitles a person to enforce or protect.” R.C. 2505.02(A)(1); State ex rel. White v. Cuyahoga Metro. Hous. Auth. (1997), 79 Ohio St.3d 543, 545, 684 N.E.2d 72 (“A ‘substantial right’ for purposes of R.C. 2505.02 is a legal right enforced and protected by law”).

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Cite This Page — Counsel Stack

Bluebook (online)
107 Ohio St. 3d 347, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-ex-rel-downs-v-panioto-ohio-2006.