State ex rel. M.D. v. Cuyahoga Cty. Court of Common Pleas, Div. of Domestic Relations

2021 Ohio 4171

• Court: Ohio Court of Appeals
• Decided: November 23, 2021
• Docket: 110720
• Status: Published

Opinion

[Cite as State ex rel. M.D. v. Cuyahoga Cty. Court of Common Pleas, Div. of Domestic Relations, 2021-Ohio- 4171.]

COURT OF APPEALS OF OHIO

EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

STATE OF OHIO, EX REL., M.D., :

Relator, : No. 110720 v. :

CUYAHOGA COUNTY COURT OF COMMON PLEAS, DIVISION OF DOMESTIC RELATIONS, :

Respondent. :

JOURNAL ENTRY AND OPINION

JUDGMENT: WRIT DISMISSED DATED: November 23, 2021

Writ of Procedendo Motion Nos. 549111 and 549153 Order No. 550568

Appearances:

Zukerman, Lear & Murray Co. LPA, Larry W. Zukerman, and Brian A. Murray, for relator.

Michael C. O’Malley, Cuyahoga County Prosecuting Attorney, and Nora E. Poore, Assistant Prosecuting Attorney, for respondent.

Stafford Law Co., L.P.A., Joseph C. Stafford, and Nicole A. Cruz, for intervening respondent. EMANUELLA D. GROVES, J.:

On August 6, 2021, the relator, M.D., who is the husband in the

underlying Domestic Relations Court cases, commenced this procedendo action

against the respondent, the Cuyahoga County Common Pleas Court, Division of

Domestic Relations. He seeks to compel the respondent (1) to proceed in the

Domestic Violence Civil Protection Order case (“DVCPO”) with any of the available

magistrates; (2) to rule on the May 28, 2021 motion to dismiss the wife’s petition for

a DVCPO; (3) to conduct a full hearing in the DVCPO and rule on all other

outstanding motions in that case, if the motion to dismiss is denied; (4) to proceed

in the divorce and child custody case; and (5) to rule on the June 26, 2020 motion

to reinstate parenting time and on the July 21, 2020 emergency motion for

temporary possession of the minor children pending trial.

On September 9, 2021, the respondent court filed a motion to dismiss,

and the husband filed his brief in opposition on September 16. On September 17,

2021, this court granted the wife, M.A.D., leave to intervene as a respondent, and

accepted her motion to dismiss. The respondent court filed its reply brief on

September 23. The husband filed his brief in opposition to the wife’s motion to

dismiss on October 5, and the wife filed her reply brief on October 12, 2021. The

court has reviewed all of the filings, and this case is ripe for resolution.

FACTUAL AND PROCEDURAL BACKGROUND

The underlying cases have a long and tortuous procedural posture.

The husband and the wife were married in 1998, and had two children, one born in 2006 and the other in 2010. Because of job demands, the husband lived in Texas,

and the wife with the children lived in Solon, Ohio. The husband would visit his

family in Ohio approximately twice a month.

On May 31, 2017, the wife commenced the underlying cases: (1) the

divorce case, M.A.D. v. M.D., Cuyahoga D.R. No. DR-17-367298; and (2) the

DVCPO, M.A.D. v. M.D., Cuyahoga D.R. No. DV-17-367300. At the protection order

hearing on August 21, 2017, the wife testified that the husband was an angry and

controlling person who stalked her and once threatened to kill her. The magistrate

granted the civil protection order for the wife and the two children, effective for one

year until August 24, 2018. The husband filed objections to the magistrate’s report,

which the initial judge1 upheld and vacated the civil protection order. The trial judge

reasoned that the magistrate did not allow the husband sufficient time for cross-

examination and that the facts presented did not support the issuance of a

protection order. The wife appealed. This court reversed and remanded for a new

full hearing. M.D. v. M.D., 8th Dist. Cuyahoga Nos. 106581 and 106758, 2018-Ohio-

4218.

While the DVCPO was pending on appeal and the parties were

litigating the divorce case, the initial judge recused herself on September 4, 2018.

The next day, three more judges recused themselves. Thus, the only remaining

1 The Domestic Relations Division has five judges. judge in the Domestic Relations Division was assigned to the case. During the

contentious litigation, this judge also recused herself on July 22, 2020.

On July 31, 2020, the Supreme Court of Ohio assigned another judge

to the cases. On October 6, 2020, this judge issued an order noting that there were

approximately 100 pending motions in the cases and that the parties were to submit

an agreed judgment entry enumerating those pending motions that are moot. He

also appointed a mediator in the case. This order apparently removed only a few

motions from consideration. On May 25, 2021, this judge recused himself from the

cases because they required more time than he was able to devote to them.

While awaiting the Supreme Court of Ohio to appoint a new judge,

the husband filed the instant procedendo action. On August 20, 2021, the Supreme

Court of Ohio assigned a second judge, who on September 8, 2021, set an in-person

attorney conference for November 3, 2021. The docket in the DVCPO shows that

the case has been set for an in-person trial for August 1-5, 2022.

DISCUSSION OF LAW

The writ of procedendo is merely an order from a court of superior

jurisdiction to one of inferior jurisdiction to proceed to judgment. Yee v. Erie Cty.

Sheriff’s Dept., 51 Ohio St.3d 43, 553 N.E.2d 1354 (1990). Procedendo is

appropriate when a court has either refused to render judgment or has unnecessarily

delayed proceeding to judgment. State ex rel. Watkins v. Eighth Dist. Court of

Appeals, 82 Ohio St.3d 532, 1998-Ohio-190, 696 N.E.2d 1079. However, the writ

will not issue to control what the judgment should be, nor will it issue for the purpose of controlling or interfering with ordinary court procedure. Thus, procedendo will

not lie to control the exercise of judicial discretion. Moreover, it will not issue when

there is an adequate remedy at law. State ex rel. Hansen v. Reed, 63 Ohio St.3d 597,

589 N.E.2d 1324 (1992).

The husband argues that these cases have been pending for more than

four years, that there are numerous motions that have not been resolved, that he has

not been able to visit his children during these four years, that he still faces the

domestic violence accusation despite the time of the original order has long since

lapsed, and that the wife is using delay tactics to extort a more favorable divorce

settlement from him. Accordingly, this court should end the injustice of delay and

issue the writ of procedendo.

The determining factors in this case are that six judges have recused

themselves from this intensely litigated matter and a new judge has been recently

assigned. This new judge has conducted an attorney conference and has set a trial

date for one of the cases. Thus, the respondent is not refusing to proceed to

judgment or unnecessarily delaying proceeding to judgment. To issue a writ of

procedendo to compel the newly appointed judge to move more rapidly on the cases

would be to control the discretion of the judge in handling the cases, and procedendo

may not be used for that purpose. Glass v. Terry, 8th Dist. Cuyahoga No. 91704,

2008-Ohio-3347, and State ex rel. D.H. v. Capizzi, 2d Dist. Montgomery No. 27068,

2016-Ohio-5268. Thus, the husband has failed to state a claim for procedendo. Accordingly, this court grants the motions to dismiss and dismisses

this application for a writ of procedendo. Relator to pay costs. The court instructs

the clerk to serve upon the parties notice of this judgment and its date of entry upon

the journal. Civ.R. 58(B).

Writ dismissed.

_______________________________ EMANUELLA D. GROVES, JUDGE

MICHELLE J. SHEEHAN, P.J., and LISA B. FORBES, J., CONCUR