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Davis v. Paige

December 8, 2008

JANAE DAVIS (PAIGE) PLAINTIFF-APPELLEE
v.
DEREK PAIGE DEFENDANT-APPELLANT



CHARACTER OF PROCEEDING: Civil Appeal From Stark County Court Of Common Pleas, Domestic Relations Division, Case No. 2004 DR 00675.

The opinion of the court was delivered by: Edwards, J.

JUDGES: W. Scott Gwin, P.J., John W. Wise, J., Julie A. Edwards, J.

OPINION

JUDGMENT: Dismissed In Part, Affirmed In Part

{¶1} Appellant, Derek Paige, appeals the trial court's denial of his motion to vacate the trial court's judgment entry of involuntary dismissal entered on September 11, 2006, and the trial court's judgment entry vacating appellant's "agreed" entry filed on January 16, 2007. Appellee is Janae Paige.

STATEMENT OF FACTS AND CASE

{¶2} On May 17, 2004, appellee, Janae Paige, filed a complaint for divorce against appellant, Derek Paige. On July 12, 2004, a Final Divorce Decree was filed which incorporated a separation agreement. The separation agreement designated appellee as the primary residential parent of the parties' minor child, Jadyn Paige, with liberal visitation granted to the appellant.

{¶3} On August 19, 2005, appellant, by and through counsel, Attorney Agatha Martin Williams filed a motion to modify parental rights.

{¶4} On July 27, 2006, the parties appeared before Magistrate Hall on appellant's motion for modification of parental rights. During the hearing, the parties read an agreement into the record. On July 28, 2006, the magistrate issued a written order requiring the parties to submit and file an agreed entry within fourteen days. Neither party filed an agreed entry.

{¶5} As the result of the failure to file an agreed entry, on September 11, 2006, by sua sponte Judgment Entry, the court dismissed the motion for failure to prosecute. In the entry the court stated, "All pending motions before this Court are hereby dismissed for want of prosecution. Deposit ordered applied. No record. CC [:] Attorney M. Boske, Attorney A. Williams." (See Judgment Entry filed September 11, 2006). The trial court docket indicated that a copy of the judgment entry of dismissal was served on the attorneys by placement in their "interoffice box." This dismissal entry was signed by Judge Stucki.

{¶6} Thereafter, more than a month later, on October 19, 2006, appellant filed an "Agreed Judgment Entry". The caption of the agreed entry improperly listed Judge Howard as being the assigned judge.*fn1 As a result, Judge Howard was presented with, and signed, the agreed entry. The "approved by" portion of the entry was blank i.e. the attorney for appellee had not signed on the approval line of the agreed entry.

{¶7} On December 18, 2006, appellee filed a Motion for Relief from Judgment. In the motion, the appellee argued that the "agreed" entry did not accurately reflect the July 27, 2006, agreement of the parties. Appellee also argued that the judgment had been improperly signed by Judge Howard when the case had been assigned to Judge Stucki. Finally, appellee argued that the "agreed" entry was void because the matter had been dismissed on September 11, 2006, for want of prosecution.

{¶8} On January 16, 2007, the trial court held a hearing on appellee's motion for relief from judgment. The hearing was held before Judge Stucki. In the written motion, appellee's proof of service stated that the motion for relief from judgment and hearing date had been served upon the appellant's counsel, Agatha Martin Williams. Attorney Agatha Martin Williams was not present at the hearing.

{¶9} During the hearing, the court stated that, since the agreed judgment was submitted after the case was closed, it was a nullity. The court further stated, "So I guess I technically *** don't need a Motion for Relief but for clarity I'm saying that the Motion for Relief is sustained ***." (Transcript of hearing on January 16, 2007, at pages 4-5). By judgment entry, the court further held that the defendant could petition the court for visitation as may be needed if done properly by motion.

{¶10} On May 25, 2007, appellant filed the following motion; "DEFENDANT'S MOTION FOR RELIEF FROM JUDGMENT DATED September 11, 2006 & January 16, 2007 UNDER CIVIL RULE 60(B)." In the motion, appellant stated that in April of 2007, appellant's counsel discovered that appellant's Motion for Modification had been dismissed by the trial court for want of prosecution on September 11, 2006, and that, upon motion of appellee, the trial court had vacated the appellant's "agreed" entry on January 16, 2007. Appellant's counsel argued that neither she nor her client had been served with the September 11, 2006, judgment entry of dismissal or with appellee's December 18, 2006, motion for relief from judgment. Counsel further argued that she had not been notified that the Motion for Modification would be dismissed for want of prosecution if the agreed entry was not filed within fourteen days. Supporting affidavits of both Attorney Williams and the appellant were filed with the motion for relief from judgment.

{¶11} On August 13, 2007, the parties appeared for a hearing before a magistrate on appellant's motion for relief from the trial court's judgments which had been issued on September 11, 2006, and January 16, 2007.

{¶12} On August 13, 2007, by judgment entry, the trial court held as follows: "The court has had an opportunity to review this entire matter including the transcripts of proceedings from the July 27, 2006 hearing. The def's 5-25-7 Motion for Relief is OVERRULED."*fn2

{¶13} It is from the August 13, 2007, denial of the motion to vacate the September 11, 2006, and January 16, 2007, entries of the court that appellant now seeks to appeal setting forth the following assignments of error:

{ΒΆ14} "I. THE TRIAL COURT ABUSED ITS DISCRETION BY DISMISSING THE DEFENDANT-APPELLANT'S CASE WITHOUT NOTICE TO THE PARTIES DENYING HIS ...


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