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State of Ohio v. Carrie A. Wivell

November 2, 2011

STATE OF OHIO APPELLANT
v.
CARRIE A. WIVELL APPELLEE



APPEAL FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF SUMMIT, OHIO CASE No. 2009-02-0420

The opinion of the court was delivered by: Whitmore, Judge.

Cite as

Pla v. Wivell,

DECISION AND JOURNAL ENTRY

{¶1} Plaintiff-Appellant, Frank Pla ("Father"), appeals from the decision of the Summit County Court of Common Pleas, Domestic Relations Division, denying his motion to set aside a magistrate's order. This Court reverses.

I

{¶2} On February 11, 2009, Father filed a complaint against Carrie Ann Wivell ("Mother") to establish a parent child relationship with their only daughter, born February 10, 2009. The court initially awarded emergency temporary custody to Father, but later awarded emergency custody to Mother. A custody battle ensued wherein both parties accused each other of drug abuse, domestic violence, and an inability to care for their child. The court held a hearing on May 14, 2009 after Father challenged its decision to give Mother temporary custody. One of the witnesses to testify at the hearing was Attorney Jorge Pla, Father's brother. The trial court ultimately determined that Father's witnesses, including Pla, were "obviously biased" against Mother and that temporary custody of the child should remain with Mother.

{¶3} In June 2010, Pla entered a notice of appearance to act as Father's counsel, along with another attorney from his law firm. In early October 2010, Mother's counsel of record withdrew. Mother then filed a pro se motion to have Pla removed as Father's attorney due to a conflict of interest. Father moved to strike Mother's motion on the basis that she failed to serve the motion, pursuant to Civ.R. 5. He also filed a memorandum in opposition to Mother's motion to disqualify, addressing the merits of her motion. Mother responded to Father's motion, but never corrected the defect in service. Father later filed another motion to strike, requesting that the court strike Mother's motion and response as she never perfected service upon him.

{¶4} On December 6, 2010, a magistrate issued an order, pursuant to Civ.R. 53(D)(2), granting Mother's motion to disqualify Pla as Father's counsel. Father filed a motion to set aside the magistrate's order. Subsequently, the parties signed an agreed order, which named Father the custodial parent and set forth a visitation schedule. On January 5, 2011, the trial court denied Father's motion to set aside the magistrate's order. Specifically, the court overruled Father's objections to the order and dismissed them as moot, given that the parties had filed an agreed entry resolving all the pending issues.

{¶5} Father now appeals, challenging the decision to disqualify his counsel. He raises four assignments of error for our review. For ease of analysis, we rearrange and consolidate several of the assignments of error.

II

Assignment of Error Number Four

"THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION WHEN IT OVERRULED AND DIMISSED (sic) ATTORNEY JORGE LUIS PLA'S OBJECTIONS TO DISQUALIFICATION AS MOOT."

{ΒΆ6} In his fourth assignment of error, Father argues that the trial court erred by determining that his objections to Pla's ...


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