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State ex rel. Messer v. Colaluca

Court of Appeals of Ohio, Eighth District

September 10, 2013

STATE OF OHIO, EX REL., BILL JOSEPH MESSER RELATOR
v.
JUDGE JANET RATH COLALUCA, ET AL. RESPONDENTS

Writ of Mandamus and Prohibition Motion No. 465879 Order No. 467432

ATTORNEY FOR RELATOR Lori A. Zocolo Abel & Zocolo Co., L.P.A.

ATTORNEYS FOR RESPONDENTS William D. Mason Cuyahoga County Prosecutor Charles E. Hannan, Jr. David Lambert Assistant County Prosecutors.

JOURNAL ENTRY AND OPINION

JUDGE MARY EILEEN KILBANE, JUDGE

(¶ 1} Bill Joseph Messer filed a complaint for a writ of prohibition and a writ of mandamus. Messer seeks an order from this court that prevents Judge Janet Rath Colaluca and Magistrate Sharon A. Echols ("herein after collectively referred to as the trial court") from exercising jurisdiction in Messer v. Messer (n.k.a. Gretchen Agnes Rensi), Cuyahoga Domestic Relations No. DR-332953. Messer argues that the trial court patently and unambiguously has lost jurisdiction to decide parental custody issues. Messer also seeks a writ of mandamus to compel the trial court to vacate an order journalized on March 25, 2013, that sua sponte vacated a prior order of dismissal. The trial court filed a motion to dismiss, which we grant for the following reasons.

Facts

(¶2} On September 29, 2011, a final decree of divorce was granted to Messer and Rensi. On April 16, 2012, Rensi filed a motion to reappoint a guardian ad litem for the sole child and a motion to modify the parties' shared parenting plan to sole legal custody. On December 14, 2012, Messer filed a motion to dismiss Rensi's motions. On March 13, 2013, the trial court granted Messer's motion to dismiss and held that:

The matter came before the court upon Plaintiff Bill Messer's Motion to Dismiss #345481, filed January 31, 2013. Plaintiff asks that Defendant Gretchen Rensi's parenting motions be dismissed because this court has no jurisdiction pursuant to R.C. 3127.21.
For good cause shown, the court finds that Plaintiffs motion is hereby GRANTED.

Costs adjudged against the parties equally.

(¶ 3} On March 25, 2013, the trial court sua sponte vacated its order of March 13, 2013, and held that:

Upon the Court's own motion, the Judgment Entry, filed March 13, 2013, is hereby vacated and set aside.
It is therefore ordered that all pending motions are hereby reinstated. Costs adjudged ...

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