MELISSA M. SCHMITT Appellee
SHAINE WARD Appellant
FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF
SUMMIT, OHIO CASE No. 2007-07-2217
J. CIMINO, Attorney at Law, for Appellant.
S. GRASKE, Attorney at Law, for Appellee.
DECISION AND JOURNAL ENTRY
JENNIFER HENSAL JUDGE.
Shaine Ward appeals an order of the Summit County Court of
Common Pleas, Domestic Relations Division, that granted his
motion for continuance with conditions. For the following
reasons, this Court affirms.
Shaine Ward and Melissa Schmitt married in 2005 and divorced
in 2012. The decree directed Mr. Ward to make all of the
payments on a loan that the parties had co-signed. In June
2015, Ms. Schmitt moved for a receiver to take control of the
property that secured the loan, alleging that Mr. Ward had
not been making any payments on the loan. The trial court set
a hearing on her motion, but later continued it because the
action had been appealed. In April 2016, the court set a
hearing for June 27, 2016, to discuss all of the issues
pending before the court. Mr. Ward moved to continue the
hearing because the appeal was still pending. The court next
set a hearing for July 27, 2016, but Mr. Ward moved to
continue it because he was going to be out of the country.
Ms. Schmitt responded to his motion for continuance the next
day. In her response, Ms. Schmitt noted that her motion for
receiver had been pending for a year and alleged that Mr.
Ward still had not been making payments on the loan. She,
therefore, requested that the court order Mr. Ward to escrow
the rental income he was receiving from the mortgaged
property. The trial court subsequently granted Mr. Ward's
motion for continuance on the condition that he deposit the
rental proceeds from the mortgaged property into his
attorney's IOLTA account, as Ms. Schmitt had requested.
Mr. Ward has appealed the court's order, assigning two
OF ERROR I
COURT ERRED IN SIGNING THE JOURNAL ENTRY OF JULY 8, 2016
REGARDING THE DEPOSITING OF RENTAL MONIES FROM THE RANCH ROAD
PROPERTIES INTO THE DEFENDANT-APPELLANT'S ATTORNEY'S
IOLTA ACCOUNT WHEN NO NOTICE WAS PROVIDED TO OPPOSING COUNSEL
AND A REASONABLE TIME TO RESPOND.
Mr. Ward argues that the trial court incorrectly ordered him
to place the rental proceeds into escrow because Ms. Schmitt
did not make a formal motion requesting such relief under
Civil Rule 7(B) or serve him with such a motion. He alleges
that it is possible that Ms. Schmitt made an ex parte motion
when she was before the court on another matter the same day
that the court entered its order, but argues that an ex parte
order would have been improper as well. He further argues
that he did not receive notice of the gathering that took
place on the day the court entered its order.
Rule 7(B)(1) provides in relevant part that "[a]n
application to the court for an order shall be by motion
which, unless made during a hearing or a trial, shall be made
in writing. A motion, whether written or oral, shall state
with particularity the grounds therefor, and shall set forth
the relief or order sought." In her response to Mr.
Ward's motion, Ms. Schmitt "requested] that this
Court schedule this matter for a hearing prior to the current
(rescheduled) date or, in the alternative, that this Court
order Shaine Ward to deposit all proceeds of rental from the
Ranch Road properties with his attorney * * *."
"[T]he name given to a pleading or motion is not
controlling. It is the substance and not the caption that
determines [its] operative effect * * *." Lungard v.
Bertram, 86 Ohio App. 392, 395 (1st Dist.1949). Although
Ms. Schmitt did not caption her response as a motion, she
requested specific relief and stated with particularity the
grounds for her request. The trial court, therefore, did not
err when it construed her response as a motion under Rule
7(B)(1). See Cooke v. United Dairy Farmers, Inc.,
10th Dist. Franklin No. 05AP-1307, 2006-Ohio-4365, ¶
28-29 (concluding that "Notice of Opinion"
satisfied the requirements of Civ.R. 7(B)(1)).
Regarding whether Ms. Schmitt properly served her motion, her
response contained a certificate of service, indicating that
she sent a copy of it to Mr. Ward's attorney by
electronic mail. Mr. Ward ...