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Witherspoon v. Witherspoon

Court of Appeals of Ohio, Ninth District, Lorain

June 12, 2017

CHRISTOPHER M. WITHERSPOON Appellee
v.
TERRA R. WITHERSPOON Appellant

         APPEAL FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF LORAIN, OHIO CASE No. 11DU073985

          APPEARANCES: BRENT L. ENGLISH, Attorney at Law, for Appellant.

          PATRICK D. RILEY, Attorney at Law, for Appellee.

          DECISION AND JOURNAL ENTRY

          HENSAL, Judge.

         {¶1} Defendant-Appellant, Terra Witherspoon, appeals from the judgment of the Lorain County Court of Common Pleas, Domestic Relations Division, denying her motion for relief from judgment. For the following reasons, this Court affirms.

         I.

         {¶2} Plaintiff-Appellee, Christopher Witherspoon ("Husband"), filed for divorce from Defendant-Appellant, Terra Witherspoon ("Wife"), in 2011. Wife obtained counsel and filed an answer and counterclaim. Wife's counsel subsequently withdrew from representation in August 2012, and Wife proceeded pro se.

         {¶3} On January 9, 2013, the parties attended a hearing before the magistrate. The magistrate's journal entry indicates that both parties were present, and reported that all disputed issues had been resolved. The magistrate, therefore, set the case for an uncontested final hearing on January 30, 2013. The order is signed by both parties. Husband's counsel subsequently moved to continue the uncontested final hearing, which the trial court granted, and rescheduled the hearing for February 20, 2013. The hearing was further continued until March 6, 2013.

         {¶4} The journal entry from the March 6, 2013, hearing indicates that the parties failed to reach an agreement, so the magistrate set the matter for trial in May 2013, and scheduled a settlement conference for April 2, and a final pretrial for April 26. The order purports to be signed by both parties. According to Wife, however, she did not attend the March 6 hearing because she never received notice of it, and the signature that appears on the related journal entry is not authentic.

         {¶5} Wife did not attend the settlement conference on April 2, 2013, nor did she file a settlement conference statement. The court, therefore, set the matter for an uncontested final hearing, which Wife also did not attend. As a result, the magistrate granted Husband a divorce and dismissed Wife's counterclaim for lack of prosecution. Husband waived his right to service of the magistrate's decision, as well as his right to file objections. The court then issued its judgment entry of divorce on April 29, 2013. On August 21, 2013, the trial court - on its own initiative under Civil Rule 60(A) - issued a nunc pro tunc journal entry correcting a number of errors contained in its original judgment entry of divorce.

         {¶6} According to Wife, she contacted the court in September 2013 to obtain a status update on the case and was informed that the case was closed. She asserts that she was never served with a copy of the original judgment entry of divorce, nor the subsequent nunc pro tunc entry, and that the clerk of courts told her that the court did not have her correct address. She then filed a change of address with the clerk, and obtained a copy of the original judgment entry of divorce.

         {¶7} Wife retained counsel in April 2014, who assisted her with several post-decree matters. That attorney withdrew from representation in September 2014. Wife then retained new counsel in October 2014, and in November 2014, Wife filed a motion for relief from judgment from the divorce decree journalized in April 2013, and the subsequent nunc pro tunc entry journalized in August, 2013. In support of her motion, Wife argued that she did not attend the March 6, 2013, hearing or subsequent court dates because she never received notice of them, and that the trial court sent several notices to the wrong address. She further argued that: (1) the April 2013 divorce decree was final, but not appealable, because it failed to contain the required endorsement under Rule 58(B) (i.e., a direction to the clerk to serve all parties not in default for failure to appear notice of the judgment and its date of entry upon the journal), and she was never served with a copy; (2) the trial court's nunc pro tunc entry made substantive changes, thus violating Rule 60(A); (3) the trial court's nunc pro tunc entry did not comply with Rule 58(B), and she was never served with a copy; (4) the trial court's nunc pro tunc entry was based upon ex parte communications with Husband, who perpetrated a fraud on the trial court by claiming to be the father of both of Wife's children; and (5) she never waived her right to service of the magistrate's decision nor her right to file objections to same.

         {¶8} The trial court held a hearing and denied Wife's motion, finding, in part, that: (1) her contention that she was not present for the March 6, 2013, hearing was not supported by the weight of the evidence; (2) she was notified that the January 30, 2013, hearing was continued until March 6, 2013; (3) she appeared in court on March 6, 2013, and signed the journal entry, which set forth two new hearing dates and times (i.e., the settlement conference on April 2, 2013, and the final pretrial on April 26, 2013); (4) she did not attend the settlement conference, and the April 26, 2013, final pretrial proceeded as an uncontested final hearing; (5) she did not attend the uncontested final hearing despite being duly notified; and (6) her testimony lacked credibility. The trial court did not address Wife's argument regarding its alleged failure to comply with Rule 58(B), among other arguments.

         {¶9} Wife now appeals the denial of her motion for relief from judgment, presenting ...


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