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Champoir v. Champoir

Court of Appeals of Ohio, Eighth District, Cuyahoga

June 6, 2019

MICHELLE CHAMPOIR, Plaintiff-Appellant,
v.
DOUGLAS CHAMPOIR, Defendant-Appellee.

          Civil Appeal from the Cuyahoga County Court of Common Pleas Domestic Relations Division Case No. DR-06-308972

          Polito, Rodstrom & Burke, L.L.P., and Joseph T. Burke; and Stephen E.S. Daray, for appellant

          Dworken & Bernstein Co., L.P.A., Anna M. Parise, and Lydia Chiro, for appellee.

          JOURNAL ENTRY AND OPINION

          FRANK D. CELEBREZZE, JR., J.

         {¶ 1} Plaintiff-appellant, Michelle Champoir ("appellant"), brings the instant appeal challenging the trial court's ruling granting defendant-appellee's Douglas Champoir ("appellee"), motion to disqualify appellant's counsel. After a thorough review of the record and law, this court reverses the trial court's judgment and remands the matter for further proceedings consistent with this opinion.

         I. Factual and Procedural History

         {¶ 2} Appellant brings the instant appeal from a domestic relations matter, Cuyahoga D.R. No. DR-06-308972. In that action, the parties were divorced in June 2006.

         {¶ 3} On March 16, 2018, appellee filed a motion to modify child support. Appellee sought to modify the trial court's previous support order entered on December 20, 2007. In his motion to modify, appellee asserts that a significant change in circumstances has occurred since the trial court's previous support order. A hearing on appellee's motion to modify child support was scheduled for June 20, 2018.

         {¶ 4} On the morning of the June 20, 2018 hearing, appellee filed his motion to disqualify appellant's counsel, Joseph Burke ("Burke"). It appears from the record that the hearing on appellee's motion to modify was canceled. It also appears from the record that prior to the June 20, 2018 hearing, on Monday, June 18, 2018, appellee's counsel sent Burke an email requesting that he voluntarily withdraw from the matter on the basis that appellee may call Burke as a witness to testify in support of his motion to modify. Burke responded and declined to withdraw from the matter.

         {¶ 5} In his motion to disqualify, appellee sought to have Burke disqualified on the same basis - that appellee may call Burke as a witness. In his motion to modify, appellee is seeking a downward deviation in his monthly child support order and anticipates calling Burke to testify as to appellant's and Burke's shared living expenses. Burke is married to appellant, and the couple have been married for ten years.

         {¶ 6} On June 28, 2018, appellant filed a brief in opposition to appellee's motion to disqualify. On September 24, 2018, in an effort to expedite the trial court's ruling on the motion to disqualify, appellee filed a "motion for order" on his previously filed motion to disqualify. Thereafter, the trial court issued a judgment entry on October 2, 2018, granting appellee's motion to disqualify. It appears from the record that the trial court did not hold a hearing on the motion to disqualify.

         {¶ 7} In its October 2, 2018 judgment entry granting appellee's motion to disqualify, the trial court concluded that Burke was a necessary witness and therefore subject to disqualification under Prof.Cond.R. 3.7.

         {¶ 8} It is from the October 2, 2018 judgment entry that appellant brings the instant appeal, assigning two errors for our review.

         I. The trial court erred by disqualifying [Burke].

         II. The trial court erred by disqualifying [Burke's law firm].

         II. Law and Analysis

         A. Final, Appealable Order

         {¶ 9} As an initial matter, appellee argues that the trial court's judgment entry granting his motion to disqualify is not a final, appealable order, and thus, argues that this court does not have jurisdiction over the instant appeal.

         {¶ 10} Ohio's courts of appeals have jurisdiction "to review and affirm, modify, or reverse final orders." Ohio Constitution, Article IV, Section 3(B)(2). However, the Ohio Supreme Court long ago addressed this precise issue and "held that a decision granting a motion to disqualify opposing counsel is a final, appealable order that a party deprived of counsel can appeal immediately." (Emphasis sic.) Wilhelm-Kissinger v. Kissinger,129 Ohio St.3d 90, 2011-Ohio-2317, 950 N.E.2d 516, ¶ 8, citing Russell v. Mercy Hosp.,15 Ohio St.3d 37, 39, 472 N.E.2d 695 (1984). The Ohio Supreme Court more specifically added that ...


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