Walters v. Walters , 2013 Ohio 2554 ( 2013 )

[Cite as Walters v. Walters, 2013-Ohio-2554.]
STATE OF OHIO, JEFFERSON COUNTY
IN THE COURT OF APPEALS
SEVENTH DISTRICT
VERONICA WALTERS nka )
WILSON, et al., ) CASE NO. 12 JE 17
)
PLAINTIFFS-APPELLEES, )
)
VS. ) OPINION
)
RAYMOND WALTERS, )
)
DEFENDANT-APPELLANT. )
CHARACTER OF PROCEEDINGS: Civil Appeal from Common Pleas Court,
Case No. 89DR346.
JUDGMENT: Affirmed.
APPEARANCES:
For Plaintiffs-Appellees: Attorney Mary Corabi
424 Market Street
Steubenville, Ohio 43952
(For Veronica Walters nka Wilson)
Attorney M. Catherine Savage-Dylewski
16001 State Route 7
Steubenville, Ohio 43952
(For CSEA)
For Defendant-Appellant: Attorney Lydia Spragin
331 South 4th Street
Steubenville, Ohio 43952
JUDGES:
Hon. Joseph J. Vukovich
Hon. Gene Donofrio
Hon. Cheryl L. Waite
Dated: June 17, 2013
[Cite as Walters v. Walters, 2013-Ohio-2554.]
VUKOVICH, J.
{¶1} Defendant-appellant Raymond Walters appeals the decision of the
Jefferson County Common Pleas Court, which issued an order relative to his child
support arrearage prohibiting him from any voluntary act or omission tending to
diminish any property, benefit or value coming to him from any source, including
benefits that may come due to him through the estate of his mother, his mother’s
prior employer, or the Social Security Administration. The court also ordered him to
deliver to appellee Child Support Enforcement Agency (“CSEA”) all things of value
received from or through the estate of his mother or from his mother’s employer.
{¶2} Appellant contends that the domestic relations court did not have the
authority to issue such an order for various reasons. He also contends that the order
improperly interferes with his ability to act as administrator of his mother’s estate by
ordering him to deliver all things of value to CSEA. Appellant additionally alleges that
a caseworker’s testimony contained inadmissible hearsay. Finally, he complains that
the judge who signed the amended ex parte restraining order had previously
disqualified himself from the case. For the following reasons, appellant’s
assignments of error are overruled, and the judgment of the trial court is affirmed.
STATEMENT OF THE CASE
{¶3} Appellee Veronica Wilson (“the obligee”) was granted a divorce from
appellant Raymond Walters in 1989. She received custody of the parties’ two
children. No child support order was initially entered due to appellant’s
unemployment. In 1991, a child support order in the amount of $534.71 per month
began but was suspended in 1992 when appellant lost his job. At that time, the court
ordered appellant to seek work and to immediately provide notice of employment to
CSEA.
{¶4} Nothing further occurred in the case until 1997, when appellant
reportedly telephoned from Saudi Arabia to report new employment but then failed to
respond to further requests for information from CSEA. Said agency then filed a
motion asking that the prior child support order be reactivated and a motion for
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contempt. Due to the inability to serve appellant, the cause was not heard until
December of 2003.
{¶5} Thereafter, a child support order was issued in the amount of $401.76
per month beginning June 30, 1997 and increasing to $460.71 per month on May 13,
2003. Appellant was ordered to pay $92 per month toward his arrearage. A warrant
was also issued for his arrest on the contempt charge. Upon the graduation of the
oldest child, appellant’s child support obligation was reduced to $230.36 per month in
mid-2005. At that time, CSEA filed another motion for contempt and a motion for
judgment on the arrears.
{¶6} On October 5, 2005, a judgment was entered on the arrearage of
$40,318.47. The court also found appellant in contempt and sentenced him to thirty
days in jail with twenty days suspended upon the condition that he make his support
payments. This order noted that appellant was required to report all sources of
income and ownership of all assets including any inheritance over $500. As he did
not reliably make his support payments, he was later ordered to complete the
suspended twenty days in jail. When the second child graduated in 2006, appellant’s
current support was terminated, and his monthly payments were redirected toward
the arrearage.
{¶7} On December 28, 2011, appellant filed a motion to modify his arrearage
payments, stating that he had become permanently disabled and that his sole source
of income was $777 per month in Social Security Disability payments. The court held
an evidentiary hearing on this motion. In a May 14, 2012 judgment entry, the court
modified his monthly payment toward the arrearage from $783.21 per month to
$130.16 per month.
{¶8} In the meantime, appellant opened a probate claim and successfully
sought to be appointed administrator of his mother’s estate. Appellant’s mother had
died, leaving appellant and two brothers as next of kin. On May 1, 2012, a CSEA
caseworker overheard appellant in the hallway of the courthouse yelling that CSEA
should not be able to collect his inheritance and instructing the estate’s attorney to
put everything in his brother’s name. That attorney then mentioned on the record to
the probate court that there was a possibility that appellant would renounce his
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interest in the estate. When CSEA asked the probate court for assistance in
collecting the arrearage, the probate court advised that it would leave the matter to
the domestic relations court.
{¶9} That same day, CSEA filed a motion with the domestic relations court
asking for an ex parte restraining order and a permanent injunction to prohibit
appellant from transferring his interest in his mother’s estate and to require him to
apply his inheritance toward his arrearage. An ex parte order was entered on May 1,
2012, prohibiting appellant from renouncing any interest in his mother’s estate,
pending a full hearing on the matter.
{¶10} An amended motion was filed the next day adding some details and
further asking that appellant be restrained from foregoing his right to receive fees as
the administrator of the estate. The court granted the amended motion for an ex
parte restraining order on May 2, 2012, adding that appellant was also temporarily
enjoined from foregoing payment for acting as administrator.
{¶11} The evidentiary hearing was held on May 14, 2012. The CSEA
caseworker testified that, while she was outside of the courtroom waiting for the
probate hearing, she saw appellant speaking to the estate’s attorney in a very loud
manner. She disclosed that appellant was swearing at the attorney and saying that
CSEA should not be permitted to take his inheritance. She testified that appellant
mentioned putting the inheritance in his brother’s name and making sure that
everything was out of his name so CSEA would have nothing to take from him. (Tr.
25).
{¶12} Appellant testified that he had a problem with the court prohibiting him
from renouncing any interest in the estate because it sounds “strange.” (Tr. 54). He
stated that the obligee and his brother were “conspiring to do what they can do to
help this court steal out estate matters from myself.” (Tr. 55). But, he then said that
he had no problem with the estate assets being distributed to pay off his arrearage.
(Tr. 56). He claimed that he never talked about renouncing his interest as testified to
by the caseworker and that he had never even discussed it as an option. (Tr. 56-58).
He did acknowledge, however, that the estate’s attorney mentioned it on the record
at the probate hearing. (Tr. 58).
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{¶13} The obligee testified that appellant told her that he did not owe her
anything “and he wanted me just to not accept the child support order, to say I don’t
want any claim to it.” He insisted that she was not entitled to any part of his mother’s
estate. (Tr. 61). Even before his mother died, he told the obligee that he would do
anything so she would not get an interest in his mother’s house, once saying he
would burn it down. (Tr. 62).
{¶14} On May 25, 2012, the domestic relations court entered an “Order
Relative to Arrearages.” The court found that a substantial child support arrearage
existed in the case and that appellant was likely to engage in conduct that would
diminish his ability to pay. The court stated that it appeared appellant was in the
process of renouncing his interest in his mother’s estate and that he was thus also
likely to block any interest in benefits from his mother’s former employer. The court
then prohibited appellant “from any voluntary act or omission tending to diminish any
property, benefit or value coming to him from any source.” The court specified that
this included benefits that may come due through his mother’s estate, his mother’s
prior employer, Social Security, or any other source.
{¶15} The court also ordered appellant to notify CSEA within 24 hours of
learning of any benefit to which he is entitled. Lastly, the court ordered appellant to
deliver to CSEA all things of value received from or through the estate or his mother’s
employer in the form in which it was received (explaining that if he received a check,
he should deliver it in that form without cashing it first). The court explained that any
violation of the order would be deemed contempt of court and could negate any
“inability to pay” defense.
{¶16} Appellant filed a motion for reconsideration of this order, which was
overruled on June 18, 2012. Appellant filed a notice of appeal on Monday, June 25,
2012, which purported to appeal both the May 25, 2012 order relative to arrearages
and the June 18, 2012 denial of reconsideration. We note here that a motion to
reconsider a final appealable order is a nullity. See Pitts v. Dept. of Transp., 67 Ohio
St.2d 378, 379, 381, 423 N.E.2d 1105 (1981) (motion is a nullity as are all judgments
stemming from that motion).
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{¶17} In any event, appellant’s brief does not actually assign errors related to
the denial of his motion for reconsideration. Rather, his appellate arguments focus
on the May 25, 2012 order relative to arrearages and events occurring prior thereto.
Appellant sets forth six assignments of error, which are paraphrased infra as a direct
quote of the entire text of each assignment would be cumbersome and intrusive to
the flow of the future opinion.
ASSIGNMENT OF ERROR NUMBER ONE
{¶18} Appellant’s first assignment of error contends that the court erred in
restraining him from renouncing his interest in his mother’s estate because no claim
was filed under R.C. 2117.06(A) and thus the claim is barred by the statute of
limitations within R.C. 2117.06(C) because it was not filed within six months of the
decedent’s death.
{¶19} Pursuant to the statute cited here, “All creditors having claims against
an estate, including claims arising out of contract, out of tort, on cognovit notes, or on
judgments, whether due or not due, secured or unsecured, liquidated or unliquidated,
shall present their claims in one of the [listed] manners * * *.” R.C. 2117.06(A). All
claims must be presented within six months of the decedent’s death even if no
administrator or executor is appointed during that period. R.C. 2117.06(B).
{¶20} Except as provided in R.C. 2117.061, a claim that is not presented
within six months of the death shall be forever barred, and no payment shall be made
and no action shall be maintained on the claim, except as provided in R.C. 2117.37
to 2117.42 with reference to contingent claims. R.C. 2117.06(C). As a result of the
reference to exceptions, appellant cites to R.C. 2117.37 and 2117.39 and notes that
these statutes were not followed either.
{¶21} However, as appellees point out, R.C. 2117.06 is inapplicable to this
case. Contrary to appellant’s position, the Travis case he cites is not a case on point
(and is not binding on our court in any event). See Travis v. Thompson, 8th Dist. No.
78384 (June 21, 2001). In that case, the decedent was the child support obligor.
Thus, the child support obligee in that case was a creditor with a claim against the
estate.
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{¶22} The case at bar is wholly distinguishable as the child support obligor is
not the decedent, and appellees are not creditors with a claim against the decedent’s
estate. Appellant is a judgment debtor due to a prior child support arrearage, which
fact is not disputed here. Appellees’ claim is for a restraining order against appellant
in domestic relations court as an individual debtor due to fear that he is attempting to
engage in what they equate with a fraudulent transfer, which topic is discussed where
raised infra. Appellees do not present a claim as a creditor of the estate. As such,
the probate law contained in R.C. 2117.06 has no application here and does not bar
appellees’ request for injunctive relief in the domestic relations division. This
assignment of error is overruled.
ASSIGNMENTS OF ERROR NUMBERS TWO & FIVE
{¶23} Paragraph 3 of the trial court’s order states that appellant: “shall deliver
to CSEA all things of value received from or through the estate of [his mother] or from
[his mother’s employer], in the form in which it was received. In other words, if
Defendant receives a check, he shall deliver the actual check received to CSEA
rather than cash the check and deliver the money.” Appellant’s second assignment
of error contends that this paragraph improperly interferes with his fiduciary duties
owed as administrator of his mother’s estate in the probate court. His fifth
assignment of error claims this paragraph is “overly broad” because it “does not
strictly pertain to what the heir is to do upon actual receipt of any distribution from the
estate.”
{¶24} Appellant cites R.C. 2109.20, which provides that a fiduciary’s duties
are those required by law and any additional duties imposed by the court. The
statute further states that letters of appointment shall not issue until the fiduciary
executes a written acceptance of his duties, acknowledging that he is subject to
removal for failure to perform those duties and that he is subject to penalty for
conversion of property held as a fiduciary. R.C. 2109.20. Appellant then notes that
an administrator’s fiduciary duties include collecting estate assets, paying debts, and
making distributions.
{¶25} He asks how he is to accomplish his duties as administrator if he is to
deliver all things of value received from or through the estate “without some sort of
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paper trail or something which will provide him with the ability to track the monies and
file accurate reports.” (Appellant’s Brief at 13). He then points out that CSEA is not a
fiduciary as to the estate and is not entitled to all things of value as appellant is not
the only beneficiary of the estate.
{¶26} It thus appears appellant is taking issue with the wording of the trial
court’s order, which he believes restricts him from fulfilling his duties as the
administrator and imposes upon CSEA the job of super-administrator. However,
CSEA acknowledges that this is not its function. It is not disputed that if appellant
were to improperly take money from the estate as the administrator without
distributing it through official channels to the heirs, that would be a matter for the
probate court.
{¶27} CSEA urges that the order does not restrict appellant in his capacity as
administrator as he believes but only restricts him in his capacity as an heir. In other
words, the order of the domestic relations court is not attempting to confiscate estate
property prior to distribution but only after distribution to appellant as a beneficiary.
We agree.
{¶28} The order refers to the “Defendant” (not “Defendant, Administrator of
Estate of Walters”). Moreover, it speaks of items of value received by him “from or
through the estate.” This indicates it applies to items distributed to him personally.
The order does not evince an intent to have appellant provide estate assets to CSEA
prior to their distribution to the beneficiaries. Rather, the intent of the order is for
appellant to provide CSEA with things of value that he receives in his personal
capacity as beneficiary or fees payable to him personally for acting as administrator,
not items received in his representative capacity as administrator of the estate, i.e.
items that are not his to keep but items that would be temporarily held by any
administrator of an estate (e.g. a non-beneficiary administrator).
{¶29} That is, if the estate receives a check from a bank for closing the
decedent’s prior account, he can deposit it in the estate’s account as administrator in
order to pay the debts of the estate. However, if the administrator of the estate
issues a check to each beneficiary for their share of the estate, for instance, then
appellant is to provide his check to CSEA without cashing it first. As CSEA suggests,
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if appellant encounters an issue regarding clarity on particular items or acts, he can
seek instruction for each question that arises or he could seek permission to step
down as administrator. This assignment of error is without merit.
ASSIGNMENT OF ERROR NUMBER THREE
{¶30} Appellant’s third assignment of error contends that the probate court
has exclusive jurisdiction over matters involving the renunciation of an interest in an
estate. He also alleges that a right to disclaim can only be barred as provided in R.C.
5815.36. In doing so, he urges that the case of Stein v. Brown, 18 Ohio St.3d 305,
480 N.E.2d 1121 (1985), mentioned to the domestic relations court, is no longer valid
because the statutes involved in that case have been recodified.
{¶31} The statute dealing with disclaimers of succession to property was
previously contained in R.C. 1339.60. In 1999, that statute was amended and
recodified as R.C. 1339.68. In January of 2007, that statute was recodified as R.C.
5815.36. The statute provides that a disclaimant may disclaim, in whole or in part,
the succession to any property by executing and by delivering, filing, or recording a
written disclaimer instrument in the manner provided. R.C. 5815.36(B)(1). Appellant
points out that at the time of the court’s order, it was not too late for him to file a
disclaimer. See R.C. 5815.36(D).
{¶32} Besides requiring a timely filing, the statute also provides that the
disclaimant's right to disclaim under this section is barred if the disclaimant does any
of the following: (1) assigns, conveys, encumbers, pledges, or transfers, or contracts
to assign, convey, encumber, pledge, or transfer, the property or any interest in it; (2)
waives in writing the disclaimant's right to disclaim and executes and delivers, files,
or records the waiver in the manner provided; (3) accepts the property or an interest
in it; or (4) permits or suffers a sale or other disposition of the property pursuant to
judicial action against the disclaimant. R.C. 5815.36(J). See also former R.C.
1339.60(J)(1)-(4) (with identical provisions).
{¶33} Appellant posits that these are the sole means by which he could be
barred from disclaiming his interest in the estate. He concludes that none of these
four statutory bars to disclaimer apply and thus any order barring him from
disclaiming his interest violates this statute.
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{¶34} In Stein, a wrongful death action was filed against a drunk driver who
killed a child. The driver’s brother then died, leaving half of his estate to the driver.
The driver filed a disclaimer of his interest in the estate. The probate court was
asked by the executors to determine the validity of the disclaimer. The child’s mother
was permitted to intervene; she argued that the disclaimer should not be permitted
because it constituted a fraudulent conveyance under R.C. 1336.07, which provided
that every conveyance made with actual intent to hinder, delay, or defraud either
present or future creditors is fraudulent. Stein, 18 Ohio St.3d at 306, 308.
{¶35} The Supreme Court explained that the prior general rule was that the
beneficiary’s motives for renouncing an interest in an estate are immaterial and do
not affect the validity of the renunciation. Id. at 307. The Court noted that an Ohio
appellate court had recognized fraud or collusion as an exception to that general rule.
Id. The Court also noted that other jurisdictions may have once disagreed with this
exception, but upon the adoption of the Uniform Fraudulent Conveyance Act, the
trend in many jurisdictions was moving toward invalidating a disclaimer done to avoid
a creditor. Id.
{¶36} The Supreme Court of Ohio then held that the power to vest title in
another is the equivalent of a transfer of that property, making the fraudulent transfer
statute applicable to disclaimers. Id. (and rejected the relation back doctrine, which
proceeded under the theory that the disclaimer relates back to the day before the
decedent’s death, meaning the disclaimant never received the interest). Besides
R.C. 1336.07, the Court also noted that R.C. 1336.04 provided that every
conveyance made by a person who is or will thereby be rendered insolvent is
fraudulent as to creditors without regard to his actual intent if the conveyance is made
without fair consideration. Id. at 307-308, fn.1 (but not proceeding under the
constructive fraud statute as there was no evidence of insolvency in the record).
{¶37} The Court concluded that the child’s mother, as administrator of her
child’s estate, was a creditor with a tort cause of action against the driver and thus
had the right to challenge the conveyance. Id. at 308., citing R.C. 1336.01(C)
(defining a creditor as “a person having any claim, whether matured or unmatured,
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liquidated or unliquidated, absolute, fixed, or contingent.”). The Court then upheld
the factual finding of fraudulent intent. Id. at 309.
{¶38} The Court concluded by announcing: “where a will beneficiary seeks to
disclaim an inheritance pursuant to R.C. 1339.60(B) with the actual intent to defraud
a present or future creditor, the renunciation is a fraudulent conveyance under R.C.
1336.07.” Id. Notably, restraint on the right to disclaim was authorized by the Court
without regard to whether the four statutory bars on disclaimer were met.
{¶39} Contrary to another argument presented by appellant here, the fact that
the mother was a tort creditor, as opposed to a child support creditor, does not
distinguish Stein. The person asking to restrain the beneficiary’s right to disclaim an
estate just happened to be a tort creditor, and the Supreme Court found that she had
a right to challenge the conveyance as fraudulent. Various types of creditors were
covered by the language of the Uniform Fraudulent Conveyance Act and are now
covered by the language of the Uniform Fraudulent Transfer Act at the time of the
order herein. In fact, the remedy portion of that Act refers to “a creditor or a child
support enforcement agency on behalf of a support creditor.” R.C. 1336.07(A).
{¶40} Similarly, appellant does not coherently explain how the fact that Stein
proceeded under the Uniform Fraudulent Conveyance Act makes the holding no
longer valid because such Act was replaced by the Uniform Fraudulent Transfer Act.
The language in former R.C. 1336.07 applied by the Supreme Court in Stein is
contained in the version of R.C. 1336.04(A)(1) applicable to this case. As such, the
vague argument presented on this topic fails.
{¶41} The remaining argument is whether the probate court has exclusive
jurisdiction over such matters. Although Stein was a probate case, it does not
answer the question of whether other courts can rule regarding a debtor’s right to
disclaim.
{¶42} The bankruptcy court for the Northern District of Ohio used the Stein
case in evaluating the bankruptcy trustee’s request for the court to determine the
debtor’s right to disclaim an inheritance in a local probate court. In re Betz, 84 B.R.
470 (Bankr.N.D.Ohio 1987). The debtor and his partner were sued by a creditor after
the debtor filed for bankruptcy, and the trustee sought millions of dollars from the
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partners. The debtor’s mother then died leaving him half of an estate worth
approximately $300,000. The debtor filed a disclaimer of his interest in his mother’s
estate under prior R.C. 1339.60(B), which is the same as R.C. 5815.36(B)(1). The
bankruptcy court conducted a trial and concluded that the debtor’s disclaimer would
be a fraudulent conveyance under R.C. 1336.07 as per Stein. Id. at 472. Thus, the
court ordered that the debtor not disclaim his interest in his mother’s inheritance and
to withdraw any disclaimer filed in the probate court within 14 days. Id.{¶43} CSEA urges that this case supports the position that it is not only the
probate court which can restrain a debtor from disclaiming his interest in a probate
estate. Appellant seems to argue that the distinction lies in the fact that the
disclaimer statute has been relocated from one chapter to another. However, the
precise statutory language exists in R.C. 5815.36(J)(1)-(4) that existed in the prior
R.C. 1339.60(J)(1)-(4). See Tachet v. Ameritrust, 8th Dist. Nos. 57781, 57782 (Apr.
11, 1991). Just because the statute containing those bars was numbered differently
would not distinguish the case at bar. And, as aforementioned, the portion of the
Uniform Fraudulent Conveyance Act utilized in Stein still existed in the Uniform
Fraudulent Transfer Act at the time this case came before the domestic relations
court.
{¶44} The statute for disclaimer contains methods for a probate court to
determine whether the disclaimer can be prohibited. However, it does not limit other
courts, presiding over child support arrearage judgments for instance, from enjoining
a person from exercising an option to disclaim that he otherwise possesses.
{¶45} As appellees point out, R.C. 1336.07 permits a creditor or a child
support enforcement agency on behalf of a support creditor to avoid a transfer, to
issue an injunction against further disposition by the debtor, or obtain any other relief
that the circumstances may require. R.C. 1336.07(A)(1)-(3). Accordingly, this statute
is not limited to probate courts.
{¶46} Moreover, a judgment had already been issued against the debtor by
the domestic relations court. The child support arrearage was entered as a domestic
relations matter years ago. Appellant himself invoked the domestic relation’s court
continuing jurisdiction by seeking a modification of his monthly arrearage obligation.
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During that time period, it was discovered that he was contemplating what was
considered at the time a fraudulent transfer in order to avoid the court intercepting
lump sum payments soon to be paid to him. The common pleas court, including the
domestic relations division, has full equitable powers and jurisdiction appropriate to
the determination of all domestic relations matters. R.C. 3105.011. For all of these
reasons, the arguments presented under this assignment are without merit.
ASSIGNMENT OF ERROR NUMBER FOUR
{¶47} Appellant’s fourth assignment of error alleges that the testimony of the
CSEA caseworker constitutes inadmissible hearsay. As aforementioned, the
caseworker testified that when she was outside the courtroom at the probate hearing
held a week prior, she saw appellant speaking to the estate’s attorney. She stated
that they were talking very loud. She disclosed that appellant was swearing at the
attorney and saying that CSEA should not be permitted to take his inheritance. A
general objection by appellant’s counsel was overruled. The caseworker then
testified that appellant made references to putting the inheritance in his brother’s
name and making sure that everything is out of his name so CSEA would have
nothing to take from him. (Tr. 25).
{¶48} As the appellees counter, this testimony was not hearsay. A
declarant’s statement is not considered hearsay if it is an admission by a party
opponent. Evid.R. 801(D)(2). Thus, a statement is not hearsay if it is offered against
a party and is the party's own statement, in either his individual or representative
capacity. Id.; State v. Byrd, 32 Ohio St.3d 79, 89, 512 N.E.2d 611 (1987); State v.
Wallace, 7th Dist. No. 06MA44, 2007-Ohio-6226, ¶ 38.
{¶49} The caseworker’s testimony offered appellant’s own statement against
him. Consequently, this assignment of error is without merit.
ASSIGNMENT OF ERROR NUMBER SIX
{¶50} In 1998, Attorney Henderson, who is now a judge, entered an
appearance in this case for CSEA. Notably, this was during the time that service
could not be made on appellant in order to reactivate the child support obligation.
Thereafter, Attorney Henderson became a judge in Jefferson County. In 2003, when
the matter of reactivating child support was finally to come before the court, Judge
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Henderson transferred the case to Judge Bruzzese and noted that he had previously
worked on the case for CSEA.
{¶51} Judge Bruzzese granted the May 1, 2012 request for an ex parte
restraining order. As previously noted, CSEA filed an amended motion the next day
adding some details and further asking that appellant be restrained from foregoing
his right to receive fees as the administrator of the estate. The May 2, 2012 order
granting the amended motion for an ex parte restraining order was signed by Judge
Henderson as Judge Bruzzese was unavailable. Appellant argues: “It is reversible
error for an ex parte order to be signed by Judge Henderson when he had already
disqualified himself * * * .”
{¶52} Initially, we note that an appellate court lacks jurisdiction to review a
claim that a trial judge should have recused himself. State ex rel. Hough v. Saffold,
131 Ohio St.3d 54, 2012-Ohio-28, 960 N.E.2d 451, ¶ 2. Only the Chief Justice or the
Chief Justice's designee may hear disqualification matters. Id., citing Beer v. Griffith,
54 Ohio St.2d 440, 441, 377 N.E.2d 775 (1978). This court is thus without jurisdiction
to void the judgment of the trial court upon a claim of conflict of interest or bias. Id.{¶53} As for a trial judge’s act of ruling in a case nine years after a voluntary
recusal, any objection must be seasonably raised or any error is waived. See State
ex rel. Gomez v. Nau, 7th Dist. No. 08NO355, 2008-Ohio-5685, ¶ 19, citing Tissue v.
Tissue, 8th Dist. No. 83708, 2004-Ohio-5968, ¶ 12, citing Tari v. State (1927), 117
Ohio St. 481, 494, 159 N.E. 594. Appellant entered no objection after Judge
Henderson issued the amended ex parte temporary restraining order at a time when
something could have been done about the issue by that judge or the Supreme
Court.
{¶54} This observation ties in with our final observation: the temporary ex
parte order (regardless of who signed it) expired or dissolved when Judge Bruzzese
signed his final order relative to the arrearage. “A temporary restraining order is, by
its very nature, just that - temporary. It is preliminary to something else.” Van Camp
v. Riley, 16 Ohio App.3d 457, 469, 476 N.E.2d 1078 (12th Dist.1984). The temporary
restraining order was superseded by the permanent injunction. Id.-14-
{¶55} In accordance, issues with the ex parte order no longer exist for
purposes of appeal and are moot. See City of Columbiana v. J & J Carwash, Inc.,
7th Dist. No. 04CO20, 2005-Ohio-1336, ¶ 21, citing Procter & Gamble Co. v.
Stoneham, 140 Ohio App.3d 260, 269, 747 N.E.2d 268 (1st Dist.2000), D & N Dev.,
Inc. v. Schrock, 5th Dist. No. 89AP080066 (Mar. 29, 1990), and Van Camp, 16 Ohio
App.3d at 469. See also Great Plains Exploration, LLC v. Willoughby, 11th Dist. No.
2006-L-022, 2006-Ohio-7009, ¶ 13 (temporary restraining issues are moot as they
were preempted by permanent injunction). In fact, appellant raises no issue with the
amended temporary order except with regards to who signed it. Accordingly, this
assignment of error is without merit.
{¶56} For the foregoing reasons, the judgment of the trial court is hereby
affirmed.
Donofrio, J., concurs.
Waite, J., concurs.