Kochaniec v. Kochaniec , 2011 Ohio 5552 ( 2011 )

[Cite as Kochaniec v. Kochaniec, 2011-Ohio-5552.]
IN THE COURT OF APPEALS OF CLARK COUNTY, OHIO
:
KIMBERLY G. KOCHANIEC
Plaintiff-Appellee : C.A. CASE NO. 2011-CA-19
vs. : T.C. CASE NO. 09-DR-834
: (Civil Appeal from
ROBERT J. KOCHANIEC Common Pleas Court,
Defendant-Appellant : Domestic Relations Division)
. . . . . . . . .
O P I N I O N
Rendered on the 28th day of October, 2011.
. . . . . . . . .
Stacey R. Pavlatos, Atty. Reg. No. 0012392, 700 East High Street,
Springfield, OH 45505
Attorney for Plaintiff-Appellee
Anthony E. Kohler, Atty Reg. No. 0032826, 210 North Fountain Avenue,
Springfield, OH 45504
Attorney for Defendant-Appellant
. . . . . . . . .
GRADY, P.J.:
{¶ 1} Defendant, Robert Kochaniec, appeals from a final order
of the domestic relations division of the court of common pleas
overruling his objections to a magistrate’s decision and granting
an annulment to Plaintiff, Kimberly Kochaniec.
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{¶ 2} Robert1 and Kimberly were married in Marion, Virginia
in September of 1989. Two children were born during Kimberly and
Robert’s marriage, A., who was born in May of 1991, and B., who
was born in September of 1998.
{¶ 3} At the time he married Kimberly, Robert was married to
his first wife, Karen L. Kochaniec. Robert and Karen subsequently
were divorced in April of 1992.
{¶ 4} On August 31, 2009, Kimberly commenced an action against
Robert, seeking an annulment of her marriage to Robert or, in the
alternative, a divorce from Robert. She based her request on the
fact that Robert was married to another woman at the time that
he married Kimberly.
{¶ 5} Kimberly filed a motion for summary judgment on her claim
to have her marriage to Robert annulled pursuant to R.C.
3105.31(B). On December 23, 2009, the magistrate granted
Kimberly’s request for an annulment. (Dkt. 27.) Robert filed
objections to the magistrate’s decision. (Dkt. 31.) The trial
court overruled these objections on March 17, 2010. (Dkt. 37A.)
{¶ 6} Robert filed a motion to modify temporary orders on March
30, 2010, seeking an award of temporary spousal support and an
interim award of attorney fees. (Dkt. 38.) The magistrate
1
For clarity and convenience, the parties are identified
by their first names.
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overruled the motion and Robert filed objections to the
magistrate’s decision, which the trial court overruled. (Dkt.
39, 42, 50.)
{¶ 7} On September 29, 2010, following a hearing, the
magistrate issued a decision regarding custody, child support,
and property division. (Dkt. 59.) Robert filed objections and
supplemental objections to the magistrate’s decision, which the
trial court overruled. (Dkt. 60, 66, 68, 69.) Robert filed a
timely notice of appeal.
SECOND ASSIGNMENT OF ERROR
{¶ 8} “THE TRIAL COURT ERRED IN CHOOSING AN ANNULMENT INSTEAD
OF A DIVORCE.”
{¶ 9} R.C. 3105.01 sets forth the causes for divorce and
provides, in part:
{¶ 10} “The court of common pleas may grant divorces for the
following causes:
{¶ 11} “(A) Either party had a husband or wife living at the
time of the marriage from which the divorce is sought[.]”
{¶ 12} Prior to 1963, divorce proceedings pursuant to the
predecessor statute2 to R.C. 3105.01 provided the exclusive remedy
in cases involving bigamous marriages. Eggleston v. Eggleston
(1952), 156 Ohio St. 422, syllabus. In 1963, however, the Ohio
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Legislature enacted R.C. 3105.31, which sets forth the causes for
annulment and provides, in part:
{¶ 13} “A marriage may be annulled for any of the following
causes existing at the time of the marriage:
{¶ 14} “* * *
{¶ 15} “(B) That the former husband or wife of either party
was living and the marriage with such former husband or wife was
then and still is in force[.]” (Emphasis supplied.)
{¶ 16} Both the divorce statute, R.C. 3105.01(A), and the
annulment statute, R.C. 3105.31(B), provide for relief from
bigamous marriages. However, the two statutes do not impose
identical requirements. The divorce statute only requires that
either party had a husband or wife living at the time of the marriage
from which the divorce is sought. The annulment statute requires
both that the first marriage was in force at the time of the second
marriage and “still is in force[.]” R.C. 3105.31(B).
Consequently, in order to grant an annulment pursuant to R.C.
3105.31(B), the trial court was required to find that Robert’s
first marriage with Karen was “still in force” at the time that
the court ordered his second marriage with Kimberly annulled.
Haska v. Haska (Feb. 10, 1989), Portage App. No. 1915 (affirming
the trial court’s judgment annulling the parties’ marriage because
2
G.C. 11979 (predecessor section to R.C. 3105.01.)
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the wife’s former husband was alive at the time of her second
marriage and she never obtained a valid divorce decree from her
first marriage).
{¶ 17} It is undisputed that Robert’s marriage with Karen
terminated when he was granted a divorce in April of 1992. The
trial court did not grant Kimberly an annulment of her marriage
with Robert until 2010. Therefore, at the time the trial court
granted an annulment of the marriage between Kimberly and Robert,
the marriage between Karen and Robert was not still in force.
Therefore, the trial court could not grant an annulment pursuant
to the plain language of R.C. 3105.31(B). The trial court was
required to proceed instead pursuant to R.C. 3105.01(A), the
divorce section, which does not impose a similar limitation
regarding the continued existence of Robert’s first marriage.
{¶ 18} Kimberly argues that Robert waived any error in
proceeding under R.C. 3105.31, the annulment section, because he
failed to object to that error in the proceedings before the trial
court. Courts derive their jurisdiction from constitutional
provisions, or from laws enacted by the legislature acting within
the constitutional authority conferred by Section 4(B), Article
IV, and can only exercise the jurisdiction so granted them.
Humphrys v. Putnam (1961), 172 Ohio St. 456. R.C. 3105.31(B)
confers jurisdiction of the domestic relations division of the
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court of common pleas to grant annulments, but limits that power
to instances where the prior marriage “still is in force.” On
this record, the domestic relations division of the court of common
pleas lacked jurisdiction to grant the annulment Kimberly
requested. Parties to an action cannot, by waiver or otherwise,
confer subject-matter jurisdiction on a court which the court
lacks. State ex rel. Lawrence Development Co. V. Weir (1983),
11 Ohio App.3d 96.
{¶ 19} The second assignment of error is sustained.
FIRST ASSIGNMENT OF ERROR
{¶ 20} “THE TRIAL COURT DECISION DECLARING AN ANNULMENT OF THE
MARRIAGE WAS ERRONEOUS.”
THIRD ASSIGNMENT OF ERROR
{¶ 21} “THE TRIAL COURT’S RULING ON PARENTING OF THE MINOR CHILD
IS INCORRECT AND PREJUDICIAL TO THE FATHER.”
FOURTH ASSIGNMENT OF ERROR
{¶ 22} “THE TRIAL COURT DID NOT HAVE ANY REASONABLE BASIS IN
LAW OR EQUITY TO ASSIGN A CHILD SUPPORT OBLIGATION TO THE FATHER.”
FIFTH ASSIGNMENT OF ERROR
{¶ 23} “THE TRIAL COURT’S DIVISION OF PROPERTY IS GROSSLY
PREJUDICIAL TO THE APPELLANT.
SIXTH ASSIGNMENT OF ERROR
{¶ 24} “EVIDENCE DOES NOT SUPPORT THE TRIAL COURT’S AWARD OF
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REAL ESTATE SOLELY TO APPELLEE.”
SEVENTH ASSIGNMENT OF ERROR
{¶ 25} “THE TRIAL COURT INCORRECTLY DIVIDED THE RETIREMENT
BENEFITS. “
EIGHTH ASSIGNMENT OF ERROR
{¶ 26} “THE TRIAL COURT FAILED TO FOLLOW STATUTORY GUIDELINES
OF OHIO LAW IN REFUSING TO AWARD ATTORNEY FEES TO APPELLANT.”
NINTH ASSIGNMENT OF ERROR
{¶ 27} “THE TRIAL COURT SHOULD HAVE AWARDED BOTH TEMPORARY
SPOUSAL SUPPORT AND PERMANENT SPOUSAL SUPPORT TO THE APPELLANT.”
{¶ 28} The various errors assigned are the product of the
court’s order of annulment. Our decision sustaining the second
assignment of error requires a reversal of the order of annulment,
which in turn renders moot the remaining assignments of error.
Per App.R. 12(A)(1)(c), we are not required to decide assignments
of error made moot by our decision on another assignment of error.
{¶ 29} Having sustained Robert’s second assignment of error,
we will reverse the final judgment from which the appeal was taken
and remand the case for further proceedings on Kimberly’s complaint
for divorce.
DONOVAN, J. and HALL, J. concur.
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Copies mailed to:
Stacey R. Pavlatos, Esq.
Anthony E. Kohler, Esq.
Hon. Thomas J. Capper