Church v. Gadd , 126 Ohio App. 3d 284 ( 1998 )

I respectfully dissent from the opinion of the majority, as they have failed to address the issue of the timeliness of this appeal.

In the case sub judice, I agree with appellant and the majority that the trial court erred as a matter of law by restraining the alienation of the PaineWebber IRA rather than requiring appellant to post a cash bond with a maximum value of $10,000 as authorized by R.C. 3113.21(D)(6). However, the order which created the restraints on appellant's IRA was contained in the trial court's first judgment entry of July 11, 1995. That entry was a final, appealable order and that order was never appealed.²

Appellant should have filed a notice of appeal within thirty days of the entry of that judgment. See App.R. 4(A). Instead of doing so, however, appellant waited until December 21, 1995 to file his motion requesting that the trial court order appellant to post a $10,000 cash bond as security, in lieu of the restraints on the IRA.

In all fairness to appellant, there were several different ways in which the trial court could have viewed this motion. First, it could have been interpreted as a motion asking the trial court to reconsider its prior decision rendered in the July 11, 1995 judgment entry. However, the Ohio Rules of Civil Procedure do not prescribe motions for reconsideration after a final judgment in a trial court. Pitts v. Dept. of Transp. (1981), 67 Ohio St. 2d 378, 21 O.O.3d 238, 423 N.E.2d 1105, paragraph one of the syllabus. The Civil Rules specifically limit any relief available from judgments to those motions expressly provided therein.

A motion for reconsideration is conspicuously absent from the Civil Rules; therefore, after final judgment, such a motion is a nullity in the trial court. Id. at 380, 21 O.O.3d at 239,423 N.E.2d at 1107. Thus, any judgment or final order emanating from a motion for reconsideration in the trial court would also be a nullity. Id. at 381, 21 O.O.3d at 239-240,423 N.E.2d at 1107-1108.

Appellant's motion also bears some resemblance to a Civ.R. 60(B) motion for relief from judgment. However, a review of the text of the motion indicates that appellant neither cited Civ.R. 60(B) nor claimed to be entitled to relief under any of the grounds stated in the rule. Consequently, the motion, as framed, could not have been predicated on Civ.R. 60(B).³

Finally, the motion could have been viewed as a motion for modification. of the trial court's prior order due to a change of circumstances, as authorized under R.C. 3113.215(B)(4). I believe this is what appellant intended. Thus, even though the July 11, 1995 judgment entry was a final appealable order, if a change of circumstances occurred which was qualified as such under R.C. 3113.215(B)(4), the trial court had continuing jurisdiction to consider the issue.

In this context, the change of circumstances alleged by appellant in the motion was the fact that he had reached the age of fifty-nine and one-half years of age in the interval between the July 11, 1995 judgment entry and the December 21, 1995 motion. Upon reaching this age, appellant claimed that he was eligible to withdraw funds from the IRA without incurring a penalty. Appellant's motion stated that he wished to substitute a $10,000 cash bond for the existing restraints on his IRA.

Appellant presumably felt that the above circumstances constituted a change of circumstances under R.C. 3113.215(B)(4). However, under that statute, a change of circumstances is determined to exist when a change in the financial situation of either the obligor or the obligee results in a calculation with a ten-percent difference from the original order.⁴ The ten-percent difference reflects a change in the amount ofsupport, not the amount or type of collateral. The statute does not address or contain any corresponding standard for amodification of the collateral. Under R.C. 3113.215(B)(4), there was no continuing jurisdiction available to the court which would enable it to address the substitution of the collateral request of appellant in the March 13, 1996 entry. As a result, the March 13, 1996 judgment entry was a nullity for lack of subject-matter jurisdiction, and the July 11, 1995 judgment entry was still in full force and effect.⁵

In summary, in order for appellant to have raised the legal argument that the trial court lacked the statutory authority under R.C. 3113.21(D)(6) to order something other than a cash bond as security for child support, he had to have appealed the July 11, 1995 judgment entry within thirty days of its filing pursuant to, App.R. 4(A). He did not do so, and R.C.3113.215(B)(4) did not provide continuing jurisdiction. Thus, even though the March 13, 1996 judgment entry was a nullity, appellant's assignments of error are without merit. I would, therefore, have entered a judgment finding the assignments without merit, declaring the March 13, 1996 order a nullity, and also declaring the July 11, 1995 entry to be in full force and effect.

² On June 16, 1995, appellant moved the court to dissolve the court's prior order of attachment of the PaineWebber IRA. The court granted this motion of July 11, 1995, but the judgment entry also included the restraining order from which appellant now seeks relief.

³ I venture no opinion as to what the result would be of a properly framed Civ.R. 60(B) motion.

⁴ I note that additionally under R.C. 3113.215(B)(4), the change of circumstance must be one which was "not contemplated at the time of the issuance of the original child support order or the last modification of the child support order." It cannot be seriously argued that the attainment of age fifty-nine and one-half was not contemplated or foreseeable by appellant in his June 16, 1995 motion to the court.

⁵ Nevertheless, because of the fascinating manner in which appellate, review is facilitated by hindsight, I note that the July 11, 1995 entry is not void because there was subject-matter jurisdiction. The court had the jurisdiction to entertain the issue of the posting of collateral in order to secure child support payments. Its order was merely voidable and not void. The court simply exceeded the range of options given to it by the legislature. That is a far different matter from that of the court not having the jurisdiction to reopen what was otherwise a final order. A timely appeal of the July 11, 1995 entry would have addressed and resolved the issue of the impermissible remedy.