Styncho v. Yarbrough, Unpublished Decision (10-15-1999) ( 1999 )

OPINION The instant action in procedendo is presently before this court for consideration of respondent's motion to dismiss, filed on August 26, 1999. As the basis for this motion, respondent, Visiting Judge Steven Yarbrough of the Trumbull County Court of Common Pleas, maintains that the merits of this action have been rendered moot because he has performed the act which relator, Margaret Stychno, seeks to compel. For the following reasons, we conclude that the motion to dismiss is well-taken.

In bringing this action, relator has requested the issuance of an order which would require respondent to issue a decision on two pending motions in an underlying divorce case. Specifically, relator has asserted in her procedendo petition that, as part of the divorce proceeding, she filed a motion to increase her spousal support and a motion to show cause. She has further asserted that these motions have been pending since April 1998 and October 1998, respectively. In addition, relator has alleged that, although a hearing was held on the motions in May 1999, respondent had not rendered a ruling as of the date of the filing of her procedendo petition.

In now moving to dismiss, respondent contends that, subsequent to the filing of the procedendo petition, he has issued a decision on both pending motions. In support of this contention, he has attached to his motion certified copies of two judgments issued on August 20, 1999. In the first judgment, respondent overruled relator's motion to increase her spousal support. In the second, respondent ordered the plaintiff in the divorce case to pay relator $60,339.65 in arrearages.

As a general proposition, a writ of procedendo will not be granted to require the performance of a judicial act or duty which has already been completed. State ex rel. Grove v. Nadel (1998),84 Ohio St.3d 252, 253; State ex rel. Hayes v. Maschari (June 2, 1999), Erie App. No. E-99-045, unreported. Thus, because the certified copies of respondent's judgments show that he has already performed the exact duty which is the subject matter of the instant action, the merits of relator's petition are now moot.

Pursuant to the foregoing analysis, respondent's motion to dismiss is granted. It is the order of this court that relator's procedendo petition is hereby dismissed.

__________________________________________ PRESIDING JUDGE WILLIAM M. O'NEILL

CACIOPPO, J., Ret., Ninth Appellate District, sitting by assignment, BASINGER, J., Putnam County Court of Common Pleas, sitting by assignment, concur.