[Cite as Melosh v. Melosh, 2014-Ohio-5029.]


                                      COURT OF APPEALS
                                    LICKING COUNTY, OHIO
                                  FIFTH APPELLATE DISTRICT



CHARLES MELOSH                                   JUDGES:
                                                 Hon. W. Scott Gwin, P. J.
        Plaintiff-Appellee                       Hon. Sheila G. Farmer, J.
                                                 Hon. John W. Wise, J.
-vs-
                                                 Case Nos. 14 CA 20,
PATRICIA MELOSH                                  14 CA 21 and 14 CA 30

        Defendant-Appellant                      OPINION




CHARACTER OF PROCEEDING:                      Civil Appeal from the Court of Common
                                              Pleas, Domestic Relations Division, Case
                                              No. 12 DR 1061


JUDGMENT:                                     Affirmed



DATE OF JUDGMENT ENTRY:                       November 10, 2014



APPEARANCES:

For Executor of the Estate of                 For Kenneth Schlaegel, Administrator
Charles Melosh                                of the Estate of Patricia Melosh

DETRIA HILES, PRO SE                          GARY J. GOTTFRIED
Post Office Box 304                           ERIC M. BROWN
Thurston, Ohio 43157                          GARY J. GOTTFRIED CO. LPA
                                              608 Office Parkway, Suite B
                                              Westerville, Ohio 43082
[Cite as Melosh v. Melosh, 2014-Ohio-5029.]


Wise, J.

        {¶1}. Appellant Kenneth Schlaegel, as substitute party for and administrator of

the estate of Patricia Melosh, appeals from the dismissal of a divorce action, as well as

two denials of motions to substitute parties, in the Licking County Court of Common

Pleas, Domestic Relations Division.           Appellee is Detria Hiles, administrator for the

estate of Charles Melosh, Patricia's spouse at the time of her death. The relevant

procedural facts leading to this appeal are as follows.

        {¶2}. Charles Melosh and Patricia Melosh were married on March 31, 2001,

having purportedly entered into an antenuptial agreement on March 20, 2001. No

children were born of the marriage. On August 23, 2012, Charles filed a complaint for

divorce in the Licking County Court of Common Pleas, Domestic Relations Division. On

April 9, 2013, Patricia filed an answer and counterclaim. Patricia was battling leukemia

as the divorce case progressed.

        {¶3}. The trial court ultimately scheduled the matter for a final hearing on

November 8, 2013. Charles appeared on that date with counsel, but Patricia was unable

to attend the final hearing due to her health issues. However, counsel appeared on her

behalf. In addition, Patricia's children, Kenneth Schlaegel (appellant herein) and Lisa

Tilk, attended the hearing. The trial court took the testimony of Charles, and trial

counsel for Patricia affirmed that Patricia agreed to the terms of the settlement

memorandum and that she believed it was fair and equitable. Tr. at 17-18. Trial counsel

for Patricia affirmed that he had talked to her several times via telephone that day. Tr. at

18. The trial court thereupon accepted a written settlement memorandum resolving the

remaining issues in the pending divorce action. The trial court instructed trial counsel for
Licking County, Case Nos. 14 CA 20, 14 CA 21 and 14 CA 30                           3


Charles to prepare an appropriate separation agreement and divorce decree within

fourteen days of said final hearing.

        {¶4}. Unfortunately, both parties passed away before a final divorce decree was

submitted and journalized. Patricia died on December 28, 2013. Approximately one

month later, on January 27, 2014, Charles died.

        {¶5}. A notice of suggestion of Patricia's death was filed with the trial court on

January 10, 2014. In addition, a notice of suggestion of Charles' death was filed on

February 10, 2014.

        {¶6}. On January 24, 2014, the trial court issued a judgment entry stating that it

would permit the parties to submit any motions for substitution of party within ninety

days.

        {¶7}. However, on March 14, 2014, and before the expiration of that ninety-day

period, the trial court dismissed the entire divorce action.

        {¶8}. Nonetheless,     Patricia's   son,    Appellant    Kenneth     Schlaegel,   as

administrator of Patricia's estate, filed a motion with the trial court on March 31, 2014,

asking the trial court to substitute him as a party for Patricia. The trial court denied said

motion in an entry issued the same day.

        {¶9}. On April 9, 2014, Appellant Schlaegel (hereinafter “appellant”) filed notices

of appeal as to the March 14th entry (dismissal of the divorce action) and March 31st

entry (denial of appellant's request to be substituted as party for Patricia).

        {¶10}. On April 21, 2014, appellant also filed a motion seeking substitution of

Detria Hiles, as executor of Charles' estate, as a party for Charles. In an entry dated
Licking County, Case Nos. 14 CA 20, 14 CA 21 and 14 CA 30                          4


April 22, 2014, the trial court concluded that it did not have jurisdiction to consider said

motion due to the aforesaid pending notices of appeal.

       {¶11}. On April 25, 2014, appellant filed a notice of appeal as to the April 22d

judgment entry (denial of appellant's request to have Detria Hiles substituted as party

for Charles). Appellant also requested consolidation of the three appeals. This Court

granted that request on May 5, 2014. This Court also ordered substitution by Appellant

Schlaegel and Appellee Hiles, for purposes of appeal, on June 2, 2014.

       {¶12}. On June 5, 2014, appellant submitted a brief in support of all three

appeals, identified as Case Nos. 14CA20, 14CA21 and 14CA30. Appellee Hiles

attempted to file a late brief in response, which this Court denied.

       {¶13}. Appellant's Assignments of Error in this consolidated appeal are as

follows:

       {¶14}. “I. THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION WHEN

IT DISMISSED THE DIVORCE ACTION PRIOR TO THE EXPIRATION OF TIME

PROVIDED FOR THE SUBSTITUTION OF PARTIES PURSUANT TO CIVIL RULE 25.

       {¶15}. “II. THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION WHEN

IT DENIED SUBSTITUTION OF KENNETH SCHLAEGEL AS A PARTY FOR

PATRICIA MELOSH AND SUBSTITUTION OF DETRIA HILES AS A PARTY FOR

CHARLES MELOSH.”

                                               I., II.

       {¶16}. In his First and Second Assignments of Error, appellant contends the trial

court erred and/or abused its discretion in dismissing the divorce action and denying

substitution of parties as to Patricia and Charles after they passed away. We disagree.
Licking County, Case Nos. 14 CA 20, 14 CA 21 and 14 CA 30                         5


      {¶17}. Civ.R. 25 states in pertinent part as follows:

      {¶18}. "(A) Death

      {¶19}. "(1) If a party dies and the claim is not thereby extinguished, the court

shall, upon motion, order substitution of the proper parties. The motion for substitution

may be made by any party or by the successors or representatives of the deceased

party and, together with the notice of hearing, shall be served on the parties as provided

in Rule 5 and upon persons not parties in the manner provided in Rule 4 through Rule

4.6 for the service of summons. Unless the motion for substitution is made not later than

ninety days after the death is suggested upon the record by service of a statement of

the fact of the death as provided herein for the service of the motion, the action shall be

dismissed as to the deceased party.

      {¶20}. " ***

      {¶21}. "(E) Suggestion of death or incompetency

      {¶22}. "Upon the death or incompetency of a party it shall be the duty of the

attorney of record for that party to suggest such fact upon the record within fourteen

days after he acquires actual knowledge of the death or incompetency of that party. The

suggestion of death or incompetency shall be served on all other parties as provided in

Rule 5."

      {¶23}. Appellant correctly posits that three essential issues come into play

considering the application of Civ.R. 25 in situations where a party in a pending case

has died. These issues are: (1) whether the motion seeking substitution is timely; (2)

whether the person seeking substitution is "proper" as a real party in interest; and (3)

whether the claim was or was not extinguished upon death. In the case sub judice, we
Licking County, Case Nos. 14 CA 20, 14 CA 21 and 14 CA 30                        6


find the third factor, the question of whether the divorce claims herein were extinguished

by death, to be dispositive, and we will focus our analysis accordingly.

      {¶24}. Generally, death of one or both of the parties to a pending divorce abates

the action, because " *** [the] circumstance of death has effectively accomplished the

primary objective of the lawsuit, i.e., dissolution of the marital relationship."    In re

Guardianship of Schnierle, 5th Dist. Stark No. 2007 CA 00260, 2009-Ohio-1580, ¶44.

      {¶25}. However, in Caprita v. Caprita, 145 Ohio St.5, 60 N.E.2d 483 (1945), the

Ohio Supreme Court held in pertinent part as follows: “An action for a divorce and

division of property is not abated by the death of a party after a decree therefor has

been rendered but before it has been journalized." Id. at paragraph three of the

syllabus.

      {¶26}. We note that in Caprita, the plaintiff (husband) had filed a petition for a

divorce in Stark County, and the defendant (wife) countered with a cross-petition. The

case was tried on October 19, 1943, at which time husband plaintiff dismissed his

petition. At the conclusion of the trial on the wife's cross-petition, the trial court

"announced" a decree entitling the defendant wife to a divorce and division of property.

The court then continued the matter in order to obtain a full appraisal of property. On

December 13, 1943, the court announced that husband was ordered to pay wife the

sum of $1,000 as property division. Two days later, on December 15, 1943, husband

died. On December 31, 1943, the final decree was entered upon the court journal. On

the same day, wife sought leave to dismiss her cross-petition with prejudice, which the

trial court denied. The Ohio Supreme Court concluded the Court of Appeals was not in
Licking County, Case Nos. 14 CA 20, 14 CA 21 and 14 CA 30                          7

error in affirming the decree of the Stark County Court of Common Pleas. See id. at 6-

10.

       {¶27}. Our reading of Caprita does not reveal a bright-line rule forbidding a trial

court from finding a divorce action extinguished by the death of a party or both parties

between the announcement of decision and the issuance of the final written decree. The

Ohio Supreme Court therein invoked an abuse-of-discretion standard as to the trial

court's decision to disallow wife's request for leave to dismiss her cross-petition. See id.

at 10-11, citing 17 American Jurisprudence 324. We find the abuse-of-discretion

standard likewise applicable where, as in the case sub judice, the trial court chooses to

dismiss a divorce where the parties have died after the announcement of decision, but

before the decree is finalized.

       {¶28}. Furthermore, Caprita does not appear to involve a settlement agreement.

“A trial court's authority to enforce in-court settlement agreements is discretionary.”

Franchini v. Franchini, 11th Dist. Geauga No. 2002-G-2467, 2003-Ohio-6233, ¶ 8. We

have similarly held: “Case law clearly provides that a trial court has discretionary

authority to enforce in-court settlement agreements or to modify them out of equity."

Hileman v. Hileman (July 26, 1999), Stark App. Nos. 1998CA00256, 1998CA00257,

1999 WL 547934 (additional citations omitted). If a party later disputes the terms of the

agreement, the trial court should hold an evidentiary hearing to resolve any dispute

about the existence of an agreement or its terms. See Waddell v. Waddell (Dec. 16,

1996), Butler App. No. CA96-03-056, 1996 WL 723551.
Licking County, Case Nos. 14 CA 20, 14 CA 21 and 14 CA 30                          8


       {¶29}. In the case sub judice, the trial court adopted the separation agreement

and orally granted the parties their divorce. See Tr. at 20. It appears that the parties

waived their signatures upon the final decree. Tr. at 21. The trial judge then accepted

and signed the original memorandum of agreement. Tr. at 21. Said memorandum was

filed with the clerk. It was confirmed by the attorneys that all pending matters had been

resolved at that time. See Tr. at 22. The trial court afforded Charles' trial counsel two

weeks to prepare and submit a written divorce decree.

       {¶30}. As previously noted, before dismissing the divorce action, the trial court

waited more than four months for the submission of the proposed final decree, which

never occurred. In its subsequent judgment entry denying appellant's motion for

substitution of Patricia, the trial court, citing Montei v. Montei, 2nd Dist. Clark No. 2013

CA 24, 2013-Ohio-5343, ¶ 22, aptly expressed its concern that it would be necessary to

conduct an evidentiary hearing due to an apparent factual dispute or disagreement

regarding the settlement agreement, which would be unfeasible following the death of

Patricia and Charles. See Judgment Entry, March 31, 2014, at 3. Thus, having been

"advised that one of the parties was unwilling to sign the proposed divorce decree" (id.

at 2), the trial court refused to grant substitution under Civ.R. 25. Although appellant

urges that the law favors a trial court's adoption of a settlement agreement where said

agreement has been referenced on the record, reduced to writing, and filed with the

clerk, under the unusual procedural circumstances presented in this matter, we find no

error of law or abuse of discretion in the trial court's decision to dismiss the action and

thereafter deny substitution of party as to Patricia.
Licking County, Case Nos. 14 CA 20, 14 CA 21 and 14 CA 30                         9


      {¶31}. Finally, although the trial court did not reach the merits of appellant's

motion to substitute as to Charles due to the existence of appellant's notice of appeal,

we find a similar result to the above would have been warranted in that regard.

      {¶32}. Appellant's First and Second Assignments of Error are therefore

overruled.

      {¶33}. For the foregoing reasons, the judgment of the Court of Common Pleas,

Domestic Relations Division, Licking County, Ohio, is hereby affirmed.


By: Wise, J.

Gwin, J., and

Farmer, J., concur.


JWW/d 1023
