[Cite as Helms v. Helms, 2013-Ohio-183.]




                IN THE COURT OF APPEALS FOR GREENE COUNTY, OHIO

JOHN A. HELMS                                      :

        Plaintiff-Appellant                        :        C.A. CASE NO.     2012 CA 53

v.                                                 :        T.C. NO.   10DR187

MONACA G. HELMS                                    :        (Civil appeal from Common
                                                             Pleas Court, Domestic Relations)
        Defendant-Appellee                         :

                                                   :

                                           ..........

                                           OPINION

                        Rendered on the     25th       day of    January    , 2013.

                                           ..........

RICHARD P. ARTHUR, Atty. Reg. No. 0033580, 1634 S. Smithville Road, Dayton, Ohio
45410
      Attorney for Plaintiff-Appellant

ADRIENNE D. BROOKS, Atty. Reg. No. 0078152, 36 N. Detroit Street, Suite 102, Xenia,
Ohio 45385
      Attorney for Defendant-Appellee

                                           ..........

DONOVAN, J.

        {¶ 1}     This matter is before the Court on the Notice of Appeal of John A. Helms,
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filed August 15, 2012. John’s Notice of Appeal provides that he appeals from the domestic

relations court’s July 25, 2012 “Decision and Order to Reopen Case” as well as the Final

Judgment and Decree of Divorce issued by the court on July 27, 2012.

       {¶ 2}    John and Monaca Helms were married in Gatlinburg, Tennessee on October

28, 2000, and no children were born of the marriage. John filed his Complaint for divorce

on June 7, 2010, and Monaca answered and filed a counterclaim for divorce. A hearing was

held on May 23, 2011 and continued on June 10, 2011. On July 20, 2011, the trial court

issued a “Decision and Order Regarding Spousal Support [and] Order to Prepare Final

Decree,” which provides in part that counsel for John “will prepare the final decree of

divorce and incorporate this spousal support finding as part of the decree” within thirty days

of the entry’s time-stamped date.

       {¶ 3}    On October 21, 2011, the court issued a “Nunc Pro Tunc Order” that

provides in part, “In the decision filed July 20, 2011, the Court inadvertently omitted a ruling

on the Universal One [c]redit card debt. It is the finding and order of the Court that the

Defendant shall be responsible for the payment of said debt.”

       {¶ 4}     On November 4, 2011, the trial court issued a “Notice of Dismissal for

Failure to Prosecute” that provides, “[I]t is the Order of the Court that the Complaint for

Divorce filed June 7, 2010 and any subsequent Motion, be DISMISSED, at Plaintiff’s cost,

without prejudice, on November 28, 2011 if the Decree is not presented for review and

signature.”

       {¶ 5}    On November 17, 2011, John filed a “Notice of Bankruptcy,” in which he

asserted that Monaca filed a petition for bankruptcy in the United States Bankruptcy Court
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for the Southern District of Ohio, Western Division, seeking relief under Chapter 13 of Title

11, United States Code. John requested that “all proceedings herein be stayed until such

other and further orders of the United States Bankruptcy Court.”

                   {¶ 6} On November 22, 2011, the trial court issued a Judgment Entry that

provides, “Upon the Court’s own motion and pursuant to Civil Rule 41(B)(1) 1 , the

Complaint for Divorce and all Motions filed subsequent, are DISMISSED, at Plaintiff’s

costs. The Parties have failed to comply with the Civil Rules of Procedure.”

       {¶ 7}        On January 31, 2012, Monaca filed a “Motion to Re-Open Case for the

Purpose of Filing a Decree of Divorce,” and the court granted the motion on the same day.

       {¶ 8}         On February 29, 2012, the trial court issued a “PreTrial Order” which

provides that “unless the final decree is presented to the Court for signature by close of

business on March 12, 2012 then the case will once again be dismissed and will not be

reopened.        The parties will have to refile the divorce complaint or file a dissolution

petition.”

       {¶ 9}        On March 16, 2012, the court issued an “Order Dismissing the Case,” that

provides that “the Parties have failed to present a final decree for filing as previously

ordered.” It further provides that “it is the ORDER of the Court that this case is dismissed

without prejudice to the filing of a new complaint for divorce. This case will not be

reopened again as counsel and the parties have had that opportunity and failed to present a



             1
            Civ.R. 41(B)(1) provides: “(1) Failure to prosecute. When the plaintiff
   fails to prosecute, or comply with these rules or any court order, the court, upon
   motion of a defendant or on its own motion may, after notice to the plaintiff’s
   counsel, dismiss an action or claim.”
                                                                                         4

document which could be sign[e]d and filed as a final decree.”

       {¶ 10} On March 27, 2012, Monaca filed a “Motion to Reconsider and a Request

for Hearing.” It provides in part as follows:

               After the Order to Re-Open the case was granted, undersigned counsel

       contacted defendant’s bankruptcy attorney and started the proceedings for a

       Relief From Stay to file the decree. The Relief from Stay was filed with the

       U.S. Bankruptcy Court and granted. Counsel for the Defendant prepared a

       decree based on the Judge’s Decision with respect to spousal support, and the

       issues that were read into the record. The client approved the same and the

       decree was forwarded to Plaintiff’s counsel.       The staff at the office of

       counsel for Defendant contacted Mr. Arthur’s office almost every day for two

       weeks, and even faxed and emailed the decree. Mr. Arthur did respond with

       some modifications and such changes were immediately made and returned

       promptly to Mr. Arthur’s office. On March 12, 2012, opposing counsel had

       not returned executed documents to our office, therefore, only the Defendant

       and Defendant’s counsel’s signatures were scribed.

               Prior to submitting the Decree to the Court, counsel for Defendant

       contacted Defendant’s bankruptcy attorney who stated as long as there is not

       a transfer of property to Defendant, a separate court order from bankruptcy

       court is not needed to file the decree. The Relief from the Automatic Stay

       was only required.

               Wherefore, it is the position of the Defendant that the decree reflects
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       this Court’s journal and record, and the same shall be accepted for filing. It

       is not the fault of the defendant that the Plaintiff is in dispute with the spousal

       support order and refused to sign. This is effectively awarding him for

       disobeying a court order.

       {¶ 11} On April 6, 2012, John filed a response which provides in relevant part as

follows:

                * * * The case was dismissed on November 22, 2011 due to

       Defendant’s failure to obtain or seek relief from bankruptcy stay. Two (2)

       months later on January 31, 2012, counsel for Defendant filed a motion to

       reinstate the case which was filed and granted without notice to counsel for

       Plaintiff.   On February 12, 2012, a conditional stay was granted by the

       Bankruptcy Court stating that “the debtor must move this Court for a further

       Order prior to transferring any property of the estate.”

                The proposed Decree settles all issues concerning real estate, vehicles,

       and debts. However, no further Motion has been filed with the bankruptcy

       Court.

                On February 29, 2012, the Court stated that the case would be

       dismissed and not reopened if no Decree was filed by March 12, 2012.

       Upon request of counsel for Defendant, a copy of the proposed Decree was

       forwarded to her attention on March 26, 2012. To this date, no relief to

       settle property division has been sought or received.

                Plaintiff wishes to remain married and that [the] case remain
                                                                                           6

       dismissed as earlier ordered by this Court.

       {¶ 12} A hearing was held on Monaca’s motion to reconsider the dismissal of the

case on July 24, 2012. At the hearing, counsel for John indicated to the court that “one, the

Court ordered that the case be dismissed and not re-opened without a new complaint being

filed. And, secondly, that the Court now no longer has jurisdiction as a new complaint has

been filed and served out of Franklin County.” In response, the court stated in part, “I’m

going to change my mind about not reopening again. I’ll reopen the case. I’ll get it

finalized and the case will be over.”

       {¶ 13} On July 25, 2012, the court issued a “Decision and Order to Reopen Case,”

which provides:

               This matter is again before the Court upon the request of the

       Defendant to reconsider the Order dismissing the case for the failure of the

       parties to present the final decree for filing.    The Plaintiff opposed the

       reopening of the case and a hearing was held on July 25, 2012. Both parties

       were present along with their counsel of record. The Court finds that the

       attorney for the Plaintiff has now prepared a Final Decree and has presented it

       to the Court for consideration and filing. 2 Counsel for the Plaintiff has

       reviewed the proposed decree and correctly pointed out that the only thing not

       included in this draft decree was the decision on the debt owed to Universal

       One [C]redit Union which was dealt with in the decision of the Court filed

       October 21, 2011. Counsel for Defendant agreed and has consented to add


   2
   Counsel for Monaca in fact prepared the Final Decree.
                                                                                   7

that decision to the draft and return it to the Court for filing. It was

acknowledged by counsel for the Plaintiff that all other provision[s] of the

draft decree reflect the previous agreements of the parties and the decisions

made by the Court.

       * * * While a proposed decree may have been presented to counsel for

the Defendant no such decree has ever been presented to the Court by the

Defendant or his attorney. Plaintiff’s attorney argues that a bankruptcy filing

prevented him from proceeding.         This is incorrect.     Nothing in the

bankruptcy code prevented the attorney for the Plaintiff from preparing and

presenting a proposed decree. This Court would then need to decide if the

decree was appropriate for filing. It is possible that this Court would have

agreed with counsel for the Plaintiff regarding the bankruptcy stay and the

Court could have communicated with the Bankruptcy Judge and Trustee in an

effort to obtain permission to file the Decree. The actions of the Plaintiff

and his counsel denied the Court this opportunity. The necessity for such

action is now moot as the attorney for the Defendant has obtained a

conditional relief from the bankruptcy stay. The Final Decree when filed

herein can be presented to the Bankruptcy Court for it’s (sic) consideration

and approval pursuant to the conditional relief. Plaintiff is now attempting

to use his own counsel’s failure to present the decree to the Court as a means

to obtain another “bite of the apple” [in] an attempt to delay the divorce or to

obtain a more favorable ruling in some other jurisdiction. In the interest of
                                                                                            8

       judicial economy and as a matter of equity this Court will reverse it’s (sic)

       previous decision and reopen the case for the purpose of filing the Final

       Decree as presented by the attorney for the Defendant.

              Therefore it is the ORDER of the Court that the previous dismissal of

       the case is reversed and the case is reopened for the purpose of filing the final

       decree prepared and presented by the attorney for the Defendant.            Said

       Decree has been seen and reviewed by the Plaintiff and his counsel but has

       not been signed.

       {¶ 14} The “Final Judgment and Decree of Divorce” was filed on July 27, 2012.

       {¶ 15} On September 13, 2012, John filed a “Motion to Stay” in this Court, which

Monaca opposed. On October 3, 2012, this Court issued a Decision and Entry overruling the

Motion to Stay and expediting the matter in accordance with Loc.App.R. 2.8(B).

       {¶ 16} John asserts three assignments of error herein.       We will consider his first

two assigned errors together. They are as follows:

       “THE TRIAL COURT ERRED BY REOPENING A CASE AFTER DISMISSAL

UPON DEFENDANT’S MOTION TO REOPEN CASE.”

       And,

       “THE TRIAL COURT ERRED IN REOPENING A CASE WHEN FRANKLIN

COUNTY HAS A CASE PENDING.”

       {¶ 17} John asserts that there “are no provisions under the Ohio Revised Code to

reopen a case that has been dismissed.” He further asserts that on July 20, 2012, after

having “relocated,” he filed a Complaint for Divorce in Franklin County, “securing service
                                                                                             9

on July 23, 2012.” According to John, “proper venue for [the] case is in Franklin County as

no case was pending in Greene County and there is no request to transfer case.” Attached to

John’s brief is a copy of a document from the Franklin County Common Pleas Court,

Domestic Division, which indicates that Monaca was personally served with a certified copy

of a summons and complaint on July 23, 2012.

       {¶ 18} Monaca responds that the trial court did not abuse its discretion in reopening

the matter, and that John’s “reason for filing in Franklin County was in the hopes * * * for a

lower spousal support order.”       Monaca asserts that “Franklin County did not have

jurisdiction to host a new complaint for divorce on behalf of” John. Monaca asserts that

service of process was first perfected in Greene County and “priority is given to the court

where service of process is first successfully accomplished.”

       {¶ 19} Regarding the first dismissal of this matter, we note that the trial court’s

November 4, 2011 Notice of Dismissal indicates that the matter would be subject to

dismissal without prejudice on November 28, 2011, in the absence of a final decree. The

court, however, issued its Judgment Entry dismissing the matter on November 22, 2011,

six days earlier than it indicated it would do so, and it also failed to indicate that the

dismissal was without prejudice. In vacating the erroneous dismissal, the court exercised its

inherent authority to correct the erroneous judgment entry.

       {¶ 20} Regarding the second dismissal, we note that in its Pretrial Order, the court

indicated that, in the absence of a decree, “the case will once again be dismissed and will not

be reopened. The parties will have to refile the divorce complaint or file a dissolution

petition.” In its Order Dismissing the Case, the court indicated that “this case will not be
                                                                                               10

reopened again * * * ,” and it dismissed the matter without prejudice.

       {¶ 21} As this Court has previously noted, “‘[a] dismissal without prejudice

relieves the court of all jurisdiction over the matter, and the action is treated as though it had

never been commenced.’ * * * .” Ebbets Partners, Ltd. v. Day, 171 Ohio App.3d 20,

2007-Ohio-1667, 869 N.E.2d 110, ¶ 11 (2d Dist.). In other words, either of the parties, as

the court so indicated prior to the second dismissal, was required to refile a complaint for

divorce upon dismissal, and John apparently did so albeit in Franklin County.           Since the

court was without authority to “reopen” the matter and issue the final decree, John’s first two

assigned errors are sustained, and the Final Decree of Divorce is vacated. John’s third

assigned error is addressed to the issue of spousal support and is not properly before us,

given our resolution of the first two assigned errors. Judgment reversed and vacated.

                                          ..........

FROELICH, J., concurs.

HALL, J., concurring:

       {¶ 22} I agree with the conclusion of the majority that the trial court could not

reopen this case once unconditionally dismissed. I do however note there is a distinction

between this case and reopening of a dismissed case when there has been a reservation of

that possibility in the dismissal entry. See, e.g., Page v. Riley, 85 Ohio St.3d 621, 623, 710

N.E.2d 690 (1999). Because the dismissal in this case was without reservation, it could not

be reopened.

       {¶ 23} I do find it is perhaps unreasonable that when a case is dismissed for failure

to prosecute, a trial court cannot entertain a motion for relief from judgment under Civ. R.
                                                                                         11

60(B). Ebbets Partners, Ltd. v. Day, 171 Ohio App.3d 20, supra. This result applies even if

the reason the court uses to dismiss the case is decidedly wrong. When a trial court

erroneously dismisses a case for failure to prosecute, for instance where the court fails to

observe that a party has complied with a previous court order, there should be a means to

bring that apparent error to the attention of the trial court and obtain relief.

                                           ..........

Copies mailed to:

Richard P. Arthur
Adrienne D. Brooks
Hon. Steven L. Hurley
