[Cite as State ex rel. Hitch v. Cuyahoga Cty. Court of Common Pleas, 2013-Ohio-1997.]


                 Court of Appeals of Ohio
                               EIGHTH APPELLATE DISTRICT
                                  COUNTY OF CUYAHOGA


                              JOURNAL ENTRY AND OPINION
                                       No. 99384



                            STATE OF OHIO EX REL.,
                                BRYAN HITCH
                                                                   RELATOR

                                                    vs.

                    CUYAHOGA COUNTY COURT OF
                       COMMON PLEAS, ET AL.
                                                                   RESPONDENTS




                                   JUDGMENT:
                            WRIT GRANTED IN PART AND
                                 DENIED IN PART


                                          Writ of Mandamus
                                          Motion No. 463178
                                          Order No. 464591

        RELEASE DATE: May 15, 2013
ATTORNEY FOR RELATOR

Kathleen M. Kirby
The United Bank Building
2012 West 25th
Suite 701
Cleveland, Ohio 44113

ATTORNEYS FOR RESPONDENTS

Timothy J. McGinty
Cuyahoga County Prosecutor
Charles E. Hannan, Jr.
Assistant County Prosecutor
The Justice Center - 8th Floor
1200 Ontario Street
Cleveland, Ohio 44113
MARY EILEEN KILBANE, J.:

       {¶1} On January 9, 2013, the relator, Bryan Hitch, commenced this mandamus

action against the respondents, the Cuyahoga County Court of Common Pleas and Judge

Allison Floyd, to compel rulings on ten outstanding matters in the underlying case, In re:

the Matter of M.H., Cuyahoga C.P. No. SU 06 703419 or to set those pending matters for

an immediate oral hearing.     On March 12, 2013, the respondents moved for summary

judgment on the grounds of mootness because the court had ruled on most, if not all, of

the outstanding motions and had set the matter for further proceedings. On April 11,

2013, Hitch filed his brief in opposition to the motion for summary judgment arguing that

five of the subject motions remain outstanding and, in issuing one of the orders, the trial

court identified Hitch as the obligor, whereas previously he had been the obligee.           For

the following reasons, this court grants the respondents’ motion for summary judgment in

part and denies it in part, and grants the writ of mandamus in part and denies it in part.

       {¶2} The underlying case concerns the issue of child support between the mother

and the father, who is the relator, and their son, born in December 1998.      The relator is

the custodial parent and has been trying to determine and collect child support from the

mother. In 2009 and 2010, the relator father filed motions to modify child support. A

magistrate held a hearing on these motions in late February 2011, and issued a report on

July 3, 2012.   The mother filed objections, and the father countered.    The trial judge did

not issue a ruling.
        {¶3} The following motions are or were the outstanding subject motions: (1)

April 24, 2012 motion to show cause why the mother should not be held in contempt for

failing to pay child support; (2) April 24, 2012 motion for attorney fees and costs; (3) the

father’s July 17, 2012 objections to the magistrate’s report; (4) July 24, 2012 motion to

compel the mother to respond to the father’s discovery request; (5) July 24, 2012, motion

for attorney fees; (6) August 3, 2012 motion to strike the mother’s objections; (7) the

father’s October 24, 2012 motion for leave to file supplemental objections; (8) the

father’s October 24, 2012 motion requiring the mother to contribute to the son’s

orthodontic bill; (9) the father’s November 14, 2012 motion for release of transcript; and

(10) a November 2012 request for an attorney’s conference.

        {¶4} Subsequent to the filing of this mandamus action, the trial court ruled on the

magistrate’s report, overruling the various objections. It is in this order that the father is

identified as the obligor.    The court also denied the motion to strike the mother’s

objections, the motion for leave to file supplemental objections, and the motion for the

release of the transcript.   It further set the underlying case for a pretrial on March 8,

2013.    It is on the basis of these rulings that the respondent moved for summary

judgment, that the court had ruled on a sufficient number of the outstanding matters and is

otherwise proceeding to judgment so that a writ of mandamus is not needed.

        {¶5} In response, the father argues that issuing an order that makes him the

obligor, when he is the obligee, is not a discharge of the court’s duties. He also notes

that half of the subject motions are still outstanding: the April 25, 2012 motion to show
cause and the corresponding motion for attorney fees, the July 24, 2012 motion to compel

discovery responses and the corresponding motion for attorney fees, and the October 24,

2012 motion to order contribution on the orthodontic bill. Although he notes that he had

been granted leave to supplement the motions to show cause and for contribution, which

he did on March 22, 2013, these motions have now been outstanding for approximately

six months to one year. Thus, mandamus should issue to effect rulings on these matters.



       {¶6} The requisites for mandamus are well established: (1) the relator must have

a clear legal right to the requested relief, (2) the respondent must have a clear legal duty

to perform the requested relief, and (3) there must be no adequate remedy at law, such as

appeal.   Additionally, although mandamus may be used to compel a court to exercise

judgment or to discharge a function, it may not control judicial discretion, even if that

discretion is abused. State ex rel. Ney v. Niehaus, 33 Ohio St.3d 118, 515 N.E.2d 914

(1987).   Mandamus does not lie to correct errors and procedural irregularities in the

course of a case. State ex rel. Jerninghan v. Gaughan, 8th Dist. No. 67787, 1994 Ohio

App. LEXIS 6227 (Sept. 26, 1994).

       {¶7} Although mandamus should be used with caution, the court has discretion

in issuing it. In State ex rel. Pressley v. Indus. Comm. of Ohio, 11 Ohio St.2d 141, 228

N.E.2d 631 (1967), paragraph seven of the syllabus, the Supreme Court of Ohio ruled that

“in considering the allowance or denial of the writ of mandamus on the merits, [the court]

will exercise sound, legal and judicial discretion based upon all the facts and
circumstances in the individual case and the justice to be done.”

       {¶8} In the present case, the trial court resolved half of the outstanding matters.

It overruled the objections to the magistrate’s report and issued a ruling on the motion to

modify child support. Thus, those matters are moot. To the extent that the trial court

misidentified the obligor, the father has adequate remedies at law through a motion to

correct clerical mistakes pursuant to Civ.R. 60(A), a motion pursuant to Civ.R. 60(B), or

an appeal.   Furthermore, because the content of an order comes within the discretion of

the trial court, mandamus does not lie to correct errors in the order.   Similarly, the trial

court has resolved the motions to strike the mother’s objections, for leave to file

supplemental objections, to release the transcript, and to set an attorney conference.

Those matters are moot, and this court grants the respondents’ motion for summary

judgment as to those claims.

       {¶9} However, the motion to show cause and its accompanying motion for

attorney fees have been pending for approximately one year.         The motion to compel

discovery and its accompanying motion for attorney fees have been pending for

approximately nine months, and the motion for contribution for the son’s orthodontic

work has now been pending for six months.      The underlying case is a juvenile case with

a young man who is approaching majority. These cases demand prompt resolution, even

in the face of significant dockets.   Therefore, this court issues a writ of mandamus to

compel the respondents to resolve the above-listed outstanding motions within 28 days of

the entry of this order.
       {¶10} Accordingly, the court grants the respondents’ motion for summary

judgment in part and denies in part.       The court denies the application for a writ of

mandamus in part, as to the motions that have been rendered moot, and grants it as to the

five outstanding motions to be resolved within 28 days of the date of this entry.         Each

party to bear its own costs.   This court directs the clerk of court to serve all parties notice

of this judgment and its date of entry upon the journal as required by Civ.R. 58(B).

       {¶11} Writ denied in part and granted in part.




MARY EILEEN KILBANE, JUDGE

MELODY J. STEWART, A.J., and
SEAN C. GALLAGHER, J., CONCUR
