[Cite as Nichols v. Nichols, 2014-Ohio-5025.]


                                        COURT OF APPEALS
                                     ASHLAND COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT



PRISCILLA MARIE NICHOLS                         :    JUDGES:
                                                :    Hon. William B. Hoffman, P.J.
        Plaintiff- Appellant                    :    Hon. Sheila G. Farmer, J.
                                                :    Hon. Patricia A. Delaney, J.
-vs-                                            :
                                                :
RICHARD EARL NICHOLS                            :    Case No. 14-COA-012
                                                :
        Defendant-Appellee                      :    OPINION




CHARACTER OF PROCEEDING:                             Appeal from the Court of Common
                                                     Pleas, Domestic Relations Division,
                                                     Case No. 13-DIV-009



JUDGMENT:                                            Affirmed




DATE OF JUDGMENT:                                    November 10, 2014




APPEARANCES:

For Plaintiff-Appellant                              For Defendant-Appellee

JOSEPH P. KEARNS, JR.                                NO APPEARANCE
P.O. Box 345
153 West Main Street
Ashland, OH 44805
Ashland County, Case No. 14-COA-012                                                     2

Farmer, J.

       {¶1}     Appellant, Priscilla Nichols, and appellee, Richard Nichols, were married

on April 16, 2010 in Baltimore, Maryland.        No children were born as issue of the

marriage. On January 10, 2013, appellant filed a complaint for divorce in Ohio.

       {¶2}     On July 2, 2013, appellant filed a motion for uncontested hearing, stating

the whereabouts of appellee were unknown and he was served through publication.

Appellee never filed a responsive pleading nor made an appearance.

       {¶3}     A hearing before a magistrate was held on July 24, 2013. By decision

filed August 19, 2013, the magistrate recommended the granting of a divorce, but

determined the trial court did not have personal jurisdiction over appellee to address

property division or spousal support.      Appellant filed an objection on the issue of

jurisdiction.   By judgment entry filed November 5, 2013, the trial court denied the

objection and adopted the magistrate's decision. Appellant filed an appeal. This court

affirmed the trial court's decision. Nichols v. Nichols, 5th Dist. Ashland No. 13-COA-

040, 2014-Ohio-1213.

       {¶4}     On April 2, 2014, appellant filed a stipulation of dismissal. On April 7,

2014, the trial court sua sponte filed a decree of divorce.

       {¶5}     Appellant filed an appeal and this matter is now before this court for

consideration. Assignment of error is as follows:

                                             I

       {¶6}     "THE TRIAL COURT ERRED IN GRANTING A DECREE OF DIVORCE

AFTER THE CASE HAD BEEN DISMISSED."
Ashland County, Case No. 14-COA-012                                                      3


                                               I

       {¶7}   Appellant claims the trial court erred in sua sponte filing a final decree of

divorce after she had filed a Civ.R. 41(A)(1)(b) dismissal. We disagree.

       {¶8}   On April 2, 2014, appellant filed a stipulation of dismissal pursuant to

Civ.R. 41(A)(1)(b) which states the following:



              (1) By plaintiff; by stipulation. Subject to the provisions of Civ. R.

       23(E), Civ. R. 23.1, and Civ. R. 66, a plaintiff, without order of court, may

       dismiss all claims asserted by that plaintiff against a defendant by doing

       either of the following:

              (b) filing a stipulation of dismissal signed by all parties who have

       appeared in the action.



       {¶9}   This case presents a novel application of a Civ.R. 41(A)(1)(b) dismissal.

Because service was perfected by publication under Civ.R 4.4 due to appellee's

transient lifestyle, the trial court only had in rem jurisdiction over him.

       {¶10} The matter was initially heard by a magistrate on July 24, 2013. The

magistrate's decision filed August 19, 2013 recommended the granting of a divorce, set

the duration of the marriage from April 16, 2010 to July 24, 2013, and determined the

trial court only had in rem jurisdiction over appellee. As a result, the decision did not

address property division or spousal support.

       {¶11} Appellant objected to the magistrate's decision on the issue of jurisdiction.

In her October 8, 2013 memorandum in support, appellant argued the following:
Ashland County, Case No. 14-COA-012                                                     4




             In the case of Kvinta v. Kvinta, 2003 Ohio 2884, 2003 WL21291049

      (10th Dist., 2003), the Court was faced with a situation where the

      Defendant did not reside in the state of Ohio, but did own property in

      Richland county, Ohio. The Court therein stated that although they did not

      have jurisdiction of the Defendant's assets outside of Ohio, the trial court

      did have jurisdiction over the…Ohio home. That Court awarded to (sic)

      the house to the Plaintiff, who was a resident of Ohio.



      {¶12} In its judgment entry filed November 5, 2013, the trial court denied the

objection and adopted the magistrate's decision pursuant to Civ.R. 53(D)(4)(b). The

trial court then ordered: "As directed in the Magistrate's Decision, counsel for Plaintiff

shall prepare the appropriate Decree of Divorce conforming to the Magistrate's Decision

and submit the same to the Court, all in accordance with the Local Rules." The trial

court further inserted Civ.R. 58 language in the ruling thereby rendering a final

appealable order:



             Within three (3) days of entering this judgment upon the Court's

      journal, the Clerk of Courts is hereby directed to serve copies of this

      Judgment Entry on the persons indicated in the cc: below. Said service

      shall be completed pursuant to Civil Rule 5(B) and by ordinary U.S. mail,

      unless another method is specified above. The Clerk of Courts shall also

      note service and date of service of the Judgment Entry in the appearance
Ashland County, Case No. 14-COA-012                                                  5


      docket, all in accordance with Rule 58 of the Ohio Rules of Civil

      Procedure.



      {¶13} Appellant appealed the trial court's decision, assigning as error: "THE

TRIAL COURT ERRED IN RULING THAT THE COURT DID NOT HAVE

JURISDICTION OVER PERSONAL PROPERTY LOCATED IN THE STATE OF OHIO."

Nichols v. Nichols, 5th Dist. Ashland No. 13-COA-040, 2014-Ohio-1213, ¶ 5. This court

affirmed the trial court's decision, noting at ¶ 14 that the case "involves personal

property, and appellant is not seeking to have the court exercise jurisdiction over the

property in order to meet a support award," and stating the following at ¶ 15-16:



             Although a court may grant an ex parte divorce to a spouse

      domiciled in the state, it must have personal jurisdiction over the

      nonresident spouse in order to determine issues of spousal support and

      property division. During v. Quoico, 10th Dist. Franklin No. 11AP-735, 973

      N.E. 2d 838, 2012-Ohio-2990, ¶39, citing Armstrong v. Armstrong, 162

      Ohio St. 406, 410, 123 N.E.2d 267 (1954). In the instant case, appellant

      does not argue that the court had personal jurisdiction over appellee.

      Accordingly, the court could not divide marital property.

             The assignment of error is overruled. The judgment of the Ashland

      County Common Pleas Court, Domestic Relations Division, is affirmed.

      Costs are assessed to appellant.
Ashland County, Case No. 14-COA-012                                                    6


       {¶14} On April 2, 2014, appellant filed a stipulation of dismissal pursuant to

Civ.R. 41(A)(1)(b), and the trial court sua sponte filed a decree of divorce on April 7,

2014 pursuant to Loc.R. 15.01(C) of the Court of Common Pleas of Ashland County. In

the decree, the trial court stated the following:



              The Court finds that Plaintiff has been a resident of Ashland County

       and the State of Ohio prior to the filing of the complaint for divorce,

       necessary for this Court to have proper subject matter jurisdiction and

       venue. The Court finds that Defendant, whose last known address was in

       the state of Maryland, was served by publication pursuant to Civ. R. 4.4.

       The Court has in rem jurisdiction over Defendant and not personal

       jurisdiction.



       {¶15} The trial court further determined: "Pursuant to the November 5, 2013

Judgment Entry of this Court, as affirmed by the Fifth District Court of Appeals pursuant

to its Judgment Entry and Opinion filed on March 25, 2014 in Case No. 13-COA-040,

this Court does not have jurisdiction to divide the property of the parties."

       {¶16} Appellant argues the trial court erred in filing the decree of divorce as it

was divested of jurisdiction because of the stipulated dismissal.

       {¶17} Loc.R. 15.01 of the Court of Common Pleas for Ashland County governs

preparation of orders, entries and decrees. Subsections (B) and (C) state the following:
Ashland County, Case No. 14-COA-012                                                  7


             (B)    UPON     DIRECTION       OF    THE     COURT         OR   UPON

      SETTLEMENT: Upon direction of the Court following oral hearing or

      following settlement, Counsel for Plaintiff or such attorney as assigned by

      the Court, shall prepare a proposed Judgment Entry based upon the

      Court's verbal announcement of decision or the parties' settlement terms.

      Counsel shall prepare the Judgment Entry and submit the same to

      opposing counsel for approval within fourteen (14) days of the hearing.

      Opposing Counsel shall thereafter have fourteen (14) days to review and

      approve the proposed Entry.          Counsel shall submit a properly

      approved Entry to the Court no later than forty-five (45) days

      following the Court's direction or settlement. Except upon express

      permission of the Court, the parties and counsel shall not be excused from

      attending any mediation or hearing in a case settled prior to mediation or

      hearing unless the Judgment Entry is submitted to the Court prior to the

      scheduled mediation or hearing.

             (C) COURT PREPARED ORDERS AND DECREES: Provisions of

      this rule shall not be deemed to preclude the Court at any time from sua

      sponte preparing and filing with the Clerk its own judgment or order.



      {¶18} Appellant did not comply with the time guidelines of Loc.R. 15.01(B) as

directed by the trial court in its judgment entry of November 5, 2013.

      {¶19} Given the language of the trial court's November 5, 2013 judgment entry

adopting the magistrate's decision and ordering appellant to prepare the decree of
Ashland County, Case No. 14-COA-012                                                         8


divorce, the failure to obtain a stay in filing the first appeal, and the express language of

this court's opinion cited above and the mandate, we find the stipulated dismissal on

April 2, 2014 was untimely.

          {¶20} The issue of the granting of the divorce was never appealed, and this

court's mandate affirmed the granting of the divorce.          We find the issue to be res

judicata. Res judicata is defined as "[a] valid, final judgment rendered upon the merits

bars all subsequent actions based upon any claim arising out of the transaction or

occurrence that was the subject matter of the previous action." Grava v. Parkman Twp.,

73 Ohio St.3d 379, 1995-Ohio-331, syllabus. Civ.R. 41(A)(1)(b) was not applicable sub

judice.

          {¶21} Upon review, we find the trial court did not err in sua sponte filing a decree

of divorce pursuant to Loc.R. 15.01(C).

          {¶22} The sole assignment of error is denied.
Ashland County, Case No. 14-COA-012                                         9


      {¶23} The judgment of the Court of Common Pleas of Ashland County, Ohio,

Domestic Relations Division is hereby affirmed.

By Farmer, J.

Hoffman, P.J. and

Delaney, J. concur.




SGF/sg
