[Cite as State ex rel. O'Malley v. Nicely, 2012-Ohio-4405.]


                 Court of Appeals of Ohio
                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA


                               JOURNAL ENTRY AND OPINION
                                        No. 98368




                 STATE EX REL. VICKI M. O’MALLEY
                                                              RELATOR

                                                       vs.

                             JUDGE JUDITH A. NICELY
                                                              RESPONDENT




                                     JUDGMENT:
                                 COMPLAINT DISMISSED


                                  Writs of Mandamus and Prohibition
                                          Motion No. 457008
                                           Order No. 458718

        RELEASE DATE:                September 26, 2012
ATTORNEY FOR RELATOR

Colleen M. O’Toole
6185 Grandridge Pointe
Concord, OH 44077

ATTORNEYS FOR RESPONDENT

William D. Mason
Cuyahoga County Prosecutor

By: Charles E. Hannan, Jr.
Assistant County Prosecutor
Justice Center - 8th Floor
1200 Ontario Street
Cleveland, OH 44113
KENNETH A. ROCCO, J.:

       {¶1} On May 16, 2012, the relator, hereinafter the “mother,” commenced this

mandamus and prohibition action against the respondent, Judge Judith Nicely. The

mother seeks to compel the judge to issue a final order on the mother’s motion to

terminate the shared parenting plan and her motion to modify parental rights and

responsibilities in the underlying case, O’Malley v. O’Malley, Cuyahoga C.P. Domestic

Relations Division No. DR-299141.1 The mother also seeks to prohibit the judge from

holding any further hearings in the underlying case until the judge has issued her final

ruling, and to prohibit the judge from enforcing her April 12, 2012 interim post decree

order requiring the mother, the minor children, and the father to engage in certain family

therapy, and limiting the parents’ power to schedule medical or psychological


       1
         The mother and the father were married in April 2000, and had children in 2001 and 2002.
In February 2006, they were divorced by an agreed entry with a shared parenting plan. In October
2008, the mother moved to terminate the shared parenting plan and to modify parental rights and
responsibilities. After the father served a federal prison term between 2008 and 2009, he also moved
to terminate the shared parenting plan in January 2010. Contentious litigation followed. The
respondent judge held hearings to resolve the motions. On April 12, 2012, the judge entered the
subject interim post decree order which, inter alia, denied the motions to terminate the shared
parenting plan and held in abeyance the mother’s motion to modify parental rights and
responsibilities. The judge found that the parents’ conflicts and unreasonable attitudes to each other
had adversely impacted the children. The judge ordered family therapy to integrate the father back
into the children’s lives and to restore the children to proper behavior. As part of this, she limited
the parents’ ability to schedule counseling and doctor appointments to “bona fide” emergencies. The
father moved to reconsider this interim order.
appointments for the children except for “bona fide” emergencies.         The mother also

sought an alternative writ, which this court denied.

       {¶2} On July 19, 2012, the respondent judge filed a motion to dismiss arguing that

she was conducting appropriate proceedings to bring these post decree matters to a close

and that Sup.R. 40(A)(3) does not confer on the mother a right to a ruling on motions

within 120 days enforceable in mandamus. As for the prohibition claims, the respondent

argued that she had basic statutory authority to determine divorce and child custody

matters and that the mother did not cite controlling authorities to establish that the judge

was patently and unambiguously without jurisdiction to issue and enforce the provisions

of the interim post decree order.

       {¶3} On July 26, 2012, the respondent filed a “Notice of subsequent court action.”

Attached to this notice was the respondent judge’s July 20, 2012 82-page order in which

she granted the father’s motion to reconsider the interim order, granted both parties’

motions to terminate the shared parenting plan and made the father the residential parent

and legal custodian of the children.     She also resolved all pending motions and made

provisions for the payment of guardian ad litem and expert witness fees.     She addressed

child support by terminating the order designating the father as obligor, but preserving

any arrearages and by noting that child support may be modified subject to the further

order of the court and subject to a filing of an appropriate motion. On July 24, 2012, the

mother appealed this order, 8th Dist. No. 98708.

       {¶4} On August 8, 2012, the mother filed her brief in opposition to the motion to
dismiss the present writ action.    The mother endeavored to raise doubt as to whether the

writ action has been rendered moot by the July 20, 2012 final order. She argued that the

issue of child support is unresolved because the current order only terminated it and no

child support worksheet was attached; thus, the July 20, 2012 order may not be a final,

appealable order.     She concluded that it would be premature to dismiss this writ action

until this court determines whether the July 20, 2012 order is or is not a final, appealable

order.      She did not address her prohibition claims.

         {¶5} 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.

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

grossly abused. State ex rel. Ney v. Niehaus, 33 Ohio St.3d 118, 515 N.E.2d 914 (1987).

Furthermore, mandamus is not a substitute for appeal.            State ex rel. Keenan v.

Calabrese, 69 Ohio St.3d 176, 631 N.E.2d 119 (1994); and State ex rel. Pressley v. Indus.

Comm. of Ohio, 11 Ohio St.2d 141, 228 N.E.2d 631 (1967), paragraph three of the

syllabus.    Moreover, mandamus is an extraordinary remedy that is to be exercised with

caution and only when the right is clear. It should not issue in doubtful cases.   State ex

rel. Taylor v. Glasser, 50 Ohio St.2d 165, 364 N.E.2d 1 (1977); and State ex rel. Connole

v. Cleveland Bd. of Edn., 87 Ohio App.3d 43, 621 N.E.2d 850

(8th Dist. 1993).
       {¶6} The principles governing prohibition are also well established. Its requisites

are (1) the respondent against whom it is sought is about to exercise judicial power, (2)

the exercise of such power is unauthorized by law, and (3) there is no adequate remedy at

law. State ex rel. Largent v. Fisher, 43 Ohio St.3d 160, 540 N.E.2d 239 (1989).

Prohibition will not lie unless it clearly appears that the court patently and unambiguously

has no jurisdiction of the cause that it is attempting to adjudicate or the court is about to

exceed its jurisdiction. State ex rel. Ellis v. McCabe, 138 Ohio St. 417, 35 N.E.2d 571

(1941), paragraph three of the syllabus.   “The writ will not issue to prevent an erroneous

judgment, or to serve the purpose of appeal, or to correct mistakes of the lower court in

deciding questions within its jurisdiction.” State ex rel. Sparto v. Juvenile Court of

Darke Cty., 153 Ohio St. 64, 65, 90 N.E.2d 598 (1950). Furthermore, it should be

used with great caution and not issue in a doubtful case.          State ex rel. Merion v.

Tuscarawas Cty. Court of Common Pleas, 137 Ohio St. 273, 28 N.E.2d 641 (1940).

       {¶7} Moreover, the court has discretion in issuing the writs of prohibition and

mandamus. State ex rel. Gilligan v. Hoddinott, 36 Ohio St.2d 127, 304 N.E.2d 382

(1973). In State ex rel. Pressley, 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 July 20, 2012 order renders this writ action moot. For

the mandamus claim, the mother sought to compel rulings on the motions in the
underlying case. In issuing the July 20, 2012 order, the respondent judge fulfilled her

duties and resolved those motions. This court declines the invitation to keep this writ

action pending on the possibility that the July 20, 2012 order may not be a final,

appealable order.   Such doubt is inconsistent with the relator’s need to establish a clear

legal right and a clear legal duty.     Similarly, the prohibition claims are also moot.

The July 20, 2012 order replaced the interim order, so questions concerning the

enforcement of the interim order are moot.     Furthermore, with the issuing of the July 20,

2012 order, the respondent judge would have no cause to hold further hearings on the

then-outstanding motions.      Thus, this court declines to grant an extraordinary writ.

       {¶9} Accordingly, this court grants the respondent judge’s motion to dismiss and

dismisses the applications for writs of mandamus and prohibition. Relator to pay 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).

       {¶10} Complaint dismissed.




_______________________________
KENNETH A. ROCCO, JUDGE

MARY J. BOYLE, P.J., and
KATHLEEN ANN KEOUGH, J., CONCUR
