[Cite as In re Estate of Lewis, 2018-Ohio-3832.]


STATE OF OHIO                     )                     IN THE COURT OF APPEALS
                                  )ss:                  NINTH JUDICIAL DISTRICT
COUNTY OF MEDINA                  )

IN RE: ESTATE OF MICHAEL E. LEWIS                       C.A. No.      17CA0054-M



                                                        APPEAL FROM JUDGMENT
                                                        ENTERED IN THE
                                                        COURT OF COMMON PLEAS
                                                        COUNTY OF MEDINA, OHIO
                                                        CASE Nos. 2015 12 ES 00551
                                                                   2016 11 CA 00032

                                 DECISION AND JOURNAL ENTRY

Dated: September 24, 2018



        CALLAHAN, Judge.

        {¶1}     Appellant, Christina Lewis, appeals an order of the Medina County Probate Court

that concluded that Ellen McCoy is the surviving spouse of the late Michael Lewis. This Court

reverses.

                                                   I.

        {¶2}     Michael E. Lewis died on December 10, 2015. A will executed by Mr. Lewis in

2014 provided that all of his property should pass to “my wife, CHRISTINA D. LEWIS.” Only

three days after Mr. Lewis’ death, however, attorney Robert Molnar filed an application for

authority to administer the estate that listed Ellen McCoy as the surviving spouse and represented

that Mr. Lewis died intestate. Six months later, Ms. Lewis filed an application to admit Mr.

Lewis’ will to probate.

        {¶3}     The trial court referred the matter to a magistrate for proceedings to determine the

identity of Mr. Lewis’ surviving spouse. During the hearing before the magistrate, Ms. Lewis
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testified that she married Mr. Lewis in 2008 and remained married to him on the date of his

death. She acknowledged that both had been previously married and identified one Carolyn

Lewis as Mr. Lewis’ former wife. Ms. Lewis testified that both she and Mr. Lewis had divorced

before their marriage, and she provided a copy of Mr. Lewis’ divorce decree as evidence that his

marriage to Carolyn Lewis ended in divorce.

         {¶4}   Ms. McCoy testified that she had also been previously married to Mr. Lewis; that

she had never initiated divorce proceedings against him; and that, to the best of her knowledge,

they had never divorced. She also testified that she had known about Mr. Lewis’ subsequent

relationship with Carolyn Lewis. Ms. McCoy acknowledged that she knew about the couple’s

divorce, but her involvement was limited: according to her testimony, she provided an affidavit

that verified she had not initiated divorce proceedings against Mr. Lewis after their relationship

ended.

         {¶5}   The magistrate concluded that Ms. McCoy’s testimony that she had never

initiated divorce proceedings against Mr. Lewis was persuasive and, on that basis, reasoned that

Mr. Lewis’ subsequent marriage to Ms. Lewis was invalid. Over Ms. Lewis’ objection, the trial

court adopted the magistrate’s decision and concluded that Ms. McCoy is Mr. Lewis’ surviving

spouse. Ms. Lewis appealed. Of her three assignments of error, the third is dispositive, so this

Court addresses it first.

                                               II.

                              ASSIGNMENT OF ERROR NO. 3

         THE TRIAL COURT ABUSED ITS DISCRETION BY FAILING TO
         CONSIDER THE PRECLUSIVE EFFECT OF THE FINDINGS OF THE
         MEDINA COUNTY DOMESTIC RELATIONS COURT AS STATED IN THE
         DIVORCE DECREE GRANTED TO MICHAEL AND CAROLYN LEWIS IN
         2005.
                                                3


       {¶6}    In her third assignment of error, Ms. Lewis argues that the trial court abused its

discretion by determining that Ms. McCoy is Mr. Lewis’ surviving spouse because the effect of

the trial court’s judgment is to permit Ms. McCoy to mount a collateral attack against the decree

of divorce between Mr. Lewis and Carolyn Lewis.

       {¶7}    Generally, this Court reviews a trial court’s action with respect to a magistrate’s

decision for an abuse of discretion. Fields v. Cloyd, 9th Dist. Summit No. 24150, 2008-Ohio-

5232, ¶ 9. “In so doing, we consider the trial court’s action with reference to the nature of the

underlying matter.” Tabatabai v. Tabatabai, 9th Dist. Medina No. 08CA0049-M, 2009-Ohio-

3139, ¶ 18.

       {¶8}    A collateral attack on a judgment is “‘an attempt to defeat the operation of a

judgment, in a proceeding where some new right derived from or through the judgment is

involved.’” Fawn Lake Apts. v. Cuyahoga Cty. Bd. of Revision, 85 Ohio St.3d 609, 611 (1999),

quoting Kingsborough v. Tousley, 56 Ohio St. 450, 458 (1897). Because “the collateral-attack

doctrine applies to both parties and nonparties,” a nonparty may collaterally attack a judgment if

the interests that the party asserts are sufficient. Ohio Pyro, Inc. v. Ohio Dept. of Commerce, 115

Ohio St.3d 375, 2007-Ohio-5024, ¶ 35-36. Nonetheless, collateral attacks on a judgment are

disfavored and are permitted only in the limited circumstances when the issuing court lacked

jurisdiction or when the underlying judgment was procured by fraud. Id. at ¶ 22-23.

       {¶9}    Assuming that Ms. McCoy’s interest in establishing herself as Mr. Lewis’

surviving spouse is sufficient to allow a collateral attack if warranted by the circumstances, this

is not a case in which collateral attack is permitted.       Similar cases are instructive.    An

impermissible collateral attack has been found, for example, when a party to a divorce seeks to

undo a property division by means of a partition action. Arbogast v. Arbogast, 165 Ohio St. 459,
                                                 4


460-461 (1956). Similarly, a collateral attack against a divorce decree cannot be made by

challenging a party’s status as surviving spouse in the context of a probate action. See In re

Estate of Lombard, 2d Dist. Madison No. 173, 1950 Ohio App. LEXIS 797 (Oct. 6, 1950).

       {¶10} By asserting her alleged rights as surviving spouse in this action, Ms. McCoy

effectively mounted a collateral attack on the decree of divorce between Mr. Lewis and Carolyn

Lewis. Although not a party to the divorce between Mr. Lewis and Carolyn Lewis, Ms. McCoy

could have sought intervention as a person who claimed an interest in the property at issue. See

Civ.R. 75(B)(1). Her testimony demonstrates that she was aware of Mr. Lewis’ purported

marriage to Carolyn Lewis and that she became aware of the divorce proceedings through her

daughter. Ms. McCoy also testified that she provided an affidavit in the context of the divorce

action at her daughter’s request. Although that affidavit was not entered into evidence in this

proceeding, Ms. McCoy’s testimony about it was clear: she represented that she never filed

divorce proceedings against Mr. Lewis, but not that she and Mr. Lewis never divorced.

       {¶11} Ms. McCoy’s testimony in this matter confirmed that at the time of Mr. Lewis’

divorce from Carolyn Lewis, she did not want to participate in the divorce action and she did not

think that she was entitled to any of the assets at issue. Ms. McCoy, therefore, effectively

disclaimed her property rights as Mr. Lewis’ spouse by failing to assert them in the divorce

action despite having notice of those proceedings. In this case, however, Ms. McCoy explicitly

asked the trial court to void that decree.

       {¶12} There is no evidence in the record of this case that Mr. Lewis perpetrated fraud on

the court in the divorce case, nor did the domestic relations court lack subject matter jurisdiction

to proceed—even if, as Ms. McCoy now maintains, she remained married to Mr. Lewis at the

time. See R.C. 3105.01(A) (providing that the court of common pleas may grant a divorce when
                                                5


“[e]ither party had a husband or wife living at the time of the marriage from which the divorce is

sought[.]”).

        {¶13} Under the unusual circumstances of this case, Ms. McCoy’s attempt to assert

rights as a surviving spouse constituted an impermissible collateral attack on the judgment of

divorce between Mr. Lewis and Carolyn Lewis. Accordingly, the trial court abused its discretion

by concluding that Ms. McCoy is Mr. Lewis’ surviving spouse. Ms. Lewis’ third assignment of

error is sustained.

                                 ASSIGNMENT OF ERROR NO. 1

        THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT DENIED [MS.
        LEWIS’] MOTION TO SUBMIT ADDENDUM TO FORM 1.0, WHICH
        WOULD HAVE NAMED [MS. LEWIS] AS MICHAEL LEWIS’ SURVIVING
        SPOUSE.

                                 ASSIGNMENT OF ERROR NO. 2

        THE TRIAL COURT ABUSED ITS DISCRETION WHEN, IN CONSIDERING
        [MS. LEWIS’] OBJECTIONS, IT REFUSED TO ALLOW ADDITIONAL
        EVIDENCE.

        {¶14} Ms. Lewis’ first and second assignments of error are moot.             See App.R.

12(A)(1)(c).

                                               III.

        {¶15} Ms. Lewis’ third assignment of error is sustained.          Her first and second

assignments of error are moot. The judgment of the Medina County Court of Common Pleas,

Probate Division, is reversed.

                                                                              Judgment reversed.




        There were reasonable grounds for this appeal.
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       We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Medina, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.

       Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

       Costs taxed to Appellee.




                                                     LYNNE S. CALLAHAN
                                                     FOR THE COURT



SCHAFER, P. J.
CARR, J.
CONCUR.


APPEARANCES:

MONICA E. RUSSELL, Attorney at Law, for Appellant.

ADRIANN S. MCGEE, Attorney at Law, for Appellee.

JOHN C. OLBERHOLTZER, Attorney at Law, for Appellee.
