[Cite as In re Dissolution of the Marriage of Smith & Smith, 2015-Ohio-5522.]


                                   IN THE COURT OF APPEALS

                               ELEVENTH APPELLATE DISTRICT

                                     PORTAGE COUNTY, OHIO


IN THE MATTER OF THE DISSOLUTION                        :           OPINION
OF THE MARRIAGE OF: NATHAN M.
SMITH AND KELLY M. SMITH                                :
                                                                    CASE NO. 2014-P-0056
                                                        :


Civil Appeal from the Portage County Court of Common Pleas, Domestic Relations
Division, Case No. 2008 DR 00274.

Judgment: Reversed and vacated.


Robert E. Rosenberg and Michael D. Dailey, 533 East Main Street, Ravenna, OH
44266 (For Appellee, Nathan M. Smith).

Mary E. Randazzo, 6555 Dean Memorial Parkway, Boston Heights, OH 44236 (For
Appellant, Kelly M. Smith).



DIANE V. GRENDELL, J.

        {¶1}     Petitioner-appellant, Kelly M. Smith, appeals from the September 11, 2014

Judgment Entry of the Portage County Court of Common Pleas, Domestic Relations

Division, sua sponte vacating the Decree of Dissolution of her marriage with petitioner-

appellee, Nathan M. Smith. The issues to be determined in this case are whether a

party can raise the failure to file a parenting affidavit pursuant to R.C. 3127.23 in a

collateral attack several years after the court has issued a dissolution decree and

whether due process is violated when a party does not follow certain local rules and

statutory requirements in dissolution proceedings.                   For the following reasons, we

reverse and vacate the decision of the lower court.
         {¶2}   On May 20, 2008, Nathan and Kelly Smith, who had one child together,

filed a Petition for Dissolution of Marriage. On the same date, Nathan filed a Parenting

Affidavit.

         {¶3}   On July 21, 2008, a Judgment Entry Decree of Dissolution was filed, with

an attached Separation Agreement and Shared Parenting Plan, and the dissolution was

granted. The transcript of the hearing showed that the parties were questioned about

their consent to the Separation Agreement, established that it was signed voluntarily,

and that both parties wanted a dissolution.       Only Nathan was represented by an

attorney.

         {¶4}   An Agreed Judgment Entry was filed on August 4, 2008, in which the

parties agreed that the court would not retain jurisdiction over Nathan’s spousal support

obligation, which, pursuant to the Separation Agreement was $6,500 per month

beginning January 1, 2013, until 2020, when it became $9,100 per month. The Entry

stated that the spousal support would continue until Kelly’s remarriage or Nathan’s

death.

         {¶5}   Beginning on January 4, 2013, Nathan filed various Motions to Vacate the

Judgment Entry Decree of Dissolution, on the grounds that the court did not have

jurisdiction, for reasons including that the Decree did not state whether Kelly was

pregnant at the time of the final hearing, no evidence was presented to show the parties

were living apart at the time of the dissolution, there was a discrepancy in the amount of

loans owed by the parties, a hearing was not held regarding the disclosure of Nathan’s

address, and information was not presented regarding Kelly’s military status. Nathan

also filed various motions relating to parenting rights and his spousal support obligation.




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        {¶6}    On April 16, 2013, Nathan filed a Brief in support of his motions, arguing,

inter alia, that the Decree of Dissolution should be vacated since he was not mentally

sound when it was executed and that the court lacked jurisdiction because Kelly failed

to file a parenting affidavit. Nathan also argued that it was unconscionable to require

him to pay in excess of $6,000 a month in spousal support until Kelly’s remarriage or his

death, given that they were only married for five years. In response to Nathan’s various

motions in this matter, Kelly filed an original action with this court in State ex rel. Smith

v. Hayes, 11th Dist. Portage No. 2013-P-0089, 2014-Ohio-1367, arguing that the lower

court should not be permitted to rule on certain motions filed by Nathan, which was

dismissed.1

        {¶7}    Nathan filed a Motion for Summary Judgment on April 18, 2014,

requesting that the Decree of Dissolution be declared void.

        {¶8}    On August 22, 2014, the lower court issued a Judgment Entry declaring

the Decree of Dissolution void due to the court’s lack of jurisdiction, stating that the

parties had not filed the parenting affidavits required under R.C. 3127.23.

        {¶9}    Kelly subsequently filed a Motion to Reconsider and Motion to Vacate the

Judgment Entry. On September 11, 2014, the court issued a Judgment Entry vacating

the August 22, 2014 judgment. On the same date, the trial court issued a Judgment

Entry, finding that Kelly had not filed a parenting affidavit and that it was a “mandatory

jurisdictional requirement.” It stated that “this Court, on its own Motion, finds that the

Trial Court lacked jurisdiction in the above-captioned matter and the Decree of



1. This court held that, “[e]ven though respondent [the judge] does not have any authority to suspend or
modify Smith’s spousal-support obligation while the separation agreement remains in effect, he does
have the jurisdiction to issue judgments on Smith’s pending motions to vacate under Civ.R. 60(B).” Id. at
¶ 42.

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Dissolution filed July 21, 2008 and the Agreed Judgment Entry filed August 4, 2008 are

hereby vacated and held for naught.”

       {¶10} Kelly appealed from that decision in the present matter. Nathan filed a

Motion to Dismiss the appeal, arguing that, since he and Kelly had been granted a

divorce in Pennsylvania while the appeal in the present case was pending, the appeal is

moot. We denied this Motion in order to protect Kelly’s right to appeal and based on her

attempt to preserve that right through a stay.

       {¶11} On appeal, Kelly raises the following assignment of error:

       {¶12} “The trial court committed reversible error by vacating [the] Decree of

Dissolution from six (6) years prior due to one party’s failure to file parenting affidavit in

accordance with O.R.C. 3127.23.”

       {¶13} As Kelly’s argument raises the issue of whether the lower court properly

decided the issue of jurisdiction as it related to the Decree of Dissolution, we review this

matter under a de novo standard of review. JP Morgan Chase Banks v. Ritchey, 11th

Dist. Lake No. 2014-L-089, 2015-Ohio-1606, ¶ 16 (“[a] determination as to whether the

trial court has subject-matter jurisdiction * * * is a question of law reviewed de novo”).

       {¶14} Kelly argues that the court erred in determining that it had been without

jurisdiction to enter the Decree of Dissolution and the August 4, 2008 Agreed Judgment

Entry, since this issue was not raised at that time and is not permitted through a

collateral attack.

       {¶15} Nathan argues that, since there was not at least substantial compliance

with the parenting affidavit requirement, the court properly vacated the Decree of

Dissolution.




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       {¶16} Pursuant to R.C. 3127.23(A)(1)-(3), “[e]ach party in a child custody

proceeding, in the party’s first pleading or in an affidavit attached to that pleading, shall

give information if reasonably ascertainable under oath as to the child’s present address

or whereabouts, the places where the child has lived within the last five years, and the

name and present address of each person with whom the child has lived during that

period,” as well as information regarding other custody proceedings related to that child.

       {¶17} The Supreme Court of Ohio has held that “[t]he requirement in [former]

R.C. 3109.27 [now renumbered as R.C. 3127.23] that a parent bringing an action for

custody inform the court at the outset of the proceedings of any knowledge he has of

custody proceedings pending in other jurisdictions is a mandatory jurisdictional

requirement of such an action.” Pasqualone v. Pasqualone, 63 Ohio St.2d 96, 406

N.E.2d 1121 (1980), paragraph one of the syllabus. As this court explained, however,

“the Supreme Court of Ohio subsequently relaxed some of the strict jurisdictional

requirements.” Mendiola v. Mendiola, 11th Dist. Portage No. 2006-P-0038, 2007-Ohio-

466, ¶ 54. In In re Palmer, 12 Ohio St.3d 194, 465 N.E.2d 1312 (1984), the Supreme

Court held:

              If we were to deny subject-matter jurisdiction by a mechanistic

              interpretation of R.C. 3109.27, it would be possible for any party to

              completely obstruct a custody proceeding by willfully failing to file

              an R.C. 3109.27 affidavit or pleading. Such a result would not only

              contravene the clear intent of R.C. 3109.27 but could potentially

              render the custody statutes of this state a nullity. Moreover, such a

              result would hamstring our long-established rule that ultimately the

              issue must be what is in the best interests of the child.

                                             5
Id. at 197. In declining to strictly apply the statute, this court held that “the mandates of

R.C. 3109.27, while required, are not jurisdictional so long as the statute’s requirements

are substantially satisfied and no prejudice results.” (Citation omitted.) Mendiola at ¶

57.

       {¶18} In the present matter, Kelly argues that, regardless of whether a parenting

affidavit should have been filed or substantial compliance with that requirement

occurred, it is not appropriate for this issue to be raised in a Motion to Vacate over four

years after the Decree of Dissolution was filed.

       {¶19} The Ohio Supreme Court has held that “the initial failure to comply with

R.C. 3109.27 has bearing on the juvenile court’s authority to exercise jurisdiction rather

than on its subject-matter jurisdiction.” Moore v. Goeller, 103 Ohio St.3d 427, 2004-

Ohio-5579, 816 N.E.2d 594, ¶ 13. In reaching this holding, the Supreme Court cited

Pratts v. Hurley, 102 Ohio St.3d 81, 2004-Ohio-1980, 806 N.E.2d 992, ¶ 10-13. In

Pratts, the Supreme Court discussed the types of jurisdiction and when such

jurisdictional issues may be raised. Pratts explained that jurisdiction over a particular

case “‘encompasses the trial court’s authority to determine a specific case within that

class of cases that is within its subject matter jurisdiction. It is only when the trial court

lacks subject matter jurisdiction that its judgment is void; lack of jurisdiction over the

particular case merely renders the judgment voidable.’” (Citation omitted.) Id. at ¶ 12.

Failure to comply with statutory requirements such as those in the present matter, which

generally constitutes an improper exercise of jurisdiction as opposed to a lack of subject

matter jurisdiction, is “subject only to direct appeal and not collateral attack,” i.e., “[a]n

attack on a judgment in a proceeding other than a direct appeal.” Id. at ¶ 31; State v.




                                              6
Filiaggi, 86 Ohio St.3d 230, 240, 714 N.E.2d 867 (1999); Black’s Law Dictionary 278

(8th Ed.2004).

       {¶20} Nathan failed to raise the lack of a parenting affidavit at any time before

the dissolution or through a direct appeal. His attempt to raise it now in a Motion to

Vacate several years after the dissolution of the marriage is a collateral attack. As

such, the Decree of Dissolution and Agreed Judgment Entry could not be properly

vacated on this ground.

       {¶21} Further, it is noteworthy that the purpose of R.C. 3127.23(A)’s affidavit

requirement is to prevent multiple contradictory rulings from different courts/jurisdictions

on the issue of custody. In re S.K., 8th Dist. Cuyahoga No. 89068, 2008-Ohio-1256, ¶

2, fn. 1 (“R.C. 3127.23(A) is part of the Uniform Child Custody Jurisdiction and

Enforcement Act,” and the requirement to submit an affidavit is “[t]o ensure that no court

of another state is currently exercising jurisdiction over a child custody proceeding

concerning the same child”). It is not intended to be used to vacate proceedings

between two parties when there were no existing matters relating to custody in a

different jurisdiction.

       {¶22} While there are several cases that apply R.C. 3127.23 following the

Supreme Court decisions outlined above, such as In re S.K., cited by Nathan, these

cases generally do not involve collateral attacks but issues raised on direct appeal. For

example, although this court in Mendiola discussed substantial compliance and a lack of

prejudice to determine whether reversal was warranted, in the absence of the ability for

Nathan to even attack the court’s judgment through a motion to vacate, it is

unnecessary to apply these principles.




                                             7
        {¶23} This approach is also consistent with the principles outlined above, that a

strict application is not in the best interests of the child. The Supreme Court has noted

that, under some circumstances “a rigid interpretation of R.C. 3109.27 would only serve

to prolong the agony of the children.” Palmer, 12 Ohio St.3d at 197, 465 N.E.2d 1312.

Vacating an otherwise valid judgment of dissolution several years later on a collateral

attack would potentially change the rights and obligations of the parents and the

children and would be the mechanistic interpretation of R.C. 3127.23 that Palmer

rejected. This is particularly applicable in this case, where the lack of the parenting

affidavit seemed to have no impact on Nathan, given that there were no real questions

about where the child had lived or issues regarding other custody proceedings.                            It

appears that the only benefit from vacating the entry would be for Nathan to avoid

paying the large spousal support obligation which he has unsuccessfully attempted to

challenge due to the lower court’s lack of jurisdiction. State ex rel. Smith, 2014-Ohio-

1367, at ¶ 23.2 We are dubious of allowing a party to obtain a vacation of a dissolution

on a technicality with the potential outcome being the avoidance of a spousal support

obligation which the court lacks jurisdiction to modify.

        {¶24} Nathan asserts that Kelly essentially waived the ability to dispute the

jurisdiction question because she did not address this below. We emphasize that the

court was not permitted to, sua sponte, vacate a Decree of Dissolution and

accompanying rights and responsibilities of the parties merely on the basis that a party

did not dispute a legal issue. Further, the cases cited by Nathan relate to situations in




2. It is at least noteworthy that immediately upon the trial court vacating the dissolution, Nathan obtained
a divorce in Pennsylvania and sought dismissal of this appeal.

                                                     8
which a party failed to raise an error, where here, no error had yet occurred to which

Kelly was required to object.

       {¶25} Nathan similarly argues that the trial court’s decision should be affirmed

because it was “tantamount to granting husband’s unopposed motion for summary

judgment.” There are several reasons why this argument fails.

       {¶26} It is initially unclear the necessity of either filing or responding to a motion

for summary judgment in this matter. Motions for summary judgment are appropriate

when a party is “seeking to recover upon a claim, counterclaim, or cross-claim or to

obtain a declaratory judgment.” Civ.R. 56(A). Such is not the case when Nathan is

merely asking for a ruling on a Motion to Vacate. Regardless, it does not follow that

Kelly’s failure to file an opposition permits the lower court to vacate the dissolution

decree in a manner that is contrary to law. Nathan seems to indicate, citing Civ.R.

56(E), that failure to respond results in an automatic entry of a judgment against that

party. As Civ.R. 56(E) states, however, judgment may be entered only “if appropriate.”

Nathan cannot cite to case law allowing a court to grant summary judgment to vacate a

dissolution decree on grounds that are contrary to law.

       {¶27} In addition, the court did not specifically rule on Nathan’s motions, but

vacated the Decree of Dissolution “on its own motion”, i.e., sua sponte. Thus, it did not

rely on any Motion for Summary Judgment or related response.

       {¶28} Nathan argues that, regardless of the foregoing, the court’s judgment

should be upheld because it was also proper to vacate the Decree of Dissolution on the

ground that his due process rights were violated when the court failed to hold a hearing

to determine whether his address/identifying information should not be disclosed, as he

requested in his parenting affidavit.

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       {¶29} Pursuant to R.C. 3127.23(D), “[i]f a party alleges in an affidavit * * * that

the health, safety, or liberty of a party or child would be jeopardized by the disclosure of

identifying information, the information shall be sealed and may not be disclosed to the

other party or the public unless the court orders the disclosure to be made after a

hearing in which the court * * * determines that the disclosure is in the interests of

justice.”

       {¶30} While Nathan argues that the failure to hold a hearing on the foregoing

matter was a due process violation, he does not establish how the lack of a hearing,

even if it was an error, allows for the vacating of the Decree of Dissolution. The lack of

a hearing on whether his address should be confidential bears no relation to whether

the dissolution was proper. While he cites several cases in support of his contention

that a judgment can be void when there is a due process violation, those cases found a

judgment void that related specifically to the due process error. For example, in State v.

Buchanan, 43 Ohio App.2d 93, 96, 334 N.E.2d 503 (8th Dist.1974), it was held that a

guilty plea is void when not given knowingly and voluntarily, and in Stevenson v.

Stevenson, 5th Dist. Stark No. 1999CA00365, 2000 Ohio App. LEXIS 2840, 3-4 (June

26, 2000), a judgment was void when a party was not able to be present for the hearing

on the motion that led to that judgment. In these cases, the due process violation

directly impacted the judgment that was subsequently declared void. Such was not the

case here, as the disclosure of Nathan’s address impacted no part of the dissolution or

separation agreement.

       {¶31} Finally, Nathan argues that the trial court’s decision should be affirmed on

the grounds that the court lacked jurisdiction and violated his due process rights when

Kelly failed to follow Portage County Domestic Relations Court Local Rules, including

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the failure to file a statement of whether she served in the military and the parenting

affidavit addressed above.

       {¶32} Nathan fails to explain how Kelly’s lack of compliance with the local rules

implicates his due process rights. The issues that he raises did not deprive him of any

rights and could have been resolved prior to the entry of the Decree of Dissolution by

merely requesting that the necessary information be provided. This is not the case, like

Hillabrand v. Drypers Corp., 87 Ohio St.3d 517, 721 N.E.2d 1029 (2000), cited by

Nathan, where he was deprived of a right to respond or to defend himself.

       {¶33} Further, while Nathan cites cases where the lower court’s decision to

dismiss an action for noncompliance with local rules was upheld on appeal, these are

entirely inapplicable to the present matter. Here, the lower court did not dismiss the

action for noncompliance prior to the issuance of the decree, Nathan did not appeal that

failure, and he now tries to raise the issue several years later. There is no authority to

vacate a Decree of Dissolution in a collateral proceeding based on a party’s failure to

follow local rules.    Even if this were a direct appeal, this court has noted that the

enforcement of local rules “is a matter within the discretion of the court promulgating the

rules.” Dvorak v. Petronzio, 11th Dist. Geauga No. 2007-G-2752, 2007-Ohio-4957, ¶

30; also Yoel v. Yoel, 11th Dist. Lake No. 2009-L-063, 2012-Ohio-643, ¶ 40 (a violation

of local rules “is by itself typically insufficient to constitute grounds for reversal”).

       {¶34} This issue is also not jurisdictional such that it can be raised in a collateral

attack, as Nathan claims, for the reasons outlined above, as to the parenting affidavit.

Nathan cites no authority for the proposition that the issue regarding military service can

be raised in this manner either.




                                               11
       {¶35} Given the foregoing, we reverse and vacate the court’s judgment vacating

the July 21, 2008 Decree of Dissolution and August 4, 2008 Agreed Judgment Entry.

As such, those judgments continue to be in effect.

       {¶36} The sole assignment of error is with merit.

       {¶37} For the foregoing reasons, the September 11, 2014 Judgment Entry of the

Portage County Court of Common Pleas, Domestic Relations Division is reversed and

vacated. Costs to be taxed against appellee.



TIMOTHY P. CANNON, P.J., concurs with a Concurring Opinion.

COLLEEN MARY O’TOOLE, J., concurs with a Concurring Opinion.



                  _________________________________________



TIMOTHY P. CANNON, P.J., concurring.

       {¶38} I concur in the opinion of the majority. By an interlineation initialed by the

parties, the separation agreement indicated that the court would retain jurisdiction over

husband’s spousal support obligation. The original decree, adopting the terms of the

separation agreement, also ruled that the court retained jurisdiction by incorporating this

separation agreement. This became a final order of the trial court.

       {¶39} Thereafter, the parties filed a joint motion to modify the separation

agreement, which had been approved by final order.         The trial court approved this

motion, and modified its own prior final order. That decree, filed just days later, stated:

“The parties both agree that they have exchanged mutual promises and consideration in

exchange for this modification of the Separation Agreement.”            However, at oral


                                            12
argument, counsel could not state the “consideration” exchanged for this most

significant modification.

       {¶40} The parties have neither addressed the trial court’s jurisdiction to modify

its own final order nor whether there was, in fact, consideration for this significant

contractual modification. Consequently, we will not address these questions on appeal.



                   _________________________________________



COLLEEN MARY O’TOOLE, J., concurs with Concurring Opinion.

       {¶41} I concur with the well-reasoned opinion of the majority. I write separately

simply to note my belief that the failure by one party to a divorce or dissolution

proceeding to file an affidavit in compliance with R.C. 3127.23 should not, as a matter of

law, form the basis for an attack on the validity of the decree, as such, but merely for

one directed to the custody arrangements made thereunder. As the majority notes,

R.C. 3127.23 is part of the Uniform Child Custody Jurisdiction and Enforcement Act.

The purpose of the affidavit is to inform the trial court whether any other court might

have jurisdiction of any child subject of the divorce and dissolution.         In this case,

Nathan’s real purpose in seeking to set aside the decree of dissolution appears to be

the amount of the spousal support he pays – not anything relating to custody of the

couple’s child. Kelly’s failure to file an affidavit pursuant to R.C. 3127.23 does not relate

to the issue of spousal support.

       {¶42} A trial court may modify spousal support if it finds that a substantial

change in circumstances has occurred, and that the change was not contemplated at

the time the award was made. Mencini v. Mencini, 11th Dist. Geauga No. 2009-G-

                                             13
2930, 2010-Ohio-2409, ¶17, quoting Mandelbaum v. Mandelbaum, 121 Ohio St.3d 433,

2009-Ohio-1222, ¶33. If the trial court finds such a change has occurred, it then looks

to the factors provided in R.C. 3105.18(C) in conducting its reevaluation. Latimer v.

Latimer, 179 Ohio App.3d 90, 2008-Ohio-5655, ¶7. However, the threshold question is

whether the trial court retained jurisdiction to modify spousal support: the rest of the

analysis cannot occur without retention of jurisdiction. Mencini, supra, at ¶17, quoting

Mandelbaum, supra, at ¶33; see also R.C. 3105.18(E)(2). In this case, the trial court

retained jurisdiction to modify support, by an interlineations in the separation agreement

between the parties.




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