[Cite as Kochaniec v. Kochaniec, 2011-Ohio-5552.]




              IN THE COURT OF APPEALS OF CLARK COUNTY, OHIO

                                                    :
KIMBERLY G. KOCHANIEC
     Plaintiff-Appellee                             :   C.A. CASE NO. 2011-CA-19

vs.                                                 :   T.C. CASE NO. 09-DR-834

                                                    :   (Civil Appeal from
ROBERT J. KOCHANIEC                                     Common Pleas Court,
     Defendant-Appellant                            :   Domestic Relations Division)

                                     . . . . . . . . .

                                         O P I N I O N

                 Rendered on the 28th day of October, 2011.

                                     . . . . . . . . .

Stacey R. Pavlatos, Atty. Reg. No. 0012392, 700 East High Street,
Springfield, OH 45505
     Attorney for Plaintiff-Appellee

Anthony E. Kohler, Atty Reg. No. 0032826, 210 North Fountain Avenue,
Springfield, OH 45504
     Attorney for Defendant-Appellant

                                     . . . . . . . . .

GRADY, P.J.:

        {¶ 1} Defendant, Robert Kochaniec, appeals from a final order

of the domestic relations division of the court of common pleas

overruling his objections to a magistrate’s decision and granting

an annulment to Plaintiff, Kimberly Kochaniec.
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     {¶ 2} Robert1 and Kimberly were married in Marion, Virginia

in September of 1989.   Two children were born during Kimberly and

Robert’s marriage, A., who was born in May of 1991, and B., who

was born in September of 1998.

     {¶ 3} At the time he married Kimberly, Robert was married to

his first wife, Karen L. Kochaniec.    Robert and Karen subsequently

were divorced in April of 1992.

     {¶ 4} On August 31, 2009, Kimberly commenced an action against

Robert, seeking an annulment of her marriage to Robert or, in the

alternative, a divorce from Robert.     She based her request on the

fact that Robert was married to another woman at the time that

he married Kimberly.

     {¶ 5} Kimberly filed a motion for summary judgment on her claim

 to have her marriage to Robert annulled pursuant to R.C.

3105.31(B).    On   December   23,   2009,   the   magistrate   granted

Kimberly’s request for an annulment.         (Dkt. 27.)   Robert filed

objections to the magistrate’s decision.        (Dkt. 31.)    The trial

court overruled these objections on March 17, 2010.          (Dkt. 37A.)

     {¶ 6} Robert filed a motion to modify temporary orders on March

30, 2010, seeking an award of temporary spousal support and an

interim award of attorney fees.        (Dkt. 38.)      The magistrate


        1
          For clarity and convenience, the parties are identified
   by their first names.
                                                                           3

overruled   the   motion    and   Robert   filed   objections     to    the

magistrate’s decision, which the trial court overruled.                (Dkt.

39, 42, 50.)

     {¶ 7} On   September   29,   2010,    following   a    hearing,    the

magistrate issued a decision regarding custody, child support,

and property division.      (Dkt. 59.)     Robert filed objections and

supplemental objections to the magistrate’s decision, which the

trial court overruled.      (Dkt. 60, 66, 68, 69.)         Robert filed a

timely notice of appeal.

     SECOND ASSIGNMENT OF ERROR

     {¶ 8} “THE TRIAL COURT ERRED IN CHOOSING AN ANNULMENT INSTEAD

OF A DIVORCE.”

     {¶ 9} R.C. 3105.01 sets forth the causes for divorce and

provides, in part:

     {¶ 10} “The court of common pleas may grant divorces for the

following causes:

     {¶ 11} “(A) Either party had a husband or wife living at the

time of the marriage from which the divorce is sought[.]”

     {¶ 12} Prior to 1963, divorce proceedings pursuant to the

predecessor statute2 to R.C. 3105.01 provided the exclusive remedy

in cases involving bigamous marriages.         Eggleston v. Eggleston

(1952), 156 Ohio St. 422, syllabus.        In 1963, however, the Ohio
                                                                     4

Legislature enacted R.C. 3105.31, which sets forth the causes for

annulment and provides, in part:

     {¶ 13} “A marriage may be annulled for any of the following

causes existing at the time of the marriage:

     {¶ 14} “* * *

     {¶ 15} “(B) That the former husband or wife of either party

was living and the marriage with such former husband or wife was

then and still is in force[.]” (Emphasis supplied.)

     {¶ 16} Both the divorce statute, R.C. 3105.01(A), and the

annulment statute, R.C. 3105.31(B), provide for relief from

bigamous marriages.       However, the two statutes do not impose

identical requirements.       The divorce statute only requires that

either party had a husband or wife living at the time of the marriage

from which the divorce is sought.       The annulment statute requires

both that the first marriage was in force at the time of the second

marriage    and      “still   is   in   force[.]”   R.C.   3105.31(B).

Consequently, in order to grant an annulment pursuant to R.C.

3105.31(B), the trial court was required to find that Robert’s

first marriage with Karen was “still in force” at the time that

the court ordered his second marriage with Kimberly annulled.

Haska v. Haska (Feb. 10, 1989), Portage App. No. 1915 (affirming

the trial court’s judgment annulling the parties’ marriage because


        2
            G.C. 11979 (predecessor section to R.C. 3105.01.)
                                                                          5

the wife’s former husband was alive at the time of her second

marriage and she never obtained a valid divorce decree from her

first marriage).

     {¶ 17} It is undisputed that Robert’s marriage with Karen

terminated when he was granted a divorce in April of 1992.              The

trial court did not grant Kimberly an annulment of her marriage

with Robert until 2010.     Therefore, at the time the trial court

granted an annulment of the marriage between Kimberly and Robert,

the marriage between Karen and Robert was not still in force.

Therefore, the trial court could not grant an annulment pursuant

to the plain language of R.C. 3105.31(B).         The trial court was

required to proceed instead pursuant to R.C. 3105.01(A), the

divorce section, which does not impose a similar limitation

regarding the continued existence of Robert’s first marriage.

     {¶ 18} Kimberly   argues   that   Robert   waived    any   error   in

proceeding under R.C. 3105.31, the annulment section, because he

failed to object to that error in the proceedings before the trial

court.   Courts derive their jurisdiction from constitutional

provisions, or from laws enacted by the legislature acting within

the constitutional authority conferred by Section 4(B), Article

IV, and can only exercise the jurisdiction so granted them.

Humphrys v. Putnam (1961), 172 Ohio St. 456.             R.C. 3105.31(B)

confers jurisdiction of the domestic relations division of the
                                                                       6

court of common pleas to grant annulments, but limits that power

to instances where the prior marriage “still is in force.”           On

this record, the domestic relations division of the court of common

pleas    lacked   jurisdiction   to   grant   the   annulment   Kimberly

requested.    Parties to an action cannot, by waiver or otherwise,

confer subject-matter jurisdiction on a court which the court

lacks.    State ex rel. Lawrence Development Co. V. Weir (1983),

11 Ohio App.3d 96.

     {¶ 19} The second assignment of error is sustained.

     FIRST ASSIGNMENT OF ERROR

     {¶ 20} “THE TRIAL COURT DECISION DECLARING AN ANNULMENT OF THE

MARRIAGE WAS ERRONEOUS.”

     THIRD ASSIGNMENT OF ERROR

     {¶ 21} “THE TRIAL COURT’S RULING ON PARENTING OF THE MINOR CHILD

IS INCORRECT AND PREJUDICIAL TO THE FATHER.”

     FOURTH ASSIGNMENT OF ERROR

     {¶ 22} “THE TRIAL COURT DID NOT HAVE ANY REASONABLE BASIS IN

LAW OR EQUITY TO ASSIGN A CHILD SUPPORT OBLIGATION TO THE FATHER.”

     FIFTH ASSIGNMENT OF ERROR

     {¶ 23} “THE TRIAL COURT’S DIVISION OF PROPERTY IS GROSSLY

PREJUDICIAL TO THE APPELLANT.

     SIXTH ASSIGNMENT OF ERROR

     {¶ 24} “EVIDENCE DOES NOT SUPPORT THE TRIAL COURT’S AWARD OF
                                                                  7

REAL ESTATE SOLELY TO APPELLEE.”

     SEVENTH ASSIGNMENT OF ERROR

     {¶ 25} “THE TRIAL COURT INCORRECTLY DIVIDED THE RETIREMENT

BENEFITS. “

     EIGHTH ASSIGNMENT OF ERROR

     {¶ 26} “THE TRIAL COURT FAILED TO FOLLOW STATUTORY GUIDELINES

OF OHIO LAW IN REFUSING TO AWARD ATTORNEY FEES TO APPELLANT.”

     NINTH ASSIGNMENT OF ERROR

     {¶ 27} “THE TRIAL COURT SHOULD HAVE AWARDED BOTH TEMPORARY

SPOUSAL SUPPORT AND PERMANENT SPOUSAL SUPPORT TO THE APPELLANT.”

     {¶ 28} The various errors assigned are the product of the

court’s order of annulment.   Our decision sustaining the second

assignment of error requires a reversal of the order of annulment,

which in turn renders moot the remaining assignments of error.

Per App.R. 12(A)(1)(c), we are not required to decide assignments

of error made moot by our decision on another assignment of error.

     {¶ 29} Having sustained Robert’s second assignment of error,

we will reverse the final judgment from which the appeal was taken

and remand the case for further proceedings on Kimberly’s complaint

for divorce.




DONOVAN, J. and HALL, J. concur.
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Copies mailed to:

Stacey R. Pavlatos, Esq.
Anthony E. Kohler, Esq.
Hon. Thomas J. Capper
