[Cite as Harper v. Harper, 2011-Ohio-2837.]


                                       COURT OF APPEALS
                                    ASHLAND COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT

JUDY CATHERINE HARPER                             JUDGES:
                                                  Hon. W. Scott Gwin, P.J.
        Plaintiff-Appellant                       Hon. William B. Hoffman, J.
                                                  Hon. Patricia A. Delaney, J.
-vs-
                                                  Case No. 10-COA-028
RICHARD HARPER

        Defendant-Appellee                        OPINION




CHARACTER OF PROCEEDING:                      Appeal from the Ashland Municipal Court,
                                              Case No. 09-CV-H-1010


JUDGMENT:                                     Affirmed


DATE OF JUDGMENT ENTRY:                        June 7, 2011


APPEARANCES:


For Plaintiff-Appellant                       For Defendant-Appellee


THOMAS L. MASON                               VALERIE A. LANG
Mason, Mason & Kearns                         Halligan & Associates
Post Office Box 345                           1181 East Main Street
153 West Main Street                          P.O. Box 455
Ashland, Ohio 44805                           Ashland, Ohio 44805
Ashland County, Case No. 10-COA-028                                                    2

Hoffman, J.


        {¶1}   Plaintiff-appellant Judy Catherine Harper appeals the September 2, 2010

Decision and Judgment Order entered by the Ashland Municipal Court, which granted

defendant-appellee Richard Lee Harper's Motion to Quash.

                           STATEMENT OF THE CASE AND FACTS

        {¶2}   Appellant and appellee were divorced via Decree filed by the Ashland

County Court of Common Pleas on May 11, 2006. Appellee appealed therefrom on

issues relating to the parties’ agreed settlement. This Court rejected Appellee’s

arguments and affirmed. Harper v. Harper, Ashland App. No. 06-COA-017, 2007-Ohio-

4021.    Pursuant to the parties' agreed settlement, Appellee was to pay Appellant

$30,000 in yearly installments of $10,000 for a period of three years. Appellee failed to

make the first of the installment payments. On October 4, 2006, the Ashland County

Court of Common Pleas issued a Certificate of Judgment in favor of Appellant against

Appellee in the amount of $10,000 plus interest.

        {¶3}   On June 8, 2009, Appellant filed a motion in the Ashland Municipal Court,

seeking to file the Certificate of Judgment for the purpose of filing a wage garnishment

against Appellee. On February 12, 2010, Appellant filed an Affidavit and Motion for

Examination of Judgment Debtor. The trial court scheduled a debtor's examination for

March 8, 2010. On the day of the hearing, Appellee filed a motion to modify the

garnishment order and stay further execution of the judgment. The trial court stayed the

disbursement of the garnished proceeds pending further order, and rescheduled the

debtor's examination until March 16, 2010. Appellant filed a memorandum in opposition

to which Appellee filed a reply. Appellee subsequently filed a supplemental motion to
Ashland County, Case No. 10-COA-028                                                     3


terminate the garnishment, explaining the debt had been discharged in bankruptcy on

October 31, 2008. Via Judgment Entry filed March 26, 2010, the trial court terminated

the garnishment.

      {¶4}   On April 28, 2010, Appellant filed a Motion for Relief from Judgment

pursuant to Civ. R. 60(B)(1) and (3). Appellant argued the trial court was mistaken in its

interpretation of the effect of the 2005 changes in the Bankruptcy law. Via Judgment

Entry filed June 10, 2010, the trial court overruled Appellant's 60(B) motion, finding

Appellant could not use such motion as a substitute for a timely appeal.

      {¶5}   Thereafter, on June 24, 2010, Appellant filed a Notice of Court Proceeding

to Collect Debt. Appellee filed a motion to quash.          The trial court ordered all

proceedings stayed pending hearing on Appellee's motion. After the hearing, the trial

court allowed Appellee to file a memorandum of law on the issue of res judicata.

Appellant filed a memorandum in opposition. Via Decision and Judgment Order filed

September 2, 2010, the trial court granted Appellee's motion to quash and dismissed

Appellant's collection proceedings.

      {¶6}   It is from this judgment entry Appellant appeals, raising as error:

      {¶7}   “I. THE TRIAL COURT COMMITTED PREJUDICIAL ERROR BY

ORDERING THAT A DOMESTIC SUPPORT OBLIGATION (DSO) WAS DISCHARGED

IN BANKRUPTCY, AND THEN FINDING THAT THE DEBT COULD NEVER BE

COLLECTED DUE TO THE DOCTRINE OF RES JUDICATA.”1




1
  We find the trial court’s order does not find the debt could never be collected. Rather,
we find its legal effect was only that the debt as reduced to judgment was not collectible
via garnishment.
Ashland County, Case No. 10-COA-028                                                       4


                                                 I

       {¶8}   In her sole assignment of error, Appellant contends the trial court erred in

finding the domestic support obligation had been discharged in Bankruptcy, and further

finding the debt could not be collected based upon the doctrine of res judicata.

       {¶9}   The doctrine of res judicata precludes “relitigation of a point of law or fact

that was at issue in a former action between the same parties and was passed upon by

a court of competent jurisdiction.” Reasoner v. Columbus, 10th Dist. No. 04AP-800,

2005-Ohio-468, ¶ 5, citing State ex rel. Kroger Co. v. Indus. Comm., 80 Ohio St.3d 649,

651, 1998-Ohio-174. In order to apply the doctrine of res judicata, we must conclude the

following: “(1) there was a prior valid judgment on the merits; (2) the second action

involved the same parties as the first action; (3) the present action raises claims that

were or could have been litigated in the prior action; and (4) both actions arise out of the

same transaction or occurrence.” Grava v. Parkman Twp. (1995), 73 Ohio St.3d 379,

380-82, 1995-Ohio-331.

       {¶10} The doctrine of res judicata has two aspects: claim preclusion and issue

preclusion. Grava at 380. Claim preclusion holds that a valid, final judgment on 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. Id. at syllabus. Issue

preclusion, also known as collateral estoppel, provides that “a fact or a point that was

actually and directly at issue in a previous action, and was passed upon and determined

by a court of competent jurisdiction, may not be drawn into question in a subsequent

action between the same parties or their privies, whether the cause of action in the two

actions be identical or different.” Ft. Frye Teachers Assn. v. State Emp. Relations Bd.,
Ashland County, Case No. 10-COA-028                                                         5


81 Ohio St.3d 392, 395, 1998-Ohio-435. While claim preclusion precludes relitigation of

the same cause of action, issue preclusion precludes relitigation of an issue that has

been actually and necessarily litigated and determined in a prior action. Id., citing

Whitehead v. Gen. Tel. Co. (1969), 20 Ohio St.2d 108, 112.

       {¶11} The March 26, 2010 Judgment Entry, granting Appellee’s motion to

terminate wage garnishment constituted a final decision on the merits.            Appellant’s

remedy was to appeal that decision. Appellant did not do so. Rather, Appellant filed a

Civ. R. 60(B) motion for relief from judgment. The trial court overruled the motion via

Judgment Entry filed June 10, 2010, correctly finding Appellant could not use a Civ. R.

60(B) as a substitute for an appeal. We note Appellant did not appeal this judgment

entry. Instead, Appellant again attempted to collaterally attack the judgments by filing a

notice to collect debt. Having failed to appeal at the appropriate time, we find the filing of

Appellant's Notice to Collect was a collateral attack and is barred by res judicata and the

law of the case doctrine.

       {¶12} We further note res judicata consequences cannot alter the trial court's

March 26, 2010 Judgment Entry, even if the trial court decision was based upon an

error of law. See, Angel v. Bullington (1947), 330 U.S. 183, 187.

       {¶13} Appellant’s sole assignment of error is overruled.
Ashland County, Case No. 10-COA-028                                              6


      {¶14} The judgment of the Ashland Municipal Court is affirmed.

By: Hoffman, J.

Gwin, P.J. and

Delaney, J. concur

                                          s/ William B. Hoffman _________________
                                          HON. WILLIAM B. HOFFMAN


                                          s/ W. Scott Gwin _____________________
                                          HON. W. SCOTT GWIN


                                          s/ Patricia A. Delaney _________________
                                          HON. PATRICIA A. DELANEY
Ashland County, Case No. 10-COA-028                                               7


            IN THE COURT OF APPEALS FOR ASHLAND COUNTY, OHIO
                         FIFTH APPELLATE DISTRICT


JUDY CATHERINE HARPER                      :
                                           :
       Plaintiff-Appellant                 :
                                           :
-vs-                                       :         JUDGMENT ENTRY
                                           :
RICHARD HARPER                             :
                                           :
       Defendant-Appellee                  :         Case No. 10-COA-028


       For the reasons stated in our accompanying Opinion, The judgment of the

Ashland Municipal Court is affirmed. Costs to Appellant.




                                           s/ William B. Hoffman _________________
                                           HON. WILLIAM B. HOFFMAN


                                           s/ W. Scott Gwin  ________________
                                           HON. W. SCOTT GWIN


                                           s/ Patricia A. Delaney _________________
                                           HON. PATRICIA A. DELANEY
