[Cite as Galluzzo v. Galluzzo, 2012-Ohio-502.]




            IN THE COURT OF APPEALS OF CHAMPAIGN COUNTY, OHIO

                                                 :
TERESA A. GALLUZZO (nka COOK)
     Plaintiff-Appellee                          :   C.A. CASE NO. 2011-CA-11

vs.                                              :   T.C. CASE NO. 93-DR-247

                                                 :   (Civil Appeal from
MICHAEL A. GALLUZZO                                  Common Pleas Court)
     Defendant-Appellant                         :

                                       . . . . . . . . .

                                          O P I N I O N

                 Rendered on the 10th day of February, 2012.

                                       . . . . . . . . .

Mark M. Feinstein, Atty. Reg. No. 0065183, 214 Scioto Street,
Urbana, OH 43078
     Attorney for Plaintiff-Appellee

Michael A. Galluzzo, P.O. Box 710, St. Paris, OH 43072
     Defendant-Appellant, Pro Se

                                       . . . . . . . . .

GRADY, P.J.:

        This appeal arises from a divorce proceeding between Michael

Galluzzo and Teresa Galluzzo (n.k.a. Cook).                    The history of the

proceeding before the trial court is quite lengthy.                    It is not

necessary for disposition of this appeal to recount the full history

of this lengthy litigation, but we will highlight a few, pertinent
                                                                    2

points.

     Michael1 and Teresa were divorced in June of 1994.        Teresa

was designated the residential parent of the two children born

during their marriage:    Sara, who was born on August 4, 1989, and

Kelsie, who was born on June 22, 1992.    In October of 1998, Michael

filed a motion to reallocate parental rights and responsibilities

and to designate him the residential parent and legal custodian

of the two minor children.    Over the next decade, the parties filed

numerous motions.

     On February 5, 2009, the trial court ruled on thirteen pending

motions, denying the relief requested.       As the trial court noted

in Journal Entry:

     delay in this case occurred in part due to numerous

     filings   by   the      parties;   continuance   requests;

     objections; mediation; change of counsel; psychological

     evaluations;   appeals;      criminal    proceedings;   and

     litigation in federal court initiated by [Michael], said

     litigation occurring at both trial and appellate levels.

     Both parties appealed from the February 5, 2009 judgment.

We dismissed those appeals for lack of a final order.        On March

9, 2011, the trial court entered an order determining the remaining


          1
          For purposes of clarity and convenience, the parties
   are referred to by their first names.
                                                                        3

motions the parties had filed.        Michael filed a notice of appeal

from the March 9, 2011 order.

FIRST ASSIGNMENT OF ERROR

     “AS A MATTER OF LAW, THE TRIAL COURT ERRED IN DISMISSING

APPELLANT/DEFENDANT’S TIMELY-FILED MOTIONS WITHOUT PROVIDING HIM

A   MEANINGFUL         OPPORTUNITY   TO    BE     HEARD     AND   HOLDING

STATUTORILY-REQUIRED HEARINGS WITHIN A MEANINGFUL TIME.”

     Michael identifies nine motions he filed that were denied

by the trial court on February 5, 2009.         A number of these motions

pertain    to    the     orders   allocating     parental    rights   and

responsibilities for the care of minor children pursuant to R.C.

3109.04.   It is undisputed that both children have now attained

the age of majority.      There is no relief we can now grant to remedy

the errors Michael assigns.       Therefore, any errors involving these

motions are moot.        Michael concedes as much on page six of his

appellate brief.

     Michael argues that the trial court’s denial of his remaining

motions denied him the opportunity to be heard in violation of

his right to due process.      However, Michael does not identify when

that occurred, how it occurred, or where in the record the error

is portrayed.    Defendant’s appellate brief, therefore, is not in

compliance with App.R. 16(A)(6) and (7), which require:

     (A) Brief of the appellant
                                                                      4

     The appellant shall include in its brief,

                       under the headings and

                       in the order indicated,

                       all of the following:



     (6) A statement of facts relevant to the assignments

     of   error    presented    for   review,   with   appropriate

     references to the record in accordance with division

     (D) of this rule.

     (7) An argument containing the contentions of the

     appellant with respect to each assignment of error

     presented for review and the reasons in support of the

     contentions,      with    citations   to   the    authorities,

     statutes, and parts of the record on which appellant

     relies.      The argument may be preceded by a summary.

     Because we must presume the regularity of the trial court’s

proceedings, Michael’s failure to comply with App.R. 16 requires

us to overrule the errors he assigns.

     The first assignment of error is overruled.

SECOND ASSIGNMENT OF ERROR

     “AS A MATTER OF LAW, THE COURT COMMITTED PLAIN ERROR IN DENYING

JUDGMENT WHERE PLAINTIFF FAILED TO RESPOND TO DEFENDANT’S MOTIONS

AND FAILED TO RESPOND TO DEFENDANT’S MOTION FOR DEFAULT JUDGMENT.”
                                                                        5

     Michael argues that because Teresa failed to file a response

to his October 3, 2008 motion to vacate the orders of the trial

court pertaining to custody, after the court on October 7, 2008,

had set a deadline of October 31, 2008, for Teresa’s response,

Michael was entitled to a default judgment pursuant to Civ.R. 55

and costs pursuant to Civ.R. 54(C).          We do not agree.

     Civ.R. 75(F) provides, in part:         “The provisions of Civ.R.

55 shall not apply in actions for divorce, annulment, legal

separation, or civil protection orders.”        The underlying case was

a divorce action.      Consequently, Michael could not obtain a default

judgment pursuant to Civ.R. 55.

     The second assignment of error is overruled.

THIRD ASSIGNMENT OF ERROR

     “THE COURT ABUSED ITS DISCRETION TO MODIFY CUSTODY TO

DEFENDANT WHERE THE TESTIMONY OF CONTINUED HOSTILITY BY PLAINTIFF,

CUSTODIAL INTERFERENCE BY THE PLAINTIFF, AND PLAINTIFF’S REPEATED

DENIAL   OF   ACCESS    TO   THE   PARTY’S   CHILDREN   FOR   DEFENDANT’S

COURT-ORDERED VISITATION, IS AGAINST THE MANIFEST WEIGHT OF THE

EVIDENCE.”

     Michael argues that the trial court erred in failing to grant

a motion he filed in 1998 to modify a prior order allocating parental

rights and responsibilities and grant him sole custody of the two

minor children.     As we discussed above, both children are now
                                                                            6

emancipated.    Consequently, the error assigned is moot for the

reasons previously explained.

     The third assignment of error is overruled.

FOURTH ASSIGNMENT OF ERROR

     “AS A MATTER OF LAW, IT IS PLAIN ERROR FOR THE COURT TO FAIL

TO COMPLETE A STATUTORILY-REQUIRED CHILD SUPPORT RECALCULATION

AS REQUESTED, AND WHERE THE COURT SUBSTITUTED A CHILD SUPPORT

RECALCULATION MADE BY THE CSEA IN THE RECORD, WHICH RECALCULATION

THE AGENCY WAS WITHOUT JURISDICTION TO PERFORM.”

     Michael argues that the trial court erred when it failed to

perform the child support recalculation that R.C. 3119.79(A)

requires when Michael sought that relief, and instead adopted a

recalculation    made   by   the   Child   Support   Enforcement       Agency

(“CSEA”).     Michael relies on O.A.C. 5101:12-60-05.1(G), which

provides:

     The CSEA is not required to administratively review or

     adjust a child support order when either party elects

     to     proceed     through      court,     either     through

     self-representation or through private counsel, or an

     action has been filed with the court by either party

     that may have an impact on the administrative review.

     O.A.C.     5101:12-60-05.1(G)     does    not    prohibit     a    CSEA

recalculation, and instead provides that such an administrative
                                                                             7

review or adjustment is not required.

       Michael also argues that the “jurisdictional priority rule”

precludes the trial court’s adoption of the CSEA calculation.

However,      CSEA   is    not   another    “court.”       Furthermore,   the

recalculation that R.C. 3119.79(A) requires the court to perform

does    not    require     the     court   to   perform    the   mathematical

calculations.        The court may adopt a recalculation submitted by

a party or performed by CSEA if the court finds that recalculation

is correct and reasonable.            Michael does not contend that the

recalculation        the   court    adopted     failed    to   satisfy   those

requirements.

       The fourth assignment of error is overruled.              The judgment

of the trial court will be affirmed.



DONOVAN, J. and HALL, J. concur.

Copies mailed to:

Mark M. Feinstein, Esq.
Michael Galluzzo
Hon. Lori L. Reisinger
