[Cite as Berry v. Berry, 2013-Ohio-4107.]




                      IN THE COURT OF APPEALS OF OHIO
                          THIRD APPELLATE DISTRICT
                               LOGAN COUNTY




CHARLES BERRY,

        PLAINTIFF-APPELLANT,                            CASE NO. 8-13-02

        v.

CAROL S. BERRY,                                         OPINION

        DEFENDANT-APPELLEE.




                       Appeal from Logan County Family Court
                             Domestic Relations Division
                           Trial Court No. DR11-09-0161

      Judgment Affirmed in Part, Reversed in Part and Cause Remanded

                          Date of Decision: September 23, 2013




APPEARANCES:

        Beverly J. Farlow for Appellant

        Andrew B. King for Appellee
Case No. 8-13-02


WILLAMOWSKI, J.

         {¶1} Plaintiff-Appellant Charles Berry (“Charles”) brings this appeal

from the judgment of the Logan County Family Court, Domestic Relations

Division, granting Defendant-Appellee Carol Berry (“Carol”) a divorce and

ordering a property settlement. For the reasons set forth below, the judgment is

affirmed in part and reversed in part.

         {¶2} On October 28, 1999, Charles and Carol were married in Kentucky.

No children were born of the marriage. The couple resided in a home owned by

Carol prior to the marriage and Carol was working as an RN. The home was

located at 4127 County Road 190, Belle Center, Ohio, which is located in Hardin

County.      She quit her job in 2008 after Charles started receiving settlement

payments and the couple lived off of that income. In 2010, Carol and Charles

purchased a retirement home in Florida. On September 23, 2011, Charles left the

marital home.          Charles filed a complaint for divorce in the trial court on

September 29, 2011. Carol filed her answer denying the complaint in its entirety

on October 27, 2011.1 On December 23, 2011, Carol filed a counterclaim for a

legal separation and requested spousal support. In her counterclaim Carol alleged

that she had been a resident of Ohio for more than six months, but made no

allegation as to county residency. Carol did not request a divorce. On December


1
  Ironically, this basic denial essentially denies correctly that Charles had been a resident of Logan county
for 90 days prior to the filing.

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23, 2011, the trial court issued an order specifying that Charles would pay Carol

temporary spousal support and that they would share the Florida and Ohio

properties with each having the right to alternating months at the properties.

       {¶3} On July 31, 2012, Charles filed a motion for a continuance claiming

that he could not make it to Ohio in time for the August 1, 2012, hearing. The

motion to continue was denied. Counsel for Charles then made an oral motion to

dismiss the complaint for divorce, which was granted. The trial court conducted a

hearing on the counterclaim for a legal separation and spousal support. At the

conclusion of the hearing, Carol moved to amend her counterclaim to request a

divorce. The motion was granted. Charles appeals from this judgment and raises

the following assignments of error.

                               First Assignment of Error

       The trial court erred as a matter of law in failing to require a
       cooling off period of 28 days following [Carol’s] amendment of
       her counterclaim for “Alimony Only” to add a cause of action
       for divorce.

                           Second Assignment of Error

       The trial court abused its discretion in refusing to grant
       [Charles’] motion for continuance.

                           Third Assignment of Error

       The trial court committed plain error in finding that the case
       was properly venued in Logan County, in admitting
       unsupported evidence as to property value, and in failing to


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      include legal descriptions of real estate in the judgment entry
      and decree.

                          Fourth Assignment of Error

      The trial court erred as a matter of law in finding that [Carol’s]
      financial accounts were her separate property.

                           Fifth Assignment of Error

      The judgment entry of January 12, 2013 is not a final appealable
      error.

                           Sixth Assignment of Error

      The court erred as a matter of law in sustaining [Carol’s] motion
      for contempt.

                         Seventh Assignment of Error

      The trial court abused its discretion in its conclusion that it
      granted a divorce to [Carol] on the grounds of gross neglect of
      duty and extreme mental cruelty.

      {¶4} Initially we note that Carol has chosen not to file a brief in this case.

“If an appellee fails to file the appellee’s brief within the time provided by this

rule * * *, the appellee will not be heard at oral argument except by permission of

the court upon a showing of good cause submitted in writing prior to argument;

and in determining the appeal, the court may accept the appellant’s statement of

the facts and issues as correct and reverse the judgment if appellant’s brief

reasonably appears to sustain such action.” App.R. 18(C). Accordingly, we elect




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to accept the statement of facts and issues of Charles as correct pursuant to App.R.

18(C).

         {¶5} In the first assignment of error, Charles claims that the trial court

erred by allowing Carol to orally amend her complaint to request a divorce from a

counterclaim for a legal separation and then immediately grant the divorce. At the

August 1, 2012, hearing for which Charles was not present, Charles attorney

withdrew his contested complaint for divorce and the hearing proceeded solely on

Carol’s counterclaim. After Carol had testified, her counsel moved that the trial

court allow her to amend her complaint to contain a request for a divorce. The

motion was granted and the trial court granted the divorce. No notice was given to

Charles and he had no opportunity to respond to the amended counterclaim.

         No action for divorce, annulment, or legal separation may be
         heard and decided until the expiration of forty-two days after
         the service of process or twenty-eight days after the last
         publication of notice or the complaint, and no action for divorce,
         annulment, or legal separation shall be heard and decided
         earlier than twenty-eight days after the service of a
         counterclaim, which under this rule may be designated a cross-
         complaint, unless the plaintiff files a written waiver of the
         twenty-eight day period.

Civ.R. 75(K). Although the counterclaim generally could be amended pursuant to

Civ.R. 15, in this case there is a more specific rule that applies because it is a

divorce proceeding. Civ.R. 75 specifically provides that there must be a waiting

period and that the waiting period can only be waived in writing. The Ohio


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Supreme Court has held that all service and process provisions also apply to

counterclaims. Calvert v. Calvert, 130 Ohio St. 369, 199 N.E. 473 (1936). The

waiting period set forth in the civil rules is mandatory and may not be waived

absent a written waiver. See Clark v. Clark, 5th Dist. Fairfield No. 06 CA 8, 2006-

Ohio-2902 (holding that the burden of enforcing the time requirements of the rule

falls to the trial court); Robinette v. Robinette, 41 Ohio App.3d 25, 534 N.E.2d 386

(5th Dist. 1988) (holding that mandatory provisions of Civ.R. 75 cannot be waived

absent a written waiver); Burger v. Burger, 11th Dist. Portage No. 93-P-0100, 1994

WL 721842 (Dec. 9, 1994) (holding that provisions of Civ.R. 75 may not be

waived); Klotnik v. Klotnik, 8th Dist. Cuyahoga No. 35793, 1977 WL 201306 (Apr.

14, 1977); and Kuebler v. Kuebler, 12th Dist. Fayette No. CA84-11-013, 1985 WL

8174, (Feb. 19, 1985). Here, Charles did not enter a written waiver and was not

even present at the hearing. When Charles chose not to appear at the hearing, he

knew his case would be dismissed and that he risked a one sided argument for

legal separation and spousal support and an order granting a legal separation and

spousal support, as that was the only relief Carol had requested and was the only

matter pending. Without a complaint for divorce pending, he had no notice that a

divorce would be granted. To proceed with a divorce without giving a party

notice would be a violation of due process rights. Thus, Charles’ brief appears to




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set forth an error, which can be sustained pursuant to App.R. 18(C). The first

assignment of error is sustained.

       {¶6} Charles claims in the second assignment of error that the trial court

abused its discretion in refusing to grant [Charles’] motion for a continuance. The

decision to grant or deny a continuance lies within the sound discretion of the trial

court. State v. Unger, 67 Ohio St.2d 65, 67, 423 N.E.2d 1078 (1981).

       In evaluating a motion for a continuance, a court should note,
       inter alia: the length of the delay requested; whether other
       continuances have been requested and received; the
       inconvenience to litigants, witnesses, opposing counsel and the
       court; whether the requested delay is for legitimate reasons or
       whether it is dilatory, purposeful, or contrived; whether the
       defendant contributed to the circumstance which gives rise to
       the request for a continuance; and other relevant factors,
       depending on the unique facts of each case.

Id. at 67-68. A review of the record in this case indicates that the motion for the

continuance was filed the day before the trial. The basis for the motion was that

Charles was unable to get to Ohio from Florida. However, the motion did not give

any reason why Charles was unable to do so or how long of a delay was requested.

The trial court had previously granted one continuance to each of the parties.

Based upon the insufficient information the trial court had before it and the

proximity of the motion to trial, the trial court did not abuse its discretion in

denying the motion for a continuance.          The second assignment of error is

overruled.


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      {¶7} In the third assignment of error, Charles claims that the trial court

erred by finding the venue to be proper.

      The plaintiff in actions for divorce and annulment shall have
      been a resident of the state at least six months immediately
      before filing the complaint. Actions for divorce and annulment
      shall be brought in the proper county for commencement of
      action pursuant to the Rules of Civil Procedure. The court of
      common pleas shall hear and determine the case, whether the
      marriage took place, or the cause of divorce or annulment
      occurred, within or without the state.

      Actions for legal separation shall be brought in the proper
      county for commencement of actions pursuant to the Rules of
      Civil Procedure.

R.C. 3105.03.

      (B) Venue; Where proper. Any action may be venued,
      commenced, and decided in any court in any county. * * *
      Proper venue lies in any one or more of the following counties:

      (1) The county in which the defendant resides

      (2) The county in which the defendant has his or her principal
      place of business;

      (3) A county in which the defendant conducted activity that
      gave rise to the claim for relief;

      ***

      (9) In actions for divorce, annulment, or legal separation, in the
      county in which the plaintiff is and has been a resident for at
      least ninety days immediately preceding the filing of the
      complaint[.]




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Civ.R. 3(B). Improper venue is not jurisdictional. Civ.R. 3(G). However, it may

be attacked on appeal. Civ.R. 3(G).

        {¶8} Here, the original case and the counterclaim were filed in Logan

County. However, at the time of the filings, neither party had resided in Logan

County for ninety days before the filing of the action. The address where Charles

and Carol resided during the marriage was located in Hardin County. See Ex. A,

Ex. C. (showing that the deed and certificate of transfer for the home were filed

for record in Hardin County, Ohio). At the hearing, Charles withdrew his claim,

leaving only Carol’s counterclaim remaining.                     During Carol’s testimony she

admitted that Charles had not been a resident of Logan County. Tr. 8. At no time

did Carol testify that she was a resident of Logan County. Tr. 8. There was no

evidence presented that Logan County was the correct venue. Since Charles’ brief

appears to indicate the venue was improper, the record reveals on its face that the

venue was improper and Carol did not file a brief opposing it,2 pursuant to App.R.

18(C), this court will sustain the third assignment of error based upon this issue.

Although the assignment of error claims two additional issues, our disposition of

the first assignment of error and the first issue raised in this assignment of error

renders the second and third issues raised moot. Therefore, we decline to address

those issues further. App.R. 12(A)(1)(c).


2
 This court recognizes that there may be a potential waiver argument for this claim, but since there is no
appellee brief, we need not address potential responses to the assignment of error.

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      {¶9} In the fourth assignment of error, Charles claims that the trial court

erred as a matter of law by finding that Carol’s financial accounts were her

separate property.    Charles claims in the fifth assignment of error that the

judgment entry was not a final appealable order. Since we have previously found

error requiring a remand for further proceedings, this assignment of error is

rendered moot at this time. We decline to address those issues further, leaving it

for determination by the appropriate trial court at the hearing on the divorce.

App.R. 12(A)(1)(c).

      {¶10} Charles argues in the sixth assignment of error that the trial court

erred as a matter of law in sustaining Carol’s motion for contempt. Before a

judgment of indirect contempt of court in a divorce proceeding will be considered

valid, the responding party must have received adequate notice of the hearing on

the charge, adequate time to prepare a defense, and an opportunity to be heard.

Culberson v. Culberson, 60 Ohio App.2d 304, 397 N.E.2d 1226 (1978).

      While there exists no bright line rule regarding the amount of
      notice that must be provided an alleged contemnor, the notice
      must be “reasonable” under the circumstances. Id. Generally,
      less than 30 days notice of an indirect contempt proceeding is
      not considered reasonable. See Erven v. Erven (Feb. 11, 1981),
      Hamilton App. Nos. C-790887 and C-800024 (“less than 30 days
      notice [is] inadequate under a fair interpretation of R.C.
      2705.03”)[.]

Poptic v. Poptic, 12th Dist. Butler No. CA2005-06-145, 2006-Ohio-2713, ¶9.



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       {¶11} Here, Charles claims that the trial court erred by finding him in

contempt for two reasons. The first is that he was not properly served. According

to the record, Carol filed her motion on July 18, 2012. The certificate of service

signed by the attorney indicates that the motion was served personally on Charles

by Carol’s attorney. Thus, there is more than sufficient proof that Charles was

properly served.

       {¶12} Charles second reason for claiming the trial court erred was because

the hearing was held on August 1, 2012, and the motion for contempt was filed on

July 18, 2012. The statute does not set forth a certain amount of time that is

necessary to allow the defendant to prepare a defense, thus there is no bright-line

rule. R.C. 2705.03. However, courts have held that less than 30 days is generally

considered unreasonable. See Culberson, supra; Poptic, supra; and Erven, supra.

In this case, the motion for contempt was filed a mere 14 days before the hearing.

This is substantially less than the generally accepted 30 days. Additionally, the

trial court did not provide any notice that the motion for contempt would be

considered at the scheduled trial. The lack of a brief from Carol prevents any

argument as to why this short time should be considered reasonable. Therefore,

the sixth assignment of error is sustained.

       {¶13} The final assignment of error raises the question as to whether the

trial court abused its discretion in granting a divorce to Carol. Having previously


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found that the trial court erred in granting the divorce due to the timing, this

assignment of error is rendered moot. We decline to address this issue further.

App.R. 12(A)(1)(c).

       {¶14} The judgment of the Logan County Family Court, Domestic

Relations Division, is affirmed in part and reversed in part.     The matter is

remanded for further proceedings in accord with this opinion, including the

determination of proper venue pursuant to R.C. 3105.03 and Civ.R. 3(B).

                                                    Judgment Affirmed in Part,
                                                         Reversed in Part and
                                                             Cause Remanded

PRESTON, P.J. and SHAW, J., concur.

/jlr




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