State ex rel. Papp v. James

[This opinion has been published in Ohio Official Reports at 

69 Ohio St.3d 373

.]




                     THE STATE EX REL. PAPP v. JAMES, JUDGE.
                [Cite as State ex rel. Papp v. James, 

1994-Ohio-86

.]
Mandamus to remedy claimed errors arising from a divorce proceeding—Writ
        allowed, when.
       (No. 93-1626—Submitted March 30, 1994—Decided June 1, 1994.).
                            IN MANDAMUS and PROHIBITION.
                                  __________________
        {¶ 1} Relator, Elizabeth A. Papp, seeks writs of mandamus and prohibition
to remedy claimed errors arising from a divorce proceeding filed by her husband,
Richard F. Papp. The divorce involved a custody dispute over the couple's four
minor children, along with issues of child support, visitation, spousal support and
property settlement. Elizabeth was originally awarded permanent custody in 1991.
        {¶ 2} In August 1992, Richard moved for change of custody. Judge Thomas
F. Norton, formerly of the Trumbull County Common Pleas Court, Domestic
Relations Division, and the original respondent in this case, heard the matter on
January 25 to 28, 1993. On January 26, Richard apparently testified that Elizabeth
had struck the children. Elizabeth asked her oldest son, ten-year-old Jacob, to
dispute this allegation, and he agreed to testify. Elizabeth anticipated that Judge
Norton might decide to interview Jacob in chambers, and on January 27, she moved
for appointment of a guardian ad litem and for a stay of proceedings to allow the
guardian time to prepare.
        {¶ 3} Judge Norton did not grant or deny Elizabeth's motions. He instead
interviewed Jacob alone in chambers and allegedly pressed him to choose between
his parents. Jacob apparently told Judge Norton that he did not want to choose, but
ultimately indicated that he preferred to live with his mother.
                            SUPREME COURT OF OHIO




       {¶ 4} On January 29, 1993, Judge Norton granted custody of the Papps' two
boys to Richard, allowing Elizabeth to retain custody of the two girls. On February
9, he issued the Papps a divorce decree that confirmed the change of custody and
set visitation, along with a stipulated support and property distribution. Neither
judgment stated the reason for the change of custody, and Elizabeth moved for
separate findings of fact and conclusions of law on February 1 and 18, after each
judgment. She represents that both motions are still pending.
       {¶ 5} Elizabeth seeks a writ of mandamus to vacate the custody
determination, to appoint a guardian ad litem, and to stay the custody proceedings
so that the guardian can prepare for a new hearing. She also requests a writ of a
prohibition to prevent the denial of her motions for appointment of a guardian and
stay. In the alternative, Elizabeth asks for a writ of mandamus to order findings of
fact and conclusions of law for the judgments issued on January 29 and February
9, 1993.
       {¶ 6} Judge Norton was ordered to show cause by September 7, 1993 why
the writs should not be granted, and he answered on that date. Thereafter, Elizabeth
filed a notice asking that respondent, Judge Richard L. James, who was appointed
to succeed Judge Norton upon his resignation, be substituted for him.
       {¶ 7} Judge James has moved to strike Jacob Papp's statement about his
interview with Judge Norton. Elizabeth has moved to strike the deposition of
Elizabeth's attorney at trial, Kay Williams Young, with exhibits, and the partial
transcript of the hearing held January 27, 1993.
                              __________________
       McTigue & Brooks and Donald J. McTigue, for relator.
       Richards & Meola and Charles L. Richards, for respondent.
                              __________________




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                                January Term, 1994




       Per Curiam.
       {¶ 8} This case presents six issues for our review. First, should either
party's evidence be stricken? Second, is there a clear legal duty to appoint a
guardian ad litem upon a parent's motion before interviewing a child in a custody
dispute? Third, is there a clear legal duty in this case to issue findings of fact and
conclusions of law upon timely motion? Fourth, does Elizabeth have an adequate
remedy at law? Fifth, should a writ of mandamus issue either to vacate the custody
decree and to compel appointment of a guardian ad litem and a new hearing, or to
order the filing of findings of fact and conclusions of law? Sixth, is there any cause
for issuing a writ of prohibition?
       {¶ 9} For the reasons that follow, we overrule Elizabeth's motion to strike,
and grant Judge James's motion to strike in part. Moreover, we hold that (1) where
the court interviews a child in a custody proceeding, R.C. 3109.04(B)(2)(a) creates
a duty to appoint of guardian ad litem upon either parent's motion, (2) Civ.R. 52
creates a duty to issue findings of fact and conclusions of law for a decree or final
order in an action tried to the court, and the January 29 custody ruling was a final
order, (3) appeal is not an adequate remedy to obtain compliance with Civ.R. 52,
but (4) appeal is an adequate remedy to enforce the R.C. 3109.04(B)(2)(a) duty to
appoint a guardian ad litem, and, therefore, (5) a writ of mandamus must issue to
compel the filing of findings of fact and conclusions of law for the January 29
custody order. Finally, we hold that Elizabeth has not shown the conditions
necessary for a writ of prohibition. Accordingly, we grant a writ of mandamus to
compel findings of fact and conclusions of law with respect to the custody order of
January 29, 1993, but deny her other requests for extraordinary relief.
                            Motions to Strike Evidence
       {¶ 10} In addition to a description of his interview with Judge Norton, Jacob
Papp's statement indicates his parental preference. Judge James maintains that we




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cannot accept the statement without running afoul of R.C. 3109.04(B)(3), which
states:
          "No person shall obtain or attempt to obtain from a child a written or
recorded statement or affidavit setting forth the child's wishes and concerns
regarding the allocation of parental rights and responsibilities concerning the child.
No court, in determining the child's best interest for purposes of making its
allocation of the parental rights and responsibilities for the care of the child or for
purposes of resolving any issues related to the making of that allocation, shall
accept or consider a written or recorded statement or affidavit that purports to set
forth the child's wishes and concerns regarding those matters."
          {¶ 11} Judge James argues that this action involves "issues related to the
making of [the parental rights and responsibilities] allocation." Elizabeth responds
that R.C. 3109.04(B)(3) applies only in proceedings instituted to make the parental
rights and responsibilities allocation, which this case is not.
          {¶ 12} Elizabeth's restrictive view is technically correct, but we find the
language of R.C. 3109.04(B)(3) and policy underlying it strong enough to justify a
broad construction. This statute was obviously intended to protect children from
unsupervised demands that they choose between their parents, and the harm such
demands may cause is a valid concern in any proceeding. R.C. 3109.04(B)(3),
however, does not prohibit all written or recorded statements or affidavits of a child,
just those that "purport[] to set forth the child's wishes and concerns regarding * *
* [the allocation of parental rights]." Thus, we apply this statute here to strike
Jacob's expressions of parental preference, but we accept his statement to prove that
he was interviewed privately by Judge Norton.
          {¶ 13} Elizabeth moves to strike Judge James's evidence as having been
filed out of rule. S.Ct.Prac.R. VIII(7) requires all evidence to be filed "within
twenty-eight (28) days of the time of or for filing a reply," which Elizabeth




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                                January Term, 1994




calculates to have been on November 2, 1993. Judge James filed his evidence on
January 31, 1994, along with the merit brief he was granted leave to file.
        {¶ 14} Judge James was permitted to file his brief late because after his
appointment to Judge Norton's seat, Elizabeth served her merit brief on the
Trumbull County Prosecuting Attorney -- not Judge Norton's attorney, who now
represents Judge James. We also consider this confusion over counsel of record
sufficient cause for overruling Elizabeth's motion to strike, and for granting Judge
James's motion for leave to file his evidence instanter.
                                 Guardian Ad Litem
        {¶ 15} Judge Norton did not rule on Elizabeth's motion for appointment of
a guardian ad litem prior to interviewing Jacob in chambers. R.C. 3109.04(B)
provides, in part:
        "(1) When making the allocation of the parental rights and responsibilities
for the care of the children under this section in an original proceeding or in any
proceeding for modification of a prior order of the court making the allocation, the
court shall take into account that which would be in the best interest of the children.
In determining the child's best interest for purposes of making its allocation of the
parental rights and responsibilities for the care of the child and for purposes of
resolving any issues related to the making of that allocation, the court, in its
discretion, may and, upon the request of either party, shall interview in chambers
any or all of the involved children regarding their wishes and concerns with respect
to the allocation.
        "(2) If the court interviews any child pursuant to division (B)(1) of this
section, all of the following apply:
        "(a) The court, in its discretion, may and, upon the motion of either parent,
shall appoint a guardian ad litem for the child.
        "* * *




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                             SUPREME COURT OF OHIO




       "(c) The interview shall be conducted in chambers, and no person other
than the child, the child's attorney, the judge, any necessary court personnel, and,
in the judge's discretion, the attorney of each parent shall be permitted to be present
in the chambers during the interview." (Emphasis added.)
       {¶ 16} This statute plainly requires appointment of a guardian ad litem upon
the motion of a parent if the court intends to privately interview a child in a custody
dispute. Elizabeth has thus established the first condition for a writ of mandamus—
a clear right to the performance of a clear legal duty. State ex rel. The Fairfield
Leader v. Ricketts (1990), 

56 Ohio St.3d 97, 102

, 

564 N.E.2d 486, 491

.
                      Findings of Fact and Conclusions of Law
       {¶ 17} Judge Norton stated his reasons for changing custody of the Papp
children from the bench on January 28, but he did not explain his decision in the
January 29 order. His February 9 divorce decree also did not explain the change of
custody, and he did not rule on Elizabeth's motions for findings of fact and
conclusions of law.
       {¶ 18} Civ.R. 52 provides in part:
       "When questions of fact are tried by the court without a jury, judgment may
be general for the prevailing party unless one of the parties in writing requests
otherwise before the entry of judgment pursuant to Civ.R. 58, or not later than seven
days after the party filing the request has been given notice of the court's
announcement of its decision, whichever is later, in which case, the court shall state
in writing the conclusions of fact found separately from the conclusions of law."
       "[A] trial court has a mandatory duty under Civ. R. 52 to issue findings of
fact and conclusions of law upon request timely made." In re Adoption of Gibson
(1986), 

23 Ohio St.3d 170, 173

, 23 OBR 336, 338, 

492 N.E.2d 146, 148

. "A
commentary from the bench, leading up to pronouncement of a decision, is neither
adequate to fulfill the requirements of Civ.R. 52, nor is it adequate to provide a




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                                January Term, 1994




disappointed party a solid basis on which to ground an appeal." 

Id. at 173

, 23 OBR
at 338, 

492 N.E.2d at 148, fn. 3

.
       {¶ 19} Moreover, "Civ.R. 52, requiring separate findings of fact and
conclusions of law upon timely request, applies to change of custody proceedings
which involve questions of fact tried and determined by the court without a jury."
Werden v. Crawford (1982), 

70 Ohio St.2d 122

, 

24 O.O.3d 196

, 

435 N.E.2d 424

,
syllabus.
       {¶ 20} Here, Elizabeth's first Civ.R. 52 motion was timely, having been
filed on February 1, within four days of the January 28 change-of-custody
announcement. However, Judge James argues that Elizabeth had been allowed only
temporary custody up to that time and that the January 29 order was issued upon
Richard's motion to modify temporary custody. Under Civ.R. 52, findings of fact
and conclusions of law are required only for judgments and are unnecessary upon
all motions other than those filed pursuant to Civ.R. 41(B)(2) (involuntary
dismissal). Thus, Judge James claims that findings of fact and conclusions of law
were unavailable prior to the divorce decree issued on February 9.
       {¶ 21} Elizabeth justifiably disputes the representation that she had not been
awarded permanent custody—the answer to her complaint admits this allegation.
She also urges a distinction between motions for change of custody and other
motions.    Werden recognized this distinction when it suggested that custody
modifications, which require a showing of changed circumstances, R.C.
3109.04(E)(1)(a), are analogous to judgments based on factual determinations. 

Id.,

70 Ohio St.2d at 123-124

, 

24 O.O.3d at 197-198

, 

435 N.E.2d at 425-426

.
       {¶ 22} Werden, however, involved a post-decree motion to modify custody,
and Judge James contrasts this with Richard's motion, which was filed and decided
before the Papps' divorce decree. But in rejecting the theory that Civ. R. 52 never
applies to rulings on motions, Werden did not focus on when the motion was filed.
It focused instead on the nature of the ruling, which implicates the main




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                             SUPREME COURT OF OHIO




requirement in Civ.R. 52—that a request for findings of fact and conclusions of law
be based on a judgment. Thus, whether a permanent custody order is modified
before or after a divorce decree, the order must qualify as a judgment for Civ.R. 52
to apply.
       {¶ 23} "Judgment," as defined by Civ.R. 54(A), "includes a decree and any
order from which an appeal lies as provided in R.C. 2505.02." Elizabeth, therefore,
must show that an appeal from the January 29 custody order was possible pursuant
to R.C. 2505.02. R.C. 2505.02 defines three types of final orders, but only one—
"an order that affects a substantial right made in a special proceeding"—applies
here. Evicks v. Evicks (1992), 

79 Ohio App.3d 657, 661

, 

607 N.E.2d 1090, 1093

.
But, see, In re Murray (1990), 

52 Ohio St.3d 155

, 

556 N.E.2d 1169

 (temporary
custody order coupled with finding of neglect in child neglect actions is a final order
as defined by R.C. 2505.02 because it "affects a substantial right in an action which
in effect terminates the action and prevents a judgment").
       {¶ 24} Custody proceedings affect substantial rights. 

Id. at 157

, 

556 N.E.2d at 1171-1172

. Thus, the January 29 custody order was final (and Civ.R. 52 applies)
if the order was entered in a special proceeding. Polikoff v. Adam (1993), 

67 Ohio St.3d 100

, 

616 N.E.2d 213

, syllabus, established a new standard for this
determination:
       "Orders that are entered in actions that were recognized at common law or
in equity and were not specially created by statute are not orders entered in special
proceedings pursuant to R.C. 2505.02. (Amato v. Gen. Motors Corp. [1981], 

67 Ohio St.2d 253

, 

21 O.O.3d 158

, 

423 N.E.2d 452

, overruled.)"
       "There was no common-law right of divorce. Divorce is purely a matter of
statute." Jelm v. Jelm (1951), 

155 Ohio St. 226, 231

, 

44 O.O. 246, 248

, 

98 N.E.2d 401, 404

. Custody actions between divorcing parents were also unknown at
common law, and today exist only pursuant to statute. Soyk v. Soyk (1975), 

45 Ohio App.2d 319, 321

, 

74 O.O.2d 532, 533

, 

345 N.E.2d 461, 463

.




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                                January Term, 1994




       {¶ 25} Similarly, early Ohio courts did not have equity jurisdiction in suits
for alimony, property division, or custody. DeWitt v. DeWitt (1902), 

67 Ohio St. 340

, 347, 

66 N.E. 136

, 138; Marleau v. Marleau (1917), 

95 Ohio St. 162

, 

115 N.E. 1009

; Miller v. Miller (1951), 

154 Ohio St. 530

, 

43 O.O. 496

, 

97 N.E.2d 213

,
paragraph one of the syllabus. Rather, "[a]ctions for divorce and alimony were in
England originally within the jurisdiction of the ecclesiastical courts, but in this
state that jurisdiction has been conferred by and limited to the provisions of
statutes." Marleau, supra, at 164, 115 N.E. at 1009.
       {¶ 26} Divorce, therefore, has been described as a "special statutory
proceeding," Dansby v. Dansby (1956), 

165 Ohio St. 112

, 113, 

59 O.O. 129

, 

133 N.E.2d 358

, 359, and this status also extends to ancillary claims for custody. See
In re 

Murray, supra,

52 Ohio St.3d at 161

, 

556 N.E.2d at 1175

 (Douglas, J.,
concurring in syllabus and judgment). Thus, the January 29 order changing
permanent custody of the Papp children was a final, appealable order under R.C.
2505.02, and Elizabeth was entitled, under Civ.R. 52, to request findings of fact
and conclusions of law.
       {¶ 27} Elizabeth filed her second motion for findings of fact and
conclusions of law on February 18, 1993. Judge James alternatively argues that
this motion was untimely because it was not filed before the February 9 divorce
decree or within seven days of the January 28 change-of-custody announcement, as
Civ.R. 52 requires. We do not reach this argument because we have already held
that Elizabeth's first motion entitled her to compliance with Civ.R. 52.
       {¶ 28} Judge James also urges us to deny Elizabeth's last request in the
conclusion of her brief—to "order Respondent to issue findings of fact and
conclusions of law by a date certain with respect to all other matters decided by the
February 9, 1993 final divorce decree." He complains that Elizabeth stipulated to
these matters and submits the January hearing transcript as proof. In response,
Elizabeth relies on her motion to strike this evidence.




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                              SUPREME COURT OF OHIO




          {¶ 29} The stipulations entered as to the Papps' support arrangements and
property distribution properly appears in this record due to our having overruled
Elizabeth's motion to strike. Moreover, we are convinced by other evidence that
both Elizabeth's motions for findings of fact and conclusions of law were designed
to gain an explanation of Judge Norton's custody ruling, and no more. We,
therefore, reject Elizabeth's plea for relief affecting issues beyond custody of the
Papp children.
          {¶ 30} Judge James's last objection to compliance with Civ.R. 52 is that he
did not preside over the Papps' divorce and custody proceedings and, therefore,
cannot issue findings of fact and conclusions of law. He cites Vergon v. Vergon
(1993), 

87 Ohio App.3d 639

, 

622 N.E.2d 1111

, which held that (1) a trial judge
cannot issue a memorandum opinion in a divorce action after his term has ended,
and (2) his successor cannot render the judgment entry of divorce where credibility
was an issue during the trial and the trial judge did not file findings of fact and
conclusions of law.
          {¶ 31} Vergon, however, did not leave the divorcing couple without a
remedy. Rather, the court of appeals remanded the cause for a new trial before the
judge who would rule in the divorce. Vergon, therefore, does not preclude Judge
James from complying with Civ.R. 52; it is instead authority for him to conduct
further proceedings as he carries out the duty to file findings of fact and conclusions
of law.
                  Adequate Remedy and Extent of Mandamus Relief
          {¶ 32} For a writ of mandamus to issue, Elizabeth must also show that she
has no adequate remedy in the ordinary course of law. State ex rel. Berger v.
McMonagle (1983), 

6 Ohio St.3d 28, 29

, 6 OBR 50, 50-51, 

451 N.E.2d 225, 226

.
Judge James initially argues that Elizabeth's remedy is to invoke the domestic
relations court's continuing jurisdiction and move for another change of custody.
Elizabeth's goal here, however, is to enforce duties owed to her in the underlying




                                          10
                                 January Term, 1994




custody proceeding, not to commence new proceedings at which she must justify
further modification by showing yet another change of circumstances since the
original custody award. R.C. 3109.04(E)(1)(a). Accordingly, we do not consider
a new motion for change of custody to be an adequate remedy in this case.
          {¶ 33} Judge James submits proof that Elizabeth appealed the January 29
custody order on February 5, 1993 and that her appeal was later dismissed for
failure to prosecute. He argues that the availability of this appeal precludes
extraordinary relief. Elizabeth does not dispute having already attempted one
appeal from the January 29 custody order; she argues instead that she has never
been issued a final order that would permit a viable appeal. Elizabeth relies on
Walker v. Doup (1988), 

36 Ohio St.3d 229

, 

522 N.E.2d 1072

, syllabus, which
states:
          "When a timely motion for findings of fact and conclusions of law has been
filed in accordance with Civ.R. 52, the time period for filing a notice of appeal does
not commence to run until the trial court files its findings of fact and conclusions
of law."
          {¶ 34} In Walker, the trial court entered judgment and, approximately six
weeks later, filed findings of fact and conclusions of law in response to a timely
request. An appeal was taken within thirty days of that order, but the appeal came
more than thirty days after the original judgment entry. The court of appeals
dismissed the appeal as untimely, but we reversed and remanded, holding that a
timely motion filed under Civ.R. 52 suspends the appeal time in App.R. 4. 

Id. at 230

, 

522 N.E.2d at 1074

. We explained that "a timely motion for separate findings
of fact and conclusions of law under Civ.R. 52 prevents an otherwise final judgment
from becoming final for the purposes of App.R. 4 until the findings of fact and
conclusions of law are filed by the trial court." 

Id. at 229

, 

522 N.E.2d at 1073

.
          {¶ 35} Our statement in Walker procedurally precludes Elizabeth from
appealing the refusal to comply with Civ.R. 52. Consistently, App.R. 4(B)(2)




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                             SUPREME COURT OF OHIO




unequivocally states that upon a timely Civ.R. 52 motion, "the time for filing a
notice of appeal begins to run as to all parties when the order disposing of the
motion is entered." Accordingly, we hold that Elizabeth has no adequate remedy
by way of appeal to contest the failure to file findings of fact and conclusions of
law.
         {¶ 36} Appeal is inadequate, however, only to the extent that Elizabeth
lacks an order that is procedurally subject to appeal. Error in custody proceedings,
whether substantive or procedural, is reviewable on appeal. See, e.g., Gardini v.
Moyer (1991), 

61 Ohio St.3d 479

, 

575 N.E.2d 423

 (custody modification), and In
re Markham (1990), 

70 Ohio App.3d 841, 845

, 

592 N.E.2d 896, 899-900

 (reversal
of custody decree in part due to trial court's interview of young children in
chambers). Thus, once findings of fact and conclusions of law are filed, Elizabeth
may appeal the failure to appoint a guardian ad litem in the ordinary course of the
law.
                                    Prohibition
         {¶ 37} In light of the fact that an appeal will lie upon compliance with
Civ.R. 52, a writ of prohibition cannot issue unless Elizabeth shows that the
domestic relations court patently and unambiguously lacked jurisdiction over
custody of the Papp children. State ex rel. Aycock v. Mowrey (1989), 

45 Ohio St.3d 347, 351

, 

544 N.E.2d 657, 661

. Elizabeth does not genuinely contest jurisdiction.
Thus, she has failed to show the conditions necessary for a writ of prohibition to
issue.




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                                   January Term, 1994




                                      Conclusion
       {¶ 38} Based on the foregoing, Elizabeth is entitled to findings of fact and
conclusions of law for the custody order issued January 29, 1993, and Judge James
has a clear duty to comply with Civ.R. 52 for this purpose. Accordingly, we issue
a writ of mandamus to compel findings of facts and conclusions of law, pursuant to
Elizabeth's alternative request for a writ of mandamus. Her remaining requests for
extraordinary relief are denied.
                                                                        Writ allowed.
       MOYER, C.J., A.W. SWEENEY, DOUGLAS and F.E. SWEENEY, JJ., concur.
       WRIGHT and RESNICK, JJ. concurs separately.
       PFEIFER, J., concurs in part and dissents in part.
                               __________________
       ALICE ROBIE RESNICK, J., concurring.
       {¶ 39} The majority opinion suggests that Judge James must conduct
further proceedings to produce findings of fact and conclusions of law, but does not
explicitly order a new hearing. Since the credibility of witnesses plays a major role
in the resolution of this case, it will be impossible for Judge James to issue adequate
findings of fact and conclusions of law based on a record made by Judge Norton.
Therefore, the most efficient course of action would be (1) to grant outright a writ
of mandamus vacating the custody decision, (2) to order Judge James to commence
a new custody hearing, and (3) to require Judge James to appoint a guardian ad
litem upon motion of either party when and if the children are interviewed.
       {¶ 40} I do not join the majority's discussion regarding the appealability of
the January 29, 1993 custody order. There is no need to consider this issue because,
regardless of whether the January 29 custody order was final and appealable, the
divorce decree of February 9, 1993 was a final judgment. Even if Elizabeth Papp's
motions for findings of fact and conclusions of law were designed only to gain an
explanation of the custody ruling, that ruling became an appealable order when the




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                             SUPREME COURT OF OHIO




divorce decree was entered, except that the time for appealing the custody
determination was dependent on the trial court's issuance of the requested findings
of fact and conclusions of law.
       WRIGHT, J., concurs in the foregoing concurring opinion.
                               __________________
       PFEIFER, J., concurring in part and dissenting in part.
       {¶ 41} I would deny all of relator's requests for extraordinary relief. While
I voted to grant relator's initial request for relief in State ex rel. Papp v. Norton
(1993), 

66 Ohio St.3d 162

, 

610 N.E.2d 979

, I refuse to be part of petitioner's
apparent plan to second-guess every action taken by the trial judge in petitioner's
divorce proceeding.
       {¶ 42} I would also direct the trial court to award reasonable attorney fees
to Richard Papp for any costs incurred as a result of preparing for this action before
our court.
                               _________________




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