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The State ex rel. Litty v. Leskovyansky, Judge.
[Cite as State ex rel. Litty v. Leskovyansky (1996), Ohio St.3d .]
Prohibition preventing judge from continuing further proceedings in a
divorce action where one of the parties dies prior to the scheduled
commencement of trial -- Writ granted, when.
(No. 96-1482 -- Submitted September 10, 1996 -- Decided November 13,
In December 1994, John C. Litty, Jr. filed a divorce action against his wife,
relator, Carol-Lou Wolverton Litty, in the Mahoning County Court of Common
Pleas. Respondent, Judge John J. Leskovyansky, is presiding over the case. On
January 5, 1996, during the pendency of the divorce action, relator filed an
affidavit of bias and disqualification regarding Judge Leskovyansky with the court
pursuant to R.C. 2701.03. Relator requested that Judge Leskovyansky be
disqualified from the divorce action and that another judge be assigned.
On January 8, 1996, John C. Litty, Jr., the plaintiff in the divorce action,
died. At the time of the decedent's death, trial in the divorce action had not
commenced, and the issues in the case had not been presented to Judge
Leskovyansky for determination. On January 11, Judge Leskovyansky, on his
own motion, dismissed the divorce case because of the plaintiff's death. On
January 16, the Chief Justice ruled that relator's affidavit of disqualification
concerning Judge Leskovyansky was moot due to the January 11 dismissal of the
In February 1996, the Mahoning County Court of Common Pleas, Probate
Division appointed the daughter of the decedent, Brenda Dobson, executor of his
estate. In March 1996, Dobson filed a motion to substitute herself, in her capacity
as executor of the decedent's estate, as the plaintiff in the previously dismissed
divorce case and to revive the divorce action. Dobson's motion was "for the
purpose of dividing the property in the divorce action." In May 1996, Judge
Leskovyansky issued the following entry:
"Pursuant to [Civ.] Rule 60(A) the court, having dismissed this action in
error, does hereby reinstate the same and must await the decision of the Supreme
Court of Ohio with regard to the pending affidavit for disqualification filed
previous to the death of plaintiff by the defendant."
Shortly thereafter, relator instituted this action for a writ of prohibition
preventing Judge Leskovyansky from continuing further proceedings in the
divorce case. This court granted an alternative writ and issued a schedule for the
presentation of evidence and briefs. 76 Ohio St.3d 1407-1408, 666 N.E.2d 567-
John V. Heutsche Co., L.P.A., and John V. Heutsche, for relator.
James A. Philomena, Mahoning County Prosecuting Attorney, and Linette
S. Baringer, Assistant Prosecuting Attorney, for respondent.
Per Curiam. In her various propositions of law, relator asserts that she is
entitled to extraordinary relief in prohibition. In order for a writ of prohibition to
issue, relator must establish that (1) Judge Leskovyansky is about to exercise
judicial power, (2) the exercise of such power is unauthorized by law, and (3) if
the writ is denied, relator will suffer injury for which no other adequate remedy
exists. State ex rel. Barclays Bank PLC v. Hamilton Cty. Court of Common Pleas
(1996), 74 Ohio St.3d 536, 540, 660 N.E.2d 458, 461.
Judge Leskovyansky initially contends that relator has not established the
first requirement for the issuance of a writ of prohibition because he has already
exercised judicial power by reinstating the divorce case. However, where an
inferior court patently and unambiguously lacks jurisdiction over the cause,
prohibition will lie both to prevent the future unauthorized exercise of jurisdiction
and to correct the results of previous jurisdictionally unauthorized actions. State
ex rel. Smith v. Frost (1995), 74 Ohio St.3d 107, 109, 656 N.E.2d 673, 676; State
ex rel. Tollis v. Cuyahoga Cty. Court of Appeals (1988), 40 Ohio St.3d 145, 148,
532 N.E.2d 727, 730. In addition, Judge Leskovyansky intends to exercise further
jurisdiction in the divorce action by dividing the property of relator and the
As for the remaining requirements of a writ of prohibition, prohibition will
not lie where relator has an adequate remedy in the ordinary course of law. State
ex rel. Newton v. Court of Claims (1995), 73 Ohio St.3d 553, 555, 653 N.E.2d
366, 369. Absent a patent and unambiguous lack of jurisdiction, a court having
general subject-matter jurisdiction can determine its own jurisdiction, and a party
challenging the court's jurisdiction has an adequate remedy by appeal. State ex
rel. Lipinski v. Cuyahoga Cty. Court of Common Pleas (1995), 74 Ohio St.3d 19,
22, 655 N.E.2d 1303, 1306.
Relator asserts that a writ of prohibition should issue because Judge
Leskovyansky patently and unambiguously lacked jurisdiction to revive and
proceed with the divorce action. Relator claims that the death of the plaintiff in
the divorce action divested the common pleas court of jurisdiction over the case.
R.C. 2311.21 states that "[u]nless otherwise provided, no action or
proceeding pending in any court shall abate by the death of either or both of the
parties thereto, except actions for libel, slander, malicious prosecution, for a
nuisance, or against a judge of a county court for misconduct in office, which shall
abate by the death of either party." Although divorce actions are not specified in
R.C. 2311.21 as actions requiring abatement upon death of one or both parties, this
court has stated that "[e]ven in the absence of statute, it stands to reason that
where one or both parties to a divorce action die before a final decree of divorce
the action abates and there can be no revival [because] [c]ircumstances have
accomplished the primary object sought." Porter v. Lerch (1934), 129 Ohio St.
47, 56, 1 O.O. 356, 360, 193 N.E. 766, 770 (construing the similarly worded
General Code version of R.C. 2311.21); see, also, Taylor v. Taylor (July 15,
1992), Hamilton App. No. C-910126, unreported, 1992 WL 166076 ("[I]t is now
well settled in Ohio that an action for divorce is one of the exceptional cases
where abatement results from the death of a party.").
Conversely, if a party in a divorce action dies following a decree
determining property rights and granting a divorce but prior to the journalization
of the decree, the action does not abate upon the party's death. Porter, 129 Ohio
St. at 56, 1 O.O. at 360, 193 N.E. at 770; Caprita v. Caprita (1945), 145 Ohio St.
5, 60 N.E.2d 483, paragraph three of the syllabus. In these circumstances, the
decree may be journalized by nunc pro tunc entry. Id. at paragraph four of the
syllabus; see, generally, 2 Spike, Ohio Family Law and Practice (1994) 688-689,
In the case at bar, Judge Leskovyansky did not decide any of the issues in
the divorce action prior to the death of relator's husband. The decedent died prior
to the scheduled commencement of trial in the divorce case. Based on these
uncontroverted facts, Judge Leskovyansky lacked jurisdiction to proceed in the
underlying divorce action. See, e.g., Diemer v. Diemer (1994), 99 Ohio App.3d
54, 62-63, 649 N.E.2d 1285, 1290-1291 (divorce action abated upon plaintiff's
death prior to domestic relations court's commencing proceedings or determining
any issues, and probate court, rather than domestic relations court, possessed
jurisdiction to determine rights and liabilities of parties with respect to antenuptial
agreement); Koch v. Koch (Mar. 4, 1994), Sandusky App. No. S-93-5, unreported,
1994 WL 69358 (where trial court had taken no action to finally decide issues in
divorce action prior to death of one of the parties, nunc pro tunc entry could not be
used to journalize decisions on those issues and trial court had no further
jurisdiction to consider divorce case); Hook v. Hook (1987), 35 Ohio App.3d 51,
52-53, 519 N.E.2d 687, 689 (trial court properly dismissed divorce action when
one of the parties died prior to the commencement of trial).
Judge Leskovyansky vacated his previous dismissal of the divorce case
pursuant to Civ.R. 60(A), which provides that "[c]lerical mistakes in judgments,
orders or other parts of the record and errors arising therein arising from oversight
or omission may be corrected by the court at any time on its own initiative or on
the motion of any party and after such notice, if any, as the court orders." Judge
Leskovyansky contends that he properly exercised his authority to reinstate the
divorce case pursuant to Civ.R. 60(A).
Civ.R. 60(A) permits a trial court, in its discretion, to correct clerical
mistakes which are apparent on the record, but does not authorize a trial court to
make substantive changes in judgments. Londrico v. Delores C. Knowlton, Inc.
(1993), 88 Ohio App.3d 282, 285, 623 N.E.2d 723, 725. The term "clerical
mistake" refers to a mistake or omission, mechanical in nature and apparent on the
record which does not involve a legal decision or judgment. Id., 88 Ohio App.3d
at 285, 623 N.E.2d at 725; Dentsply Internatl., Inc. v. Kostas (1985), 26 Ohio
App.3d 116, 118, 26 OBR 327, 328-329, 498 N.E.2d 1079, 1081. Judge
Leskovyansky's May 1996 entry stated that he dismissed the divorce action "in
error" because he had not considered the then-pending affidavit of
disqualification. This does not indicate any "clerical mistake." Instead, it reflects
a substantive change in Judge Leskovyansky's judgment. Therefore, Judge
Leskovyansky was not authorized under Civ.R. 60(A) to revive the divorce action.
See, generally, McCormac, Ohio Civil Rules Practice (2 Ed.1992) 385-386,
Judge Leskovyansky's May 1996 entry also did not constitute a proper nunc
pro tunc entry. While courts possess inherent authority to correct errors in
judgment entries so that the record speaks the truth, nunc pro tunc entries are
limited in proper use to reflecting what the court actually decided, not what the
court might or should have decided or what the court intended to decide. State ex
rel. Fogle v. Steiner (1995), 74 Ohio St.3d 158, 163-164, 656 N.E.2d 1288, 1294.
Since the May 1996 decision does not reflect what Judge Leskovyansky actually
decided in his previous dismissal entry, he lacked authority to issue the entry
vacating the dismissal under his inherent authority to issue a nunc pro tunc entry.
Id.; see, also, Porter, Caprita, and Koch, supra.
Therefore, Judge Leskovyansky lacked jurisdiction to vacate the prior
dismissal and proceed in the divorce action following the death of relator's
husband before the commencement of trial. In these circumstances, the lack of
jurisdiction is patent and unambiguous, rendering the availability of appeal
immaterial and permitting the court to vacate any prior jurisdictionally
unauthorized actions like the revival of the divorce case. See State ex rel. Sullivan
v. Brigner (Nov. 25, 1992), Montgomery App. No. 13461, unreported, where the
court of appeals granted a writ of prohibition to prevent a domestic relations court
from deciding a custody dispute when one of the parties to the divorce action died
prior to the determination of the case.
Judge Leskovyansky claims that his prior dismissal of the divorce action
was a nullity because of the then-pending affidavit of disqualification filed against
him by relator. Judge Leskovyansky relies on cases which generally prohibit a
judge from determining a cause or hearing any matter that affects the substantive
rights of the parties when an affidavit of prejudice has been properly filed. See
State ex rel. Lomaz v. Portage Cty. Court of Common Pleas (1988), 36 Ohio St.3d
209, 210-211, 522 N.E.2d 551, 553, fn. 2, which noted, without expressly
approving, cases supporting the foregoing proposition; Bland v. Graves (1994), 99
Ohio App.3d 123, 132, 650 N.E.2d 117, 124. However, not all courts agree that
an affidavit of prejudice prevents a court from proceeding with the case. See, e.g.,
Rife v. Morgan (1995), 106 Ohio App.3d 843, 850, 667 N.E.2d 450, 454-455
("Taking into account the ease with which a disgruntled litigant may file an
affidavit of disqualification with the Supreme Court, we believe the appropriate
approach is to posit that a trial judge who proceeds with substantive matters
pending resolution by the Chief Justice of an affidavit of disqualification does so
at the risk of those proceedings being held for naught should the Chief Justice find
the affidavit of disqualification to be meritorious. *** Because we hold that the
pendency of an affidavit of disqualification does not automatically divest the trial
court of power to act, even upon substantive matters, and because the Chief Justice
eventually denied the affidavit of disqualification that was pending on the date of
the evidentiary hearing, the first assignment of error is overruled.").
Further, even assuming, arguendo, that the authorities cited by Judge
Leskovyansky are correct, he was not divested of authority to act in an
administrative or ministerial capacity. Lomaz, 36 Ohio St.3d at 211, 522 N.E.2d at
553, fn. 2; Evans v. Dayton Newspapers, Inc. (1989), 57 Ohio App.3d 57, 58, 566
N.E.2d 704, 706. As discussed previously, the death of relator's husband prior to
adjudication of the issues in the divorce case caused the action to abate and ended
any jurisdiction that Judge Leskovyansky had over the case except to dismiss it.
See Porter, Diemer, Koch, and Sullivan, supra. Consequently, following the
decedent's demise, the decision to dismiss the case was a required, ministerial
decision rather than a substantive ruling requiring the Chief Justice's decision on
relator's affidavit of disqualification.
In addition, Judge Leskovyansky's May 1996 entry reinstated the divorce
case until there was a ruling on the "pending" affidavit of disqualification.
However, the affidavit is no longer pending, since it has been ruled moot by the
Chief Justice, and Judge Leskovyansky thus lacks jurisdiction to proceed in the
divorce action. Judge Leskovyansky concedes that relator's affidavit of
disqualification is no longer pending because he argues that if relator wants to
prohibit him from hearing the divorce action and dividing the parties' property,
relator "simply needs to file a second affidavit of prejudice against Respondent
which will suspend his jurisdiction until either the [Chief Justice] rules on the
affidavit of prejudice or another judge can be appointed to hear the matter."
In sum, for the foregoing reasons, relator has established all of the
requirements necessary for the issuance of the requested writ. We grant a writ of
prohibition preventing Judge Leskovyansky from proceeding with the divorce
DOUGLAS, RESNICK, F.E. SWEENEY, PFEIFER, COOK and STRATTON, JJ.,
MOYER, C.J., not participating.
1 By so holding, we need not address the arguments raised by relator in her first
and fifth propositions of law that following a voluntary dismissal of the case, the
court lacks jurisdiction over the matter dismissed, and that since the decedent's
daughter has already invoked the jurisdiction of the probate court, the common
pleas court lacks jurisdiction over the divorce.
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