Berthelot v. Dezso - Ohio Supreme Court Opinion - Ohio Supreme Court Decision

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[Cite as Berthelot v. Dezso, 86 Ohio St.3d 257, 1999-Ohio-100.]

BERTHELOT, APPELLANT, v. DEZSO, JUDGE, ET AL., APPELLEES.
[Cite as Berthelot v. Dezso (1999), 86 Ohio St.3d 257.]
Writs of mandamus and prohibition are appropriate to require lower courts to
comply with and not proceed contrary to the mandate of a superior court --
Court of appeals does not err in dismissing relator's claims for
extraordinary relief in mandamus and prohibition when there is no evidence
that domestic relations judge has proceeded contrary to the mandate of the
court of appeals involving spousal support in a divorce action.
(No. 99-359 -- Submitted July 28, 1999 -- Decided September 1, 1999.)
APPEAL from the Court of Appeals for Summit County, No. 19349.

In October 1996, appellee Summit County Court of Common Pleas,
Domestic Relations Division Judge Carol J. Dezso, granted a divorce to appellant,
Maureen A. Berthelot, and her husband, appellee Michael J. Berthelot. Judge
Dezso awarded Maureen spousal support of $6,000 per month for a period of forty-
seven months. In April 1998, the Court of Appeals for Summit County reversed
the spousal support award by holding:

"This case involves a marriage of long duration. The court found Michael to
be highly educated and earning an annual income in excess of one-half million
dollars. The court found the family had experienced `the highest quality standard
of living' during the marriage. Despite these facts and despite Maureen's complete
lack of income and slight earning potential, largely if not entirely due to her marital
responsibilities, the court awarded her spousal support in an amount equivalent of
$72,000 per year for a duration of less than four years. We cannot determine from
the lower court's findings that it properly considered R.C. 3105.18 or Kunkle [v.
Kunkle (1990), 51 Ohio St.3d 64, 554 N.E.2d 83] in fashioning this award. For
this reason, we find the award constitutes an abuse of discretion and we reverse

and remand the issue for further consideration." Berthelot v. Berthelot (Apr. 15,
1998), Summit App. No. 18331, unreported, 1998 WL 178561.

In May 1998, Maureen served Michael with requests for discovery. In June
1998, Maureen filed several motions in the common pleas court, including a
motion to modify child support and temporary spousal support. Maureen
contended that the court of appeals' judgment voided Judge Dezso's spousal
support order. Michael filed a motion to dismiss Maureen's motions and a motion
to quash her discovery requests. Michael claimed that in order to comply with the
court of appeals' mandate, Judge Dezso needed only to make additional findings
supporting her original spousal support award.

In August 1998, Maureen's counsel advised Judge Dezso of the dispute
between the parties about the court of appeals' remand and requested that Judge
Dezso provide "guidance as to whether [she] intend[ed] to have a new hearing
regarding the issues of spousal support or whether [she] merely plan[ned] to issue
additional findings of fact in support of [her] prior order * * *." Judge Dezso
promptly advised Maureen's counsel that she would like to stay the proceedings
until the parties indicated whether they would be willing to engage in settlement
negotiations. The parties agreed to attempt to settle the case, and a settlement
conference took place on October 6, 1998. The parties later advised Judge Dezso
that they had reached an impasse in their attempt to settle the case. By letters dated
October 14 and 20, 1998, Maureen's counsel requested that Judge Dezso provide
immediate guidance on the remand procedures and an immediate hearing on
Maureen's motion to compel discovery and for sanctions.

On October 30, 1998, Maureen filed a complaint in the court of appeals for a
writ of mandamus to compel Judge Dezso "to follow the remand of [the] court [of
appeals] in its Journal Entry and Opinion of April 15, 1998, by scheduling an
evidentiary hearing regarding the issue of spousal support and appellate attorney's
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fees and ordering that the Respondent permit the Relator to conduct sufficient
pretrial discovery regarding her former husband's income and assets," and a writ of
prohibition to prevent Judge Dezso "from proceeding in the Relator's case in
derogation of [the court of appeals'] April 15, 1998 order of remand, such as
merely attempting to provide additional facts in support of her prior spousal
support award and not permitting the Relator to conduct sufficient pretrial
discovery." Judge Dezso and Michael, who was permitted to intervene as a
respondent, filed Civ.R. 12(B)(6) motions to dismiss for failure to state a claim for
relief upon which relief can be granted. The court of appeals granted appellees'
motions and dismissed Maureen's complaint.

This cause is now before the court upon an appeal as of right.1
__________________

Zashin & Rich Co., L.P.A., and Robert I. Zashin, for appellant.

Michael T. Callahan, Summit County Prosecuting Attorney, and Barbara
Crouse Babbit, Assistant Prosecuting Attorney, for appellee Judge Carol J. Dezso.

Lieberth & Anderson, L.P.A., and Dreama Anderson; Maistros & Loepp,
Ltd., and Thomas C. Loepp, for appellee Michael J. Berthelot.
__________________

Per Curiam. Maureen asserts that the court of appeals erred in dismissing
her claims for extraordinary relief in mandamus and prohibition. She claims that
Judge Dezso has no discretion to deny her discovery and an evidentiary hearing to
redetermine spousal support following the court of appeals' reversal and remand of
the original spousal support award. For the following reasons, Maureen's
assertions lack merit.

Writs of mandamus and prohibition are appropriate to require lower courts
to comply with and not proceed contrary to the mandate of a superior court. State
ex rel. Dannaher v. Crawford (1997), 78 Ohio St.3d 391, 394, 678 N.E.2d 549,
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553. Here, however, there is no evidence that Judge Dezso has proceeded contrary
to the mandate of the court of appeals. As the court of appeals concluded, it "did
not give specific instructions concerning additional discovery, evidence, or proper
procedure" in its prior mandate, so Judge Dezso possesses discretion to "choose
the appropriate procedure and decide, guided by [the court of appeals'] opinion,
the appropriate spousal support award." Certainly, the court of appeals was in the
best position to determine if Judge Dezso had violated its remand order. See, e.g.,
State ex rel. Bitter v. Missig (1995), 72 Ohio St.3d 249, 252, 648 N.E.2d 1355,
1357. It did not so find.

Moreover, given the discretionary authority vested in Judge Dezso in
discovery matters and in determining the appropriate spousal support award, see
State ex rel. The V Cos. v. Marshall (1998), 81 Ohio St.3d 467, 469, 692 N.E.2d
198, 201 (discovery), and Booth v. Booth (1989), 44 Ohio St.3d 142, 144, 541
N.E.2d 1028, 1030 (domestic relations orders), an extraordinary writ will not issue
to control her judicial discretion, even if that discretion is abused. See State ex rel.
Thomson v. Court of Claims (1997), 80 Ohio St.3d 495, 497, 687 N.E.2d 456, 458.

Further, any errors committed by Judge Dezso will be remediable on appeal.
Neither prohibition nor mandamus will issue as a substitute to review mere errors
in judgment. See State ex rel. Levin v. Sheffield Lake (1994), 70 Ohio St.3d 104,
109, 637 N.E.2d 319, 324.

Finally, to the extent that Maureen's mandamus claim could be construed as
a challenge to Judge Dezso's alleged failure to promptly rule on her pending
motions, Judge Dezso did not unnecessarily delay in ruling on the motions.
Maureen agreed to the judge's suggestions that the motions be held in abeyance
while the parties attempted to settle the case. When the parties reached an
impasse, only two to three weeks had elapsed from the time Maureen requested
that Judge Dezso act immediately on her pending motions until Maureen filed her
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complaint for writs of mandamus and prohibition. See State ex rel. Sherrills v.
Cuyahoga Cty. Court of Common Pleas (1995), 72 Ohio St.3d 461, 462, 650
N.E.2d 899, 900 (procedendo action to compel judge to rule on postconviction
relief petition and motions was properly dismissed because petition and motions
had been pending for only two to three weeks when complaint for writ of
procedendo was filed); State ex rel. Dehler v. Sutula (1995), 74 Ohio St.3d 33, 35-
36, 656 N.E.2d 332, 333-334 (mandamus will not lie to compel court to rule on
postconviction relief petition, which had been pending for ten months, where
relator had filed other related requests on and after date he filed petition). And
significantly, Maureen asserts in her reply brief that she is not requesting the same
relief in this case as she did in a procedendo action to compel Judge Dezso to
promptly rule on her pending motions; instead, she claims that she merely wants
the judge to comply with the court of appeals' mandate. Berthelot v. Dezso (1999),
85 Ohio St.3d 1426, 707 N.E.2d 516. We do note, however, that Judge Dezso
should now proceed to promptly rule on the pending motions.

Based on the foregoing, the court of appeals properly dismissed the
complaint for extraordinary relief in mandamus and prohibition. Accordingly, we
affirm the judgment of the court of appeals.2
Judgment affirmed.

MOYER, C.J., DOUGLAS, RESNICK, F.E. SWEENEY, PFEIFER, COOK and
LUNDBERG STRATTON, JJ., concur.
FOOTNOTES:
1.
We deny appellant's request for oral argument. She has established none of
the factors that warrant oral argument. None of the issues raised is so complex that
oral argument would be beneficial. State ex rel. Schneider v. Kreiner (1998), 83
Ohio St.3d 203, 205, 699 N.E.2d 83, 84.
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2.
In view of this holding, appellant's motion to remand the cause to the court
of appeals, in order that it can consider a Civ.R. 60(B) motion for relief from
judgment, as well as Judge Dezso's motion to strike appellant's reply brief, is
rendered moot.
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