STATE EX REL. LITTY v. LESKOVYANSKY No. 96-1482.
77 Ohio St.3d 97 (1996)
THE STATE EX REL. LITTY v. LESKOVYANSKY, JUDGE.
Supreme Court of Ohio.
Decided November 13, 1996.
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.
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),
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),
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),
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, 30 O.O. 238, 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, Section 21.107.
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),
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 ther in 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),
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),
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
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),
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),
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 action.
DOUGLAS, RESNICK, F.E. SWEENEY, PFEIFER, COOK and STRATTON, JJ., concur.
MOYER, C.J., not participating.
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