author: Deters, Judge. Miller, J., dissenting.

text:
    IN RE: ADOPTION OF B.I.
    NOS. C-170064 C-170080
    Court of Appeals of Ohio, First District, Hamilton County.
    Date of Judgment Entry on Appeal: December 20, 2017
    Lindhorst & Dreidame Co., LPA, and Bradley D. McPeek, Cincinnati, for Appellant,
    Susan Mineer for Appellee.
    OPINION.
   Deters, Judge.

{¶ 1} These appeals relate to an adoption proceeding initiated by the stepfather of a minor child in which the probate court determined that the natural father's consent to the adoption was required, and therefore the court dismissed the adoption petition. The question presented to this court is whether the natural father failed without justifiable cause to provide maintenance and support as required by law or judicial decree, where the father had a zero child-support order. Because we determine that, under the plain language of R.C. 3107.07(A), a parent cannot fail without justifiable cause to provide maintenance and support of a minor as required by law or judicial decree when that parent has a zero child-support order, we affirm the judgment of the trial court.

{¶ 2} In February 2016, appellant stepfather filed a petition to adopt his stepson, B.I., with the consent of B.I.'s mother ("mother"). The petition alleged that the consent of B.I.'s birth father ("father") was not required under R.C. 3107.07(A), because father had failed without justifiable cause to provide maintenance and support of B.I. as required by law or judicial decree for a period of at least one year immediately preceding the filing of the adoption petition (the "one-year period").

{¶ 3} Father filed objections to the petition. Prior to a hearing on the issue of whether father's consent to the adoption was required, the parties stipulated to several facts, including that (1) father had been in prison since 2009; (2) in August 2010, the Clermont County Juvenile Court had set father's child-support obligation at zero and had also set his arrearage to zero; (3) during the one-year period, father had received $18 per month as prison income, and friends and family had deposited $5,152 into his prison account; and (4) during the one-year period, father had spent $4,681.62 at the prison commissary.

{¶ 4} At the hearing before the magistrate on the issue of father's consent, mother testified that father, along with father's mother, had requested repeatedly that mother terminate father's child-support order, otherwise, father would be incarcerated again on child-support arrearages upon release from prison. Because of their requests, mother agreed to an order that set father's support obligation at zero and set his arrearage at zero. Mother testified that she had not had any communication with father during the year prior to the filing of the adoption petition, but that she would have accepted money from father for B.I.'s support if father had offered.

{¶ 5} Father participated in the consent hearing by phone. Father testified that he had spent over $4,000 in the prison commissary because he did not like the food served at the prison mess hall. He never attempted to provide maintenance or support for B.I. while in prison and never inquired regarding B.I.'s financial support. However, father testified that mother had never requested any support.

{¶ 6} After the consent hearing, the magistrate determined that even though father did not have a support obligation by judicial decree, as a parent, he still had the obligation to provide maintenance and support. Because the uncontroverted evidence showed that father did not provide any maintenance or support for B.I. during the one-year period, and that father had thousands of dollars available to him in his prison account, father's consent was not required for the adoption petition.

{¶ 7} Father filed objections to the magistrate's decision, arguing mainly that the zero child-support order excused any legal obligation to provide maintenance and support to B.I. The trial court sustained father's objections, overruled the decision of the magistrate, and dismissed stepfather's adoption petition. Stepfather now appeals, raising in one assignment of error that the trial court erred in dismissing his adoption petition.

{¶ 8} In general, an adoption petition may be granted only if written consent to the adoption has been executed by the minor's natural parents. See R.C. 3107.06. However, parental consent to an adoption is not required when the petitioner alleges, and the court finds, by clear and convincing evidence, that the parent "has failed without justifiable cause to provide more than de minimis contact with the minor or to provide for the maintenance and support of the minor as required by law or judicial decree for a period of at least one year immediately preceding * * * the filing of the adoption petition * * *." R.C. 3107.07(A). The probate court determines justifiable cause "by weighing the evidence of the natural parent's circumstances for the statutory period for which he or she failed to provide support."

In re Adoption of Bovett , 33 Ohio St.3d 102, 515 N.E.2d 919 (1987), paragraph three of the syllabus.

{¶ 9} As it pertains to the natural parent's failure to provide maintenance and support, the petitioner requesting adoption carries the burden to prove by clear and convincing evidence "both (1) that the natural parent has failed to support the child for the requisite one-year period, and (2) that this failure was without justifiable cause." Id. at paragraph one of the syllabus. Once the petitioner has met his or her initial burden, "the burden of going forward with the evidence shifts to the natural parent to show some facially justifiable cause for such failure." Id. at paragraph two of the syllabus. Because the burden of proof ultimately remains with the adoption petitioner, once a natural parent has "presented facially justifiable reasons" for his or her failure to support the child, the burden shifts back to the petitioner to show that the natural parent's justifications are illusory. In re Adoption of B.B.S. , 2016-Ohio-3515, 70 N.E.3d 1, ¶ 22 (4th Dist.), citing In re Adoption of Kessler , 87 Ohio App.3d 317, 324, 622 N.E.2d 354 (6th Dist.1993).

{¶ 10} R.C. 3107.07(A) does not contain definitions for its terms, thus, courts give those terms their plain and ordinary meanings. In re E.W.H. , 4th Dist. Meigs No. 16CA8, 2016-Ohio-7849, 2016 WL 6875255, ¶ 32-33. Maintenance is defined as "[f]inancial support given by one person to another[,]" and support as "[s]ustenance or maintenance; esp., articles such as food and clothing that allow one to live in the degree of comfort to which one is accustomed." In re Adoption of M.B. , 131 Ohio St.3d 186, 2012-Ohio-236, 963 N.E.2d 142, ¶ 20, citing Black's Law Dictionary 1039 (9th Ed.2009). "Justifiable" means "[c]apable of being legally or morally justified; excusable; defensible." In re E.W.H. at ¶ 33, citing Black's Law Dictionary 882 (8th Ed.2004).

{¶ 11} Stepfather first argues that a zero child-support order does not excuse a parent's failure to support because R.C. 3107.07(A) refers to maintenance and support "required by law or judicial decree." (Emphasis added.) Thus, according to stepfather, father had a duty to support his son, separate and apart from the zero child-support order. Stepfather also argues that the probate court failed to consider all of the facts and circumstances in its decision, including the fact of father's incarceration as the underlying basis for the zero child-support order.

{¶ 12} To support the argument that a duty to support a minor child exists separate from a child-support order, stepfather cites two cases from the Fifth Appellate District, In re Adoption of A.S. , 5th Dist. Licking No. 10-CA-140, 2011-Ohio-1505, 2011 WL 1135112, and In re Adoption of Z.A. , 5th Dist. Licking No. 16-CA-05, 2016-Ohio-3159, 2016 WL 3019457. In In re Adoption of A.S. , the natural father was incarcerated and had a zero child-support order, and the trial court granted the stepfather's adoption petition. The father appealed. The appellate court determined that the phrase "required by law or judicial decree" in R.C. 3107.07(A) means that the father has a support obligation by judicial decree, but also a statutory duty to support his minor child. According to the appellate court, this statutory duty arises under R.C. 2919.21, a criminal statute, which criminalizes parents' nonsupport of children.

{¶ 13} Because the father had a separate duty to provide support to his child, the court in In re Adoption of A.S. determined that, despite the zero child-support order, the father had failed without justifiable cause to support his child. In re Adoption of A.S. at ¶ 29. The Fifth Appellate District followed its reasoning in In re Adoption of A.S. in In re Adoption of Z.A. , another case dealing with an incarcerated father where the father did not have a child-support order in place.

{¶ 14} Other appellate courts have taken a different approach to the language of R.C. 3107.07(A). The Ninth Appellate District has applied the phrase "required by law or judicial decree" in R.C. 3107.07(A) to mean that if a judicial decree of support exists, then the decree supersedes any duty of support "required by law." See In re Adoption of Jarvis , 9th Dist. Summit No. 17761, 1996 WL 724748 (Dec. 11, 1996). In Jarvis , the stepfather's adoption petition had been dismissed after the natural father refused to consent. The stepfather appealed, and on appeal he argued that the father's consent was not required, because the father had failed to provide maintenance and support without justifiable cause. The stepfather argued that even though the divorce decree between the father and mother did not contain a child-support order for the father, the lack of an order in that decree did not abrogate the father's duty of support under R.C. 3103.03 to "support his or her minor children out of his or her property or by his or her labor." Therefore, the stepfather argued that the father was "required by law" to provide support. The Ninth District disagreed with the stepfather, reasoning that, in divorce cases, the common-law duty of support owed by parents to their children, as codified in R.C. 3103.03, is superseded by the domestic-relations statute governing child support, R.C. 3109.05. Id. , citing Meyer v. Meyer , 17 Ohio St.3d 222, 224, 478 N.E.2d 806 (1985). Therefore, the Ninth District held that "[t]o additionally compel the application of R.C. 3103.03 when there is already a valid judicial order in existence would be to incorrectly interpret R.C. 3107.07 to mean: 'as required by law in addition to a judicial decree where a domestic relations court has determined that child support should be not set.' " Id. at *5. Therefore, the Ninth District affirmed the dismissal of the stepfather's adoption petition.

{¶ 15} The Second Appellate District has followed Jarvis in holding that a judicial order relieving a parent of the duty to support supersedes a statutory or common-law duty to support in adoption cases. See In re Adoption of Stephens , 2d Dist. Montgomery No. 18956, 2001 WL 1636284, *3 (Dec. 21, 2001) ; In re Adoption of W.K.M. , 166 Ohio App.3d 684, 2006-Ohio-2326, 852 N.E.2d 1264 (2d Dist.) (applying the same reasoning in a case involving an incarcerated natural father with a zero child-support order). As have the Fourth, Seventh, and Tenth Appellate Districts. See In re Adoption of Way , 4th Dist. Washington No. 01CA23, 2002 WL 59629 ; In re Adoption of A.N.W. and L.D.W. , 7th Dist. Belmont No. 15 BE 0071, 2016-Ohio-463, 2016 WL 531277 ; In re Adoption of K.A.H. , 10th Dist. Franklin No. 14AP-831, 2015-Ohio-1971, 2015 WL 2452282, ¶ 23. Without discussing Jarvis , the Third Appellate District seemed to reach the same result, determining that where a natural mother had a zero child-support order, the mother's failure to support her minor child actually "fulfilled her obligations under the judicial decree," and therefore the mother's consent to the adoption was necessary. See In re Adoption of Thiel , 3d Dist. Hardin No. 6-98-12, 1999 WL 152902, *2 (Feb. 23, 1999) ; In re Adoption of Collene , 3d Dist. Crawford No. 3-08-08, 2008-Ohio-5827, 2008 WL 4853583.

{¶ 16} The Fourth Appellate District has distinguished its holding that a zero child-support order supersedes a statutory or common-law duty to support in adoption cases. See In re Adoption of L.C.H. and K.S.C. , 4th Dist. Scioto Nos. 09CA3318, 09CA3319 and 09CA3324, 2010-Ohio-643, 2010 WL 628428. In In re Adoption of L.C.H. and K.S.C. , the mother had been in and out of prison for drug issues. The juvenile court had ordered the mother to pay zero dollars in child support to her husband. The month after the court entered the zero child-support order, the mother started working at an insurance agency. During the adoption proceedings of the mother's children, the mother argued that the zero child-support order superseded her common-law duty to support her children. The Fourth Appellate District disagreed. First, the appellate court noted that the zero child-support order named the mother's husband as the obligee, even though he did not have custody of the mother's children at the time. Second, the mother had a change in circumstances less than one month after the support order had been entered. The appellate court determined that these facts made the appeal distinguishable from its earlier decision in Way that a zero child-support order supersedes the common-law duty to support. Therefore, the appellate court held that the mother had a common-law duty to support her children despite the zero child-support order. Id. at ¶ 51.

{¶ 17} The reasoning of the Fourth Appellate District in In re Adoption of L.C.H. and K.S.C. is similar to the reasoning of the Fifth Appellate District in In re Adoption of A.S. and In re Adoption of Z.A. in that these courts have determined that a parent has a statutory duty to provide child support, despite the fact that the parent has a court order of support in place. The reasoning in these cases is problematic. First, these cases do not discuss Meyer v. Meyer , in which the Ohio Supreme Court held that in domestic-relations cases the general duty of support under R.C. 3103.03 is superseded by R.C. 3109.05, the domestic-relations statute governing child support. Meyer , 17 Ohio St.3d at 224, 478 N.E.2d 806. More importantly, by determining that a parent's duty to support is not necessarily superseded by a court order regarding child support, the cases suggest that an obligor parent cannot rely on a valid court order of child support. If a child-support order should be modified based upon a change of circumstances, then the parties must be required to return to the juvenile or domestic-relations court that issued the order, and should not collaterally attack the child-support order in probate court in an adoption proceeding. See Cincinnati Bar Assn. v. Hauck , 148 Ohio St.3d 203, 2016-Ohio-7826, 69 N.E.3d 719, ¶ 28 ("Unless a judgment was issued without jurisdiction or was procured by fraud, it is considered valid, and even though it may be flawed in its resolution of the merits, its integrity is generally not subject to collateral attack in a separate judicial proceeding.").

{¶ 18} Adoption proceedings terminate fundamental rights of natural parents, thus the consent requirement in R.C. 3107.07(A) must be strictly construed to protect natural parents. In re Adoption of G.V. , 126 Ohio St.3d 249, 2010-Ohio-3349, 933 N.E.2d 245, ¶ 6. Under the plain language of R.C. 3107.07(A), the justifiable-cause determination is not made until after the probate court finds that the parent failed to provide maintenance and support for the one-year period. See In re Adoption of M.B. , 131 Ohio St.3d 186, 2012-Ohio-236, 963 N.E.2d 142, at ¶ 23 ("In applying [ R.C. 3107.07(A) ], a probate court undertakes a two-step analysis. First, to determine if a parent made a financial contribution that comports with the requirements of R.C. 3107.07(A) to contribute maintenance and support and second, if it finds a failure of support, then to determine whether justifiable cause for the failure has been proved by clear and convincing evidence."). A parent does not fail to provide maintenance and support as required by law or judicial decree where the parent has a zero child-support order, and, in fact, the parent complies with his or her court-ordered child-support obligation in not providing for his or her child. At that point, the analysis under R.C. 3107.07(A) ends.

{¶ 19} Therefore, we reject stepfather's argument in this case that the language "required by law or judicial decree" in R.C. 3107.07(A) means that a parent still has a duty to provide child support separate from a judicial decree of support. We follow the approach taken by a majority of appellate courts and hold that in adoption-consent cases under R.C. 3107.07(A), where a court has ordered a parent to pay no child support or zero child support, that court order of support supersedes any other duty of support "required by law," and therefore the parent cannot fail without justifiable cause to provide maintenance and support of a minor child.

{¶ 20} We note that applying R.C. 3107.07(A) to cases where a natural parent has a zero child-support order may produce unjust results, especially where the zero child-support order is the result of the natural parent's criminal misconduct. For example, in Frymier v. Crampton , 5th Dist. Licking No. 02 CA 8, 2002-Ohio-3591, 2002 WL 1489563, the natural father had committed attempted aggravated murder by shooting his father-in-law with a firearm, and the incident took place in the presence of the father's wife and their four-year-old son. The mother obtained a divorce and the final decree prohibited contact between the father and his son. The decree also relieved the father from his child-support obligation while in prison, but the obligation accumulated as an arrearage. The mother remarried and the stepfather filed an adoption petition, alleging that the father's consent was not required. The trial court granted the adoption petition, and the father appealed. On appeal, the father argued that the court's order relieving his support obligation superseded his general duty to support his son. The appellate court recognized the important interest of a nonconsenting parent in an adoption proceeding terminating parental rights, nevertheless, the court reasoned that "justice requires that we not ignore the reason [father] was put into his current position." Id. at *2. The appellate court determined that the father's violent acts caused the subsequent lack of support, and that the father had an income-producing job in prison. Therefore, under the facts and circumstances of that case, the appellate court affirmed the trial court's holding.

{¶ 21} The result in Frymier is not based upon the plain language of R.C. 3107.07(A), but instead upon the court's determination that justice required disposing of the father's consent because of the father's criminal misconduct. Although justice may have been better served by the result reached in Frymier , R.C. 3107.07(A) makes no exception to parental consent in an adoption proceeding because of a parent's criminal misconduct. The role of the courts is to apply the law as written, thus, we must adhere to the plain language of R.C. 3107.07(A). See Arbino v. Johnson & Johnson , 116 Ohio St.3d 468, 2007-Ohio-6948, 880 N.E.2d 420, ¶ 21 ("A fundamental principle of the constitutional separation of powers among the three branches of government is that the legislative branch is "the ultimate arbiter of public policy.") (Internal quotes omitted.)

{¶ 22} In this case, the undisputed evidence shows that father had a zero child-support order for the one-year period. Both mother and father have referred to the 2010 child-support order as a zero child-support order. See appellant's brief at 4; appellee's brief at 2-3, 14. Even though both parties and the trial court agree as to the characteristics of the 2010 support order, the dissent sees it differently. The dissent makes an argument that neither party made to the trial court, or in either their briefs or at oral argument to this court. The dissent argues that the 2010 order terminating father's support obligation is not a zero child-support order, but instead the order should be treated as if "no order exists." The dissent cites no law for this argument. To be clear, the absence of a child-support order is treated differently under R.C. 3107.07(A). See, e.g., In re Adoption of Kuhlmann , 99 Ohio App.3d 44, 649 N.E.2d 1279 (1st Dist.1994) (analyzing R.C. 3017.07(A) in the absence of a court order addressing child support). As stated succinctly by another appellate court: "[A] zero support or no support order differs from the absence of a support order. When a court is silent on support or has not entered an order regarding support, that fact alone does not constitute justifiable cause for failing to provide support and maintenance." In re Adoption of A.N.W. and L.D.W. , 7th Dist. Belmont No. 15 BE 0071, 2016-Ohio-463, 2016 WL 531277, ¶ 30 (citing a line of cases under R.C. 3107.07(A) where child support had not been adjudicated). Because this is not a case where a court is silent on support or where support has not yet been adjudicated, this line of case law was not cited by the parties and does not apply.

{¶ 23} Moreover, based upon the language in this opinion, the dissent creates a hypothetical situation where a father who commits crimes against his child, and goes to prison for those crimes, must later consent to that child's adoption. It is worth noting that this hypothetical situation is factually distinguishable and would likely turn out differently than predicted by the dissent, albeit under the de-minimis contact provision of R.C. 3107.07(A). See In re Adoption of N.T.R. , 10th Dist. Franklin No. 16AP-589, 2017-Ohio-265, 2017 WL 361217 (where the father had raped his stepdaughter and the Ohio Department of Rehabilitation and Correction had ordered that the father not contact his daughter because his daughter lived with his stepdaughter, the victim, and the appellate court determined that the father had failed to have more than de minimis contact with his daughter, and that this failure was without justifiable cause).

{¶ 24} Therefore, stepfather did not meet his burden to show by clear and convincing evidence that father failed without justifiable cause to provide maintenance and support to B.I. as required by law or judicial decree. We overrule stepfather's assignment of error, and we affirm the judgment of the probate court dismissing stepfather's adoption petition.

Judgment affirmed.

Mock, P.J., concurs.

Miller, J., dissents.

Miller, J., dissenting.

{¶ 25} Let's say an ex-husband who had long been derelict in making child-support payments commits crimes against his ex-wife and child. He is sent to prison. The mother decides she wants the father released from prior obligations under a child-support order because she and her child want to sever all ties. The juvenile court accommodates this request and rescinds the order. She later seeks to have the child adopted by her new spouse. According to the majority, the probate court has no discretion in this instance. The child may not be adopted under R.C. 3107.07(A) without the consent of the ex-husband. Same goes for any other louse who a custodial parent has decided not to be financially tied to and thus consented to there not being a support order. Could this be the intent of the consent provisions in R.C. 3107.07(A) ? Is such a result mandated by the text? I conclude it is not, and thus respectfully dissent.

{¶ 26} The majority refers to a "zero child-support order." In the mind's eye, that would be a court order affirmatively stating the father is required to pay zero dollars. That is not what exists here. Here, there had been a support order in place, on which father was not paying. Father's relatives convinced mother to release him from the order so that the accumulating arrearage would not be problematic for father upon his release. The juvenile court terminated the order, but did not put on a "zero child-support order." Instead, no order exists.

{¶ 27} Thus, I find troubling the majority's conclusion that the absence of a child-support order is dispositive. Providing no support where there is no support order in place isn't an automatic pass on the "maintenance and support" portion of R.C. 3107.07(A). Instead, it factors into whether the failure to provide maintenance and support was "without justifiable cause."

{¶ 28} The statute affords the probate court discretion to weigh the circumstances around which a parent has failed to provide support. Perhaps a parent was not ordered to provide support because the custodial parent was wealthy, or the noncustodial parent is justifiably incomeless and unable to provide support, or maybe one parent is a person the custodial parent is trying to avoid for a host of reasons and therefore wants no order in place. The probate court should be able to consider such matters before making a determination under R.C. 3107.07(A).

{¶ 29} Accordingly, I would vacate the judgment and remand for the probate court to decide whether the failure to provide support was justified. When it does so, the probate court would be free to consider the redirection of the support obligations and the reasons therefor when making its determination.


source: Caselaw Access Project

author: EILEEN T. GALLAGHER, J.:

license: Public Domain

text:
    Andrew P. PHILBIN, et al., Plaintiffs-Appellants v. CITY OF CLEVELAND, Ohio, et al., Defendants-Appellees
    No. 105356
    Court of Appeals of Ohio, Eighth District, Cuyahoga County.
    RELEASED AND JOURNALIZED: December 21, 2017
    Doron M. Kalir, Cleveland-Marshall Civil Litigation, Cleveland-Marshall College of Law, 2121 Euclid Avenue, LB 138, Cleveland, Ohio 44115, For Andrew P. Philbin
    Kenneth J. Kowalski, Cleveland-Marshall Civil Litigation, Cleveland-Marshall College of Law, 2121 Euclid Avenue, LB 138, Cleveland, Ohio 44115, For Luis S. Sandoval
    Andrew P. Philbin, pro se, Luis S. Sandoval, pro se, 1518 West 32nd Street, Cleveland, Ohio 44113
    Barbara A. Langhenry, Law Director, City of Cleveland, BY: Carolyn M. Downey, Assistant City Prosecutor, 601 Lakeside Avenue, Room 106, Cleveland, Ohio 44114, For the City of Cleveland
    Gillian Hall, 7555 Fredle Drive, Suite 210, Concord, Ohio 44077, For Triban Investment, L.L.C. and Knez Construction, Inc.
    BEFORE: E.T. Gallagher, J., Keough, A.J., and Jones, J.
    JOURNAL ENTRY AND OPINION
   EILEEN T. GALLAGHER, J.:

{¶ 1} Appellants, Andrew P. Philbin and Luis S. Sandoval ("appellants"), appeal the dismissal of their administrative appeal. Their sole assignment of error states:

The trial court erred by dismissing this administrative appeal for lack of standing.

{¶ 2} We find no merit to the appeal and affirm.

I. Facts and Procedural History

{¶ 3} Appellants own a home in the historic Ohio City neighborhood of Cleveland, Ohio. In 2015, Triban Investment, L.L.C. ("Triban") applied for zoning variances to construct a six-unit, four-story condominium building on property located at 3703-3707 Clinton Avenue, in Cleveland. The property is located in a B1 zoning district, which limits housing to one or two-family residences under the Cleveland Codified Ordinances ("C.C.O."). Appellants' home is located one block away from the subject property. (Tr. 26.)

{¶ 4} In August 2015, the Cleveland Board of Zoning Appeals ("the board") held a public hearing on Triban's application. Notice of the public hearing was published as required by law. Sandoval attended the hearing and identified what he viewed as several problems with the proposed construction. In his opinion, the six-unit condominium structure would increase parking difficulties, overburden the sewer system, and adversely affect government services such as garbage collection and snow removal. He also testified that he believed the proposed condominiums would diminish the value of neighboring properties. He stated:

I believe that the granting of the [v]ariances will negatively impact the property values of nearby homes in the long term, including my home because they are in direct contradiction to the 20/20 Plan and existing [o]rdinances that protect the quality of life of the residents of this area of Cleveland. They prevent unnecessary density from overdevelopment and promote a responsible project that contributes to the integrity and quality of life in the neighborhood.

(Tr. 53.) Philbin, who was unable to attend the meeting due to his employment, sent a letter to the board, which states in relevant part: "I fear that my home value will be diminished by the construction of condominiums in my historic neighborhood." Neither Sandoval, Philbin, nor any other resident, offered expert testimony regarding the impact the proposed condominiums would have on nearby property values.

{¶ 5} William Sanderson, an officer of Triban, testified that before Triban applied for the variances, it worked with the city's Landmarks Commission to ensure "that the building is of high quality and high value for the neighborhood" and that it reinforces "the residential characteristics of the neighborhood." (Tr.16.) Sanderson also stated that Triban met with neighbors and that the majority of the neighborhood "block club," known as the Clifton/Franklin Block Club, voted in favor of the project. (Tr. 17.)

{¶ 6} Kerry McCormack, then director of community affairs of Ohio City, Inc. and a resident who lives directly across the street from the proposed condominiums, stated that the Clifton/Franklin Block Club approved Triban's project by a vote of 16 to six. (Tr. 33, 39.) However, a couple of residents who attended the hearing and also live very close to the proposed condominiums expressed concern that some members of Clifton/Franklin Block Club who voted in favor of the project live further away and would not be directly impacted by it. (Tr. 42.)

{¶ 7} Ben Trimble, also from Ohio City, Inc., stated that the Ohio City Design Review Committee supported Triban's plans for the six-unit condominiums because the plans have a historic design, and the condominiums would meet the demand for people who want to live in Ohio City but do not want single family homes. Trimble explained that the project suits the "character of the neighborhood" in part because the subject property was once home to a multifamily structure that burned in a fire in the 1970s. (Tr. 37.)

{¶ 8} Trevor Hunt, a neighborhood planner, explained that the supplemental plans submitted to the city's long-term "20/20 Plan" call for more dense populations near Detroit Road and Lorain Avenue in order to "activate those streets" with retail. In his opinion, the six-unit condominiums "would support walkability to those establishments up and down both Detroit and Lorain Avenue." (Tr. 39.)

{¶ 9} At the conclusion of the hearing, the five-member board voted unanimously to grant the variances. Sandoval and Philbin filed a timely notice of appeal to the Cuyahoga County Court of Common Pleas. Cleveland filed a motion to dismiss their appeal, arguing that Sandoval and Philbin lacked standing to challenge the board's decision because they are not adjacent property owners, and they have not demonstrated that they will be directly affected by the variances.

{¶ 10} While the motion was pending, Knez Construction Inc. ("Knez") filed a motion to substitute itself as a party to the proceedings, alleging that it was the transferee of Triban's interest in the property. The trial court simultaneously granted the motion to substitute Knez and the city's motion to dismiss the appeal. In its journal entry dismissing the appeal, the trial court stated, in relevant part:

Appellees the city of Cleveland and B.R. Knez Construction, Inc.'s motion to dismiss the appeal are granted. Appellants lack standing to appeal the Cleveland Board of Zoning Appeals' (BZA) decision in this case because they have not demonstrated that they have suffered a unique harm as a result of the BZA's decision. * * * A property owner is directly affected by the decision "when the party can demonstrate a unique harm." * * * This injury "must be more than speculation and supported by credible evidence." * * * While plaintiffs speculate that the proposed development will adversely affect their property values, they have failed to present to this court any credible evidence to support their assertion.

(Judgment entry dated December 29, 2016, quoting Kurtock v. Cleveland Bd. of Zoning Appeals , 8th Dist. Cuyahoga No. 100266, 2014-Ohio-1836, 2014 WL 1775986.) Appellants now appeal the trial court's judgment.

II. Law and Analysis

{¶ 11} In their sole assignment of error, appellants argue the trial court erred in dismissing their administrative appeal for lack of standing.

{¶ 12} Whether a party has standing to invoke the trial court's jurisdiction is a question of law, which we review de novo. Moore v. Middletown , 133 Ohio St.3d 55, 2012-Ohio-3897, 975 N.E.2d 977, ¶ 20, citing Cuyahoga Cty. Bd. of Commrs. v. State , 112 Ohio St.3d 59, 2006-Ohio-6499, 858 N.E.2d 330, ¶ 23.

{¶ 13} The right to appeal is neither inherent nor inalienable and must be derived from some constitutional or statutory authority. Willoughby Hills v. C. C. Bar's Sahara, Inc. , 64 Ohio St.3d 24, 26, 591 N.E.2d 1203 (1992). R.C. 2506.01 establishes the right to appeal an administrative decision of a political subdivision that determines "rights, duties, privileges, benefits or legal relationships of a person * * *." R.C. 2506.01(C). However, R.C. 2506.01 does not specifically identify who has standing to appeal administrative decisions.

{¶ 14} In Roper v. Bd. of Zoning Appeals, Twp. of Richfield , 173 Ohio St. 168, 180 N.E.2d 591 (1962), the Ohio Supreme Court concluded it would be inappropriate to limit standing to bring an administrative appeal to parties whose applications for zoning modification had been denied. The court reasoned that such a " 'heads I win, tails you lose' " approach would be contrary to the intent of the administrative appeals statute and "repugnant" to the sensibilities of the court's majority. Id. at 173, 180 N.E.2d 591. Accordingly, the Roper court held:

A resident, elector and property owner of a township, who appears before the township Board of Zoning Appeals, is represented by an attorney, opposes and protests the changing of a zoned area from residential to commercial, and advises the board, on the record, that if the decision of the board is adverse to him he intends to appeal from the decision to a court, has the right of appeal to the Common Pleas Court if the appeal is properly and timely made pursuant to Sections 519.15 and 2506.01 to 2506.04, inclusive, and Chapter 2505, Revised Code.

Id. at syllabus. Although we know that Roper was a resident and landowner in the township, the opinion is silent as to the proximity of his land to the property of the proposed variance. Nevertheless, the court recognized that Roper "came as a person whose interests were adversely affected, and he appeared with his lawyer in person in opposition to a zoning change which would damage Roper and his property." Id. at 173, 180 N.E.2d 591.

{¶ 15} In Schomaeker v. First Natl. Bank , 66 Ohio St.2d 304, 311-312, 421 N.E.2d 530 (1981), the court held that an individual whose property was contiguous to the zoning applicant's property had standing to challenge a variance because her property was "directly affected" by it. Id. at 312, 421 N.E.2d 530. The "directly affected" language clarified "the basis upon which a private property owner, as distinguished from the public at large, could challenge the board of zoning appeals' approval of the variance." Willoughby Hills , 64 Ohio St.3d at 27, 591 N.E.2d 1203. In Willoughby Hills , the court further explained this distinction:

The private litigant has standing to complain of harm which is unique to himself. In contrast, a private property owner across town, who seeks reversal of the granting of a variance because of its effect on the character of the city as a whole, would lack standing because his injury does not differ from that suffered by the community at large. The latter litigant would, therefore, be unable to demonstrate the necessary unique prejudice which resulted from the board's approval of the requested variance.

Id. Thus, a person owning property contiguous to the proposed use who actively participates at the hearing on the variance "is within that class of persons directly affected by the administrative decision and is entitled to appeal under R.C. Chapter 2506." Schomaeker at paragraph two of the syllabus; see also Willoughby Hills at 27, 591 N.E.2d 1203.

{¶ 16} The term "contiguous" means "[s]haring an edge or boundary; touching" or "adjacent." The American Heritage Dictionary 407 (3d Ed.1996). Schomaeker and Willoughby Hills establish that while contiguous landowners are within the class of persons "directly affected" by zoning decisions, landowners "across town" are not. Appellants' property is neither contiguous to the proposed condominiums nor "across town." Their property falls in the nebulous middle ground between the two.

{¶ 17} This court has held that a noncontiguous property owner has standing to appeal an administrative zoning decision if the property owner "actively participated at the administrative hearing and has been directly affected by the decision." Kurtock , 8th Dist. Cuyahoga No. 100266, 2014-Ohio-1836, 2014 WL 1775986, ¶ 11. In determining whether a property owner has been "directly affected" by the zoning variance, this court explained:

One is directly affected, as distinguished from the public at large, when the party can demonstrate a unique harm. * * * For instance, concerns regarding increased traffic alone have generally been regarded as affecting the public at large, while evidence showing a diminution in property value because of an administrative decision has been found to constitute a direct effect sufficient to confer standing.

Id. , citing Safest Neighborhood Assn. v. City of Athens Bd. Of Zoning Appeals , 4th Dist. Athens Nos., 2013-Ohio-5610, 5 N.E.3d 694, ¶ 11.

{¶ 18} Appellants argue they have standing because they participated at the administrative hearing and the variances will negatively impact their property values. The city argues that Philbin did not attend the hearing in person and therefore does not have standing. However, Philbin participated at the hearing through Sandoval as his representative, who read Philbin's letter to the board. A written copy of Philbin's letter was also submitted to the board. We recognize that zoning boards cannot accommodate everyone's schedules, and to preclude someone from participation simply because his physical presence was not possible is neither practical nor just. Moreover, the city has not provided any legal authority for its position that an individual must be physically present in order to "actively participate" at administrative hearings. Therefore, Philbin's letter, which was submitted in writing and spoken through a personal representative, constituted active participation at the hearing.

{¶ 19} The city also contends, citing Roper , 173 Ohio St. 168, 180 N.E.2d 591, that appellants failed to actively participate at the hearing because they were not represented by lawyers. Although the appellant in Roper was represented by counsel at the zoning hearing, representation by counsel is not a requirement of active participation at such a hearing. Individuals often represent their own interests pro se. To hold that legal representation at a zoning hearing is required for standing to file an administrative appeal would deny many aggrieved citizens access to the courts. Therefore, appellants have established that they actively participated at the hearing before the Cleveland Board of Zoning Appeals.

{¶ 20} The more difficult question is whether appellants are directly affected by the variances in this case. Appellants contend, quoting the "as the crow flies" language from the dissenting opinion in Kurtock , that they are directly harmed by the proposed condominiums due to the close proximity of the condominiums to their home. See Kurtock , 8th Dist. Cuyahoga No. 100266, 2014-Ohio-1836, 2014 WL 1775986 (Stewart, J., dissenting). However, as previously stated, "[o]ne is directly affected, as distinguished from the public at large, when the party can demonstrate a unique harm." Id. at ¶ 11.

{¶ 21} Appellants stated at the hearing that they believed the value of their property will be negatively impacted by the construction of the six-unit condominium building. Sandoval testified that while there were no single family homes for sale in the neighborhood at the time of the hearing, there were four condominiums for sale "according to the total 4 Realtor lockboxes on the outside of the building * * * on Franklin and 32nd." Appellants also provided information regarding recent sale prices of single-family homes built by Knez. This information was offered to show that the proposed condominiums are unnecessary because Knez could make a profit by building single-family homes on the property. However, appellants failed to explain how any of this evidence related to the impact the six-unit condominium building would have on the value of their single-family home.

{¶ 22} Moreover, appellants did not provide any expert evidence to support their contention that property values will decline if the condominiums are built. To establish that a noncontiguous property owner is adversely affected by an administrative decision, the property owner may not rest on speculation, but must support his claims with competent evidence. Kurtock , 8th Dist. Cuyahoga No. 100266, 2014-Ohio-1836, 2014 WL 1775986, at ¶ 13 ; see also Zelnick v. Troy City Council , 85 Ohio Misc.2d 67, 684 N.E.2d 381 (C.P.1997) ("[T]estimony by expert witnesses that the value of the appellant's noncontiguous property would be reduced by the enactment of a zoning ordinance will support a finding that an appellant was directly affected by the zoning ordinance."); Westgate Shopping Village v.Toledo , 93 Ohio App.3d 507, 514, 639 N.E.2d 126 (6th Dist.1994) (Shopping center had standing to challenge zoning ordinance that would expand size of existing mall where evidence showed that, as a result of the ordinance, "money that would have been spent at Westgate's shopping center will instead be spent at the Mall."); In re Appeal of Jefferson Twp. Bd. of Trustees , 78 Ohio App.3d 493, 605 N.E.2d 435 (10th Dist.1992) (Township trustees lacked standing to challenge annexation where they failed to provide evidence of "concrete adverse impact" on its legal rights.).

{¶ 23} Appellants' statements regarding the potential effect the condominiums may have on their property value is too speculative and vague to support a conclusion that they have been uniquely harmed by the variances in this case. Appellants are not real estate appraisal experts, and they did not provide any evidence concerning projected property values from an expert with special knowledge in the field of real estate sales and marketability. Therefore, in the absence of competent, credible evidence that appellants have been directly affected by the variance, the trial court properly dismissed appellant's administrative appeal for lack of standing.

{¶ 24} Judgment affirmed.

KATHLEEN ANN KEOUGH, A.J., and LARRY A. JONES, SR., J., CONCUR

      We note that Kurtock is procedurally distinguishable from the facts of this case. In Kurtock , this court reversed the trial court's judgment because it failed to address the issue of standing. In this case, the trial court made a determination that appellants did not have standing.


text:
    U.S. BANK, N.A., Plaintiff-Appellee v. Thomas E. JEFFERS, et al., Defendants-Appellants
    No. 105002
    Court of Appeals of Ohio, Eighth District, Cuyahoga County.
    RELEASED AND JOURNALIZED: December 21, 2017
    Harry J. DePietro, The DePietro Law Office, L.L.C., 7 West Liberty Street, Girard, Ohio 44420, ATTORNEY FOR APPELLANTS.
    John E. Codrea, Matthew J. Richardson, Manley, Deas & Kochalski, L.L.C., P.O. Box 165028, Columbus, Ohio 43216, Melany A. Fontanazza, McGlinchey Stafford, 25550 Chagrin Blvd., Suite 406, Cleveland, Ohio 44122, ATTORNEYS FOR APPELLEES.
    Michael C. O'Malley, Cuyahoga County Prosecutor, BY: Gregory B. Rowinski, Assistant Prosecuting Attorney, 310 West Lakeside Avenue, Suite 300, Cleveland, Ohio 44113, For the Cuyahoga County Treasurer.
    Matthew J. Marotta, pro se, 6215 Virginia Avenue, Parma, Ohio 44129
    Nora Marotta, pro se, 15834 Parklawn Avenue, Cleveland, Ohio 44130
    BEFORE: E.T. Gallagher, J., Keough, A.J., and Jones, J.
    JOURNAL ENTRY AND OPINION
   EILEEN T. GALLAGHER, J.:

{¶ 1} Defendant-appellant, Thomas Jeffers, Jr., appeals from the judgment of the common pleas court that granted the motion of plaintiff-appellee, U.S. Bank, N.A., to substitute Christiana Trust, a Division of Wilmington Savings Fund Society, FSB ("Christiana Trust"), as party plaintiff in this foreclosure action. Jeffers raises the following assignments of error for review:

1. The trial court erred, as a matter of law, when it considered the unserved motion to substitute a new party plaintiff, and when it denied Jeffers's oral motion for a directed verdict or dismissal of the case as no properly substituted party plaintiff, nor the original party plaintiff, was present to prosecute the action at trial.
2. The trial court erred as a matter of law and abused its discretion when it found that Jeffers's failure to object to the unserved motion prior to trial constituted an implicit waiver of Jeffers's argument that the unserved motion could not be used to permit the substitution of the party plaintiff; and the denial of Jeffers's motion for dismissal of the case.

{¶ 2} After careful review of the record and relevant case law, we affirm the trial court's judgment.

I. Procedural and Factual History

{¶ 3} In April 2013, U.S. Bank filed a foreclosure action against Jeffers, seeking judgment on a mortgage and note secured by real property in Parma Heights, Ohio. In response, Jeffers filed counterclaims premised on the Fair Debt Credit Collection Practices Act ("FDCPA"), the Ohio Consumer Sales Practice Act ("OCSPA"), and common-law fraud.

{¶ 4} After filing responsive pleadings, U.S. Bank filed a motion for judgment on the pleadings on Jeffers's counterclaims. In February 2014, the trial court granted U.S. Bank's motion for judgment on the pleadings on Jeffers's fraud claim, but denied the motion as to Jeffers's claims under the FDCPA and the OCSPA.

{¶ 5} In October 2014, U.S. Bank moved to substitute Christiana Trust as party plaintiff. In its motion, U.S. Bank stated that "while this litigation was pending, an assignment of mortgage from Plaintiff to Christiana Trust * * * was executed on December 12, 2013, and recorded with the Cuyahoga County Recorder on August 21, 2014." U.S. Bank asserted that substituting Christiana Trust as plaintiff was appropriate under Civ.R. 25 because there was a transfer of interest in the subject mortgage and note. The motion was electronically filed through the trial court's electronic filing system in compliance with the court's October 4, 2013 First Amended Temporary Administrative Order ("E-Filing Order"). Jeffers did not oppose the motion, and the trial court granted U.S. Bank's motion to substitute Christiana Trust as the party plaintiff.

{¶ 6} The matter was scheduled for a bench trial to commence in December 2014. On the day of trial, however, Jeffers filed a written memorandum in opposition to U.S. Bank's previously granted motion to substitute. In the motion, Jeffers argued that U.S. Bank's motion to substitute was invalid and "must be struck" because U.S. Bank failed to properly serve the motion pursuant to Civ.R. 5. Counsel for Jeffers reiterated his position on the record before the magistrate, claiming that "we weren't served at all, with respect to [the motion to substitute]." Following a brief discussion on the record, the magistrate stated that it would not vacate its previous order substituting Christiana Trust as the party plaintiff.

{¶ 7} At the conclusion of the bench trial, the magistrate issued a decision, finding "that substitute plaintiff [Christiana Trust] is entitled to a decree of foreclosure, judgment on its note, and judgment in its favor on the counterclaims of [Jeffers]."

{¶ 8} As a preliminary matter, the magistrate found that it was necessary to first address Jeffers's challenge to the substitution of the plaintiff on the eve of trial. In rejecting Jeffers's reliance on Civ.R. 5, the court found that counsel for Jeffers was properly served with the motion to substitute pursuant to the court's E-Filing Order, which states that service of documents filed after the original complaint on registered users of the e-filing system is made by the service of an electronic notice sent to the registered user's email address. In addition, the court found that Jeffers "waived any arguments related to defective service of the motion to substitute plaintiff" because Jeffers's counsel received electronic notice of the motion but "failed to raise any issues regarding service of the motion until the eve of trial." Alternatively, the magistrate found that "even if one were to consider the merits of the motion to substitute, it was properly granted" as Civ.R. 25(C)"permits the substitution of the plaintiff where the interest of the plaintiff is transferred after the case was filed."

{¶ 9} In January 2015, Jeffers filed objections to the magistrate's decision, arguing that the magistrate's decision improperly "permitted the matter to go to trial with a party illegally substituted for the original plaintiff" and "repeatedly failed to enforce the Ohio Civil Rules against the substituted plaintiff herein."

{¶ 10} Substitute plaintiff, Christiana Trust, filed a responsive brief requesting the trial court to overrule Jeffers's objections and adopt the magistrate's decision in its entirety. Christiana Trust asserted that Jeffers's counsel was properly served with the motion to substitute in accordance with the provisions of the trial court's E-Filing Order.

{¶ 11} In August 2016, the trial court overruled Jeffers's objections and adopted the magistrate's decision in its entirety.

{¶ 12} Jeffers now appeals from the trial court's judgment.

II. Law and Analysis

A. Electronic Service

{¶ 13} In his first assignment of error, Jeffers argues the trial court erred as a matter of law when it granted U.S. Bank's motion to substitute Christiana Trust as the new party plaintiff. Jeffers further contends that the trial court erred by failing to dismiss the case because "no properly substituted party plaintiff, nor the original party plaintiff, was present to prosecute the action at trial."

{¶ 14} In this case, Jeffers does not dispute that U.S. Bank's interest in the subject note and mortgage was transferred to Christiana Trust during the pendency of this case. Instead, Jeffers maintains that the motion to substitute was never served on him or his counsel of record in violation of Civ.R. 5. Thus, Jeffers asserts that, without proper service, the motion to substitute the party plaintiff was improperly granted.

{¶ 15} Civ.R. 5(A) governs service and filing of pleadings and other papers subsequent to the original complaint. The rule requires that "every order required by its terms to be served," and "every written notice," among other papers, "subsequent to the original complaint * * * be served upon each of the parties." "If a party is represented by an attorney, service under this rule must be made on the attorney unless the court orders service on the party." Civ.R. 5(B)(1). Generally, service may be accomplished in a number of ways, including by hand delivery, United States mail, commercial carrier service, or email. Civ.R. 5(B)(2)(a), (c), (d), and (f).

{¶ 16} Pursuant to Civ.R. 5(E), "[a] court may provide, by local rules adopted pursuant to the Rules of Superintendence, for the filing of documents by electronic means." In turn, Rule 27 of the Ohio Supreme Court's Rules of Superintendence regarding "Approval of Local Rules of Court Relative to Information Technology" provides, in relevant part:

Before adopting any local rule of practice that relates to the use of information technology, a court shall submit a copy of the proposed local rule to the Supreme Court Commission on Technology and the Courts for review in accordance with the process established by the Commission. A local rule of practice that relates to the use of information technology shall be considered inconsistent with this rule and of no force and effect unless the Commission determines that the local rule complies with the minimum, uniform standards adopted by the Commission.

Sup.R. 27.

{¶ 17} As stated, the trial court set forth its rules and procedures for electronic filings in its E-Filing Order, dated October 4, 2013. The order provides that all documents filed in foreclosure cases "shall" be electronically filed using the trial court's e-filing system. The E-Filing Order states that registered users of the e-filing system "must consent to receiving electronic service of papers in lieu of other methods of service," and specifies that electronic service of registered parties "shall have the same legal effect as an original paper served under current rules." Id. at Section XIII(A) and (B)(2). Regarding the service of documents filed subsequent to the complaint, the E-Filing Order provides, in relevant part:

a. When a document (other than and subsequent to a Complaint or Third-Party Complaint) is filed electronically in accordance with these procedures, the e-Filing System will generate a "Notice of Electronic Filing" to the filing party and to any other party who is a registered user of the e-Filing System. If the recipient is a registered user, a courtesy "Notice of Electronic Filing" e-mail will be delivered to the user's e-Filing-designated e-mail account and a similar notification will appear on the user's notifications page in the e-Filing System. This electronic notice through the e-Filing System shall constitute service of that document upon that party in accordance with the applicable rules of the Court .
b. It is the responsibility of the registered user to check his/her notifications page in the e-Filing System for notices pertaining to recent filings, and to not rely solely on the courtesy e-mails delivered to the user's designated e-Filing e-mail account. It is also the responsibility of the registered user to ensure the courtesy e-mails with notices of electronic filings are not blocked by the spam filter of his/her designated e-Filing e-mail account.
c. A Certificate of Service is still required when a party files a document electronically. The Certificate of Service shall state the manner, including by e-Service if applicable, in which service or notice was accomplished on each party entitled to service. The Certificate of Service shall set forth the date on which the attached document is being submitted for e-Filing, and shall designate that date as the date of service of the document.
d. A party who is not a registered user of the e-Filing System is entitled to a paper copy of an electronically filed document. The filing party shall serve the non-registered party with the document in accordance with the applicable rules of Civil Procedure or as ordered by the assigned Judge in the case.

(Emphasis added.) Id. at Section XIII(B)(3)(a)-(d). Thus, service of an electronically filed document is "deemed complete when a registered user receives the notice on his or her E-Service Notification page through the e-filing system." Id. at Section XIII(B)(4)(a).

{¶ 18} In this case, counsel for Jeffers is a registered user of the court's e-filing system. Therefore, counsel consented to the procedural mandates of the E-Filing Order, including the required use of electronic service in lieu of other methods of service in foreclosure cases. The record reflects that U.S. Bank electronically filed its motion to substitute on October 9, 2014. The Certificate of Service contained in the motion states as follows:

I [counsel for U.S. Bank] certify that a true and accurate copy of the foregoing Motion to Substitute Plaintiff was filed using the court's electronic filing system this 9th day of October, 2014. Notice will be sent to the following:
[Co-Counsel for Plaintiff]
[Counsel for Defendants Thomas and Stephanie Jeffers]
[Counsel for Defendant Cuyahoga County Treasurer]

{¶ 19} Thus, the Certificate of Service complied with the requirements of the E-Filing Order and demonstrates that counsel for Jeffers received notice on his e-service notification page that U.S. Bank's motion to substitute was electronically filed. As set forth in the order, such notice of the electronic filing constituted proper service on Jeffers. Under these circumstances, we find no merit to Jeffers's contention that he was not served with U.S. Bank's motion to substitute. As such, the trial court did not err by granting the unopposed motion to substitute and had no basis to dismiss the foreclosure action.

{¶ 20} Jeffers next argues that the trial court's E-Filing Order conflicts with the timing requirements of Civ.R. 5(D) and is therefore "unconstitutional and invalid." Civ.R. 5(D) provides, in part, that "[a]ny paper after the complaint that is required to be served shall be filed with the court within three days after service." (Emphasis added.) Relying on the rules use of the term "after," Jeffers maintains that the E-Filing Order violates the express language of Civ.R. 5(D) by improperly permitting a party to file a motion with the court before service on an opposing party is completed.

{¶ 21} After careful consideration, we find Jeffers has failed to establish that he was prejudiced by the alleged violation of Civ.R. 5(D)'s timing requirements. While Civ.R. 5(D) clearly states that papers must be filed with the court within three days of service, there is nothing in the rule to suggest that the papers cannot be filed with the court at the same time service is rendered. As this court has stated, "[t]he purpose of Civ.R. 5(D) is to ensure that the opposing party is promptly served with filings." Sovey v. Lending Group of Ohio , 8th Dist. Cuyahoga No. 84823, 2005-Ohio-195, 2005 WL 110449, ¶ 16. To this end, the trial court exercised its authority under Civ.R. 5(E) by adopting a procedure for electronic filing that provides registered users of its e-filing system with nearly simultaneous service of electronically filed documents. In our view, the trial court's implementation of its e-filing system in designated civil cases benefits all party litigants, including Jeffers, by modernizing the litigation process and making case management more efficient.

{¶ 22} As stated, Jeffers was promptly served with U.S. Bank's motion to substitute pursuant to the E-Filing Order and was provided the opportunity to file a timely brief in opposition, but failed to do so. Accordingly, Jeffers was not prejudiced by the practically simultaneous timing of the filing of the motion to substitute and the electronic service of the motion on Jeffers's counsel through the court's e-filing system. Service was promptly rendered in accordance with the purpose of Civ.R. 5(D).

{¶ 23} Finally, we note that the E-Filing Order was adopted in compliance with Rule 27 of the Ohio Supreme Court's Rules of Superintendence and the requirements of the Ohio Supreme Court's Advisory Committee on Technology. Thus, the order was not "inconsistent with the rules promulgated by the supreme court" as Jeffers suggests.

{¶ 24} Jeffers's first assignment of error is overruled.

B. Waiver of Objection

{¶ 25} In his second assignment of error, Jeffers argues the trial court improperly found that counsel's "failure to object to the unserved motion prior to trial constituted an implicit waiver of Jeffers's argument that the unserved motion could not be used to permit the substitution of the party plaintiff." Jeffers contends that he had no duty to respond to the arguments raised in U.S. Bank's motion to substitute where proper service was never made.

{¶ 26} In this case, Jeffers's counsel was notified of the motion to substitute via the trial court's e-filing system on October 9, 2014. Nevertheless, the record reflects that Jeffers waited until the day of trial before opposing the motion to substitute or the validity of its service. Beyond counsel's unpersuasive reliance on Civ.R. 5(D), counsel failed to provide the court with a reasonable basis for the delayed objection. Under these circumstances, we find the trial court did not err in finding that Jeffers waived his opportunity to challenge the motion to substitute by failing to raise a timely objection.

{¶ 27} Moreover, we agree with the court's assessment that, even if Jeffers had timely opposed the motion to substitute, the motion was properly granted. This court uses the abuse of discretion standard of review when determining whether the trial court erred in granting a motion to substitute a party, under Civ.R. 25. Argent Mtge. Co. v. Ciemins , 8th Dist. Cuyahoga No. 90698, 2008-Ohio-5994, 2008 WL 4949848, ¶ 9, citing Young v. Merrill Lynch, Pierce, Fenner & Smith , 88 Ohio App.3d 12, 623 N.E.2d 94 (8th Dist.1993). An abuse of discretion implies that the trial court's attitude is unreasonable, arbitrary or unconscionable. Blakemore v. Blakemore , 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983).

{¶ 28} Civ.R. 25 authorizes the substitution of parties in the event of certain stated contingencies. Civ.R. 25(C) provides, in relevant part:

In case of any transfer of interest, the action may be continued by or against the original party, unless the court upon motion directs the person to whom the interest is transferred to be substituted in the action or joined with the original party. * * *.

Civ.R. 25(C) thus permits substitution by one who succeeds to an interest previously held by another. Argent at ¶ 11.

{¶ 29} In this case, U.S. Bank assigned the mortgage to Christiana Trust after this foreclosure case was filed. The mortgage was recorded on June 21, 2014. When the mortgage was assigned to Christiana Trust, counsel for U.S. Bank "continued to physically possess the Note, now on behalf of Christiana Trust" and presented the Note during trial. Under these circumstances, we are unable to conclude that the trial court abused its discretion by granting U.S. Bank's motion to substitute pursuant to Civ.R. 25(C). Christiana Trust became a real party in interest once U.S. Bank transferred its interest in the subject note and mortgage to Christiana Trust after the filing of the underlying foreclosure action.

{¶ 30} Jeffers's second assignment of error is overruled.

{¶ 31} Judgment affirmed.

KATHLEEN ANN KEOUGH, A.J., and LARRY A. JONES, SR., J., CONCUR


text:
    IN RE: A.M.R., a Minor Child
    No. 105751
    Court of Appeals of Ohio, Eighth District, Cuyahoga County.
    RELEASED AND JOURNALIZED: December 21, 2017
   Susan M. Jankite, 1253 Arlington Road, Lakewood, Ohio 44107, ATTORNEY FOR APPELLANT.

Jennifer L. Malensek, 1220 West 6th Street, Suite 502, Cleveland, Ohio 44113, Denise M. Cook, Denise M. Cook Co., L.P.A., 8210 Macedonia Commons Blvd., Macedonia, Ohio 44156, ATTORNEYS FOR APPELLEES, For Father.

John V. Heutsche, John V. Heutsche Co., L.P.A., 700 West St. Clair Avenue, Suite 220, Cleveland, Ohio 44113, For Mother.

James L. Lane, Kohrman, Jackson & Krantz, P.L.L., One Cleveland Center, 29th Floor, 1375 East Ninth St., Cleveland, Ohio 44114, For Maternal Grandfather.

Carla L. Golubovic, P.O. Box 29127, Parma, Ohio 44129, Guardian Ad Litem.

BEFORE: E.T. Gallagher, J., McCormack, P.J., and Jones, J.

JOURNAL ENTRY AND OPINION

EILEEN T. GALLAGHER, J.:

{¶ 1} Appellant, A.M.R., by and through counsel, appeals from the juvenile court's order denying counsel for A.M.R. access to the transcript of an in camera interview conducted during this private custody case. A.M.R. raises the following assignment of error for review:

The trial court erred in denying requests made by child's counsel, thus not affording the child appropriate status as a party in a custody proceeding and adversely impacting her basic procedural protections and right to zealous representation.

{¶ 2} After careful review of the record and relevant case law, we reverse the juvenile court's judgment and remand for further proceedings consistent with this opinion.

I. Procedural and Factual History

{¶ 3} This appeal stems from an order of the juvenile court during the pendency of custody proceedings involving Mother and Father's minor child, A.M.R. (d.o.b. 1/14/2006). Mother and Father were never married.

{¶ 4} On July 7, 2011, Mother and Father entered into a shared parenting plan for A.M.R. On December 21, 2011, however, Father filed a motion for emergency termination of the shared parenting plan. In response, Mother opposed Father's motion and filed a motion for immediate sole custody of A.M.R. In her motion, Mother agreed that sole custody was necessary because Father had made fraudulent allegations of abuse against Mother to the Cuyahoga County Department of Children and Family Services.

{¶ 5} The custody matter proceeded to trial in August 2016. Following several days of trial and various motions to continue, the trial was set to recommence on January 9, 2017, through January 13, 2017. On January 6, 2017, however, counsel for A.M.R. filed a motion to continue the trial to a later date because she injured her back and was unable to return to work by the date scheduled for trial.

{¶ 6} On January 9, 2017, the trial court ordered the parties to appear for an attorney conference. Counsel for A.M.R. was unable to attend the conference in person due to her injury, but participated telephonically. During that discussion, the trial court advised the parties that an in camera interview of A.M.R. was necessary. Thus, the trial court conducted an in camera interview of A.M.R. on January 11, 2017. Counsel for A.M.R. was not present for the in camera interview, but concedes that she provided the trial court with consent to conduct the interview in her absence.

{¶ 7} Following the January 11, 2017 in camera interview, counsel for A.M.R. filed a motion requesting "the trial court to order production of the transcript of the in camera interview held on January 11, 2017, and to provide the child's attorney access to the transcript." Counsel argued that production of the transcript was necessary for counsel to adequately advise and serve the child's best interests. Counsel for Mother filed a brief in opposition, arguing that counsel was not entitled to access the transcript pursuant to R.C. 3109.04(B)(3). On March 29, 2017, the trial court denied counsel's request for access to the transcript of the in camera interview.

{¶ 8} On May 5, 2017, counsel for A.M.R. filed a timely notice of appeal. On May 24, 2017, counsel for Mother filed a motion to dismiss the appeal, arguing

The child's counsel's appeal of an interlocutory order should be summarily dismissed as it is not a final appealable order and she has invited the alleged error by her conduct.

{¶ 9} On June 6, 2017, this court dismissed the appeal for lack of a final appealable order pursuant to R.C. 2505.02. On June 14, 2017, A.M.R. filed a motion for reconsideration and a motion to reinstate the appeal. After careful consideration, this court granted A.M.R.'s motion to reinstate the appeal, finding that the trial court's judgment constituted a final appealable order under R.C. 2505.02(B)(2).

{¶ 10} A.M.R. now appeals from the trial court's judgment.

II. Law and Analysis

{¶ 11} In the sole assignment of error, counsel for A.M.R. argues the trial court incorrectly interpreted R.C. 3109.04(B)(3) and improperly denied counsel's request for a transcript or recording of the in camera interview conducted without counsel.

{¶ 12} R.C. 3109.04(B)(1) requires a court that allocates parental rights and responsibilities to "take into account that which would be in the best interest of the children." The section provides that 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."

{¶ 13} R.C. 3109.04(B) contains several requirements governing the in camera interview. R.C. 3109.04(B)(2)(c), states:

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.

{¶ 14} R.C. 3109.04(B)(3), provides:

(3) 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.

(Emphasis added.) "The trial court must make a record of any R.C. 3109.04 in camera interview with a child." Purvis v. Purvis , 4th Dist. Adams No. 00CA703, 2002 WL 220067, 9 (Feb. 4, 2002), citing In re Markham , 70 Ohio App.3d 841, 592 N.E.2d 896 (4th Dist.1990).

{¶ 15} In Mother's brief in opposition to A.M.R.'s request for the transcript of the in camera interview, Mother argued that " R.C. 3109.04(B)(3) prohibits the release of the transcript to anyone other than the Court of Appeals for the purposes of review." She further argued that "due process and equal protection demand that if such a transcript is made available to one attorney it must be made available to all attorneys."

{¶ 16} Our review of the case law interpreting the language of R.C. 3109.04(B) reveals that the analysis generally takes place in factual scenarios where a parent of the minor child has filed a motion to access the transcript of the in camera interview.

{¶ 17} In a line of cases beginning with Patton v. Patton, 5th Dist. Licking No. 94 CA 40, 1995 WL 42497 (Jan. 9, 1995) and In re Longwell , 9th Dist. Lorain Nos. 94 CA 006006 and 94 CA 006007, 1995 WL 520058 (Aug. 30, 1995), several appellate districts have routinely held that R.C. 3109.04(B) precludes parents from accessing the transcript of their child's in camera interview. See also Myers v. Myers , 170 Ohio App.3d 436, 2007-Ohio-66, 867 N.E.2d 848 (5th Dist.) ; Willis v. Willis , 149 Ohio App.3d 50, 2002-Ohio-3716, 775 N.E.2d 878 (12th Dist.) ; Chapman v. Chapman , 2d Dist. Montgomery No. 21652, 2007-Ohio-2968, 2007 WL 1721462. But see Inscoe v. Inscoe, 121 Ohio App.3d 396, 700 N.E.2d 70 (1997) (holding that no statutory basis exists for denying parents access to the transcript of their child's in camera interview.).

{¶ 18} Those courts have rationalized that because R.C. 3109.04(B)(2)(c) provides that parents of the minor child do not have the right to be present during the in camera interview, the legislature clearly intended to create a " 'stress free environment * * * [so that] [c]hildren should display candor in setting forth their feelings regarding custody.' " Myers at ¶ 51, quoting In re Longwell at 3. Thus,

[t]o allow parents access to the transcript of their child's in camera interview defeats the statute's purpose to foster candor and also exposes the child to a parent's potentially hostile reaction to the child's words. It is in the best interest of a child, a child who has already been betrayed by the departure of one parent from his or her home, to be able to speak freely without concern of in turn betraying his or her parent.

Chapman at ¶ 28.

{¶ 19} In short, affording parents access to the transcript would contravene the intent of R.C. 3109.04(B), and the minor child would be less likely to be candid with the judge if the child knows that his or her parents will later read everything the child says. Willis at ¶ 24.

{¶ 20} On appeal, counsel for A.M.R. argues that the foregoing cases are inapplicable to the facts of this case. We agree. Unlike the parents of a minor child, R.C. 3109.04(B)(2)(c) authorizes the child's attorney to be present in the chambers during the interview. Thus, the discussion in the Fifth and Ninth Districts concerning the need to uphold the legislative intent of R.C. 3109.04(B) is inapplicable to the facts of this case. Here, there is no concern that providing counsel with access to the transcript of the in camera interview would have a chilling effect on a minor child's candor. Counsel for A.M.R. had the right to be present during the January 11, 2017 in camera interview. And, but for counsel's health, this court finds nothing in the record to suggest counsel would not have been present with A.M.R. during the in camera interview. Accordingly, we find the restriction placed on a parent's access to transcripts under R.C. 3109.04(B) does not apply to counsel for the minor child.

{¶ 21} Moreover, we find nothing in the unambiguous language of R.C. 3109.04(B)(3) to suggest that counsel is precluded from having access to the transcript of the in camera interview. As stated, the statute provides that no person shall obtain from a child a written or recorded statement of that child's wishes and concerns regarding the allocation of parental rights. The section further provides that the trial court shall not accept or consider a written or recorded statement that purports to set forth the child's wishes regarding the allocation of parental rights.

Based on the express language of the statute, its purpose is clear: [T]he legislature intended to prohibit trial courts from relying on potentially fraudulent statements or affidavits produced by the parents. Instead, courts are to obtain the child's wishes and concerns directly from the child during the in-camera interview.

In re Longwell , 9th Dist. Lorain Nos. 94 CA 006006 and 94 CA 006007, 1995 WL 520058, 3 (Aug. 30, 1995).

{¶ 22} In this case, however, counsel is not attempting to obtain a written or recorded statement from A.M.R. relating to the child's wishes or concerns regarding the allocation of parental rights. Nor is counsel attempting to submit a written or recorded statement that purports to set forth A.M.R.'s wishes. Rather, counsel is simply attempting to obtain a transcript of the in camera interview, from the court , in an effort to adequately represent A.M.R.'s best interests during the duration of the custody trial. Affording counsel access to the transcript provides no more information to counsel than is otherwise permitted by R.C. 3109.04(2)(C), which grants counsel the right to be present during the interview process. Thus, we find that the concerns set forth under R.C. 3109.04(B)(3) regarding fraud or the possibility of unjust influence over the child are not implicated in this case.

{¶ 23} In the interest of protecting A.M.R.'s right to effective assistance of counsel, we find, under the limited and unique circumstances of this case, that the trial court erred by denying counsel's request for access to the transcript of the in camera interview. Moreover, our decision does not impair Mother's or Father's due process rights. While we draw a distinction between the parents of the child and counsel for the child, the requirement that the in camera interview be recorded is designed to protect the due process rights of the parents by allowing this court to review the reasonableness of the in camera interview, if necessary, upon the resolution of this custody case. See Myers , 170 Ohio App.3d 436, 2007-Ohio-66, 867 N.E.2d 848, ¶ 50.

{¶ 24} Accordingly, A.M.R.'s sole assignment of error is sustained.

{¶ 25} Judgment reversed and remanded.

TIM McCORMACK, P.J., and

LARRY A. JONES, SR., J., CONCUR