[Cite as Crites v. Crites,

.]

IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT DEFIANCE COUNTY

ROBYN D. CRITES,

PLAINTIFF-APPELLEE, CASE NO. 4-18-03

v.

DOUGLAS CRITES, OPINION

DEFENDANT-APPELLANT.

Appeal from Defiance County Common Pleas Court Domestic Relations Division Trial Court No. 13 DR 42537

Motion Granted and Appeal Dismissed

Date of Decision: March 25, 2019

APPEARANCES:

Jason N. Flower for Appellant

Clayton J. Crates for Appellee Case No. 4-18-03

PRESTON, J.

{¶1} Defendant-appellant, Douglas Crites (“Douglas”), appeals the May 3,

2018 judgment of the Defiance County Court of Common Pleas that, among other

things, granted Douglas a divorce from plaintiff-appellee, Robyn Crites (“Robyn”),

and ordered Douglas to pay a share of the attorney’s fees Robyn incurred in

connection with the divorce proceedings. For the reasons that follow, we find that

Douglas voluntarily satisfied the portion of the trial court’s judgment relevant to his

appeal. Accordingly, we conclude that Douglas’s appeal has been rendered moot,

and we dismiss his appeal.

{¶2} On September 4, 2013, Robyn filed a complaint requesting a divorce

from Douglas. (Doc. No. 1). On November 3, 2017, after more than four years of

litigation, the magistrate issued his decision recommending that Robyn be granted

a divorce from Douglas “on the grounds of incompatibility.” (Doc. No. 129).

Relevant to this appeal, the magistrate also recommended that Douglas be ordered

to pay Robyn’s attorney’s fees in the amount of $13,000 “within 120 days of the file

date of the final judgment entry.” (Id.). Neither Douglas nor Robyn filed objections

to the magistrate’s decision.

{¶3} On May 3, 2018, the trial court filed its judgment adopting the

magistrate’s findings and recommendations. (Doc. No. 130). In addition to

-2- Case No. 4-18-03

granting Robyn and Douglas “an absolute divorce from each other,” the trial court

ordered in pertinent part:

The Defendant shall pay to Plaintiff attorney fees in the amount of

Thirteen Thousand Dollars ($13,000.00). Said amount shall be paid

within one hundred twenty (120) days from the filing of this Final

Judgment Entry. Plaintiff is hereby granted a lump sum judgment in

the amount of $13,000.00 not to be enforced unless Defendant

violates the terms of this order.

(Id.).

{¶4} On June 1, 2018, Douglas filed a notice of appeal. (Doc. No. 132). He

raises one assignment of error for our review.

Assignment of Error

The trial court committed plain error by ordering Appellant to pay $13,000.00 to Appellee for attorney fees.

{¶5} Before addressing the merits of Douglas’s assignment of error, we must

determine whether intervening events have rendered Douglas’s appeal moot. On

January 4, 2019, Robyn filed in this court a motion to dismiss Douglas’s appeal.

Douglas filed a memorandum in opposition to Robyn’s motion to dismiss on

February 1, 2019. In her motion, Robyn states that “[i]n compliance with the Final

Judgment Entry, [Douglas] paid the Thirteen Thousand Dollars ($13,000.00) of

[her] attorney’s fees on August 10, 2018.” (Appellee’s Motion to Dismiss at 2).

-3- Case No. 4-18-03

Robyn further notes that Douglas “never filed a supersedeas bond pursuant to ORC

§2505.09 or requested a stay of execution from the order.” (Id. at 1). Robyn

concludes that Douglas thus “voluntarily satisfied the judgment that is the basis of

his appeal,” and as a result, his appeal “should be dismissed as being moot.” (Id. at

3).

{¶6} “The doctrine of mootness is rooted both in the ‘case’ or ‘controversy’

language of Section 2, Article III of the United States Constitution and in the general

notion of judicial restraint.” James A. Keller, Inc. v. Flaherty,

(10th Dist. 1991). “While Ohio has no constitutional counterpart to Section 2,

Article III, the courts of Ohio have long recognized that a court cannot entertain

jurisdiction over a moot question.”

“‘The duty of [the court] * * * is to decide actual controversies by a

judgment which can be carried into effect, and not to give opinions

upon moot questions or abstract propositions, or to declare principles

or rules of law which cannot affect the matter in issue in the case

before it.’”

Empaco Equip. Corp. v. Maximus Consulting, L.L.C, 9th Dist. Summit No. 27468,

, ¶ 5, quoting Miner v. Witt,

, 238 (1910), quoting

Mills v. Green,

,

(1895). “In other words, an issue

is moot when it has no practical significance, being instead merely hypothetical or

-4- Case No. 4-18-03

academic.” In re Guardianship of Weller, 2d Dist. Montgomery No. 24337, 2011-

Ohio-5816, ¶ 7. “‘“It necessarily follows that when, pending an appeal from the

judgment of a lower court, * * * an event occurs which renders it impossible for

th[e] court * * * to grant [the party] any effectual relief whatever, the court will not

proceed to a formal judgment, but will dismiss the appeal.”’” Empaco at ¶ 5,

quoting

, quoting

.

{¶7} Robyn argues that Douglas’s appeal is moot because he voluntarily

satisfied the part of the trial court’s judgment directing him to pay her $13,000 for

attorney’s fees. In support of this argument, Robyn attaches three exhibits to her

motion to dismiss: a photocopy of a check payable to Robyn for $13,000 dated

August 10, 2018 that is signed by Douglas and that specifies that it is for “Attorney

fees”; a photocopy of a checking deposit slip showing that Robyn deposited $13,000

into her checking account on August 13, 2018; and a photocopy of a check for

$13,000 dated August 15, 2018 that is signed by Robyn and payable to “Arthur Law

Firm Co., L.P.A.” (Appellee’s Motion to Dismiss, Exs. A, B, C). Ordinarily, this

court may not consider evidence outside of the record. Sullivan v. Willhoite, 2d

Dist. Montgomery No. 27968,

(“Under well-established law,

appellate courts are limited to the record before the trial court and cannot consider

documents or matters that are not in the record.”). However, “‘“an event that causes

a case to be moot may be proved by extrinsic evidence outside the record.”’” Solon

-5- Case No. 4-18-03

v. Solon, 5th Dist. Stark No. 2017CA00210,

, quoting State

ex rel. Nelson v. Russo,

(2000), quoting Pewitt v. Lorain

Corr. Inst.,

(1992). Therefore, we may properly consider

whether the documents Robyn attaches to her motion to dismiss support her claim

that Douglas’s appeal is moot.

{¶8} Robyn’s exhibits establish that Douglas’s tendered check for $13,000

contained a notation indicating that the check was for “Attorney fees,” that Robyn

promptly deposited the funds into her personal bank account, and that Robyn then

tendered her payment of $13,000 to her trial counsel’s law firm on August 15, 2018.

(Appellee’s Motion to Dismiss, Exs. A, B, C). Douglas does not dispute the

authenticity of Robyn’s exhibits, and we have not found any reason to question their

legitimacy. Additionally, and significantly, Douglas concedes that he made a

“payment of the attorney’s fees” to Robyn. (Appellant’s Reply Brief at 6-7). Hence,

we find that Douglas paid Robyn $13,000 on August 10, 2018 in accordance with

the trial court’s judgment.

{¶9} Having found that Douglas gave $13,000 to Robyn in August 2018 as

payment for attorney’s fees, we next consider whether Douglas’s payment

constitutes a voluntary satisfaction of the portion of the trial court’s judgment

relevant to his appeal. “It is a well-established principle of law that a satisfaction of

-6- Case No. 4-18-03

judgment renders an appeal from that judgment moot.” Blodgett v. Blodgett,

(1990).

“‘Where the court rendering judgment has jurisdiction of the subject-

matter of the action and of the parties, and fraud has not intervened,

and the judgment is voluntarily paid and satisfied, such payment puts

an end to the controversy, and takes away from the defendant the right

to appeal or prosecute error or even to move for vacation of

judgment.’”

(Emphasis added.)

quoting Rauch v. Noble,

, 316 (1959),

quoting Lynch v. Lakewood City School Dist. Bd. of Edn.,

(1927),

paragraph three of the syllabus. See Haendiges v. Haendiges,

(3d Dist. 1992). This principle applies with equal force in circumstances where

the trial court’s judgment contains multiple discrete, severable judgments and the

appealing party has satisfied one or more but fewer than all of the judgments. See

Hoover Kacyon, L.L.C. v. Martell, 5th Dist. Stark No. 2018CA00018, 2018-Ohio-

4928, ¶ 26-31; Ross v. Wendel, 12th Dist. Clermont No. CA2016-10-070, 2017-

Ohio-7804, ¶ 20; Shumaker v. Hamilton Chevrolet, Inc.,

,

, ¶ 13-16 (4th Dist.). But see Blood v. Nofzinger,

,

(6th Dist.). In such cases, complete satisfaction

of one of the judgments renders an appeal from that judgment moot without

-7- Case No. 4-18-03

necessarily rendering moot appeals from the other judgments for which satisfaction

has not been obtained. See Hoover Kacyon at ¶ 26-31; Shumaker at ¶ 13-16.

{¶10} Douglas does not contest that the trial court had subject-matter

jurisdiction or jurisdiction over him and Robyn, and he does not allege fraud of any

kind. Furthermore, Douglas does not dispute that he satisfied the portion of the trial

court’s judgment ordering him to pay Robyn $13,000 for attorney’s fees. Instead,

Douglas notes that a satisfaction of judgment renders an appeal from that judgment

moot only when the appealing party voluntarily satisfies the judgment. See

. He argues that he did not voluntarily satisfy the judgment for attorney’s fees

and that consequently, his appeal from that portion of the trial court’s judgment is

not moot. Douglas offers two primary arguments to explain why the satisfaction

was not voluntary.

{¶11} First, Douglas argues that “the payment of the attorney’s fees was not

voluntary because [he] * * * file[d] a motion to stay, therefore showing that he did

not agree with the court’s order.” (Appellant’s Reply Brief at 6). Generally, a party

may avoid a voluntary satisfaction of judgment by moving to stay execution of the

judgment and by posting a supersedeas bond in an amount deemed by the trial court

to be adequate to secure the judgment. See R.C. 2505.09; Civ.R. 62(B); App.R.

7(A), (B). “‘Once the appellant obtains the stay of execution, neither the trial court

nor the non-appealing party is able to enforce the judgment.’” Alan v. Burns, 9th

-8- Case No. 4-18-03

Dist. Medina No. 3271-M,

, ¶ 5, quoting LaFarciola v. Elbert, 9th

Dist. Lorain No. 98CA007134,

, *2 (Dec. 8, 1999). “‘The lone

requirement of Civ.R. 62(B) is the giving of an adequate supersedeas bond.’”

quoting State ex rel. Ocasek v. Riley,

(1978). Conversely,

“[a] judgment is voluntarily satisfied ‘where the party fails to seek a stay prior to

the satisfaction of [the] judgment.’” Summit Servicing Agency, L.L.C. v. Hunt, 9th

Dist. Summit No. 28699,

, quoting CommuniCare Health

Servs., Inc. v. Murvine, 9th Dist. Summit No. 23557,

.

{¶12} Here, Douglas did file a motion to stay execution of the trial court’s

May 3, 2018 judgment. (Doc. No. 138). However, the scope of the requested stay

was limited:

Defendant * * * hereby requests that this Court stay the execution of

the distribution of property pursuant to Exhibits 29, 31, and 33, as

these issues are a part of the appeal Defendant has filed

contemporaneously.

Defendant makes this request as there is no supporting evidence * * *

explain[ing] the Court’s decision to include the above referenced

exhibits in the property distribution, as they were not included in the

original Separation Agreement approved by this Court’s Magistrate’s

Decision and again by this Court’s Judgment Entry.

-9- Case No. 4-18-03

(Id.). Exhibits 29, 31, and 33 are lists of personal property that Robyn wished to

retain after her divorce from Douglas. (See Doc. No. 130, Plaintiff’s Exs. 29, 31,

33). Exhibits 29, 31, and 33 do not contain any reference to attorney’s fees, and

Douglas’s motion to stay does not otherwise mention attorney’s fees. Accordingly,

even if the trial court had granted Douglas’s motion to stay,1 the stay would have

affected only the portion of the trial court’s judgment relating to the distribution of

the property listed in Exhibits 29, 31, and 33; execution of the judgment for

attorney’s fees would not have been stayed. Thus, with respect to the judgment for

attorney’s fees, Douglas completely failed to seek any stay prior to the satisfaction

of judgment. Because Douglas had the opportunity to move to stay execution of the

judgment for attorney’s fees but neglected to do so, the satisfaction was voluntary.

See Atlantic Veneer Corp. v. Robbins, 4th Dist. Pike No. 03CA719, 2004-Ohio-

3710, ¶ 17 (“[S]atisfaction of a judgment renders an appeal moot where an appellant

may preserve her appeal rights by seeking a stay of execution pending appeal.”).

{¶13} Alternatively, Douglas argues that “[t]he payment was made pursuant

to a court order, to avoid a possible contempt; it was not voluntary.” (Appellant’s

Reply Brief at 6). He further contends that he “involuntarily paid his ‘fine’ because

1 It does not appear that the trial court formally ruled on Douglas’s motion to stay. On July 10, 2018, the magistrate “stayed” Douglas’s motion to stay pending an informal resolution of the parties’ dispute over the distribution of the personal property listed in Exhibits 29, 31, and 33. (Doc. No. 145). On July 31, 2018, a consent judgment entry was filed that resolved the parties’ dispute over the distribution of the personal property. (Doc. No. 148). After the magistrate’s July 10, 2018 order, there is no further mention of Douglas’s motion to stay.

-10- Case No. 4-18-03

the trial court ordered him to make a payment” and he “had no choice but to pay the

award or he would risk * * * be[ing] held in contempt and incarcerated due to the

nonpayment.” (Id.).

{¶14} In some circumstances, the threat of imprisonment may support a

conclusion that a party did not voluntarily pay a fine or judgment. See Baker-

Chaney v. Chaney, 5th Dist. Holmes No. 16CA005,

(finding no voluntary satisfaction where the trial court instructed the judgment

debtor “to come with her toothbrush if she had not complied with the order [for

payment of attorney’s fees] within fourteen days as she would be going to jail,” thus

denying her the opportunity to stay the award of attorney’s fees pending appeal);

Janosek v. Janosek, 8th Dist. Cuyahoga Nos. 86771 and 86777,

(where the trial court ordered husband to pay $680,000 by 4:00 p.m. on the

day of the hearing or face 10 days’ incarceration, husband did not voluntarily pay

his contempt purge); In re Contempt of Morris,

(8th

Dist. 1996) (although an attorney paid his fine stemming from a finding of contempt,

an appeal of the contempt finding was not moot because the attorney “was ordered

by the trial court to pay his fine before he left the courtroom”). The common thread

in these cases is that the payor paid the fine or judgment under some degree of

compulsion, either by being deprived of a meaningful opportunity to file a motion

to stay execution of the trial court’s judgment or by being threatened with the

-11- Case No. 4-18-03

prospect of immediate incarceration for failure to pay. These conditions are not

present in this case.

{¶15} First, as more than three months elapsed between the date the

judgment was filed and the date he paid Robyn, Douglas had ample time to seek a

stay of execution. Furthermore, Douglas was not threatened with the likelihood of

imminent imprisonment for failure to pay Robyn’s attorney’s fees. While Douglas

may have been concerned that he could be imprisoned at some uncertain point in

the future for failure to pay Robyn’s attorney’s fees, this does not mean that Douglas

was compelled to satisfy the judgment when he did. Douglas was not facing a

concrete threat of imprisonment when he satisfied the judgment for attorney’s fees.

{¶16} In addition, to the extent that Douglas may actually have been subject

to liability for contempt at the time he paid Robyn’s attorney’s fees, such potential

liability would not have stemmed from the judgment for attorney’s fees. On June

1, 2018, Robyn filed a motion for contempt requesting that Douglas “appear * * *

to show cause why he should not be held in contempt of Court for his failure to

abide by Paragraph 9 of this Court’s Final Judgment Entry * * *, wherein [Douglas]

has failed to pay to [Robyn] spousal support since the date of filing the Final

Judgment Entry.” (Doc. No. 135). As indicated in Robyn’s motion for contempt,

Paragraph 9 of the trial court’s May 3, 2018 judgment deals with the payment of

spousal support, not the payment of attorney’s fees, which is addressed in Paragraph

-12- Case No. 4-18-03

13. (Doc. No. 130). Therefore, when Douglas paid Robyn $13,000 for attorney’s

fees in August 2018, he did not do so in order to avoid a potential fine or

incarceration that could have resulted from Robyn’s motion for contempt.

Altogether, under the facts presented in this case, Douglas’s claims that he paid

Robyn’s attorney’s fees to avoid contempt and the possibility of incarceration are

insufficient to make his satisfaction of judgment involuntary.

{¶17} Finally, Douglas advances a secondary argument that his payment was

“not voluntary because he made a payment on the day the court ordered him to do

so.” (Appellant’s Reply Brief at 7). From the available evidence, this claim appears

to be untrue. The trial court’s May 3, 2018 judgment ordered Douglas to pay

Robyn’s attorney’s fees within 120 days of the filing of the final judgment entry.

(Doc. No. 130). Thus, Douglas was required to pay Robyn on or before August 31,

2018. Douglas gave Robyn the check for $13,000 on August 10, 2018. (Appellee’s

Motion to Dismiss, Ex. A). We have found no indication in the record or elsewhere

that the trial court ordered Douglas to pay Robyn on August 10, 2018. Instead, the

evidence suggests that Douglas paid Robyn with three weeks to spare—three weeks

during which he could have filed a motion to stay execution of the trial court’s

judgment for attorney’s fees.

{¶18} In conclusion, the evidence establishes that Douglas voluntarily

satisfied the judgment that is the basis of his appeal, thereby rendering his appeal

-13- Case No. 4-18-03

moot. Accordingly, because Robyn’s motion to dismiss has merit, we grant her

motion and dismiss Douglas’s appeal.

Motion Granted and Appeal Dismissed

ZIMMERMAN, P.J. and WILLAMOWSKI, J., concur.

/jlr

-14-