[Cite as State ex rel. Heyside v. Calabrese,

.]

COURT OF APPEALS OF OHIO

EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

STATE EX REL., NEIL HEYSIDE, :

Relator, : No. 111200 v. :

THE HONORABLE JUDGE DEENA R. : CALABRESE,

Respondent. :

JOURNAL ENTRY AND OPINION

JUDGMENT: WRIT DISMISSED DATED: April 8, 2022

Writ of Prohibition Motion No. 552584 Order No. 553465

Appearances:

Lester S. Potash, for relator.

Michael C. O’Malley, Cuyahoga County Prosecuting Attorney, and Nora E. Poore, Assistant Prosecuting Attorney, for respondent.

EMANUELLA D. GROVES, J.:

Relator, Neil Heyside (“Heyside”), seeks a writ of prohibition

preventing respondent, Judge Deena R. Calabrese, from exercising jurisdiction in

Heyside v. Heyside, Cuyahoga C.P. No. CV-21-954944. We grant respondent’s motion to dismiss and dismiss the complaint for writ of prohibition for the following

reasons.

I. Background

On January 12, 2022, relator filed a complaint for writ of prohibition

alleging that he and nonparty Erica Heyside (“Erica”) were previously married. In

2016, they litigated to conclusion a divorce proceeding in the Domestic Relations

Division of the Cuyahoga County Common Pleas Court. As part of those

proceedings, Heyside and Erica entered into a separation agreement that was

incorporated into a final decree of divorce.1 The separation agreement called for

various payments to be made to Erica by Heyside. According to the instant

complaint, on October 27, 2021, Erica instituted a breach-of-contract action that

sought monetary damages from Heyside totaling $486,679.06. Erica’s complaint in

the underlying action, which is attached to relator’s complaint in the present action,

points to the separation agreement and divorce decree as the source of her breach-

of-contract claim. Erica’s complaint also referenced an additional agreement for

payments of $5,000 per month commencing in September 2019, which Heyside

allegedly breached as well. Heyside filed a motion to dismiss the underlying action,

which respondent denied. After that, Heyside filed the instant action seeking to

preclude respondent from hearing Erica’s claims.

1 Only partial copies of the divorce decree and separation agreement are in the record

before this court. In his complaint, Heyside asserted that an action for breach of the

separation agreement must be brought in the appropriate domestic relations court,

pointing to R.C. 3105.10(B)(3) and the holding in paragraph four of the syllabus of

Wolfe v. Wolfe,

,

(1976). This holding provides

that a separation agreement “loses its nature as a contract the moment it is adopted

by the court and incorporated into a decree of divorce. (Law v. Law,

,

(1901); Newman v. Newman,

,

(1954), and Mozden v. Mozden,

,

(1954), modified).”

On February 15, 2022, respondent timely filed a motion to dismiss

the complaint pursuant to Civ.R. 12(B)(6). Respondent argued that prohibition was

inappropriate for several reasons. First, she argued that, as a common pleas court

judge, she does not patently and unambiguously lack jurisdiction over an action for

breach of contract. She further argued that the domestic relations case was litigated

to its conclusion, meaning that court no longer had exclusive jurisdiction. Next,

respondent argued that the holding is Wolfe was abrogated as recognized by the

Supreme Court of Ohio in Morris v. Morris,

,

,

, ¶ 23-27. Finally, she asserted that R.C. 3105.10(B)(3) did not apply

to Erica’s claims asserted in the breach-of-contract action.

On February 17, 2022, relator filed a brief in opposition arguing that

Morris did not overrule paragraph four of Wolfe, which is still valid law in Ohio. He

also argued that sole and exclusive jurisdiction to enforce a divorce decree rests with

the domestic relations court pursuant to statute. Respondent filed a reply brief in support of her motion to dismiss on

February 24, 2022.

II. Law and Analysis

Standards Applicable to This Action

The case is before this court on respondent’s motion to dismiss

pursuant to Civ.R. 12(B)(6) — failure to state a claim upon which relief can be

granted. “Dismissal under Civ.R. 12(B)(6) is appropriate when it appears beyond

doubt, after presuming the truth of all material factual allegations in the complaint

and making all reasonable inferences in the relators’ favor, that relators are not

entitled to extraordinary relief in prohibition.” State ex rel. Bohlen v. Halliday,

,

,

, citing State ex rel. Zander v.

Judge of Summit Cty. Common Pleas Court,

,

,

.

“[W]ith few exceptions, ‘a writ of prohibition “tests and determines

‘solely and only’ the subject[-]matter jurisdiction” of the lower court.’” State ex rel.

Thomas v. McGinty,

,

,

,

quoting State ex rel. Tubbs Jones v. Suster,

,

(1998), quoting State ex rel. Eaton Corp. v. Lancaster,

,

(1988), quoting State ex rel. Staton v. Franklin Cty. Common Pleas

Court,

,

(1965). A writ of prohibition will only

issue when a relator shows, by clear and convincing evidence, that (1) the respondent

“is about to exercise or has exercised judicial power, (2) the exercise of that power is unauthorized by law, and (3) denying the writ would result in injury for which no

other adequate remedy exists in the ordinary course of the law.” State ex rel. Novak,

L.L.P. v. Ambrose,

,

,

, citing

State ex rel. Elder v. Camplese,

,

,

,

¶ 13. However, where a court patently and unambiguously lacks jurisdiction, a writ

will issue regardless of whether an adequate remedy at law exists. State ex rel.

Bohlen at ¶ 13, citing State ex rel. Bates v. Court of Appeals for Sixth Appellate Dist.,

,

,

, ¶ 12. A writ will not issue in

a doubtful case because a writ is an extraordinary remedy granted with great

caution. Ohio High School Athletic Assn. v. Ruehlman,

, 2019-

Ohio-2845,

, ¶ 6, quoting State ex rel. Corn v. Russo,

,

(2001).

Judges of the Domestic Relations Division of the Cuyahoga County

Common Pleas Court have “all the powers relating to all divorce, dissolution of

marriage, legal separation, and annulment cases, except in cases that are assigned

to some other judge of the court of common pleas for some special reason.” R.C.

2301.03(L)(1). However, the general division of a common pleas court usually has

subject-matter jurisdiction over matters of breach of contract so long as the claims

meet the jurisdictional minimums set forth in R.C. 2305.01. Further, the

jurisdictional priority rule is not implicated in this case because both parties agree

that the domestic relations case has concluded. Heyside argues that the separation agreement is no longer

enforceable as a contract and R.C. 3105.10(B) bestows exclusive jurisdiction on a

domestic relations court, where one exists in the relevant jurisdiction, to hear and

determine the claims raised in the underlying action. Cuyahoga County has a

domestic relations court. R.C. 2301.03(L). Heyside asserts, that consequently,

respondent patently and unambiguously lacks jurisdiction.

Patent and Unambiguous Lack of Jurisdiction

Relying on paragraph four of the syllabus in Wolfe,

,

(1976), Heyside argues the separation agreement lost its nature as a

contract when it was incorporated into the divorce decree. Heyside relies exclusively

on this case for this point. Respondent argues that Wolfe has been overruled by

statute as recognized in Morris,

,

,

, ¶ 28 (“the General Assembly swept away all the common law enunciated in

Wolfe”). The Morris Court specifically mentioned two of the three cases that were

modified by paragraph four of Wolfe as felled by the General Assembly’s actions in

enacting statutes that abrogated the holdings in Wolfe. Morris at ¶ 28. In fact,

Heyside acknowledges at page five of his brief in opposition to respondent’s motion

to dismiss that “other courts, including [the Eighth District Court of Appeals], have

held that a separation agreement retains its contract nature following its

incorporation into the divorce decree.” Heyside objects to these holdings by various

courts by arguing that paragraph four of Wolfe precludes them. However, this argument does not demonstrate that a court patently

and unambiguously lacks jurisdiction to hear an action. The nonexistence of a

contract is a defense to a breach-of-contract action; it usually does not affect the

general subject-matter jurisdiction of a court. The argument that the separation

agreement is unenforceable as a contract after incorporation into a divorce decree is

a reason to deny the claim in the underlying action. Heyside is essentially asking for

immediate appellate review of respondent’s denial of his motion to dismiss in the

underlying action — something prohibition generally precludes. See State ex rel.

Gross v. Marshall,

,

(1974), syllabus.

Further, Erica’s complaint in the underlying case references an

agreement other than the separation agreement whereby Heyside agreed to make

certain payments at set intervals, which Heyside is also alleged to have breached.

This claim must be considered when determining whether respondent patently and

unambiguously lacks jurisdiction. “If a court has jurisdiction of the subject-matter

involved in litigation, a writ of prohibition will not issue to prohibit it from exercising

such jurisdiction. Issuance of this writ is dependent upon the issue of whether it

appears that the court in which an action is sought to be prohibited has no

jurisdiction of the matter under adjudication.” State ex rel. Dayton Power & Light

Co. v. Riley,

,

(1978), citing State ex rel.

Carmody v. Justice,

,

(1926). Other courts interpreting various claims related to this area of law

have essentially determined that courts have jurisdiction to determine their own

jurisdiction.

The Ninth District Court of Appeals found that remedies might exist

in either the domestic relations court or the general division of the common pleas

court when confronted with a similar request for writ of prohibition to the one

presently before us. State ex rel. Gray v. Kimbler, 9th Dist. Medina No. 20CA0077-

M,

. In Gray, a husband and wife were granted a divorce into which

a separation agreement was incorporated. Id. at ¶ 6. The wife passed away and the

husband filed a claim in the probate court for alleged violations of the separation

agreement. Id. at ¶ 7. The husband also filed an action in the common pleas court.

Id. The executor of the wife’s estate filed counterclaims in the common pleas court

action alleging breach of the separation agreement related to the division of

property. Id. at ¶ 8. The husband then sought a writ of prohibition, arguing that the

common pleas court judge lacked jurisdiction over the counterclaims because the

domestic relations court was the exclusive forum to adjudicate those claims. Id. at

¶ 9. In denying a writ of prohibition, the Gray Court addressed the same holding in

Wolfe that Heyside points to, stating:

[Relator] relies on the Ohio Supreme Court’s conclusion that “[a] separation agreement of the parties loses its nature as a contract the moment it is adopted by the court and incorporated into a decree of divorce.” Wolfe,

,

(1976), [at] paragraph four of the syllabus. But that is not the end of the inquiry. This court has held that “[i]t has long been the rule in Ohio that if the parties voluntarily enter into a separation agreement, the agreement becomes a valid and binding contract between the parties.” Haas v. Bauer,

,

,

(9th Dist.), quoting Russell v. Russell, 5th Dist. Stark No. 98-CA-0127,

(June 7, 1999), citing Tullis v. Tullis,

,

(1941). The Seventh District Court of Appeals recognized earlier this year that there may be two remedies: contempt in domestic relations court and breach of contract in the trial court. Rossi v. Rossi, 7th Dist. Mahoning No. 20 MA 0086,

, ¶ 27. Likewise, the Third District Court of Appeals has recognized that a “separation agreement is a contractual agreement.” Johnson v. Johnson, 3d Dist. Hancock No. 5-07-34,

. In another case, the Fifth District, and the trial court, were apparently not persuaded by appellants’ argument that no breach of contract action could exist because the separation agreement could only be enforced through a contempt proceeding. Boulden v. Estate of Boulden, [5th Dist. Richland] No. 01-CA-21, [

], ¶ 1.

A review of the caselaw on this topic demonstrates that courts have taken different approaches to explaining the rights and obligations parties have related to separation agreements. This is significant because, in order to issue a writ of prohibition, this Court must find that [respondent] patently and unambiguously lacks jurisdiction to act. Based upon our review of the caselaw, we cannot conclude that [respondent] patently and unambiguously lacks jurisdiction to act.

Id. at ¶ 14-16.

Similarly, the Seventh District Court of Appeals determined that the

jurisdiction priority rule did not prevent a party to a divorce decree from bringing

an action for breach of a stock purchase agreement and guaranty in a common pleas

court even though the party also filed a motion for contempt of the separation

agreement and divorce decree to which these other agreements were incorporated

in the domestic relations court. Rossi,

,

(7th Dist.). The court looked to the agreements at issue and determined that the claims for

breach of the agreements related to the separation agreement could be maintained

in the general division of the common pleas court. The court analyzed the

agreements at issue and the language of the separation agreement. It determined

that relief could be afforded in the general division. Id. at ¶ 17.

Heyside does not point us to any case that specifically addresses the

jurisdiction of the general division of the common pleas court to hear the underlying

breach-of-contract action in the face of the cases raised by respondent. These cases

support the proposition that a court has discretion to determine whether it has

jurisdiction based on the claims raised in the action. Given Heyside’s limited

argument, the similar arguments raised and rejected in the above cases, and the

disparate treatment by various courts to the same issue, respondent has carried her

burden to demonstrate that she does not patently and unambiguously lack

jurisdiction based on the arguments presented.

However, none of these cases addressed R.C. 3105.10(B)(3), and the

apparent delegation of jurisdiction to the domestic relations court. Unless a statute

conclusively removes jurisdiction, a judge of the common pleas court has general

subject-matter jurisdiction and the discretion to determine her own jurisdiction.

Novak,

,

,

. “‘“A statutory

assignment to one division of a court confers on that division exclusive jurisdiction

to determine the matters assigned, and deprives the court’s other divisions,

including its general division, of jurisdiction to determine those same matters.”’” State v. Lindstrom, 8th Dist. Cuyahoga No. 96653,

, quoting

Perkins Local Dist. Bd. of Edn. v. Wooster City School Dist. Bd. of Edn.,

,

,

(6th Dist.), quoting Keen v. Keen,

,

,

, citing Comer v. Bench, 2d

Dist. Montgomery No. 19229,

. To succeed in prohibition, the

removal of jurisdiction must be unequivocal and conclusive.

(“We

grant writs of prohibition only when the General Assembly clearly intended to limit

the statutory authority of a court.”).

Heyside claims that R.C. 3105.10(B)(3) bestows exclusive jurisdiction

on a domestic relations court, in a county where one exists, to resolve the dispute in

the underlying case. Respondent argues that this statute has no bearing on the

underlying action because this provision applies to motions brought under R.C.

3105.10(B)(2) — things like contempt motions — not to a breach-of-contract action

that relies on the separation agreement.

R.C. 3105.10, titled “[a]nswer, hearing, and judgment,” provides in

part,

(A) The court of common pleas shall hear any of the causes for divorce or annulment charged in the complaint and may, upon proof to the satisfaction of the court, pronounce the marriage contract dissolved and both of the parties released from their obligations. (B) (1) A separation agreement providing for the support of children eighteen years of age or older is enforceable by the court of common pleas.

(2) A separation agreement that was voluntarily entered into by the parties may be enforceable by the court of common pleas upon the motion of either party to the agreement, if the court determines that it would be in the interests of justice and equity to require enforcement of the separation agreement.

(3) If a court of common pleas has a division of domestic relations, all cases brought for enforcement of a separation agreement under division (B)(1) or (2) of this section shall be assigned to the judges of that division.

(Emphasis added.)

Case law interpreting R.C. 3105.10(B)(3) is sparse. Heyside has not

directed us to any court that has found the statute to apply to the present situation.

At least one court has interpreted R.C. 3105.10(B)(3) to mean that a domestic

relations court retains jurisdiction to enforce a separation agreement in

postjudgment contempt proceedings. Kell v. Verderber, 1st Dist. Hamilton No. C-

120665,

. Also, at least one treatise may support Heyside’s

interpretation, stating:

[I]f a court of common pleas has a division of domestic relations, all cases brought for enforcement of a separation agreement providing for the support of children 18 years of age or older, and all cases brought for enforcement of a separation agreement voluntarily entered into by the parties, must be assigned to the judges of that division.

46 Ohio Jurisprudence 3d, Family Law, Section 507.

However, R.C. 3105.10(B)(2) speaks in terms of motions to enforce,

but R.C. 3105.10(B)(3) indicates that all actions for enforcement brought pursuant to R.C. 3105.10(B)(1) or (B)(2) shall be referred to the domestic relations court

where one exists. This apparent incongruity is pointed out by respondent but is not

adequately addressed by Heyside.

The purported removal of jurisdiction in this statute is not

unequivocal and conclusive. The statute provides that a domestic relations court,

where one exists, must hear all motions to enforce a voluntary separation

agreement. The action prosecuted by Erica is not a motion, but a complaint for

breach of contract. There are nontrivial differences between a motion and a

complaint. See Martin v. Wayne Cty. Natl. Bank Trust, 9th Dist. Wayne No.

03CA0079,

. Erica’s action is one that seeks to enforce

terms of the separation agreement and another agreement, but it was not brought

by motion. Therefore, it is unclear if the statute applies. Because it is unclear, this

court cannot say that respondent patently and unambiguously lacks jurisdiction.

Respondent has general subject-matter jurisdiction and the ability to determine her

own jurisdiction. Respondent may ultimately lack jurisdiction, but from the record

and arguments in this case, she does not patently and unambiguously lack

jurisdiction.

Adequate Remedy at Law

As a result of the above determination, that respondent does not

patently and unambiguously lack jurisdiction, Heyside must have no other adequate

remedy at law to succeed in this action. “In general, appeal is a remedy sufficient to

preclude a writ of mandamus or prohibition.” State ex rel. Durrani v. Ruehlman,

,

,

, citing State ex rel. Caskey

v. Gano,

,

,

. “[T]o be an

adequate remedy at law, the remedy must be ‘complete, beneficial, and speedy.’” Id.

at ¶ 16, quoting State ex rel. Ullmann v. Hayes,

, 2004-Ohio-

5469,

. Heyside does not raise any issue that would lead to the

conclusions that an appeal from an adverse judgment in the common pleas court

case would not constitute an adequate remedy at law. Generally, “‘contentions

that appeal from any subsequent adverse final judgment would be inadequate due

to time and expense are without merit.’” State ex rel. Estate of Nichols v. Russo, 8th

Dist. Cuyahoga No. 107508,

, ¶ 11, quoting State ex rel. Lyons v.

Zaleski,

,

(1996), citing Whitehall ex rel.

Wolfe v. Ohio Civ. Rights Comm.,

,

(1995); State ex rel. Gillivan v. Bd. of Tax Appeals,

,

(1994).

Therefore, an appeal from a final judgment in the underlying case

constitutes an adequate remedy at law. Respondent’s motion to dismiss is granted. Costs assessed against

relator. The clerk is directed to serve on the parties notice of this judgment and its

date of entry upon the journal. Civ.R. 58(B).

Writ dismissed.

_________________________ EMANUELLA D. GROVES, JUDGE

EILEEN A. GALLAGHER, P.J., and MARY J. BOYLE, J., CONCUR