COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 67537 DAVID P. O'NEILL, : : Plaintiff-Appellant : : JOURNAL ENTRY vs. : and : OPINION SARAH B. O'NEILL, n.k.a. SKALKOS, : : Defendant-Appellee : DATE OF ANNOUNCEMENT OF DECISION : SEPTEMBER 14, 1995 CHARACTER OF PROCEEDING : Civil appeal from : Common Pleas Court -- : Domestic Relations Division : Case No. D-198192 JUDGMENT : REVERSED AND REMANDED. DATE OF JOURNALIZATION : _______________________ APPEARANCES: For plaintiff-appellant: Brent L. English 310 Lakeside Avenue, West 795 Courthouse Square Cleveland, Ohio 44113-1021 For defendant-appellee: Joseph G. Stafford Vincent A. Stafford John J. Dyer STAFFORD AND ASSOCIATES 100 Courthouse Square 310 Lakeside Avenue, N.W. Cleveland, Ohio 44113-1021 -2- NAHRA, J.: This is an appeal taken from the Cuyahoga County Court of Common Pleas, Domestic Relations Division. Plaintiff-appellant David P. O'Neill challenges the trial court orders which dismissed with prejudice several of his motions and also granted several motions filed by his former wife, defendant-appellee Sarah B. O'Neill, n.k.a. Sarah Skalkos. The record reflects the trial court originally granted appellant and appellee a divorce in June 1991. The divorce decree incorporated the parties' separation agreement, wherein appellant agreed to pay child support for the couple's son in the amount of $714.00 per month and also certain medical and educational expenses for the child. Appellant further agreed to pay nominal spousal support to appellee in the amount of $1.00 per month which was to terminate either on January 31, 1994 or upon appellee's earlier cohabitation or remarriage. The separation agreement, moreover, contained other significant clauses, including ones which: 1) acknowledged the continuing jurisdiction of the trial court over matters affecting their child and over spousal support "for the period herein provided for and no more;" 2) acknowledged a support arrearage due on prior court orders in the amount of $2,800.00" for which judgment is granted but * * * no execution on such judgment shall issue until September 1, 1992;" 3) held each party harmless "for expenses incurred in adjusting their marital duties and obligations, and * * * any claim, demand or expense arising -3- therefrom;" and 4) stated that the parties had made a mutually satisfactory division of intangible property such as stocks and business interests. In March 1992, appellee filed several motions in the trial court. Appellee requested the court to modify spousal support, to designate her as custodian of certain stock certificates held for the child, and to hold appellant in contempt for both failing to transfer stock dividends to the child and failing to pay certain medical bills and other expenses as required by the divorce decree. Appellant, responding pro se, filed a motion requesting the court to designate him as the custodian of the stock. Both parties requested attorney fees in conjunction with their motions. During the following two years, the trial court set the matter for hearing ten different times. The parties requested numerous continuances due to difficulty in obtaining discovery; furthermore, they filed separate motions for sanctions. Ultimately, on March 29, 1994, the trial court held a hearing 1 on the motions. The record indicates while appellee presented some evidence on her motions, appellant's new wife did not appear at the hearing despite having been duly subpoenaed. After issuing a capias for her arrest, the trial court continued the hearing. 2 The matter was thus rescheduled for April 12, 1994. Subsequently, the trial court released the capias upon appellant's assurances 1 No transcript of any hearing held prior to June 29, 1994 was included in the record on appeal. See App.R. 9. 2 See footnote 1. -4- that his new wife would attend the hearing and that he would obtain counsel to represent him. The conclusion of the hearing was thus on April 13, 1994 again rescheduled for June 29, 1994. On June 3, 1994, counsel for appellant filed a notice of appearance. On June 24, 1994, counsel filed a motion for a continuance of the hearing. Counsel notified the trial court that a previously scheduled matter in the Lake County Court of Common Pleas presented a conflict. However, since the trial court did not thereafter rule on the motion, the parties appeared with counsel for the scheduled hearing. At the June 29, 1994 hearing, the record reflects appellant's counsel orally renewed his motion for a continuance. He stated he had obtained only a half-day continuance in the Lake county matter. Appellee objected to the motion. Although she had previously finished presenting evidence on her motions, she maintained she would suffer "prejudice" from any further continuance. Appellant's counsel acknowledged his delay in requesting a continuance but stated he had waited due to his belief the Lake county matter would settle prior to the hearing date. He reminded the trial court that appellee had requested and received numerous continuances of the hearing, including one for retaining new counsel only days prior to a scheduled hearing date. Furthermore, he stated he would proceed at that time on appellee's motions, postponing the hearing only on his own motions. The trial court, however, refused to grant the continuance. -5- Appellant later renewed his motion for a continuance prior to the lunch recess. The trial court indicated none would be granted without appellee's agreement and then stated "the record is closed." When court reconvened for the afternoon session, an associate of appellant's counsel appeared and asked the trial court to reconsider its ruling denying the continuance. The associate indicated she had filed a motion for an emergency stay in this 3 court but no action had yet been taken on the motion. At that point, appellee requested appellant's motions be dismissed with prejudice for want of prosecution and that his testimony be stricken from the record. The trial court asked the associate if she was prepared to proceed; she answered in the negative, representing she had only just met appellant and had no familiarity with the case. The trial court then stated all of appellant's motions were dismissed with prejudice for want of prosecution. Thereafter, appellee and her attorney were permitted to give testimony regarding appellee's motions for spousal and child support and for attorney fees. On June 30, 1994, appellant filed a notice in the trial court that he had voluntarily dismissed his motions. That same day, the trial court issued a journal entry in the case. Therein, it granted appellee's motion to modify spousal support, finding 3 This court ultimately dismissed appellant's motion for an emergency stay for lack of jurisdiction. O'Neill v. O'Neill (June 30, 1994), Cuyahoga App. No. 67500, unreported. -6- appellant's increased salary constituted a change in circumstance. Appellant was ordered to pay $306.00 per month for the eighteen month period between March 19, 1992, the date of appellee's motion, and October 3, 1993, the date of her remarriage. The trial court also granted appellee's motion to modify child support but reduced the amount to $481.00 per month. The trial court granted appellee attorney fees in the amount of $10,000.00. Furthermore, the trial court found appellant in contempt for failing to pay various medical expenses and fees for the child; appellant was sentenced to fifteen days in jail, subject to purging upon the payment of $1,085.00. Finally, the trial court dismissed all of the husband's motions with prejudice. On July 1, 1994, appellant filed an affidavit of prejudice in the Ohio Supreme Court seeking to disqualify the trial judge in the case. On July 5, 1994, appellee filed a motion in the trial court pursuant to Civ.R. 60 requesting a nunc pro tunc order to rectify a "clerical error." As the basis for her request, appellee stated appellant's "1993 income information was not considered when the Journal Entry was prepared," thus, the trial court should incorporate "the most recent income information * * * ." Additionally, appellee requested the trial court amend its child support order to include child care expenses in its calculation of support. Finally, appellee requested rulings on her motions to show cause concerning lump sum payments to be made by appellant and to appoint her custodian of common stock being held for the child. -7- The following day, July 6, 1994, appellant filed his notice of appeal in this court from the June 30, 1994 order. That same day, the trial court issued a "nunc pro tunc and amended" judgment entry which ordered appellant to pay $500.00 per month in spousal support and $877.27 in child support and found appellant in contempt not only for failing to pay $1,085.00 in medical expenses, but for lump sums of $2,588.88 and $2,800.00, both sums including interest. Appellant was sentenced to fifteen days in jail unless he paid the lump sums. Furthermore, appellee was designated custodian of the child's stock and appellant was ordered to reimburse appellee for proceeds received from certain dividends and a stock split. Also on July 6, 1994, the trial court was notified by the Ohio Supreme Court of appellant's request for disqualification. On July 8, 1994, the trial judge recused himself from the case and it was reassigned to another judge. On July 22, 1994, appellant filed in this court a motion for a stay of "execution and enforcement of judgment." Appellant's 4 motion was subsequently denied pursuant to App.R. 7(A). 4 App.R. 7(A) states in pertinent part: RULE 7. STAY OR INJUNCTION PENDING APPEAL-- CIVIL AND JUVENILE ACTIONS (A) Stay Must Ordinarily Be Sought in the First Instance in Trial Court; Motion for Stay in Court of Appeals. Application for a stay of the judgment or order of a trial court pending appeal, or for the determination of the amount of and the approval of a supersedeas bond, must ordinarily be made in the first instance in the trial court. A motion for such relief or for an order suspending, modifying, restoring or -8- On April 7, 1995, appellee filed a motion to dismiss this 5 appeal. Her motion was referred to the panel hearing the case on its merits; thus, it must be addressed prior to considering appellant's assignments of error. Appellee initially argues appellant's appeal must be dismissed because appellant failed to timely appeal the "final order" in this case, viz., the "amended" entry of July 6, 1994. App.R. 4(C) indicates however, that "[a] notice of appeal filed after the announcement of a decision, order, or sentence, but before entry of the judgment or order that begins the running of the appeal time period is treated as filed immediately after the entry." (Emphasis added.) See, also, Loc.App.R. 3(B)(2). Thus, appellant's July 6, 1994 notice of appeal was timely. Appellee also argues appellant's notice of appeal is defective since it did not include a time-stamped copy of the trial court's July 6, 1994 journal entry. App.R. 3(D) provides: Content of the Notice of Appeal. The notice of appeal shall specify the party or parties taking the appeal; shall designate the judgment, order or part thereof appealed from; and shall name the court to which the granting an injunction during the pendency of an appeal may be made to the court of appeals or to a judge thereof, but, except in the cases of injunction pending appeal, the motion shall show that application to the trial court for the relief sought is not practicable, or that the trial court has, by journal entry, denied an application or failed to afford the relief which the applicant requested. . . . 5 Appellant has not filed a brief in opposition to appellee's motion to dismiss the appeal. -9- appeal is taken. The title of the case shall be the same as in the trial court with the designation of the appellant added, as appropriate. The purpose of the notice of appeal is to apprise the opposite party of the appeal. "`* * * If this is done beyond [the] danger of reasonable misunderstanding, the purpose of the notice of appeal is accomplished.'" Maritime Manufacturer's, Inc. v. Hi-Skipper Marina (1982), 70 Ohio St.2d 257 at 259. Ordinarily, this court requires an appellant's notice of appeal to contain a copy of the final judgment or order appealed from bearing the clerk's stamp "Received for Filing" with the date of receipt by the clerk. See Loc.App.R. 3(B)(1). Although the omission of a stamped journal entry may be the basis for a dismissal, the requirement is not jurisdictional and may be waived under the facts of the case. Id. Clearly, appellant believed time was of the essence in this case. Equally clearly, appellee was well aware of both the final order and the basis for appellant's appeal. Therefore, appellant's failure to include the trial court's July 6, 1994 journal entry is not fatal to his appeal. Finally, appellee argues the issues raised in this appeal have been rendered moot by a subsequent agreed judgment entry in which appellant satisfied his obligations under the July 6, 1994 amended order. However, while a voluntary satisfaction of judgment has been held to render an appeal from that judgment moot, see Blodgett v. Blodgett (1990), 49 Ohio St.3d 243, 245, a perusal of the agreed -10- judgment entry in this case reveals that not only did appellant expressly preserve his right to appeal the merits, but he signed the judgment because the trial court denied his motion to stay execution of the judgment. Thus, the satisfaction of judgment was not "voluntary." See, e.g., Federal Land Bank of Louisville v. Wilcox (1991), 74 Ohio App.3d 474. Moreover, the agreement also provides "[the trial court] shall retain jurisdiction to re-allocate the payment of child support from David O'Neill to Sarah O'Neill in the event the July 6, 1994 Entry of the Court is reversed by the Eighth District Court of Appeals." (Emphasis added.) Obviously, the agreed judgment entry contemplated a vindication of appellant's position and made provision for that eventuality, hence, Blodgett v. Blodgett, supra, is inapplicable to the facts of this case. For the foregoing reasons, appellee's motion to dismiss the appeal is denied. Appellant's assignments of error may now be addressed; they are considered in logical order rather than seriatim. I. Appellant's third assignment of error states: THE TRIAL COURT HAS NO JURISDICTION TO MODIFY ITS JUNE 30, 1994 JUDGMENT PURSUANT TO MRS. O'NEILL'S "MOTION FOR NUNC PRO TUNC AND JUDGMENT ENTRY" [SIC]. Appellant argues the trial court lacked authority to amend its June 30, 1994 journal entry pursuant to Civ.R. 60 and that the July -11- 6, 1994 judgment is therefore a nullity. Appellant's premise is correct but his conclusion is flawed. A perusal of the two orders clearly demonstrates the July 6, 1994 order contained a number of substantive changes from the earlier one. Under these circumstances, Civ.R. 60(A) was inapplicable; therefore, appellee's motion was improperly made on this ground. Kuehn v. Kuehn (1988), 55 Ohio App.3d 245; Dentsply Internatl., Inc. v. Kostas (1985), 26 Ohio App.3d 116; Musca v. Chagrin Falls (1981), 3 Ohio App.3d 192; cf., Londrico v. Delores C. Knowlton, Inc. (1993), 88 Ohio App.3d 282. However, it is equally clear that the June 30, 1994 judgment entry had failed to completely dispose of all the issues presented to the trial court prior to the hearing, hence it was not a final order. Civ.R. 54(B): Noble v. Colwell (1989), 44 Ohio St.3d 92; In re Berman (1990), 69 Ohio App.3d 324. That being so, the trial court retained jurisdiction to modify its judgment, despite appellant's filing of a premature notice of appeal in this court. Bodo v. Nationwide Ins. Co. (1991), 75 Ohio App.3d 499; White v. Rhodes (1992), 79 Ohio App.3d 257; cf., General Acc. Ins. Co. v. Insurance Co. of North America (1989), 44 Ohio St.3d 17. Accordingly, appellant's third assignment of error must fail. II. Appellant's first assignment of error states: THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT DENIED DAVID O'NEILL'S MOTION FOR A CONTINUANCE AT THE END OF THE MORNING SESSION ON JUNE 29, 1994. -12- Appellant argues the trial court's conduct with regard to his request for a continuance of the June 29, 1994 hearing demonstrates an arbitrary and unreasonable attitude which requires a examination of the issues determined there. On the record before it, this court agrees. The grant or denial of a continuance is a matter which is entrusted to the sound discretion of the trial judge, thus, an appellate court will not reverse the denial of a continuance unless there has been an abuse of discretion. State v. Unger (1981), 67 Ohio St.2d 65, syllabus. An abuse of discretion is more than an error of law or judgment; it implies the trial judge had an attitude that is unreasonable, arbitrary or unconscionable. Blakemore v. Blakemore (1983), 5 Ohio St.3d 217. In Unger, supra, the supreme court noted the circumstances of each case will determine the reasonableness of a decision denying a continuance, stating: In evaluating a motion for a continuance, a court should note, inter alia: the length of the delay requested; whether other continuances have been requested and received; the inconvenience to litigants, witnesses, opposing counsel and the court; whether the requested delay is for legitimate reasons or whether is (sic) is dilatory, purposeful, or contrived; whether the defendant contributed to the circumstance which gives rise to the continuance; and other relevant factors, depending on the unique facts of the case. Id. at 67-68. [Citations omitted.] Application of these factors to the circumstances of this case reveals the trial court abused its discretion by denying appellant's motion to continue the June 29, 1994 hearing. -13- Appellant's counsel requested only a two day continuance due to the conflict with the Lake County matter. Although counsel was aware of a conflict in hearing dates approximately three weeks prior to the scheduled hearing, his belief that an imminent settlement of the Lake county matter would resolve the conflict is reasonable. Moreover, the record fails to indicate he sought the continuance for any other purpose. Furthermore, a continuance would have caused little prejudice to the parties and witnesses. Appellee represented she had no witnesses to call at the hearing and would only testify in rebuttal and regarding attorney fees. If any inconvenience resulted, it would have been only to appellant's witnesses who had yet to testify. Additionally, the record clearly shows that the trial court had previously granted appellee numerous continuances. Thus, appellee's counsel's objections to appellant's motion on this occasion appear both disingenuous and contrived and in view of appellee's counsel's antagonism, not only was it unreasonable for the trial court to refuse to extend the same courtesy to appellant as he had appellee, but leaving the decision to continue the matter with opposing counsel was an abdication of the trial court's responsibility to conduct the proceedings. In conclusion, therefore, in view of facts of this case, the trial court abused its discretion in refusing to grant appellant a continuance of the hearing. Griffin v. Lamberjack (1994), 96 Ohio App.3d 257; cf., State v. Unger, supra; Hartt v. Munobe (1993), 67 -14- Ohio St.3d 3 at 9; Niam Investigations, Inc. v. Gilbert (1989), 64 Ohio App.3d 125; State v. McLemore (1992), 82 Ohio App.3d 541. Accordingly, appellant's first assignment of error is sustained. III. Appellant's second assignment of error states: THE TRIAL COURT COMMITTED ERROR BY DISMISSING DAVID O'NEILL'S MOTIONS WITH PREJUDICE BECAUSE THOSE MOTIONS WERE ACTUALLY DISMISSED WITHOUT PREJUDICE BY STIPULATION PRIOR TO THE JUNE 30, 1994 JUDGMENT PURSUANT TO CIV.R. 41(A)(1) AND BECAUSE THE COURT ABUSED ITS DISCRETION IN DISMISSING THOSE MOTIONS WITH, RATHER THAN WITHOUT, PREJUDICE. Appellant argues that when he filed notice of voluntary dismissal of his pending motions, the trial court was thereby deprived of its authority to dismiss them pursuant to Civ.R. 41. He further argues the trial court abused its discretion by dismissing his motions for failure to prosecute, since it had denied his repeated requests for a continuance of the hearing, struck his testimony, and did not allow him to either introduce or proffer any evidence. Civ.R. 41(A)(1)(a) governs voluntary dismissals and provides: Subject to the provisions of Rule 23(E) and Rule 66, an action may be dismissed by the plaintiff without order of court (a) by filing a notice of dismissal at any time before the commencement of trial unless a counterclaim which cannot remain pending for independent adjudication by the court has been served by the defendant * * * . Pursuant to Civ.R. 41(A)(1)(a), a plaintiff has the absolute right to dismiss the action any time before trial. Sturm v. Sturm (1992), 63 Ohio St.3d 671 at 675. The right extends even when a -15- plaintiff files a notice of dismissal after learning the court intends to journalize an adverse decision. Conley v. Jenkins (1991), 77 Ohio App.3d 511. However, a plaintiff may not dismiss an action if the court has engaged in trial. Refreshment Services Co. v. Cleveland (1980), 63 Ohio St.2d 89 at 93. R.C. 2311.01 defines a "trial" as "* * * a judicial examination of the issues, whether law or fact, in an action or a proceeding." In this case, the trial court had commenced its examination of the issues raised by the parties' motions; appellee had previously presented most of her evidence. Therefore, appellant could not legitimately invoke Civ.R. 41(A)(1)(a) to protect his right to present his own evidence. Nevertheless, appellant is correct in his assessment of the trial court's action, since Civ.R. 41(B)(1) states: Where the plaintiff fails to prosecute, or comply with these rules or any court order, the court upon motion of a defendant or on its own motion may, after notice to the plaintiff's counsel, dismiss an action or claim. (Emphasis added.) The rule clearly indicates that prior to any dismissal pursuant to Civ.R. 41(B)(1), the trial court must give notice of dismissal to the plaintiff's counsel. Perotti v. Ferguson (1983), 7 Ohio St.3d 1, syllabus. This court also notes the following recent admonition given by the supreme court in Indus. Risk Insurers v. Lorenz Equip Co. (1994), 69 Ohio St.3d 576 at 581: Noting that dismissal for want of prosecution is an "extremely harsh sanction," this court stated that it -16- should be granted only when an attorney's conduct falls substantially below what is reasonable and displays contempt for the judicial system or the rights of the opposing party. Moore v. Emmanual Family Training Ctr., Inc. (1985), 18 Ohio St.3d 64, 70, 18 OBR 96, 102, 479 N.E.2d 879, 885. It is not, for instance, an abuse of discretion for a trial court to dismiss an action for lack of prosecution when a plaintiff voluntarily fails to appear at a hearing, without explanation, and the trial court has specifically directed him to appear. Pembaur, supra, syllabus. (Emphasis added.) Thus, when exercising its discretion to dismiss a case for want of prosecution, the trial court should consider whether there is a clear record of delay or contumacious conduct by the plaintiff and whether lesser sanctions would not serve the best interest of justice. Dukes v. Cole (1985), 23 Ohio App.3d 65; Ina v. George Fraam & Sons, Inc. (1993), 85 Ohio App.3d 229. The trial court should also consider the basic tenet of Ohio law that whenever possible cases should be decided on their merits. Perotti v. Ferguson, supra, at 3. As noted in the review of appellant's first assignment of error, the record herein fails to demonstrate appellant's counsel's conduct either fell below what was reasonable or displayed contempt for the judicial system or the rights of appellee. Moreover, the record reflects the trial court, rather than giving full consideration to the consequences of its action, simply tired of appellant's efforts to continue the hearing in order that he could more fully develop his case. Instead, the trial court acquiesced to appellee's arguments and summarily issued its ruling. See, e.g., Carr v. Green (1992), 78 Ohio App.3d 487. -17- The record thus supports appellant's argument that the trial court abused its discretion in dismissing appellant's motion with prejudice. Accordingly, appellant's second assignment of error is also sustained. This court has concluded the trial court erred in refusing to grant a continuance of the hearing to appellant and in dismissing appellant's motions with prejudice. In view of this, and also in view of the fact that appellant was unable to either effectively subject the evidence appellee presented on her motions to cross- examination or present evidence of his own, this case must be remanded to the trial court for a rehearing of the issues considered and determined as a result of the hearing. Therefore, 6 appellant's remaining assignments of error are rendered moot. App.R 12(A)(1)(c). The judgment of the trial court is reversed and the cause is remanded for further proceedings consistent with this opinion. Reversed and remanded. 6 Appellant's remaining assignments of error state as follows: IV. THE TRIAL COURT COMMITTED ERROR AND ABUSED ITS DISCRETION IN IMPOSING AN INCREASE IN SPOUSAL SUPPORT ON DAVID O'NEILL. V. THE TRIAL COURT ERRONEOUSLY INCREASED DAVID O'NEILL'S CHILD SUPPORT OBLIGATION. VI. THE TRIAL COURT ERRED IN IMPOSING $10,000 IN ATTORNEY'S FEES AGAINST MR. O'NEILL. -18- This cause is reversed and remanded for further proceedings consistent with this opinion. It is, therefore, considered that said appellant recover of said appellee his costs herein. It is ordered that a special mandate be sent to said court to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. DYKE, P.J., and *CORRIGAN, JOHN V., J., CONCUR. (*SITTING BY ASSIGNMENT: Judge John V. Corrigan, Retired, Eighth District Court of Appeals.) JOSEPH J. NAHRA JUDGE N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announcement of decision (see Rule 26). Ten (10) days from the date hereof this document will be stamped to indicate journalization, at which time .