COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 68951 ZASHIN, RICH, SUTULA, & : MONASTRA, : : Plaintiff-Appellant : : JOURNAL ENTRY vs. : and : OPINION NATHAN OFFENBERG, ET AL., : : Defendants-Appellees : : : DATE OF ANNOUNCEMENT OF DECISION : DECEMBER 7, 1995 CHARACTER OF PROCEEDING : Civil appeal from : Common Pleas Court : Case No. 282739 JUDGMENT : AFFIRMED. DATE OF JOURNALIZATION : _______________________ APPEARANCES: For plaintiff-appellant: A. Dale Naticchia 160 Plaza West Building 20220 Center Ridge Road Rocky River, Ohio 44116 For defendant-appellee, Robert S. Passov Nathan Offenberg: 75 Public Square Suite 914 Cleveland, Ohio 44113 For defendant-appellee, Steven H. Slive Pnina Offenberg Glassman: Michael J. Connick SLIVE & CONNICK 925 Leader Building 526 Superior Avenue Cleveland, Ohio 44114 For defendant-appellee, Elliot M. Kaufman Mid-America Steel Corporation: ULMER & BERNE 900 Bond Court Building 1300 East Ninth Street Cleveland, Ohio 44114 -3- NAHRA, J.: Appellant, Zashin, Rich, Sutula, & Monastra, L.P.A., is appealing the trial court's dismissal for lack of subject matter jurisdiction of appellant's action against appellees, Nathan Offenberg, Pnina Glassman and Mid-America Steel. For the following reasons, we affirm. Appellant represented appellee Nathan Offenberg in the divorce action from his wife, appellee Pnina Glassman. In the divorce proceedings the domestic relations court enjoined appellee Mid- America Steel from distributing any of the funds it held for Nathan Offenberg in Offenberg's deferred compensation plan. A divorce decree was issued on October 14, 1988 which awarded the deferred compensation fund to Nathan Offenberg. Thereafter, Pnina Glassman filed motions with the domestic relations court to determine support arrearages. On May 10, 1990, the domestic relations court placed another restraining order on the deferred compensation fund. This order was partially released so Offenberg could obtain monies in excess of $50,000.00. In January, 1992, appellant obtained a judgment against Offenberg for attorney fees of $36,238.44. Appellant filed a garnishment action in Cleveland Municipal Court against Mid- America Steel. Mid-America answered that it could not distribute the $50,000.00 deferred compensation fund because of the restraining order issued by the domestic relations court in May of 1990. -4- On November 10, 1992, appellant was permitted to intervene in the domestic relations court proceedings. Appellant filed a motion to partially dissolve the restraining order on the deferred compensation fund, so Mid-America could comply with the garnishment order and the Cleveland Municipal Court could determine the priority of the liens. On April 26, 1994, after years of litigation, the domestic relations court found that Offenberg owed support arrearages of $36,238.44, for support dating back to 1987. The court ordered Mid-America to pay the arrearages out of Offenberg's deferred compensation fund, and also pay $5,047.50 to the guardian ad litem out of the fund. On October 20, 1994, this order was amended so that 20% of the deferred compensation fund was withheld for withholding tax, before deducting the arrearages and payments to the guardian ad litem. On December 22, 1994, appellant filed a motion to withdraw its motion to partially dissolve the restraining order. On December 30th, appellant filed the subject action in the Cuyahoga County Court of Common Pleas. On January 20, 1995, the domestic relations court denied the appellant's motion to withdraw and denied appellant's motion to partially dissolve the restraining order. Appellant's sole assignment of error states: THE TRIAL COURT ERRED IN DISMISSING APPELLANT'S COMPLAINT ON THE GROUNDS THAT IT LACKED SUBJECT MATTER JURISDICTION. After an action has been fully litigated in the domestic relations division of common pleas court and a judgment entry has been filed granting a divorce and providing for -5- the division of property, the exclusive jurisdiction is terminated. At that point, there exists concurrent jurisdiction with the general division of common pleas court. Price v. Price (1984), 16 Ohio App.3d 93. In this case, after the divorce decree of 1988, the general division and domestic relations division had concurrent jurisdiction. Appellant argues that the domestic relations division did not have concurrent jurisdiction because the domestic relations division did not have jurisdiction over a third party's rights to a non-marital asset. See State ex rel. Ross v. O'Grady (Sept. 27, 1994), Franklin App. No. 94APD03- 443, unreported. The domestic relations court did have jurisdiction over Pnina Glassman's motion to determine support arrearages. In connection with this motion, the domestic relations court could order a temporary restraining order on the property of the ex-husband, Nathan Offenberg. Civ.R. 75(H). A third party claiming an interest in the property from which another seeks an award of support may be joined as a party defendant. Civ.R. 75(B)(1). The domestic relations court may attach property of a spouse to pay support obligations. R.C. 3113.21(A)(1). Thus, a third party's interest in property of a spouse which the other spouse seeks to attach for an award of support is a "matter appropriate to the determination of a domestic relations matter," and is under the jurisdiction of the domestic relations court. See R.C. 3105.011. State ex rel. Ross, supra, is distinguishable on its facts. That case involved the rights of a joint venturer to joint venture -6- assets when the other joint venturers were a couple going through a divorce. The joint venture assets were not marital assets, although the married couples' interest in the joint venture was a marital asset. In the present case, the deferred compensation fund was an asset subject to the domestic relations court's jurisdiction by virtue of Civ.R. 75 and R.C. 3113.21(A)(1). The domestic relations division and general division had concurrent jurisdiction over this action. If two cases are filed in two different courts which have concurrent jurisdiction, the court that exercises jurisdiction first has exclusive subject matter jurisdiction to settle all disputes between the parties. State ex rel. Judson v. Spahr (1987), 33 Ohio St.3d 1. This rule only applies if both of the actions involved the same parties, and the first suit would determine the whole issue or matter in dispute. State ex rel. Sellers v. Gerken (1995), 72 Ohio St.3d 115. In this case, the domestic relations action and the later action in the general division involved the same parties. The issue in both actions was whether appellant had priority to the deferred compensation fund. The domestic relations court decided this issue by denying appellant's motion to dissolve the temporary restraining order so Mid-America could comply with the garnishment and the Cleveland Municipal Court could determine the priority of liens. The domestic relations court decided that appellant did not have priority. The domestic relations court action determined the whole issue between the parties, so the -7- domestic relations court had exclusive subject matter jurisdiction. Appellant asserts that it withdrew its motion in the domestic relations court before the motion was ruled upon, so that court could not have decided whether appellant had priority to the fund. A party cannot withdraw a motion without leave of court. Gedeon v. Leiby (1991), 73 Ohio App.3d 627. The trial court did not grant appellant leave to withdraw its motion, and the court could rule upon the motion in its discretion. The domestic relations court had exclusive jurisdiction over the subject matter of this suit. The trial court properly dismissed the case for lack of subject matter jurisdiction. Accordingly, this assignment of error is overruled. The decision of the trial court is affirmed. -8- It is ordered that appellees recover of appellant their costs herein taxed. The court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this court directing the Common Pleas 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. MATIA, DAVID T., P.J., and PORTER, J., CONCUR. 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 .