[Cite as Buser v. Buser,
2013-Ohio-2630.]
COURT OF APPEALS
DELAWARE COUNTY, OHIO
FIFTH APPELLATE DISTRICT
JUDGES:
TRINA BUSER (NKA FOWLER) : Hon. W. Scott Gwin, P.J.
: Hon. Sheila G. Farmer, J.
Petitioner-Appellant : Hon. Craig R. Baldwin, J.
:
-vs- :
: Case No. 12-CAA- 0077
DAVID M. BUSER :
:
Petitioner-Appellee : OPINION
CHARACTER OF PROCEEDING: Civil appeal from the Delaware County
Court of Common Pleas, Domestic
Relations Division, Case No. 11 DSC 10
0575
JUDGMENT: Dismissed
DATE OF JUDGMENT ENTRY: June 21, 2013
APPEARANCES:
For Petitioner-Appellant For Petitioner-Appellee
DANIELLE DAVISROE ERIC BROWN
CRAIG P. TRENEFF GARY GOTTFRIED
ANDREA L. COZZA 608 Office Parkway, Ste. B
155 Commerce Park Drive, Ste. 5 Westerville, OH 43082
Westerville, OH 43082
[Cite as Buser v. Buser, 2013-Ohio-2630.]
Gwin, P.J.
{¶1} Appellant appeals the October 1, 2012 judgment entry of the Delaware
County Common Pleas Court, Domestic Relations Division, denying her Civil Rule
60(B)(1) motion.
Facts & Procedural History
{¶2} Appellant Trina L. Buser (nka Fowler) and appellee David M. Buser are
the parents of one minor child, J.K.B., born March 15, 2004. The parties were married
from July 13, 2002 to December 16, 2011.
{¶3} Without the assistance of counsel, the parties terminated their marriage
through a dissolution on December 20, 2011, with an agreed judgment entry and decree
of dissolution. The parties obtained the forms for the dissolution from the clerk of courts
office. The forms included, among other documents, a joint plan of shared parenting
and a separation agreement. The separation agreement of the parties was approved
and incorporated as part of the decree of dissolution. The separation agreement and
joint plan of shared parenting filed by the parties contained contradictory terms
regarding the custody of J.K.B. and parenting time. The joint plan of shared parenting
provided appellant would have parenting time pursuant to local rule, appellee would
have parenting time at all other times, and that appellee would be designated the
residential parent for school placement purposes. The separation agreement provided
appellant would have custody of J.K.B. and appellee would have parenting time
pursuant to local rule.
{¶4} On May 31, 2012, appellee filed a motion for modification of shared
parenting plan. On August 22, 2012, appellant filed a motion to set aside the agreed
Delaware County, Case No. 12-CAA-0077 3
judgment/decree of dissolution and final entry of shared parenting pursuant to Civil Rule
60(B)(1). Appellant also filed a motion to modify allocation of parental rights. The trial
court determined an evidentiary hearing was necessary to determine if modification was
in the best interest of J.K.B. The evidentiary hearing has not yet been held as it has
been continued several times by request of the parties. The parties are operating under
a December 7, 2012 agreed temporary order.
{¶5} On October 1, 2012, the trial court issued a judgment entry denying
appellant’s motion to set aside pursuant to 60(B)(1). The trial court found, when taking
into consideration O.R.C. § 3109.04(G), the shared parenting order takes precedence
over any other pleading when there are inconsistencies. Further, that because O.R.C. §
3109.04(E)(2)(C) provides for the termination of a shared parenting decree and there is
a statutory means of terminating a shared parenting decree, it is unnecessary to employ
Civ.R. 60(B)(1) to vacate a shared parenting plan. Appellant asserts the following
assignments of error on appeal:
{¶6} “I. THE TRIAL COURT ERRED AS A MATTER OF LAW AND ABUSED
ITS DISCRETION IN HOLDING THAT IT IS UNNECESSARY TO APPLY OHIO RULE
OF CIVIL PROCEDURE 60(B)(1) TO VACATE THE DISSOLUTION DECREE.
{¶7} “II. THE TRIAL COURT ERRED AS A MATTER OF LAW AND ABUSED
ITS DISCRETION IN HOLDING THAT ANY PROVISIONS PERTAINING TO THE
CASE OF THE CHILD IN THE SEPARATION AGREEMENT ARE A NULLITY WHERE
THEY CONFLICT WITH THE SHARED PARENTING PLAN BECAUSE ANY
PROVISION CONTAINED IN THE SHARED PARENTING PLAN TAKES
Delaware County, Case No. 12-CAA-0077 4
PRECEDENCE OVER ANY INCONSISTENT PROVISIONS CONTAINED IN ANY
OTHER PLEADINGS.
{¶8} “III. THE TRIAL COURT ERRED AS A MATTER OF LAW AND ABUSED
ITS DISCRETION IN HOLDING THAT IT IS UNNECESSARY TO APPLY OHIO RULE
OF CIVIL PROCEDURE 60(B)(1) TO VACATE THE SHARED PARENTING DECREE
BECAUSE OHIO REVISED CODE SECTION 3109.04(E)(2)(c) PROVIDES FOR THE
TERMINATION OF A SHARED PARENTING DECREE.”
I, II, III
{¶9} On April 15, 2013, the court scheduled the above-captioned matter for oral
argument on May 23, 2013. On May 14, 2013, the parties filed a notice of waiver of oral
argument and appellant dismissed her request for oral hearing previously filed on
December 4, 2012.
{¶10} On May 29, 2013, appellee filed a Notice of Suggestion of Death, stating
that appellant Trina Buser nka Fowler passed away on May 23, 2013. In this case,
appellant’s assignments of error relate solely to the discrepancy between the separation
agreement and the joint plan of shared parenting dealing with the custody and parenting
time each parent had with J.K.B. Appellant does not challenge any other provisions of
the separation agreement or entry of dissolution.
{¶11} Based upon the Notice of Suggestion of Death, we find the issues
presented are moot. Courts “will not resolve issues which are moot.” Fortner v.
Thomas, 22 Ohio St.2d 13, 14,
257 N.E.2d 371, 372 (1970), citing Miner v. Witt,
82
Ohio St. 237 (1910).
Delaware County, Case No. 12-CAA-0077 5
{¶12} Accordingly, Assignments of Error I, II, and III are moot and appellant’s
appeal is dismissed.
By Gwin, P.J.,
Farmer, J., and
Baldwin, J., concur
_________________________________
HON. W. SCOTT GWIN
_________________________________
HON. SHEILA G. FARMER
_________________________________
HON. CRAIG R. BALDWIN
WSG:clw 0607
[Cite as Buser v. Buser, 2013-Ohio-2630.]
IN THE COURT OF APPEALS FOR DELAWARE COUNTY, OHIO
FIFTH APPELLATE DISTRICT
TRINA BUSER (NKA FOWLER) :
:
Petitioner-Appellant :
:
:
-vs- : JUDGMENT ENTRY
:
DAVID M. BUSER :
:
:
Petitioner-Appellee : CASE NO. 12-CAA-0077
For the reasons stated in our accompanying Memorandum-Opinion,the judgment of
the Delaware County Court of Common Pleas, Domestic Relations Division, is
dismissed. Costs to appellant.
_________________________________
HON. W. SCOTT GWIN
_________________________________
HON. SHEILA G. FARMER
_________________________________
HON. CRAIG R. BALDWIN
