Galluzzo v. Galluzzo

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[Cite as Galluzzo v. Galluzzo, 2002-Ohio-6524.] IN THE COURT OF APPEALS FOR CHAMPAIGN COUNTY, OHIO TERESA A. GALLUZZO, NKA COOK Plaintiff-Appellant : vs. : : C.A. CASE NO. 2001CA16 T.C. CASE NO. 93-DR-247 MICHAEL ANTHONY GALLUZZO : Defendant-Appellee (Civil Appeal from Common Pleas Court) : . . . . . . . . . O P I N I O N Rendered on the 27th day of November, 2002. . . . . . . . . . Sanford H. Flack, 101 N. Fountain Avenue, Springfield, Ohio 45502, Atty. Reg. No. 009376 Attorney for Plaintiff-Appellant Gregory K. Lind, 31 E. High Street, Springfield, Ohio 45502, Atty. Reg. No. 0055227 Attorney for Defendant-Appellee . . . . . . . . . GRADY, J. {¶1} This is an appeal brought by Teresa A. Galluzzo (Cook) 2 The judgment from a judgment of the court of common pleas. adopted the decision of a magistrate that found Michael A. Galluzzo in contempt for failure to pay child support. Michael1 filed a a notice of cross-appeal, but has not assigning error in the trial court s judgment. filed brief His cross-appeal will be dismissed. FIRST ASSIGNMENT OF ERROR {¶2} THE TRIAL COURT ERRED AND [SIC] ABUSE OF DISCRETION IN FAILING TO IMPOSE INTEREST ON THE CHILD SUPPORT ARREARAGE OWED BY MR. GALLUZZO. {¶3} Teresa objected that the magistrate erred when he failed to award interest on the amount of the support arrearage the magistrate determined. The trial court overruled the objection, without elaboration. {¶4} Teresa argues that R.C. 3113.219 and R.C. 3109.05(C) both require an award of interest. We do not agree, because those requirements were not applicable at the times the decision and order were entered. {¶5} R.C. 3113.219, which formerly imposed an interest requirement, was repealed by S.B. 180 (2000), effective March 22, 2001. The same legislation enacted R.C. 3123.17(A), which contains a like requirement, but R.C. 3123.17(A) became effective only on July 6, 2001. The magistrate s decision and the court s judgment were each filed during the hiatus2 between those two 1 For clarity and convenience, identified by their first names. 2 the parties are S.B. 180 reenacted provisions that had been repealed dates, on March 28 and April 26, 2001, respectively. 3 Therefore, neither was controlled by R.C. 3113.219 or its successor, R.C. 3123.17(A). {¶6} R.C. 3109.05(C), on which Teresa also relies, effective when the decision and the judgment were entered. was It requires the court to assess interest on any unpaid amount of child support pursuant to section 3123.17 of the Revised Code. However, because R.C. 3123.17 was itself not in effect at the relevant times, the court was not required by R.C. 3109.05(C) to assess interest pursuant to its provisions. {¶7} The first assignment of error is overruled. SECOND ASSIGNMENT OF ERROR {¶8} MRS. COOK S CURRENT HUSBAND WAS IMPROPERLY JOINED AS A PARTY. {¶9} The magistrate joined Teresa s current spouse, James Cook, as a party to the proceedings on Michael s motion, pursuant to Civ.R. 19. Teresa subsequently objected. The trial court overruled her objection, holding that [t]he joinder of James Cook is permissible under the Civil Rules and the inherent power of the Court. {¶10} It is unclear on what authority the magistrate relied when he joined James Cook. The magistrate is authorized by Civ.R. 53(C)(3)(a) to issue certain pretrial orders, but joinder by the Tort Reform Act, which the Supreme Court held unconstitutional in State ex rel Ohio Academy of Trial Lawyers v. Sheward, 86 Ohio St.3d 451, 1999-Ohio-123. The gap between the repeal of R.C. 3113.219 and the date R.C. 3123.17(A) became effective is somehow related to those matters. 4 When a pretrial order is entered, of parties is not one of them. a party is authorized by Civ.R. 53(C)(3)(b) to ask the court within ten days to set the order aside. Teresa didn t do that, possibly that out of concern for any delay might result in resolving her contempt charges. {¶11} These were post-decree proceedings in a divorce action. Civ.R. 75(B) expressly provides that Civ.R. 19 does not apply in divorce actions. Civ.R. 75(B) by its own terms permits joinder of third parties in divorce actions in certain circumstances, but none of those circumstances apply here. {¶12} The objection trial to court Cook s erred joinder, when finding it overruled instead Teresa s that it is permissible under the Civil Rules and the inherent power of the Court. Cook s joinder is prohibited by the civil rules. The court s inherent powers are those necessary to its exercise of the judicial power conferred on the courts by Article IV, Section 1 of the Ohio Constitution. authorizes the Supreme Court However, Article IV, Section 5(B) to adopt rules of practice and procedure, and the Civil Rules were adopted pursuant to that authority. The more specific provisions of Civ.R. 75(B) therefore trump the more general inherent power of the court to join third parties in this circumstance. {¶13} The second assignment of error is sustained. Conclusion {¶14} Having sustained the second assignment of error, we will order James Cook dismissed as a party. Otherwise, the order from which the appeal was taken will be affirmed. 5 BROGAN, J. and YOUNG, J., concur. Copies mailed to: Sanford H. Flack, Esq. Gregory K. Lind, Esq. Michael A. Galluzzo Hon. Roger B. Wilson

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