[Cite as Buser v. Buser, 2013-Ohio-2630.]

COURT OF APPEALS 

DELAWARE COUNTY, OHIO 

FIFTH APPELLATE DISTRICT 

TRINA BUSER (NKA FOWLER) 

 Petitioner-Appellant 

-vsDAVID M. BUSER 

 Petitioner-Appellee 

JUDGES: 

: Hon. W. Scott Gwin, P.J. 

: Hon. Sheila G. Farmer, J. 

: Hon. Craig R. Baldwin, J. 

: 

: 

: Case No. 12-CAA- 0077 

: 

: 

: O P I N I O N

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