[Cite as State ex rel. Gray v. Kimbler, 2021-Ohio-2868.]

STATE OF OHIO ) IN THE COURT OF APPEALS 

 )ss: NINTH JUDICIAL DISTRICT 

COUNTY OF MEDINA ) 

STATE OF OHIO EX REL. DAVID 

GRAY 

 Relator 

 v. 

HONORABLE JOYCE V. KIMBLER 

 Respondent 

C.A. No. 20CA0077-M 

ORIGINAL ACTION IN 

PROHIBITION 

Dated: August 23, 2021 

 

 PER CURIAM. 

{¶1} Relator, David Gray, filed a petition for a writ of prohibition to prevent 

respondent, Judge Joyce V. Kimbler, from proceeding with a breach of contract action 

pending before her. Judge Kimbler moved to dismiss. For the following reasons, we 

grant the motion to dismiss. 

Requirements for Writ of Prohibition and Motion to Dismiss 

{¶2} Generally, for this Court to issue a writ of prohibition, Mr. Gray must 

establish that: (1) Judge Kimbler is about to exercise judicial power, (2) the exercise of 

that power is unauthorized by law, and (3) the denial of the writ will result in injury for 

which no other adequate remedy exists. State ex rel. Jones v. Garfield Hts. Mun. Court, 

77 Ohio St.3d 447, 448 (1997). There is no dispute that Judge Kimbler has exercised, 

and will continue to exercise, judicial power as she has ordered a hearing to take place. 

Mr. Gray has alleged that Judge Kimbler patently and unambiguously lacks subject matter 
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jurisdiction, which means that Mr. Gray does not need to demonstrate there is no adequate 

remedy at law. 

{¶3} “[T]he purpose of a writ of prohibition is to restrain inferior courts and 

tribunals from exceeding their jurisdiction.” State ex rel. Jones v. Suster, 84 Ohio St.3d 

70, 73 (1998). A writ of prohibition “tests and determines solely and only the subject 

matter jurisdiction” of the lower court. State ex rel. Eaton Corp. v. Lancaster, 40 Ohio 

St.3d 404, 409 (1988). 

{¶4} When this Court reviews a motion to dismiss under Civ.R. 12(B)(6), we 

must presume that all of the factual allegations in the complaint are true and make all 

reasonable inferences in favor of the nonmoving party. State ex rel. Seikbert v. Wilkinson, 

69 Ohio St.3d 489, 490 (1994). When reviewing the complaint, we may also review the 

material incorporated into the complaint; it is considered as part of the complaint for 

purposes of considering a Civ.R. 12(B)(6) motion to dismiss. State ex rel. Edwards v. 

Toledo City School Dist. Bd. of Edn., 72 Ohio St.3d 106, 109 (1995). 

{¶5} A complaint can only be dismissed pursuant to Civ.R. 12(B)(6) when, 

having viewed the facts alleged in the complaint as true and making all reasonable 

inferences in favor of the nonmoving party, it appears beyond doubt that relator can prove 

no set of facts that would entitle him to the relief requested. Goudlock v. Voorhies, 119 

Ohio St.3d 389, 2008-Ohio-4787, ¶ 7. With this standard in mind, we begin with the facts 

alleged in the complaint. 

 
C.A. No. 20CA0077-M 

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Facts Alleged in the Complaint

{¶6} Mr. Gray and his wife were married in 1993 and divorced, in Medina 

County, Ohio, in 2015. The divorce decree included the parties’ separation agreement. 

In 2018, Mr. Gray’s ex-wife passed away. Mr. Hamilton was appointed as the 

administrator of the estate in Richland County, Ohio. 

{¶7} Mr. Gray filed a claim against the estate in Richland County Probate Court. 

He alleged that his ex-wife failed to complete obligations imposed by the separation 

agreement. Mr. Hamilton rejected the claim. 

{¶8} Mr. Gray then filed an action in the Medina County Court of Common 

Pleas, the case now pending before Judge Kimbler. Mr. Hamilton filed counterclaims 

against Mr. Gray; the counterclaims alleged breach of contract related to the division of 

property in the separation agreement. 

{¶9} Mr. Gray moved for judgment on the pleadings. He alleged that Judge 

Kimbler lacked subject matter jurisdiction over the counterclaim. He argued that only 

the Domestic Relations Division had jurisdiction over claims related to a separation 

agreement incorporated into a divorce decree. 

{¶10} Judge Kimbler partially granted Mr. Hamilton’s motion for summary 

judgment. In that order, Judge Kimbler concluded that a trial would be held to determine 

the amount due. Mr. Gray continued to assert that Judge Kimbler lacked jurisdiction over 

the counterclaim. Judge Kimbler has rejected those arguments. 

{¶11} Following Judge Kimbler’s last order, Mr. Gray filed this petition for writ 

of prohibition. 
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Judge Kimbler does not patently and unambiguously lack jurisdiction 

{¶12} Subject matter jurisdiction concerns a court’s power to hear and decide a 

case on the merits. State ex rel. Jones v. Suster, 84 Ohio St.3d 70, 75, 1998-Ohio-275, 

citing Morrison v. Steiner, 32 Ohio St.2d 86 (1972), paragraph one of the syllabus. If a

court patently and unambiguously lacks subject matter jurisdiction, a writ of prohibition 

may issue. But the use of the writ is reserved for rare cases. Ohio High School Athletic 

Assn. v. Ruehlman, 157 Ohio St.3d 296, 2019-Ohio-2845, ¶ 6. “A ‘writ of prohibition is 

an extraordinary remedy that is granted in limited circumstances with great caution and 

restraint.’” Id. quoting State ex rel. Corn v. Russo, 90 Ohio St.3d 551, 554 (2001). 

{¶13} There is no dispute that Judge Kimbler has jurisdiction over breach of 

contract actions. Mr. Gray focuses on a different issue, however. He argues that the 

Domestic Relations Division has exclusive jurisdiction over the claim as a post-decree 

proceeding, pursuant to R.C. 2301.03(U). Mr. Gray relies on this statutory provision to 

conclude that Judge Kimbler, as a general division judge, lacks jurisdiction over all postdecree proceedings. Specifically, he contends that the Domestic Relations Division of 

the Medina County Court of Common Pleas has exclusive jurisdiction over Mr. 

Hamilton’s counterclaim for breach of the separation agreement.

{¶14} Mr. Gray points to numerous decisions from courts around Ohio in support 

of his position. He contends in paragraph 36 of his complaint that “[o]nce a separation 

agreement is incorporated into a divorce decree, the agreement is superseded by the 

decree and its terms are imposed not by contract, but by the decree.” He relies on the 

Ohio Supreme Court’s conclusion that “A separation agreement of the parties loses its 
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nature as a contract the moment it is adopted by the court and incorporated into a decree 

of divorce.” Wolfe v. Wolfe, 46 Ohio St.2d 399 (1976), paragraph four of the syllabus. 

{¶15} But that is not the end of the inquiry. This Court has held that “It has long 

been the rule in Ohio that if the parties voluntarily enter into a separation agreement, the 

agreement becomes a valid and binding contract between the parties.” Haas v. Bauer, 

156 Ohio App.3d 26, 2004-Ohio-437, ¶ 19 (9th Dist.), quoting Russell v. Russell, 5th Dist. 

Stark No. 98–CA–0127, 1999 WL 437003 (June 7, 1999), citing Tullis v. Tullis, 138 Ohio 

St. 187 (1941). The Seventh District Court of Appeals recognized earlier this year that 

there may be two remedies: contempt in domestic relations court and breach of contract 

in the trial court. Rossi v. Rossi, 7th Dist. Mahoning No. 20 MA 0086, 2021-Ohio-2348, 

¶ 27. Likewise, the Third District Court of Appeals has recognized that a “separation 

agreement is a contractual agreement.” Johnson v. Johnson, 3d Dist. Hancock No. 5-07-

34, 2008-Ohio-514, ¶ 12. In another case, the Fifth District, and the trial court, were 

apparently not persuaded by appellants’ argument that no breach of contract action could 

exist because the separation agreement could only be enforced through a contempt 

proceeding. Boulden v. Boulden, 5th Dist. Richland No. 01-CA-21, 2001 WL 1194819, 

*1. 

{¶16} A review of the caselaw on this topic demonstrates that courts have taken 

different approaches to explaining the rights and obligations parties have related to 

separation agreements. This is significant because, in order to issue a writ of prohibition, 

this Court must find that Judge Kimbler patently and unambiguously lacks jurisdiction to 
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act. Based upon our review of the caselaw, we cannot conclude that Judge Kimbler 

patently and unambiguously lacks jurisdiction to act. 

{¶17} The procedural posture of the underlying case also merits further 

discussion. Mr. Gray first invoked the jurisdiction of the Medina County Court of 

Common Pleas when he filed a complaint that was based on, in the words of paragraph 8 

of the complaint, “certain obligations [his ex-wife] breached in their Separation 

Agreement.” In other words, Mr. Gray seeks to prohibit Judge Kimbler’s further exercise 

of jurisdiction in the case that he filed based on his ex-wife’s breach of the separation 

agreement. 

{¶18} In addition, Mr. Gray contends, in paragraph 40 of his complaint, that Mr. 

Hamilton stands in the shoes of Mr. Gray’s ex-wife. He concludes that remedies for 

breach of a separation agreement must be pursued in the Domestic Relations Division. 

Mr. Gray failed to point out in his complaint that he took a contrary position in the 

Domestic Relations Division. Although not mentioned in the prohibition complaint, Mr. 

Gray attached several of Judge Kimbler’s orders which, as noted above, are incorporated 

into that complaint. In an order filed on November 30, 2020, Judge Kimbler responded 

to Mr. Gray’s jurisdictional argument. The order points out that Mr. Hamilton initially 

filed a contempt motion in the Domestic Relations Court. In response, Mr. Gray argued 

that Mr. Hamilton could not pursue contempt and, instead, was required to file a 

compulsory counterclaim. Mr. Hamilton then dismissed his contempt action and filed the 

compulsory counterclaim. 
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{¶19} Judge Kimbler recognized that Mr. Gray adopted inconsistent positions, 

both in arguing that contempt was not an appropriate method of enforcing the separation 

agreement and, in fact, by filing his own action – the underlying civil complaint – to 

attempt to remedy his ex-wife’s breach of the terms of the separation agreement. 

{¶20} These observations further support our conclusion that, having viewed the 

facts alleged in the complaint as true and making all reasonable inferences in Mr. Gray’s 

favor, it appears beyond doubt that Mr. Gray can prove no set of facts that would entitle 

him to the relief requested. 

Conclusion

{¶21} Because Mr. Gray can prove no set of facts that would entitle him to the 

relief requested, the petition is dismissed. Costs of this action are taxed to Relator. The 

clerk of courts is hereby directed to serve upon all parties not in default notice of this 

judgment and its date of entry upon the journal. See Civ.R. 58(B). 

 

 LYNNE S. CALLAHAN 

 FOR THE COURT 

HENSAL, J. 

TEODOSIO, J. 

CONCUR. 

APPEARANCES: 

JOSEPH J. TRISCARO, Attorney at Law, for Relator. 

S. FORREST THOMPSON, Prosecuting Attorney, and VINCENT V. VIGLUICCI, Assistant 

Prosecuting Attorney, Attorney at Law, for Respondent.