Allen v. Allen

2012 Ohio 4392

Opinion

[Cite as Allen v. Allen, 2012-Ohio-4392.]

COURT OF APPEALS MUSKINGUM COUNTY, OHIO FIFTH APPELLATE DISTRICT

LISA LEIGH ALLEN JUDGES: Hon. Patricia A. Delaney, P.J. Plaintiff-Appellee Hon. William B. Hoffman, J. Hon. Sheila G. Farmer, J. -vs- Case No. CT2012-0008 JOHN DALE ALLEN

Defendant-Appellant OPINION

CHARACTER OF PROCEEDING: Appeal from the Muskingum County Common Pleas Court, Domestic Relations Division, Case No. DB2011-0015

JUDGMENT: Dismissed

DATE OF JUDGMENT ENTRY: September 21, 2012

APPEARANCES:

For Appellee For Appellant

SCOTT T. HILLS JOHN DALE ALLEN Hillis & Small, LLC #A614204 825 Adair Avenue C/o HCF – P.O. Box 59 Zanesville, OH 43701 Nelsonville, OH 45764 Muskingum County, Case No. CT2012-0008 2

Hoffman, J.

{¶1} Defendant-appellant John D. Allen (“Husband”) appeals the February 7,

2012 Divorce Decree entered by the Muskingum County Court of Common Pleas,

Domestic Relations Division. Plaintiff-appellee is Lisa L. Allen (“Wife”).

STATEMENT OF THE CASE AND FACTS

{¶2} On September 12, 2011, Wife filed a Complaint for Divorce in the

Muskingum County Court of Common Pleas, Domestic Relations Division. Wife

asserted gross neglect of duty and extreme cruelty as well as incompatibility as

grounds.

{¶3} Husband filed an Answer and Counterclaim on September 27, 2011.

Accompanying the pleadings was Husband’s hand-written Poverty Affidavit requesting

the trial court waive the pre-payment of the fees and costs associated with the filing of

his Answer and Counterclaim. Via Judgment Entry filed September 28, 2011, the trial

court ordered Husband to file a properly completed Financial Disclosure Affidavit or pay

the required deposit within fourteen days. Husband filed the appropriate documentation

on October 6, 2011.

{¶4} On November 18, 2011, Wife filed a Motion for Leave to File Amended

Complaint Instanter, which the trial court granted. The Amended Complaint included

Husband’s incarceration as grounds for the divorce. Husband filed an Answer and

Counterclaim on December 7, 2011.

{¶5} The trial court conducted a final hearing on January 9, 2012. The trial

court issued a Divorce Decree on February 7, 2012. Muskingum County, Case No. CT2012-0008 3

{¶6} It is from this judgment entry Husband appeals, assigning as error:

{¶7} “I. DEFENDANT WAS DENIED DUE PROCESS.

{¶8} “II. DEFENDANT WAS DENIED EQUAL PROTECTION UNDER THE

LAW.”

{¶9} As a preliminary matter, we must first determine whether the order under

review is a final appealable order. If an order is not final and appealable, then we have

no jurisdiction to review the matter and must dismiss it. See Gen. Acc. Ins. Co. v. Ins.

Co. of N. Am. (1989), 44 Ohio St.3d 17, 20, 540 N.E.2d 266. In the event the parties to

the appeal do not raise this jurisdictional issue, we must raise it sua sponte. See Chef

Italiano Corp. v. Kent State Univ. (1989), 44 Ohio St.3d 86, 541 N .E.2d 64, syllabus;

Whitaker-Merrell v. Carl M. Geupel Const. Co. (1972), 29 Ohio St.2d 184, 186, 58

O.O.2d 399, 280 N.E.2d 922.

{¶10} Upon review of the record in this matter, we decline to address the merits

of Husband’s arguments at this time as we find the order being appealed is not a final

appealable order. The trial court’s February 7, 2012 Divorce Decree does not dispose

of Husband’s Counterclaim, nor did it include a Civ.R. 54(B) language. Muskingum County, Case No. CT2012-0008 4

{¶11} Because a final appealable order does not exist in this case, we dismiss

this appeal for lack of jurisdiction.

By: Hoffman, J.

Delaney, P.J. and

Farmer, J. concur s/ William B. Hoffman _________________ HON. WILLIAM B. HOFFMAN

s/ Patricia A. Delaney _________________ HON. PATRICIA A. DELANEY

s/ Sheila G. Farmer __________________ HON. SHEILA G. FARMER Muskingum County, Case No. CT2012-0008 5

IN THE COURT OF APPEALS FOR MUSKINGUM COUNTY, OHIO FIFTH APPELLATE DISTRICT

LISA LEIGH ALLEN : : Plaintiff-Appellee : : -vs- : JUDGMENT ENTRY : JOHN DALE ALLEN : : Defendant-Appellant : Case No. CT2012-0008

For the reason stated in our accompanying Opinion, this appeal is ordered

dismissed. Costs to Appellant.

s/ William B. Hoffman _________________ HON. WILLIAM B. HOFFMAN

s/ Patricia A. Delaney _________________ HON. PATRICIA A. DELANEY

s/ Sheila G. Farmer___________________ HON. SHEILA G. FARMER