Bennett v. Dortch

734 N.E.2d 434, 135 Ohio App. 3d 430

• Court: Ohio Court of Appeals
• Decided: November 24, 1999
• Docket: C.A. No. 19458.
• Status: Published

Opinions

Per Curiam.

Plaintiff-appellant Richard Bennett appeals from an order in the Summit County Court of Common Pleas that purported to decide support arrearages. However, because this court is required to raise jurisdictional issues involving final appealable orders sua sponte, we must do so and dismiss the instant appeal. See In re Murray (1990), 52 Ohio St.3d 155, 159-160, 556 N.E.2d 1169, 1174, fn. 2; Whitaker-Merrell Co. v. Carl M. Geupel Constr. Co. (1972), 29 Ohio St.2d 184, 186, 58 O.O.2d 399, 400, 280 N.E.2d 922, 924.

Given the necessary disposition of the instant appeal, we need not present the underlying facts in much detail. On November 12, 1992, the Summit County Children Services Board filed a complaint alleging that then eleven-year-old J was a neglected and abused child. Litigation followed in which J’s grandmother was granted custody of the child. Bennett, J’s father, contested the custody award, and a long and convoluted series of legal proceedings ensued that resulted in Bennett obtaining custody of J. During this period of litigation, the parties contested at various times who owed support to whom, how much had been paid, and how much was still owed. Finally, on September 16, 1998, the trial court journalized an entry that purported to adopt an attached magistrate’s decision and to resolve the outstanding issue of support arrearages. The trial court’s entry also provided that Bennett could file objections to the magistrate’s decision within fourteen days. Accordingly, Bennett filed objections to the magistrate’s decision on September 23, 1998, and subsequently amended his objections on October 13, 1998. The trial court issued a December 22, 1998 entry in which the court overruled the objections, described the magistrate’s orders, and stated: “The Magistrate’s decision is approved and becomes an order of this Court.”

Bennett timely appealed, asserting five assignments of error. However, this court sua sponte raised the issue of jurisdiction at oral argument and permitted briefs to be filed on the issue. Bennett availed himself of the opportunity, while appellee Karen Dortch did not. In his supplemental brief, Bennett has conceded that the December 22, 1998 trial court entry from which he appeals is not a final appealable order pursuant to R.C. 2505.02 and this court’s prior holding in Daly v. Martin (May 14, 1997), Medina App. No. 2599-M, unreported, 1997 WL 270528. However, Bennet also urges this court to reject stare decisis and hold that the flawed trial court order is not void, but merely voidable.

This court declines the invitation to characterize Daly in such a manner. The issue is whether an order is final and appealable and not whether the order is void. In Daly, this court held that “the [trial] court must, at the very least, articulate the outcome and remedy” in an order adopting a magistrate’s decision. This requirement is neither exacting nor of such an equivocal nature that the trial courts are hard-pressed to comply. To constitute a final appealable order, the trial court entry reflecting action on the magistrate’s decision must be a separate and distinct instrument from the magistrate’s decision and must grant relief on the issues originally submitted to the trial court. See In re Zakov (1995), 107 Ohio App.3d 716, 717, 669 N.E.2d 344, 344-345; Reiter v. Reiter (May 11, 1999), Hancock App. No. 5-98-32, unreported, 1999 WL 378354; Daly, supra. In granting such relief, the trial court simply “ ‘must sufficiently address those issues so that the parties may know of their rights and obligations by referring only to that document known as the judgment entry.’ ” Zakov, supra, 107 Ohio App.3d at 717, 669 N.E.2d at 345, quoting In re Michael (1991), 71 Ohio App.3d 727, 729, 595 N.E.2d 397, 398.

Accordingly, although the December 22, 1998 entry describes the magistrate’s orders, the entry fails to set forth the orders of the court. Because the entry is not final and appealable, this court does not have jurisdiction to hear the appeal. The appeal is hereby dismissed.

Appeal dismissed.

Whitmore and Batchelder, JJ., concur. Carr, P.J., dissents.