Dave v. Dave

2016 Ohio 5185

• Court: Ohio Court of Appeals
• Decided: August 1, 2016
• Docket: 2016-P-0020
• Status: Published

Opinion

[Cite as Dave v. Dave, 2016-Ohio-5185.]

IN THE COURT OF APPEALS

ELEVENTH APPELLATE DISTRICT

PORTAGE COUNTY, OHIO

DEEPAN M. DAVE, : MEMORANDUM OPINION

Plaintiff-Appellee, : CASE NO. 2016-P-0020 - vs - :

SEJAL DEEPAN DAVE, :

Defendant-Appellant. :

Civil Appeal from the Court of Common Pleas, Domestic Relations Division, Case No. 2015 DR 00166.

Judgment: Appeal dismissed.

Randall A. Lowry, Randal A. Lowry & Associates, 4000 Embassy Parkway, Suite 200, Akron, OH 44333, and Shubhra N. Agarwal, 3766 Fishcreek Road, #289, Stow, OH 44224-4379 (For Plaintiff-Appellee).

Joyce E. Barrett and James P. Reddy, Jr., 55 Public Square, Suite 1260, Cleveland, OH 44113 (For Defendant-Appellant).

CYNTHIA WESTCOTT RICE, P.J.

{¶1} Appellant, Sejal Deepan Dave, by and through counsel of record, filed a

notice of appeal from three separate judgment entries issued by the Portage County

Court of Common Pleas, Domestic Relations Division.

{¶2} The record in this matter reveals that appellant and appellee, Deepan M.

Dave, were married in India on November 28, 2013. The marriage was registered in

India. After their marriage, the parties resided in Cleveland for approximately one week, and then they flew to Texas. A few days later, appellee returned to Ohio by himself to

enter into a lease for a residence. Appellant came to Ohio for about one month before

returning to Texas, where she gave birth to their child in September 2014.

{¶3} In November 2014, appellant and the infant returned to Ohio. The parties

filed an application for a travel visa for the infant, and in January 2015, the three of them

traveled to Bombay, India. While there, appellant and the infant went to another part of

India with appellant’s parents, and remained there. Appellee had some limited contact

with appellant by phone.

{¶4} On April 15, 2015, appellee filed a complaint for divorce against appellant

in the trial court. In May of 2015, appellant returned to Texas to file a petition for

annulment or divorce.

{¶5} On July 1, 2015, appellant filed a “Notice of Filing of Special Appearance

on Behalf of Defendant to Dismiss Divorce Action for Lack of Jurisdiction over Parental

Rights and Responsibilities; Lack of In Personam Jurisdiction over Defendant; and Lack

of In Rem Jurisdiction over the Divorce Action.” Subsequently, appellant filed three

supplements to her motion.

{¶6} In September 2015, the Texas court declined jurisdiction to hear the

matter and ceded jurisdiction to Ohio. Appellant then filed three separate actions in

India.

{¶7} In an entry dated March 10, 2016, after considering the pleadings and

conferring with the Texas court, the trial court journalized that the state of Texas

declined jurisdiction to hear the matter, and that the Texas judge issued a UCCJEA

2 Order reflecting that jurisdiction of the matter including over the parties’ minor child was

ceded to Portage County.

{¶8} In a separate March 10, 2016 entry, in ruling on appellant’s July 1, 2015

motion to dismiss for lack of jurisdiction, lack of in personam jurisdiction and lack of in

rem jurisdiction and the supplemental motions, the trial court ordered that the motion

was denied. The trial court further stated that appellant’s motion to dismiss on the basis

of a lack of jurisdiction to make determinations relating to child custody and as related to

the Hindu Marriage Act of 1955 is denied.

{¶9} In an entry dated March 21, 2016, the trial court ordered that appellant

return to the United States with the parties’ minor child no later than April 10, 2016; that

within 48 hours, appellant shall deposit any and all passports held in her name and/or

the child’s name with the Portage County Clerk of Courts; appellant shall communicate

with appellee by March 17, 2016, to make arrangements for appellee to have daily

contact with the minor child; and that a hearing on the remaining issues shall take place

on April 28, 2016, and that appellant shall transport the minor child to Portage County

by that date. The trial court also made certain orders regarding the marital property. It

is from those entries that appellant filed the instant appeal on April 6, 2016.

{¶10} On April 25, 2016, appellee filed a motion to dismiss the appeal for lack of

a final appealable order. This court issued an entry on April 27, 2016, ordering

appellant to submit briefing on the issue of whether the entries being appealed are final

appealable orders for this court’s review. On May 9, 2016, appellant filed a brief in

support of her position that the appealed entries are final appealable orders. Appellant

posits that the appealed entries were made in a special proceeding and affect her

3 substantial rights. On June 2, 2016, appellee filed a response to appellant’s brief in

support and stated that the appealed entries do not affect a substantial right, and that

the appeal be dismissed due to lack of jurisdiction.

{¶11} Initially, we must determine whether there is a final appealable order since

this court may entertain only those appeals from final judgments or orders. Noble v.

Colwell, 44 Ohio St.3d 92, 96 (1989). According to Section 3(B)(2), Article IV of the

Ohio Constitution, a judgment of a trial court can be immediately reviewed by an

appellate court only if it constitutes a “final order” in the action. Germ v. Fuerst, 11th

Dist. Lake No. 2003-L-116, 2003-Ohio-6241, ¶ 3. If a lower court’s order is not final,

then an appellate court does not have jurisdiction to review the matter, and the matter

must be dismissed. Gen. Acc. Ins. Co. v. Ins. Co. of N. Am., 44 Ohio St.3d 17, 20

(1989). For a judgment to be final and appealable, it must satisfy the requirements of

R.C. 2505.02 and if applicable, Civ.R. 54(B). See Children’s Hosp. Med. Ctr. v.

Tomaiko, 11th Dist. Portage No. 2011-P-0103, 2011-Ohio-6838, ¶ 3.

{¶12} In general, the denial of a motion to dismiss is not a final appealable order.

Curie v. Curie, 11th Dist. Ashtabula No. 2004-A-0047, 2004-Ohio-3682, at ¶ 2.

However, Pursuant to R.C. 2505.02(B), there are seven categories of a “final order,”

and if the judgment of the trial court satisfies any of them, it will be deemed a “final

order” and can be immediately appealed and reviewed by a court of appeals.

{¶13} R.C. 2505.02(B)(2) states that an order is final if it “affects a substantial

right made in a special proceeding * * *[.]” An action for divorce is a special proceeding,

and a party has a substantial right to have a dispute considered by a court of competent

jurisdiction. See Copenhaver v. Copenhaver, 4th Dist. Athens No. 05CA16, 2005-Ohio-

4 4322, at ¶ 5. Therefore, in this matter, we must determine if the trial court’s judgment

entries affected that substantial right.

{¶14} An order that affects a substantial right has been perceived to be one

which, if not immediately appealable, would foreclose appropriate relief in the future. Id.

At ¶ 6. In this divorce case, the denial of the motion to dismiss for lack of jurisdiction

does not affect a substantial right and is not a final appealable order because the

underlying reasons for the motion remain undisturbed until final judgment, which would

permit an appeal to be sought after disposition of the entire case.

{¶15} Based upon the foregoing analysis, appellee’s motion to dismiss is

granted, and this appeal is hereby dismissed due to lack of a final appealable order.

{¶16} Appeal dismissed.

TIMOTHY P. CANNON, J.,

COLLEEN MARY O’TOOLE, J.,

concur.