DeGrant v. DeGrant

2020 Ohio 4425

Opinion

[Cite as DeGrant v. DeGrant, 2020-Ohio-4425.]

IN THE COURT OF APPEALS

ELEVENTH APPELLATE DISTRICT

GEAUGA COUNTY, OHIO

JENNIFER DEGRANT, : MEMORANDUM OPINION

Plaintiff-Appellant, : CASE NO. 2020-G-0259 - vs - :

MARK DEGRANT, et al., :

Defendant-Appellee. :

Civil Appeal from the Geauga County Court of Common Pleas, Case No. 2015 DC 000999.

Judgment: Appeal dismissed.

Joseph G. Stafford and Nicole A. Cruz, Stafford Law Co., LPA, 55 Erieview Plaza, 5th Floor, Cleveland, OH 44114 (For Plaintiff-Appellant).

Alan H. Kraus, 20133 Farnsleigh Road, Second Floor, Shaker Heights, OH 44122 (For Defendant-Appellee).

MATT LYNCH, J.

{¶1} Pending before this court is defendant-appellee, Mark DeGrant’s, Motion

to Dismiss Appeal for Lack of Jurisdiction, filed on August 19, 2020. Plaintiff-appellant,

Jennifer DeGrant, filed a Brief in Opposition on August 26, 2020.

{¶2} On January 13, 2020, this court issued its decision in DeGrant v. DeGrant,

11th Dist. Geauga Nos. 2019-G-0190 and 2019-G-0216, 2020-Ohio-70, reversing the

parties’ Decree of Divorce, issued on December 31, 2018, with respect to custody of the minor child and the amount of child support. This court found that it was error for the

trial court to exclude the child’s therapist as a witness in the custody hearing and for the

court to modify the shared parenting plan submitted by Mark contrary to R.C.

3109.04(D) and that there were errors in the calculation of child support. This court

held: “On remand, the trial court is instructed to reopen the hearing on custody for the

limited purpose of allowing Dr. Janet Davis to testify, issue a new custody order

complying, if necessary, with R.C. 3109.04(D)(1)(a)(iii), and to recalculate the amount of

child support in accordance with this court’s disposition of the fifth assignment of error.”

Id. at ¶ 102.

{¶3} On January 28, 2020, the magistrate set the matter for hearing on the

issues of custody and child support on August 21, 2020 (this hearing has been

continued).

{¶4} On July 21, 2020, Mark filed a Submission of Changes to Shared

Parenting Plan.

{¶5} On July 27, 2020, the trial court ruled that Mark’s “submissions are in the

best interest of the minor child and are incorporated into the Share[d] Parenting Plan as

reflected in the Court’s December 31, 2018 Order * * *.”

{¶6} On July 28, 2020, Jennifer filed the present appeal from the July 27

Judgment Entry.

{¶7} Mark contends the July 27 Entry is not a final order because “[a]ll issues

pertaining to this court’s remand and the motion as to the allocation of parental right[s]

and responsibilities, as well as the multitude of other pending motions have not been

resolved and are currently set for hearing before the trial court.” Motion to Dismiss at 4.

2 Jennifer counters that the trial court did not designate the adoption of the shared

parenting plan as an interim order.

{¶8} We agree with Mark that the July 27 Entry is not a final order despite the

failure of the trial court to denote it as temporary or interlocutory. Part of this court’s

instructions on remand was for the trial court to reopen the hearing on custody to

receive further evidence and issue a new custody order. This hearing remains pending

and will necessarily result in a new custody order superseding the July 27 Entry. It has

been the position of this court that “temporary custody orders are interlocutory in nature

and generally not final and appealable.” Welty v. Welty, 11th Dist. Ashtabula Nos.

2007-A-0013 and 2007-A-0015, 2007-Ohio-5217, ¶ 21, quoting Keyerleber v.

Keyerleber, 11th Dist. Ashtabula No. 2004-A-0040, 2005-Ohio-60, ¶ 2; Brooks v.

Brooks, 117 Ohio App.3d 19, 21-22, 689 N.E.2d 987 (10th Dist.1996).

{¶9} Jennifer also counters that the July 27 Entry is a final order inasmuch as it

is an order affecting a substantial right made in a special proceeding pursuant to R.C.

2505.02(B)(2). Assuming, arguendo, the July 27 Entry satisfies R.C. 2505.02(B)(2),

Mark correctly notes that the Entry does not include the “no just reason for delay”

language required by Civil Rule 54(B) for this court to exercise jurisdiction. Zhong v.

Liang, 8th Dist. Cuyahoga No. 109027, 2020-Ohio-3724, ¶ 18 (“we must follow the Ohio

Supreme Court’s precedent from Gen. Acc. Ins. Co. [v. Ins. Co. of N. Am., 44 Ohio

St.3d 17, 540 N.E.2d 266 (1989)] and apply Civ.R. 54(B) to orders that are otherwise

‘final’ under R.C. 2505.02(B)(2)”); Elia v. Fisherman’s Cove, Inc., 11th Dist. Trumbull

No. 2010-T-0036, 2010-Ohio-2522, ¶ 7 (“an order entered [in a special proceeding] that

affects a substantial right is a final appealable order as long as the requisite Civ.R.

3 54(B) determination is made”).

{¶10} Additionally, we note that the issue of child support remains pending on

remand and that courts have held that a custody determination which leaves the issue

of support pending is not final. Carpenter v. Carpenter, 12th Dist. Butler No. CA2013-

05-083, 2013-Ohio-4980, ¶ 13 (“an order related to custody does not affect a substantial

right until there is both an order determining custody and a support order based on that

order”); Brown v. Dean, 11th Dist. Geauga No. 2015-G-0034, 2016-Ohio-1360, ¶ 21.

{¶11} For the foregoing reasons, Mark’s Motion to Dismiss the Appeal for Lack

of Jurisdiction is granted, and the present appeal is dismissed.

TIMOTHY P. CANNON, P.J.,

THOMAS R. WRIGHT, J.,

concur.