Fetzer v. Fetzer

2016 Ohio 6968

• Court: Ohio Court of Appeals
• Decided: September 26, 2016
• Docket: 15AP0027
• Status: Published

Opinion

[Cite as Fetzer v. Fetzer, 2016-Ohio-6968.]

STATE OF OHIO ) IN THE COURT OF APPEALS )ss: NINTH JUDICIAL DISTRICT COUNTY OF WAYNE )

DEBORAH FETZER C.A. No. 15AP0027

Appellee

v. APPEAL FROM JUDGMENT ENTERED IN THE RYAN FETZER COURT OF COMMON PLEAS COUNTY OF WAYNE, OHIO Appellant CASE No. 10-DR-0382

DECISION AND JOURNAL ENTRY

Dated: September 26, 2016

HENSAL, Judge.

{¶1} Ryan Fetzer has attempted to appeal an order of the Wayne County Court of

Common Pleas, Domestic Relations Division. For the following reasons, we dismiss the appeal.

I.

{¶2} Mr. Fetzer married Deborah Fetzer in 2000. In 2010, Wife filed a complaint for

divorce. The trial court issued a decree in June 2012. On appeal, this Court sustained three of

Husband’s assignments of error and remanded the matter to the trial court. Fetzer v. Fetzer, 9th

Dist. Wayne No. 12CA0036, 2014-Ohio-747. On remand, one of the issues was the value of

Husband’s business. According to a magistrate, at a pretrial hearing in August 2014, Husband

said that he wanted to have the business evaluated. In November 2014, Wife moved for attorney

fees, alleging that Husband had not even started the evaluation process yet and that, because of

the delay, she had incurred significant fees. Following a hearing, the court granted Wife’s 2

motion, ordering Husband to pay Wife $3,660 for her attorney fees before the next hearing. Mr.

Fetzer has attempted to appeal the trial court’s order.

II.

JURISDICTION

{¶3} This Court is obligated to raise questions related to our jurisdiction sua sponte.

Whitaker-Merrell Co. v. Geupel Constr. Co., Inc., 29 Ohio St.2d 184, 186 (1972). This Court

has jurisdiction to hear appeals only from final appealable judgments and orders. Ohio

Constitution, Article IV, Section 3(B)(2); R.C. 2501.02. In the absence of a final appealable

judgment or order, this Court must dismiss the appeal. Lava Landscaping, Inc. v. Rayco Mfg.,

Inc., 9th Dist. Medina No. 2930-M, 2000 WL 109108, *1 (Jan. 26, 2000).

{¶4} Revised Code Section 2505.02(B)(2) provides that the definition of a “final order”

includes “[a]n order that affects a substantial right made in a special proceeding * * *.” Divorce

actions are special proceedings. State ex rel. Papp v. James, 69 Ohio St.3d 373, 379 (1994).

Accordingly, the trial court’s order in this case qualifies as a final order if it “affect[ed] a

substantial right.” R.C. 2505.02(B)(2). An order affects a substantial right if “appropriate relief

cannot be obtained in an appeal from final judgment.” Denkewalter v. Denkewalter, 9th Dist.

Medina No. 13CA0082-M, 2015-Ohio-3171, ¶ 8.

{¶5} Upon review of the record, we conclude that meaningful review of the attorney

fee award in this case can be achieved after appeal from the final order as to all issues. The

attorney fee award does not irrevocably deprive Husband of the attorney fee payment. This is

because the trial court could consider the payment in its determination of the division of the

parties’ assets, which has not yet been completed, and in its review of the attorney fees

previously ordered in the decree, which we concluded were premature to review in Husband’s 3

previous appeal from the decree. Fetzer I, 2014-Ohio-747, at ¶ 63. Accordingly, Husband’s

payment of the attorney fees would not render moot a subsequent appeal from the final

determination on this issue. Compare Dillon v. Big Trees, Inc., 9th Dist. Summit No. 23831,

2008-Ohio-3264, ¶ 13 (“[A] trial court’s order granting Rule 11 sanctions against an attorney

precludes a meaningful and effective remedy on appeal after final judgment.”); see also

Galbreath v. Galbreath, 10th Dist. Franklin No. 89AP-103, 1989 WL 65389, *4 (June 13, 1989)

(concluding that an order awarding attorney fees during the pendency of the case did not affect a

substantial right because “necessary adjustments can be made by the trial court before final

judgment, even if the award be paid.”).

{¶6} Even if we reviewed the trial court’s order under Section 2505.02(B)(4), we

would reach the same conclusion because an order that grants or denies a provisional remedy is

not a final order unless “[t]he appealing party would not be afforded a meaningful or effective

remedy by an appeal following final judgment[.]” R.C. 2505.02(B)(4)(b). We, therefore,

conclude that the trial court’s order is not a final order under Section 2505.02(B) and that

Husband’s attempted appeal must be dismissed.

III.

{¶7} For the above reasons, we conclude that the trial court’s order is not final and

appealable. Accordingly, we are without jurisdiction to consider the attempted appeal.

Appeal dismissed.

Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is 4

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

Costs taxed to Appellant.

JENNIFER HENSAL FOR THE COURT

MOORE, J. CONCURS.

CARR, P. J. DISSENTING.

{¶8} I respectfully dissent as I see the attorney fees awarded in this case more in the

nature of a sanction. Wife moved for attorney fees based on Mr. Fetzer's failure to obtain a

business evaluation. The trial court granted that motion and ordered Mr. Fetzer to pay the

attorney fees before the next hearing. "A sanctions order, such as the one at issue in this case,

requires an attorney to satisfy the sanction immediately. If the order is not appealable at that

time, the attorney is left in the unenviable position of either satisfying the order, thereby mooting

any appeal, or being held in contempt of court for failure to do so." Dillon v. Big Trees, Inc., 9th

Dist. Summit No. 23831, 2008-Ohio-3264, ¶ 13. Consequently, as a sanction, the order would

be immediately appealable.

APPEARANCES:

ROSANNE K. SHRINER, Attorney at Law, for Appellant.

RENEE J. JACKWOOD, Attorney at Law, for Appellee.