Gale v. Gale

2019 Ohio 5055

• Court: Ohio Court of Appeals
• Decided: December 9, 2019
• Docket: 2019-L-093
• Status: Published

Opinion

[Cite as Gale v. Gale, 2019-Ohio-5055.]

IN THE COURT OF APPEALS

ELEVENTH APPELLATE DISTRICT

LAKE COUNTY, OHIO

IN RE THE MARRIAGE OF: : MEMORANDUM OPINION

LISA M. GALE, : CASE NO. 2019-L-093 Petitioner-Appellant, :

- vs - :

ROBERT J. GALE, :

Petitioner-Appellee. :

Civil Appeal from the Lake County Court of Common Pleas, Domestic Relations Division, Case No. 2015 DI 000569.

Judgment: Appeal dismissed.

R. Russell Kubyn, Kubyn & Ghaster, 8373 Mentor Avenue, Mentor, OH 44060 (For Petitioner-Appellant).

Edwin V. Hargate, 18519 Underwood Avenue, Cleveland, OH 44119 (For Petitioner- Appellee).

MARY JANE TRAPP, J.

{¶1} Appellant, Lisa M. Gale, through counsel, filed an appeal from an August

26, 2019 entry, in which the Lake County Court of Common Pleas, Domestic Relations

Division, “finds the second amended shared parenting plan drafted by the guardian ad

litem * * * is to be prepared and circulated * * * to counsel for the signature of the parties

on the plan.” The trial court further stated that a “judgment entry adopting said plan shall

be provided as well.” {¶2} On October 16, 2019, this court issued an entry indicating that there did not

appear to be a final appealable order and instructing appellant to show cause why the

appeal should not be dismissed. To date, no response has been filed.

{¶3} Initially, we must determine whether there is a final, appealable order, as

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.

{¶4} R.C. 2505.02(B) defines a final order as one of the following:

{¶5} “An order is a final order that may be reviewed, affirmed, modified, or

reversed, with or without retrial, when it is one of the following:

{¶6} “(1) An order that affects a substantial right in an action that in effect

determines the action and prevents a judgment;

{¶7} “(2) An order that affects a substantial right made in a special proceeding or

upon a summary application in an action after judgment;

{¶8} “(3) An order that vacates or sets aside a judgment or grants a new trial;

2 {¶9} “(4) An order that grants or denies a provisional remedy and to which both

of the following apply:

{¶10} “(a) The order in effect determines the action with respect to the provisional

remedy and prevents a judgment in the action in favor of the appealing party with respect

to the provisional remedy.

{¶11} “(b) The appealing party would not be afforded a meaningful or effective

remedy by an appeal following final judgment as to all proceedings, issues, claims, and

parties in the action.

{¶12} “(5) An order that determines that an action may or may not be maintained

as a class action;

{¶13} “(6) An order determining the constitutionality of any changes to the Revised

Code * * *;

{¶14} “(7) An order in an appropriation proceeding * * *.”

{¶15} Here, the August 26, 2019 entry does not fit within any of the categories for

being a final order pursuant to R.C. 2505.02. The entry leaves issues unresolved and

contemplates that further action must be taken. Appellant will have a meaningful and

effective remedy by means of an appeal once a final judgment is reached.

{¶16} Based upon the foregoing analysis, the judgment of the trial court is not a

final appealable order, and this appeal is dismissed, sua sponte, for lack of jurisdiction.

{¶17} Appeal dismissed.

THOMAS R. WRIGHT, P.J., MATT LYNCH, J., concur.