Gatlin v. Harmon

2021 Ohio 1852

• Court: Ohio Court of Appeals
• Decided: June 1, 2021
• Docket: 19CA011597
• Status: Published

Opinion

[Cite as Gatlin v. Harmon, 2021-Ohio-1852.]

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

MEREDITH GATLIN C.A. No. 19CA011597

Appellant

v. APPEAL FROM JUDGMENT ENTERED IN THE COY HARMON COURT OF COMMON PLEAS COUNTY OF LORAIN, OHIO Appellee CASE No. 17JG52012

DECISION AND JOURNAL ENTRY

Dated: June 1, 2021

TEODOSIO, Presiding Judge.

{¶1} Plaintiff-Appellant, Meredith Gatlin (“Mother”), appeals from the judgment of the

Lorain County Court of Common Pleas, Juvenile Division. This Court dismiss the appeal as

untimely.

I.

{¶2} Mother and Defendant-Appellee, Coy Harmon (“Father”), are the parents of M.H.,

born in July 2010, and C.H., born in October 2014. The two never married, but they resided

together for most of the children’s lives. When their relationship ended in February 2017, Mother

and the children moved out of the home they had shared with Father.

{¶3} Several months later, Mother brought an action against Father in Juvenile Court.

She sought an allocation of parental rights and responsibilities, an order for retroactive child

support, and a current child support order. Additionally, she sought to hold Father liable for her

attorney fees and the costs of litigating the action. Father answered Mother’s complaint and filed 2

a counterclaim. In his counterclaim, Father likewise sought an allocation of parental rights and

responsibilities and a support order.

{¶4} The parties conferred and reached an agreement on temporary support and

visitation. Pursuant to that agreement, the trial court set forth a parenting time schedule and

ordered Father to pay $500 per month in child support beginning June 1, 2017. The court reserved

the remaining issues, including the issue of retroactive child support, for the final hearing. Several

months then elapsed, during which Father failed to make a single support payment.

{¶5} Mother filed a motion to show cause, seeking to hold Father in contempt for failing

to comply with the court’s order for temporary support. A magistrate heard her motion and issued

a decision after the hearing. In the decision, the magistrate found Father in contempt, sentenced

him to thirty days in jail, and set forth his purge conditions. The magistrate also ordered him to

reimburse Mother for the attorney fees she had expended litigating her motion to show cause.

Upon review, the trial court adopted the magistrate’s decision and ordered Father to appear for

sentencing in the event he failed to meet his purge conditions. Yet, the sentencing hearing was

ultimately postponed numerous times while the underlying claims in the suit proceeded to trial.

{¶6} The trial court held a trial at which the parties reached an agreement regarding

custody and companionship. On May 22, 2018, the trial court issued a judgment entry strictly on

those issues, naming Mother the children’s sole residential parent and legal custodian and setting

forth a companionship schedule for Father. The court’s judgment entry did not address the issues

of retroactive or current child support, both of which had been contested at the trial. The court

indicated that it would decide those issues by separate judgment entry.

{¶7} Before the trial court issued a separate entry on support, it issued several entries

related to Father’s contempt. In two of those entries, dated August 6, 2018, and September 21, 3

2018, the court indicated that it had held a sentencing hearing on Father’s contempt and found that

he had “failed to purge his contempt as previously ordered.” The court imposed Father’s

previously suspended sentence of thirty days in jail and set forth the date upon which he had to

report to the jail. The court indicated that his sentence would be suspended or vacated if, prior to

that date, he paid child support arrears in a designated amount. Despite the court’s orders and

Father’s continued failure to pay, the court postponed his reporting date several more times.

{¶8} On May 31, 2019, the trial court issued a judgment entry on the claims for

retroactive and current child support. The court largely denied Mother’s request for retroactive

support, finding that the parties had shared expenses since the birth of their first child. It limited

its award of retroactive support to the period of time between when Mother and the children left

Father to the time when the court issued its temporary orders. Regarding current support, the court

determined the amounts of child support Father owed over the course of the litigation and going

forward. It also ordered the parties to share equally in any court costs and to be responsible for

their own attorney fees.

{¶9} Mother did not immediately appeal from the trial court’s May 31st judgment entry.

Instead, nearly three months later, she filed a “motion for clarification.” In her motion, she noted

that the trial court’s May 31st entry did not address Father’s pending contempt. She argued that

the court either had to amend its entry to address “one or more of the outstanding claims * * *, to

wit: [Father’s] contempt, [his] failure to purge his contempt, [his] failure to pay attorney fees [with

respect to the contempt], and the sentencing of [Father]” or declare by separate entry that “there

[was] no just cause for delay” regarding the May 31st entry.

{¶10} A status hearing on Father’s contempt was set to occur the same day that Mother

filed her motion for clarification, but the hearing was continued at Father’s request. On November 4

20, 2019, following the rescheduled hearing, the court issued another order on Father’s contempt.

The order indicated that Father previously had been sentenced to jail and had been given additional

time to purge his contempt, but still had not done so. The order set forth Father’s arrearages and

a new date by which he had to purge his contempt or report to jail. It also instructed Father to pay

Mother’s attorney fees on the contempt “as previously ordered[.]” After the court filed its

November 20th entry, Mother appealed from the May 31, 2019 judgment entry on child support.

{¶11} Mother now appeals from the trial court’s May 31st judgment entry and raises one

assignment of error for our review.

II.

ASSIGNMENT OF ERROR

THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT DENIED MOTHER RETROACTIVE CHILD SUPPORT PURSUANT TO ORC §3111.15 AND THE TRIAL COURT’S DETERMINATION THAT FATHER HAS SATISFIED HIS RETROACTIVE CHILD SUPPORT OBLIGATION WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.

{¶12} In her sole assignment of error, Mother challenges various aspects of the trial

court’s May 31, 2019 judgment entry on child support. Because she has not timely appealed from

the court’s judgment, this Court lacks jurisdiction to hear the merits of her argument.

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

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

the exceptions set forth in App.R. 4(B) applies, a party who wishes to appeal from a final order or

judgment must file his or her notice of appeal within thirty days of that order or judgment. App.R.

4(A). Accord State v. Lovett, 9th Dist. Summit No. 26779, 2013-Ohio-3515, ¶ 6. “[A]n untimely

notice of appeal does not invoke this Court’s jurisdiction.” BankUnited v. Klug, 9th Dist. Lorain

No. 16CA010923, 2016-Ohio-5769, ¶ 12. Consequently, this Court has no choice but to dismiss 5

an untimely appeal. Metro. Bank & Trust Co. v. Roth, 9th Dist. Summit No. 21174, 2003-Ohio-

1138, ¶ 15.

{¶14} Mother did not file her notice of appeal within thirty days of the trial court’s May

31, 2019 judgment entry. In both a show cause response that she filed on appeal and her appellate

brief, she has claimed that the court’s May 31st entry did not become final and appealable until

the court issued its November 20, 2019 entry. That is because the May 31st entry did not resolve

the issue of Father’s contempt. According to Mother, “[o]nce [Father was] sentenced on the

contempt, all outstanding claims and issues were resolved, and the May 31, 2019 decision became

a final appealable order * * *.”

{¶15} “Pursuant to R.C. 2505.02(B)(2), an order is a final, appealable order when it

‘affects a substantial right made in a special proceeding.’” In re Adoption of Y.E.F., Slip Opinion

No. 2020-Ohio-6785, ¶ 8, quoting R.C. 2505.02(B)(2). “Juvenile court proceedings under R.C.

Chapter 2151 are special statutory proceedings.” In re A.P., 196 Ohio App.3d 500, 2011-Ohio-

5998, ¶ 7 (9th Dist.). Accord State ex rel. Fowler v. Smith, 68 Ohio St.3d 357, 360 (1994)

(“[P]roceedings in the juvenile division, including parentage actions, are special statutory

proceedings * * *.”). A “substantial right” is “a right that the United States Constitution, the Ohio

Constitution, a statute, the common law, or a rule of procedure entitles a person to enforce or

protect.” R.C. 2505.02(A)(1). A court’s order in a parentage action affects a substantial right

when “‘there is (1) a judgment establishing paternity and (2) an adjudication of all support issues

raised.’” (Emphasis deleted.) Post v. Caycedo, 9th Dist. Summit No. 23123, 2006-Ohio-6750, ¶

9, quoting Sexton v. Conley, 4th Dist. Scioto No. 99 CA 2655, 2000 WL 1137463, *2 (Aug. 7,

2000). 6

{¶16} The trial court’s May 31, 2019 judgment entry was made in a special proceeding

and affected a substantial right as it disposed of all the parties’ pending support issues. See In re

A.P. at ¶ 7; Post at ¶ 9. Notably, at the time the trial court issued its May 31st entry, it had already

determined Father’s parentage and entered judgment on the custody issues by way of a separate

judgment entry. The May 31st entry also disposed of the additional prayers for relief contained in

Mother’s complaint regarding an award of costs and attorney’s fees. Father’s contempt was the

only issue not fully resolved at the time the court issued its May 31st entry.

{¶17} While Mother argues that the unresolved contempt issue prevented the May 31st

entry from being a final and appealable judgment, both the Ohio Supreme Court and this Court

have recognized that contempt is a collateral issue. See State ex rel. Special Prosecutors v. Judges,

Courts of Common Pleas, 55 Ohio St.2d 94, 97 (1978); Schmitt v. Ward, 9th Dist. Summit No.

28219, 2017-Ohio-6975, ¶ 10; Pietrangelo v. Avon Lake, 9th Dist. Lorain Nos. 15CA010804,

15CA010873, 2016-Ohio-8201, ¶ 17. Mother is not appealing from the trial court’s ruling on her

motion to show cause or any of its entries or orders regarding Father’s contempt. Compare Boston

Hts. v. Cerny, 9th Dist. Summit No. 23331, 2007-Ohio-2886, ¶ 22 (finding of contempt without

imposition of sanction is not a final order); Buck v. Buck, 103 Ohio App.3d 505, 507 (11th

Dist.1995) (failure of court to expressly determine whether appellee was guilty of contempt

rendered its contempt order non-final). Her appeal only concerns the court’s judgment on

retroactive and current child support. Both of those issues were fully addressed in the court’s May

31, 2019 judgment entry. Because Father’s contempt was a collateral matter, it did not affect the

finality of the court’s judgment on child support.

{¶18} Notably, App.R. 4(B)(5) contains an exception to the general rule that a party must

file his or her notice of appeal within thirty days of the entry being appealed. See In re B.C., 9th 7

Dist. Summit Nos. 26976, 26977, 2014-Ohio-2748, ¶ 9. The rule recognizes that a trial court may

issue partial final judgments or orders in special proceedings; that is, judgments or orders that are

final in their own respect, but do not dispose of all claims for all parties or contain Civ.R. 54(B)

language. See In re H.F., 120 Ohio St.3d 499, 2008-Ohio-6810, ¶ 11-12. The rule provides that

an appeal from a partial final judgment or order may be filed “within thirty days of entry of the

judgment or order appealed or the judgment or order that disposes of the remaining claims.”

(Emphasis added.) App.R. 4(B)(5). Thus, the rule allows a party to delay filing his or her appeal

from a qualifying partial final judgment or order until all the claims in the case have been resolved.

See id.

{¶19} Although Mother has not cited App.R. 4(B)(5), the essence of her argument is that

her appeal from the trial court’s May 31, 2019 judgment is timely because she appealed within

thirty days of the court’s November 20, 2019 entry. As noted, however, the November 20th entry

only dealt with the collateral issue of Father’s contempt. It did not “dispose[] of the remaining

claims” in the suit. App.R. 4(B)(5). Accordingly, App.R. 4(B)(5) is inapplicable.

{¶20} Mother did not file her notice of appeal within thirty days of the trial court’s May

31, 2019 judgment entry on child support. Therefore, this Court lacks jurisdiction to consider her

assignment of error and has no choice but to dismiss her attempted appeal as untimely. See App.R.

4(A); Metro. Bank & Trust Co., 2003-Ohio-1138, at ¶ 15.

III.

{¶21} Because Mother’s notice of appeal was not timely filed, this Court cannot consider

the merits of her assignment of error. The attempted appeal is dismissed for lack of jurisdiction.

Appeal dismissed. 8

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 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.

THOMAS A. TEODOSIO FOR THE COURT

CALLAHAN, J. SUTTON, J. CONCUR.

APPEARANCES:

JAMES V. BARILLA, Attorney at Law, for Appellant.

ANTHONY R. PECORA and DOUGLAS R. HENRY, Attorneys at Law, for Appellee.