[Cite as Griffin v. Griffin, 2017-Ohio-8450.] IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO
AUDREY N. GRIFFIN, : APPEAL NO. C-170026 TRIAL NO. DR-1501954 Plaintiff-Appellee, :
vs. : O P I N I O N. JAMES A. GRIFFIN, :
Defendant-Appellant. :
Appeal From: Hamilton County Court of Common Pleas, Domestic Relations Division
Judgment Appealed From Is: Appeal Dismissed
Date of Judgment Entry on Appeal: November 8, 2017
Zachary D. Smith LLC and Zachary D. Smith for Plaintiff-Appellee,
Family First Law Offices and Mark Eppley, for Defendant-Appellant. OHIO FIRST DISTRICT COURT OF APPEALS
D ETERS , Judge.
{¶1} Defendant-appellant James A. Griffin (husband) appeals the order of the
domestic relations court which sustained plaintiff-appellee Audrey N. Griffin’s (wife)
objection, vacated the magistrate’s decision granting husband’s motion to dismiss her
complaint and amended complaint for divorce for lack of subject-matter jurisdiction,
and remanded the matter to the magistrate for further proceedings. We dismiss
husband’s appeal because the order does not qualify as a final, appealable order under
R.C. 2505.02(B).
Factual Background
{¶2} On October 28, 2015, wife filed a complaint for divorce. In the
complaint, she alleged she had been a resident of Ohio for 180 days and a resident of
Hamilton County for 90 days. On December 9, 2015, husband filed an answer and a
counterclaim for divorce. In his answer, husband asserted that wife’s complaint should
be dismissed because she did not meet the residency requirements set forth in R.C.
3105.03.
{¶3} On December 28, 2015, wife filed an amended complaint for divorce. On
January 28, 2016, husband filed a motion to dismiss the complaint and amended
complaint for divorce for lack of subject-matter jurisdiction pursuant to Civ.R. 12(B)(1),
asserting that wife had failed to meet the minimum residency requirements set forth in
R.C. 3105.03. A hearing on the motion to dismiss was scheduled for August 30, 2016,
before a magistrate.
{¶4} On August 23, 2016, husband filed a motion to continue the hearing due
to his active military service. Six days later, on August 29, 2016, husband filed a
motion to stay the proceedings based on the Service Members Civil Relief Act. On
August 30, 2016, a magistrate held a hearing on the pending motions. Husband was
2 OHIO FIRST DISTRICT COURT OF APPEALS
not present, but he was represented by counsel. Shortly thereafter, the magistrate
issued a written decision with findings of fact and conclusions of law. In his findings of
fact, the magistrate denied husband’s motions for a continuance and a stay. In his
conclusions of law, the magistrate granted husband’s motion to dismiss for lack of
subject-matter jurisdiction, concluding that wife had not been physically located in the
state of Ohio for the statutory time period to permit her to invoke the jurisdiction of the
court. The magistrate vacated the temporary orders of support and stated that his
resolution of the jurisdictional motion had rendered his decision on the other motions
moot.
{¶5} Wife timely objected to the magistrate’s decision granting husband’s
motion to dismiss her complaint and amended complaint for lack of subject-matter
jurisdiction. Husband did not file any cross objection. The trial court determined that
wife had physically resided in Ohio for 94 days, but because she had never voluntarily
changed her domicile, she remained a resident of Ohio while “living with Husband on
military orders in Florida and Tennessee.” The trial court sustained wife’s objection,
vacated the magistrate’s decision, and remanded the matter to the magistrate for
further proceedings.
Analysis
{¶6} Husband appeals, raising two assignments of error. Before we can
address husband’s assignments of error, we must determine if we have jurisdiction to
review the order he has appealed from. Ohio appellate courts have jurisdiction “to
review and affirm, modify, or reverse final orders.” Article IV, Section 3(B)(2), Ohio
Constitution. If a party appeals from an order that is not final and appealable, an
appellate court lacks jurisdiction to review the matter and must dismiss the appeal.
State ex rel. White v. Cuyahoga Metro. Hous. Auth., 79 Ohio St.3d 543, 544, 684
3 OHIO FIRST DISTRICT COURT OF APPEALS
N.E.2d 72 (1997); Gen. Acc. Ins. Co. v. Ins. Co. of N. Am., 44 Ohio St.3d 17, 20, 540
N.E.2d 266 (1989).
{¶7} For a judgment to be final and appealable, it must satisfy R.C.
2505.02(B) and, if applicable, Civ.R. 54(B). Gen. Acc. Ins. Co. at 20. In relevant part,
R.C. 2505.02(B) defines a final order as:
(1) An order that affects a substantial right in an action that in effect
determines the action and prevents a judgment;
(2) An order that affects a substantial right made in a special proceeding
or upon a summary application in an action after judgment;
(4) An order that grants or denies a provisional remedy and to which
both the following apply:
(a) The order in effect determines that 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.
(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.
{¶8} Generally, an order denying a motion to dismiss is not a final order
under R.C. 2505.02(B)(1), because the order does not affect a substantial right or
determine the action and prevent a judgment. State Auto Mut. Ins. Co. v. Titanium
Metals Corp., 108 Ohio St.3d 540, 2006-Ohio-1713, 844 N.E.2d 1199, ¶ 8; Polikoff v.
Adam, 67 Ohio St.3d 100, 103, 616 N.E.2d 213 (1993); Ferrell v. Standard Oil Co. of
Ohio, 11 Ohio St.3d 169, 464 N.E.2d 550 (1984); In re R.A.W., 10th Dist. Franklin
No.11AP-1072, 2012-Ohio-4832, ¶ 12.
4 OHIO FIRST DISTRICT COURT OF APPEALS
{¶9} This general rule has been extended to orders denying a motion to
dismiss for lack of subject-matter jurisdiction, because the absence of an immediate
appeal does not foreclose appropriate relief in the future and does not determine the
merits of the underlying claims. See Matteo v. Principe, 8th Dist. Cuyahoga No. 92894,
2010-Ohio-1204, ¶ 19-23; Lonigro v. Lonigro, 55 Ohio App.3d 30, 31, 561 N.E.2d 573
(2d Dist.1989); Paulson v. Seifert, 2d Dist. Greene No. 90 CA 115, 1993 WL265416, *1
(July 16, 1993).
{¶10} Thus, the order in this case, which sustained wife’s objection, vacated
the magistrate’s decision granting husband’s motion to dismiss wife’s complaint and
amended complaint for divorce for lack of subject-matter jurisdiction, and remanded
the matter to the magistrate for further proceedings, is not a final order under R.C.
2505.02(B)(1).
{¶11} We next determine if the order satisfies R.C. 2505.02(B)(2), which
defines as final “an order that affects a substantial right made in a special proceeding or
upon a summary application in an action after judgment.” A divorce proceeding
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[Cite as Griffin v. Griffin, 2017-Ohio-8450.] IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO
AUDREY N. GRIFFIN, : APPEAL NO. C-170026 TRIAL NO. DR-1501954 Plaintiff-Appellee, :
vs. : O P I N I O N. JAMES A. GRIFFIN, :
Defendant-Appellant. :
Appeal From: Hamilton County Court of Common Pleas, Domestic Relations Division
Judgment Appealed From Is: Appeal Dismissed
Date of Judgment Entry on Appeal: November 8, 2017
Zachary D. Smith LLC and Zachary D. Smith for Plaintiff-Appellee,
Family First Law Offices and Mark Eppley, for Defendant-Appellant. OHIO FIRST DISTRICT COURT OF APPEALS
D ETERS , Judge.
{¶1} Defendant-appellant James A. Griffin (husband) appeals the order of the
domestic relations court which sustained plaintiff-appellee Audrey N. Griffin’s (wife)
objection, vacated the magistrate’s decision granting husband’s motion to dismiss her
complaint and amended complaint for divorce for lack of subject-matter jurisdiction,
and remanded the matter to the magistrate for further proceedings. We dismiss
husband’s appeal because the order does not qualify as a final, appealable order under
R.C. 2505.02(B).
Factual Background
{¶2} On October 28, 2015, wife filed a complaint for divorce. In the
complaint, she alleged she had been a resident of Ohio for 180 days and a resident of
Hamilton County for 90 days. On December 9, 2015, husband filed an answer and a
counterclaim for divorce. In his answer, husband asserted that wife’s complaint should
be dismissed because she did not meet the residency requirements set forth in R.C.
3105.03.
{¶3} On December 28, 2015, wife filed an amended complaint for divorce. On
January 28, 2016, husband filed a motion to dismiss the complaint and amended
complaint for divorce for lack of subject-matter jurisdiction pursuant to Civ.R. 12(B)(1),
asserting that wife had failed to meet the minimum residency requirements set forth in
R.C. 3105.03. A hearing on the motion to dismiss was scheduled for August 30, 2016,
before a magistrate.
{¶4} On August 23, 2016, husband filed a motion to continue the hearing due
to his active military service. Six days later, on August 29, 2016, husband filed a
motion to stay the proceedings based on the Service Members Civil Relief Act. On
August 30, 2016, a magistrate held a hearing on the pending motions. Husband was
2 OHIO FIRST DISTRICT COURT OF APPEALS
not present, but he was represented by counsel. Shortly thereafter, the magistrate
issued a written decision with findings of fact and conclusions of law. In his findings of
fact, the magistrate denied husband’s motions for a continuance and a stay. In his
conclusions of law, the magistrate granted husband’s motion to dismiss for lack of
subject-matter jurisdiction, concluding that wife had not been physically located in the
state of Ohio for the statutory time period to permit her to invoke the jurisdiction of the
court. The magistrate vacated the temporary orders of support and stated that his
resolution of the jurisdictional motion had rendered his decision on the other motions
moot.
{¶5} Wife timely objected to the magistrate’s decision granting husband’s
motion to dismiss her complaint and amended complaint for lack of subject-matter
jurisdiction. Husband did not file any cross objection. The trial court determined that
wife had physically resided in Ohio for 94 days, but because she had never voluntarily
changed her domicile, she remained a resident of Ohio while “living with Husband on
military orders in Florida and Tennessee.” The trial court sustained wife’s objection,
vacated the magistrate’s decision, and remanded the matter to the magistrate for
further proceedings.
Analysis
{¶6} Husband appeals, raising two assignments of error. Before we can
address husband’s assignments of error, we must determine if we have jurisdiction to
review the order he has appealed from. Ohio appellate courts have jurisdiction “to
review and affirm, modify, or reverse final orders.” Article IV, Section 3(B)(2), Ohio
Constitution. If a party appeals from an order that is not final and appealable, an
appellate court lacks jurisdiction to review the matter and must dismiss the appeal.
State ex rel. White v. Cuyahoga Metro. Hous. Auth., 79 Ohio St.3d 543, 544, 684
3 OHIO FIRST DISTRICT COURT OF APPEALS
N.E.2d 72 (1997); Gen. Acc. Ins. Co. v. Ins. Co. of N. Am., 44 Ohio St.3d 17, 20, 540
N.E.2d 266 (1989).
{¶7} For a judgment to be final and appealable, it must satisfy R.C.
2505.02(B) and, if applicable, Civ.R. 54(B). Gen. Acc. Ins. Co. at 20. In relevant part,
R.C. 2505.02(B) defines a final order as:
(1) An order that affects a substantial right in an action that in effect
determines the action and prevents a judgment;
(2) An order that affects a substantial right made in a special proceeding
or upon a summary application in an action after judgment;
(4) An order that grants or denies a provisional remedy and to which
both the following apply:
(a) The order in effect determines that 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.
(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.
{¶8} Generally, an order denying a motion to dismiss is not a final order
under R.C. 2505.02(B)(1), because the order does not affect a substantial right or
determine the action and prevent a judgment. State Auto Mut. Ins. Co. v. Titanium
Metals Corp., 108 Ohio St.3d 540, 2006-Ohio-1713, 844 N.E.2d 1199, ¶ 8; Polikoff v.
Adam, 67 Ohio St.3d 100, 103, 616 N.E.2d 213 (1993); Ferrell v. Standard Oil Co. of
Ohio, 11 Ohio St.3d 169, 464 N.E.2d 550 (1984); In re R.A.W., 10th Dist. Franklin
No.11AP-1072, 2012-Ohio-4832, ¶ 12.
4 OHIO FIRST DISTRICT COURT OF APPEALS
{¶9} This general rule has been extended to orders denying a motion to
dismiss for lack of subject-matter jurisdiction, because the absence of an immediate
appeal does not foreclose appropriate relief in the future and does not determine the
merits of the underlying claims. See Matteo v. Principe, 8th Dist. Cuyahoga No. 92894,
2010-Ohio-1204, ¶ 19-23; Lonigro v. Lonigro, 55 Ohio App.3d 30, 31, 561 N.E.2d 573
(2d Dist.1989); Paulson v. Seifert, 2d Dist. Greene No. 90 CA 115, 1993 WL265416, *1
(July 16, 1993).
{¶10} Thus, the order in this case, which sustained wife’s objection, vacated
the magistrate’s decision granting husband’s motion to dismiss wife’s complaint and
amended complaint for divorce for lack of subject-matter jurisdiction, and remanded
the matter to the magistrate for further proceedings, is not a final order under R.C.
2505.02(B)(1).
{¶11} We next determine if the order satisfies R.C. 2505.02(B)(2), which
defines as final “an order that affects a substantial right made in a special proceeding or
upon a summary application in an action after judgment.” A divorce proceeding
qualifies as a “special proceeding” because divorce actions were not recognized at
common law or equity and were legislatively provided for in R.C. Chapter 3105. See
Wilhelm-Kissinger v. Kissinger, 129 Ohio St.3d 90, 2011-Ohio-2317, 950 N.E.2d 516, ¶
6; State ex rel. Papp v. James, 69 Ohio St.3d 373, 379, 632 N.E.2d 889 (1994). The
term “substantial right” is defined as “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). Here, the parties have a
substantial right under R.C. 3105.03 to have their dispute considered by a court of
competent jurisdiction. See Copenhaver v. Copenhaver, 4th Dist. Athens No.
05CA16, 2005-Ohio-4322, ¶ 5. The Ohio Supreme Court has held that “[a]n order
5 OHIO FIRST DISTRICT COURT OF APPEALS
which affects a substantial right has been perceived to be one which, if not
immediately appealable, would foreclose appropriate relief in the future.” Bell v. Mt.
Sinai Med. Ctr., 67 Ohio St.3d 60, 63, 616 N.E.2d 181 (1993); see also Wilhelm–
Kissinger at ¶ 7.
{¶12} In Rijo v Rijo, 1st Dist. Hamilton No. C-93070, 1995 WL 35730, *1 (Jan.
31, 1995) fn.1, this court held that the trial court’s denial of a motion to dismiss a
divorce complaint for lack of subject-matter jurisdiction qualified as a final appealable
order under R.C. 2505.02(B)(2) because it affected a substantial right in a special
proceeding. We recognized that the Second Appellate District had reached the opposite
conclusion in Lonigro, 55 Ohio App.3d at 31, 561 N.E.2d 573. We purported to
distinguish the Lonigro case on the basis that it had “applied [the test in] Amato [v.
General Motors Corp., 67 Ohio St.2d 253, 423 N.E.2d 452 (1987)] to hold that an order
denying a motion to dismiss for lack of subject-matter jurisdiction over a divorce
complaint did not constitute an order ‘made in a special proceeding,’ and therefore, was
not a final order for purposes of R.C. 2505.02.” Rijo at fn.1.
{¶13} After reviewing the case law, we conclude that Rijo was wrongly
decided. In Rijo, we provided no analysis to support our conclusion that an order
denying a motion to dismiss a divorce complaint for lack of subject-matter jurisdiction
affected a substantial right, and our reasoning for distinguishing Lonigro on this basis
was faulty. Our conclusion in Rijo, moreover, directly conflicts with other appellate
districts. Those districts have followed the Lonigro court’s reasoning that the denial of a
motion to dismiss a divorce complaint for lack of subject-matter jurisdiction does not
“affect” a substantial right because the underlying reasons for the denial continue
undisturbed to the final judgment, permitting prosecution of the error, if any, on final
judgment. See Copenhaver at ¶ 5; Dave v. Dave, 11th Dist. Portage No. 2016-P-0020,
6 OHIO FIRST DISTRICT COURT OF APPEALS
2016-Ohio-5185, ¶ 11-15 (following Copenhaver); see also In re R.A.W, 10th Dist.
Franklin No. 11AP-1072, 2012-Ohio-4832, ¶ 12; Haskins v. Haskins, 104 Ohio App.3d
58, 61, 660 N.E.2d 1260 (2d Dist.1995). We overrule Rijo and join those appellate
districts that hold that an order denying a motion to dismiss a divorce complaint for
lack of subject-matter jurisdiction is not a final appealable order under R.C.
2505.02(B)(2).
{¶14} Therefore, the trial court’s order in this case, which sustained wife’s
objection to the magistrate’s decision, vacated the magistrate’s decision granting
husband’s motion to dismiss wife’s complaint and amended complaint for divorce for
lack of subject-matter jurisdiction, and remanded the matter to the magistrate for
further proceedings, is not a final order under R.C. 2505.02(B)(2).
{¶15} Finally, we must determine if the order satisfies R.C. 2505.02(B)(4).
To qualify as a final, appealable order under R.C. 2505.02(B)(4), the order being
appealed must satisfy three statutory requirements: (1) the order must grant or deny
a “provisional remedy,” as that term is defined in the statute; (2) it must in effect
determine the action with respect to the provisional remedy; and (3) the appealing
party must not be afforded a meaningful review of the decision if it had to wait for a
final judgment as to all proceedings in the action. State v. Anderson, 138 Ohio St.3d
264, 2014-Ohio-542, 6 N.E.3d 23, ¶ 43.
{¶16} We need not determine if the order in this case grants or denies a
provisional remedy because it fails to satisfy R.C. 2505.02(B)(4)’s third requirement
that the appealing party lacks a meaningful remedy on appeal following final
judgment. See Gardner v. Ford, 1st Dist. Hamilton No. C-150018, 2015-Ohio-4242,
¶ 6 (concluding that the denial of a motion to dismiss for lack of personal jurisdiction
failed to satisfy R.C. 2505.02(B)(4)(b)). Therefore, the order is not a final, appealable
7 OHIO FIRST DISTRICT COURT OF APPEALS
order under R.C. 2505.02(B)(4). In the absence of a final appealable order, we must
dismiss husband’s appeal. Therefore, the appeal is dismissed. Appeal dismissed.
MOCK, P.J., and CUNNINGHAM, J., concur.
Please note: The court has recorded its own entry this date.