Lowe v. Compton

2025 Ohio 2646

• Court: Ohio Court of Appeals
• Decided: July 23, 2025
• Docket: 24-CAF-11-0098
• Status: Published

Opinion

[Cite as Lowe v. Compton, 2025-Ohio-2646.]

COURT OF APPEALS DELAWARE COUNTY, OHIO FIFTH APPELLATE DISTRICT

JUDGES: JONATHAN LOWE : Hon. Craig R. Baldwin, P.J. : Hon. Robert G. Montgomery, J. Plaintiff-Appellee : Hon. Kevin W. Popham, J. : -vs- : : Case No. 24-CAF-11-0098 RACHAEL COMPTON : : Defendant-Appellant : OPINION

CHARACTER OF PROCEEDING: Appeal from the Delaware County Court of Common Pleas, Domestic Relations Division, Case No. 15-02-0303 AD

JUDGMENT: Dismissed

DATE OF JUDGMENT ENTRY: July 23, 2025

APPEARANCES:

For Appellee For Appellants

JONATHAN LOWE PRO SE D.J. YOUNG, III. 19449 Northwest Parkway 15 West Winter Street Marysville, OH 43040 Delaware, OH 43015 Popham, J.,

{¶1} Appellants Rachael Compton and Z.C. appeal the October 24, 2024,

judgment entry of the Delaware County Court of Common Pleas, Domestic Relations

Division. For the reasons below, we dismiss the appeal.

Facts & Procedural History

{¶2} Appellant Rachael Compton is the mother of Z.C. (“Mother”). Appellant Z.C.

was born on November 12, 2014, and is currently ten years old. Appellee Jonathan Lowe

is the father of Z.C. (“Father). Mother and Father were never married. Mother is the sole

residential parent and legal custodian of Z.C. In March of 2021, Mother and Father

agreed that Father would have parenting time supervised by his parents due to concerns

about Father’s use of alcohol. The trial judge signed the agreement between the parties

on March 24, 2021, thus incorporating the agreement into a court order.

{¶3} In June of 2023, Father was charged by indictment with two counts of rape,

one count of gross sexual imposition, one count of aggravated menacing, and one count

of intimidation of a victim. Z.C. was not the victim in any of the charges. On March 27,

2024, a jury found father not guilty of all charges.

{¶4} In April of 2024, Father filed a motion to modify parenting time. Mother filed

a motion to terminate all Father’s visitation and to modify the supervised visitation

schedule. In June of 2024, the trial court appointed a guardian ad litem for Z.C. The

court also granted Father’s motion to conduct an in-camera interview with Z.C., to be held

at the time of the hearing on the motions. The hearing on Mother and Father’s motions

has not yet occurred. Accordingly, the in-camera interview with Z.C. has not taken place. {¶5} In August of 2024, Attorney Donald Worley filed a “Notice of Appearance,”

stating he was entering his appearance as counsel for Z.C. Mother provided Z.C.,

currently ten years old, the funds to hire Attorney Worley. Following a pretrial, the court

ordered the parties to file briefs arguing their positions as to whether Attorney Worley

should be permitted to participate in the proceedings as counsel for Z.C. The parties filed

briefs arguing their positions.

{¶6} The trial court issued a judgment entry on October 24, 2024, striking

Attorney Worley from the record as counsel from Z.C., finding Z.C. is not a party to the

case, and finding Z.C. does not need independent counsel.

{¶7} Appellants Mother and Z.C. appeal the October 24, 2024, judgment entry

of the Delaware County Court of Common Pleas, Domestic Relations Division, and assign

the following as error:

{¶8} “I. THE TRIAL COURT ERRED AS A MATTER OF LAW BY RULING THAT

Z.C. HAD NO RIGHT TO BE A PARTY.”

{¶9} “II. THE TRIAL COURT ABUSED ITS DISCRETION BY DETERMINING

THAT Z.C. HAD NO NEED FOR AN ATTORNEY WITHOUT FIRST HOLDING AN

EVIDENTIARY HEARING.”

{¶10} “III. THE TRIAL COURT ERRED AS A MATTER OF LAW BY RULING

THAT THERE IS NO STATUTORY RIGHT FOR Z.C. TO BE REPRESENTED BY LEGAL

COUNSEL.”

{¶11} “IV. THE TRIAL COURT ERRED AS A MATTER OF LAW IN FINDING

THAT Z.C. HAD NO FUNDAMENTAL OR CONSTITUTIONAL RIGHT TO COUNSEL.” {¶12} “V. THE TRIAL COURT ERRED AS A MATTER OF LAW IN FAILING TO

RECOGNIZE THAT THE EQUAL PROTECTION CLAUSES OF THE UNITED STATES

AND OHIO CONSTITUTIONS REQUIRE THAT Z.C. RECEIVE THE SAME RIGHTS TO

COUNSEL AS SIMILARLY SITUATED MINORS ELSEWHERE IN OHIO.”

Jurisdiction

{¶13} Father moved this Court to dismiss the appeal, arguing this Court lacks

jurisdiction to hear the appeal because appellants did not appeal from a final order and

because both Z.C. and Mother lack standing to pursue this appeal.

{¶14} Article IV, Section 3(B) of the Ohio Constitution establishes that courts of

appeals “have such jurisdiction as may be provided by law to review and affirm, modify,

or reverse judgments or final orders of the courts of record or inferior to the court of

appeals within the district.” Consequently, an order must be final before an appellate

court may review it. Gehm v. Timberline Post & Frame, 2007-Ohio-607, ¶ 14. If an order

is not final and appealable, an appellate court has no jurisdiction over it. Id.

{¶15} R.C. 2505.02(B) identifies the types of orders that qualify as final,

appealable orders. It states, in pertinent part,

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:

(1) An order that affects a substantial right in an action that in effect

determines the action and prevents a judgment;

(2) An order than affects a substantial right made in a special proceeding or

upon a summary application in an action after judgment … {¶16} Appellants argue the trial court’s judgment entry falls within the definition of

“final order” as provided in R.C. 2505.02(B)(2). The parties disagree as to whether this

proceeding is a “special proceeding.” While it is clear that custody proceedings, divorce

proceedings, and juvenile court proceedings are “special proceedings,” this is not a

divorce, juvenile court, or a custody proceeding. Buzard v. Triplett, 2006-Ohio-1478 (10th

Dist.); Vizzo v. Morris, 2012-Ohio-2141 (5th Dist.). It is the attempted modification of an

order from the Domestic Relations Court regarding visitation. However, we need not

decide that issue in this case because, pursuant to both R.C. 2505.02(B)(1) and (B)(2),

an order is final only if it “affects a substantial right.”

{¶17} A “[s]ubstantial 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). The Supreme Court of Ohio has held, “[a]n

order 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 (1993). To meet this requirement, an order has to be one

that “must be appealed immediately or its effect will be irreversible.” Wilhelm-Kissinger

v. Kissinger, 2011-Ohio-2317. Whether or not an order affects a substantial right is

determined by a two-prong test. Cleveland Clinic Found. v. Levin, 2008-Ohio-6197. The

order must implicate a substantial right, and, if the order is not immediately appealable,

the party will be foreclosed from obtaining appropriate relief in the future. Bell, 67 Ohio

St.3d at 63.

{¶18} Appellants argue “this case involves the substantial question of whether a

child is entitled to client-directed counsel in a parenting case when the child’s wishes conflict with the guardian ad litem’s recommendation.” Appellants attached “Exhibit A, an

excerpt of the deposition of the GAL to their appellate brief, which allegedly purports to

show a conflict between the wishes of Z.C. and the recommendation of the GAL.

Appellants argue this conflict creates standing and makes the striking of Z.C.’s counsel a

final, appealable order because Superintendence Rule 48.03 requires a GAL to

“immediately notify the court in writing … upon becoming aware that the recommendation

of the GAL differs from the wishes of the child.”

{¶19} The deposition of the GAL occurred in December of 2024, which is after the

order being appealed from in this case was issued (October 24, 2024). This Court’s

review “is limited to the record as it existed at the time the trial court rendered judgment.”

OH Seven LLC v. Lee, 2021-Ohio-199 (5th Dist.), quoting Fifth Third Mtge. Co. v.

Salahuddin, 2014-Ohio-3304 (10th Dist.). Because this is new evidence that appellants

are asserting for the first time on appeal, we cannot consider it. Thompson v. Dennis,

2023-Ohio-3946 (5th Dist.).

{¶20} Further, Sup.R. 48.03(A)(1) clearly contemplates that the GAL’s best

interest of the child recommendation may differ from the wishes of the child or other

parties (“recommendations of the best interest of the child may be inconsistent with the

wishes of the child or other parties”). No substantial right is created by Superintendence

Rule 48.03. It merely provides that, should the recommendation of the GAL differ from

the wishes of the child, the trial court has the discretion to “take action as it deems

necessary.” Sup.R. 48.03(B)(2).

{¶21} Even if this Court looks at the contents of the deposition of the GAL, the

contents demonstrate the lack of a final, appealable order in this case. Counsel for Mother questioned the GAL “about what kind of GAL report you’re likely to write …”. The

GAL responded, “It’s not completed, but go ahead.” The GAL then continued to answer

questions about what he is “likely” to put in his report and what he “probably” will put in

his report. As of the date of the judgment entry being appealed from, no GAL report had

been completed or submitted to the court or any of the parties. A non-completed, non-

submitted GAL report cannot serve as the basis for standing or affect any substantial

right. And certainly, a non-completed, non-submitted GAL report cannot serve as the

basis for an argument of divergent interests.

{¶22} Appellants contend Z.C. has a statutory right to an attorney and, thus, her

substantial rights are impacted by the judgment entry because R.C. 3109.04(A) provides,

“if the court interviews any child concerning the child’s wishes and concerns regarding

those parenting time or visitation matters … no person other than the child, the child’s

attorney, the judge … shall be permitted to be present in the chambers during the

interview.” R.C. 3109.04(A). This statute merely regulates who is permitted to be present

at the in-camera interview, it does not provide any statutory right to counsel for either

Mother or Z.C. to enforce.

{¶23} Appellants also argue Civil Rule 75(B)(2) creates a substantial right for them

to enforce. First, that portion of the rule provides it applies in a divorce, annulment, legal

separation, or custody action. This case is not a divorce, annulment, legal separation, or

custody action. Further, the rule provides that the court, in its discretion, “may” appoint

legal counsel as it deems necessary for the child. Appointment of counsel is not required.

Raleigh v. Hardy, 2009-Ohio-4829 (5th Dist.). {¶24} Appellants contend Z.C.’s constitutional rights are at issue in this case,

including her constitutional right to association, due process, and equal protection.

Appellants state that an order compelling Z.C. to associate with someone she does not

want to associate with strips her of these constitutional rights and her “liberty is at stake.”

{¶25} However, the October 24, 2024, judgment entry does not order Z.C. to

associate with anyone differently than she currently is or has been doing. There is an

agreement and order in place from 2021 ordering supervised visitation between Father

and Z.C. The October 24, 2024, judgment entry does nothing to change the order that

has been in place for over three years; thus, none of the constitutional rights appellants

list are implicated by the October 24, 2024, judgment entry. Additionally, this is a private

visitation matter between two parents. Unlike in a permanent custody proceeding or an

adoption proceeding, there is no state action or state entity involved in this case. Henneke

v. Ohio Dept. of Ins., 2011-Ohio-5366 (10th Dist.). Further, even if this case was in

juvenile court, the right to counsel for the child is not guaranteed or absolute. In re J.L.R.,

2009-Ohio-5812 (4th Dist.); In re K.K. & D.C., 2009-Ohio-5887 (5th Dist.); Wright v.

Wright, 2013-Ohio-4138 (5th Dist.).

{¶26} To the extent that Appellant’s argument is that the trial court’s October 24,

2024, order forces Z.C. to associate with counsel not of her choosing, vis-à-vis the GAL,

on April 16, 2024, Father filed a motion to appoint guardian ad litem. In a response filed

April 22, 2024, Mother did not oppose such appointment. If the crux of Appellants’

argument is the association between Z.C. and the GAL, we find it disingenuous that

Mother now seeks appellate review of an association to which she previously agreed. {¶27} Appellants cite In re Williams, 2004-Ohio-1500, In re Gault, 387 U.S. 1, and

In re Adoption of Y.E.F., 2020-Ohio-6785, for the proposition that a substantial right is

affected in this case. However, unlike Williams, this case does not involve termination of

parental rights, or Chapters 2152 and 2151 of the Revised Code. Thus, we find Williams

inapplicable. See Lowery v. Ridgeway, 2015-Ohio-5051 (3rd Dist.). Similarly, the

rationale in Y.E.F. is not applicable in this case because the Y.E.F. case involved whether

a parent in an adoption proceeding in which their parental rights would be terminated is

entitled to appointed counsel. While Mother has a “fundamental liberty interest” in

parenting Z.C., that interest is not at issue in this case. No one is requesting a change of

custody. The trial court has not ruled on any modification of visitation, and Mother is

represented by counsel. Finally, Gault is a case in which the United States Supreme

Court held that a juvenile must be notified of his or her right to counsel in a delinquency

proceeding that may result in a juvenile’s commitment to an institution. This case does

not involve a delinquency proceeding, or the curtailing of Z.C.’s rights, such that there is

any possibility she will be committed to an institution. Thus, Gault is inapplicable.

{¶28} Accordingly, we find the first portion of the two-pronged substantial right test

is not met in this case because neither Mother nor Z.C. has a substantial right that they

are entitled to enforce or protect arising from the October 24, 2024, judgment entry.

{¶29} We also find appellants do not meet the second portion of the substantial

right test because the October 24, 2024, judgment entry’s order, or its effect, is not

irreversible. There has been no hearing or ruling upon the merits of the motions to modify

or terminate. There is but one “claim” or “remedy” being sought here, i.e., the potential

modification or termination of Father’s visitation from that contained in the 2021 order. Mother may still prevail on the merits of her motion to modify/terminate; if not, she is

permitted, at the appropriate time, to appeal the final judgment entered on the motions.

As detailed below, Z.C. is not a party to the case. All parties to the matter (Mother and

Father) will have a meaningful and effective remedy as to all issues in the case by an

appeal following final judgment. See Vizzo v. Morris, 2012-Ohio-2141 (5th Dist.). The

striking of the notice of counsel did not dispose of the merits of either Mother or Father’s

motions regarding visitation, as both motions remain pending.

{¶30} Because appellants fail to meet either part of the two-part “substantial right”

test, the October 24, 2024, judgment entry is not a final appealable order. Thus, this

Court lacks jurisdiction to hear the appeal.

Standing

{¶31} Alternatively, appellants’ lack of standing is a separate reason why this

Court lacks jurisdiction to hear this appeal because neither Mother nor Z.C. has standing

to appeal from the October 24, 2024, judgment entry.

{¶32} It is well established that before an Ohio court can consider the merits of a

legal claim, the person seeking relief must establish standing to sue. Ohio Contractors

Assn. v. Bicking, 71 Ohio St.3d 318 (1994). An appeal may be brought only by parties

who have standing. Hoover Kacyon, LLC v. Martell, 2018-Ohio-4928 (5th Dist.).

{¶33} Standing is a “jurisdictional requirement; a party’s lack of standing vitiates

the party’s ability to invoke the jurisdiction of the court – even a court of competent

subject-matter jurisdiction – over the party’s attempted action.” Bank of Am., N.A. v.

Kuchta, 2014-Ohio-4275, ¶ 22. “Lack of standing is certainly a fundamental flaw that

would require a court to dismiss the action …”. Id. at ¶ 23. “The burden of proof to establish standing lies with the party seeking to appeal and therefore that party must

ensure that the record supports his or her claim of standing.” Olentangy Local School

Dist. Bd. of Edn. v. Delaware Cty. Bd. of Revision, 2024-Ohio-1563 (5th Dist.).

{¶34} Only an aggrieved party has standing to appeal from a final appealable

order. Midwest Fireworks Mfg. Co. v. Deerfield Twp. Bd. of Zoning Appeals, 91 Ohio

St.3d 174, 177 (2001). “Aggrieved” means “deprived of legal rights or claims.” Snodgrass

v. Testa, 2015-Ohio-5364, ¶ 27. A “party” is “one or against whom a lawsuit is brought;

anyone who both is directly interested in a lawsuit and has a right to control the

proceedings, make a defense, or appeal from an adverse judgment.” Black’s Law

Dictionary (8th ed. 2004). An “aggrieved party” is a party with an interest in the subject

matter of the litigation that is “immediate and pecuniary, and not a remote consequence

of the judgment.” Ohio Contract Carriers Assn., Inc. v. Pub. Util. Comm., 140 Ohio St.

160, 161 (1942).

{¶35} “It is a fundamental rule that an appeal may generally be instituted only by

‘parties who are able to demonstrate a present interest in the subject matter of the

litigation which has been prejudiced by the judgment of the lower court.’” In re

Guardianship of Santrucek, 2008-Ohio-4915, ¶ 5, citing Willoughby Hills v. C.C. Bar’s

Sahara, Inc., 64 Ohio St.3d 24, 26 (1992). Because only a person who is “aggrieved”

and a “party” may appeal, the “logical result is that nonparties typically do not have a right

of direct appeal.” In the Matter of J.P.R., 2024-Ohio-3380, ¶ 16 (4th Dist.).

{¶36} Mother cannot demonstrate standing to appeal because she cannot

demonstrate that the judgment entry by the trial court actually prejudiced her. Iden v.

Zumbro, 2019-Ohio-1051 (5th Dist.). Mother’s “fundamental liberty interest” in parenting Z.C. is not at issue in the October 2024 judgment entry. Father is not requesting a change

in custody, and the trial court has not ruled upon any modification of visitation. Of course,

Father is not an appellant. The trial court has not yet conducted an in-camera interview

with Z.C. and has not yet determined the best interest of the child as to visitation. Mother

is represented by counsel, who is zealously representing her. Mother has not been

prejudiced by the October 24, 2024, judgment entry. Accordingly, Mother lacks standing

to assert error in regard to the judgment entry striking Z.C.’s counsel.

{¶37} Likewise, Z.C. lacks standing to appeal because she is a not a party to the

proceedings, and no exception applies. In the Matter of J.P.R., 2024-Ohio-3380 (4th

Dist.). Appellants argue Z.C. is a “party” to this proceeding and is thus entitled to counsel

under R.C. 2151.352, R.C. 2151.23(F)(1), and Juvenile Rule 4(A). However, this rule

and statutes have no application in the present case. See Raleigh v. Hardy, 2009-Ohio-

4829, ¶ 29 (5th Dist.). The present case involves unmarried parents seeking to modify

a prior order of the Delaware County Court of Common Pleas, Domestic Relations

Division, regarding parenting time. Thus, the case is under the statutory jurisdiction of

the Delaware County Court of Common Pleas, Domestic Relations Division. R.C.

2301.03(EE). Additionally, a child does not become a party to the case when a court

appoints a guardian ad litem. Wilburn v. Wilburn, 2006-Ohio-5820 (9th Dist.).

{¶38} Accordingly, both Mother and Z.C. lack standing to appeal the judgment

entry and their appeal must be dismissed because this Court lacks jurisdiction to hear

their appeal. {¶39} Based on the foregoing, we find the October 24, 2024, judgment entry is not

a final, appealable order. Alternatively, we find both Mother and Z.C. lack standing to

appeal the October 24, 2024, judgment entry. Accordingly, the above-captioned case is

hereby dismissed.

By: Popham, J.,

Baldwin, P.J, and

Montgomery, J., concur