Perkins v. Perkins

2023 Ohio 2924

• Court: Ohio Court of Appeals
• Decided: August 21, 2023
• Docket: 2023-G-0017
• Status: Published

Opinion

[Cite as Perkins v. Perkins, 2023-Ohio-2924.]

IN THE COURT OF APPEALS OF OHIO ELEVENTH APPELLATE DISTRICT GEAUGA COUNTY

JAMES R. PERKINS, CASE NO. 2023-G-0017

Plaintiff-Appellee, Civil Appeal from the - vs - Court of Common Pleas

STACY L. PERKINS, Trial Court No. 2021 DC 000157 Defendant-Appellant.

MEMORANDUM OPINION

Decided: August 21, 2023 Judgment: Appeal dismissed

Michael Drain, Jr., 147 Bell Street, Suite 202, Chagrin Falls, OH 44022 (For Plaintiff- Appellee).

Gregory S. Costabile, 1400 Fifth Third Center, 600 Superior Avenue, East, Cleveland, OH 44114 (For Defendant-Appellant).

ROBERT J. PATTON, J.

{¶1} Appellant, Stacy L. Perkins, through counsel, appeals from a May 3, 2023

entry, in which the Geauga County Court of Common Pleas ordered that the objections to

the magistrate’s decision filed by appellee, James R. Perkins, were sustained in part. The

trial court stated that the magistrate did not err in granting the parties a divorce or in

granting the shared parenting plan. The court ordered that the matter be set for a new

trial regarding the division of property, attorney fees, child and medical support obligations,

and appellee’s disability, employment, pension, and separate property claims.

{¶2} This court issued an entry ordering appellant to show cause why this appeal

should not be dismissed for lack of a final appealable order. Appellant filed a brief in support of jurisdiction indicating that the entry affects a substantial right. Appellee filed a

brief in opposition indicating that there is no final order.

{¶3} A trial court’s judgment is immediately appealable if it constitutes a final

order. Section 3(B)(2), Article IV of the Ohio Constitution; Gale v. Gale, 11th Dist. Lake

No. 2019-L-093, 2019-Ohio-5055, ¶ 3. If a lower court’s order is not final, an appellate

court has no jurisdiction, and the matter must be dismissed. Gen. Acc. Ins. Co. v. Ins. of

N. Am., 44 Ohio St.3d 17, 20 (1989). In the absence of other applicable authority

conferring jurisdiction, a judgment must satisfy R.C. 2505.02 to be final and appealable.

See Nelson v. Nelson, 11th Dist. Lake No. 2020-L-108, 2021-Ohio-33, ¶ 3.

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

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

determines the action and prevents a judgment;

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

upon a summary application in an action after judgment;

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

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

of the following apply:

{¶9} “(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.

{¶10} “(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.

Case No. 2023-G-0017 {¶11} “(5) An order that determines that an action may or may not be maintained

as a class action;

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

Code * * *;

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

{¶14} In this case, the May 3, 2023 entry does not fit within any of the categories

for being a final order pursuant to R.C. 2505.02(B). Furthermore, no divorce decree has

been issued. Generally, in a divorce action, no final appealable order exists until all issues

relating to property division, support and parental rights and responsibilities have been

addressed. Miller v. Miller, 11th Dist. Portage No. 2003-P-0065, 2003-Ohio-6765, at ¶ 3.

An entry that leaves issues unresolved and contemplates further action is not final. See

Montalbine v. Montalbine, 11th Dist. Lake No. 2022-L-020, 2022-Ohio-1464, ¶ 14. Here,

since the entry on appeal leaves issues unresolved and further action is contemplated,

this court is without jurisdiction to consider the merits. Appellant will have a meaningful

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

{¶15} 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.

{¶16} Appeal dismissed.

JOHN J. EKLUND, P.J.,

MARY JANE TRAPP, J.,

concur.

Case No. 2023-G-0017