Oatey v. Oatey

• Decision Date: 23 April 1992
• Docket Number: No. 62086,62086
• Parties: OATEY, Appellee, v. OATEY, Appellant.
• Court: Ohio Court of Appeals

Page 251

83 Ohio App.3d 251

614 N.E.2d 1054

OATEY, Appellee, v. OATEY, Appellant.

No. 62086.

Court of Appeals of Ohio, Eighth District, Cuyahoga County.

Decided April 23, 1992.

Joyce E. Barrett, Cleveland, for appellee.

Spieth, Bell, McCurdy & Newell Co., L.P.A., and Ron Tonidandel, Cleveland, for appellant.

KRUPANSKY, Judge.

Defendant-appellant Gary A. Oatey appeals from a prejudgment order of the Cuyahoga County Common Pleas Court, Domestic Relations Division, awarding plaintiff-appellee Susan A. Oatey $100,000 in attorney fees funded by an immediate court-ordered sale of substantial marital property. We reverse and remand for further proceedings consistent with this opinion.

Plaintiff filed a complaint for divorce in domestic relations case No. D-200521 against defendant and five other defendants who are not parties to the appeal sub judice, viz.: (1) Oatey Company; (2) Oatey Company Profit Sharing Trust & Savings Incentive Plan; (3) Cardinal Federal Savings Bank; (4) Society National Bank; and (5) Ameritrust Company, National Association. Plaintiff requested a divorce, custody of the couple's three minor children, alimony, child support, an equitable division of property, attorney fees, temporary restraining orders against the six defendants prohibiting the disposition of various property and other equitable relief.

Plaintiff subsequently filed an amended complaint naming seven additional defendants who are not parties to this appeal for the purpose of obtaining additional temporary restraining orders against the transfer of property in which plaintiff claims an interest. It appears from the record the Oateys have accumulated substantial marital assets. Defendant Gary Oatey filed an answer and an amended answer and counterclaim requesting a divorce, custody of the three children, an equitable division of property, attorney fees and other relief.

During the course of the proceedings in the domestic relations court plaintiff filed a motion for interim attorney fees and costs in addition to a separate motion for temporary alimony and child support. The domestic relations court granted the motion for attorney fees after conducting a hearing over a three-day period.

The domestic relations court order journalized July 2, 1991 (the "Order") awarded plaintiff $100,000 as interim attorney fees, ordered defendant to pay plaintiff's counsel $50,000 within seven days of journalization of the "Order" and to deposit the proceeds from the court-ordered sale of certain condominiums in escrow within sixty days pending further order of the domestic relations court. The "Order" continued the prior temporary restraining orders on all the parties' remaining assets and did not contain the express language "no just reason for delay" pursuant to Civ.R. 54(B).

Defendant filed a notice of appeal from the "Order" July 9, 1991 raising eleven assignments of error. ¹ Plaintiff thereafter commenced proceedings to enforce the "Order" in the domestic relations court and filed a motion in this court of appeals to dismiss the appeal contending the "Order" from which defendant appealed was not a final appealable order. This court of appeals granted defendant's motion for a stay of execution of the "Order" July 29, 1991 upon the posting of a $100,000 supersedeas bond after the domestic relations court denied a similar motion.

Defendant subsequently filed a "Motion to Supplement the Record on Appeal" pursuant to App.R. 9(E) to include as part of the record in the appeal sub judice various original papers from proceedings conducted by the domestic relations court to enforce the "Order" while defendant's appeal from the underlying "Order" was pending in this court of appeals. Defendant's motion contends the enforcement proceedings demonstrate the "Order" from which he appealed constitutes a final appealable order.

Plaintiff's motion to dismiss the appeal sub judice and defendant's motion for leave to supplement the record on appeal have been referred to the merit panel for disposition. For the sake of simplicity, this court shall address defendant's motion to supplement the record prior to considering plaintiff's motion to dismiss and the additional authority submitted by the parties concerning this jurisdictional issue.

Motion for Leave to Supplement Record

Defendant contends interlocutory orders are not enforceable by the domestic relations court prior to final judgment; however, since the domestic relations court attempted to enforce the "Order," defendant maintains this makes the "Order" "final." ²

However, the enforceability of orders entered by domestic relations courts does not depend upon whether such orders are classified as "final" or "interlocutory" for purposes of appeal. Notwithstanding defendant's argument to the contrary, interlocutory orders entered during the course of the proceedings may be enforced by a domestic relations court against a noncomplying party prior to final judgment. In re Kurtzhalz (1943), 141 Ohio St. 432, 25 O.O. 574, 48 N.E.2d 657; see, also, Ollick v. Rice (1984), 16 Ohio App.3d 448, 16 OBR 529, 476 N.E.2d 1062 (probate court). The mere filing of a notice of appeal from the order by a noncomplying party does not divest the domestic relations court of jurisdiction to enforce an interlocutory or final order pending appeal unless the party is granted a stay of execution of the order. In re Kurtzhalz, supra; Pugh v. Pugh (1984), 15 Ohio St.3d 136, 15 OBR 285, 472 N.E.2d 1085; Buckles v. Buckles (1988), 46 Ohio App.3d 118, 546 N.E.2d 965; Huelsman v. Huelsman (Nov. 17, 1988), Cuyahoga App. No. 54684, unreported, at 22-23, 1988 WL 122899; White v. White (1977), 50 Ohio App.2d 263, 272, 4 O.O.3d 225, 230, 362 N.E.2d 1013, 1019. Although this court's stay of execution renders any purported enforcement of the "Order" by the domestic relations court pending appeal a nullity, the stay has no effect on the finality of the "Order." Gieg v. Gieg (1984), 16 Ohio App.3d 51, 16 OBR 55, 474 N.E.2d 626.

We find defendant's proffered materials relating to subsequent proceedings conducted in the domestic relations court after defendant's notice of appeal to this court of appeals do not fall within the scope of App.R. 9(E) and are not relevant to the determination of the jurisdiction of this court or the merits of the appeal sub judice. Accordingly, defendant's motion for leave to supplement the record is not well taken and is hereby denied.

Motion to Dismiss

Plaintiff's motion to dismiss the appeal sub judice contends the underlying "Order" for the payment of attorney fees was entered pursuant to the temporary alimony and attorney fees provisions of Civ.R. 75(M)(1) and Dom.Rel.Loc.R. 21 and constitutes an interlocutory order from which no appeal may be taken prior to a final judgment disposing of the entire case based upon Loc.App.R. 20 and Civ.R. 54(B).

Loc.App.R. 20 governs jurisdiction in appeals from actions involving multiple claims or parties and provides as follows:

"Appeals involving either multiple claims or multiple parties are not within the jurisdiction of this court unless:

"1) A judgment disposition in the trial court determined all issues and all claims involving all parties, or

"2) A partial disposition in the trial court is accompanied by a determination by that court under Civ.R. 54(B) that there is no just reason to delay entering judgment on issues, claims or parties involved in the partial disposition."

Civ.R. 54(B) likewise provides as follows:

"Judgment upon multiple claims or involving multiple parties. When more than one claim for relief is presented in an action, whether as a claim, counterclaim, cross-claim or third-party claim, or when multiple parties are involved, the court may enter final judgment as to one or more but fewer than all of the claims or parties only upon an express determination that there is no just reason for delay. In the absence of such determination, any order or other form of decision, however designated, which adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties shall not terminate the action as to any of the claims or parties, and the order or other form of decision is subject to revision at any time before the entry of judgment adjudicating all the claims and the rights and liabilities of all the parties."

Defendant's brief in opposition argues the "Order" for interim attorney fees was entered pursuant to R.C. 3105.18(H) and constitutes a final appealable order affecting a "substantial right" made in a "special proceeding" within the scope of R.C. 2505.02 to which neither Loc.App.R. 20 nor Civ.R. 54(B) applies.

R.C. 3105.18(H), which was enacted and became effective after plaintiff filed her motion for attorney fees in the case sub judice, provides as follows:

"In divorce or legal separation proceedings, the court may award reasonable attorney's fees to either party at any stage of the proceedings, including, but not limited to, any appeal, any proceeding arising from a motion to modify a prior order or decree, and any proceeding to enforce a prior order or decree, if it determines that the other party has the ability to pay the attorney's fees that the court awards. When the court determines whether to award reasonable attorney's fees to any party pursuant to this division, it shall determine whether either party will be prevented from fully litigating his rights and adequately protecting his interests if it does not award reasonable attorney's fees." (Emphasis added.)

R.C. 2505.02 defines "final order" in pertinent part as follows:

"An order that affects a substantial right in an action which in effect determines the action and prevents a judgment, an order that affects a substantial right made in a special proceeding or upon a summary application in an action after judgment, or an order that vacates or sets aside a judgment or grants a new trial is a final order that may be reviewed,...