Connie Kouns, Fka Connie Pemberton v. Lawrence Pemberton, 92-LW-5710

• Decision Date: 22 December 1992
• Docket Number: 92 CA 07,92-LW-5710
• Parties: CONNIE KOUNS, fka CONNIE PEMBERTON, Plaintiff-Appellee v. LAWRENCE PEMBERTON, Defendant-Appellant Case
• Court: Ohio Court of Appeals

CONNIE KOUNS, fka CONNIE PEMBERTON Plaintiff-Appellee v. LAWRENCE PEMBERTON, Defendant-Appellant

No. 92 CA 07.

92-LW-5710 (4th)

Court of Appeals of Ohio, Fourth District Lawrence

December 22, 1992

David Reid Dillon, South Point, Ohio, for Appellant.

McCown & McCown, David McCown, Ironton, Ohio, for Appellee.

DECISION

Stephenson P.J.

This is an appeal from a judgment entered by the Lawrence County Court of Common Pleas granting a change of custody of Amie Pemberton (D.O.B. 2-10-80) and Adam Pemberton (D.O.B 8-16-81) (hereinafter referred to collectively as "the minor children") to their mother, Connie Kouns, fka Connie Pemberton, plaintiff below and appellee herein. The father, Lawrence Pemberton, defendant below and appellant herein, assigns the following error for our review:

"The trial court erred and abused its discretion in changing custody of the minor children from defendant to plaintiff based solely upon the stated preference of the children to live with their mother."

An abbreviated summary of the facts pertinent to this appeal is as follow. Appellant has had custody of the minor children since October of 1987. Appellee filed a motion to change custody on March 3, 1992, arguing that there was a "material change of circumstances" which would warrant a modification and that, in any event, both children would elect to live with their mother. Appellant filed a memorandum in opposition to the motion contending that the court had already overruled another motion to change custody several months before and that such repetitive proceedings were causing undue "mental anguish" to the children. The matter came on for hearing on March 13, 1992. A judgment entry was filed on April 1, 1992, which, though finding no material change of circumstances, found that (1) the minor children had expressed a desire to live with their mother, (2) there was no reason why the election should not be approved and (3) the modification was in the best interest of the children. Thus, custody of the minor children was given to appellee effective March 13, 1992. The entry then went on to say that "[t]he [c]ourt having changed custody the matter of child support to be paid by [appellant] to [appellee] shall be reset for hearing at a later time." (Emphasis added.) This appeal followed.

Before addressing the merits of the error assigned for our review herein, we must first consider a threshold jurisdictional problem. Ohio law provides that the courts of appeals in this state have jurisdiction to review the final orders or judgments of inferior courts within their district. See generally Section 3(B)(2), Article IV of the Ohio Constitution; R.C. 2501.02. A final order or judgment is one which affects a substantial right and, in effect, determines the action. R.C. 2505.02. If an order is not final and appealable, then an appellate court has no jurisdiction to review the matter and it must be dismissed. In re Christian (Jul. 22, 1992), Athens App. No. 1507 unreported at 5. In the event that this jurisdictional issue is not raised by the parties involved with the appeal then we must raise it sua sponte. See In re Murray (1990), 52 Ohio St. 3d 155, 159-160 at fn. 2; Whitaker-Merrell v. Geupel Co. (1972), 29 Ohio St. 2d 184, 186. With these principles in mind, we turn our attention to that portion of the judgment below which fails to determine child support and defers the issue for further consideration.

This court has previously determined that a judgment which defers the issue of child support for future determination is not a final appealable order for purposes of R.C. 2502.02. See Tismo v. Tismo (Aug. 27, 1990), Lawrence App. No. 1917 unreported at 8. Although the judgment in Tismo had been entered in the context of original divorce proceedings, this principle has been equally applied to actions outside of the initial one for divorce. See e.g. In re Berman (1990), 69 Ohio App. 3d 324, 329 (post divorce dependency and change of custody proceedings); also see In re McBride (Jul. 22, 1991), Athens App. No. 1473, unreported at 4-5 (custody proceedings initiated under R.C. 2151.23(A)(2)); State ex rel. Scioto Co. Dept. Human Services v. Litreal (Jul. 21, 1991), Scioto App. No. 1940, unreported at 5 (paternity actions). We perceive of no logical reason why the same rule would not apply in the cause sub judice. The judgment entered by the court below clearly contemplated further action with respect to this case, and therefore, it did not fully determine the modification proceeding. ...