Evicks v. Evicks, 1955
| Decision Date | 28 April 1992 |
| Docket Number | No. 1955,1955 |
| Citation | 607 N.E.2d 1090,79 Ohio App.3d 657 |
| Parties | EVICKS, n.k.a. Koeppen, Appellee, v. EVICKS, Appellant. |
| Court | Ohio Court of Appeals |
Moore, Wolfe & Bentley and Richard F. Bentley, Ironton, for appellee.
Collier & Collier and J.B. Collier, Jr., Ironton, for appellant.
This is an appeal from a judgment entered by the Lawrence County Court of Common Pleas granting a divorce to Connie S. Evicks, plaintiff-appellee, and Lynn T. Evicks, defendant-appellant, on the grounds that appellee was guilty of adultery and appellant was guilty of gross neglect of duty. The trial court entry also granted custody of the parties' minor child, Adam, to appellee, ordered appellant to pay child support, and granted visitation to appellant.
Appellant's sole assignment of error provides as follows:
"The trial court erred in adopting the referee's recommendation to award custody of the parties' minor child to appellee without hearing additional evidence concerning the allegations of fraud, deceit and perjury committed by appellee."
The parties were married on June 20, 1986. Their son, Adam Evicks, was born one year later. Subsequently, the parties separated and appellee filed a complaint for divorce on the basis that appellant had been guilty of gross neglect of duty. Appellee also prayed for custody of Adam, child support, and a division of marital property. Appellant filed an answer denying that he was guilty of gross neglect of duty and additionally filed a counterclaim and an amended counterclaim praying for divorce on the grounds that appellee had been guilty of gross neglect of duty, extreme cruelty, and adultery. Appellant also requested custody of Adam, child support, and an equitable distribution of the parties' assets.
In December 1989, the court-appointed referee conducted a hearing at which appellee admitted to having sexual intercourse with Kevin Koeppen once about two months following her separation from appellant. Appellee further claimed that she and Koeppen were merely friends. Appellee testified that she could be pregnant with another child at the time of the hearing. On January 19, 1990, the referee issued a report which recommended that (1) appellee be granted a divorce on the basis that appellant had been guilty of gross neglect of duty, (2) appellee be awarded custody of Adam, (3) appellant be granted visitation with Adam, (4) appellant pay appellee $70 per week in child support, and (5) the parties' house be sold, with $5,000 in proceeds to go to appellant's father and the remainder to be divided equally between the parties.
Appellant filed objections to the referee's report, asserting that custody of Adam should not be awarded to appellee because appellee misled the referee and committed fraud in not advising him that she was pregnant with another child. Appellant also objected to the referee's failure to find that appellee had committed adultery. Appellant additionally requested a full evidentiary hearing on the objections, claiming that he was presumed to be the unborn child's father. Appellee filed a memorandum in opposition to appellant's motion for an evidentiary hearing, which claimed that based upon the new child's due date, it was "not scientifically possible" for appellant to be the unborn child's father. The referee issued a report recommending that an evidentiary hearing concerning appellant's allegations of fraud and misrepresentation be held. The referee noted that his earlier recommendations were based upon his assessment of appellee's credibility, which he now seriously questioned because although appellee claimed she was only friends with Koeppen at the hearing, she married him six days after the initial referee's report was filed.
Subsequently, appellant filed a motion requesting visitation with appellee's new child. Kevin Koeppen filed a motion to intervene. At a hearing on these motions, the parties appeared to agree that the child would have to be at least six months old before a blood test for purposes of determining the child's natural father could be administered. The trial court, on May 1, 1990, filed an entry granting each party a divorce, awarding custody of Adam to appellee, ordering visitation with Adam for appellant, and awarding child support to appellee. The trial court additionally allowed visitation for appellant with appellee's second child and by separate entry allowed Koeppen to intervene in the action. The trial court's May 1, 1990 entry specified that appellant "shall not be obligated to pay child support from the time of birth of said newborn child until the determination of paternity as the plaintiff has alleged that the defendant is not the father of said child." The trial court made an express determination of no just reason for delay.
Prior to a consideration of the merits of the instant appeal, we must determine if the entry appealed constitutes a final appealable order. Section 3(B)(2), Article IV of the Ohio Constitution provides that "[c]ourts of appeals shall 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 inferior to the court of appeals within the district * * *." Every final order may be reviewed on appeal. R.C. 2505.03(A). R.C. 2505.02 defines three types of final orders: (1) an order affecting a substantial right in an action which, in effect, determines the action and prevents a judgment; (2) an order affecting a substantial right made in a special proceeding or made upon summary application after judgment; or (3) an order vacating or setting aside a judgment or granting a new trial. Chef Italiano Corp. v. Kent State Univ. (1989), 44 Ohio St.3d 86, 87-88, 541 N.E.2d 64, 66-67.
It is axiomatic that subject matter jurisdiction may not be conferred upon a court by agreement of the parties, and may not be waived, and that the lack thereof is a basis for mandatory sua sponte dismissal. State ex rel. Lawrence Dev. Co. v. Weir (1983), 11 Ohio App.3d 96, 97, 11 OBR 148, 149, 463 N.E.2d 398, 399; Wilson v. Patton (1988), 49 Ohio App.3d 150, 152, 551 N.E.2d 625, 627; see, also, Fox v. Eaton Corp. (1976), 48 Ohio St.2d 236, 238, 2 O.O.3d 408, 409, 358 N.E.2d 536, 537. Both parties note on appeal that pursuant to this court's decision in Tismo v. Tismo (Aug. 28, 1990), Lawrence App. No. 1917, unreported, 1990 WL 127064, the entry appealed may not constitute a final appealable order. In Tismo, at 5, this court held that a "divorce decree which defers attendant issues such as child support for future consideration is not a final appealable order pursuant to R.C. 2505.02 since any temporary harm to the parties is outweighed by the waste of judicial resources resulting from the allowance of an appeal." An express determination of no just reason for delay pursuant to Civ.R. 54(B) would not render such a divorce decree final and appealable because in a divorce case, there are no multiple "claims" for relief. Id. at 7-8.
In the case at bar, the trial court deferred the issue of paternity of appellee's second child. Pursuant to R.C. 3105.21, the trial court had a mandatory duty to "make an order for the disposition, care, and maintenance of the children of the marriage." Under R.C. 3111.03(A)(1) and (2), it appears that two conflicting presumptions arguably arise as to the paternity of the parties' second child. R.C. 3111.03(A)(1) provides that appellee's first husband, appellant, is presumed to be the child's father. R.C. 3111.03(A)(2) appears to require a presumption that Koeppen is the father. R.C. 3111.03(B) states that each presumption is rebuttable by clear and convincing evidence. Furthermore, when two or more conflicting presumptions under the statute apply, the trial court should determine which is controlling. Since legal parentage must be decided prior to the issue of custody, In re Adoption of Reams (1989), 52 Ohio App.3d 52, 557 N.E.2d 159, it appears that pursuant to Tismo, supra, the entry is not a final appealable order.
However, this case presents our court with the opportunity to reanalyze Tismo and its arguably harsh application to the facts presently before us. Although Tismo, supra, has been followed on several occasions by this court, it has not, as of yet, been explicitly adopted by other Ohio appellate courts. It cannot be reasonably questioned that the entry appealed from, which included a custody determination regarding the parties' first child, affected substantial rights of the parties. See Tismo, at 4. The issue is whether the custody determination in this case occurred in a "special proceeding" as that term is used in R.C. 2505.02. Initially, Ohio courts tended to focus on the nature of the proceeding itself to determine whether the order appealed was a legal or equitable action recognized at common law, i.e., nonspecial, or was a special proceeding. See, e.g., Shon v. Shon (Aug. 6, 1981), Cuyahoga App. No. 43075 unreported, 1981 WL 5034, which notes in dicta that where a determination of custody was sought in an action for divorce, alimony, and a division of property, an award of custody without the resolution of all issues is not a final appealable order since a divorce is an "action" rather than a "special proceeding." However, in Amato v. Gen. Motors Corp. (1981), 67 Ohio St.2d 253, 21 O.O.3d 158, 423 N.E.2d 452, the Ohio Supreme Court apparently shifted the focus from the nature of the proceeding itself to the effect of the particular order being appealed. Amato balances the harm to the prompt and orderly disposition of litigation caused by piecemeal appeals against the need for immediate review due to the impracticality of appeal after final judgment. Whiteside, Ohio Appellate Practice (1991) 33, Section T 2.05; see, also, Dayton Women's Health Ctr. v. Enix (1990), 52 Ohio St.3d 67, 555 N.E.2d 956; Russell v. Mercy Hosp. (1984), 15 Ohio St.3d 37, 15 OBR...
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