Juliana H.J. Brooks [now Lee] v. Michael L. Brooks, 96-LW-5613

• Decision Date: 24 December 1996
• Docket Number: 96-LW-5613,96APF05-693 & 96APF05-746
• Parties: Juliana H.J. Brooks [now Lee], Plaintiff-Appellant, v. Michael L. Brooks, Defendant-Appellee.
• Court: Ohio Court of Appeals

Juliana H.J. Brooks [now Lee] Plaintiff-Appellant, v. Michael L. Brooks, Defendant-Appellee.

Nos. 96APF05-693 & 96APF05-746

96-LW-5613 (10th)

Court of Appeals of Ohio, Tenth District Franklin.

December 24, 1996

APPEALS from the Franklin County Court of Common Pleas, Division of Domestic Relations.

Swope and Swope, and Richard F. Swope, for appellant.

Mary Beth Kelleher Fisher; and Andrea R. Yagoda, for appellee.

Sowald Sowald & Clouse, and Gerard J. Clouse, guardian ad litem.

OPINION

LAZARUS J.

In this consolidated appeal, plaintiff-appellant, Juliana H.J Brooks (now Lee), appeals from an April 29, 1996 emergency order of the Franklin County Court of Common Pleas, Division of Domestic Relations, temporarily designating defendant-appellee, Michael L. Brooks, as residential parent. Additionally, appellant appeals from a judgment of the same court overruling appellant's objections to the referee's May 3, 1995 and June 5, 1995 reports. For the reasons that follow, we dismiss the appeal regarding the emergency order (Case No. 96APF05-693) for lack of a final appealable order, and we affirm the decision of the trial court in overruling the objections (case No. 96APF05-746).

Appellant has set forth the following five assignments of error:

1. "The trial court erred and abused its discretion in issuing an ex parte order changing custody where no emergency existed and where procedural and legal safeguards were ignored."

2. "The trial court erred and abused its discretion when the court failed to find the defendant-appellee guilty of contempt for failing to pay a medical bill."

3. "The trial court erred and abused its discretion when the court failed to find the defendant-appellee guilty of contempt for taking the children at times other than specified in the visitation order."

4. "The trial court erred and abused its discretion in failing to award attorney fees to plaintiff-appellant."

5. "The trial court erred and abused its discretion when it failed to compute arrearage on temporary orders and in ruling that the doctrine of merger barred recovery."

The present appeal arises in part from an earlier appeal before this court. The parties were divorced on June 28, 1990, after several years of litigation. In Brooks v. Brooks (Dec. 14, 1995), Franklin App. No. 95APF03-381, unreported (1995 Opinions 5327), this court reversed an order of the trial court modifying custody and designating appellee as residential parent and remanded the case for further proceedings. Our decision was based upon the failure of the trial court to make specific findings on two of the factors enunciated in R.C. 3109.04.

We directed the trial court on remand to consider certain factors, to examine and weigh the evidence, to determine what is in the best interests of the children, and to determine whether the harm caused by a change of custody is outweighed by the advantages of such a change. Id. at 5350, 5363, 5364, 5365, 5366, 5367. Appellee filed a notice of appeal to the Supreme Court which declined jurisdiction on April 24, 1996. Brooks v. Brooks (1996), 75 Ohio St.3d 1452.

On April 29, 1996, appellee filed a motion seeking an emergency order designating him as residential parent. The trial court granted the motion, temporarily designating appellee as residential parent and awarding appellant visitation pursuant to the report of the referee, which was the subject of the earlier appeal. Appellant filed a notice of appeal (case No. 96APF05-693). On May 10, 1996, the trial court overruled appellant's objections to the referee's May 3, 1995 and June 5, 1995 reports in which the referee denied appellant's motions for contempt. Appellant filed another notice of appeal (case No. 96APF05-746). On June 24, 1996, this court consolidated the two appeals.

In her first assignment of error, appellant contends that it was error and an abuse of discretion for the trial court to designate appellee as residential parent because there was no emergency, no hearing, no affidavit, and no adequate time to respond. We do not reach these issues because this court is without jurisdiction to entertain the appeal. By its own terms, the order designating appellee as residential parent was temporary. A temporary order is interlocutory in nature. Because such orders are subject to modification by the trial court, interlocutory orders are not immediately appealable.

This court addressed a similar case in Nicewicz v. Nicewicz (Feb. 9, 1995), Franklin App. No. 94APF06-956, unreported (1995 Opinions 451). That case involved an appeal of an order of the trial court granting temporary custody until a final hearing on a motion to modify custody could be held. We noted that the order was interlocutory in nature and consequently not immediately appealable. However, the order was reviewable after the trial court modified the final entry of divorce by making the appellee the residential parent and legal custodian of the minor child.

In another case from this court, In re Devlin (1992), 78 Ohio App.3d 543, the mother had been granted legal custody of the minor child pursuant to a decree of divorce. The child was truant from school and located at her father's residence in another county. The trial court granted temporary custody to the father pending disposition of the matter in the other county. The mother appealed the granting of temporary custody to the father, and this court held that with respect to the temporary custody order: "Orders of an interlocutory or temporary nature do not constitute final orders." Id. at 544. Accord, Haines v. Shiever (June 8, 1995), Cuyahoga App. No. 66739, unreported; Morrison v. Morrison (1973), 45 Ohio App.2d 299. See, also, Spence v. Spence (1981), 2 Ohio App.3d 280 (holding that an interlocutory order respecting custody made pursuant to Civ.R. 75[M] is interlocutory).

The instant case is distinguishable from cases concerning the grant of temporary custody to public children services agencies. In In re Murray (1990), 52 Ohio St.3d 155, syllabus, the Supreme Court of Ohio held that an adjudication by a juvenile court that a child is neglected or dependent followed by a disposition awarding temporary custody to a public children services agency constitutes a final order and is appealable to the court of appeals. Within that opinion, the court acknowledged a distinction between neglect or dependency proceedings followed by an award of temporary custody to a public children services agency and custody disputes between parents. In re Murray, supra, at 155, 159-160, fn.2 (distinguishing Morrison, supra). Because we have before us a temporary custody order, this court is without jurisdiction to proceed, and the appeal in Case No. 96APF05-693 must necessarily be dismissed.

In her second and third assignments of error, appellant claims the trial court abused its discretion in contempt proceedings. Assignment of error four relates to attorney fees associated with the contempt actions. Because the matters are related, we address these assignments together. Assignment of error two involves the nonpayment of a $193 medical bill incurred when one of the children was hit by a baseball. The parties' decree stated in pertinent part:

"Each party shall pay, indemnify and save the other party harmless upon one-half (1/2) of all medical; dental; and optical expenses which are not satisfied by the parties' medi-cal insurance coverage. Plaintiff shall provide Defendant with such information as can be submitted to Defendant's insurance carrier, if his insurance covers the

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