Quesinberry v. Quesinberry

• Decision Date: 22 November 2021
• Docket Number: 29192
• Citation: 185 N.E.3d 1136
• Parties: Anna Carol QUESINBERRY, 1st Petitioner-Appellant v. Nathan QUESINBERRY, 2nd Petitioner-Appellee
• Court: Ohio Court of Appeals

185 N.E.3d 1136

Anna Carol QUESINBERRY, 1st Petitioner-Appellant

v.Nathan QUESINBERRY, 2nd Petitioner-Appellee

No. 29192

Court of Appeals of Ohio, Second District, Montgomery County.

November 22, 2021

Robert Harrelson, 9 W. Water Street, Troy, Ohio 45373, Attorney for Appellant, Anna Quesinberry.

Thomas Eagle, 3400 N. State Route 741, Lebanon OH 45036, Attorney for Appellee, Nathan Quesinberry.

Michelle Maciorowski, 7333 Paragon Road, Suite 170, Dayton OH 45459, Attorney for Appellee, Ariel Quesinberry.

Hon. Timothy Wood, Montgomery County Domestic Relations, Dayton-Montgomery County Courts Building, 301 W. Third Street, Dayton, Ohio 45422-4248.

DECISION AND ENTRY

PER CURIAM:

{¶ 1} Anna Quesinberry appeals a June 14, 2021 Decision and Judgment overruling her Civ.R. 60(B) motion. The Civ.R. 60(B) motion sought to vacate the parties’ 2018 Judgment Entry of Dissolution of Marriage on the basis of fraud, duress, misrepresentation, and undue influence. A magistrate found that Anna was entitled to Civ.R. 60(B) relief.

{¶ 2} Nathan Quesinberry filed objections to the magistrate's decision. In the June 14 Judgment on appeal, the trial court found Nathan's objections well-taken in part, and sustained them. The trial court ultimately overruled Anna's motion to vacate. The court also noted that other, separate motions were still pending, including Nathan's motion alleging contempt and requesting a modification of the parties’ shared parenting plan, and Anna's motions to terminate shared parenting and to name her residential parent, and to modify child support.

{¶ 3} Anna appealed the June 14 Judgment. Nathan and Ariel Quesinberry (Nathan's current spouse and intervenor in the trial court case) filed a motion to dismiss this appeal for lack of a final appealable order. They assert that the motions pending in the case prevent the June 14 Judgment from being final. Anna filed a response; Nathan and Ariel filed a reply. For the following reasons, we overrule the motion to dismiss. The appeal shall proceed.

{¶ 4} An appellate court has jurisdiction to review only final orders of the lower courts in its district. Section 3(B)(2), Article IV, Ohio Constitution ; R.C. 2505.02. If an order is not final, we have no jurisdiction to review it and must dismiss the appeal. Gen. Acc. Ins. Co. v. Ins. Co. of N. Am. , 44 Ohio St.3d 17, 20, 540 N.E.2d 266 (1989).

{¶ 5} "For a judgment to be final and appealable, it must satisfy the requirements of R.C. 2505.02 and, if applicable, Civ.R. 54(B)." Onady v. Wright State Physicians, Inc., 2d Dist. Montgomery No. 27954, 2018-Ohio-3096, 2018 WL 3744814, ¶ 7, citing Chef Italiano Corp. v. Kent State Univ. , 44 Ohio St.3d 86, 88, 541 N.E.2d 64 (1989). R.C. 2505.02 defines final orders. It says, in relevant part:

An order is a final order that may be reviewed, affirmed, modified, or reversed, with or without retrial, when it is one of the following:

(1) An order that affects a substantial right in an action that in effect determines the action and prevents a judgment;

(2) An order that affects a substantial right made in a special proceeding or upon a summary application in an action after judgment; [or]

(3) An order that vacates or sets aside a judgment or grants a new trial[.]

R.C. 2505.02(B).

{¶ 6} In 1980, the Supreme Court of Ohio recognized as "well-settled" the rule that "a judgment denying a motion for relief from judgment filed pursuant to Civ.R. 60(B) is itself a final appealable order." Colley v. Bazell , 64 Ohio St.2d 243, 245, 416 N.E.2d 605 (1980). At that time, the final order statute said, in relevant part:

An order affecting a substantial right in an action which in effect determines the action and prevents a judgment, an order affecting a substantial right made in a special proceeding or upon a summary application in an action after judgment, or an order vacating or setting aside a judgment and ordering a new trial is a final order which may be reviewed, affirmed, modified, or reversed, with or without retrial.

R.C. 2505.02, 1953 H 1 (eff. Oct. 1, 1953). The three parts of the statute in effect in 1980 correspond to divisions (B)(1), (B)(2), and (B)(3) of the current final order statute.

{¶ 7} The Colley Court did not cite the final order statute in its opinion or identify which part of the statute a Civ.R. 60(B) denial satisfied. At least one court has suggested that the first part of the statute – an order affecting a substantial right that in effect determines the action and prevents a judgment – is likely what the Court meant. See Bussa v. Hadsel Chem. Processing, LLC , 2016-Ohio-5718, 76 N.E.3d 385, ¶ 9 (4th Dist.), fn. 3 (noting that although Colley did not specify, it "cited federal cases that seem to suggest an order denying Civ.R. 60(B) relief from a final order affects a substantial right and in effect determines the action and prevents a judgment"). Today, that provision is R.C. 2505.02(B)(1).

{¶ 8} Ohio courts continue to rely on Colley , as does Anna here, for the proposition that the denial of a Civ.R. 60(B) motion is a final order. But courts generally do so without explicitly identifying which section of the statute is satisfied. See, e.g. , Hadassah v. Schwartz , 1st Dist. Hamilton No. C-110699, 2012-Ohio-3910, 2012 WL 3711323, ¶ 8 ; Hack v. Keller , 9th Dist. Medina No. 14CA0036-M, 2015-Ohio-4128, 2015 WL 5781642, ¶ 10. Anna asserts here that the order is final under R.C. 2505.02(B)(1), citing State ex rel. Lemerand v. Woessner , 6th Dist. Wood No. WD-06-060, 2006-Ohio-4916, 2006 WL 2709273, ¶ 10-13. Lemerand does not answer the question.

{¶ 9} In Lemerand , the court briefly considered the finality of two orders: one dismissing a declaratory judgment action, and one overruling a motion for relief from judgment. The court said that, as to the trial court's order dismissing the declaratory judgment action, that order satisfied R.C. 2505.02(B)(1). As "to the trial court's denial of relator's motion for relief from judgment," the court simply held that "in general, a denial of a Civ.R. 60(B) motion for relief from judgment is a final appealable order," without identifying which part of the statute is satisfied. Id. at ¶ 13, citing Ullmann v. Duffus , 10th Dist. Franklin No. 05AP-299, 2005-Ohio-6060, 2005 WL 3047433, at ¶ 33 ; Carter v. City of Cleveland , 8th Dist. Cuyahoga No. 77469, 2000 WL 1643532 (Nov. 2, 2000) ; Shaheen v. Vassilakis , 82 Ohio App.3d 311, 315, 612 N.E.2d 435 (8th Dist.1992). None of these cases identifies which division of the statute is satisfied. For their part, Nathan and Ariel acknowledge Colley and agree that the denial of a Civ.R. 60(B) motion can be a final order, but they do not address which part of the final order statute is the relevant one.

{¶ 10} Tethering the finality of a Civ.R. 60(B) denial to a particular division of the final order statute matters for two related reasons. First, Civ.R. 54(B) does not, or may not, apply to some divisions of the statute, and thus may not be required for finality. See Zhong v. Liang , 2020-Ohio-3724, 155 N.E.3d 1042, ¶ 18 (8th Dist.) ("While Civ.R. 54(B) clearly applies to R.C. 2505.02(B)(1) * * * it is less clear whether Civ.R. 54(B) applies to R.C. 2505.02(B)(2)"); Dayton Childrens Hosp. v. Garrett Day LLC , 2018-Ohio-5466, 131 N.E.3d 304, ¶ 15 (2d Dist.) ( Civ.R. 54(B) does not apply to a provisional remedy under R.C. 2505.02(B)(4) ). Second, the determination is relevant to the question of whether an order can be final with other motions pending, which is the situation currently before us. So, before we can answer these questions, we must first determine which part or parts of the final order statute are satisfied here.

{¶ 11} Since the Supreme Court in Colley presumably found the denial of a Civ.R. 60(B) motion final under one of the three parts of the statute then in effect, we look at the three corresponding parts of the current statute: division (B)(1) (an order that determines the action), division (B)(2) (an order in a special proceeding or on summary application after judgment), and division (B)(3) (an order vacating or setting aside a judgment). The third division is clearly inapplicable to the denial of a Civ.R. 60(B) motion, which, like the June 14 Judgment here, declines to vacate the final order. Thus, we consider whether the June 14 Judgment satisfies division (B)(1) or (B)(2).

R.C. 2505.02(B)(1) : An Order that Determines the Action

{¶ 12} Division (B)(1) of the final order statute defines as final "[a]n order that affects a substantial right in an action that in effect determines the action and prevents a judgment." "For an order to determine the action, it must dispose of the merits of the cause or some separate and distinct branch thereof and leave nothing for the determination of the court." VIL Laser Sys., L.L.C. v. Shiloh Industries, Inc. , 119 Ohio St.3d 354, 2008-Ohio-3920, 894 N.E.2d 303, ¶ 8, citing Miller v. First Internatl. Fid. & Trust Bldg., Ltd. , 113 Ohio St.3d 474, 2007-Ohio-2457, 866 N.E.2d 1059, ¶ 6.

{¶ 13} Typically, in a divorce case, the decree of divorce is the first (although often not the only) final order entered in the case. The decree is final under R.C. 2505.02(B)(1) because it determines the divorce action, i.e., because it resolves the claim(s) for divorce, divides property, determines the appropriateness of spousal support, and where applicable, allocates parental rights and responsibilities, including child support. See Wilson v. Wilson , 116 Ohio St.3d 268, 2007-Ohio-6056, 878 N.E.2d 16, ¶ 8-16, 19, citing Civ.R. 75(F) (discussing the contents of a divorce decree and holding that "it is the decree of divorce that constitutes the final determination of the court and determines the merits of the case").

{¶ 14} The underlying case here was not for divorce, but for dissolution of Anna and Nathan's marriage. The case was instituted by a Petition for Dissolution of Marriage with Children. The Judgment Entry of Dissolution of Marriage with Children, along with the...