Smith v. Smith
| Decision Date | 07 March 2019 |
| Docket Number | Case No. 18CA11 |
| Citation | 2019 Ohio 899 |
| Parties | REBBECCA R. SMITH, Plaintiff-Appellant, v. CLIFFORD F. SMITH JR., Defendant-Appellee. |
| Court | Ohio Court of Appeals |
DECISION AND JUDGMENT ENTRY
APPEARANCES:
Rebbecca R. Smith, Logan, Ohio, Pro Se Appellant.
Timothy P. Gleeson, Gleeson Law Office, Logan, Ohio, for Appellee.
{¶1} Rebbecca R. Smith and Clifford R. Smith, Jr., were granted a divorce on June 11, 2018. Rebbecca R. Smith appeals the Decision and Judgment Entry of the Hocking County Common Pleas Court, entered May 21, 2018, which overruled her objections to the Magistrate's Decision of January 4, 2018. Upon review, we find the trial court did not abuse its discretion with regard to its rulings on the objections. Accordingly, we overrule all assignments of error and affirm the judgment of the trial court.
{¶2} The parties, Appellant Rebbecca R. Smith and Appellee Clifford F. Smith, Jr., were married on December 30, 2016. Appellant filed a complaint for divorce in the Hocking County Common Pleas Court on May 1, 2017. Contemporaneously, Appellant filed an ex parte motion for a temporary restraining order and an ex parte motion for temporary orders granting exclusive occupancy of the marital residence. On May 4, 2017, the Magistrate granted Appellant's motions. On May 17, 2017, Appellee filed an answer and counter-claim in which he agreed that the parties were incompatible and also requested the divorce complaint to be granted.
{¶3} Appellant subsequently filed a request for mediation which was denied. On June 16, 2017, the trial court filed an order granting Appellant's notice of voluntary dismissal of the action. However, on July 10, 2017, Appellant filed a notice of withdraw of voluntary dismissal. She also filed a request for sale of the marital residence. On July 12, 2017, Appellant filed a motion for contempt. Attached to the motion for contempt was Appellant's affidavit, in which she made several allegations that Appellee had violated the temporary restraining order. Pertinent to this appeal, Appellant alleged that Appellee had removed her teenage son from the automobile insurance.
{¶4} The divorce action came on for hearing before the Magistrate on November 15, 2017. The parties filed post-trial briefs on the contested issues. On January 4, 2018, the Magistrate's Decision/Judgment Entry was filed.
{¶5} The Magistrate found that the parties stipulated certain preliminary and foundational issues. The Magistrate took judicial notice of a civil protection order case, 17-DR/DV-0061, originally filed May 1, 2017. The Magistrate found the remaining issues were: (1) equity in the marital residence and (2) division of marital joint savings and checking accounts. The Magistrate made findings of fact and conclusions of law and ordered Appellee's counsel to prepare a Decree of Divorce within 14 days of the time period for objections to the decision.
{¶6} Appellant filed Objections to the Decision of the Magistrate on January 11, 2018. In the objections' pleading, Appellant's counsel set forth 6 objections. Included within this pleading was Appellant's own listing of objections and related arguments, along with proposed documentation. On January 17, 2018, Appellee filed a Motion to Strike Attachments to Plaintiff's Objections to Decision of Magistrate, arguing that nearly all of the attachments had not been made exhibits at trial.
{¶7} On March 20, 2018, Appellee filed a reply to the objections. On May 21, 2018, the trial court filed a Judgment Entry. The trial court overruled all objections and affirmed all other orders of the Magistrate. The trial court filed a Judgment Entry-Decree of Divorce on June 11, 2018. This timely appeal followed.
{¶8} We are initially presented with the question of whether we have a final appealable order. The judgment entry attached to the June 20, 2018 notice of appeal is the trial court's Journal Entry filed May 21, 2018.1 Two issues are presented: (1) Appellant did not attach a copy of the Judgment Entry-Final Decree of Divorce filed June 11, 2018; and (2) the record does not reflect that Appellee's counter-claim was dismissed either orally or writing.
{¶9} Section 3(B)(2), Article IV of the Ohio Constitution provides that courts of appeals 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 * * *." Generally speaking, "[a]n order of a court is a final appealable order only if the requirements of both R.C. 2505.02 and, if applicable, Civ.R. 54(B), are met. Liming v. Liming, at ¶ 3, quoting State ex rel. Scruggs v. Sadler, 97 Ohio St.3d 78, 776 N.E.2d 101, 2002-Ohio-5315, at ¶ 5. If an order is not both final and appealable, a reviewing court has no jurisdiction to consider thematter and has no choice but to dismiss the appeal. The Bell Drilling & Producing Co. v. Kilbarger Constr., Inc., 4th Dist. Hocking No. 96CA23, 1997 WL 361025 (June 26, 1997), at *2.
{¶10} To determine whether an order is final and appealable, an appellate court's review involves a two-step process. Liming, supra, at ¶ 6, citing Wisintainer v. Elcen Power Strut Co., 67 Ohio St.3d 352, 354, 1993-Ohio-120, 617 N.E.2d 1136. First, and most important, a reviewing court must focus its attention on whether the appealed order is "final" as established by R.C. 2505.02; that is, whether the order affects a substantial right and in effect determines the action and prevents a judgment. Wisintainer at 354, 617 N.E.2d 1136. A divorce proceeding is a "special proceeding." Robinson v. Robinson, ¶ 6. See Wilhelm-Kissinger v. Kissinger, 129 Ohio St.3d 90, 91, 2011-Ohio-2317, 950 N.E.2d 516; State ex rel. Papp v. James, 69 Ohio St.3d 373, 379, 632 N.E.2d 889 (1994); Davis v. Davis, 4th Dist. Jackson No. 00CA28, 2001 WL 884090, *3. However, an order made in a special proceeding is final only if it affects a substantial right. Robinson, supra, at ¶ 7. R.C. 2505.02(B)(2). "An order which affects a substantial right has been perceived to be one which, if not immediately appealable, would foreclose appropriate relief in the future." Bell v. Mt. Sinai Med. Ctr., 67 Ohio St.3d 60, 63, 616 N.E.2d 181 (1993).
{¶11} App.R. 4(A) provides that a party who wishes to appeal from an order that is final upon its entry shall file the notice of appeal required by App.R. 3 within 30 days of that entry. App.R. 3(D) requires that a notice of appeal "designate the judgment, order or part thereof appealed from." Here, Appellant attached the May 21, 2018 entry to the notice of appeal but did not attach the Judgment Entry-Final Decree of Divorce dated June 11, 2018. A final decree of divorce determines the entire case and reserves nothing for future determination. R.C. 2505.02. Evans v. Cole, 4th Dist. Jackson No. 00CA17, 2011 WL 688594 (June 11, 2001), at *4. And, temporary orders merge into the final divorce decree. Evans, supra, citing Colom v. Colom, 58 Ohio St.2d 245, 389 N.E.2d 856 (1979).
{¶12} In Jenkins v. Hill, 4th Dist. Meigs No. 4CA4, 2015-Ohio-118, Appellant Jenkins designated the trial court's February 27, 2014 judgment denying his motion for new trial in his notice of appeal, but his assignment of error and related argument contested the trial court's February 10, 2014 judgment entered on the jury verdict in favor of the opposing parties. Jenkins did not request a new trial but instead requested a reversal of the judgment entered by the trial court on the jury verdict. We were guided by the decision in Transamerica Inc. Co. v. Nolan, 72 Ohio St.3d 320, 649 N.E.2d 1229 (1995), syllabus, wherein the Supreme Court of Ohio expressly recognized that "[p]ursuant to App.R. 3(A), the only jurisdictional requirement for a valid appeal is the timely filing of a notice of appeal." See Jenkins, supra, at ¶ 9. Therefore, in Jenkins we held, consistent with Transamerica, that a failure to comply with App.R. 3(D) is not a jurisdictional defect. Id. See, e.g., Bank of Am., N.A. v. Robledo, 10th Dist. Franklin No. 13AP-278, 2014-Ohio-1185, ¶ 14, a case in which the appellants failed to comply with App.R. 3(D) ()
{¶13} The Transamerica decision further provided at ¶ 10: "When presented with other [i.e. nonjurisdictional] defects in the notice of appeal, a court of appeals is vested with discretion to determine whether sanctions, including dismissal, are warranted, and its decision will not be overturned absent an abuse of discretion." Id. at syllabus. In Jenkins, we noted that there was in fact a final appealable order, and the appellees had not established any prejudice from the App.R. 3(D) defect. In the briefing, the appellees had addressed the merits of Jenkins' claims. Under these circumstances, we exercised our discretion to address the merits of this appeal. See also Avery v. Avery, 2nd Dist. Greene No. 2001-CA-100, 2002-Ohio-1188, at *1.2
{¶14} In this case, Appellant's notice of appeal specifies that she is appealing the Judgment Entry filed May 21, 2018. Appellant is acting pro se. Pro se civil litigants are bound by the same rules and procedures as those litigants who retain counsel. Hinton v. Shoop, 4th Dist. Ross No. 17CA3619, 2018-Ohio-3647, at Fn. 2; see Meyers v. First Natl. Bank, 3 Ohio App.3d 209, 210, 444 N.E.2d 412 (1981). However, to decide cases on their merits and further the interest of justice, we must give pro se litigants wide latitude. Miller v. Kutschbach, 111 Ohio App.3d 157, 159, 675 N.E.2d 1277 (4th Dist.1996).
{¶15} The May 21, 2018 journal entry was merged into the Judgment Entry-Final Decree of Divorce. Appellant could not have appealed the May entry until the final decree of divorce was entered on the record. Once the final decree was entered, Appellant timely...
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