Court of Appeals of Ohio, First District, Hamilton
AUDREY N. GRIFFIN, Plaintiff-Appellee,
JAMES A GRIFFIN, Defendant-Appellant.
From: Hamilton County Court of Common Pleas, Domestic
Relations Division Trial No. DR-1501954
Zachary D. Smith LLC and Zachary D. Smith for
First Law Offices and Mark Eppley, for Defendant-Appellant.
Defendant-appellant James A. Griffin (husband) appeals the
order of the domestic relations court which sustained
plaintiff-appellee Audrey N. Griffin's (wife) objection,
vacated the magistrate's decision granting husband's
motion to dismiss her complaint and amended complaint for
divorce for lack of subject-matter jurisdiction, and remanded
the matter to the magistrate for further proceedings. We
dismiss husband's appeal because the order does not
qualify as a final, appealable order under R.C. 2505.02(B).
On October 28, 2015, wife filed a complaint for divorce. In
the complaint, she alleged she had been a resident of Ohio
for 180 days and a resident of Hamilton County for 90 days.
On December 9, 2015, husband filed an answer and a
counterclaim for divorce. In his answer, husband asserted
that wife's complaint should be dismissed because she did
not meet the residency requirements set forth in R.C.
On December 28, 2015, wife filed an amended complaint for
divorce. On January 28, 2016, husband filed a motion to
dismiss the complaint and amended complaint for divorce for
lack of subject-matter jurisdiction pursuant to Civ.R.
12(B)(1), asserting that wife had failed to meet the minimum
residency requirements set forth in R.C. 3105.03. A hearing
on the motion to dismiss was scheduled for August 30, 2016,
before a magistrate.
On August 23, 2016, husband filed a motion to continue the
hearing due to his active military service. Six days later,
on August 29, 2016, husband filed a motion to stay the
proceedings based on the Service Members Civil Relief Act. On
August 30, 2016, a magistrate held a hearing on the pending
motions. Husband was not present, but he was represented by
counsel. Shortly thereafter, the magistrate issued a written
decision with findings of fact and conclusions of law. In his
findings of fact, the magistrate denied husband's motions
for a continuance and a stay. In his conclusions of law, the
magistrate granted husband's motion to dismiss for lack
of subject-matter jurisdiction, concluding that wife had not
been physically located in the state of Ohio for the
statutory time period to permit her to invoke the
jurisdiction of the court. The magistrate vacated the
temporary orders of support and stated that his resolution of
the jurisdictional motion had rendered his decision on the
other motions moot.
Wife timely objected to the magistrate's decision
granting husband's motion to dismiss her complaint and
amended complaint for lack of subject-matter jurisdiction.
Husband did not file any cross objection. The trial court
determined that wife had physically resided in Ohio for 94
days, but because she had never voluntarily changed her
domicile, she remained a resident of Ohio while "living
with Husband on military orders in Florida and
Tennessee." The trial court sustained wife's
objection, vacated the magistrate's decision, and
remanded the matter to the magistrate for further
Husband appeals, raising two assignments of error. Before we
can address husband's assignments of error, we must
determine if we have jurisdiction to review the order he has
appealed from. Ohio appellate courts have jurisdiction
"to review and affirm, modify, or reverse final
orders." Article IV, Section 3(B)(2), Ohio Constitution.
If a party appeals from an order that is not final and
appealable, an appellate court lacks jurisdiction to review
the matter and must dismiss the appeal. State ex rel.
White v. Cuyahoga Metro. Hous. Auth., 79 Ohio St.3d 543,
544, 684 N.E.2d 72 (1997); Gen. Acc. Ins. Co. v. Ins. Co.
of N. Am., 44 Ohio St.3d 17, 20, 540 N.E.2d 266 (1989).
For a judgment to be final and appealable, it must satisfy
R.C. 2505.02(B) and, if applicable, Civ.R. 54(B). Gen.
Acc. Ins. Co. at 20. In relevant part, R.C. 2505.02(B)
defines a final order as:
(1) An order that affects a substantial right in an action
that in effect determines the action ...