HERBERT L. SEABOLT Appellant
RHONDA M. SEABOLT Appellee
FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF
SUMMIT, OHIO CASE No. DR-2015-09-2841.
CORINNE HOOVER SIX, Attorney at Law, for Appellant.
LAX, Attorney at Law, for Appellee.
DECISION AND JOURNAL ENTRY
JENNIFER HENSA, JUDGE
Herbert Seabolt has attempted to appeal a judgment entry of
the Summit County Court of Common Pleas, Domestic Relations
Division, that granted Rhonda Seabolt's motion for relief
from judgment under Civil Rule 60(B). For the following
reasons, we dismiss the appeal.
The Seabolts married in 1986. In 2015, Husband filed a
complaint for divorce, listing the marital home as Wife's
last known address. After holding a final hearing that Wife
did not attend, the trial court entered a judgment for
divorce. Six months later, Wife moved for relief from
judgment, alleging that she did not receive notice of the
final hearing. Following a hearing on her motion, the court
found that Husband had provided an address for Wife that was
not reasonably calculated to notify her of the court's
orders, that Husband did not properly serve Wife, and that
Husband took additional measures to conceal the proceedings
from Wife. It granted Wife's motion, concluding that she
did not receive legally sufficient notice of the final
hearing. Husband has attempted to appeal the trial
court's judgment entry, assigning five errors.
As a preliminary matter, we must determine whether we have
jurisdiction over this appeal. Whitaker-Merrell Co. v.
Geupel Constr. Co., Inc., 29 Ohio St.2d 184, 186 (1972).
This Court has jurisdiction to hear appeals only from
judgments and final orders. Ohio Constitution, Article IV,
Section 3(B)(2); R.C. 2501.02. In the absence of a final
appealable judgment or order, this Court must dismiss the
appeal. Lava Landscaping, Inc. v. Rayco Mfg., Inc.,
9th Dist. Medina No. 2930-M, 2000 Ohio App. LEXIS 176, *2
(Jan. 26, 2000).
"An order is a final, appealable order only if it meets
the requirements of both R.C. 2505.02 and, if applicable,
Civ.R 54(B)." Lycan v. Cleveland, 146 Ohio
St.3d 29, 2016-Ohio-422, ¶ 21. Revised Code Section
2505.02(B)(3) provides that the definition of a "final
order" includes "[a]n order that vacates or sets
aside a judgment * * *." The trial court's entry
granting Wife's motion for relief from judgment, which
she purported to file pursuant to Civil Rule 60(B), initially
appears to satisfy that requirement because it vacates part
of its "Final Judgment for Divorce * * *[.]" The
parties acknowledge, however, that the "Final Judgment
for Divorce * * *" did not distribute the marital
property. The Ohio Supreme Court has held that, if a judgment
entry does not adjudicate all of the rights and liabilities
of all of the parties, it is not a final judgment.
Jarrett v. Dayton Osteopathic Hospital, Inc., 20
Ohio St.3d 77, 78 (1985). It has also held that a motion
seeking to vacate such an entry is not a Rule 60(B) motion,
but is instead authorized under Rule 54(B). Id.
Consequently, we conclude that the trial court's entry
that granted Wife's motion for relief from judgment does
not qualify as a final order under Section 2505.02(B)(3)
because it did not "vacate[ ] or set[ ] aside a
judgment[.]" R.C. 2505.02(B)(3); see also Baker v.
Baker, 9th Dist. Lorain No. 09CA009603, 2009-Ohio-6906,
¶ 8 (concluding that divorce entry that did not fully
divide the parties' property was not a final judgment).
The trial court's entry also does not qualify as a final
order under Section 2505.02(B)(2). That section provides that
the definition of a "final order" includes
"[a]n order that affects a substantial right made in a
special proceeding * * *." Divorce actions are special
proceedings. State ex rel Papp v. James, 69 Ohio
St.3d 373, 379 (1994). Accordingly, the trial court's
entry would constitute a final order if it "affect[ed] a
substantial right." R.C. 2505.02(B)(2). According to
Section 2505.02(A)(1), a "[substantial right" is
"a right that the United States Constitution, the Ohio
Constitution, a statute, the common law, or a rule of
procedure entitles a person to enforce or protect." An
order affects a substantial right if "appropriate relief
cannot be obtained in an appeal from final judgment."
Moir v. Denkewalter, 9th Dist. Medina No.
13CA0082-M, 2015-Ohio-3171, ¶ 8, citing Southside
Community Dev. Corp. v. Levin, 116 Ohio St.3d 1209,
2007-Ohio-6665, ¶ 7.
As previously explained, because the trial court's
"Final Judgment of Divorce * * *" did not dispose
of the marital property, it was not a final judgment and
remained subject to modification. Jarrett at 78;
Bencin v. Bencin, 9th Dist. Medina No. 14CA0063-M,
2016-Ohio-54, ¶ 8. We note that the entry that granted
Wife's motion for relief from judgment only vacated the
"Final Judgment of Divorce * * *" in part.
Specifically, the entry indicated that the "Final
Judgment of Divorce * * *" was vacated "only to the
extent that allows [Wife] to file an answer * * * so that she
may assert a defense or counterclaim regarding the division
of property and spousal support." Husband has not
alleged that the entry affected his substantial rights, let
alone established that he will not be able to obtain
appropriate relief in an appeal from the trial court's
final judgment. We, therefore, conclude that the trial court
entry that granted Wife's motion for relief from judgment
is also not a final order under Section 2505.02(B)(2).
Husband argues that the court's entry is appealable
because it contains language that "there is no just
reason for delay" under Rule 54(B). This Court does not
have jurisdiction over an appeal, however, unless both the
requirements of Section 2505.02 and Rule 54(B), if
applicable, are met. Lycan,146 Ohio St.3d 29,
2016-Ohio-422 at ¶ 21; Chef Italiano Corp. v. Kent
State Univ.,44 Ohio St.3d 86 (1989), syllabus. An order
that does not meet the requirements of Section 2505.02 is not
a final order "regardless of its Civ.R. 54(B)
language." Chef Italiano Corp. at 89. Upon
review of the record, we conclude that the trial court's
judgment entry granting Wife's motion for relief from