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Peak-Sims v. Sims

Court of Appeals of Ohio, Ninth District, Summit

May 23, 2018

MONIQUE PEAK-SIMS Appellee
v.
RICCO SIMS Appellant

          APPEAL FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF SUMMIT, OHIO CASE No. DR-2016-12-3754

          RICCO SIMS, pro se, Appellant.

          MONIQUE PEAK-SIMS, pro se, Appellee.

          DECISION AND JOURNAL ENTRY

          THOMAS A. TEODOSIO, PRESIDING JUDGE.

         {¶1} Ricco Sims appeals from the judgment entry of the Summit County Court of Common Pleas, Domestic Relations Division, dismissing his complaint for divorce. We dismiss for lack of jurisdiction.

         {¶2} Mr. Sims filed a complaint for divorce without children against Monique Peak-Sims in December 2016. The parties appeared for a hearing on June 20, 2017, and made brief statements on the record. The trial court concluded the hearing and indicated to the parties they would get notice of the next court hearing. On June 21, 2017, the trial court dismissed the case without prejudice, finding that it would be "in the best interest of both parties to give the parties time to address their mental health issues before proceeding." Mr. Sims now appeals, raising one assignment of error.

         {¶3} "As a general rule, a dismissal without prejudice is not a final, appealable order as it ordinarily constitutes a dismissal other than on the merits which allows the plaintiff to refile the complaint." Smirz v. Smirz, 9th Dist. Lorain No. 13CA010408, 2014-Ohio-3869, ¶ 10. Consequently, as a preliminary matter, we are obligated to raise sua sponte the question of our jurisdiction. See Whitaker-Merrell Co. v. Geupel Constr. Co., Inc., 29 Ohio St.2d 184, 186 (1972).

         {¶4} This Court has jurisdiction to hear appeals only from final judgments. Article IV, Section 3(B)(2), Ohio Constitution; R.C. 2501.02. "In the absence of a final, appealable order, this Court must dismiss the appeal for lack of subject matter jurisdiction." Smirz at ¶ 8. Under R.C. 2505.02(B)(1), a final order is "[a]n order that affects a substantial right in an action that in effect determines the action and prevents a judgment * * *." An order "determines the action and prevents a judgment" when it "dispose[s] of the merits of the cause or some separate and distinct branch thereof [leaving] nothing for the determination of the court." VIL Laser Sys., LLC v. Shiloh Industries., Inc., 119 Ohio St.3d 354, 2008-Ohio-3920, ¶ 8, citing Miller v. First Internatl. Fid. & Trust Bldg., Ltd., 113 Ohio St.3d 474, 2007-Ohio-2457, ¶ 6. Considered under R.C. 2505.02(B)(1), the trial court's order that dismissed Mr. Sims' complaint without prejudice did not dispose of the merits of the cause or a separate and distinct branch thereof

         {¶5} Divorce actions, however, are special proceedings. State ex rel. Papp v. James, 69 Ohio St.3d 373, 379 (1994). We must therefore continue our analysis under R.C. 2505.02(B)(2), which defines a final order as "[a]n order that affects a substantial right made in a special proceeding * * *." 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." R.C. 2505.02(A)(1). "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 (1993). An appellant, therefore, "must demonstrate that in the absence of immediate review of the order they will be denied effective relief in the future." Id. The question is thus whether the dismissal without prejudice of Mr. Sims' complaint for divorce, if not immediately appealable, would foreclose appropriate relief in the future. In considering this question, we turn our attention to two cases previously decided by this Court.

         {¶6} In Smirz v. Smirz, we reviewed the dismissal of a complaint for divorce without prejudice, and adopted the analysis of the Fifth District Court of Appeals as set forth in Davis v. Paige:

[T]he impact on a substantial right based on a dismissal without prejudice in a domestic relations case might give rise to a final, appealable order, but only where the effect on the substantial right is both alleged and prejudicial, i.e., where the impact cannot be rectified through equitable considerations in the refiled cause or motion.

Smirz at ¶ 16, citing Davis v. Paige, 5th Dist. Stark No. 2007 CA 00248, 2008-Ohio-6415, ¶ 40-41. We noted that the law accords "parental and marital rights, including rights to support" and that "the domestic relations court enforces those rights in an equitable manner." Id. at ¶ 18. Because the appellant in Smirz had refiled the divorce action, we concluded that she had the ability to seek redress for her inability to enforce prior temporary support orders in the dismissed action through equitable resolution in the second divorce action. Id. at ¶ 19. We went on to determine that the order dismissing the first divorce action without prejudice was not a final, appealable order because it did not affect a substantial right necessitating a finding of immediate finality. Id

         {¶7} In Moir v. Denkewalter, we considered whether the dismissal of a motion to reallocate parental rights was a final, appealable order. Moir v. Denkewalter, 9th Dist. Medina No. 13CA0082-M, 2015-Ohio-3171. We concluded, on the specific facts of the case, that the order was final and appealable because it affected a substantial right in the context of a special proceeding, stating: "Decisions involving the care and custody of a child implicate substantial rights of the natural parents." Id. . at ¶ 8.

         {¶8} In the present case, there are no children to consider, and we need not address the issue of parental rights. Likewise, there were no orders in effect for spousal or child support. Finally, we note that we do not agree with the dissenting opinion's assertion that the language of the trial court's dismissal entry creates a condition to refiling. Under these circumstances, we conclude the trial court's dismissal of the divorce action, without prejudice, does not foreclose appropriate relief in the future upon the potential refiling of the case. The ...


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