FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF
SUMMIT, OHIO CASE No. DR-2016-12-3754
SIMS, pro se, Appellant.
MONIQUE PEAK-SIMS, pro se, Appellee.
DECISION AND JOURNAL ENTRY
A. TEODOSIO, PRESIDING JUDGE.
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
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.
"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).
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
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.
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
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.
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 ...