Court of Appeals of Ohio, Eighth District, Cuyahoga
Appeal from the Cuyahoga County Court of Common Pleas
Domestic Relations Division Case No. DR-06-308972
Polito, Rodstrom & Burke, L.L.P., and Joseph T. Burke;
and Stephen E.S. Daray, for appellant
Dworken & Bernstein Co., L.P.A., Anna M. Parise, and
Lydia Chiro, for appellee.
JOURNAL ENTRY AND OPINION
D. CELEBREZZE, JR., J.
1} Plaintiff-appellant, Michelle Champoir
("appellant"), brings the instant appeal
challenging the trial court's ruling granting
defendant-appellee's Douglas Champoir
("appellee"), motion to disqualify appellant's
counsel. After a thorough review of the record and law, this
court reverses the trial court's judgment and remands the
matter for further proceedings consistent with this opinion.
Factual and Procedural History
2} Appellant brings the instant appeal from a
domestic relations matter, Cuyahoga D.R. No. DR-06-308972. In
that action, the parties were divorced in June 2006.
3} On March 16, 2018, appellee filed a motion to
modify child support. Appellee sought to modify the trial
court's previous support order entered on December 20,
2007. In his motion to modify, appellee asserts that a
significant change in circumstances has occurred since the
trial court's previous support order. A hearing on
appellee's motion to modify child support was scheduled
for June 20, 2018.
4} On the morning of the June 20, 2018 hearing,
appellee filed his motion to disqualify appellant's
counsel, Joseph Burke ("Burke"). It appears from
the record that the hearing on appellee's motion to
modify was canceled. It also appears from the record that
prior to the June 20, 2018 hearing, on Monday, June 18, 2018,
appellee's counsel sent Burke an email requesting that he
voluntarily withdraw from the matter on the basis that
appellee may call Burke as a witness to testify in support of
his motion to modify. Burke responded and declined to
withdraw from the matter.
5} In his motion to disqualify, appellee sought to
have Burke disqualified on the same basis - that appellee may
call Burke as a witness. In his motion to modify, appellee is
seeking a downward deviation in his monthly child support
order and anticipates calling Burke to testify as to
appellant's and Burke's shared living expenses. Burke
is married to appellant, and the couple have been married for
6} On June 28, 2018, appellant filed a brief in
opposition to appellee's motion to disqualify. On
September 24, 2018, in an effort to expedite the trial
court's ruling on the motion to disqualify, appellee
filed a "motion for order" on his previously filed
motion to disqualify. Thereafter, the trial court issued a
judgment entry on October 2, 2018, granting appellee's
motion to disqualify. It appears from the record that the
trial court did not hold a hearing on the motion to
7} In its October 2, 2018 judgment entry granting
appellee's motion to disqualify, the trial court
concluded that Burke was a necessary witness and therefore
subject to disqualification under Prof.Cond.R. 3.7.
8} It is from the October 2, 2018 judgment entry
that appellant brings the instant appeal, assigning two
errors for our review.
trial court erred by disqualifying [Burke].
trial court erred by disqualifying [Burke's law firm].
Law and Analysis
Final, Appealable Order
9} As an initial matter, appellee argues that the
trial court's judgment entry granting his motion to
disqualify is not a final, appealable order, and thus, argues
that this court does not have jurisdiction over the instant
10} Ohio's courts of appeals have jurisdiction
"to review and affirm, modify, or reverse final
orders." Ohio Constitution, Article IV, Section 3(B)(2).
However, the Ohio Supreme Court long ago addressed this
precise issue and "held that a decision
granting a motion to disqualify opposing counsel is
a final, appealable order that a party deprived of counsel
can appeal immediately." (Emphasis sic.)
Wilhelm-Kissinger v. Kissinger,129 Ohio St.3d 90,
2011-Ohio-2317, 950 N.E.2d 516, ¶ 8, citing Russell
v. Mercy Hosp.,15 Ohio St.3d 37, 39, 472 N.E.2d 695
(1984). The Ohio Supreme Court more specifically added that