2013 Ohio 981
Ohio Ct. App.2013Background
- Husband and Wife divorced in 2011 after 25 years of marriage; divorce decree entered November 30, 2011 with specific factual findings and a spousal-support award of $1,000/month for 60 months.
- Husband filed Civ.R.52 motion for findings of fact and conclusions of law and a motion to interpret; trial court denied both on January 12, 2012.
- Husband then appealed February 6, 2012, challenging both the November 30, 2011 decree and the January 12, 2012 order.
- Civ.R.52 was inapt because the decree already contained separate findings of fact and conclusions of law; thus the motion did not toll the appeal period.
- Court held the November 30, 2011 decree untimely for lack of proper appeal and lacked jurisdiction to review the issues raised from that decree.
- Although the January 12, 2012 order would have been timely to appeal, Husband forfeited it by failing to present any error or argument on that order.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the November 30, 2011 decree was timely appealed | Bonnette contends for Civ.R.52 tolling. | Court properly found Civ.R.52 inapplicable; decree already had findings. | Timeliness precluded; appeal from the decree dismissed. |
| Whether Civ.R.52 tolling applies to extend the appeal period | Civ.R.52 tolls time for further findings. | Inapplicable because the decree contained the required findings. | No tolling; appeal from November decree untimely. |
| Whether the January 12, 2012 order is subject to timely appeal and properly argued | Appeal from the January 12 order could be timely. | No error presented; no argument on this order, and the issues relate to the untimely decree. | Appeal from January 12 order not properly raised; rights preserved were limited. |
Key Cases Cited
- Nigro v. Nigro, 2004-Ohio-6270 (9th Dist. 2004) (timeliness of appeal when Civ.R.52 is misapplied)
- Pendell v. Adams Cty. Bd. of Elections, 40 Ohio St.3d 58 (Sup. Ct. 1988) (court lacking jurisdiction if notice/tiling requirements not met)
- Pascual v. Pascual, 2012-Ohio-5819 (9th Dist. 2012) (requirement to articulate and support assignments of error)
- Sherlock v. Myers, 2004-Ohio-5178 (9th Dist. 2004) (burden on appellants to argue and cite supporting authority)