Dunham v. Ervin
2017 Ohio 7616
| Ohio Ct. App. | 2017Background
- Father (Shawn Ervin) and mother (Kimberly Dunham) entered a March 27, 2013 agreed shared-parenting plan (mother residential parent); the court approved it and deviated from guideline child support.
- Over several years father filed multiple contempt motions and a 2015 motion to modify parental rights; most motions were denied and the modification motion remained pending.
- A court-appointed guardian ad litem (GAL) was involved; father moved to recuse/dismiss the GAL and to recuse the magistrate, alleging bias and misconduct.
- Magistrate ordered a $2,000 trial deposit for the GAL; father objected and the juvenile court construed objections as a motion to set aside and denied it on January 20, 2017, also denying the recusal motions.
- Father appealed from the January 20, 2017 entry while his motion to modify parental rights remained pending; appellee and GAL did not file briefs in the appeal.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether denial of motion to recuse/dismiss GAL is immediately appealable | Dunham: not applicable (she opposed relief) | Ervin: GAL must be removed for bias/conflict; order is appealable now | Not appealable now; appeal dismissed for lack of a final, appealable order |
| Whether denial of motion to recuse magistrate is immediately appealable | Dunham: not applicable | Ervin: magistrate is biased and discriminatory; recusal order should be reviewable now | Not appealable now; interlocutory and reviewable after final judgment |
| Whether magistrate coerced agreement or forced signature | Dunham: not applicable | Ervin: magistrate forced him into agreement and pursued unwarranted child support | Not reached on merits; claim not properly before appellate court because order is not final |
| Whether magistrate’s order requiring trial deposit was properly denied/set aside | Dunham: not applicable | Ervin: deposit order was based on fraud/bad faith by GAL and magistrate; should be set aside | Not appealable now; denial does not affect a substantial right while underlying modification remains pending |
Key Cases Cited
- Noble v. Colwell, 44 Ohio St.3d 92 (Ohio 1989) (definition and purpose of final orders)
- Lantsberry v. Tilley Lamp Co., 27 Ohio St.2d 303 (Ohio 1971) (final order disposes of whole case or separate branch)
- Whitaker-Merrell Co. v. Geupel Constr. Co., 29 Ohio St.2d 184 (Ohio 1972) (appellate jurisdiction limited to final orders)
- State ex rel. Fowler v. Smith, 68 Ohio St.3d 357 (Ohio 1994) (juvenile proceedings are special proceedings; parental rights are substantial rights)
- Bell v. Mt. Sinai Med. Ctr., 67 Ohio St.3d 60 (Ohio 1993) (an order affecting a substantial right is one that, if not immediately appealable, would foreclose appropriate relief)
- In re Kimbler, 44 Ohio App.3d 9 (9th Dist. Ohio) (ruling on judge disqualification under R.C. procedure not a final appealable order)