Tassone v. Tassone
2019 Ohio 683
Ohio Ct. App.2019Background
- Matthew and Zephynia Tassone married in 2011 and have one child; Zephynia filed for divorce in November 2017.
- On December 20, 2017, the parties and counsel approved an agreed interim entry allocating parenting time and resolving/dismissing Matthew’s emergency custody and contempt motions.
- On January 26, 2018, the magistrate entered temporary orders memorializing custody and school placement.
- In April–May 2018 Matthew moved under Civ.R. 60(B) to set aside the December 20 agreed interim entry, alleging duress and opposing counsel misconduct; the trial court denied relief on May 23, 2018.
- Matthew then moved under Civ.R. 52 for findings and conclusions; the trial court denied that motion on July 16, 2018.
- Matthew appealed both denials; the appellate court sua sponte examined whether the orders were final and appealable and dismissed the consolidated appeals for lack of jurisdiction.
Issues and Key Cases Cited
| Issue | Plaintiff's Argument (Tassone) | Defendant's Argument (Matthew) | Held |
|---|---|---|---|
| 1. Are the trial-court orders denying Civ.R. 60(B) relief and denying Civ.R. 52 findings final and appealable? | Agreed interim entry not final, but denial of 60(B) is appealable | The denial of 60(B) is appealable because it disposes of his relief request from the interim entry | Not appealable: underlying agreed interim entry is a temporary custody order (non-final); denial of 60(B) from a non-final order is also non-final, so appellate court lacks jurisdiction |
| 2. Was the December 20 agreed interim entry a final appealable order under R.C. 2505.02? | The agreed interim entry is final and appealable | The entry is temporary custody and not final; contempt was not adjudicated with sanctions | Held not final: temporary custody orders are not final; contempt not found/sanctioned here, so entry is non-final |
| 3. Was Civ.R. 60(B) the proper vehicle to vacate the agreed interim entry? | 60(B) should permit relief because he alleged duress and counsel misconduct | 60(B) applies only to final judgments/orders; underlying order is non-final so 60(B) is improper | Held improper: Civ.R. 60(B) applies only to final judgments/orders; it cannot convert a non-final order into a final one |
| 4. Did the court abuse discretion by denying an evidentiary hearing and findings of fact/conclusions of law? | He was entitled to a hearing and factual findings on duress and misconduct claims | Trial court need not issue findings on denial of relief from a non-final order; no jurisdictional basis for appeal | Court did not reach merits; because orders were non-final, appellate review was barred and appeals dismissed |
Key Cases Cited
- Riverside v. State, 190 Ohio App.3d 765 (Ohio Ct. App. 2010) (appellate courts may raise final-appealable-order jurisdiction sua sponte)
- Lantsberry v. Tilley Lamp Co., 27 Ohio St.2d 303 (Ohio 1971) (final order disposes of whole case or a separate and distinct branch)
- Prod. Credit Assn. v. Hedges, 87 Ohio App.3d 207 (Ohio Ct. App. 1993) (appeals must be taken from final appealable orders)
- In re Murray, 52 Ohio St.3d 155 (Ohio 1990) (trial court labeling does not control finality of order)