Helmstedter v. HelmstedterHelmstedter v. Helmstedter
Dated: July 22, 2009
CARR, Judge.
{¶1} Appellant, Barry Helmstedter (“Husband“), appeals the purported judgment of the Summit County Court of Common Pleas, Domestic Relations Division. This Court dismisses the appeal for lack of a final, appealable order.
I.
{¶2} On June 15, 2004, Kathleen Helmstedter (“Wife“), filed a complaint for divorce. Husband answered. The trial court issued temporary orders.
{¶3} During the parties’ marriage, Husband‘s father, George Helmstedter (“George“), loaned the couple a substantial sum of money. When the couple defaulted on the loan, George sued them and obtained a judgment. Meanwhile, Husband and Wife sold a piece of property pursuant to a land contract. The parties presented an agreed judgment entry to the court, which ordered the buyers of the property to make payments on the land contract payable to George to
{¶4} The matter proceeded in a contentious manner. On January 25, 2006, Wife filed a notice of filing under the bankruptcy code and a suggestion of stay. The domestic relations courts stayed proceedings pending resolution of the bankruptcy matter. Notwithstanding the stay and no record of its termination, the matter proceeded in the domestic relations court.
{¶5} On March 15, 2007, Wife moved to join George as a party who was claiming an interest in property owned by the parties. The trial court added George as a party the next day.
{¶6} The matter proceeded to trial on April 19, 2007. On May 30, 2007, the domestic relations court issued a purported final entry decree of divorce. On June 13, 2007, Wife filed a motion for new trial pursuant to
{¶7} On April 25, 2008, Wife filed a “motion to adopt judgment order nunc pro tunc” which she asserted would negate the need for a new trial. The matter proceeded before the court on May 1, 2008, at which time Wife presented her proposed “judgment order nunc pro tunc” and admitted that Husband and George did not agree with the content. Husband voiced his opposition to Wife‘s proposed order and presented one of his own. George also voiced his opposition to Wife‘s proposed order. Although no witnesses were sworn, the domestic relations
II.
ASSIGNMENT OF ERROR I
“THE TRIAL COURT INCORRECTLY AND PREJUDICIALLY ASSIGNED FINANCIAL MISCONDUCT TO THE DEFENDANT-APPELLANT BASED UPON HIS DAY-TRADING VOCATION.”
ASSIGNMENT OF ERROR II
“THE TRIAL COURT COMMITTED PREJUDICIAL ERROR BY ADOPTING A NUNC PRO TUNC ORDER FILED MAY 1, 2008.”
{¶8} Husband argues that the trial court erred by assigning financial misconduct to him in the May 30, 2007 decree of divorce. He further argues that the trial court erred in its May 1, 2008 adoption of Wife‘s proposed judgment entry nunc pro tunc.
{¶9} As a preliminary matter, this Court is “obligated to raise sua sponte questions related to our jurisdiction.” Whitaker-Merrell Co. v. Geupel Constr. Co., Inc. (1972), 29 Ohio St.2d 184, 186. This Court has jurisdiction to hear appeals only from final judgments.
“For purposes of
Civ.R. 54(B) , the court shall not enter final judgment as to a claim for divorce *** unless one of the following applies:“(1) The judgment also divides the property of the parties, determines the appropriateness of an order of spousal support, and, where applicable, either allocates parental rights and responsibilities, including payment of child support, between the parties or orders shared parenting of minor children;
“(2) Issues of property division, spousal support, and allocation of parental rights and responsibilities or shared parenting have been finally determined in orders, previously entered by the court, that are incorporated into the judgment;
“(3) The court includes in the judgment the express determination required by
Civ.R. 54(B) and a final determination that either of the following applies:“(a) The court lacks jurisdiction to determine such issues;
“(b) In a legal separation action, the division of the property of the parties would be inappropriate at that time.”
See, also, Wilson v. Wilson, 116 Ohio St.3d 268, 2007-Ohio-6056 (recognizing the proscription of
{¶11} The version of
{¶12} A land contract, also known as a contract for deed or installment land contract, is a “conditional sales contract for the sale of real property.” Black‘s Law Dictionary (8 Ed. 2004), 343 and 894.
{¶13}
{¶14} The trial court later exercised its inherent jurisdiction to reconsider its prior non-final order when it considered Husband‘s and Wife‘s issues regarding the allocation of funds yet to be received from payments on the land contract. In the May 1, 2008 purported “judgment order nunc pro tunc,” the domestic relations court again failed to divide Husband‘s and Wife‘s property interest in the real property sold pursuant to a land contract, although it divided future payments on the land contract between Wife and George. The domestic relations court again asserted that it “shall continue to have jurisdiction over all of the above matters[,]” presumably so that it might eventually address the division of Husband‘s and Wife‘s property interest in the real property.
{¶15} While this Court here makes no determination regarding the character or effect of the “judgment order nunc pro tunc,” it is clear that it cannot be construed as a final, appealable order. Not only does the order fail to effect the equitable division of property left unresolved by the May 30, 2007 decree, but it fails to address any other necessary issues delineated in
Appeal dismissed.
Immediately upon the filing hereof, this document shall constitute the journal entry of judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the period for review shall begin to run.
Costs taxed to Appellant.
DONNA J. CARR
FOR THE COURT
MOORE, P. J.
DICKINSON, J.
CONCUR
APPEARANCES:
KERRY O‘BRIEN, Attorney at Law, for Appellant.
LESLIE S. GRASKE, Attorney at Law, for Appellee.