IN RE: H.M., A Minor Child [APPEAL BY HENRY DAVIS]
No. 96470
Court of Appeals of Ohio, EIGHTH APPELLATE DISTRICT, COUNTY OF CUYAHOGA
July 28, 2011
2011-Ohio-3697
BEFORE: Boyle, J., Kilbane, A.J., and Rocco, J.
Civil Appeal from the Cuyahoga County Court of Common Pleas, Juvenile Division, Case No. PR 98771326
Henry Davis, pro se
15815 Arcade Avenue
Cleveland, Ohio 44110
FOR APPELLEE
Tamika Maxwell, pro se
986 Nathaniel Road
Cleveland, Ohio 44110
ATTORNEY FOR APPELLEE, STATE OF OHIO
William D. Mason
Cuyahoga County Prosecutor
BY: Joseph C. Young
Assistant Prosecuting Attorney
Cuyahoga Support Enforcement Agency
1910 Carnegie Avenue, 2nd Floor
Cleveland, Ohio 44115
MARY J. BOYLE, J.:
{¶ 1} Plaintiff-appellant, Henry Davis, appeals from the judgment of the Cuyahoga County Common Pleas Court, Juvenile Division, adopting the magistrate‘s decision and dismissing “without prejudice” his objections to a Cuyahoga County Child Support Enforcement Agency order issued on April 21, 2010. The order from which Davis is appealing, however, is not a final order; therefore, this court lacks jurisdiction. For the reasons discussed below, we dismiss the appeal.
{¶ 2} Due to the apparent procedural irregularities in the proceedings below, we will briefly discuss the procedural history in order to alleviate further confusion in this case.
{¶ 3} In May 1998, the Agency commenced the underlying paternity action, along with defendant-appellee, Tamika Maxwell, against Davis, alleging that he was the father of H.M. According to the record, the matter ultimately came for a hearing on October 18, 1999 before a magistrate, who determined that the parties had been served, but that Davis failed to appear. After hearing testimony from the mother under oath, the magistrate determined that Davis was the father of H.M., born September 9, 1990, and found that a parent-child relationship had been established between Davis and H.M. The magistrate further ordered Davis to pay weekly child support, plus $3,434.85 in maternity expenses and $15,933 for “past care.”
{¶ 4} The magistrate signed the order on December 1, 1999. Nine days later, the juvenile court judge signed it and ordered it to be journalized.
{¶ 5} The record reflects that a subsequent hearing was held on January 13, 2000 before a magistrate on mother‘s claim for past care. Since only the Agency‘s attorney appeared for the hearing, the magistrate recommended that “mother‘s claim for past care be dismissed for lack of evidence.” The juvenile court judge approved the order on February 29, 2000 and it was journalized on March 6, 2000. No other action appears to have
{¶ 6} Davis filed this motion in response to the administrative decision issued on April 21, 2010 that terminated Davis‘s child support obligations, but determined he owed $59,325.33 in past due amounts. According to the notice of “Hearing Rights” contained in the administrative decision, Davis had 30 days to file “a motion to object to the Administrative Termination Hearing Decision,” by filing a motion “in the court that issued the Order.” In his motion, Davis objected to the finding that he owed past arrears and further requested “a paternity test and hearing to justify requested support payment and arrears.” Davis argued that he was incarcerated when H.M. was born, and that while the mother had told him upon his release (after serving five years and seven months) that he was the father, he had never been “provided a paternity test confirming that [H.M. was his] child.”
{¶ 7} Despite Davis‘s timely filing, however, the juvenile court ignored the objection. On June 10, 2010, the court adopted the April 21, 2010 CSEA Administrative Termination Hearing Decision, finding that “[n]either obligor nor obligee objected to CSEA‘s decision by filing a motion with this Court.” On June 23, 2010, the juvenile court judge signed a journal entry, adopting its June 10, 2010 order. The journal entry was filed with the clerk on June 25,
{¶ 8} In the magistrate‘s decision dated “December 8, 2010,” the magistrate indicated that hearing was held on Davis‘s May 17, 2010 “motion” that objected to the CSEA order issued on April 21, 2010. The magistrate recommended Davis‘s “motion” should be dismissed without prejudice because it failed “to state a sufficient claim upon which this court may grant relief in that the objection questions the establishment of paternity, however the administrative recommendation concerns the termination of the support order due to emancipation and the repayment of previously determined arrears.”
{¶ 9} Davis subsequently filed timely objections to the magistrate‘s decision, arguing that he had not properly been determined to be H.M.‘s father. That same day, on December 23, 2010, Davis also filed a “motion for order to show cause and order to vacate order,” requesting the juvenile court to vacate its “June 25, 2010” order for the following four grounds: “1. mistake in findings and recommendations[;] 2. failure of obligee [mother] to
{¶ 10} The juvenile court judge ultimately overruled Davis‘s objections and adopted the magistrate‘s decision of December 8, 2010, thereby dismissing without prejudice Davis‘s motion filed May 17, 2010.
{¶ 11} From this decision, Davis appeals, raising the following two assignments of error:
{¶ 12} “[I.] The trial court committed reversible error by failing to consider relief from judgment under
{¶ 13} “[II.] The trial court committed reversible error by failing to serve plaintiff with notice of parentage or evidentiary hearing.”
Final Order
{¶ 14} Initially, we note that, although Davis‘s two assignments of error pertain to his motion to vacate order, the judgment from which he appeals does not address that motion. In fact, we fail to find any order of the juvenile court addressing this motion; it appears that the trial court has yet to rule on the motion.
{¶ 16} Here, it is clear that Davis is seeking an order from the juvenile court vacating the CSEA‘s determination that he owes $59,325.33 in child-support arrears. And while Davis‘s objection and motion to terminate arrears was dismissed without prejudice, Davis is free to proceed further under
{¶ 17} Accordingly, because we find that the order from which Davis appeals is not a final order, thereby depriving this court of jurisdiction, we must dismiss the appeal.
It is ordered that appellees recover from appellant the costs herein taxed.
It is ordered that a special mandate be sent to said court to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
MARY J. BOYLE, JUDGE
MARY EILEEN KILBANE, A.J., and
KENNETH A. ROCCO, J., CONCUR