ANNA CAROL QUESINBERRY v. NATHAN QUESINBERRY
Appellate Court Case No. 29192
Trial Court Case No. 2018 DM 00175
IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT MONTGOMERY COUNTY
November 22, 2021
[Cite as Quisenberry v. Quisenberry, 2021-Ohio-4680.]
[Civil Appeal from Common Pleas Court]
PER CURIAM:
{¶ 1} Anna Quesinberry appeals a June 14, 2021 Decision and Judgment overruling her
{¶ 2} Nathan Quesinberrry filed objections to the magistrate’s decision. In the June 14 Judgment on appeal, the trial court found Nathan’s objections well-taken in part, and sustained them. The trial court ultimately overruled Anna’s motion to vacate. The court also noted that other, separate motions were still pending, including Nathan’s motion alleging contempt and requesting a modification of the parties’ shared parenting plan, and
{¶ 3} Anna appealed the June 14 Judgment. Nathan and Ariel Quesinberry (Nathan’s current spouse and intervenor in the trial court case) filed a motion to dismiss this appeal for lack of a final appealable order. They assert that the motions pending in the case prevent the June 14 Judgment from being final. Anna filed a response; Nathan and Ariel filed a reply. For the following reasons, we overrule the motion to dismiss. The appeal shall proceed.
{¶ 4} An appellate court has jurisdiction to review only final orders of the lower courts in its district.
{¶ 5} “For a judgment to be final and appealable, it must satisfy the requirements of
An order is a final order that may be reviewed, affirmed, modified, or reversed, with or without retrial, when it is one of the following:
(1) An order that affects a substantial right in an action that in effect determines the action and prevents a judgment;
(2) An order that affects a substantial right made in a special proceeding or upon a summary application in an action after judgment; [or]
(3) An order that vacates or sets aside a judgment or grants a new trial[.]
{¶ 6} In 1980, the Supreme Court of Ohio recognized as “well-settled” the rule that “a judgment denying a motion for relief from judgment filed pursuant to
An order affecting a substantial right in an action which in effect determines the action and prevents a judgment, an order affecting a substantial right made in a special proceeding or upon a summary application in an action after judgment, or an order vacating or setting aside a judgment and ordering a new trial is a final order which may be reviewed, affirmed, modified, or reversed, with or without retrial.
{¶ 7} The Colley Court did not cite the final order statute in its opinion or identify which part of the statute a
{¶ 9} In Lemerand, the court briefly considered the finality of two orders: one dismissing a declaratory judgment action, and one overruling a motion for relief from judgment. The court said that, as to the trial court’s order dismissing the declaratory judgment action, that order satisfied
{¶ 10} Tethering the finality of a
{¶ 11} Since the Supreme Court in Colley presumably found the denial of a
R.C. 2505.02(B)(1): An Order that Determines the Action
{¶ 12} Division (B)(1) of the final order statute defines as final “[a]n order that affects a substantial right in an action that in effect determines the action and prevents a judgment.” “For an order to determine the action, it must dispose of the merits of the cause or some separate and distinct branch thereof and leave nothing for the determination of the court.” VIL Laser Sys., L.L.C. v. Shiloh Industries, Inc., 119 Ohio St.3d 354, 2008-Ohio-3920, 894 N.E.2d 303, ¶ 8, citing Miller v. First Internatl. Fid. & Trust Bldg., Ltd., 113 Ohio St.3d 474, 2007-Ohio-2457, 866 N.E.2d 1059, ¶ 6.
{¶ 13} Typically, in a divorce case, the decree of divorce is the first (although often not the only) final order entered in the case. The decree is final under
{¶ 14} The underlying case here was not for divorce, but for dissolution of Anna and Nathan’s marriage. The case was instituted by a Petition for Dissolution of Marriage with Children. The Judgment Entry of Dissolution of Marriage with Children, along with the Shared Parenting Plan incorporated therein, which was issued by the trial court on May 23, 2018, granted and resolved the Petition and determined the dissolution action. Thus, it appears to this court that, in the absence of any argument to the contrary, the 2018 Judgment Entry of Dissolution was “[a]n order that affect[ed] a substantial right in an action that in effect determine[d] the action and prevent[ed] a judgment” under
{¶ 15} Anna’s
{¶ 17} Accordingly, we conclude that the June 14 Judgment did not “determine the action” because the action had already been determined.
R.C. 2505.02(B)(2): An Order in a Special Proceeding or After Judgment
{¶ 18} “An order that affects a substantial right made in a special proceeding or upon a summary application in an action after judgment” is a final order under
Special Proceedings
{¶ 19} A special proceeding is “an action or proceeding that is specially created by statute and that prior to 1853 was not denoted as an action at law or a suit in equity.”
Summary Applications after Judgment
{¶ 20}
{¶ 21} In a criminal case, a defendant’s “post-judgment motion to take a polygraph exam is one made ‘upon a summary application in an action after judgment.’ ” State v. Branham, 6th Dist. Huron No. H-95-066, 1995 WL 704100, *1 (Nov. 27, 1995). Garnishment or collection proceedings after judgment have also been considered summary
{¶ 22} This court routinely, and without comment, considers orders resolving post-judgment motions as orders entered on summary application after judgment, particularly in domestic relations proceedings. See, e.g., Sullivan v. Sullivan, 2d Dist. Montgomery No. 28961, 2021-Ohio-1117 (considering the denial of a
Affecting a Substantial Right
{¶ 23} In addition to being a special-proceeding or summary-application order, to satisfy
{¶ 24} The order must also affect the substantial right; “the mere existence or implication of a substantial right in a case is insufficient.” Crown Srvs., Inc. v. Miami Valley Paper Tube Co., 162 Ohio St.3d 564, 2020-Ohio-4409, 166 N.E.3d 1115, ¶ 16, citing Bell v. Mt. Sinai Med. Ctr., 67 Ohio St.3d 60, 63, 616 N.E.2d 181 (1993). “An order affects a substantial right ‘only if an immediate appeal is necessary to protect the right effectively.’ ” Id., quoting Wilhelm-Kissinger v. Kissinger, 129 Ohio St.3d 90, 2011-Ohio-2317, 950 N.E.2d 516, ¶ 7. Or, said differently, “[a]n order affecting a substantial right is one that, if not immediately appealable, would foreclose appropriate relief in the future.” State v. Zimpfer, 2d Dist. Montgomery No. 27705, 2018-Ohio-2430, ¶ 11, citing Bell v. Mt. Sinai Med. Ctr., 67 Ohio St.3d 60, 63, 616 N.E.2d 181 (1993).
{¶ 25} This analysis generally looks at whether an immediate appeal is necessary or whether the appealing party can wait until the action is fully resolved. See Thomasson at ¶ 24-30 (discussing cases and whether “a successful appeal after final judgment would * * * provide an effective remedy“). Courts have historically focused on whether an appellant can wait for final judgment in the case to appeal. This court has said:
For an order to affect a substantial right, the appellant must as a threshold matter establish that vindication of that right on appeal after final judgment is not available. Bell v. Mt. Sinai Med. Ctr. (1993), 67 Ohio St.3d 60, 616 N.E.2d 181. In other words, a substantial right is affected when, absent an immediate,
albeit arguably interlocutory appeal, the impact of the order upon the appellant’s legal rights cannot effectively be examined by the appellate court and appropriate relief granted if warranted. Id. at 63, 616 N.E.2d at 183-184.
State v. Chalender, 99 Ohio App.3d 4, 6-7, 649 N.E.2d 1254 (2d Dist.1994).
{¶ 26} In the case before us, the final judgment has already been entered, so the situation does not fit comfortably into this analysis, particular with respect to summary application orders. In fact, a summary application after judgment is by definition occurring after judgment. Asking whether a party must await final judgment to appeal therefore does not make much sense.
{¶ 27} This court is bound by the Supreme Court of Ohio’s holding in Colley that the denial of a
{¶ 28} We take the latter approach, which is more consistent with the Supreme Court’s recent focus on protecting the appellant’s rights effectively. See, e.g., Crown Srvs. at ¶ 16 (“An order affects a substantial right ‘only if an immediate appeal is necessary to protect the right effectively’ “).
{¶ 29} We find that an immediate appeal is necessary here. We further find that it would be inequitable and impracticable to make Anna wait until there are no matters pending before the trial court before she can appeal the June 14 Judgment. In arguing that the June 14 Judgment is not final because other matters are pending in the dissolution case, Nathan and Ariel suggest that Anna must wait to appeal it until all of those motions – and presumably any new motions filed hereafter – are resolved. There is no way for this court, the trial court, or the parties, to know when that will be. It is possible that litigation will continue between the parties indefinitely, at least until the minor children are emancipated, child support is entirely paid, and no other issues remain. Though certainly all involved hope that is not the case, this court would expect that the currently pending motions, at least, will take some time to resolve. Matters requiring court participation sometimes arise in divorce and dissolution cases despite the goodwill and cooperation of the parties, and routinely arise where such is lacking. Subjecting a party’s post-judgment right to appeal to the question of whether the other party has sought relief in the trial court will inevitably cause delay and invite gamesmanship. It could also discourage a party from seeking needed relief in the first instance so that they can appeal, or force an unfair choice between seeking relief in the
{¶ 30} In addition to the risk of protracted post-judgment litigation and resultant uncertainty about when an appeal could ever be taken, the nature of the orders and motions at issue in this case convinces us that an immediate appeal is necessary. In the order on appeal, Anna sought to vacate the decree of dissolution that resolved the financial issues between the parties and incorporated their agreements as to the four minor children. Pending in the trial court case are Nathan’s motion alleging contempt and requesting a modification of the parties’ shared parenting plan, and Anna’s motions to terminate shared parenting and to name her residential parent, and to modify child support. These pending matters are dependent upon whether, and may be moot if, the decree is vacated. Moreover, Ariel, Nathan’s current spouse, seeks to protect her rights, should the decree dissolving Anna and Nathan’s marriage be vacated. In terms of judicial economy and otherwise, it appears that that all the parties’ rights would be better protected by allowing an immediate appeal from the June 14 Judgment denying Anna’s motion to vacate the decree of dissolution.
{¶ 31} Accordingly, we conclude that the June 14 Judgment affects Anna’s substantial rights. It is therefore an order that satisfies
{¶ 32} The parties discuss in their filings whether
{¶ 33} “The applicability of
{¶ 34} The rule says:
When more than one claim for relief is presented in an action whether as a claim, counterclaim, cross-claim, or third-party claim, and whether arising out of the same or separate transactions, or when multiple parties are involved, the court may enter final judgment as to one or more but fewer than all of the claims or parties only upon an express determination that there is no just reason for delay. In the absence of a determination that there is no just reason for delay, any order or other form of decision, however designated, which adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties, shall not terminate the action as to any of the claims or parties, and the order or other form of decision is subject to revision at any time before
the entry of judgment adjudicating all the claims and the rights and liabilities of all the parties.
{¶ 35} The case currently before us is not one in which the trial court entered partial final judgment with respect to some but not all of the multiple “claims or parties” pending in the case. “[T]he term ‘claim,’ as used in the context of
{¶ 36} The single claim for relief in the underlying case was for dissolution of Anna and Nathan’s marriage. That claim had already been fully resolved by the trial court. While there were and are motions pending related to the resolution of that claim, the June 14 Judgment does not grant a partial final judgment as to some but not all of the claims or parties. Thus,
{¶ 37} As noted above, Nathan and Ariel do not assert that
{¶ 38} Thus, while the general proposition informs discussions about the appealability of a trial court order, it does not supplant the definitions in
{¶ 39} First, this argument is not rooted in
We do not find this rationale particularly compelling under the circumstances. The resolution of the entire matter is not required under the special proceeding division of
R.C. 2505.02(B)(2) ; such is required underR.C. 2505.02(B)(1) . “Pursuant toR.C. 2505.02(B)(2) , the only requirement for finality in regard to a ‘special proceeding’ judgment is that it must affect a substantial right of a party to the action. Given the lack of any reference to ‘determining’ the case, as is required underR.C. 2505.02(B)(1) , it is evident thatR.C. 2505.02(B)(2) was intended to permit appeals from partial judgments which would only be considered interlocutory orders in ‘non-special’ civil actions.” Guardianship & Protective Servs., Inc. v. Setinsek, 11th Dist. Trumbull No. 2010-T-0099, 2011-Ohio-6515, ¶ 23 (Wright, J., concurring); see also Painter & Pollis, Ohio Appellate Practice, Section 2:15 (October 2020) (the standard for a special proceeding order “creates opportunities to appeal in special proceedings from orders that we normally think of as interlocutory, not final“). In other words, it is not particularly relevant to the analysis under
R.C. 2505.02(B)(2) if the order left matters unresolved. This division of the final order statute anticipates an interlocutory appeal due to the substantial nature of the right at issue and the “importance of an immediate appeal to vindicate that right.” Id.
In re: R.S.H.-F., 2d Dist. Montgomery No. 29198, ¶ 19-20 (Decision and Entry, October 21, 2021).
{¶ 40} Second, the general rule discussed in Colley and later cases is that the denial of a
While the entry declared mother residential parent and legal custodian, the case was remanded to the magistrate to calculate child support, determine health insurance and payment of medical expenses, and properly allocate the tax exemption for daughter. As noted above, this court and others have determined that where the amount of child support is undetermined, there is not a final appealable order. The determination of child support and custody are hand in glove; trial courts cannot determine child custody without also issuing an award of support. See
R.C. 3109.04(A) ;R.C. 3105.21(A) . The order does not dispose of the whole case or a separate and distinct part of it while leaving nothing for further determination.
(Emphasis added.) Id. at ¶ 12. Thus, in Carpenter, the original claim for custody was not yet fully resolved. The case is distinguishable.
{¶ 42} In Wright v. Wright, 10th Dist. Franklin No. 07AP-595, 2008-Ohio-544, the court of appeals found an order overruling a post-dissolution motion seeking to declare a judgment entry void ab initio not final because it did not resolve a request for attorneys’ fees made in response to the motion. Id. at ¶ 9. The trial court had deferred consideration of the request for attorney fees because there was another, previously-filed contempt motion
{¶ 43} Notably, the court in Wright did not find that the pending contempt motion prevented the order from being considered final. Rather, it was the request for attorney fees, which was made in a memorandum responding to the resolved motion, that prevented finality. Id. at ¶ 8. In other words, the issue was not that the other matter (the contempt motion) was unresolved, but that this matter (the void-ab-initio motion) was not quite done. Thus, the order on this matter was not final. Wright is distinguishable as well.
{¶ 44} We note also that requests for attorney fees have sometimes been treated as “claims” to which
{¶ 45} Finally, Nathan and Ariel rely on Matter of Dissolution of Marriage of Smith, 11th Dist. Portage No. 2016-P-0028, 2017-Ohio-433. In Smith, the court of appeals found a post-dissolution order dismissing some, but not all, of the motions pending in the case was not a final appealable order. Some of those motions were motions to vacate pursuant to
{¶ 46} The dissent in Smith challenged this finding, saying: “The majority does not cite to any case that suggests an otherwise appealable order denying a
{¶ 47} It does not appear that the majority’s position in Smith has been widely adopted. We have found no cases citing it. We also have not seen wide acceptance for the proposition underlying Smith’s decision: that
{¶ 48} In contrast, the validity of the majority’s position has been questioned. For example, in Painter & Pollis’ Ohio Appellate Practice, the authors note that:
when multiple motions pend, some courts hold by analogy that there is no final order until all the motions are decided;[5] that analogy seems questionable, however, given that motions are not “claims,” and the orders in question seem to pass the finality test of
R.C. 2505.02(B)(2) , as to which Rule 54(B) should not apply.
Section 2.8 (Oct. 2021). The internal footnote cites Smith, among other cases.
{¶ 49} We agree with the dissent’s position in Smith, as discussed in the section above. Motions filed in a case, particularly those filed after judgment, are not “claims” to
{¶ 50} Instead, we hold that an order denying a
Anna’s Motion to Dismiss Ariel from this Appeal
{¶ 51} Anna argues in her response to the motion to dismiss that Ariel has no standing to participate in this appeal. Ariel counters that she was granted leave to intervene in the trial court case, and thus is properly an appellee here.
{¶ 52} We overrule at this time the motion to dismiss Ariel as an appellee. She may participate in this appeal as an appellee because she is an intervenor in the case below. Anna may raise any argument concerning Ariel’s standing in her brief.
Conclusion
{¶ 53} Nathan and Ariel’s motion to dismiss for lack of a final order is OVERRULED. The June 14 Judgment is a final order under
SO ORDERED.
MICHAEL L. TUCKER, Presiding Judge
MARY E. DONOVAN, Judge
Copies to:
Robert Harrelson
9 W. Water Street
Troy, Ohio 45373
Attorney for Appellant, Anna Quesinberry
Thomas Eagle
3400 N. State Route 741
Lebanon OH 45036
Attorney for Appellee, Nathan Quesinberry
Michelle Maciorowski
7333 Paragon Road
Suite 170
Dayton OH 45459
Attorney for Appellee, Ariel Quesinberry
Hon. Timothy Wood
Montgomery County Domestic Relations
Dayton-Montgomery County Courts Building
301 W. Third Street
Dayton, Ohio 45422-4248
CA3/KY