Kunkle v. Kunkle, F-07-019 (3-31-2008) , 2008 Ohio 1568 ( 2008 )

DECISION AND JUDGMENT ENTRY {¶ 1} This case is before the court on the appeal of defendant, Alan Kunkle, who challenges two trial court orders, one denying his motion to dismiss the divorce complaint filed by his wife and the second denying his motion to vacate the order that denied his motion to dismiss the divorce action filed by his wife. We cannot reach the merits of Kunkle's appeal because we find neither order is final and appealable.

{¶ 2} Generally, an order that denies a motion to vacate a judgment is final and appealable. Colley v. Bazell (1980), 64 Ohio St. 2d 243. However, when the underlying order, in this case the order denying the motion to dismiss the divorce action, is itself not a final appealable order, neither is the subsequent judgment denying a motion to vacate it.Matrka v. Stephens (1991), 77 Ohio App. 3d 518. In this case, the underlying order denying the motion to dismiss is not a final order.Ferrell v. Standard Oil Co. of Ohio (1984), 11 Ohio St. 3d 169 (An order denying a motion to dismiss a complaint is not a final appealable order.)

{¶ 3} Accordingly, the order from which this appeal is taken is not appealable at this time. The court orders this appeal dismissed. Appellant is ordered to pay the costs of this appeal pursuant to App.R. 24. Judgment for the clerk's expense incurred in preparation of the record, fees allowed by law, and the fee for filing the appeal is awarded to Fulton County.

APPEAL DISMISSED.

A certified copy of this entry shall constitute the mandate pursuant to App.R. 27. See, also, 6th Dist.Loc.App.R. 4.

Arlene Singer, J., William J. Skow, J., Thomas J. Osowik, J., CONCUR.