J.L.C. v. J.V.C. , 2021 Ohio 4607 ( 2021 )

[Cite as J.L.C. v. J.V.C., 2021-Ohio-4607.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
J.L.C., :
Plaintiff-Appellant, :
No. 110419
v. :
J.V.C., :
Defendant-Appellee. :
JOURNAL ENTRY AND OPINION
JUDGMENT: DISMISSED
RELEASED AND JOURNALIZED: December 30, 2021
Civil Appeal from the Cuyahoga County Court of Common Pleas
Domestic Relations Division
Case No. DR-14-353921
Appearances:
Stafford Law Co., L.P.A., Joseph G. Stafford, and Nicole A.
Cruz, for appellant.
Joyce E. Barrett and James P. Reddy, Jr., for appellee.
ANITA LASTER MAYS, P.J.:
Plaintiff-appellant J.L.C. (“Mother”) appeals the trial court’s
granting of a motion to quash Mother’s subpoena of a nonparty witness. We dismiss
the appeal for lack of a final appealable order.
I. Introduction and Background
Mother and defendant-appellee J.V.C. (“Father”) were divorced on
April 6, 2015. Mother was designated as the residential parent and legal custodian
of the parties’ three minor children. Due to Father’s incarceration at the time of the
judgment, a visitation schedule was not implemented. Supervised visits were
granted upon release due to Father’s abuse and domestic violence acts involving the
two older children. On January 31, 2018, the parenting plan was modified by an
agreed judgment entry that included a five-step plan to gradually increase Father’s
parenting time through September 10, 2019.
According to Mother, the children responded to the increased visits
with anxiety attacks, sleeping difficulties, and significant behavioral issues. During
the supervised visitations, the children requested that the visitations end and that
no future visitations would be required.
On October 19, 2020, the trial court scheduled a series of motions for
trial before the magistrate on April 9, 2021. The motions included Father’s motions
for reunification counseling, modification of parenting agreement, and to enforce
parental rights.
On March 12, 2021, Mother subpoenaed J.F. Mother states that J.F.
is a wellness coach, not a counselor, who is employed by the children's school district
to assist students with skill-building and related functions. According to Mother,
the children began working with J.F. to address their issues with fear, anxiety, and
sleeplessness surrounding their visits with Father. Mother requested the testimony
to corroborate Mother’s concerns for the mental and emotional well-being of the
minor children and the negative impact that visitation with Father has had on the
children.
On March 31, 2021, J.F., a licensed professional clinical counselor
with the school district, moved through counsel to quash the subpoena pursuant to
Civ.R. 45 on the ground that the “testimony implicates matters that are privileged
pursuant to R.C. 2317.02(G).” Mother did not file a response.
On April 8, 2021, the trial court determined that a privilege exists
between a counselor and child and the parent may not waive the privilege, citing
Rulong v. Rulong, 8th Dist. Cuyahoga No. 84953, 2004-Ohio-6919. The motion to
quash was granted. Mother appealed the next day.
On April 15, 2021, this court dismissed the instant appeal for lack of
a final appealable order. On May 12, 2021, this court granted Mother’s motion for
reconsideration and determined that the final appealable order issue should be
heard on the merits.
II. Assignments of Error
Mother assigns the following as error:
I. The trial court erred as a matter of law and abused its discretion
by quashing appellant’s subpoena for the minor children’s school
counselor to appear at trial and testify.
II. The April 8, 2021, judgment entry is a final appealable order and
this court has jurisdiction over the within appeal.
III. Discussion
We begin our analysis with the second assigned error that deals with
the jurisdiction of this court to entertain the appeal.
Mother argues that the order is final and appealable, that the motion
was prematurely granted before Mother could respond in violation of the 14-day
period provided by Civ.R. 6 and Loc.R. 15 of the Court of Common Pleas, Domestic
Relations Division, and that the trial was scheduled before a magistrate, but the
order was issued by the trial judge purportedly in violation of Civ.R. 53(D)(2).1 It
appears that these arguments were not presented to the trial court because the
notice of appeal was filed on the day after the trial court issued the entry, which was
the date set for trial.
It is axiomatic that courts of appeal in Ohio “have jurisdiction ‘to
review and affirm, modify, or reverse judgments or final orders.’ Article IV,
1 Mother cites case law for the proposition that a “‘judge cannot enter an order
directly in a matter that was heard by a magistrate.’” Appellant’s brief, p. 17, quoting
Davis v. Davis, 6th Dist. Wood No. WD-06-011, 2006-Ohio-3384, ¶ 17. There is nothing
in the record to indicate that the magistrate heard the matter. Cases referred to a
magistrate always remain on the trial judge’s active docket who “always retains the
inherent authority to control the docket and issue orders.” Wells Fargo Bank, N.A. v.
Myles, 8th Dist. Cuyahoga No. 93484, 2010-Ohio-2350, ¶ 20, citing In the Matter of
Zmuda, 6th Dist. Lucas No. L-96-073, 1997 Ohio App. LEXIS 1203 (Mar. 31, 1997), citing
State ex rel. Kura v. Sheward, 75 Ohio App.3d 244, 245, 598 N.E.2d 1340 (1992). “A trial
court is a court of original jurisdiction, and a trial judge has full authority to rule on all
matters before the trial court, even if the trial judge may previously have referred those
matters to a magistrate.” Patterson v. Patterson, 2d Dist. Clark No. 2003-CA-60, 2004-
Ohio-4368, ¶ 12. “The referral of a case to a magistrate does not limit the jurisdictional
power of the referring judge.” Id.Section 3(B)(2), Ohio Constitution.” Thomasson v. Thomasson, 153 Ohio St.3d 398,
2018-Ohio-2417, 106 N.E.3d 1239, ¶ 10.
R.C. 2505.02 addresses final orders. Mother argues that the order is
final under R.C. 2502.02, which provides:
(B) 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;
(3) An order that vacates or sets aside a judgment or grants a new trial;
(4) An order that grants or denies a provisional remedy and to which
both of the following apply:
(a) The order in effect determines the action with respect to the
provisional remedy and prevents a judgment in the action in favor of
the appealing party with respect to the provisional remedy.
(b) The appealing party would not be afforded a meaningful or effective
remedy by an appeal following final judgment as to all proceedings,
issues, claims, and parties in the action.
“Divorce qualifies as a special proceeding as defined in
R.C. 2505.02(A)(2)” for purposes of R.C. 2505.02(B)(2). Thomasson at ¶ 12. This
categorization extends to “any ancillary proceeding on custody-related claims.”
Prakash v. Prakash, 181 Ohio App.3d 584, 2009-Ohio-1324, 910 N.E.2d 30, ¶ 9
(10th Dist.), citing State ex rel. Papp v. James, 69 Ohio St.3d 373, 379, 632 N.E.2d
889 (1994), citing Dansby v. Dansby, 165 Ohio St. 112, 113, 133 N.E.2d 358 (1956),
and In re Murray, 52 Ohio St.3d 155, 161, 556 N.E.2d 1169 (1990). (Douglas, J.,
concurring in syllabus and judgment).
An order affects a substantial right “only if ‘in the absence of
immediate review of the order [the appellant] will be denied effective relief in the
future.’” Thomasson, 153 Ohio St.3d 398, 2018-Ohio-2417, 106 N.E.3d 1239, at ¶ 10,
quoting Bell v. Mt. Sinai Med. Ctr., 67 Ohio St.3d 60, 63, 616 N.E.2d 181 (1993). The
question in Thomasson was whether “the trial court’s order appointing a guardian
ad litem (“GAL”) to act on behalf in her divorce case is a final, appealable order
under R.C. 2505.02(B)(2).” Id. at ¶ 1.
While Thomasson contains a comprehensive analysis of the
substantial right prong, the court specifies that the unique facts of the case required
immediate review.
For these reasons, we set forth the narrow and limited holding that
under R.C. 2505.02(B)(2), a trial court’s order appointing a GAL to
represent an adult in a divorce case is a final, appealable order when
that adult has not been adjudicated incompetent subsequent to
providing the parties with notice and an opportunity to be heard on the
issue of the adult’s competency. In this unique case, the order
appointing a GAL to represent Carol is a final, appealable order.
(Emphasis added.) Id. at ¶ 34.
Generally, “the granting of a motion to quash a subpoena is not
considered a final appealable order.” Godwin v. Facebook, Inc., 2020-Ohio-4834,
160 N.E.3d 372, ¶ 9 (8th Dist.), citing Hanick v. Ferrara, 7th Dist. Mahoning No. 18
MA 0073, 2019-Ohio-880, ¶ 25. In contrast, “the denial of a motion to quash is
generally considered a final appealable order because the appealing party lacks any
meaningful remedy following the final judgment as contemplated under
R.C. 2505.02(B)(4).” Id. at ¶ 11. This is true because “[t]he grant of a motion to
quash does not implicate the same concerns” as a denial. Id., citing Ferrara at ¶ 25;
McCarthy v. Anderson, 5th Dist. Licking No. 17 CA 36, 2018-Ohio-1993, ¶ 19; In re
Estate of Adkins, 4th Dist. Lawrence No. 16CA22, 2016-Ohio-5602, ¶ 9; and In re
Tracy M., 6th Dist. Huron No. H-04-028, 2004-Ohio-5756, ¶ 29.
Mother’s challenge to the merits of the order granting the motion to
quash is interlaced with those of whether the order impacts a substantial right. It is
not necessary to convince this court of the importance of the proper consideration
and allocation of parental rights under R.C. 3109.04 to promote and protect the best
interests of the children. What is necessary, however, is a final appealable order to
invoke jurisdiction for appellate review.
The judgment on appeal does not determine parental rights. Mother
has an effective and meaningful remedy by proffering the arguments that Mother
attempts to introduce in this appeal directly to the trial court. “Since interlocutory
orders are subject to modification, the trial court may reconsider them at any time.”
Javidan-Nejad v. Navadeh, 8th Dist. Cuyahoga No. 95406, 2011-Ohio-2283, ¶ 62.
If reconsideration is unsuccessful, Mother may appeal any final
appealable judgment in the action rendered after the trial. Ferrara, 7th Dist.
Mahoning No. 18 MA 0073, 2019-Ohio-880, at 25, citing In re Estate of Adkins, 4th
Dist. Lawrence No. 16CA22, 2016-Ohio-5602, at ¶ 13; and In the Matter of Tracy
M., 6th Dist. Huron No. H-04-028, 2004-Ohio-5756 (order granting high school’s
motion to quash subpoena for alleged assault victim’s school records was not final
appealable order because any error could be remedied by ordering a new trial).
Accordingly, this appeal is dismissed for lack of jurisdiction.
It is ordered that appellee recover from appellant costs herein taxed.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27
of the Rules of Appellate Procedure.
ANITA LASTER MAYS, PRESIDING JUDGE
LISA B. FORBES, J., and
EILEEN T. GALLAGHER, J., CONCUR