DeGrant v. DeGrant

[Cite as DeGrant v. DeGrant, 2020-Ohio-4425.]
IN THE COURT OF APPEALS
ELEVENTH APPELLATE DISTRICT
GEAUGA COUNTY, OHIO
JENNIFER DEGRANT, : MEMORANDUM OPINION
Plaintiff-Appellant, :
CASE NO. 2020-G-0259
- vs - :
MARK DEGRANT, et al., :
Defendant-Appellee. :
Civil Appeal from the Geauga County Court of Common Pleas, Case No. 2015 DC
000999.
Judgment: Appeal dismissed.
Joseph G. Stafford and Nicole A. Cruz, Stafford Law Co., LPA, 55 Erieview Plaza, 5th
Floor, Cleveland, OH 44114 (For Plaintiff-Appellant).
Alan H. Kraus, 20133 Farnsleigh Road, Second Floor, Shaker Heights, OH 44122 (For
Defendant-Appellee).
MATT LYNCH, J.
{¶1} Pending before this court is defendant-appellee, Mark DeGrant’s, Motion
to Dismiss Appeal for Lack of Jurisdiction, filed on August 19, 2020. Plaintiff-appellant,
Jennifer DeGrant, filed a Brief in Opposition on August 26, 2020.
{¶2} On January 13, 2020, this court issued its decision in DeGrant v. DeGrant,
11th Dist. Geauga Nos. 2019-G-0190 and 2019-G-0216, 2020-Ohio-70, reversing the
parties’ Decree of Divorce, issued on December 31, 2018, with respect to custody of the
minor child and the amount of child support. This court found that it was error for the
trial court to exclude the child’s therapist as a witness in the custody hearing and for the
court to modify the shared parenting plan submitted by Mark contrary to R.C.
3109.04(D) and that there were errors in the calculation of child support. This court
held: “On remand, the trial court is instructed to reopen the hearing on custody for the
limited purpose of allowing Dr. Janet Davis to testify, issue a new custody order
complying, if necessary, with R.C. 3109.04(D)(1)(a)(iii), and to recalculate the amount of
child support in accordance with this court’s disposition of the fifth assignment of error.”
Id. at ¶ 102.
{¶3} On January 28, 2020, the magistrate set the matter for hearing on the
issues of custody and child support on August 21, 2020 (this hearing has been
continued).
{¶4} On July 21, 2020, Mark filed a Submission of Changes to Shared
Parenting Plan.
{¶5} On July 27, 2020, the trial court ruled that Mark’s “submissions are in the
best interest of the minor child and are incorporated into the Share[d] Parenting Plan as
reflected in the Court’s December 31, 2018 Order * * *.”
{¶6} On July 28, 2020, Jennifer filed the present appeal from the July 27
Judgment Entry.
{¶7} Mark contends the July 27 Entry is not a final order because “[a]ll issues
pertaining to this court’s remand and the motion as to the allocation of parental right[s]
and responsibilities, as well as the multitude of other pending motions have not been
resolved and are currently set for hearing before the trial court.” Motion to Dismiss at 4.
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Jennifer counters that the trial court did not designate the adoption of the shared
parenting plan as an interim order.
{¶8} We agree with Mark that the July 27 Entry is not a final order despite the
failure of the trial court to denote it as temporary or interlocutory. Part of this court’s
instructions on remand was for the trial court to reopen the hearing on custody to
receive further evidence and issue a new custody order. This hearing remains pending
and will necessarily result in a new custody order superseding the July 27 Entry. It has
been the position of this court that “temporary custody orders are interlocutory in nature
and generally not final and appealable.” Welty v. Welty, 11th Dist. Ashtabula Nos.
2007-A-0013 and 2007-A-0015, 2007-Ohio-5217, ¶ 21, quoting Keyerleber v.
Keyerleber, 11th Dist. Ashtabula No. 2004-A-0040, 2005-Ohio-60, ¶ 2; Brooks v.
Brooks, 117 Ohio App.3d 19, 21-22, 689 N.E.2d 987 (10th Dist.1996).
{¶9} Jennifer also counters that the July 27 Entry is a final order inasmuch as it
is an order affecting a substantial right made in a special proceeding pursuant to R.C.
2505.02(B)(2). Assuming, arguendo, the July 27 Entry satisfies R.C. 2505.02(B)(2),
Mark correctly notes that the Entry does not include the “no just reason for delay”
language required by Civil Rule 54(B) for this court to exercise jurisdiction. Zhong v.
Liang, 8th Dist. Cuyahoga No. 109027, 2020-Ohio-3724, ¶ 18 (“we must follow the Ohio
Supreme Court’s precedent from Gen. Acc. Ins. Co. [v. Ins. Co. of N. Am., 44 Ohio
St.3d 17, 540 N.E.2d 266 (1989)] and apply Civ.R. 54(B) to orders that are otherwise
‘final’ under R.C. 2505.02(B)(2)”); Elia v. Fisherman’s Cove, Inc., 11th Dist. Trumbull
No. 2010-T-0036, 2010-Ohio-2522, ¶ 7 (“an order entered [in a special proceeding] that
affects a substantial right is a final appealable order as long as the requisite Civ.R.
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54(B) determination is made”).
{¶10} Additionally, we note that the issue of child support remains pending on
remand and that courts have held that a custody determination which leaves the issue
of support pending is not final. Carpenter v. Carpenter, 12th Dist. Butler No. CA2013-
05-083, 2013-Ohio-4980, ¶ 13 (“an order related to custody does not affect a substantial
right until there is both an order determining custody and a support order based on that
order”); Brown v. Dean, 11th Dist. Geauga No. 2015-G-0034, 2016-Ohio-1360, ¶ 21.
{¶11} For the foregoing reasons, Mark’s Motion to Dismiss the Appeal for Lack
of Jurisdiction is granted, and the present appeal is dismissed.
TIMOTHY P. CANNON, P.J.,
THOMAS R. WRIGHT, J.,
concur.
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