In re I.B.

[Cite as In re I.B., 2012-Ohio-4547.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
IN RE: I.B. : APPEAL NO. C-120116
TRIAL NO. F11-138z
:
: O P I N I O N.
Civil Appeal From: Hamilton County Juvenile Court
Judgment Appealed From Is: Appeal Dismissed
Date of Judgment Entry on Appeal: October 3, 2012
David L. Prem, for Petitioner-Appellee Father.
The Farrish Law Firm and Kathleen C. King, for Respondent-Appellant Mother.
Please note: This case has been removed from the accelerated calendar.
OHIO FIRST DISTRICT COURT OF APPEALS
F ISCHER , Judge.
{¶1} Following a brief relationship with appellee father, appellant mother
gave birth to their child, I.B., in December 2010. Because she was unmarried at the
time, mother was the child’s sole residential parent and legal custodian by operation of
R.C. 3109.042. One month later, however, father petitioned the Hamilton County
Juvenile Court for custody.
{¶2} The matter was referred to a magistrate who prepared a decision
designating father as the child’s legal custodian, finding that he was “capable of
providing a significantly more stable living environment,” and that “he would be more
likely to foster a continuing relationship” between mother and child than vice versa.
Nevertheless, the magistrate also concluded that mother “should be permitted
significant, reasonable parenting time.” The magistrate did not, however, specify the
extent of mother’s visitation rights, noting that the “trial testimony was not related to,
and therefore was insufficient, to establish a schedule of visitation for mother.”
{¶3} On January 26, 2012, over mother’s objections, the trial court adopted
the magistrate’s decision and ordered mother to give I.B. to father on February 5, 2012.
The court encouraged the parties to discuss a parenting time schedule, and indicated
that if such a schedule was signed by both parties and submitted to the court by March
1, 2012, the court would “adopt that schedule without any additional filings or fees.”
The court further stated that “[i]f no agreement is reached, either parent may file a
petition requesting the Court to establish a parenting time schedule for them.” The
order was subsequently stayed until February 16, 2012. On February 13, 2012, while
the stay was pending, mother appealed to this court from the January 26 entry, raising
two assignments of error.
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶4} Before we reach the merits of her appeal, however, we must determine
whether that entry constitutes a final, appealable order. “Section 3(B)(2), Article IV of
the Ohio Constitution limits this court’s appellate jurisdiction to the review of final
judgments of lower courts. If an order is not final and appealable, this court lacks
jurisdiction and must dismiss the appeal. If the parties do not raise the jurisdictional
issue, we are required to raise it sua sponte.” Hooten v. Safe Auto Ins. Co., 1st Dist. No.
C-061065, 2007-Ohio-6090, ¶ 10.
{¶5} For an order to be a final, appealable order, the requirements of
R.C. 2505.02 and, if applicable, Civ.R. 54(B) must be met. In re Adams, 115 Ohio St.3d
86, 2007-Ohio-4840, 873 N.E.2d 886, ¶ 27. “Civ.R. 54(B) applies where more than one
claim for relief is presented, or multiple parties are involved, and where the court has
rendered a final judgment with respect to fewer than all of those claims or parties.”
Brantley v. Title First Agency, Inc., 1st Dist. No. C-110480, 2012-Ohio-766, ¶ 5. Where
an order enters judgment as to fewer than all parties or claims, but lacks an express
determination that there is “no just reason for delay,” we lack jurisdiction to review that
order and must dismiss any appeal arising from it. Civ.R. 54(B); see Whitaker-Merrell
Co. v. Geupel Constr. Co., 29 Ohio St.2d 184, 186, 280 N.E.2d 922 (1972).
{¶6} In this case, because neither father nor mother filed a pleading or
motion with the court that requested shared parental rights and responsibilities in
accordance with R.C. 3109.04(G), the trial court was required, in a manner consistent
with the best interests of the child, to
allocate the parental rights and responsibilities for the
care of the [child] primarily to one of the parents,
designate that parent as the residential parent and the
legal custodian of the child, and divide between the
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OHIO FIRST DISTRICT COURT OF APPEALS
parents the other rights and responsibilities for the care
of the [child], including, but not limited to, the
responsibility to provide support for the [child] and the
right of the parent who is not the residential parent to
have continuing contact with the [child].
(Emphasis added.) R.C. 3109.04(A)(1).
{¶7} As this language indicates, more was at stake below than the
designation of I.B.’s residential parent and legal custodian. The trial court was also
charged with specifying the residual parental rights and responsibilities of the other
parent. But on our record, the court did not do so. Indeed both the magistrate’s
decision and the court’s entry adopting that decision clearly contemplate further action
with respect to the parenting time schedule. The court, therefore, adjudicated “the
rights and liabilities of fewer than all the parties.” Civ.R. 54(B). Because the court did
not also include an express determination that there is no just reason for delay, we
must conclude that its January 26 entry is not a final, appealable order. See Wheeler
v. Colley, 4th Dist. No. 99CA2481, 1999 Ohio App. LEXIS 3975 (Aug. 16, 1999). We,
therefore, lack jurisdiction to consider the merits of mother’s appeal, and we must
dismiss it.
Appeal dismissed.
S UNDERMANN , P.J., and D INKELACKER , J., concur.
Please note:
The court has recorded its own entry this date.
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