Vizzo v. Morris

[Cite as Vizzo v. Morris, 2012-Ohio-2141.]
COURT OF APPEALS
FAIRFIELD COUNTY, OHIO
FIFTH APPELLATE DISTRICT
JUDGES:
JAMES A. VIZZO : Hon. W. Scott Gwin, P.J.
: Hon. Sheila G. Farmer, J.
Plaintiff-Appellee : Hon. Julie A. Edwards, J.
:
-vs- :
: Case No. 2011-CA-52
CHRISTINA M. MORRIS :
:
Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Civil appeal from the Fairfield County Court
of Common Pleas, Domestic Relations
Division, Case No. 09PA277
JUDGMENT: Dismissed
DATE OF JUDGMENT ENTRY: May 11, 2012
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
RAINA D. CORNELL ELIZABETH N. GABA
329 E. Main Street 1231 East Broad Street
Lancaster, OH 43130 Columbus, OH 43205
[Cite as Vizzo v. Morris, 2012-Ohio-2141.]
Gwin, P.J.
{¶1} Defendant-appellant Christina M. Morris [“Morris”] appeals the September
14, 2011 Judgment Entry of the Fairfield County Court of Common Pleas, Domestic
Relations Division overruling her motion to vacate and to dismiss. Plaintiff-appellee is
James A. Vizzo [“Vizzo”].
I. FACTS AND PROCEDURAL HISTORY
{¶2} Morris and Vizzo were never married. They have one child, M.V., b. Sept
3, 2006. The parties lived together until Morris filed a Domestic Violence Civil
Protection Order [“CPO”] on February 25, 2009 in Fairfield County Court of Common
Pleas, Case Number 09 DR 097. The petition went to final hearing and the Court
issued a Judgment Entry on April 10, 2009 finding the petition to be well taken. In that
order, the Court designated Morris the residential parent and granted standard
companionship of M.K. to Vizzo.
{¶3} On April 23, 2009, Vizzo filed a Motion for Contempt averring that Morris
was not making the child available for visitation in accordance with the Court’s prior
order. The parties filed a stipulation on July 10, 2009, that was a waiver of service of
"Complaints, Motions, and subpoenas during the pendency of this action."
{¶4} By Judgment Entry filed August 5, 2009, the trial court found Morris in
contempt and provided a means of purging said contempt.
{¶5} On August 28, 2009, while the CPO was pending, Vizzo filed a Motion for
Allocation of Parental Rights and Responsibilities in this case, i.e., Fairfield County
Court of Common Pleas, Domestic Relations Division, Case Number Case No. 09 PA
277. The motion included a copy of the Paternity Registry verification from the Child
Fairfield County, Case No. 2011-CA-52 3
Support Enforcement Agency [“CSEA”]. A Uniform Child Custody Jurisdiction and
Enforcement Act [“UCCJEA] affidavit was filed in the CPO and the instant action with
the petition and the motion respectively.
{¶6} The parties filed a stipulation in this case on September 18, 2009, that
was a waiver of service of "Complaints, Motions, and subpoenas during the pendency
of this action."
{¶7} On September 30, 2009, Vizzo filed a motion for temporary allocation of
parenting time with the child. Morris filed an opposition to this motion on October 14,
2009. On October 20, 2009 the magistrate found,
First, this is a paternity case. ORC Section 3109.043 specifically
states that the Court, upon a motion and affidavit, may provide temporary
orders as to custody and companionship. This can be done, even if
paternity has not been established. In particular, the Court may do this
"without oral hearing." Therefore, an oral hearing is not required before
issuing a temporary companionship order.
Second, there is already an order for companionship in the Civil
Protection Order case, Case Number 09-DR-97. In fact, there has already
been a contempt hearing on Defendant's non-compliance and a finding.
The current request is simply to memorialize that order into the paternity
case because the order in the CPO case is for a limited time.
Wherefore, the Court hereby grants the Plaintiff companionship
with the minor child, [M.K.], per the attached local rule. Pickups shall be at
Fairfield County, Case No. 2011-CA-52 4
the Lancaster Police Department. Mr. Vizzo shall pick a third-party to do
the pick-up as the CPO prevents contact between the parties.
{¶8} On November 2, 2009 attorney Stoughton filed a Motion to Withdraw as
counsel for Morris. On November 3, 2009 attorney Lipp filed a Notice of Substitution as
counsel for Morris.
{¶9} On November 4, 2009, Vizzo filed a Motion for Contempt averring that
Morris was not providing visitation as ordered by the court. The trial court set the
motion for hearing on December 8, 2009. On November 9, 2009, the trial court granted
attorney Stoughton’s motion to withdraw as counsel for Morris.
{¶10} On December 9, 2009, the magistrate ordered the Fairfield County
Department of Job and Family Services (“FCDJFS”) be joined as a party-plaintiff. The
Court further ordered the parties to submit to genetic testing.
{¶11} On December 31, 2009, the parties filed an Agreed Judgment Entry
resolving the motion for contempt as to companionship and other orders. The entry
further made provisions for paternity testing.
{¶12} On February 17, 2010, FCDJFS filed the genetic testing results.
{¶13} On May 17, 2010, the magistrate ordered M.K. into counseling as an issue
of M.K. being abused had been raised.
{¶14} By entry filed September 2, 2010, the court scheduled the case for trial on
January 10, 2011.
{¶15} On January 7, 2011, Vizzo filed a motion to continue the trial date
because M.K.’s counselor had not yet prepared a final report. The trial court granted
the continuance by entry filed January 14, 2011 and continued the trial to June 6, 2011.
Fairfield County, Case No. 2011-CA-52 5
{¶16} On May 26, 2011, Morris filed a motion asking the Court to change M.K.’s
counselor pursuant to a letter from Gretchen Leonard, LISW, Family Support Program.
Morris further filed a motion to continue the trial date. The court overruled Morris’
request to continue the trial date.
{¶17} On June 2, 2011, Vizzo filed a Proposed Shared Parenting Plan. On June
9, 2011, Morris filed a motion to continue the trial date due to medical issues
concerning counsel for Morris. The court granted this motion.
{¶18} On June 10, 2011, Vizzo filed a Motion and Affidavit of Contempt and
Other Relief. Vizzo further filed a motion requesting that the Court order both parties to
comply with the proposed visitation and counseling plan that the court had ordered on
May 17, 2010.
{¶19} On June 10, 2011 attorney Gaba filed a Notice of Appearance as counsel
for Morris.
{¶20} On June 13, 2011, Morris filed a “Motion to Vacate All Orders and/or
Judgments Rendered in this Case Due to Lack of Subject Matter Jurisdiction and for
Dismissal of this Case.” Morris alleged that the motions filed by Vizzo in August and
September of 2009 are defective. She claimed that Vizzo failed to file a Complaint in
the trial Court and attempted to initiate an action through a motion, and that any action
taken by the Court was without subject matter jurisdiction. Vizzo filed his response on
June 29, 2011.
{¶21} On July 11, 2011, the magistrate overruled Morris’ motion to dismiss. The
case was scheduled for a three-day trial beginning December 12, 2011.
Fairfield County, Case No. 2011-CA-52 6
{¶22} On July 25, 2011, Morris filed objections to the magistrate’s decision. On
July 27, 2011, Vizzo filed a “Complaint for Allocation of Parental Rights and
Responsibilities.” Vizzo filed the paternity test results and a UCCJEA affidavit with his
complaint. On August 1, 2011, the process server appointed by the court personally
served the complaint and all accompanying documents on Morris.
{¶23} On September 6, 2011, Vizzo filed his response to Morris’ objections to
the magistrate’s decision.
{¶24} By Judgment Entry filed September 7, 2011 the trial court granted Vizzo’s
motion from a Temporary Restraining Order prohibiting Morris from removing M.K. for
the jurisdiction of the court without prior Court approval.
{¶25} On September 8, 2011, Morris filed a motion requesting the court set
aside the temporary restraining order. By Judgment Entry filed that day, the trial court
permitted Morris to take M.K. to Morris’ wedding that was taking place out-of-state.
{¶26} On September 14, 2011, the trial court filed a Judgment Entry overruling
Morris’ objections to the magistrate's decision and affirming the denial of Morris’ motion
to vacate and dismiss.
{¶27} On September 15, 2011, the case was set for a pre-trial conference on
November 14, 2011. On September 16, 2011, the Court set Vizzo’s motion for
contempt for hearing on November 14, 2011. Also set for that time was Vizzo’s motion
requesting that the Court order both parties to comply with the proposed visitation and
counseling plan that the court had ordered on May 17, 2010.
Fairfield County, Case No. 2011-CA-52 7
II. ASSIGNMENTS OF ERROR
{¶28} On October 7, 2011, Morris filed her notice of appeal raising the following
assignments of error:
{¶29} “I. THE TRIAL COURT ERRED TO THE PREJUDICE OF APPELLANT
WHEN IT DID NOT DISMISS THE CASE AND VACATE ALL ORDERS IN THE CASE,
AND ERRED BY FINDING THAT THE "MOTION FOR ALLOCATION OF PARENTAL
RIGHTS AND RESPONSIBILITIES" FILED BY APPELLEE CONSTITUTED A "DE
FACTO" COMPLAINT. APPELLEE'S "MOTION" DID NOT ADHERE TO THE
MANDATES OF CIV. R. 3(A) AND WAS THUS FATALLY DEFECTIVE.
{¶30} “II. THE TRIAL COURT ERRED TO THE PREJUDICE OF APPELLANT
WHEN IT DID NOT DISMISS THE CASE AND VACATE ALL ORDERS IN THE CASE,
AND ERRED IN NOT FINDING THAT THE "MOTION FOR ALLOCATION OF
PARENTAL RIGHTS AND RESPONSIBILITIES" AND THE "MOTION FOR GENETIC
TESTING" FILED BY APPELLEE WERE FATALLY DEFECTIVE PURSUANT TO THE
MANDATES OF FAIRFIELD COUNTY DOMESTIC RELATIONS COURT LOCAL
RULES 30.1 AND 30.2.
{¶31} “III. THE TRIAL COURT ERRED TO THE PREJUDICE OF APPELLANT
WHEN IT DID NOT DISMISS THE CASE AND VACATE ALL ORDERS IN THE CASE,
AND ERRED IN NOT FINDING THAT THE MAGISTRATE WAS CORRECT IN HIS
ASSERTION THAT THE COMPLAINT WAS DEFECTIVE, BUT WAS WRONG IN HIS
ASSERTION THAT HE COULD MAINTAIN ORDERS FILED IN A FATALLY
DEFECTIVE CASE IN THE INTEREST OF THE CHILDREN.
Fairfield County, Case No. 2011-CA-52 8
{¶32} “IV. THE TRIAL COURT ERRED TO THE PREJUDICE OF APPELLANT
WHEN IT DID NOT DISMISS THE CASE AND VACATE ALL ORDERS IN THE CASE,
AND ERRED IN ITS RELIANCE ON PEARL V. PORRATA TO FIND THAT THERE
WAS A "DE FACTO COMPLAINT.
{¶33} “V. THE TRIAL COURT ERRED TO THE PREJUDICE OF APPELLANT
WHEN IT DID NOT DISMISS THE EASE AND VACATE ALL ORDERS IN THE CASE,
AS THE COURT DID NOT HAVE THE POWER OR AUTHORITY TO RENDER THE
PARTICULAR JUDGMENTS.”
III. ANALYSIS
A. Jurisdiction of Court of Appeals
{¶34} In each of her assignments of error, Morris alleges that the motions filed
by Vizzo in August and September of 2009 are defective. She claimed that Vizzo failed
to file a Complaint in the trial Court and attempted to initiate an action through a
motion, and that any action taken by the Court was without subject matter jurisdiction.
{¶35} Before reaching the merits of the appeal, we must address the threshold
issue of whether the judgment appealed is a final, appealable order.
{¶36} Ohio Constitution, Article IV, Section 3(B)(2) limits an appellate court's
jurisdiction to the review of final judgments. Even if the issue is not raised by either
party, an appellate court must address, sua sponte, whether there is a final appealable
order ripe for review. State ex rel. White v. Cuyahoga Metro. Hous. Aut., 79 Ohio St.3d
543, 544, 1997-Ohio-366, 684 N.E.2d 72. This court has no choice but to sua sponte
dismiss an appeal that is not taken from a final, appealable order. Whitaker-Merrell v.
Geupel Constr. Co., 29 Ohio St.2d 184, 280 N.E.2d 922(1972).
Fairfield County, Case No. 2011-CA-52 9
{¶37} For a judgment to be final and appealable, it must satisfy R.C. 2505.02
and, if applicable, Civ.R. 54(B). General Acc. Ins. Co. v. Insurance of North America,
44 Ohio St.3d 17, 20, 540 N.E.2d 266(1989); Hitchings v. Weese (1997), 77 Ohio St.3d
390, 674 N.E.2d 688 (Resnick, J., concurring); Harris v. Conrad, 12th Dist. No. CA–
2001–12 108, 2002-Ohio-3885.
{¶38} R.C. 2505.02, which defines a final, appealable order, provides:
(A) As used in this section:
(1) “Substantial right” means a right that the United States Constitution,
the Ohio Constitution, a statute, the common law, or a rule of procedure
entitles a person to enforce or protect.
(2) “Special proceeding” means 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.
(3) “Provisional remedy” means a proceeding ancillary to an action,
including, but not limited to, a proceeding for a preliminary injunction,
attachment, discovery of privileged matter, suppression of evidence, a
prima-facie showing pursuant to section 2307.85 or 2307.86 of the
Revised Code, a prima-facie showing pursuant to section 2307.92 of the
Revised Code, or a finding made pursuant to division (A)(3) of section
2307.93 of the Revised Code.
(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:
Fairfield County, Case No. 2011-CA-52 10
(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.
{¶39} * * *”
{¶40} Thus, under R.C. 2505.02(B), an order is a final, appealable order if it
satisfies each part of a three-part test: (1) the order must either grant or deny relief
sought in a certain type of proceeding, which the General Assembly calls a “provisional
remedy,” (2) the order must both determine the action with respect to the provisional
remedy and prevent a judgment in favor of the appealing party with respect to the
provisional remedy, and (3) the reviewing court must decide that the party appealing the
order would not be afforded a meaningful or effective remedy by an appeal following
final judgment. Sinnott v. Aqua-Chem, Inc., 116 Ohio St.3d 158, 2007-Ohio-5584, 876
Fairfield County, Case No. 2011-CA-52 11
N.E.2d 1217, ¶ 16; State v. Muncie, 91 Ohio St.3d 440, 446, 2001-Ohio-93, 746 N.E.2d
1092.
1. Overruling Motion to Dismiss for Lack of Subject Matter Jurisdiction
{¶41} An order affects a substantial right when, if not immediately appealable, it
would foreclose appropriate relief in the future. Bell v. Mt. Sinai Med. Ctr., 67 Ohio St.3d
60, 63, 616 N.E.2d 181(1993). The order affirming the magistrate’s denial of Morris’
motion to dismiss for lack of subject matter jurisdiction entered in this case does not
determine the action and prevent a judgment, nor is it an order that affects a substantial
right made in a special proceeding. In the case at bar, the underlying action is one to
determine parentage, with ancillary issues of child visitation and support. While
proceedings in the juvenile division, including parentage actions, are special statutory
proceedings, no substantive right has been affected because there has been no hearing
upon the merits of the case, nor has there been an order declaring the status of parties
concerning M.K. Therefore, in the case at bar, Morris' rights have not been affected by
the trial court's order assuming jurisdiction. State ex rel. Fowler v. Smith (1994), 68 Ohio
St.3d 357, 360, 1994-Ohio-302; Genhart v. David, 7th Dist. No. 10 MA 144, 2011-Ohio-
6732.
{¶42} A party claiming that a trial court lacked jurisdiction can raise that same
argument in an appeal from an adverse final judgment. Accordingly, the absence of an
immediate appeal does not foreclose appropriate relief. The Fourth District Court of
Appeals has held that denial of a mother's motion to dismiss a father's motion for
change of custody for want of subject matter jurisdiction is not a final, appealable order.
Holm v. Smilowitz, 83 Ohio App.3d 757, 615 N.E.2d 1047 (1992). Accord Haskins v.
Fairfield County, Case No. 2011-CA-52 12
Haskins, 104 Ohio App.3d 58, 61, 660 N.E.2d 1260 (1995). Morris may still prevail on
the merits of her visitation, support and custody issues; if not, Morris may insert the
overruling of her motion to dismiss for lack of jurisdiction by an appeal of the final
judgment entered in the case. All parties to the matter will have a meaningful and
effective remedy as to all issues in the case by an appeal following final judgment. See,
Davis v. Boone, 8th Dist. No. 96812, 2011-Ohio-6447, ¶17; State ex rel. Wilkerson v.
Truss (1999), 133 Ohio App.3d 633, 636, 729 N.E.2d 459(1999).
{¶43} The trial court’s order affirming the magistrate’s decision denying Morris’
motion to vacate and dismiss does not determine the action (R.C. 2505.02(B)(1)), affect
a substantial right (R.C. 2505.02(B)(2)), or vacate or set aside a judgment to qualify as
a final, appealable order (R.C. 2505.02(B)(3)).
{¶44} Hence, this court is without jurisdiction, and the appeal must be dismissed.
Fairfield County, Case No. 2011-CA-52 13
III. CONCLUSION
{¶45} Having reviewed the arguments and the record in this case, we dismiss
the appeal for lack of subject matter jurisdiction because the order appealed from is not
a final appealable order.
By Gwin, P.J.,
Farmer, J., and
Edwards, J., concur
_________________________________
HON. W. SCOTT GWIN
_________________________________
HON. SHEILA G. FARMER
_________________________________
HON. JULIE A. EDWARDS
WSG:clw 0424
[Cite as Vizzo v. Morris, 2012-Ohio-2141.]
IN THE COURT OF APPEALS FOR FAIRFIELD COUNTY, OHIO
FIFTH APPELLATE DISTRICT
JAMES A. VIZZO :
:
Plaintiff-Appellee :
:
:
-vs- : JUDGMENT ENTRY
:
CHRISTINA M. MORRIS :
:
:
Defendant-Appellant : CASE NO. 2011-CA-52
For the reasons stated in our accompanying Memorandum-Opinion, we dismiss
the appeal for lack of subject matter jurisdiction because the order appealed from is not
a final appealable order. Costs to appellant.
_________________________________
HON. W. SCOTT GWIN
_________________________________
HON. SHEILA G. FARMER
_________________________________
HON. JULIE A. EDWARDS