Spence v. Spence, Unpublished Decision (8-4-2005)

JOURNAL ENTRY and OPINION {¶ 1} Plaintiff-appellant, Michelle Spence ("Spence"), appeals the trial court's decision denying her motions to show cause and for attorney fees. For the reasons discussed below, we dismiss for lack of a final appealable order.

{¶ 2} In October 2004, the trial court issued a judgment entry adopting the magistrate's decision which denied Spence's motions to show cause and for attorney fees. Spence filed a timely request for findings of fact and conclusions of law under Civ.R. 52. Prior to the trial court's ruling on the request, Spence filed her notice of appeal.

{¶ 3} When a party has timely filed a motion for findings of fact and conclusions of law and such motion has not been ruled upon by the trial court before a party files a notice of appeal, no final appealable order exists from which to appeal. Rausch v.Rausch, Cuyahoga App. No. 85600, 2005-Ohio-3730, citing Walkerv. Doup (1988), 36 Ohio St. 3d 229, 522 N.E.2d 1072. See, also,In re adoption of Gibson (1986), 23 Ohio St. 3d 170, 173,492 N.E.2d 146; In re T.W., Cuyahoga App. No. 85559, 2005-Ohio-3128; Messina v. Good Times Cafe (May 23, 1991), Cuyahoga App. Nos. 58576, 58577, 58873.

{¶ 4} Therefore, because Spence's request for findings of fact and conclusions of law is still pending before the trial court, this court is without jurisdiction to consider Spence's appeal regarding the October judgment entry.

Case dismissed for lack of a final appealable order.

It is, therefore, considered that said appellant pay the costs herein.

It is ordered that a special mandate be sent to the Domestic Relations Division of the Cuyahoga County Court of Common Pleas to carry this judgment into execution.

A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.

Sweeney, P.J. and Calabrese, Jr., J. Concur.