Opinion
29198
10-21-2021
IN RE: R.S.H.-F.
[Civil Appeal from Juvenile Court] Trial Court Case No. G-2015-007346-1H, 1K
DECISION AND ENTRY
PER CURIAM
{¶1} This matter is before the court for resolution of our July 29, 2021 show cause order. We conclude that we have jurisdiction to proceed with this appeal.
{¶2} Mother has appealed the "Judge's Order issued by the juvenile court on June 21, 2021. The Order sustained Father's objections to a magistrate's decision and denied Mother's motion to transfer venue in the underlying custody/parenting time matter to Florida, on the basis that Ohio is an inconvenient forum. See R.C. 3127.21 (part of the Uniform Child Custody Jurisdiction and Enforcement Act, or UCCJEA). The underlying case is proceeding toward a hearing on pending motions, currently scheduled for October 22, 2021.
{¶3} It appeared to this court that the June 21 Order might not be a final order subject to review at this time. We ordered Mother to show cause why the appeal should not be dismissed, and offered Father an opportunity to reply. Both filed responses addressing this court's jurisdiction.
{¶4} Mother argues that the June 21 Order is a final order under R.C. 2505.02(B)(2) because it is "[a]n order that affects a substantial right made in a special proceeding." She directs us to several cases that explicitly or implicitly so hold. Father emphasizes the general principle that venue decisions are not appealable when issued, and points us to a recent Ohio Supreme Court opinion holding that a dismissal without prejudice, on the basis of forum non conveniens, is not a final order. We have carefully reviewed these authorities in determining whether we have jurisdiction.
{¶5} An appellate court has jurisdiction to review only final orders or judgments of the lower courts in its district. Section 3(B)(2), Article IV, Ohio Constitution; R.C. 2505.02. We have no jurisdiction to review an order or judgment that is not final, and must dismiss an appeal taken therefrom. Gen. Acc. Ins. Co. v. Ins. Co. of N. Am., 44 Ohio St.3d 17, 20, 540 N.E.2d 266 (1989).
{¶6} As Father notes, venue decisions are generally not considered final orders. See, e.g., Johnson v. Michael, 5th Dist. Stark No. 2017CA00205, 2018-Ohio-234, ¶ 10-14 (holding that the denial of a motion to change venue is not a final appealable order); Jetter v. Abbott, 2d Dist. Montgomery No. 17888, 2000 WL 1072338 (July 1, 2000) (finding that a venue decision was not a provisional remedy because "the appealing party is afforded an effective remedy by way of appeal after final judgment"). Such cases typically, but not always, involve a requested transfer from one court in Ohio to another court in Ohio. See Bruce v. Bruce, 3d Dist. Marion No. 9-10-57, 2012-Ohio-45, ¶ 11 ("Though an order granting or denying a change of venue from one Ohio county to another Ohio county may be challenged on appeal, the order, standing alone, is not a final, appealable order).
{¶7} Cases involving the inconvenient forum provision of the UCCJEA are somewhat different. Decisions granting a motion to find Ohio an inconvenient forum - and transferring a matter to another state - are generally considered final and subject to appeal. See, e.g., Miller v. Washburn, 6th Dist. Erie No. E-15-006, 2016-Ohio-852, ¶ 6 (judgment entry finding that Ohio was an inconvenient forum reviewed); Dorrington v. Dorrington, 11 th Dist. Lake No. 12-052, 1988 WL 25865, *2 (judgment entry regarding the finding of inconvenient forum and transferring matter to Georgia was a final appealable order); Javidan-Nejad v. Navadeh, 8th Dist. Cuyahoga No. 95406, 2011-Ohio-2283, ¶ 59 ("a determination that Ohio is no longer a convenient forum for purposes of child custody is considered a final order").
{¶ 8} There is a split of authority with respect to whether the denial of a motion to determine that Ohio is an inconvenient forum under R.C. 3127.21 - keeping the matter in its original, Ohio court - is a final order. The Eighth, Tenth, and Twelfth District Courts of Appeals have expressly held that such an order is final. See, e.g., Buzard v. Triplett, 10th Dist. Franklin No. 05AP-579, 2006-Ohio-1478, ¶ 11 (finding that "the order [declining to transfer jurisdiction under R.C. 3127.21] is a final order as defined by R.C. 2505.02(B)(2)"); Critzer v. Critzer, 8th Dist. Cuyahoga No. 90679, 2008-Ohio-5126, ¶ 9, citing Buzard (agreeing with the Tenth District that "a trial court order regarding determination of convenient forum 'affects a substantial right made in a special proceeding' pursuant to R.C. 2505.02(B)(2) and is thus a final appealable order); Kraemer v. Kraemer, 12th Dist. Butler No. CA2017-08-120, 2018-Ohio-3847, ¶ 12 (finding "that an order denying an inconvenient forum motion in a custody matter is a final appealable order" under R.C. 2505.02(B)(2)).
{¶9} In addition, the Seventh and Ninth Districts have reviewed such orders, without making an explicit finding that they were final. See, e.g., In re N.R., 7th Dist. Mahoning No. 09 MA 85, 2010-Ohio-753 (reviewing trial court order concluding that Ohio was not an inconvenient forum and declining to transfer to Pennsylvania); Reed v. Sims, 9th Dist. Lorain No. 19CA011494, 2020-Ohio-2777 (reviewing the denial of a motion to stay the proceedings in Ohio and transfer jurisdiction to Tennessee).
{¶10} In contrast, the Fourth and Fifth Districts hold that the denial of an inconvenient-forum motion is not a final order. See, e.g., Buxton v. Mancuso, 5th Dist. Knox No. 09 CA 22, 2009-Ohio-6839, ¶ 14 (declining to follow Buzard, supra and holding that "appellant's attempt to appeal the interlocutory 'inconvenient forum' ruling is not an appeal of a final order under R.C. 2505.02(B)"); France v. Perry, 4th Dist. Pike No. 94CA538, 1995 WL 572910, *1 ("a finding that Ohio is not an inconvenient forum * * * is not a final appealable order).
{¶11} This court has dismissed an appeal taken from the denial of a motion to transfer venue to Texas, where appellant did not respond to our show cause order addressing the issue. See In re A.M.S., 2d Dist. Montgomery No. 29052 (June 16, 2021). In the absence of any argument suggesting a substantial right was involved, or that the order was otherwise final, we applied the general rule that venue decisions are not final. Id; see State v. Glenn, Ohio Supreme Court Slip Op. No. 2021-Ohio-3369, ¶ 22, quoting Smith v. Chen, 142 Ohio St.3d 411, 2015-Ohio-1480, 31 N.E.3d 633, ¶ 8 ("The burden of establishing the appellate court's jurisdiction over an interlocutory appeal 'falls on the party who knocks on the courthouse doors asking for interlocutory relief ").
{¶12} Against this backdrop, we turn to the final order statute and apply it to the case before us. As relevant here, R.C. 2505.02(B)(2) allows this court to review "[a]n order that affects a substantial right made in a special proceeding." A special proceeding is defined as "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." R.C. 2505.02(A)(2). "The Supreme Court of Ohio has held that juvenile court proceedings are special proceedings." Buzard at ¶ 9, citing State ex rel. Fowler v. Smith, 68 Ohio St.3d 357, 360, 626 N.E.2d 950 (1994); In re E.N., 1st Dist. Hamilton No. C-170272, 2018-Ohio-3919, ¶ 16, citing State ex rel. Papp v. James, 69 Ohio St.3d 373, 379, 632 N.E.2d 889 (1994) ("it is beyond cavil that custody proceedings brought in juvenile court did not exist at common law but were created by statute, and thus are special proceedings within the meaning of R.C. 2505.02(A)(2)").
{¶13} A substantial right is defined as "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." R.C. 2505.02(A)(1). Under the statute invoked by Mother here, "R.C. 3127.21, appellant had a right to file a motion requesting the trial court to decline to exercise jurisdiction because it was an inconvenient forum." Buzard at ¶ 11. This is a substantial right. Id.
{¶14} However, "the mere existence or implication of a substantial right in a case is insufficient to create a final order. Instead, the 'crucial question' is whether the order 'affects a substantial right.'" (Emphasis sic.) Crown Services, Inc. v. Miami Valley Paper Tube Co., 162 Ohio St.3d 564, 2020-Ohio-4409, 166 N.E.3d 1115, ¶ 16, quoting Bell v. Mt. Sinai Med. Ctr, 67 Ohio St.3d 60, 63, 616 N.E.2d 181 (1993). "An order affects a substantial right 'only if an immediate appeal is necessary to protect the right effectively.'" Id., quoting Wilhelm-Kissinger v. Kissinger, 129 Ohio St.3d 90, 2011-Ohio-2317, 950 N.E.2d 516, ¶ 7.
{¶15} Mother argues that her right to seek a determination that Ohio is an inconvenient forum is affected here because "she would be unable to obtain appropriate relief in the future after being forced to litigate in a forum she considers inconvenient." The Buzard and Critzer courts accepted this argument. Buzard at ¶ 11; Critzer at ¶ 9. Upon consideration, we agree that the denial of a motion seeking to declare Ohio an inconvenient forum affects a parent's substantial right under R.C. 3127.21. Requiring a parent to litigate in an arguably inconvenient forum before they can challenge such an order does not effectively protect the parent's rights under the statute.
{¶16} In Buxton, the primary case finding to the contrary, the Fifth District relied on the general principle that the denial of a motion to change venue is not final, as well as several cases pre-dating the enactment of R.C. 3127.21. Buxton at ¶ 13. The court reasoned:
Generally, where a case is dismissed on the grounds of forum non conveniens, such dismissal is a final appealable order. See Natl. City Commercial Capital Corp. v. AAAA At Your Serv., Inc., 114 Ohio St.3d 82, 868 N.E.2d 663, 2007-Ohio-2942, ¶ 11. However, this does not answer the question of the appealability of an interlocutory denial of a forum non conveniens motion, as occurred in the case sub judice. We note that in Buzard v. Triplett, * * * the Tenth District Court of Appeals held that the denial of an
"inconvenient forum" motion pursuant to the aforesaid statute was a final appealable order. The [Buzard] Court stated: "Because R.C. 3127.21 grants a party the right to contest the convenience of the forum, that party has a 'substantial right' as defined by R.C. 2505.02(A)(1). We also find that the order denying appellant's motion 'affects' a substantial right because, if it is not immediately appealable, appellant could not obtain appropriate relief in the future. Once appellant is forced to litigate in a forum he considers inconvenient, appropriate relief on that issue is foreclosed in the future. Therefore, we find that the order at issue here is a final order as defined by R.C. 2505.02(B)(2)." Id. at ¶ 11.
However, this Court has consistently held otherwise on this issue, albeit in cases pre-dating R.C. 3127.21. See Leach v. Leach (Aug. 3, 1992), Stark App.No. CA-8878, 1992 WL 195473; Howald v. Howald (Feb. 4, 1991), Licking App. No. CA 3586; Pratt v. Pratt (Dec. 5, 1979), Stark App. No. CA-5150. The Fourth and Twelfth Districts have reached similar conclusions. See France v. Perry (Sept. 27, 1995), Pike App. No. 94CA538, 1995 WL 572910; In re Adoption of Favaron (May 29, 1990), Clermont App. No. CA 90-01-002. In a similar vein, we have also held that the denial of a request to change venue is not a final, appealable order: "The decision to deny a change of venue does not result in any of the types of irreparable harm just listed. There is an adequate legal remedy from a decision denying a change of venue, after final judgment. In other words, it may be expensive to get the cat back in the bag, if a trial court errs when it denies a change of venue, but it can be done."
Mansfield Family Restaurant v. CGS Worldwide, Inc. (Dec. 28, 2000), Richland App. No. 00-CA-3, 2000 WL 1886226.
Therefore, upon review of the record in the case sub judice, because appellee's underlying request to be named residential parent is still awaiting redress pending a final hearing, we decline to adopt the reasoning of Buzard, supra, and thus hold appellant's attempt to appeal the interlocutory "inconvenient forum" ruling is not an appeal of a final order under R.C. 2505.02(B).Buxton at ¶ 12-14.
{¶17} Buxton does not persuade us to follow its minority position. We observe that some of the cases on which Buxton relied are arguably no longer good law. For example, the 1990 Twelfth District case of In re Adoption of Favaron was effectively overruled by Kraemer v. Kraemer, 12th Dist. Butler No. CA2017-08-120, 2018-Ohio-3847, which held "that an order denying an inconvenient forum motion in a custody matter is a final appealable order under R.C. 2505.02(B)(2). Id. at ¶ 12. The Twelfth District in Kraemer noted but rejected Buxton. Id. It also noted that Favaron "predated the statute at issue in this case, R.C. 3127.21, and In re Murray," 52 Ohio St.3d 155, 556 N.E.2d 1169 (1990), discussing final orders in neglect or dependency cases. Favaron itself relied on the 1989 Tenth District case of Shilling v. Shilling, 10th Dist. Franklin No. 88AP-1192, 1989 WL 112348 (Sep. 28, 1989), which similarly has been effectively overruled by Buzard.
{¶18} The Buxton court also applied the reasoning of Mansfield Family Restaurant, a case that did not involve special proceedings, but instead considered finality under the separate, provisional remedy division of the final order statute. 5th Dist. Richland No. 00-CA-3, 2000 WL 1886226, *2, citing R.C. 2505.02(B)(4). The standards applied by these two divisions are not the same.
{¶19} Finally, Buxton found the order not final because matters remained pending in the trial court. Buxton at ¶ 14 (holding that "because appellee's underlying request to be named residential parent is still awaiting redress pending a final hearing, we decline to adopt the reasoning of Buzard, supra"). We do not find this rationale particularly compelling under the circumstances. The resolution of the entire matter is not required under the special proceeding division of RC 250502(B)(2); such is required under RC 250502(B)(1) "Pursuant to RC 250502(B)(2), the only requirement for finality in regard to a 'special proceeding' judgment is that it must affect a substantial right of a party to the action Given the lack of any reference to 'determining' the case, as is required under RC 250502(B)(1), it is evident that RC 250502(B)(2) was intended to permit appeals from partial judgments which would only be considered interlocutory orders in 'non-special' civil actions" Guardianship & Protective Servs, Inc v Setinsek, 11th Dist Trumbull No 2010-T-0099, 2011-Ohio-6515, ¶ 23 (Wright, J, concurring); see also Painter & Pollis, Ohio Appellate Practice, Section 2:15 (October 2020) (the standard for a special proceeding order "creates opportunities to appeal in special proceedings from orders that we normally think of as interlocutory, not final").
{¶20} In other words, it is not particularly relevant to the analysis under R.C. 2505.02(B)(2) if the order left matters unresolved. This division of the final order statute anticipates an interlocutory appeal due to the substantial nature of the right at issue and the "importance of an immediate appeal to vindicate that right." Id. For these reasons, we do not find Buxton particularly compelling.
{¶21} We conclude that the weight of authority in Ohio supports the position that an order denying a motion to find Ohio an inconvenient forum and declining to transfer the case to another state under R.C. 3127.21 is a final order under R.C. 2505.02(B)(2). We follow that position here.
{¶22} Father directs us to a recent decision of the Supreme Court of Ohio in support of his position that the order before us is not final. In Crown Services, 162 Ohio St.3d 564, 2020-Ohio-4409, 166 N.E.3d 1115, the Court held that an order dismissing a business dispute without prejudice on the basis of the common-law doctrine of forum non conveniens was not a final order. The Court examined the order under R.C. 2505.02(B)(1), which allows review of "[a]n order that affects a substantial right in an action that in effect determines the action and prevents a judgment." (Emphasis added.) The Court held that "a dismissal without prejudice based upon forum non conveniens is not a final, appealable order pursuant to R.C. 2505.02(B) and is therefore not subject to appellate review." Id. at ¶ 21.
{¶23} Much of the Court's discussion in Crown Services focused on the appealability of dismissals without prejudice. Id. at ¶ 21-23. The majority opinion appeared to agree with the dissent that the order affected a substantial right, by focusing on the other part of the division (B)(1) definition, which it found unsatisfied:
The dissenting opinion asserts that the dismissal affects a substantial right by abrogating constitutionally protected contractual rights. The dissenting opinion further asserts that when there is a forum-selection clause in a contract, dismissing the action without prejudice based upon the doctrine of forum non conveniens prevents a judgment in the plaintiffs' favor and
determines the action by terminating the proceeding and therefore, the dismissal is a final, appealable order within the meaning of Article IV, Section 3(B)(2) of the Ohio Constitution and R.C. 2505.03. Although the dismissal order concerns a substantial right, it does not determine the action and prevent a judgment. R.C. 2505.02(B)(1); see Chef Italiano Corp. v. Kent State Univ., 44 Ohio St.3d 86, 88, 541 N.E.2d 64 (1989) (to be final, an order that affects a substantial right must also determine an action and prevent a judgment)[.]
(Emphasis added.) Crown Services at ¶ 24. The majority concluded that:
For an order to be final and appealable under R.C. 2505.02, it must be an order that "affect[s] a substantial right and in effect determine[s] the action and prevents] a judgment." VIL Laser [Sys., LLC. v. Shiloh Industries, Inc.], 119 Ohio St.3d 354, 2008-Ohio-3920, 894 N.E.2d 303, at ¶ 7, citing R.C. 2505.02(B)(1). A dismissal of a case without prejudice based upon forum non conveniens does not satisfy R.C. 2505.02, because it does not prevent refiling. Thus, it does not affect a substantial right, determine the action, or prevent a judgment.
(Emphasis added.) Id. at ¶ 27.
{¶24} Crown Services is distinguishable from the case before us. It dealt with a different kind of order, in a different kind of dispute, and analyzed it under a different part of the final order statute. We do not read the last sentence quoted above to mean that no inconvenient forum orders can ever be final under the special proceedings division of the final order statute. Rather, the Court's opinion focused on the fact that a dismissal without prejudice typically leaves the parties as if no action had been filed, and does not prevent refiling. Id. at ¶ 23, 27. That action, therefore, had not been determined and a judgment had not been prevented. R.C. 2505.02(B)(1).
{¶25} The situation here is different. The requirement to determine the action and prevent a judgment is not a part of R.C. 2505.02(B)(2) and not part of our analysis in this case. Crown Services therefore is of little utility in resolving the question before us. We remain convinced, consistent with the weight of authority in Ohio, that the order before us is a final order subject to review at this time.
{¶26} Accordingly, we find our show cause order SATISFIED. This appeal shall proceed.
{¶27} Mother includes in her show cause response a request that this court stay proceedings in the trial court and vacate an October 22, 2021 hearing scheduled on pending motions. We decline to do so, as the trial court retains some jurisdiction even while an appeal is pending. See LexisNexis, a Division of RELX, Inc. v. Murrell, 2d Dist. Montgomery No. 29018, 2021-Ohio-3527, ¶ 6 (June 16, 2021) (trial court retains jurisdiction to address collateral matters, or to act in aid of an appeal). We note however that "the trial court is divested of jurisdiction over matters that are inconsistent with the reviewing court's jurisdiction to reverse, modify, or affirm the judgment" currently on appeal. State ex rel. Electronic Classroom of Tomorrow v. Cuyahoga Cty. Court of Common Pleas, 129 Ohio St.3d 30, 2011-Ohio-626, 950 N.E.2d 149, ¶ 13 (internal citation and quotations omitted); Murrell at ¶ 6 ("the trial court does not have jurisdiction to proceed on claims that 'could be affected by' or 'might be subject to' the issues pending on appeal"). The trial court should determine in the first instance whether it can proceed.
SO ORDERED.
MARY E. DONOVAN, Judge, MICHAEL T. HALL, Judge