Opinion
Appellate Case No. 26606
07-09-2015
IN RE: C.C.
Attorney for Appellant (Mother) 2312 Far Hills Avenue, #143 Dayton, Ohio 45419 Aaron Hartley Attorney for Appellee (Father) 209 East Stroop Road Kettering, Ohio 45429 Appellee (Grandmother) Trotwood, Ohio Randall Stevenson Guardian ad litem PO Box 341133 Beavercreek, Ohio 45434 Carley Ingram Attorney for Montgomery County Children Services 301 W. Third Street, 5th Floor Dayton, Ohio 45422 Hon. Nick Kuntz Montgomery County Juvenile Court 380 W. Second Street Dayton, Ohio 45422
Trial Court Case No. 2013-5270
DECISION AND FINAL JUDGMENT ENTRY
PER CURIAM:
{¶ 1} [C.G.] appeals the "Decision and Judgment Concerning Objections to the Decision of the Magistrate," issued by the Juvenile Division of the Common Pleas Court of Montgomery County, Ohio on March 2, 2015. On May 5, 2015, this court ordered Appellant to show cause why this case should not be dismissed for lack of jurisdiction. It appeared that the order on appeal was not final and appealable in accordance with R.C. 2505.02 and Bennett v. Bennett, 2d Dist. Clark No. 11CA52, 2012-Ohio-501, 969 N.E.2d 344. Specifically, it appeared that the trial court did not make its own order granting temporary custody of C.C., but only adopted the magistrate's custody decision. The trial court also adopted the "provisions and requirements" of the magistrate's decision (including parenting time, school district determination, and the like), which requires the parties to refer to a separate document to understand their rights and obligations.
{¶ 2} On June 26, 2015, Appellant filed a response to the show cause order, attaching a motion she has filed with the trial court for the entry of a final appealable order. Appellant states she will file an amended notice of appeal when the trial court enters such an order.
{¶ 3} Upon consideration, we must dismiss this appeal for lack of a final appealable order pursuant to the Bennett case. Bennett provides:
A trial court must render its own separate judgment and may not simply state that it approves, adopts, or incorporates a magistrate's decision. A judgment entry is not sufficient if it merely recites that a recommendation/decision is approved and adopted thereby requiring the parties to refer to another document in order to determine exactly what their rights and obligations are. It has been said that 'the judgment entry must be worded in such a manner that the parties can readily determine what is necessary to comply with the order of the court' and need not resort to any other documents. Accordingly, for a judgment entry of the court to be a final appealable order, it must adopt, reject, or modify the magistrate's decision and state, for identification purposes, the date the magistrate's decision was filed. It should state the outcome and contain an order which states the relief granted so that the parties are able to determine their rights and obligations by referring solely to the judgment entry and should be a document separate from the magistrate's decision.Bennett at ¶ 20 (internal quotations and citations omitted).
{¶ 4} Here, in the March 2, 2015 decision, the trial [court] adopts the magistrate's decision but does not make its own orders granting custody of C.C. or set forth the "provisions and requirements" affecting that custody arrangement. The parties must refer to another document to understand their rights and obligations. Pursuant to Bennett, the order is not final and appealable. See also In re D.J., 2d Dist. Montgomery No. 26599, 2015-Ohio-2295, ¶ 5 (describing a one-document rule). Without a final appealable order, this court lacks jurisdiction. Gen. Acc. Ins. Co. v. Ins. Co. of N. Am., 44 Ohio St.3d 17, 20, 540 N.E.2d 266 (1989). We therefore DISMISS the appeal.
{¶ 5} We appreciate that Appellant has attempted to resolve this issue by seeking the entry of a final order from the trial court. We note, however, the Ohio Supreme Court has "consistently held that once an appeal is perfected, 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." 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 quotation omitted). Any inconsistent orders issued while this appeal is pending will be a nullity. State v. Smith, 2d Dist. Greene No. 2010-CA-63, 2011-Ohio-5986, ¶ 9-10. The fact that we have dismissed the appeal for lack of jurisdiction does not change this result. Electronic Classroom at ¶ 15-17.
{¶ 6} Should the trial court issue a final appealable order after this appeal is dismissed, the parties may file a new appeal from that order, and may thereafter request that the record be transferred to that appeal.
{¶ 7} Pursuant to Ohio App.R. 30(A), it is hereby ordered that the Clerk of the Montgomery County Court of Appeals shall immediately serve notice of this judgment upon all parties and make a note in the docket of the mailing.
SO ORDERED.
/s/_________
JEFFREY E. FROELICH, Presiding Judge
/s/_________
MARY E. DONOVAN, Judge
/s/_________
JEFFREY M. WELBAUM, Judge
Copies to: Cristy Oakes Attorney for Appellant (Mother)
2312 Far Hills Avenue, #143
Dayton, Ohio 45419
Aaron Hartley
Attorney for Appellee (Father)
209 East Stroop Road
Kettering, Ohio 45429
Appellee (Grandmother)
Trotwood, Ohio
Randall Stevenson
Guardian ad litem
PO Box 341133
Beavercreek, Ohio 45434
Carley Ingram
Attorney for Montgomery County Children Services
301 W. Third Street, 5th Floor
Dayton, Ohio 45422
Hon. Nick Kuntz
Montgomery County Juvenile Court
380 W. Second Street
Dayton, Ohio 45422
CA3/KY