Opinion
Appellate Case No. 19-CA-0037
09-06-2019
DOUGLAS T. KEENEY Plaintiff-Appellee v. KIMBERLY RENEE KEENEY Defendant-Appellant
Copies to: Anthony Sullivan 130 W. Second Street, Suite 604 Dayton, Ohio 45402 Attorney for Appellant Douglas Keeney 1832 Victory Drive Springfield, Ohio 45505 Appellee Hon. Thomas J. Capper Clark County Domestic Relations Court Courthouse, 101 N. Limestone Street Springfield, Ohio 45502-1120
Trial Court Case No. 16-DR-0511 [Civil appeal from Common Pleas Court]
DECISION AND FINAL JUDGMENT ENTRY
PER CURIAM:
{¶ 1} This matter is before the court for resolution of our unanswered show cause order. We conclude that the appeal must be dismissed.
{¶ 2} Kimberly Renee Keeney appealed the trial court's April 12, 2019 "Decision and Final Judgment Entry." It appeared to this court that the April 12 Decision was not a final appealable order, in that it does not contain the court's own order entering judgment and resolving the divorce matter before it. The April 12 Decision overrules in part, and sustains in part, objections to a Magistrate's Decision, modifies that decision, and approves and adopts the Magistrate's Decision as modified. Although the trial court notes that it intends the Decision to be a final appealable order, it does not satisfy the standards identified by Ohio courts for such an order.
{¶ 3} When a trial court refers a matter to a magistrate for a decision, the magistrate's decision is not a final appealable order. See State ex rel. Boddie v. Franklin Cty. 911 Admr., 135 Ohio St.3d 248, 2013-Ohio-401, 985 N.E.2d 1263, ¶ 2, quoting In re Adoption of S.R.A., 189 Ohio App.3d 363, 2010-Ohio-4435, 938 N.E.2d 432, ¶ 17 (10th Dist.) ("Orders do not constitute court orders unless certain formalities are met, and only judges, not magistrates, can terminate claims or actions by entering judgment"). The trial court's resolution of a referred matter, upon review of the magistrate's decision, must satisfy several requirements to be considered a final appealable order.
{¶ 4} First, the trial court's judgment entry must contain the trial court's own judgment and order on the underlying matter; it is insufficient for the trial court to simply adopt the magistrate's decision as its own order. Boddie at ¶ 2, quoting Harkai v. Scherba Industries, Inc., 136 Ohio App.3d 211, 218, 736 N.E.2d 101 (9th Dist.2000) ("Although the judge entirely agrees with the decision of the magistrate, the judge must still separately enter his or her own judgment setting forth the outline of the dispute and the remedy provided"); see also Civ.R. 53(D)(4)(e) ("A court that adopts, rejects, or modifies a magistrate's decision shall also enter a judgment or interim order"). The trial court's order should be specific:
"The content of the judgment must be definite enough to be susceptible to further enforcement and provide sufficient information to enable the parties to understand the outcome of the case. It is fundamental that the trial court employ diction which should include * * * operative, action-like and
conclusionary verbiage * * *. Moreover, a 'judgment' must be distinguished from a 'decision.' While a decision announces what the judgment shall be, the judgment entry orders the relief unequivocally. (Citations omitted.)"Kendall v. Kendall, 6th Dist. Ottawa No. OT-13-019, 2014-Ohio-4730, ¶ 15, quoting In re Adoption of S.R.A., at ¶ 17-18 and also citing In re Dortch, 135 Ohio App.3d 430, 432, 734 N.E.2d 434 (9th Dist.1999) (Trial court's journal entry regarding child support arrearages was not a final, appealable order because, although the entry "describes the magistrate's orders, [it] fails to set forth the orders of the court").
{¶ 5} The trial court's entry must sufficiently address the pending issues "so that the parties may know of their rights and obligations by referring only to that document known as the judgment entry." In re Michael, 71 Ohio App.3d 727, 729-730, 595 N.E.2d 397 (11th Dist.1991); In re Nicholas W. Gill, 2d Dist. Clark No. 19-CA-0025 (May 28, 2019). Where "the trial court's filing improperly requires the parties to refer to and compare two separate documents to understand their rights and obligations," the order is not final and appealable. Brown v. Burnett, 2d Dist. Clark No. 2017-CA-86, 2018-Ohio-2328, ¶ 11.
{¶ 6} The trial court must, as it has here, rule on pending objections to the magistrate's decision. Carpenter v. Johnson, 196 Ohio App.3d 106, 2011-Ohio-4867, 962 N.E.2d 377, ¶ 8-9 (2d Dist.); G. Scottco Invest. Co. v. Korleski, 10th Dist. Franklin No. 10AP-582, 2011-Ohio-6656, ¶ 6, quoting Drummond v. Drummond, 10th Dist. Franklin No. 02AP-700, 2003-Ohio-587, ¶ 13 (Civ.R. 53 " 'imposes a mandatory duty on the court to dispose of a party's objections to a magistrate's report' ").
{¶ 7} Finally, the judgment entry must "be a document separate from the magistrate's decision." Kendall at ¶ 15; see also Portis-Phillips v. Phillips, 2d Dist. Clark No. 15-CA-0110 (Jan. 29, 2016) (dismissing appeal from an entry that attached and incorporated a magistrate's decision) and Civ.R. 54(A) ("A judgment shall not contain * * * the magistrate's decision in a referred matter").
But see State v. Lewis, 2d Dist. Clark No. 2017-CA-19, 2017-Ohio-9311, ¶ 8, fn. 1, and Lewis at ¶ 28-30 (Froelich, J., dissenting) (concerning the separate document requirement where both the judge and the magistrate sign one document, but no objections are filed).
{¶ 8} As this court has said:
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.(Emphasis added.) Bennett v. Bennett, 2012-Ohio-501, 969 N.E.2d 344, ¶ 20 (2d Dist.) (internal citations and quotations omitted); but see Bennett at ¶ 23 (Hall, J., dissenting).
{¶ 9} Here, the April 12 Decision does not adequately set forth the trial court's own order resolving the divorce matter before it, i.e., it does not grant the parties a divorce or outline the division of property or describe the parties' parenting time, etc. Compare Bennett at ¶ 15 ("A judgment and decree of divorce is final under Civ.R. 54(B) when it determines every claim presented by the parties to an action. It is then appealable under R.C. 2505.02(B)(1) because the judgment and decree 'affects a substantial right in an action that in effect determines the action and prevents a judgment' "). We have found similar orders not final. See, e.g., Bennett (where order on appeal only dealt with matters to which objections had been filed, but not the resolution of the full case, it was not final); Havisa v. Havisa, 2d Dist. Darke No. 16-CA-0009 (Nov. 4, 2016) (order not final where trial court did not enter its own order holding defendant in contempt and giving him an opportunity to purge the contempt, and where the order adopted but modified the magistrate's decision and required the parties to refer to and compare another document to understand their rights and responsibilities). See also Everhome Mtge. Co. v. Kilcoyne, 8th Dist. Cuyahoga No. 96982, 2012-Ohio-593, ¶ 3, citing Deutsche Bank Natl. Co. v. Caldwell, 196 Ohio App.3d 636, 2011-Ohio-4508, 964 N.E.2d 1093, ¶ 8 (8th Dist.) ("The judgment entry must contain a clear pronouncement of the court's judgment and a statement of relief and must be a complete document, separate and apart from that of the magistrate's order").
"Here, although the trial court's entry stated that it was a 'separate and distinct instrument' from the magistrate's decision and was 'grant[ing] relief on the issues submitted to the court,' it failed to adequately do so. Although the entry granted default judgment, it did not say against which defendant. Likewise, it granted summary judgment for Deutsche Bank but did not say against whom; it also did not enter judgment in favor of Deutsche Bank against that defendant. Finally, although the entry granted a 'decree of foreclosure' for Deutsche Bank, it did not provide any details of that decree. In short, the entry did not include a clear pronouncement of the trial court's judgment and the relief granted by the court. The trial court's entry did not enable the parties to refer to the entry and determine their responsibilities and obligations." Caldwell at ¶ 8. --------
{¶ 10} Under these standards, the April 12 Decision is not a final appealable order. 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 an appeal therefrom must be dismissed. Gen. Acc. Ins. Co. v. Ins. Co. of N. Am., 44 Ohio St.3d 17, 20, 540 N.E.2d 266 (1989). We therefore find our show cause order NOT SATISFIED. This matter, Clark Appellate Case No. 19-CA-0037, is DISMISSED.
{¶ 11} Pursuant to Ohio App.R. 30(A), it is hereby ordered that the Clerk of the Clark County Court of Appeals shall immediately serve notice of this judgment upon all parties and make a note in the docket of the mailing. Costs waived.
SO ORDERED.
/s/_________
JEFFREY M. WELBAUM, Presiding Judge
/s/_________
MARY E. DONOVAN, Judge
/s/_________
MICHAEL L. TUCKER, Judge Copies to: Anthony Sullivan
130 W. Second Street, Suite 604
Dayton, Ohio 45402
Attorney for Appellant Douglas Keeney
1832 Victory Drive
Springfield, Ohio 45505
Appellee Hon. Thomas J. Capper
Clark County Domestic Relations Court
Courthouse, 101 N. Limestone Street
Springfield, Ohio 45502-1120 CA3/KY