McMahon v. McMahon

Full title: MCMAHON, APPELLEE v. MCMAHON, SR., APPELLANT, ET AL

Court: Supreme Court of Ohio

Date published: Nov 28, 1951

102 N.E.2d 252 (Ohio 1951)

102 N.E.2d 252

Opinion

No. 32559

Decided November 28, 1951.

Appeal — Final order — Action for alimony — Order for alimony pendente lite — Not "final order" from which appeal may be prosecuted.

CERTIFIED by the Court of Appeals for Lucas county.

This cause was instituted in the Common Pleas Court for alimony only. A motion was made for temporary alimony, attorney fees and court costs. The trial court granted the motion and ordered defendant to pay to plaintiff a specified sum per week as temporary alimony.

Defendant appealed on questions of law from the order awarding temporary alimony. On motion to dismiss the appeal, the Court of Appeals found that the trial court did not abuse its discretion in granting temporary alimony and dismissed the appeal on the ground that the order appealed from is not a final order from which an appeal may be prosecuted. The judges of the Court of Appeals, finding the judgment in conflict with a judgment pronounced on the same subject by the Court of Appeals of the Ninth Appellate District, Taylor v. Taylor, 74 Ohio App. 191, 57 N.E.2d 931, certified the record to this court for review and final determination.

Messrs. Taylor, Cruey Kelb, for appellee.

Mr. Eugene Howard and Mr. Dan H. McCullough, for appellant.

Per Curiam.

The question presented to this court is whether the Court of Appeals had jurisdiction to review the order awarding temporary alimony. Section 6, Article IV of the Constitution, is the sole source of jurisdiction of the Court of Appeals and gives to that court jurisdiction to entertain appeals on questions of law only from judgments or final orders of courts of record within its district.

An examination of the record fails to disclose an abuse of discretion by the trial court in making the order. The order for temporary alimony is provisional in its nature, subject to modification at any time, and did not determine the ultimate rights of the parties in the action for alimony. It is not a judgment or final order from which an appeal on questions of law may be taken.

The judgment of the Court of Appeals is affirmed.

Judgment affirmed.

WEYGANDT, C.J., ZIMMERMAN, STEWART, MIDDLETON, TAFT, MATTHIAS and HART, JJ., concur.