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ANNA CAROL QUESINBERRY v. NATHAN QUESINBERRY

Date: 04-25-2022

Case Number: 29055

Judge: PER CURIAM

Court:

IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT MONTGOMERY COUNTY

On appeal from The Common Pleas Court

Plaintiff's Attorney:









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Defendant's Attorney: Thomas Eagle





Description:

Dayton, Ohio - Divorce lawyer represented Appellant with appealing a Judgment overruling her motion to vacate the parties' Dissolution of Marriage .







Anna Quesinberry appeals a June 14, 2021 Decision and Judgment overruling

her Civ.R. 60(B) motion. The Civ.R. 60(B) motion sought to vacate the parties' 2018

Judgment Entry of Dissolution of Marriage on the basis of fraud, duress, misrepresentation,

and undue influence. A magistrate found that Anna was entitled to Civ.R. 60(B) relief.

Nathan Quesinberrry filed objections to the magistrate's decision. In the June

14 Judgment on appeal, the trial court found Nathan's objections well-taken in part, and

sustained them. The trial court ultimately overruled Anna's motion to vacate. The court

also noted that other, separate motions were still pending, including Nathan's motion

alleging contempt and requesting a modification of the parties' shared parenting plan, and

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Anna's motions to terminate shared parenting and to name her residential parent, and to

modify child support.

Anna appealed the June 14 Judgment. Nathan and Ariel Quesinberry

(Nathan's current spouse and intervenor in the trial court case) filed a motion to dismiss this

appeal for lack of a final appealable order. They assert that the motions pending in the

case prevent the June 14 Judgment from being final. Anna filed a response; Nathan and

Ariel filed a reply. For the following reasons, we overrule the motion to dismiss. The

appeal shall proceed.

An appellate court has jurisdiction to review only final orders of the lower courts

in its district. Section 3(B)(2), Article IV, Ohio Constitution; R.C. 2505.02. If an order is not

final, we have no jurisdiction to review it and must dismiss the appeal. Gen. Acc. Ins. Co.

v. Ins. Co. of N. Am., 44 Ohio St.3d 17, 20, 540 N.E.2d 266 (1989).

"For a judgment to be final and appealable, it must satisfy the requirements of

R.C. 2505.02 and, if applicable, Civ.R. 54(B).” Onady v. Wright State Physicians, Inc., 2d

Dist. Montgomery No. 27954, 2018-Ohio-3096, ¶ 7, citing Chef Italiano Corp. v. Kent State

Univ., 44 Ohio St.3d 86, 88, 541 N.E.2d 64 (1989). R.C. 2505.02 defines final orders. It

says, in relevant part:

An order is a final order that may be reviewed, affirmed, modified, or reversed,

with or without retrial, when it is one of the following:

(1) An order that affects a substantial right in an action that in effect determines

the action and prevents a judgment;

(2) An order that affects a substantial right made in a special proceeding or

upon a summary application in an action after judgment; [or]

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(3) An order that vacates or sets aside a judgment or grants a new trial[.]

R.C. 2505.02(B).

In 1980, the Supreme Court of Ohio recognized as "well-settled” the rule that "a

judgment denying a motion for relief from judgment filed pursuant to Civ.R. 60(B) is itself a

final appealable order.” Colley v. Bazell, 64 Ohio St.2d 243, 245, 416 N.E.2d 605 (1980).

At that time, the final order statute said, in relevant part:

An order affecting a substantial right in an action which in effect determines

the action and prevents a judgment, an order affecting a substantial right made

in a special proceeding or upon a summary application in an action after

judgment, or an order vacating or setting aside a judgment and ordering a new

trial is a final order which may be reviewed, affirmed, modified, or reversed,

with or without retrial.

R.C. 2505.02, 1953 H 1 (eff. Oct. 1, 1953). The three parts of the statute in effect in 1980

correspond to divisions (B)(1), (B)(2), and (B)(3) of the current final order statute.

The Colley Court did not cite the final order statute in its opinion or identify which

part of the statute a Civ.R. 60(B) denial satisfied. At least one court has suggested that the

first part of the statute – an order affecting a substantial right that in effect determines the

action and prevents a judgment – is likely what the Court meant. See Bussa v. Hadsel

Chem. Processing, LLC, 2016-Ohio-5718, 76 N.E.3d 385, ¶ 9 (4th Dist.), fn. 3 (noting that

although Colley did not specify, it "cited federal cases that seem to suggest an order denying

Civ.R. 60(B) relief from a final order affects a substantial right and in effect determines the

action and prevents a judgment”). Today, that provision is R.C. 2505.02(B)(1).

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Ohio courts continue to rely on Colley, as does Anna here, for the proposition

that the denial of a Civ.R. 60(B) motion is a final order. But courts generally do so without

explicitly identifying which section of the statute is satisfied. See, e.g., Hadassah v.

Schwartz, 1st Dist. Hamilton No. C-110699, 2012-Ohio-3910, ¶ 8; Hack v. Keller, 9th Dist.

Medina No. 14CA0036-M, 2015-Ohio-4128, ¶ 10. Anna asserts here that the order is final

under R.C. 2505.02(B)(1), citing State ex rel. Lemerand v. Woessner, 6th Dist. Wood No.

WD-06-060, 2006-Ohio-4916, ¶ 10-13. Lemerand does not answer the question.

In Lemerand, the court briefly considered the finality of two orders: one

dismissing a declaratory judgment action, and one overruling a motion for relief from

judgment. The court said that, as to the trial court's order dismissing the declaratory

judgment action, that order satisfied R.C. 2505.02(B)(1). As "to the trial court's denial of

relator's motion for relief from judgment,” the court simply held that "in general, a denial of a

Civ.R. 60(B) motion for relief from judgment is a final appealable order,” without identifying

which part of the statute is satisfied. Id. at ¶ 13, citing Ullmann v. Duffus, 10th Dist. Franklin

No. 05AP-299, 2005-Ohio-6060, at ¶ 33; Carter v. City of Cleveland, 8th Dist. Cuyahoga No.

77469, 2000 WL 1643532 (Nov. 2, 2000); Shaheen v. Vassilakis, 82 Ohio App.3d 311, 315,

612 N.E.2d 435 (8th Dist.1992). None of these cases identifies which division of the statute

is satisfied. For their part, Nathan and Ariel acknowledge Colley and agree that the denial

of a Civ.R. 60(B) motion can be a final order, but they do not address which part of the final

order statute is the relevant one.

Tethering the finality of a Civ.R. 60(B) denial to a particular division of the final

order statute matters for two related reasons. First, Civ.R. 54(B) does not, or may not, apply

to some divisions of the statute, and thus may not be required for finality. See Zhong v.

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Liang, 2020-Ohio-3724, 155 N.E.3d 1042, ¶ 18 (8th Dist.) ("While Civ.R. 54(B) clearly

applies to R.C. 2505.02(B)(1) * * * it is less clear whether Civ.R. 54(B) applies to R.C.

2505.02(B)(2)”); Dayton Childrens Hosp. v. Garrett Day LLC, 2018-Ohio-5466, 131 N.E.3d

304, ¶ 15 (2d Dist.) (Civ.R. 54(B) does not apply to a provisional remedy under R.C.

2505.02(B)(4)). Second, the determination is relevant to the question of whether an order

can be final with other motions pending, which is the situation currently before us. So,

before we can answer these questions, we must first determine which part or parts of the

final order statute are satisfied here.

Since the Supreme Court in Colley presumably found the denial of a Civ.R.

60(B) motion final under one of the three parts of the statute then in effect, we look at the

three corresponding parts of the current statute: division (B)(1) (an order that determines

the action), division (B)(2) (an order in a special proceeding or on summary application after

judgment), and division (B)(3) (an order vacating or setting aside a judgment). The third

division is clearly inapplicable to the denial of a Civ.R. 60(B) motion, which, like the June 14

Judgment here, declines to vacate the final order. Thus, we consider whether the June 14

Judgment satisfies division (B)(1) or (B)(2).

R.C. 2505.02(B)(1): An Order that Determines the Action

Division (B)(1) of the final order statute defines as final "[a]n order that affects

a substantial right in an action that in effect determines the action and prevents a judgment.”

"For an order to determine the action, it must dispose of the merits of the cause or some

separate and distinct branch thereof and leave nothing for the determination of the court.”

VIL Laser Sys., L.L.C. v. Shiloh Industries, Inc., 119 Ohio St.3d 354, 2008-Ohio-3920, 894

6

N.E.2d 303, ¶ 8, citing Miller v. First Internatl. Fid. & Trust Bldg., Ltd., 113 Ohio St.3d 474,

2007-Ohio-2457, 866 N.E.2d 1059, ¶ 6.

Typically, in a divorce case, the decree of divorce is the first (although often

not the only) final order entered in the case. The decree is final under R.C. 2505.02(B)(1)

because it determines the divorce action, i.e., because it resolves the claim(s) for divorce,

divides property, determines the appropriateness of spousal support, and where applicable,

allocates parental rights and responsibilities, including child support. See Wilson v. Wilson,

116 Ohio St.3d 268, 2007-Ohio-6056, 878 N.E.2d 16, ¶ 8-16, 19, citing Civ.R. 75(F)

(discussing the contents of a divorce decree and holding that "it is the decree of divorce that

constitutes the final determination of the court and determines the merits of the case”).

The underlying case here was not for divorce, but for dissolution of Anna and

Nathan's marriage. The case was instituted by a Petition for Dissolution of Marriage with

Children. The Judgment Entry of Dissolution of Marriage with Children, along with the

Shared Parenting Plan incorporated therein, which was issued by the trial court on May 23,

2018, granted and resolved the Petition and determined the dissolution action. Thus, it

appears to this court that, in the absence of any argument to the contrary, the 2018

Judgment Entry of Dissolution was "[a]n order that affect[ed] a substantial right in an action

that in effect determine[d] the action and prevent[ed] a judgment” under R.C. 2505.02(B)(1).

Anna's Civ.R. 60(B) motion sought to vacate that final order, and undo or undetermine the dissolution action. The motion did not create or institute a new action for

dissolution; it was a motion filed after the dissolution action was resolved attacking that

resolution. The denial of Anna's motion does not determine any action – because no action

was pending – and therefore does not satisfy R.C. 2505.02(B)(1).

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We observe that "action” in this respect must refer to the entire case or

cause(s) of action, and not to an issue or motion filed in the case. See Lantsberry v. Tilley

Lamp Co., 27 Ohio St.2d 303, 306, 272 N.E.2d 127 (1971) ("A final order * * * is one

disposing of the whole case or some separate and distinct branch thereof”). Holding

otherwise – that a motion is an "action” – would allow an interlocutory appeal any time a pretrial motion or issue is resolved, contrary to the purpose of the statute and "[t]he 'general

rule in Ohio * * * that there should be one trial and one appeal' in each case.” Wiggins v.

Safeco Ins. Co. of Indiana, 2d Dist. Montgomery No. 29034, 2021-Ohio-3526, ¶ 6, quoting

Lakewood v. Pfeifer, 83 Ohio App.3d 47, 50, 613 N.E.2d 1079 (8th Dist.1992).

Accordingly, we conclude that the June 14 Judgment did not "determine the

action” because the action had already been determined. R.C. 2505.02(B)(1) does not

apply.

R.C. 2505.02(B)(2): An Order in a Special Proceeding or After Judgment

"An order that affects a substantial right made in a special proceeding or upon

a summary application in an action after judgment” is a final order under R.C. 2505.02(B)(2).

Both parts of this division are arguably relevant here, although, because the June 14

Judgment was entered after the decree of dissolution, the latter part appears to be the most

applicable. We first consider whether the June 14 Judgment is the type of order to which

this division applies, and then consider whether it satisfies the definition.

Special Proceedings

A special proceeding is "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). Divorce actions have been held to be special proceedings. See

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Thomasson v. Thomasson, 153 Ohio St.3d 398, 2018-Ohio-2417, 106 N.E.3d 1239, ¶ 12,

citing Wilhelm-Kissinger v. Kissinger, 129 Ohio St.3d 90, 2011-Ohio-2317, 950 N.E.2d 516,

¶ 6 ("divorce, a statutory matter that did not exist at common law, qualifies as a special

proceeding”). This analysis has been applied in dissolution cases as well. See, e.g.,

McDonald v. McDonald, 4th Dist. Ross No. 95CA2122, 1996 WL 741403, *2 (Dec. 19, 1996),

citing State ex rel. Papp v. James, 69 Ohio St.3d 373, 632 N.E.2d 889 (1994) (finding the

dissolution matter a special proceeding using same analysis); Harness v. Harness, 143 Ohio

App.3d 669, 671, 673, 758 N.E.2d 793 (4th Dist.2001) (finding a custody proceeding after

dissolution to be a special proceeding). Accordingly, we find that the underlying action is a

special proceeding.

Summary Applications after Judgment

R.C. 2505.02(B)(2) also permits an appeal from certain orders entered "upon

a summary application in an action after judgment.” The statute does not define this term,

" 'but it seems to fit situations * * * which arise after judgment and do not involve lengthy trial

court proceedings.' ” State v. McBroom, 2015-Ohio-4719, 49 N.E.3d 785, ¶ 3 (2d Dist.),

quoting State v. Wilkinson, 2d Dist. Montgomery No. 18286, 2000 WL 1644135, *1-2 (Sept.

25, 2000). While "[t]he case law offers no helpful explanation of what constitutes a

'summary application in an action after judgment' under R.C. 2505.02(B)(2),” some

examples can be found. Painter & Pollis, Ohio Appellate Practice, Section 2:14 (Oct. 2021).

In a criminal case, a defendant's "post-judgment motion to take a polygraph

exam is one made 'upon a summary application in an action after judgment.' ” State v.

Branham, 6th Dist. Huron No. H-95-066, 1995 WL 704100, *1 (Nov. 27, 1995).

Garnishment or collection proceedings after judgment have also been considered summary

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applications. See State v. Horsley, 4th Dist. Jackson No. 18CA4, 2018-Ohio-4203, ¶ 7-8.

Likewise, "[a] post-judgment motion for attorney fees * * * is a summary application in an

action after judgment.” Bd. of Cty. Commrs. of Putnam Cty. v. Patrick Bros., 3rd Dist.

Putnam No. 12-18-11, 2019-Ohio-3722, ¶ 14, citing Troja v. Pleatman, 1st Dist. Hamilton

No. C-160447, 2016-Ohio-7683, ¶ 21. A QDRO issued after a divorce decree is a summary

application after judgment. Pearl v. Pearl, 2012-Ohio-4752, 980 N.E.2d 1095, ¶ 16-18 (2d

Dist.). Finally, "[o]rders issued upon summary application after judgment include * * * orders

denying relief from judgment under Civ. R. 60(B).” Sowald & Morganstern, Ohio Domestic

Relations Law, Section 32:3 (Dec. 2020), citing Colley.

This court routinely, and without comment, considers orders resolving postjudgment motions as orders entered on summary application after judgment, particularly in

domestic relations proceedings. See, e.g., Sullivan v. Sullivan, 2d Dist. Montgomery No.

28961, 2021-Ohio-1117 (considering the denial of a Civ.R. 60(B) motion); Bissell v. Bissell,

2d Dist. Montgomery No. 26855, 2016-Ohio-3086, ¶ 6-7 (considering the denial of a motion

for new trial and motion for Civ.R. 60(B) relief). Upon consideration of the question directly,

we hold that a Civ.R. 60(B) motion directed to a final decree of dissolution is a summary

application after judgment.

Affecting a Substantial Right

In addition to being a special-proceeding or summary-application order, to

satisfy R.C. 2505.02(B)(2), the order on appeal must involve a substantial right. A

substantial right is "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). The denial of a motion to vacate involves a right to seek relief from

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judgment, and is enforceable under a rule of procedure. See generally Gehm v. Timberline

Post & Frame, 112 Ohio St.3d 514, 2007-Ohio-607, 861 N.E.2d 519, ¶ 29 ("As a motion to

intervene is a right recognized by Civ.R. 24, intervention constitutes a substantial right under

R.C. 2505.02(A)(1)”).

The order must also affect the substantial right; "the mere existence or

implication of a substantial right in a case is insufficient.” Crown Srvs., Inc. v. Miami Valley

Paper Tube Co., 162 Ohio St.3d 564, 2020-Ohio-4409, 166 N.E.3d 1115, ¶ 16, citing 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. Or, said differently, "[a]n order affecting a substantial right is one that, if not

immediately appealable, would foreclose appropriate relief in the future.” State v. Zimpfer,

2d Dist. Montgomery No. 27705, 2018-Ohio-2430, ¶ 11, citing Bell v. Mt. Sinai Med. Ctr., 67

Ohio St.3d 60, 63, 616 N.E.2d 181 (1993).

This analysis generally looks at whether an immediate appeal is necessary or

whether the appealing party can wait until the action is fully resolved. See Thomasson at

¶ 24-30 (discussing cases and whether "a successful appeal after final judgment would * * *

provide an effective remedy”). Courts have historically focused on whether an appellant

can wait for final judgment in the case to appeal. This court has said:

For an order to affect a substantial right, the appellant must as a threshold

matter establish that vindication of that right on appeal after final judgment is

not available. Bell v. Mt. Sinai Med. Ctr. (1993), 67 Ohio St.3d 60, 616 N.E.2d

181. In other words, a substantial right is affected when, absent an immediate,

11

albeit arguably interlocutory appeal, the impact of the order upon the

appellant's legal rights cannot effectively be examined by the appellate court

and appropriate relief granted if warranted. Id. at 63, 616 N.E.2d at 183-184.

State v. Chalender, 99 Ohio App.3d 4, 6-7, 649 N.E.2d 1254 (2d Dist.1994).

In the case before us, the final judgment has already been entered, so the

situation does not fit comfortably into this analysis, particular with respect to summaryapplication orders. In fact, a summary application after judgment is by definition occurring

after judgment. Asking whether a party must await final judgment to appeal therefore does

not make much sense.

This court is bound by the Supreme Court of Ohio's holding in Colley that the

denial of a Civ.R. 60(B) motion is a final order. Final orders were then, and now, defined

by R.C. 2505.02. Both of the two potentially relevant divisions of that statute, (B)(1) and

(B)(2) require that the order affect a substantial right, which generally looks at whether an

immediate appeal is necessary to protect the right or whether an appellant must wait for final

judgment to appeal. Yet a Civ.R. 60(B) motion by definition is only available after final

judgment. Groza-Vance v. Vance, 162 Ohio App.3d 510, 2005-Ohio-3815, 834 N.E.2d 15,

¶ 52 (10th Dist.), citing Jarrett v. Dayton Osteopathic Hosp., Inc., 20 Ohio St.3d 77, 486

N.E.2d 99 (1985) ("Only final judgments are subject to vacation or modification pursuant to

Civ.R. 60(B)”). So, to both follow Colley and to read the final order statute in a manner that

avoids absurdity, this court has two apparent options. See State ex rel. Clay v. Cuyahoga

Cty. Med. Examiner's Office, 152 Ohio St.3d 163, 2017-Ohio-8714, 94 N.E.3d 498, ¶ 24

(courts have a duty to construe statutes to avoid unreasonable or absurd results). Either the

court must read the "affecting a substantial right” phrase in R.C. 2505.02(B)(2) as applicable

12

only to special-proceeding orders, and not applicable to summary-application-afterjudgment orders, or the court must consider the test for evaluating whether a substantial

right is affected in a context not linked to awaiting final judgment.

We take the latter approach, which is more consistent with the Supreme

Court's recent focus on protecting the appellant's rights effectively. See, e.g., Crown Srvs.

at ¶ 16 ("An order affects a substantial right 'only if an immediate appeal is necessary to

protect the right effectively' ”).

We find that an immediate appeal is necessary here. We further find that it

would be inequitable and impracticable to make Anna wait until there are no matters pending

before the trial court before she can appeal the June 14 Judgment. In arguing that the June

14 Judgment is not final because other matters are pending in the dissolution case, Nathan

and Ariel suggest that Anna must wait to appeal it until all of those motions – and presumably

any new motions filed hereafter – are resolved. There is no way for this court, the trial court,

or the parties, to know when that will be. It is possible that litigation will continue between

the parties indefinitely, at least until the minor children are emancipated, child support is

entirely paid, and no other issues remain. Though certainly all involved hope that is not the

case, this court would expect that the currently pending motions, at least, will take some

time to resolve. Matters requiring court participation sometimes arise in divorce and

dissolution cases despite the goodwill and cooperation of the parties, and routinely arise

where such is lacking. Subjecting a party's post-judgment right to appeal to the question of

whether the other party has sought relief in the trial court will inevitably cause delay and

invite gamesmanship. It could also discourage a party from seeking needed relief in the

first instance so that they can appeal, or force an unfair choice between seeking relief in the

13

trial court and appealing a previous adverse decision to the court of appeals. Therefore,

because there is no guarantee that the end of litigation between the parties is in sight, we

find that Anna need not wait until all matters are resolved to appeal the denial of her Civ.R.

60(B) motion.

In addition to the risk of protracted post-judgment litigation and resultant

uncertainty about when an appeal could ever be taken, the nature of the orders and motions

at issue in this case convinces us that an immediate appeal is necessary. In the order on

appeal, Anna sought to vacate the decree of dissolution that resolved the financial issues

between the parties and incorporated their agreements as to the four minor children.

Pending in the trial court case are Nathan's motion alleging contempt and requesting a

modification of the parties' shared parenting plan, and Anna's motions to terminate shared

parenting and to name her residential parent, and to modify child support. These pending

matters are dependent upon whether, and may be moot if, the decree is vacated.

Moreover, Ariel, Nathan's current spouse, seeks to protect her rights, should the decree

dissolving Anna and Nathan's marriage be vacated. In terms of judicial economy and

otherwise, it appears that that all the parties' rights would be better protected by allowing an

immediate appeal from the June 14 Judgment denying Anna's motion to vacate the decree

of dissolution.

Accordingly, we conclude that the June 14 Judgment affects Anna's substantial

rights. It is therefore an order that satisfies R.C. 2505.02(B)(2).

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Civ.R. 54(B) and Unresolved Post-Judgment Motions

The parties discuss in their filings whether Civ.R. 54(B) language that "there is

no just reason for delay” must have been added to the June 14 Judgment for it to be final.

Anna argues that there is no need for Civ.R. 54(B) language in the June 14 Judgment.

Nathan and Ariel argue that the absence of the Civ.R. 54(B) language "is not dispositive,”

but that certain unresolved and pending motions prevent the Order from being final.

Because this argument implicates Civ.R. 54(B), we consider these issues together.

"The applicability of Civ.R. 54(B) to postjudgment motions under R.C.

2505.02(B)(2) is a matter of some dispute among Ohio courts.” Nichols v. Durrani, 1st Dist.

Hamilton No. C-210224, 2021-Ohio-2973, ¶ 3. We take no position today on whether

Civ.R. 54(B) categorically applies to such orders, but find that it does not apply to the order

currently on appeal here.

The rule says:

When more than one claim for relief is presented in an action whether as a

claim, counterclaim, cross-claim, or third-party claim, and whether arising out

of the same or separate transactions, or when multiple parties are involved,

the court may enter final judgment as to one or more but fewer than all of the

claims or parties only upon an express determination that there is no just

reason for delay. In the absence of a determination that there is no just reason

for delay, any order or other form of decision, however designated, which

adjudicates fewer than all the claims or the rights and liabilities of fewer than

all the parties, shall not terminate the action as to any of the claims or parties,

and the order or other form of decision is subject to revision at any time before

15

the entry of judgment adjudicating all the claims and the rights and liabilities

of all the parties.

CIv.R. 54(B).

The case currently before us is not one in which the trial court entered partial

final judgment with respect to some but not all of the multiple "claims or parties” pending in

the case. "[T]he term 'claim,' as used in the context of Civ.R. 54(B), refers to a set of facts

that give rise to legal rights, not to the various legal theories of recovery that may be based

upon those facts.” LaMusga v. Summit Square Rehab, L.L.C., 2015-Ohio-5305, 43 N.E.3d

504, ¶ 31 (2d Dist.) (internal citations and quotations omitted). A claim might be presented

as a "claim, counterclaim, cross-claim, or third-party claim.” Civ.R. 54(B).

The single claim for relief in the underlying case was for dissolution of Anna

and Nathan's marriage. That claim had already been fully resolved by the trial court.

While there were and are motions pending related to the resolution of that claim, the June

14 Judgment does not grant a partial final judgment as to some but not all of the claims or

parties. Thus, Civ.R. 54(B) does not apply, and its language was not necessary in the June

14 Judgment.

As noted above, Nathan and Ariel do not assert that Civ.R. 54(B) language

was required, but assert that the pending post-judgment motions prevent finality. As a

general proposition, "[i]f a trial court order leaves issues unresolved and contemplates

further action then the order is not a final, appealable order.” McCracken v. Lee, 10th Dist.

Franklin No. 19AP-236, 2020-Ohio-3125, ¶ 10, citing State ex rel. Keith v. McMonagle, 103

Ohio St.3d 430, 2004-Ohio-5580, ¶ 4. This proposition, which is a broad generalization of

the finality requirement, is subject to the specifics of the final order statute defining which

16

orders this court has jurisdiction to review. See In re D.H., 152 Ohio St.3d 310, 2018-Ohio17, 95 N.E.3d 389, ¶ 5 ("The final-order requirement comes from the Ohio Constitution,

which provides that courts of appeals 'shall have such jurisdiction as may be provided by

law' to review 'final orders' rendered by inferior courts. Ohio Constitution, Article IV, Section

3(B)(2). Jurisdiction is 'provided by law' primarily through two statutes,” R.C. 2501.02 and

R.C. 2505.02).

Thus, while the general proposition informs discussions about the appealability

of a trial court order, it does not supplant the definitions in R.C. 2505.02. In our analysis

above, we have found that the June 14 Judgment is a final order under R.C. 2505.02(B)(2).

We disagree that the pending motions prevent the June 14 Judgment from being appealable

at this time for the following reasons.

First, this argument is not rooted in R.C. 2505.02. Some orders are final under

R.C. 2505.02 where claims or motions remain pending. This is particularly true with respect

to special proceedings, where that definition anticipates pending matters. This court

recently rejected an argument that an order entered in a special proceeding was not final

because matters remained pending:

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 R.C. 2505.02(B)(2); such is required under R.C. 2505.02(B)(1).

"Pursuant to R.C. 2505.02(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 R.C. 2505.02(B)(1), it is evident that R.C. 2505.02(B)(2)

17

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”).

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.

In re: R.S.H.-F., 2d Dist. Montgomery No. 29198, ¶ 19-20 (Decision and Entry, October 21,

2021).

Second, the general rule discussed in Colley and later cases is that the denial

of a Civ.R. 60(B) motion is itself a final order. Colley at paragraph one of the syllabus ("A

judgment overruling a Civ.R. 60(B) motion for relief from a default judgment is a final

appealable order”); Id. at 245 ("it is well settled that a judgment denying a motion for relief

from judgment filed pursuant to Civ.R. 60(B) is itself a final appealable order”). The rule

has not been articulated to say that the denial of a Civ.R. 60(B) motion is a final order, but

only so long as no other post-judgment motions are pending. This is essentially Nathan

and Ariel's position, and they cite several cases in support of it.

18

In Carpenter v. Carpenter, 12th Dist. Butler No. CA2013-05-083, 2013-Ohio4980, the trial court was working toward resolving a father's custody complaint in domestic

relations court. Id. at ¶ 2. The court resolved part of father's claim by designating mother

the residential parent and legal custodian. Id. at ¶ 4. But the rest of the claim was

unresolved, which the appellate court found prevented the order from being final:

While the entry declared mother residential parent and legal custodian, the

case was remanded to the magistrate to calculate child support, determine

health insurance and payment of medical expenses, and properly allocate the

tax exemption for daughter. As noted above, this court and others have

determined that where the amount of child support is undetermined, there is

not a final appealable order. The determination of child support and custody

are hand in glove; trial courts cannot determine child custody without also

issuing an award of support. See R.C. 3109.04(A); R.C. 3105.21(A). The order

does not dispose of the whole case or a separate and distinct part of it while

leaving nothing for further determination.

(Emphasis added.) Id. at ¶ 12. Thus, in Carpenter, the original claim for custody was not

yet fully resolved. The case is distinguishable.

In Wright v. Wright, 10th Dist. Franklin No. 07AP-595, 2008-Ohio-544, the

court of appeals found an order overruling a post-dissolution motion seeking to declare a

judgment entry void ab initio not final because it did not resolve a request for attorneys' fees

made in response to the motion. Id. at ¶ 9. The trial court had deferred consideration of

the request for attorney fees because there was another, previously-filed contempt motion

19

pending, and the attorney fees request was apparently dependent upon, or at least relevant

to, the resolution of that contempt motion. Id. at ¶ 4.

Notably, the court in Wright did not find that the pending contempt motion

prevented the order from being considered final. Rather, it was the request for attorney

fees, which was made in a memorandum responding to the resolved motion, that prevented

finality. Id. at ¶ 8. In other words, the issue was not that the other matter (the contempt

motion) was unresolved, but that this matter (the void-ab-initio motion) was not quite done.

Thus, the order on this matter was not final. Wright is distinguishable as well.

We note also that requests for attorney fees have sometimes been treated as

"claims” to which Civ.R. 54(B) applies pursuant to the Supreme Court of Ohio's decision in

Internatl. Brotherhood of Elec. Workers, Local Union No. 8 v. Vaughn Industries, L.L.C., 116

Ohio St.3d 335, 2007-Ohio-6439, paragraph two of the syllabus. See Jack Maxton

Chevrolet, Inc. v. Hanbali, 10th Dist. Franklin No. 15AP-816, 2016-Ohio-1244, ¶ 9

(discussing cases); Evanston Acquisitions, LLC v. STAG II Dayton, LLC, 2d Dist.

Montgomery No. 27480, 2017-Ohio-5755, ¶ 7-8. This is another distinction between this

case and Wright.

Finally, Nathan and Ariel rely on Matter of Dissolution of Marriage of Smith,

11th Dist. Portage No. 2016-P-0028, 2017-Ohio-433. In Smith, the court of appeals found

a post-dissolution order dismissing some, but not all, of the motions pending in the case was

not a final appealable order. Some of those motions were motions to vacate pursuant to

Civ.R. 60(B). The court agreed that the order was a final order under R.C. 2505.02 because

it dismissed Civ.R. 60(B) motions. Id. at ¶ 5. However, the majority of the court held that

20

Civ.R. 54(B) language was required, and not present, rendering the order not appealable at

that time. Id. at ¶ 6-9.

The dissent in Smith challenged this finding, saying: "The majority does not

cite to any case that suggests an otherwise appealable order denying a Civ.R. 60(B) motion

is no longer appealable if there are post-decree motions pending to enforce or modify a final

order of the domestic court. Because the Civ.R. 60(B) order is appealable on its own, it does

not need Civ.R. 54(B) language to make it appealable.” Id. at ¶ 15 (Cannon, J., dissenting).

It does not appear that the majority's position in Smith has been widely

adopted. We have found no cases citing it. We also have not seen wide acceptance for

the proposition underlying Smith's decision: that Civ.R. 54(B) (the rule concerning the entry

of judgment) applies to decisions on Civ.R. 60(B) motions (the rule concerning relief from

judgment). Other than the majority opinion in Smith, we have not found a case directly

addressing the issue.

In contrast, the validity of the majority's position has been questioned. For

example, in Painter & Pollis' Ohio Appellate Practice, the authors note that:

when multiple motions pend, some courts hold by analogy that there is no final

order until all the motions are decided;[5] that analogy seems questionable,

however, given that motions are not "claims,” and the orders in question seem

to pass the finality test of R.C. 2505.02(B)(2), as to which Rule 54(B) should

not apply.

Section 2.8 (Oct. 2021). The internal footnote cites Smith, among other cases.

We agree with the dissent's position in Smith, as discussed in the section

above. Motions filed in a case, particularly those filed after judgment, are not "claims” to

21

which Civ.R. 54(B) applies. Thus, because we have held that Civ.R. 54(B) language is not

required, we see little support for the majority's position in Smith and are not convinced to

follow it. See also Bissell, 2d Dist. Montgomery No. 26855, 2016-Ohio-3086, ¶ 6 (reviewing

a Civ.R. 60(B) motion where a separate motion to set aside was pending but presumably

overruled, without requiring Civ.R. 54(B) language).

Instead, we hold that an order denying a Civ.R. 60(B) motion, entered in a fully

resolved case after final judgment, is itself a final order under R.C. 2505.02(B)(2), and is

appealable without the necessity of Civ.R. 54(B) language, even where other post-judgment

motions may be pending. Because that is the situation before us, we find that the June 14

Judgment is a final appealable order.

Anna's Motion to Dismiss Ariel from this Appeal

Anna argues in her response to the motion to dismiss that Ariel has no standing

to participate in this appeal. Ariel counters that she was granted leave to intervene in the

trial court case, and thus is properly an appellee here.

We overrule at this time the motion to dismiss Ariel as an appellee. She may

participate in this appeal as an appellee because she is an intervenor in the case below.

Anna may raise any argument concerning Ariel's standing in her brief.