[Cite as Smith v. Smith, 2011-Ohio-2506.]


STATE OF OHIO                    )                   IN THE COURT OF APPEALS
                                 )ss:                NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT                 )

CRAIG SMITH                                          C.A. No.        24993

        Appellant

        v.                                           APPEAL FROM JUDGMENT
                                                     ENTERED IN THE
JANE C. SMITH                                        COURT OF COMMON PLEAS
                                                     COUNTY OF SUMMIT, OHIO
        Appellee                                     CASE No.   2008-07-2178

                                 DECISION AND JOURNAL ENTRY

Dated: May 25, 2011



        DICKINSON, Judge.

                                            INTRODUCTION

        {¶1}    Craig and Jane Smith divorced after 41 years of marriage. Mr. Smith attempted to

appeal the decree, but this Court dismissed the appeal because the trial court had not disposed of

the Smiths’ 2008 tax refund. On remand, the trial court entered a journal entry incorporating the

decree and disposing of the refund. Mr. Smith has again attempted to appeal the trial court’s

decision. We again dismiss the appeal because the trial court has not divided all of the parties’

marital debt, and its “Nunc Pro Tunc” journal entry attempting to cure the problem is void.

                                            JURISDICTION

        {¶2}    Under the Ohio Constitution, Ohio’s courts of appeals “have such jurisdiction as

may be provided by law to review and affirm, modify, or reverse judgments or final orders of the

courts of record inferior to the court of appeals within the district . . . .” Ohio Const. Art. IV §

3(B)(2). The Ohio Supreme Court has held that Article IV Section 3(B)(2) “empower[s] the
                                                 2


General Assembly to alter the appellate jurisdiction of the Court of Appeals.” State v. Collins,

24 Ohio St. 2d 107, 108 (1970). The Ohio General Assembly, in Section 2501.02 of the Ohio

Revised Code, has provided that the courts of appeals “shall have jurisdiction . . . to review,

affirm, modify, set aside, or reverse judgments or final orders of courts of record inferior to the

court of appeals within the district . . . .” See also R.C. 2505.03(A) (providing that “[e]very final

order, judgment, or decree of a [lower] court . . . may be reviewed on appeal[.]”). “It is a basic

principle of our system of appellate procedure that only judgments and final orders are subject to

review.” Humphrys v. Putnam, 172 Ohio St. 456, 457 (1961).

       {¶3}    Even if a trial court’s journal entry is a judgment or final order, it is not

appealable if it does not comply with the rules prescribed by the Ohio Supreme Court regarding

the timing of appeals.    Under Article IV Section 5(B) of the Ohio Constitution, the Ohio

Supreme Court has authority to “prescribe rules governing practice and procedure in all courts of

the state . . . .” Exercising that authority, the Supreme Court has prescribed the Ohio Rules of

Civil and Appellate Procedure, which contain requirements regarding the timing of appeals. See

Alexander v. Buckeye Pipe Line Co., 49 Ohio St. 2d 158, 160-61 (1977) (“Questions involving

the joinder and separation of claims and the timing of appeals are matters of practice and

procedure within the rule-making authority of this court . . . .”). For instance, under Rule 54(B)

of the Ohio Rules of Civil Procedure, “[if] more than one claim for relief is presented in an

action . . . 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.” According to the Ohio Supreme Court, if Rule 54(B) is applicable, a

judgment must comply with it to be appealable. Whitaker-Merrell Co. v. Geupel Constr. Co., 29

Ohio St. 2d 184, 186 (1972).
                                                 3


       {¶4}    Civil Rule 54(B) operates differently in divorce, dissolution, annulment, and legal

separation cases. Civ. R. 75(F). Under Rule 75(F), “the court shall not enter final judgment as

to a claim for divorce . . . unless one of the following applies: (1) The judgment also divides the

property of the parties . . . (2) Issues of property division . . . have been finally determined in

orders, previously entered by the court, that are incorporated into the judgment; [or] (3) The

court includes in the judgment the express determination required by Civ. R. 54(B) and a final

determination that either of the following applies: (a) The court lacks jurisdiction to determine

such issues; [or] (b) In a legal separation action, the division of the property of the parties would

be inappropriate at that time.” Wilson v. Wilson, 116 Ohio St. 3d 268, 2007-Ohio-6056, at ¶15

(noting that Civil Rule 75(F) prohibits a court from entering final judgment unless its judgment

complies with that rule).

       {¶5}    This Court has held that the term “property” under Civil Rule 75(F) includes

marital debt. Stano v. Stano, 9th Dist. No. 08CA0029-M, 2008-Ohio-5527, at ¶7 (overruled on

other grounds Tabatabai v. Tabatabai, 9th Dist. No. 08CA0049-M, 2009-Ohio-3139); see also

Marrero v. Marrero, 9th Dist. No. 02CA008057, 2002-Ohio-4862, at ¶43. The trial court’s

decree, as incorporated by the journal entry it entered on remand, does not divide the loans that

Mr. Smith took out to pay for the Smiths’ sons’ college educations. It, therefore, does not

comport with Rule 75(F). Stano, 2008-Ohio-5527, at ¶7.

       {¶6}    Mr. Smith has argued that the court implicitly ordered him to assume all of the

college loan debt, noting that it modified its spousal support calculation based on its estimate that

he owed approximately $1000 per month on the loans. Although the court found that Mr.

Smith’s loan repayment expenses would be extraordinary, it did not identify the number of loans

that he had or their amounts. The court’s finding regarding child support is not inconsistent with
                                                 4


a property division that assigns some of the college loan debt to Ms. Smith, while assigning the

majority to Mr. Smith. We conclude, therefore, that the trial court’s language, which referred

only to Mr. Smith’s spousal support obligation, was insufficient to assign the college loan debt to

Mr. Smith for purposes of Civil Rule 75(F).

       {¶7}    After Mr. Smith appealed the decree for a second time, the trial court recognized

that it had not divided the college loan debt and entered a “Judgment Entry Nunc Pro Tunc”

attempting to correct the omission. “Once a case has been appealed,” however, “the trial court

loses jurisdiction except to take action in aid of the appeal.” In re S.J., 106 Ohio St. 3d 11, 2005-

Ohio-3215, at ¶9. “The trial court [only] retains jurisdiction over issues not inconsistent with the

appellate court’s jurisdiction to reverse, modify, or affirm the judgment appealed from.” Id.; see

Ferraro v. B.F. Goodrich Co., 149 Ohio App. 3d 301, 2002-Ohio- 4398, at ¶10 (concluding that

trial court could use a nunc pro tunc entry to add language to an order that there was no just

reason for delay under Rule 54(B) of the Ohio Rules of Civil Procedure). The fact that an

appellate court does not have jurisdiction over an appeal is immaterial because “the

determination as to the appropriateness of an appeal lies solely with the appellate court.” In re

S.J., 2005-Ohio-3215, at ¶10. “A [trial] judge has no authority to determine the validity or merit

of an appeal.” Id.

       {¶8}    Mr. Smith’s first assignment of error is that the trial court incorrectly divided the

parties’ property “in that it did not equitably and equally divide debt which the parties accrued

during the marriage for valid marital purposes.” Accordingly, in its “Judgment Entry Nunc Pro

Tunc,” the trial court attempted to modify its disposition of an issue that the parties specifically

raised on appeal. Its judgment entry, therefore, is inconsistent with this Court’s jurisdiction over

that issue and is void. State ex rel. Electronic Classroom of Tomorrow v. Cuyahoga County
                                                5


Court of Common Pleas, __ Ohio St. 3d __, 2011-Ohio-626, at ¶14-18; In re S.J., 106 Ohio St.

3d 11, 2005-Ohio-3215, at ¶15. Mr. Smith’s appeal is dismissed.

                                        CONCLUSION

       {¶9}    The trial court’s decree is not a final judgment under Rule 75(F) of the Ohio

Rules of Civil Procedure because it does not divide all of the marital debt. The appeal is

dismissed.

                                                                               Appeal dismissed.




       Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(E). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

       Costs taxed to Appellant.


                                                    CLAIR E. DICKINSON
                                                    FOR THE COURT


WHITMORE, P. J.
MOORE, J.
CONCUR

APPEARANCES:

LESLIE S. GRASKE, Attorney at Law, for Appellant.

RANDAL A. LOWRY, and KENNETH L. GIBSON, Attorneys at Law, for Appellee.
