[Cite as Smirz v. Smirz, 2014-Ohio-3869.]


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

ANITA SMIRZ                                           C.A. No.     13CA010408

        Appellant

        v.                                            APPEAL FROM JUDGMENT
                                                      ENTERED IN THE
FRANK SMIRZ                                           COURT OF COMMON PLEAS
                                                      COUNTY OF LORAIN, OHIO
        Appellee                                      CASE No.   12DU074985

                                 DECISION AND JOURNAL ENTRY

Dated: September 8, 2014



        CARR, Judge.

        {¶1}     Appellant Anita Smirz appeals from the journal entries issued by the Lorain

County Court of Common Pleas, Domestic Relations Division, dismissing her complaint for

divorce without prejudice and denying her motion to vacate the order of dismissal. This Court

dismisses the appeal for lack of a final, appealable order.

                                                 I.

        {¶2}     On March 2, 2012, Anita Smirz (“Wife”) filed a complaint for divorce against

Frank Smirz (“Husband”), as well as a motion for temporary orders granting her, among other

things, child and spousal support. Husband filed an answer, but he did not file a counterclaim for

divorce.     Shortly thereafter, the magistrate issued an order noting the parties’ agreement

regarding Husband’s payment of temporary child and spousal support. Two months later,

Husband moved to modify the temporary child support order, and the matter was scheduled for

hearing. Wife opposed the motion to modify. Wife’s attorney moved to continue the hearing
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due to her unavailability as she was scheduled to appear in another court proceeding in another

county. The need for a continuance became moot, however, because Husband dismissed his

motion to modify.

       {¶3}    Husband moved to modify temporary custody of two of the couple’s three

children, requesting that he be named the temporary legal custodian of the two male children.

The matter was scheduled for hearing.        Husband moved to continue the hearing, and the

magistrate granted a continuance. In April, 2013, the parties attempted to resolve all issues at a

settlement conference, but they were unsuccessful. Accordingly, the trial court confirmed a trial

date for the divorce action on May 13, 2013.

       {¶4}    On Saturday, May 11, 2013, Wife’s attorney faxed a motion for a continuance of

the trial to the domestic relations court. The attorney informed the court that a hearing she began

in another court on Friday did not conclude and that she had been ordered to appear in that court

on Monday, May 13, to complete the hearing. Husband and his attorney appeared in court for

the divorce trial. Wife and her attorney did not appear. The domestic relations court denied

Wife’s motion for a continuance and dismissed without prejudice Wife’s complaint for divorce

for failure to prosecute.

       {¶5}    Wife filed a motion to vacate the trial court’s dismissal order. She argued, in part,

that the dismissal had a “devastating financial impact” on her and her three children, because

Husband advised her on May 13, 2013, that “he will not give her a cent.” The domestic relations

court held an oral hearing on Wife’s motion, at which Wife and her attorney appeared. Wife’s

attorney adamantly asserted that she was unavailable for the instant divorce trial because she had

been ordered to appear in another court to conclude a hearing that commenced a day earlier.

Despite its recognition that Wife personally was not at fault, the trial court denied her motion to
                                                 3


vacate the dismissal order. The trial court further took notice of the following: Wife had already

refiled her complaint for divorce; the trial court was available to proceed to trial on the refiled

divorce action on several Saturdays within the month; and, despite the fact that the prior

temporary support orders were no longer valid due to the dismissal of the first divorce action,

Husband maintained a duty under the law to support his wife and children and that his failure to

do so would be considered within the context of the refiled divorce action.

       {¶6}    The domestic relations court issued its order denying Wife’s motion to vacate the

prior dismissal order on May 30, 2013. Wife filed a timely appeal from the order of dismissal

and the denial of her motion to vacate that order, raising two assignments of error.

                                                II.

                                 ASSIGNMENT OF ERROR I

       THE TRIAL COURT ERRED IN DENYING [WIFE’S] MOTION FOR
       CONTINUANCE OF THE DIVORCE TRIAL AND THE RESULTING
       DISMISSAL OF THE DIVORCE ACTION.

                                ASSIGNMENT OF ERROR II

       THE TRIAL COURT ERRED WHEN IT DENIED [WIFE’S] MOTION TO
       VACATE THE ORDER DISMISSING THE DIVORCE ACTION.

       {¶7}    Wife argues that the domestic relations court erred by denying her motion to

continue the divorce trial, which resulted in the court’s dismissal of the action. She further

argues that the trial court erred by denying her motion to vacate the dismissal order pursuant to

Civ.R. 60(B)(5).

       {¶8}    As a preliminary matter, this Court is obligated to raise sua sponte questions

related to our jurisdiction. Whitaker-Merrell Co. v. Geupel Constr. Co., Inc., 29 Ohio St.2d 184,

186 (1972). This Court has jurisdiction to hear appeals only from final judgments. Article IV,

Section 3(B)(2), Ohio Constitution; R.C. 2501.02. In the absence of a final, appealable order,
                                                4


this Court must dismiss the appeal for lack of subject matter jurisdiction. Lava Landscaping,

Inc. v. Rayco Mfg., Inc., 9th Dist. No. 2930-M, 2000 WL 109108 (Jan. 26, 2000). “An order is a

final appealable order if it affects a substantial right and in effect determines the action and

prevents a judgment.” Yonkings v. Wilkinson, 86 Ohio St.3d 225, 229 (1999).

       {¶9}    R.C. 2505.02(B) addresses final orders and states:

       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;

       (3) An order that vacates or sets aside a judgment or grants a new trial;

       (4) An order that grants or denies a provisional remedy and to which both of the
       following apply:

       (a) The order in effect determines the action with respect to the provisional
       remedy and prevents a judgment in the action in favor of the appealing party with
       respect to the provisional remedy.

       (b) The appealing party would not be afforded a meaningful or effective remedy
       by an appeal following final judgment as to all proceedings, issues, claims, and
       parties in the action.

       (5) An order that determines that an action may or may not be maintained as a
       class action;

       (6) An order determining the constitutionality of [certain] changes to the Revised
       Code * * *;

       (7) An order in an appropriation proceeding that may be appealed pursuant to
       division (B)(3) of section 163.09 of the Revised Code.

       {¶10} As a general rule, a dismissal without prejudice is not a final, appealable order as

it ordinarily constitutes a dismissal other than on the merits which allows the plaintiff to refile

the complaint. State ex rel. DeDonno v. Mason, 128 Ohio St.3d 412, 2011-Ohio-1445, ¶ 2. As
                                                 5


noted by the Eighth District, in some instances, appellate courts have nevertheless ignored the

jurisdictional issue and reviewed certain dismissals without prejudice. Stafford v. Hetman, 8th

Dist. Cuyahoga No. 72825, 1998 WL 289383 (June 4, 1998). The Stafford court cited several

cases, including the Ohio Supreme Court’s decision in Svoboda v. Brunswick, 6 Ohio St.3d 348

(1983), wherein appellate courts did not address the problem of finality and simply reviewed the

issue of error in the trial court’s dismissal of a cause without prejudice where that dismissal was

entered without notice to the plaintiff. Stafford at *2. The Eighth District, however, dismissed

an appeal challenging the trial court’s denial of a Civ.R. 60(B) motion for relief from a judgment

that dismissed a defamation action without prejudice, because the dismissal without prejudice

did not constitute a final judgment from which a party could properly move for relief. Id. at *3.

The Stafford court concluded that, because the dismissal without prejudice left the parties in a

position as if the case had never been commenced, the motion for relief from judgment was a

nullity, thereby rendering the trial court’s ruling on the motion a nullity. Id. The Eighth District

therefore dismissed the appeal for lack of jurisdiction as there was no final, appealable order

from which to appeal. Id.

       {¶11} In the context of domestic relations cases, there appears to be a split of authority,

or at least a difference in holdings based on the application of R.C. 2505.02(B) to specific facts.

The Sixth District, by journal entry, dismissed an appeal for lack of a final, appealable order

where the domestic relations court had dismissed without prejudice a divorce complaint. Lippus

v. Lippus, 6th Dist. Erie No. E-07-003 (Jan. 25, 2007), citing Hattie v. Garn, 9th Dist. Lorain No.

98CA007208, 2000 WL 14008 (Dec. 29, 1999) (holding that “[a] dismissal without prejudice is

not a final determination of the rights of the parties and does not constitute a judgment or final

order when refiling or amending of the complaint is possible.”).
                                                   6


         {¶12} The Lippus court later reconsidered its dismissal, writing:

         We find that where a party’s case is involuntarily dismissed by the trial court, and
         because of that dismissal any rights of the party are extinguished and will not be
         able to be reasserted in a refiled case, that party has the right to appeal the
         dismissal pursuant to R.C. 2505.02(B)(1) because it is “[a]n order that affects a
         substantial right in an action that in effect determines the action and prevents a
         judgment.” In the instant case, the judgment that is prevented is plaintiff’s claim
         for ordered but unpaid child and spousal support payments that had accumulated
         during the pendency of the divorce.

Lippus v. Lippus, 6th Dist. Erie No. E-07-003, 2007-Ohio-6886, ¶ 12.                The court then

recognized that its holding above was in conflict with Stafford, supra, and the Second District’s

holding in Ebbets Partners, Ltd. v. Day, 171 Ohio App.3d 20, 2007-Ohio-1667 (neither of which

implicated domestic relations issues), which dismissed for lack of a final, appealable order

appeals from orders of dismissal without prejudice. Id. at ¶ 13. The Lippus court then certified

the following question to the Ohio Supreme Court: “Where a party’s case is involuntarily

dismissed by the trial court under Civ.R. 41(B)(1), is that dismissal order final and appealable?”

Id. at ¶ 17. There is no indication that the high court accepted certification, reviewed the matter,

and rendered a final determination on the issue.

         {¶13} The Fifth District distinguished Lippus in an appeal from the domestic relations

court’s involuntary dismissal for lack of prosecution of a father’s motion to modify parental

rights. Davis v. Paige, 5th Dist. Stark No. 2007 CA 00248, 2008-Ohio-6415. The Davis court

dismissed the appeal for lack of jurisdiction after concluding that the trial court’s involuntary

dismissal did not affect any substantial right of the father. Id. at ¶ 40. Specifically, the court

noted:

         [Father] did not state in the motion for relief and/or this appeal that there were
         certain rights that he would be giving up in the event that he would have to re-file
         his request for modification or that a re-filing of the motion for modification
         would prejudice his intent to seek modifications of his parenting time.
                                                7


       Furthermore, [Father] does not deny that the matter may be re-filed for further
       consideration by the trial court.

Id. The Davis court then expressly concluded that the situation before it was distinguishable

from Lippus where the wife had argued that she would lose any ability to collect previously

ordered, yet unpaid, support arising out of the divorce complaint that was involuntarily dismissed

by the trial court. Davis at ¶ 41.

       {¶14} In the case before this Court, Wife has not discussed the issue of finality.

Although she noted in her statement of the facts that the trial court advised Husband that,

because of the dismissal of the divorce complaint, he was no longer required to pay Wife support

in the amount previously ordered, and that Husband’s failure to pay any support resulted in an

economic loss to her, Wife did not state that the domestic relations court would not be able to

address the inequity of that situation in the refiled divorce action. Moreover, Wife did not make

any arguments to that effect in her appellate brief while addressing either of her assignments of

error. Husband failed to file a timely brief and has not addressed the issue of finality. Under

these circumstances, this case is more in line with the circumstances of Davis, supra, rather than

Lippus, supra.

       {¶15} This Court reads Lippus to hold that the perceived inability to collect support

arrearages arising out of an involuntarily dismissed action affects a substantial right that

effectively determines the action and prevents a judgment, so that the dismissal is a final,

appealable order subject to appellate review. Lippus at ¶ 12. In other words, the Sixth District

appeared only to recognize that it would not be possible for the mother to enforce prior support

orders that, after dismissal of the action, effectively never existed. The Lippus court did not

appear to take into account that domestic relations courts are courts of equity empowered to

effectuate justice, so that the husband’s/father’s failure to provide support for his wife and
                                                8


children at any time might properly be considered within the context of a refiled divorce action.

Accordingly, the Lippus court did not recognize that the appellant could seek a comparable

remedy via mechanisms available in the refiled action.

       {¶16} On the other hand, we read Davis to hold that the impact on a substantial right

based on a dismissal without prejudice in a domestic relations case might give rise to a final,

appealable order, but only where the effect on the substantial right is both alleged and

prejudicial, i.e., where the impact cannot be rectified through equitable considerations in the re-

filed cause or motion. Davis at ¶ 40-41. This Court is persuaded by the sound reasoning in

Davis and we adopt this test in such cases.

       {¶17} First, unlike the Lippus court which analyzed the finality of a dismissal of a

divorce complaint pursuant to R.C. 2505.02(B)(1), we believe that the proper analysis lies within

the context of R.C. 2505.02(B)(2) (regarding “[a]n order that affects a substantial right made in a

special proceeding”).   The Ohio Supreme Court, for purposes of R.C. 2505.02(B) finality,

recognizes that “divorce, a statutory matter that did not exist at common law, qualifies as a

special proceeding.” Wilhelm-Kissinger v. Kissinger, 129 Ohio St.3d 90, 2011-Ohio-2317, ¶ 6.

The Kissinger court continued that “[a]n order affects a substantial right for the purposes of R.C.

2505.02(B)(2) only if an immediate appeal is necessary to protect the right effectively.” Id. at ¶

7.

       {¶18} “A ‘substantial right’ is a legal right enforced and protected by law.” State ex rel.

Hughes v. Celeste, 67 Ohio St.3d 429, 430 (1993). The law accords numerous parental and

marital rights, including rights to support; and the domestic relations court enforces those rights

in an equitable manner. In this case, when the trial court dismissed without prejudice Wife’s

initial complaint for divorce, all concomitant temporary support orders ceased to exist.
                                                  9


Nevertheless, the domestic relations court informed Husband at the hearing on Wife’s motion to

vacate the dismissal order, “you still have a legal obligation to support your wife and children.”

The trial court later informed the parties:

       A new [divorce] case has been filed. If there’s financial misconduct, if
       somebody’s not contributing and helping take care of the children, all of that will
       be considered. If indeed [Husband] advised [Wife] that he will not give her a
       cent, that’s going to be brought up during the next trial, and that is going to be
       dimly viewed by this Court.

       And bottom line is even if [any child] is living with you, there would be an
       obligation to support your wife and your children.

       {¶19} In this case, because Wife and the children had a right to ongoing financial

support by Husband and the domestic relations court had the authority to consider whether

Husband had been meeting his obligations when issuing orders concerning support and division

of property, Wife had the ability to seek redress for her inability to enforce the prior temporary

support orders in the dismissed action through equitable resolution in the second divorce action.

Accordingly, the domestic relations court’s dismissal without prejudice of the first divorce action

did not affect a substantial right necessitating a finding of immediate finality.          The order

dismissing without prejudice Wife’s divorce action was not a final, appealable order. Moreover,

as a party may only file a motion for relief from judgment (motion to vacate) pursuant to Civ.R.

60(B) relative to a final judgment, any ruling on a motion for relief from a nonfinal order is itself

also not final. Davis at ¶ 41. Because the orders from which Wife appealed in this case are not

final, appealable orders, this Court lacks jurisdiction to address the merits of her appeal.

                                                                                  Appeal dismissed.
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        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(C). 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.




                                                     DONNA J. CARR
                                                     FOR THE COURT




MOORE, J.
CONCURS.

BELFANCE, P. J.
CONCURRING IN JUDGMENT ONLY.

        {¶20} I concur in the majority’s judgment dismissing this appeal; however, I would

conclude that the orders appealed from are final but dismiss the merits of this appeal as being

moot.

        {¶21} In this case, the trial court dismissed Wife’s complaint for divorce without

prejudice. Dismissals without prejudice are normally not final, appealable orders, see State ex

rel. DeDonno v. Mason, 128 Ohio St.3d 412, 2011-Ohio-1445, ¶ 2.              However, there are

exceptions to the general rule. See, e.g., Ward v. Summa Health Sys., 184 Ohio App.3d 254,

2009-Ohio-4859, ¶ 7-8 (9th Dist). The Supreme Court of Ohio has stated that in divorce actions,

“[a]n order affects a substantial right for the purposes of R.C. 2505.02(B)(2) only if an

immediate appeal is necessary to protect the right effectively.” Wilhelm-Kissinger v. Kissinger,
                                                  11


129 Ohio St.3d 90, 2011-Ohio-2317, ¶ 7. I would conclude that the orders appealed from affect

Wife’s substantial rights as Wife permanently lost any rights and benefits in existence in the first

action.    For example, when the action was dismissed Wife lost the benefit of the mutual

restraining order that was in effect as well as the temporary orders that were in place providing

Wife with both spousal and child support. To the extent that a significant arrearage had accrued

pursuant to the temporary orders, Wife lost the right to seek payment and to seek redress for

Husband’s noncompliance with the orders.           It is entirely speculative to presume that the

equitable nature of divorce proceedings will enable Wife to recoup the losses suffered by the

dismissal of the suit when she refiles her action, particularly given the fact that the prior orders of

the court are no longer in effect and cannot be enforced. The ultimate result is that, even if the

dismissal of a divorce case is patently erroneous, the trial court is insulated from review simply

because the dismissal was entered without prejudice. Thus, I respectfully disagree with the

majority’s conclusion that this appeal is not final.

          {¶22} Notwithstanding the foregoing, it appears that Wife filed another action seeking a

divorce, that she has been granted a divorce in that action, and that that case has been closed.

Accordingly, the merits of this appeal are now moot, and I would dismiss this appeal on that

basis. See App.R. 12(A)(1)(c).


APPEARANCES:

PAULETTE J. LILLY, Attrney at Law, for Appellant.

FRANK SMIRZ, pro se, Appellee.
