[Cite as Tassone v. Tassone, 2019-Ohio-683.]

                             IN THE COURT OF APPEALS OF OHIO

                                  TENTH APPELLATE DISTRICT


Zephynia S. Tassone,                              :

                Plaintiff-Appellee,               :               No. 18AP-475
                                                                       and
v.                                                :               No. 18AP-614
                                                               (C.P.C. No. 17DR-4399)
Matthew Tassone,                                  :
                                                             (REGULAR CALENDAR)
                Defendant-Appellant.              :



                                           D E C I S I O N

                                   Rendered on February 26, 2019


                On brief: Matthew Tassone, pro se. Argued: Matthew
                Tassone.

                APPEALS from the Franklin County Court of Common Pleas,
                   Division of Domestic Relations and Juvenile Branch

LUPER SCHUSTER, J.
        {¶ 1} Defendant-appellant, Matthew Tassone, appeals from a judgment of the
Franklin County Court of Common Pleas, Division of Domestic Relations and Juvenile
Branch, denying his requests for relief from judgment filed in April and May 2018, and from
a judgment of that court denying his request for findings of fact and conclusions of law. For
the following reasons, we dismiss these appeals.
I. Facts and Procedural History
        {¶ 2} Matthew and plaintiff-appellee, Zephynia S. Tassone, were married in July
2011, and have one child. In November 2017, Zephynia filed a complaint for divorce. On
December 11, 2017, Matthew moved for emergency custody of the parties' child. Two days
later, Matthew filed an answer and counterclaim, a motion for temporary orders, and a
motion for contempt against Zephynia. On December 20, 2017, the parties and their
counsel appeared in court on Matthew's motions. On the same day, the trial court, with the
Nos. 18AP-475 and 18AP-614                                                                  2


approval of the parties, entered an agreed interim entry. The agreed interim entry detailed
the parties' parenting time in regard to their child from 5:00 p.m. on December 20, 2017,
through 10:00 a.m. January 2, 2018. It also set forth an allocation of parenting time
beginning 10:00 a.m., January 2, 2018, "until further order of" the court. (Agreed Interim
Entry at 1.) The agreed interim entry also indicated that Matthew agreed that his motions
for emergency custody and contempt were "resolved by this agreement or shall otherwise
be dismissed or withdrawn." (Agreed Interim Entry at 2.) The agreed interim entry further
stated that the parties would "proceed on temporary orders and nothing in this order shall
prohibit either party from proceeding on temporary orders." (Agreed Interim Entry at 2.)
On January 26, 2018, the trial court magistrate entered temporary orders, including
designating Zephynia as the school placement parent and ordering parenting time pursuant
to Local Rule 27 of the Franklin County Court of Common Pleas, Division of Domestic
Relations, Option B.
       {¶ 3} On April 19, 2018, Matthew filed a motion pursuant to Civ.R. 60(B) seeking
relief from the agreed interim entry. On April 25, 2018, Matthew filed an amended motion
for relief pursuant to Civ.R. 60(B), and on May 1, 2018, he filed a second amended motion
for relief pursuant to Civ.R. 60(B). In the motions for relief, Matthew alleged that he signed
the agreed interim entry under duress and that Zephynia's counsel had engaged in
misconduct. On May 23, 2018, the trial court denied Matthew's motions for relief from
judgment. The next day, Matthew filed a motion pursuant to Civ.R. 52 for findings of fact
and conclusions of law in regard to the trial court's May 23, 2018 decision and judgment
entry. On July 16, 2018, the trial court denied Matthew's motion for findings of fact and
conclusions of law.
       {¶ 4} Matthew timely appeals from the trial court's May 23, 2018 denial of his
requests for relief from judgment and the trial court's July 16, 2018 denial of his motion for
findings of fact and conclusions of law. These separate appeals were consolidated for the
purpose of record filing, briefing, oral argument, and determination.
Nos. 18AP-475 and 18AP-614                                                                  3


II. Assignments of Error
       {¶ 5} Matthew assigns the following errors for our review:
                1. The trial court abused its discretion in not holding an
                evidentiary hearing with respect to Appellant's May 1st, 2018
                Motion for Relief from Judgement.

                2. The trial court abused its discretion in not granting
                Defendant's Request for findings of Fact.

                3. The trial court abused its discretion in denying Defendant's
                May 1st, 2018 motion for relief.

                4. The trial court erred in not considering Defendant's Due
                Process Claims.

                5. The trial court erred to the prejudice of Appellant in
                determining that the "Agreed Interim Entry" contract/order
                was not a final and appealable order under R.C. 2505.02.

                6. The trial Court erred in determining that Defendant did not
                have a meritorious claim or defense if relief was granted under
                rule Ohio Civ.Ru.60(B)

                7. the trial court erred in finding that Defendant did not present
                a prima facie showing that the ends of justice would better be
                served by setting the judgement aside.

                8. the trial court erred in finding that Defendant was not
                entitled to relief under Ohio Civ.R. 60(B).

(Sic passim.)
III. Discussion
       {¶ 6} Before analyzing Matthew's assignments of error, we must, as a preliminary
matter, address our subject-matter jurisdiction in these consolidated appeals. Although
neither party has raised the issue of whether the trial court's May 23 and July 16, 2018
entries are final appealable orders, an appellate court may raise that jurisdictional question
sua sponte and must dismiss an appeal that is not taken from a final appealable order.
Riverside v. State, 190 Ohio App.3d 765, 2010-Ohio-5868, ¶ 8 (10th Dist.).
       {¶ 7} Ohio appellate courts have jurisdiction to review only final appealable orders
of lower courts within their districts. Ohio Constitution, Article IV, Section 3(B)(2); R.C.
Nos. 18AP-475 and 18AP-614                                                                      4


2505.03. If an order is not a final appealable order, the appellate court lacks jurisdiction
and the court must dismiss the appeal. K.B. v. Columbus, 10th Dist. No. 14AP-315, 2014-
Ohio-4027, ¶ 8, citing Prod. Credit Assn. v. Hedges, 87 Ohio App.3d 207 (4th Dist.1993).
A trial court order is final and appealable if it meets the requirements of R.C. 2505.02 and,
if applicable, Civ.R. 54(B). Eng. Excellence, Inc. v. Northland Assocs., LLC, 10th Dist. No.
10AP-402, 2010-Ohio-6535, ¶ 10; see Lantsberry v. Tilley Lamp Co., Ltd., 27 Ohio St.2d
303, 306 (1971) ("A final order * * * is one disposing of the whole case or some separate and
distinct branch thereof."). A trial court's labeling of an entry as a "final appealable order"
is not dispositive of the issue. In re Murray, 52 Ohio St.3d 155, 157 (1990).
       {¶ 8} Here, Matthew sought relief pursuant to Civ.R. 60(B) from the trial court's
December 20, 2017 agreed interim entry, and he subsequently requested findings of fact
and conclusions of law in regard to the trial court's denial of his request for relief. In seeking
relief, Matthew alleged the agreed interim entry was invalid because he signed it under
duress, and that Zephynia's counsel had engaged in misconduct during the proceedings.
       {¶ 9} Generally, a decision denying a motion for relief from judgment under Civ.R.
60(B) is a final appealable order. Straquadine v. Crowne Pointe Care Ctr., 10th Dist. No.
10AP-607, 2012-Ohio-1152, ¶ 11. However, because a Civ.R. 60(B) motion to vacate lies
only from a "final judgment, order, or proceeding," when the underlying judgment or order
does not meet this requirement, Civ.R. 60(B) is not a proper procedural mechanism for
relief and it cannot be used to convert an otherwise non-final judgment or order into a final
appealable order.     Nami v. Nami, 10th Dist. No. 17AP-265, 2017-Ohio-8330, ¶ 17.
Consequently, the "denial of relief from a non-final order is, itself, not a final appealable
order." Kalapodis v. Hall, 9th Dist. No. 22386, 2005-Ohio-2567, ¶ 10; see Wells Fargo
Bank, NA v. Vasquez, 9th Dist. No. 13CA0086-M, 2015-Ohio-717, ¶ 6 ("When an order is
not final, the decision declining to vacate that order is also not a final appealable order.").
By logical extension, a trial court's denial of a request for findings of fact and conclusions
of law as to its denial of a request for relief from a non-final appealable order is also not a
final appealable order.
       {¶ 10} The trial court's agreed interim entry at issue was a temporary order
allocating custody between the parents. The entry also effectively dismissed Matthew's
motion for contempt; thus, the court did not make a finding of contempt or impose a
Nos. 18AP-475 and 18AP-614                                                                  5


penalty or sanction in the entry. Matthew argues that while the agreed interim entry may
not be a final judgment, it constitutes a final appealable order under R.C. 2505.02. We
disagree. It is well-settled that temporary child custody orders are not final and appealable.
In re B.A.L., 8th Dist. No. 103053, 2016-Ohio-300, ¶ 25; In re J.L.R., 4th Dist. No. 08CA17,
2009-Ohio-5812, ¶ 29.       Furthermore, a ruling on a contempt motion is not a final
appealable order unless the trial court has made a specific finding of contempt and has
imposed a penalty or sanction. Mike McGarry & Sons, Inc. v. Constr. Resources One, LLC,
6th Dist. No. S-17-005, 2018-Ohio-528, ¶ 108; Holeski v. Holeski, 11th Dist. No. 2009-P-
0007, 2009-Ohio-6036, ¶ 42. Therefore, the agreed interim entry is not a final appealable
order.
         {¶ 11} Because the agreed interim entry is not a final appealable order, the trial
court's entries, denying Matthew's requests for relief from the agreed interim entry and
denying his related request for findings of fact and conclusions of law, are not final
appealable orders. Therefore, these appeals must be dismissed for lack of jurisdiction.
IV. Disposition
         {¶ 12} Based on the foregoing, we dismiss both appeals for lack of a final appealable
order.
                                                                          Appeals dismissed.

                           KLATT, P.J., and DORRIAN, J., concur.
