[Cite as Peak-Sims v. Sims, 2018-Ohio-2002.]


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

MONIQUE PEAK-SIMS                                     C.A. No.        28703

        Appellee

        v.                                            APPEAL FROM JUDGMENT
                                                      ENTERED IN THE
RICCO SIMS                                            COURT OF COMMON PLEAS
                                                      COUNTY OF SUMMIT, OHIO
        Appellant                                     CASE No.   DR-2016-12-3754

                                DECISION AND JOURNAL ENTRY

Dated: May 23, 2018



        TEODOSIO, Presiding Judge.

        {¶1}    Ricco Sims appeals from the judgment entry of the Summit County Court of

Common Pleas, Domestic Relations Division, dismissing his complaint for divorce. We dismiss

for lack of jurisdiction.

        {¶2}    Mr. Sims filed a complaint for divorce without children against Monique Peak-

Sims in December 2016. The parties appeared for a hearing on June 20, 2017, and made brief

statements on the record. The trial court concluded the hearing and indicated to the parties they

would get notice of the next court hearing. On June 21, 2017, the trial court dismissed the case

without prejudice, finding that it would be “in the best interest of both parties to give the parties

time to address their mental health issues before proceeding.” Mr. Sims now appeals, raising one

assignment of error.

        {¶3}    “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
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the complaint.” Smirz v. Smirz, 9th Dist. Lorain No. 13CA010408, 2014-Ohio-3869, ¶ 10.

Consequently, as a preliminary matter, we are obligated to raise sua sponte the question of our

jurisdiction. See Whitaker-Merrell Co. v. Geupel Constr. Co., Inc., 29 Ohio St.2d 184, 186

(1972).

          {¶4}   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,

this Court must dismiss the appeal for lack of subject matter jurisdiction.” Smirz at ¶ 8. Under

R.C. 2505.02(B)(1), a final order is “[a]n order that affects a substantial right in an action that in

effect determines the action and prevents a judgment * * *.” An order “determines the action

and prevents a judgment” when it “dispose[s] of the merits of the cause or some separate and

distinct branch thereof [leaving] 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, ¶ 8, citing Miller v. First

Internatl. Fid. & Trust Bldg., Ltd., 113 Ohio St.3d 474, 2007-Ohio-2457, ¶ 6. Considered under

R.C. 2505.02(B)(1), the trial court’s order that dismissed Mr. Sims’ complaint without prejudice

did not dispose of the merits of the cause or a separate and distinct branch thereof.

          {¶5}   Divorce actions, however, are special proceedings. State ex rel. Papp v. James,

69 Ohio St.3d 373, 379 (1994).          We must therefore continue our analysis under R.C.

2505.02(B)(2), which defines a final order as “[a]n order that affects a substantial right made in a

special proceeding * * *.” 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). “An order which affects a substantial right has been

perceived to be one which, if not immediately appealable, would foreclose appropriate relief in

the future.” Bell v. Mt. Sinai Med. Ctr., 67 Ohio St.3d 60, 63 (1993). An appellant, therefore,
                                                  3


“must demonstrate that in the absence of immediate review of the order they will be denied

effective relief in the future.” Id. The question is thus whether the dismissal without prejudice

of Mr. Sims’ complaint for divorce, if not immediately appealable, would foreclose appropriate

relief in the future. In considering this question, we turn our attention to two cases previously

decided by this Court.

         {¶6}   In Smirz v. Smirz, we reviewed the dismissal of a complaint for divorce without

prejudice, and adopted the analysis of the Fifth District Court of Appeals as set forth in Davis v.

Paige:

         [T]he 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 refiled cause or
         motion.

Smirz at ¶ 16, citing Davis v. Paige, 5th Dist. Stark No. 2007 CA 00248, 2008-Ohio-6415, ¶ 40-

41. We noted that the law accords “parental and marital rights, including rights to support” and

that “the domestic relations court enforces those rights in an equitable manner.” Id. at ¶ 18.

Because the appellant in Smirz had refiled the divorce action, we concluded that she had the

ability to seek redress for her inability to enforce prior temporary support orders in the dismissed

action through equitable resolution in the second divorce action. Id. at ¶ 19. We went on to

determine that the order dismissing the first divorce action without prejudice was not a final,

appealable order because it did not affect a substantial right necessitating a finding of immediate

finality. Id.

         {¶7}   In Moir v. Denkewalter, we considered whether the dismissal of a motion to

reallocate parental rights was a final, appealable order. Moir v. Denkewalter, 9th Dist. Medina

No. 13CA0082-M, 2015-Ohio-3171. We concluded, on the specific facts of the case, that the
                                                 4


order was final and appealable because it affected a substantial right in the context of a special

proceeding, stating: “Decisions involving the care and custody of a child implicate substantial

rights of the natural parents.” Id. at ¶ 8.

        {¶8}    In the present case, there are no children to consider, and we need not address the

issue of parental rights. Likewise, there were no orders in effect for spousal or child support.

Finally, we note that we do not agree with the dissenting opinion’s assertion that the language of

the trial court’s dismissal entry creates a condition to refiling. Under these circumstances, we

conclude the trial court’s dismissal of the divorce action, without prejudice, does not foreclose

appropriate relief in the future upon the potential refiling of the case. The court’s judgment entry

dismissing the case is therefore not a final, appealable order and this Court lacks jurisdiction to

address the merits of this appeal.

                                                                                 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(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.




                                                     THOMAS A. TEODOSIO
                                                     FOR THE COURT
                                                    5




HENSAL, J.
CONCURS.

CARR, J.
DISSENTING.

        {¶9}    I respectfully dissent because I believe that the trial court’s order dismissing the

action for the parties “to address their mental health issues before proceeding” is a final order as

an exception to the general rule for dismissals without prejudice. Further, I am concerned that by

dismissing this appeal, this Court is setting precedent that will allow such orders to stand without

appellate review.

        {¶10} Although dismissals without prejudice are generally not final orders, that rule is

based upon the concept that such orders leave the parties in the same position as they were

before the dismissal. See, e.g., Maxwell v. Forest Fair Mall, Ltd., 1st Dist. Hamilton No. C-

060412, 2007-Ohio-3087; U.S. Bank N.A. v. Coffey, 6th Dist. Erie No. E-11-026, 2012-Ohio-

721. Where that is not the case, courts have consistently held dismissals without prejudice to be

final, typically reasoning that they in effect determine the action under R.C. 2505.02(B)(1)

because they limit the party’s ability to refile.

        {¶11} For instance, such dismissals have been considered final in circumstances

including: failure to attach an affidavit of merit to the complaint, Ward v. Summa Health Care,

184 Ohio App. 3d 254, 2009 Ohio 4859 (9th Dist.); failure to include a particular allegation in

the complaint, U.S. Bank N.A. v. Coffey, 6th Dist. Erie No. E-11-026, 2012-Ohio-721; failure to

pay costs, Robinson v. Robinson, 4th Dist. Meigs County No. 16CA18, 2017-Ohio-450; lack of

personal jurisdiction, Nat’l City Commer. Capital Corp. v. AAAA At Your Service, 114 Ohio St.

3d 82, 2007-Ohio-2942; dismissal based upon forum non conveniens, Chambers v. Merrell-Dow
                                                   6


Pharmaceuticals, Inc., 35 Ohio St.3d 123 (1988); and dismissals where the statute of limitations

would preclude refiling. See, e.g., Wells Fargo Bank, N.A. v. Wick, 8th Dist. Cuyahoga Nos.

99373, 99840, 2013-Ohio-5422. In each of these instances, the dismissal did more than leave the

parties in the same position because it limited the party’s ability to refile the action.

        {¶12} In other situations, courts have considered and addressed appeals from dismissals

without prejudice without discussing the issue of finality. In those instances, the trial court’s

action typically involved some measure of invalidity or error that placed the parties in a different

position after dismissal. For instance, in Svoboda v. Brunswick, 6 Ohio St. 3d 348, 453 N.E.2d

648 (1983), the Ohio Supreme Court considered an appeal from an order that denied a motion to

vacate a dismissal without prejudice. In that case, the trial court had dismissed the action

without prejudice because the plaintiff failed to obtain an attorney. According to the Supreme

Court, the dismissal was entirely erroneous because it was based upon an invalid requirement to

proceed with counsel. Notably, that court did not dismiss the appeal for lack of jurisdiction but

instead addressed the merits and concluded that the dismissal had been erroneously entered.

        {¶13} Similarly, in Rymers v. Rymers, 11th Dist. Lake No. 2009-L-160, 2010-Ohio-

6439, the Eleventh District reversed an order that dismissed a divorce action without prejudice

stating that the parties were not properly prepared. In that case, the Eleventh District indicated

that the matter was final under R.C. 2505.02(B)(1) and concluded that the trial court abused its

discretion in dismissing on that basis. As that court explained, a “trial court's order dismissing an

action pursuant to Civ.R. 41(B) is subject to appellate review under an abuse of discretion

standard. A court abuses its discretion when its judgment comports with neither reason nor the

record.” Id.
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        {¶14} Along the same lines, this Court reversed a dismissal without prejudice in Capital

One Bank v. Jones, 9th Dist. Montgomery No. 13CA0038-M, 2014-Ohio-2299, holding that the

trial court’s actions leading up to the dismissal were unauthorized. There, the trial court had

dismissed appellant’s claims without prejudice after ordering her to file a new action as the

plaintiff. In reviewing the dismissal without prejudice on its merits, this Court noted that the

“trial court’s ‘inherent power to control its own docket’ does not mean it may dismiss claims

without a valid basis.” Id. at ¶ 9.

        {¶15} Courts have also addressed dismissals without prejudice when the trial court

failed to provide the parties with notice before the dismissal.     Notably, those dismissals were

subject to appellate review, and the appeals were not dismissed for lack of finality. See e.g.

Montgomery v. Tenneco Automotive Operating, Inc., 183 Ohio App.3d 164, 2009-Ohio-3394

(6th Dist.); State ex rel. Ramsey v. Saunders 9th Dist. No. 16258, 1993 Ohio App. LEXIS 6131

(December 15, 1993) (reviewing a dismissal without prejudice for an abuse of discretion and

holding that the notice provided was sufficient).

        {¶16} In addition, courts have reviewed dismissals without prejudice for a party’s failure

to appear. The Tenth District, for instance, considered an appeal from an order dismissing an

inmate’s parental rights complaint because he failed to appear at a hearing despite his inability as

an inmate to do so. Jones v. Roberts, 10th Dist. Franklin No. 17AP-151, 2014-Ohio-2798. In

affirming the dismissal, the court reviewed the order for an abuse of discretion and did not

dismiss the appeal or otherwise indicate that a finality issue existed.

        {¶17} Based upon the foregoing, I would conclude that the dismissal here is a final

order. The parties are plainly not in the same position as they were before the dismissal and,

therefore, the general rule should be inapplicable. Instead, they are now subject to a vague
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“condition” to the refiling of the divorce action that is ambiguous as to its requirements. In fact,

according to appellant, he has been attending his therapy classes since December, 1, 2016, so it is

unclear precisely what hurdles must be overcome before refiling.

       {¶18} Furthermore, the condition to refiling applies to both parties, which deprives

appellant of the ability to control compliance with his own behavior.             Thus, even if he

successfully addresses his “mental health issues before proceeding,” his compliance alone may

be insufficient. Consequently, his ability to refile his divorce action may be effectively

eliminated because compliance with the condition may not even be possible.

       {¶19} I would conclude, therefore, that the trial court’s dismissal without prejudice is a

final order because it does not leave the parties in the same place; instead, it restricts appellant’s

ability to refile his action and his access to the domestic relations court. As a result, I would

proceed to the merits of the appeal and reverse the trial court’s order.


APPEARANCES:

RICCO SIMS, pro se, Appellant.

MONIQUE PEAK-SIMS, pro se, Appellee.
