[Cite as Allen v. Allen, 2012-Ohio-4392.]
COURT OF APPEALS
MUSKINGUM COUNTY, OHIO
FIFTH APPELLATE DISTRICT
LISA LEIGH ALLEN JUDGES:
Hon. Patricia A. Delaney, P.J.
Plaintiff-Appellee Hon. William B. Hoffman, J.
Hon. Sheila G. Farmer, J.
-vs-
Case No. CT2012-0008
JOHN DALE ALLEN
Defendant-Appellant OPINION
CHARACTER OF PROCEEDING: Appeal from the Muskingum County
Common Pleas Court, Domestic Relations
Division, Case No. DB2011-0015
JUDGMENT: Dismissed
DATE OF JUDGMENT ENTRY: September 21, 2012
APPEARANCES:
For Appellee For Appellant
SCOTT T. HILLS JOHN DALE ALLEN
Hillis & Small, LLC #A614204
825 Adair Avenue C/o HCF – P.O. Box 59
Zanesville, OH 43701 Nelsonville, OH 45764
Muskingum County, Case No. CT2012-0008 2
Hoffman, J.
{¶1} Defendant-appellant John D. Allen (“Husband”) appeals the February 7,
2012 Divorce Decree entered by the Muskingum County Court of Common Pleas,
Domestic Relations Division. Plaintiff-appellee is Lisa L. Allen (“Wife”).
STATEMENT OF THE CASE AND FACTS
{¶2} On September 12, 2011, Wife filed a Complaint for Divorce in the
Muskingum County Court of Common Pleas, Domestic Relations Division. Wife
asserted gross neglect of duty and extreme cruelty as well as incompatibility as
grounds.
{¶3} Husband filed an Answer and Counterclaim on September 27, 2011.
Accompanying the pleadings was Husband’s hand-written Poverty Affidavit requesting
the trial court waive the pre-payment of the fees and costs associated with the filing of
his Answer and Counterclaim. Via Judgment Entry filed September 28, 2011, the trial
court ordered Husband to file a properly completed Financial Disclosure Affidavit or pay
the required deposit within fourteen days. Husband filed the appropriate documentation
on October 6, 2011.
{¶4} On November 18, 2011, Wife filed a Motion for Leave to File Amended
Complaint Instanter, which the trial court granted. The Amended Complaint included
Husband’s incarceration as grounds for the divorce. Husband filed an Answer and
Counterclaim on December 7, 2011.
{¶5} The trial court conducted a final hearing on January 9, 2012. The trial
court issued a Divorce Decree on February 7, 2012.
Muskingum County, Case No. CT2012-0008 3
{¶6} It is from this judgment entry Husband appeals, assigning as error:
{¶7} “I. DEFENDANT WAS DENIED DUE PROCESS.
{¶8} “II. DEFENDANT WAS DENIED EQUAL PROTECTION UNDER THE
LAW.”
{¶9} As a preliminary matter, we must first determine whether the order under
review is a final appealable order. If an order is not final and appealable, then we have
no jurisdiction to review the matter and must dismiss it. See Gen. Acc. Ins. Co. v. Ins.
Co. of N. Am. (1989), 44 Ohio St.3d 17, 20, 540 N.E.2d 266. In the event the parties to
the appeal do not raise this jurisdictional issue, we must raise it sua sponte. See Chef
Italiano Corp. v. Kent State Univ. (1989), 44 Ohio St.3d 86, 541 N .E.2d 64, syllabus;
Whitaker-Merrell v. Carl M. Geupel Const. Co. (1972), 29 Ohio St.2d 184, 186, 58
O.O.2d 399, 280 N.E.2d 922.
{¶10} Upon review of the record in this matter, we decline to address the merits
of Husband’s arguments at this time as we find the order being appealed is not a final
appealable order. The trial court’s February 7, 2012 Divorce Decree does not dispose
of Husband’s Counterclaim, nor did it include a Civ.R. 54(B) language.
Muskingum County, Case No. CT2012-0008 4
{¶11} Because a final appealable order does not exist in this case, we dismiss
this appeal for lack of jurisdiction.
By: Hoffman, J.
Delaney, P.J. and
Farmer, J. concur s/ William B. Hoffman _________________
HON. WILLIAM B. HOFFMAN
s/ Patricia A. Delaney _________________
HON. PATRICIA A. DELANEY
s/ Sheila G. Farmer __________________
HON. SHEILA G. FARMER
Muskingum County, Case No. CT2012-0008 5
IN THE COURT OF APPEALS FOR MUSKINGUM COUNTY, OHIO
FIFTH APPELLATE DISTRICT
LISA LEIGH ALLEN :
:
Plaintiff-Appellee :
:
-vs- : JUDGMENT ENTRY
:
JOHN DALE ALLEN :
:
Defendant-Appellant : Case No. CT2012-0008
For the reason stated in our accompanying Opinion, this appeal is ordered
dismissed. Costs to Appellant.
s/ William B. Hoffman _________________
HON. WILLIAM B. HOFFMAN
s/ Patricia A. Delaney _________________
HON. PATRICIA A. DELANEY
s/ Sheila G. Farmer___________________
HON. SHEILA G. FARMER