[Cite as In re A.W., 2013-Ohio-4096.]
IN THE COURT OF APPEALS
ELEVENTH APPELLATE DISTRICT
GEAUGA COUNTY, OHIO
IN THE MATTER OF: : OPINION
A.W. AND G.W.,
ALLEGED DEPENDENT CHILDREN : CASE NO. 2012-G-3122
Civil Appeal from the Geauga County Court of Common Pleas, Juvenile Division.
Case No. 12JF000366.
Judgment: Appeal dismissed.
Jeffrey A. Crossman, 5546 Pearl Road, Parma, OH 44129 (For Appellants Lawrence
and Kathleen Bettlejewski).
Jeffrey S. Brown, 124 Middle Avenue, Suite M-A, Elyria, OH 44035 (For Appellee Eric
Hunt).
Paul J. Mooney, Law Office of Paul J. Mooney, 3401 Enterprise Parkway, Suite 340,
Beachwood, OH 44122 (For Appellee Michelle Weikart).
James R. Flaiz, Geauga County Prosecutor, and Craig A. Swenson, Assistant
Prosecutor, Courthouse Annex, 231 Main Street, Suite 3A, Chardon, OH 44024 (For
Appellee Geauga County Job and Family Services).
Kathy Brigg, CASA, 470 Center Street, Building 6-C, Chardon, OH 44024 (Guardian ad
litem).
TIMOTHY P. CANNON, P.J.
{¶1} Appellants, Lawrence and Kathleen Bettlejewski, paternal grandparents of
A.W. and G.W., appeal the decision of the Geauga County Court of Common Pleas,
Juvenile Division, granting certain temporary visitation rights of G.W. to non-relative Mr.
Eric Hunt, the biological father of A.W., but not of G.W. Appellants also purport to
appeal from the trial court’s judgment entry which advises, sua sponte, that appellants
are not parties and failed to file a motion to intervene. As set forth below, the appeal
must be dismissed for lack of jurisdiction.
{¶2} This case was initiated on August 9, 2012, when Geauga County Job and
Family Services (“GCJFS”) filed a complaint alleging A.W., age 8, and G.W., age 6, to
be dependent children. The complaint noted that on June 29, 2012, the agency entered
into a safety plan with the children’s mother wherein she agreed that A.W. and G.W.
would reside with appellants while the social worker could investigate the case further.
The complaint also noted Mr. Hunt was A.W.’s biological father. On September 18,
2012, the trial court found A.W. and G.W. to be dependent, pursuant to R.C.
2151.04(C).
{¶3} Appellants and Mr. Hunt both filed respective motions for custody. The
trial court, in a November 21, 2012 order, granted Mr. Hunt temporary visitation rights of
both A.W. and G.W. for the months of November and December. This order is now the
subject of the instant appeal.
{¶4} On December 6, 2012, appellants appealed the visitation order.
Appellants assert two assignments of error in their merit brief. Appellants’ first
assignment of error states:
{¶5} “The trial court erred in stating that appellants were not parties to the case
given that the trial court awarded appellants temporary custody.”
{¶6} Appellate courts are required to raise jurisdictional questions sua sponte.
In the absence of a timely appeal from a final, appealable order, an appellate court does
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not have jurisdiction to review the issue. See App.R. 4(A); see also Barnes v. Andover
Village Retirement Community, Ltd., 11th Dist. Ashtabula No. 2003-A-0122, 2004-Ohio-
1705, ¶10, citing State ex rel. Pendell v. Adams Cty. Bd. of Elections, 40 Ohio St.3d 58,
60 (1988) (“[t]he time requirement is jurisdictional in nature, and may not be enlarged by
an appellate court”). Thus, though not raised in any brief, we must first determine
whether this court has jurisdiction to consider the first assignment of error.
{¶7} The trial court explained in a December 7, 2012 entry—one day after the
notice of appeal was filed—that appellants did not have standing to file motions or an
appeal because they were neither parties to the case nor did they file a motion to
intervene. As this entry has not been appealed, we do not have jurisdiction to consider
any associated arguments or its effect on the parties or proceedings, if any. See App.R.
3; App.R. 4. Further, this entry is moot because the trial court essentially
acknowledged, via a December 10, 2012 judgment entry, the propriety of adding
appellants as parties by granting the motion to consider them as parties and/or
intervene in the case. See Juv.R. 2(Y).
{¶8} Appellants’ first assignment of error is dismissed.
{¶9} Appellants’ second assignment of error states:
{¶10} “The visitation order is in error since it permits visitation between Eric Hunt
and G.W. who are unrelated over the objection of the legal custodians.”
{¶11} This case presents the issue of Mr. Hunt’s temporary visitation rights for
the minor child G.W. during the pendency of an ongoing custody matter following an
adjudication of dependency. Under their assignment of error, appellants argue the trial
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court erred in granting Mr. Hunt temporary visitation rights for G.W. because he is a
non-parent and a non-relative.
{¶12} This court has before it for review an order which states that Mr. Hunt shall
have temporary visitation on select dates through December 2012. The order then set
a hearing on the issue for a later date. Thus, the interim order was interlocutory and
subject to modification at any time. Indeed, the visitation dates have passed—as have
subsequent temporary visitation orders, including a January 9, 2013, post-appeal entry
determining new visitation dates. A review of an updated docket also indicates
modification motions to visitation schedules. Accordingly, the entry does not constitute
a final, appealable order.
{¶13} The Eighth Appellate District, in Varney v. Varney, was faced with an entry
that granted interim visitation rights “‘until further order of the court,’” which was
reviewable at an upcoming scheduled hearing, as in the case sub judice. 8th Dist.
Cuyahoga Nos. 70709 & 70710, 1997 Ohio App. LEXIS 4705, *5 (Oct. 23, 1997). The
Eighth District concluded that, as a new hearing was set and the order was subject to
modification, the entry was not final or appealable. Id. In so doing, the court relied
upon Cassim v. Cassim, 98 Ohio App.3d 576 (10th Dist.1994) where the Tenth District
also dismissed an appeal from an order denying a motion for temporary visitation,
stressing that the denial of such a motion “does not preclude a different judgment upon
final determination of the case.” Id. at 578.
{¶14} Because of the ongoing nature of the dispute, we believe it is appropriate
to briefly address whether the trial court had authority to grant temporary visitation to
Mr. Hunt.
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{¶15} R.C. 3109.051 sets forth orders granting companionship or visitation rights
in certain cases. In Parr v. Winder, 11th Dist. Ashtabula No. 92-A-1759, 1993 Ohio
App. LEXIS 3358 (Jun. 30, 1993), we reviewed the trial court’s determination that it did
not have jurisdiction to determine visitation under R.C. 3109.051 for appellant, a non-
parent, in a custody proceeding. Id. at *2. This court agreed the trial court did not have
jurisdiction, noting that R.C. 3109.051, which allows a non-parent to move for visitation
rights in a proceeding for divorce, dissolution, legal separation, annulment or child
support, does not include a custody proceeding. Id. at *4-5. Similarly, the Tenth District
in Rowell v. Smith, 10th Dist. Franklin Nos. 10AP-675 and 10AP-708, 2011-Ohio-2809,
held that the juvenile court exceeded its authority when it granted the former same-sex
partner visitation because the Ohio General Assembly, under R.C. 3109.051, had not
conferred upon juvenile courts the authority to order visitation to a non-relative. Id. at
¶23. The court noted: “nowhere does a statute confer upon a juvenile court the
authority to grant visitation to a non-relative in the absence of one of these precipitating
events [divorce, dissolution of marriage, legal separation, annulment, or child support
proceeding].” Id. at ¶21. As a result, the temporary visitation order underlying the
contempt order was invalid, and the contempt order could not stand.
{¶16} Recently, however, the Ohio Supreme Court reversed Rowell, holding that
a juvenile court may issue temporary visitation orders that are in the best interest of the
minor child during the litigation of a custody matter. Rowell v. Smith, 133 Ohio St.3d
288, 2012-Ohio-4313. In so doing, the Ohio Supreme Court concluded:
Here, the juvenile court had subject-matter jurisdiction over the
case under R.C. 2151.23, it afforded Smith the opportunity to be
heard on the issue of visitation, and it had discretion under Juv.R.
13(B) to issue a temporary visitation order, so long as it was in the
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child’s best interest. Within these parameters, we find that the
court had authority to grant the temporary order and that the
temporary order did not violate Smith’s fundamental rights.
Smith argues that if we reverse the judgment of the appellate court,
we are interpreting the law as giving juvenile courts summary
power and unfettered discretion to grant visitation to a nonrelative.
We disagree. The court’s actions must be in the child’s best
interest. Moreover, Smith’s interpretation of the law is illogical.
Under her interpretation, the General Assembly granted authority
for juvenile courts to determine the custody of a child but cannot
determine whether a party to the custody action can visit with the
child while the action is pending. Id. at ¶22-23.
{¶17} Thus, a juvenile court, in considering a grant of temporary custody to a
non-relative, must be guided by the familiar “best interest of the child” inquiry. Given
this holding, we reject appellants’ contention that the trial court was unable to exercise
authority over the matter.
{¶18} Appellants’ second assignment of error is dismissed.
{¶19} Appeal dismissed for lack of a final, appealable order.
CYNTHIA WESTCOTT RICE, J.,
COLLEEN MARY O’TOOLE, J.,
concur.
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In re A.W.
Combined Opinion