[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
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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,
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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
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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.”).
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{¶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.
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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
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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.
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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,
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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.