[Cite as Dave v. Dave, 2016-Ohio-5185.]
IN THE COURT OF APPEALS
ELEVENTH APPELLATE DISTRICT
PORTAGE COUNTY, OHIO
DEEPAN M. DAVE, : MEMORANDUM OPINION
Plaintiff-Appellee, :
CASE NO. 2016-P-0020
- vs - :
SEJAL DEEPAN DAVE, :
Defendant-Appellant. :
Civil Appeal from the Court of Common Pleas, Domestic Relations Division, Case No.
2015 DR 00166.
Judgment: Appeal dismissed.
Randall A. Lowry, Randal A. Lowry & Associates, 4000 Embassy Parkway, Suite 200,
Akron, OH 44333, and Shubhra N. Agarwal, 3766 Fishcreek Road, #289, Stow, OH
44224-4379 (For Plaintiff-Appellee).
Joyce E. Barrett and James P. Reddy, Jr., 55 Public Square, Suite 1260, Cleveland, OH
44113 (For Defendant-Appellant).
CYNTHIA WESTCOTT RICE, P.J.
{¶1} Appellant, Sejal Deepan Dave, by and through counsel of record, filed a
notice of appeal from three separate judgment entries issued by the Portage County
Court of Common Pleas, Domestic Relations Division.
{¶2} The record in this matter reveals that appellant and appellee, Deepan M.
Dave, were married in India on November 28, 2013. The marriage was registered in
India. After their marriage, the parties resided in Cleveland for approximately one week,
and then they flew to Texas. A few days later, appellee returned to Ohio by himself to
enter into a lease for a residence. Appellant came to Ohio for about one month before
returning to Texas, where she gave birth to their child in September 2014.
{¶3} In November 2014, appellant and the infant returned to Ohio. The parties
filed an application for a travel visa for the infant, and in January 2015, the three of them
traveled to Bombay, India. While there, appellant and the infant went to another part of
India with appellant’s parents, and remained there. Appellee had some limited contact
with appellant by phone.
{¶4} On April 15, 2015, appellee filed a complaint for divorce against appellant
in the trial court. In May of 2015, appellant returned to Texas to file a petition for
annulment or divorce.
{¶5} On July 1, 2015, appellant filed a “Notice of Filing of Special Appearance
on Behalf of Defendant to Dismiss Divorce Action for Lack of Jurisdiction over Parental
Rights and Responsibilities; Lack of In Personam Jurisdiction over Defendant; and Lack
of In Rem Jurisdiction over the Divorce Action.” Subsequently, appellant filed three
supplements to her motion.
{¶6} In September 2015, the Texas court declined jurisdiction to hear the
matter and ceded jurisdiction to Ohio. Appellant then filed three separate actions in
India.
{¶7} In an entry dated March 10, 2016, after considering the pleadings and
conferring with the Texas court, the trial court journalized that the state of Texas
declined jurisdiction to hear the matter, and that the Texas judge issued a UCCJEA
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Order reflecting that jurisdiction of the matter including over the parties’ minor child was
ceded to Portage County.
{¶8} In a separate March 10, 2016 entry, in ruling on appellant’s July 1, 2015
motion to dismiss for lack of jurisdiction, lack of in personam jurisdiction and lack of in
rem jurisdiction and the supplemental motions, the trial court ordered that the motion
was denied. The trial court further stated that appellant’s motion to dismiss on the basis
of a lack of jurisdiction to make determinations relating to child custody and as related to
the Hindu Marriage Act of 1955 is denied.
{¶9} In an entry dated March 21, 2016, the trial court ordered that appellant
return to the United States with the parties’ minor child no later than April 10, 2016; that
within 48 hours, appellant shall deposit any and all passports held in her name and/or
the child’s name with the Portage County Clerk of Courts; appellant shall communicate
with appellee by March 17, 2016, to make arrangements for appellee to have daily
contact with the minor child; and that a hearing on the remaining issues shall take place
on April 28, 2016, and that appellant shall transport the minor child to Portage County
by that date. The trial court also made certain orders regarding the marital property. It
is from those entries that appellant filed the instant appeal on April 6, 2016.
{¶10} On April 25, 2016, appellee filed a motion to dismiss the appeal for lack of
a final appealable order. This court issued an entry on April 27, 2016, ordering
appellant to submit briefing on the issue of whether the entries being appealed are final
appealable orders for this court’s review. On May 9, 2016, appellant filed a brief in
support of her position that the appealed entries are final appealable orders. Appellant
posits that the appealed entries were made in a special proceeding and affect her
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substantial rights. On June 2, 2016, appellee filed a response to appellant’s brief in
support and stated that the appealed entries do not affect a substantial right, and that
the appeal be dismissed due to lack of jurisdiction.
{¶11} Initially, we must determine whether there is a final appealable order since
this court may entertain only those appeals from final judgments or orders. Noble v.
Colwell, 44 Ohio St.3d 92, 96 (1989). According to Section 3(B)(2), Article IV of the
Ohio Constitution, a judgment of a trial court can be immediately reviewed by an
appellate court only if it constitutes a “final order” in the action. Germ v. Fuerst, 11th
Dist. Lake No. 2003-L-116, 2003-Ohio-6241, ¶ 3. If a lower court’s order is not final,
then an appellate court does not have jurisdiction to review the matter, and the matter
must be dismissed. Gen. Acc. Ins. Co. v. Ins. Co. of N. Am., 44 Ohio St.3d 17, 20
(1989). For a judgment to be final and appealable, it must satisfy the requirements of
R.C. 2505.02 and if applicable, Civ.R. 54(B). See Children’s Hosp. Med. Ctr. v.
Tomaiko, 11th Dist. Portage No. 2011-P-0103, 2011-Ohio-6838, ¶ 3.
{¶12} In general, the denial of a motion to dismiss is not a final appealable order.
Curie v. Curie, 11th Dist. Ashtabula No. 2004-A-0047, 2004-Ohio-3682, at ¶ 2.
However, Pursuant to R.C. 2505.02(B), there are seven categories of a “final order,”
and if the judgment of the trial court satisfies any of them, it will be deemed a “final
order” and can be immediately appealed and reviewed by a court of appeals.
{¶13} R.C. 2505.02(B)(2) states that an order is final if it “affects a substantial
right made in a special proceeding * * *[.]” An action for divorce is a special proceeding,
and a party has a substantial right to have a dispute considered by a court of competent
jurisdiction. See Copenhaver v. Copenhaver, 4th Dist. Athens No. 05CA16, 2005-Ohio-
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4322, at ¶ 5. Therefore, in this matter, we must determine if the trial court’s judgment
entries affected that substantial right.
{¶14} An order that affects a substantial right has been perceived to be one
which, if not immediately appealable, would foreclose appropriate relief in the future. Id.
At ¶ 6. In this divorce case, the denial of the motion to dismiss for lack of jurisdiction
does not affect a substantial right and is not a final appealable order because the
underlying reasons for the motion remain undisturbed until final judgment, which would
permit an appeal to be sought after disposition of the entire case.
{¶15} Based upon the foregoing analysis, appellee’s motion to dismiss is
granted, and this appeal is hereby dismissed due to lack of a final appealable order.
{¶16} Appeal dismissed.
TIMOTHY P. CANNON, J.,
COLLEEN MARY O’TOOLE, J.,
concur.
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