Dayton, Ohio - Divorce lawyer represented Appellant with appealing a Judgment overruling her motion to vacate the parties’ Dissolution of Marriage .
Anna Quesinberry appeals a June 14, 2021 Decision and Judgment overruling
her Civ.R. 60(B) motion. The Civ.R. 60(B) motion sought to vacate the parties’ 2018
Judgment Entry of Dissolution of Marriage on the basis of fraud, duress, misrepresentation,
and undue influence. A magistrate found that Anna was entitled to Civ.R. 60(B) relief.
Nathan Quesinberrry filed objections to the magistrate’s decision. In the June
14 Judgment on appeal, the trial court found Nathan’s objections well-taken in part, and
sustained them. The trial court ultimately overruled Anna’s motion to vacate. The court
also noted that other, separate motions were still pending, including Nathan’s motion
alleging contempt and requesting a modification of the parties’ shared parenting plan, and
Anna’s motions to terminate shared parenting and to name her residential parent, and to
modify child support.
Anna appealed the June 14 Judgment. Nathan and Ariel Quesinberry
(Nathan’s current spouse and intervenor in the trial court case) filed a motion to dismiss this
appeal for lack of a final appealable order. They assert that the motions pending in the
case prevent the June 14 Judgment from being final. Anna filed a response; Nathan and
Ariel filed a reply. For the following reasons, we overrule the motion to dismiss. The
appeal shall proceed.
An appellate court has jurisdiction to review only final orders of the lower courts
in its district. Section 3(B)(2), Article IV, Ohio Constitution; R.C. 2505.02. If an order is not
final, we have no jurisdiction to review it and must dismiss the appeal. Gen. Acc. Ins. Co.
v. Ins. Co. of N. Am., 44 Ohio St.3d 17, 20, 540 N.E.2d 266 (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).” Onady v. Wright State Physicians, Inc., 2d
Dist. Montgomery No. 27954, 2018-Ohio-3096, ¶ 7, citing Chef Italiano Corp. v. Kent State
Univ., 44 Ohio St.3d 86, 88, 541 N.E.2d 64 (1989). R.C. 2505.02 defines final orders. It
says, in relevant part:
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; [or]
(3) An order that vacates or sets aside a judgment or grants a new trial[.]
In 1980, the Supreme Court of Ohio recognized as “well-settled” the rule that “a
judgment denying a motion for relief from judgment filed pursuant to Civ.R. 60(B) is itself a
final appealable order.” Colley v. Bazell, 64 Ohio St.2d 243, 245, 416 N.E.2d 605 (1980).
At that time, the final order statute said, in relevant part:
An order affecting a substantial right in an action which in effect determines
the action and prevents a judgment, an order affecting a substantial right made
in a special proceeding or upon a summary application in an action after
judgment, or an order vacating or setting aside a judgment and ordering a new
trial is a final order which may be reviewed, affirmed, modified, or reversed,
with or without retrial.
R.C. 2505.02, 1953 H 1 (eff. Oct. 1, 1953). The three parts of the statute in effect in 1980
correspond to divisions (B)(1), (B)(2), and (B)(3) of the current final order statute.
The Colley Court did not cite the final order statute in its opinion or identify which
part of the statute a Civ.R. 60(B) denial satisfied. At least one court has suggested that the
first part of the statute – an order affecting a substantial right that in effect determines the
action and prevents a judgment – is likely what the Court meant. See Bussa v. Hadsel
Chem. Processing, LLC, 2016-Ohio-5718, 76 N.E.3d 385, ¶ 9 (4th Dist.), fn. 3 (noting that
although Colley did not specify, it “cited federal cases that seem to suggest an order denying
Civ.R. 60(B) relief from a final order affects a substantial right and in effect determines the
action and prevents a judgment”). Today, that provision is R.C. 2505.02(B)(1).
Ohio courts continue to rely on Colley, as does Anna here, for the proposition
that the denial of a Civ.R. 60(B) motion is a final order. But courts generally do so without
explicitly identifying which section of the statute is satisfied. See, e.g., Hadassah v.
Schwartz, 1st Dist. Hamilton No. C-110699, 2012-Ohio-3910, ¶ 8; Hack v. Keller, 9th Dist.
Medina No. 14CA0036-M, 2015-Ohio-4128, ¶ 10. Anna asserts here that the order is final
under R.C. 2505.02(B)(1), citing State ex rel. Lemerand v. Woessner, 6th Dist. Wood No.
WD-06-060, 2006-Ohio-4916, ¶ 10-13. Lemerand does not answer the question.
In Lemerand, the court briefly considered the finality of two orders: one
dismissing a declaratory judgment action, and one overruling a motion for relief from
judgment. The court said that, as to the trial court’s order dismissing the declaratory
judgment action, that order satisfied R.C. 2505.02(B)(1). As “to the trial court’s denial of
relator’s motion for relief from judgment,” the court simply held that “in general, a denial of a
Civ.R. 60(B) motion for relief from judgment is a final appealable order,” without identifying
which part of the statute is satisfied. Id. at ¶ 13, citing Ullmann v. Duffus, 10th Dist. Franklin
No. 05AP-299, 2005-Ohio-6060, at ¶ 33; Carter v. City of Cleveland, 8th Dist. Cuyahoga No.
77469, 2000 WL 1643532 (Nov. 2, 2000); Shaheen v. Vassilakis, 82 Ohio App.3d 311, 315,
612 N.E.2d 435 (8th Dist.1992). None of these cases identifies which division of the statute
is satisfied. For their part, Nathan and Ariel acknowledge Colley and agree that the denial
of a Civ.R. 60(B) motion can be a final order, but they do not address which part of the final
order statute is the relevant one.
Tethering the finality of a Civ.R. 60(B) denial to a particular division of the final
order statute matters for two related reasons. First, Civ.R. 54(B) does not, or may not, apply
to some divisions of the statute, and thus may not be required for finality. See Zhong v.
Liang, 2020-Ohio-3724, 155 N.E.3d 1042, ¶ 18 (8th Dist.) (“While Civ.R. 54(B) clearly
applies to R.C. 2505.02(B)(1) * * * it is less clear whether Civ.R. 54(B) applies to R.C.
2505.02(B)(2)”); Dayton Childrens Hosp. v. Garrett Day LLC, 2018-Ohio-5466, 131 N.E.3d
304, ¶ 15 (2d Dist.) (Civ.R. 54(B) does not apply to a provisional remedy under R.C.
2505.02(B)(4)). Second, the determination is relevant to the question of whether an order
can be final with other motions pending, which is the situation currently before us. So,
before we can answer these questions, we must first determine which part or parts of the
final order statute are satisfied here.
Since the Supreme Court in Colley presumably found the denial of a Civ.R.
60(B) motion final under one of the three parts of the statute then in effect, we look at the
three corresponding parts of the current statute: division (B)(1) (an order that determines
the action), division (B)(2) (an order in a special proceeding or on summary application after
judgment), and division (B)(3) (an order vacating or setting aside a judgment). The third
division is clearly inapplicable to the denial of a Civ.R. 60(B) motion, which, like the June 14
Judgment here, declines to vacate the final order. Thus, we consider whether the June 14
Judgment satisfies division (B)(1) or (B)(2).
R.C. 2505.02(B)(1): An Order that Determines the Action
Division (B)(1) of the final order statute defines as final “[a]n order that affects
a substantial right in an action that in effect determines the action and prevents a judgment.”
“For an order to determine the action, it must dispose of the merits of the cause or some
separate and distinct branch thereof and leave 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, 894
N.E.2d 303, ¶ 8, citing Miller v. First Internatl. Fid. & Trust Bldg., Ltd., 113 Ohio St.3d 474,
2007-Ohio-2457, 866 N.E.2d 1059, ¶ 6.
Typically, in a divorce case, the decree of divorce is the first (although often
not the only) final order entered in the case. The decree is final under R.C. 2505.02(B)(1)
because it determines the divorce action, i.e., because it resolves the claim(s) for divorce,
divides property, determines the appropriateness of spousal support, and where applicable,
allocates parental rights and responsibilities, including child support. See Wilson v. Wilson,
116 Ohio St.3d 268, 2007-Ohio-6056, 878 N.E.2d 16, ¶ 8-16, 19, citing Civ.R. 75(F)
(discussing the contents of a divorce decree and holding that “it is the decree of divorce that
constitutes the final determination of the court and determines the merits of the case”).
The underlying case here was not for divorce, but for dissolution of Anna and
Nathan’s marriage. The case was instituted by a Petition for Dissolution of Marriage with
Children. The Judgment Entry of Dissolution of Marriage with Children, along with the
Shared Parenting Plan incorporated therein, which was issued by the trial court on May 23,
2018, granted and resolved the Petition and determined the dissolution action. Thus, it
appears to this court that, in the absence of any argument to the contrary, the 2018
Judgment Entry of Dissolution was “[a]n order that affect[ed] a substantial right in an action
that in effect determine[d] the action and prevent[ed] a judgment” under R.C. 2505.02(B)(1).
Anna’s Civ.R. 60(B) motion sought to vacate that final order, and undo or undetermine the dissolution action. The motion did not create or institute a new action for
dissolution; it was a motion filed after the dissolution action was resolved attacking that
resolution. The denial of Anna’s motion does not determine any action – because no action
was pending – and therefore does not satisfy R.C. 2505.02(B)(1).
We observe that “action” in this respect must refer to the entire case or
cause(s) of action, and not to an issue or motion filed in the case. See Lantsberry v. Tilley
Lamp Co., 27 Ohio St.2d 303, 306, 272 N.E.2d 127 (1971) (“A final order * * * is one
disposing of the whole case or some separate and distinct branch thereof”). Holding
otherwise – that a motion is an “action” – would allow an interlocutory appeal any time a pretrial motion or issue is resolved, contrary to the purpose of the statute and “[t]he ‘general
rule in Ohio * * * that there should be one trial and one appeal’ in each case.” Wiggins v.
Safeco Ins. Co. of Indiana, 2d Dist. Montgomery No. 29034, 2021-Ohio-3526, ¶ 6, quoting
Lakewood v. Pfeifer, 83 Ohio App.3d 47, 50, 613 N.E.2d 1079 (8th Dist.1992).
Accordingly, we conclude that the June 14 Judgment did not “determine the
action” because the action had already been determined. R.C. 2505.02(B)(1) does not
R.C. 2505.02(B)(2): An Order in a Special Proceeding or After Judgment
“An order that affects a substantial right made in a special proceeding or upon
a summary application in an action after judgment” is a final order under R.C. 2505.02(B)(2).
Both parts of this division are arguably relevant here, although, because the June 14
Judgment was entered after the decree of dissolution, the latter part appears to be the most
applicable. We first consider whether the June 14 Judgment is the type of order to which
this division applies, and then consider whether it satisfies the definition.
A special proceeding is “an action or proceeding that is specially created by
statute and that prior to 1853 was not denoted as an action at law or a suit in equity.” R.C.
2505.02(A)(2). Divorce actions have been held to be special proceedings. See
Thomasson v. Thomasson, 153 Ohio St.3d 398, 2018-Ohio-2417, 106 N.E.3d 1239, ¶ 12,
citing Wilhelm-Kissinger v. Kissinger, 129 Ohio St.3d 90, 2011-Ohio-2317, 950 N.E.2d 516,
¶ 6 (“divorce, a statutory matter that did not exist at common law, qualifies as a special
proceeding”). This analysis has been applied in dissolution cases as well. See, e.g.,
McDonald v. McDonald, 4th Dist. Ross No. 95CA2122, 1996 WL 741403, *2 (Dec. 19, 1996),
citing State ex rel. Papp v. James, 69 Ohio St.3d 373, 632 N.E.2d 889 (1994) (finding the
dissolution matter a special proceeding using same analysis); Harness v. Harness, 143 Ohio
App.3d 669, 671, 673, 758 N.E.2d 793 (4th Dist.2001) (finding a custody proceeding after
dissolution to be a special proceeding). Accordingly, we find that the underlying action is a
Summary Applications after Judgment
R.C. 2505.02(B)(2) also permits an appeal from certain orders entered “upon
a summary application in an action after judgment.” The statute does not define this term,
“ ‘but it seems to fit situations * * * which arise after judgment and do not involve lengthy trial
court proceedings.’ ” State v. McBroom, 2015-Ohio-4719, 49 N.E.3d 785, ¶ 3 (2d Dist.),
quoting State v. Wilkinson, 2d Dist. Montgomery No. 18286, 2000 WL 1644135, *1-2 (Sept.
25, 2000). While “[t]he case law offers no helpful explanation of what constitutes a
‘summary application in an action after judgment’ under R.C. 2505.02(B)(2),” some
examples can be found. Painter & Pollis, Ohio Appellate Practice, Section 2:14 (Oct. 2021).
In a criminal case, a defendant’s “post-judgment motion to take a polygraph
exam is one made ‘upon a summary application in an action after judgment.’ ” State v.
Branham, 6th Dist. Huron No. H-95-066, 1995 WL 704100, *1 (Nov. 27, 1995).
Garnishment or collection proceedings after judgment have also been considered summary
applications. See State v. Horsley, 4th Dist. Jackson No. 18CA4, 2018-Ohio-4203, ¶ 7-8.
Likewise, “[a] post-judgment motion for attorney fees * * * is a summary application in an
action after judgment.” Bd. of Cty. Commrs. of Putnam Cty. v. Patrick Bros., 3rd Dist.
Putnam No. 12-18-11, 2019-Ohio-3722, ¶ 14, citing Troja v. Pleatman, 1st Dist. Hamilton
No. C-160447, 2016-Ohio-7683, ¶ 21. A QDRO issued after a divorce decree is a summary
application after judgment. Pearl v. Pearl, 2012-Ohio-4752, 980 N.E.2d 1095, ¶ 16-18 (2d
Dist.). Finally, “[o]rders issued upon summary application after judgment include * * * orders
denying relief from judgment under Civ. R. 60(B).” Sowald & Morganstern, Ohio Domestic
Relations Law, Section 32:3 (Dec. 2020), citing Colley.
This court routinely, and without comment, considers orders resolving postjudgment motions as orders entered on summary application after judgment, particularly in
domestic relations proceedings. See, e.g., Sullivan v. Sullivan, 2d Dist. Montgomery No.
28961, 2021-Ohio-1117 (considering the denial of a Civ.R. 60(B) motion); Bissell v. Bissell,
2d Dist. Montgomery No. 26855, 2016-Ohio-3086, ¶ 6-7 (considering the denial of a motion
for new trial and motion for Civ.R. 60(B) relief). Upon consideration of the question directly,
we hold that a Civ.R. 60(B) motion directed to a final decree of dissolution is a summary
application after judgment.
Affecting a Substantial Right
In addition to being a special-proceeding or summary-application order, to
satisfy R.C. 2505.02(B)(2), the order on appeal must involve a substantial right. 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). The denial of a motion to vacate involves a right to seek relief from
judgment, and is enforceable under a rule of procedure. See generally Gehm v. Timberline
Post & Frame, 112 Ohio St.3d 514, 2007-Ohio-607, 861 N.E.2d 519, ¶ 29 (“As a motion to
intervene is a right recognized by Civ.R. 24, intervention constitutes a substantial right under
The order must also affect the substantial right; “the mere existence or
implication of a substantial right in a case is insufficient.” Crown Srvs., Inc. v. Miami Valley
Paper Tube Co., 162 Ohio St.3d 564, 2020-Ohio-4409, 166 N.E.3d 1115, ¶ 16, citing Bell v.
Mt. Sinai Med. Ctr., 67 Ohio St.3d 60, 63, 616 N.E.2d 181 (1993). “An order affects a
substantial right ‘only if an immediate appeal is necessary to protect the right effectively.’ ”
Id., quoting Wilhelm-Kissinger v. Kissinger, 129 Ohio St.3d 90, 2011-Ohio-2317, 950 N.E.2d
516, ¶ 7. Or, said differently, “[a]n order affecting a substantial right is one that, if not
immediately appealable, would foreclose appropriate relief in the future.” State v. Zimpfer,
2d Dist. Montgomery No. 27705, 2018-Ohio-2430, ¶ 11, citing Bell v. Mt. Sinai Med. Ctr., 67
Ohio St.3d 60, 63, 616 N.E.2d 181 (1993).
This analysis generally looks at whether an immediate appeal is necessary or
whether the appealing party can wait until the action is fully resolved. See Thomasson at
¶ 24-30 (discussing cases and whether “a successful appeal after final judgment would * * *
provide an effective remedy”). Courts have historically focused on whether an appellant
can wait for final judgment in the case to appeal. This court has said:
For an order to affect a substantial right, the appellant must as a threshold
matter establish that vindication of that right on appeal after final judgment is
not available. Bell v. Mt. Sinai Med. Ctr. (1993), 67 Ohio St.3d 60, 616 N.E.2d
181. In other words, a substantial right is affected when, absent an immediate,
albeit arguably interlocutory appeal, the impact of the order upon the
appellant’s legal rights cannot effectively be examined by the appellate court
and appropriate relief granted if warranted. Id. at 63, 616 N.E.2d at 183-184.
State v. Chalender, 99 Ohio App.3d 4, 6-7, 649 N.E.2d 1254 (2d Dist.1994).
In the case before us, the final judgment has already been entered, so the
situation does not fit comfortably into this analysis, particular with respect to summaryapplication orders. In fact, a summary application after judgment is by definition occurring
after judgment. Asking whether a party must await final judgment to appeal therefore does
not make much sense.
This court is bound by the Supreme Court of Ohio’s holding in Colley that the
denial of a Civ.R. 60(B) motion is a final order. Final orders were then, and now, defined
by R.C. 2505.02. Both of the two potentially relevant divisions of that statute, (B)(1) and
(B)(2) require that the order affect a substantial right, which generally looks at whether an
immediate appeal is necessary to protect the right or whether an appellant must wait for final
judgment to appeal. Yet a Civ.R. 60(B) motion by definition is only available after final
judgment. Groza-Vance v. Vance, 162 Ohio App.3d 510, 2005-Ohio-3815, 834 N.E.2d 15,
¶ 52 (10th Dist.), citing Jarrett v. Dayton Osteopathic Hosp., Inc., 20 Ohio St.3d 77, 486
N.E.2d 99 (1985) (“Only final judgments are subject to vacation or modification pursuant to
Civ.R. 60(B)”). So, to both follow Colley and to read the final order statute in a manner that
avoids absurdity, this court has two apparent options. See State ex rel. Clay v. Cuyahoga
Cty. Med. Examiner’s Office, 152 Ohio St.3d 163, 2017-Ohio-8714, 94 N.E.3d 498, ¶ 24
(courts have a duty to construe statutes to avoid unreasonable or absurd results). Either the
court must read the “affecting a substantial right” phrase in R.C. 2505.02(B)(2) as applicable
only to special-proceeding orders, and not applicable to summary-application-afterjudgment orders, or the court must consider the test for evaluating whether a substantial
right is affected in a context not linked to awaiting final judgment.
We take the latter approach, which is more consistent with the Supreme
Court’s recent focus on protecting the appellant’s rights effectively. See, e.g., Crown Srvs.
at ¶ 16 (“An order affects a substantial right ‘only if an immediate appeal is necessary to
protect the right effectively’ ”).
We find that an immediate appeal is necessary here. We further find that it
would be inequitable and impracticable to make Anna wait until there are no matters pending
before the trial court before she can appeal the June 14 Judgment. In arguing that the June
14 Judgment is not final because other matters are pending in the dissolution case, Nathan
and Ariel suggest that Anna must wait to appeal it until all of those motions – and presumably
any new motions filed hereafter – are resolved. There is no way for this court, the trial court,
or the parties, to know when that will be. It is possible that litigation will continue between
the parties indefinitely, at least until the minor children are emancipated, child support is
entirely paid, and no other issues remain. Though certainly all involved hope that is not the
case, this court would expect that the currently pending motions, at least, will take some
time to resolve. Matters requiring court participation sometimes arise in divorce and
dissolution cases despite the goodwill and cooperation of the parties, and routinely arise
where such is lacking. Subjecting a party’s post-judgment right to appeal to the question of
whether the other party has sought relief in the trial court will inevitably cause delay and
invite gamesmanship. It could also discourage a party from seeking needed relief in the
first instance so that they can appeal, or force an unfair choice between seeking relief in the
trial court and appealing a previous adverse decision to the court of appeals. Therefore,
because there is no guarantee that the end of litigation between the parties is in sight, we
find that Anna need not wait until all matters are resolved to appeal the denial of her Civ.R.
In addition to the risk of protracted post-judgment litigation and resultant
uncertainty about when an appeal could ever be taken, the nature of the orders and motions
at issue in this case convinces us that an immediate appeal is necessary. In the order on
appeal, Anna sought to vacate the decree of dissolution that resolved the financial issues
between the parties and incorporated their agreements as to the four minor children.
Pending in the trial court case are Nathan’s motion alleging contempt and requesting a
modification of the parties’ shared parenting plan, and Anna’s motions to terminate shared
parenting and to name her residential parent, and to modify child support. These pending
matters are dependent upon whether, and may be moot if, the decree is vacated.
Moreover, Ariel, Nathan’s current spouse, seeks to protect her rights, should the decree
dissolving Anna and Nathan’s marriage be vacated. In terms of judicial economy and
otherwise, it appears that that all the parties’ rights would be better protected by allowing an
immediate appeal from the June 14 Judgment denying Anna’s motion to vacate the decree
Accordingly, we conclude that the June 14 Judgment affects Anna’s substantial
rights. It is therefore an order that satisfies R.C. 2505.02(B)(2).
Civ.R. 54(B) and Unresolved Post-Judgment Motions
The parties discuss in their filings whether Civ.R. 54(B) language that “there is
no just reason for delay” must have been added to the June 14 Judgment for it to be final.
Anna argues that there is no need for Civ.R. 54(B) language in the June 14 Judgment.
Nathan and Ariel argue that the absence of the Civ.R. 54(B) language “is not dispositive,”
but that certain unresolved and pending motions prevent the Order from being final.
Because this argument implicates Civ.R. 54(B), we consider these issues together.
“The applicability of Civ.R. 54(B) to postjudgment motions under R.C.
2505.02(B)(2) is a matter of some dispute among Ohio courts.” Nichols v. Durrani, 1st Dist.
Hamilton No. C-210224, 2021-Ohio-2973, ¶ 3. We take no position today on whether
Civ.R. 54(B) categorically applies to such orders, but find that it does not apply to the order
currently on appeal here.
The rule says:
When more than one claim for relief is presented in an action whether as a
claim, counterclaim, cross-claim, or third-party claim, and whether arising out
of the same or separate transactions, or when multiple parties are involved,
the court may enter final judgment as to one or more but fewer than all of the
claims or parties only upon an express determination that there is no just
reason for delay. In the absence of a determination that there is no just reason
for delay, any order or other form of decision, however designated, which
adjudicates fewer than all the claims or the rights and liabilities of fewer than
all the parties, shall not terminate the action as to any of the claims or parties,
and the order or other form of decision is subject to revision at any time before
the entry of judgment adjudicating all the claims and the rights and liabilities
of all the parties.
The case currently before us is not one in which the trial court entered partial
final judgment with respect to some but not all of the multiple “claims or parties” pending in
the case. “[T]he term ‘claim,’ as used in the context of Civ.R. 54(B), refers to a set of facts
that give rise to legal rights, not to the various legal theories of recovery that may be based
upon those facts.” LaMusga v. Summit Square Rehab, L.L.C., 2015-Ohio-5305, 43 N.E.3d
504, ¶ 31 (2d Dist.) (internal citations and quotations omitted). A claim might be presented
as a “claim, counterclaim, cross-claim, or third-party claim.” Civ.R. 54(B).
The single claim for relief in the underlying case was for dissolution of Anna
and Nathan’s marriage. That claim had already been fully resolved by the trial court.
While there were and are motions pending related to the resolution of that claim, the June
14 Judgment does not grant a partial final judgment as to some but not all of the claims or
parties. Thus, Civ.R. 54(B) does not apply, and its language was not necessary in the June
As noted above, Nathan and Ariel do not assert that Civ.R. 54(B) language
was required, but assert that the pending post-judgment motions prevent finality. As a
general proposition, “[i]f a trial court order leaves issues unresolved and contemplates
further action then the order is not a final, appealable order.” McCracken v. Lee, 10th Dist.
Franklin No. 19AP-236, 2020-Ohio-3125, ¶ 10, citing State ex rel. Keith v. McMonagle, 103
Ohio St.3d 430, 2004-Ohio-5580, ¶ 4. This proposition, which is a broad generalization of
the finality requirement, is subject to the specifics of the final order statute defining which
orders this court has jurisdiction to review. See In re D.H., 152 Ohio St.3d 310, 2018-Ohio17, 95 N.E.3d 389, ¶ 5 (“The final-order requirement comes from the Ohio Constitution,
which provides that courts of appeals ‘shall have such jurisdiction as may be provided by
law’ to review ‘final orders’ rendered by inferior courts. Ohio Constitution, Article IV, Section
3(B)(2). Jurisdiction is ‘provided by law’ primarily through two statutes,” R.C. 2501.02 and
Thus, while the general proposition informs discussions about the appealability
of a trial court order, it does not supplant the definitions in R.C. 2505.02. In our analysis
above, we have found that the June 14 Judgment is a final order under R.C. 2505.02(B)(2).
We disagree that the pending motions prevent the June 14 Judgment from being appealable
at this time for the following reasons.
First, this argument is not rooted in R.C. 2505.02. Some orders are final under
R.C. 2505.02 where claims or motions remain pending. This is particularly true with respect
to special proceedings, where that definition anticipates pending matters. This court
recently rejected an argument that an order entered in a special proceeding was not final
because matters remained pending:
We do not find this rationale particularly compelling under the circumstances.
The resolution of the entire matter is not required under the special proceeding
division of R.C. 2505.02(B)(2); such is required under R.C. 2505.02(B)(1).
“Pursuant to R.C. 2505.02(B)(2), the only requirement for finality in regard to
a ‘special proceeding’ judgment is that it must affect a substantial right of a
party to the action. Given the lack of any reference to ‘determining’ the case,
as is required under R.C. 2505.02(B)(1), it is evident that R.C. 2505.02(B)(2)
was intended to permit appeals from partial judgments which would only be
considered interlocutory orders in ‘non-special’ civil actions.” Guardianship &
Protective Servs., Inc. v. Setinsek, 11th Dist. Trumbull No. 2010-T-0099, 2011-
Ohio-6515, ¶ 23 (Wright, J., concurring); see also Painter & Pollis, Ohio
Appellate Practice, Section 2:15 (October 2020) (the standard for a special
proceeding order “creates opportunities to appeal in special proceedings from
orders that we normally think of as interlocutory, not final”).
In other words, it is not particularly relevant to the analysis under R.C.
2505.02(B)(2) if the order left matters unresolved. This division of the final
order statute anticipates an interlocutory appeal due to the substantial nature
of the right at issue and the “importance of an immediate appeal to vindicate
that right.” Id.
In re: R.S.H.-F., 2d Dist. Montgomery No. 29198, ¶ 19-20 (Decision and Entry, October 21,
Second, the general rule discussed in Colley and later cases is that the denial
of a Civ.R. 60(B) motion is itself a final order. Colley at paragraph one of the syllabus (“A
judgment overruling a Civ.R. 60(B) motion for relief from a default judgment is a final
appealable order”); Id. at 245 (“it is well settled that a judgment denying a motion for relief
from judgment filed pursuant to Civ.R. 60(B) is itself a final appealable order”). The rule
has not been articulated to say that the denial of a Civ.R. 60(B) motion is a final order, but
only so long as no other post-judgment motions are pending. This is essentially Nathan
and Ariel’s position, and they cite several cases in support of it.
In Carpenter v. Carpenter, 12th Dist. Butler No. CA2013-05-083, 2013-Ohio4980, the trial court was working toward resolving a father’s custody complaint in domestic
relations court. Id. at ¶ 2. The court resolved part of father’s claim by designating mother
the residential parent and legal custodian. Id. at ¶ 4. But the rest of the claim was
unresolved, which the appellate court found prevented the order from being final:
While the entry declared mother residential parent and legal custodian, the
case was remanded to the magistrate to calculate child support, determine
health insurance and payment of medical expenses, and properly allocate the
tax exemption for daughter. As noted above, this court and others have
determined that where the amount of child support is undetermined, there is
not a final appealable order. The determination of child support and custody
are hand in glove; trial courts cannot determine child custody without also
issuing an award of support. See R.C. 3109.04(A); R.C. 3105.21(A). The order
does not dispose of the whole case or a separate and distinct part of it while
leaving nothing for further determination.
(Emphasis added.) Id. at ¶ 12. Thus, in Carpenter, the original claim for custody was not
yet fully resolved. The case is distinguishable.
In Wright v. Wright, 10th Dist. Franklin No. 07AP-595, 2008-Ohio-544, the
court of appeals found an order overruling a post-dissolution motion seeking to declare a
judgment entry void ab initio not final because it did not resolve a request for attorneys’ fees
made in response to the motion. Id. at ¶ 9. The trial court had deferred consideration of
the request for attorney fees because there was another, previously-filed contempt motion
pending, and the attorney fees request was apparently dependent upon, or at least relevant
to, the resolution of that contempt motion. Id. at ¶ 4.
Notably, the court in Wright did not find that the pending contempt motion
prevented the order from being considered final. Rather, it was the request for attorney
fees, which was made in a memorandum responding to the resolved motion, that prevented
finality. Id. at ¶ 8. In other words, the issue was not that the other matter (the contempt
motion) was unresolved, but that this matter (the void-ab-initio motion) was not quite done.
Thus, the order on this matter was not final. Wright is distinguishable as well.
We note also that requests for attorney fees have sometimes been treated as
“claims” to which Civ.R. 54(B) applies pursuant to the Supreme Court of Ohio’s decision in
Internatl. Brotherhood of Elec. Workers, Local Union No. 8 v. Vaughn Industries, L.L.C., 116
Ohio St.3d 335, 2007-Ohio-6439, paragraph two of the syllabus. See Jack Maxton
Chevrolet, Inc. v. Hanbali, 10th Dist. Franklin No. 15AP-816, 2016-Ohio-1244, ¶ 9
(discussing cases); Evanston Acquisitions, LLC v. STAG II Dayton, LLC, 2d Dist.
Montgomery No. 27480, 2017-Ohio-5755, ¶ 7-8. This is another distinction between this
case and Wright.
Finally, Nathan and Ariel rely on Matter of Dissolution of Marriage of Smith,
11th Dist. Portage No. 2016-P-0028, 2017-Ohio-433. In Smith, the court of appeals found
a post-dissolution order dismissing some, but not all, of the motions pending in the case was
not a final appealable order. Some of those motions were motions to vacate pursuant to
Civ.R. 60(B). The court agreed that the order was a final order under R.C. 2505.02 because
it dismissed Civ.R. 60(B) motions. Id. at ¶ 5. However, the majority of the court held that
Civ.R. 54(B) language was required, and not present, rendering the order not appealable at
that time. Id. at ¶ 6-9.
The dissent in Smith challenged this finding, saying: “The majority does not
cite to any case that suggests an otherwise appealable order denying a Civ.R. 60(B) motion
is no longer appealable if there are post-decree motions pending to enforce or modify a final
order of the domestic court. Because the Civ.R. 60(B) order is appealable on its own, it does
not need Civ.R. 54(B) language to make it appealable.” Id. at ¶ 15 (Cannon, J., dissenting).
It does not appear that the majority’s position in Smith has been widely
adopted. We have found no cases citing it. We also have not seen wide acceptance for
the proposition underlying Smith’s decision: that Civ.R. 54(B) (the rule concerning the entry
of judgment) applies to decisions on Civ.R. 60(B) motions (the rule concerning relief from
judgment). Other than the majority opinion in Smith, we have not found a case directly
addressing the issue.
In contrast, the validity of the majority’s position has been questioned. For
example, in Painter & Pollis’ Ohio Appellate Practice, the authors note that:
when multiple motions pend, some courts hold by analogy that there is no final
order until all the motions are decided; that analogy seems questionable,
however, given that motions are not “claims,” and the orders in question seem
to pass the finality test of R.C. 2505.02(B)(2), as to which Rule 54(B) should
Section 2.8 (Oct. 2021). The internal footnote cites Smith, among other cases.
We agree with the dissent’s position in Smith, as discussed in the section
above. Motions filed in a case, particularly those filed after judgment, are not “claims” to
which Civ.R. 54(B) applies. Thus, because we have held that Civ.R. 54(B) language is not
required, we see little support for the majority’s position in Smith and are not convinced to
follow it. See also Bissell, 2d Dist. Montgomery No. 26855, 2016-Ohio-3086, ¶ 6 (reviewing
a Civ.R. 60(B) motion where a separate motion to set aside was pending but presumably
overruled, without requiring Civ.R. 54(B) language).
Instead, we hold that an order denying a Civ.R. 60(B) motion, entered in a fully
resolved case after final judgment, is itself a final order under R.C. 2505.02(B)(2), and is
appealable without the necessity of Civ.R. 54(B) language, even where other post-judgment
motions may be pending. Because that is the situation before us, we find that the June 14
Judgment is a final appealable order.
Anna’s Motion to Dismiss Ariel from this Appeal
Anna argues in her response to the motion to dismiss that Ariel has no standing
to participate in this appeal. Ariel counters that she was granted leave to intervene in the
trial court case, and thus is properly an appellee here.
We overrule at this time the motion to dismiss Ariel as an appellee. She may
participate in this appeal as an appellee because she is an intervenor in the case below.
Anna may raise any argument concerning Ariel’s standing in her brief.
Outcome: Nathan and Ariel’s motion to dismiss for lack of a final order is OVERRULED.
The June 14 Judgment is a final order under R.C. 2505.02(B)(2) that this court has
jurisdiction to review, even in the absence of Civ.R. 54(B) language. Anna’s motion to dismiss Ariel as an appellee is OVERRULED. This matter shall proceed.