Taphorn v. Caudill-Taphorn , 2014 Ohio 587 ( 2014 )

[Cite as Taphorn v. Caudill-Taphorn, 2014-Ohio-587.]
COURT OF APPEALS
KNOX COUNTY, OHIO
FIFTH APPELLATE DISTRICT
JOHN MATTHEW TAPHORN : JUDGES:
:
: Hon. William B. Hoffman, P.J.
Plaintiff-Appellee : Hon. Patricia A. Delaney, J.
: Hon. Craig R. Baldwin, J.
-vs- :
: Case No. 13CA18
:
ERIN K. CAUDILL-TAPHORN NKA :
BARLAY :
:
:
Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Knox County Court of
Common Pleas, Domestic Relations
Division, Case No. 09 DC 03-0071
JUDGMENT: DISMISSED
DATE OF JUDGMENT ENTRY: February 10, 2014
APPEARANCES:
For Plaintiff-Appellee: For Defendant-Appellant:
No Appellate Brief Filed ERIN K. CAUDILL TAPHORN NKA
ERIC K. BARLAY, pro se
5602 A Congressional Place
Hilliard, OH 43026
Knox County, Case No. 13CA18 2
Delaney, J.
{¶1} Defendant-Appellant Erin K. Caudill Taphorn nka Erin K. Barlay appeals
the June 6, 2013 judgment entry of the Knox County Court of Common Pleas, Domestic
Relations Division.
FACTS AND PROCEDURAL HISTORY
{¶2} John Taphorn and Defendant-Appellant Erin K. Caudill Taphorn nka Erin
K. Barlay were divorced in 2010. During the divorce, the trial court appointed Troy A.
Reed as Guardian ad Litem for the parties’ minor children.
{¶3} John Taphorn filed a Motion for Reallocation of Parental Rights and
Responsibilities on February 13, 2013. Taphorn also filed a Motion for Appointment of
Guardian ad Litem. Barlay opposed the motion for reallocation of parental rights. She
also opposed the motion for appointment of the Guardian ad Litem. Barlay opposed the
motion for Guardian ad Litem on the basis that it was not in the best interests of the
children. In the alternative, Barlay requested the trial court appoint a Guardian ad Litem
other than Troy A. Reed.
{¶4} On March 20, 2013, the trial court appointed Troy A. Reed as the
Guardian ad Litem. The trial court ordered Taphorn to deposit $740.00 and Barlay to
deposit $260.00 in the Guardian ad Litem’s trust account. The deposit was to be paid
no later than April 4, 2013. After the initial deposit, the trial court ordered Taphorn to
pay 74% and Barlay to pay 26% of the Guardian ad Litem fees.
{¶5} Barlay filed a motion to remove Troy A. Reed as Guardian ad Litem.
Barlay wrote a letter to the judge requesting Reed’s removal as Guardian ad Litem. On
Knox County, Case No. 13CA18 3
April 26, 2013, the trial court denied Barlay’s motion to remove Reed as Guardian ad
Litem.
{¶6} On May 3, 2013, Reed filed a motion to withdraw as Guardian ad Litem.
He simultaneously filed an application for approval of Guardian ad Litem fees. In the
application, Reed requested the trial court order Barlay to pay the total accrued
Guardian ad Litem fees based on Barlay’s motions to remove Reed as the Guardian ad
Litem. Reed noted Barlay failed to pay her deposit as ordered by the trial court on
March 20, 2013. The itemized statement from March 20, 2013 through April 28, 2013
reflected GAL fees in the amount of $840.00. Barlay filed a response to the motion to
withdraw and application for fees.
{¶7} The trial court granted Reed’s motion to withdraw as Guardian ad Litem
on May 6, 2013. On June 6, 2013, the trial court ordered Barlay to pay the Guardian ad
Litem fees in the amount of $840.00. Barlay was ordered to pay the fees within 30 days
of the date of the judgment entry. The trial court appointed a new Guardian ad Litem in
a separate entry.
{¶8} On July 8, 2013, Barlay filed a notice of appeal of the June 6, 2013
judgment entry.
{¶9} On October 9, 2013, the trial court denied Taphorn’s motion for
reallocation of parental rights and responsibilities.
ASSIGNMENTS OF ERROR
{¶10} Barlay raises four Assignments of Error:
{¶11} “I. THE TRIAL COURT ERRED IN ALLOWING APPELLEE’S (AS
DEFINED BELOW) FEES.
Knox County, Case No. 13CA18 4
{¶12} “II. THE TRIAL COURT ERRED IN ALLOWING THE PORTION OF
APPELLEE’S FEES THAT ACTUALLY REPRESENT ATTORNEY WORK BY HIM ON
HIS OWN BEHALF.
{¶13} “III. THE TRIAL COURT ERRED IN ORDERING APPELLANT (AS
DEFINED BELOW) HERSELF TO PAY THE FULL AMOUNT OF APPELLEE’S FEES.
{¶14} “IV. THE TRIAL COURT ERRED IN DENYING APPELLANT’S
REQUEST, IN HER OBJECTION TO APPELLEE’S FEES, TO HOLD IN ABEYANCE
UNTIL THE UNDERLYING MOTION FOR REALLOCATION OF PARENTAL RIGHTS
AND RESPONSIBILITIES IS FULLY AND FINALLY RESOLVED.”
ANALYSIS
{¶15} The Ohio Rules of Civil Procedure provide, “[w]hen it is essential to protect
the interests of a child, the court may * * * appoint a guardian ad litem * * * for the child
and tax the costs.” Civ.R. 75(B)(2). Barlay argues in her appeal that it was error for the
trial court to order Barlay to pay 100 % of the Guardian ad Litem fees within 30 days of
the date of the order.
Final Appealable Order
{¶16} Before we address the merits of Barlay’s appeal, we first review the issue
of whether the judgment entry ordering Barlay to pay $840.00 in Guardian ad Litem fees
within 30 days of the date of the order constitutes a final appealable order. A “final
order” includes “an order that affects a substantial right made in a special proceeding or
upon a summary application in an action after judgment.” R.C. 2505.02(B)(2). A
“special proceeding” is defined as “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.”
Knox County, Case No. 13CA18 5
R.C. 2505.02(A)(2). This matter arose out a motion for reallocation of parental rights
after the parties’ divorce. Ohio courts have held that a divorce proceeding, including
any ancillary proceeding on custody-related claims, is a “special * * * proceeding” for
purposes of R.C. 2505.02. Prakash v. Prakash, 181 Ohio App.3d 584, 2009-Ohio-1324,
910 N.E.2d 30, ¶ 9 (10th Dist.) citing State ex rel. Papp v. James (1994), 69 Ohio St.3d
373, 379, 632 N.E.2d 889, citing Dansby v. Dansby, 165 Ohio St. 112, 113, 133 N.E.2d
358 (1956), and In re Murray, 52 Ohio St.3d 155, 161, 556 N.E.2d 1169 (1990).
{¶17} A “substantial right” is a right that “a statute, the common law, or a rule of
procedure entitles a person to enforce or protect.” R.C. 2505.02(A)(1). “An order which
affects a substantial right has been perceived to be one which, if not immediately
appealable, would foreclose appropriate relief in the future.” Bell v. Mt. Sinai Med. Ctr.,
67 Ohio St.3d 60, 63, 616 N.E.2d 181 (1993). For Barlay to prevail in asserting the
June 6, 2013 judgment entry affects a substantial right she “must demonstrate that in
the absence of immediate review of the order they will be denied effective relief in the
future.” Id.{¶18} Taphorn’s motion for reallocation of parental rights and responsibilities
gave rise to the GAL’s motion to withdraw and application for fees. At the time Barlay
filed her appeal of the June 6, 2013 judgment entry ordering her to pay the GAL fees,
there was no final decision by the trial court on Taphorn’s motion for reallocation of
parental rights. This Court has held that an order to pay GAL fees, without a final
decision as to custody, is an interlocutory order and is not final and appealable. See
Smith v. Quigg, 5th Dist. Fairfield Nos. 05-CA-61, 05-CA-62, 05-CA-79, 2006-Ohio-
1670, ¶ 10; Rose v. Rose, 5th Dist. Richland No. 2008 CA 0065, 2009-Ohio-1479, ¶ 13,
Knox County, Case No. 13CA18 6
FN. 1. See also Davis v. Lewis, 10th Dist. Franklin No. 99AP-814, 2000 WL 1808291(Dec. 12, 2000).
{¶19} The Eleventh District Court of Appeals has held a judgment entry ordering
the parties to pay GAL fees is a final appealable order. In Jackson v. Herron, 11th Dist.
Lake No. 2004-L-045, 2005-Ohio-4039, the court held a judgment ordering the parties
to pay GAL fees was a final appealable order. The underlying matter in Jackson was an
ongoing custody dispute between the parties. The trial court appointed a Guardian ad
Litem and ordered the parties to pay GAL fees. The mother objected, arguing she was
indigent and requested the GAL be appointed at public expense. The trial court denied
the motion. Id. at ¶ 2-5. The mother appealed. The court found the order to pay GAL
fees was a final appealable order because the order, if not immediately appealable,
would not afford the mother appropriate relief in the future. Id. at ¶ 8. In making its
decision, the court noted the ongoing nature of the proceedings. The court found the
litigation over the child’s custody would potentially continue until the child reached the
age of majority and if not immediately appealable, the issue presented would be over
eight years old. Id.
{¶20} The Eleventh District Court of Appeals relied on Jackson v. Herron in
Bayus v. Bayus, 11th Dist. Trumball No. 2011-T-0062, 2012-Ohio-1462, to find a
judgment ordering the parties to pay GAL fees was a final appealable order. In that
case, the appellee filed a post-decree motion to terminate a shared parenting plan. A
GAL was appointed for the child. The parties settled their dispute over the shared
parenting plan and appellee withdrew her motion to terminate the shared parenting
plan. The GAL filed a motion for final GAL fees and the trial court granted the motion,
Knox County, Case No. 13CA18 7
ordering the appellant to pay the remaining GAL fees because he did not pay the initial
deposit. The appellant appealed the decision. On appeal, the GAL argued the
judgment ordering the parties to pay GAL fees was not a final appealable order. The
court rejected the argument, relying upon its decision in Jackson v. Herron that an order
to pay GAL fees was a final and appealable order.
{¶21} We find that Bayus can be differentiated from Jackson and is more akin to
the line of cases on this issue in the Fifth District. In Bayus, there was a final decision
as to custody based on the settlement of the dispute over the shared parenting plan and
appellee’s withdrawal of her motion to terminate the shared parenting plan. The final
decision as to custody rendered the decision a final and appealable order. The facts of
Jackson are different from Bayus and the present case. In Jackson, there was an
ongoing custody dispute that, in the court’s opinion, would not resolve until the child’s
age of majority. GAL fees would continue to accrue during the pendency of that case.
If it were not immediately determined whether the trial court should have considered the
mother’s indigency, the GAL fees would accrue for years.
{¶22} The factual scenario in the present case is not comparable to the facts in
Jackson. In the case sub judice, Troy A. Reed moved to withdraw from the case as the
Guardian ad Litem and requested the trial court order Barlay to pay his accrued GAL
fees. The trial court granted the motion to withdraw and ordered Barlay to pay 100% of
the fees based on Barlay’s objection to the GAL and motions for his removal. While the
custody issues in this case may continue, the nature of the trial court’s decision as to
the GAL fees of Troy A. Reed was interlocutory.
Knox County, Case No. 13CA18 8
{¶23} Barlay has avenues to challenge the terms of the June 6, 2013 order.
First, she can appeal the order after the trial court makes its decision on the motion for
reallocation of parental rights. Second, if a non-appealable interlocutory order results in
the trial court finding Barlay in contempt, the propriety of such an order is subject to
review by the appellate court on appeal of the contempt finding. Rose v. Rose, 5th Dist.
Richland No. 2008 CA 0065, 2009-Ohio-1479, ¶ 13, FN. 1.
{¶24} Accordingly, we find the June 6, 2013 judgment entry is not a final and
appealable order. This court is without jurisdiction to consider the merits of the appeal.
CONCLUSION
{¶25} The appeal of the June 6, 2013 judgment entry is dismissed.
By: Delaney, J.,
Hoffman, P.J. and
Baldwin, J., concur.