In re P.K. ( 2022 )


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  • [Cite as In re P.K., 
    2022-Ohio-1630
    .]
    IN THE COURT OF APPEALS
    TWELFTH APPELLATE DISTRICT OF OHIO
    CLERMONT COUNTY
    IN RE:                                            :      CASE NO. CA2021-06-032
    P.K.                                     :              OPINION
    .                                                                 5/16/2022
    :
    :
    :
    :
    APPEAL FROM PREBLE COUNTY COURT OF COMMON PLEAS
    JUVENILE DIVISION
    Case No. 16 JG 22900
    Stagnaro Hannigan Koop Co., LPA, and Michaela N. Stagnaro, for appellant.
    McCaslin, Imbus & McCaslin, LPA, and Christina S. Yager, for appellee.
    M. POWELL, P.J.
    {¶ 1} Appellant ("Father") appeals a decision of the Clermont County Court of
    Common Pleas, Juvenile Division, reiterating its original ruling that a shared parenting plan
    signed by the parties and filed with the juvenile court was not adopted as a court order.
    {¶ 2} Father and appellee ("Mother") are the parents of a teenage child. The parties
    were never married but lived together until 2016. On May 3, 2016, Father filed a complaint
    for custody of the child. Subsequently, each party filed a proposed shared parenting plan.
    Clermont CA2021-06-032
    On January 31, 2017, a magistrate issued a decision addressing shared parenting and
    setting forth a parenting schedule. Father filed objections to the magistrate's decision. On
    October 25, 2017, the juvenile court issued a decision and judgment entry on Father's
    objections (the "October 25, 2017 order"), adopting Father's proposed shared parenting
    plan with changes set forth in the magistrate's decision. The juvenile court ordered Father
    to "submit a revised shared parenting plan to the Court in accordance with the stipulations
    and agreements of the parties, the Magistrate's Decision, and the decision rendered herein.
    The revised plan shall be submitted for the Court's approval by November 17, 2017."
    {¶ 3} On November 17, 2017, counsel for Father and Mother jointly filed a revised
    shared parenting plan (the "November 2017 SPP") with the juvenile court. The November
    2017 SPP was signed by both parties and their counsel.           The juvenile court never
    journalized a final shared parenting decree which incorporated the November 2017 SPP.
    {¶ 4} In December 2017, Mother filed a contempt motion against Father alleging he
    had violated the November 2017 SPP. At a March 2018 hearing on the motion, the parties
    and the juvenile court proceeded as though the November 2017 SPP was the parenting
    plan in effect. On March 26, 2018, the juvenile court found that Father did not violate the
    November 2017 SPP and was therefore not in contempt.
    {¶ 5} Between May 2018 and March 2019, Father and Mother filed multiple
    contempt motions against one another, alleging violations of the November 2017 SPP. On
    March 29, 2019, the juvenile court issued an entry stating, "The Court's Order of October
    25, 2017 shall be the parenting time order that will be followed" at an upcoming contempt
    hearing on June 14, 2019. Father moved to terminate the November 2017 SPP.
    {¶ 6} During the June 14, 2019 contempt hearing, an issue arose as to whether the
    November 2017 SPP was effective; the hearing was continued for the juvenile court to make
    a determination. Father subsequently filed a brief, asking the juvenile court to recognize
    -2-
    Clermont CA2021-06-032
    the validity and enforceability of the November 2017 SPP. Mother moved to terminate
    shared parenting and for sole custody of the child.
    {¶ 7} On August 27, 2019, the juvenile court issued a judgment entry (the "August
    2019 judgment entry") rejecting Father's argument that the November 2017 SPP was the
    order governing parental rights and responsibilities:
    The court having reviewed the file and the arguments of counsel
    finds that the order of October 25, 2017 is the last journalized
    order of this court. [Father] argues * * * that a proposed but
    never signed or journalized entry submitted on November 17,
    2017 should control. The court does not agree with this position.
    IT IS THEREFORE ORDERED that the court's order of October
    25, 2017 is and will continue to be the point of reference for this
    matter until further order[s] are rendered."
    {¶ 8} In June 2020, Father moved the juvenile court to reconsider its August 2019
    judgment entry and for an evidentiary hearing on the matter. An evidentiary hearing on
    Father's motion for reconsideration was held in March 2021. On May 28, 2021, the juvenile
    court issued a judgment entry (the "May 2021 judgment entry") upholding its August 2019
    judgment entry and reiterating that the court's October 25, 2017 order, not the November
    2017 SPP, was the order governing parental rights and responsibilities:
    The issue before the court is central to the multiple allegations
    of contempt of court which have been filed regarding the
    parenting time schedule submitted to the court in November
    2017 but never journalized. It is clear that both parties at some
    point thought that parenting plan was the order of the court, but
    it never was. The court speaks through its journal and the plan
    was not journalized. In fact, the court has previously ruled on
    this matter, finding that the parenting plan that now is in effect is
    the one from October 2017, not the one Father wishes the court
    to enforce. That is still the view of this court.
    [I]t is not possible to be held in contempt of a court order that
    does not exist. The court finds, again, that the proposed shared
    parenting plan was not a court order and that therefore whoever
    is alleged to be in contempt of it may have departed from an
    agreement between the parties but not a court order.
    -3-
    Clermont CA2021-06-032
    {¶ 9} Father now appeals, raising one assignment of error:
    {¶ 10} THE TRIAL COURT ERRED AS A MATTER OF LAW IN DETERMINING
    THAT THE REVISED SHARED PARENTING PLAN, FILED ON NOVEMBER 17, 2017,
    WAS NOT A VALID ENFORCEABLE ORDER OF THE COURT.
    {¶ 11} Father argues the juvenile court erred in finding that the November 2017 SPP
    is not a valid enforceable order of the court. Father asserts that although the juvenile court
    never journalized the November 2017 SPP, it nevertheless approved and adopted it as a
    journalized court order by citing the November 2017 SPP and interpreting its language
    during the March 2018 contempt hearing and in its March 26, 2018 judgment entry.
    {¶ 12} We find we lack jurisdiction to address the merits of Father's assignment of
    error.
    {¶ 13} It is well established that a motion to reconsider a final judgment in the trial
    court is a nullity not contemplated by the Ohio Civil Rules. Smith v. Smith, 12th Dist.
    Madison No. CA2018-02-004, 
    2018-Ohio-4179
    , ¶ 27. Moreover, a trial court's judgment
    entered upon a motion for reconsideration is also a nullity and a party cannot appeal from
    such a judgment. Genhart v. David, 7th Dist. Mahoning No. 10 MA 144, 
    2011-Ohio-6732
    ,
    ¶ 12; Wilcox v. Wilcox, 5th Dist. Licking No. 17-CA-90, 
    2018-Ohio-3642
    , ¶ 17.
    {¶ 14} The threshold question is whether the juvenile court's August 2019 judgment
    entry was a final appealable order. R.C. 2505.02 sets forth several types of final appealable
    orders.    As pertinent here, R.C. 2505.02(B)(2) provides that an "order that affects a
    substantial right made in a special proceeding" is a final appealable order.           Wilhem-
    Kissinger v. Kissinger, 
    129 Ohio St.3d 90
    , 
    2011-Ohio-2317
    , ¶ 5. 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). "Proceedings in the
    juvenile division, including parentage actions, are special statutory proceedings[.]" State
    -4-
    Clermont CA2021-06-032
    ex rel. Fowler v. Smith, 
    68 Ohio St.3d 357
    , 360, 
    1994-Ohio-302
    ; In re T.M., 12th Dist.
    Madison Nos. CA2006-01-001 and CA2006-01-004, 
    2006-Ohio-6548
    , ¶ 16; Genhart at ¶
    13. A "substantial right" is a legal right enforced and protected by law. In re T.M. at ¶ 17.
    "[P]arental custody of a child is an important legal right protected by law and, thus, comes
    within the purview of a 'substantial right' for purposes of applying R.C. 2505.02." In re
    Murray, 
    52 Ohio St.3d 155
    , 157 (1990).
    {¶ 15} The juvenile court's August 2019 judgment entry determined that the court's
    October 25, 2017 order was the last journalized order of the court and was therefore the
    order of the court governing the allocation of parental rights and responsibilities. As such,
    the juvenile court's August 2019 judgment entry was an order made in a special proceeding
    that had a conclusive effect on the substantial rights of the parties. The August 2019
    judgment entry was therefore a final appealable order. It follows that Father's motion to
    reconsider the August 2019 judgment entry was a nullity and the juvenile court was without
    power to entertain it. Smith, 
    2018-Ohio-4179
     at ¶ 27. Moreover, because Father appealed
    the juvenile court's denial of his motion for reconsideration, which is a nullity, we lack
    jurisdiction to entertain Father's appeal. Wilcox, 
    2018-Ohio-3642
     at ¶ 18.
    {¶ 16} Appeal dismissed.
    HENDRICKSON and PIPER, JJ., concur.
    -5-
    

Document Info

Docket Number: CA2021-06-032

Judges: M. Powell

Filed Date: 5/16/2022

Precedential Status: Precedential

Modified Date: 5/16/2022