Allen v. Allen

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[Cite as Allen v. Allen, 2012-Ohio-4392.] COURT OF APPEALS MUSKINGUM COUNTY, OHIO FIFTH APPELLATE DISTRICT LISA LEIGH ALLEN Plaintiff-Appellee JUDGES: Hon. Patricia A. Delaney, P.J. Hon. William B. Hoffman, J. Hon. Sheila G. Farmer, J. -vsCase No. CT2012-0008 JOHN DALE ALLEN Defendant-Appellant OPINION CHARACTER OF PROCEEDING: Appeal from the Muskingum County Common Pleas Court, Domestic Relations Division, Case No. DB2011-0015 JUDGMENT: Dismissed DATE OF JUDGMENT ENTRY: September 21, 2012 APPEARANCES: For Appellee For Appellant SCOTT T. HILLS Hillis & Small, LLC 825 Adair Avenue Zanesville, OH 43701 JOHN DALE ALLEN #A614204 C/o HCF P.O. Box 59 Nelsonville, OH 45764 Muskingum County, Case No. CT2012-0008 2 Hoffman, J. {¶1} Defendant-appellant John D. Allen ( Husband ) appeals the February 7, 2012 Divorce Decree entered by the Muskingum County Court of Common Pleas, Domestic Relations Division. Plaintiff-appellee is Lisa L. Allen ( Wife ). STATEMENT OF THE CASE AND FACTS {¶2} On September 12, 2011, Wife filed a Complaint for Divorce in the Muskingum County Court of Common Pleas, Domestic Relations Division. Wife asserted gross neglect of duty and extreme cruelty as well as incompatibility as grounds. {¶3} Husband filed an Answer and Counterclaim on September 27, 2011. Accompanying the pleadings was Husband s hand-written Poverty Affidavit requesting the trial court waive the pre-payment of the fees and costs associated with the filing of his Answer and Counterclaim. Via Judgment Entry filed September 28, 2011, the trial court ordered Husband to file a properly completed Financial Disclosure Affidavit or pay the required deposit within fourteen days. Husband filed the appropriate documentation on October 6, 2011. {¶4} On November 18, 2011, Wife filed a Motion for Leave to File Amended Complaint Instanter, which the trial court granted. The Amended Complaint included Husband s incarceration as grounds for the divorce. Husband filed an Answer and Counterclaim on December 7, 2011. {¶5} The trial court conducted a final hearing on January 9, 2012. The trial court issued a Divorce Decree on February 7, 2012. Muskingum County, Case No. CT2012-0008 3 {¶6} It is from this judgment entry Husband appeals, assigning as error: {¶7} I. DEFENDANT WAS DENIED DUE PROCESS. {¶8} II. DEFENDANT WAS DENIED EQUAL PROTECTION UNDER THE {¶9} As a preliminary matter, we must first determine whether the order under LAW. review is a final appealable order. If an order is not final and appealable, then we have no jurisdiction to review the matter and must dismiss it. See Gen. Acc. Ins. Co. v. Ins. Co. of N. Am. (1989), 44 Ohio St.3d 17, 20, 540 N.E.2d 266. In the event the parties to the appeal do not raise this jurisdictional issue, we must raise it sua sponte. See Chef Italiano Corp. v. Kent State Univ. (1989), 44 Ohio St.3d 86, 541 N .E.2d 64, syllabus; Whitaker-Merrell v. Carl M. Geupel Const. Co. (1972), 29 Ohio St.2d 184, 186, 58 O.O.2d 399, 280 N.E.2d 922. {¶10} Upon review of the record in this matter, we decline to address the merits of Husband s arguments at this time as we find the order being appealed is not a final appealable order. The trial court s February 7, 2012 Divorce Decree does not dispose of Husband s Counterclaim, nor did it include a Civ.R. 54(B) language. Muskingum County, Case No. CT2012-0008 4 {¶11} Because a final appealable order does not exist in this case, we dismiss this appeal for lack of jurisdiction. By: Hoffman, J. Delaney, P.J. and Gwin, J. concur s/ William B. Hoffman _________________ HON. WILLIAM B. HOFFMAN s/ Patricia A. Delaney _________________ HON. PATRICIA A. DELANEY s/ Sheila G. Farmer __________________ HON. SHEILA G. FARMER Muskingum County, Case No. CT2012-0008 5 IN THE COURT OF APPEALS FOR MUSKINGUM COUNTY, OHIO FIFTH APPELLATE DISTRICT LISA LEIGH ALLEN Plaintiff-Appellee -vsJOHN DALE ALLEN Defendant-Appellant : : : : : : : : : JUDGMENT ENTRY Case No. CT2012-0008 For the reason stated in our accompanying Opinion, this appeal is ordered dismissed. Costs to Appellant. s/ William B. Hoffman _________________ HON. WILLIAM B. HOFFMAN s/ Patricia A. Delaney _________________ HON. PATRICIA A. DELANEY s/ Sheila G. Farmer___________________ HON. SHEILA G. FARMER

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