[Cite as Davis v. Boone, 2011-Ohio-6442.]

Court of Appeals of Ohio

EIGHTH APPELLATE DISTRICT 

COUNTY OF CUYAHOGA 

JOURNAL ENTRY AND OPINION 

No. 96812

 

MONEEKE DAVIS

PLAINTIFF

 vs. 

 

DAVID BOONE 

DEFENDANT

JUDGMENT: 

DISMISSED

Civil Appeal from the 

Cuyahoga County Court of Common Pleas 

Domestic Relations Division 

Case No. D-263962 

BEFORE: Keough, J., Jones, P.J., and S. Gallagher, J. 

RELEASED AND JOURNALIZED: December 15, 2011 
ATTORNEYS FOR APPELLANT 

For Cuyahoga Support Enforcement Agency

William D. Mason 

Cuyahoga County Prosecutor 

Stephanie L. Lingle 

Latina Bailey 

Assistant Prosecuting Attorneys 

P.O. Box 93923 

Cleveland, OH 44101-5923 

ATTORNEYS FOR APPELLEES 

For Moneeke Davis 

Moneeke Davis, pro se 

2137 West 81st Street 

Cleveland, OH 44102 

For David Boone 

Robert L. Tobik 

Cuyahoga County Public Defender

John T. Martin 

Assistant Public Defender 

310 Lakeside Avenue 

Suite 400 

Cleveland, OH 44113 

KATHLEEN ANN KEOUGH, J.: 

{¶ 1} The Cuyahoga Support Enforcement Agency (“CSEA”) appeals from the 

trial court’s judgment adopting the magistrate’s decision that granted the motion of 

defendant David Boone for genetic testing. For the reasons that follow, we dismiss for 
lack of a final, appealable order. 

I 

{¶ 2} Moneeke Boone, n.k.a. Moneeke Davis, and David Boone were married on 

January 12, 1994. Davis subsequently filed for divorce. Despite service of the 

complaint, Boone did not answer or otherwise plead, and on February 18, 1999, the 

Domestic Relations Division of the common pleas court issued a decree granting the 

divorce by default. 

{¶ 3} The divorce decree stated that “two children was/were born as issue of the 

marriage” and listed those children as a daughter, Davita Davis, and a son, David Boone, 

Jr. The divorce decree listed Davita’s date of birth as October 23, 1992, and David 

Boone, Jr.’s date of birth as December 3, 1993; thus, both children were born before the 

parties were married. The court ordered Boone to pay monthly child support of $262.26 

and necessary medical and dental expenses. 

{¶ 4} Boone made no payments, and on April 6, 2005, CSEA filed a motion to 

intervene and to show cause as to why Boone should not be held in contempt for failure 

to comply with the court’s order. The record reflects that a hearing on CSEA’s motions 

was continued three times so Boone could obtain genetic testing. A hearing 

commenced before the magistrate on November 1, 2005. Counsel for CSEA was 

present, but despite service and notification, neither Davis nor Boone appeared for the 

hearing. The magistrate’s decision, filed on November 8, 2005, found that as of October 

31, 2005, Boone was $20,023.70 in arrears. The magistrate found Boone in contempt 
and sentenced him to 30 days in jail or, in the alternative, 200 hours of community 

service. The trial court subsequently issued a judgment adopting the magistrate’s 

decision. 

{¶ 5} Boone made no payments after the 2005 proceedings, and on May 11, 2010, 

CSEA filed a second motion to show cause. The court appointed counsel for Boone. 

The record reflects that the magistrate continued the hearing on CSEA’s motion several 

times so Boone could get genetic testing and file a motion for relief from judgment. 

{¶ 6} Boone then filed a request for production of documents from Davis, seeking 

{¶ 7} all documents related to genetic testing to establish the paternity of the 

children “alleged to be the issue of the marriage” between Davis and Boone. Boone 

subsequently filed a motion to compel production of these documents. He also filed a 

motion pursuant to R.C. 3119.961 for relief from the support order contained in the 

divorce decree and for an order compelling the parties to submit to genetic testing.1

 

{¶ 8} CSEA, in turn, filed a motion for an “order in limine” precluding Boone 

from raising his claim of non-paternity and a motion for execution of the sentence for 

Boone’s contempt that the court had previously imposed. 

{¶ 9} After a hearing on January 4, 2011, the magistrate issued a decision 

granting Boone’s motion for genetic testing and dismissing his motion to compel as moot. 

 1

R.C. 3119.961 provides for the filing of a motion for relief from a paternity determination or child support 

order, notwithstanding provisions to the contrary in Civ.R. 60(B). R.C. 3119.962 requires the trial court to grant 

relief when genetic tests support a finding excluding the male as the father. There is no statute of limitation by 

which a person must move for relief from a final paternity determination. If the court grants the relief, R.C. 

3119.964 vests the court with discretion to cancel any child support arrears. In re L.S. A Minor Child, Cuyahoga 

App. No. 91598, 2009-Ohio-617, ¶12. 
 The magistrate’s decision stated that “hearing upon all other pending motions is hereby 

stayed pending the results of the genetic testing.” On April 21, 2011, the trial court 

issued a judgment overruling CSEA’s objections to the magistrate’s decision and 

adopting the decision. 

{¶ 10} CSEA appeals from the trial court’s judgment. It raises four assignments 

of error, all of which in some fashion challenge the trial court’s judgment ordering 

genetic testing. 

II 

{¶ 11} This court’s jurisdiction is limited to reviewing only final orders. “Courts 

of appeals shall have such jurisdiction as may be provided by law to review and affirm, 

modify, or reverse judgments or final orders of the courts of record inferior to the court of 

appeals within the district * * *.” Section 3(B)(2), Article IV, Ohio Constitution. In the 

absence of a final, appealable order, the appellate court does not possess jurisdiction to 

review the matter and must dismiss the case sua sponte. St. Rocco’s Parish Fed. Credit 

Union v. Am. Online, 151 Ohio App.3d 428, 2003-Ohio-420, 784 N.E.2d 200, ¶9; Young 

v. Cincinnati Ins. Co., Cuyahoga App. No. 82395, 2003-Ohio-4196. 

{¶ 12} Because the trial court expressly deferred for a later date its determination 

regarding CSEA’s motion to show cause and Boone’s motion for relief from the support 

order, prior to considering the merits of the appeal, this court must determine whether the 

trial court’s judgment ordering genetic testing is a final, appealable order. 

{¶ 13} R.C. 2505.02 defines the types of final orders that may be reviewed by an 
appellate court. In its notice of appeal, CSEA acknowledged that the trial court had not 

disposed of all issues between the parties, but asserted that the trial court’s judgment was 

a final, appealable order because it met the requirements of R.C. 2505.02(B)(4), which 

provides that an order is final and appealable when it is “[a]n order that grants or denies a 

provisional remedy and to which both of the following apply: 

{¶ 14} “(a) The order in effect determines the action with respect to the provisional 

remedy and prevents a judgment in the action in favor of the appealing party with respect 

to the provisional remedy. 

{¶ 15} “(b) The appealing party would not be afforded a meaningful or effective 

remedy by an appeal following final judgment as to all proceedings, issues, claims, and 

parties in the action. 

{¶ 16} “Provisional remedy” means a proceeding ancillary to an action, i.e., one 

that is attendant upon or aids another proceeding. Manley v. Marsico, 116 Ohio St.3d 

85, 2007-Ohio-5543, 876 N.E.2d 910, ¶10. 

{¶ 17} Here, the trial court’s order granting genetic testing was a provisional 

remedy because it was ancillary to Boone’s R.C. 3119.961 action for relief from the 

paternity determination and child support order in the divorce decree. Nevertheless, the 

order does not qualify as a final order under R.C. 2505.02(4) because it is apparent that 

all parties to the matter will have a meaningful and effective remedy as to all issues in the 

case by an appeal following final judgment. See State ex rel. Wilkerson v. Truss (1999), 

133 Ohio App.3d 633, 636, 729 N.E.2d 459 (even if orders granting genetic testing 
involve a provisional remedy, they do not qualify as final orders because appealing party 

would be afforded meaningful and effective remedy by appeal after final judgment). 

See, also, 4 Ohio Jur.3d (2011) 49, Appellate Review, Section 49 (“It is well established 

that orders requiring a party to submit to genetic testing in a paternity action do not 

constitute final appealable orders, and even if they did, such orders do not qualify under 

the statute as final orders because the appealing party would be afforded a meaningful and 

effective remedy by appeal following final judgment in the action”). Accordingly, the 

trial court’s judgment is not a final, appealable order under R.C. 2505.02(B)(4). 

{¶ 18} Nor do we find it to be a final, appealable order under any other section of 

R.C. 2505.02. An order for genetic testing does not determine the action (R.C. 

2505.02(B)(1)), affect a substantial right (R.C. 2505.02(B)(2)), or vacate or set aside a 

judgment to qualify as a final, appealable order (R.C. 2505.02(B)(3)). State ex rel. 

Wilkerson, supra at 636. 

{¶ 19} A judgment that leaves issues unresolved is not a final, appealable order. 

Bell v. Horton (2001), 142 Ohio App.3d 694, 696, 756 N.E.2d 1241, citing Chef Italiano 

Corp. v. Kent State Univ. (1989), 44 Ohio St.3d 86, 541 N.E.2d 64, syllabus. Because 

the trial court’s judgment granting genetic testing failed to address all of the issues raised 

by CSEA’s motion to show cause and Boone’s motion for relief from judgment, it is not a 

final, appealable order. Accordingly, we lack jurisdiction and must dismiss the appeal. 

Dismissed. 

It is ordered that appellee recover from appellant costs herein taxed. 
The court finds there were reasonable grounds for this appeal. 

It is ordered that a special mandate be sent to said court to carry this judgment into 

execution. 

A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of 

the Rules of Appellate Procedure. 

KATHLEEN ANN KEOUGH, JUDGE 

LARRY A. JONES, P.J., and 

SEAN C. GALLAGHER, J., CONCUR