[Cite as Peak-Sims v. Sims , 2018-Ohio-2002.]

STATE OF OHIO ) IN THE COURT OF APPEALS )ss: NINTH JUDICIAL DISTRICT COUNTY OF SUMMIT ) MONIQUE PEAK-SIMS Appellee

v. RICCO SIMS Appellant C.A. No. 28703

APPEAL FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF SUMMIT, OHIO CASE No. DR-2016-12-3754

DECISION AND JOURNAL ENTRY Dated: May 23, 2018

TEODOSIO, Presiding Judge. {¶1} Ricco Sims appeals from the judgment entry of the Summit County Court of Common Pleas, Domestic Relations Division, dismi ssing his complaint for divorce. We dismiss for lack of jurisdiction. {¶2} Mr. Sims filed a complaint for divorce without children against Monique PeakSims in December 2016. The parties appeared for a hearing on June 20, 2017, and made brief statements on the record. The trial court concluded the hearing and indicated to the parties they would get notice of the next court hearing. On June 21, 2017, the trial court dismissed the case without prejudice, finding that it would be “in the be st interest of both part ies to give the parties

time to address their ment al health issues before proceeding.” Mr. Sims now appeals, raising one assignment of error. {¶3} “As a general rule, a dismissal without prej udice is not a final, appealable order as it ordinarily constitutes a dismissal other than on the merits which allows the plaintiff to refile2

the complaint.” Smirz v. Smirz , 9th Dist. Lorain No. 13CA010408, 2014-Ohio-3869, ¶ 10. Consequently, as a preliminary matter, we are obligated to raise sua sponte the question of our jurisdiction. See Whitaker-Merrell Co. v. Geupel Constr. Co., Inc. , 29 Ohio St.2d 184, 186 (1972). {¶4} This Court has jurisdiction to hear appeals only from final judgments. Article IV, Section 3(B)(2), Ohio Constitution; R.C. 2501.02. “I n the absence of a final, appealable order, this Court must dismiss the appeal for lack of subject matter jurisdiction.” Smirz at ¶ 8. Under R.C. 2505.02(B)(1), a final order is “[a]n order that affects a substantial right in an action that in effect determines the action and prevents a judgment * * *.” An order “determines the action and prevents a judgment” when it “dispose[s] of the merits of the cause or some separate and distinct branch thereof [leaving] 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, ¶ 8, citing Miller v. First Internatl. Fid. & Trust Bldg., Ltd. , 113 Ohio St.3d 474, 2007-Ohio-2457, ¶ 6. Considered under R.C. 2505.02(B)(1), the trial court’ s order that dismissed Mr. Sims’ complaint without prejudice did not dispose of the merits of the cause or a separate and distinct branch thereof. {¶5} Divorce actions, however, are special proceedings. State ex rel. Papp v. James , 69 Ohio St.3d 373, 379 (1994). We must theref ore continue our analysis under R.C. 2505.02(B)(2), which defines a final order as “[a]n or der that affects a substantial right made in a special proceeding * * *.” 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). “An or der 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 (1993). An appellant, therefore,3

“must demonstrate that in the absence of immediate review of the order they will be denied

effective relief in the future.” Id . The question is thus whethe r the dismissal without prejudice of Mr. Sims’ complaint for divorce, if not immediately appealable, would foreclose appropriate relief in the future. In considering this question, we turn our attention to two cases previously decided by this Court. {¶6} In Smirz v. Smirz , we reviewed the dismissal of a complaint for divorce without prejudice, and adopted the analysis of the Fift h District Court of Appeals as set forth in Davis v. Paige : [T]he impact on a substantial right based on a dismissal without prejudice in a domestic relations case might give rise to a final, appealable order, but only where the effect on the substantial right is bot h alleged and prejudicial, i.e., where the impact cannot be rectified thro ugh equitable considerations in the refiled cause or motion. Smirz at ¶ 16, citing Davis v. Paige , 5th Dist. Stark No. 2007 CA 00248, 2008-Ohio-6415, ¶ 40- 41. We noted that the law accords “parental and ma rital rights, including rights to support” and

that “the domestic relations court enforces those rights in an equitable manner.” Id . at ¶ 18. Because the appellant in Smirz had refiled the divorce action, we concluded that she had the ability to seek redress for her inability to enforc e prior temporary support orders in the dismissed action through equitable resolution in the second divorce action. Id. at ¶ 19. We went on to determine that the order dismissing the first divorce action without pr ejudice was not a final, appealable order because it did not affect a subs tantial right necessitatin g a finding of immediate finality. Id

. {¶7} In Moir v. Denkewalter , we considered whether the dismissal of a motion to reallocate parental rights was a final, appealable order. Moir v. Denkewalter , 9th Dist. Medina No. 13CA0082-M, 2015-Ohio-3171. We concluded, on the specific facts of the case, that the4

order was final and appealable be cause it affected a substantial right in the context of a special proceeding, stating: “Decisions involving the care and custody of a child implicate substantial rights of the natural parents.” Id . at ¶ 8. {¶8} In the present case, there are no children to consider, and we need not address the issue of parental rights. Likewise, there were no orders in effect for spousal or child support. Finally, we note that we do not agree with the di ssenting opinion’s assertion that the language of the trial court’s dismissal entry creates a condition to refiling. Under these circumstances, we

conclude the trial cour t’s dismissal of the divorce action, w ithout prejudice, does not foreclose appropriate relief in the future upon the potential refiling of the case. The court’s judgment entry dismissing the case is therefore not a final, appealable order and this Court lacks jurisdiction to address the merits of this appeal. Appeal dismissed.

Immediately upon the filing hereof, this docum ent shall constitute the journal entry of judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the period for review shall begin to run. App.R. 22 (C). The Clerk of the Court of Appeals is instructed to mail a notice of entry of this judgment to the parties and to make a notation of the mailing in the docket, pursuant to App.R. 30. Costs taxed to Appellant.

THOMAS A. TEODOSIO FOR THE COURT5

HENSAL, J. CONCURS. CARR, J. DISSENTING. {¶9} I respectfully dissent because I believe th at the trial court’s order dismissing the action for the parties “to address their mental health issues before proceeding” is a final order as an exception to the general rule for dismissals wit hout prejudice. Further, I am concerned that by dismissing this appeal, this Court is setting preced ent that will allow such orders to stand without appellate review. {¶10} Although dismissals without prejudice are ge nerally not final orders, that rule is based upon the concept that such orders leave the parties in the same position as they were

before the dismissal. See, e.g., Maxwell v. Forest Fair Mall, Ltd ., 1st Dist. Hamilton No. C060412, 2007-Ohio-3087; U.S. Bank N.A. v. Coffey , 6th Dist. Erie No. E-11-026, 2012-Ohio721. Where that is not the case, courts have cons istently held dismissals without prejudice to be final, typically reasoning that they in e ffect determine the action under R.C. 2505.02(B)(1) because they limit the party’s ability to refile. {¶11} For instance, such dismissals have been considered final in circumstances including: failure to attach an affidavit of merit to the complaint, Ward v. Summa Health Care , 184 Ohio App. 3d 254, 2009 Ohio 4859 (9th Dist.); failu re to include a particular allegation in the complaint, U.S. Bank N.A. v. Coffey , 6th Dist. Erie No. E-11-026, 2012-Ohio-721; failure to pay costs, Robinson v. Robinson , 4th Dist. Meigs County No. 16CA18, 2017-Ohio-450; lack of personal jurisdiction, Nat’l City Commer. Capital Co rp. v. AAAA At Your Service , 114 Ohio St. 3d 82, 2007-Ohio-2942; dismissal based upon forum non conveniens , Chambers v. Merrell-Dow6

Pharmaceuticals, Inc., 35 Ohio St.3d 123 (1988); and dismi ssals where the statute of limitations would preclude refiling. See, e.g., Wells Fargo Bank, N.A. v. Wick , 8th Dist. Cuyahoga Nos. 99373, 99840, 2013-Ohio-5422. In each of these instances , the dismissal did more than leave the parties in the same position because it limited the party’s ab ility to refile the action. {¶12} In other situations, courts have consider ed and addressed appeals from dismissals without prejudice without discussing the issue of finality. In those instances, the trial court’s action typically involved some meas ure of invalidity or error that placed the parties in a different position after dismissal. For instance, in Svoboda v. Brunswick , 6 Ohio St. 3d 348, 453 N.E.2d 648 (1983), the Ohio Supreme Court considered an appeal from an order that denied a motion to vacate a dismissal without prejudi ce. In that case, the trial court had dismissed the action without prejudice because the plaintiff failed to ob tain an attorney. According to the Supreme Court, the dismissal was entirely erroneous becau se it was based upon an i nvalid requirement to proceed with counsel. Notably, that court did not dismiss the appeal for lack of jurisdiction but

instead addressed the merits a nd concluded that the dismissal had been erroneously entered. {¶13} Similarly, in Rymers v. Rymers , 11th Dist. Lake No. 2009-L-160, 2010-Ohio6439, the Eleventh District reversed an order th at dismissed a divorce ac tion without prejudice stating that the parties were not properly prepared. In that case, the Eleventh District indicated that the matter was final under R.C. 2505.02(B)(1) a nd concluded that the trial court abused its discretion in dismissing on that basis. As that c ourt explained, a “trial cour t's order dismissing an action pursuant to Civ.R. 41(B) is subject to appellate review under an abuse of discretion

standard. A court abuses its disc retion when its judgment compor ts with neither reason nor the

record.” Id

.7

{¶14} Along the same lines, this Court reve rsed a dismissal without prejudice in Capital One Bank v. Jones, 9th Dist. Montgomery No. 13CA0038-M, 2014-Ohio-2299, holding that the trial court’s actions leading up to the dismissal were unauthorized. There, the trial court had dismissed appellant’s claims w ithout prejudice after ordering he r to file a new action as the plaintiff. In reviewing the dismissal without prejudice on its merits, this Court noted that the “trial court’s ‘inherent power to control its own docket’ does not mean it may dismiss claims

without a valid basis.” Id . at ¶ 9. {¶15} Courts have also addresse d dismissals without prej udice when the trial court failed to provide the parties with notice before the dismissal. Notably, those dismissals were subject to appellate review, and the appeals were not dismissed for lack of finality. See e.g

. Montgomery v. Tenneco Automotive Operating, Inc. , 183 Ohio App.3d 164, 2009-Ohio-3394 (6th Dist.); State ex rel. Ramsey v. Saunders 9th Dist. No. 16258, 1993 Ohio App. LEXIS 6131 (December 15, 1993) (reviewing a dismissal wit hout prejudice for an abuse of discretion and holding that the notice provided was sufficient). {¶16} In addition, courts have reviewed dismissa ls without prejudice for a party’s failure to appear. The Tenth District, for instance, considered an appeal from an order dismissing an inmate’s parental rights complain t because he failed to appear at a hearing despite his inability as

an inmate to do so. Jones v. Roberts , 10th Dist. Franklin No. 17AP-151 , 2014-Ohio-2798. In affirming the dismissal, the court reviewed th e order for an abuse of discretion and did not dismiss the appeal or otherwise indicate that a finality issue existed. {¶17} Based upon the foregoing, I would conclude that the dismissal here is a final order. The parties are plainly not in the same position as they were before the dismissal and, therefore, the general rule should be inapplicab le. Instead, they are now subject to a vague8

“condition” to the refiling of the divorce action that is ambiguous as to its requirements. In fact, according to appellant, he has been attending his therapy classes since December, 1, 2016, so it is unclear precisely what hurdles must be overcome before refiling. {¶18} Furthermore, the condition to refiling applies to both parties, which deprives appellant of the ability to control compliance with his own behavior. Thus, even if he successfully addresses his “mental health issues before proceeding,” his compliance alone may be insufficient. Consequently, his ability to refile his divorce action may be effectively eliminated because compliance with the condition may not even be possible. {¶19} I would conclude, therefore, that the tria l court’s dismissal without prejudice is a final order because it does not leave the parties in the same place; instead, it restricts appellant’s ability to refile his action and his access to the domestic relations court. As a result, I would proceed to the merits of the appeal and reverse the trial court’s order.

APPEARANCES: RICCO SIMS, pro se, Appellant. MONIQUE PEAK-SIMS, pro se, Appellee.