[Cite as Wagner v. Wagner , 2024

- Ohio

- 728.]

COURT OF APPEALS OF OHIO

EIGHTH APPELLATE DISTRICT

COUNTY OF CUYAHOGA

DAVID L. WAGNER

, :

Plaintiff

- Appell ee

, :

No. 112560

v.

VICTORIA WAGNER

, :

Defendant

- Appell ant

. :

JOURNAL ENTRY AND OPINION

JUDGMENT: AFFIRMED

RELEASED AND JOURNALIZED: February 29 , 2024

Civil Appeal from the Cuyahoga County Court of Common Pleas

Domestic Relations Division

Case No. DR

- 10

- 329940

Appearances:

Joseph Bancsi

, for appellee

.

Stafford Law Co., L.P.A., Joseph G. Stafford, Nicole A.

Cruz, and Kelley R. Tauring

, for a ppellant

.

MICHAEL J OHN RYAN

, J.:

Defendant

- appellant, Victoria Wagner, appeals the trial court ’s

February 27, 202 3 judgment entry grant ing plaintiff

- appellee ’s , David Wagner

,motion to dismiss Victoria’s motion to modify child support , finding that Victoria’s

motion was moot . We affirm.

Victoria and David were previously married and divorced on

June 10, 2011. One child was born of the marriage and that child has now reached

the age of majority. Pursuant to the judgment entry of divorce, David was

designated the child support obligor and ordered to pay child support in the amount

of $409.93 per month.

On November 16, 2015, Victoria filed a consolidated motion, which

included a motion to modify child support asking that child support be modified

“based upon changes in circumstances * * * including, but not limited to * * * the

parties’ incomes and expenses [and] the child’s activities and issues relating to the

part ies as it relates to the minor child

. ” The motion was referred to a magistrate and

set for a hearing ; it appears that a hearing took place but did not conclude

.

On December 23, 2019, the trial court issued a judgment entry staying the

proceedings due to the unavailability of Victoria’s counsel for medical reasons. 1

On February 23, 2021, the trial court issued an order adopting the Child

Support Enforcement Agency’s (“CSEA”) administrative recommendation, which

modified David’s child support obligation effective August 1, 2020. David’s child

1 During oral argument, Victoria’s attorney argued that the stay was never lifte d;

therefore, the trial court had no authority to issue any orders after the court issued the

December 23, 2019 stay . This argument was presented for the first time at oral argument

so we decline to consider it. We do note, however, that in her brief on appeal, Victoria

stated that the case was stayed for a definite time period of “13 months”; moreover, Victoria’s attorney appeared and actively participated in the case once his medical

condition was resolved.support obligation was increased to $433.70 per month, plus $14.62 per month for

cash medical support.

In January 2023, David moved to dismiss Victoria’s motion to modify

child support

. On February 27, 2023, the trial court issued a judgment entry

granting David’s motion to dismiss Victoria’s m otion to m odify c hild s upport ruling

that her motion was moot.

Victoria filed a notice of appeal and raises one assignment of error for

our review:

I. The trial court erred as a matter of law and abused its discretion by

dismissing the Appellant’s Motion to Modify Child Support and by

finding that the Motion to Modify was moot.

Order B eing A

ppealed

As an initial matter, we must determine which order or order s

Victoria is appealing from that will be considered on appeal.

In November 2015, Victoria filed her m otion to m odify c hild s upport

.

On February 23, 2021, the court issued an order adopting CSEA’s administrative

recommendation , which modified child support effective August 1, 2020. In

January 2023, David filed a motion to dismiss Victoria’s motion to modify child

support.

On February 27, 2023, the trial court granted David’s motion to

dismiss. In its journal entry

, the trial court stated that Victoria’s motion would be

denied as moot because of the court’s February 23, 2021 judgment entry adopting

CSEA’s recommendation

.In her notice of appeal, Victoria attached the court’s February 2 7

,

202 3 judgment entry

. David argues that because the gravamen of Victoria’s appeal

challenges the trial court’s judgment entry from February 23, 2021, her appeal

should be dismissed for lack of jurisdiction because it does not comply with

App.R. 3 and 4.

App.R. 3(D) provides that a notice of appeal “ shall designate the

judgment, order or part thereof appealed from .” State v. Henderson , 8th Dist.

Cuyahoga No. 100385, 2014

- Ohio

- 2061, ¶ 8 . “ A court of appeals lacks jurisdiction

to review a judgment or order that is not designated in the notice of appeal. ” Id.

,

citing Parks v. Baltimore & O.R.R. , 77 Ohio App.3d 426, 602 N.E.2d 674 (8 th

Dist.1991).

David does not dispute that the February 23, 2021 order did not

become final until it was disposed of through the court’s February 27, 2023 entry

finding the motion was moot. If Victoria wanted to appeal any portion of the

February 23, 2021 order adopting CSEA’s administrative recommendation she

could have done so within 30 days of the February 2023 judgment pursuant to

App.R. 4 either by attaching that entry to her notice of appeal or by filing an

amended appeal under App.R. 3(F), which allows a party to “amend a notice of

appeal without leave if the time to appeal from the order that was the subject of the

initial notice of appeal has not yet lapsed under App.R. 4.” Victoria could have also

sought leave to amend her notice of appeal to include the February 23, 2021

judgment entry under App.R. 3(F), but she did not do so. See App.R. 3(F) (“ [ T ]hecourt of appeals within its discretion and upon such terms as are just may allow the

amendment of a notice of appeal, so long as the amendment does not seek to appeal

from a trial court order beyond the time requirements of App.R. 4. ” )

.

This court has routinely held that “ ‘ [i]nterlocutory orders * * * are

merged into the final judgment * * * [t]hus, an appeal from the final judgment

includes all interlocutory orders merged with it. ’ ” (Internal citations omitted

. )

Crenshaw v. Cleveland Police Dept. , 8th Dist. Cuyahoga No. 110951, 2022

- Ohio

3915, ¶ 2, fn. 1, citing O’Connor v. Fairview Hosp. , 8th District Cuyahoga No. 98721,

2013

- Ohio

- 1794, ¶ 19. Thus, this court has jurisdiction over all orders issued prior

to and including the February 2 7, 2023 order.

V ictoria maintains, however, that she is appealing only the February

27, 2023 order . Therefore, the trial court’s February 27, 2023 order is the only

judgment entry that will be considered in this appeal.

February 27, 2023 Judgment Entry

In its February 27, 2023 ruling, the trial court granted David’s motion

to dismiss, finding that Victoria’s motion to modify child support was moot

. In her

sole assignment of error, Victoria contends that the trial court erred in this regard.

Victoria argues that the trial court’s February 23, 2021 order failed to address all of

her claims, including her claim that CSEA’s recommendation should have been

retroactive to November 16, 2015, when she initially filed her motion to modify child

support

.In its February 27, 2023 order , t he trial court noted that its February

21, 2021 judgment entry found that neither party requested a hearing to review

CSEA’s recommendation and if either party had wanted to object to CSEA’s

recommendation

, that party had the ability to do so prior to the court’s Feb ruary 23,

2021 ruling

. 2

The court’s February 27, 2023 judgment

, the sole order that is being

appealed in this case, did not make substantive changes to the court’s previously

issued child support order dated February 23, 2021. In fact, the February 27, 2023

order only reiterates procedural facts and findings made in the February 23, 2021

order. Had Victoria wanted to challenge CSEA’s administrative recommendation

,

she could have done so within the time allotted and prior to the trial court’s February

23, 2021 order. Because this court is solely reviewing the trial court February 27,

2023 order, w

hether or not the trial court’s February 23, 2021 order addressed all of

Victoria’s claims, including the retroactive modification of child support back to the

initial November 16, 2015

, filing date, is not before us to determine

. We are limited

to reviewing the February 27, 2023 order

, and we find no error in that order

.

In light of the above, we find that the trial court did not err in

denying Victoria’s motion as moot and in granting David’s motion to dismiss.

2 CSEA’s administrative recommendation was issued on January 7, 2021, and was

attached to, and referenced in

, the court’s February 23, 2021 order. The recommendation

provides : “ You have the right to request an administrative adjustment hearing if you disagree with the results of the administrative review. Your request * * * must be received

within fourteen (14) days of the date this notice was issued.”The sole assignment of error is overruled.

Judgment affirmed.

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.

MICHAEL J OHN RYAN

, JUDGE

EILEEN T. GALLAGHER

, P. J., and

ANITA LASTER MAYS , J., CONCUR