[Cite as Tassone v. Tassone, 2019-Ohio-683.]

IN THE COURT OF APPEALS OF OHIO 

TENTH APPELLATE DISTRICT 

Zephynia S. Tassone, : 

 Plaintiff-Appellee, : No. 18AP-475 

 and 

v. : No. 18AP-614 

 (C.P.C. No. 17DR-4399)

Matthew Tassone, : 

 (REGULAR CALENDAR) 

 Defendant-Appellant. : 

 

D E C I S I O N 

Rendered on February 26, 2019 

 

On brief: Matthew Tassone, pro se. Argued: Matthew 

Tassone.

 

APPEALS from the Franklin County Court of Common Pleas, 

Division of Domestic Relations and Juvenile Branch 

LUPER SCHUSTER, J. 

{¶ 1} Defendant-appellant, Matthew Tassone, appeals from a judgment of the 

Franklin County Court of Common Pleas, Division of Domestic Relations and Juvenile 

Branch, denying his requests for relief from judgment filed in April and May 2018, and from 

a judgment of that court denying his request for findings of fact and conclusions of law. For 

the following reasons, we dismiss these appeals.

I. Facts and Procedural History 

{¶ 2} Matthew and plaintiff-appellee, Zephynia S. Tassone, were married in July 

2011, and have one child. In November 2017, Zephynia filed a complaint for divorce. On 

December 11, 2017, Matthew moved for emergency custody of the parties' child. Two days 

later, Matthew filed an answer and counterclaim, a motion for temporary orders, and a 

motion for contempt against Zephynia. On December 20, 2017, the parties and their 

counsel appeared in court on Matthew's motions. On the same day, the trial court, with the 
Nos. 18AP-475 and 18AP-614 2 

approval of the parties, entered an agreed interim entry. The agreed interim entry detailed 

the parties' parenting time in regard to their child from 5:00 p.m. on December 20, 2017, 

through 10:00 a.m. January 2, 2018. It also set forth an allocation of parenting time 

beginning 10:00 a.m., January 2, 2018, "until further order of" the court. (Agreed Interim 

Entry at 1.) The agreed interim entry also indicated that Matthew agreed that his motions 

for emergency custody and contempt were "resolved by this agreement or shall otherwise 

be dismissed or withdrawn." (Agreed Interim Entry at 2.) The agreed interim entry further 

stated that the parties would "proceed on temporary orders and nothing in this order shall 

prohibit either party from proceeding on temporary orders." (Agreed Interim Entry at 2.) 

On January 26, 2018, the trial court magistrate entered temporary orders, including 

designating Zephynia as the school placement parent and ordering parenting time pursuant 

to Local Rule 27 of the Franklin County Court of Common Pleas, Division of Domestic 

Relations, Option B. 

{¶ 3} On April 19, 2018, Matthew filed a motion pursuant to Civ.R. 60(B) seeking 

relief from the agreed interim entry. On April 25, 2018, Matthew filed an amended motion 

for relief pursuant to Civ.R. 60(B), and on May 1, 2018, he filed a second amended motion 

for relief pursuant to Civ.R. 60(B). In the motions for relief, Matthew alleged that he signed 

the agreed interim entry under duress and that Zephynia's counsel had engaged in 

misconduct. On May 23, 2018, the trial court denied Matthew's motions for relief from 

judgment. The next day, Matthew filed a motion pursuant to Civ.R. 52 for findings of fact 

and conclusions of law in regard to the trial court's May 23, 2018 decision and judgment 

entry. On July 16, 2018, the trial court denied Matthew's motion for findings of fact and 

conclusions of law. 

{¶ 4} Matthew timely appeals from the trial court's May 23, 2018 denial of his 

requests for relief from judgment and the trial court's July 16, 2018 denial of his motion for 

findings of fact and conclusions of law. These separate appeals were consolidated for the 

purpose of record filing, briefing, oral argument, and determination. 

 
Nos. 18AP-475 and 18AP-614 3 

II. Assignments of Error 

{¶ 5} Matthew assigns the following errors for our review: 

1. The trial court abused its discretion in not holding an 

evidentiary hearing with respect to Appellant's May 1st, 2018 

Motion for Relief from Judgement. 

2. The trial court abused its discretion in not granting 

Defendant's Request for findings of Fact. 

3. The trial court abused its discretion in denying Defendant's 

May 1st, 2018 motion for relief. 

4. The trial court erred in not considering Defendant's Due 

Process Claims. 

5. The trial court erred to the prejudice of Appellant in 

determining that the "Agreed Interim Entry" contract/order 

was not a final and appealable order under R.C. 2505.02. 

6. The trial Court erred in determining that Defendant did not 

have a meritorious claim or defense if relief was granted under 

rule Ohio Civ.Ru.60(B) 

7. the trial court erred in finding that Defendant did not present 

a prima facie showing that the ends of justice would better be 

served by setting the judgement aside. 

8. the trial court erred in finding that Defendant was not 

entitled to relief under Ohio Civ.R. 60(B). 

(Sic passim.) 

III. Discussion 

{¶ 6} Before analyzing Matthew's assignments of error, we must, as a preliminary 

matter, address our subject-matter jurisdiction in these consolidated appeals. Although 

neither party has raised the issue of whether the trial court's May 23 and July 16, 2018 

entries are final appealable orders, an appellate court may raise that jurisdictional question 

sua sponte and must dismiss an appeal that is not taken from a final appealable order. 

Riverside v. State, 190 Ohio App.3d 765, 2010-Ohio-5868, ¶ 8 (10th Dist.). 

{¶ 7} Ohio appellate courts have jurisdiction to review only final appealable orders 

of lower courts within their districts. Ohio Constitution, Article IV, Section 3(B)(2); R.C. 
Nos. 18AP-475 and 18AP-614 4 

2505.03. If an order is not a final appealable order, the appellate court lacks jurisdiction 

and the court must dismiss the appeal. K.B. v. Columbus, 10th Dist. No. 14AP-315, 2014-

Ohio-4027, ¶ 8, citing Prod. Credit Assn. v. Hedges, 87 Ohio App.3d 207 (4th Dist.1993). 

A trial court order is final and appealable if it meets the requirements of R.C. 2505.02 and, 

if applicable, Civ.R. 54(B). Eng. Excellence, Inc. v. Northland Assocs., LLC, 10th Dist. No. 

10AP-402, 2010-Ohio-6535, ¶ 10; see Lantsberry v. Tilley Lamp Co., Ltd., 27 Ohio St.2d 

303, 306 (1971) ("A final order * * * is one disposing of the whole case or some separate and 

distinct branch thereof."). A trial court's labeling of an entry as a "final appealable order" 

is not dispositive of the issue. In re Murray, 52 Ohio St.3d 155, 157 (1990). 

{¶ 8} Here, Matthew sought relief pursuant to Civ.R. 60(B) from the trial court's 

December 20, 2017 agreed interim entry, and he subsequently requested findings of fact 

and conclusions of law in regard to the trial court's denial of his request for relief. In seeking 

relief, Matthew alleged the agreed interim entry was invalid because he signed it under 

duress, and that Zephynia's counsel had engaged in misconduct during the proceedings. 

{¶ 9} Generally, a decision denying a motion for relief from judgment under Civ.R. 

60(B) is a final appealable order. Straquadine v. Crowne Pointe Care Ctr., 10th Dist. No. 

10AP-607, 2012-Ohio-1152, ¶ 11. However, because a Civ.R. 60(B) motion to vacate lies 

only from a "final judgment, order, or proceeding," when the underlying judgment or order 

does not meet this requirement, Civ.R. 60(B) is not a proper procedural mechanism for 

relief and it cannot be used to convert an otherwise non-final judgment or order into a final 

appealable order. Nami v. Nami, 10th Dist. No. 17AP-265, 2017-Ohio-8330, ¶ 17. 

Consequently, the "denial of relief from a non-final order is, itself, not a final appealable 

order." Kalapodis v. Hall, 9th Dist. No. 22386, 2005-Ohio-2567, ¶ 10; see Wells Fargo 

Bank, NA v. Vasquez, 9th Dist. No. 13CA0086-M, 2015-Ohio-717, ¶ 6 ("When an order is 

not final, the decision declining to vacate that order is also not a final appealable order."). 

By logical extension, a trial court's denial of a request for findings of fact and conclusions 

of law as to its denial of a request for relief from a non-final appealable order is also not a 

final appealable order. 

{¶ 10} The trial court's agreed interim entry at issue was a temporary order 

allocating custody between the parents. The entry also effectively dismissed Matthew's 

motion for contempt; thus, the court did not make a finding of contempt or impose a 
Nos. 18AP-475 and 18AP-614 5 

penalty or sanction in the entry. Matthew argues that while the agreed interim entry may 

not be a final judgment, it constitutes a final appealable order under R.C. 2505.02. We 

disagree. It is well-settled that temporary child custody orders are not final and appealable. 

In re B.A.L., 8th Dist. No. 103053, 2016-Ohio-300, ¶ 25; In re J.L.R., 4th Dist. No. 08CA17, 

2009-Ohio-5812, ¶ 29. Furthermore, a ruling on a contempt motion is not a final 

appealable order unless the trial court has made a specific finding of contempt and has 

imposed a penalty or sanction. Mike McGarry & Sons, Inc. v. Constr. Resources One, LLC, 

6th Dist. No. S-17-005, 2018-Ohio-528, ¶ 108; Holeski v. Holeski, 11th Dist. No. 2009-P0007, 2009-Ohio-6036, ¶ 42. Therefore, the agreed interim entry is not a final appealable 

order. 

{¶ 11} Because the agreed interim entry is not a final appealable order, the trial 

court's entries, denying Matthew's requests for relief from the agreed interim entry and 

denying his related request for findings of fact and conclusions of law, are not final 

appealable orders. Therefore, these appeals must be dismissed for lack of jurisdiction. 

IV. Disposition 

{¶ 12} Based on the foregoing, we dismiss both appeals for lack of a final appealable 

order. 

Appeals dismissed. 

KLATT, P.J., and DORRIAN, J., concur.