COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 60146 JAMES J. KASSOUF : : Plaintiff-appellee : : JOURNAL ENTRY vs. : and : OPINION PHYLLIS V. PANTONA : : Defendant-appellant : : : DATE OF ANNOUNCEMENT OF DECISION : APRIL 2, 1992 CHARACTER OF PROCEEDING : Civil appeal from : Court of Common Pleas : Case No. D-177,197 JUDGMENT : DISMISSED. DATE OF JOURNALIZATION : _______________________ APPEARANCES: For plaintiff-appellee: MARSHALL J. WOLF Attorney at Law 1515 East Ohio Building 1717 East Ninth Street Cleveland, Ohio 44114 ROBERT I. CHERNETT Attorney at Law 1600 The East Ohio Building 1717 East Ninth Street Cleveland, Ohio 44114 (Cont.) - 1 - (Cont.) For defendant-appellant: JOYCE E. BARRETT Attorney at Law 800 Standard Building Cleveland, Ohio 44113 Guardian Ad Litem: ALBERT E. POWERBAUGH Attorney at Law 818 National City Bank Bldg. Cleveland, Ohio 44114 - 1 - ECONOMUS, J.: Defendant-appellant, Phyllis V. Pantona, appeals from the decision of the common pleas court, domestic relations division, which denied her motion for attorney fees filed in conjunction with appellee's emergency motion for temporary custody and motion to modify custody, appellant's motion for emergency return of children, and appellant's motion for relief from judgment. Sub- sequently, appellee filed a motion to dismiss, which was referred to the merit panel. We dismiss this matter for lack of a final appealable order. In April, 1987, appellant filed a complaint for divorce and division of property and other equitable relief. Appellee duly filed an answer and counter-claim for divorce. In January, 1988, the parties were divorced, and appellant was awarded custody of the parties' two minor children. However, this was not the last time the domestic relations court heard from the litigants. The litigants have been, and continue to be, before the domestic relations court on numerous motions to show cause, for protective orders, and for modification of custody orders. - 2 - The present appeal involves a hearing on January 29, 1990 before the referee of the domestic relations court on appellee's motion for emergency custody (motion number 159534) filed simul- taneously with (and as a part of the same document) his motion to modify custody (motion number 159535), and appellant's motions for emergency return of the children (motion number 159728), to show cause (motion number 159729), and for relief from judgment (motion number 160741). The referee issued his report wherein he denied appellant's motion for attorney fees (filed in conjunction with her motion to show cause) based upon his understanding of an in-court agreement between the litigants and the referee that the issue of attorney fees would only be litigated if the referee granted appellant's motion to show cause or that appellee's con- tinued possession of the children was unjustified. Appellant duly filed objections which the trial court overruled. The trial court, then, approved the report and recommendation of the referee and, in a separate journal entry, denied appellee's motion for emergency temporary custody and denied appellant's motion for emergency return of the children and relief from judg- ment. Art. IV, Sec. 3(B)(2) of the Ohio Constitution requires a final order to vest this reviewing court with subject matter jurisdiction over an appeal. A final order is one which "deter- mines the action and prevents a judgment." R.C. 2505.02. The statutory grant of jurisdiction to the courts of appeals in R.C. - 3 - 2505.02 does not provide for the appeal of part of a case, but only an appeal of completed cases. See, Sellman v. Schaaf (1969- ), 17 Ohio App. 2d 69, paragraph one of the syllabus. In the present case, appellee simultaneously filed a motion for emergency custody of the children (motion number 159534) and motion for modification of custody (motion number 159535). The referee heard appellee's motion for emergency return of the children along with various motions filed by appellant stemming from the same fact pattern. Further, the trial court approved the referee's report and, in a separate journal entry, denied all other motions heard by the referee. However, the trial court did not rule on appellee's motion to modify custody (motion number 159535). Thus, the trial court's ruling can only be considered an interlocutory, non-final appealable order since the trial court has not ruled on appellant's motion for modification of custody. This court is well aware of the on-going nature of the dis- pute between the parties herein. However, appellant's conten- tion that the record on appeal leading up to the judgment entry in question consists only of the transcript of proceedings of the hearing, the motions leading up to that hearing, and the referee's report and subsequent judgment entry adopting that report is without merit. The motions leading up to the relevant hearing, in particular appellee's motion for emergency custody, were filed as part of an overall case stemming from appellee's - 4 - motion to modify custody (motion number 159535). Appellee's motion to modify custody had not yet been determined by the trial court at the time when appellant took her appeal. While it is well settled that an order modifying an original order as to custody, care and support of children is a final order, see Gregg v. Mitchell (1955), 99 Ohio App. 350, paragraph five of the syl- labus, no such order exists in the present appeal. Rather, the order from which the present appeal is taken is only part of a case stemming from appellant's motion to modify custody. Therefore, appellant's appeal is dismissed. - 5 - It is ordered that appellee recover of appellant his costs herein taxed. It is ordered that a special mandate issue out of this Court directing the Cuyahoga County Court of Appeals, Domestic Rela- tions Division, 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. JOHN F. CORRIGAN, P.J. HARPER, J. CONCUR JUDGE PETER ECONOMUS* *Sitting by Assignment: Peter Economus, Judge of the Mahoning County Court of Common Pleas. N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announce- ment of decision (see Rule 26). Ten (10) days from the date hereof, this document will be stamped to indicate journaliza- tion, at which time it will become the judgment and order of the court and time period for review will begin to run. .