COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NOS. 60224, 60751 DARYL A. DAVIS : : Plaintiff-appellee : : JOURNAL ENTRY -vs- : AND : OPINION LAURA A. DAVIS : : Defendant-appellant : : DATE OF ANNOUNCEMENT OF DECISION: MARCH 26, 1992 CHARACTER OF PROCEEDING: Civil appeal from Court of Common Pleas Case No. D-125738 JUDGMENT: REVERSED AND VACATED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: For Defendant-Appellant: DOUGLAS C. BLACKBURN, ESQ. DIRENFELD, GREENE & BLACKBURN CO. STEVEN D. JONES, ESQ. 55 Public Square - Suite 1640 1340 Sumner Court Cleveland, Ohio 44113 Cleveland, Ohio 44115 - 1 - DYKE, J.: On August 8, 1989 the trial court ordered appellee to pay forty-five dollars a week for child support and an additional forty-five dollars a week toward an arrearage. That final order was affirmed by this court, which vacated a subsequent entry on September 6, 1989 (ordering the same payments but changing visitation) and declared it void for lack of jurisdiction on the date of its entry. Davis v. Davis (August 2, 1990), Cuyahoga App. No. 58348, unreported at 9-10. (Davis II.) Our opinion ordered the trial court to vacate the entry of September 6, 1989 and "immediately implement the provisions made in the journal entry of August 8, 1989 for child support and visitation." On remand the trial court issued an order on September 11, 1990 which again ordered appellee to pay ninety dollars a week toward child support and the arrearage. On September 27, 1990 the trial court sua sponte vacated the final order of September 11, 1990 and appellant appealed on October 29, 1990. In May of 1991 the trial court vacated the entry of September 6, 1989, reinstated the August 8, 1989 final order and ordered that from May 30, 1991 appellee pay forty-five dollars a week toward the arrearage (until it is paid) and forty-five dollars a week for child support but only until June 8, 1991 at which time appellant would be required to pay appellee forty-four dollars a week because custody was given to appellee in the same journal entry. The change of custody ordered in that journal entry is the subject of - 2 - Davis v. Davis (March 12, 1992), Cuyahoga App. No. 61832, unreported. (Davis III.) Concurrently, on May 17, 1990, appellee filed a "notice of intent to exercise visitation" which he was required to file with the trial court before visitation for the summer of 1990 could begin. On May 24, 1990 appellee also filed an ex parte motion to restrain appellant from removing the parties' child from the jurisdiction. That motion was granted the same day. On May 30, 1990 appellant filed a motion to vacate the temporary restraining order granted May 24, 1990. The motion to vacate was denied on June 15, 1990 and on June 28, 1990 the trial court granted the "motion (sic) to exercise visitation" and the "motion to restrain defendant from removing child, filed May 24, 1990, (motion #167072)." Appellant appeals the September 27, 1990 and June 28, 1990 journal entries. On appeal appellant assigns five errors for review. I THE TRIAL COURT ACTED WITHOUT JURISDICTION AND COMMITTED REVERSIBLE ERROR AS A MATTER OF LAW IN VACATING THE WAGE ASSIGNMENT ORDERS IT HAD PREVIOUSLY ISSUED. In Davis II this court held that the September 6, 1989 order was void because it was entered after the filing of the notice of appeal from the August 8, 1989 final order it repeated with regard to child support. Davis II (August 2, 1990), Cuyahoga App. No. 58348, unreported at 9. Davis II vacated the September 6, 1989 journal entry. Id. at 10. That action left the August - 3 - 8, 1989 as the valid order. It was redundant to order the trial court to vacate the September 6, 1989 entry and "implement" the August 8, 1989 order when Davis II had just vacated the September 6, 1989 order itself and nothing else had to be done once the August 8, 1989 order of support and arrearage payments was made. Nevertheless, in obedience to this court's mandate the lower court entered an order on September 11, 1990 which repeated the order of August 8, 1989. This entry complied with the remand order by impliedly vacating the prior order (through replacing it) and implementing it (by re-stating its terms and emphasizing its validity). Inexplicably, sixteen days later the trial court sua sponte vacated the September 11, 1990 entry. No reason was given. No motion for relief from that judgment had been filed. Appellee notes that the Ohio Supreme Court has recently held that "during a term of court, a trial court has inherent discretion with respect to its orders." Horman v. Veverka (1987), 30 Ohio St. 3d 41, 42. Horman went on to state that a trial court's inherent power has been modified by R.C. 2505.02 which defines a final order as including "an order vacating or setting aside a judgment and ordering a new trial." Id. Horman concluded that an order vacating a dismissal (where no trial was previously held) is not a final appealable order. Id. However, in a footnote Horman acknowledged that the definition of a final order changed on March 17, 1987 to include "an order that vacates - 4 - or sets aside a judgment or grants a new trial" and concluded that "[w]hether an order vacating a judgment is, by this statutory change, made a final appealable order, is a question we need not address." Id. at footnote 1. We note that the Ohio Supreme Court had previously held that an order setting aside a default judgment is a final appealable order as provided in R.C. 2505.02. GTE Automatic Electric Inc. v. ARC Industries (1976), 47 Ohio St. 2d 146 (paragraph one of the syllabus). Therefore, a trial court's inherent power has been modified by R.C. 2505.02, as amended. Thus, a court has inherent power to vacate a void judgment, The Lincoln Tavern, Inc. v. Snader (1956), 165 Ohio St. 61, or an interlocutory order. However, a trial court may only vacate a voidable judgment, other than when it grants a motion for new trial or a motion for judgment n.o.v., when it acts pursuant to Civ. R. 60(B) which states as follows: "The procedure for obtaining any relief from a judgment shall be by motion as prescribed in these rules." State, ex rel. Boardwalk Shopping Center, Inc. v. Court of Appeals for Cuyahoga Co. (1990), 56 Ohio St. 3d 33; Hellmuth, Obata & Kassabaum v. Ratner (1984), 21 Ohio App. 3d 104, 107. The September 11, 1990 journal entry was a final order (albeit one this court incorrectly ordered the trial court to enter) and the trial court had no authority to vacate it on September 27, 1990. The order of September 27, 1990 is vacated as is the order of September 11, 1990. Assignment of error No. I is sustained. - 5 - II THE TRIAL COURT'S EX PARTE ORDER PERMANENTLY ENJOINING APPELLANT FROM RELOCATING TO ANOTHER STATE, SHOULD BE VACATED AS HAVING BEEN WRONGFULLY ISSUED IN VIOLATION OF APPELLANT'S RIGHT TO DUE PROCESS. III THE TRIAL COURT'S EX PARTE ORDER, RESTRAINING APPELLANT FROM RELOCATING TO ANOTHER STATE, SHOULD BE VACATED AS HAVING BEEN ISSUED WITHOUT JURISDICTION. IV THE TRIAL COURT ABUSED ITS DISCRETION AND COMMITTED REVERSIBLE ERROR IN GRANTING APPELLEE'S MOTION FOR INJUNCTIVE RELIEF, DESPITE OBVIOUS JURISDICTIONAL, PROCEDURAL AND SUBSTANTIVE DEFECTS. Appellee argues that the June 28, 1990 order granting the motion to restrain appellant was merely a repetition of the May 24, 1990 journal entry granting that motion and that both entries granted a temporary restraining order which is not appealable. Alternatively, appellee contends that the subsequent order that granted appellee custody rendered the restraining order moot. However, Davis III vacated that order for lack of subject matter jurisdiction. Appellant contends that the May 24, 1990 journal entry granted a temporary restraining order and the June 28, 1990 journal entry granted a permanent injunction. Appellant appeals the June order and challenges the permanent injunction. The May 24, 1990 journal entry stated, "[U]ntil further order of the court, defendant shall not remove the minor child of - 6 - the parties from Cuyahoga County or any county contiguous thereto for a period in excess of fourteen days." The June 28, 1990 journal entry stated, "Plaintiff's Motion to Restrain Defendant from Removing Child filed May 24, 1990, (motion #167072) be (sic) and is hereby Granted." The June 28, 1990 journal entry merely repeats the ruling of May 24, 1990: it grants the May 24, 1990 motion to restrain. That motion requested a temporary restraining order which the court granted in May. Appellant moved to vacate that temporary restraining order and never argued that the motion requested a permanent injunction. The June order did not order a new restraint. It again granted the existing motion which did not request a permanent injunction. The June order is redundant and void as an improper repetition of the May order. We vacate the June 28, 1990 journal entry. Appellant was understandably confused by the inexplicable re-granting of the motion and may have reasoned that the June entry could be explained only by reading the motion of May 24, 1990 to request a temporary restraining order and a permanent injunction. As noted, it did not. Assignments of error No. II, III and IV are overruled but the portion of the June 28, 1990 order that granted the motion is vacated. V THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN GRANTING APPELLEE'S "MOTION TO EXERCISE VISITATION" WHERE NO SUCH MOTION WAS FILED - 7 - AND WHERE APPELLEE'S "NOTICE OF INTENTION TO EXERCISE VISITATION" WAS NOT TIMELY SERVED. As the parties note there was no motion to exercise visitation and one could not be granted. Accordingly, the portion of the June 28, 1990 journal entry, which grants the alleged motion, is vacated. Assignment of error No. V is sustained. Therefore, we vacate the journal entries of June 28, 1990 and September 27, 1990. and September 27, 1990. This cause is reversed and remanded to the lower court for further proceedings consistent with this opinion. It is, therefore, considered that said appellant recover of said appellee her costs herein. 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. DAVID T. MATIA, C.J., AND BLACKMON, J., CONCUR JUDGE ANN DYKE 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 journalization, at which time it will become the judgment and order of the court and time period for review will begin to run. .