COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 66739 ALLEN L. HAINES : : : PLAINTIFF-PETITIONER : JOURNAL ENTRY APPELLEE : v. : AND : : OPINION MICHELLE A. SHIEVER : : : DEFENDANT-RESPONDENT : APPELLANT : DATE OF ANNOUNCEMENT OF DECISION: JUNE 8, 1995 CHARACTER OF PROCEEDING: Civil appeal from Court of Common Pleas, Division of Domestic Relations Case No. D-229861. JUDGMENT: DISMISSED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Petitioner Elliott I. Resnick, Esq. Appellee: Grant, Resnick & O'Malley 1148 Euclid Avenue Cleveland, Ohio 44115 For Defendant-Respondent Mark I Strauss, Esq. Appellant: Ulmer & Berne 900 Bond Court Building 1300 East Ninth Street Cleveland, Ohio 44114-1583 - 2 - SWEENEY, JAMES D., P.J.: Defendant-respondent-appellant Michelle A. Shiever ("Shiever"), appeals from the trial court's order of December 8, 1993, which is reproduced in pertinent part in this opinion's Appendix. For the reasons adduced below, we dismiss this notice of appeal for lack of a final appealable order. A review of the record on appeal indicates that Shiever and plaintiff-petitioner-appellee Allen L. Haines ("Haines") were married in Painesville, Ohio, on August 21, 1978. One child, Master Justin Haines [d.o.b. July 9, 1979], was born during the term of the marriage. The parties were divorced in Illinois in 1983. On November 22, 1993, Haines filed a Petition for Domestic Violence in the trial court, alleging that Shiever had engaged in acts constituting domestic violence against the child as defined in 1 R.C. 3113.31. The relief requested in the Petition included the following: a) Directions to Respondent to refrain from abusing Justin Haines; b) Award temporary custody of the minor child, Justin Haines, to Petitioner; c) Terminate Petitioner's child support order subject to further Order of Court; and 1 At the time of this petition filing, the child was living with Shiever in the Village of Orange, Ohio. - 3 - d) Consolidate this action with Case No. D- 208267. On November 22, 1993, the trial court, after receiving evidence from Haines and the child without the benefit of Shiever's presence, issued an ex parte temporary protection order which substantially granted the relief requested: (1) restrained Shiever from abusing the child; (2) awarded Haines temporary custody of the child; (3) terminated Haines' responsibility to pay child support, subject to further order of court; (4) consolidated the Petition action with Case No. D-208267, Allen Haines v. Michelle Shiever; and, (5) scheduled a full hearing on December 2, 1993, on the issues raised in the Petition. On November 23, 1993, Shiever filed a Motion for Immediate Full Hearing, seeking to advance the hearing on the Petition before the scheduled date set by the trial court. On December 2, 1993, the trial court conducted the scheduled full hearing on the Petition, taking evidence and testimony from the parties, who were represented by counsel, and their witnesses. Thereafter, the trial court issued the Temporary Protection Order 3 of December 8, 1993. It is from this order that Shiever appeals, 2 See Cuyahoga Common Pleas Court, Domestic Relations Division, Case No. D-208267. 3 On December 9, 1993, Shiever filed a "Notice of Rejection of and Written Objections to Petitioner's Proposed Judgment Entry." The proposed judgment entry had been allegedly submitted to the trial court on December 7, 1993. - 4 - presenting ten assignments of error. The ten assignments of error provide: I THE TRIAL COURT ERRED IN MODIFYING CUSTODY OF JUSTIN HAINES THROUGH AN UNCONSTITUTIONAL EX PARTE PROCEDURE. II THE TRIAL COURT ERRED IN NOT PROVIDING APPELLANT WITH A FULL HEARING FOR TEN DAYS AFTER THE EX PARTE PROCEEDING. III THE TRIAL COURT ERRED IN HEARING TESTIMONY OF ALLEGED ACTS OF DOMESTIC VIOLENCE OTHER THAN THE ONE PARTICULAR ACT SET FORTH IN APPELLEE'S PETITION FOR DOMESTIC VIOLENCE. IV THE TRIAL COURT ERRED IN FINDING ANY AND ALL PHYSICAL DISCIPLINE ADMINISTERED BY APPELLANT TO JUSTIN HAINES TO CONSTITUTE "DOMESTIC VIOLENCE." V THE TRIAL COURT ERRED IN ITS DECISION OF DECEMBER 8, 1993, IN NOT PROVIDING FOR SUPERVISED VISITATION BETWEEN APPELLANT AND JUSTIN HAINES. VI THE TRIAL COURT ERRED IN ITS DECISION OF DECEMBER 8, 1993, IN NOT PROVIDING FOR A SPECIFIC VISITATION SCHEDULE BETWEEN APPELLANT'S FAMILY AND JUSTIN HAINES. VII THE TRIAL COURT ERRED IN ITS DECISION OF NOVEMBER 22, 1993, IN NOT PROVIDING FOR ANY VISITATION BETWEEN APPELLANT AND JUSTIN HAINES. VIII - 5 - THE TRIAL COURT ERRED IN LIMITING THE TESTIMONY OF CATHOLIC SOCIAL SERVICES COUNSELOR JOHN MAYKUT. IX THE TRIAL COURT ERRED IN ORDERING THE FULL HEARING CONCLUDED BY 1:30 P.M. DECEMBER 2, 1993. X THE TRIAL COURT ERRED IN SIGNING APPELLEE'S PROPOSED JUDGMENT ENTRY ONE DAY AFTER RECEIPT THEREOF, BEFORE REVIEWING APPELLANT'S TIMELY- FILED NOTICE OF REJECTION OF AND OBJECTIONS THERETO. Based upon a review of the record on appeal, we conclude that this court is without jurisdiction to entertain the notice of appeal from the order of December 8, 1993, for the reason that it is not a final appealable order pursuant to R.C. 2505.02. See Kelm v. Kelm (1994), 93 Ohio App.3d 686, and Kouns v. Pemberton (1992), 84 Ohio App.3d 499, motion to certify overruled in (1993), 66 Ohio St.3d 1489. By its own terms, this order was temporary, or provisional, in nature. This order deferred the matter raised in the Petition for a permanent change of custody of the child, with attendant modification in payment of child support, to a determination of the then pending motion by Haines to change custody in the consolidated action D-208267. Absent a final appealable order upon which to vest this court with the jurisdiction to address the merits of this case, this appeal is necessarily dismissed. Appeal dismissed. - 6 - It is ordered that appellee recover of appellant his costs herein taxed. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. Exceptions. PATRICIA A. BLACKMON, J. and DONALD C. NUGENT, J., CONCUR. JAMES D. SWEENEY PRESIDING JUDGE N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announcement 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. APPENDIX The Court being duly advised of the premises, makes the following Order. IT IS THEREFORE ORDERED, ADJUDGED AND DECREED that: 1) Petitioner's Temporary Protection Order is continued until further Order of Court, including temporary custody to Petitioner of the minor child, Justin Haines (dob: 07-09-79). 2) Petitioner's obligation to pay child support in Case No. D- 208267 is hereby terminated subject to further Order of Court. 3) Respondent is precluded from visitation privileges with the minor child Justin Haines until further Order of Court. 4) The Shiever grandparents, Great Aunt Jean and Christian Bartelone may enjoy visitation privileges with Justin Haines, with the consent of Justin Haines. Such visitation to be arranged by Petitioner and which visitation shall not be overnight. 5) Respondent may have reasonable and unrestricted telephone contact with Justin Haines and Justin may have reasonable and unrestricted telephone contact with Respondent. 6) This matter is consolidated with a domestic relations matter captioned, Allen L. Haines v. Michelle Shiever, Case No. D- 208267. Pending motion for Petitioner's change of custody shall be set at the Court's earliest convenience. 7) If it is brought to the Clerk's attention by Petitioner's Affidavit that Respondent has not complied with the above Order, a citation may issue for Respondent to appear and show cause why she should not be found in Contempt of Court. Penalties for Contempt may include jail and fines. The possibility of criminal prosecution also exists under Ohio R.C. Section 2929.27. .