COURT OF APPEALS OF OHIO EIGHTH DISTRICT COUNTY OF CUYAHOGA NOS. 70709 and 70710 RACHEL NICOLE VARNEY, et al. : : JOURNAL ENTRY Plaintiff-Appellants : : AND vs. : : OPINION SAMANTHA VARNEY, et al. : : Defendant-Appellees : : DATE OF ANNOUNCEMENT OF DECISION: October 23, 1997 CHARACTER OF PROCEEDING: Appeal from Juvenile Court Division No. 9312914 JUDGMENT: APPEAL DISMISSED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellants: JOSEPH G. STAFFORD JOHN J. DYER Joseph G. Stafford & Associates Co., L.P.A. 323 Lakeside Avenue, West 380 Lakeside Place Cleveland, Ohio 44113 For Defendant-Appellees: LORETTA A. COYNE 7055 Engle Road Suite 1-103 Middleburg Heights, Ohio 44130 -2- O'DONNELL, J.: Jeffrey Angle filed these consolidated appeals from an April 25, 1996 order of the juvenile court which relieved the visiting judge of his assignment to the cases, scheduled an evidentiary hearing on the matter of parental rights and responsibilities, and granted immediate rights to Samantha Varney to visit her daughters, Rachel and Miriah. Because none of these determinations of the juvenile court constitute a final appealable order, we are obligated to dismiss this appeal. The record reveals that Angle filed two now consolidated cases against Samantha Varney on behalf of Rachel and Miriah to establish paternity and to allocate parental rights and responsibilities between the parties. It further reveals that the trial court journalized an Interim Agreed Judgment Entry on April 20, 1994, but subsequently vacated and set aside that order on November 3, 1994. The facts more relevant to this appeal suggest that on April 25, 1996, Varney filed an Emergency Motion to Determine Interim Allocation of Parental Rights and Responsibilities, requesting the court to conduct an emergency hearing because she alleged Angle had severely limited her access to her children, charging that, she had no direct contact with them since March 19, 1995. In response to that motion, the juvenile court judge to whom the case had been assigned journalized an order that same day and relieved the visiting trial judge of his assignment to the matter, ordered an evidentiary hearing for the interim determination of parental rights to be held on May 1, 1996, and granted Varney visitation -3- rights, until further order of the court. It is from that April 25, 1996 entry that Angle now appeals and assigns three errors for our review, contending that the trial court was without jurisdiction to issue that entry, that a court may not issue an order pertaining to visitation without conducting a hearing, and that the order is void because he was never served with it. Prior to entertaining this appeal, however, our court directed appellant to demonstrate that the order from which this appeal is taken, constitutes a final appealable order. In compliance with our request, appellant filed a memorandum of law suggesting that pursuant to R.C. 2505.02 the juvenile court order affects a substantial right- possession of his children, and in accordance with a previous ruling of our court denying appellant's Writ of Prohibition (See State of Ohio, ex rel., Jeffrey A. Angle v. Judge Kenneth A. Rocco (April 30, 1996), Cuy. App. No. 70574, unreported), the April 25, 1996 order of the juvenile court is a final appealable order. We disagree. R.C. 2505.02 governs final orders and states, in part: An order that affects a substantial right in an action which in effect determines the action and prevents a judgment, an order that affects a substantial right made in a special proceedings or upon a summary application in an action after judgment, or an order that vacates or sets aside a judgment or grants a new trial is a final order that may be reviewed, affirmed, modified, or reversed, with or without retrial. In Cassim v. Cassim (1994), 98 Ohio App.3d 576, the court there, in dismissing an appeal from an order denying a motion for temporary visitation because it was interlocutory and not final, -4- stated, at p. 578: The denial of the motion for a temporary order***does not preclude a different judgment upon final determination of the case. This is true for two reasons. First, an interlocutory order is subject to modification any time prior to final judgment. The issue still remains before the trial court at the time of final judgment and must be reexamined at that time to determine whether the determinationpreviously made shall be part of the final judgment. Also, the denial of this motion is not such a distinct portion of the action as to constitute a separate claim within the contemplation of Civ.R. 54(B) so as to be made appealable immediately. In State of Ohio, ex rel., Jeffrey A. Angle v. Judge Kenneth A. Rocco (April 30, 1996), Cuy. App. No. 70574, unreported, our court denied Angle's petition for a Writ of Prohibition, to prevent Judge Kenneth Rocco from exercising any jurisdiction in the juvenile cases. In denying the writ, our court stated, at p. 3: ***In the present case prohibition does not lie because appeal is an adequate remedy.*** However, our court never concluded that the April 25, 1996 entry constituted a final appealable order. We merely indicated that appeal would be an adequate remedy. Here, the entry from which Angle now appeals granted interim visitation rights to Varney, until further order of the court, which were reviewable at the scheduled hearing on May 1, 1996, where the court indicated it would conduct an evidentiary hearing on the issue of parental rights and responsibilities. Also, because the April 25, 1996 order was subject to modification, it did not constitute a final judgment pursuant to Cassim, supra. Therefore, we conclude that the April 25, 1996 order did not constitute a final appealable order as defined in R.C. 2505.02, and -5- thus we lack jurisdiction to entertain this appeal. Appeal dismissed. It is ordered that appellee recover of appellant its costs herein taxed. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. MATIA, P.J., and SPELLACY, J., CONCUR JUDGE TERRENCE O'DONNELL -6- N.B. This entry is an announcement of the court's decision. See App.R. 22(B), 22(D) and 26(A); Loc.App.R. 27. This decision will be journalized and will become the judgment and order of the court pursuant to App.R. 22(E) unless a motion for reconsideration with supporting brief, per App.R. 26(A), is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court's announcement of decision by the .