In Rothman v. Rothman, 2009-Ohio-6410 [PDF] the Ohio Supreme Court held that every Ohio litigant has a due process right to appeal a trial court’s decision, provided a notice of appeal is timely filed. And the Court took an unusual step to ensure that litigants are afforded this right.
The appeal in this domestic relations case had been dismissed due to the retroactive application of Wilson v. Wilson, 2007-Ohio-6056 [PDF], which was issued the day after the notice of appeal was filed, and which held that a divorce decree is final and appealable even when it provides for the subsequent issuance of a qualified domestic relations order (QDRO). Applying Wilson retroactively, the Ninth District determined that the appeal was untimely even though it was filed less than thirty days after the QDRO, as the divorce decree had been issued five months earlier. The Supreme Court reversed, reasoning that prior to the issuance of Wilson, the settled law of the Ninth District was that a divorce decree was not appealable until after the QDRO was issued. As a result, if the notice of appeal had been filed within 30 days after the divorce decree, it would have been dismissed for lack of a final appealable order, and when it was filed within 30 days after the QDRO, it was dismissed as untimely.
To remedy this wrong, the Court remanded the case to the Ninth Distrct to allow the appellant a reasonable opportunity to file a notice of appeal. But the Court also instructed all Ohio courts of appeals to afford the same to other litigants who may have had their appeals denied after the issuance of Wilson:
We recognize that there may be similarly-situated litigants in other cases where appeals from a divorce decree that provides for the issuance of a QDRO have been dismissed based on the retroactive application of Wilson. Such litigants should be accorded the opportunity to file a notice of appeal. Accordingly, the courts of appeals are instructed to allow any similarly-situated litigants the opportunity to file notices of appeal, provided that such notices are filed on or before March 31, 2010.
This post was written by Jeffrey M. Nye.
