Background
Mother and Father divorced in Monroe County in 2019, with Mother designated as primary residential parent. In 2025, Father moved to modify custody, citing a substantial change in circumstances including Mother’s DUI charge, stalking and assault charges, and interference with visitation. After a hearing, the trial court granted Father custody of the minor child on August 21, 2025.
Rather than appealing the August 21 custody order, Mother filed a motion captioned as a “Motion for New Trial Under Civ.R. 59 and Relief from Judgment Pursuant to Civ.R. 60(B).” Although the caption referenced Civ.R. 59, the body of the motion cited only Civ.R. 60(B) and argued newly discovered evidence. The trial court denied the motion on October 28, 2025. Mother then filed a notice of appeal from the October 28 judgment, asserting six assignments of error attacking not only the denial of post-judgment relief but also the underlying June 5 and August 21, 2025 judgments.
The Court’s Holding
The Seventh District held it had jurisdiction only over the October 28, 2025 denial of the Civ.R. 60(B) motion. Critically, the court found that although Mother’s motion was captioned as including a Civ.R. 59 new trial motion (which would extend the appeal deadline under App.R. 4(B)(2)(b)), the substance of the motion was exclusively a Civ.R. 60(B) motion. App.R. 4(B) does not list Civ.R. 60(B) motions as tolling the appeal period for the underlying judgment.
Consequently, five of Mother’s six assignments of error — which challenged the merits of the custody modification and the court’s UCCJEA jurisdiction — were not properly before the court. Mother’s counsel conceded at oral argument that the sixth assignment of error (challenging denial of post-judgment relief) also failed on the merits. The court affirmed.
Key Takeaways
- A Civ.R. 60(B) motion does not toll the time for filing a notice of appeal under App.R. 4(B) — only a Civ.R. 59 motion for new trial triggers the tolling provision.
- Courts look to the substance of a post-judgment motion, not its caption, to determine whether it qualifies under App.R. 4(B)(2)(b) — labeling a Civ.R. 60(B) motion as a Civ.R. 59 motion does not convert it.
- The failure to timely appeal a final custody order is jurisdictional and cannot be cured by filing a subsequent Civ.R. 60(B) motion and appealing the denial of that motion.
Why It Matters
This is a cautionary tale for family law practitioners. The distinction between Civ.R. 59 and Civ.R. 60(B) has critical jurisdictional consequences. Attorneys who wish to preserve the right to challenge a final custody order must either file a timely notice of appeal or file a substantive Civ.R. 59 motion (not merely a Civ.R. 60(B) motion with a Civ.R. 59 caption). This decision also confirms that Ohio appellate courts will look through the label to the substance of the motion when determining whether the App.R. 4(B) tolling provision applies.