State ex rel. J.R. v. Jones ( 2022 )

[Cite as State ex rel. J.R. v. Jones, 2022-Ohio-4642.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
STATE EX REL., J.R., :
Relator, :
No. 111819
v. :
THE HONORABLE TONYA R. :
JONES, ET AL.,
Respondents. :
JOURNAL ENTRY AND OPINION
JUDGMENT: WRIT GRANTED IN PART AND
COMPLAINT DISMISSED IN PART
DATED: December 21, 2022
Writs of Prohibition
Motion No. 557995
Order No. 558672
Appearances:
Zashin & Rich Co., L.P.A., Jennifer M. Hanes and Jenna
C. Sholk, for relator.
Michael C. O’Malley, Cuyahoga County Prosecuting
Attorney, and Nora E. Poore, Assistant Prosecuting
Attorney, for respondents.
EILEEN A. GALLAGHER, J.:
Relator, J.R., seeks a writ of prohibition to prevent respondents,
Judge Tonya R. Jones and Magistrate Judy Jackson-Winston, from ordering or
conducting a predetermination parenting evaluation for purposes of ruling on a
motion to modify a divorce decree filed by a nonparty to this action, S.R., in an
underlying divorce case. J.R. further seeks a writ of prohibition to reverse a decision
by respondents, Judge Leslie A. Celebrezze and Magistrate Yosef Hochheiser, that
modified a domestic violence protection order. For the reasons that follow, we grant
a writ as to respondents Celebrezze and Hochheiser and dismiss the complaint as to
respondents Jones and Jackson-Winston, finding well-taken the motion to dismiss
as to them.
I. Background
According to the complaint for writs of prohibition, J.R. and S.R.
finalized their divorce on July 15, 2020, in J.R. v. S.R., Cuyahoga D.R. No. DR-19-
379662. That case was assigned to respondent Jones. S.R. failed to answer or
otherwise appear. As a result, a divorce decree was issued naming J.R. sole
residential parent. The decree did not provide S.R. with any parental rights, right to
visitation or custody of two minor children. However, the decree did state that
“[S.R.] is free to file a motion with the court allocating him parental rights and
responsibilities, including parenting time, at any time.”
On May 18, 2022, J.R. sought, and received, an ex parte domestic
violence protection order in J.R. v. S.R., Cuyahoga D.R. No. DV-22-389958. This
case was assigned to Judge Celebrezze whose magistrate is Hochheiser. A consent
agreement to a civil protection order was entered into on June 2, 2022. The
protection order named J.R. and three others, including the two minor children of
J.R. and S.R., as protected persons. The order prohibited S.R. from having contact
with or being within 500 feet of them. The order also contained the following
reservation of rights:
[S.R.] reserves the right to file a petition for parental rights and
responsibilities in Cuyahoga County Domestic Relations Court.
Cuyahoga County Domestic Relations Court should conduct an
independent evaluation regarding parental rights and responsibilities
and should not use this protection order as the sole means of denying
[S.R.] parental rights and responsibilities.
The order indicated that the parties were required to follow all decrees in their
divorce case.
In a separate section of the protection order, the consent agreement
civil protection order form used by the court and signed by S.R. and J.R. had the
following language added to item 18(B):
[S.R.] reserves the right to file a petition for parental rights and
responsibilities in Cuyahoga County Domestic Relations Court.
Cuyahoga County Domestic Relations Court should conduct an
independent evaluation regarding parental rights and responsibilities
and should not use this protection order as the sole means of denying
[S.R.] parental rights and responsibilities.
The Domestic Violence Court will change the terms and conditions of
this Protection Order if/and when Cuyahoga County Domestic
Relations Court orders parental rights and responsibilities.
The protection order form does have a box for this section in item 18(B) that was not
checked. Instead, the box above it, for 18(A), indicating that S.R.’s parenting time
rights were suspended, was checked.
On June 2, 2022, S.R. filed a motion to modify the divorce decree to
allow him parenting time. Pursuant to R.C. 3109.04(C) and the court’s local rules,
an order was issued for the parties to cooperate in a custody evaluation to be
conducted by the domestic relations court’s Family Evaluation Services
Department. This order was signed by respondents Jones and Jackson-Winston.
J.R. sought to oppose the order or seek clarification by filing several motions, citing
among other things, that the protection order prohibited contact between S.R. and
the children. J.R. also filed an emergency motion for an attorney conference in the
protection order case on July 21, 2022, in which she asserted that a staff member of
the Family Evaluation Services Department informed her or her attorney that a
request had been made to the magistrate in the protection order case to amend the
protection order to allow the evaluation to go forward. In the motion, J.R. argued
that the court could not modify the terms of the protection order without a motion
before it. On August 3, 2022, an entry was journalized amending the consent
agreement civil protection order. The entry stated:
This matter has been referred to the Court’s Family Evaluation Services
Department for an evaluation and report regarding the allocation of
parental rights and responsibilities under CR-19-379662. A consent
agreement civil protection order was issued on June 2, 2022[,]
prohibiting, among other things, contact between [S.R.] and [J.R.] and
contact between [S.R.] and the minor children.
It is hereby ordered that the consent agreement civil protection order
of June 2, 2022 is hereby modified as follows:
As a limited exception to Items 6, 7, and 13 of the ex parte
civil protection order of May 18, 2022,1 [S.R.] shall be
entitled to contact with [J.R.] and the minor children of
the parties * * * as directed by the Court’s Family
1 The ex parte civil protection order is not in the record before this court. Therefore,
it is unclear exactly what these provisions state.
Evaluation Services. This contact shall be limited to dates
and times specifically established by the Court’s Family
Evaluation Services, and are to take place only at the
offices of the Court’s Family Evaluation Services
Department. [S.R.] shall not be unsupervised with the
minor children at any time.
This order was signed by respondents Celebrezze and Hochheiser. The order further
denied J.R.’s emergency motion for an attorney conference.
On August 9, 2022, after this court was closed for the day, J.R. filed
the instant complaint for writs of prohibition in an effort to stop the custody
evaluation that was to take place the next morning at 9:30 a.m. This court issued an
order setting an abbreviated briefing schedule on August 10, 2022, but did not
otherwise issue an order to stop the evaluation from going forward. Following that
order, J.R. filed a motion for alternative writ, which we denied on August 16, 2022.
Respondents filed a combined motion to dismiss the complaint on August 24, 2022.
J.R. filed a brief in opposition on August 31, 2022. Respondents then filed a reply
brief on September 6, 2022, arguing against claims that were made by J.R. for the
first time in her opposition brief. On September 12, 2022, J.R. sought to strike the
reply brief or, in the alternative, for leave to file a sur-reply brief. This court denied
the motion to strike but granted J.R. leave to file a sur-reply brief, which she did on
September 26, 2022.
II. Law and Analysis
A. Standards Applicable to This Action
A writ of prohibition may issue when a relator establishes that an
official is about to exercise judicial or quasi-judicial power, that the exercise of that
power is unauthorized by law and that the relator lacks an adequate remedy in the
ordinary course of law. State ex rel. Bell v. Pfeiffer, 131 Ohio St.3d 114, 2012-Ohio-
54, 961 N.E.2d 181, ¶ 18. With limited exception, “a writ of prohibition ‘tests and
determines “solely and only” the subject matter jurisdiction’ of the lower
court.” State ex rel. Jones v. Suster, 84 Ohio St.3d 70, 73, 701 N.E.2d 1002 (1998),
quoting State ex rel. Eaton Corp. v. Lancaster, 40 Ohio St.3d 404, 409, 534 N.E.2d
46 (1988), quoting State ex rel. Staton v. Franklin Cty. Common Pleas Court, 5 Ohio
St.2d 17, 21, 213 N.E.2d 164 (1965). “‘[A]bsent a patent and unambiguous lack of
jurisdiction, “a court having general subject-matter jurisdiction can determine its
own jurisdiction, and a party challenging that jurisdiction has an adequate remedy
by appeal.”’” State ex rel. Mason v. Burnside, 117 Ohio St.3d 1, 2007-Ohio-6754,
881 N.E.2d 224, ¶ 10, quoting State ex rel. Powell v. Markus, 115 Ohio St.3d 219,
2007-Ohio-4793, 874 N.E.2d 775, ¶ 8, quoting State ex rel. Shimko v. McMonagle,
92 Ohio St.3d 426, 428-429, 751 N.E.2d 472 (2001). “A court will typically ‘deny
relief in prohibition when a respondent judge has general subject-matter
jurisdiction and will deem any error by the judge to be an error in the exercise of
that jurisdiction.’” Santomauro v. McLaughlin, Slip Opinion No. 2022-Ohio-2441,
¶ 14, quoting State ex rel. Sponaugle v. Hein, 153 Ohio St.3d 560, 2018-Ohio-3155,
108 N.E.3d 1089, ¶ 24. However, where a court patently and unambiguously lacks
jurisdiction, prohibition may issue regardless of whether the relator possesses other
adequate remedies, such as an appeal. State ex rel. Elder v. Camplese, 144 Ohio
St.3d 89, 2015-Ohio-3628, 40 N.E.3d 1138, ¶ 13, citing Chesapeake Exploration,
L.L.C. v. Oil & Gas Comm., 135 Ohio St.3d 204, 2013-Ohio-224, 985 N.E.2d 480,
¶ 11.
This matter is before this court on respondents’ motion to dismiss for
failure to state a claim. Civ.R. 12(B)(6), dismissal for failure to state a claim, allows
for the expedient adjudication of claims where “it appears beyond doubt, after
presuming the truth of all material factual allegations in the complaint and making
all reasonable inferences in [relator’s] favor, that [relator] is not entitled to
extraordinary relief in prohibition.” State ex rel. Jones v. Paschke, Slip Opinion No.
2022-Ohio-2427, ¶ 5, citing State ex rel. Hemsley v. Unruh, 128 Ohio St.3d 307,
2011-Ohio-226, 943 N.E.2d 1014, ¶ 8.
B. Sua Sponte Modification of a Civil Protection Order
J.R. argues that respondents Celebrezze and Hochheiser lack
jurisdiction to modify the protection order issued in the underlying case. We will
address this claim first.
A court may vacate or modify a final order pursuant to Civ.R. 60(B)
but may not do so sua sponte. See Dickerson v. Cleveland Metro. Hous. Auth., 8th
Dist. Cuyahoga No. 96726, 2011-Ohio-6437, ¶ 7. A court may sua sponte correct an
otherwise final judgment to eliminate a “clerical mistake.” Civ.R. 60(A); Ashburn v.
Roth, 12th Dist. Butler Nos. CA2006-03-054 and CA2006-03-070, 2007-Ohio-
2995, ¶ 22-23. Apart from Civ.R. 60, where there is a reservation of jurisdiction to
modify an otherwise final order, a court has authority to modify what would
normally constitute a final order. See In re A.G., 139 Ohio St.3d 572, 2014-Ohio-
2597, 13 N.E.3d 1146, ¶ 42-43. The domestic violence protection order statute
contains such a modification provision at R.C. 3113.31(E)(8). This section states:
The court may modify or terminate as provided in division (E)(8) of
this section a protection order or consent agreement that was issued
after a full hearing under this section. The court that issued the
protection order or approved the consent agreement shall hear a
motion for modification or termination of the protection order or
consent agreement pursuant to division (E)(8) of this section.
The statute goes on to provide the framework for modification, including the factors
a court should consider when ruling on a motion to modify filed by a party. Civ.R.
75(J) also provides, generally, for the continuing jurisdiction of a domestic relations
court to modify decrees but states that it must be invoked by motion and “served in
the manner provided for service of process under Civ.R. 4 to 4.6.”2 Civ.R. 65.1(C)(4)
also indicates that a motion for modification must be served in the manner provided
by Civ.R. 4 through 4.6.
2 However, it is noted that the Ohio Rules of Civil Procedure “shall not be construed
to extend or limit the jurisdiction of the courts of this state.” Civ.R. 82.
The order purporting to modify the protection order in this case does
not state under what authority it was modified. So, each will be analyzed in turn.3
Civ.R. 60(A) provides in part, “Clerical mistakes in judgments, orders
or other parts of the record and errors therein arising from oversight or omission
may be corrected by the court at any time on its own initiative or on the motion of
any party and after such notice, if any, as the court orders.” However, correction is
limited to clerical errors or omissions and may not be used to make substantive
changes to a final order. State ex rel. Litty v. Leskovyansky, 77 Ohio St.3d 97, 100,
671 N.E.2d 236 (1996). “The term ‘clerical mistake’ refers to a mistake or omission,
mechanical in nature and apparent on the record which does not involve a legal
decision or judgment.” Id., citing Londrico v. Delores C. Knowlton, Inc., 88 Ohio
App.3d 282, 285, 623 N.E.2d 723 (9th Dist.1993).
“The basic distinction between clerical mistakes that can be corrected
under Civ.R. 60(A) and substantive mistakes that cannot be corrected
is that the former consists of ‘blunders in execution’ whereas the latter
consists of instances where the court changes its mind, either because
it made a legal or factual mistake in making its original determination,
or because, on second thought, it has decided to exercise its discretion
in a different manner.”
Londrico at 285, quoting Kuehn v. Kuehn, 55 Ohio App.3d 245, 247, 564 N.E.2d 97(12th Dist.1988), citing Blanton v. Anzalone, 813 F.2d 1574, 1577 (9th Cir.1987).
Respondents do not allege that the protection order was modified through the use
3 A court, generally, cannot sua sponte amend a final judgment pursuant to Civ.R.
60(B). See, e.g., In re W.R.P., 8th Dist. Cuyahoga No. 99010, 2013-Ohio-702, ¶ 6-9; Bender
v. Summa Rehab Hosp., LLC, 9th Dist. Summit No. 29865, 2021-Ohio-3809, ¶ 18.
of Civ.R. 60 and we do not find any indication that it is applicable to the modification
made in this case.
Case law exists that indicates a court has inherent authority to modify
a protection order based on changing circumstances. Previously, this court, and
others, have held that a judge has inherent jurisdiction to modify a protection order.
Cipriani v. Ehlert, 8th Dist. Cuyahoga No. 103767, 2016-Ohio-5840; L.M.W. v. B.A.,
8th Dist. Cuyahoga No. 110783, 2022-Ohio-2416; Prostejovsky v. Prostejovsky, 5th
Dist. Ashland No. 06-COA-033, 2007-Ohio-5743. At the time these cases were
decided, there was no statutory provision that allowed for modification of a
protection order. That has since changed. The statute was changed to include a
mechanism for the amendment of a domestic violence protection order. See R.C.
3113.31(E)(8).
In State v. G.K., Slip Opinion No. 2022-Ohio-2858, the Supreme
Court of Ohio held that where the General Assembly has provided a means to
accomplish something, a court does not have inherent authority to accomplish the
same through other means not specified by the General Assembly. The holdings in
the above cases, that a court has inherent authority to modify a protection order,
likely do not survive amendment of the statute and the pronouncement in G.K.
Therefore, we turn to the statutory authority to modify a protection order.
R.C. 3113.31(E)(8)(a) specifically provides a reservation of
jurisdiction to modify orders of protection. It states, in part, that a “court may
modify or terminate as provided in division (E)(8) of this section a protection order
or consent agreement that was issued after a full hearing under this section.” The
statute goes on to state that the way a court may do so is on motion of the parties:
“The court that issued the protection order or approved the consent agreement shall
hear a motion for modification or termination of the protection order or consent
agreement pursuant to division (E)(8) of this section.” R.C. 3113.31(E)(8)(a). In
order to modify a protection order or consent agreement, the statute contemplates
a motion filed by either of the parties: “Either the petitioner or the respondent of
the original protection order or consent agreement may bring a motion for
modification or termination of a protection order or consent agreement that was
issued or approved after a full hearing. The court shall require notice of the motion
to be made as provided by the Rules of Civil Procedure.” R.C. 3113.31(E)(8)(b).
There was no motion pending before respondent Celebrezze when she
issued an order purporting to modify the otherwise final and appealable order of
protection. R.C. 3113.31 does not provide jurisdiction for this sua sponte
modification.
Respondents argue that the protection order itself provides
continuing jurisdiction to modify. Paragraph 28 of the consent agreement to civil
protection order states, “THIS ORDER SURVIVES a divorce, dissolution of
marriage, or legal separation. Any subsequent order from this Court, another
domestic relations court, or juvenile court may modify paragraphs 16, 17, 18, and
19.” (Emphasis sic.) Respondents contend that this provision provides continuing
jurisdiction to modify a final order. However, this statement in the order is not a
clear reservation of jurisdiction to respondent Celebrezze to modify the order and
does not specifically contemplate further action.
Further, even if this section did provide continuing jurisdiction to
modify paragraphs 16, 17, 18, and 19 of the consent agreement to civil protection
order, the journal entry that purports to modify the protection order does not modify
any of these paragraphs. The journal entry states that
the Consent Agreement Civil Protection Order of June 2, 2022 is
hereby modified as follows:
As a limited exception to Items 6, 7, and 13 of the Ex Parte Civil
Protection Order of May 18, 2022, Respondent, [S.R.] shall be entitled
to contact with the petitioner, [J.R.] and the minor children * * * as
directed by the Court’s Family Evaluation Services.”
This modification does not involve paragraphs 16 (designation of residential
parent), 17 (temporary allocation of parental rights), 18 (temporary parenting time
orders), or 19 (orders to law enforcement to assist in obtaining physical custody of
children) of the protection order. Therefore, we do not find that the protection order
itself provides a clear reservation of jurisdiction that would allow respondent
Celebrezze to modify an otherwise final order.
Sup.R. 10.06(B)(1) states that “[i]f a court has issued a protection
order * * * or an order allocating parental rights and responsibilities and becomes
aware another court has issued a conflicting order, the court should consider, if
appropriate, revising its order to avoid conflict between the orders.” The rule goes
on to provide that a court “shall consider and may adopt a local rule of court creating
a procedure by which the court may revise its orders pursuant to (B)(1) of this rule.”
The parties have pointed to no such local rule of the domestic relations court.
A court may not modify a final order without a source of jurisdiction.
Maxwell v. Univ. Hosps. Health Sys., 8th Dist. Cuyahoga No. 104100, 2016-Ohio-
7401, ¶ 5, citing Dickerson v. Cleveland Metro. Hous. Auth., 8th Dist. Cuyahoga No.
96726, 2011-Ohio-6437, ¶ 7, citing N. Shore Auto Financing, Inc. v. Valentine, 8th
Dist. Cuyahoga No. 90686, 2008-Ohio-4611, ¶ 12. See also Rodefer v. Colbert, 2015-
Ohio-1982, 35 N.E.3d 852, ¶16 (2d Dist.) (“[T]rial courts lack jurisdiction to modify
prior final orders, absent the use of recognized methods for modifying such orders,
like motions for Civ.R. 60(B) relief.”). Any attempt to do so without jurisdiction
results in a void order. Id. at ¶ 7, citing Pitts v. Ohio Dept. of Transp., 67 Ohio St.
2d 378, 379-380, 423 N.E.2d 1105 (1981). “Where an inferior court patently and
unambiguously lacks jurisdiction over the cause, prohibition will lie both to prevent
the future unauthorized exercise of jurisdiction and to correct the results of previous
jurisdictionally unauthorized actions.” State ex rel. Stern Pros. Atty. v. Mascio, 81
Ohio St.3d 297, 298-299, 691 N.E.2d 253 (1998), citing State ex rel. Rogers v.
Brown, 80 Ohio St.3d 408, 410, 686 N.E.2d 1126 (1997). See also Page v. Riley, 85
Ohio St.3d 621, 623, 710 N.E.2d 690 (1999).
Here, the protection order provides that S.R. may file a motion for
parenting time and the judge hearing the divorce case would conduct a family
evaluation in order to decide the motion. However, that does not evidence a
reservation of jurisdiction to modify a final order. J.R. has demonstrated that
respondents Celebrezze and Hochheiser have exercised judicial authority that is
clearly not authorized by law. Respondents Celebrezze and Hochheiser are patently
and unambiguously without jurisdiction to modify a final order in this case. No
further evidence or argument is necessary. Relator has demonstrated entitlement
to a writ of prohibition. Therefore, we issue a writ of prohibition and order
respondent Celebrezze to vacate the August 3, 2022 order modifying the June 2,
2022 consent agreement civil protection order.
C. Court-ordered Evaluation
J.R. argues that respondents Jones and Jackson-Winston lack
jurisdiction or exceeded their jurisdiction to order S.R. to come into contact with
J.R.’s children to participate in an evaluation as part of a process to determine
whether there should be a modification of the divorce decree to allow parental
visitation.
After a divorce decree is issued, a domestic relations court judge
retains jurisdiction to modify orders related to parenting time on motion of a party.
R.C. 3109.04; 3109.051. S.R. filed a motion for parenting time in the divorce case.
According to these statutory provisions, respondents Jones and Jackson-Winston
do not patently and unambiguously lack jurisdiction to conduct proceedings to
determine S.R.’s motion to modify parenting time.
A domestic relations court has subject-matter jurisdiction over
matters of divorce, including continuing jurisdiction to modify decrees of divorce to
allow for parenting time. A protection order does not remove from a judge of the
domestic relations court the ability to make those determinations or to issue orders
necessary for their adjudication. As the Supreme Court of Ohio has noted, certain
provisions of a protection order must give way to facilitate other orders of a domestic
relations court in relation to the care, custody, and visitation of children. State v.
Price, 118 Ohio St.3d 144, 2008-Ohio-1974, 886 N.E.2d 852, ¶ 20, 27. In fact, R.C.
3113.31(E)(3)(b) contemplates that an action for a protection order and an action
that seeks to allocate parental rights in a domestic relations court may occur in
parallel. The statute provides that any temporary allocation of parental rights or
visitation made in a protection order end when a court hearing a divorce, dissolution
of marriage, or legal separation action issues an order allocating parental rights or
visitation. Id. The fact that there is a protection order in place does not interfere
with respondent Jones’ jurisdiction to allocate parental rights.
Therefore, respondents Jones and Jackson-Winston do not patently
and unambiguously lack jurisdiction to order an independent evaluation of the
parents and children that is necessary for the proper determination of S.R.’s motion
to modify. The statutory scheme specifically provides that jurisdiction.
J.R. further argues that the order mandating an evaluation was issued
by Magistrate Jackson-Winston and this exceeds the scope of authority of the
magistrate under Civ.R. 53. J.R. asserts that Magistrate Jackson-Winston may not
issue an order for evaluation because that order essentially determines whether S.R.
should have contact with the children.
The entry that ordered an evaluation in the underlying case is not
identified as a magistrate’s order and it is signed by both respondents Jones and
Jackson-Winston. Therefore, it is unclear if this is, in fact, a magistrate’s order. For
the moment, we will assume that it is.
Pursuant to Civ.R. 53(D)(2)(a), a magistrate, without judicial
approval, may enter orders necessary for the regulation of the proceedings so long
as the order is not dispositive of any claim or defense. A court-ordered evaluation
does not grant a change in custody, visitation, or parental rights nor is it dispositive
of any claim or defense. In a case before the Tenth District, a magistrate issued an
order similar to the one at issue in this case and that court overruled an assignment
of error similar to J.R.’s argument claiming that the order was void. Tassone v.
Tassone, 10th Dist. Franklin No. 19AP-382, 2020-Ohio-3151.
J.R. argues that the magistrate’s order, in effect, determines the
substantive issue of whether the children should have any contact with S.R. That is
not a substantive issue that is determined by a court-ordered evaluation. The
motion under consideration is for a modification of parental visitation. A court-
ordered and supervised evaluation is not the same as determining whether S.R.’s
motion be granted or denied or whether any substantive defense that J.R. may have
to that motion is applicable.
Even if J.R.’s argument is correct and a magistrate could not issue the
order under Civ.R. 53(D)(2)(a), that does not mean that a writ of prohibition may
issue. The order in question is not identified as a magistrate’s order and is signed
by the judge presiding over the case. As explained earlier, the domestic relations
court has continuing jurisdiction to conduct proceedings related to matters of child
custody, visitation, and parental rights. In the course of deciding a motion to modify
parental rights, a court may order an evaluation of the parents and children. R.C.
3109.04(C); Civ.R. 75(D). Respondent Jones has jurisdiction to modify prior orders,
hold hearings and order evaluations. Any irregularity in the exercise of that
jurisdiction is not a suitable basis for prohibition. The order directing S.R. to
participate in an evaluation when there is a protection order in place may place S.R.
in a precarious situation that courts should endeavor to avoid,4 but S.R. is not the
one before us seeking relief. If S.R. is concerned about conflicting orders, he could
file a motion to modify the protection order or to consolidate the cases.5
Further, this case does not call for prohibition based on the conflicting
nature of the orders at issue. The jurisdictional-priority rule is, generally, the source
of authority for granting a writ of prohibition where conflicting orders may result.
This rule “provides that as between state courts of concurrent jurisdiction, the
tribunal whose power is first invoked acquires exclusive jurisdiction to adjudicate
the whole issue and settle the rights of the parties.” State ex rel. Consortium for
4 See Sup.R. 10.06.
5 Although the local rules of the Cuyahoga County Common Pleas Court, Domestic
Relations Division, may not allow for consolidation of domestic violence cases. We further
note that the Fourth District has found that when a parent tried to litigate the issue of
parenting time within a protection order action, a court erred in not sua sponte
consolidating the action with other divorce proceedings. Yazdani-Isfehani v. Yazdani-
Isfehani, 170 Ohio App.3d 1, 2006-Ohio-7105, 865 N.E.2d 924, ¶ 2 (4th Dist.).
Economic & Community Dev. for Hough Ward 7 v. Russo, 151 Ohio St.3d 129, 2017-
Ohio-8133, 86 N.E.3d 327, ¶ 8, citing State ex rel. Dunlap v. Sarko, 135 Ohio St.3d
171, 2013-Ohio-67, 985 N.E.2d 450, ¶ 9. The rule promotes judicial economy and
helps to avoid inconsistent results. Id. at ¶ 10. When the rule applies, it provides
that the judge whose jurisdiction is invoked second patently and unambiguously
lacks jurisdiction because the judge whose jurisdiction is first invoked has exclusive
jurisdiction to decide the issue. Id. at ¶ 9. This rule does not apply where cases are
pending before different judges of the same court because a motion to consolidate
provides a means of relief that is not available in other situations. Id. at ¶ 10.
Therefore, this court declines to issue a writ of prohibition as to
respondents Jones and Jackson-Winston. Those respondents do not patently and
unambiguously lack jurisdiction. Further, these respondents’ actions are
specifically authorized by law, which precludes relief in prohibition. Therefore, J.R.
is unable to demonstrate any entitlement to relief in prohibition as to them.
Respondents’ motion to dismiss is granted as to respondents Jones
and Jackson-Winston. A writ of prohibition is granted as to respondents Celebrezze
and Hochheiser. They are directed to vacate the order modifying the protection
order as indicated in this opinion.
Respondents to bear the costs of this action; costs waived. The clerk
is directed to serve on the parties notice of this judgment and its date of entry upon
the journal. Civ.R. 58(B).
Writ granted in part and complaint dismissed in part.
_________________________
EILEEN A. GALLAGHER, JUDGE
ANITA LASTER MAYS, P.J., CONCURS;
MARY J. BOYLE, J., DISSENTS IN PART (WITH SEPARATE OPINION)
MARY J. BOYLE, J., DISSENTING IN PART:
While I agree with the majority that Respondent Celebrezze was
without jurisdiction to sua sponte modify the civil protection consent agreement, I
respectfully disagree with the majority’s decision to decline to issue a writ of
prohibition to Respondents Jones and Jackson-Winston. Because Respondent
Jones’s order to submit to family evaluation services resulted in an injury to J.R. and
her minor children for which no other adequate remedy exists in the ordinary course
of law, I would grant a writ of prohibition. To conclude otherwise would place J.R.
and her minor children in potential harm, which is exactly what the civil protection
consent agreement sought to prevent. As a result, I would deny Respondents’
motion to dismiss in its entirety.
Family Evaluation Order in Case No. DR-19-379662
With regard to the family evaluation order, the majority declines to
issue a writ of prohibition against Respondents Jones and Jackson-Winston, finding
that the Respondent Jones had authority to issue the order and that irregularity in
the exercise of jurisdiction is not a suitable basis for prohibition. While I agree that
Respondent Jones has authority to issue an evaluation order, I disagree that there
is no basis to issue prohibition.
By directing the parties to participate in an evaluation with a
protection order in effect, Respondent Jones places J.R. and her minor children in
a situation the consent agreement sought to avoid. J.R. provided evidence that S.R.
was convicted of a misdemeanor domestic violence criminal offense in Medina
County and has a drug and alcohol problem and that he agreed to suspend his
parental rights. Indeed, the evaluation order placed the parties in a situation where
they are required to either violate the civil protection consent agreement in Case No.
DV-22-389958 or the evaluation ordered in Case No. DR-19-379662. The parties
should not be subjected to this legal dilemma for violating a protection order or
being found in contempt for disobeying a court order. Moreover, Respondent Jones
and Jackson-Winston did not order an expert to complete an assessment to
determine if it would be harmful prior to ordering the children to meet with S.R.
The majority decision acknowledges that Sup.R. 10.06 contemplates
the situation presented here and provides that the judges of the domestic relations
court must work together to avoid creating conflicting orders. Sup.R. 10.06(B)(2)
advises a court to adopt a local rule of court to avoid creating and resolving these
conflicting orders. In fact, Loc.R. 26(A)(3) of the Court of Common Pleas of
Cuyahoga County, Domestic Relations Division, provides that the petition for
domestic violence civil protection order should have been assigned to Respondent
Jones, rather than Respondent Celebrezze.
Respondent Jones’s family evaluation order places J.R. and her
minor children in a situation where no other adequate remedy exists in the ordinary
course of the law. Respondent Jones ordered J.R. to bring the minor children to
attend in person and have contact with S.R., who just agreed to suspend his
parenting time with the children, has been convicted of domestic violence, and
admittedly has drug and alcohol issues. “Prohibition will lie when the inferior
court’s exercise of judicial power is unauthorized by law and would result in an
injury for which no other adequate remedy exists in the ordinary course of the law.”
State ex rel. Thomas v. McGinty, 164 Ohio St.3d 167, 2020-Ohio-5452, 172 N.E.3d
824, ¶ 71 (Kennedy, J., dissenting), citing State ex rel. Elder v. Camplese, 144 Ohio
St.3d 89, 2015-Ohio-3628, 40 N.E.3d 1138, ¶ 13. I find prohibition is necessary here
to prevent this injury.
Therefore, for the reasons stated above, I would deny respondents’
motion to dismiss in its entirety and issue the writs of prohibition.