In re A.B. , 2019 Ohio 90 ( 2019 )

[Cite as In re A.B., 2019-Ohio-90.]
IN THE COURT OF APPEALS OF OHIO
FOURTH APPELLATE DISTRICT
ATHENS COUNTY
IN THE MATTER OF: : Case No. 18CA13
A.B. D.O.B. 7/21/2011 :
B.B. D.O.B. 7/21/2014 :
:
JARVIS BATEMAN, :
: DECISION AND JUDGMENT
Plaintiff-Appellee, : ENTRY
:
vs. :
:
GINA SUFRONKO, :
:
Defendant-Appellant. : Released: 01/08/19
_____________________________________________________________
APPEARANCES:
Susan L. Gwinn, Athens, Ohio, for Appellant.
K. Robert Toy, Athens, Ohio, for Appellee.
_____________________________________________________________
McFarland, J.
{¶1} Gina Sufronko, mother of A.B. and B.B., appeals the Juvenile
Division of the Athens County Court of Common Pleas’ judgment granting
Jarvis Bateman, alleged father of A.B. and B.B., full custody of both A.B.
and B.B. On appeal, Appellant contends that 1) an adjudication granting
custody to the putative father and assigning parental rights and
responsibilities should be set aside where the biological mother was denied
her right to be represented by counsel, was not properly notified of the
Athens App. No. 18CA13 2
hearing, and where she had no opportunity to present arguments or to be
heard at said hearing, as violating the substantive and due process rights of
the mother; and 2) an adjudication granting custody to the putative father
and assigning parental rights and responsibilities should be set aside where
the father has not established paternity, as the court lacked subject matter
jurisdiction. Because we conclude questions regarding whether Jarvis
Bateman was, in fact, the biological father of the children did not divest the
juvenile court of subject matter jurisdiction with respect to a custody
complaint filed in juvenile court, Appellant’s second assignment of error is
overruled. Further, although we reject the arguments raised under
Appellant’s first assignment of error, we have sua sponte determined that the
trial court failed to make a best interest determination in granting Appellee
custody of the children at issue. As such, the judgment of the trial court
must be reversed and this matter is remanded for further proceedings
consistent with this opinion.
FACTS
{¶2} Appellee, Jarvis Bateman, filed a complaint for custody/court
ordered visitation on June 21, 2017, essentially alleging that he was
concerned for the safety of his children, A.B. and B.B., and that Appellant,
the mother of the children, had recently moved out of the family’s home,
Athens App. No. 18CA13 3
was living with another man, and had a known drug addiction. Appellee
attached an affidavit in support of his complaint averring, among other
things, that he was the biological father of the children at issue, that he was
present at the birth of both of the children, and that he had lived with them
until two months prior. The record further reflects that the parties were
never married, there had been no prior legal custody determinations, and the
children were not wards of any other court. Further, there is no evidence in
the record regarding Appellee’s establishment of paternity regarding the
children.
{¶3} An initial hearing was held on August 31, 2017. Appellant
appeared pro se and Appellee appeared with counsel. The parties requested
mutual drug testing, which was ordered by the magistrate. A second hearing
was held on November 9, 2017. Appellant appeared pro se, but requested a
continuance citing the fact she had an appointment scheduled with attorney
Christopher Tenoglia. The trial court denied the request for a continuance
and in light of the fact Appellant’s drug screen was positive and Appellee’s
was negative, the magistrate placed the children in the temporary custody of
Appellee. A third hearing was held on February 15, 2018. Appellant again
appeared pro se, explaining that she had spoken with Attorney Tenoglia’s
secretary and had paid his office a significant sum of money. However, Mr.
Athens App. No. 18CA13 4
Tenoglia had not yet entered an appearance and did not appear at the
hearing. The magistrate continued the temporary custody order with
Appellee and urged Appellant to obtain counsel and get her counsel involved
on her behalf.
{¶4} The court scheduled a final hearing on April 19, 2018. The
hearing notice issued by the clerk listed Attorney Toy’s name at the bottom,
but did not list Appellant’s name or the guardian ad litem’s name. A review
of the record reveals that none of the notices of hearing sent by the clerk
included Appellant’s name. Some listed the guardian’s name. All of them
listed Attorney Toys’ name. The final hearing was held on April 19, 2018,
and Appellant failed to appear. Upon inquiring with the deputy clerk as to
whether Appellant was properly served and being satisfied that she was, the
magistrate proceeded with a short hearing, noting that Appellee would
essentially be granted “Judgment by Default” due to Appellant’s failure to
appear.
{¶5} Thereafter, Appellant retained counsel and filed a motion to set
aside the judgment as well as a motion for paternity testing. Appellant
argued she did not receive notice of the final hearing. The magistrate denied
the motions. At the request of the trial court, Attorney Toy drafted a short
entry for the court’s signature noting Appellant’s failure to appear, awarding
Athens App. No. 18CA13 5
custody of the children to Appellee, and limiting Appellant’s parenting time
to the sole discretion of Appellee. It is from this final order that Appellant
now brings her timely appeal, assigning the following errors for our review.
ASSIGNMENTS OF ERROR
“I. AN ADJUDICATION GRANTING CUSTODY TO THE
PUTATIVE FATHER AND ASSIGNING PARENTAL RIGHTS
AND RESPONSIBILITIES SHOULD BE SET ASIDE WHERE THE
BIOLOGICAL MOTHER WAS DENIED HER RIGHT TO BE
REPRESENTED BY COUNSEL, WAS NOT PROPERLY
NOTIFIED OF THE HEARING, AND WHERE SHE HAD NO
OPPORTUNITY TO PRESENT ARGUMENTS OR TO BE HEARD
AT SAID HEARING AS VIOLATING THE SUBSTANTIVE AND
PROCEDURAL DUE PROCESS RIGHTS OF THE MOTHER.
II. AN ADJUDICATION GRANTING CUSTODY TO THE
PUTATIVE FATHER AND ASSIGNING PARENTAL RIGHTS
AND RESPONSIBILITIES SHOULD BE SET ASIDE WHERE THE
FATHER HAS NOT ESTABLISHED PATERNITY AS THE
COURT LACKED SUBJECT MATTER JURISDICTION.”
ASSIGNMENT OF ERROR II
{¶6} We address Appellant’s second assignment of error first, out of
order, as it raises a subject-matter jurisdiction argument. In her second
assignment of error, Appellant contends that the trial court’s adjudication
granting custody to Appellee, who Appellant characterizes as the putative
father, and assigning parental rights and responsibilities should be set aside
as Appellee has not established paternity and the trial court lacked subject-
matter jurisdiction. Appellant contends the issue presented is whether a
Athens App. No. 18CA13 6
court has subject-matter jurisdiction to decide legal custody and assign
parental rights and responsibilities in the absence of the establishment of
paternity.
{¶7} The existence of the trial court's subject matter jurisdiction is a
question of law that we review de novo. Tewksbury v. Tewksbury, 4th Dist.
Pike No. 07CA771, 2008–Ohio–4600, ¶ 15; citing State ex rel. ACCSEA v.
Balch, 4th Dist. Athens No. 06CA26, 2007–Ohio–7168, ¶ 22; Yazdani–
Isfehani v. Yazdani–Isfehani, 170 Ohio App. 3d 1, 2006–Ohio–7105, 865
N.E.2d 924, ¶ 20; citing State v. Moore, 4th Dist. Highland No. 03CA18,
2004–Ohio–3977, ¶ 8, and Burns v. Daily, 114 Ohio App. 3d 693, 701, 683
N.E.2d 1164 (1996). Therefore, we do not grant any deference to the trial
court's conclusion, Tewksbury, supra; citing Balch at ¶ 22. Here, we note
that Appellant never challenged the trial court’s subject-matter jurisdiction
of this matter below. However, “[b]ecause subject-matter jurisdiction goes
to the power of the court to adjudicate the merits of a case, it can never be
waived and may be challenged at any time.” Pratts v. Hurley, 102 Ohio
St.3d 81, 2004-Ohio-1980, 806 N.E.2d 992, ¶ 11.
{¶8} “ ‘* * * Jurisdiction * * * is the “right and power to * * * apply
the law[.]” ’ ” State v. Lowery, 4th Dist. Ross No. 16CA3533, 2016-Ohio-
7701, ¶ 7; quoting State v. Rode, 11th Dist. Portage No. 2010–P–0015,
Athens App. No. 18CA13 7
2011–Ohio–2455,¶ 15; in turn quoting The American Heritage Dictionary,
Second College Edition 694 (1982). “Subject-matter jurisdiction” is used
when referring to a court's authority to act. Lowery at ¶ 7; citing Cleveland v.
Persaud, 6 N.E.3d 701, ¶ 16 (Feb. 10, 2014). “Subject-matter jurisdiction”
of a court connotes the power to hear and decide a case upon its merits, and
defines the competency of a court to render a valid judgment in a particular
action. Id. A judgment rendered by a court lacking subject-matter
jurisdiction is void. Lowery at ¶ 7; citing Cleveland v. Kutash, 8th Dist.
Cuyahoga No. 99509, 2013–Ohio–5124, ¶ 8; Patton v. Diemer, 35 Ohio
St.3d 68, 518 N.E.2d 941, paragraph three of the syllabus (1988).
{¶9} The judicial power of the state is vested in “such other courts
inferior to the supreme court as may from time to time be established by
law.” Section 1, Article IV, Ohio Constitution. Rode, supra, at ¶ 16. In
Ohio, by Section 1, Article IV of the Ohio Constitution, the General
Assembly has been given the power to provide for various different
divisions of the courts of common pleas. The lower court at issue here is the
Juvenile Division of the Athens County Court of Common Pleas.
{¶10} Appellant contends that the trial court lacked subject-matter
jurisdiction in this particular case, based upon an argument that Appellee
had never established paternity and, as such, was only a “putative” father.
Athens App. No. 18CA13 8
Appellant argues that she, as an unmarried mother, was the sole residential
parent as there was no presumption of Appellee’s paternity under Ohio law,
and that R.C. 3109.042 requires the existence of the presumption of
paternity for the “father” to become a party to custody proceedings involving
an unwed mother. Appellee responds by arguing that Appellant
acknowledged from the beginning of the case that Appellee was the
children’s father, and that there was never a request for paternity testing
because of her acknowledgement.
{¶11} Title 31 of the Ohio Revised Code governs domestic relations
and specifically, children. As set forth by Appellant in her brief, R.C.
3109.042 governs the custody rights of unmarried mothers and provides as
follows:
“(A) An unmarried female who gives birth to a child is the sole
residential parent and legal custodian of the child until a court
of competent jurisdiction issues an order designating another
person as the residential parent and legal custodian. A court
designating the residential parent and legal custodian of a child
described in this section shall treat the mother and father as
standing upon an equality when making the designation.”
However, we note that the proceedings below took place in juvenile court,
not domestic court.
{¶12} R.C. 2151.23 governs the jurisdiction of juvenile courts and
provides, in pertinent part, as follows:
Athens App. No. 18CA13 9
“(A) The juvenile court has exclusive jurisdiction under the
Revised Code as follows:
***
(2) Subject to divisions (G), (K), and (V) of section 2301.03 of
the Revised Code, to determine the custody of any child not a
ward of another court of this state.”1
Here, the record indicates the parties were never married and that no custody
determination had ever been made with respect to the children. Further,
there is no evidence in the record before us indicating that the children
herein were wards of any other court at the time Appellee filed his motion
for custody. Additionally, Juv.R. 10 govern complaints and provides in
pertinent part in section (A) as follows: “[a]ny person may file a complaint
to have determined the custody of a child not a ward of another court of this
state[.]”
{¶13} We agree with Appellant that, based upon the record before us,
it appears Appellee’s status as to the children is that of a “putative father.”
R.C. 3107.01 defines a “putative father” as follows:
“a man, including one under age eighteen, who may be a child’s
father and to whom all of the following apply:
(1) He is not married to the child’s mother at the time of the
child’s conception or birth;
(2) He has not adopted the child;
(3) He has not been determined, prior to the date a petition to
adopt the child is filed, to have a parent and child relationship
with the child by a court proceeding pursuant to sections
1
R.C. 2301.03(G)(K) and (V) have no applicability in the present case.
Athens App. No. 18CA13 10
3111.01 to 3111.18 of the Revised Code, a court proceeding in
another state, an administrative agency proceeding pursuant to
sections 3111.38 to 3111.54 of the Revised Code, or an
administrative agency proceeding in another state;
(4) He has not acknowledged paternity of the child pursuant to
sections 3111.21 to 3111.35 of the Revised Code.”
Also relevant to this determination is R.C. 3111.03, which governs
presumptions as to father and child relationships, and which provides as
follows:
(A) A man is presumed to be the natural father of a child under
any of the following circumstances:
(1) The man and the child's mother are or have been married to
each other, and the child is born during the marriage or is born
within three hundred days after the marriage is terminated by
death, annulment, divorce, or dissolution or after the man and
the child's mother separate pursuant to a separation agreement.
(2) The man and the child's mother attempted, before the child's
birth, to marry each other by a marriage that was solemnized in
apparent compliance with the law of the state in which the
marriage took place, the marriage is or could be declared
invalid, and either of the following applies:
(a) The marriage can only be declared invalid by a court and the
child is born during the marriage or within three hundred days
after the termination of the marriage by death, annulment,
divorce, or dissolution;
(b) The attempted marriage is invalid without a court order and
the child is born within three hundred days after the termination
of cohabitation.
(3) An acknowledgment of paternity has been filed pursuant to
section 3111.23 or former section 5101.314 of the Revised
Code and has not become final under former section 3111.211
or 5101.314 or section 2151.232, 3111.25, or 3111.821 of the
Revised Code.
Athens App. No. 18CA13 11
{¶14} Here, based upon the limited record before us, it appears
Appellee meets the definition of putative father and fails to meet the
requirements in order for there to be a presumption as to his paternity.2
{¶15} However, the Supreme Court of Ohio considered a similar
situation in In re Byrd, 66 Ohio St. 2d 334, 421 N.E.2d 1284 (1981). In
Byrd, the Court held as follows in paragraphs one and two of the syllabus:
“1. When the alleged natural father of an illegitimate child, who
has participated in the nurturing process of the child, files a
complaint seeking custody of the child under R.C.
2151.23(A)(2), and the mother admits that he is the natural
father of the child, the natural father has equality of standing
with the mother with respect to the custody of the child.
2. In such case, the court shall determine which parent shall
have the legal custody of the child, taking into account what
would be in the best interests of the child.”
In reaching its decision, the Byrd Court reasoned as follows:
“Appellant argues that not until the natural father has
legitimated the child should he have equal standing with the
mother with respect to custody. While we agree with appellant
that legitimation of a child is always a preferred goal, we cannot
agree that legitimation is a prerequisite for the natural father to
have equality of standing with the mother in a R.C.
2151.23(A)(2) custody action. We reach this result for two
reasons. First, there are three methods in Ohio by which a father
can legitimate his child: (1) in an acknowledgment proceeding
brought under R.C. 2105.18[]; (2) by adopting the child; or (3)
by marrying the mother. All these methods require the consent
of the mother, and therefore the mother can thwart any attempt
2
The fact that separate child support proceedings had been initiated by one of the parties was referenced on
the record during the final hearing below, however no information regarding the status of that case or
whether Appellee had, in fact, established paternity as part of that case was made part of the record below.
Athens App. No. 18CA13 12
by the natural father to legitimate the child. Our second reason
for not requiring legitimation is that such a requirement would
not necessarily be in the best interest of the child, and would, in
fact, result in dissimilar treatment between legitimate and
illegitimate children.” (Internal footnote omitted).
{¶16} Since Byrd was decided, the legislature remedied the first
concern expressed by the Court regarding the fact that the only ways a father
can legitimate his child all require the mother’s consent. R.C. 3111.04,
which originally took effect in 1982, not long after the Byrd decision was
released, now provides that “a man alleged or alleging himself to be the
child’s father[]” may bring an action to determine the existence or
nonexistence of the father and child relationship.” The bringing of this
action does not require the consent of the child’s mother. As such, the first
concern underlying the Byrd decision has now been addressed. However,
the second concern expressed in Byrd still remains. Our research reveals
that the Byrd decision has not been reversed or modified and remains good
law today. Here, as in Byrd, the record before us indicates that Appellee was
present at the birth of both A.B. and B.B., participated in their care and lived
with them until just a few months prior to the filing of the complaint for
custody. Further, Appellant appeared at three different hearings, albeit
without counsel, but never challenged Appellee’s paternity and made
otherwise affirmative statements acknowledging he was father of the
Athens App. No. 18CA13 13
children. Thus, we believe this case falls squarely within the application of
Byrd.
{¶17} Further, and more recently, the Supreme Court of Ohio
determined that a juvenile court magistrate did not patently and
unambiguously lack jurisdiction to proceed on a child custody matter
involving a complaint for custody filed by a putative father. State ex rel.
Mosier v. Fornof, 126 Ohio St. 3d 47, 2010-Ohio-2516, 930 N.E.2d 305.
Although Mosier involved a request for a writ of mandamus, it is
nevertheless instructive on the issue of a court’s subject matter jurisdiction
in custody cases. In particular, on the issue of subject matter jurisdiction,
the Court reasoned that the juvenile court had subject matter jurisdiction to
award custody of a child to a putative father, stating as follows: “* * *
Mosier’s claim alleges, at best, an error in the court’s exercise of its
jurisdiction rather than a lack of subject-matter jurisdiction. See Jimison v.
Wilson, 106 Ohio St. 3d 342, 2005-Ohio-5143, 835 N.E.2d 34, ¶ 11. The
Mosier Court ultimately denied Mosier’s request for a writ of mandamus,
reasoning that the juvenile judge and magistrate below did “not patently and
unambiguously lack jurisdiction to determine child-custody matters in the
underlying case * * *.” Mosier at ¶ 7.
Athens App. No. 18CA13 14
{¶18} In light of the foregoing, we are satisfied that the trial court
possessed the requisite subject-matter jurisdiction to determine the custody
of A.B. and B.B. upon the filing of a complaint for custody by the putative
father, where the putative father was present at the birth of the children and
participated in the nurturing process, and where the mother admitted, or at
least did not dispute, the paternity of the children.3 Accordingly, we find no
merit to Appellant’s second assignment of error and it is overruled.
ASSIGNMENT OF ERROR I
{¶19} In her second assignment of error, Appellant contends that an
adjudication granting custody to the putative father and assigning parental
rights and responsibilities should be set aside where the biological mother
was denied her right to be represented by counsel, was not properly notified
of the hearing, and where she had no opportunity to present arguments or to
be heard at said hearing, as being violative of substantive and procedural due
process. Appellee contends that Appellant was aware of her right to
counsel, had communicated with counsel, but that no counsel ever entered
an appearance on her behalf. Appellee also contends Appellant was
provided with notice of the final hearing, but that she failed to appear.
3
Although Appellant filed a motion for paternity testing, through counsel, after the magistrate issued a
decision awarding custody of the children to Appellee, she never filed an answer to Appellee’s complaint
for custody in which he averred, in an affidavit filed in support of his motion, that he was the children’s
father. Further, Appellant appeared at three different hearings, participated, and requested Appellee be
drug tested, but she never raised the issue of paternity. In fact, she made statements acknowledging
Appellee’s parents were the children’s grandparents.
Athens App. No. 18CA13 15
{¶20} The Due Process Clause of the Fifth Amendment to the United
States Constitution, as applicable to the states through the Fourteenth
Amendment, provides: “No person shall * * * be deprived of life, liberty, or
property, without due process of law.” Parents have a fundamental liberty
interest in the care, custody, and control of their children. Troxel v.
Granville, 530 U.S. 57, 65–66, 120 S. Ct. 2054 (2000). Thus, the state may
not deprive parents of their parental rights without due process of law. In re
James, 113 Ohio St. 3d 420, 2007–Ohio–2335, 866 N.E.2d 467, ¶ 16; In re
M.H., 4th Dist. Vinton No. 11CA683, 2011–Ohio–5140, ¶¶ 49–50. This
right to due process “does not evaporate simply because [parents] have not
been model parents or have lost temporary custody of their child to the
State.” Santosky v. Kramer, 455 U.S. 745, 753, 102 S. Ct. 1388 (1982).
{¶21} Although “due process” lacks precise definition, courts have
long held that due process requires both notice and an opportunity to be
heard. In re Thompkins, 115 Ohio St. 3d 409, 2007–Ohio–5238, 875 N.E.2d
582, ¶ 12; citing Hagar v. Reclamation Dist. No. 108, 111 U.S. 701, 708, 4
S. Ct. 663, (1884); Caldwell v. Carthage, 49 Ohio St. 334, 348, 31 N.E. 602
(1892). “An elementary and fundamental requirement of due process in any
proceeding which is to be accorded finality is notice reasonably calculated,
under all the circumstances, to apprise interested parties of the pendency of
Athens App. No. 18CA13 16
the action and afford them an opportunity to present their objections.”
Mullane v. Cent. Hanover Bank & Trust Co., 339 U.S. 306, 314, 70 S. Ct.
652 (1950); accord In re Thompkins at ¶ 13. Accordingly, when the state
seeks to interfere with a parent's liberty interest in the care, custody, and
management of his or her child, the state “must attempt to provide actual
notice” to the parents. Thompkins at ¶ 14; citing Dusenbery v. United States,
534 U.S. 161, 170, 122 S. Ct. 694 (2002). Due process does not, however,
require “ ‘heroic efforts’ ” to effectuate service or that a parent receives
actual notice. Id., citing Dusenbery at 170. Instead, the means employed
must be reasonably calculated to inform the parent of the proceeding
involving his or her child. Id.; citing Mullane at 315.
{¶22} Further, this Court recently noted as follows in In re A.G.
regarding notice and the right to counsel:
“ ‘Ohio courts hold that where a parent is provided notice of his
or her “right to counsel, but fails to pursue it, [the parent] has
not been denied [the] statutory right to counsel.” In re Williams,
Franklin App. No. 03AP–1007, 2003–Ohio–678, ¶ 13, citing In
re Careuthers (May 2, 2001), Summit App. No. 20272; In re
Ramsey Children (1995), 102 Ohio App. 3d 168, 169–170. ’ ” In
re A.G., 4th Dist. Athens No. 14CA28, 2014-Ohio-5014, ¶ 22;
citing In re T.F., 4th Dist. Pickaway No. 07CA34, 2008–Ohio–
1238.
{¶23} We first address Appellant’s contention that she was deprived
of her right to counsel. Juv.R. 4(A) governs assistance of counsel in juvenile
Athens App. No. 18CA13 17
proceedings and provides as follows:
“(A) Assistance of Counsel. Every party shall have the right to
be represented by counsel and every child, parent, custodian, or
other person in loco parentis the right to appointed counsel if
indigent. These rights shall arise when a person becomes a
party to a juvenile court proceeding. When the complaint
alleges that a child is an abused child, the court must appoint an
attorney to represent the interests of the child. This rule shall
not be construed to provide for a right to appointed counsel in
cases in which that right is not otherwise provided for by
constitution or statute.”
{¶24} Here, the record reflects that Appellant was initially served with
Appellee’s complaint for custody and court-ordered visitation and appeared
at the first hearing that was held. A return of service appears in the record
showing Appellant was personally served with the complaint. Further, the
hearing transcript from the first hearing indicates that Appellant appeared
and participated in the hearing, pro se, and represented to the court that she
did not have an attorney and had not spoken to an attorney. Appellant did
not claim to be indigent or ask for appointed counsel. Instead, she asked that
Appellee be drug tested and informed the court she could pay the $350.00
fee for the drug testing.
{¶25} A second hearing was held on November 9, 2017, and
Appellant again appeared and participated. Appellant began the hearing by
asking for a continuance and stating that she had hired an attorney to
represent her. “We review the denial of a motion for a continuance for
Athens App. No. 18CA13 18
abuse of discretion.” State ex rel. Athens Cty. Dept. of Job & Family Servs.
v. Martin, 4th Dist. Athens No. 07CA11, 2008–Ohio–1849, ¶ 22; See also
Gussler v. Morris, 4th Dist. Ross No. 06CA2884, 2006–Ohio–6627, ¶ 8. An
abuse of discretion connotes more than a mere error of judgment; it implies
that the court's attitude is arbitrary, unreasonable, or unconscionable.
Blakemore v. Blakemore, 5 Ohio St. 3d 217, 219, 450 N.E.2d 1140 (1983).
“The trial court has broad discretion in ruling on requests for continuances.
* * * However, that discretion is not unlimited.” State v. Miller, 5th Dist.
Tuscarawas No. 86AP060038, 1987 WL 9876 (Apr. 20, 1987) (internal
citation omitted).
{¶26} “Our review of a denial of a motion for a continuance requires
us to ‘apply a balancing test, thereby weighing the trial court's interest in
controlling its own docket, including the efficient dispensation of justice,
versus the potential prejudice to the moving party.’ ” Foley v. Foley, 10th
Dist. Franklin Nos. 05AP–242 & 05AP–463, 2006–Ohio–946, ¶ 16; quoting
Fiocca v. Fiocca, 10th Dist. Franklin No. 04AP–962, 2005–Ohio–2199, ¶ 7.
{¶27} “In evaluating a motion for a continuance, a court should note,
inter alia: the length of the delay requested; whether other continuances have
been requested and received; the inconvenience to litigants, witnesses,
opposing counsel and the court; whether the requested delay is for legitimate
Athens App. No. 18CA13 19
reasons or whether it is dilatory, purposeful, or contrived; whether the
defendant contributed to the circumstance which gives rise to the request for
a continuance; and other relevant factors, depending on the unique facts of
each case.” State v. Unger, 67 Ohio St. 2d 65, 67–68, 423 N.E.2d 1078
(1981). Although Unger was a criminal matter, appellate courts have also
applied these factors in civil cases. See, e.g., King v. Kelly, 4th Dist.
Lawrence No. 02CA42, 2003–Ohio–4412, ¶ 11; Henson v. Highland Dist.
Hosp., 143 Ohio App. 3d 699, 707, 2001–Ohio–2513, 758 N.E.2d 1166, fn.
4; Integrated Payment Systems, Inc. v. A & M 87th Inc., 8th Dist. Cuyahoga
Nos. 91454 & 91473, 2009–Ohio–2715, ¶ 73; Truex v. Truex, 179 Ohio
App.3d 188, 2008–Ohio–5690, 901 N.E.2d 259, ¶ 15.
{¶28} Here, the record reflects that upon further inquiry by the
magistrate it appeared Appellant had simply spoken with the attorney’s
secretary and had an appointment scheduled. Appellant had not actually met
the attorney nor had the attorney entered an appearance in the matter, despite
the fact that more than two months had passed since the initial hearing. In
light of these facts and also because of Appellant’s positive drug screen, the
trial court denied the continuance and placed the children in the temporary
custody of Appellee. When Appellant expressed concerns during the
hearing that Appellee was using drugs that were not detected on the drug
Athens App. No. 18CA13 20
screen, and that Appellee’s parents, who would be taking care of the
children while Appellee worked, had another son living in the house who
had a drug problem, the trial court explained this was only a temporary
decision and urged Appellant to get her attorney involved to help her raise
these issues.
{¶29} A third hearing was held on February 22, 2018, and Appellant
again appeared without counsel. When the trial court inquired of the status
of her representation she stated that she had retained an attorney and paid
him a significant amount of money. However, the attorney had not entered
an appearance and did not appear at the hearing. At the conclusion of the
hearing the following exchange took place between the magistrate and
Appellant:
“Magistrate: Here’s what I’m inclined to do. I am inclined to
leave it the way it is today. You say you’ve retained Mr.
Tenoglia and . . .
Ms. Sufronko: Yes.
Magistrate: you’ve paid him a significant amount of money.
Ms. Sufronko: Yes.
Magistrate: If that’s the case and he enters an appearance he
can definitely argue with Mr. Toy and make sure . . .
Ms. Toy: Sure.
Magistrate: And they will try to resolve the issue as best they
can.
Athens App. No. 18CA13 21
Ms. Sufronko: Okay.
Magistrate: So if you feel that you want something set rather
than informal you first need to get Mr. Tenoglia on board and
then have him make those request [sic] and arguments with Mr.
Toy, okay?
Ms. Sufronko: Okay.
***
Magistrate: Now again, you said no, you say yes, so the first
call you want to make when you leave here is his office, okay?
I mean, you didn’t call him yesterday or today about I’ll see
you in court.
Ms. Sufronko: I called yesterday but I didn’t hear back from
him.
Magistrate: Okay, well, that must mean he thinks he’s not
retained. Okay, we are off the record.”
No attorney ever entered a notice of appearance on Appellant’s behalf
thereafter. Further, when the final hearing took place, neither Appellant or
counsel on her behalf appeared at the hearing.
{¶30} We cannot conclude under these circumstances that the trial
court denied Appellant her right of representation. To the contrary, the trial
court urged Appellant to retain and work with counsel. Although the trial
court denied Appellant’s request for a continuance, such decision was within
its discretion to do and we cannot conclude that the trial court abused its
discretion given the facts before it, which included the fact that Appellant
Athens App. No. 18CA13 22
had a positive drug screen, Appellee did not, Appellant raised no issue
regarding the paternity of the children at that time, and the decision was a
temporary, rather than final. Thus, we find no merit to this portion of
Appellant’s argument under her first assignment of error.
{¶31} We now turn our attention to Appellant’s contention that she
was deprived of due process when the trial court granted custody to
Appellee and assigned parental rights and responsibilities without providing
her with proper notice and an opportunity to be heard. Appellant argued
below via a Civ.R. 53 (D)(2)(b) motion to set aside, which was denied by the
magistrate, and now argues on appeal, that she was not provided with notice
of the final hearing. A reviewing court will not disturb a trial court's finding
regarding whether service was proper unless the trial court abused its
discretion. E.g., Huntington Natl. Bank v. Payson, 2nd Dist. Montgomery
No. 26396, 2015-Ohio-1976, ¶ 32; Ramirez v. Shagawat, 8th Dist. Cuyahoga
No. 85148, 2005-Ohio-3159, ¶ 11.
{¶32} Service of process must be made in a manner reasonably
calculated to apprise interested parties of the action and to afford them an
opportunity to respond. Price v. Combs, 2nd Dist. Darke No. 2015-CA17,
2016-Ohio-429, at ¶ 19; Akron–Canton Regional Airport Auth. v. Swinehart,
62 Ohio St. 2d 403, 406, 406 N.E.2d 811 (1980); citing Mullane v. Cent.
Athens App. No. 18CA13 23
Hanover Bank & Trust Co., 339 U.S. 306, 314, 70 S. Ct. 652 (1950). The
plaintiff bears the burden of obtaining proper service on a defendant.
Cincinnati Ins. Co. v. Emge, 124 Ohio App. 3d 61, 63, 705 N.E.2d 408 (1st
Dist.1997).
{¶33} Because the notice of hearing at issue was issued by the clerk
and constituted a written notice subsequent to the original complaint, the
service requirements here are governed by Civ.R. 5. Civ.R. 5 provides, in
pertinent part, as follows:
(A) Service: When Required. Except as otherwise provided in
these rules, every order required by its terms to be served, every
pleading subsequent to the original complaint unless the court
otherwise orders because of numerous defendants, every paper
relating to discovery required to be served upon a party unless
the court otherwise orders, every written motion other than one
which may be heard ex parte, and every written notice,
appearance, demand, offer of judgment, and similar paper shall
be served upon each of the parties. Service is not required on
parties in default for failure to appear except that pleadings
asserting new or additional claims for relief or for additional
damages against them shall be served upon them in the manner
provided for service of summons in Civ. R. 4 through Civ. R.
4.6.
(B) Service: How Made.
(1) Serving a Party; Serving an Attorney. Whenever a party is
not represented by an attorney, service under this rule shall be
made upon the party. If a party is represented by an attorney,
service under this rule shall be made on the attorney unless the
court orders service on the party. Whenever an attorney has
filed a notice of limited appearance pursuant to Civ.R. 3(B),
service shall be made upon both that attorney and the party in
connection with the proceedings for which the attorney has
filed a notice of limited appearance.
Athens App. No. 18CA13 24
(2) Service in General. A document is served under this rule by:
***
(c) Mailing it to the person's last known address by United
States mail, in which event service is complete upon mailing[.]”
(Emphasis added).
{¶34} Thus, we must begin with a presumption of proper service. In
support of her argument, Appellant has attached a notice of hearing for the
final hearing, dated February 22, 2018, issued by the Deputy Clerk of the
Juvenile Division of the Athens County Court of Common Pleas which only
lists Attorney Toy’s name at the bottom. As set forth above, the magistrate
denied Appellant’s motion, stating in its entry that:
“The court docket created by the clerk contemporaneously with
her performance, demonstrates adequate notice by regular mail
of the 4/19/18 hearing was provided to Defendant. Docket
entry attached. Defendant may pursue her concerns by
objections or in paternity cases #20174307 & 20174308.”
The print-out of the docket entry that appears in the record lists only one of
Appellant’s underlying case numbers along with the following notation:
“Copies sent to both parties or attorney via regular mail/box in courthouse.”
Although the docket only lists one of the underlying case numbers, the
actual notice of hearing lists both. Further, it appears both cases were
handled simultaneously throughout the pendency of the cases. Further, and
importantly, although Appellant’s name is not listed at the bottom of the
hearing notice that was mailed by the clerk, her name was not listed on any
Athens App. No. 18CA13 25
of the other hearing notices issued by the clerk either, yet Appellant received
notice and appeared at three prior hearings.
{¶35} Additionally, the transcript from the final hearing demonstrates
the following exchange regarding whether Appellant had been served with
notice of the hearing:
“Magistrate: What’s the last contact you had with Ms.
Sufronko?
Ms. Rector [the GAL]: The last time that we were in court.
Magistrate: Oh, . . .
Ms. Rector: Yeah, I’ve called and texted her but she never gets
back to me.
Magistrate: Okay, fine. And has she had any contact with the
children?
Jarvis Bateman: Uh, she actually came out to the house last
night.
Magistrate: She did.
Jarvis Bateman: For a little bit.
Magistrate: I see. Was the fact of the hearing discussed?
Jarvis Bateman: Uh, no it was not.
Magistrate: It was not raised, all right. Well, she was here and,
uh, it was set by hearing notice sent out by you Ms. Lewis [the
Deputy Clerk]. The only thing that puzzles me here is has [sic]
Mr. Toy’s name and it does not have hers (unintelligible)
address.
Athens App. No. 18CA13 26
Female: (unintelligible)
Magistrate: Alright, so . . .
Darci [the Deputy Clerk]: It was mailed out and nothing was
returned.
Magistrate: Okay, from now on we should probably write the
other parties name there just so I can tell if they’ve been served.
Based on your statement we sent hearing notice.”
Thus, the record reflects the magistrate addressed the issue of service during
the hearing, inquired directly with the deputy clerk who confirmed notice of
hearing was sent by regular mail, and nothing had been returned. Service by
regular mail is acceptable under Civ.R. 5 and service was considered
complete upon mailing, which was noted on the docket.
{¶36} While we agree with the magistrate that "from now on" all
parties' names should be listed on hearing notices so the court can confirm
they have been served, we cannot conclude, based upon the record before us,
that Appellant has overcome the presumption that proper service was made.
Nor can we conclude that the magistrate abused its discretion in concluding
proper service was accomplished. Thus, we also overrule this portion of
Appellant’s argument raised under her first assignment of error.
{¶37} However, our review of this matter does not end here.
Although not raised by Appellant, this Court sua sponte finds a defect in the
trial court’s judgment. During the final hearing, it was suggested that
Athens App. No. 18CA13 27
because Appellant failed to appear, Appellee would essentially be granted
default judgment. For instance, the following exchange took place on the
record when it became apparent Appellant had failed to appear:
“Magistrate: Mr. Tenoglia never did enter an appearance in the
case. So, given the fact that we were suppose [sic] to start
roughly five minutes and she’s not here I’m going to proceed.
Generally speaking that would, uh, generally result absent some
persuasive costs to the contrary by somebody, would result in
Mr. Toy, your client, winning the day.
Mr. Toy: Okay.
Magistrate: Ms. Rector, do you have any issues if I were to
essentially grant a Judgement by Default [sic] given the fact
that the defendant is not present.
Ms. Rector: No, I have no issues.
***
Magistrate: * * * So, Mr. Toy you want to do a short Entry . . .
Mr. Toy: I will do an Entry your honor. Thank you.”
Thereafter, Mr. Toy prepared an entry for the court’s signature which, aside
from noting service was provided, the trial court had subject-matter
jurisdiction, and due process had been complied with, simply provided as
follows:
“IT IS HEREBY: ORDERED, that the Plaintiff be granted full
custody of the minor children; it is further, ORDERED, that
Defendant may have parenting time with the minor children at
the sole discretion of the Plaintiff; it is further, ORDERED that
Plaintiff shall claim the minor children on his federal and state
Athens App. No. 18CA13 28
tax returns every year until the children reach the age they are
no longer able to be claimed. * * *.”
Thus, it appears from the record before us that the trial court failed to take
into consideration the best interests of the children, or otherwise make any
best interest determination, in awarding Appellee custody of the children and
limiting Appellant’s parenting time to the “sole discretion” of Appellee.
{¶38} As set forth above, the juvenile court had exclusive, original
jurisdiction under R.C. 2151.23 to determine the custody of the children at
issue, as they were not wards of any other court. However, R.C. 2151.23
further provides in section (F)(1) that “the juvenile court shall exercise its
jurisdiction in child custody matters in accordance with sections 3109.04 and
3127.01 to 3127.53 of the Revised Code and, as applicable, sections 5103.20
or 5103.23 to 5103.237 of the Revised Code.” Of importance and relevance
here, R.C. 3109.04 governs courts awarding parental rights and
responsibilities and requires the best interests of the child be taken into
consideration in making those determinations. See R.C. 3109.04(B)(1).
{¶39} As between two parents, which is the situation here, the
universally applied standard to be used in initial custody determinations is
the best interests of the child. See Boyer v. Boyer, 46 Ohio St. 2d 83, 346
N.E.2d 286 (1976); see also In re Webster II, 4th Dist. Athens No.
92CA1559, 1993 WL 373784 (reasoning that where there was no prior
Athens App. No. 18CA13 29
custody decree and where father moved for custody prior to paternity
determination, the trial court did not err in applying the standard utilized in
initial custody awards between parents, which is the best interests of the
child standard). In re Webster further cited In re Byrd as follows:
“When an alleged natural father of an illegitimate child, who
has participated in the nurturing process of the child, files a
complaint seeking custody of the child, and the mother admits
that he is the natural father of the child, the natural father of the
child has equality of standing with respect to the custody of the
child, and the best interest test is applied.” In re Webster II at
*4; citing In re Byrd, supra, paragraphs one and two of the
syllabus. (Emphasis added).
Further, although R.C. 3111.08 permits the grant of default judgment in civil
actions to establish a father and child relationship, this was an action for
custody, not to establish the father and child relationship, and we are aware
of no such counterpart permitting default judgment in connection with child
custody determinations.
{¶40} Accordingly, although we have found no merit to the
assignments of error raised by Appellant, because we have sua sponte
determined the trial court erred in failing to make a best interest of the
children determination prior to making an initial custody determination as
between two parents, the mother and putative father, the judgment of the
trial court is reversed and this matter is remanded for further proceedings
consistent with this opinion.
Athens App. No. 18CA13 30
JUDGMENT REVERSED
AND REMANDED FOR
FURTHER PROCEEDINGS
CONSISTENT WITH THIS
OPINION.
Athens App. No. 18CA13 31
JUDGMENT ENTRY
It is ordered that the JUDGMENT BE REVERSED AND
REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH
THIS OPINION. Costs are assessed to Appellee.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing
the Athens County Common Pleas Court, Juvenile Division, to carry this
judgment into execution.
Any stay previously granted by this Court is hereby terminated as of
the date of this entry.
A certified copy of this entry shall constitute the mandate pursuant to
Rule 27 of the Rules of Appellate Procedure.
Hoover, P.J.: Concurs in Judgment and Opinion.
Harsha, J.: Concurs in Judgment and Opinion as to Assignment of
Error II; Concurs in Judgment Only as to Assignment of
Error I.
For the Court,
BY: ______________________________
Matthew W. McFarland, Judge
NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a final
judgment entry and the time period for further appeal commences from
the date of filing with the clerk.