Dole v. Dole , 2011 Ohio 1314 ( 2011 )

[Cite as Dole v. Dole, 2011-Ohio-1314.]
COURT OF APPEALS
HOLMES COUNTY, OHIO
FIFTH APPELLATE DISTRICT
JUDGES:
JENNIFER DOLE : Hon. W. Scott Gwin, P.J.
: Hon. Sheila G. Farmer, J.
Plaintiff-Appellee : Hon. Patricia A. Delaney, J.
:
-vs- :
: Case No. 10CA013
RYAN DOLE :
:
Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Civil appeal from the Holmes County Court
of Common Pleas, Domestic Relations
Division, Case No. 01DR106
JUDGMENT: Affirmed in part; reversed in part
DATE OF JUDGMENT ENTRY: March 18, 2011
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
JAMES M. RICHARD ROSANNE K. SHRINER
127 East Liberty Street, Ste. 100 146 East Liberty Street, Ste. 185
Wooster, OH 44691 Wooster, OH 44691
[Cite as Dole v. Dole, 2011-Ohio-1314.]
Gwin, P.J.
{¶1} Defendant-appellant Ryan Dole appeals a judgment of the Court of
Common Pleas, Domestic Relations Division, of Holmes County, Ohio, which dismissed
his motion to renew his previously filed motion for reallocation of parental rights and
responsibilities. Plaintiff-appellee is Jennifer Dole, nka, Felton. Appellant assigns two
errors to the trial court:
{¶2} “I. THE TRIAL COURT ABUSED ITS DISCRETION BY DISMISSING
APPELLANT’S MOTION FOR LACK OF JURISDICTION UNDER THE UNIFORM
CHILD CUSTODY JURISDICTION ENFORCEMENT ACT.
{¶3} “II. THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT ORDERED
APPELLANT TO PAY $500.00 IN ATTORNEY FEES FOR THE ‘UNNECESSARY
PREPARATION’ OF APPELLEE’S ATTORNEY.”
{¶4} The record reflects appellant filed a motion for reallocation of parental
rights and responsibilities in October, 2008. With the motion, pursuant to R.C. 3127.23,
he filed an affidavit, commonly known as a UCCJEA affidavit, which is a statement
informing the court that no other court has taken jurisdiction over the minor child. On
May 27, 2009, the trial court entered a judgment finding the parties had reached an
agreement on the motion. The court recited the terms of the parties’ agreement in the
judgment entry. The settlement set the times for visitation and companionship with the
child, and stated the parties further agreed to attend parenting counseling. The court
set the matter for a review hearing for August 3, 2009.
{¶5} On July 27, 2009, appellant filed a motion to renew his motion for
reallocation of parental rights and responsibilities. He alleged as his reason for
Holmes County, Case No. 10CA013 3
renewing his motion that there was a change of circumstances in the home environment
which was having an adverse effect on the child, so modification of the existing order
would be in the child’s best interest. He did not file a new UCCJA affidavit. The judge
who conducted the review hearing was sitting by assignment and apparently had no
previous involvement in the case.
{¶6} At the hearing, appellant first moved for a continuance, but the court
directed the parties to proceed. Appellant informed the court the previous judge had
scheduled the review hearing to permit the trial court to see how the agreed visitation
schedule was working out. The court responded it had reviewed the file and the court’s
judgment entry and based upon that, the court believed the original motion was closed
by the judgment entry. The court noted it did not have a transcript nor had the present
judge conducted the first hearing. Appellant did not inform the court he had requested
and filed a transcript of the hearing, and the record in this case is voluminous.
{¶7} The court found it did not have jurisdiction over the matter because
according to the record before it, this present motion was a new motion and required a
new UCCJA affidavit. The court dismissed the matter without prejudice and explained
how it could be re-filed with a new deposit to be allocated to guardian ad litem fees.
The previous guardian ad litem had been paid in 2009 after the parties settled the
matter, and a new guardian ad litem would be appointed. After the court announced it
was dismissing the motion to reallocate parental rights and responsibilities, appellant
dismissed his other pending motion, which was a show cause motion. Appellee
objected that she was prepared to go forward. The court then found appellee was
entitled to an award of attorney fees for unnecessary preparation for the hearing.
Holmes County, Case No. 10CA013 4
I.
{¶8} In his first assignment of error, appellant argues the trial court abused its
discretion in dismissing the matter for lack of jurisdiction. We agree.
{¶9} In the case of In Re: Complaint for Writ of Habeas Corpus for Goeller:
Moore v. Goeller, 103 Ohio St. 3d 427, 2004-Ohio-5579, 816 N.E. 2d 594, the Ohio
Supreme Court held the failure of a party to file a UCCJA affidavit did not divest a
juvenile court of subject matter jurisdiction to determine custody of a minor child. In
Goeller, the court agreed its previous holding in Pasqualone v. Pasqualone (1980), 63
Ohio St. 2d 96, 406 N.E. 2d 1121, had held the filing of the UCCJA affidavit is a
mandatory jurisdictional requirement. The Supreme Court found, however, the
requirement that the affidavit must be filed in the first pleading has been “relaxed” by
numerous courts of appeals to allow amended pleadings or subsequent filings to
include the required affidavit. Goeller at paragraphs 9-11, citations deleted. The court
found the purpose of the UCCJA is to avoid jurisdictional competition and conflict with
courts of other jurisdictions. Goeller at paragraph 12, citing In re: Palmer (1984), 12
Ohio St.3d at 196, 12 OBR 259, 465 N.E.2d 1312. The court found the Palmer case
stood for the proposition that a “mechanistic interpretation of R.C. 3109.27 [now R.C.
3127.23] * * * would not only contravene the clear intent of R.C. 3109.27 but could
potentially render the custody statutes of this state a nullity.” Id.{¶10} It is irrelevant whether the hearing was a review of the parties’ settlement
agreement or a new motion. The court could have proceeded to hear the motion in
either case.
Holmes County, Case No. 10CA013 5
{¶11} At the hearing, neither party directed the court’s attention to the transcript
of the hearing buried in amongst numerous other documents in the record. Appellant
did not offer to amend or supplement his motion with a UCCJA affidavit. Appellant re-
filed the motion approximately one week after the court dismissed his motion to renew.
Nevertheless, we find the trial court erred in dismissing the motion for lack of
jurisdiction.
{¶12} The first assignment of error is sustained.
II.
{¶13} In his second assignment of error, appellant argues the trial court erred in
awarding appellee attorney fees. Appellee’s counsel requested $1,000.00, but the court
ordered $500.00.
{¶14} After the trial court announced the dismissal of appellant’s motion to renew
his motion for re-allocation of parental rights and responsibilities, appellant withdrew his
pending contempt motion which had been scheduled to be heard that day. Appellant
cited judicial economy, and stated that it did not make sense to proceed with the
contempt motion. Appellant advised the court he would withdraw it and re-file it with the
new motion to re-allocate parental rights and responsibilities.
{¶15} Appellee objected, asserting she was prepared to go forward with all
pending motions. Appellee requested the court dismiss the motion with prejudice, or
instruct appellant to proceed on the record immediately. Appellee’s counsel informed
the court appellee had incurred attorney fees for several hours on the day of the hearing
alone. Counsel also noted appellant had not specified that the contempt motion would
be “tied in” to his motion for re-allocation of parental rights and responsibilities.
Holmes County, Case No. 10CA013 6
{¶16} Our review of the record leads us to conclude the trial court did not err in
finding appellee was entitled to recover attorney fees. The court and opposing counsel
were prepared to go forward with the contempt motion. Appellant could have proceeded
with the show cause motion and if the court found appellee in contempt, it could
consider that fact in the future.
{¶17} The second assignment of error is overruled.
{¶18} For the foregoing reasons, the judgment of the Court of Common Pleas,
Domestic Relations Division, of Holmes County, Ohio, is affirmed in part and reversed in
part, and the cause is remanded to the court for further proceedings in accord with law
and consistent with this opinion.
By Gwin, P.J.,
Farmer, J., and
Delaney, J., concur
_________________________________
HON. W. SCOTT GWIN
_________________________________
HON. SHEILA G. FARMER
_________________________________
HON. PATRICIA A. DELANEY
WSG:clw 0303
[Cite as Dole v. Dole, 2011-Ohio-1314.]
IN THE COURT OF APPEALS FOR HOLMES COUNTY, OHIO
FIFTH APPELLATE DISTRICT
JENNIFER DOLE :
:
Plaintiff-Appellee :
:
:
-vs- : JUDGMENT ENTRY
:
RYAN DOLE :
:
:
Defendant-Appellant : CASE NO. 10CA013
For the reasons stated in our accompanying Memorandum-Opinion, the judgment of
the Court of Common Pleas, Domestic Relations Division, of Holmes County, Ohio, is
affirmed in part and reversed in part, and the cause is remanded to the court for further
proceedings in accord with law and consistent with this opinion. Costs to be split
between the parties.
_________________________________
HON. W. SCOTT GWIN
_________________________________
HON. SHEILA G. FARMER
_________________________________
HON. PATRICIA A. DELANEY