Dinan v. Dinan , 2014 Ohio 3882 ( 2014 )

[Cite as Dinan v. Dinan, 2014-Ohio-3882.]
IN THE COURT OF APPEALS
TWELFTH APPELLATE DISTRICT OF OHIO
WARREN COUNTY
SARAH S. DINAN, :
CASE NO. CA2013-09-082
Plaintiff, :
OPINION
: 9/8/2014
- vs -
:
ADAM A. DINAN, :
Defendant-Appellee. :
APPEAL FROM WARREN COUNTY COURT OF COMMON PLEAS
DOMESTIC RELATIONS DIVISION
Case No. 05DR29815
Sarah S. Dinan, 860 Huntington Drive, Fishkill, New York 12524, plaintiff, pro se
David P. Fornshell, Warren County Prosecuting Attorney, Sarah C. McMahon, 500 Justice
Drive, Lebanon, Ohio 45036, for appellant, Warren County CSEA
Joseph R. Matejkovic, 8050 Becket Center Drive, West Chester, Ohio 45069-5018, for
defendant-appellee
S. POWELL, J.
{¶ 1} Appellant, the Warren County Child Support Enforcement Agency (WCCSEA),
appeals from the decision of the Warren County Court of Common Pleas, Domestic
Relations Division (Warren County Domestic Relations Court), dismissing its motion for
contempt filed against defendant-appellee, Adam Dinan, for his alleged failure to pay current
Warren CA2013-09-082
child support and child support arrearages following his divorce from plaintiff, Sarah Dinan.
For the reasons outlined below, we affirm.1
{¶ 2} This matter has a lengthy procedural history. As relevant here, Sarah and
Adam were married on February 19, 2001. Their relationship produced two children. On
December 2, 2005, Sarah filed a complaint for divorce. The Warren County Domestic
Relations Court subsequently issued a final divorce decree on July 28, 2006. As part of this
final divorce decree, Sarah was granted custody of their two children and Adam was granted
parenting time. The final divorce decree also ordered Adam to pay child support in the
amount of $2,500 per month, plus a two-percent processing fee, for a total monthly obligation
of $2,550. According to WCCSEA, this amount later increased to a total monthly obligation
of $3,060. At the time of their divorce, it is undisputed Sarah and Adam both lived in Ohio.
{¶ 3} In September 2007, approximately one year after the Warren County Domestic
Relations Court issued its final divorce decree, Sarah and the children moved to
Massachusetts. A few months later, on March 13, 2008, the Warren County Domestic
Relations Court issued a decision decreasing Adam's total monthly child support obligation to
$746.03. Thereafter, in February 2011, Sarah and the children moved again, this time to
Fishkill, Dutchess County, New York. The Family Court for Dutchess County, New York
(Dutchess County Family Court) then granted a civil protection order to Sarah and the
children against Adam on November 21, 2011, thereby effectively suspending Adam's
parenting time.
{¶ 4} Several months after the civil protection order was issued, the Warren County
Domestic Relations Court released a decision on June 27, 2012 increasing Adam's total
monthly child support obligation to $1,434.04. In the interim, however, Sarah had filed a
1. Pursuant to Loc.R. 6(A), we sua sponte remove this case from the accelerated calendar.
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petition under the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) with
the Dutchess County Family Court requesting a modification of the parties' parenting and
visitation schedule. In response, Adam filed a motion for contempt with the Warren County
Domestic Relations Court against Sarah alleging numerous instances when she allegedly
refused him his parenting time between November 2007 and April 2012. It is undisputed that
Adam's motion for contempt did not make any reference to child support or his child support
obligations. It is also undisputed that Adam's motion for contempt listed his current address
as Newport, Kentucky.
{¶ 5} On July 23, 2012, Magistrate Yvonne A. Iversen with the Warren County
Domestic Relations Court held a hearing on Adam's motion for contempt. Following this
hearing, Magistrate Iversen issued a decision that specifically requested the parties to:
brief the issue of whether this Court should exercise jurisdiction
over the parties' children when they have not resided in Ohio for
years and the State of New York issued a Civil Protection Order
protecting the children from [Adam] in November 21, 2011.
Both parties filed their respective briefs as instructed on August 6, 2012. Again, neither party
made any reference to child support or Adam's child support obligations.
{¶ 6} On August 10, 2012, Magistrate Iversen issued her decision, which stated, in
pertinent part, the following:
Currently [Sarah] resides in Fishkill, New York. [Adam's]
pleadings indicate that [he] resides in Newport, Kentucky.
Neither party is currently a resident of the State of Ohio.
Pursuant to the Court file, [Sarah] and the children have not
resided in Ohio since 2007.
Pursuant to Ohio Revised Code Section 3127.21 this Magistrate
finds that Ohio is an inconvenient forum and this Magistrate finds
that this Court shall decline to exercise its jurisdiction. This
Magistrate finds that the State of New York is a more convenient
forum.
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Therefore, New York has more current information and is more
familiar with the recent facts of this case.
Based upon all the evidence before the Court, this Magistrate
finds that the State of Ohio and Warren County shall decline to
exercise jurisdiction over the above captioned matter. The State
of New York is ready willing and able to exercise such jurisdiction
and this Magistrate finds that it is better able to do so.
After no objections to Magistrate Iversen's decision were filed, the Warren County Domestic
Relations Court adopted the decision in its entirety on August 30, 2012. No appeal was
taken from this decision.
{¶ 7} Approximately one month later, on October 4, 2012, WCCSEA filed a motion
for contempt against Adam in the Warren County Domestic Relations Court for his alleged
failure to pay current child support and child support arrearages. Adam, however, moved to
dismiss the motion claiming jurisdiction over the entire case had been transferred to New
York, thereby rendering all actions in Ohio moot. After a number of continuances, a different
magistrate, Magistrate Jeffrey T. Kirby, held a hearing on WCCSEA's motion for contempt on
June 24, 2013. Thereafter, on June 28, 2013, Magistrate Kirby issued his decision overruling
Adam's motion to dismiss. In so holding, Magistrate Kirby stated:
[W]hen Magistrate Iversen transferred jurisdiction she did so
pursuant to R.C. 3127.21, which is part of the Uniform Child
Custody Jurisdiction and Enforcement Act, meaning it was a
transfer of the custody and visitation portion of this case.
Adam filed objections to Magistrate Kirby's decision with the Warren County Domestic
Relations Court on July 11, 2013.
{¶ 8} On September 3, 2013, the Warren County Domestic Relations Court issued its
decision sustaining in part Adam's objections to Magistrate Kirby's decision. Specifically, the
Warren County Domestic Relations Court stated:
[Adam] first objects to the Magistrate's finding of contempt,
because [he] argues that this Court lacks jurisdiction over this
matter. [Adam] argues that the Magistrate's decision filed August
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10, 2012 transferred the entire case to the State of New York.
Additionally, [Adam] argues that because he resides in Kentucky
and [Sarah] and the children reside in New York, this Court does
not have jurisdiction over child support under R.C. § 3115.07(A).
The Court reads the Magistrate's Decision filed August 10, 2012
as transferring this entire matter to the State of New York, not
just custody and visitation. However, if any question remains
regarding jurisdiction, the Court hereby transfers child support
jurisdiction to New York, as neither of the parties nor the children
reside in Ohio at this time. From this point forward, this Court
declines to retain jurisdiction over any matter related to this case.
[Adam's] first objection is Sustained.
{¶ 9} WCCSEA now appeals from the decision of the Warren County Domestic
Relations Court declining to retain jurisdiction, raising one assignment of error for review.
{¶ 10} THE TRIAL COURT ERRED AS A MATTER OF LAW WHEN IT RULED THAT
OHIO LACKED CONTINUING JURISDICTION TO ENFORCE THIS CHILD SUPPORT
ORDER.
{¶ 11} In its single assignment of error, WCCSEA argues the Warren County
Domestic Relations Court erred by dismissing its motion for contempt against Adam upon
finding it lacked continuing jurisdiction to enforce its child support order. We construe this as
a question regarding subject matter jurisdiction of the Warren County Domestic Relations
Court to rule on issues regarding child support and the interpretation and application of Ohio
law.
{¶ 12} Generally, a trial court's decisions regarding domestic relations issues are
reviewed by an appellate court under the abuse of discretion standard. In re A.G.M., 12th
Dist. Warren No. CA2011-09-095, 2012-Ohio-998, ¶ 14, citing Blakemore v. Blakemore, 5
Ohio St. 3d 217, 219 (1983). However, "an appellate court reviews de novo the decision of
the trial court regarding the existence of subject matter jurisdiction, because such a
determination is a matter of law." Mulatu v. Girsha, 12th Dist. Clermont No. CA2011-07-051,
2011-Ohio-6226, ¶ 26, citing In re K.R.J., 12th Dist. Clermont No. CA2010-01-012, 2010-
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Ohio-3953, ¶ 16.
{¶ 13} Moreover, since this matter also presents a question of the interpretation and
application of Ohio statutory law, it is likewise subject to de novo review. Smoske v. Sicher,
11th Dist. Geauga Nos. 2006-G-2720 and 2006-G-2731, 2007-Ohio-5617, ¶ 21. In
conducting a de novo review, this court independently reviews the record without giving
deference to the trial court's decision. Wilson v. AC & S, Inc., 169 Ohio App. 3d 720, 2006-
Ohio-6704, ¶ 61 (12th Dist.) (stating questions of law are reviewed "de novo, independently,
and without deference to the trial court's decision").
{¶ 14} As noted above, the Warren County Domestic Relations Court construed
Magistrate Iversen's decision as transferring "this entire matter to the State of New York, not
just custody and visitation." However, Magistrate Iversen's decision to decline jurisdiction
was based on the provisions of the UCCJEA as found in R.C. 3127.21(A). As that statute
specifically states:
A court of this state that has jurisdiction under this chapter to
make a child custody determination may decline to exercise its
jurisdiction at any time if it determines that it is an inconvenient
forum under the circumstances and that a court of another state
is a more convenient forum. The issue of inconvenient forum
may be raised upon motion of a party, the court's own motion, or
at the request of another court.
{¶ 15} As defined by R.C. 3127.01(B)(3), a "child custody determination" does not
include "an order or the portion of an order relating to child support or other monetary
obligations of an individual." Therefore, as the name implies, the provisions found in
UCCJEA only apply to judgments, decrees, or other orders that provide for legal custody,
physical custody, parenting time, or visitation with respect to a child, not to child support.
{¶ 16} In addition, as R.C. 3127.21(D) provides:
A court of this state may decline to exercise its jurisdiction under
this chapter if a child custody determination is incidental to an
action for divorce or another proceeding while still retaining
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jurisdiction over the divorce or other proceeding.
Accordingly, we find Magistrate Iversen's decision to decline jurisdiction under R.C.
3127.21(A) was in relation to those matters relating to child custody and parenting time only.
The decision of the Warren County Domestic Relations Court holding otherwise is hereby
reversed.
{¶ 17} Our inquiry, however, does not end there for the Warren County Domestic
Relations Court also found "if any question remains regarding jurisdiction, the Court hereby
transfers child support jurisdiction to New York, as neither of the parties nor the children
reside in Ohio at this time." In so holding, the court relied on R.C. 3115.07(A), the Uniform
Interstate Family Support Act (UIFSA), which states:
A tribunal of this state has continuing, exclusive jurisdiction over
a child support order it issues as long as the obligor, individual
obligee, or child subject to the child support order is a resident of
this state, unless all of the parties who are individuals have filed
written consents with the tribunal of this state for a tribunal of
another state to modify the order and assume continuing,
exclusive jurisdiction.
This provision, however, deals with the modification of a child support order, not the
enforcement of such an order. Moreover, after a thorough review of the statutory language,
nothing within the provisions of the UIFSA as codified by R.C. Chapter 3115 provides a
mechanism to transfer jurisdiction over a child support order to a court in another state.
{¶ 18} Nevertheless, in reviewing case law regarding this issue from around the
country, "virtually all of the states that have ruled on this issue have held that when the
individual parties and child(ren) no longer reside in the issuing state," in this case Ohio, "that
state nonetheless retains the authority to enforce its order." Sidell v. Sidell, 18 A.3d 499, 511
(R.I.2011); see, e.g., Johnson v. Bradshaw, 86 A.3d 760, 764-765 (N.J.Super.2014) (finding
New Jersey retained power to enforce its child support order even though parties resided
elsewhere as the New Jersey order was the only order setting defendant's child support
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obligation); Lattimore v. Lattimore, 991 So. 2d 239, 244 (Ala.App.2008) (holding "a state
retains jurisdiction to enforce a child-support order issued by a tribunal of that state even
after the obligor, the obligee, and the concerned child have all moved out of state"); Douglas
v. Brittlebank-Douglas, 45 P.3d 368, 374 (Haw.App.2002) (finding state retained jurisdiction
to enforce a child support order "as long as the order has not been modified by a tribunal of
another state").
{¶ 19} Furthermore, as explained in a National Conference of Commissioners on
Uniform State Laws Model UIFSA Comment to Art. 2, § 206:
A keystone of UIFSA is that the power to enforce the order of the
issuing tribunal is not "exclusive" with that tribunal. Rather, on
request one or more responding tribunals may also exercise
authority to enforce the order of the issuing tribunal. Secondly,
under the one-order-at-a-time system, the validity and
enforceability of the controlling order continues unabated until it
is fully complied with, unless it is replaced by a modified order
issued in accordance with the standards established by [UIFSA].
That is, even if the individual parties and the child no longer
reside in the issuing state, the controlling order remains in effect
and may be enforced by the issuing tribunal or any responding
tribunal without regard to the fact that the potential for its
modification and replacement exists.
(Emphasis added.)
{¶ 20} In light of the foregoing, we find the Warren County Domestic Relations Court
erred by concluding it lacked the authority to enforce the child support order at issue here.
However, simply because the Warren County Domestic Relations Court could enforce the
child support order does not necessarily mean it was required to do so. Rather, our research
indicates that a trial court's jurisdiction to enforce a child support order under these
circumstances is permissive, not mandatory. See Sidell, 18 A.3d at 511 (finding "the
authority to enforce a child-support order is permissive" where the issuing court retains
jurisdiction to enforce the order after parties moved out of state); see also Lunceford v.
Lunceford, 204 S.W.3d 699, 707 (Miss.App.2006) (stating "until another state modifies a
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Missouri child support order pursuant to UIFSA, a Missouri court may enforce a Missouri
child support order even if the obligor, obligee, and child all reside outside this state"). In
turn, whether a court decides to exercise its jurisdiction and authority to enforce the child
support order is purely discretionary and will not be reversed absent an abuse of discretion.
An abuse of discretion constitutes more than an error of law or judgment; it requires a finding
that the trial court acted unreasonably, arbitrarily, or unconscionably. Miller v. Miller, 12th
Dist. Butler No. CA2001-06-138, 2002-Ohio-3870, ¶ 8.
{¶ 21} As noted above, the Warren County Domestic Relations Court determined that
even if it had some authority to act, which we find that it did, it nevertheless "declines to
retain jurisdiction over any matter related to this case." We find no abuse of discretion in the
trial court's decision.
{¶ 22} As the record reveals, Sarah and the children have resided outside Ohio for
nearly seven years. Adam now also resides outside Ohio. Furthermore, it is undisputed that
the Dutchess County Family Court has properly retained jurisdiction over matters relating to
the parties' minor children. In turn, although the order has yet to be registered in New York,
we see no reason why the Dutchess County Family Court could not also resolve any issues
relating to Adam's child support obligations. See New York Family Court Act § 580-601 ("[a]
support order or an income-withholding order issued by a tribunal of another state may be
registered in this state for enforcement").
{¶ 23} Moreover, based on their respective filings, neither Sarah nor Adam appear to
have any objection to the Dutchess County Family Court exercising jurisdiction in regards to
child support issues, as New York is now better suited to address the best interest of the
children. Again, this is not a request for a child support modification, but merely a request for
the enforcement of the child support order. Therefore, although we find the trial court
erroneously concluded that it lacked jurisdiction to enforce the child support order, we
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nevertheless affirm the Warren County Domestic Relations Court's decision to decline
jurisdiction as that decision does not constitute an abuse of discretion.
{¶ 24} Judgment affirmed.
HENDRICKSON, P.J., and M. POWELL, J., concur.
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