Southdakota v. K.H. , 98 N.E.3d 375 ( 2018 )

[Cite as S.D. v. K.H., 2018-Ohio-1181.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 105244
S.D.
PETITIONER-APPELLANT
vs.
K.H., ET AL.
RESPONDENTS-APPELLEES
JUDGMENT:
AFFIRMED
Civil Appeal from the
Cuyahoga County Court of Common Pleas
Domestic Relations Division
Case No. DR-16-363671
BEFORE: Kilbane, P.J., Stewart, J., and Celebrezze, J.
RELEASED AND JOURNALIZED: March 29, 2018
ATTORNEYS FOR APPELLANT
Leeann M. Massucci
Colleen L. Marshall
Massucci Law Group, L.L.C.
250 Civic Center Drive, Suite 600
Columbus, Ohio 43215
ATTORNEY FOR APPELLEE
Leslie Johns
The Martinez Firm
4230 S.R. 306, Suite 240
Willoughby, Ohio 44094
Also Listed:
M.T.
5831 Eldon Drive
Parma Heights, Ohio 44130
MARY EILEEN KILBANE, P.J.:
{¶1} Petitioner-appellant, S.D. (“Mother 2”), appeals from the decision of the
domestic relations court, denying her petition to register a foreign parentage order. For
the reasons set forth below, we affirm.
{¶2} The underlying facts of this appeal present us with a situation where
mother-respondent-appellee, K.H. (“Mother 1”), and M.T. (“Father”), the biological
parents of the minor child, A.T. (d.o.b. 2/17/2006), divorced in November 2007. The
terms of the divorce decree provided Mother 1 with full and legal custody of A.T. and
Father with visitation rights. The decree also provided that Mother 1 could relocate
without notice to Father.
{¶3} Shortly after the divorce, Mother 1 and Mother 2 began a relationship. In
September 2008, Mother 1, Mother 2, and A.T. moved to California. The three of them
lived together as a family with Mother 1 and Mother 2 sharing parenting responsibilities.
Mother 2 was the “stay-at-home parent.” Mother 1 and Mother 2 ended their
relationship in May 2010, at which point in time the women continued to share parenting
responsibilities and split their parenting time 50/50 until July 2013, when Mother 1
ceased A.T.’s contact with Mother 2.
{¶4} In response, Mother 2 sought to legally formalize her parental role in A.T.’s
life by filing with the Superior Court of California, County of Santa Clara (“California
Court”) a Petition to Establish Parental Relationship. In October 2013, the California
Court entered temporary orders giving Mother 2 custody and visitation rights. At a
hearing in January 2014, Mother 1 withdrew her objection to Mother 2 being recognized
as a parent, and the court issued a parentage order that was stipulated to by both Mother 1
and Mother 2. This parentage order found Mother 2 to be a parent of A.T. Thereafter,
the two women shared joint physical custody of A.T., and Mother 2 continued her
parenting responsibilities.
{¶5} In 2016, Mother 1 filed a request for orders in the California Court, seeking
permission to move back to Ohio with A.T. Prior to the California Court’s ruling on the
motion, Mother 1 returned to Ohio with A.T. in April 2016. In the interim, Father filed a
motion with the California Court requesting to set aside the 2014 parentage order. A
hearing was held on the matter in June 2016. At this hearing, the California Court
indicated that it would contact the Domestic Relations Division of the Cuyahoga County
Common Pleas Court (“Ohio Court”) to determine whether the Ohio Court wished to
relinquish jurisdiction over issues related to A.T.’s custody and visitation to the California
Court.
{¶6} On June 30, 2016, the Ohio Court communicated its findings in the matter
with the California Court through a letter and a copy of its judgment entry. In the letter,
the Ohio Court advised that it has exclusive and continuing jurisdiction over any custody
and parenting determinations with respect to A.T. The Ohio Court also noted that R.C.
3109.051(B)(1) does permit it to grant reasonable companionship or visitation rights to a
third party where the court determines that such companionship or visitation is in the best
interest of the child. The Ohio Court advised that should Mother 2 “wish to pursue
visitation rights pursuant to the Ohio Revised Code, she would need to file a motion to
intervene in the matter before our Court and file the appropriate motion to seek
visitation.”
{¶7} In the judgment entry, the Ohio Court found that it has “exclusive continuing
jurisdiction over any custody and parenting determinations with respect to [A.T. under]
the Uniform Child Custody Jurisdiction and Enforcement Act (‘UCCJEA’), when it
issued a parenting order on November 8, 2007, as part of a decree of divorce between
[Mother 1 and Father].”1 The court reasoned that under both Ohio and California law,
when at least one of the parents still resides in the state that made the original custody
determination, that state has exclusive, continuing jurisdiction to modify its own order.
The court stated that this is the law in both Ohio and California. The court went on to
state that “at no time did [the Ohio Court] decline to exercise its exclusive continuing
jurisdiction over the parties and [A.T.], or consent to the California [C]ourt assuming
1 The UCCJEA was “adopted by the Ohio General Assembly in 2004 and
became effective in 2005.” Mulatu v. Girsha, 12th Dist. Clermont No.
CA2011-07-051, 2011-Ohio-6226, ¶ 15. The UCCJEA “provides an open door to the
judicial system so that issues related to child custody can be determined and
enforced despite a parent’s choice to relocate around the country, or the world.” Id.
The main provisions of the UCCJEA include: “determining when states can
exercise jurisdiction over a child; requiring states to enforce custody
determinations; forbidding states from modifying custody determinations made by
other states unless the other state no longer had jurisdiction under the Uniform
Act; requiring states to decline jurisdiction if another state had assumed
jurisdiction; and permitting states to decline jurisdiction if another state would offer
a more convenient forum.” Id. at ¶ 14. The UCCJEA grants jurisdictional priority
and exclusive continuing jurisdiction to the home state. Id.
jurisdiction over the issue of parenting [A.T.].” The Ohio Court concluded that “the
orders issued by the [California Court] involving [A.T.] are void as a matter of law.”
The Ohio Court further found that “the custody and visitation orders issued by this Court
on November 8, 2007 and June 14, 2016, were the only valid parenting orders with
respect to [A.T.].”
{¶8} Thereafter, on July 19, 2016, the California Court issued the following
findings: (1) the jurisdictional provisions of the UCCJEA do not apply to a parentage
determination; (2) the jurisdictional provisions of the UCCJEA do apply to custody and
visitation orders, and Ohio retained continuing and exclusive jurisdiction over all issues
related to A.T.’s custody and visitation; and (3) Father had proper notice of the
proceedings. In light of these findings, the California court denied Father’s request to set
aside the original parentage order and stayed all custody and visitation orders issued in the
proceedings.
{¶9} Then on September 2, 2016, Mother 2 filed a petition to register the foreign
parentage order with the Ohio Court, seeking to enforce the parentage order issued by the
California Court. Mother 1 and Father each opposed Mother 2’s petition. In her
opposition, Mother 1 also requested a hearing to contest the registration of the foreign
parenting order. The court denied Mother 2’s petition in November 2016. The court
found that it has “exclusive continuing jurisdiction over custody matters pertaining to
[A.T.], and that the California Court’s February 2014 judgment is void for lack of
subject-matter jurisdiction.”
{¶10} We note that at the time Mother 2 filed her petition in the instant case, she
contemporaneously filed a motion to intervene, a motion for immediate parenting time,
and a motion for shared parenting or custody (or to modify same) in the original divorce
case between Mother 1 and Father. The Ohio Court denied Mother 2’s motion to modify
parenting time, but granted her motion to intervene and renamed her motion for
immediate parenting time as a motion for companionship time. The court appointed a
guardian ad litem for A.T. and the matter was set for trial in April 2017. However,
through an agreed judgment entry, the matter was stayed by the trial court pending a
decision in the instant appeal.
{¶11} Mother 2 now appeals the trial court’s denial of her petition to register the
foreign parentage order, and raises the following assignment of error for review.
Assignment of Error
The [Ohio Court’s] denial of the registration of the [California Court’s]
Foreign Parentage Order No. 392242 is a violation of the Full Faith and
Credit Clause, Article IV, Section 1, of the United States Constitution.
{¶12} Mother 2 maintains that the California Court had the authority to adjudicate
parentage under California law, and that the parentage adjudication is a legal and
permanent parent-child relationship equivalent to an adoption.2 She argues that the issue
of parentage is separate from the issue of custody and visitation, and the California Court
2Wenote that California is the first state to formally recognize that a child
can have more than two legal parents. As of January 2014, a child in California
may have more than two legal parents if limiting the child to two parents would be
detrimental to the child. Cal.Fam.Code 7612(c).
did not interfere with the Ohio Court’s jurisdiction over custody and visitation. As a
result, she contends that the Ohio Court erred in not giving her parentage order full faith
and credit under Ohio law and recognizing her status as a parent to A.T.
{¶13} In this case of first impression, our discussion is limited to determining
whether the trial court’s decision “that the California Court’s February 2014 judgment is
void for lack of subject-matter jurisdiction” was proper. While we are cognizant of the
best interest of the child — the underlying tenet in child-custody determinations, we agree
with the trial court’s finding that “the California Court’s February 2014 judgment is void
for lack of subject-matter jurisdiction.”
{¶14} From what can be gleaned in this limited record, Mother 1 and Father were
divorced by decree in the Ohio Court in November 2007. In September 2013, Mother 2
initiated court proceedings in California to establish a legal parental relationship with
A.T.
{¶15} Both Ohio and California have enacted the UCCJEA. See R.C. Chapter
3217 and Cal.Fam. Code Chapter 3400. Relevant to this appeal, R.C. 3127.16 provides:
“a court of this state that has made a child custody determination consistent with [R.C.
3127.15 or 3127.17] has exclusive, continuing jurisdiction over the determination until
the court or a court of another state determines that the child, the child’s parents, and any
person acting as a parent do not presently reside in this state.” (Emphasis sic.)
{¶16} R.C. 3127.01(B)(3) defines child-custody determination as
a judgment, decree, or other order of a court that provides for legal custody,
physical custody, parenting time, or visitation with respect to a child.
“Child custody determination” includes an order that allocates parental
rights and responsibilities.
(Emphasis sic.) R.C. 3127.01(B)(4) defines child-custody proceedings
to include a proceeding in which legal custody, physical custody, parenting
time, or visitation with respect to a child is an issue. “Child custody
proceeding” may include a proceeding for divorce, separation, neglect,
abuse, dependency, guardianship, parentage, termination of parental rights,
or protection from domestic violence.
(Emphasis sic.)
{¶17} In the instant case, the Ohio Court made the initial custody determination as
part of the divorce decree between Mother 1 and Father, and Father has lived in Ohio
continuously since that initial determination. At no time since then has the Ohio Court
declined jurisdiction, nor has it consented for the California Court to assume jurisdiction.
As a result, under the UCCJEA, the Ohio Court retains exclusive, continuing jurisdiction
over custody and parenting determinations with respect to A.T. See R.C. 3127.16 and
Cal.Fam.Code 3422.
{¶18} The court proceedings initiated by Mother 2 in California established a legal
parental relationship with A.T. while the Ohio Court had exclusive, continuing
jurisdiction over the matter. Because the Ohio Court has exclusive, continuing
jurisdiction, the California Court did not have subject-matter jurisdiction to make a
parenting determination regarding A.T. “Subject-matter jurisdiction is fundamental. It
defines the court’s power to decide cases. Subject-matter jurisdiction can never be
waived; any decision entered without subject-matter jurisdiction is void.” Francis David
Corp. v. Scrapbook Memories & More, 8th Dist. Cuyahoga No. 93376, 2010-Ohio-82,
¶ 17, citing Pratts v. Hurley, 102 Ohio St. 3d 81, 2004-Ohio-1980, 806 N.E.2d 992.
Therefore, the Ohio Court properly concluded that the California Court’s parenting order
is void and has no effect in the Ohio Court.
{¶19} While Ohio does not recognize more than two legal parents, the trial court
aptly advised the parties that Ohio law does permit the court to grant “companionship or
visitation rights to any grandparent, any person related to the child by consanguinity or
affinity, or any person other than parent[.]” (Emphasis added.) R.C. 3109.051(B)(1).
The trial court has allowed Mother 2 to proceed with a motion for companionship in the
original divorce case between Mother 1 and Father. Following our decision in this
appeal, the companionship matter will proceed to trial where the trial court can make a
best-interest determination as to A.T. and her relationship with Mother 2.3
{¶20} Thus, in light of the foregoing, Mother 2’s sole assignment of error is
overruled.
{¶21} Accordingly, judgment is affirmed.
It is ordered that appellee recover of appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the domestic
3The best interest of the child factors include, but are not limited to: the
child’s wishes; the child’s age; the child’s interaction and interrelationships with the
child’s parents, siblings, and any other person who may significantly affect the
child’s best interest; the health and safety of the child; the mental and physical
health of all person involved; the child’s adjustment to the child’s home, school, and
community; and the recommendation of the guardian ad litem of the child. R.C.
3109.04(F)(1)-(2).
relations division of the common pleas court to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.
MARY EILEEN KILBANE, PRESIDING JUDGE
MELODY J. STEWART, J., and
FRANK D. CELEBREZZE, JR., J., CONCUR