In re A.Z. , 2011 Ohio 6739 ( 2011 )

[Cite as In re A.Z., 2011-Ohio-6739.]
IN THE COURT OF APPEALS OF OHIO
FOURTH APPELLATE DISTRICT
MEIGS COUNTY
In Re: [A.Z.], :
:
: Case No: 11CA3
:
:
: DECISION AND
: JUDGMENT ENTRY
:
: Filed: December 21, 2011
APPEARANCES:
Michael L. Barr, Little & Sheets, L.L.P., Pomeroy, Ohio, for Appellants.
Trenton J. Cleland, Pomeroy, Ohio, for Appellees.1
Kline, J.:
{¶1} Kent and Kim Eads (hereinafter the “Eadses”) appeal the judgment of the
Meigs County Court of Common Pleas, Juvenile Division, which dismissed the Eadses’
claim for reasonable companionship time with A.Z., a minor child. The juvenile court
found that, as applied in this case, R.C. 3109.12 violates the Equal Protection Clause.
On appeal, the Eadses make arguments based on (1) our decision in Moore v. Strassel
(Feb. 26, 1998), Pickaway App. No. 97 CA 32, and (2) the statutory interpretation of
R.C. 3109.12. Because these arguments are irrelevant to the equal-protection issues in
this case, we find no merit in the Eadses’ appeal. Accordingly, we affirm the judgment
of the trial court.
I.
1
The Appellees did not participate in this appeal.
Meigs App. No. 11CA3 2
{¶2} On August 15, 2008, Tiffany Willis (hereinafter “Willis”) gave birth to A.Z.
Kim Eads is Willis’s first cousin. Walid Zahran (hereinafter “Zahran”) is A.Z.’s biological
father, but Zahran and Willis were not married at the time of A.Z.’s birth.
{¶3} In late 2009, the juvenile court granted temporary custody of A.Z. to the
Eadses. Willis and Zahran, however, regained custody of A.Z. the following June.
{¶4} On September 17, 2010, the Eadses filed a complaint for reasonable
companionship time with A.Z. The Eadses based their complaint on R.C. 3109.12(A),
which provides the following: “If a child is born to an unmarried woman, the parents of
the woman and any relative of the woman may file a complaint requesting the court of
common pleas of the county in which the child resides to grant them reasonable
companionship or visitation rights with the child.”
{¶5} On September 20, 2010, Willis and Zahran were married.
{¶6} On October 4, 2010, Willis and Zahran filed a motion to dismiss the
Eadses’ complaint for reasonable companionship time. Willis and Zahran argued that,
as applied in this case, R.C. 3109.12 violates the Equal Protection Clause. Essentially,
Willis and Zahran claimed that R.C. 3109.12 unconstitutionally distinguishes between
(1) a mother who was married to the biological father at the time of the child’s birth and
(2) a mother who married the biological father sometime after the child’s birth.
{¶7} The juvenile court agreed with Willis and Zahran and found an “as applied”
equal-protection violation. As the juvenile court held, “[T]his court finds no rational basis
to differentiate married biological parents, who happen to be unmarried at the time that
a relative files a complaint seeking companionship rights, from married biological
parents who married before the child was born. Relatives, absent a showing of parental
Meigs App. No. 11CA3 3
unfitness, would not be able to obtain companionship rights with a child born after the
marriage of biological parents.
{¶8} “Therefore, the Court holds that Ohio Revised Code Section 3109.12 is
unconstitutional as applied to the particular facts and circumstances of this case. * * *.
{¶9} “Based on the foregoing, the Complaint for Companionship Rights is
dismissed.” January 4, 2011 Judgment Entry.
{¶10} The Eadses appeal and assert the following assignment of error: I. “THE
TRIAL COURT COMMITTED PLAIN ERROR IN GRANTING APPELLEES’ MOTION
TO DISMISS APPELLANTS’ COMPLAINT FOR REASONABLE COMPANIONSHIP
TIME PURSUANT TO OHIO REVISED CODE [SECTION] 3109.12.”
II.
{¶11} On appeal, the Eadses contend that the trial court erred when it dismissed
their complaint for companionship time with A.Z. And although the trial court dismissed
the Eadses’ complaint based on equal-protection grounds, the Eadses do not make any
equal-protection arguments in their appellate brief. Instead, the Eadses argue that the
trial court should have followed our decision in Moore.
A. Equal Protection
{¶12} “Constitutional analysis is a question of law that we review de novo.”
State v. Rayburn, Jackson App. No. 09CA6, 2010-Ohio-5693, at ¶25 (citations omitted).
{¶13} The Equal Protection Clause of the Fourteenth Amendment to the United
States Constitution provides that “[n]o State shall * * * deny to any person within its
jurisdiction the equal protection of the laws.” Similarly, the Ohio Constitution provides
that “[a]ll political power is inherent in the people. Government is instituted for their
Meigs App. No. 11CA3 4
equal protection and benefit[.]” Section 2, Article I of the Ohio Constitution. “The limit
placed upon governmental action by the Equal Protection Clauses of the Ohio and
United States Constitutions are nearly identical.” Sorrell v. Thevenir, 69 Ohio St.3d 415,
424, 1994-Ohio-38. Therefore, “the equal protection provisions of the Ohio and federal
Constitutions * * * require the same analysis.” Eppley v. Tri-Valley Local School Dist.
Bd. of Edn., 122 Ohio St.3d 56, 2009-Ohio-1970, at ¶11, citing State v. Thompson, 95
Ohio St.3d 264, 2002-Ohio-2124, at ¶11.
{¶14} “The Equal Protection Clauses require that all similarly situated individuals
be treated in a similar manner.” Columbia Gas Transm. Corp. v. Levin, 117 Ohio St.3d
122, 2008-Ohio-511, at ¶90, citing McCrone v. Bank One Corp., 107 Ohio St.3d 272,
2005-Ohio-6505, at ¶6. See, also, City of Cleburne v. Cleburne Living Ctr. (1985), 473
U.S. 432, 439 (stating that the Equal Protection clause “is essentially a direction that all
persons similarly situated should be treated alike”). In other words, “‘[t]he equal
protection of law implies that all litigants similarly situated may appeal to courts for both
relief and defense under like conditions, with like protection, and without
discrimination.’” Conley v. Shearer, 64 Ohio St.3d 284, 288, 1992-Ohio-133, quoting
Sexton v. Barry (C.A.6, 1956), 233 F.2d 220, 224.
{¶15} “A statute may be challenged as unconstitutional on the basis that it is
invalid on its face or as applied to a particular set of facts. See, e.g., United States v.
Eichman (1990), 496 U.S. 310, 312[.] In an as-applied challenge, the challenger
‘contends that application of the statute in the particular context in which he has acted,
or in which he proposes to act, [is] unconstitutional.’ Ada v. Guam Soc. of Obstetricians
& Gynecologists (1992), 506 U.S. 1011[,] (Scalia, J., dissenting).” State v. Lowe, 112
Meigs App. No. 11CA3 5
Ohio St.3d 507, 2007-Ohio-606, at ¶17. In the proceedings below, the trial court found
that R.C. 3109.12 “is unconstitutional as applied to the particular facts and
circumstances of this case.” January 4, 2011 Judgment Entry (emphasis added).
B. The Eadses’ Argument
{¶16} According to the Eadses, “the trial court in this matter should have
followed the reasoning of the Moore court in rendering its decision.” Appellants’ Brief at
13. In Moore, we found that R.C. 3109.12 “specifically provides that the marriage or
remarriage of the mother does not affect the right of the court to order visitation
pursuant to the statute. The applicability of the statute hinges on whether the mother
was unmarried at the time the child was born.” Moore. Essentially, the Eadses base
their entire argument on (1) our decision in Moore and (2) the statutory interpretation of
R.C. 3109.12.
{¶17} The trial court, however, based its decision on the equal-protection clause
-- a fact the Eadses completely ignore in their appellate brief. The Eadses do not make
any constitutional arguments in support of their assignment of error. In fact, the Eadses’
argument does not even contain the words “equal protection.” Furthermore, because
our decision in Moore did not involve an as-applied-equal-protection challenge to R.C.
3109.12, the Eadses’ reliance on Moore is completely misplaced. Simply put, the
Eadses’ argument based on (1) Moore and (2) the statutory interpretation of R.C.
3109.12 is irrelevant to both the trial court’s decision and the issues before this court.
{¶18} Because the Eadses’ arguments are irrelevant, we find no merit in the
Eadses’ appeal. “If an argument exists that can support [an] assignment of error, it is
not this court’s duty to root it out. * * * It is not the function of this court to construct a
Meigs App. No. 11CA3 6
foundation for [an appellant’s] claims[.]” Coleman v. Davis, Jackson App. No. 10CA5,
2011-Ohio-506, at ¶13 (citations omitted) (alterations sic). In other words, “[i]t is not * * *
our duty to create an argument where none is made.” Deutsche Bank Natl. Trust Co. v.
Taylor, Summit App. No. 25281, 2011-Ohio-435, at ¶7. Therefore, we will not address
any potential equal-protection arguments when the Eadses’ failed to make those
arguments on appeal.
{¶19} Finally, it would be inappropriate for us to create an argument on the
Eadses’ behalf. Under App.R. 16(A)(7), the appellants’ brief “shall include * * * [a]n
argument containing the contentions of the appellant with respect to each assignment of
error presented for review and the reasons in support of the contentions[.]” Here, the
Eadses presented their argument under App.R. 16(A)(7). Unfortunately, the reasons in
support of the Eadses’ contentions do not address the relevant issues before us on
appeal. And in our view, we would be circumventing the appellate rules if we created a
new argument for the Eadses.
{¶20} Accordingly, we (1) reject the Eadses’ argument as irrelevant, (2) overrule
the Eadses’ assignment of error, and (3) affirm the judgment of the trial court.
JUDGMENT AFFIRMED.
Meigs App. No. 11CA3 7
JUDGMENT ENTRY
It is ordered that the JUDGMENT BE AFFIRMED. Appellants shall pay the 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
Meigs County Court of Common Pleas, Juvenile Division, 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. Exceptions.
Harsha, P.J. and McFarland, J.: Concur in Judgment and Opinion.
For the Court
BY:_____________________________
Roger L. Kline, 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.