Javidan-Nejad v. Navadeh , 2013 Ohio 931 ( 2013 )

[Cite as Javidan-Nejad v. Navadeh, 2013-Ohio-931.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 97956
SALVIA JAVIDAN-NEJAD
PLAINTIFF-APPELLANT
vs.
ALIREZA NAVADEH
DEFENDANT-APPELLEE
JUDGMENT:
REVERSED
Civil Appeal from the
Cuyahoga County Court of Common Pleas
Domestic Relations Division
Case No. D-279478
BEFORE: E.T. Gallagher, J., Jones, P.J., and E.A. Gallagher, J.
RELEASED AND JOURNALIZED: March 14, 2013
ATTORNEY FOR APPELLANT
James L. Lane
Hermann, Cahn & Schneider, L.L.P.
1301 East Ninth Street
Suite 500
Cleveland, Ohio 44114
ATTORNEY FOR APPELLEE
Gregory J. Moore
Stafford & Stafford Co.
55 Erieview Plaza
5th Floor
Cleveland, Ohio 44114
EILEEN T. GALLAGHER, J.:
{¶1} Appellant Salvia G. Javidan-Nejad (“Salvia”) appeals the trial court’s
judgment finding Cuyahoga County to be a convenient forum to hear this child custody
case. We find merit to the appeal and reverse the trial court’s judgment.
{¶2} Salvia was married to appellee Alireza Navadeh (“Alireza”) in Tehran, Iran,
on January 6, 1996. They had one child born as issue of the marriage, to wit: Reza
Safarnavadeh (“Reza”), born July 12, 2000. Salvia filed a complaint for divorce in April
2001, and the Cuyahoga County Domestic Relations Court entered a judgment entry of
divorce on May 31, 2001. By agreement of the parties, Salvia was named Reza’s
residential parent and legal custodian.
{¶3} In November 2001, Salvia moved to Michigan with Reza. In July 2002,
Salvia and Reza moved to California when Salvia was accepted into an endodontic
residency program. Shortly thereafter, Reza moved back to Michigan for two years to
live with Salvia’s mother while Salvia completed her training. He moved back to
California in July 2004 when Salvia completed her residency program. Reza has lived
exclusively in California since 2004. During those years, Alireza never sought to have
custody of Reza.
{¶4} In December 2006, the parties entered into a shared parenting plan. Despite
statements to the contrary, Alireza’s agreement to this plan constitutes implicit consent to
Reza’s California residency. The shared parenting plan contains a provision requiring
Salvia to provide Alireza notice of relocation pursuant to R.C. 3109.051(G)(2) anytime
she relocates from their California residence.
{¶5} On June 6, 2008, Alireza filed a motion to modify allocation of parental
rights and responsibilities. On May 12, 2010, while the motion was still pending, Salvia
filed a motion to declare Ohio an inconvenient forum and to transfer jurisdiction to
California. The trial court granted the motion, declared Ohio an inconvenient forum,
transferred jurisdiction to California, and Alireza appealed. This court reversed the trial
court’s judgment because: (1) the domestic relations court made its decision without
holding a hearing; and (2) there was no evidence in the record that a California court had
accepted jurisdiction over the parties’ son. Javidan-Nejad v. Navadeh, 8th Dist. No.
95406, 2011-Ohio-2283, ¶ 50, 54. (“Navadeh I”).
{¶6} On remand, the trial court held an evidentiary hearing. This time, the
domestic relations court denied Salvia’s motion to declare Ohio an inconvenient forum
even though the evidence showed that Reza has lived exclusively in California since
2004, Alireza has a substantially larger income than Salvia, there was evidence that a
California court had now accepted jurisdiction, and Alireza stipulated to the California
jurisdiction. Salvia now appeals, raising three assignments of error.
{¶7} As a preliminary matter, we note that we have jurisdiction to hear this appeal
because the trial court’s decision declaring Ohio to be a convenient forum is a final,
appealable order. This court has previously held that “a trial court order regarding the
determination of convenient forum ‘affects a substantial right made in a special
proceeding’ pursuant to R.C. 2505.02(B)(2) and is thus a final appealable order.” Critzer
v. Critzer, 8th Dist. No. 90679, 2008-Ohio-5126, ¶ 9, quoting Buzard v. Triplett, 10th
Dist. No. 05AP-579, 2006-Ohio-1478.
{¶8} We find Salvia’s third assignment of error to be dispositive. Here she argues
the trial court abused its discretion in failing to apply the doctrine of judicial estoppel. She
contends that Alireza is estopped from seeking jurisdiction in Ohio after he consented to
California jurisdiction via a stipulated order filed with the Superior Court of California,
Santa Clara County, on March 10, 2011. We agree.
{¶9} The trial court has discretion to decide whether to exercise jurisdiction, and
we will not reverse such a decision absent an abuse of discretion. Navadeh I at ¶ 35,
citing In re D.H., 8th Dist. No. 89219, 2007-Ohio-4069. A court abuses its discretion
when it bases its decision on an incorrect view of the law or a clearly erroneous
assessment of the evidence. Kerobo v. S.W. Clean Fuels, Corp., 285 F.3d 531, 533 (6th
Cir.2002), quoting United Food & Commercial Workers Union, Local 1099 v. S.W. Ohio
Regional Transit Auth., 163 F.3d 341, 347 (6th Cir.1998).
{¶10} At the hearing, Salvia testified that she filed a petition to settle the parties’
custody issues with the Superior Court of California, Santa Clara County. Alireza
acknowledged on cross-examination that he appeared before the California court on two
occasions, in December 2010 and January 2011. (Tr. 187-188.) Although he did not
have counsel in California, he was represented by counsel in Ohio. The California court
set the matter for a final hearing in May 2011. In February 2011, Alireza contacted
Salvia’s lawyer in California and indicated a desire to settle the custody and visitation
issues. Salvia’s California attorney drafted a proposed “Stipulation and Order on
Custody,” which states:
The parties stipulate as follows:
1. Mother is awarded sole legal and sole physical custody of the minor
child, Reza Safarnavadeh (d.o.b. July 12, 2000).
2. If Father desires to have visitation with Reza, he will contact Family
Court Services to work out a visitation schedule. No visitation shall take
place without a mutually agreeable schedule in writing, or a court order.
3. All existing court dates are vacated.
It is so stipulated.
Alireza testified that he signed the stipulation before a notary public in Cleveland, Ohio,
three months before the next scheduled hearing in California. (Tr. 192.)
{¶11} Having submitted to the jurisdiction of the California court and having
stipulated to an order on custody in that court, Alireza is barred by the doctrine of judicial
estoppel from pursuing custody issues in Ohio. In Greer-Burger v. Temesi, 116 Ohio
St.3d 324, 2007-Ohio-6442, 879 N.E.2d 174, the Ohio Supreme Court held that the
doctrine of judicial estoppel prohibits a party from taking a position inconsistent with one
unequivocally asserted by the same party in a prior proceeding. Id. at ¶ 25, citing Griffith
v. Wal-Mart Stores, Inc., 135 F.3d 376, 380 (6th Cir.1998). The court explained that the
purpose of judicial estoppel is “to preserve the integrity of the courts by preventing a
party from abusing the judicial process through cynical gamesmanship, achieving success
on one position, then arguing the opposing to suit an exigency of the moment.”
Greer-Burger at ¶ 25. In order for the doctrine to be applied, the party must show that
her opponent “(1) took a contrary position; (2) under oath in a prior proceeding; and (3)
the prior position was accepted by the court.” Id.{¶12} Here, Alireza voluntarily signed the stipulation and order on custody before
an Ohio notary and sent it to Salvia’s lawyer for filing in the California court. Although
he claims he signed it under duress, he admitted that he signed it three months before the
next scheduled hearing in California. He also admitted that he had retained Ohio counsel,
with whom he could have consulted before signing the stipulation. There was no
urgency or duress under these circumstances.
{¶13} Furthermore, the California court accepted his stipulation and thereby
asserted its jurisdiction over the matter. Alireza’s argument that Ohio should have
jurisdiction and that the stipulation he signed is meaningless is precisely the “cynical
gamesmanship” judicial estoppel is aimed at preventing.
{¶14} The third assignment of error is sustained.
{¶15} Judgment reversed.
It is ordered that appellant recover from appellee costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate be sent to said 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.
EILEEN T. GALLAGHER, JUDGE
LARRY A. JONES, SR., P.J., and
EILEEN A. GALLAGHER, J., CONCUR