Dattilio v. Brittingham , 2012 Ohio 2889 ( 2012 )

[Cite as Dattilio v. Brittingham, 2012-Ohio-2889.]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT )
TERRY J. DATTILIO C.A. No. 26101
Appellant
v. APPEAL FROM JUDGMENT
ENTERED IN THE
CORTNEY M. BRITTINGHAM COURT OF COMMON PLEAS
COUNTY OF SUMMIT, OHIO
Appellee CASE No. 2009-07-2112
DECISION AND JOURNAL ENTRY
Dated: June 27, 2012
MOORE, Presiding Judge.
{¶1} Appellant, Terry J. Dattilio, appeals from the judgment of the Summit County
Court of Common Pleas, Division of Domestic Relations. This Court dismisses the appeal.
I.
{¶2} In 2006, Terry J. Dattilio and Cortney M. Brittingham resided together in Ohio.
In October of that year, Brittingham told Dattilio that she was pregnant with their child, and,
shortly thereafter, she moved to New Jersey. The parties’ child was born on July 4, 2007. That
month, Dattilio filed a paternity action in New Jersey. The New Jersey court determined
paternity and implemented a custody arrangement. At the end of 2008, Brittingham sought
approval from the New Jersey court to relocate with the child to Georgia, and Brittingham
moved to Georgia, leaving the child with her parents in New Jersey to await Dattilio’s arrival to
pick up the child for an agreed period of parenting time. Dattilio returned the child to
Brittingham’s care in Georgia on January 11, 2009. On January 13, 2009, the New Jersey court
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issued an order allowing Brittingham to relocate with the child to Georgia and increasing
Dattilio’s parenting time to fourteen overnight visits per month.
{¶3} On July 10, 2009, Dattilio filed a petition in the Summit County Court of
Common Pleas, Division of Domestic Relations, asking the court to register and terminate the
shared parenting order issued by the New Jersey court. Brittingham filed a motion to dismiss
Dattilio’s petition, arguing that Ohio courts did not have subject matter jurisdiction over the
custody and visitation issues. While this issue was pending in Ohio, Brittingham filed a petition
for modification of child support and visitation in Georgia. On August 16, 2011, the Ohio court
dismissed Dattilio’s petition, reasoning that Ohio lacked jurisdiction to modify or enforce the
New Jersey custody order. Dattilio timely filed an appeal from the August 16, 2011 order,
raising four assignments of error. Dattilio subsequently withdrew his fourth assignment of error,
leaving three assignments of error for our review.
II.
ASSIGNMENT OF ERROR I
THE TRIAL COURT ERRED AS A MATTER OF LAW IN HOLDING THAT
THE PETITION TO REGISTER FOREIGN DECREE WAS FATALLY
DEFECTIVE.
ASSIGNMENT OF ERROR II
THE TRIAL COURT ERRED AS A MATTER OF LAW IN HOLDING THAT
REGISTRATION OF A FOREIGN CUSTODY DECREE IS A PREREQUISITE
TO MODIFICATION OF THE DECREE.
ASSIGNMENT OF ERROR III
THE TRIAL COURT ERRED AS A MATTER OF LAW IN HOLDING THAT
OHIO WAS NOT THE HOME STATE OF THE CHILD AND GEORGIA WAS
THE HOME STATE AS OF JULY 10, 2009.
{¶4} In his first assignment of error, Dattilio argues that the trial court erred in its
determination that his petition to register the New Jersey order in Ohio was defective. In his
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second assignment of error, Dattilio argues that the trial court erred in holding that it could not
modify the New Jersey decree unless it was registered in Ohio. In his third assignment of error,
Dattilio argues that the trial court erred in determining that Georgia, and not Ohio, was the home
state of the child. However, this Court will not reach the merits of Dattilio’s appeal, as we find
the issues raised are moot.
{¶5} In Frank Novak & Sons, Inc. v. Avon Lake Bd. of Edn, 9th Dist. No.
01CA007835, 2001 WL 1545505, *1 (Dec. 5, 2001), quoting Miner v. Witt, 82 Ohio St. 237,
238, (1910), we set forth the Ohio Supreme Court’s following analysis of the mootness doctrine:
The duty of this court, as of every other judicial tribunal, is to decide actual
controversies by a judgment which can be carried into effect, and not to give
opinions upon moot questions or abstract propositions, or to declare principles or
rules of law which cannot affect the matter in issue in the case before it. It
necessarily follows that when, pending an appeal from the judgment of a lower
court, and without any fault of the defendant, an event occurs which renders it
impossible for this court, if it should decide the case in favor of the plaintiff, to
grant him any effectual relief whatever, the court will not proceed to a formal
judgment, but will dismiss the appeal. And such a fact, when not appearing on
the record, may be proved by extrinsic evidence.
{¶6} Here, Brittingham filed a motion to dismiss in this Court identifying a motion
filed by Dattilio in Georgia, wherein Dattilio set forth that he now resides in Georgia. Dattilio
responded to Brittingham’s motion to dismiss, arguing that that because Brittingham relied upon
allegations that were not part of the record in the present case, dismissal of the appeal could not
be based upon these allegations. Dattilio further responded that his current residence is
irrelevant because a child’s home state is determined at the commencement of the action, and,
even if he had moved to Georgia, the issue is not moot because it is foreseeable that he could
move back to Ohio if this Court reversed the ruling of the lower court. We find Dattilio’s
arguments unpersuasive.
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{¶7} “[A]n event that causes a case to be moot may be proved by extrinsic evidence
outside the record.” Roach v. Menard, Inc., 9th Dist. No. 22349, 2005-Ohio-1708, ¶ 6, quoting
Pewitt v. Lorain Correctional Inst., 64 Ohio St.3d 470, 472 (1992). Therefore, Dattilio’s
argument that we are confined to the record in determining mootness lacks merit.
{¶8} As to Dattilio’s argument that jurisdiction is determined based upon the
circumstances existing at the time of the commencement of a juvenile proceeding, this argument
pertains to the merits of Dattilio’s assignments of error. However, it does not address whether an
event has occurred which would prevent any judgment rendered by this Court to provide Dattilio
with relief.
{¶9} Further, as to Dattilio’s contention that this appeal is not moot because, if we were
to enter judgment in his favor, it is foreseeable that he may return to Ohio, we are not persuaded.
In Dattilio’s response to the motion to dismiss, he did not dispute the accuracy or authenticity of
the documents provided by Brittingham from the Georgia proceedings. A copy of the Georgia
temporary order sets forth that, because the child was to begin pre-kindergarten schooling in
August, 2011, it would not be possible for the parenting schedule, where the child traveled from
Georgia to Ohio for two weeks per month, to continue. Based upon this, the Georgia court
reduced Dattilio’s parenting time to four overnight visits each month, but indicated that it would
consider modifying the order if Dattilio moved to Georgia. Thereafter, as set forth in a copy of a
motion Dattilio filed, Dattilio represented to the Georgia court that he had “moved to Georgia on
a permanent basis, residing less than one mile from [Brittingham] and the minor child.”
(Emphasis added.).
{¶10} Based upon the representations Dattilio has made to the Georgia court, we cannot
discern how our rendering of a decision would provide Dattilio, a now self-declared permanent
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resident of Georgia, any relief. Accordingly, the issues raised in this appeal are moot, and this
court declines to address Dattilio’s assignments of error. See App.R. 12(A)(1)(c).
Appeal dismissed.
Immediately upon the filing hereof, this document shall constitute the journal entry of
judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the
period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is
instructed to mail a notice of entry of this judgment to the parties and to make a notation of the
mailing in the docket, pursuant to App.R. 30.
Costs taxed to Appellant.
CARLA MOORE
FOR THE COURT
CARR, P. J.
BELFANCE, J.
CONCUR
APPEARANCES:
DEBORAH AKERS-PARRY, Attorney at Law, for Appellant.
JOHN M. DOHNER, Attorney at Law, for Appellee.