Vance v. Vance , 151 Ohio App. 3d 391 ( 2003 )

{¶ 109} I agree that the order from which this appeal was taken should be affirmed, and I do not disagree with Judge Young's reasons for reaching that conclusion. However, I write separately to express my concern about Bonnie Vance's status in this matter.

{¶ 110} Shared parenting of Michael was awarded upon their joint application to his parents, Margaret and Joshua Vance, in their final decree of divorce. Subsequently, Bonnie Vance, the paternal grandmother, intervened as a third party defendant, and on the basis of the pleadings she filed the court awarded Bonnie Vance temporary custody of Michael, ex parte.

{¶ 111} Civ.R. 75(A) states that the Rules of Civil Procedure apply in actions for divorce, "with the modifications or exceptions set forth in this rule." Intervention by a third party who claims an interest in the matter at issue in a civil action is permitted by Civ.R. 24. However, Civ.R. 75(B) states that Civ.R. 24 "shall not apply in divorce . . . actions." Therefore, Bonnie Vance lacked standing to prosecute her claim for custody and temporary custody as an intervenor.

{¶ 112} Had Joshua Vance, the Defendant in this divorce action, wished to support his mother's claims, he might have joined Bonnie Vance as a third-party defendant pursuant to Civ.R. 14, subject to the permissive and compulsory joinder provisions of Civ.R. 19 and 19.1. However, Civ.R. 75(B) also states that those rules likewise shall not apply in divorce actions.

{¶ 113} Civ.R. 75(B)(1)-(3) provide three fact-specific grounds for joinder of certain persons in a divorce action. None of those circumstances apply here.

{¶ 114} Judge Young suggests that, nevertheless, Bonnie Vance did have standing to intervene as she did for two reasons. First, because her allegations related to the child's best interest. Second, because R.C.3109.04(D)(2) authorizes the domestic relations court to "commit the child to a relative of the child" in lieu of a shared parenting decree "[i]f the court finds that it is in the best interest of the child for neither parent to be designated the residential parent and legal custodian of the child." I do not agree that R.C. 3109.04(D)(2) permits that result when a shared parenting order was previously entered.

{¶ 115} R.C. 3109.04(E)(2)(c) states that when terminating a shared parenting decree that it entered "the court shall proceed to issue a modified decree for the allocation of parental rights and responsibilities for the care of the children under the standards applicable under divisions (A), (B) and (C) of this section as if no decree for shared parenting had been granted and as if no request for shared parenting had ever been made." Divisions (A), (B) and (C) of R.C.3109.04 contain no provisions authorizing the court to then commit a child to a relative, as R.C. 3109.04(D)(2) does.

{¶ 116} None of the foregoing rules and statutes confer standing on Bonnie Vance to intervene as she did. None authorized the court to award her temporary custody of Michael. The court might rely on Bonnie Vance's allegations as a basis to terminate shared parenting on the court's own motion, but only if the parents who are parties to the action are given notice and an opportunity to be heard. If faster action is required, the domestic relations court's only alternative is to notify the county's children's service agency, which may then seek a temporary custody order from the juvenile court on verified allegations of abuse or neglect.

{¶ 117} R.C. 3109.04(D)(2) might permit the court to eventually commit a child who was the subject of a terminated shared parenting decree to one of the child's relatives. Realistically, that is unlikely because one or both parents who agreed to shared parenting typically is suitable. More to the point, by limiting the court's commitment alternatives to one of the parents when a shared parenting agreement is terminated, the General Assembly presumably wished to avoid what happened here; intervention by a relative who claims that the child's best interest is not being served by a shared parenting order to which the parties had agreed.

{¶ 118} These concerns are significant for two reasons. First, R.C. 3109.04 is jurisdictional; it limits the domestic relations court's subject matter jurisdiction to allocate parental rights and responsibilities in and to the circumstances which that section identifies. The power to determine that court's jurisdiction is conferred on the General Assembly by Article IV, Section 4(B) of the Ohio Constitution. The court may not expand its jurisdiction outside the statutory bounds which the General Assembly has set.

{¶ 119} Second, and as Judge Young points out, the relief that Bonnie Vance sought violates the precepts of Troxel v. Granville (2000),530 U.S. 57, 120 S.Ct. 2054, which generally prohibits equating the rights of a non-parent with the custodial rights of a parent to a result that the parent opposes, absent some finding of unfitness on the parent's part. We applied the rule in Esch v. Esch (Feb. 23, 2001), Montgomery App. No. 18494, to hold that such disputes can't be resolved on a best interest standard alone. That kind of claim is the claim which Bonnie Vance presented in this instance as a basis to intervene. In Troxel, intervention was permitted by statute. Here, no right of intervention exists. Indeed, intervention on this basis is prohibited, and allowing Bonnie Vance to intervene was the genesis of the problem that resulted.

{¶ 120} Perhaps these distinctions and concerns will sink into obscurity, as most separate opinions do. However, and for the guidance of the domestic relations court, which is frequently asked to expand relief beyond the limits of its jurisdiction, I hope that these points may be of use.