Kallet v. Wilgus

[Cite as Kallet v. Wilgus, 2021-Ohio-1637.]
COURT OF APPEALS
TUSCARAWAS COUNTY, OHIO
FIFTH APPELLATE DISTRICT
CHRISTINE AND JONATHAN KALLET : JUDGES:
: Hon. Craig R. Baldwin, P.J.
Relators : Hon. Patricia A. Delaney, J.
: Hon. Earle E. Wise, Jr., J.
-vs- :
:
HON. ADAM W. WILGUS : Case No. 2021 AP 01 0004
:
Respondent :
:
and :
:
REBECCA HERSHBERGER :
:
Intervenor/Respondent : OPINION
CHARACTER OF PROCEEDING: Writ of Prohibition
JUDGMENT: Granted
DATE OF JUDGMENT: May 11, 2021
APPEARANCES:
For Relators For Respondent
Hon. Adam W. Wilgus
MONICA D. DERAMUS ROBERT R. STEPHENSON II
McCleery Law Firm, LLC Assistant Prosecuting Attorney
203 Front Avenue, SE 125 East High Avenue
New Philadephia, OH 44663 New Philadelphia, OH 44663
For Intervenor/Respondent
Rebecca Hershberger
J. KEVIN LUNDHOLM
300 E. Third Street
Tuscarawas County, Case No. 2021 AP 01 0004 2
Dover, OH 44622
Wise, Earle, J.
{¶ 1} On January 15, 2021, Relators, Christine and Jonathan Kallet, filed a
Complaint for Writ of Prohibition against Respondents, The Honorable Linda A. Kate and
Magistrate Adam W. Wilgus of the Tuscarawas County Common Pleas Court, Juvenile
Division. We substitute Judge Kate’s successor to the bench, Judge Adam W. Wilgus, as
Respondent under Civ.R. 25(D)(1).1
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
{¶ 2} The Kallets are the biological parents of the minor child who is the subject
of this original action. Complaint, ¶ 4; Agreed Stmt. Facts, ¶ 1. Rebecca Hershberger is
the plaintiff/maternal grandmother in the underlying custody case pending in the
Tuscarawas County Court of Common Pleas, Juvenile Division, Case No. 2020 CC
00100. Complaint, ¶ 4. She is also an Intervenor/Respondent in the present matter.2
{¶ 3} The minor child was born on July 17, 2019. Complaint, ¶ 4; Agreed Stmt.
Facts, ¶ 3. He lived in Ann Arbor, Michigan from the time of his birth until June 11, 2020
when Ms. Kallet and the minor child traveled to Ohio and resided with the child’s maternal
grandmother, Ms. Hershberger. Id. Mr. Kallet was not permitted to stay in Ms.
Hershberger’s home and stayed in a nearby hotel in Ohio. Complaint, ¶ 5; Agreed Stmt.
Facts, ¶ 4.
{¶ 4} On June 16, 2020, Ms. Kallet left Ms. Hershberger’s residence following an
argument. Complaint, ¶ 6; Agreed Stmt. Facts, ¶ 5. The minor child remained at Ms.
1 Judge Wilgus’s term commenced on February 9, 2021 after the commencement of this
original action. See Agreed Stmt. Facts, ¶ 18.
2
The Court granted Ms. Hershberger’s Motion to Intervene on March 5, 2021.
Tuscarawas County, Case No. 2021 AP 01 0004 3
Hershberger’s residence. Id. The following day Ms. Kallet attempted to return to Ms.
Hershberger’s residence to remove the minor child and Ms. Hershberger advised her not
to return and that if she did, Ms. Hershberger would call the police. Complaint, ¶ 6.
{¶ 5} On June 17, 2020, Ms. Hershberger filed a Complaint for Custody in the
Tuscarawas County Court of Common Pleas, Juvenile Division. Complaint, ¶ 7; Agreed
Stmt. Facts, ¶ 6. Ms. Hershberger alleged the minor child was living with her and her
husband because Ms. Kallet “took her dog for a walk and didn’t come back last night at
5:30 p.m.” Id. Ms. Hershberger further averred it was in the minor child’s best interest that
she be granted custody because, “the parents * * * cannot be contacted.” Id.{¶ 6} Ms. Hershberger also filed with her Complaint a form titled "Declaration
Under Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) [.]" Complaint,
¶ 8; Agreed Stmt. Facts, ¶ 7. In her Declaration, Ms. Hershberger only disclosed the minor
child’s residence information in Ohio from June 12, 2020 through June 17, 2020. Id. Ms.
Hershberger did not disclose the minor child’s residence information in Michigan prior to
June 12, 2020. Id.{¶ 7} On June 22, 2020, Ms. Hershberger filed a Motion for Ex Parte Temporary
Custody and supported the motion with her own affidavit. Complaint, ¶ 9; Agreed Stmt.
Facts, ¶ 8. Ms. Hershberger indicated she was proceeding under Juv.R. 13. Id. Ms.
Hershberger requested custody of the minor child due to the Kallets’ “unknown
whereabouts.” Id. Ms. Hershberger also indicated that Ms. Kallet “accused [Ms.
Hershberger] of taking her son and her possessions * * *.” Agreed Stmt. Facts, ¶ 8.
{¶ 8} On June 24, 2020, Judge Wilgus, acting in his capacity as magistrate,
granted Ms. Hershberger’s Motion for Ex Parte Temporary Custody, awarding Ms.
Tuscarawas County, Case No. 2021 AP 01 0004 4
Hershberger temporary custody of the minor child. Complaint, ¶ 10; Agreed Stmt. Facts,
¶ 9. Magistrate Wilgus scheduled the matter for a hearing on July 9, 2020. Id. Following
the hearing, Magistrate Wilgus issued an order continuing temporary custody of the minor
child with Ms. Hershberger. Id. Magistrate Wilgus also appointed a Guardian ad Litem
and granted Ms. Kallet supervised visitation for one hour per week. Id.{¶ 9} On August 19, 2020, the Kallets filed a Motion to Dismiss/Stay for Lack of
Subject Matter and Personal Jurisdiction on a variety of grounds. Complaint, ¶ 11; Agreed
Stmt. Facts, ¶ 10. One ground alleged by the Kallets included the lack of subject matter
jurisdiction by the trial court under the UCCJEA and the trial court’s lack of personal
jurisdiction over them. Id. On September 10, 2020, Ms. Hershberger filed a Memorandum
in Opposition. Complaint, ¶ 12; Agreed Stmt. Facts, ¶ 11.
{¶ 10} On September 23, 2020, Magistrate Wilgus issued an order denying the
Kallets’ Motion to Dismiss. Complaint, ¶ 13; Agreed Stmt. Facts, ¶ 12. The order also
provided temporary custody would remain with Ms. Hershberger. Id. On October 1, 2020,
the Kallets filed a Motion to Set Aside the Magistrate’s Order. Complaint, ¶ 14; Agreed
Stmt. Facts, ¶ 13. On October 5, 2020, the Kallets filed a Complaint for Custody and a
Motion to Transfer Case, to Accept Jurisdiction Pursuant to the Uniform Child Custody
Jurisdiction and Enforcement Act in the 4th Circuit Court, Jackson County, Michigan.
Complaint, ¶ 15; Agreed Stmt. Facts, ¶ 14. The Kallets alleged in their Complaint that
Michigan is the minor child’s “home state” as defined under the UCCJEA. Complaint, ¶
15.
{¶ 11} On November 20, 2020, Judge Kate overruled the Kallets’ Motion to Set
Aside the Magistrate’s Order. Complaint, ¶ 16; Agreed Stmt. Facts, ¶ 15. The Judgment
Tuscarawas County, Case No. 2021 AP 01 0004 5
Entry indicated the Michigan and Ohio courts had been attempting to contact each other
to no avail, and that a separate entry would issue by the juvenile court upon determination
of the appropriate court’s jurisdiction. Id.{¶ 12} On December 17, 2020, the Kallets and Ms. Hershberger appeared in the
4th Circuit Court in Michigan for a hearing on the Kallets’ Motion to Transfer the case to
Michigan. Complaint, ¶ 17; Agreed Stmt. Facts, ¶ 16. Judge Diane Rappleye indicated
she attempted to contact the juvenile court in Ohio on four separate occasions and was
only able to speak with Magistrate Wilgus once. Complaint, ¶ 17. Judge Rappleye
expressed that her hands were tied until she was able to speak with Judge Kate. Id.{¶ 13} Thereafter, Ms. Hershberger made an oral Motion to Dismiss, which Judge
Rappleye denied. Complaint, ¶ 17; Agreed Stmt. Facts, ¶ 16. Judge Rappleye entered an
order indicating the case would remain pending until further order of the court and set a
status conference for March 11, 2021. Id. Presently, the minor child remains in the
custody of Ms. Hershberger in Ohio. Complaint, ¶ 18; Agreed Stmt. Facts, ¶ 17.
{¶ 14} In response to the writ, Respondents Judge Kate and Magistrate Wilgus
filed a Motion to Dismiss/Judgment on the Pleadings on February 3, 2021. We denied the
motion on February 25, 2021, granted an alternative writ, and ordered a briefing schedule
for the presentation of evidence and the filing of briefs. This matter is now ripe for
determination.
LEGAL ANALYSIS
{¶ 15} The Kallets’ Complaint seeks relief in prohibition. They ask the Court to
order Judge Wilgus to vacate all orders and immediately return the minor child to them in
Michigan. Complaint, p. 15.
Tuscarawas County, Case No. 2021 AP 01 0004 6
A. Required elements for a writ of prohibition
{¶ 16} To be entitled to a writ of prohibition, the Kallets must establish: (1)
Respondent is about to exercise judicial power, (2) the exercise of power is unauthorized
by law, and (3) denying the writ would result in injury for which no adequate remedy exists
in the ordinary course of law. (Citation omitted.) State ex rel. Duke Energy Ohio, Inc. v.
Hamilton Cty. Court of Common Pleas, 126 Ohio St.3d 41, 2010-Ohio-2450, 930 N.E.2d
299, ¶ 16. “If a lower court patently and unambiguously lacks jurisdiction to proceed in a
cause, prohibition * * * will issue to prevent any future unauthorized exercise of jurisdiction
and to correct the results of prior jurisdictionally unauthorized actions.” Id. at ¶ 17, quoting
State ex rel. Mayer v. Henson, 97 Ohio St.3d 276, 2002-Ohio-6323, 779 N.E.2d 223, ¶
12, citing State ex rel. Dannaher v. Crawford, 78 Ohio St.3d 391, 393, 678 N.E.2d 549(1997). “Where jurisdiction is patently and unambiguously lacking, [a relator] need not
establish the lack of an adequate remedy at law because the availability of alternate
remedies like appeal would be immaterial.” Id., quoting State ex rel. Sapp v. Franklin Cty.
Court of Appeals, 118 Ohio St.3d 368, 2008-Ohio-2637, 889 N.E.2d 500, ¶ 15, citing State
ex rel. Columbus S. Power v. Fais, 117 Ohio St.3d 340, 2008-Ohio-849, 884 N.E.2d 1, ¶
16.
B. Subject-matter jurisdiction of the juvenile court
{¶ 17} Here, we must determine whether Judge Wilgus patently and
unambiguously lacks subject-matter jurisdiction to proceed in the custody matter currently
pending in the juvenile court. The Kallets contend Judge Wilgus ignored the UCCJEA.
Complaint, ¶ 22.
Tuscarawas County, Case No. 2021 AP 01 0004 7
{¶ 18} Ms. Hershberger’s Complaint for Temporary Custody did not indicate a
statutory basis for her request. However, she averred in her Complaint the minor child’s
parents could not be contacted and she requested that she be named residential parent
and sole custodian of the minor child. Complaint, Exh. A-1. Further, attached to the
Complaint is a form identified as a “Declaration Under Uniform Child Custody Jurisdiction
and Enforcement Act (UCCJEA)[.]” Complaint, Exh. A-2. The section of the Declaration
regarding information about the minor child’s place of birth and history of residence is
completely blank. Ms. Hershberger also filed a Motion for Ex Parte Temporary Custody
under Juv.R.13. Complaint, Exh. A-3.
{¶ 19} Respondents Judge Kate and Magistrate Wilgus indicated in their Motion to
Dismiss/Judgment on the Pleadings and Fifth Affirmative Defense of the Answer the
juvenile court has jurisdiction under R.C. 2151.23, et seq. and Juv.R. 10. In addition, Ms.
Hershberger asserts in her merit brief the juvenile court has jurisdiction under R.C.
3127.18(A)(2) or R.C. 3127.15(A)(2). Intervenor Merit Brief, p. 1. We will review these
alleged grounds for jurisdiction.
1. R.C. 2151.23 and Juv.R. 10 are inapplicable because they only address the
juvenile court’s statutory jurisdiction.
{¶ 20} The juvenile court relies on R.C. 2151.23 and Juv.R. 10 as a basis to
exercise jurisdiction. R.C. 2151.23 addresses the jurisdiction of the juvenile court and
provides in section (A)(2) the court has jurisdiction “to determine the custody of any child
not a ward of another court of this state.” Likewise, Juv.R.10 contains language almost
identical to that found in R.C. 2151.23(A)(2). Section (A) of Juv.R. 10 provides, in pertinent
part: “Any person may file a complaint to have determined the custody of a child not a
ward of another court of this state * * *.”
Tuscarawas County, Case No. 2021 AP 01 0004 8
{¶ 21} We find the juvenile court’s reliance on R.C. 2151.23 and Juv.R. 10 is
misplaced because neither address whether Ohio or Michigan has subject-matter
jurisdiction to determine the minor child’s custody under the UCCJEA. See State ex rel.
M.L. v. O’Malley, 144 Ohio St.3d 553, 2015-Ohio-4855, 45 N.E.3d 971, ¶11
(“Respondents undoubtedly have statutory jurisdiction to determine the custody of
children in Ohio under R.C. 2151.23(A)(2). The dispute here is whether Ohio or New
Jersey has jurisdiction to determine M.A.H.’s custody under the UCCJEA.”)
{¶ 22} Further, “R.C. 2151.23(F)(1) specifically mandates that juvenile courts
exercise jurisdiction in custody matters in accordance with R.C. 3127.01 to 3127.53 of
the Uniform Child Custody Jurisdiction and Enforcement Act (“UCCJEA”).” In re B.P., 11th
Dist. Trumbull No. 2011-T-0032, 2011-Ohio-2334, ¶ 37. “The UCCJEA defines a trial
court’s subject-matter jurisdiction to issue a child custody determination.” In re R.M., 4th
Dist. Athens No. 12CA43, 12CA44, 2013-Ohio-3588, 997 N.E.2d 169, ¶ 79.
{¶ 23} R.C. Chapter 3127 [UCCJEA] sets forth standards and definitions for
determining when an Ohio court has jurisdiction, as opposed to another state, to issue a
child custody decision. In re B.P. at ¶ 37. “The primary purpose of the UCCJEA is ‘to
avoid jurisdictional competition and conflict with courts of other jurisdictions’ in custody
matters.” Id., citing Rosen v. Celebrezze, 117 Ohio St.3d 241, 2008-Ohio-853, 883 N.E.2d
420, ¶ 20, quoting In re Palmer, 12 Ohio St.3d 194, 196, 465 N.E.2d 1312 (1984).
{¶ 24} Therefore, R.C. 2151.23 and Juv.R. 10 grant a juvenile court exclusive,
original jurisdiction to make custody determinations for children who are not wards of a
court of this state. In re R.M. at ¶ 78. However, only the UCCJEA delineates a juvenile
court’s power to issue a child custody decision and thus, defines the subject-matter
Tuscarawas County, Case No. 2021 AP 01 0004 9
jurisdiction of the court. Id. at ¶ 79. In Rosen v. Celebrezze, the Ohio Supreme Court
explained even though a statute provides a juvenile court with “basic statutory jurisdiction
to determine custody matters * * * a more specific statute like R.C. 3127.15 [may] patently
and unambiguously divest [ ] the court of such jurisdiction.” Rosen at ¶ 46.
{¶ 25} Therefore, R.C. 2151.23 and Juv.R. 10 do not grant the juvenile court
subject-matter jurisdiction, which must be determined in accordance with the UCCJEA.
2. No grounds exist for the juvenile court to exercise temporary emergency
jurisdiction under R.C. 3127.18.
{¶ 25} Next, Ms. Hershberger maintains the juvenile court has jurisdiction under
R.C. 3127.18(A)(2). This statute concerns when a court may exercise temporary
emergency jurisdiction outside the four situations identified in R.C. 3127.15(A) [UCCJEA].
In re R.M. at ¶ 92. It provides juvenile courts with temporary and emergency jurisdiction
over a child who demands immediate protection due to abandonment, mistreatment, or
abuse. Id. at ¶ 93. In fact, “[t]he statute has no applicability unless the child is abandoned
or subjected to or threatened with mistreatment or abuse.” Id. Thus, “the purpose of the
statute is to provide a court that otherwise lacks jurisdiction under R.C. 3127.15
[UCCJEA] with jurisdiction if a temporary emergency situation presents itself.” Id. at ¶ 94.
{¶ 26} R.C. 3127.18 provides, in pertinent part:
(A) A court of this state has temporary emergency jurisdiction if
a child is present in this state and either of the following applies:
(1) The child has been abandoned.
(2) It is necessary in an emergency to protect the child because the
child * * * is subject to or threatened with mistreatment or abuse.
Tuscarawas County, Case No. 2021 AP 01 0004 10
{¶ 27} In her Complaint for Temporary Custody and Motion for Ex Parte Temporary
Custody, Ms. Hershberger impliedly relied on Section (A)(1) regarding abandonment. She
alleged Ms. Kallet left to walk her dog at 5:30 p.m. and never returned. Writ Complaint,
Exh. A-1.
{¶ 28} A child is considered abandoned for purposes of R.C. 3127.18(A)(1) when
“the parents of a child have failed to visit or maintain contact with the child for more than
ninety days, regardless of whether the parents resume contact with the child after that
ninety-day period.” See R.C. 3127.01(B)(1); In re A.G.M., 12th Dist. Warren No. CA2010-
02-016, 2010-Ohio-4565, ¶ 24.
{¶ 29} We find no basis for the juvenile court to exercise temporary emergency
jurisdiction on the theory of abandonment. Christine Kallet stated in her affidavit attached
to her Motion to Dismiss/Stay for Lack of Subject Matter Jurisdiction Under Civ.R.
12(B)(1), that she did not abandon her child and she had contact and communication with
the minor child prior to Ms. Hershberger filing for ex parte custody. See Writ Complaint,
affidavit attached to Exh. A-6, ¶ 4.
{¶ 30} Ms. Hershberger confirmed this fact when she averred in her affidavit that
she spoke to both Jonathan and Christine Kallet after Christine Kallet left her residence.
Writ Complaint, affidavit attached to Exh. A-3, ¶¶ 17, 19. This contact occurred around
the time Ms. Hershberger filed her Complaint and the Complaint was filed one day after
Christine Kallet left Ms. Hershberger’s residence and failed to return. Therefore, we find
the minor child was not abandoned for more than 90 days as required by R.C.
3127.18(A)(1) for the juvenile court to exercise temporary emergency jurisdiction.
Tuscarawas County, Case No. 2021 AP 01 0004 11
{¶ 31} For the first time in her Merit Brief, Ms. Hershberger argues Section (A)(2)
of R.C. 3127.18 applies because the minor child was subject to or threatened with
mistreatment or abuse. Ms. Hershberger submitted no evidence to support this claim.
Further, this ground was never alleged in her Complaint for Temporary Custody or Motion
for Ex Parte Temporary Custody.
{¶ 32} Even if we were to conclude the juvenile court properly exercised jurisdiction
in this matter under sections (A)(1) or (A)(2) of R.C. 3127.18, the juvenile court should
have followed the procedures set forth in R.C. 3127.18(C) and (D) after the Kallets filed
their Complaint for Custody and Motion to Transfer Case, to Accept Jurisdiction Pursuant
to the Uniform Child Custody and Enforcement Act in Michigan, the minor child’s home
state.3
{¶ 33} Sections (C) and (D) of R.C. 3127.18 provide safeguards for a child once a
child custody proceeding is commenced in a state having jurisdiction under the UCCJEA.
For example, section (C) of R.C. 3127.18 provides:
(C) If * * * a child custody proceeding has been commenced in a court of
a state having jurisdiction under sections 3127.15 to 3127.17 of the
Revised Code * * * any order issued by a court of this state under this
section must specify in the order a period that the court considers
adequate to allow the person seeking an order to obtain an order from
the state having jurisdiction under section 3127.15 to 3127.17 of the
Revised Code or a similar statute of another state. The order issued in
3 See Section (B)(3) herein for a discussion about the minor child’s home state.
Tuscarawas County, Case No. 2021 AP 01 0004 12
this state remains in effect until an order is obtained from the other state
within the period specified or until the period expires.
(Emphasis added.)
{¶ 34} Further, section (D) of R.C. 3127.18 requires the court exercising temporary
emergency custody and the home state to “immediately communicate” once a child
custody proceeding is commenced in the home state. This statute provides:
(D) * * * A court of this state that is exercising jurisdiction pursuant to
sections 3127.15 to 3127.17 of the Revised Code, upon being informed
that a child custody proceeding has been commenced in * * * another
state under a statute similar to this section, shall immediately
communicate with the court of that state to resolve the emergency,
protect the safety of the parties and the child, and determine a period for
the duration of the temporary order.
(Emphasis added.)
{¶ 35} Here, the Kallets commenced an action under the UCCJEA, on October 5,
2020, in the 4th Circuit Court, Jackson County, Michigan, the minor child’s home state.
Therefore, even if the juvenile court believed it was properly exercising jurisdiction in this
matter under R.C. 3127.18(A)(1) or (A)(2), which we do not find, once the Kallets
commenced their action in Michigan, the juvenile court should have followed the
mandates of R.C. 3128.18(C) and (D). Although the record indicates some attempts were
made by the Ohio and Michigan courts to communicate, communication broke down, and
the requirements of the above statutes were not followed.
Tuscarawas County, Case No. 2021 AP 01 0004 13
{¶ 36} For these reasons, we find the juvenile court could not exercise jurisdiction
under R.C. 3127.18(A)(1) or (A)(2), the temporary emergency exception to the UCCJEA.
Even if we found a proper initial exercise of jurisdiction under this statute, it terminated
once the Kallets commenced the Michigan action the juvenile court should have followed
the procedures outlined in R.C. 3127.18(C) and (D).
3. The juvenile court does not have jurisdiction under R.C. 3127.15(A)(2) because
the minor child's home state is Michigan.
{¶ 37} Finally, Ms. Hershberger asserts the juvenile court properly exercised
jurisdiction under R.C. 3127.15(A)(2) because the minor child does not have a “home
state” as defined in R.C. 3127.01(B)(7). Under the UCCJEA, the “home state” has
jurisdictional priority and exclusive continuing jurisdiction. (Citations omitted.) Rosen, 117
Ohio St.3d 241, 2008-Ohio-853, 883 N.E.2d 420, at ¶ 21. There can be only one home
state, which precludes competition for jurisdiction between the states. (Citations omitted.)
In re B.P. at ¶ 37.
{¶ 38} R.C. 3127.15 addresses jurisdiction to make the initial determination in a
child custody proceeding. This statute provides, in pertinent part:
(A) Except as otherwise provided in section 3127.18 of the Revised Code
[emergency jurisdiction], a court of this state has jurisdiction to make
an initial determination in a child custody proceeding only if one of the
following applies:
(1) This state is the home state of the child on the date of the
commencement of the proceeding, or was the home state of the child
within six months before the commencement of the proceeding and
Tuscarawas County, Case No. 2021 AP 01 0004 14
the child is absent from this state but a parent or person acting as a
parent continues to live in this state.
(2) A court of another state does not have jurisdiction under division
(A)(1) of this section or a court of the home state of the child has
declined to exercise jurisdiction on the basis that this state is the more
appropriate forum under section 3127.21 or 3127.22 of the Revised
Code, or a similar statute of the other state, and both of the following
are the case:
(a) The child and the child’s parents, or the child and at least one
parent or a person acting as a parent, have a significant
connection with this state other than mere physical presence.
(b) Substantial evidence is available in this state concerning the
child’s care, protection, training, and personal relationships.
(3) All courts having jurisdiction under division (A)(1) or (2) of this section
have declined to exercise jurisdiction on the ground that a court of
this state is the more appropriate forum to determine the custody of
the child under section 3127.21 or 3127.22 of the Revised Code or a
similar statute enacted by another state.
(4) No court of any other state would have jurisdiction under the criteria
specified in division (A)(1), (2), or (3) of this section.
{¶ 39} The above statute “provides four types of initial child-custody jurisdiction:
home-state jurisdiction, significant-connection jurisdiction, jurisdiction based on
declination of jurisdiction, and default jurisdiction.” Rosen at ¶ 31. Importantly, Section (B)
Tuscarawas County, Case No. 2021 AP 01 0004 15
of R.C. 3127.15 states that: “Division (A) of this section is the exclusive jurisdictional basis
for making a child custody determination by a court of this state.” (Emphasis added.)
{¶ 40} With regard to the term “home state” used in R.C. 3127.15, R.C.
3127.01(B)(7) defines the term as “the state in which a child lived with a parent * * * for at
least six consecutive months immediately preceding the commencement of a child
custody proceeding * * *. A period of temporary absence * * * is counted as part of the
six-month * * * period.” Thus, R.C. 3127.15(A)(1) “manifestly confer[s] home-state
jurisdiction on the state that either (1) ‘is the home state of the child on the date of the
commencement of the proceeding,’ or (2) ‘was the home state of the child within six
months before the commencement of the proceeding, and the child is absent from this
state but a parent * * * continues to live in this state.’ ” Id. at ¶ 34.
{¶ 41} Judge Wilgus and Ms. Hershberger allege neither Ohio nor Michigan is a
statutory home state under the provisions of R.C. Chapter 3127. See Answer, Second
Affirmative Defense; Motion to Dismiss/Judgment on the Pleadings, p. 2; Intervenor’s
Merit Brief, p. 5. We disagree. In the Rosen decision, the Ohio Supreme Court reviewed
case law from around the country, specifically focusing on a Montana case that defined
home state under the Montana version of the UCCJEA. In Stephens v. Fourth Judicial
Dist. Court, 331 Mont. 40, 128 P.3d 1026 (2006), the parents and their minor children
lived in Arkansas from 2002 until May 2005, when they moved to Montana. Id. at ¶ 36.
Less than six months later, the father filed a dissolution action in Montana. Id. The
Montana Supreme Court granted a writ of prohibition to the mother to prevent the
Montana dissolution action from proceeding because Arkansas was the home state of the
minor children within six months before the filing of the case. Id. at ¶ 36.
Tuscarawas County, Case No. 2021 AP 01 0004 16
The Montana Supreme Court explained the meaning of “home state”:
[W]e hold that “home state” for purposes of determining initial jurisdiction
under [the Montana UCCJEA], is not limited to the time period of “6
consecutive months immediately before the commencement of a child
custody proceeding.” The applicable time period to determine “home
state” in such circumstances should be “within 6 months before the
commencement of [the ‘child custody] proceeding.”
Id. at ¶ 36.
{¶ 42} The Ohio Supreme Court adopted this definition of “home state” in
the Rosen decision and based on the facts presented in Rosen concluded:
West Virginia [rather than Ohio where the minor children had lived for
approximately four months before mother commenced legal proceedings
for divorce and custody] was the home state of David and Kathleen’s
minor children because they had lived there [West Virginia] for six
consecutive months as of a date within the six-month period before David
filed his West Virginia divorce action. Therefore, West Virginia was the
home state of the minor children “within six months before the
commencement” of David’s West Virginia divorce case, i.e., they had
lived in West Virginia for six consecutive months ending within the six
months before the West Virginia case commenced.
Id. at ¶ 42.
Tuscarawas County, Case No. 2021 AP 01 0004 17
{¶ 43} In the present matter, the minor child was in the state of Ohio for only six
days before Ms. Hershberger filed her Complaint for Temporary Custody. Except for
those six days, the minor child resided in Michigan his entire life. Under the Rosen court’s
definition of “home state,” Michigan is the minor child’s home state for purposes of the
UCCJEA. The minor child resided in Michigan for six consecutive months ending within
the six months before Ms. Hershberger filed her Motion for Temporary Custody in Ohio.
{¶ 44} Further, Ms. Hershberger's reliance on R.C. 3127.15(A)(2) is misplaced.
This section applies only if “[a] court of another state does not have jurisdiction under
division (A)(1) of this section[.]” As we noted above, based on the definition of “home
state” Michigan has jurisdiction under R.C. 3127.15(A)(1) as the minor child’s home state.
Section (A)(2) also applies if “a court of the home state of the child has declined to
exercise jurisdiction[.]” A Complaint for Custody and a Motion to Transfer Case, to Accept
Jurisdiction Pursuant to the Uniform Child Custody Jurisdiction and Enforcement Act is
pending in the 4th Circuit, Jackson County, Michigan. The judge overseeing the case
entered an order indicating the case would remain pending until further order of the court.
There is no evidence the Michigan judge has declined to exercise jurisdiction in this
matter. Therefore, for these reasons we do not find R.C. 3127.15(A)(2) grants the juvenile
court in Ohio jurisdiction over this custody matter.
{¶ 45} Finally, we find the facts here similar to those addressed by the Ohio
Supreme Court in State ex rel. V.K.B. v. Smith, 138 Ohio St.3d 84, 2013-Ohio-5477, 3
N.E.3d 1184. In that case, mother had sole custody of the minor child per a judgment
issued by an Ohio juvenile court in 2009. Id. at ¶ 2. Since then, mother moved to Arizona
with her daughter and lived there for two years, making Arizona her permanent home. Id.
Tuscarawas County, Case No. 2021 AP 01 0004 18
On a visit to Ohio in 2012, she was called back to Arizona, and she left the minor child
temporarily with her mother. Id. While mother was in Arizona, the minor child’s paternal
grandfather filed an ex parte motion in the Sandusky Juvenile Court for emergency
temporary custody under R.C. 3127.18. Id. After the ex parte order was granted, mother
filed a “notice of filing of foreign judgment” in Arizona, giving that court notice of the 2009
Ohio custody order. Id. at ¶ 6.
{¶ 46} Thereafter, Mother filed a complaint for a writ of prohibition alleging the Ohio
court lacked jurisdiction now that she and the minor child were residents of Arizona. Id.
The court of appeals dismissed the writ finding the juvenile court had jurisdiction under
the UCCJEA and mother had an adequate remedy at law by way of an appeal. Id. at ¶ 3.
{¶ 47} On appeal the Ohio Supreme Court explained the question to be
determined was whether the juvenile court’s exercise of jurisdiction was authorized by
law and whether denying the writ would result in an injury for which no other adequate
remedy exists. Id. at ¶ 12.
{¶ 48} The Ohio Supreme Court granted the writ and determined the juvenile court
had not complied with the mandates of R.C. 3127.18 regarding the grant of temporary
custody to a grandparent. Id. at ¶ 27. Importantly, the Court noted the lack of jurisdiction
need not be “ ‘patent and unambiguous’ ” as is normally required for a writ of prohibition
to issue. Id. at ¶ 18. The Court explained an appeal would not be adequate because the
contest is between a parent and a nonparent. Id. at ¶ 21. “[N]atural parents have a
fundamental constitutional interest in the care, custody, and management of their children
that grandparents do not.” Id., citing Harrold v. Collier, 107 Ohio St.3d 44, 2005-Ohio-
5334, 836 N.E.2d 1165, ¶ 40.
Tuscarawas County, Case No. 2021 AP 01 0004 19
{¶ 49} Further, the Court explained:
An “adequate remedy” in child-custody cases is unlike that in other types
of cases, because for a child and her parent, time is the most precious of
commodities. If a child is removed from her parent for a year, as has
already occurred in this case, that year can never be replaced. If a writ is
not issued and the case returned to the juvenile court in these
circumstances, it may languish for one or two more years before the court
issues an appealable order. The appeal can take an additional year or
two by the time briefs are prepared and oral arguments delivered and the
judges arrive at a conclusion.
Id. at ¶ 23.
{¶ 50} Finally, the Court also noted the lack of communication between the Ohio
and Arizona courts, which also appears to be an issue in the present matter. Id. at ¶ 22.
Under the V.K.B. decision, we find an appeal from the juvenile court’s decision would not
be an adequate remedy. The minor child has already been in the temporary custody of
Mrs. Hershberger for almost one year. An appeal would only further delay reunification.
CONCLUSION
{¶ 51} For the reasons set forth above, we conclude the juvenile court lacked
subject matter jurisdiction to rule on Ms. Hershberger’s Complaint for Custody and Motion
for Ex Parte Temporary Custody because Michigan is the minor child’s home state under
the UCCJEA. The Court hereby grants the Kallets' Complaint for Writ of Prohibition to
prevent Judge Wilgus from proceeding with the issue of child custody in the underlying
case.
Tuscarawas County, Case No. 2021 AP 01 0004 20
{¶ 52} Under R.C. 3127.18(C), Judge Wilgus shall issue an order specifying in the
order a period the court considers adequate to allow Ms. Hershberger and the Kallets to
obtain an order from Michigan. Judge Wilgus’s order granting temporary custody of the
minor child to Ms. Hershberger shall remain in effect until an order is obtained from
Michigan within the time period specified or until the period ends. Further, under R.C.
3127.18(D), Judge Wilgus shall immediately communicate with the 4th Circuit Court,
Jackson County, Michigan, to resolve the emergency, protect the safety of the parties
and minor child, and determine a period for the duration of the temporary order.
{¶ 53} The clerk of courts is hereby directed to serve upon all parties not in default
notice of this judgment and its date of entry upon the journal. See Civ.R. 58(B).
{¶ 54} WRIT GRANTED.
{¶ 55} COSTS TO RESPONDENT AND INTERVENOR/RESPONDENT.
{¶ 56} IT IS SO ORDERED.
By Earle E. Wise, Jr., J.
Baldwin, P.J. and
Delaney, J. concur.
EEW/ac