Thompson v. Thompson

[Cite as Thompson v. Thompson, 188 Ohio App.3d 199, 2010-Ohio-2534.]
STATE OF OHIO, CARROLL COUNTY
IN THE COURT OF APPEALS
SEVENTH DISTRICT
THOMPSON, )
)
APPELLANT, )
)
v. ) CASE NO. 09-CA-861
)
THOMPSON, ) OPINION
)
APPELLEE. )
CHARACTER OF PROCEEDINGS: Civil Appeal from Court of Common
Pleas, Domestic Relations Division of
Carroll County, Ohio
Case No. 08DRA25692
JUDGMENT: Affirmed
APPEARANCES:
Lorrie E. Fuchs, for appellant.
Diane J. Thompson, pro se.
JUDGES:
Hon. Gene Donofrio
Hon. Cheryl L. Waite
Hon. Mary DeGenaro
Dated: June 4, 2010
DONOFRIO, J.
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{¶1} Plaintiff-appellant, David Thompson, appeals from a Carroll County
Common Pleas Court judgment granting a divorce between him and defendant-
appellee, Diane Thompson, and finding Florida to be the home state of the parties’
children.
{¶2} The parties were married on July 5, 1985. Seven children were born as
issue of the marriage: Deborah (d.o.b. 11/17/92); Jeremiah (d.o.b. 3/13/96); Gabrielle
(d.o.b. 5/9/97); Sarah (d.o.b. 6/4/98); Noah (d.o.b. 11/11/99); Lucas (d.o.b. 1/9/02); and
Victoria (d.o.b. 10/13/03).
{¶3} Sometime in 2005, appellee left Ohio with the children. It is unclear
exactly where appellee went initially. But it appears that she and the children spent
some time in Texas before moving to Florida. By November 2007, appellee and the
children were living in Florida, where they have remained.
{¶4} Appellant filed a complaint for divorce on November 4, 2008. In the
complaint, he sought custody of the parties’ children. At the time, he was unaware of
where appellee and the children were living.
{¶5} On December 22, 2008, a letter was received by the Carroll County Clerk
of Courts from Legal Services of North Florida stating that it was representing appellee
in a dissolution action filed in Florida.
{¶6} On June 24, 2009, a copy of a document filed in a Florida court was file-
stamped and made a part of the record in this case. The document was titled Verified
Ex-Parte Motion for Temporary Injunction to Prevent Removal of Minor Child(ren) and
Request for Confidential Filing of Address. In this document, appellee requested that
the Florida court issue a temporary injunction to prevent the removal of the children
from its jurisdiction and allow her to file her address confidentially. In support of her
requests, appellee asserted that she feared for her safety and the children’s safety.
She detailed an extensive history of domestic violence by appellant. This is the only
document in the record filed by appellee.
{¶7} The trial court proceeded with the divorce hearing. Appellee did not
appear, nor did an attorney appear on her behalf. The trial court heard testimony from
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appellant, his mother, and his sisters.
{¶8} The court made the following findings in its judgment entry granting
appellant a divorce from appellee. Appellee removed the children from Ohio sometime
during 2005, and they have not since returned. Since November 2007, appellee and
the children have resided in Okaloosa County, Florida. Pursuant to the Uniform Child
Custody Jurisdiction and Enforcement Act, the children’s home state is Florida.
Therefore, the court cannot exercise personal jurisdiction over the children nor issue
any order with respect to the allocation of parental rights and responsibilities.
{¶9} Appellant filed a timely notice of appeal on July 24, 2009.
{¶10} Appellee has failed to file a brief in this matter. Therefore, we may
consider appellant's statement of the facts and issues as correct and reverse the
judgment if appellant's brief reasonably appears to sustain that action. App.R. 18(C).
{¶11} Appellant raises a single assignment of error, which states:
{¶12} “The trial court abused its discretion and committed an error of law when it
failed to find that the home state for the children was the state of Ohio and when it failed
to award custody of the children to the plaintiff.”
{¶13} Appellant argues that the trial court should have found Ohio to be the
children’s home state and awarded custody to him. He points out that the evidence
demonstrated that appellee removed the children from Ohio in 2005 and failed to
disclose their whereabouts to him. Appellant alleges that appellee did not enroll the
children in school or obtain a job, so as to avoid being located by him.
{¶14} The Uniform Child Custody Jurisdiction and Enforcement Act (“UCCJEA”)
was enacted in 1997 to address interstate recognition and enforcement of child-custody
orders. R.C. 3127.01(A).
{¶15} A trial court’s decision to exercise jurisdiction pursuant to the UCCJEA is a
matter within its discretion. Rodriguez v. Frietze, 4th Dist. No. 04CA14, 2004-Ohio-
7121, at ¶22. Thus, we will not reverse the trial court’s decision on this matter absent
an abuse of discretion. An abuse of discretion connotes more than an error of law; it
implies that the trial court’s judgment is unreasonable, arbitrary, or unconscionable.
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Blakemore v. Blakemore (1983), 5 Ohio St.3d 217, 219.
{¶16} The record does not identify any prior custody orders in this case. As set
out in R.C. 2111.08, because appellant and appellee were married, they had equal
rights to the custody of their children:
{¶17} “The wife and husband are the joint natural guardians of their minor
children and are equally charged with their care, nurture, welfare, and education and the
care and management of their estates. The wife and husband have equal powers,
rights, and duties and neither parent has any right paramount to the right of the other
concerning the parental rights and responsibilities for the care of the minor * * *.”
{¶18} Because the parties had equal rights to the care and custody of the
children and because there was no previous order concerning the children’s custody,
this case involved an initial custody determination.
{¶19} R.C. 3127.15 deals with a court’s jurisdiction to make initial custody
determinations under the UCCJEA:
{¶20} “(A) Except as otherwise provided in section 3127.18 of the Revised
Code, a court of this state has jurisdiction to make an initial determination in a child
custody proceeding only if one of the following applies:
{¶21} “(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 the child is absent from this state but
a parent or person acting as a parent continues to live in this state.
{¶22} “(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:
{¶23} “(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.
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{¶24} “(b) Substantial evidence is available in this state concerning the child's
care, protection, training, and personal relationships.
{¶25} “(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 * * *.
{¶26} “(4) No court of any other state would have jurisdiction under the criteria
specified in division (A)(1), (2), or (3) of this section.
{¶27} “(B) Division (A) of this section is the exclusive jurisdictional basis for
making a child custody determination by a court of this state.
{¶28} “(C) Physical presence of, or personal jurisdiction over, a party or a child is
not necessary or sufficient to make a child custody determination.”
{¶29} Pursuant to R.C. 3127.01(B)(7), a child’s “home state” is “the state in
which a child lived with a parent or a person acting as a parent for at least six
consecutive months immediately preceding the commencement of a child custody
proceeding and, if a child is less than six months old, the state in which the child lived
from birth with any of them.” (Emphasis added.)
{¶30} Based on the above, the trial court did not abuse its discretion in
determining that Florida, and not Ohio, is the children’s home state. Therefore, once it
made that decision, it did not have jurisdiction to make an award as to their custody.
None of the conditions specified in R.C. 3127.15(A) for making an initial custody
determination exist here. The children have not resided in Ohio since sometime in
2005. Since November 2007, they have resided with appellee in Florida. Appellant did
not commence the divorce proceedings until November 4, 2008. By this time, the
children had not resided in Ohio for three years and had resided in Florida for at least
the previous 12 months. Thus, Ohio was not the children’s home state on the day
appellant commenced the divorce action, nor was Ohio their home state within six
months of the commencement of the divorce action.
{¶31} Finding no Ohio case on point, appellant relies on two out-of-state cases,
Sams v. Boston (W.Va.1989), 384 S.E.2d 151, and Gruber v. Gruber (Md.2001), 784
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A.2d 583, in support of his argument.
{¶32} In Boston, the Supreme Court of Appeals for West Virginia held that when
children have been abducted to and concealed in another state by one of the parents,
the children’s original state remains their “home state” for a reasonable period of time
under the circumstances. Id., 384 S.E.2d at 162. And in Gruber, the Court of Special
Appeals of Maryland held that “deception directly resulting in the establishment of home
state jurisdiction is reprehensible conduct that may be ‘so objectionable that a court in
the exercise of its inherent equity powers cannot in good conscience permit that party
access to its jurisdiction.’” Id., 784 A.2d at 599.
{¶33} One significant difference exists between the cited cases and the present
case. In Boston and Gruber, courts in both states entered orders relating to custody,
neither one deferring to the other or finding that it did not have jurisdiction. In the case
sub judice, however, the trial court found that it did not have jurisdiction to enter a
custody order. And under our standard of review, this was a matter within the trial
court’s discretion.
{¶34} One case from this district also lends some guidance here. In In re
Sklenchar, 7th Dist. No. 04-MA-55, 2004-Ohio-4405, the father moved to Alabama with
the parties’ children. Eight months later, the mother, who was still in Ohio, filed a
motion for custody. The father later filed a divorce complaint in Alabama. The Alabama
court granted the father a divorce and granted him custody of the children.
Subsequently, the trial court in Ohio determined that it did not have jurisdiction over the
children and that the matter had already been adjudicated in Alabama. The mother
appealed, arguing in part that Ohio, not Alabama, was the home state.
{¶35} In affirming the trial court’s decision, this court pointed out that the parties
had equal rights to their children and the father’s relocation to Alabama was not contrary
to any Ohio order. In fact, there was never an Ohio custody order in place. Id. at ¶49,
52. We also noted that the father had had physical custody of the children for several
years and the mother did not request custody or visitation until eight months after the
father and children moved to Alabama. Id. at ¶64.
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{¶36} In Sklenchar, there was no custody order in place, and appellee’s move to
Florida was not against any Ohio court order. Additionally, as was the case in
Sklenchar, appellee here has had physical custody of the children since she left
appellant in 2005. And it was not until November 2008 that appellant filed the divorce
action seeking custody of the children.
{¶37} Appellant testified at the divorce hearing that he was unaware of the fact
that appellee was going to leave Ohio with the children. And he testified that he tried to
locate them but was unsuccessful. However, he also admitted that once he received an
address for them in Florida, he never attempted to go there to visit his children or track
them down. And he offers no explanation why he waited three years to initiate any
attempt to seek custody or visitation with the children.
{¶38} Given the above considerations, we cannot conclude that the trial court
acted unreasonably, arbitrarily, or unconscionably in determining that it did not have
jurisdiction to issue a custody award in this case. Accordingly, appellant’s sole
assignment of error is without merit.
{¶39} For the reasons stated above, the trial court’s judgment is hereby affirmed.
Judgment affirmed.
WAITE and DEGENARO, JJ., concur.