State ex rel. Messer v. Colaluca

[Cite as State ex rel. Messer v. Colaluca, 2013-Ohio-3920.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 99792
STATE OF OHIO, EX REL.,
BILL JOSEPH MESSER
RELATOR
vs.
JUDGE JANET RATH COLALUCA, ET AL.
RESPONDENTS
JUDGMENT:
COMPLAINT DISMISSED
Writ of Mandamus and Prohibition
Motion No. 465879
Order No. 467432
RELEASE DATE: September 10, 2013
ATTORNEY FOR RELATOR
Lori A. Zocolo
Abel & Zocolo Co., L.P.A.
815 Superior Avenue
Suite 1915
Cleveland, Ohio 44114
ATTORNEYS FOR RESPONDENTS
William D. Mason
Cuyahoga County Prosecutor
Charles E. Hannan, Jr.
David Lambert
Assistant County Prosecutors
8th Floor Justice Center
1200 Ontario Street
Cleveland, Ohio 44113
MARY EILEEN KILBANE, J.:
{¶1} Bill Joseph Messer filed a complaint for a writ of prohibition and a writ of
mandamus. Messer seeks an order from this court that prevents Judge Janet Rath
Colaluca and Magistrate Sharon A. Echols (“herein after collectively referred to as the trial
court”) from exercising jurisdiction in Messer v. Messer (n.k.a. Gretchen Agnes Rensi),
Cuyahoga Domestic Relations No. DR-332953. Messer argues that the trial court patently
and unambiguously has lost jurisdiction to decide parental custody issues. Messer also
seeks a writ of mandamus to compel the trial court to vacate an order journalized on
March 25, 2013, that sua sponte vacated a prior order of dismissal. The trial court filed a
motion to dismiss, which we grant for the following reasons.
Facts
{¶2} On September 29, 2011, a final decree of divorce was granted to Messer and
Rensi. On April 16, 2012, Rensi filed a motion to reappoint a guardian ad litem for the
sole child and a motion to modify the parties’ shared parenting plan to sole legal custody.
On December 14, 2012, Messer filed a motion to dismiss Rensi’s motions. On March 13,
2013, the trial court granted Messer’s motion to dismiss and held that:
The matter came before the court upon Plaintiff Bill Messer’s Motion to
Dismiss #345481, filed January 31, 2013. Plaintiff asks that Defendant
Gretchen Rensi’s parenting motions be dismissed because this court has no
jurisdiction pursuant to R.C. 3127.21.
For good cause shown, the court finds that Plaintiff’s motion is hereby
GRANTED.
Costs adjudged against the parties equally.
{¶3} On March 25, 2013, the trial court sua sponte vacated its order of March 13,
2013, and held that:
Upon the Court’s own motion, the Judgment Entry, filed March 13, 2013, is
hereby vacated and set aside.
It is therefore ordered that all pending motions are hereby reinstated. Costs
adjudged against the parties equally.
{¶4} On April 17, 2013, Messer filed his complaint for a writ of prohibition.
Analysis
{¶5} Messer, through his complaint for a writ of prohibition, argues that the trial
court erred by vacating the dismissal of the pending motions to reappoint a guardian ad
litem and modification of the shared parenting plan to sole legal custody. Specifically,
Messer argues that the trial court is without jurisdiction to entertain the motions that were
reinstated and also lacks any jurisdiction to conduct any further proceedings in
DR-332953.
{¶6} In order for this court to issue a writ of prohibition, Messer is required to
demonstrate each prong of the following three-part test: (1) the trial court is about to
exercise judicial power; (2) the exercise of judicial power by the trial court is not
authorized by law; and (3) there exists no other adequate remedy in the ordinary course of
the law. State ex rel. Largent v. Fisher, 43 Ohio St.3d 160, 540 N.E.2d 239 (1989). In
addition, prohibition does not lie, if Messer has or had an adequate remedy in the ordinary
course of the law, even if the remedy was not employed. State ex rel. Lesher v. Kainrad,
65 Ohio St.2d 68, 417 N.E.2d 1382 (1981); State ex rel. Sibarco Corp. v. Berea, 7 Ohio
St.2d 85, 218 N.E.2d 428 (1966).
{¶7} Prohibition does not lie unless it clearly appears that the court possesses no
jurisdiction of the cause that it is attempting to adjudicate or the court is about to exceed
its jurisdiction. State ex rel. Ellis v. McCabe, 138 Ohio St. 417, 35 N.E.2d 571 (1941).
Also, prohibition will not issue to prevent an erroneous judgment, or serve the purpose of
an appeal, or to correct errors committed by the lower court in deciding questions within
its jurisdiction. State ex rel. Sparto v. Juvenile Court of Darke Cty., 153 Ohio St. 64, 90
N.E.2d 598 (1950). Furthermore, prohibition should be used with great caution and not
issue in doubtful cases. State ex rel. Merion v. Tuscarawas Cty. Court of Common Pleas,
137 Ohio St. 273, 28 N.E.2d 641 (1940).
{¶8} However, when a court is patently and unambiguously without jurisdiction to
act, the existence of an adequate remedy at law will not prevent the issuance of a writ of
prohibition. State ex rel. Tilford v. Crush, 39 Ohio St.3d 174, 529 N.E.2d 1245 (1988);
State ex rel. Csank v. Jaffe, 107 Ohio App.3d 387, 668 N.E.2d 996 (1995). Nevertheless,
absent a patent and unambiguous lack of jurisdiction a court possessing general
jurisdiction of the subject matter of an action has the authority to determine its own
jurisdiction. A party challenging the court’s jurisdiction possesses an adequate remedy at
law through an appeal from the court’s judgment that it possesses jurisdiction. State ex
rel. Rootstown Local School Dist. Bd. of Edn. v. Portage Cty. Court of Common Pleas, 78
Ohio St.3d 489, 678 N.E.2d 1365 (1997); State ex rel. Bradford v. Trumbull Cty. Court, 64
Ohio St.3d 502, 1992-Ohio-132, 597 N.E.2d 116. Finally, this court possesses discretion
in issuing a writ of prohibition. State ex rel. Gilligan v. Hoddinott, 36 Ohio St.2d 127,
304 N.E.2d 382 (1973).
{¶9} In the case sub judice, we find that the trial court possesses general subject
matter jurisdiction to determine all domestic relations matters. R.C. 3105.011 provides in
pertinent part that “[t]he court of common pleas including divisions of courts of domestic
relations, has full equitable powers and jurisdiction appropriate to the determination of all
domestic relations matters.” In addition, pursuant to R.C. 3105.21 and 3109.04, the trial
court possesses the basic statutory jurisdiction to issue orders with regard to the allocation
of parental rights and responsibilities for the care of the minor children of a marriage.
Absent a patent and unambiguous lack of jurisdiction, a court having general subject
matter jurisdiction can determine its own jurisdiction, which prevents this court from
issuing a writ of prohibition. State ex rel. White v. Junkin, 80 Ohio St.3d 335,
1997-Ohio-340, 686 N.E.2d 267; State ex rel. Enyart v. O’Neil, 71 Ohio St.3d 655,
1995-Ohio-145, 646 N.E.2d 1110.
{¶10} Messer argues that the judgment of March 13, 2013, which dismissed the
wife’s parenting motions, terminated all jurisdiction on the part of the trial court. R.C.
3127.21, however, does not provide for a complete termination of jurisdiction on the part
of the trial court. To the contrary, R.C. 3127.21 provides that the trial court may decline
to exercise jurisdiction, based upon forum non conveniens (a more convenient forum),
following consideration of eight specific factors, which include: (1) whether domestic
violence has occurred and is likely to continue in the future and which state could best
protect the parties and the child; (2) the length of time the child has resided outside the
state; (3) the distance between the court in Ohio and the court in the state that would
assume jurisdiction; (4) the relative financial circumstance of the parties; (5) any
agreement of the parties as to which state should assume jurisdiction; (6) the nature and
location of the evidence required to resolve the pending litigation, including the testimony
of the child; (7) the ability of the court of each state to decide the issue expeditiously and
the procedures necessary to present the evidence; and (8) the familiarity of the court of
each state with the facts and issues in the pending litigation. R.C. 3127.21 also provides
that if the Ohio court determines that it is an inconvenient forum it shall stay the
proceedings upon condition that a child custody proceeding be promptly commenced in
another designated state. In addition, an Ohio court may decline to exercise jurisdiction
over child custody issues while still retaining jurisdiction over the divorce and other
proceedings.
{¶11} The trial court’s order of March 13, 2013, did not indicate any consideration
of the eight factors required prior to declining to exercise jurisdiction. In re M.I.S. A
Minor Child, 8th Dist. Cuyahoga No. 98138, 2012-Ohio-5178; Simon v. Simon, 9th Dist.
Summit No. 25933, 2012-Ohio-3443. In addition, the order of March 13, 2013, did not
stay the proceedings nor indicate that a child custody proceeding had been commenced in
another state. Thus, Messer has failed to demonstrate that the trial court terminated its
jurisdiction per R.C. 3127.21, and prohibition is not appropriate under the facts as
presented. Compare Javidan-Nejad v. Navadeh, 8th Dist. Cuyahoga No. 95406,
2011-Ohio-2283; Buxton v. Mancuso, 5th Dist. Knox No. 09-CA-22, 2009-Ohio-6839.
{¶12} In addition, Messer possesses an adequate legal remedy in the ordinary
course of the law. The record of the underlying divorce action is not completely before
this court.1 However, we take judicial notice of the docket in DR-332953, because it is
capable of accurate and ready determination by resort to a source whose accuracy cannot
be reasonably questioned. See Evid.R. 201(B). A review of the docket clearly provides
that numerous post-judgment motions, that address the issues of child custody and
visitation remain pending before the trial court: motion for guardian ad litem fees, motion
to show cause for noncompliance with judgment entry, motion for temporary child
support, motion to transfer, motion to establish child support, motion to compel discovery,
two motions to dismiss, and motion to modify visitation. The issues of child custody and
visitation remain pending before the trial court, and Messer possesses an adequate remedy
at law, through an appeal, should he disagree with any rulings rendered by the trial court.
State ex rel. Hughley v. McMonagle, 121 Ohio St.3d 536, 2009-Ohio-1703, 905 N.E.2d
1220; State ex rel. Jaffal v. Calabrese, 105 Ohio St.3d 440, 2005-Ohio-2591, 828 N.E.2d
107.
{¶13} Finally, we find that Messer has failed to comply with Loc.App.R.
45(B)(1)(a), which requires that his complaint for a writ of prohibition and mandamus be
1 Messerhas only attached a partial copy of the docket maintained in
DR-332953, to his complaint for a writ of mandamus. See Exhibit C.
supported by an affidavit specifying the details of the claim. An affidavit that simply
avers that the affiant “has read the allegations in his Original Complaint to the Eighth
District Court of Appeals, and that the same are true as he verily believes” does not
comply with Loc.App.R. 45(B)(1)(a). Bandy v. Villanueva, 8th Dist. Cuyahoga No.
96866, 2011-Ohio-4831; State ex rel. Winston v. Bombik, 8th Dist. Cuyahoga No. 94094,
2009-Ohio-6319. The failure to comply with the supporting affidavit requirement of
Loc.App.R. 45(B)(1)(a) requires the dismissal of the original action. State ex rel. Leon v.
Cuyahoga Cty. Court of Common Pleas, 8th Dist. Cuyahoga No. 92826, 2009-Ohio-1612,
aff’d, 123 Ohio St.3d 124, 2009-Ohio-4688, 914 N.E.2d 402.
Conclusion
{¶14} Therefore, we find that the trial court does not patently and unambiguously
lack jurisdiction to proceed to judgment in the underlying domestic relations action,
Messer possesses an adequate remedy in the ordinary course of the law, and Messer has
failed to comply with the mandatory sworn affidavit requirement of Loc.App.R.
45(B)(1)(a).
{¶15} Accordingly, we grant the trial court’s motion to dismiss Messer’s complaint
for a writ of prohibition and writ of mandamus. Messer to pay costs. The court directs
the clerk of court to serve all parties with notice of this judgment and its date of entry upon
the journal as required by Civ.R. 58(B).
{¶16} Complaint dismissed.
JUDGE MARY EILEEN KILBANE, JUDGE
FRANK D. CELEBREZZE, JR., P.J., and
KATHLEEN ANN KEOUGH, J., CONCUR