State ex rel. Ostrowski v. Park

[Cite as State ex rel. Ostrowski v. Park, 2012-Ohio-4813.]
COURT OF APPEALS
STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT
: JUDGES:
STATE EX REL. CHAD A. : Patricia A. Delaney, P.J.
OSTROWSKI : William B. Hoffman, J.
: Julie A. Edwards, J.
Relator :
: Case No. 2012 CA 00121
-vs- :
:
: OPINION
HONORABLE DIXIE N. PARK
Respondent
CHARACTER OF PROCEEDING: Writ of Procedendo Complaint
JUDGMENT: Writ Issued
DATE OF JUDGMENT ENTRY: October 15, 2012
APPEARANCES:
For Relator For Respondent
CRAIG T. CONLEY JOHN D. FERRERO
604 Huntington Plaza Prosecuting Attorney
220 Market Avenue South Stark County, Ohio
Canton, Ohio 44702
BY: ROSS RHODES
Assistant Prosecuting attorney
Chief of the Civil Division
110 Central Plaza South, Suite 510
Canton, Ohio 44702
[Cite as State ex rel. Ostrowski v. Park, 2012-Ohio-4813.]
Edwards, J.
{¶1} Relator, Chad Ostrowski, has filed a Complaint in Procedendo requesting
this Court order the trial court to lift a stay in the underlying adoption petition.
Respondent has filed a Motion to Dismiss.
{¶2} Relator filed a Petition for Adoption in the trial court which the trial court
stayed pending the resolution of a motion for visitation in the Stark County Court of
Common Pleas, Juvenile Division. Respondent argues a stay of the adoption
proceedings is warranted based upon the Supreme Court’s holding in In re Adoption of
Pushcar, 110 Ohio St.3d 332, 2006-Ohio-4572. Relator in turn argues the
Respondent’s reliance on Pushcar is misplaced. For the following reasons, we agree
with Relator and grant the requested Writ of Procedendo.
{¶3} “A ‘writ of procedendo is appropriate when a court has either refused to
render a judgment or has unnecessarily delayed proceeding to judgment.’” State ex rel.
CNG Fin. Corp. v. Nadel, 111 Ohio St.3d 149, 2006-Ohio-5344, 855 N.E.2d 473, ¶ 20,
quoting Weiss, 84 Ohio St.3d at 532, 705 N.E.2d 1227.
{¶4} “[T]he requirements for a writ of procedendo are met if a judge
erroneously stays a proceeding.” State ex rel. Charvat v. Frye, 114 Ohio St.3d 76, 2007-
Ohio-2882, 868 N.E.2d 270, ¶ 15. Consequently, “a writ of procedendo will issue to
require a court to proceed to final judgment if the court has erroneously stayed the
proceeding.” State ex rel. Watkins v. Eighth Dist. Court of Appeals (1998), 82 Ohio
St.3d 532, 535, 696 N.E.2d 1079.” State ex rel. Sawicki v. Lucas Cty. Court of Common
Pleas, 126 Ohio St.3d 198, 200, 931 N.E.2d 1082, 1086 (2010).
Stark County App. Case No. 2012 CA 00121 3
{¶5} The Supreme Court in Pushcar held, “[W]hen an issue concerning the
parenting of a minor child is pending in the juvenile court, a probate court must refrain
from proceeding with the adoption of that child.” Pushcar at 334. In the instant case,
the proceeding pending in the Juvenile Court is a Complaint for Visitation. According to
the Complaint for Visitation, paternity has already been established. The subject of the
case in Pushcar was the establishment of paternity and not merely visitation. The
establishment of paternity is a necessary element of an adoption case which is why a
stay was necessary in Pushcar. Here, the same adoption prerequisite does not exist.
{¶6} Subsequent to its holding in Pushcar, the Supreme Court noted that the
term “parenting” as used in Pushcar was synonymous with “parentage.” In re G.T.B.
128 Ohio St.3d 502 (2011), at FN2. Parentage clearly refers to the establishment of
paternity.
{¶7} We find, Pushcar stands for the proposition that a stay must be imposed
only where parentage is at issue. Because parentage has been established in this case
the trial court erred in imposing a stay.
Stark County App. Case No. 2012 CA 00121 4
{¶8} We grant the writ of procedendo and order the trial court to proceed with
the adoption case forthwith.
By: Edwards, J.
Delaney, P.J. and
Hoffman, J. concur
______________________________
______________________________
______________________________
JUDGES
JAE/ads0905
[Cite as State ex rel. Ostrowski v. Park, 2012-Ohio-4813.]
IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE EX REL. CHAD A.
OSTROWSKI :
:
Relator :
:
:
-vs- : JUDGMENT ENTRY
:
HONORABLE DIXIE N. PARK :
:
Respondent : CASE NO. 2012 CA 00121
For the reasons stated in our accompanying Memorandum-Opinion on file, a Writ of
Procedendo is issued. The stay imposed by the trial court is lifted. Costs are waived.
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JUDGES