C.S. v. R.S.

[Cite as C.S. v. R.S., 2021-Ohio-3581.]
COURT OF APPEALS
FAIRFIELD COUNTY, OHIO
FIFTH APPELLATE DISTRICT
C.S. (NKA T.) : JUDGES:
: Hon. Craig R. Baldwin, P.J.
Plaintiff-Appellee : Hon. W. Scott Gwin, J.
: Hon. Earle E. Wise, Jr., J.
-vs- :
:
R.S. : Case No. 2021 CA 00008
:
Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Court of Common
Pleas, Domestic Relations Division,
Case No. 09 DR 569
JUDGMENT: Affirmed in Part, Reversed in Part,
and Remanded
DATE OF JUDGMENT: October 4, 2021
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
COLLEEN THOMAS, PRO SE EUGENE B. LEWIS
18 Robanette Court JACOB W. SMITH
Fort Thomas, KY 41075 MEREDITH W. SHELL
65 East State Street
Guardian ad Litem Suite 1000
Columbus, OH 43215
LORA H. CLEARY
830 East Johnstown Road
Suite B
Fairfield County, Case No. 2021 CA 00008 2
Gahanna, OH 43230
Wise, Earle, J.
{¶ 1} Defendant-Appellant, R.S., appeals the February 8, 2021 judgment entry of
the Court of Common Pleas of Fairfield County, Ohio, Domestic Relations Division,
granting the motion to dismiss filed by Plaintiff-Appellee, C.S., nka T., and dismissing his
motion to modify parental rights and responsibilities.
FACTS AND PROCEDURAL HISTORY
{¶ 2} The parties were married in 2006. In 2007, they adopted two children from
the Ukraine, L. and V. During the adoption process, L.'s birthdate was changed from
June 21, 2001, to June 21, 2002. V.'s birthdate was changed from May 27, 2002, to May
27, 2003. The parties were granted a divorce on January 24, 2014, and the decree
reflected the amended birthdates. Appellee was named residential parent and legal
custodian of the children. The trial court reserved jurisdiction to determine child support
beyond the age of majority given the children's disabilities since birth.
{¶ 3} On October 25, 2019, appellant filed a motion to modify parental rights and
responsibilities, making a general claim of "a substantial change in circumstances since
the last parenting decree" without mentioning any specifics.
{¶ 4} On September 22, 2020, appellee filed a motion to dismiss appellant's
motion. Appellee argued the trial court lacked jurisdiction because V. was over the age
of eighteen. In May of 2020, V. had initiated an action in the Fairfield County Probate
Court and had her birth certificate amended to reflect her biological birthdate of May 27,
Fairfield County, Case No. 2021 CA 00008 3
2002. Therefore, V. had turned eighteen on May 27, 2020. The amended birth certificate
was journalized by the probate court on July 28, 2020.1
{¶ 5} By judgment entry filed February 8, 2021, the trial court determined V.'s
birthdate to be May 27, 2002, found it lacked jurisdiction over the issue of custody
following the reasoning of Geygan v. Geygan, 10th Dist. Franklin No. 11AP-626, 2012-
Ohio-1965, 973 N.E.2d 276, and granted appellee's motion to dismiss appellant's motion
to modify parental rights and responsibilities.
{¶ 6} Appellant filed an appeal and this matter is now before this court for
consideration. Assignments of error are as follows:
I
{¶ 7} "THE TRIAL COURT ERRED IN FINDING THAT APPELLEE WAS NOT
BARRED FROM LITIGATING [V.]'S BIRTHDATE BY THE DOCTRINE OF RES
JUDICATA."
II
{¶ 8} "THE TRIAL COURT ERRED IN APPLYING THE GEYGAN RULING TO
DETERMINE THE DOMESTIC RELATIONS COURT LACKED JURISDICTION TO
ALLOCATE PARENTAL RIGHTS AND RESPONSIBILITIES OF THE PARTIES AS TO
[V.]."
III
1No mention is made of L., presumably because that child had turned eighteen under
either birthdate. Although appellant included L. in his October 25, 2019 motion to modify
parental rights and responsibilities, L. was not mentioned in any subsequent filings and/or
arguments: his October 14, 2020 memorandum contra to motion to dismiss, his October
27, 2020 response in opposition to supplemental memorandum on motion to dismiss, and
his May 7, 2021 appellate brief.
Fairfield County, Case No. 2021 CA 00008 4
{¶ 9} "THE TRIAL COURT ERRED IN FINDING [V.] HAD REACHED THE 'AGE
OF MAJORITY' UNDER OHIO LAW WITHOUT A DETERMINATION OF WHETHER
SHE WAS UNDER A 'LEGAL DISABILITY'."
IV
{¶ 10} "THE TRIAL COURT ERRED IN DISMISSING APPELLANT'S MOTION TO
MODIFY IN ITS ENTIRETY WITHOUT ISSUING A FINDING AS TO APPELLANT'S
PAYMENT OF CHILD SUPPORT."
I
{¶ 11} In his first assignment of error, appellant claims the trial court erred in finding
appellee was not barred by the doctrine of res judicata from litigating V.'s birthdate. We
disagree.
{¶ 12} Res judicata is defined as "[a] valid, final judgment rendered upon the merits
bars all subsequent actions based upon any claim arising out of the transaction or
occurrence that was the subject matter of the previous action." Grava v. Parkman Twp.,
73 Ohio St.3d 379, 653 N.E.2d 226 (1995), syllabus.
{¶ 13} Appellant argues appellee never challenged or appealed the trial court's use
of V.'s amended birthdate as listed in the 2014 divorce decree therefore, appellee cannot
now litigate the issue.
{¶ 14} At the time of the filing of the divorce decree, V.'s birthdate according to her
adoption birth certificate was May 27, 2003. Following the decree of divorce, V. filed her
own action in 2020 in the probate court and successfully amended her birth certificate to
Fairfield County, Case No. 2021 CA 00008 5
reflect her biological birthdate, May 27, 2002. The trial court was permitted to accept this
new fact and find V.'s biological age to be eighteen as of May 27, 2020.
{¶ 15} As found by the trial court, we agree the issue of V.'s birthdate is not subject
to the doctrine of res judicata.
{¶ 16} Upon review, we find the trial court did not err in finding appellee was not
barred by the doctrine of res judicata from litigating V.'s birthdate.
{¶ 17} Assignment of Error I is denied.
II, III
{¶ 18} In his second assignment of error, appellant claims the trial court erred in
applying the Geygan ruling to determine it lacked jurisdiction to modify parental rights and
responsibilities as to V.
{¶ 19} In his third assignment of error, appellant claims the trial court erred in failing
to determine whether V. was under a legal disability.
{¶ 20} We agree with the arguments under both assignments of error.
{¶ 21} To be clear, this is a case involving the modification of parental rights and
responsibilities, i.e., custody, not child support. We note the holding of Castle v. Castle,
15 Ohio St.3d 279, 473 N.E.2d 803 (1984), paragraph two of the syllabus ("domestic
relations court retains jurisdiction over parties in a divorce, dissolution or separation
proceeding to continue or to modify support payments for a mentally or physically
disabled child, who was so disabled before he or she attained the statutory age of
majority, as if the child were still an infant”), its subsequent codification in R.C. 3119.86,
and its progeny discussed below, mainly focuses on child support.
Fairfield County, Case No. 2021 CA 00008 6
{¶ 22} In Geygan v. Geygan, 10th Dist. Franklin No. 11AP-626, 2012-Ohio-1965,
973 N.E.2d 276, our colleagues from the Tenth District noted this distinction at ¶ 19, and
reasoned the following at ¶ 20-22:
The law expressly provides that, in divorce actions and other
proceedings pertaining to the allocation of parental rights and
responsibilities for care of a child, the domestic relations court "shall allocate
the parental rights and responsibilities for the care of the minor children of
the marriage." (Emphasis added.) R.C. 3109.04. See also R.C.
3105.21(A) ("Upon satisfactory proof of the causes in the complaint for
divorce * * * the court of common pleas shall make an order for the
disposition, care, and maintenance of the children of the marriage, as is in
their best interests, and in accordance with section 3109.04 of the Revised
Code."). Similarly, R.C. 3109.04(D)(2) states that, "with respect to any child
under eighteen years of age," if the domestic relations court finds that it is
in the best interest of the child for neither parent to be designated as
custodian, the court may commit the child to a relative or certify its findings
to the juvenile court. By logical extension, the domestic relations court lacks
jurisdiction to make a similar order for a child over the age of 18.
Further, we note that the General Assembly has specifically provided
for a structure of care and management for individuals with developmental
disabilities, including guardianship and a system of protective service under
the authority of the Department of Developmental Disabilities. See R.C.
Fairfield County, Case No. 2021 CA 00008 7
Chapter 2111 and R.C. 5123.55 to 5123.59. If found necessary, R.C.
2111.02 requires the probate court to appoint a guardian "of the person * *
* of a[n] * * * incompetent." Incompetent means any person who is "so
mentally impaired as a result of a mental or physical illness or disability, or
mental retardation * * * that the person is incapable of taking proper care of
the person's self or property." R.C. 2111.01(D). In addition, the General
Assembly has charged the Department of Developmental Disabilities with
developing a statewide system of protective service. R.C. 5123.56.
Protective service "means performance of the duties of a guardian, trustee,
or conservator, or acting as a protector, with respect to a person with mental
retardation or a developmental disability." R.C. 5123.55.
We do not find that, in enacting the domestic relation statutes relating
to custody, the General Assembly intended to create a parallel structure or
system for the care and management of adults with disabilities as it seems
to have created in R.C. Chapter 2111 and R.C. 5123.55 to 5123.59.
(Footnotes omitted.)
{¶ 23} In support of his position that the Geygan case does not control, appellant
cites the cases of Abbas v. Abbas, 128 Ohio App.3d 513, 715 N.E.2d 613 (7th Dist.1998),
and Wiczynski v. Wiczynski, 6th Dist. Lucas App. No. L-05-1128, 2006-Ohio-867.
{¶ 24} Abbas involved child support for a fully disabled adult child. At the time of
the Abbas divorce, the child was twenty-five years old. The trial court had granted custody
of the child to mother and determined it had no authority to order child support despite
Fairfield County, Case No. 2021 CA 00008 8
the child's disabilities. Thereafter, the Supreme Court of Ohio decided Castle, supra.
Mother in Abbas then sought child support pursuant to Castle, but was ultimately denied
because the trial court determined it was without jurisdiction to so order child support.
The Seventh District in Abbas reversed, finding at 517, by granting custody of the child,
age twenty-five at the time, to mother, the trial court "was essentially asserting" that the
child had not reached the age of majority; therefore, the trial court maintained continuing
jurisdiction over the child. Because the trial court retained jurisdiction, it could order child
support payments pursuant to Castle.
{¶ 25} In Wiczynski, the parties were granted a divorce, and custody of their
twenty-nine-year-old disabled child was granted to mother and father was ordered to pay
child support. A few years later, father filed a motion to dismiss custody and support
orders because the trial court lacked jurisdiction to so order. The trial court disagreed,
finding it had and continued to have jurisdiction. On appeal, the Sixth District determined
the trial court had jurisdiction to enter custody and support orders because the child had
never reached the "age of majority."
{¶ 26} Both cases cited to R.C. 3109.01 which governs age of majority and states,
"[a]ll persons of the age of eighteen years or more, who are under no legal disability, are
capable of contracting and are of full age for all purposes." In analyzing "legal disability,"
the Wiczynski court at ¶ 22 looked to R.C. 2131.02, acknowledging, "although specifically
applicable to probate matters, nevertheless aids in our analysis." R.C. 2131.02 defines
"legal disability" as being "of unsound mind" and R.C. 1.02(C) defines "of unsound mind"
as including "all forms of derangement or intellectual disability."
Fairfield County, Case No. 2021 CA 00008 9
{¶ 27} Several other decisions after Geygan follow Abbas and Wiczynski, albeit
these cases dealt with the issue of child support. See, In re Edgell, 11th Dist. Lake No.
2009-L-065, 2010-Ohio-6435, ¶ 39 (choosing to follow the reasoning of Wiczynski as
being consistent with Castle, Abbas, and "the strong public policy of this state requiring
parents to be financially responsible for their children who suffer from disabilities prior to
reaching the chronological age of majority"); Donohoo v. Donohoo, 12h Dist. Clermont
No. 09-10-2012, 2012-Ohio-4105, ¶ 18 (R.C. 3119.86 "does not foreclose the possibility
that a domestic relations court could order a parent to provide child support for a disabled
child that had already turned 18 by the time of his parents' divorce"); In re Palcisco, 11th
Dist. Trumbull No. 2012-T-0031, 2012-Ohio-6134, ¶ 22-23 (R.C. 3119.86 "states that it is
the 'duty of support,' not the support order itself, that 'shall continue' where the 'child is
mentally or physically disabled.' * * * It follows that if the duty to support continues, then
so does the domestic relations court's jurisdiction to order child support").
{¶ 28} In its February 8, 2021 judgment entry, the trial court analyzed all these
cases, acknowledged they dealt with child support orders, and determined it agreed with
the Geygan decision, finding "current law does not grant the domestic relations court
jurisdiction to make custody and visitation orders for adult children with disabilities."
{¶ 29} While we understand the reasoning of Geygan and the trial court's reliance
on the case, we are persuaded to follow the dictates of Abbas, Wiczynski, and their
progeny. As noted by the Wiczynski court at ¶ 21, "R.C. 3109.01 defines the age of
majority and, like the holdings in Castle, is reflective of the notion that mentally or
physically disabled children should be excepted from a strictly age-based emancipation
rule." R.C. 3109.01 specifically defines the age of majority as (1) persons of the age of
Fairfield County, Case No. 2021 CA 00008 10
eighteen years or more, and (2) who are under no legal disability. The requirement of "no
legal disability" cannot be ignored simply because the term is not specifically defined in
R.C. Chapter 31. Looking to R.C. 2131.02 and 1.02(C) for guidance is not improper.
{¶ 30} Further, in the original divorce decree filed January 24, 2014, the trial court
reserved jurisdiction over V. beyond the age of majority as discussed in ¶ 10:
The evidence indicates that [V.] and [L.] have had disabilities since
birth as set forth in the Findings of Fact and Conclusions of Law. The Court
is unable to determine at this time whether [V.] and [L.] will be able to
support themselves in the future, past their age of majority; therefore, the
continuing jurisdiction of the Court to address the need for an ongoing
support order past the age of majority, even post-emancipation for both
children is reserved by the Court in accordance with in (sic) Castle v. Castle,
15 Ohio St.3d 279 (1984).
{¶ 31} We do not find the trial court's continuing jurisdiction is limited to the issue
of child support only.
{¶ 32} Because the trial court relied on Geygan and found it did not have
jurisdiction, it did not determine whether V. is under a legal disability. Given our decision
that the trial court does have jurisdiction to determine custody in this case if V. is found to
be under a legal disability, it must make a determination as to legal disability.
Fairfield County, Case No. 2021 CA 00008 11
{¶ 33} Upon review, we find the trial court erred in applying the Geygan ruling to
determine it lacked jurisdiction to modify parental rights and responsibilities as to V., and
erred in failing to determine whether V. was under a legal disability.
{¶ 34} Assignments of Error II and III are granted.
IV
{¶ 35} In his fourth assignment of error, appellant claims the trial court erred in
dismissing his motion to modify parental rights and responsibilities without issuing a
finding as to his child support payment. We disagree.
{¶ 36} In his appellate brief at 18, appellant argues in his October 25, 2019 motion
to modify parental rights and responsibilities, he also asked the trial court to determine
responsibility for child support. Nowhere in the motion did appellant make such a request.
The motion moved the trial court "for a modification of the allocation of parental rights and
responsibilities for the care of the parties' minor children, L.S. (born June 12, 2002) and
V.S. (born May 27, 2003) for the reason set forth below." The entire text of the
memorandum in support is as follows: "There had been a substantial change in
circumstances since the last parenting decree. The best interests of the minor children
will be served by Defendant being designated the residential parent and sole legal
custodian of the minor child. Defendant will present additional information at hearing on
this matter."
{¶ 37} We do not find that a request for a determination on child support was
properly before the trial court.
{¶ 38} Assignment of Error IV is denied.
Fairfield County, Case No. 2021 CA 00008 12
{¶ 39} The judgment of the Court of Common Pleas of Fairfield County, Ohio,
Domestic Relations Division is hereby affirmed in part and reversed in part, and the matter
is remanded for further consideration consistent with this opinion.
By Wise, Earle, J.
Baldwin, P.J. and
Gwin, J. concur.
EEW/db