In re E.G.

[Cite as In re E.G., 2013-Ohio-495.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 98652
IN RE: E.G., ET AL.
MINOR CHILDREN
[Appeal by S.F., Mother]
JUDGMENT:
REVERSED AND REMANDED
Civil Appeal from the
Cuyahoga County Court of Common Pleas
Juvenile Division
Case Nos. PR 12703234 and PR 12703235
BEFORE: Boyle, P.J., E.A. Gallagher, J., and Kilbane, J.
RELEASED AND JOURNALIZED: February 14, 2013
ATTORNEYS FOR APPELLANT
Robert J. Dubyak
Joseph T. Gorman, Jr.
Anthony J. Trzaska
Dubyak Connick Sammon
Thompson & Bloom, LLC
3401 Enterprise Parkway, Suite 205
Cleveland, Ohio 44122-7341
ATTORNEY FOR APPELLEE
Brian C. Nelson
9 Corporation Center
Broadview Heights, Ohio 44147
MARY J. BOYLE, P.J.:
{¶1} Plaintiff-appellant, S.F. (“mother”), appeals from a judgment of the
Cuyahoga County Court of Common Pleas, Juvenile Division, denying her motion to
reconsider its dismissal of her complaint to establish parent-child relationship. She raises
two assignments of error for our review:
[1.] The trial court erred and abused its discretion in making its decision on
jurisdiction under the Uniform Child Custody Jurisdiction and Enforcement
Act [“UCCJEA”], R.C. 3127.01 et seq., without a prior evidentiary hearing
and a full explanation of the disputed facts essential to its determination.
[2.] The trial court erred and abused its discretion in dismissing Plaintiff’s
Complaint for lack of subject matter jurisdiction despite evidence
establishing that Ohio is, was, and always has been the home state of
Plaintiff and the children.
{¶2} Finding merit to her appeal, we reverse the judgment of the trial court and
remand.
Procedural History and Factual Background
{¶3} Mother filed a complaint to establish parent-child relationship in the
Cuyahoga County Juvenile Court on February 27, 2012. In the complaint, mother
asserted that she had two minor children, one born in 2007 and one born in 2009.
Mother stated that although paternity had never been established, N.G. (“father”) was the
natural father of the two minor children. Mother further stated that she and father were
never married. In her UCCJEA affidavit, mother averred that father lived in Virginia,
but that the children had lived with her in Cleveland, Ohio since their respective births.
{¶4} On March 20, 2012, father filed a petition for custody in Virginia. Ten
days later, father moved to dismiss mother’s Ohio complaint for lack of subject matter
jurisdiction pursuant to Civ.R. 12(B)(1), alleging that Virginia was the home state of the
two minor children.
{¶5} On May 25, 2012, the Cuyahoga County Juvenile Court judge held a
hearing with all parties and counsel present. The judge indicated that she had spoken to
the Virginia judge presiding over father’s custody action. The judge said that she learned
from speaking with the Virginia judge that father had acknowledged paternity in the
Virginia action. The judge informed the parties that based on the pleadings filed by
father in Virginia, she believed that mother and father had a leasehold property in
Virginia. The judge also indicated that the Virginia judge believed that it would be in the
best interest of the children for the case to be decided in Virginia because the case would
be finalized before the children began school in the fall, whereas in Ohio, the court
indicated that it would take much longer to finalize the case. The judge then sua sponte
dismissed mother’s custody complaint “in accordance with the UCCJEA” for the matter
to proceed in Virginia.
{¶6} In its judgment entry, the trial court stated:
Pursuant to Civ.R. 12(B)(1) and in consultation with the assigned
judge from the state of Virginia, and review of all pleadings before each
court, the court finds that there is reasonable cause to believe that the child
resided in the state of Virginia more than six months prior to the
commencement of the action herein; that the alleged father acknowledges
paternity before the Virginia court; and that based on the significant
contacts that the child has in the state of Virginia, the court can reasonably
infer that the Virginia court would be a court of competent jurisdiction.
Therefore, it is the decision of the court, having reviewed this matter
with the jurist of the other court, that the state of Virginia is the home state
of the child; and that this matter may proceed expediently before the
Virginia court, this court finds that said expediency would serve the best
interest of the child, child’s sibling, and the family.
{¶7} Subsequently, the trial court dismissed mother’s complaint.
{¶8} Mother moved the trial court to reconsider its dismissal and requested an
evidentiary hearing. The trial court denied mother’s motion. Mother appeals the denial
of her motion and the dismissal of her complaint.
Jurisdiction
{¶9} Normally, a trial court’s decision regarding child custody issues are
reviewed by an appellate court under the abuse of discretion standard. Baxter v. Baxter,
9th Dist. No. 10CA009927, 2011-Ohio-4034, ¶ 6, quoting Miller v. Miller, 37 Ohio St.3d
71, 74, 523 N.E.2d 846 (1988). An appellate court, however, reviews issues relating to
subject matter jurisdiction de novo, as such a determination is a matter of law. In re
K.R.J., 12th Dist. No. CA2010-01-012, 2010-Ohio-3953, ¶ 16.
{¶10} R.C. 2151.23(F)(1) authorizes a juvenile court to exercise jurisdiction in
custody matters in accordance with R.C. 3127.01 to 3127.53 of the UCCJEA. As the
title of the act suggests, R.C. Chapter 3127 sets forth a series of standards and definitions
for determining when an Ohio court has jurisdiction, as opposed to a court of another
state, to issue a child custody decision. The primary purpose of the UCCJEA is “‘to
avoid jurisdictional competition and conflict with courts of other jurisdictions’” in
custody matters. Rosen v. Celebrezze, 117 Ohio St.3d 241, 244, 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).
The UCCJEA gives “‘jurisdictional priority and exclusive continuing jurisdiction to the
home state.’” (Citation omitted.) Id. In order to strengthen the certainty of home-state
jurisdiction, the UCCJEA eliminates the review of subjective factors, such as the child’s
best interest, from the original jurisdictional inquiry that existed in the former version of
the UCCJEA. Id. at ¶ 21. Further, R.C. 3127.15(A) “is the exclusive jurisdictional
basis for making a child custody determination by a court of this state.” R.C.
3127.15(B).
{¶11} The UCCJEA, as codified in Ohio, provides four types of initial
child-custody jurisdiction: (1) home-state jurisdiction, (2) significant-connection
jurisdiction, (3) jurisdiction because of declination of jurisdiction, and (4) default
jurisdiction. R.C. 3127.15(A)(1)-(4). Rosen at ¶ 31.
{¶12} Specifically, R.C. 3127.15(A) provides that, with exceptions not relevant
here, a court in Ohio has jurisdiction to make an initial decision in a child custody
proceeding only if one of the following applies: (1) (a) Ohio is the home state of the child
on the date the proceeding commenced, or (b) Ohio was the home state of the child within
six months before the proceeding’s commencement, the child is absent from Ohio, and a
parent or guardian continues to live in Ohio; (2) a court of another state does not have
jurisdiction as the child’s home state or a court of the child’s home state has declined to
exercise jurisdiction because Ohio is the more appropriate forum and both of the
following are true: (a) the child and one of her parents has a “significant connection” with
Ohio other than mere physical presence; and (b) substantial evidence is available in Ohio
concerning her care, protection, training, and personal relationships; (3) all courts having
jurisdiction as a home state or as a “significant connection” state have declined to
exercise jurisdiction on the ground that a court of Ohio is the more appropriate forum; or
(4) no court of any other state would have jurisdiction under (1), (2), or (3).
{¶13} R.C. 3127.01(B)(7) defines “home state” 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 of any of them is counted
as part of the six-month or other period.
{¶14} Although R.C. 3127.01(B)(7) refers to “at least six consecutive months
immediately preceding the commencement” of a child custody proceeding, the Ohio
Supreme Court has held that for purposes of determining the child’s “home state” under
the UCCJEA, the six-consecutive-month period includes not only the six months
immediately preceding the commencement of a child custody proceeding, but can also
occur “within” the six months before the commencement of the child custody proceeding.
See Rosen, 117 Ohio St.3d 241, 2008-Ohio-853, 883 N.E.2d 420. Put another way, a
child’s home state is where the child lived for six consecutive months ending within the
six months before the child custody proceeding was commenced. See id. at ¶ 41-42
(Ohio Supreme Court granted father’s writ of prohibition to prevent an Ohio judge from
preceding on mother’s custody action that she filed four months after moving to Ohio
with the children; the Supreme Court held that West Virginia was the children’s “home
state” because they had only lived in Ohio for four months, but had lived in West Virginia
for six consecutive months “within” the six-month period before the commencement of
mother’s custody action.).
{¶15} R.C. 3127.09, entitled “Communications between courts,” governs
communications between courts in different states regarding proceedings arising under
R.C. 3127.01 to 3127.53. It provides that “a court of this state may communicate with a
court of another state concerning” issues that arise under the UCCJEA. R.C.
3127.09(A). The statute also provides that the court may give the parties the opportunity
to participate in the communication, but it does not require such participation. See R.C.
3127.09(B). Further, the statute mandates that “a record shall be made” of this
communication, except for matters concerning scheduling, calendars, and court records,
and the parties shall be promptly informed of the communication and granted access to
said record. R.C. 3127.09(C) and (D).
Analysis
{¶16} Mother argues that Ohio is, and always has been, the children’s home state.
She maintains that they were born at Lakewood Hospital and have lived with her in
Cleveland, at the same address, since their respective births. She points to several facts
establishing that her residence has always been in Ohio, including the fact that she has an
Ohio driver’s license, her automobile has an Ohio title, she files Ohio and federal taxes as
an Ohio resident, and she owns a tax-preparation business with several locations
throughout the city of Cleveland, as well as a restaurant franchise in Cleveland.
{¶17} Mother explains in her affidavit opposing father’s motion to dismiss that,
because her tax-preparation business is only busy during tax season, she has the ability to
travel throughout the remainder of the year. As a result, she and the children travel to
Virginia often to visit father and other friends and relatives. But she asserts that these
visits were only “temporary absences” and that she returned monthly to her home during
these absences.
{¶18} Conversely, father asserts in his motion to dismiss mother’s Ohio complaint,
that up until mother filed her complaint in Ohio, he and mother shared custody of the
children and lived in both Virginia and Ohio. Father states that he and mother had an
agreement that they would live primarily in Virginia once their oldest child reached the
age of three and entered preschool. Prior to that, father avers that he and mother lived in
Virginia during the summer and in Ohio during tax season. According to father, once the
oldest child attained the age of three, the child entered preschool in Virginia, as they had
planned. Father states that the children lived in Virginia from April 8, 2010 to December
23, 2010. He states that the children moved to Ohio on December 24, 2010 until April
23, 2011. He then claims that they returned to Virginia on April 24, 2011, where they
lived until November 1, 2011, when mother brought them back to Ohio.
{¶19} According to father, when mother filed her custody complaint in Ohio, the
children had only lived in Ohio for four months. Prior to that, they had lived in Virginia
for over six consecutive months. Thus, father maintains that Virginia is the children’s
home state under the UCCJEA.
{¶20} After reviewing the record, we agree with mother that the trial court erred
when it dismissed her complaint without holding an evidentiary hearing because the facts
regarding where the children lived are in dispute. The trial court could not determine
whether Ohio or Virginia was the children’s “home state” at the time mother filed her
custody complaint in Ohio — not based on mother’s pleadings in Ohio or father’s
pleadings in Virginia or their affidavits or by talking to the Virginia judge for that matter
— because again, the facts are in dispute.
{¶21} If the trial court determines, after holding an evidentiary hearing, that the
children did, in fact, live in Virginia from April 24, 2011 to November 1, 2011, as father
claims they did, then the Cuyahoga County Juvenile Court lacks jurisdiction to determine
the action because Virginia would be the children’s “home state” under the UCCJEA.
See Rosen, 117 Ohio St.3d 241, 2008-Ohio-853, 883 N.E.2d 420.
{¶22} If, however, the trial court determines that the children lived in Ohio — with
only “temporary absences” from home — then Ohio is the children’s “home state” for
purposes of jurisdiction under the UCCJEA. We recognize that the statute does not
define “temporary absence,” but common sense dictates that the plain meaning of
“temporary absence” is leaving the state for short, limited time periods.1 If the children
left Ohio for six months or more — half of the year — that does not equate to a short,
limited absence.
“Temporary” is defined as “lasting for a limited time.” American Heritage Dictionary 843
1
(4th Ed.2001).
{¶23} Mother asserts that the children have significant connections to Ohio. But
“significant connections” are only relevant when no other state has “home state”
jurisdiction or the other state is the “home state,” but the court in the “home state”
declined to exercise its jurisdiction because it determined it is not convenient to do so.
See R.C. 3127.15(A)(2). Here, either Ohio or Virginia is the “home state,” depending on
the trial court’s decision regarding the disputed facts. Thus, “significant connections”
are irrelevant in this case.
{¶24} We further note that the trial court here improperly relied on its discussion
with the Virginia judge regarding what would be in the children’s best interest. As the
Ohio Supreme Court explained in Rosen, the UCCJEA “eliminates a determination of
‘best interests’ of a child from the original jurisdictional inquiry.” Id. at ¶ 21. There is
also no indication that the trial court recorded its conversation with the Virginia judge, as
required under R.C. 3127.09(D) and (E), such that the parties could be granted access to
the recording.
{¶25} Mother’s two assignments of error are sustained.
{¶26} Judgment reversed. This case is remanded for the trial court to hold an
evidentiary hearing to determine whether Ohio or Virginia is the “home state” of the
children.
It is ordered that appellant recover from appellee costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate be sent to said court to carry this judgment into
execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.
MARY J. BOYLE, PRESIDING JUDGE
EILEEN A. GALLAGHER, J., and
MARY EILEEN KILBANE, J., CONCUR