DeMarco v. Pace
2019 Ohio 3727
Ohio Ct. App.2019Background
- DeMarco (mother) filed a domestic violence civil protection order (DVCPO) in Geauga County, Ohio, seeking protection for her minor child J.P.; the court issued a same-day ex parte DVCPO and scheduled a full hearing.
- The parties previously litigated custody in Tennessee; Tennessee had been declared the child’s "home state" under the UCCJEA and issued custody determinations in 2013–2014.
- While the Ohio DVCPO was pending, Tennessee denied DeMarco’s motion to transfer the custody proceedings to Ohio and continued to exercise jurisdiction.
- The Ohio magistrate, after a teleconference with Tennessee’s judge and counsel, concluded Ohio had only temporary emergency jurisdiction under the UCCJEA and recommended (via Civ.R. 53) extending the ex parte order to permit DeMarco to seek relief in Tennessee.
- The trial court adopted the magistrate’s recommendation, extended the ex parte order twice (ultimately to March 6, 2019), denied further extension, and overruled DeMarco’s objections. DeMarco appealed raising seven assignments of error.
- The appellate court affirmed: the UCCJEA divested Ohio of subject-matter jurisdiction to hold a full DVCPO hearing on custody issues; interim extensions were proper; no due-process violation occurred; Civ.R. 53 procedure was appropriate given the jurisdictional posture.
Issues
| Issue | Plaintiff's Argument (DeMarco) | Defendant's Argument (Pace/Tennessee) | Held |
|---|---|---|---|
| 1. Whether magistrate should have proceeded under Civ.R. 53 rather than Civ.R. 65.1 | Civ.R. 65.1 governs DVCPOs; magistrate erred using Civ.R. 53 to issue an interim order | Once UCCJEA jurisdictional issues arose, magistrate action under Civ.R. 53 to recommend an interim order was appropriate | Court: No error. Civ.R. 65.1 does not displace Civ.R. 53 where UCCJEA jurisdictional deferral requires magistrate recommendation; any error would be harmless. |
| 2. Whether Ohio court had jurisdiction to conduct a full DVCPO hearing allocating parental rights | DeMarco: Ohio could proceed with full CPO hearing despite Tennessee proceedings | Pace/Tennessee: UCCJEA gives Tennessee continuing/home-state jurisdiction; Ohio was divested except for temporary emergency jurisdiction | Court: Ohio lacked subject-matter jurisdiction for a full custody-related CPO; only temporary emergency jurisdiction under R.C. 3127.18 existed to extend the ex parte order. |
| 3. Whether extending the ex parte DVCPO until March 6, 2019 gave DeMarco adequate time to obtain relief in Tennessee | DeMarco: the extension was insufficient; she needed more time | Pace: extensions were ample; DeMarco already filed in Tennessee and had months of protection via continuances | Court: Extension(s) were adequate; the ex parte order was in effect for nearly a year by virtue of motions and continuances, and DeMarco had pursued Tennessee relief. |
| 4. Whether failing to hold a full Civ.R. 65.1 hearing violated DeMarco’s due-process rights | DeMarco: withholding a full hearing denied her procedural due process under Civ.R. 65.1 and R.C. 3113.31(D) | Pace: DeMarco was offered interim relief and opportunity to be heard in the proper forum (Tennessee); no deprivation of notice or hearing occurred | Court: No due-process violation; Ohio’s limited emergency jurisdiction allowed only an interim extension to permit filing in Tennessee, where full relief must be sought. |
| 5. Whether magistrate improperly amended findings to say DeMarco failed to disclose pending Tennessee custody proceedings | DeMarco: she had disclosed a pending Tennessee matter; amendment was erroneous | Pace: DeMarco’s filings lacked specific case numbers and motions; clarification was proper | Court: Amendment simply noted sparse/discrete disclosures and was not an abuse of discretion; findings did not affect outcome. |
Key Cases Cited
- Rosen v. Celebrezze, 117 Ohio St.3d 241 (2008) (explains UCCJEA’s replacement of UCCJA and home-state priority)
- Justis v. Justis, 81 Ohio St.3d 312 (1998) (historical discussion of interstate custody statutes)
- In re Adoption of Pushcar, 110 Ohio St.3d 332 (2006) (once a court of competent jurisdiction decides long-term child custody, other courts should refrain)
- Pratts v. Hurley, 102 Ohio St.3d 81 (2004) (subject-matter jurisdiction cannot be waived and may be raised anytime)
- In re Adoption of Asente, 90 Ohio St.3d 91 (2000) (reinforces respect for ongoing jurisdiction of the original custody court)