616 N.E.2d 1217 | Ohio Ct. App. | 1993
Lead Opinion
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *475 John David Bowen appeals from a judgment granting the motion of Debbie Jean Britton (n.k.a. Britton-Sunderland) to dismiss his motion to modify the custody decree of a foreign state. The dismissal was based upon a lack of subject matter jurisdiction.
Appellant assigns the following errors:
"I. The court erred in vacating its previously rendered `ex parte order' granting emergency temporary custody to the plaintiff-appellant, and in dismissing the plaintiff-appellant's complaint for lack of jurisdiction, and such judgment and final order is [sic] contrary to law.
"II. The trial court erred in vacating its previously rendered `ex parte order' granting the plaintiff-appellant temporary emergency custody of the three minor children which are the subject of the plaintiff-appellant's complaint and in dismissing said complaint without first holding an evidentiary hearing in order to determine whether any of the provisions of divisions (A)1, (A)2, (A)3, or (A)4 [sic] of Section
The parties were married on July 11, 1975, and they subsequently had four children: Darrell, David, Derek, and Dale. In 1985, the Superior Court of Muscogee County, Georgia, granted a divorce to appellee on the grounds that the marriage was irretrievably broken. The final judgment of divorce incorporated *476 the agreement of the parties, which provided that appellee would have permanent custody of the parties' four minor children and that appellant would pay child support in the amount of $150 per child per month. The agreement also provided visitation for appellant, including four weeks of visitation with the parties' minor children during summers.
On November 21, 1991, appellant filed a "COMPLAINT" in the Pike County Juvenile Court, which requested that the 1985 Georgia divorce decree be modified to change the custody of three of the parties' four minor children, i.e., Darrell, David, and Derek, to appellant and require appellee to pay child support for these children.1
Attached to appellant's "complaint" was a child custody affidavit (R.C.
Appellee filed a motion to dismiss appellant's complaint and a motion to vacate the trial court's ex parte order in which she presented written argument to the effect that the trial court did not have jurisdiction or should decline to exercise jurisdiction because it was an inconvenient forum. Appellee argued that insofar as David and Derek were concerned, appellant only had "custody" of them at the time of his complaint because he was exercising his rights under the 1985 Georgia decree to summer visitation. Appellee's memorandum conceded that R.C.
On October 9, 1991, the court conducted a pretrial hearing on appellee's motion to dismiss and motion to vacate the ex parte order. The next day, appellant filed a "MOTION TO RECONSIDER, AND FOR ORAL HEARING" in which he contended that the prior hearing was merely a "pre-trial conference" at which the trial court indicated that if it found that Georgia had previously issued a custody decree concerning the children in the parties' divorce action, it would dismiss appellant's complaint for lack of jurisdiction. Appellant's motion additionally moved the trial court to "schedule an oral hearing upon the Plaintiff's `COMPLAINT TO MODIFY CUSTODY DECREE OF FOREIGN STATE' herein." On October 17, 1991, the trial court filed an "AMENDED JOURNAL ENTRY," which granted appellee's motions to dismiss and to vacate the prior ex parte order.
Appellant's first assignment of error asserts that the trial court erred in vacating its previously rendered ex parte order and in dismissing appellant's complaint for lack of jurisdiction. Appellant's second assignment of error asserts that the trial court erred in failing to hold an evidentiary hearing on the UCCJA issues raised by appellee's motions.
Generally, the standard to apply for a dismissal pursuant to Civ.R. 12(B)(1), lack of jurisdiction over the subject matter, is whether the plaintiff has alleged any cause of action which the court has authority to decide. McHenry v. Indus. Comm.
(1990),
Nevertheless, this case, which actually involves a post-divorce decree modification proceeding rather than a normal complaint, appears to differ from a usual Civ.R. 12(B)(1) dismissal context. Ohio adopted the Uniform Child Custody Jurisdiction Act in R.C.
R.C.
R.C.
"If a court of another state has made a parenting decree, a court of this state shall not modify that decree, unless it appears to the court of this state that the court that rendered the decree does not now have jurisdiction under jurisdictional prerequisites substantially in accordance with sections
R.C.
"(A) No court of this state that has jurisdiction to make a parenting determination relative to a child shall exercise that jurisdiction unless one of the following applies:
"(1) This state is the home state of the child at the time of commencement of the proceeding, or this state had been the child's home state within six months before commencement of the proceeding and the child is absent from this state because of his removal or retention by a parent who claims a right to be the residential parent and legal custodian of a child or by any other person claiming his custody or is absent from this state for other reasons, and a parent or person acting as parent continues to live in this state;
"(2) It is in the best interest of the child that a court of this state assumes jurisdiction because the child and his parents, or the child and at least one contestant, have a significant connection with this state, and there is available in this state substantial evidence concerning the child's present or future care, protection, training, and personal relationships;
"(3) The child is physically present in this state and either has been abandoned or it is necessary in an emergency to protect the child because he has been subjected to or threatened with mistreatment or abuse or is otherwise neglected or dependent;
"(4) It appears that no other state would have jurisdiction under prerequisites substantially in accordance with division (A)(1), (2), or (3) of this section, or a court in another state has declined to exercise jurisdiction on the ground that this state is the more appropriate forum to make a parenting determination relative to the child, and it is in the best interest of the child that this court assume jurisdiction."
Generally, sworn testimonial evidence is introduced on the factors specified in R.C.
Appellant claims that the trial court did not hold any evidentiary hearing and only considered the 1985 Georgia decree in granting appellee's motion to dismiss and vacate. Appellee does not contend otherwise. The trial court's October 17, 1991 "AMENDED JOURNAL ENTRY" stated that only a "Pre-Trial Hearing" on appellee's motions was held. No transcript of the October 9, 1991 hearing is included as part of the record on appeal.
We are aware that, generally, where a transcript of any proceeding is necessary for disposition of any question on appeal, the appellant bears the burden of taking the steps required to have the transcript prepared for inclusion in the record. Rose Chevrolet, Inc. v. Adams (1988),
However, in this case, the trial court's own "AMENDED JOURNAL ENTRY" indicates that no evidentiary hearing was held on October 9, 1991, since it only refers to a "Pre-Trial Hearing" and notes that only the attorneys were present. This is further supported in the record by appellant's October 10, 1991 "MOTION TO RECONSIDER, AND FOR ORAL HEARING" filed the day after the hearing at which appellant's counsel noted that the October 9, 1991 hearing was merely a pretrial conference and expressly requested an oral hearing. From the foregoing, we are persuaded that no evidentiary hearing was held, although the parties' filings indicated that such hearing was necessary and *481 appellant explicitly requested a hearing. The trial court therefore abused its discretion in failing to hold an evidentiary hearing. See Grynkewich, supra.
We further agree with appellant's general proposition under his first assignment of error that the mere presence of a prior custody decree entered by another state does not per se preclude an Ohio court from subsequently exercising jurisdiction over a motion to modify the foreign custody decree. R.C.
"Upon inquiry the Court learned that a valid custody decree was issued in the Superior Court of Muscogee County, State of Georgia, on May 15, 1985. Upon this inquiry, and upon mature consideration, the Court Finds, Rules, and Adjudges, that it is without proper jurisdiction to address Plaintiff's Complaint."
Without an evidentiary hearing, it is apparent that the trial court erroneously believed that the presence of a prior foreign custody decree precluded, as a matter of law, jurisdiction over appellant's Ohio modification complaint. Pursuant to R.C.
Accordingly, for all of the foregoing reasons, appellant's first and second assignments of error are sustained, and the judgment of the trial court dismissing appellant's complaint for lack of jurisdiction and vacating its ex parte order is reversed and remanded for a full evidentiary hearing on the jurisdictional issue.
Judgment reversedand cause remanded.
PETER B. ABELE, J., concurs.
GREY, J., dissents.
Dissenting Opinion
I respectfully dissent. The situation in this case indicates why the UCCJA was enacted. There is a valid Georgia custody decree. Bowen sought to file for a change of custody in Jackson County, but on the day before it was set for an evidentiary hearing, Bowen dismissed that case and filed this action in adjoining *482
Pike County. Bowen got a temporary custody order in Pike County, but when the court in Pike County set the case for pretrial, it appears that Bowen was unable to convince the trial court he had at least some basis for going forward with the motion. The majority opinion upholds his contention that if he had been given a hearing, he might have been able to show that a change of custody was proper under R.C.
The majority opinion holds that ordinarily an appellate court cannot predicate error on an incomplete record. I agree, but I would also posit that in the absence of a complete record or something in the file to indicate error, a court's judgment is entitled to a presumption of validity.
In this record we have a motion full of all sorts of allegations, a pretrial hearing, and an entry by the trial court holding that because of the valid custody order from Georgia, it lacked jurisdiction. I presume that at that pretrial it became apparent to the court that appellee had nothing to proffer to meet the requirements of R.C.
There is a valid custody order from Georgia and a valid entry from the trial court and nothing by way of a transcript or proffer indicating that error intervened. The majority opinion presumes there was some kind of proffer, some kind of showing that Bowen had a justiciable claim, but that the court chose to ignore it, deny him his right to be heard and apply an improper standard. From this record, I cannot make that same presumption.
Thus, I dissent. *483