{¶ 3} Following our remand of Goeller I, Goeller moved to dismiss Lorence's action which sought to establish paternity, asserting that the action violated his constitutional right to an intact family. This Court found that Goeller's challenge was untimely and affirmed the trial court's denial of Goeller's motion to vacate the order which established paternity. Lorencev. Goeller ("Goeller II") (Mar. 6, 2002), 9th Dist. No. 01CA007820. Following remand of Goeller II, Lorence filed a complaint for legal custody of Bryan. The matter proceeded to a contested custody hearing in May of 2004. Following the hearing, the trial court granted Lorence's motion, awarding him legal custody of Bryan. Thus, for the first time, at age 11, Bryan no longer lived with Goeller and began living with Lorence. Goeller appealed and the matter came before this Court for a third time.
{¶ 4} In the third appeal of this matter, Goeller asserted that the trial court erred in determining that Lorence should have legal custody of Bryan. This Court found that the trial court had properly applied the law and affirmed its decision regarding custody. See Lorence v. Goeller ("Goeller III"), 9th Dist. No. 04CA008556,
"There is no dispute that appellant, as a widower, is a relative of the child's deceased mother. Appellant's assignment of error must fail, however, because appellant failed to file a complaint for visitation or companionship of the minor child." Id. at ¶ 29.
{¶ 5} After Goeller III was concluded, Goeller filed a complaint for visitation in the trial court. Lorence moved to dismiss the motion, asserting that Goeller did not have standing under the Revised Code to pursue visitation. On February 3, 2006, the trial court agreed with Lorence and granted the motion to dismiss. Goeller has timely appealed the trial court's decision, raising one assignment of error for review.
{¶ 6} In his sole assignment of error, Goeller has argued that the trial court erred in dismissing his complaint for visitation. Specifically, Goeller has alleged that the trial court improperly interpreted the provisions of R.C.
{¶ 7} A trial court may grant a Civ.R. 12(B)(6) motion to dismiss only if it appears beyond doubt that the plaintiff can prove no set of facts that would entitle that plaintiff to relief. O'Brien v. Univ. Comm. Tenants Union (1975),
{¶ 8} In determining this appeal, this Court must interpret the provisions of R.C.
{¶ 9} R.C.
"If either the father or mother of an unmarried minor child is deceased, the court of common pleas of the county in which the minor child resides may grant the parents and other relatives of the deceased father or mother reasonable companionship or visitation rights with respect to the minor child during the child's minority if the parent or other relative files a complaint requesting reasonable companionship or visitation rights and if the court determines that the granting of the companionship or visitation rights is in the best interest of the minor child." (Emphasis added.)
In reaching its conclusion that Goeller did not meet the standing criteria contained in R.C.
"In the present case, Goeller unfortunately lost his status as Rondi's widower/surviving spouse when he remarried. He contemporaneously lost his status as her relative and consequently has no standing to pursue [visitiation.]"
Upon review, we find error in the trial court's interpretation.
{¶ 10} Initially, we note that the trial court relied exclusively upon the dictionary definition of "widow" when it reached its decision. In so doing, the trial court found that Goeller's remarriage required a finding that he was no longer Rondi's widower. In so doing, the trial court ignored Goeller's status as Rondi's surviving spouse. By definition, a surviving spouse is "[a] spouse who outlives the other spouse." Black's Law Dictionary (8 Ed. 2004) 1439. Unlike the definition of widow, surviving spouse includes no conditions which would serve to terminate Goeller's existence as Rondi's surviving spouse, i.e., by definition, Goeller will forever be Rondi's surviving spouse, regardless of remarriage.
{¶ 11} Furthermore, we find error in the trial court's sole reliance upon the dictionary definition of "widow" as it wholly ignores legislative intent. Prior to 2000, a surviving parent's subsequent remarriage and the adoption of the child by the surviving parent's new spouse eliminated the right to seek visitation under R.C.
"The remarriage of the surviving parent of the child or theadoption of the child by the spouse of the surviving parent ofthe child does not affect the authority of the court under this section to grant reasonable companionship or visitation rights with respect to the child to a parent or other relative of the child's deceased father or mother." (Emphasis added to amended language.)
Accordingly, as recently as 2000, the General Assembly has sought to expand the visitation rights afforded under R.C.
{¶ 12} Furthermore, the trial court's interpretation presents Goeller with a "Morton's Fork" scenario, i.e., he may choose between two alternatives, both of which are unpleasant. He may a) remarry and forego any opportunity to seek visitation with the child he has raised as his own for eleven years or b) seek visitation rights with that child and forego the opportunity to remarry and pursue his own future happiness. "Marriage is one of the `basic civil rights of man,' fundamental to our very existence and survival." Loving v. Virginia (1967),
{¶ 13} Additionally, this Court agrees with Goeller's argument that his relationship by affinity with Rondi is not terminated by his remarriage or her death. In interpreting Ohio's descent and distribution statute, the Ohio Supreme Court held as follows:
"There has not been, nor certainly can there be, any question as to the kinship between an illegitimate child and his mother. And the subsequent marriage of that mother creates an affinity between her kindred and the man she marries. Is that affinity terminated by the happenstance that she predeceases her husband? We think such a result is not required either by our statute or by the weight of authority in this country." (Internal citations omitted.) Kest v. Lewis (1959),
Accordingly, Rondi's death did not serve to sever Goeller's relationship by affinity with her.
{¶ 14} Thus, this Court must consider whether his remarriage served to sever his relationship with Rondi. Under the statute at issue, we find that the legislature did not intend such a result. Initially, we note that by its plain language, R.C.
{¶ 15} Additionally, in contrast to the limited definition used by the trial court, other courts have found that the term "widow" can survive despite a remarriage. See In re Waters'Estate (1951), 63 Ohio Law Abs. 34. In so finding, the court noted that the legislature "used the word `widow' as being descriptive of, and the means of identifying, a certain individual woman who has lost her husband by death, rather then as referring to the unmarried status of such individual." See id. We agree with the rationale espoused by the Third Circuit as follows:
"While it is true that the ordinary dictionary definition of `widow' is an unmarried woman whose husband is dead, the legal consequences arising from the use of a term in legislation are not necessarily determined by its dictionary definition. The term `widow', as used in statutes, has been held repeatedly to refer to the person of the surviving spouse rather than to marital state or condition." (Footnote omitted.) Trathen v. UnitedStates (C.A.3, 1952),
Furthermore, numerous state court cases have found that if the legislature had intended that remarriage should eliminate a statutory right, it could have so specified in that statute. See, e.g., Henderson Police Fireman Pension Bd. v. Riley (Ky., 1984),
{¶ 16} In R.C.
{¶ 17} In conclusion, we note that it is unclear from the record why Lorence has so adamantly resisted granting Goeller visitation rights. For the first eleven years of his life, Bryan resided with Goeller. It was Lorence who intruded upon Goeller's family unit, asserting that he had fathered a child with Goeller's then wife. Despite that intrusion, Goeller cooperated with Lorence and even entered into a shared parenting plan granting Lorence visitation rights, albeit a plan that was found to be void. This Court cannot fathom how it could be in Bryan's best interest to have his ties with the man who raised him from birth so abruptly severed. However, as that record has not been developed in the trial court, we will not make such a determination herein.
{¶ 18} Goeller's sole assignment of error has merit.
Judgment reversed, and cause remanded.
The Court finds that there were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common Pleas, County of Lorain, State of Ohio, to carry this judgment into execution. A certified copy of this journal entry shall constitute the mandate, pursuant to App.R. 27.
Immediately upon the filing hereof, this document shall constitute the journal entry of judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the period for review shall begin to run. App.R. 22(E). The Clerk of the Court of Appeals is instructed to mail a notice of entry of this judgment to the parties and to make a notation of the mailing in the docket, pursuant to App.R. 30.
Costs taxed to Appellee.
Slaby, P.J. Carr, J. concur.