590 N.E.2d 793 | Ohio Ct. App. | 1990
This is an appeal of the trial court's order approving a referee's report and recommendation granting a change of custody of minor children and an increase in the amount of child support. We affirm.
In 1984, David E. Kennedy, defendant-appellant, and Gloria Dianne Hostetler, plaintiff-appellee, were divorced in Wyoming. Kennedy was awarded custody of the couple's three minor children in the original decree. In 1986, a Wyoming court modified the 1984 decree, placing the minor children under the *301 joint custody of both parents. Later that year, Hostetler moved to Ohio with the children and Kennedy moved to South Dakota where he currently resides.
In 1988, Hostetler filed a motion pursuant to R.C.
Kennedy was served by certified mail and notified of a hearing that was held on December 28, 1988. Kennedy did not appear at the hearing and he was not represented by counsel. The trial court registered and adopted all of the orders of the Wyoming court on January 5, 1989 and noted that there was an arrearage of over $1,800 in past child support payments.
Hostetler, in March 1989, filed a motion in the Wayne County court to modify the custody and support order. She also sought an order citing Kennedy for contempt of court for failing to fulfill the terms of the Wyoming decree. Kennedy entered an appearance, through a motion to dismiss with a supporting affidavit, contesting the trial court's assertion of personal jurisdiction. On May 30, 1989, a hearing was held on both motions and the referee recommended that the motion to dismiss be overruled and a new hearing be scheduled for the custody and support modification motion.
Kennedy filed objections and the trial court remanded the case to the referee on July 13, 1989 for additional findings as to Kennedy's contacts with the state of Ohio to satisfy the "minimum contacts" rule.
The referee issued a second report and recommendation finding the requisite minimum contacts, which was subsequently approved by the trial court on August 2, 1989.
Kennedy filed an appeal to this court on September 20, 1989, Wayne App. No. 2521, which was dismissed for the lack of a final appealable order.
The referee conducted another hearing in October 1989, and issued a report recommending a change of custody to Hostetler, subject to visitation rights for Kennedy, an increase of child support payments to $200 per month per child plus poundage, and an additional $50 per month plus poundage on the support arrearage. Again, Kennedy filed his objections regarding the issue of personal jurisdiction which were overruled by the trial court in its order dated November 9, 1989.
Kennedy raises three assignments of error in this appeal.
"II. The trial court erred by holding that Ohio's long-arm jurisdiction applied to defendant-appellant."
These assignments of error are interrelated and will be considered together.
Appellant Kennedy argues that there were insufficient minimum contacts with Ohio for the trial court to assert in personam
jurisdiction over him. Kennedy further contends that the long-arm statutes and rules as found in Civ.R. 4.3 and R.C.
Decisions impinging on one's right to custody are inpersonam in nature. Pasqualone v. Pasqualone (1980),
Any standard that requires a determination of reasonableness like the minimum-contacts test is not susceptible of mechanical application; rather, the facts of each case must be weighed to determine whether the requisite affiliating circumstances are present. Kulko v. California Superior Court (1978),
R.C.
Further, appellant asserts that since he never lived in Ohio at any time prior to the divorce in Wyoming, Civ.R. 4.3(A)(8) does not apply and therefore the exercise of in personam jurisdiction was improper. We disagree. *303
R.C.
Following registration, the clerk must send a notice of the registration to the obligor. R.C.
From this, we recognize that R.C.
Ohio's long-arm statute, with Civ.R. 4.3(A), has been interpreted to extend the jurisdiction of Ohio courts to the limits of the Due Process Clause of the
In the instant case, the appellee filed a motion to register a Wyoming divorce decree with its subsequent modification in the Wayne County Court of Common Pleas pursuant to R.C.
First, the referee's report noted that the rights and liabilities that accompany joint custody would follow along with the residence of the children. Second, the failure to object or appeal from the initial registration order after notification was a contact with Ohio. Third, the appellant paid the Wayne County Bureau of Support child support payments. When these factors are viewed together as contact with Ohio, along with the fact that the appellant had failed to pay a substantial amount of past due child support payments, the trial court did not err in finding the requisite amount of minimum contacts necessary for the exercise of in personam jurisdiction. We agree with other jurisdictions in this state that sending support payments though the mail to Ohio is a sufficient contact within the meaning of International Shoe Co., supra. See Yarnick v.Stegkamper (Mar. 6, 1985), Lawrence App. No. 1707, unreported, 1985 WL 6574.
A review of the record in this case reveals that the trial court did not err in finding the requisite minimum contacts sufficient for the exercise of personal jurisdiction over the defendant. The failure to pay past support arrearages constitutes a tortious act or omission in this state for the purpose of in personam jurisdiction. Kennedy was subject to the trial court's jurisdiction under Ohio's long-arm statute and Civ.R. 4.3. Therefore, appellant's first and second assignments of error are overruled.
Appellant relies on two cases, Mahoney v. Mahoney (1986),
In the instant case, the appellant made an appearance to contest the trial court's exercise of in personam jurisdiction. He could have defended on the merits while still asserting a lack of jurisdiction over his person without *305
waiving that defense. See Ross v. Spiegel, Inc. (1977),
The trial court gave Kennedy an opportunity to challenge the admission of the bureau of support records. It was a tactical decision by the appellant to fail to appear and not challenge the admission of the support records by his physical absence from the hearing. When he failed to avail himself of the opportunity to challenge the alleged error in the admission of the support records and bring this objection to the trial court's attention, such a failure constitutes a waiver of that objection. State v. Williams (1977),
The judgment of the trial court is affirmed.
Judgment affirmed.
MAHONEY, J., concurs.
QUILLIN, P.J., concurs in judgment only.
EDWARD J. MAHONEY, J., retired, of the Ninth Appellate District, sitting by assignment.