IN THE MATTER OF: D.P.J. and P.R.J. Minor Children-Custody.
Case No. 13CA3532
IN THE COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT SCIOTO COUNTY
9-27-13
2013-Ohio-4469
ABELE, J.
DECISION AND JUDGMENT ENTRY
COUNSEL FOR APPELLANT: Michael H. Mearan, 547 South Sixth Street, Portsmouth, Ohio 45662
COUNSEL FOR APPELLEES: John R. Stevenson, 116 Poole Street, West Portsmouth, Ohio 45663
CIVIL APPEAL FROM COMMON PLEAS COURT, JUVENILE DIVISION
DATE JOURNALIZED: 9-27-13
ABELE, J.
{¶ 1} This is an appeal from a Scioto County Common Pleas Court, Juvenile Division, judgment that dismissed the
{¶ 2} Appellant raises the following assignment of error:
“THE TRIAL COURT ERRED IN DISMISSING APPELLANT‘S 60(B) MOTION TO SET ASIDE A CUSTODY ORDER FOR FAILURE TO FILE A U.C.C.J.E.A. AFFIDAVIT WITH THE 60(B) MOTION.”
{¶ 3} On July 27, 2011, appellees Teresa Lynn and David Allen Justice, the children‘s paternal grandparents, filed a petition for custody of D.P.J. and P.R.J. On that same date, appellant signed a “consent to custody” form. In it, she consented to give custody of the two children to the appellees. On July 28, 2011, the court
{¶ 4} On October 6, 2011, appellant filed a motion to modify the custody order along with a
{¶ 5} On July 26, 2012, appellant filed a
{¶ 6} On December 20, 2012, the trial court held a hearing regarding appellant‘s motion. During the hearing, appellees requested the court to dismiss appellant‘s motion due to her failure to file an
{¶ 7} Appellant countered that
{¶ 8} On January 18, 2013, the trial court granted appellees’ motion to dismiss and determined that appellant, by filing a motion for relief from the prior custody order, “was indeed initiating a custody proceeding.” The court concluded that “the parenting proceeding affidavit must be filed with the first pleading filed by each party in every parenting proceeding.” The court found that appellant failed to file an
{¶ 9} In her sole assignment of error, appellant argues that the trial court erred by dismissing her
{¶ 10} Appellees assert that the trial court properly dismissed appellant‘s
{¶ 11} “The jurisdiction of a court is that power conferred upon it by law, by which the court is authorized to hear, determine and render final judgment in an action, and to enforce its judgment by legal process.” Borkosky v. Mihailoff, 132 Ohio App.3d 508, 511, 725 N.E.2d 694 (3rd Dist. 1999), citing State ex rel. Ellis v. Bd. of Deputy State Supervisors of Cuyahoga Cty., 70 Ohio St. 341, 349, 71 N.E. 717 (1904). Subject-matter jurisdiction “is a ‘condition precedent to the court‘s ability to hear the case. If a court acts without jurisdiction, then any proclamation by that court is void.‘” Pratts v. Hurley, 102 Ohio St.3d 81, 2004-Ohio-1980, 806 N.E.2d 992, ¶ 11 (citations omitted). The existence of a trial court‘s jurisdiction is a question of law that we review de novo. State ex rel. ACCSEA v. Balch, 4th Dist. Athens No. 06CA26, 2007-Ohio-7168, ¶ 22; Yazdani-Isfehani v. Yazdani-Isfehani, 4th Dist. Athens No. 06CA6, 2006-Ohio-7105, ¶ 20.
{¶ 12}
(A) Each party in a child custody proceeding, in the party‘s first pleading or in an affidavit attached to that pleading, shall give information if reasonably ascertainable under oath as to the child‘s present address or whereabouts, the places where the child has lived within the last five years, and the name and present address of each person with whom the child has lived during that period. * * * *”
{¶ 13} Appellees contend that the filing of an
{¶ 14} In Pasqualone, the Ohio Supreme Court held:
“The requirement in R.C. [3127.23] that a parent bringing an action for custody inform the court at the outset of the proceedings of any knowledge he has of custody proceedings pending in other jurisdictions is a mandatory jurisdictional requirement of such an action.”1
Id. at paragraph one of the syllabus.
{¶ 15} The Ohio Supreme Court has, however, limited the application of Pasqualone. In re Complaint for Writ of Habeas Corpus for Goeller, 103 Ohio St.3d 427, 2004-Ohio-5579, 816 N.E.2d 594. In Goeller, the court explained that despite Pasqualone‘s language “it is well settled that ‘[t]he requirement that an affidavit be filed in a party‘s first pleading [under
{¶ 16} The Goeller court further explained that “the initial
{¶ 17} In the case at bar, we agree with appellant that the trial court erred to the extent that it believed that it lacked subject-matter jurisdiction to consider appellant‘s
{¶ 18} In the case at bar, one might argue that the “commencement” of “a proceeding” occurred when appellees originally requested custody of the children in July 2011 and, thus, that the “first pleading” was appellees’ petition for custody. One might also
{¶ 19} Nevertheless, until the General Assembly clarifies the meaning of the “first pleading” in a “child custody proceeding” as used in
required a custody affidavit). Accord Adkins v. Adkins, 4th Dist. No. Pickaway 89CA26 (May 15, 1991) (Stephenson, J., concurring); Dole v. Dole, 5th Dist. Holmes No. 10CA013, 2011-Ohio-1314 (concluding that party need not file updated child custody affidavit when filing motion to renew motion requesting court to reallocate parental rights when custody affidavit filed approximately eight months earlier); Metcalfe v. Metcalfe, 12th Dist. Clermont No. CA95-04-025 (Jan. 29, 1996) (concluding that new child custody affidavit need not be filed in modification proceeding when affidavit filed with divorce complaint); Matter of Frateschi, 7th Dist. Columbiana No. 92-C-58 (June 8, 1993) (“The custody affidavit was not necessary in this case since the motion for change of custody before the trial court was not the first pleading in this custody proceeding, rather, the trial court has had continuing jurisdiction over the matter for the past eight years.“). See Sumerford v. Sumerford, 10th Dist. Franklin Nos. 11AP-29 and 11AP-358, 2012-Ohio-1842, ¶ 16 (determining that the failure to file the custody affidavit with the initial filing was not fatal to the action when “the statutory requirements have been substantially satisfied and no prejudice has resulted” and when “the trial court was well aware of where and with whom the children have been living“); State ex rel. Browning v. Browning, 5th Dist. Muskingum Nos. CT-2011-CA-55 and CT2011-CA-60, 2012-Ohio-2158, ¶ 49 (declining to “blind[ly] adhere[] to the affidavit requirement” when
{¶ 20} In the case sub judice, we believe that the trial court imposed an interpretation of
{¶ 21} Additionally, we further point out that it is a “basic tenet of Ohio jurisprudence that cases should be determined on their merits and not on mere procedural technicalities.” Barksdale v. Van‘s Auto Sales, Inc., 38 Ohio St.3d 127, 128, 527 N.E.2d 284, 285 (Ohio, 1988). Thus, to the extent that appellant should have filed a custody affidavit with her
{¶ 22} Accordingly, based upon the foregoing reasons, we hereby sustain appellant‘s assignment of error and reverse and remand the
JUDGMENT REVERSED AND REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION.
Harsha, J., concurring:
{¶ 23} Based upon Goeller, supra, I join my colleagues in concluding that proceeding without custody affidavit would be an error in the exercise of jurisdiction that renders a resulting judgment voidable but not void ab initio. I also agree that the trial court should have allowed the appellant an opportunity to cure the omission prior to dismissing her motion. Accordingly, I concur in the court‘s judgment.
It is ordered that the judgment be reversed and the case remanded for further proceedings consistent with this opinion. Appellant shall recover of appellees the costs herein taxed.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the Scioto County Common Pleas Court, Juvenile Division, to carry this judgment into execution.
A certified copy of this entry shall constitute that mandate pursuant to
Harsha, J.: Concurs in Judgment & Opinion with Attached Opinion
Hendon*, J.: Concurs in Judgment & Opinion
For the Court
BY:
Peter B. Abele, Judge
NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a final judgment entry and the time period for further appeal commences from the date of filing with the clerk.
*Judge Sylvia Sieve Hendon, of the First Appellate District, sitting by assignment of the Ohio Supreme Court in the Fourth Appellate District.