IN RE: E.G., ET AL. MINOR CHILDREN [Appeal by S.F., Mother]
No. 98652
Cоurt of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
February 14, 2013
[Cite as In re E.G., 2013-Ohio-495.]
BEFORE: Boyle, P.J., E.A. Gallagher, J., and Kilbane, J.
JUDGMENT: REVERSED AND REMANDED. Civil Appeal from the Cuyahoga County Court of Common Pleas Juvenile Division Case Nos. PR 12703234 and PR 12703235.
Robert J. Dubyak
Joseph T. Gorman, Jr.
Anthony J. Trzaska
Dubyak Connick Sammon
Thompson & Bloom, LLC
3401 Enterprise Parkway, Suite 205
Cleveland, Ohio 44122-7341
ATTORNEY FOR APPELLEE
Brian C. Nelson
9 Corporation Center
Broadview Heights, Ohio 44147
{¶1} Plaintiff-appellant, S.F. (“mother“), appeals from a judgment of the Cuyahoga County Court of Common Pleas, Juvenile Division, denying her motion to reconsider its dismissal of her complaint to establish parent-child relationship. She raises two assignments of error for our review:
[1.] The trial court erred and abused its discretion in making its decision on jurisdiction under the Uniform Child Custody Jurisdiction and Enforcement Act [“UCCJEA“],
R.C. 3127.01 et seq. , without a prior evidentiary hearing and a full еxplanation of the disputed facts essential to its determination.[2.] The trial court erred and abused its discretion in dismissing Plaintiff‘s Complaint for lack of subject matter jurisdiction despite evidence establishing that Ohio is, was, and always has been the home state of Plaintiff and the children.
{¶2} Finding merit to her appeal, we reverse the judgment of the trial court and remand.
Procedural History and Factual Background
{¶3} Mother filed a complaint to establish parent-child relationship in the Cuyahoga County Juvenile Court on February 27, 2012. In the complaint, mother asserted that she had two minor children, one born in 2007 and one born in 2009. Mother stated that although paternity had never been established, N.G. (“father“) was the natural father of the two minor children. Mother further stated that she and father were never married. In her UCCJEA affidavit, mother averred that father lived in Virginia, but that the children had livеd with her in Cleveland, Ohio since their respective births.
{¶5} On May 25, 2012, the Cuyahoga County Juvenile Court judge held a hearing with all parties and counsel present. The judge indicated that she had spoken to the Virginia judge presiding over father‘s custody action. The judge said that she learned from speaking with the Virginia judge that father had acknowledged paternity in the Virginia action. The judge informed the parties that based on the pleadings filed by father in Virginia, she believed that mother and father had a leasehold property in Virginia. The judge also indicated that the Virginia judge believed that it would be in the best interest of the children for the case to be decided in Virginia because the case would be finalized before the children began school in the fall, whereas in Ohio, the court indicated that it would take much longer to finalize the case. The judge then sua sponte dismissed mother‘s custоdy complaint “in accordance with the UCCJEA” for the matter to proceed in Virginia.
{¶6} In its judgment entry, the trial court stated:
Pursuant to
Civ.R. 12(B)(1) and in consultation with the assigned judge from the state of Virginia, and review of all pleadings before each court, the court finds that there is reasonable cause to believе that the child resided in the state of Virginia more than six months prior to the commencement of the action herein; that the alleged father acknowledges paternity before the Virginia court; and that based on the significant contacts that the child has in the state of Virginia, the court can reasonably infer that the Virginia court would be a court of competent jurisdiction.
Therefore, it is the decision of the court, having reviewed this matter with the jurist of the other court, that the state of Virginia is the home state of the child; and that this mаtter may proceed expediently before the Virginia court, this court finds that said expediency would serve the best interest of the child, child‘s sibling, and the family.
{¶7} Subsequently, the trial court dismissed mother‘s complaint.
{¶8} Mother moved the trial court to reconsider its dismissal and requested an evidentiary hearing. The trial court denied mother‘s motion. Mother appeals the denial of her motion and the dismissal of her complaint.
Jurisdiction
{¶9} Normally, a trial court‘s decision regarding child custody issues are reviewed by an appellate court under the abusе of discretion standard. Baxter v. Baxter, 9th Dist. No. 10CA009927, 2011-Ohio-4034, ¶ 6, quoting Miller v. Miller, 37 Ohio St.3d 71, 74, 523 N.E.2d 846 (1988). An appellate court, however, reviews issues relating to subject matter jurisdiction de novo, as such a determination is a matter of law. In re K.R.J., 12th Dist. No. CA2010-01-012, 2010-Ohio-3953, ¶ 16.
{¶10}
{¶11} The UCCJEA, as codified in Ohio, provides four types of initial child-custody jurisdiction: (1) home-state jurisdiction, (2) significant-connection jurisdiction, (3) jurisdiction because of declination оf jurisdiction, and (4) default jurisdiction.
{¶12} Specifically,
{¶13}
state in which a child lived with a parent * * * for at least six consecutivе months immediately preceding the commencement of a child custody proceeding * * *. A period of temporary absence of any of them is counted as part of the six-month or other period.
{¶14} Although
{¶15}
Analysis
{¶16} Mother argues that Ohio is, and always has been, the children‘s home state. She maintains that they were born at Lakewood Hospital and hаve lived with her in Cleveland, at the same address, since their respective births. She points to several facts establishing that her residence has always been in Ohio, including the fact that she has an Ohio driver‘s license, her automobile has an Ohio title, she files Ohio and federal taxes as an Ohio resident, and she owns a tax-preparation business with several locations throughout the city of Cleveland, as well as a restaurant franchise in Cleveland.
{¶18} Conversely, father asserts in his motion to dismiss mother‘s Ohio complaint, that up until mother filed her complaint in Ohio, he and mother shared custody of the children and lived in both Virginia and Ohio. Father states that he and mother had an agreement that they would live primarily in Virginia once their oldest child reached the age of three and entered preschool. Prior to that, father avers that he and mother lived in Virginia during the summer and in Ohio during tax season. According to father, once the oldest child attаined the age of three, the child entered preschool in Virginia, as they had planned. Father states that the children lived in Virginia from April 8, 2010 to December 23, 2010. He states that the children moved to Ohio on December 24, 2010 until April 23, 2011. He then claims that they returned to Virginia on April 24, 2011, wherе they lived until November 1, 2011, when mother brought them back to Ohio.
{¶19} According to father, when mother filed her custody complaint in Ohio, the children had only lived in Ohio for four months. Prior to that, they had lived in Virginia for over six consecutive months. Thus, father maintains that Virginia is the children‘s home state under the UCCJEA.
{¶21} If the trial court determines, after holding an evidentiary hearing, that the children did, in fact, live in Virginia from April 24, 2011 to November 1, 2011, as father claims they did, then the Cuyahoga County Juvenile Court lacks jurisdiction to determine the action because Virginia would be the children‘s “home state” under the UCCJEA. See Rosen, 117 Ohio St.3d 241, 2008-Ohio-853, 883 N.E.2d 420.
{¶22} If, however, the triаl court determines that the children lived in Ohio — with only “temporary absences” from home — then Ohio is the children‘s “home state” for purposes of jurisdiction under the UCCJEA. We recognize that the statute does not define “temporary absence,” but common sense dictatеs that the plain meaning of “temporary absence” is leaving the state for short, limited time periods.1 If the children left Ohio for six months or more — half of the year — that does not equate to a short, limited absence.
{¶24} We further note that the trial court here improperly relied on its discussion with the Virginia judgе regarding what would be in the children‘s best interest. As the Ohio Supreme Court explained in Rosen, the UCCJEA “eliminates a determination of ‘best interests’ of a child from the original jurisdictional inquiry.” Id. at ¶ 21. There is also no indication that the trial court recorded its conversation with the Virginia judge, as requirеd under
{¶25} Mother‘s two assignments of error are sustained.
{¶26} Judgment reversed. This case is remanded for the trial court to hold an evidentiary hearing to determine whether Ohio or Virginia is the “home state” of the children.
It is ordered that appellаnt recover from appellee costs herein taxed.
The court finds there were reasonable grounds for this appeal.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
MARY J. BOYLE, PRESIDING JUDGE
EILEEN A. GALLAGHER, J., and MARY EILEEN KILBANE, J., CONCUR