In re H.P.
RELEASED AND JOURNALIZED: April 2, 2015
Andrew J. Simon
James L. Simon
Law Office of Andrew J. Simon
6000 Freedom Square Drive
Freedom Square II - Suite 165
Independence, Ohio 44131
ATTORNEYS FOR APPELLEES
For C.J.F.S.-O.C.S.S.
Timothy J. McGinty
Cuyahoga County Prosecutor
BY: Joseph C. Young
Assistant Prosecuting Attorney
Cuyahoga Jobs & Family Services
P.O. Box 93894
Cleveland, Ohio 44101-5984
BY: Timothy W. Clary
Charles Richley Raley, Jr.
Assistant Prosecuting Attorneys
9300 Quincy Avenue
Fourth Floor
Cleveland, Ohio 44106
For M.P.
Joseph J. Lanter
815 Superior Avenue
Suite 1915
Cleveland, Ohio 44114
{¶1} Mother-appellant, N.P. (“Mother“), appeals the judgment of the Cuyahoga County Court of Common Pleas, Juvenile Division, denying her motion to vacate the August 14, 2013 child custody order naming father-appellee, M.P. (“Father“),1 sole legal custodian of the parties’ minor children. After a careful review of the record, we affirm the judgment of the juvenile court.
I. Statement of the Case and Facts
{¶2} Mother and Father were married on March 22, 2006, in San Diego, California. During their marriage, the parties had two children: H.P., born April 3, 2007, and A.P., born May 8, 2008.
{¶3} In May 2012, the parties began to experience marital difficulties, and Mother and the minor children temporarily moved to North Olmsted, Ohio, to reside with N.P.‘s mother. Father remained in California.
{¶4} On November 30, 2012, Mother and the children moved back to California so that Mother and Father could attempt a reunification. After approximately seven months, the parties’ reunification proved unsuccessful, and Mother made arrangements to move back to Ohio with the children. Contemporaneously, Father also made arrangements to move to Ohio to live in a separate residence. Both parties and the children arrived in Ohio on June 30, 2013.
{¶6} On December 6, 2013, Mother retained counsel and filed a motion to modify the custody order. On December 12, 2013, the trial court determined that no change in circumstances existed to warrant a modification and dismissed Mother‘s motion to modify without prejudice.
{¶7} On January 30, 2014, Mother filed a complaint for divorce against Father in the Domestic Relations Division of the Cuyahoga County Court of Common Pleas. On February 20, 2014, appellee, Cuyahoga Job and Family Services (“CJFS“), filed a motion to intervene, which was granted.
{¶8} On March 15, 2014, Mother filed a motion to vacate the custody order entered on August 14, 2013. In her motion, Mother asserted that the juvenile division did not have jurisdiction to make a custody determination between married parents. Mother contended that the domestic relations division had exclusive jurisdiction over the matter. Mother further argued that the juvenile court did not have jurisdiction to make a custody determination because California remained the children‘s “home state” at the
{¶9} Mother now appeals from the trial court‘s July 25, 2014 order, raising two assignments of error for review:
- The trial court erred in failing to vacate its August 14, 2013 order. The order is void ab initio because the Cuyahoga County Juvenile Court does not have jurisdiction to make initial private custody determinations between married parents.
- The trial court erred in failing to vacate its August 14, 2013 order. At the time the underlying proceeding was commenced, California remained the “home state” of the children under the UCCJEA. As such the trial court lacked jurisdiction under the UCCJEA and its August 14, 2013 order is void ab initio.
II. Law and Analysis
A. Juvenile Court Jurisdiction
{¶10} In her first assignment of error, Mother argues that the trial court erred in failing to vacate its August 14, 2013 order because the juvenile court lacked jurisdiction to make initial custody determinations between married parties. We disagree.
{¶11} “The juvenile court possesses only the jurisdiction that the General Assembly has expressly conferred upon it.” See In re Gibson, 61 Ohio St.3d 168, 172-173, 573 N.E.2d 1074 (1991), citing
{¶12} In the case at bar, no proceedings between the parties were pending in the jurisdiction of another court at the time the child custody proceedings took place and concluded in the juvenile court. Therefore, although the parties were still married at the time, the juvenile court properly exercised exclusive original jurisdiction over the custody proceedings pursuant to
{¶13} Mother‘s first assignment of error is overruled.
B. Jurisdiction under the UCCJEA
{¶14} In her second assignment of error, Mother argues that the trial court erred in failing to vacate its August 14, 2013 order because the juvenile court lacked jurisdiction to enter a judgment under the Uniform Child Custody Jurisdiction and Enforcement Act (“UCCJEA“). Mother contends that California remained the “home state” of the children at the time the custody proceedings began in Ohio and, therefore, California had exclusive continuing jurisdiction.
{¶15} Normally, a trial court‘s decision regarding child custody issues are reviewed by an appellate court under the abuse of discretion standard. Baxter v. Baxter, 9th Dist. Lorain 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.
{¶17} 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 of jurisdiction, and (4) default jurisdiction.
{¶18} Specifically,
{¶19}
state in which a child lived with a parent * * * for at least six consecutive 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.
{¶20} Although
{¶21} In the case at bar, CJFS concedes that Ohio was not the home state of the children at the time the child custody proceedings were commenced. CJFS further concedes that there has not been a declination of jurisdiction in California. However, CJFS argues that, although California “was” the home state of the children, because both parents left California, Ohio would assume significant-connection or default jurisdiction under
{¶22} We recognize the considerable confusion that arises when attempting to resolve what the Ohio Supreme Court has called, “contradictory language,” between the definition of “home state” as provided under
{¶23} Applying our interpretation of
{¶24} Moreover, because we have determined that California does not have jurisdiction under
{¶25} Mother‘s second assignment of error is overruled.
III. Conclusion
{¶26} Pursuant to the plain language of
{¶27} Judgment affirmed.
It is ordered that appellee recover of said appellant 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 Cuyahoga County Common Pleas Court, Juvenile Division, to carry this judgment into execution.
FRANK D. CELEBREZZE, JR., ADMINISTRATIVE JUDGE
SEAN C. GALLAGHER, J., and
EILEEN A. GALLAGHER, J., CONCUR