458 N.E.2d 1292 | Ohio Ct. App. | 1983
Defendant-mother, Patricia Minton McManus, appeals from an order of the Summit County Juvenile Court granting custody of the parties' daughter, Wendy Minton, to plaintiff-father, Steven Paul Minton. We affirm.
After the divorce was granted, Patricia moved back to the United States, was remarried to a man named McManus, and settled in San Diego, California. Minton by this time had remarried and settled in Ohio.
In the summer of 1980, Wendy visited her father for six weeks. In June 1981, Wendy again came to Ohio. However, at the end of the summer, Wendy remained rather than returning to California. Her father enrolled her in school. There is some dispute as to when Patricia Minton McManus first demanded the return of Wendy, but it is undisputed that a demand was made in December 1981. Minton refused to return Wendy and commenced this action for custody on January 26, 1982.
The court conducted hearings, talked privately with the child, and received investigative reports on the homes of both parents. The court reasoned that some state in the United States should take jurisdiction and, therefore, elected to invoke the jurisdiction of the court in the best interest of the child under R.C.
"III. Pursuant to the due process and equal protection clauses of Section 1 of the
As much of McManus' case hinges on the trial court's refusal to recognize the Scottish custody decree, we will consider these two assignments of error first.
McManus maintains that R.C.
R.C.
"The courts of this state shall recognize and enforce an initial or modification decree of a court of another state if that court assumed jurisdiction under statutory provisions substantially in accordance with sections
She argues that the term "state" in this section should be construed to include foreign nations. Minton, on the other hand, contends the adoption of this construction would render meaningless and ineffective Section 23 of the U.C.C.J.A. which provides for recognition of orders of foreign nations. See Annotation (1979), 96 A.L.R. 3d 968, 974. When the Ohio General Assembly adopted the U.C.C.J.A., as R.C.
McManus contends further that by applying R.C.
"A. The trial court improperly utilized Section
"B. Where California had maximum contact with the child, the trial court should have declined to exercise jurisdiction on the ground that Ohio is an `inconvenient forum' pursuant to Section
"C. Pursuant to Section
The exercise of jurisdiction by the juvenile court over child custody cases is determined by R.C.
"(A) No court of this state having jurisdiction to determine the custody of a child shall exercise that jurisdiction unless one of the following applies:
"(1) This state is the home state of the child at the time of commencement of the proceeding, or this state had been the child's home state within six months before commencement of the proceeding and the child is absent from this state because of his removal or retention by a person claiming his custody or for other reasons, and a parent or person acting as parent continues to live in this state;
"(2) It is in the best interest of the child that a court of this state assumes jurisdiction because the child and his parents, or the child and at least one contestant, have a significant connection with this state, and there is available in this state substantial evidence concerning the child's present or future care, protection, training, and personal relationships; * * *."
The court based its jurisdiction on paragraph (2) above. We find the record supports the trial court's finding of jurisdiction under R.C.
McManus claims that California is the "home state" of Wendy, thus, requiring Ohio to yield to the jurisdiction of California. "Home state" is defined as:
"* * * the state in which the child, immediately preceeding the time involved, lived with his parents, a parent, or a person acting as parent, for at least six consecutive months, and in the case of a child less than six months old the state in which the child lived from birth with any of the persons mentioned. Periods of temporary absence of any of the named persons are counted as part of the six-month or other period." R.C.
However, in this case Wendy had been living in Ohio for nearly eight months immediately prior to the filing of this action. We find that this fits the statutory definition.
McManus further argues that Ohio constitutes an inconvenient forum, citing as support In re Wonderly (1981),
Finally, under this assignment of error, McManus argues that the court below should not have exercised jurisdiction as Minton had wrongfully retained Wendy. Even if the court had found Wendy to have been wrongfully retained, such a finding would bar an exercise of jurisdiction only in an action to modify a custody decree of another state. R.C.
Judgments such as this, which are supported by some competent, credible evidence, will not be overruled on appeal *168
as being against the manifest weight of the evidence. C.E. MorrisCo. v. Foley Construction Co. (1978),
McManus argues that she was deprived of her right of cross-examination. Specifically, she claims that the court denied her request to cross-examine Minton.
The proceedings below covered several months and two hearings in court. During the first hearing on February 11, 1982, both parties testified and were subject to cross-examination. Furthermore, prior to the second hearing in August, 1982, counsel for McManus deposed Minton as on cross-examination. Thus, McManus was afforded two opportunities to cross-examine Minton.
At the second hearing on August 24, 1982, the court heard arguments from both sides and then rendered its decision. This decision was based on the evidence adduced at the February hearing, depositions taken by McManus (but not including the Minton deposition which was not timely filed with the court), investigations of both homes and a talk with Wendy. After the court rendered its decision, counsel for McManus objected that the court did not take further evidence. The court then inquired as to what further evidence McManus wished to present, to which counsel responded that she wished to cross-examine Minton. The court then disallowed this request as McManus had had two prior opportunities to cross-examine Minton. We find no error in this ruling.
McManus claims that the court erred in not ordering Minton to pay her travel expenses in order to enable her to attend the August 24, 1982 hearing. McManus relies on R.C.
"If a party to the proceeding who is outside this state is directed to appear under division (B) of this section or desires to appear personally before the court with or without the child, the court may require another party to pay to the clerk of the court travel and other necessary expenses for the appearance of the party and the child who are outside this state, if this is just and proper under the circumstances."
This language specifically vests the court with broad discretion over whether to order the payment of another party's expenses. Clearly, the trial court is in a much better position than a court of appeals to determine the relative financial positions of the parties and make a just ruling. There is evidentiary support for the court's decision and we do not find an abuse of discretion.
We overrule all the assignments of error. The judgment is affirmed.
Judgment affirmed.
BAIRD and GEORGE, JJ., concur. *169