Mulatu v. GirshaMulatu v. Girsha
Kelly A. Malone, Legal Aid Society of Greater Cincinnati, 215 East Ninth Street, Suite 200, Cincinnati, Ohio 45202, for respondent-appellant
OPINION
PIPER, J.
{¶1} Respondent-appellant, Hiwot Girsha (Mother), appeals the decision of the Clermont County Court of Common Pleas, Domestic Relations Division, dismissing for lack of jurisdiction her motion for modification of parenting orders on a foreign decree.1
Statement of Facts
{¶2} Mother was born in Ethiopia and when 19, met 37-year-old Tesfaye Mulatu (Father), who was also born in Ethiopia. The two began an intimate relationship, and Mother became pregnant with the couple‘s first child. Father lived in Sweden and had citizenship there, and also worked in the United States, going back and forth between the two countries. Mother moved to Sweden in 2005 to be near Father, though the two did not consistently live with each other. Mother then had a second child with Father in January 2007, and Mother and Father married in Sweden in August 2007. Mother, Father, and their two children moved to the United States in order for Father to seek work. Father became employed with Caterpillar in Indianapolis, Indiana, but later moved to Milford, Ohio in January 2010 to seek work with Siemens once his contract with Caterpillar expired. At the time the family moved to Ohio, Mother was pregnant with the couple‘s third child.
{¶3} According to Father, he and Mother traveled to Sweden in March 2009, and during that time applied for a divorce together. According to Mother, Father informed her in 2009 that he was ill and needed surgery and that he wanted to have the surgery in Sweden where he could obtain free medical attention. Mother stated that when they arrived in Sweden, she and the children stayed in the hotel room while Father went out. Mother denies ever seeking or agreeing to a divorce while in Sweden, or at any other time. The family returned to the United States in early April 2009.
{¶4} Father stated that in September 2009, he and Mother jointly prepared a letter to the Stockholm District Court in an attempt to complete the divorce, which Mother allegedly signed. Mother denies any knowledge of the divorce proceedings, and indicated
{¶5} In December 2009, the parties traveled to Ethiopia to visit Mother‘s parents. Mother stated that she and the children stayed with her family because Father stated that he was going to visit his mother and would return in a day or two. It is undisputed that Father took the children‘s passports, left Ethiopia, and did not return to take Mother and the children home to Ohio. Mother returned to the United States in January 2010 in order to maintain her residency status and work permit. When Mother returned from Ethiopia she attempted to bring her children, but she was unable because the children did not have their passports. Mother therefore returned alone and lived in Maryland with a relative while working at a CVS store in order to send money home to her parents to help provide for the children.
{¶6} In March 2010, Father filed a petition in the Clermont County Court of Common Pleas, Domestic Relations Division, to register the foreign divorce decree. In April 2010, Father also sought a civil protection order in the same court, in which he claimed that Mother called him on the phone and threatened him. Father swore under oath in his parenting affidavit that Mother was his former spouse and that their three children were residing in Clermont County with him and had been since January 2009. Despite Father‘s sworn statement otherwise, the children had not left Ethiopia. Mother filed a counterclaim, asking that the Swedish order be modified and that she receive custody of the children. Soon thereafter, the magistrate ordered that the children remain
{¶7} Mother entered into a three-month lease for an apartment in Clermont County on February 28, 2011, believing that the Clermont County courts had jurisdiction to modify the Swedish parenting order. In April 2011, the magistrate issued a decision finding that it had personal jurisdiction over the parties as well as subject matter jurisdiction over the issues. The magistrate found that while Father maintained a mailing address in Indianapolis (attached to his former job with Caterpillar) and Sweden, his only residence presented to the court since the inception of his petition to register a foreign decree and subsequent motions was in Clermont County.
{¶8} The magistrate accepted and registered the Swedish divorce decree and parenting orders, and found that Sweden should be treated as a state of the United States for the purpose of applying sections of
{¶9} After Father filed objections to the magistrate‘s decision, the trial court overruled the objections and adopted the magistrate‘s findings and orders. In doing so, the trial court specifically found that the Clermont County courts properly held jurisdiction over the proceedings. On April 29, 2011, the trial court issued an order finding Father in contempt for failing to produce the children‘s passports, and for the first time ordered that Mother was permitted to apply for replacement passports to move the children from Ethiopia to Clermont County. Mother entered into a one-year lease on June 1, 2011 for a
{¶10} Father filed a motion to set aside and dismiss the contempt finding, claiming that the trial court lacked jurisdiction to order him to present the passports and that the court lacked jurisdiction to find him in contempt. On June 7, 2011, the trial court revisited the jurisdictional issue and found that Father was no longer employed in Ohio and that Mother had not presented sufficient evidence to establish Father‘s residency in Ohio. The trial court then set aside its previous contempt finding, and dismissed Mother‘s motion for modification of the Swedish parenting order for lack of jurisdiction. The trial court‘s decision also dismissed as moot all other motions pending at the time of its decision. Mother now appeals that decision, raising the following assignment of error.
{¶11} “THE TRIAL COURT ERRED IN DISMISSING RESPONDENT-APPELLANT‘S CUSTODY CLAIM FOR LACK OF JURISDICTION.”
Uniform Child Custody Jurisdiction and Enforcement Act
{¶12} Before we begin our analysis of the case at bar, background information on the Uniform Child Custody Jurisdiction and Enforcement Act may prove useful in understanding the legal concepts necessary to analyze this case.
{¶13} Because resolution of domestic relations issues is better left within the control of the individual states, the states relate to each other as if they were independent countries. Spector, International Child Custody Jurisdiction and the Uniform Child Custody Jurisdiction and Enforcement Act (2000), 33 N.Y.U. J. Intl. L. & Pol. 251.2 With each state treated as an independent legal entity, the courts needed a method to
{¶14} The main provisions of the Uniform Act include: determining when states can exercise jurisdiction over a child; requiring states to enforce custody determinations; forbidding states from modifying custody determinations made by other states unless the other state no longer had jurisdiction under the Uniform Act; requiring states to decline jurisdiction if another state had assumed jurisdiction; and permitting states to decline jurisdiction if another state would offer a more convenient forum. These principles also applied to international courts. The most significant change from the UCCJA to the current law was the granting of jurisdictional priority and exclusive continuing jurisdiction to the home state.
{¶15} The Uniform Act was adopted by the Ohio General Assembly in 2004 and became effective in 2005, replacing the UCCJA. In addition to providing consistent results, the Uniform Act was also passed in order to guarantee that parents and children had a forum in which to resolve their disputes and to prevent forum shopping or “jurisdictional competition.” Rosen v. Celebrezze, 117 Ohio St.3d 241, 2008-Ohio-853,
Jurisdiction Created by Statute
{¶16} Ohio‘s Uniform Act “provides four types of initial child-custody jurisdiction: home-state jurisdiction, significant-connection jurisdiction, jurisdiction because of declination of jurisdiction, and default jurisdiction.
{¶17} “(A) Except as otherwise provided in section
{¶18} “This state is the home state of the child on the date of the commencement of the proceeding, or was the home state of the child within six months before the commencement of the proceeding and the child is absent from this state but a parent or person acting as a parent continues to live in this state.
{¶19} “A court of another state does not have jurisdiction under division (A)(1) of this section or a court of the home state of the child has declined to exercise jurisdiction on the basis that this state is the more appropriate forum under section
{¶20} “All courts having jurisdiction under division (A)(1) or (2) of this section have declined to exercise jurisdiction on the ground that a court of this state is the more appropriate forum to determine the custody of the child under section
{¶21} “No court of any other state would have jurisdiction under the criteria specified in division (A)(1), (2), or (3) of this section.
{¶22} “(B) Division (A) of this section is the exclusive jurisdictional basis for making a child custody determination by a court of this state.
{¶23} “(C) Physical presence of, or personal jurisdiction over, a party or a child is not necessary or sufficient to make a child custody determination.”
{¶24}
{¶25} At the most recent hearing conducted in June 2011, the trial court determined that it lacked subject matter jurisdiction over the custody issue because the parties and their children no longer resided in Clermont County. The trial court determined that “there is no longer any significant connection by the parties with Ohio required under
{¶26} Normally, a trial court‘s decisions regarding domestic relations issues are reviewed by an appellate court under the abuse of discretion standard. Blakemore v. Blakemore (1983), 5 Ohio St.3d 217, 219. However, an appellate court reviews de novo the decision of the trial court regarding the existence of subject matter jurisdiction, because such a determination is a matter of law. In re K.R.J., Clermont App. No. CA2010-01-012, 2010-Ohio-3953.
Clermont County as a Proper Forum
{¶27} Despite the trial court‘s finding that it lacked proper subject matter jurisdiction to issue a decision on the custody issue, the Clermont County Court of Common Pleas remains a proper forum to decide the issues that were presented to the court. Even if the parties are not currently residing in Ohio, and as aptly pointed out by the magistrate‘s decision, Clermont County remains a proper forum under
{¶28}
{¶29} According to
{¶30} While the definition of “home state” in
{¶31} The child custody proceeding that would trigger the six-month time frame was Mother‘s counterclaim for a modification of the allocation of parental rights on August 23, 2010. However, the children were not living in Ohio as of that date, or at any time within the previous six months. Therefore, the trial court did not have subject matter jurisdiction pursuant to
{¶32} Pursuant to
{¶33} No other court has jurisdiction pursuant to
{¶34} Regarding the other two requirements of
{¶35} We also note that Father‘s act of taking the children‘s passport is the initial reason the children were stranded in Ethiopia and could not return to their residence in Ohio. Father took Mother and the children to Ethiopia under the guise of visiting Mother‘s parents, and then left them there without legal means of returning to Clermont County. Any break in the parties’ significant connection with Ohio was predicated by Father‘s refusal to return the children‘s passports so that they could return to Ohio. Father‘s misconduct resulted in his eventual finding of contempt by the Clermont County court.
{¶36} It is informative to note that
{¶37} In fairness to Mother, we must also note that she has been unable to move the children from Ethiopia during the pendency of these proceedings. The magistrate‘s order granting her temporary custody was contested when Father filed objections, and the magistrate‘s order was never finalized. The trial court did not grant Mother permission to apply for replacement passports to return the children from Ethiopia until its order dated April 29, 2011. Until the April 29, 2011 order, Mother had been prohibited in returning the children from Ethiopia. While Mother was in the midst of making arrangements to bring her children back, the trial court dismissed the case for lack of jurisdiction on June 9, 2011, only 41 days after its April 29, 2011 entry. Any attempts Mother made to procure replacement passports and arrange for her children‘s return was thwarted by the trial court‘s June 9, 2011 entry setting aside its prior orders and dismissing the case. Mother‘s lack of physical custody and care of her children has been due to obstacles not of her making.
{¶38} The Clermont County court still has access to substantial evidence concerning the children‘s care, protection, training and personal relationships, as they lived in Ohio for a year before visiting Ethiopia, sharing a house with Mother and Father,
{¶39} The trial court‘s decision states that it found subject matter jurisdiction lacking because neither parent is a resident of Ohio. The trial court reached that decision because “the only evidence submitted by Mother regarding Father‘s residency was a letter dated February 28, 2011 from Siemens stating that their records ‘indicate the current job assignment is Siemen‘s PLM‘s Cincinnati office.‘” The trial court concluded that the letter, at best, established that Father was an employee as of January 3, 2011, but was not otherwise sufficient to prove that Father worked or lived in Ohio since that date. Father‘s continued employment within Clermont County, while not conclusive of his residency, certainly has significance.
{¶40} Despite the trial court‘s findings, the record reveals the court did not have any evidence properly before it that Father did not reside in Clermont County. All of Father‘s initial filings indicated that he lived in Clermont County, as did his testimony at the hearings he attended. As of April 2010, Father‘s motions asserted that he lived in Clermont County, and even falsely purported that the children lived with him in Ohio. Father‘s residency claim did not change until January 2011. One simply cannot magically dissolve subject matter jurisdiction by declining to attend further hearings and/or sending a representative to say “I moved.”
{¶41} While Father did not appear at the hearing on his objections, Father submitted affidavits in which he first claimed that he lived in Indiana, and a later affidavit that claimed he had moved back to Sweden. Other Courts have recognized in a variety of legal proceedings that self-serving affidavits are to be given little, if any, weight. See Cyr v. Cyr, Cuyahoga App. No. 84255, 2005-Ohio-504; Schroeder v. Tennill (Aug. 27, 1990), Stark App. No. CA-8123 (limiting weight even where
{¶42} Moreover, these affidavits were nothing more than inadmissible hearsay of Father, who was not subject to cross-examination. “The judgment of the trial court must be based upon the evidence actually adduced from the witness stand, from exhibits admitted during trial or from any stipulations agreed upon by counsel. An affidavit is not subject to cross-examination and, standing alone, is inadmissible at trial. The fact an affidavit has been filed in the record does not mean it is admitted at trial.” Midstate Educators Credit Union, Inc. v. Werner, 175 Ohio App.3d 288, 2008-Ohio-641, ¶35. (Internal citations omitted.) Father‘s trial tactics cannot be used in an attempt to circumvent jurisdiction. The comprehensive purpose of the Uniform Act, to provide a forum for child custody issues, cannot be defeated by strategic maneuvers.
{¶43} Importantly, the magistrate previously found Father‘s statements regarding his residence “to be not credible.” We recognize that the trial court was in the position to disregard the magistrate‘s credibility determination upon its review of the issue. Yet, the record does not support the trial court‘s subsequent finding that jurisdiction lapsed because the parties did not reside in Ohio at the time of the hearing and that there was no longer any significant connection.
{¶44} Regardless of Father‘s residency, subject matter jurisdiction is evoked at the time of the child custody proceeding, and cannot be lost while the motion remains pending unless statutorily relinquished to another jurisdiction exercising proper proceedings. According to
{¶45} A de novo review reveals
{¶46} We must note that according to
{¶47} Even if the provisions of
{¶48} As previously discussed, no other state/foreign country has jurisdiction under (A)(1) because neither parent currently lives with the child in a home state or has lived with the children for the previous six-months. No other state or country has the significant connections and access to substantial evidence as is required by (A)(2), except for Ohio where the parties lived together as a family for approximately a year before visiting Ethiopia. (A)(3) is also inapplicable because the record does not indicate that another court which would have had jurisdiction under (A)(2) has declined to exercise jurisdiction because Ohio is the more appropriate forum to determine the custody issue.3
{¶49} Moreover, the record is lacking information that Ethiopia has a reciprocal code in place that provides similar procedural safeguards and protections as the Uniform Act. Further, the record lacks any indication that another forum believes itself to have jurisdiction over the case. When there is more than one forum that may exercise jurisdiction, the Uniform Act provides a method wherein the forums communicate with each other and offer reciprocity based on their own version of the Uniform Act. See
{¶50} The very purpose of the Uniform Act is highlighted by the facts herein. If Ohio does not exercise its proper jurisdiction over the custody issue, Mother and Father‘s children will be forced to continue to live in a state of uncertainty. The Uniform Act was promulgated so that every family would have a forum to secure their day in court. The Uniform Act, and thus Ohio‘s statutes, ensure that legal proceedings involving children will occur when necessary despite parents being separated and/or divorced and living in various places around the country or the world. According to the legal principles discussed above, the Clermont County Court of Common Pleas, Domestic Relations Division, has proper subject matter jurisdiction to address the custody issues raised by Mother.
{¶51} Mother‘s single assignment of error is sustained. The trial court‘s finding of contempt is reinstated, as well as interim parenting orders, and all motions pending at the time of the trial court‘s finding that it lacked subject matter jurisdiction. The cause herein is remanded for further proceedings consistent with this opinion.
{¶52} Judgment reversed and cause remanded.
HENDRICKSON, P.J., and HILDEBRANDT, J., concur.
Hildebrandt, J., of the First Appellate District, sitting by assignment of the Chief Justice, pursuant to Section 5(A)(3), Article IV of the Ohio Constitution.