PEGAN, APPELLANT, v. CRAWMER, APPELLEE.
No. 95-2569
Supreme Court of Ohio
July 24, 1996
76 Ohio St.3d 97 | 1996-Ohio-419
Submittеd June 4, 1996 — APPEAL from the Court of Appeals for Licking County, No. 94-CA-106.
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{¶ 1} In February 1989, appellant, Stella M. Pegan, gave birth to a daughter, Candi. Pegan subsequently filed a paternity action against appеllee, Ronald L. Crawmer, who acknowledged that he is Candi‘s natural father. In December 1990, the Licking County Court of Common Pleas, Juvenile Division, entered a judgment establishing Crawmer‘s paternity of Candi and ordering him to pay child support. The juvenile court further awarded custody of the minor child to Pegan and visitation rights to Crawmer. Effective January 1991, the General Assembly established the Licking County Court of Common Pleas, Domestic Relations Division, which possesses exclusive jurisdiction over, inter alia, parentage actions and postdecree proceedings arising in parеntage actions in Licking County.
{¶ 2} In October 1993, Candi was discovered wandering the streets after she had been left alone by Pegan with Pegan‘s two other minor children, Tekela and Daniel, who are younger than Candi. In February 1994, the Licking County Municipal Court convicted Pegan of theft in connection with a shoplifting incident. In March 1994, Tekela, then about two years old, was found wandering the neighborhood. A police оfficer observed that the child had dried fecal matter on her legs and dried green “nasal matter” coming from her nostrils, and looked as if
{¶ 3} Meanwhile, Crawmer had filed a motion for change of custody in the Licking County Court of Common Pleas, Domestic Relations Division. The domestic relations court granted temporary custody of Candi to Crawmer, pending a hearing on the motion. At the October 1994 hearing on Crawmer‘s motion, Pegan moved to dismiss the motion for lack of jurisdiction because Crawmer had failed to attach an
{¶ 4} On October 20, 1994, just prior to filing his notice of appeal from the domestic relations court‘s October 19 dismissal entry, Crawmеr filed a second motion for a change of custody, this time attaching an
{¶ 5} The court of appeals dismissed Pegan‘s habeas corpus complaint for failing to certify that a copy of it had been served on Crawmer. On appeal, we reversed and remanded the cause to the court of appeals to determine if the writ should be allowed and a return ordered. Pegan v. Crawmer (1995), 73 Ohio St.3d 607, 653 N.E.2d 659. In the interim, the court of appeals affirmed the domestic relations court‘s dismissal of Crawmer‘s first motion for a change of custody. Pegan v. Crawmer (Apr. 13, 1995), Licking App. No. 94-CA-107, unreported, 1995 WL 434108. Thereafter, the domestic relations court proceeded to hold a
{¶ 6} On remand of Pegan‘s habeas corpus action, the court of appeals allowed the writ. Crawmer then filed a trial brief with attached exhibits. In November 1995, the court of appeals denied the writ of habeas corpus.
{¶ 7} The cause is now before this court upon an appeаl as of right.
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Central Ohio Legal Aid Society, Inc. and Patricia L. Moore, for appellant.
Cindy Ripko, for appellee.
Price & Neel and Tyra L. Taylor, guardian ad litem, urging affirmance for amicus curiae, Candi Pegan.
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Per Curiam.
{¶ 8} Pegan asserts that the court of appeals erred in denying the writ of habeas corpus. The court of appeals determined that the domestic relations court retained continuing jurisdiction over the custody issues, that Pegan‘s appeal was pending bеfore the court of appeals regarding the domestic relations court‘s custody award, and that Pegan had failed to demonstrate that she has no adequate remedy at law.
{¶ 9} A writ of habeas corpus lies in certain extraordinary circumstances where therе is an unlawful restraint of a person‘s liberty and there is no adequate remedy in the ordinary course of law. State ex rel. Pirman v. Money (1994), 69 Ohio St.3d 591, 593, 635 N.E.2d 26, 29. Habeas corpus relief is the exception rather than the general rule in child custody actions. Barnebey v. Zschach (1995), 71 Ohio St.3d 588, 646 N.E.2d 162. A writ of habeas corpus will ordinarily be denied where there is an аdequate remedy in the ordinary course of the law. In re Hunt (1976), 46 Ohio St.2d 378, 75 O.O.2d 450, 348 N.E.2d 727, paragraph two of the syllabus; Marich v. Knox Cty. Dept. of Human Serv. (1989), 45 Ohio St.3d 163, 165, 543 N.E.2d 776, 779. Nevertheless, where a judgment is void due to lack of jurisdiction, habeas corpus is an appropriate remedy despite the availability of alternative remedies such as аppeal. Gaskins v. Shiplevy (1995), 74 Ohio St.3d 149, 151, 656 N.E.2d 1282, 1284; In re Lockhart (1952), 157 Ohio St. 192, 195, 47 O.O. 129, 131, 105 N.E.2d 35, 37, and paragraph three of the syllabus.
{¶ 10} In her first and second propositions of law, Pegan contends that the domestic relations court lacked continuing jurisdiction to grant custody of the parties’ child to Crawmer when its predecessor juvenile court lacked jurisdiction to originally award custody and visitation concerning the child in the context of the paternity action instituted by Pegan.
{¶ 11}
“The judgment or order [determining the existence or nonexistence of the parent and child relationship] may contain any other prоvision directed against the appropriate party to the proceeding, concerning the duty of support, the furnishing of bond or other security for the payment of the judgment, or any other matter in the best interest of the child. *** After entry of the judgment or order, the father may petition that he be designated the residential parent and legal custodian of the child or for visitation rights in a proceeding separate from any action to establish paternity. ***” (Emphasis added.)
{¶ 12} Pegan relies on Burns v. Darnell (1995), 100 Ohio App.3d 419, 654 N.E.2d 169, in which an appellate court held that there is no provision in the рaternity statute for the determination of visitation rights and that a trial court does not err in requiring a father to seek visitation in a separate action rather than by postjudgment motion for visitation in the paternity proceeding.
{¶ 13} The Burns view is not shared by other appellate courts. See, e.g., Hammon v. Hammon (Apr. 12, 1991), Van Wert App. No. 15-90-14, unreported, 1991 WL 53747 (
{¶ 14} In addition, Burns noted that “any error in proceeding to determine visitation in [a paternity] action, rathеr than in a separate action, may not be prejudicial.” Burns, 100 Ohio App.3d at 421, 654 N.E.2d at 170; see, also, West, supra (“The legislature has vested the common pleas court with subject matter jurisdiction over visitation and, therefore, whether the actions are maintained separately or jointly is not an issue of non-waivablе jurisdiction but, rather, one of venue, which is waivable.“). Burns is also distinguishable from the instant case, since the trial court in Burns did not enter a visitation order in the original paternity determination.
{¶ 15} Pegan further relies on In re Byard (1996), 74 Ohio St.3d 294, 658 N.E.2d 735. In Byard, at the syllabus, we held that “Ohio‘s Uniform Reciprocal Enforcement of Support Act [‘URESA‘],
{¶ 16} Pegan next contends that the domestic relations court lacked continuing jurisdiction, since the juvenile court did not have original jurisdiction to award custody and visitation where no party filed the child custody affidavit required by
“(A) Each party in a parenting proceeding, in the party‘s first pleading or in an affidavit attached to that pleading, shall give information under oath as to the child‘s present address, thе 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. In this pleading or affidavit, each party shall also include all of the following information:
“***
“(2) Whether the party has information of any parenting proceeding concerning the child pending in a court of this or any other state ***.”
{¶ 17} Parenting proceedings include proceedings in which a court awards custody and visitation.
{¶ 18} “The requirement of
{¶ 19} Based on the foregoing, the juvenile court possessed jurisdiction to make custody and visitation orders in its paternity judgment under
{¶ 20} Moreover, in order to prevail on a petition for a writ of habeas corpus in a child custody case, the petitioner must establish that (1) the child is being unlawfully detained, and (2) the petitioner has the superior legal right to custody of the child. 2 Child Custody and Visitation Law and Practice (1992) 7-7, Section 7.02[1]. In her complaint for habeas corpus relief, Pegan claimed entitlement to custody of Candi by virtue of the 1990 custody award in her paternity action. Therefore, assuming, arguendo, the validity of Pegan‘s contentions in her first and second propositions of law contesting the jurisdiction of the juvenile court, her same arguments would defeat the very judgment she seеks to enforce to establish her alleged superior legal right to custody. Any conclusion that the decisions relating to custody and visitation are void would result in neither Pegan nor Crawmer possessing a judicial order awarding custody, and the custody determination would simply be between Candi‘s natural parents.
{¶ 21} In such circumstances, the court would have to determine which custody award would be in the best interest of the child. See, e.g., Pruitt v. Jones (1980), 62 Ohio St.2d 237, 16 O.O.3d 276, 405 N.E.2d 276 (In a habeas corpus action to obtain custody of an illegitimate child in a controversy between the child‘s natural parents, a determination of the child‘s best interests is required.); 1 Antieau, The Practice of Extraordinary Remedies (1987) 113, Section 1.50 (“Whenever child custody is litigated in a habeas corpus action, the best interest of the child is the prime consideration.“). The evidence in the recоrd indicates that the child‘s
{¶ 22} In her third proposition of law, Pegan asserts that the domestic relatiоns court could not exercise its continuing jurisdiction to modify custody based on Crawmer’ second postjudgment motion for change of custody where he had appealed the dismissal of his first motion for change of custody. When a case has been appealed, the trial court retains all jurisdiction not inconsistent with the reviewing court‘s jurisdiction to reverse, modify, or affirm the judgment. State ex rel. Neff v. Corrigan (1996), 75 Ohio St.3d 12, 15, 661 N.E.2d 170, 174. Here, the domestic relations court granted temporary custody to Crawmer pending a hearing on his second motion prior to the filing of his notice of appеal from the court‘s dismissal of his first motion. Further, the domestic relations court did not proceed with the hearing and custody determination on the second motion until after the court of appeals had resolved the appeal concerning the dismissal of his first motion. See State ex rel. Newton v. Court of Claims (1995), 73 Ohio St.3d 553, 558, 653 N.E.2d 366, 371 (After appeal was dismissed, trial court had jurisdiction to rule on previously filed Civ.R. 60[B] motion.). Finally, Crawmer filed the child custody affidavit required by
{¶ 23} In conclusion, Pegan did not establish her right to extraordinary relief in habeas corpus. She possesses an adequate remedy via appeal of the domestic relations court‘s award of custody of Candi to Crawmer. In fact, she has an appeal from that judgment pending in the court of appeals. Based on the foregoing, the judgment of the court of appeals denying the writ is affirmed.
Judgment affirmed.
MOYER, C.J., DOUGLAS, RESNICK, F.E. SWEENEY, PFEIFER, COOK and STRATTON, JJ., concur.