Pegan v. Crawmer, 666 N.E.2d 1091

Pegan v. Crawmer

666 N.E.2d 1091

Ohio

1996

Check Treatment

Per Curiam.

Pеgan 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 jurisdiсtion over the custody issues, that Pegan’s appeal was pending before 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.

A writ of habeas corpus lies in certain extraordinary circumstances where there is an unlawful restraint of a person’s liberty аnd 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 adequate 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 *100availability of alternative remedies such as appeal. 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.

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.

R.C. 3111.13(C) provides:

“The judgment or order [dеtermining the existence or nonexistence ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍of the parent and child relationship] may contain any other provision directed against the appropriate party to the prоceeding, 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 rеsidential parent and legal custodian of the child or for visitation rights in a proceeding separate from any action to establish paternity. * * * ” (Emphasis added.)

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 paternity 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 post-judgment motion for visitation in the paternity proceeding.

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 (R.C. 3111.13[C] “does not mandate a separate proceeding [to determine visitation]. Instead, it grants permission to the father to petition for visitation in a separate proceeding rather than doing so at the paternity hearing. The trial court may include provisions for visitation [in the paternity judgment] if it is ‘in • the bеst interest of the child.’ ”); West v. Anderson (Mar. 17, 1992), Franklin App. No. 91AP-1006, unreported, 1992 WL 55440 (“[T]he father may maintain a separate action, but [R.C. 3111.13(C) ] does not preclude the parties from agreeing to litigate all issues in one action, including visitation.”).

In addition, Burns noted that “any error in proceeding to determine visitation in [a paternity] ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍action, rather 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-waivable jurisdiction but, rather, one of vеnue, which is waivable.”). Burns is also distinguishable from the instant case, since the trial *101court in Bums did not enter a visitation order in the original paternity determination.

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 Enfоrcement of Support Act [‘URESA’], R.C. Chapter 3115, does not confer subject matter jurisdiction over issues concerning child custody and visitation in an action for child support enforcement.” In so hоlding, we noted that in a URESA action, the custodial parent requesting support enforcement has no notice that visitation and custody issues will be raised. Id., 74 Ohio St.3d at 297, 658 N.E.2d at 738. Conversely, the record in this case, which dоes not include the pleadings or hearing in the 1990 paternity action, discloses no lack of notice concerning visitation and custody. In fact, the record before the court of appeals indicates no argument to that effect by Pegan. Further, the paternity action was governed by R.C. 3111.13(C), rather than the URESA provisions applicable in Byard. Byard is thus not controlling here.

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 R.C. 3109.27 in the patеrnity action. R.C. 3109.27, part of Ohio’s adoption of the Uniform Child Custody Jurisdiction Act, provides:

“(A) Each party in a parenting proceeding, in the party’s first pleading or in an affidavit attached to that plеading, shall give information under oath as to the child’s present address, the places where the child has lived ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍within the last five years, and the name and present address of each person with whоm 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 * *

Parenting proceedings include proceedings in which a court awards custody and visitation. R.C. 3109.21(B) and (C). The juvenile court’s 1990 paternity dеtermination included custody and visitation determinations. Consequently, R.C. 3109.27(A) required each party to file a child custody affidavit.

“The requirement of R.C. 3109.27 that a parent bringing an action for custody inform the court at the outset of the proceedings of any knowledge he has of custody proceedings pending in other jurisdictions is a mandatory jurisdictional requirement of such an action.” Pasqualone v. Pasqualone (1980), 63 Ohio St.2d 96, 17 O.O.3d 58, 406 N.E.2d 1121, paragraph one of the syllabus. Pegan relies on Pasqualone to support her jurisdictional argument on appeal. However, she *102neither raised this issue nor introduced evidence below that no R.C. 3109.27 affidavit was filed in the paternity proceeding. The record dоes not include the pleadings filed in the paternity action.

Based on the foregoing, the juvenile court possessed jurisdiction to make custody and visitation orders in its paternity judgment under R.C. 3111.13(C). Furthermorе, the domestic relations court possessed continuing jurisdiction over the juvenile court’s original custody award so that it could determine Crawmer’s motion for change of custody. R.C. 3111.16 and 2301.03(S). Pegan hаd an adequate remedy by appeal to raise her contentions concerning any alleged failure to comply with R.C. 3111.13(C).

Moreover, in order to prevail on a petition for a writ оf 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 seeks 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 judiсial order awarding custody, and the custody determination would simply be between Candi’s natural parents.

In such circumstances, the court would have to determine which custody award would be in the bеst 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 considеration.”). The evidence in the record indicates that the child’s best interests will be served by Crawmer retaining custody. Candi’s guardian ad litem concurs in this conclusion. Consequently, Pegan’s first and second propоsitions of law are meritless and are overruled.

In her third proposition of law, Pegan asserts that the domestic relations court could not exercise its continuing jurisdiction to modify custody basеd on Crawmer’s 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 appеaled, the trial court retains all jurisdiction not inconsistent with the reviewing court’s jurisdiction, to reverse, modify, or affirm the judgment. State ex rel. *103Neff 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 appeal 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 R.C. 3109.27(A) with his second motion for change of custody. The domestic relations court proрerly exercised its continuing jurisdiction. Pegan’s third proposition of law is overruled.

In conclusion, Pegan did not establish her right to extraordinary relief in habeas corpus. She possesses an adеquate 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.