Rowell v. SmithRowell v. Smith
Fey Law Offices, and Carol Ann Fey; Massucci & Kline, LLP, and LeeAnn Massucci, for appellee.
Gary J. Gottfried Co., LPA, and Gary J. Gottfried, for appellant.
APPEALS from the Franklin County Court of Common Pleas, Division of Domestic Relations, Juvenile Branch.
CONNOR, J.
{¶1} Respondent-appellant, Julie Ann Smith (“appellant“), appeals from two judgments of the Franklin County Court of Common Pleas, Division of Domestic Relations, Juvenile Branch. By way of a judgment rendered on June 30, 2010, the trial court overruled appellant‘s objections to the magistrate‘s decision and found appellant in contempt of court. In its July 27, 2010 judgment, the trial court denied appellant‘s motion for stay, granted the motion to enforce jail time filed by petitioner-appellee, Julie Rose
{¶2} On September 9, 2003, appellant gave birth to a daughter via artificial insemination. At the time, appellant and appellee were involved in a same-sex relationship. Appellant is the biological mother of the child, while appellee has no biological relationship to the child. The parties’ relationship ended sometime during the period of August to October 2008.
{¶3} On October 14, 2008, appellee filed a motion for temporary orders and a petition for shared custody of the minor child. On November 4, 2008, appellant filed a motion to dismiss and a motion for judgment on the pleadings. On November 12, 2008, a magistrate issued an order designating the parties as “temporary shared custodians.” Appellant then filed a motion to set aside the order and a motion for stay of the order on November 17, 2008. On December 16, 2008, the trial court denied appellant‘s motion for stay and took appellant‘s motion to set aside and motion to dismiss under advisement.
{¶4} On January 15, 2009, the trial court issued two decisions, the first of which denied appellant‘s motion to dismiss and motion for judgment on the pleadings. In the second decision, the trial court granted appellant‘s motion to set aside the magistrate‘s order and again designated appellant and appellee as “temporary shared custodians.”
{¶5} On January 26, 2009, the trial court issued a modified order, citing
{¶6} On January 30, 2009, appellee filed a motion for contempt based upon appellant‘s failure to comply with the January 15, 2009 order. On February 5, 2009, appellee filed a second motion for contempt based upon appellant‘s failure to comply with the January 26, 2009 modified order.
{¶7} On February 11, 2009, appellant filed an appeal and a motion to stay execution of the original and modified orders. The appeal was assigned case No. 09AP-147. On March 23, 2009, this court dismissed case No. 09AP-147 because it lacked a final, appealable order.
{¶8} On May 18, 2009, appellant filed a motion to dismiss appellee‘s motions for contempt. On June 23, 2009, the trial court issued its decision. With regard to appellee‘s January 30, 2009 motion for contempt, the trial court held that the motion was moot because it was based on the January 15, 2009 order, which the court modified on January 26, 2009. With regard to the February 5, 2009 motion for contempt, the trial court held that appellant violated the January 26, 2009 order.
{¶9} Appellant appealed, and in Rowell v. Smith, 186 Ohio App.3d 717, 2010-Ohio-260, we reversed the trial court‘s finding of contempt with regard to the January 26, 2009 order after concluding that the trial court‘s use of
{¶10} On February 2, 2010, appellee filed another motion for temporary orders, seeking visitation and shared custody. On February 18, 2010, the magistrate issued an order designating appellant temporary custodian and granting appellee temporary visitation and custodial rights. Appellant filed a motion to set aside the magistrate‘s order, which the trial court denied on March 9, 2010.
{¶11} On March 2, 2010, appellee filed a motion for contempt based upon appellant‘s failure to comply with the visitation ordered in the magistrate‘s February 18, 2010 order. On March 16, 2010, the magistrate issued a decision, finding appellant guilty of contempt, sentencing her to three days in jail, suspended upon purging herself of contempt by allowing additional visitation and paying $2,500 to appellee for attorney fees and costs.
{¶12} On June 28, 2010, appellee filed a motion for enforcement of the punishment previously imposed on appellant for her contempt of court.
{¶13} Appellant filed objections to the magistrate‘s March 16, 2010 decision. On June 30, 2010, the trial court issued a judgment overruling appellant‘s objections to the magistrate‘s decision. Appellant has appealed the trial court‘s judgment, which has been assigned as case No. 10AP-675.
{¶14} On July 27, 2010, the trial court issued a judgment granting appellee‘s motion for enforcement and denying appellant‘s request for stay of enforcement on the contempt finding. The trial court also ordered visitation and ordered appellant to pay appellee $2,500. Appellant has appealed this judgment, which has been assigned as case No. 10AP-708. Case Nos. 10AP-675 and 10AP-708 have been consolidated, and this court has stayed the trial court‘s imposition of the three-day jail sentence and visitation pending the outcome of this appeal.
{¶15} In her appeals, appellant asserts the following assignments of error:
[I.] The Trial Court erred and abused its discretion of [sic] finding Smith in contempt of an invalid order.
[II.] The Trial Court erred and abused its discretion when it expanded the contempt sanctions following the enforcement hearing.
{¶17} Contempt is a disobedience or disregard of a court order or command. State ex rel. Corn v. Russo, 90 Ohio St.3d 551, 554, 2001-Ohio-15. A prerequisite to a finding of contempt for disobeying a court order is the existence of a valid underlying order or judgment of the court. Januzzi v. Hickman (1991), 61 Ohio St.3d 40, 44. If subject-matter jurisdiction to enter the contempt judgments is lacking, the judgments are void. Patton v. Diemer (1988), 35 Ohio St.3d 68, paragraph three of the syllabus. A challenge to a court‘s subject-matter jurisdiction can be raised at any stage of the proceedings. In re Byard, 74 Ohio St.3d 294, 296, 1996-Ohio-163. Subject-matter jurisdiction of a court connotes the power to hear and decide a case upon its merits and defines the competency of a court to render a valid judgment in a particular action. Cheap Escape Co., Inc. v. Haddox, LLC, 120 Ohio St.3d 493, 2008-Ohio-6323, ¶6. Subject-matter jurisdiction relates to the proper forum for an entire class of cases, not the particular facts of an individual case. State v. Swiger (1998), 125 Ohio App.3d 456, 462.
{¶18} The focus of this matter regards the authority of a juvenile court to order visitation to a non-relative. Indeed, appellant challenges the contempt order on the basis that the juvenile court had no authority to order visitation based upon the circumstances of this case. As a result, appellant argues that the visitation order was invalid, such that her admitted refusal to comply with it cannot serve as the basis for a contempt order. The determinative issue therefore regards whether the juvenile court had the authority to grant visitation to appellee.
{¶19} Being a court of limited jurisdiction, a juvenile court possesses only those powers that the Ohio General Assembly has conferred upon it. In re Gibson (1991), 61 Ohio St.3d 168, 172, citing Section 4(B), Article IV of the Ohio Constitution; see also Carnes v. Kemp, 104 Ohio St.3d 629, 2004-Ohio-7107, ¶25. Moreover, when construing a statute, a court‘s primary concern regards the intent of the Ohio General Assembly. Fisher v. Hasenjager, 116 Ohio St.3d 53, 2007-Ohio-5589, ¶20, quoting State ex rel. Watkins v. Eighth Dist. Court of Appeals, 82 Ohio St.3d 532, 535, 1998-Ohio-190.
{¶20} Under
{¶21} A juvenile court may order visitation to a non-relative in cases involving a “divorce, dissolution of marriage, legal separation, annulment, or child support proceeding[.]”
{¶22} A review of Ohio case law reveals the confusion and the difficulties with respect to the legal issues presented herein. Indeed, appellate courts fall upon a wide spectrum in interpreting the authority of juvenile courts on issues pertaining to custody and visitation for non-relatives and non-parents. See In re Gibson; In re Bonfield, 97 Ohio St.3d 387, 2002-Ohio-6660; Parr v. Winner (June 30, 1993), 11th Dist. No. 92-A-1759; In the Matter of Young (Nov. 20, 1998), 5th Dist. No. 98 CA 48; In re LaPiana, 8th Dist. No. 93691, 2010-Ohio-3606; In re Mullen, 185 Ohio App.3d 457, 2009-Ohio-6934; and In re Jones, 2d Dist. No. 2000 CA 56, 2002-Ohio-2279. Importantly, the validity of the orders granting temporary visitation to non-parents went unchallenged in In re Mullen and In re Jones.
{¶23} Because the Ohio General Assembly has not conferred upon juvenile courts the authority to order visitation to a non-relative absent some precipitating event, and we refuse to acknowledge the implied authority to do so, we find that the juvenile
{¶24} Because we have found error in the juvenile court‘s issuance of the contempt order, we similarly find error in the sanctions imposed as a result of the contempt order. In this regard, we sustain appellant‘s second assignment of error.
{¶25} With respect to appellee‘s motion for attorney fees, we deny the motion, as appellant‘s arguments were not so devoid of merit as to warrant such an additional fee award. See, e.g., Hamed v. Delmatto, 10th Dist. No. 09AP-1020, 2010-Ohio-2478, ¶18. Therefore, the motion for attorney fees is denied.
{¶26} Based upon the foregoing, we sustain appellant‘s first and second assignments of error, deny appellee‘s motion for attorney fees, and reverse and remand the judgments of the Franklin County Court of Common Pleas, Division of Domestic Relations, Juvenile Branch, for further proceedings in accordance with law and consistent with this decision.
Judgments reversed; motion for attorney fees denied.
CUNNINGHAM, J., concurs.
BROWN, J., dissents.
CUNNINGHAM, J., of the First Appellate District, sitting by assignment in the Tenth Appellate District.
{¶27} Because I would overrule both of the assignments of Julie Ann Smith, respondent-appellant, I respectfully dissent. With regard to the first assignment of error, appellee asserts that subject-matter jurisdiction was conferred upon the juvenile court in the present case by
{¶28} A few weeks before appellant filed her appellate brief in the present matter, the Eighth District Court of Appeals issued a decision in In re LaPiana, 8th Dist. No. 93691, 2010-Ohio-3606, which also involved a partner in a lesbian relationship who had two children via artificial insemination. The court of appeals concluded the juvenile court
{¶29} I find LaPiana and Bonfield persuasive and find Gibson distinguishable. Gibson is clearly distinguishable because, in that case, the non-parents were seeking visitation only. In the present case, petitioner-appellee, Julie Rose Rowell filed a petition seeking shared custody, and she sought visitation via temporary orders while the petition was pending. The court in Gibson explicitly acknowledged it was not expressing any opinion regarding a juvenile court‘s authority to order visitation while a complaint seeking a determination of custody is pending. Thus, the ultimate holding in Gibson has no bearing on the controversy at issue.
{¶30} Also important is that, unlike Gibson, visitation in the present case has been granted only on a temporary basis pursuant to temporary orders to maintain the status quo until a custody determination has been made. Appellant, as well as the majority,
{¶31} On the issue of subject-matter jurisdiction, the Supreme Court‘s decision in Bonfield and the Eighth District‘s decision in LaPiana both stand for the proposition that a juvenile court has general subject-matter jurisdiction, pursuant to
{¶32} In its decision, the majority indicates that the trial court had general subject matter jurisdiction over the shared custody petition filed in the present case. Where our analyses diverge is in the next step. Because the trial court had subject-matter jurisdiction over the shared custody petition, the issue becomes whether the court then had the authority to issue the temporary visitation order. The analysis in the majority decision is that a juvenile court‘s authority to issue temporary orders must come from a statute enacted by the Ohio General Assembly. I believe that the power to issue temporary orders is procedural in nature and comes from the Ohio Rules of Juvenile Procedure once subject-matter jurisdiction has been established.
{¶33}
{¶34} As for appellant‘s second assignment of error, the trial court‘s enforcement of the contempt order did not improperly expand the original contempt sanction of a three day imprisonment when it included the purge conditions. In addition, the trial court was required to order the $2,500 in attorney fees in the contempt proceeding pursuant to
{¶35} As for appellee‘s motion for attorney fees, I would deny the motion, as appellant‘s arguments were not so devoid of merit as to warrant such an additional fee award.