PAUL SIMON v. MALINDA SIMON
C.A. No. 25933
IN THE COURT OF APPEALS NINTH JUDICIAL DISTRICT
August 1, 2012
2012-Ohio-3443
APPEAL FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF SUMMIT, OHIO CASE No. DR 2007-06-1815
BELFANCE, Judge.
{1} Malinda Simon appeals from the trial court‘s order transferring the divorce proceedings to Hardin County, Kentucky. For the reasons set forth below, we reverse.
I.
{2} In June 2007, Paul Simon filed for divorce from Ms. Simon. Initially, the trial court granted Mr. Simon custody of the couple‘s oldest child while Ms. Simon maintained custody of the younger children. Mr. Simon moved to Kentucky with the oldest child and was eventually granted custody of all of the children.
{3} The trial court issued a divorce decree in September 2008, and Ms. Simon appealed. This Court dismissed the appeal for lack of a final, appealable order as the divorce decree did not resolve companionship rights or child support. Subsequently, the trial court ordered that the parties compile a “master list[,]” of the parties’ marital property to divide.
{4} Subsequent to this Court‘s dismissal of Ms. Simon‘s appeal for lack of a final, appealable order, both parties filed many motions, one of which was Mr. Simon‘s motion to transfer the child custody matters to Kentucky pursuant to
The Court finds that this case is better heard and that jurisdiction is found in the Hardin County Family Court, Commonwealth of Kentucky, and that all mat[t]ers in the above captioned case shall be transferred to said Court.
The Ohio trial Court, however, requests that the Kentucky Family Court review the matter of spousal support. * * * It‘s time to take a second look at [Ms. Simon‘s] spousal support award.
[Mr. Simon‘s] Motion to Transfer is Granted!
{5} Ms. Simon has appealed raising three assignments of error for our review.
II.
ASSIGNMENT OF ERROR I
BY FAILING TO FOLLOW THE LANGUAGE OF
{6} Ms. Simon argues that the trial court erred when it granted Mr. Simon‘s motion to transfer the proceedings to Kentucky under
{7}
- (1) Whether domestic violence has occurred and is likely to continue in the future and which state could best protect the parties and the child;
- (2) The length of time the child has resided outside this state;
- (3) The distance between the court in this state and the court in the state that would assume jurisdiction;
- (4) The relative financial circumstances of the parties;
- (5) Any agreement of the parties as to which state should assume jurisdiction;
- (6) The nature and location of the evidence required to resolve the pending litigation, including the testimony of the child;
- (7) The ability of the court of each state to decide the issue expeditiously and the procedures necessary to present the evidence;
- (8) The familiarity of the court of each state with the facts and issues in the pending litigation.
{8} In its judgment entry, the trial court found that the children had lived in Kentucky for three years and were enrolled in Kentucky schools. It also found that they had extracurricular activities and were involved in counseling. While these findings do not encompass all of the factors in
{9} First, in examining the trial court‘s judgment entry, it is unclear whether the trial court actually considered
{10} Based on the record in this case, we cannot conclude that the trial court considered
ASSIGNMENT OF ERROR II
BY FAILING TO RULE ON DEFENDANT‘S MOTION TO COMPEL PRODUCTION OF DOCUMENTS, THE TRIAL COURT DEPRIVED APPELLANT OF NECESSARY FINANCIAL INFORMATION TO PROPERLY MODIFY SPOUSAL SUPPORT.
ASSIGNMENT OF ERROR III
THE TRIAL COURT ERRED BY ALLOWING THE DIVORCE TRIAL TO PROCEED DESPITE THE FAILURE OF THE COURT APPOINTED EXPERT TO FILE HER REPORT 30 DAYS PRIOR TO THE AUGUST 1, 2008 DIVORCE HEARING.
{11} Ms. Simon‘s second and third assignments of error are unrelated to the trial court‘s decision to transfer the child custody matters to Kentucky, instead addressing other
III.
{12} This Court is without jurisdiction to consider the merits of Ms. Simon‘s second and third assignments of error at this time. The trial court‘s order transferring the entire case to Kentucky is reversed, and the matter is remanded for further proceedings consistent with this opinion.
Judgment reversed, and cause remanded.
There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy of this journal entry shall constitute the mandate, pursuant to App.R. 27.
Immediately upon the filing hereof, this document shall constitute the journal entry of judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is instructed to mail a notice of entry of this judgment to the parties and to make a notation of the mailing in the docket, pursuant to App.R. 30.
Costs taxed to Appellee.
EVE V. BELFANCE
FOR THE COURT
WHITMORE, P. J.
DICKINSON, J.
CONCUR.
APPEARANCES:
SUSAN LAX, Attorney at Law, for Appellant.
F. BENJAMIN RIEK, III, Attorney at Law, for Appellant.
GEORGE MILLER, Attorney at Law, for Appellant.
RANDY LOWRY, Attorney at Law, for Appellee.
KENNETH L. GIBSON, Attorney at Law, for Appellee.