State ex rel. Messer v. ColalucaState ex rel. Messer v. Colaluca
Lori A. Zocolo
Abel & Zocolo Co., L.P.A.
815 Superior Avenue
Suite 1915
Cleveland, Ohio 44114
ATTORNEYS FOR RESPONDENTS
William D. Mason
Cuyahoga County Prosecutor
Charles E. Hannan, Jr.
David Lambert
Assistant County Prosecutors
8th Floor Justice Center
1200 Ontario Street
Cleveland, Ohio 44113
{¶1} Bill Joseph Messer filed a complaint for a writ of prohibition and a writ of mandamus. Messer seeks an order from this court that prevents Judge Janet Rath Colaluca and Magistrate Sharon A. Echols (“herein after collectively referred to as the trial court“) from exercising jurisdiction in Messer v. Messer (n.k.a. Gretchen Agnes Rensi), Cuyahoga Domestic Relations No. DR-332953. Messer argues that the trial court patently and unambiguously has lost jurisdiction to decide parental custody issues. Messer also seeks a writ of mandamus to compel the trial court to vacate an order journalized on March 25, 2013, that sua sponte vacated a prior order of dismissal. The trial court filed a motion to dismiss, which we grant for the following reasons.
Facts
{¶2} On September 29, 2011, a final decree of divorce was granted to Messer and Rensi. On April 16, 2012, Rensi filed a motion to reappoint a guardian ad litem for the sole child and a motion to modify the parties’ shared parenting plan to sole legal custody. On December 14, 2012, Messer filed a motion to dismiss Rensi‘s motions. On March 13, 2013, the trial court granted Messer‘s motion to dismiss and held that:
The matter came before the court upon Plaintiff Bill Messer‘s Motion to Dismiss #345481, filed January 31, 2013. Plaintiff asks that Defendant Gretchen Rensi‘s parenting motions be dismissed because this court has no jurisdiction pursuant to
R.C. 3127.21 .For good cause shown, the court finds that Plaintiff‘s motion is hereby GRANTED.
{¶3} On March 25, 2013, the trial court sua sponte vacated its order of March 13, 2013, and held that:
Upon the Court‘s own motion, the Judgment Entry, filed March 13, 2013, is hereby vacated and set aside.
It is therefore ordered that all pending motions are hereby reinstated. Costs adjudged against the parties equally.
{¶4} On April 17, 2013, Messer filed his complaint for a writ of prohibition.
Analysis
{¶5} Messer, through his complaint for a writ of prohibition, argues that the trial court erred by vacating the dismissal of the pending motions to reappoint a guardian ad litem and modification of the shared parenting plan to sole legal custody. Specifically, Messer argues that the trial court is without jurisdiction to entertain the motions that were reinstated and also lacks any jurisdiction to conduct any further proceedings in DR-332953.
{¶6} In order for this court to issue a writ of prohibition, Messer is required to demonstrate each prong of the following three-part test: (1) the trial court is about to exercise judicial power; (2) the exercise of judicial power by the trial court is not authorized by law; and (3) there exists no other adequate remedy in the ordinary course of the law. State ex rel. Largent v. Fisher, 43 Ohio St.3d 160, 540 N.E.2d 239 (1989). In addition, prohibition does not lie, if Messer has or had an adequate remedy in the ordinary course of the law, even if the remedy was not employed. State ex rel. Lesher v. Kainrad, 65 Ohio St.2d 68, 417 N.E.2d 1382 (1981); State ex rel. Sibarco Corp. v. Berea, 7 Ohio St.2d 85, 218 N.E.2d 428 (1966).
{¶7} Prohibition does not lie unless it clearly appears that the court possesses no jurisdiction of the cause that it is attempting to adjudicate or the court is about to exceed its jurisdiction. State ex rel. Ellis v. McCabe, 138 Ohio St. 417, 35 N.E.2d 571 (1941). Also, prohibition will not issue to prevent an erroneous judgment, or serve the purpose of an appeal, or to correct errors committed by the lower court in deciding questions within its jurisdiction. State ex rel. Sparto v. Juvenile Court of Darke Cty., 153 Ohio St. 64, 90 N.E.2d 598 (1950). Furthermore, prohibition should be used with great caution and not issue in doubtful cases. State ex rel. Merion v. Tuscarawas Cty. Court of Common Pleas, 137 Ohio St. 273, 28 N.E.2d 641 (1940).
{¶8} However, when a court is patently and unambiguously without jurisdiction to act, the existence of an adequate remedy at law will not prevent the issuance of a writ of prohibition. State ex rel. Tilford v. Crush, 39 Ohio St.3d 174, 529 N.E.2d 1245 (1988); State ex rel. Csank v. Jaffe, 107 Ohio App.3d 387, 668 N.E.2d 996 (1995). Nevertheless, absent a patent and unambiguous lack of jurisdiction a court possessing general jurisdiction of the subject matter of an action has the authority to determine its own jurisdiction. A party challenging the court‘s jurisdiction possesses an adequate remedy at law through an appeal from the court‘s judgment that it possesses jurisdiction. State ex rel. Rootstown Local School Dist. Bd. of Edn. v. Portage Cty. Court of Common Pleas, 78 Ohio St.3d 489, 678 N.E.2d 1365 (1997); State ex rel. Bradford v. Trumbull Cty. Court, 64 Ohio St.3d 502, 1992-Ohio-132, 597 N.E.2d 116. Finally, this court possesses discretion in issuing a writ of prohibition. State ex rel. Gilligan v. Hoddinott, 36 Ohio St.2d 127, 304 N.E.2d 382 (1973).
{¶9} In the case sub judice, we find that the trial court possesses general subject matter jurisdiction to determine all domestic relations matters.
{¶10} Messer argues that the judgment of March 13, 2013, which dismissed the wife‘s parenting motions, terminated all jurisdiction on the part of the trial court.
{¶11} The trial court‘s order of March 13, 2013, did not indicate any consideration of the eight factors required prior to declining to exercise jurisdiction. In re M.I.S. A Minor Child, 8th Dist. Cuyahoga No. 98138, 2012-Ohio-5178; Simon v. Simon, 9th Dist. Summit No. 25933, 2012-Ohio-3443. In addition, the order of March 13, 2013, did not stay the proceedings nor indicate that a child custody proceeding had been commenced in another state. Thus, Messer has failed to demonstrate that the trial court terminated its jurisdiction per
{¶12} In addition, Messer possesses an adequate legal remedy in the ordinary course of the law. The record of the underlying divorce action is not completely before this court.1 However, we take judicial notice of the docket in DR-332953, because it is capable of accurate and ready determination by resort to a source whose accuracy cannot be reasonably questioned. See
{¶13} Finally, we find that Messer has failed to comply with
Conclusion
{¶14} Therefore, we find that the trial court does not patently and unambiguously lack jurisdiction to proceed to judgment in the underlying domestic relations action, Messer possesses an adequate remedy in the ordinary course of the law, and Messer has failed to comply with the mandatory sworn affidavit requirement of
{¶15} Accordingly, we grant the trial court‘s motion to dismiss Messer‘s complaint for a writ of prohibition and writ of mandamus. Messer to pay costs. The court directs the clerk of court to serve all parties with notice of this judgment and its date of entry upon the journal as required by
{¶16} Complaint dismissed.
JUDGE MARY EILEEN KILBANE, JUDGE
FRANK D. CELEBREZZE, JR., P.J., and
KATHLEEN ANN KEOUGH, J., CONCUR