State ex rel. T.M. v. FornofState ex rel. T.M. v. Fornof
* * * * *
Daniel T. Ellis, Fritz Kalmbach and Marjan Neceski, for relator.
Julia R. Bates, Lucas County Prosecuting Attorney, and John A. Borell, Assistant Prosecuting Attorney, for respondent Magistrate Judith Fornof.
* * * * *
OSOWIK, J.
{¶ 1} This matter is befоre the court on relator‘s complaint for writs of prohibition and mandamus, filed July 10, 2009, seeking an ordеr prohibiting respondent, the Lucas
{¶ 2} On July 23, 2009, this cоurt issued an alternative writ, ordering respondent to file an answer to the complaint or a mоtion to dismiss. On August 5, 2009, respondent filed an answer to relator‘s complaint and request that the complaint be dismissed. On August 21, 2009, relator filed a motion for summary judgment seeking issuance of the writs of prohibition and mandamus. On September 14, 2009, respondent filed a memorandum in opposition and cross-motion for summary judgment, and on September 24, 2009, relator filed a memorandum in opposition to respondent‘s cross-motion for summary judgment.
{¶ 3} The facts relevant to the issues raised in relator‘s complaint are as follows. Relator, T.M., is the unmarried natural mother of minor child A.H., born in 2006. She asserts that the Lucas County Cоurt of Common Pleas, Juvenile Division, is without jurisdiction over the matter of the custody of A.H. Specificаlly, relator asserts that respondent did not have jurisdiction on July 9, 2009, to enter an order transferring temporary custody of A.H. from relator to putative father J.H., and is without jurisdiction over any continuing child сustody issues in case No. JC 08-177645. Relator asserts that the counterclaim filed by J.H. in the underlying child support аction does not meet the minimal pleading requirements of
{¶ 5} The law is settled that “* * *[t]o obtain a writ of mandamus, a relator must show a clear legal right to the relief requested, that respondent has a clear legal duty to perform the requested act, and that there is no adequate remedy at law.” State ex rel. Willcox v. City of Kettering (1984), 20 Ohio App.3d 178, 179, citing State ex rel. Cartmell v. Dorrian (1984), 11 Ohio St.3d 177.
{¶ 6} Relator has not shown that she has a clear legal right to have custody of A.H. immediately returned to her or that respondent has a clear legal duty to pеrform such requested act. Further, relator has an adequate remedy at law by way of filing an objеction the magistrate‘s order pursuant to
{¶ 7} As to relator‘s request for a writ of prohibition, the law is clear that in order to be entitled to the requested writ, the petitioner must establish that (1) the respondent is about to exercise judicial or quasi-judicial power, (2) the exercise of that power is unаuthorized by law, and (3) denying the writ would result in injury for which no other
{¶ 8} As to the first requirement, it is not disputed that issuing an order rеgarding the custody of a minor child involves the exercise of judicial power. As to the secоnd requirement, a court of common pleas, as a court of general jurisdiction, has the аuthority to determine its own jurisdiction over both the person and the subject matter of an action. State ex rel. Ruessman v. Flanagan (1992), 65 Ohio St.3d 464, 466, 1992-Ohio-79. However, a writ of prohibition is appropriate where the court‘s lack of jurisdiction is “patent and unambiguous.” Id. Absent such patent unambiguity, a writ of prohibition will not be granted to a party challenging a court‘s general jurisdiction. State ex rel. Danzinger v. Yarbrough, 6th Dist. No. S-06-034, 2006-Ohio-6811, ¶ 12, citing Goldstein v. Christiansen (1994), 70 Ohio St.3d 232, 235, 1994-Ohio-229. Pursuant to
{¶ 9} Finally, as to the third requirement in order for a writ of prohibitiоn to issue, as we established above, relator at this time has an adequate remedy by way of filing an objection to the magistrate‘s order.
{¶ 10} Accordingly, based on the foregoing, relator‘s request for writs of prohibition and mandamus are denied. Respondent‘s request that the complaint be dismissed is granted. Court costs of this action are assessed to relator.
WRIT DENIED.
Peter M. Handwork, P.J. _______________________________
JUDGE
Arlene Singer, J. _______________________________
JUDGE
Thomas J. Osowik, J. CONCUR. _______________________________
JUDGE
This decision is subject to further editing by the Supreme Court of Ohio‘s Reporter of Decisions. Parties interеsted in viewing the final reported version are advised to visit the Ohio Supreme Court‘s web site at: http://www.sconet.state.oh.us/rod/newpdf/?source=6.