THE STATE EX REL. THOMPSON, APPELLANT, v. SPON, JUDGE, APPELLEE.
No. 98-505
SUPREME COURT OF OHIO
Submitted September 15, 1998—Decided November 10, 1998.
83 Ohio St.3d 551 | 1998-Ohio-298
APPEAL from the Court of Appeals for Richland County, No. 98 CA 8.
{¶ 1} Appellant, Christine Thompson, and Christopher Thompson married and had two children, Nicole and Cody. In March 1997, Christopher was convicted of domestic violence in violation of Section 537.14 of the Mansfield Codified Ordinances.1 In April 1997, appellee, Richland County Court of Common Pleas, Domestic Relations Division Judge Ron Spon, found that Christopher had committed acts of domestic violence against Christine and caused her physical injury. Judge Spon issued a civil protection order in favor of Christine against Christopher and named Christine the legal custodian and residential parent of Nicole and Cody.
{¶ 2} In November 1997, Christopher filed a divorce action in Richland County against Christine, who had moved to Georgia. The domestic relations court issued an ex parte order in the divorce case naming Christopher temporary legal custodian and residential parent of the children. In December 1997, following a hearing to review the ex parte order, the domestic relations court magistrate continued the ex parte order during the pendency of the divorce case. The
{¶ 3} Shortly thereafter, Christine requested the magistrate to issue findings of fact and conclusions of law on his December 1997 temporary custody decision. Judge Spon denied Christine‘s request by holding as follows:
“[O]n December 18, 1997 a magistrate of this Court issued a pretrial order in this cause pursuant to
Civ.R. 75(M) which determined issues of temporary allocation of parental rights and responsibilities of the minor children of the parties, Nic[ ]ole and Cody and temporary child support.“The mechanism[s] established by
Civ.R. 53(E)(2) andCiv.R. 52 regarding findings of fact and conclusions of law are not applicable to pretrial orders issued pursuant toCiv.R. 53(C)(3) . Pretrial orders are by necessity interlocutory in nature and may be entered by a magistrate ‘without judicial approval,’ and magistrates may, but are not required by the civil rules to enter findings of fact and conclusions of law in support of pretrial orders.” (Emphasis sic.)
{¶ 4} Christine then filed a complaint in the court of appeals for a writ of mandamus to compel Judge Spon to require his magistrate to issue findings of fact and conclusions of law pursuant to
{¶ 5} This cause is now before the court upon an appeal as of right.
Richland County Legal Services and Dennis C. Tenison, for appellant.
James J. Mayer, Jr., Richland County Prosecuting Attorney, Nancy H. Massie and Stephen M. Wildermuth, Assistant Prosecuting Attorneys, for appellee.
Per Curiam.
{¶ 6} Appellant and the various amici curiae assert that the court of appeals erred in sua sponte dismissing the mandamus complaint. Sua sponte dismissal of a complaint is appropriate if the complaint is frivolous or the claimant obviously cannot prevail on the facts alleged in the complaint. State ex rel. Luna v. Huffman (1996), 74 Ohio St.3d 486, 487, 659 N.E.2d 1279, 1280; State ex rel. Fogle v. Steiner (1995), 74 Ohio St.3d 158, 161, 656 N.E.2d 1288, 1292. Consequently, we must determine whether appellant‘s mandamus claim is frivolous or obviously without merit. Luna and Fogle, supra.
{¶ 7} Appellant and the amici curiae contend that
{¶ 8} The paramount consideration in construing a statute is legislative intent. State ex rel. Asberry v. Payne (1998), 82 Ohio St.3d 44, 47, 693 N.E.2d 794, 797. In determining legislative intent, we must first review the language of the statute in question. State ex rel. Sinay v. Sodders (1997), 80 Ohio St.3d 224, 227, 685 N.E.2d 754, 758.
{¶ 9}
“When the court allocates parental rights and responsibilities for the care of children or determines whether to grant shared parenting in any proceeding, it shall consider whether either parent has been convicted of or pleaded guilty to a violation of section 2919.25 of the Revised Code involving a victim who at the time of the commission of the offense was a member of the family or household that is the subject of the proceeding, has been convicted of or pleaded guilty to any other
offense involving a victim who at the time of the commission of the offense was a member of the family or household that is the subject of the proceeding and caused physical harm to the victim in the commission of the offense, or has been determined to be the perpetrator of the abusive act that is the basis of an adjudication that a child is an abused child. If the court determines that either parent has been convicted of or pleaded guilty to a violation of section 2919.25 of the Revised Code involving a victim who at the time of the commission of the offense was a member of the family or household that is the subject of the proceeding, has been convicted of or pleaded guilty to any other offense involving a victim who at the time of the commission of the offense was a member of the family or household that is the subject of the proceeding and caused physical harm to the victim in the commission of the offense, or has been determined to be the perpetrator of the abusive act that is the basis of an adjudication that a child is an abused child, it may designate that parent as the residential parent and may issue a shared parenting decree or order only if it determines that it is in the best interest of the child to name that parent the residential parent or to issue a shared parenting decree or order and it makes specific written findings of fact to support its determination.” (Emphasis added.)
{¶ 10} Appellant and the amici curiae rely on the isolated phrase “[w]hen the court allocates parental rights and responsibilities for the care of children * * * in any proceeding” contained in
{¶ 12} After reviewing the entirety of
{¶ 13} Second, this conclusion is consistent with the applicable Rules of Civil Procedure. See
{¶ 14} Third, this result comports with our duty to give
{¶ 15} Fourth, analogous precedent supports this result. Courts have consistently held, for example, that
” ‘An interlocutory order respecting custody of children made pursuant to
Civ.R. 75(M) is by its very nature temporary and is subject to modification upon the entering of the final divorce decree. Therefore, the trial court need not make a finding as to the requirements ofR.C. 3109.04(B) prior to entering a final custody decree, as the provisions ofR.C. 3109.04(B) are only applicable to final decrees awarding custody in the action or a subsequent modification of such final decrees.’ ”See, also, Spence v. Spence (1981), 2 Ohio App.3d 280, 2 OBR 310, 441 N.E.2d 822.
{¶ 16} Finally, mandamus may not be employed as a substitute for an interlocutory appeal. State ex rel. Toledo Metro Fed. Credit Union v. Ohio Civ. Rights Comm. (1997), 78 Ohio St.3d 529, 532, 678 N.E.2d 1396, 1398. The magistrate‘s pretrial order is, as appellant concedes, an interlocutory order. Brooks v. Brooks (1996), 117 Ohio App.3d 19, 22, 689 N.E.2d 987, 989; Lilly v. Lilly (1985), 26 Ohio App.3d 192, 194, 26 OBR 412, 414, 499 N.E.2d 21, 24. Appellant‘s mandamus claim is an improper attempt to garner review of an interlocutory order.
{¶ 17} Admittedly, we have previously recognized the appropriateness of mandamus to compel a trial court to issue findings of fact and conclusions of law when required by statute. See State ex rel. Konoff v. Moon (1997), 79 Ohio St.3d 211, 212, 680 N.E.2d 989, 990. But here,
{¶ 18} Appellant and amici curiae‘s policy arguments in favor of a requirement that magistrates issue findings of fact and conclusions of law in temporary allocation orders are better directed to the General Assembly and the Rules Advisory Committee. See, e.g., Walters v. The Enrichment Ctr. of Wishing Well, Inc. (1997), 78 Ohio St.3d 118, 123, 676 N.E.2d 890, 894, fn. 2.
{¶ 19} Based on the foregoing, we affirm the judgment of the court of appeals.
Judgment affirmed.
MOYER, C.J., DOUGLAS, F.E. SWEENEY, PFEIFER and COOK, JJ., concur.
RESNICK and LUNDBERG STRATTON, JJ., dissent.
THE STATE EX REL. THOMPSON, APPELLANT, v. SPON, JUDGE, APPELLEE.
No. 98-505
SUPREME COURT OF OHIO
Decided November 10, 1998.
LUNDBERG STRATTON, J., dissenting.
{¶ 20} I would find that the court of appeals erred in dismissing appellant‘s complaint because it was neither frivolous nor obviously without merit. In addition, since there is no need for further evidence and argument to resolve this legal issue, I would issue the writ. Therefore, for the following reasons, I respectfully dissent.
{¶ 21} First,
{¶ 22} Second, insofar as
{¶ 23} Third, appeal of the magistrate‘s pretrial order under
Without the written findings of fact specified in
{¶ 24} Fourth, Judge Spon erroneously asserts that the magistrate has complied with the statutory findings requirement by citing the magistrate‘s oral findings at the pretrial hearing. However,
{¶ 25} Fifth, the Thompson and Schoffner cases cited by the majority are not applicable because they addressed the applicability of
{¶ 26} Finally, issuance of a writ of mandamus advances the policy considerations set forth by appellant and amici curiae. ” ‘State statutes need to protect women and children during and after the break-up of relationships because of their continuing, often heightened, vulnerability to violence.’ ” Felton v. Felton (1997), 79 Ohio St.3d 34, 41, 679 N.E.2d 672, 677, quoting Klein & Orloff, Providing Legal Protection for Battered Women: An Analysis of State Statutes and Case Law (1993), 21 Hofstra L.Rev. 801, 816.
{¶ 27} Although these awards are “temporary,” they can last for a considerable time and are often decisive in the ultimate decision to award permanent custody. See, generally, 2 Sowald & Morgenstern, Domestic Relations Law (1997) 154, Section 25.30 (“Practitioners in this field are generally aware that if the time between the temporary order and the final hearing has been prolonged by the temporary residential parent‘s counsel sufficiently, the status quo will likely
{¶ 28} This case reflects the important policy considerations supporting the General Assembly‘s selection of the words “any proceeding” in the text of
{¶ 29} There are potentially harmful effects from the placement of these children in the custody of a convicted abuser. Every day that a child spends with a convicted abuser is critical and may cause irreversible damage. As of May 1998, when the briefs in this case were filed, the court had yet to conduct a final hearing on the matter and the temporary order of November 1997 remained in effect. Unfortunately, the reality is that a final hearing in these types of cases may not take place for months or even years. For these reasons, I believe the General Assembly intended the words “any proceeding” in
{¶ 30} Based on the foregoing, the court of appeals erred in dismissing appellant‘s complaint and not issuing the requested writ. I would therefore reverse the judgment of the court of appeals and issue the writ. Because the majority does not do so, I respectfully dissent.
RESNICK, J., concurs in the foregoing dissenting opinion.