In re M.R.F.-C.

158 N.E.3d 688

IN RE: M.R.F.-C. & E.J.F.-C.

No. 28683

Court of Appeals of Ohio, Second District, Montgomery County.

Rendered on September 11, 2020

MATTHEW C. SORG, Atty. Reg. No. 0062971 & EBONY D. DAVENPORT, Atty. Reg. No. 0098041, 40 North Main Street, Suite 2700, Dayton, Ohio 45423, Attorneys for Mother.

JAMES R. KIRKLAND, Atty. Reg. No. 0009731, 10532 Success Lane, Dayton, Ohio 45458, Attorney for Father.

OPINION

FROELICH, J.

{¶ 1} Mother appeals from judgments of the Montgomery County Court of Common Pleas, Juvenile Division, which concluded that it lacked subject matter jurisdiction over the parties' child custody cases. Mother claims that the trial court erred in concluding that it did not have exclusive continuing jurisdiction as the home state, and that it erred in failing to hold a due process hearing before declining jurisdiction. For the following reasons, the trial court's judgments will be affirmed.

I. Procedural History

{¶ 2} Mother and Father, who have never married, have twin sons born in January 2007. The couple separated in October or November 2007, and Father moved to Grand Rapids, Michigan, where his parents lived. In January 2008, Father filed a petition in the Montgomery County juvenile court to establish parenting time and child support. The trial court entered orders establishing visitation and child support amounts for Father.

{¶ 3} In August 2011, Mother filed a motion to terminate child support in the juvenile court. She indicated that she and Father had been working toward building a joint family home for their children and had recently purchased a house together in Grand Rapids. The court granted Mother's motion. The parties took no further action in the case for several years.

{¶ 4} On September 23, 2019, Father filed a motion in Montgomery County to transfer the case to Michigan. Father indicated that Mother had taken the children to Ohio several times in August and early September, and the last trip had caused the boys to miss four days of school. Father further stated that, on September 7, Mother "removed the children from the home and stated that she was taking them to Ohio with her." Father asked that the case be transferred to Michigan, the residence of both parties and where the boys had lived most of their lives. Father further asked that any filing by Mother be stayed. The trial court denied the motion "as no case [was] pending" in this court to transfer.

{¶ 5} Father then filed a motion in the Kent County Circuit Court in Michigan, asking it to accept jurisdiction. On October 10, Mother filed a motion in Montgomery County for reallocation of parental rights and responsibilities. The magistrate in Ohio scheduled a hearing for January 7, 2020.

{¶ 6} On October 22, 2019, the Michigan court granted Father's motion and accepted jurisdiction over the parties' custody matter. The Michigan court's order indicated that it had considered Father's motion to accept jurisdiction and "argument made by Plaintiff and Defendant's counsel on October 11, 2019." The Michigan court further stated that it had consulted with the magistrate in the Montgomery County juvenile court pursuant to the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), and both courts agreed that the Kent County court was the more appropriate forum due to the family's residing there since 2010.

{¶ 7} A week later, Mother filed a motion in the Montgomery County court, asking it to retain jurisdiction and for a hearing. Mother argued that the Ohio court had exclusive, continuing jurisdiction until the Ohio court or the court of another state determined that a parent or the children did not "presently reside" in Ohio.

Mother asserted that she then lived in Ohio and had for the past month.

{¶ 8} The magistrate denied Mother's motion. The magistrate found that, when Mother filed her motion to reallocate parental rights and responsibilities, neither the parties nor the children resided in Ohio within the meaning of R.C. 3127.16. The magistrate relied on Slaughter v. Slaughter , 10th Dist. Franklin No. 11AP-997, 2012-Ohio-3973, 2012 WL 3758330, which held that a court's exclusive continuing jurisdiction under R.C. 3127.16 ceases when the parents and children no longer reside in the original decree state. The magistrate found that the parties and their sons had resided Michigan since 2010 and that Mother and the boys were in Ohio for only one month prior to her filing her motion. The magistrate concluded that it lacked exclusive jurisdiction, that Michigan was the children's home state, and that the Ohio court lacked jurisdiction to entertain the child custody proceeding.

{¶ 9} Mother filed objections, and Father opposed the objections. The trial court succinctly summarized the parties' arguments, stating:

* * * [Mother] asserts that because she returned to the State of Ohio with the children, and the most recent order (from 2008) was issued in Ohio, Ohio has not lost its exclusive continuing jurisdiction to modify its own order. [Mother] also argues that the Magistrate erred in his interpretation of Slaughter v. Slaughter , 2012-Ohio-3973 [2012 WL 3758330] (10th Dist.). In conclusion, [Mother] requests the Court to grant her objections and set the matter for a hearing on her Request for Modification of Parenting Time under the exclusive, continuing jurisdiction of this Court.

* * * [Father] asserts that Michigan is the child's "home state" pursuant to R.C. 3127 as the parties have fully lived in the state of Michigan for approximately 9 years, having Michigan driver's licenses, registering to vote in Michigan, utilizing Michigan school systems, and with Mother owning 1/2 of the family home in Michigan. Therefore, [Father] argues that Mother's move [to] Ohio in September 2019, a month before filing her motion, does not decide domicile or residency, and none of the parties "reside" in the state of Ohio within the meaning of R.C. 3127.16.

{¶ 10} On December 20, 2019, the trial court overruled Mother's objections. The trial court concluded that, although Ohio was the children's "home state" when the initial custody proceedings occurred in 2008, Ohio was no longer the children's home state, "as none of the parties or children have resided in this state for a period of 6 months prior to filing of Mother's modification action. As such, this Court no longer has exclusive jurisdiction over this matter." The trial court noted that some Ohio appellate districts have held that a court does not lose its "continuing" jurisdiction even if it loses its "exclusive" jurisdiction. The trial court distinguished those cases, stating that the "dispositive consideration" appeared to be the lack of another state's court's attempting to exercise jurisdiction. In this case, the Michigan court agreed to accept jurisdiction, and the trial court concluded that the Michigan court could properly exercise jurisdiction and was the more appropriate forum.

{¶ 11} Finally, citing State ex rel. Seaton v. Holmes , 100 Ohio St.3d 265, 2003-Ohio-5897, 798 N.E.2d 375, the trial court noted that the Ohio Supreme Court had held, when interpreting the previous UCCJA and the Parental Kidnapping Prevention Act, that a party who leaves the jurisdiction, establishes residency elsewhere, and then attempts to reestablish residence in the original state fails to satisfy the statutory residency requirement. The trial court thus held that subject matter jurisdiction was lacking. The court denied Mother's motion to retain jurisdiction, dismissed Mother's motion for reallocation of parental rights, and vacated the scheduled hearing.

{¶ 12} Mother appeals, raising two assignments of error, which state:

1. The trial court erred in finding that Ohio lacked continuing jurisdiction as the "home state."

2. The trial court erred in failing to hold a due process hearing before declining jurisdiction as required by the UCCJEA.

{¶ 13} We review de novo review the trial court's determination regarding the existence of subject matter jurisdiction, because such a determination is a question of law. In re A.G.B. , 2d Dist. Montgomery No. 28682, 2020-Ohio-3388, 2020 WL 3397922, ¶ 13 ; Baker v. Baker , 2d Dist. Montgomery No. 27850, 2018-Ohio-3065, 2018 WL 3700844, ¶ 34.

II. Jurisdiction under UCCJEA

{¶ 14} "The purpose of the UCCJEA is to help resolve interstate custody disputes and to avoid jurisdictional competition with courts of other jurisdictions in custody matters." Lafi v. Lafi , 2d Dist. Miami No. 2007 CA 37, 2008-Ohio-1871, 2008 WL 1759083, ¶ 9, citing State ex rel. Morenz v. Kerr , 104 Ohio St.3d 148, 2004-Ohio-6208, 818 N.E.2d 1162, ¶ 16. In Ohio, the Act is codified in R.C. Chapter 3127.

{¶ 15} The UCCJEA replaced the Uniform Child Custody Jurisdiction Act ("UCCJA"), which was drafted in 1968 and adopted by Ohio in 1977. See Justis v. Justis , 81 Ohio St.3d 312, 314, 691 N.E.2d 264 (1998), citing former R.C. 3109.21 to 3109.37. As with the later UCCJEA, "[a] purpose of the UCCJA was ‘to avoid jurisdictional competition and conflict with courts of other jurisdictions’ in custody matters." (Citation omitted.) Rosen v. Celebrezze , 117 Ohio St.3d 241, 2008-Ohio-853, 883 N.E.2d 420, ¶ 20.

{¶ 16} "To bolster the effectiveness of the UCCJA," Congress passed the Parental Kidnapping Prevention Act ("PKPA"), 28 U.S.C. 1738A, in 1980, which mandated that states "afford full faith and credit to valid child custody orders of another state court." Justis at 315, 691 N.E.2d 264 ; State ex rel. Morenz at ¶ 16. The Ohio Supreme Court held that when the Ohio version of the UCCJA conflicted with the PKPA, the PKPA prevailed. State ex rel. Seaton , 100 Ohio St.3d 265, 2003-Ohio-5897, 798 N.E.2d 375, at ¶ 16.

{¶ 17} Under the UCCJA and the PKPA, a state court that rendered an initial custody decree had "exclusive jurisdiction over the ongoing custody dispute if that state has continuing jurisdiction. " (Emphasis sic.) State ex rel. Seaton at ¶ 9, quoting Justis at syllabus. The PKPA provides that the ...