Mireles v. Veronie

154 N.E.3d 727

2020 Ohio 3078

Joseph Van Brocklin MIRELES, Appellee

v.Trish R. VERONIE, Appellant

No. 19CA0050-M

Court of Appeals of Ohio, Ninth District, Medina County.

Dated: May 26, 2020

DECISION AND JOURNAL ENTRY

CALLAHAN, Presiding Judge.

{¶1} Appellant, Trish Veronie, appeals a judgment of the Medina County Court of Common Pleas, Domestic Relations Division, that allocated parental rights and responsibilities as part of a divorce decree. This Court reverses.

I.

{¶2} Ms. Veronie ("Mother") and Joseph Van Brocklin Mireles ("Father") married on May 9, 2015, in Louisiana. For a brief period of time, Mother and Father resided in Ohio. By the time that Father filed a complaint for divorce on October 28, 2016, however, Mother had returned to Louisiana. Although Father's employment was based in Louisiana, Father remained in Ohio. The divorce complaint alleged that Mother was pregnant on the date of filing.

{¶3} The parties' daughter, O.V., was born on February 11, 2017, in Louisiana. Genetic testing established Father's paternity. On June 1, 2017, the magistrate determined that under the Uniform Child Custody Jurisdiction and Enforcement Act ("UCCJEA"), Louisiana was O.V.'s home state and, as such, the trial court did not have jurisdiction to make an initial determination of the parties' parental rights and responsibilities. Father moved to set aside the magistrate's order, arguing that because the trial court had jurisdiction over Mother, jurisdiction over the unborn child was automatically established with the filing of the complaint for divorce. At the same time, Father filed an amended complaint that requested an allocation of parental rights and responsibilities with regard to O.V. On January 1, 2018, the trial court set aside the magistrate's order without considering the jurisdictional issue presented under the UCCJEA, reasoning:

Notwithstanding the fact that the minor child was born in Louisiana and has lived there with Wife since her birth, the minor child was born as issue of the parties' marriage. Pursuant to R.C. 3105.21(A), "[u]pon satisfactory proof of the cause in the complaint for divorce * * * the court of common pleas shall make an order for the disposition, care, and maintenance of the children of the marriage[.]" (Emphasis added). Accordingly, the Court finds that not only does it have jurisdiction, but that it is also obligated, by statute, to make an order for the disposition, care and maintenance of the child, as in the child's best interests, and in accordance with R.C. 3109.04.

(Emphasis and alternations in original.) The case proceeded to an uncontested divorce hearing before the magistrate, who recommended that Father be designated the residential parent and legal custodian of O.V. and determined an initial schedule for parenting time. The trial court adopted the magistrate's decision and entered judgment on the same date pursuant to Civ.R. 53(D)(4)(e)(i). Mother objected to the magistrate's decision, arguing that the trial court erred by exercising jurisdiction to make an initial determination of custody under the UCCJEA and that Father did not file an affidavit under UCCJEA.

{¶4} The trial court overruled Mother's objections to its exercise of jurisdiction to allocate parental rights and responsibilities, concluding that O.V. did not have a home state as defined by the UCCJEA, and reasoning that she "had not lived with a parent in either Ohio or Louisiana for at least six consecutive months immediately preceding the commencement of the proceeding" because she had not been born when the proceeding commenced. The trial court then determined that it could exercise jurisdiction over O.V. because Father "had and continues to have significant connection[s] with the State of Ohio" and "but for Mother's refusal to follow the orders of this Court, [O.V.] would undoubtedly have an even stronger, more significant connection with Ohio." The trial court also permitted Father to file a custody affidavit, as required by the UCCJEA, after the fact. The trial court designated Father as the residential parent, awarded long-distance parenting time to Mother, and ordered Mother to pay child support to Father. Mother filed this appeal.

II.

ASSIGNMENT OF ERROR NO. 1

[THE] TRIAL COURT ABUSED ITS DISCRETION WHEN IT RULED THAT OHIO HAS JURISDICTION OVER THE MINOR CHILD ALLOWING THE TRIAL COURT TO ALLOCATE PARENTAL RIGHTS AND RESPONSIBILITIES WHEN THE MINOR CHILD WAS BORN IN LOUISIANA AND HAS NEVER BEEN TO OHIO[.]

{¶5} In her first assignment of error, Mother argues that the trial court erred by determining that O.V. did not have a home state under the UCCJEA and, in the alternative, that the trial court erred by determining that O.V. had significant connections with the State of Ohio.

{¶6} "The UCCJEA, codified in Ohio at R.C. Chapter 3127, gives jurisdictional priority and exclusive continuing jurisdiction to the courts of a child's ‘home state.’ " C.H. v. O'Malley , 158 Ohio St.3d 107, 2019-Ohio-4382, 140 N.E.3d 589, ¶ 13, quoting Rosen v. Celebrezze , 117 Ohio St.3d 241, 2008-Ohio-853, 883 N.E.2d 420, ¶ 21. Determinations under the UCCJEA are matters of subject matter jurisdiction. Ball v. Meier , 9th Dist. Summit Nos. 26079, 2012-Ohio-5864, 2012 WL 6206659, ¶ 13. See also Rosen at ¶ 44 ("[T]his is not a mere error in the exercise of jurisdiction; it is a defect in the Ohio court's subject-matter jurisdiction."). As a general rule, this Court reviews issues related to subject matter jurisdiction de novo. Weber v. Devanney , 9th Dist. Summit Nos. 28876, 2018-Ohio-4012, 2018 WL 4782161, ¶ 11, citing Falah v. Falah , 9th Dist. Medina, 2017-Ohio-1087, 87 N.E.3d 763, ¶ 8. Although this Court has applied an abuse of discretion standard in some cases addressing the exercise of jurisdiction under the UCCJEA, we review a trial court's threshold determination regarding whether it has subject matter jurisdiction de novo. See Johnson v. Kelly , 10th Dist. Franklin No. 14AP-1037, 2015-Ohio-2666, 2015 WL 3964176, ¶ 13-14.

{¶7} The UCCJEA defines an "initial determination" of custody as "the first child custody determination concerning a particular child." R.C. 3127.01(B)(8). A "child custody determination," in turn, is "a judgment, decree, or other order of a court that provides for legal custody, physical custody, parenting time, or visitation with respect to a child." R.C. 3127.01(B)(3). It includes "an order that allocates parental rights and responsibilities" in "permanent, temporary, initial, and modification orders." Id. Divorce involving a minor child is a child custody proceeding for purposes of the UCCJEA. R.C. 3127.01(B)(4). The jurisdiction granted to a domestic relations court to allocate parental rights and responsibilities by statute does not trump application of the UCCJEA. To the contrary, "the mere fact that the Ohio court has basic statutory jurisdiction to determine custody matters in legal-separation and divorce cases * * * does not preclude a more specific statute like R.C. 3127.15 [the UCCJEA] from patently and unambiguously divesting the court of such jurisdiction." Rosen at ¶ 46, citing State ex rel. Kaylor v. Bruening , 80 Ohio St.3d 142, 146, 684 N.E.2d 1228 (1997). See , e.g. , Berube v. Berube , 5th Dist. Stark No. 2017CA00102, 2018-Ohio-828, 2018 WL 1168722 (concluding that an Ohio court lacked jurisdiction to determine custody issues in a divorce case because another state had home-state jurisdiction under the UCCJEA). See also In Interest of D.S. , 555 S.W.3d 301, 319 (Tex. App. 2018), citing In re Dean , 393 S.W.3d 741, 746-747 (Tex. 2012) and Seligman-Hargis v. Hargis , 186 S.W.3d 582, 586 (Tex. App. 2006) ("A trial court can have jurisdiction over a divorce proceeding, but not have jurisdiction over child custody determinations under the UCCJEA.").

{¶8} Ohio and Louisiana have adopted the UCCJEA. See generally R.C. Chapter 3127; La. Rev.Stat.Ann. 13:1801 et seq. Under the UCCJEA an Ohio court has jurisdiction to make an initial determination of custody when Ohio "is the home state of the child on the date of the commencement of the proceeding, or was the home state of the child within six months before the commencement of the proceeding and the child is absent from this state but a parent or person acting as a parent continues to live in this state." R.C. 3127.15(A)(1). Apart from jurisdiction under R.C. 3127.15(A)(1), an Ohio Court may also make an initial determination when:

(2) A court of another state does not have jurisdiction under division (A)(1) of this section or a court of the home state of the child has declined to exercise jurisdiction on the basis that this state is the more appropriate forum under section 3127.21 or 3127.22 of the Revised Code, or a similar statute of the other state, and both of the following are the case:

(a) The child and the child's parents, or the child and at least one parent or a person acting as a parent, have a significant connection with this state other than mere physical presence.

(b) Substantial evidence is available in this state concerning the child's care, protection, training, and personal relationships.

(3) All courts having jurisdiction under division (A)(1) or (2) of this section have declined to exercise jurisdiction on the ground that a court of this state is the more appropriate forum to determine the custody of the child under section 3127.21 or 3127.22 of the Revised Code or a similar statute enacted by another state.

(4) No court of any other state would have jurisdiction under the criteria specified in division (A)(1), (2), or (3) of this section.

R.C. 3127.15(A)(2)-(4). The Supreme Court of Ohio has recognized that "the UCCJEA, as codified in Ohio, provides four types of initial child-custody jurisdiction: home-state jurisdiction, significant-connection jurisdiction, jurisdiction because of declination of jurisdiction, and default jurisdiction." Rosen at ¶ 31. These four bases for jurisdiction, however, are not merely alternatives: they...