In Re Brant, Unpublished Decision (12-9-2005) , 2005 Ohio 6577 ( 2005 )

{¶ 14} I respectfully dissent. Nothing in the unruly child complaint of appellant Michael Brant references any collateral issue of a change of custody action in Summit County filed by the natural mother, Bonnie Brant, as a basis for their daughter's alleged unruliness. The sole issue raised in the complaint was whether the daughter was unruly.

{¶ 15} In its April 5, 2005 judgment entry, the trial court indicated:

{¶ 16} "[t]his matter came before the [c]ourt pursuant to a [j]udgment [e]ntry of the Eleventh District Court of Appeals remanding this matter to the trial court for the sole purpose of issuing a [j]udgment that is a final appealable order. In case number 04 JD 284, the [c]ourt finds that the complaint therein charging unruliness was improvidently filed as the allegations and demands made in such complaint are not recoverable pursuant to an unruly complaint, and that this [c]ourt has no jurisdiction to satisfy the demands of the complaint. Further, that the decision of the [m]agistrate is hereby approved by this entry. The complaint is therefore dismissed."

{¶ 17} The foregoing judgment entry does not reference remarks made at a pretrial conducted by Magistrate Hough on August 2, 2004, by appellant's attorney suggesting this underlying reason for unruliness was the result of the natural mother filing for a change of custody of their daughter from appellant to her. The trial court makes no nexus in its judgment entry regarding that item and its dismissal with respect to improvidently filed. Also, there was no responsive pleading which raised the issue of jurisdiction.

{¶ 18} Even though "intake" procedures are informal, there should be some factual or legal basis on which to dismiss for lack of jurisdiction. See, generally, In re Fox (June 8, 2001), 11th Dist. No. 2000-P-0008, 2001 Ohio App. LEXIS 2584. Here, the complaint alone does not support this conclusion.

{¶ 19} Thus, this writer believes that the trial court erred and committed an abuse of discretion by sua sponte dismissing the case. I would reverse its decision and remand the matter to the trial court.