Mumford v. Shackleton , 2011 Ohio 5583 ( 2011 )

[Cite as Mumford v. Shackleton, 2011-Ohio-5583.]
COURT OF APPEALS
STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STEPHEN M. MUMFORD, : JUDGES:
:
: Hon. W. Scott Gwin, P.J.
Plaintiff-Appellant, : Hon. William B. Hoffman, J.
: Hon. Patricia A. Delaney, J.
v. :
: Case No. 2011-CA-00107
DANA SHACKLETON, :
:
:
Defendant-Appellee. : OPINION
CHARACTER OF PROCEEDING: Appeal from the Stark County Court of
Common Pleas, Family Division, Case No.
2011DR00302
JUDGMENT: AFFIRMED
DATE OF JUDGMENT ENTRY: October 24, 2011
APPEARANCES:
For Plaintiff-Appellant: For Defendant-Appellee:
ROSEMARY G. RUBIN MATTHEW W. OBERHOLTZER
The Victorian Professional Building 116 Cleveland Avenue NW
1435 Market Ave. North Courtyard Centre/Suite 650
Canton, Ohio 44714 Canton, Ohio 44702
[Cite as Mumford v. Shackleton, 2011-Ohio-5583.]
Delaney, J.
{¶ 1} Appellant Stephen M. Mumford, a resident of Stark County, appeals the
May 9, 2011 judgment of the Stark County Court of Common Pleas, Family Division,
which denied temporary emergency jurisdiction over Appellant’s minor child A.Y., a
resident of Philadelphia, Pennsylvania.
{¶ 2} Appellant and Appellee Dana Shackleton married on June 13, 2002, in
North Carolina and A.Y. was born issue of the marriage on December 23, 2003. The
couple has lived separate and apart since March, 2008. At that time, Appellee and A.Y.
moved to Philadelphia.
{¶ 3} On March 11, 2011, Appellant filed for divorce in Stark County and sought
temporary allocation of parental rights and responsibilities for A.Y. The same day,
Appellant filed a motion for ex parte order requiring that A.Y. remain in the jurisdiction
of Stark County pursuant to R.C. 3127.18(A)(2) and R.C. 3127.15. Appellant alleged he
was contacted by relatives of Appellee to retrieve A.Y. when Appellee was about to be
incarcerated in Philadelphia. Appellant further alleged that Appellee had lost her
apartment and there was no satisfactory place for A.Y. to live. Lastly, Appellant alleged
A.Y. had missed a considerable amount of school due to Appellee’s excessive drinking.
{¶ 4} A magistrate issued an ex parte order placing A.Y. in Appellant’s
temporary custody, allowing Appellant to enroll A.Y. in school and preventing either
parent from removing A.Y. from Stark County until further order of the court. The
magistrate also appointed a guardian ad litem.
{¶ 5} The matter was set for hearing on March 23, 2011. The same day,
Appellee filed a motion to dismiss the divorce complaint and ex parte order on the
Stark County, Case No. 2011-CA-00107 3
grounds the Stark County Court of Common Pleas lacked jurisdiction over the minor
child and sought immediate return of A.Y. to Pennsylvania.
{¶ 6} At hearing, the trial court heard the arguments of counsel regarding
jurisdiction and took the matter under advisement. The trial court also referred the
matter to the Stark County Department of Job and Family Services due to the
allegations of neglect, dependency and abuse of A.Y.
{¶ 7} On April 21, 2011, Appellee filed a motion for return of A.Y., which was
originally set for hearing on May 16, 2011, however, it was continued until June 27,
2011.
{¶ 8} On May 9, 2011, the trial court issued the following order:
{¶ 9} “The Court finds that Pennsylvania is the home state of the parties’ child,
pursuant to ORC 3127.15. No action has been filed in Pennsylvania. ORC 3127.18
does not confer authority for this court to issue emergency custody orders as there is
insufficient evidence to convince this court that the child is abandoned, mistreated or
abused. The allegations of potential neglect are insufficient to warrant this court to
confer emergency jurisdiction. All orders with regard to [A.Y.] DOB 12/23/2003 are
vacated. The child is to be returned to the legal custody of his mother, Dana
Shackelton [sic]. The Stark County Sheriff and/or any police agency having jurisdiction
are directed to facilitate the return of the child to his mother forthwith.”
{¶ 10} Subsequently, both the trial court and this Court denied Appellant’s motion
to stay the May 9th order.
{¶ 11} Appellant filed a timely appeal.
{¶ 12} Assignments of Error are as follows:
Stark County, Case No. 2011-CA-00107 4
{¶ 13} “I. THE TRIAL COURT ERRED IN DISMISSING THE ISSUE OF
CUSTODY AND FINDING THAT OHIO REVISED CODE §3127.18 DID NOT CONFER
AUTHORITY ON THE COURT TO ISSUE EMERGENCY CUSTODY ORDERS.
{¶ 14} “II. THE TRIAL COURT ERRED IN NOT GRANTING
PLAINTIFF/APPELLANT ADDITIONAL TIME TO PRESENT EVIDENCE OF THE
ABUSE AND MISTREATMENT OF [A.Y.] BY THE DEFENDANT/APPELLEE.
{¶ 15} “III. THE TRIAL COURT ERRED IN GRANTING LEGAL CUSTODY TO
THE DEFENDANT/APPELLEE WHEN NO CUSTODY DETERMINATION HAD BEEN
RENDERED UNDER OHIO REVISED CODE §3109.03.”
I.
{¶ 16} In the first Assignment of Error, Appellant argues the trial court erred in
concluding it lack jurisdiction to issue emergency custody orders pursuant to R.C.
3127.18(A)(2) under the facts of this case. We disagree.
{¶ 17} The Uniform Child Custody Jurisdiction and Enforcement Act (“UCCJEA”),
as codified in Ohio R.C. Chapter 3127, is designed to avoid jurisdictional conflicts and to
promote cooperation between state courts in custody matters so that a decree is
rendered in the state that can best decide the best interest of the child. State ex rel.
Aycock v. Mowrey (1989), 45 Ohio St.3d 347, 349-350, 554 N.E.2d 657 (citations
omitted). A trial court’s decision as to whether to exercise jurisdiction pursuant to the
UCCJEA should only be reversed upon a showing of an abuse of discretion. In The
Matter of Collins, 5th Dist. No. 06CA000028, 2007-Ohio-4582, at ¶ 15. The Ohio
Supreme Court has stated abuse of discretion “connotes more than an error of law or
judgment; it implies that the court’s attitude is unreasonable, arbitrary or
Stark County, Case No. 2011-CA-00107 5
unconscionable.” Blakemore v. Blakemore (1983), 5 Ohio St.3d 217, 219, 450 N.E.2d
1140.
{¶ 18} R.C. 3127.18(A)(2) authorizes Ohio courts to exercise temporary
emergency jurisdiction over children when “ * * * [i]t is necessary in an emergency to
protect the child because the child * * * is subjected to or threatened with mistreatment
or abuse.”
{¶ 19} In this case, the trial court heard arguments of counsel and subsequently
determined there was “insufficient evidence to convince the court that the child is
abandoned, mistreated or abused.” Judgment Entry, May 9, 2011.
{¶ 20} On appeal, Appellant contends he traveled to Philadelphia to pick up his
son because Appellee’s family notified him that Appellee had been arrested and was
about to be evicted. Furthermore, Appellant was told that if he did not come and get
A.Y., the child would be sent to foster services. Lastly, once A.Y. was enrolled in a Ohio
school, it was discovered that he had not attended school regularly in Philadelphia.
{¶ 21} Although the UCCJEA does not specifically define “mistreatment” or
“abuse”, it does not appear from the record that A.Y. was subject to or threatened with
physical or mental injury. See, R.C. 2151.03.1. Moreover any failure to provide a
proper education to A.Y. appears to be more in the realm of neglect, as noted by the
trial court. See, R.C. 2151.03(A)(3).
{¶ 22} The circumstances of this case, while calling into question the capacity of
Appellee to provide adequate care to this 7 year-old child, does not support a finding by
this Court that the trial court was unreasonable, arbitrary or unconscionable in
concluding that emergency jurisdiction was not warranted.
Stark County, Case No. 2011-CA-00107 6
{¶ 23} Although not separately stated as an assignment of error, Appellant also
argues in his brief that the trial court had jurisdiction over A.Y. custody’s pursuant to
R.C. 3127.15, because A.Y. resided with Appellant when the divorce petition was filed
and A.Y. had lived in Ohio prior to relocation with Appellee to Philadelphia in 2008.
{¶ 24} R.C. 3127.15 provides, as follows:
{¶ 25} “(A) Except as otherwise provided in section 3127.18 of the Revised
Code, a court of this state has jurisdiction to make an initial determination in a child
custody proceeding only if one of the following applies:
{¶ 26} “(1) This state is the home state of the child on the date of the
commencement of the proceedings, or was the home state of the child within six
months before the commencement of the proceedings and the child is absent from this
state but a parent or person acting as a parent continues to live in this state.
{¶ 27} “(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:
{¶ 28} “(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.
{¶ 29} “(b) Substantial evidence is available in this state concerning the child’s
care, protection, training, and personal relationships.
{¶ 30} “ * * *.”
Stark County, Case No. 2011-CA-00107 7
{¶ 31} “ ‘Home state’ means the state in which the child lived with a parent or
person acting as a parent for at least six consecutive months immediately preceding the
commencement of a child custody proceeding * * *.” R.C. 3127.01(B)(7)
{¶ 32} Appellant agrees the trial court’s determination that Pennsylvania is the
home state of A.Y. is factually correct, but contends that subsection (2), above, applies
because most of A.Y.’s life was spent in Ohio and Appellant has equal parental rights.
However, this no indication in the record that A.Y. had spent any time in Ohio for 3
years preceding the divorcing filing (apparently Appellant only had telephone
communication with A.Y.), nor is there “substantial evidence” available in Ohio
concerning his care and personal relationships.
{¶ 33} Accordingly, we find Appellant’s contention that jurisdiction was warranted
under R.C. 3127.15 to be without merit.
{¶ 34} The first Assignment of Error is overruled.
II.
{¶ 35} In the second Assignment of Error, Appellant contends the trial court
should have conducted an evidentiary hearing and taken additional evidence as to
whether A.Y. was subject to mistreatment or abuse. Appellant claims records from the
Stark County Department of Jobs and Family Services (DJFS) were subsequently
obtained by the trial court after the March 23rd hearing and May 9th order, which would
establish that Appellee failed to properly provide for A.Y. while they lived in Ohio.
{¶ 36} However, the record fails to indicate that the trial court in fact received or
reviewed any records from DJFS during the underlying proceedings. The trial court also
did not indicate in its May 9th order that it had obtained, reviewed or relied upon such
Stark County, Case No. 2011-CA-00107 8
records. Appellant apparently seeks to have the trial court reopen the matter and take
additional evidence after the May 9th dismissal order. This issue was not raised before
the trial court, and therefore, is not properly before this Court.
{¶ 37} Accordingly, the second Assignment of Error is overruled.
III.
{¶ 38} In the third Assignment of Error, Appellant challenges the trial court’s
granting of legal custody of A.Y. to Appellee when no previous custody matter had been
determined. Appellant relies upon R.C. 3109.03 for his position.
{¶ 39} R.C. 3109.03 states:
{¶ 40} “When husband and wife are living separate and apart from each other, or
are divorced, and the question as to the parental rights and responsibilities for the care
of their children and the place of residence and legal custodian of their children is
brought before a court of competent jurisdiction, they shall stand upon an equality as to
the parental rights and responsibilities for the care of their children and the place of
residence and legal custodian of their children, so far as parenthood is involved.”
(Emphasis added).
{¶ 41} Appellant insists this matter must be remanded to the trial court for further
testimony to allow the trial court to make a full determination as to both jurisdiction and
the best interest of A.Y.
{¶ 42} In this case, we find Appellant’s reliance upon R.C. 3109.03 to be
misplaced. The trial court determined it did not have emergency jurisdiction to make an
initial child-custody determination pursuant to R.C. 3127.18, and thus would not be a
“court of competent jurisdiction” under R.C. 3109.03.
Stark County, Case No. 2011-CA-00107 9
{¶ 43} Additionally, the Ohio Supreme Court has noted that the UCCJEA gives
jurisdictional priority to the child’s home state and eliminates a determination of best
interest of the child from the original jurisdictional inquiry. Rosen v. Celebrezze, 117
Ohio St.3d 241, 2008-Ohio-853, ¶ 21, 883 N.E.2d 420.
{¶ 44} The third Assignment of Error is overruled.
{¶ 45} The judgment of the Stark County Court of Common Pleas, Family
Division, is hereby affirmed.
By: Delaney, J.
Gwin, P.J. and Hoffman, J. concur.
HON. PATRICIA A. DELANEY
HON. W. SCOTT GWIN
HON. WILLIAM B. HOFFMAN
[Cite as Mumford v. Shackleton, 2011-Ohio-5583.]
IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STEPHEN M. MUMFORD, :
:
Plaintiff-Appellant, :
:
:
v. : JUDGMENT ENTRY
:
DANA SHACKLETON, :
:
Defendant-Appellee. : Case No. 2011-CA-00107
:
For the reasons stated in our accompanying Memorandum-Opinion on file, the
judgment of the Stark County Court of Common Pleas, Family Division, is affirmed.
Costs assessed to Appellant.
_________________________________
HON. PATRICIA A. DELANEY
_________________________________
HON. W. SCOTT GWIN
_________________________________
HON. WILLIAM B. HOFFMAN