In re R.M.S.N.

[Cite as In re R.M.S.N., 2017-Ohio-9007.]
STATE OF OHIO, BELMONT COUNTY

IN THE COURT OF APPEALS

SEVENTH DISTRICT

IN RE: ) CASE NOS. 16 BE 0034
) 16 BE 0035
R.M.S.N., )
T.M.L.N., ) OPINION
)
MINOR CHILDREN )
)
)

CHARACTER OF PROCEEDINGS: Civil Appeals from the Court of Common
Pleas, Juvenile Division, of Belmont
County, Ohio
Case Nos. 13JG661; 13JG660

JUDGMENT: Affirmed.

APPEARANCES:

For Appellee: Atty. Joseph A. Varvra
Vavra Law Office
132 W. Main Street
St. Clairsville, Ohio 43950
No Brief Filed

For Appellant: Atty. Elgine Heceta McArdle
McArdle Law Office
2139 Market Street
Wheeling, West Virginia 26003

JUDGES:

Hon. Cheryl L. Waite
Hon. Gene Donofrio
Hon. Mary DeGenaro

Dated: December 11, 2017
[Cite as In re R.M.S.N., 2017-Ohio-9007.]
WAITE, J.

{¶1} In these consolidated appeals, Appellant Oscar Norris is challenging

decisions of the Belmont County Court of Common Pleas, Juvenile Division, granting

Appellee Heather Beasley’s motion to dismiss his request for a change in parenting

time for lack of jurisdiction and ordering the transfer of the parties’ child custody

matters to Rowan County, North Carolina. Appellant argues the trial court erred in

failing to rule on his motion for contempt regarding Appellee’s relocation of the

children to North Carolina without filing a notice of intent to relocate. Appellant also

contends the trial court erred in declining to exercise jurisdiction over child custody

matters pursuant to the Uniform Child Custody Jurisdiction and Enforcement Act

(UCCJEA). For the reasons below, neither of Appellant’s arguments have merit.

Pursuant to R.C. 3127.16, the trial court has exclusive, continuing jurisdiction until a

court determines that none of the parties reside in Ohio. Further, utilizing the factors

set forth in R.C. 3127.21(B), the trial court determined that the North Carolina forum

was more convenient and appropriate, regardless of any alleged contemptuous

conduct by Appellee. Therefore, based on this record, the judgments of the trial court

are affirmed.

Statement of the Facts and Case

{¶2} The parties had been married and had two children, R.M.S.N. and

T.M.L.N. Subsequent to the parties’ divorce, they entered into a shared parenting

plan relative to their children in the Family Court of Ohio County, West Virginia on

January 24, 2012. The parties had lived in West Virginia during the marriage, and it

appears that Appellant continues to reside in that state. Appellee had moved to
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Belmont County, Ohio by August of 2011, and in May of 2013, Appellee sought a

domestic violence civil protection order in Belmont County against Appellant based

on a series of threatening text messages she had received from him. A hearing was

held on May 2, 2013. Appellee testified and one of the minor children was

interviewed by the court. The Belmont County Court of Common Pleas issued a

domestic violence civil protection order on May 8, 2013. Appellant’s parenting time

was suspended for the duration of the civil protection order, which expired on May 2,

2014.

{¶3} On August 28, 2013, while the civil protection order was in effect,

Appellee filed a motion to transfer jurisdiction of the parenting matters to Ohio. In her

motion to transfer, Appellee stated that she and the children had been residing in

Belmont County, Ohio since August of 2011, before the shared parenting agreement

was issued in West Virginia, and that the children had been enrolled in school in the

Shadyside School District since that time. Appellant did not dispute that Appellee

and the children had been living in Ohio but did oppose transferring jurisdiction to

Belmont County. A hearing was held on November 1, 2013. Both parties were

present with counsel. Appellee sought not only to transfer jurisdiction of the

parenting matters to Ohio but also to terminate the existing shared parenting

agreement. While opposing the motion, Appellant did acknowledge the children had

been living in Belmont County for at least six months prior to the filing of Appellee’s

motion. By this time, Appellant no longer resided in Ohio County, West Virginia and

had relocated to Hancock County, West Virginia. The Belmont County Court of
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Common Pleas, Juvenile Division granted Appellee’s motion and accepted

jurisdiction of the parties’ child custody matters in a judgment entry dated January 8,

2014. The court noted that the children had attended the same school for two years

and that Appellant had not exercised any parenting time since the civil protection

order was issued. The judge concluded that there had been a change in

circumstance and proceeded to evaluate the factors enumerated in R.C.

3109.04(F)(1)(a)-(j). Based on these factors, the court terminated the shared

parenting agreement. Appellant was granted parenting time with the children every

other Saturday from 10:00 a.m. to 6:00 p.m. Appellant never appealed that judgment

nor did he make any attempt to enforce that order despite being estranged from his

children for some time.

{¶4} It is undisputed that Appellee and the children moved to North Carolina

in December of 2013. She relocated out of state without first seeking permission

from the Belmont County Common Pleas Court. On May 12, 2015, Appellee filed a

notice seeking registration of a foreign order in the trial court of Rowan County, North

Carolina. Appellant filed a response in opposition on June 12, 2015. Appellant also

filed a motion seeking a modification of his parenting time and alleging contempt on

the part of Appellee with the Belmont Court on June 15, 2015. Appellee filed a

motion to dismiss Appellant’s Belmont County action for lack of jurisdiction on

September 4, 2015. In Appellant’s September 18, 2015 response he contended that

the UCCJEA and Ohio statutes prohibited North Carolina from taking jurisdiction of

any of the parenting issues.
 -4-

{¶5} A hearing on the matter was held on March 11, 2016. On March 17,

2016 the magistrate issued a decision taking the jurisdictional dispute under

advisement, but also ordering the minor children to contact Appellee every Sunday at

6:00 p.m. On March 21, 2016, a second magistrate’s decision was issued declining

to exercise jurisdiction over the matter and concluding that the North Carolina court

was the most convenient forum, pursuant to R.C. 3127.21(B).

{¶6} Appellant filed objections to the magistrate’s decision which were

overruled by the trial court on May 26, 2016. Appellee filed a motion for

reconsideration on July 26, 2016 which was also denied. Appellant then filed these

timely appeals, which have been consolidated. For the sake of clarity, Appellant’s

assignments of error will be addressed together.

ASSIGNMENT OF ERROR NO. 1

THE TRIAL COURT ABUSED ITS DISCRETION IN FAILING TO

ADDRESS THE MAGISTRATE'S DENIAL OF JURISDICTION OVER

APPELLANT'S PETITION FOR CONTEMPT.

ASSIGNMENT OF ERROR NO. 2

THE TRIAL COURT ABUSED ITS DISCRETION IN FAILING TO

REVERSE THE MAGISTRATE'S RULING WHICH DECLINED TO

EXERCISE JURISDICTION OVER A CUSTODY ORDER MADE IN

BELMONT COUNTY, OHIO WHERE NO CUSTODY LITIGATION WAS

OPEN IN NORTH CAROLINA.
 -5-

{¶7} Appellant contends that the trial court erred in declining to take

jurisdiction of the child custody matters at issue contrary to Ohio statutes and the

UCCJEA.

{¶8} The purpose of the UCCJEA is to avoid conflicts between different

states when there is a child custody dispute. Ohio has codified the UCCJEA in R.C.

3127.01, et seq. The Act’s intent was to ensure that a particular state would not

exercise jurisdiction over a child custody matter if a court in another state was

already exercising jurisdiction over the same matter. Rosen v. Celebrezze, 117 Ohio

St.3d 241, 2008-Ohio-853, at ¶ 20-21.

{¶9} An appellate court will only reverse a trial court’s determination not to

exercise jurisdiction under the UCCJEA if there has been an abuse of discretion. In

re N.R., 7th Dist. No. 09-MA-85, 2010-Ohio-753, at ¶ 12. Abuse of discretion

connotes more than an error of judgment; it implies that the trial court’s attitude was

arbitrary, unreasonable, or unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d

217, 219 (1983).

{¶10} R.C. 3127.15(A) provides the exclusive jurisdictional basis for making a

determination on child custody by an Ohio court. R.C. 3127.15(B):

(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:
 -6-

(1) This state 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.

(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 * * * 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 * * *.

(4) No court of any other state would have jurisdiction under the criteria

specified in division (A)(1), (2), or (3) of this section.
 -7-

R.C. 3127.15(A).

{¶11} R.C. 3127.01(B)(7) defines “home state” as the state in which a child

lived with a parent or a person acting as a parent for at least six consecutive months

immediately preceding the commencement of a child custody proceeding.

{¶12} In the instant case, all parties agree that Appellee has lived in Rowan

County, North Carolina since December of 2013 with both minor children. As such,

North Carolina, and not Ohio, is considered the home state pursuant to R.C.

3127.15(A)(1). Moreover, Belmont County could not have taken jurisdiction of the

custody proceedings pursuant to R.C. 3127.15(A)(2) as this section requires the

court to determine either that another court does not have jurisdiction pursuant to

R.C. 3127.15(A)(1), or that a court in the home state has declined to exercise

jurisdiction on the basis that Ohio is the more appropriate forum. Here, Appellee filed

a motion seeking registration of a foreign custody order with the Rowan County,

North Carolina court. North Carolina is the children’s home state in this matter and

there is no evidence in the record that North Carolina has declined jurisdiction.

Hence, jurisdiction is not proper in Ohio under this section. Likewise, Belmont

County could not have exercised jurisdiction over the custody matters pursuant to

R.C. 3127.15(A)(3) because no other state has declined to exercise jurisdiction on

the ground that Ohio is the more appropriate forum. Finally, Belmont County could

not assume jurisdiction by means of R.C. 3127.15(A)(4), as that section requires that

no court of any other state has R.C. 3127.15(A)(1), (2), or (3) jurisdiction which, as

already discussed, is not the case here.
 -8-

{¶13} Turning to Appellant’s contempt action, R.C. 3127.21, governing the

determination of the appropriate forum in custody disputes, is also pertinent here. It

states, in part:

(A) A court of this state that has jurisdiction under this chapter to make

a child custody determination may decline to exercise its jurisdiction at

any time if it determines that it is an inconvenient forum under the

circumstances and that a court of another state is a more convenient

forum. The issue of inconvenient forum may be raised upon motion of

a party, the court's own motion, or at the request of another court.

(B) Before determining whether it is an inconvenient forum, a court of

this state shall consider whether it is appropriate for a court of another

state to exercise jurisdiction. For this purpose, the court shall allow the

parties to submit information and shall consider all relevant factors,

including the following:

(1) Whether domestic violence has occurred and is likely to continue in

the future and which state could best protect the parties and the child;

(2) The length of time the child has resided outside this state;

(3) The distance between the court in this state and the court in the

state that would assume jurisdiction;

(4) The relative financial circumstances of the parties;
 -9-

(5) Any agreement of the parties as to which state should assume

jurisdiction;

(6) The nature and location of the evidence required to resolve the

pending litigation, including the testimony of the child;

(7) The ability of the court of each state to decide the issue

expeditiously and the procedures necessary to present the evidence;

(8) The familiarity of the court of each state with the facts and issues in

the pending litigation.

R.C. 3127.21.

{¶14} Thus, when determining whether an Ohio court is the appropriate forum

for a child custody matter, the court must consider the eight factors in R.C.

3127.21(B).

{¶15} Appellant contends in his second assignment of error that the trial court

erred in failing to rule on the contempt issue and that the Belmont County Common

Pleas Court is the only court with jurisdiction over the allegations of contempt. R.C.

3127.22(A)(2) addresses unjustifiable conduct in the child custody context. It reads:

(A) Except as otherwise provided in section 3127.18 of the Revised

Code or another law of this state, if a court of this state has jurisdiction

under this chapter because a person seeking to invoke its jurisdiction

has engaged in unjustifiable conduct, the court shall decline to exercise

its jurisdiction unless one of the following applies:
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(1) The parents and all persons acting as parents have agreed to the

exercise of jurisdiction.

(2) A court of the state otherwise having jurisdiction under sections

3127.15 to 3127.17 of the Revised Code determines that this state is a

more appropriate forum under section 3127.21 of the Revised Code or

a similar statute of the state.

(3) No court of any other state would have jurisdiction under the criteria

specified in sections 3127.15 to 3127.17 of the Revised Code.

{¶16} In this matter, the trial court correctly determined that, pursuant to R.C.

3127.15, North Carolina is the home state for purposes of these children and this

custody dispute. Hence, although there may be a real question of unjustifiable

conduct, as Ohio is not the appropriate forum to raise the underlying custody matter,

the court may correctly decline jurisdiction over the allegations of contempt as they

arise out of these custody proceedings. While Appellant claims that his ex-spouse

absconded with the children and he had no idea of his children’s whereabouts for

over two years, this has no bearing on the appropriate jurisdictional forum. We also

note that there is a factual dispute regarding Appellant’s assertion. While Appellant

says his children simply vanished, Appellee asserts that she maintained her

telephone number and that Appellant has been in contact with her at various times

during the two-year period in question, but never inquired about his children.

{¶17} Regardless, the trial court considered both R.C. 3127.15 as well as the

factors set forth in R.C. 3127.21(B) and specifically found the following:
 -11-

Under §3127.21, this court can decline to make a custody

determination if another state is a more convenient forum, even when

there has been unjustifiable conduct, pursuant to §3127.22(A)(2).

Considering the factors set forth in §3127.21(B), Belmont County

Juvenile Division Court is an inconvenient forum. The children have

been outside of this state for over two years. The distance between

Ohio and North Carolina is over 400 miles. The children may need to

be interviewed in chambers and it would be burdensome for the

interview to occur in Belmont County, Ohio. Finally, most of the

professional witnesses are located in North Carolina.

(5/26/16 J.E., pp. 2-3.)

{¶18} Appellant refers this Court to the North Carolina UCCJEA provisions,

contending that under this authority North Carolina cannot take jurisdiction over the

contempt action. However, the provisions cited by Appellant (G.S. 50A-207,

G.S.50A-2089(a)(2)) mirror the Ohio statutes and, like the Ohio statutes, are based

on the same principles. The court did not foreclose Appellant’s allegations of

contempt; the court merely ordered that these be raised in the more appropriate

North Carolina forum. Appellee and the children have a North Carolina residence.

Appellant lives in West Virginia. No party to this action resides in Ohio.

{¶19} We must also note that in its March 17, 2016 decision, the magistrate

proceeded to order weekly phone visitation with Appellant while explicitly withholding

a determination relevant to jurisdiction. This was error, as the court was without
 -12-

jurisdiction to issue such an order. However, it is harmless error in that it poses no

prejudice to Appellant.

{¶20} The trial court did not err when it concluded that Ohio was not an

appropriate forum for the instant child custody matters as: none of the parties reside

in Ohio; the children have resided in North Carolina for over two years; requiring the

children to travel 400 miles for a potential in camera interview would be burdensome;

and any specialist or professional witnesses relating to the youngest child’s medical

condition would be located in North Carolina. In addition, although Appellant alleges

unjustifiable conduct by Appellee in moving to North Carolina without filing a notice of

intent to relocate and seeks an order in contempt, because all of the underlying

custody determinations are now properly the jurisdiction of North Carolina courts,

Ohio is not an appropriate forum and should not assume jurisdiction of this issue.

Based on the foregoing, Appellant’s first and second assignments of error lack merit.

The trial court’s judgment is affirmed.

Donofrio, J., concurs.

DeGenaro, J., concurs.