Thomas v. Thomas

[Cite as Thomas v. Thomas, 2017-Ohio-8710.]

COURT OF APPEALS
RICHLAND COUNTY, OHIO
FIFTH APPELLATE DISTRICT

JAMES O. THOMAS : JUDGES:
:
: Hon. Patricia A. Delaney, P.J.
Plaintiff-Appellee : Hon. William B. Hoffman, J.
: Hon. John W. Wise, J.
-vs- :
: Case No. 17CA04
:
LILLIAN S. THOMAS :
:
:
Defendant-Appellant : OPINION

CHARACTER OF PROCEEDING: Appeal from the Richland County Court
of Common Pleas, Domestic Relations
Case No. 2014 DIV 0890

JUDGMENT: AFFIRMED

DATE OF JUDGMENT ENTRY: November 22, 2017

APPEARANCES:

For Plaintiff-Appellee: For Defendant-Appellant:

SHANNON G. THATCHER J.C. RATLIFF
1007 Lexington Ave. JEFF RATLIFF
Mansfield, OH 44907 ROCKY RATLIFF
200 West Center Street
Marion, OH 43302
Richland County, Case No. 17CA04 2

Delaney, P.J.

{¶1} Defendant-Appellant Lillian S. Thomas appeals the June 14, 2016 judgment

entry of the Richland County Court of Common Pleas, Domestic Relations Division.

FACTS AND PROCEDURAL HISTORY

{¶2} Plaintiff-Appellee James O. Thomas (“Father”) and Defendant-Appellant

Lillian S. Thomas (“Mother”) were married on December 31, 2007. Father and Mother

lived in Ohio at the time of the marriage. In 2009, Father joined the military and his military

service has taken him periodically from home for as long as a month. One child was born

as issue of the marriage: D.T., born on May 6, 2011. D.T. was born in Ohio.

{¶3} The parties’ marriage was challenging, with the parties separating many

times during the marriage. When D.T. was born, Father was not adept at taking care of

an infant. Mother primarily cared for D.T. with the help of her sister and mother. Mother

and her sister criticized Father for his lack of ability and Father became less involved with

D.T.’s care.

{¶4} The parties separated in 2012 and Mother filed for divorce in 2013, which

she later dismissed before any orders were issued by the trial court. Mother moved out

of the marital home located in Mansfield, Ohio and took D.T. with her. For a period of

time, Father did not know where they were living and Mother would not permit Father to

have contact with D.T.

{¶5} At some point in 2013, Father and Mother were communicating. They

shared parenting time with D.T. on a three-day/four-day basis for a month and a half to

two months.
Richland County, Case No. 17CA04 3

{¶6} In December 2013, Mother took D.T. to Florida without Father’s permission.

The boyfriend of maternal grandmother had a residence in Nokomis, Florida. Mother and

Father once visited his residence in Florida. Maternal grandmother had a residence in

Mansfield, Ohio. Maternal grandmother wanted to start a food truck business that she

would operate in Florida during the winter and in Ohio during the summer. Mother was

going to help with the business. Mother told Father her move to Florida was for a few

months and she would come back to Ohio in September 2014.

{¶7} Mother and D.T. went to Florida where she lived in the home of her mother’s

boyfriend. Her mother and sister also stayed in the boyfriend’s home. Father

communicated with D.T. by phone or FaceTime. Father did not visit D.T. in Florida. Father

sent D.T. letters and gifts to the address he knew for the boyfriend’s home in Florida, but

the letters and packages were returned as rejected.

{¶8} In April 2014, Mother came to Ohio for a week with D.T. Mother’s intent was

to let Father visit with D.T. and move her belongings from Father’s house to her mother’s

house in Mansfield. Mother stayed with Father at his apartment in Mansfield, but Father

and Mother argued and Father asked her to leave the apartment. Mother went to a friend’s

apartment and left with D.T. the next day on her scheduled return flight to Florida.

{¶9} In April 2014, maternal grandmother’s boyfriend sold his Nokomis home.

Mother moved to boyfriend’s new residence in Venice, Florida. Mother did not tell Father

that she and D.T. moved.

{¶10} Father was paying the cell phone service for Mother and Mother’s sister.

Father communicated to Mother and sister that he was going to cancel the cell service

due to the cost. Mother and sister did not respond. In July 2014, Father stopped paying
Richland County, Case No. 17CA04 4

for their cell phone service. Father had no communication with D.T. after July 2014. Father

attempted to contact Mother through Mother’s family and Mother was aware that Father

was attempting to communicate, but she did not respond.

{¶11} In August 2014, Mother moved into her brother’s apartment in Jacksonville,

Florida. Mother did not inform Father of her new address.

{¶12} Mother had an Ohio driver’s license, but obtained a Florida driver’s license

in 2016. Mother was using maternal grandmother’s address in Ohio for automobile

insurance purposes. Mother is employed in Florida with a painting company and with her

mother’s food truck business.

{¶13} Father continues to reside in Mansfield, Ohio. He is employed with Ohio

Electric Control in Ashland, Ohio and the National Guard.

{¶14} Father filed a Complaint for Divorce on October 3, 2014. Mother was served

by publication because Father did not know Mother’s location.

{¶15} Mother filed an Answer on February 9, 2015.

{¶16} On February 12, 2015, Father filed a request for Emergency Temporary

Orders and an Order Appointing Guardian ad Litem was filed on March 10, 2015.

{¶17} The trial court issued temporary orders on March 13, 2015 and an agreed

judgment entry on temporary orders was issued on April 1, 2015. The temporary orders

named Mother as the temporary residential parent and legal custodian. Father was

granted visitation with D.T. to take place in Ohio. Mother was to bring D.T. to Ohio and

Father was to bring D.T. back to Florida. Father was to pay transportation costs.

{¶18} Father visited with D.T. for the first time since July 2014 in March 2015. The

GAL was present at the meeting between the second visit between D.T. and Father in
Richland County, Case No. 17CA04 5

June 2015. The GAL reported that D.T. told her that he could not love Father because he

would take him away from Mother. D.T. told the GAL that his Mother told him that. D.T.

made repeated statements to Father and the GAL that he was not supposed to love

Father because someone would take him away from Mother. The GAL questioned Mother

about the statements and Mother stated D.T. overheard her speaking with her sister.

{¶19} When D.T.’s visitation with Father started, Mother reported D.T. started

vomiting at least once a day when he travelled to Ohio. Mother felt it was due to anxiety.

Mother reported to the GAL that she took D.T. for mental health counseling. The GAL

investigated and found Mother took D.T. to one counseling appointment in September

2015. Mother did not schedule any follow-up counseling sessions. Mother took D.T. to

the emergency room and D.T.’s physician referred D.T. to a gastroenterologist, but

Mother did not schedule an appointment. The GAL was not able to obtain any further

medical information about D.T. because Mother would not provide authorization.

{¶20} At the time the GAL observed D.T., he was four years old. D.T. was not

enrolled in preschool. D.T. could attend kindergarten in the 2016-2017 school year. In

March 2016, Mother had not registered D.T. for a kindergarten screening.

{¶21} On May 26, 2015, Mother filed a motion to dismiss complaint for lack of

jurisdiction and improper venue. Mother filed a second motion to dismiss Father’s

complaint for lack of jurisdiction and improper venue on April 7, 2016.

{¶22} On April 8, 2016, the trial court held a hearing on Mother’s motion to dismiss

Father’s complaint for lack of jurisdiction. Mother argued Florida was the proper

jurisdiction to decide the child custody proceeding.
Richland County, Case No. 17CA04 6

{¶23} The trial court held a hearing on Father’s complaint for divorce on April 8,

11, 13, and 14, 2016. The only issue before the trial court on Father’s complaint for

divorce was the child custody proceeding.

{¶24} The GAL recommended Father be awarded custody of D.T. The GAL

observed that both parents loved D.T. and acted appropriately with him. The GAL felt it

was in the best interests of D.T. that the parents stopped fighting, resided in the same

community, and followed a shared parenting plan; however, it was not possible. The GAL

felt Father would be more likely to cooperate with visitation than Mother would. If Mother

was granted sole custody, the GAL felt it would diminish or even eliminate Father’s role

as parent based on Mother’s past behavior.

{¶25} On April 11, 2016, the trial court issued its judgment entry finding that Ohio

had jurisdiction to make an initial determination in the child custody proceeding pursuant

to R.C. 3127.15(A).

{¶26} On April 14, 2016, the trial court issued a judgment entry modifying its

temporary orders to name Father as the temporary residential parent and legal guardian

of D.T.

{¶27} On June 14, 2016, the trial court issued its judgment entry on Father’s

complaint for divorce as to the custody issues. It named Father as the residential parent

and legal custodian of D.T. Mother was awarded parenting time.

{¶28} It is from this decision Mother now appeals.
Richland County, Case No. 17CA04 7

ASSIGNMENTS OF ERROR

{¶29} Mother raises two Assignments of Error:

{¶30} “I. THE TRIAL COURT ERRED BY NOT GRANTING DEFENDANT-

APPELLANT’S MOTION TO DISMISS PLAINTIFF’S COMPLAINT FOR LACK OF

JURISDICTION AND IMPROPER VENUE AS THE DOMESTIC RELATIONS COURT

OF RICHLAND COUNTY LACKED SUBJECT MATTER JURISDICTION AS OUTLINED

IN R.C. 3127, ET SEQ.

{¶31} “II. THE TRIAL COURT ERRED IN GRANTING APPELLEE CUSTODY OF

THE MINOR CHILD AS IT WAS NOT IN THE CHILD’S BEST INTEREST, WAS TO THE

DETRIMENT OF THE CHILD, AND WAS ONLY GRANTED TO PUNISH THE

APPELLANT BECAUSE SHE MOVED OUT OF THE STATE OF OHIO.”

ANALYSIS

I. Jurisdiction

{¶32} Mother contends in her first Assignment of Error that the trial court erred

when it failed to dismiss Father’s complaint for custody of D.T. for lack of jurisdiction over

the child.

The UCCJEA

{¶33} The UCCJEA was drafted by the National Conference of Commissioners

on Uniform State Laws to resolve interstate custody disputes and to avoid jurisdictional

competition with courts of other jurisdictions. Rosen v. Celebrezze, 117 Ohio St.3d 241,

2008–Ohio–853, 833 N.E.2d 420, ¶ 20–21. Ohio adopted the UCCJEA and codified the

law in R.C. Chapter 3127.
Richland County, Case No. 17CA04 8

{¶34} In making the determination whether to retain jurisdiction over matters

pertaining to custody, support, and companionship of a minor child, R.C. 3127.15

provides the trial court with the following jurisdictional grounds:

(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:

(1) This state is the home state of the child 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 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
Richland County, Case No. 17CA04 9

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.

(B) Division (A) of this section is the exclusive jurisdictional basis for making

a child custody determination by a court of this state.

(C) Physical presence of, or personal jurisdiction over, a party or a child is

not necessary or sufficient to make a child custody determination.

{¶35} The UCCJEA therefore provides four types of initial child custody

jurisdiction: home-state jurisdiction, significant-connection jurisdiction, jurisdiction

because of declination of jurisdiction, and default jurisdiction. R.C. 3127.15(A)(1)-

(4); Rosen, ¶ 31.

{¶36} A party cannot waive a UCCJEA claim because it concerns subject matter

jurisdiction and the power of the court to adjudicate the matters of a case. Rosen, ¶ 45.

A UCCJEA claim can be raised at any time. Id.

{¶37} 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 re

B.M., 5th Dist. Holmes No. 11–CA–010, 2011–Ohio–6608, ¶ 8 citing Hall v. Hall, 5th Dist.

Licking No. 06CA134, 2007–Ohio–2449 citing Bowen v. Britton, 84 Ohio App.3d 473,

478, 616 N.E.2d 1217 (4th Dist.1993). The Supreme Court of Ohio has stated that an

abuse of discretion “connotes more than an error of law or judgment; it implies that the
Richland County, Case No. 17CA04 10

court's attitude is unreasonable, arbitrary or unconscionable.” Blakemore v. Blakemore, 5

Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983).

Home State Jurisdiction

{¶38} The dispute in the present case is whether Ohio is the home state of D.T.

The UCCJEA gives jurisdictional priority and exclusive continuing jurisdiction to the “home

state” of the child. Rosen, supra at ¶ 21. “Home state” means the state in which a child

lived with a parent for at least six consecutive months immediately preceding the

commencement of a child custody proceeding. A period of temporary absence of any of

them is counted as part of the six-month or other period. R.C. 3127.01(B)(7). The statute

does not define the meaning of “temporary absence.”

{¶39} D.T. was born in Ohio in May 2011. He lived in Ohio until Mother took D.T.

to Florida without Father’s permission in December 2013. Father remained in Ohio. On

October 3, 2014, Father filed the complaint for divorce, requesting custody of D.T.

Approximately ten months elapsed between the time Mother took D.T. to Florida and

Father filed the complaint for divorce. Mother claims D.T. lived in Florida for six

consecutive months before Father filed the custody action in Ohio, therefore Florida is the

child’s home state and the custody action should be dismissed. Mother has not filed any

custody proceedings in Florida.

{¶40} After an evidentiary hearing, the trial court found D.T. was temporarily

absent from Ohio from December 2013 to the summer of 2014. The trial court determined

the approximate ten-month temporary absence of Mother and D.T. from Ohio should be

counted as part of the six-month period immediately preceding the commencement of the

child custody proceeding, thereby giving Ohio home state jurisdiction. Our review of the
Richland County, Case No. 17CA04 11

evidence in the record supports the trial court’s determination that D.T. was temporarily

absent from Ohio. Under R.C. 3127.15(A), Ohio is the home state for the child.

{¶41} The facts of this case support the trial court’s conclusion that when Mother

went to Florida with D.T., it was questionable whether the move was intended to be

permanent. Mother went to Florida to help her mother with her food truck business.

Mother thought they would operate the food truck in Florida during the winter and in Ohio

during the summer. Mother told Father that she and D.T. would only be gone a few

months and they would return to Ohio in the summer of 2014. Mother did not have

independent housing in Florida. Mother, D.T., maternal grandmother, and sister resided

at the home of her mother’s boyfriend. When the boyfriend sold his home, Mother moved

to the boyfriend’s new home and then she moved to her brother’s apartment. Mother has

been at this address since August 2014. D.T. was not enrolled in preschool or daycare

while in Florida. In March 2016, the GAL reported Mother had not taken steps towards

getting D.T. registered for elementary school in Florida. Mother worked for her mother’s

food truck business and as a house painter. In April 2014, Mother returned to Ohio with

D.T. for a week. One of the purposes of coming to Ohio was to move her belongings from

Father’s home to her mother’s home in Mansfield, Ohio. In July 2014, Mother stopped

communicating with Father. In 2016, Mother obtained a Florida driver’s license.

{¶42} The trial court held an evidentiary hearing on the issue and determined

Mother’s move to Florida was meant to be temporary. Based on our review of this record,

we cannot find the trial court abused its discretion in its application of the statutory

guidelines to the facts of this case to determine Ohio was the home state of the child,
Richland County, Case No. 17CA04 12

giving Ohio jurisdiction over matters pertaining to custody, support, and companionship

of the minor child.

{¶43} Mother’s first Assignment of Error is overruled.

II. Best Interests

{¶44} Mother argues in her second Assignment of Error that the trial court abused

its discretion when it named Father as legal custodian and residential parent of D.T.

{¶45} The standard of review in custody cases is whether the trial court abused

its discretion. Davis v. Flickinger, 77 Ohio St.3d 415, 674 N.E.2d 1159 (1997). An abuse

of discretion implies that the court's attitude was unreasonable, arbitrary, or

unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217, 450 N.E.2d 1140 (1983).

Given the nature and impact of custody disputes, the trial court's discretion will be

accorded paramount deference because the trial court is best suited to determine the

credibility of testimony and integrity of evidence. Gamble v. Gamble, 12th Dist. Butler No.

CA2006–10–265, 2008–Ohio–1015. Specifically, “the knowledge a trial court gains

through observing witnesses and the parties in a custody proceeding cannot be conveyed

to a reviewing court by a printed record.” Miller v. Miller, 37 Ohio St.3d 71, 523 N.E.2d

846 (1988). Therefore, giving the trial court due deference, a reviewing court will not

reverse the findings of a trial court when the award of custody is supported by a

substantial amount of credible and competent evidence. Davis v. Flickinger, 77 Ohio

St.3d 415, 674 N.E.2d 1159 (1997).

{¶46} R.C. 3109.04 requires a trial court to consider the best interest of the child

in making an award of custody incident to a divorce proceeding. R.C. 3109.04(F)(1)

provides that, in making this determination, a court is to consider all relevant factors,
Richland County, Case No. 17CA04 13

including, but not limited to: (a) the wishes of the child's parents; (c) the child's interactions

and interrelationship with her parents; (d) the child's adjustment to her home and

community; (e) the mental and physical health of all persons involved in the situation; (f)

the parent more likely to honor and facilitate visitation and companionship rights approved

by the court; (g) whether either parent has failed to make child support payments * * *;

and (j) whether either parent has established a residence, or is planning on establishing

a residence, outside this state.

{¶47} The judgment entry of the trial court granting custody to Father thoroughly

recounted the facts presented during the hearing. The judgment entry also recited the

GAL report in great detail. The record supports the trial court’s factual findings. In the

beginning of D.T.’s life, Father was admittedly not skilled at caring for an infant. Mother

and her family, however, did not encourage Father’s parenting skills, resulting in Father

taking on a lesser parenting role and Mother becoming the primary caregiver. The

relationship between Mother and Father was contentious. In 2013, however, Mother and

Father worked out their own shared parenting agreement for the care of D.T. Neither party

reported issues as to D.T.’s care during this period of time. The arrangement worked until

December 2013, when Mother took D.T. to Florida without Father’s permission. Father

communicated with D.T. until July 2014, when Mother stopped all communication with

Father because he would not pay for her cell phone. Father did not know where D.T. was

living. When D.T. reunited with Father, D.T. told Father and the GAL that D.T. was not

allowed to love Father because someone would take D.T. away from Mother.

{¶48} Despite his parent’s marital conflicts, the GAL reported D.T. was a happy

child. The GAL was concerned with D.T.’s vomiting issues and Mother’s failure to follow
Richland County, Case No. 17CA04 14

up with a physician or mental health counselor. After multiple visitations with Father, D.T.

appeared to be as comfortable with Father as he was in Mother’s home. D.T. reported

that he missed Mother when he was with Father and missed Father when he was with

Mother.

{¶49} Father was assisted in caring for D.T. by his family. He was considering

elementary schools for D.T. in Richland and Ashland Counties. At the time of the hearing,

Father was living with his girlfriend. It was reported the D.T. had a good relationship with

Father’s girlfriend.

{¶50} There was no dispute in this case that Mother and her family fiercely loved

D.T. Father also loved D.T. and wanted to have a relationship with his child. The GAL

noted, however, Mother’s love for D.T. appeared to have no room for Father’s relationship

with D.T. The overriding concern of the GAL was that if Mother was named legal custodian

and residential parent of D.T., Mother would prevent Father from having a relationship

with D.T. based on Mother’s past behavior. Father would be more likely to honor and

facilitate visitation and companionship as ordered by the trial court.

{¶51} The trial court found it was in the best interests of D.T. that Father be named

the legal custodian and residential parent. R.C. 3109.04(F) provides the court with

discretion to weigh the relevant factors and determine how those factors apply to the

child's best interests. Lutton v. Briggs, 5th Dist. Stark No. 2014CA00214, 2015–Ohio–

1910. Given the nature and impact of custody disputes, the trial court's discretion will be

accorded paramount deference because the trial court is best suited to determine the

credibility of testimony and integrity of evidence. Gamble v. Gamble, 12th Dist. Butler No.

CA2006–10–265, 2008–Ohio–1015. Specifically, “the knowledge a trial court gains
Richland County, Case No. 17CA04 15

through observing witnesses and the parties in a custody proceeding cannot be conveyed

to a reviewing court by a printed record.” Miller v. Miller, 37 Ohio St.3d 71, 523 N.E.2d

846 (1988). Upon review of the record, we find there is competent and credible evidence

to support the trial court's decision with regards to the designation of Father as the legal

custodian and residential parent.

{¶52} Mother’s second Assignment of Error is overruled.

CONCLUSION

{¶53} The judgment of the Richland County Court of Common Pleas is affirmed.

By: Delaney, P.J.,

Hoffman, J. and

Wise, John, J., concur.