DiSanto v. Thomas

2018 Ohio 1673

• Court: Ohio Court of Appeals
• Decided: April 30, 2018
• Docket: 2017-L-133
• Status: Published

Opinion

[Cite as DiSanto v. Thomas, 2018-Ohio-1673.]

IN THE COURT OF APPEALS

ELEVENTH APPELLATE DISTRICT

LAKE COUNTY, OHIO

DORENE E. DISANTO, : PER CURIAM OPINION

Plaintiff-Appellee, : CASE NO. 2017-L-133 - vs - :

THOMAS L. THOMAS, :

Defendant-Appellant. :

Civil Appeal from the Lake County Court of Common Pleas, Juvenile Division, Case No. 2015 CV 00603.

Judgment: Affirmed.

Brett J. Plassard, 1875 West Jackson Street, Painesville, OH 44077 (For Plaintiff- Appellee).

Thomas E. Thomas, pro se, 3568 Highway 301 South, Nahunta, GA 31553 (Defendant-Appellant).

PER CURIAM

{¶1} Defendant-appellant, Thomas L. Thomas, appeals the judgment of the

Lake County Court of Common Pleas, Juvenile Division, determining custody and

support issues with regard to the minor child, A.R.D. The issue before this court is

whether an appellant may challenge a trial court’s jurisdiction where he did not appear

at trial or otherwise present evidence in support of his claim. For the following reasons,

we affirm the decision of the court below. {¶2} On April 23, 2015, plaintiff-appellee, Dorene E. DiSanto, filed a Complaint

for Custody (Emergency Ex Parte) against Thomas with respect to A.R.D. DiSanto was

granted emergency custody and the matter was set for pretrial.

{¶3} On May 8, 2015, Thomas filed a Motion for Objection to the grant of

emergency custody, arguing, inter alia, “that this Honorable Lake Co Court

Judge/Magistrate lack Subject Matter Jurisdiction over this Pro Se Defendant and the

Native American Child/Minor based upon the fact * * * [t]hat the Native American

Child/Minor * * * is a Registered Member of the Penbina [sic] Nation Little Shell Band of

North America * * * and exclusive Subject Matter Jurisdiction rests with the Tribal Court,

Federal Courts, and/or will be Transferred to the US District Court over Federal

Questions of Law, pursuant to Federal Law as determined by the US Supreme Court.”

{¶4} Thomas further claimed that “a Original ‘Complaint For Child Custody,

Child Support, and Show Cause’ entitled THOMAS L. THOMAS V. DORENE E.

DISANTO et al, Case No: 15V-078 [was] pending in the Great State of Georgia in the

Honorable Brantley Co Superior Court.”

{¶5} On May 20, 2015, Thomas filed a Complaint/Counter-Complaint/Motion

for: Custody, Visitation, Child Support, Objection to DNA Testing, and Habeas Corpus

of Child (filed May 20, 2015).

{¶6} On October 4, 2017, a trial was held at which Thomas failed to appear.

{¶7} On October 6, 2017, the juvenile court issued a Judgment which held, in part: Based on the testimony and exhibits this Court finds that plaintiff has established that Defendant Thomas L. Thomas is the father of [A.R.D.] born May 9, 2003 and that the parent child relationship exists.

2 The court further finds that the parties separated on 11-4-2013 and that the minor child has been living exclusively with mother and maternal grandmother since that time.

The court further finds that father’s income is unknown as he has not filed tax returns for several years.

***

Parenting time for father will be considered upon proper motion with this Court.

Father Thomas L. Thomas has a duty to support A.R.D. and child support shall be as outlined in the Child Support Worksheet attached hereto with [an] effective date of 11-4-2013.

{¶8} On October 23, 2017, Thomas filed a Notice of Appeal. On appeal,

Thomas raises the following assignments of error:

{¶9} “[1.] Did Lake Co. Juvenile Trial Court Judge Karen Lawson act

maliciously and corruptly without subject matter jurisdiction, abuse her discretion, create

manifest injustice, structurally err, plain err, and/or violate this Native American

defendant-appellant’s [sic] of his clearly established equal protection right to due

process of law, and right not to be discriminated against based upon

gender/religion/nationality by systematically granting temporary custody to

plaintiff/mother in Ohio after the plaintiff/mother admitted that in her affidavit for custody

that a[n] original child custody and parental kidnapping was already pending in the State

of Georgia, and the plaintiff/mother was homesteading in the State of Georgia, not

Ohio.”

{¶10} “[2.] Did both the reassigned and initial trial court judges/magistrate act

maliciously and corruptly without subject matter jurisdiction, abuse their discretion,

3 create manifest injustice, structurally err, plain err, and/or violate this pro se Jewish

Native American defendant-appellant’s [sic] of his clearly established federal

constitutional rights protected under the equal protection clause, due process of law,

access to the courts, and federal law since: (A) the original child custody and parental

kidnapping case was pending in the State of Georgia; (B) the herein interstate child

custody case was lawfully removed and still remains pending in federal court; and/or (C)

the initial and reassigned Lake Co. Court of Common Pleas judges are currently being

represented in pending federal class action lawsuit for acting unlawfully maliciously and

corruptly without subject matter jurisdiction at Ohio taxpayers[’] expense.”

{¶11} Thomas argues that the juvenile court was without jurisdiction because the

federal courts have exclusive jurisdiction and/or the issue of A.R.D.’s custody was

pending in a Georgia court.

{¶12} We must necessarily find that Thomas’ arguments are without merit as

they are unsupported by anything in the record.

{¶13} It is fundamental that a reviewing court may only decide an appeal based

on the record before it. State v. Ishmail, 54 Ohio St.2d 402, 377 N.E.2d 500 (1978),

paragraph one of the syllabus (“[a] reviewing court cannot add matter to the record

before it, which was not a part of the trial court’s proceedings, and then decide the

appeal on the basis of the new matter”). This court has held that “[i]f appellant cannot

demonstrate the claimed error then we presume the regularity of the trial court

proceedings and affirm the judgment.” (Citation omitted.) Patterson & Simonelli v.

Silver, 11th Dist. Lake No. 2003-L-055, 2004-Ohio-3028, ¶ 31.

4 {¶14} In the present case, the record before us lacks evidence to support

Thomas’ claims, such as evidence of A.R.D.’s membership in the Pembina Nation or

pending legal proceedings regarding A.R.D.’s custody in Georgia. Thomas’ attempt to

file an Affidavit in Support and Statement in Lieu of Transcript is unavailing. Assuming,

arguendo, that it complied with Appellate Rule 9(C), Thomas did not appear at the

October 4, 2017 trial and is, therefore, wholly incompetent to submit a statement of

evidence presented at the trial. Appellate Rule 9(C) is not a proper vehicle for

introducing evidence into the record that was not presented before the trial court.

{¶15} The statement contained in DiSanto’s original Complaint that, “Defendant

Thomas L. Thomas initiated an action in Georgia partially involving custody of [A.R.D.],”

is insufficient in itself to demonstrate that the juvenile court lacked jurisdiction to

determine A.R.D.’s custody and support.

{¶16} The assignments of error are without merit.

{¶17} For the forgoing reasons, the Judgment Entry of the Lake County Court of

Common Pleas, Juvenile Division, is affirmed. Costs to be taxed against the appellant.

THOMAS R. WRIGHT, P.J., DIANE V. GRENDELL, J., COLLEEN MARY O’TOOLE, J., concur.