Fortner v. Goldberg

2024 Ohio 5392

• Court: Ohio Court of Appeals
• Decided: November 13, 2024
• Docket: 114322
• Status: Published

Opinion

[Cite as Fortner v. Goldberg, 2024-Ohio-5392.]

COURT OF APPEALS OF OHIO

EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

ERIC C.K. FORTNER, :

Relator, : No. 114322 v. :

JUDGE FRANCINE GOLDBERG, :

Respondent. :

JOURNAL ENTRY AND OPINION

JUDGMENT: DISMISSED RELEASED AND JOURNALIZED: November 13, 2024

Writ of Mandamus Motion No. 578756 Order No. 579099

Appearances:

Eric C.K. Fortner, pro se.

Michael C. O’Malley, Cuyahoga County Prosecuting Attorney, and Regina A. Russo, Assistant Prosecuting Attorney, for respondent.

ANITA LASTER MAYS, J.:

On September 3, 2024, the relator, Eric C.K. Fortner, commenced

this mandamus action against Judge Francine Goldberg to compel the judge to “take action on the Emergency Motions pertaining to [the son],” “to re-evaluate the

Motion for Temporary Custody in light of new evidence,” and to correct the “abuse

of discretion and legal errors in ignoring and refusing to rule on Relator’s Emergency

Motions” regarding the son in the underlying case, A.F. v. E.F., Cuyahoga Dom. Rel.

No. DR-23-295909. (Prayer of relator’s petition and first paragraph.) On October

17, 2024, the respondent judge moved to dismiss because of lack of clear legal duty,

lack of clear legal right, and pleading defects. On October 21, 2024, the relator filed

a response in which he agreed to the dismissal. For the following reasons, this court

grants the respondent’s motion to dismiss.

The relator is the father in the underlying case, which is a contentious

child-custody dispute. On June 21, 2024, the magistrate granted the mother’s

motion to modify child custody and awarded immediate possession of the son to the

mother.

The relator in response has filed approximately 20 motions in the

underlying case, including motions for reconsideration, to interview the child, for

stay of the order, to modify parental rights, for the immediate return of the son, and

for a new trial. The gravamen of the relator’s position is that because of the mother’s

violent tendencies the son’s safety is at risk and the domestic relations court needs

to examine the relator’s evidence. After overruling objections to the magistrate’s

report, the trial judge on September 4, 2024, issued a final, appealable order

adopting the magistrate’s decision. Judge Goldberg then recused herself from this

case, and the Chief Justice of the Supreme Court of Ohio assigned Judge Debra Boros to the case. Judge Boros has scheduled hearings on relator’s motions for early

January. The relator also appealed the final order on October 4, 2024, A.F. v. E.F.,

8th Dist. Cuyahoga No. 114425.

The respondent judge moved to dismiss on the grounds that

mandamus may not control judicial discretion, that the relator is pursuing his

adequate remedy at law, and that he improperly captioned his mandamus action.

The relator replied that he is not trying to control judicial discretion, only to compel

the court to examine his evidence and rule on his emergency motions, and that the

overriding best interests of the child would allow this court to issue the mandamus

to rule on the emergency motions. However, the relator is now satisfied Judge Boros

is timely scheduling a hearing on the emergency motions and agrees to the dismissal

of the mandamus action.

Accordingly, this court grants the respondent judge’s motion to

dismiss and dismisses this mandamus action. Relator to pay costs; costs waived.

This court directs the clerk of courts to serve all parties notice of the judgment and

its date of entry upon the journal as required by Civ.R. 58(B).

Writ dismissed.

__________________________ ANITA LASTER MAYS, JUDGE

KATHLEEN ANN KEOUGH, A.J., and LISA B. FORBES, J., CONCUR