In Re Blake

786 N.E.2d 78, 151 Ohio App. 3d 777

• Court: Ohio Court of Appeals
• Decided: February 28, 2003
• Docket: C.A. Case No. 2002 CA 54, T.C. Case No. 01 JUV 909.
• Status: Published

Opinions

Wolff, Judge.

{¶ 1} Michael and Roberta Skaggs appeal from a judgment of the Clark County Court of Common Pleas, Juvenile Division, which ordered them to pay attorney fees in the amount of $3,045.25 to their daughter, Amy Blake, and her husband, Tommy Blake.

{¶ 2} The facts and procedural history of the case are as follows.

{¶ 3} On April 13 through 16, 2001, the Skaggses cared for their grandson, Tommy D. Blake II (“Tommy”), at their home in Piqua. The circumstances surrounding this weekend are in dispute. The parties agree that Mrs. Blake, Tommy’s mother, had left the marital home for a few days because of some discord in her relationship with her husband. According to the Blakes, Mrs. Blake had occasionally left for short periods of time when there was strain in their relationship. From April 13 through 16, 2001, Mr. Blake had not known where Mrs. Blake was, but he apparently had not doubted that she would return based on her previous conduct. According to Mr. Blake, he asked the Skaggses to care for Tommy over the weekend because he had to go to work. The Skaggses, on the other hand, claim that Mrs. Blake’s whereabouts and her intentions about returning were unknown during this time. They also claim that Mr. Blake told them to “come get” their grandson because Mrs. Blake had abandoned them. At the end of the weekend, Mrs. Blake picked Tommy up from her parents with police assistance.

{¶ 4} On April 18, 2001, Roberta Skaggs filed a complaint in the Miami County Court of Common Pleas, Juvenile Division, seeking custody of Tommy. The complaint asserted that Mrs. Blake had abandoned the child and had left no forwarding address. The complaint did not refer to Mr. Blake.

{¶ 5} A hearing was scheduled for August 14, 2001. The Blakes continued to permit the Skaggses to have visits with Tommy during the intervening months. According to the Skaggses, they had no discussions with the Blakes about the upcoming hearing. According to the Blakes, the Skaggses assured them that the custody proceedings had been dropped and that there would be no hearing. The Blakes claimed to have relied on these representations when they went on a planned family vacation to Mississippi over the scheduled hearing date.

{¶ 6} The hearing did proceed as scheduled, and the trial court awarded custody of Tommy to the Skaggses. Tommy was forcibly removed from the parents’ custody upon the family’s return from vacation. On August 22, 2001, the Blakes filed objections to the magistrate’s decision awarding custody of Tommy to the Skaggses.

{¶ 7} The Miami County Court of Common Pleas held a hearing on the objections on August 27, 2001. The court’s previous order awarding custody to the Skaggses was stayed, and Tommy was returned to his parents’ custody. The parties agreed to transfer the ease to the Clark County Court of Common Pleas, Juvenile Division. 1

{¶ 8} In November 2001, the Blakes filed a motion to dismiss the Skaggses’ complaint and a motion for attorney fees pursuant to Civ.R. 11. Shortly thereafter, the Skaggses voluntarily dismissed their complaint without prejudice. A hearing on the motion for attorney fees was held on May 21, 2002, at which time the Blakes apparently asked that the trial court consider awarding fees pursuant to R.C. 2323.51 as well as Civ.R. 11. The trial court determined that the Skaggses’ claims had been frivolous and awarded attorney fees in the amount of $3,045.25.

{¶ 9} The Skaggses raise three assignments of error on appeal. The first two assignments are related and will be addressed together.

{¶ 10} “I. The trial court committed prejudicial error in finding that appellants did not have standing to bring their complaint for custody.

{¶ 11} “II. The trial court committed prejudicial error in finding that appellants’ conduct was frivolous pursuant to [R.C.] § 2323.51(2)(b) [sic].”

{¶ 12} The Skaggses claim that the trial court erred in ruling that they had no standing to bring an action for custody of their grandson. In fact, the trial court did not address the issue of “standing” in its decision. Rather, it concluded that the Skaggses’ conduct was frivolous as defined in R.C. 2323.51(A)(2) because the “overwhelming credible evidence” showed that the Skaggses’ complaint for custody was not warranted under existing law and could not be supported by a good-faith argument for an extension, modification, or reversal of existing law. The trial court appears to have found the Skaggses’ version of events to have been wholly lacking in credibility.

{¶ 13} It was undisputed that the Blakes had allowed the Skaggses regular visits with their grandson before and after the filing of the complaint. These visits seem to have frequently involved overnight stays on the weekends. Even if Mrs. Blake’s whereabouts were unknown by her husband and parents during one such visit in April 2001, Tommy had apparently been returned to his parents’ custody by the time of the filing of Mrs. Skaggs’ affidavit on April 18, 2001, in which she claimed that he had been abandoned. Mrs. Skaggs admitted that they had proceeded with the home study after Tommy had returned to his parents’ home. Moreover, Mrs. Blake’s “erratic behavior,” as it is described in the appellate brief, does not appear to have resulted in any lack of care for the child; he was left with his father. The trial court could have reasonably concluded that at no time had the Blakes’ conduct supported an inference that they had intended to abandon Tommy. We also note that Ohio law clearly does not permit a nonparent to obtain custody of a child without showing the parents to be unsuitable. In re Perales (1977), 52 Ohio St.2d 89, 98, 6 O.O.3d 293, 369 N.E.2d 1047. Aside from the allegation of abandonment, which the trial court reasonably found to have been unsubstantiated and lacking in credibility, the Skaggses did not even allege in their complaint that either parent was unsuitable.

{¶ 14} Faced with a complaint lacking in arguable merit, the trial court did not err in finding that the complaint had been frivolous and in awarding attorney fees.

{¶ 15} The first and second assignments of error are overruled.

{¶ 16} “HI. The trial court erred by awarding appellees attorney’s fees under [R.C.] § 2323.51.”

{¶ 17} The Skaggses claim that it was unfair for the trial court to award attorney fees pursuant to R.C. 2323.51 when the Blakes’ motion had originally asked for fees only pursuant to Civ.R. 11 and the Skaggses had not had notice that the hearing would also involve R.C. 2323.51 until a trial memorandum was filed on the date of the hearing. The memorandum in question is not a part of the record on appeal, but we do recognize that the initial motion addressed only Civ.R. 11.

{¶ 18} The Skaggses claim that they should have been given an opportunity to respond to the new argument presented in the Blakes’ memorandum. The record, however, does not reflect an objection to this new argument. Moreover, the requirements for an award of attorney fees are similar. Civ.R. 11 requires “belief there is good ground to support” a complaint, whereas R.C. 2323.51 requires an action to be warranted under existing law or supported by a good-faith argument for an extension, modification, or reversal of existing law. These standards are not so dissimilar that we will presume that the Skaggses were prejudiced by the consideration of R.C. 2323.51. Moreover, they have presented no specific argument as to how they were prejudiced.

{¶ 19} The third assignment of error is overruled.

{¶ 20} The judgment of the trial court will be affirmed.

Judgment affirmed.

Fain, P.J., concurs. Grady, J., dissents.

1 . The evidence showed that Tommy had not been a resident of Miami County.