In re M.I.S.

2012 Ohio 5178

• Court: Ohio Court of Appeals
• Decided: November 8, 2012
• Docket: 98138
• Status: Published

Opinion

[Cite as In re M.I.S., 2012-Ohio-5178.]

Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION No. 98138

IN RE: M.I.S. A Minor Child

[APPEAL BY A.M.S., FATHER]

JUDGMENT: AFFIRMED

Civil Appeal from the Cuyahoga County Court of Common Pleas Juvenile Division Case No. CU 10105512

BEFORE: Boyle, P.J., Cooney, J., and Kilbane, J.

RELEASED AND JOURNALIZED: November 8, 2012 FOR APPELLANT FATHER

A.M.S., pro se c/o 1243 East 99th Street Cleveland, Ohio 44108

ATTORNEY FOR APPELLEE MOTHER

Thomas A. McCormack The Superior Building Suite 1915 815 Superior Avenue Cleveland, Ohio 44114 MARY J. BOYLE, P.J.:

{¶1} Plaintiff-appellant, A.M.S. (“father”), appeals from a trial court judgment

finding that Ohio was an inconvenient forum to determine his motion for custody.

Finding no merit to his appeal, we affirm.

Procedural History and Factual Background

{¶2} In April 2010, father filed an application in the Cuyahoga County Court of

Common Pleas, Juvenile Division, to determine custody pursuant to R.C. 2151.23(A)(2).

In his affidavit attached to his application for custody, father averred that he and mother

were “previously married according to Islamic Law.” Father averred in his Uniform

Child Custody Jurisdiction Enforcement Act (“UCCJEA”) affidavit that the child was

born in Louisiana on December 26, 2006. The child lived with father and mother, M.S.,

in Louisiana from the time of his birth until May 1, 2009, when the parties separated.

The child then lived with father in Louisiana until July 2009, after which father moved to

Ohio with the child. The child lived with father in Ohio from July 2009 to January 2010.

In January 2010, mother came to Ohio to get the child. Since January 2010, the child

has lived with mother in Louisiana.

{¶3} Mother moved to dismiss father’s custody case, claiming that the court

lacked jurisdiction, or in the alternative, moved the court to find that Ohio was an

inconvenient forum. In her motion, mother explained that she and father were never

married. She further stated that father “kidnapped the child to flee [Louisiana] to avoid

legal process at a time when [mother] was out of the house.” According to mother’s motion, father hid his whereabouts with the child until she discovered that he was in

Cleveland, and Cleveland police helped secure possession of the child and return him to

mother.

{¶4} In December 2010, the magistrate held a hearing. The parties agreed that

mother “shall have temporary custody.” They further agreed that father would have

parenting time as set forth in their agreement. The parties also agreed that Louisiana was

the appropriate forum to handle the custody case and that one of them would initiate a

custody proceeding before the next hearing. The magistrate issued a pretrial order,

setting forth the parties’ agreement and ordering that “one of the parents shall file an

action in Louisiana by the next hearing as this matter will be dismissed because Ohio is

an inconvenient forum.” The next hearing was set for March 2011.

{¶5} The magistrate held a hearing as scheduled on March 22, 2011. The

magistrate found that pursuant to R.C. 3127.21, Ohio was an inconvenient forum. The

magistrate dismissed the case without prejudice. Father objected to the magistrate’s

decision, arguing in part that the magistrate dismissed the matter without a full hearing

and that mother had not filed a proper pleading requesting that the case be dismissed. In

September 2011, the trial court sustained father’s objections and returned the case to the

magistrate.

{¶6} Upon remand from the trial court, the magistrate set the matter for hearing

in February 2012 “to determine if Ohio [was] the appropriate forum.” {¶7} The magistrate held a hearing on February 8, 2012, to determine if Ohio

was the appropriate forum. After hearing from father and mother’s attorney, the

magistrate concluded that Ohio was an inconvenient forum and that the parties had been

given sufficient time to commence a child custody proceeding in Louisiana. The

magistrate dismissed the case without prejudice and assessed costs to father.

{¶8} Father objected to the magistrate’s decision, claiming, inter alia, that

because of “ineffective assistance of counsel,” his counsel had not properly included all

of the time that the child was in Ohio on his original UCCJEA petition. Father further

alleged that the magistrate failed to rule on the various motions he filed, as well as his

writ of habeas corpus.

{¶9} After an independent review of the record, the trial court approved,

adopted, and ordered the magistrate’s decision into law.

{¶10} It is from this judgment that father appeals, raising 15 assignments of error

for our review. Father’s assignments of error are lengthy and, thus, we will summarize

them as necessary. We will also group his assignments of error together for ease of

discussion and convenience.

Standard of Review

{¶11} Unless otherwise noted, our standard of review is whether the trial court

abused its discretion in adopting the magistrate’s decision. A trial court’s ruling on

objections to a magistrate’s decision will not be reversed absent an abuse of discretion.

Gobel v. Rivers, 8th Dist. No. 94148, 2010-Ohio-4493, ¶ 16. Furthermore, when reviewing the propriety of a trial court’s determination in a domestic relations case, an

appellate court generally applies an abuse of discretion standard. Gray v. Gray, 8th Dist.

No. 95532, 2011-Ohio-4091, ¶ 7, citing Booth v. Booth, 44 Ohio St.3d 142, 144, 541

N.E.2d 1028 (1989).

{¶12} An abuse of discretion implies that the court’s attitude was unreasonable,

arbitrary, or unconscionable and not merely an error of law or judgment. Blakemore v.

Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983). “Abuse of discretion” is a

term of art, describing a judgment neither comporting with the record, nor reason. See,

e.g., State v. Ferranto, 112 Ohio St. 667, 676-678, 148 N.E. 362 (1925). “A decision is

unreasonable if there is no sound reasoning process that would support that decision.”

AAAA Ents., Inc. v. River Place Community Urban Redevelopment, 50 Ohio St.3d 157,

161, 553 N.E.2d 597 (1990). Further, an abuse of discretion may be found when the trial

court “applies the wrong legal standard, misapplies the correct legal standard, or relies on

clearly erroneous findings of fact.” Thomas v. Cleveland, 176 Ohio App.3d 401,

2008-Ohio-1720, 892 N.E.2d 454, ¶ 15 (8th Dist.).

R.C. 3127.21 — Inconvenient Forum

{¶13} In his first 11 assignments of error, father contends that the trial court erred

when it determined that Ohio was an inconvenient forum to determine his custody

petition. He first argues that the trial court did not permit him to submit evidence on the

relevant factors under R.C. 3127.21. In his next ten assignments of error, father essentially claims that the trial court erred by not taking some action before it found Ohio

to be an inconvenient forum. We find no merit to his arguments.

{¶14} R.C. 3127.21(A) provides that even if a court has jurisdiction to make a

child custody determination, it may decline to exercise that 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.”

{¶15} In determining whether a court is an inconvenient forum, a court shall

consider the relevant factors set forth in R.C. 3127.21(B):

(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;

(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.

{¶16} Here, after hearing from father and mother’s attorney, the magistrate found

that the child was born in Louisiana in December 2006 and that besides a period of time,

July 2009 to January 2010, the child had resided in Louisiana. The magistrate further explained that at a December 2010 pretrial conference, the parties had entered into an

agreement where mother would have temporary custody and father would have parenting

time. The magistrate noted that the parties further agreed that Louisiana was the

appropriate forum and that one of them would file a child custody action in Louisiana by

the next hearing set for March 2011. The magistrate found that it had cautioned the

parties that the case would be dismissed if the parties failed to file the action. The

magistrate further found that mother filed an action in Louisiana, but was unable to obtain

service. The magistrate stated: “Certified mail was sent to father but was returned

marked ‘unknown.’ The address used was the address father had used on all of his

pleadings in this case. Notices have been sent to that address by the court and nothing

had been returned.”

{¶17} The magistrate stated that she considered the factors listed in R.C.

3127.21(B), including (1) the length of time the child resided outside of Ohio, (2) any

agreement of the parties as to which state should assume jurisdiction, (3) the nature and

location of the evidence required to solve the pending litigation, and (4) “the ability of the

court of each state to decide the issue expeditiously and the procedures necessary to

present evidence.”

{¶18} The magistrate also considered R.C. 3127.21(C), which requires the court to

“stay the proceedings upon condition that a child custody proceeding be promptly

commenced in another designated state and may impose any other condition the court

considers just and proper.” The magistrate stated that “the parties have had from 12/15/10 to 2/8/12 to commence an action in Louisiana,” and that “the court [had]

informed the parties that this matter would be dismissed even if no action was

commenced.”

{¶19} The magistrate concluded that Ohio was an inconvenient forum and that the

parties had been given sufficient time to commence a child custody proceeding in

Louisiana. The magistrate then dismissed the case without prejudice and assessed costs

to father.

{¶20} After reviewing the record, it is clear that in determining whether Ohio was

a convenient forum, the magistrate considered the relevant factors under R.C. 3127.21

and made findings of fact based on those relevant factors.

{¶21} The trial court independently reviewed the magistrate’s decision, approved

and adopted it, and entered its final judgment.

{¶22} With respect to father’s assertion that the magistrate did not let him submit

evidence on the relevant factors, we find that the record does not support his claim.

During the hearing, father kept attempting to argue the merits of the custody case, not

where custody of the child should be determined.

{¶23} Regarding father’s arguments that the trial court should have taken other

actions before it determined that Ohio was an inconvenient forum, we disagree. The trial

court was fully within its discretion to determine first whether it had jurisdiction and then,

if so, determine whether it should decline to exercise that jurisdiction. We find no abuse

of discretion on the part of the trial court in adopting the magistrate’s decision. {¶24} Father’s first 11 assignments of error are overruled.

Remaining Issues

{¶25} In his 12th and 13th assignments of error, father raises issues regarding

mother’s counsel having a conflict of interest in the case and claims the trial court erred

by not barring him from representing mother. Father did not raise this issue below.

Accordingly, we will not address it for the first time on appeal. Father’s 12th and 13th

assignments of error are overruled.

{¶26} In his 14th assignment of error, father contends that the trial court failed to

provide him with effective assistance of counsel. “The Sixth Amendment to the United

States Constitution provides a criminal defendant the right to effective assistance of

counsel.” Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 2063, 80 L.Ed.2d

674 (1984). There is no constitutional right, however, to be represented by counsel in a

civil proceeding between individual litigants. Roth v. Roth, 65 Ohio App.3d 768, 776,

585 N.E.2d 482 (6th Dist.1989). The right to effective assistance of trial counsel

attaches only to criminal proceedings and to proceedings for the permanent, involuntary

termination of parental rights. See Jones v. Lucas Cty. Children Servs. Bd., 46 Ohio

App.3d 85, 86, 546 N.E.2d 471 (6th Dist.1988). This case does not involve the

termination of father’s parental rights. Father’s 14th assignment of error is overruled.

{¶27} In his 15th and final assignment of error, father claims that based on the

cumulative effect of all of the trial court’s errors, his due process rights were violated.

After a thorough review of the record, we find no due process violation. Father can fully litigate his claims against mother, just not in this state. Father’s 15th assignment of error

is overruled.

{¶28} Judgment affirmed.

It is ordered that appellee recover from appellant costs herein taxed.

The court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate be sent to said court to carry this judgment into

execution.

A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.

MARY J. BOYLE, PRESIDING JUDGE

COLLEEN CONWAY COONEY, J., and MARY EILEEN KILBANE, J., CONCUR