[Cite as Javidan-Nejad v. Navadeh, 2011-Ohio-2283.]
Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION No. 95406
SALVIA JAVIDAN-NEJAD PLAINTIFF-APPELLANT
vs.
ALIREZA NAVADEH DEFENDANT-APPELLEE
JUDGMENT: REVERSED IN PART, DISMISSED IN PART, REMANDED
Civil Appeal from the Cuyahoga County Court of Common Pleas Domestic Relations Division Case No. DR-279478
BEFORE: Rocco, J., Stewart, P.J., and S. Gallagher, J. 2
RELEASED AND JOURNALIZED: May 12, 2011
ATTORNEYS FOR APPELLANT
Joseph G. Stafford Gregory J. Moore Stafford & Stafford Co., L.P.A. The Stafford Building 2105 Ontario Street Cleveland, Ohio 44115
ATTORNEYS FOR APPELLEE
Paul A. Bayer 27600 Chagrin Blvd. Suite 460 Cleveland, Ohio 44122
Joyce E. Barrett James P. Reddy, Jr. 800 Standard Building 1370 Ontario Street Cleveland, Ohio 44113
James S. Cahn James L. Lane Hermann, Cahn & Schneider 1301 East Ninth Street Suite 500 Cleveland, Ohio 44114-1876 3
KENNETH A. ROCCO, J.:
{¶ 1} In this divorce action, defendant-appellant Alireza Navadeh
appeals from the two trial court orders that: 1) granted a motion filed by his
ex-wife, plaintiff-appellee Salvia Javidan-Nejad, to declare Ohio an
inconvenient forum, thus ceding jurisdiction to a California court for further
proceedings; and 2) granted in part and denied in part various objections to
the magistrate’s recommendations regarding outstanding spousal and child
support motions.
{¶ 2} Appellant presents seven assignments of error. In his first
three, he argues the trial court improperly decided to relinquish jurisdiction
in favor of the California court, because the decision is unsupported and
because the trial court failed to conduct an evidentiary hearing on the matter.
Appellant challenges the trial court’s decision concerning spousal support in
his fourth and fifth assignments of error. Appellant’s sixth and seventh
assignments of error present a challenge to the trial court’s decision to set
aside the magistrate’s recommendations concerning appellant’s child support
obligation.
{¶ 3} Upon a review of the record, this court finds the trial court’s
decision to relinquish jurisdiction was inappropriate. Furthermore, the 4
other judgment entry from which appellant appeals does not constitute a final
order, therefore, this court cannot address the arguments appellant presents
in his fourth, fifth, sixth, and seventh assignments of error. This appeal is,
therefore, reversed in part and dismissed in part, and the case is remanded
for further proceedings.
{¶ 4} The record reflects appellant and appellee were married in Iran
on January 5, 1996. Appellant, a physician, moved to the United States in
March, 1998, to live with appellee and to begin training for his certification as
a doctor in this country. The couple had a son born on July 12, 2000.
Although appellee had been pursuing a career in dentistry, she remained at
home to care for their child.
{¶ 5} On April 12, 2001, the couple entered into a separation
agreement. The agreement designated appellee the residential parent of
their son, and set appellant’s child support obligation at $356.88 per month,
“subject to further order of the Court.” The agreement contained no
provision regarding spousal support.
{¶ 6} On April 30, 2001, the parties signed an addendum to the
separation agreement. Therein, appellant agreed to pay appellee $35,000 on
the date of divorce. Appellant further agreed that, beginning on January 1,
2006, he would pay appellee $300,000 at a rate of $5,000 per month for sixty 5
months, with a 10% interest rate to accrue on any untimely payments.
These payments were deemed to be “in complete satisfaction of any obligation
owed pursuant to any prenuptial agreement, and are meant for spousal
support and nondischargeable in bankruptcy.”
{¶ 7} On May 19, 2001, the parties signed a second addendum that
was “meant to replace” the first. Therein, appellant agreed to pay appellee
$25,000 on the date of the divorce. Appellant further agreed that, beginning
on January 1, 2007, he would pay appellee $300,000 at a rate of $5,000 per
month for sixty months, with an 8% interest rate to accrue on any untimely
payments. The sum was “modifiable if [appellant were] totally and
permanently disabled subject to the continuing jurisdiction of the court.”
Once again, the payments were deemed to be “in complete satisfaction of any
obligation owed pursuant to any prenuptial agreement, and are meant for
spousal support and nondischargeable in bankruptcy.”
{¶ 8} On May 30, 2001, the trial court entered judgment on the divorce
decree and ordered the separation agreement into execution. At that time,
both appellant and appellee indicated their annual salaries were an identical
$30,600. Within a year, appellee moved out of state with their child.
Nothing in the record suggests appellant had any opposition to appellee’s
action. 6
{¶ 9} In September 2005, the trial court received an administrative
request for modification of appellant’s child support obligation. On
December 30, 2005, the trial court granted the modification due to a change
in the parties’ circumstances, because, by this time, appellant reported an
annual salary of $190,000. Appellee had relocated to California and obtained
a certification in the specialty of endodontics; she reported an annual salary
of $134,657. On these facts, the trial court set appellant’s monthly child
support obligation at $1,587.12.
{¶ 10} In April 2006, appellant remarried. On December 5, 2006,
appellant filed a motion “for relief from judgment.” He averred in an
attached affidavit that he would not be able to afford the spousal support
obligation set forth in the divorce decree that was due to commence the
following month. However, two weeks later, the trial court noted that the
parties had “resolved their differences by agreement.” On March 30, 2007,
the trial court dismissed appellant’s motion for relief from judgment.
{¶ 11} In June 2007, appellant filed motions to modify spousal and child
support. 1 In his affidavits attached to the motions, he asserted without
1 Every motion appellant filed was accompanied by a “motion for attorney fees.” Since the trial court gave each part of appellant’s filings separate motion numbers, the number of motions before the court rose exponentially; this opinion refers only to motions relevant to this decision. 7
further detail that there had been a “change in circumstances” that
warranted an adjustment to his obligations.
{¶ 12} Shortly thereafter, appellee filed a motion seeking an order from
the trial court for appellant to show cause why he had not yet paid any
spousal support. The trial court took no action on any motions the parties
filed.
{¶ 13} In March 2008, appellant filed five additional motions in the trial
court, in which he sought to prevent any funds from being removed from his
wages. The trial court responded by issuing an order that prevented
deductions from appellant’s salary for either spousal or child support until his
motions could be determined. Appellee, too, filed several post-decree
motions.
{¶ 14} The record reflects that on July 9, 2008, the pending matters
proceeded to an “initial status call” before a magistrate. All pending motions
were continued until a hearing could be scheduled. In the meantime,
appellee filed a motion to dismiss appellant’s request for a spousal support
modification; appellee argued the trial court lacked jurisdiction to modify
spousal support unless appellant were disabled.
{¶ 15} On January 8, 2009, matters pertaining to jurisdiction and to
spousal support proceeded to a hearing before a magistrate. The hearing 8
took place over a number of days, and finally concluded on January 22, 2009.
{¶ 16} On February 19, 2009, the magistrate issued his decision. In
pertinent part, the magistrate determined the trial court retained jurisdiction
over spousal support modifications, found that no substantial change in
circumstances occurred that had not been contemplated by the parties, and,
thus, decided appellant was not entitled to any spousal support modification.
{¶ 17} The magistrate further calculated the parties’ annual incomes as
gleaned from the documents they presented into evidence. From these
figures, he set what he deemed were the “appropriate” monthly child support
amounts appellant owed for the years 2007, 2008, and 2009. The magistrate
also determined appellant’s total child support arrearage to be $4,695.88.
{¶ 18} Both parties filed preliminary objections to the magistrate’s
report. The trial court permitted the parties thereafter to supplement their
objections. 2 Specifically, appellant argued in relevant part that the
magistrate did not receive any evidence concerning matters dealing with child
support, because those had been assigned to another magistrate for
determination.
{¶ 19} Indeed, the record reflects another magistrate set a date for
2The trial court permitted several extensions of time for filing of supplemental objections; the record reflects appellee finally filed her full objections on November 16, 2009. 9
hearing on child support and visitation issues on May 13, 2009. The
proceeding, however, was rescheduled several times. It was eventually set
for a hearing in July 2010; this date occurred after the journal entries from
which appellant filed this appeal.
{¶ 20} On May 12, 2010, appellee filed motions pursuant to R.C.
3127.21(A). Appellee argued that Ohio was no longer the appropriate forum
state for the case since the child, now ten years old, had lived in California
over six years. In her affidavit attached to her motions, appellee averred
that the child had numerous family members and friends in the area,
attended school in Palo Alto, required special tutoring for dyslexia, and his
pediatrician and “pedodontist” were located near his home.
{¶ 21} Appellant filed a brief in opposition, protesting that the trial
court lacked jurisdiction to consider appellee’s motions. In the alternative,
appellant argued that the trial court could conduct proceedings via the
internet, thus obviating the need for transfer. He supplied no affidavit;
instead, he requested a hearing on the matter.
{¶ 22} After appellee filed a reply brief, the trial court issued two
judgment entries dated June 23, 2010; they will be referred to as the “first”
and the “second.”
{¶ 23} The first judgment entry that appears in the record granted 10
appellee’s motions to declare Ohio an “inconvenient forum.” The trial court
stated in its opinion that, based upon the relevant factors, “California is a
more appropriate forum.” The court further stated that since appellee had
filed a “Declaration ‘Under the Uniform Child Custody Jurisdiction and
Enforcement Act’ in the Superior Court of California, County of Santa Clara,”
it was “unnecessary” to issue a stay “as to any pending motions.” The trial
court stated it did not have authority to “transfer” the case, but, “all
remaining motions unresolved or pending” were ordered “dismissed” in thirty
days.3
{¶ 24} The second judgment entry applied to the magistrate’s decision.
In relevant part, the trial court sustained appellant’s objections to the
magistrate’s determination regarding child support. Based upon that ruling,
the trial court listed fifteen of appellant’s motions that were “to be determined
with [his] Motion to Modify Parental Rights and Responsibilities * * * as
further ordered by this Court.” (Emphasis added.) Appellant’s motion to
modify spousal support, however, was denied.
{¶ 25} The court further decreed that “all motions not specifically ruled
on * * * [were] subject to further order of Court pursuant to this Court’s
3 The journal entry does not indicate the matters were dismissed with prejudice. Civ.R. 41(A)(2). 11
Judgment Entry issued this date” that pertained to appellee’s motions to
declare Ohio an inconvenient forum. (Emphasis added.)
{¶ 26} Appellant filed a timely appeal from the foregoing orders. He
presents the following seven assignments of error:
{¶ 27} “I. The trial court erred and abused its discretion by
granting the Appellee’s motion to declare Ohio an inconvenient
forum.
{¶ 28} “II. The trial court’s decision is against the manifest
weight of the evidence in the record.
{¶ 29} “III. The trial court erred and abused its discretion by
granting the Appellee’s motion to declare Ohio an inconvenient
forum without an evidentiary hearing.
{¶ 30} “IV. The trial court erred and abused its discretion by
denying the Appellant, Alireza Navadeh’s[,] motion to modify spousal
support, and by failing to modify and/or terminate the Appellant,
Alireza Navadeh’s[,] spousal support obligation.
{¶ 31} “V. The trial court erred and abused its discretion in
determining the parties’ incomes.
{¶ 32} “VI. The trial court erred and abused its discretion in its
determination that the child support modification should be set 12
aside, when the issue raised by Alireza was the fact that the
magistrate denied other child support related motions, when such
issues were to be heard with the underlying parenting motions.
{¶ 33} “VII. The trial court’s decision is against the manifest
weight of the evidence.”
{¶ 34} Appellant argues in his first, second, and third assignments of
error that the trial court acted improperly when it determined Ohio no longer
was a convenient forum for child custody issues and dismissed the case based
upon only the evidence in the record and without conducting a hearing. This
court agrees.
{¶ 35} In deciding whether to exercise jurisdiction, the trial court is
permitted some discretion; therefore, this court will reverse that decision only
if the trial court abused its discretion. In the matter of D.H., Cuyahoga App.
No. 89219, 2007-Ohio-4069; see, also, Smith v. Schroder (Dec. 12, 1997),
Lucas App. No. L-97-1235. “The term ‘abuse of discretion’ connotes more
than an error of law or judgment, it implies that the court’s attitude is
unreasonable, arbitrary or unconscionable.” Blakemore v. Blakemore (1983),
5 Ohio St.3d 217, 450 N.E.2d 1140. The record reflects the trial court abused
its discretion in this case because, in seeking to absolve itself from any
further responsibility over the proceedings, it failed to comply with all of the 13
statutory requirements.
{¶ 36} The trial court considered R.C. 3127.21 in granting appellee’s
motion; that statute provides:
{¶ 37} “(A) A court of this state that has jurisdiction under this chapter
to make a child custody determination may decline to exercise its 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.
The issue of inconvenient forum may be raised upon motion of a party, the
court’s own motion, or at the request of another court.
{¶ 38} “(B) Before determining whether it is an inconvenient forum, a
court of this state shall consider whether it is appropriate for a court of
another state to exercise jurisdiction. For this purpose, the court shall allow
the parties to submit information and shall consider all relevant factors,
including the following:
{¶ 39} “(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;
{¶ 40} “(2) The length of time the child has resided outside this state;
{¶ 41} “(3) The distance between the court in this state and the court in
the state that would assume jurisdiction; 14
{¶ 42} “(4) The relative financial circumstances of the parties;
{¶ 43} “(5) Any agreement of the parties as to which state should assume
jurisdiction;
{¶ 44} “(6) The nature and location of the evidence required to resolve
the pending litigation, including the testimony of the child;
{¶ 45} “(7) The ability of the court of each state to decide the issue
expeditiously and the procedures necessary to present the evidence;
{¶ 46} “(8) The familiarity of the court of each state with the facts and
issues in the pending litigation.
{¶ 47} “(C) If a court of this state determines that it is an inconvenient
forum and that a court of another state is a more appropriate forum, it shall
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.
{¶ 48} “(D) A court of this state may decline to exercise its jurisdiction
under this chapter if a child custody determination is incidental to an action
for divorce or another proceeding while still retaining jurisdiction over the
divorce or other proceeding.” (Emphasis added.)
{¶ 49} The record reflects that although the trial court considered the
factors set forth in subsection (B), it did not fully meet the requirements set 15
forth in the other subsections. First, appellant asked for a hearing on the
matter, but the trial court declined to provide one.
{¶ 50} In cases in which this court has held the trial court committed no
error in failing to hold a hearing, it has done so only when the party opposing
the motion has not requested one. Critzer v. Critzer, Cuyahoga App. No.
90679, 2008-Ohio-5126, ¶30; see, also, Harris v. Harris, Trumbull App. Nos.
2004-T-057 and 2004-T-0107, 2005-Ohio-6077, ¶12; Bowen v. Britton (1993),
84 Ohio App.3d 473, 616 N.E.2d 1217; cf., Esaw v. Esaw, Belmont App. No. 02
BA 6, 2003-Ohio-3485, ¶19; Smith v. Schroeder. Appellant herein formally
sought an evidentiary hearing.
{¶ 51} The trial court, however, neither clearly stated its intent to
determine the matter on the parties’ briefs, nor clearly ordered appellant to
attach evidentiary materials to his opposition briefs. Under these
circumstances, the trial court abused its discretion.
{¶ 52} Second, in contravention of subsection (C), the trial court did not
order the proceedings stayed; instead, the court decided a stay was
“unnecessary.” However, R.C. 3127.16 states:
{¶ 53} “Except as otherwise provided * * * , a court of this state that has
made a child custody determination * * * has exclusive, continuing
jurisdiction over the determination until * * * a court of another state 16
determines that the child, the child’s parents, and any person acting as a
parent do not presently reside in this state.” (Emphasis added.)
{¶ 54} Nothing in the record in this case reflects the California court
made a “determination” that it had jurisdiction over the parties’ son.
Therefore, the trial court acted improperly in, rather than issuing a stay,
simply relinquishing jurisdiction before a California court made a decision on
the matter.
{¶ 55} Third, in contravention of subsection (D), the trial court’s
judgment entry indicates it failed to understand that it retained jurisdiction
over the pending post-decree divorce matters. Rather, the trial court ignored
its other ruling on appellant’s objections to the magistrate’s decision, and
simply decided all outstanding motions summarily would be “dismissed” in
thirty days.
{¶ 56} For the foregoing reasons, appellant’s first, second, and third
assignments of error are sustained.
{¶ 57} The trial court’s decision in the first judgment entry, along with
the language the court used in the second judgment entry, leads this court to
conclude it lacks jurisdiction to consider appellant’s fourth, fifth, sixth, and
seventh assignments of error.
{¶ 58} This court may review only final appealable orders. R.C. 17
2505.02; Cassim v. Cassim (1994), 98 Ohio App.3d 576, 649 N.E.2d 28. As
relevant herein, R.C. 2505.02 defines a final order as “an order that affects a
substantial right made in a special proceeding * * *.” Divorce proceedings or
actions related thereto, having been unknown at common law, are special
statutory proceedings. State ex rel. Papp v. James, 69 Ohio St.3d 373, 379,
1994-Ohio-86, 632 N.E.2d 889. An order affects a substantial right if a party
is foreclosed from appropriate relief in the future if an appeal were not
immediately allowed. Bell v. Mt. Sinai Med. Ctr. (1993), 67 Ohio St.3d 60,
63, 616 N.E.2d 181, modified on other grounds by Moskovitz v. Mt. Sinai Med.
Ctr., 69 Ohio St.3d 638, 1994-Ohio-324, 635 N.E.2d 331, paragraph four of the
syllabus.
{¶ 59} A final order is one that disposes of either the whole case or some
separate and distinct branch thereof. Noble v. Colwell (1989), 44 Ohio St.3d
92, 94, 540 N.E.2d 1381. Thus, a determination that Ohio is no longer a
convenient forum for purposes of child custody is considered a final order.
Critzer.
{¶ 60} On the other hand, in its second judgment entry, the trial court
simply sustained in part appellant’s objections to the magistrate’s report.
There was no independent judgment, no express adoption of any of the
magistrate’s findings, and no clear pronouncement of the judgment as 18
required by Civ.R. 53(D)(4)(e). Pace v. Pace (Oct. 8, 1996), Gallia App. No. 95
CA 17.
{¶ 61} The trial court’s second judgment entry listed a total of sixteen
motions pertaining to spousal and child support issues that remained “to be
determined * * * as further ordered by this Court.” Only the motions “not
specifically ruled on” in that order were “subject to * * * this Court’s
Judgment Entry issued this date pertaining to [Appellee’s] Motions [to
declare Ohio an inconvenient forum and to transfer].”
{¶ 62} The record in this case, therefore, reflects that sixteen motions
filed by the parties remain for the trial court to decide. B. W. v. D. B.-B.,
Lucas App. Nos. L-10-1017, L-10-1045, L-10-1055, 2010-Ohio-1470; Overmyer
v. Halm, Sandusky App. No. S-08-021, 2009-Ohio-387. The trial court’s
decision cannot be said to have resolved all pending issues. Elliott v. Rhodes,
Pickaway App. No. 10CA26, 2011-Ohio-339. Since interlocutory orders are
subject to modification, the trial court may reconsider them at any time.
Varney v. Varney (Oct. 23, 1997), Cuyahoga App. Nos. 70709 and 70710.
{¶ 63} Consequently, this court lacks jurisdiction to address appellant’s
remaining assignments of error.
{¶ 64} Based upon the disposition of appellant’s first, second, and third
assignments of error, the trial court’s first judgment entry is reversed, and 19
this case is remanded for further proceedings with the following instructions.
{¶ 65} The trial court must conduct a hearing to determine whether the
California court is a more appropriate forum to resolve issues pertaining to
the child’s custody. If so, the trial court must stay the matter until the trial
court determines a California court has accepted jurisdiction over the child
custody matters.
{¶ 66} The portion of this appeal that is from the second judgment entry
is dismissed. That order is interlocutory. The trial court retains
jurisdiction to determine issues relating to spousal and child support, and
those matters remain unresolved.
It is ordered that appellant and appellee share 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.
_________________________________ KENNETH A. ROCCO, JUDGE
MELODY J. STEWART, P.J., and 20
SEAN C. GALLAGHER, J., CONCUR