Pegan v. Crawmer

666 N.E.2d 1091, 76 Ohio St. 3d 97
CourtOhio Supreme Court
DecidedJuly 24, 1996
DocketNo. 95-2569
StatusPublished
Cited by89 cases

This text of 666 N.E.2d 1091 (Pegan v. Crawmer) is published on Counsel Stack Legal Research, covering Ohio Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Pegan v. Crawmer, 666 N.E.2d 1091, 76 Ohio St. 3d 97 (Ohio 1996).

Opinion

Per Curiam.

Pegan asserts that the court of appeals erred in denying the writ of habeas corpus. The court of appeals determined that the domestic relations court retained continuing jurisdiction over the custody issues, that Pegan’s appeal was pending before the court of appeals regarding the domestic relations court’s custody award, and that Pegan had failed to demonstrate that she has no adequate remedy at law.

A writ of habeas corpus lies in certain extraordinary circumstances where there is an unlawful restraint of a person’s liberty and there is no adequate remedy in the ordinary course of law. State ex rel. Pirman v. Money (1994), 69 Ohio St.3d 591, 593, 635 N.E.2d 26, 29. Habeas corpus relief is the exception rather than the general rule in child custody actions. Barnebey v. Zschach (1995), 71 Ohio St.3d 588, 646 N.E.2d 162. A writ of habeas corpus will ordinarily be denied where there is an adequate remedy in the ordinary course of the law. In re Hunt (1976), 46 Ohio St.2d 378, 75 O.O.2d 450, 348 N.E.2d 727, paragraph two of the syllabus; Marich v. Knox Cty. Dept. of Human Serv. (1989), 45 Ohio St.3d 163, 165, 543 N.E.2d 776, 779. Nevertheless, where a judgment is void due to lack of jurisdiction, habeas corpus is an appropriate remedy despite the [100]*100availability of alternative remedies such as appeal. Gaskins v. Shiplevy (1995), 74 Ohio St.3d 149, 151, 656 N.E.2d 1282, 1284; In re Lockhart (1952), 157 Ohio St. 192, 195, 47 O.O. 129, 131, 105 N.E.2d 35, 37, and paragraph three of the syllabus.

In her first and second propositions of law, Pegan contends that the domestic relations court lacked continuing jurisdiction to grant custody of the parties’ child to Crawmer when its predecessor juvenile court lacked jurisdiction to originally award custody and visitation concerning the child in the context of the paternity action instituted by Pegan.

R.C. 3111.13(C) provides:

“The judgment or order [determining the existence or nonexistence of the parent and child relationship] may contain any other provision directed against the appropriate party to the proceeding, concerning the duty of support, the furnishing of bond or other security for the payment of the judgment, or any other matter in the best interest of the child. * * * After entry of the judgment or order, the father may petition that he be designated the residential parent and legal custodian of the child or for visitation rights in a proceeding separate from any action to establish paternity. * * * ” (Emphasis added.)

Pegan relies on Burns v. Darnell (1995), 100 Ohio App.3d 419, 654 N.E.2d 169, in which an appellate court held that there is no provision in the paternity statute for the determination of visitation rights and that a trial court does not err in requiring a father to seek visitation in a separate action rather than by post-judgment motion for visitation in the paternity proceeding.

The Burns view is not shared by other appellate courts. See, e.g., Hammon v. Hammon (Apr. 12, 1991), Van Wert App. No. 15-90-14, unreported, 1991 WL 53747 (R.C. 3111.13[C] “does not mandate a separate proceeding [to determine visitation]. Instead, it grants permission to the father to petition for visitation in a separate proceeding rather than doing so at the paternity hearing. The trial court may include provisions for visitation [in the paternity judgment] if it is ‘in • the best interest of the child.’ ”); West v. Anderson (Mar. 17, 1992), Franklin App. No. 91AP-1006, unreported, 1992 WL 55440 (“[T]he father may maintain a separate action, but [R.C. 3111.13(C) ] does not preclude the parties from agreeing to litigate all issues in one action, including visitation.”).

In addition, Burns noted that “any error in proceeding to determine visitation in [a paternity] action, rather than in a separate action, may not be prejudicial.” Burns, 100 Ohio App.3d at 421, 654 N.E.2d at 170; see, also, West, supra (“The legislature has vested the common pleas court with subject matter jurisdiction over visitation and, therefore, whether the actions are maintained separately or jointly is not an issue of non-waivable jurisdiction but, rather, one of venue, which is waivable.”). Burns is also distinguishable from the instant case, since the trial [101]*101court in Bums did not enter a visitation order in the original paternity determination.

Pegan further relies on In re Byard (1996), 74 Ohio St.3d 294, 658 N.E.2d 735. In Byard, at the syllabus, we held that “Ohio’s Uniform Reciprocal Enforcement of Support Act [‘URESA’], R.C. Chapter 3115, does not confer subject matter jurisdiction over issues concerning child custody and visitation in an action for child support enforcement.” In so holding, we noted that in a URESA action, the custodial parent requesting support enforcement has no notice that visitation and custody issues will be raised. Id., 74 Ohio St.3d at 297, 658 N.E.2d at 738. Conversely, the record in this case, which does not include the pleadings or hearing in the 1990 paternity action, discloses no lack of notice concerning visitation and custody. In fact, the record before the court of appeals indicates no argument to that effect by Pegan. Further, the paternity action was governed by R.C. 3111.13(C), rather than the URESA provisions applicable in Byard. Byard is thus not controlling here.

Pegan next contends that the domestic relations court lacked continuing jurisdiction, since the juvenile court did not have original jurisdiction to award custody and visitation where no party filed the child custody affidavit required by R.C. 3109.27 in the paternity action. R.C. 3109.27, part of Ohio’s adoption of the Uniform Child Custody Jurisdiction Act, provides:

“(A) Each party in a parenting proceeding, in the party’s first pleading or in an affidavit attached to that pleading, shall give information under oath as to the child’s present address, the places where the child has lived within the last five years, and the name and present address of each person with whom the child has lived during that period. In this pleading or affidavit, each party shall also include all of the following information:
(( ‡ ‡ ‡
“(2) Whether the party has information of any parenting proceeding concerning the child pending in a court of this or any other state * *

Parenting proceedings include proceedings in which a court awards custody and visitation. R.C. 3109.21(B) and (C). The juvenile court’s 1990 paternity determination included custody and visitation determinations. Consequently, R.C. 3109.27(A) required each party to file a child custody affidavit.

“The requirement of R.C.

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Cite This Page — Counsel Stack

Bluebook (online)
666 N.E.2d 1091, 76 Ohio St. 3d 97, Counsel Stack Legal Research, https://law.counselstack.com/opinion/pegan-v-crawmer-ohio-1996.