Salloum v. Falkowski

2016 Ohio 5005

• Court: Ohio Court of Appeals
• Decided: July 18, 2016
• Docket: 2015-L-124
• Status: Published

Opinion

[Cite as Salloum v. Falkowski, 2016-Ohio-5005.]

IN THE COURT OF APPEALS

ELEVENTH APPELLATE DISTRICT

LAKE COUNTY, OHIO

GEORGES SALLOUM, : OPINION

Relator, : CASE NO. 2015-L-124 - vs - :

THE HONORABLE, : COLLEEN A. FALKOWSKI, et al., : Respondents.

Original Action for Writ of Prohibition.

Judgment: Petition denied.

Thomas A. McCormack, McCormack Family Law, 1915 The Superior Building, 815 Superior Avenue, East, Cleveland, OH 44114 (For Relator).

Charles E. Coulson, Lake County Prosecutor, and Eric A. Condon, Assistant Prosecutor, Lake County Administration Building, 105 Main Street, P.O. Box 490, Painesville, OH 44077 (For Respondents, The Honorable Colleen A. Falkowski, and Magistrate Frederick R. Audi.)

Noelle Ann Said Salloum, pro se, 277 East 307th Street, Willowick, OH 44095 (Respondent).

THOMAS R. WRIGHT, J.

{¶1} Before this court are the parties’ competing motions for summary

judgment. Relator, Georges Salloum, seeks a writ of prohibition preventing

respondents, Judge Colleen A. Falkowski and Magistrate Frederick R. Audi, both from

the Lake County Court of Common Pleas, Domestic Division, from proceeding on a motion to modify child support. Relator asserts that respondents lack the authority to

rule because jurisdiction remains with the original trial court in Florida. For the following

reasons, a writ of prohibition will not lie as jurisdiction over child support was transferred

from Florida to respondents’ court.

{¶2} During their marriage, relator and Noelle Ann Said Salloum had one child

and resided in Florida. In December 2007, Florida’s Ninth Judicial Circuit granted

relator and Noelle a dissolution of marriage. The Circuit Court’s final decree also

addresses custody and relator’s child support obligation.

{¶3} Thereafter, Noelle and the minor moved to Lake County, Ohio. Relator

remained in Florida. In February 2014, relator and Noelle filed a pleading in the Florida

court captioned “Joint Stipulation To Transfer Venue.” The stipulation was signed by

both and reads as follows:

{¶4} “1. This reopened matter currently is pending before the Court pursuant to

the Court’s continuing jurisdiction provided for in Florida Statutes. The matters involved

currently are limited issues related to the parties’ minor child, J.G.S., born 2008.

{¶5} “2. However, the Former Wife and minor child at issue no longer reside in

Florida. Instead, they have resided in Lake County, Ohio, for a period of more than six

(6) months consecutively. Therefore, pursuant to Florida Statute 65.520 this Court is no

longer the proper venue [and] is an inconvenient forum for this action.

{¶6} “3. The parties hereby stipulate and agree to transfer venue of this action

to the appropriate Court with jurisdiction over the Former Wife and minor child in the

state of Ohio.”

{¶7} Four months later, the Florida Circuit Court issued a judgment approving

and ratifying the document. Upon noting that a new case was filed in Ohio, the

2 judgment ordered: “This matter shall be relinquished to the proper venue in Lake

County, Ohio, where the Former Wife and minor child currently reside.” In addition, the

judgment contained the following handwritten order: “The Court hereby relinquishes

jurisdiction to the Court of Common Pleas, Lake County, OH.”

{¶8} After the Florida dissolution decree was registered in Ohio, Noelle moved

to modify child support. In response, relator moved to dismiss her motion and to

enforce the joint stipulation. In July 2015, respondent Falkowski denied both aspects of

relator’s motion, and Noelle’s motion to modify remained pending.

{¶9} Three months later, relator again moved to dismiss Noelle’s motion to

modify, arguing that the Florida trial court retained jurisdiction over child support issues.

When respondent Audi stated during a conference that the evidentiary hearing on the

motion to modify child support would proceed before disposition of the second motion to

dismiss, relator filed this action for a writ of prohibition. In conjunction with his petition,

he moved this court to stay all further proceedings. This court granted the stay, except

to allow respondents to render a decision on the second motion to dismiss.

{¶10} On November 24, 2015, respondent Falkowski issued a judgment denying

relator’s second motion to dismiss, holding that she has jurisdiction to decide the motion

to modify child support. First, Judge Falkowski found that the Florida trial court

relinquished jurisdiction over the entire dissolution proceeding and caused the complete

case file to be transferred to Lake County. Second, she found that her court had

authority to go forward because all of the statutory requirements for modifying a

registered child support order had been met. As to the second point, Judge Falkowski

concluded that, by submitting the joint stipulation to the Florida court, relator and Noelle

consented to the transfer of the entire case to Ohio.

3 {¶11} Following Judge Falkowski’s ruling, relator and respondents filed

competing motions for summary judgment in this court on the prohibition claim.

Although respondents’ motion was captioned as one to dismiss under Civ.R. 12(B)(6), it

also requests, in the alternative, summary judgment under Civ.R. 56(C). Attached to

respondents’ motion is a certified copy of Judge Falkowski’s November 24, 2015

judgment. In support of his competing summary judgment motion, relator presents

certified copies of the joint stipulation before the Florida trial court and that court’s June

10, 2014 final judgment approving the joint stipulation.

{¶12} “Summary judgment is a procedural tool that terminates litigation and thus

should be entered with circumspection. Davis v. Loopco Industries, Inc., 66 Ohio St.3d

64, 66, 1993 Ohio 195, 609 N.E.2d 144 (1993). Summary judgment is proper where (1)

there is no genuine issue of material fact remaining to be litigated; (2) the movant is

entitled to judgment as a matter of law; and (3) it appears from the evidence that

reasonable minds can come to but one conclusion, and, viewing the evidence in the

non-moving party’s favor, that conclusion favors the movant. See, e.g., Civ.R. 56(C).”

Defranco v. Judy, 11th Dist. Geauga Nos. 2012-G-3114 and 2013-G-3135, 2014-Ohio-

8, ¶10.

{¶13} “In short, the central issue on summary judgment is, ‘whether the evidence

presents sufficient disagreement to require submission to a [trier of fact] or whether it is

so one-sided that one party must prevail as a matter of law.’” Id. at ¶11, quoting

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-252, 106 S.Ct. 2505, 91 L.Ed.2d 202

(1986). Moreover, when the defendant/respondent has moved for summary judgment,

the plaintiff/relator’s failure to create a genuine issue of material fact as to any element

of his claim is sufficient to warrant final judgment in the defendant’s favor. Advanced

4 Analytics Laboratories, Inc. v. Kegler, Brown, Hill & Ritter, L.P.A., 148 Ohio App.3d 440,

2002-Ohio-3328, ¶34.

{¶14} A writ of prohibition is “a legal order under which a court of superior

jurisdiction enjoins a court of inferior jurisdiction from exceeding the general scope of its

inherent authority.” State ex rel. Jurczenko v. Lake Cty. Court of Common Pleas, 11th

Dist. Lake No. 2009-L-178, 2010-Ohio-3252, ¶24. To be entitled to the writ, the relator

must satisfy three elements: (1) a lower court or judicial officer is preparing to exercise

its judicial power in a pending case; (2) the proposed use of that power is not authorized

under the law; and (3) there is no alternative legal remedy the relator could invoke to

obtain the same result. Id.

{¶15} “As to the second and third elements for the writ, this court has

emphasized that the absence of an adequate legal remedy is not necessary when the

lack of judicial authority to act is patent and unambiguous, i.e., if the lack of jurisdiction

is clear, the writ will lie upon proof of the first two elements only. See State ex rel. Biros

v. Logan, 11th Dist. No. 2003-T-0016, 2003-Ohio-5425, at ¶11. However, if the lack of

jurisdiction is not patent and unambiguous, the fact that a party can appeal a lower

court’s decision bars the issuance of the writ because, when a court has general

jurisdiction over the subject matter of a case, it has the inherent authority to decide

whether that jurisdiction has been properly invoked in a specific instance. State ex rel.

Hummel v. Sadler, 96 Ohio St.3d 84, 2002-Ohio-3605, 771 N.E.2d 853, at ¶21.” State

ex rel. Godale v. Geauga Cty. Court of Common Pleas, 166 Ohio App.3d 851, 2006-

Ohio-2500, 853 N.E.2d 708, ¶6.

{¶16} In our case, there is no dispute that respondents are preparing to exercise

judicial power by going forward on Noelle’s motion to modify child support. As to the

5 second element for the writ, this court concludes that respondents have established

they have jurisdiction to proceed, rendering the third element moot.

{¶17} This action turns on the resolution of the following legal point: did the Lake

County court acquire jurisdiction over the child support issues from the Florida Circuit

Court? Disposition requires application of the Uniform Interstate Family Support Act, as

delineated in R.C. Chapter 3115. There is no dispute that the underlying case before

the Lake County Court began when Noelle sought to register the Florida dissolution

decree. R.C. 3115.38 et seq. governs the procedure to register and enforce a support

order rendered in another state. The statutory scheme further provides the means by

which the “nonregistering” party can contest the validity or enforcement of the support

order. R.C. 3115.43 & 3115.44. In conjunction with the submission of the various

documents necessary to register a foreign child support order, the “registering” party

can also move for modification of that order. R.C. 3115.46. The authority of an Ohio

trial court to hear and determine such a motion is governed by R.C. 3115.48.

{¶18} The latter statute depicts two sets of circumstances under which an Ohio

trial court has jurisdiction over a motion to modify. In this case, Judge Falkowski found

R.C. 3115.48(A)(2) applicable:

{¶19} “(A) After a child support order issued in another state has been registered

in this state, the responding tribunal in this state may modify that order only if section

3115.50 of the Revised Code does not apply and after notice and hearing it finds either

of the following applicable:

{¶20} “* * *

{¶21} “(2) The child, or a party who is an individual, is subject to the personal

jurisdiction of the tribunal of this state and all of the parties who are individuals have

6 filed written consents in the issuing tribunal for a tribunal of this state to modify the

support order and assume continuing, exclusive jurisdiction over the order. * * *”1

{¶22} In this case, R.C. 3115.50 does not apply because relator still resides in

Florida. Moreover, both Noelle and the child are subject to the personal jurisdiction of

respondents’ court, as they reside within Lake County. Neither side challenges the

foregoing two aspects of the statute. Thus, the sole dispute concerns whether relator

and Noelle filed written consents in the Florida trial court allowing the Lake County

Court to modify the prior support order and assume continuing jurisdiction over that

order.

{¶23} As previously noted, Judge Falkowski held that relator’s and Noelle’s joint

stipulation constituted their mutual written consent to transfer child support issues to her

court, in compliance with R.C. 3115.48(A)(2). Relator disagrees, arguing that the joint

stipulation relinquishes jurisdiction over child custody only. He notes that the joint

stipulation does not expressly reference child support issues.

{¶24} As to this point, the joint stipulation readily shows that it does not refer to

any specific issue regarding the minor child; i.e., there is no direct reference to either

child custody or child support. Instead, the stipulation makes reference to “issues”

pertaining to the child. In the first paragraph, the first sentence notes that the

dissolution proceeding was reopened under the Florida Circuit Court’s continuing

jurisdiction. The second sentence then states that the matters “currently” before the

court “are limited issues related to the parties’ minor child * * *.”

1. After Judge Falkowski issued her decision on the jurisdiction issue, R.C. 3115.48 was repealed, along with the other statutes governing modification of a registered child support order. The statutory scheme has been renumbered, and the former R.C. 3115.48 is now R.C. 3115.611. However, even though the wording of that statute has been altered slightly, the basic requirements of division (A)(2) have remained the same.

7 {¶25} The use of the word “limited” means that no issues unrelated to the minor

child, such as spousal support or property distribution, are currently before the Florida

trial court. The presence of the word does not restrict the scope of child-related issues

currently pending. To that extent, the language broadly encompasses all child-related

issues, including support and custody. In addition, the stipulation’s remaining provisions

do not limit the nature of the child-related issues to be transferred to the Ohio court.

Although the third paragraph states that relator and Noelle have agreed to a transfer of

venue, it refers to the transfer of “this action,” not to custody only.

{¶26} Second, relator maintains that the second paragraph in the joint stipulation

contains statements that are only relevant to the transfer of a custody matter under the

Uniform Child Custody Jurisdiction and Enforcement Act, R.C. 3127.01 et seq. In

support, he notes the second paragraph states that Florida is no longer a convenient

forum for the parties because Noelle and their child have resided in Lake County, Ohio

for more than six consecutive months.

{¶27} Relator is correct that, under both Ohio and Florida statutory law, the trial

court which issued the original custody decision can decline to exercise its continuing

jurisdiction over that issue on the grounds that a trial court in another state has become

a more convenient forum. See R.C. 3127.21(A) and Fla. Stat. 61.520(A). Furthermore,

a review of R.C. Chapter 3115, the Uniform Interstate Family Support Act, shows that it

does not contain a similar provision. Thus, according to relator, the joint stipulation was

only intended to apply to custody issues because a finding of a more convenient forum

can only be made in reference to that issue.

{¶28} However, notwithstanding the reference to an “inconvenient forum” in the

second paragraph, the language does not cite the correct Florida statute governing the

8 transfer of a child custody issue to a trial court in another state. More importantly, the

second paragraph does not specifically refer to the child custody issue. In light of this,

the reference to an “inconvenient forum” must be viewed in the context of the entire joint

stipulation. The stipulation only refers to child-related issues in general. Hence, the

unambiguous breath of words used is that the joint stipulation covers all child-related

issues, including child support, and that the reference to the Florida trial court as being

an inconvenient forum was simply the reason for transferring all child-related issues to

the Ohio court.

{¶29} Third, relator has submitted his affidavit, in which he avers that it was his

understanding that the stipulation was to cover child “parenting” issues, not child

support. Yet, the language of the stipulation is unambiguous and applies to all child-

related issues. Accordingly, parol evidence is not admissible to establish that the intent

of the parties was otherwise. See Marvin Friedman & Harry Friedman Co. v. LaSalle

Natl. Bank, 11th Dist Lake No. 2003-L-057, 2004-Ohio-2205, ¶19.

{¶30} Last, relator states that the outcome in this case is dictated by the holding

of the Supreme Court of Ohio in Rosen v. Celebrezze, 117 Ohio St.3d 241, 2008-Ohio-

853, 883 N.E.2d 420. There, the Supreme Court concluded that, although a domestic

relations judge generally has jurisdiction to decide a child custody issue, that judge can

be divested of jurisdiction in a given case under the Uniform Child Custody Jurisdiction

and Enforcement Act. Id. at ¶46. However, Rosen is inapplicable because the

jurisdictional requirements of R.C. 3115.48(A)(2) have been met. The joint stipulation

constitutes written consent to transfer jurisdiction over all child support issues to Lake

County and Judge Falkowski’s domestic relations court, where Frederick R. Audi serves

as a magistrate. Therefore, respondents have authority to proceed on Noelle’s motion

9 to modify child support

{¶31} Respondents have jurisdiction to proceed. Accordingly, respondents’

motion for summary judgment is granted and relator’s motion for summary judgment is

overruled.

TIMOTHY P. CANNON, J., concurs,

DIANE V. GRENDELL, J., concurs in judgment only with a Concurring Opinion.

____________________

DIANE V. GRENDELL, J., concurs in judgment only with a Concurring Opinion.

{¶32} I concur in the judgment of this court that respondents are entitled to

summary judgment and relator’s petition should be dismissed. I disagree with the

majority’s seemingly definitive statement that “Respondents have jurisdiction to

proceed,” supra at ¶ 31, thereby establishing the respondents’ jurisdiction as the law of

the case and/or res judicata. The issues raised in an action for prohibition are whether

the lower court’s exercise of judicial power is authorized by law and whether the relator

has an alternative legal remedy. State ex rel. Chester Twp. v. Grendell, __ Ohio St.3d

__, 2016-Ohio-1520, __ N.E.3d __, ¶ 19. We are not called upon to decide whether the

lower court’s exercise of jurisdiction over the underlying case is proper, only whether

there is a “patent and unambiguous” lack of jurisdiction. Id. at ¶ 31 (only where a “court

so patently and unambiguously lacked jurisdiction to issue the orders in the underlying

case” should the higher court be “willing to issue a writ and circumvent the appellate

10 process”).

{¶33} “Absent a patent and unambiguous lack of jurisdiction, a court having

general subject-matter jurisdiction can determine its own jurisdiction, and a party

challenging the court’s jurisdiction has an adequate remedy at law by appeal.” State ex

rel. Hunter v. Patterson, 75 Ohio St.3d 512, 514, 664 N.E.2d 524 (1996). A definitive

ruling by this court that the lower court has jurisdiction to proceed effectively precludes

the relator from appealing the court’s exercise of jurisdiction in the ordinary course of

law. On the contrary, “[i]t is well-settled that prohibition does not function as a substitute

for an appeal.” (Citation omitted.) State ex rel. Children’s Med. Ctr. v. Brown, 59 Ohio

St.3d 194, 195, 571 N.E.2d 724 (1991).

{¶34} Accordingly, in granting the respondents’ motion for summary judgment,

our holding should be limited to whether the lower court patently and unambiguously

lacks jurisdiction over the matter before it and/or whether the relator has an adequate

remedy at law by appeal. As the court does not patently and unambiguously lack

jurisdiction and relator does have an adequate remedy at law, the petition should be

denied without further resolution of the jurisdictional issue. Grendell at ¶ 31 (“we need

only decide whether the [respondent] patently and unambiguously lacks jurisdiction over

the matter”).