State ex rel. Ostrowski v. Park

2012 Ohio 4813

• Court: Ohio Court of Appeals
• Decided: October 15, 2012
• Docket: 2012 CA 00121
• Status: Published

Opinion

[Cite as State ex rel. Ostrowski v. Park, 2012-Ohio-4813.]

COURT OF APPEALS STARK COUNTY, OHIO FIFTH APPELLATE DISTRICT

: JUDGES: STATE EX REL. CHAD A. : Patricia A. Delaney, P.J. OSTROWSKI : William B. Hoffman, J. : Julie A. Edwards, J. Relator : : Case No. 2012 CA 00121 -vs- : : : OPINION HONORABLE DIXIE N. PARK

Respondent

CHARACTER OF PROCEEDING: Writ of Procedendo Complaint

JUDGMENT: Writ Issued

DATE OF JUDGMENT ENTRY: October 15, 2012

APPEARANCES:

For Relator For Respondent

CRAIG T. CONLEY JOHN D. FERRERO 604 Huntington Plaza Prosecuting Attorney 220 Market Avenue South Stark County, Ohio Canton, Ohio 44702 BY: ROSS RHODES Assistant Prosecuting attorney Chief of the Civil Division 110 Central Plaza South, Suite 510 Canton, Ohio 44702 [Cite as State ex rel. Ostrowski v. Park, 2012-Ohio-4813.]

Edwards, J.

{¶1} Relator, Chad Ostrowski, has filed a Complaint in Procedendo requesting

this Court order the trial court to lift a stay in the underlying adoption petition.

Respondent has filed a Motion to Dismiss.

{¶2} Relator filed a Petition for Adoption in the trial court which the trial court

stayed pending the resolution of a motion for visitation in the Stark County Court of

Common Pleas, Juvenile Division. Respondent argues a stay of the adoption

proceedings is warranted based upon the Supreme Court’s holding in In re Adoption of

Pushcar, 110 Ohio St.3d 332, 2006-Ohio-4572. Relator in turn argues the

Respondent’s reliance on Pushcar is misplaced. For the following reasons, we agree

with Relator and grant the requested Writ of Procedendo.

{¶3} “A ‘writ of procedendo is appropriate when a court has either refused to

render a judgment or has unnecessarily delayed proceeding to judgment.’” State ex rel.

CNG Fin. Corp. v. Nadel, 111 Ohio St.3d 149, 2006-Ohio-5344, 855 N.E.2d 473, ¶ 20,

quoting Weiss, 84 Ohio St.3d at 532, 705 N.E.2d 1227.

{¶4} “[T]he requirements for a writ of procedendo are met if a judge

erroneously stays a proceeding.” State ex rel. Charvat v. Frye, 114 Ohio St.3d 76, 2007-

Ohio-2882, 868 N.E.2d 270, ¶ 15. Consequently, “a writ of procedendo will issue to

require a court to proceed to final judgment if the court has erroneously stayed the

proceeding.” State ex rel. Watkins v. Eighth Dist. Court of Appeals (1998), 82 Ohio

St.3d 532, 535, 696 N.E.2d 1079.” State ex rel. Sawicki v. Lucas Cty. Court of Common

Pleas, 126 Ohio St.3d 198, 200, 931 N.E.2d 1082, 1086 (2010). Stark County App. Case No. 2012 CA 00121 3

{¶5} The Supreme Court in Pushcar held, “[W]hen an issue concerning the

parenting of a minor child is pending in the juvenile court, a probate court must refrain

from proceeding with the adoption of that child.” Pushcar at 334. In the instant case,

the proceeding pending in the Juvenile Court is a Complaint for Visitation. According to

the Complaint for Visitation, paternity has already been established. The subject of the

case in Pushcar was the establishment of paternity and not merely visitation. The

establishment of paternity is a necessary element of an adoption case which is why a

stay was necessary in Pushcar. Here, the same adoption prerequisite does not exist.

{¶6} Subsequent to its holding in Pushcar, the Supreme Court noted that the

term “parenting” as used in Pushcar was synonymous with “parentage.” In re G.T.B.

128 Ohio St.3d 502 (2011), at FN2. Parentage clearly refers to the establishment of

paternity.

{¶7} We find, Pushcar stands for the proposition that a stay must be imposed

only where parentage is at issue. Because parentage has been established in this case

the trial court erred in imposing a stay. Stark County App. Case No. 2012 CA 00121 4

{¶8} We grant the writ of procedendo and order the trial court to proceed with

the adoption case forthwith.

By: Edwards, J.

Delaney, P.J. and

Hoffman, J. concur

______________________________

JUDGES

JAE/ads0905 [Cite as State ex rel. Ostrowski v. Park, 2012-Ohio-4813.]

IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO

FIFTH APPELLATE DISTRICT

STATE EX REL. CHAD A. OSTROWSKI : : Relator : : : -vs- : JUDGMENT ENTRY : HONORABLE DIXIE N. PARK : : Respondent : CASE NO. 2012 CA 00121

For the reasons stated in our accompanying Memorandum-Opinion on file, a Writ of

Procedendo is issued. The stay imposed by the trial court is lifted. Costs are waived.

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