[Cite as Thomas v. Thomas, 2017-Ohio-8710.]
COURT OF APPEALS RICHLAND COUNTY, OHIO FIFTH APPELLATE DISTRICT
JAMES O. THOMAS : JUDGES: : : Hon. Patricia A. Delaney, P.J. Plaintiff-Appellee : Hon. William B. Hoffman, J. : Hon. John W. Wise, J. -vs- : : Case No. 17CA04 : LILLIAN S. THOMAS : : : Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Richland County Court of Common Pleas, Domestic Relations Case No. 2014 DIV 0890
JUDGMENT: AFFIRMED
DATE OF JUDGMENT ENTRY: November 22, 2017
APPEARANCES:
For Plaintiff-Appellee: For Defendant-Appellant:
SHANNON G. THATCHER J.C. RATLIFF 1007 Lexington Ave. JEFF RATLIFF Mansfield, OH 44907 ROCKY RATLIFF 200 West Center Street Marion, OH 43302 Richland County, Case No. 17CA04 2
Delaney, P.J.
{¶1} Defendant-Appellant Lillian S. Thomas appeals the June 14, 2016 judgment
entry of the Richland County Court of Common Pleas, Domestic Relations Division.
FACTS AND PROCEDURAL HISTORY
{¶2} Plaintiff-Appellee James O. Thomas (“Father”) and Defendant-Appellant
Lillian S. Thomas (“Mother”) were married on December 31, 2007. Father and Mother
lived in Ohio at the time of the marriage. In 2009, Father joined the military and his military
service has taken him periodically from home for as long as a month. One child was born
as issue of the marriage: D.T., born on May 6, 2011. D.T. was born in Ohio.
{¶3} The parties’ marriage was challenging, with the parties separating many
times during the marriage. When D.T. was born, Father was not adept at taking care of
an infant. Mother primarily cared for D.T. with the help of her sister and mother. Mother
and her sister criticized Father for his lack of ability and Father became less involved with
D.T.’s care.
{¶4} The parties separated in 2012 and Mother filed for divorce in 2013, which
she later dismissed before any orders were issued by the trial court. Mother moved out
of the marital home located in Mansfield, Ohio and took D.T. with her. For a period of
time, Father did not know where they were living and Mother would not permit Father to
have contact with D.T.
{¶5} At some point in 2013, Father and Mother were communicating. They
shared parenting time with D.T. on a three-day/four-day basis for a month and a half to
two months. Richland County, Case No. 17CA04 3
{¶6} In December 2013, Mother took D.T. to Florida without Father’s permission.
The boyfriend of maternal grandmother had a residence in Nokomis, Florida. Mother and
Father once visited his residence in Florida. Maternal grandmother had a residence in
Mansfield, Ohio. Maternal grandmother wanted to start a food truck business that she
would operate in Florida during the winter and in Ohio during the summer. Mother was
going to help with the business. Mother told Father her move to Florida was for a few
months and she would come back to Ohio in September 2014.
{¶7} Mother and D.T. went to Florida where she lived in the home of her mother’s
boyfriend. Her mother and sister also stayed in the boyfriend’s home. Father
communicated with D.T. by phone or FaceTime. Father did not visit D.T. in Florida. Father
sent D.T. letters and gifts to the address he knew for the boyfriend’s home in Florida, but
the letters and packages were returned as rejected.
{¶8} In April 2014, Mother came to Ohio for a week with D.T. Mother’s intent was
to let Father visit with D.T. and move her belongings from Father’s house to her mother’s
house in Mansfield. Mother stayed with Father at his apartment in Mansfield, but Father
and Mother argued and Father asked her to leave the apartment. Mother went to a friend’s
apartment and left with D.T. the next day on her scheduled return flight to Florida.
{¶9} In April 2014, maternal grandmother’s boyfriend sold his Nokomis home.
Mother moved to boyfriend’s new residence in Venice, Florida. Mother did not tell Father
that she and D.T. moved.
{¶10} Father was paying the cell phone service for Mother and Mother’s sister.
Father communicated to Mother and sister that he was going to cancel the cell service
due to the cost. Mother and sister did not respond. In July 2014, Father stopped paying Richland County, Case No. 17CA04 4
for their cell phone service. Father had no communication with D.T. after July 2014. Father
attempted to contact Mother through Mother’s family and Mother was aware that Father
was attempting to communicate, but she did not respond.
{¶11} In August 2014, Mother moved into her brother’s apartment in Jacksonville,
Florida. Mother did not inform Father of her new address.
{¶12} Mother had an Ohio driver’s license, but obtained a Florida driver’s license
in 2016. Mother was using maternal grandmother’s address in Ohio for automobile
insurance purposes. Mother is employed in Florida with a painting company and with her
mother’s food truck business.
{¶13} Father continues to reside in Mansfield, Ohio. He is employed with Ohio
Electric Control in Ashland, Ohio and the National Guard.
{¶14} Father filed a Complaint for Divorce on October 3, 2014. Mother was served
by publication because Father did not know Mother’s location.
{¶15} Mother filed an Answer on February 9, 2015.
{¶16} On February 12, 2015, Father filed a request for Emergency Temporary
Orders and an Order Appointing Guardian ad Litem was filed on March 10, 2015.
{¶17} The trial court issued temporary orders on March 13, 2015 and an agreed
judgment entry on temporary orders was issued on April 1, 2015. The temporary orders
named Mother as the temporary residential parent and legal custodian. Father was
granted visitation with D.T. to take place in Ohio. Mother was to bring D.T. to Ohio and
Father was to bring D.T. back to Florida. Father was to pay transportation costs.
{¶18} Father visited with D.T. for the first time since July 2014 in March 2015. The
GAL was present at the meeting between the second visit between D.T. and Father in Richland County, Case No. 17CA04 5
June 2015. The GAL reported that D.T. told her that he could not love Father because he
would take him away from Mother. D.T. told the GAL that his Mother told him that. D.T.
made repeated statements to Father and the GAL that he was not supposed to love
Father because someone would take him away from Mother. The GAL questioned Mother
about the statements and Mother stated D.T. overheard her speaking with her sister.
{¶19} When D.T.’s visitation with Father started, Mother reported D.T. started
vomiting at least once a day when he travelled to Ohio. Mother felt it was due to anxiety.
Mother reported to the GAL that she took D.T. for mental health counseling. The GAL
investigated and found Mother took D.T. to one counseling appointment in September
2015. Mother did not schedule any follow-up counseling sessions. Mother took D.T. to
the emergency room and D.T.’s physician referred D.T. to a gastroenterologist, but
Mother did not schedule an appointment. The GAL was not able to obtain any further
medical information about D.T. because Mother would not provide authorization.
{¶20} At the time the GAL observed D.T., he was four years old. D.T. was not
enrolled in preschool. D.T. could attend kindergarten in the 2016-2017 school year. In
March 2016, Mother had not registered D.T. for a kindergarten screening.
{¶21} On May 26, 2015, Mother filed a motion to dismiss complaint for lack of
jurisdiction and improper venue. Mother filed a second motion to dismiss Father’s
complaint for lack of jurisdiction and improper venue on April 7, 2016.
{¶22} On April 8, 2016, the trial court held a hearing on Mother’s motion to dismiss
Father’s complaint for lack of jurisdiction. Mother argued Florida was the proper
jurisdiction to decide the child custody proceeding. Richland County, Case No. 17CA04 6
{¶23} The trial court held a hearing on Father’s complaint for divorce on April 8,
11, 13, and 14, 2016. The only issue before the trial court on Father’s complaint for
divorce was the child custody proceeding.
{¶24} The GAL recommended Father be awarded custody of D.T. The GAL
observed that both parents loved D.T. and acted appropriately with him. The GAL felt it
was in the best interests of D.T. that the parents stopped fighting, resided in the same
community, and followed a shared parenting plan; however, it was not possible. The GAL
felt Father would be more likely to cooperate with visitation than Mother would. If Mother
was granted sole custody, the GAL felt it would diminish or even eliminate Father’s role
as parent based on Mother’s past behavior.
{¶25} On April 11, 2016, the trial court issued its judgment entry finding that Ohio
had jurisdiction to make an initial determination in the child custody proceeding pursuant
to R.C. 3127.15(A).
{¶26} On April 14, 2016, the trial court issued a judgment entry modifying its
temporary orders to name Father as the temporary residential parent and legal guardian
of D.T.
{¶27} On June 14, 2016, the trial court issued its judgment entry on Father’s
complaint for divorce as to the custody issues. It named Father as the residential parent
and legal custodian of D.T. Mother was awarded parenting time.
{¶28} It is from this decision Mother now appeals. Richland County, Case No. 17CA04 7
ASSIGNMENTS OF ERROR
{¶29} Mother raises two Assignments of Error:
{¶30} “I. THE TRIAL COURT ERRED BY NOT GRANTING DEFENDANT-
APPELLANT’S MOTION TO DISMISS PLAINTIFF’S COMPLAINT FOR LACK OF
JURISDICTION AND IMPROPER VENUE AS THE DOMESTIC RELATIONS COURT
OF RICHLAND COUNTY LACKED SUBJECT MATTER JURISDICTION AS OUTLINED
IN R.C. 3127, ET SEQ.
{¶31} “II. THE TRIAL COURT ERRED IN GRANTING APPELLEE CUSTODY OF
THE MINOR CHILD AS IT WAS NOT IN THE CHILD’S BEST INTEREST, WAS TO THE
DETRIMENT OF THE CHILD, AND WAS ONLY GRANTED TO PUNISH THE
APPELLANT BECAUSE SHE MOVED OUT OF THE STATE OF OHIO.”
ANALYSIS
I. Jurisdiction
{¶32} Mother contends in her first Assignment of Error that the trial court erred
when it failed to dismiss Father’s complaint for custody of D.T. for lack of jurisdiction over
the child.
The UCCJEA
{¶33} The UCCJEA was drafted by the National Conference of Commissioners
on Uniform State Laws to resolve interstate custody disputes and to avoid jurisdictional
competition with courts of other jurisdictions. Rosen v. Celebrezze, 117 Ohio St.3d 241,
2008–Ohio–853, 833 N.E.2d 420, ¶ 20–21. Ohio adopted the UCCJEA and codified the
law in R.C. Chapter 3127. Richland County, Case No. 17CA04 8
{¶34} In making the determination whether to retain jurisdiction over matters
pertaining to custody, support, and companionship of a minor child, R.C. 3127.15
provides the trial court with the following jurisdictional grounds:
(A) Except as otherwise provided in section 3127.18 of the Revised Code,
a court of this state has jurisdiction to make an initial determination in a child
custody proceeding only if one of the following applies:
(1) This state is the home state of the child of the child on the date of the
commencement of the proceeding, or was the home state of the child within
six months before the commencement of the proceeding and the child is
absent from this state but a parent or person acting as a parent continues
to live in this state.
(2) A court of another state does not have jurisdiction under division (A)(1)
of this section or a court of the home state of the child has declined to
exercise jurisdiction on the basis that this state is the more appropriate
forum under section 3127.21 or 3127.22 of the Revised Code, or a similar
statute of the other state, and both of the following are the case:
(a) The child and the child's parents, or the child and at least one
parent or a person acting as a parent, have a significant connection
with this state other than mere physical presence.
(b) Substantial evidence is available in this state concerning the
child's care, protection, training, and personal relationships.
(3) All courts having jurisdiction under division (A)(1) or (2) of this section
have declined to exercise jurisdiction on the ground that a court of this state Richland County, Case No. 17CA04 9
is the more appropriate forum to determine the custody of the child
under section 3127.21 or 3127.22 of the Revised Code or a similar statute
enacted by another state.
(4) No court of any other state would have jurisdiction under the criteria
specified in division (A)(1), (2), or (3) of this section.
(B) Division (A) of this section is the exclusive jurisdictional basis for making
a child custody determination by a court of this state.
(C) Physical presence of, or personal jurisdiction over, a party or a child is
not necessary or sufficient to make a child custody determination.
{¶35} The UCCJEA therefore provides four types of initial child custody
jurisdiction: home-state jurisdiction, significant-connection jurisdiction, jurisdiction
because of declination of jurisdiction, and default jurisdiction. R.C. 3127.15(A)(1)-
(4); Rosen, ¶ 31.
{¶36} A party cannot waive a UCCJEA claim because it concerns subject matter
jurisdiction and the power of the court to adjudicate the matters of a case. Rosen, ¶ 45.
A UCCJEA claim can be raised at any time. Id.
{¶37} A trial court's decision as to whether to exercise jurisdiction pursuant to the
UCCJEA should only be reversed upon a showing of an abuse of discretion. In re
B.M., 5th Dist. Holmes No. 11–CA–010, 2011–Ohio–6608, ¶ 8 citing Hall v. Hall, 5th Dist.
Licking No. 06CA134, 2007–Ohio–2449 citing Bowen v. Britton, 84 Ohio App.3d 473,
478, 616 N.E.2d 1217 (4th Dist.1993). The Supreme Court of Ohio has stated that an
abuse of discretion “connotes more than an error of law or judgment; it implies that the Richland County, Case No. 17CA04 10
court's attitude is unreasonable, arbitrary or unconscionable.” Blakemore v. Blakemore, 5
Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983).
Home State Jurisdiction
{¶38} The dispute in the present case is whether Ohio is the home state of D.T.
The UCCJEA gives jurisdictional priority and exclusive continuing jurisdiction to the “home
state” of the child. Rosen, supra at ¶ 21. “Home state” means the state in which a child
lived with a parent for at least six consecutive months immediately preceding the
commencement of a child custody proceeding. A period of temporary absence of any of
them is counted as part of the six-month or other period. R.C. 3127.01(B)(7). The statute
does not define the meaning of “temporary absence.”
{¶39} D.T. was born in Ohio in May 2011. He lived in Ohio until Mother took D.T.
to Florida without Father’s permission in December 2013. Father remained in Ohio. On
October 3, 2014, Father filed the complaint for divorce, requesting custody of D.T.
Approximately ten months elapsed between the time Mother took D.T. to Florida and
Father filed the complaint for divorce. Mother claims D.T. lived in Florida for six
consecutive months before Father filed the custody action in Ohio, therefore Florida is the
child’s home state and the custody action should be dismissed. Mother has not filed any
custody proceedings in Florida.
{¶40} After an evidentiary hearing, the trial court found D.T. was temporarily
absent from Ohio from December 2013 to the summer of 2014. The trial court determined
the approximate ten-month temporary absence of Mother and D.T. from Ohio should be
counted as part of the six-month period immediately preceding the commencement of the
child custody proceeding, thereby giving Ohio home state jurisdiction. Our review of the Richland County, Case No. 17CA04 11
evidence in the record supports the trial court’s determination that D.T. was temporarily
absent from Ohio. Under R.C. 3127.15(A), Ohio is the home state for the child.
{¶41} The facts of this case support the trial court’s conclusion that when Mother
went to Florida with D.T., it was questionable whether the move was intended to be
permanent. Mother went to Florida to help her mother with her food truck business.
Mother thought they would operate the food truck in Florida during the winter and in Ohio
during the summer. Mother told Father that she and D.T. would only be gone a few
months and they would return to Ohio in the summer of 2014. Mother did not have
independent housing in Florida. Mother, D.T., maternal grandmother, and sister resided
at the home of her mother’s boyfriend. When the boyfriend sold his home, Mother moved
to the boyfriend’s new home and then she moved to her brother’s apartment. Mother has
been at this address since August 2014. D.T. was not enrolled in preschool or daycare
while in Florida. In March 2016, the GAL reported Mother had not taken steps towards
getting D.T. registered for elementary school in Florida. Mother worked for her mother’s
food truck business and as a house painter. In April 2014, Mother returned to Ohio with
D.T. for a week. One of the purposes of coming to Ohio was to move her belongings from
Father’s home to her mother’s home in Mansfield, Ohio. In July 2014, Mother stopped
communicating with Father. In 2016, Mother obtained a Florida driver’s license.
{¶42} The trial court held an evidentiary hearing on the issue and determined
Mother’s move to Florida was meant to be temporary. Based on our review of this record,
we cannot find the trial court abused its discretion in its application of the statutory
guidelines to the facts of this case to determine Ohio was the home state of the child, Richland County, Case No. 17CA04 12
giving Ohio jurisdiction over matters pertaining to custody, support, and companionship
of the minor child.
{¶43} Mother’s first Assignment of Error is overruled.
II. Best Interests
{¶44} Mother argues in her second Assignment of Error that the trial court abused
its discretion when it named Father as legal custodian and residential parent of D.T.
{¶45} The standard of review in custody cases is whether the trial court abused
its discretion. Davis v. Flickinger, 77 Ohio St.3d 415, 674 N.E.2d 1159 (1997). An abuse
of discretion implies that the court's attitude was unreasonable, arbitrary, or
unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217, 450 N.E.2d 1140 (1983).
Given the nature and impact of custody disputes, the trial court's discretion will be
accorded paramount deference because the trial court is best suited to determine the
credibility of testimony and integrity of evidence. Gamble v. Gamble, 12th Dist. Butler No.
CA2006–10–265, 2008–Ohio–1015. Specifically, “the knowledge a trial court gains
through observing witnesses and the parties in a custody proceeding cannot be conveyed
to a reviewing court by a printed record.” Miller v. Miller, 37 Ohio St.3d 71, 523 N.E.2d
846 (1988). Therefore, giving the trial court due deference, a reviewing court will not
reverse the findings of a trial court when the award of custody is supported by a
substantial amount of credible and competent evidence. Davis v. Flickinger, 77 Ohio
St.3d 415, 674 N.E.2d 1159 (1997).
{¶46} R.C. 3109.04 requires a trial court to consider the best interest of the child
in making an award of custody incident to a divorce proceeding. R.C. 3109.04(F)(1)
provides that, in making this determination, a court is to consider all relevant factors, Richland County, Case No. 17CA04 13
including, but not limited to: (a) the wishes of the child's parents; (c) the child's interactions
and interrelationship with her parents; (d) the child's adjustment to her home and
community; (e) the mental and physical health of all persons involved in the situation; (f)
the parent more likely to honor and facilitate visitation and companionship rights approved
by the court; (g) whether either parent has failed to make child support payments * * *;
and (j) whether either parent has established a residence, or is planning on establishing
a residence, outside this state.
{¶47} The judgment entry of the trial court granting custody to Father thoroughly
recounted the facts presented during the hearing. The judgment entry also recited the
GAL report in great detail. The record supports the trial court’s factual findings. In the
beginning of D.T.’s life, Father was admittedly not skilled at caring for an infant. Mother
and her family, however, did not encourage Father’s parenting skills, resulting in Father
taking on a lesser parenting role and Mother becoming the primary caregiver. The
relationship between Mother and Father was contentious. In 2013, however, Mother and
Father worked out their own shared parenting agreement for the care of D.T. Neither party
reported issues as to D.T.’s care during this period of time. The arrangement worked until
December 2013, when Mother took D.T. to Florida without Father’s permission. Father
communicated with D.T. until July 2014, when Mother stopped all communication with
Father because he would not pay for her cell phone. Father did not know where D.T. was
living. When D.T. reunited with Father, D.T. told Father and the GAL that D.T. was not
allowed to love Father because someone would take D.T. away from Mother.
{¶48} Despite his parent’s marital conflicts, the GAL reported D.T. was a happy
child. The GAL was concerned with D.T.’s vomiting issues and Mother’s failure to follow Richland County, Case No. 17CA04 14
up with a physician or mental health counselor. After multiple visitations with Father, D.T.
appeared to be as comfortable with Father as he was in Mother’s home. D.T. reported
that he missed Mother when he was with Father and missed Father when he was with
Mother.
{¶49} Father was assisted in caring for D.T. by his family. He was considering
elementary schools for D.T. in Richland and Ashland Counties. At the time of the hearing,
Father was living with his girlfriend. It was reported the D.T. had a good relationship with
Father’s girlfriend.
{¶50} There was no dispute in this case that Mother and her family fiercely loved
D.T. Father also loved D.T. and wanted to have a relationship with his child. The GAL
noted, however, Mother’s love for D.T. appeared to have no room for Father’s relationship
with D.T. The overriding concern of the GAL was that if Mother was named legal custodian
and residential parent of D.T., Mother would prevent Father from having a relationship
with D.T. based on Mother’s past behavior. Father would be more likely to honor and
facilitate visitation and companionship as ordered by the trial court.
{¶51} The trial court found it was in the best interests of D.T. that Father be named
the legal custodian and residential parent. R.C. 3109.04(F) provides the court with
discretion to weigh the relevant factors and determine how those factors apply to the
child's best interests. Lutton v. Briggs, 5th Dist. Stark No. 2014CA00214, 2015–Ohio–
1910. Given the nature and impact of custody disputes, the trial court's discretion will be
accorded paramount deference because the trial court is best suited to determine the
credibility of testimony and integrity of evidence. Gamble v. Gamble, 12th Dist. Butler No.
CA2006–10–265, 2008–Ohio–1015. Specifically, “the knowledge a trial court gains Richland County, Case No. 17CA04 15
through observing witnesses and the parties in a custody proceeding cannot be conveyed
to a reviewing court by a printed record.” Miller v. Miller, 37 Ohio St.3d 71, 523 N.E.2d
846 (1988). Upon review of the record, we find there is competent and credible evidence
to support the trial court's decision with regards to the designation of Father as the legal
custodian and residential parent.
{¶52} Mother’s second Assignment of Error is overruled.
CONCLUSION
{¶53} The judgment of the Richland County Court of Common Pleas is affirmed.
By: Delaney, P.J.,
Hoffman, J. and
Wise, John, J., concur.