A.B. v. Sufronko

Decision Date08 January 2019
Docket NumberNo. 18CA13,18CA13
Citation128 N.E.3d 694,2019 Ohio 90
Parties In the MATTER OF: A.B. D.O.B. X/XX/XXXX, B.B. D.O.B. X/XX/XXXX Jarvis Bateman, Plaintiff-Appellee, v. Gina Sufronko, Defendant-Appellant.
CourtOhio Court of Appeals

128 N.E.3d 694
2019 Ohio 90

In the MATTER OF: A.B. D.O.B. X/XX/XXXX, B.B. D.O.B. X/XX/XXXX

Jarvis Bateman, Plaintiff-Appellee,
v.
Gina Sufronko, Defendant-Appellant.

No. 18CA13

Court of Appeals of Ohio, Fourth District, Athens County.

Released: January 8, 2019


128 N.E.3d 696

Susan L. Gwinn, Athens, Ohio, for Appellant.

K. Robert Toy, Athens, Ohio, for Appellee.

DECISION AND JUDGMENT ENTRY

McFarland, J.

{¶1} Gina Sufronko, mother of A.B. and B.B., appeals the Juvenile Division of the Athens County Court of Common Pleas' judgment granting Jarvis Bateman, alleged father of A.B. and B.B., full custody of both A.B. and B.B. On appeal, Appellant contends that 1) an adjudication granting custody to the putative father and assigning parental rights and responsibilities should be set aside where the biological mother was denied her right to be represented by counsel, was not properly notified of the hearing, and where she had no opportunity to present arguments or to be

128 N.E.3d 697

heard at said hearing, as violating the substantive and due process rights of the mother; and 2) an adjudication granting custody to the putative father and assigning parental rights and responsibilities should be set aside where the father has not established paternity, as the court lacked subject matter jurisdiction. Because we conclude questions regarding whether Jarvis Bateman was, in fact, the biological father of the children did not divest the juvenile court of subject matter jurisdiction with respect to a custody complaint filed in juvenile court, Appellant's second assignment of error is overruled. Further, although we reject the arguments raised under Appellant's first assignment of error, we have sua sponte determined that the trial court failed to make a best interest determination in granting Appellee custody of the children at issue. As such, the judgment of the trial court must be reversed and this matter is remanded for further proceedings consistent with this opinion.

FACTS

{¶2} Appellee, Jarvis Bateman, filed a complaint for custody/court ordered visitation on June 21, 2017, essentially alleging that he was concerned for the safety of his children, A.B. and B.B., and that Appellant, the mother of the children, had recently moved out of the family's home, was living with another man, and had a known drug addiction. Appellee attached an affidavit in support of his complaint averring, among other things, that he was the biological father of the children at issue, that he was present at the birth of both of the children, and that he had lived with them until two months prior. The record further reflects that the parties were never married, there had been no prior legal custody determinations, and the children were not wards of any other court. Further, there is no evidence in the record regarding Appellee's establishment of paternity regarding the children.

{¶3} An initial hearing was held on August 31, 2017. Appellant appeared pro se and Appellee appeared with counsel. The parties requested mutual drug testing, which was ordered by the magistrate. A second hearing was held on November 9, 2017. Appellant appeared pro se, but requested a continuance citing the fact she had an appointment scheduled with attorney Christopher Tenoglia. The trial court denied the request for a continuance and in light of the fact Appellant's drug screen was positive and Appellee's was negative, the magistrate placed the children in the temporary custody of Appellee. A third hearing was held on February 15, 2018. Appellant again appeared pro se, explaining that she had spoken with Attorney Tenoglia's secretary and had paid his office a significant sum of money. However, Mr. Tenoglia had not yet entered an appearance and did not appear at the hearing. The magistrate continued the temporary custody order with Appellee and urged Appellant to obtain counsel and get her counsel involved on her behalf.

{¶4} The court scheduled a final hearing on April 19, 2018. The hearing notice issued by the clerk listed Attorney Toy's name at the bottom, but did not list Appellant's name or the guardian ad litem's name. A review of the record reveals that none of the notices of hearing sent by the clerk included Appellant's name. Some listed the guardian's name. All of them listed Attorney Toys' name. The final hearing was held on April 19, 2018, and Appellant failed to appear. Upon inquiring with the deputy clerk as to whether Appellant was properly served and being satisfied that she was, the magistrate proceeded with a short hearing, noting that Appellee would essentially be granted "Judgment by Default" due to Appellant's failure to appear.

128 N.E.3d 698

{¶5} Thereafter, Appellant retained counsel and filed a motion to set aside the judgment as well as a motion for paternity testing. Appellant argued she did not receive notice of the final hearing. The magistrate denied the motions. At the request of the trial court, Attorney Toy drafted a short entry for the court's signature noting Appellant's failure to appear, awarding custody of the children to Appellee, and limiting Appellant's parenting time to the sole discretion of Appellee. It is from this final order that Appellant now brings her timely appeal, assigning the following errors for our review.

ASSIGNMENTS OF ERROR

"I. AN ADJUDICATION GRANTING CUSTODY TO THE PUTATIVE FATHER AND ASSIGNING PARENTAL RIGHTS AND RESPONSIBILITIES SHOULD BE SET ASIDE WHERE THE BIOLOGICAL MOTHER WAS DENIED HER RIGHT TO BE REPRESENTED BY COUNSEL, WAS NOT PROPERLY NOTIFIED OF THE HEARING, AND WHERE SHE HAD NO OPPORTUNITY TO PRESENT ARGUMENTS OR TO BE HEARD AT SAID HEARING AS VIOLATING THE SUBSTANTIVE AND PROCEDURAL DUE PROCESS RIGHTS OF THE MOTHER.

II. AN ADJUDICATION GRANTING CUSTODY TO THE PUTATIVE FATHER AND ASSIGNING PARENTAL RIGHTS AND RESPONSIBILITIES SHOULD BE SET ASIDE WHERE THE FATHER HAS NOT ESTABLISHED PATERNITY AS THE COURT LACKED SUBJECT MATTER JURISDICTION."

ASSIGNMENT OF ERROR II

{¶6} We address Appellant's second assignment of error first, out of order, as it raises a subject-matter jurisdiction argument. In her second assignment of error, Appellant contends that the trial court's adjudication granting custody to Appellee, who Appellant characterizes as the putative father, and assigning parental rights and responsibilities should be set aside as Appellee has not established paternity and the trial court lacked subject-matter jurisdiction. Appellant contends the issue presented is whether a court has subject-matter jurisdiction to decide legal custody and assign parental rights and responsibilities in the absence of the establishment of paternity.

{¶7} The existence of the trial court's subject matter jurisdiction is a question of law that we review de novo. Tewksbury v. Tewksbury , 4th Dist. Pike No. 07CA771, 2008-Ohio-4600, 2008 WL 4174822, ¶ 15 ; citing State ex rel. ACCSEA v. Balch , 4th Dist. Athens No. 06CA26, 2007-Ohio-7168, 2007 WL 4615843, ¶ 22 ; Yazdani–Isfehani v. Yazdani–Isfehani , 170 Ohio App.3d 1, 2006-Ohio-7105, 865 N.E.2d 924, ¶ 20 ; citing State v. Moore , 4th Dist. Highland No. 03CA18, 2004-Ohio-3977, 2004 WL 1689674, ¶ 8, and Burns v. Daily , 114 Ohio App.3d 693, 701, 683 N.E.2d 1164 (1996). Therefore, we do not grant any deference to the trial court's conclusion, Tewksbury, supra ; citing Balch at ¶ 22. Here, we note that Appellant never challenged the trial court's subject-matter jurisdiction of this matter below. However, "[b]ecause subject-matter jurisdiction goes to the power of the court to adjudicate the merits of a case, it can never be waived and may be challenged at any time." Pratts v. Hurley , 102 Ohio St.3d 81, 2004-Ohio-1980, 806 N.E.2d 992, ¶ 11.

{¶8} " ‘* * * Jurisdiction * * * is the "right and power to * * * apply the

128 N.E.3d 699

law[.]" ’ " State v. Lowery , 4th Dist. Ross No. 16CA3533, 2016-Ohio-7701, 2016 WL 6673063, ¶ 7 ; quoting State v. Rode , 11th Dist. Portage No. 2010-P-0015, 2011-Ohio-2455, 2011 WL 2083983,¶ 15 ; in turn quoting The American Heritage Dictionary, Second College Edition 694 (1982). "Subject-matter jurisdiction" is used when referring to a court's authority to act. Lowery at ¶ 7 ; citing Cleveland v. Persaud , 6 N.E.3d 701, ¶ 16 (Feb. 10, 2014). "Subject-matter jurisdiction" of a court connotes the power to hear and decide a case upon its merits, and defines the competency of a court to render a valid judgment in a particular action. Id. A judgment rendered by a court lacking subject-matter jurisdiction is void. Lowery at ¶ 7 ; citing Cleveland v. Kutash , 8th Dist. Cuyahoga No. 99509, 2013-Ohio-5124, 2013 WL 6175209, ¶ 8 ; Patton v. Diemer , 35 Ohio St.3d 68, 518 N.E.2d 941, paragraph three of the syllabus (1988).

{¶9} The judicial power of the state is vested in "such other courts inferior to the supreme court as may from time to time be established by law." Section 1, Article IV, Ohio Constitution. Rode, supra , at ¶ 16. In Ohio, by Section 1, Article IV of the Ohio Constitution, the General Assembly has been given the power to provide for various different divisions of the courts of common pleas. The lower court at issue here is the Juvenile Division of the Athens County Court of Common Pleas.

{¶10}...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT