Demarco v. Pace, 091619 OHCA11, 2019-G-0197

Docket Nº:2019-G-0197
Opinion Judge:MARY JANE TRAPP, J.
Party Name:SHARI DEMARCO, Petitioner-Appellant, v. SCOTTY HENRY PACE, JR., Respondent-Appellee.
Attorney:Scott S. Rosenthal, Rosenthal Thurman, LLC, North Point Tower, For Petitioner-Appellant. Kevin L Starrett, Law Office of Kevin L. Starrett, For Respondent-Appellee.
Judge Panel:THOMAS R. WRIGHT, P.J., MATT LYNCH, J., concur.
Case Date:September 16, 2019
Court:Court of Appeals of Ohio
 
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2019-Ohio-3727

SHARI DEMARCO, Petitioner-Appellant,

v.

SCOTTY HENRY PACE, JR., Respondent-Appellee.

No. 2019-G-0197

Court of Appeals of Ohio, Eleventh District, Geauga

September 16, 2019

Appeal from the Geauga County Court of Common Pleas, Case No. 2018 DV 000385.

Judgment: Affirmed.

Scott S. Rosenthal, Rosenthal Thurman, LLC, North Point Tower, For Petitioner-Appellant.

Kevin L Starrett, Law Office of Kevin L. Starrett, For Respondent-Appellee.

OPINION

MARY JANE TRAPP, J.

{¶1} Appellant, Shari DeMarco ("Ms. DeMarco"), appeals the February 6, 2019 judgment of the Geauga County Court of Common Pleas, which overruled her objections to the magistrate's decision that declined to proceed to a full hearing on the petition for a domestic violence civil protection order ("DVCPO") on behalf of her minor child ("J.P.") once the magistrate became aware of pending custody proceedings regarding the child before the Tennessee court that had originally allocated parental rights and responsibilities between the parties.

{¶2} Following the procedures set out in the Uniform Child Custody Jurisdiction and Enforcement Act ("UCCJEA"), pursuant to R.C. Chapter 3127, et seq., the magistrate consulted with the Tennessee court and counsel for both Ms. Demarco and her ex-husband, Scotty H. Pace, Jr. ("Mr. Pace"). The magistrate learned that after a hearing, the Tennessee court denied Ms. DeMarco's motion to transfer the custody matters to Ohio and ordered the case to remain in Tennessee. Thus, the magistrate determined the Geauga County Court of Common Pleas had only temporary emergency jurisdiction to issue orders protecting the child, which left only one course of action under the UCCJEA-a recommendation to the trial court made through a Civ. R. 53 magistrate's decision that it issue an interim order, pursuant to R.C. 3127.18(C). This order would and did extend the deadline for the expiration of the ex parte DVCPO regarding the child to permit Ms. DeMarco the opportunity to file a petition in the proper forum in Tennessee, where custody matters were already pending.

{¶3} Ms. DeMarco now appeals raising seven assignments of error. She argues the trial court abused its discretion: (1) by adopting the magistrate's decision pursuant to Civ.R. 53(D)(3) instead of Civ.R. 65.1; (2) by issuing an interim order that disposed of the ex parte CPO; (3) in finding that the extension of a March 6, 2019 deadline for the expiration of the CPO afforded Ms. DeMarco adequate time to obtain an order from Tennessee; (4) in failing to conduct a full CPO hearing in violation of Civ.R. 65.1 and R.C. 3113.31(D); (5) in finding that the court had temporary emergency jurisdiction only as to the ex parte order and not issuing a CPO after holding a full hearing; (6) in violating Ms. Demarco's right to due process by failing to hold a full hearing; and, lastly, (7) in finding Ms. DeMarco failed to disclose the pending child custody matter in Tennessee in her initial petition for a protection order.

{¶4} After a thorough review of the record and pertinent law, we affirm the trial court's judgment. We find that the magistrate's decision and recommendation, adopted by the trial court, and the ensuing interim orders giving Ms. DeMarco additional time on multiple occasions to file for the relief sought in Tennessee without proceeding to a final hearing of the DVCPO were both substantively and procedurally correct.

{¶5} We agree with the trial court that pursuant to the UCCJEA, the court was statutorily divested of subject matter jurisdiction to proceed to a full CPO hearing that normally would have occurred pursuant to R.C. 3113.31 and Civ.R. 65.1 had not the jurisdictional dispute arisen. Therefore, we find the trial court did not err as a matter of law or abuse its discretion in finding it only had temporary emergency jurisdiction to extend the ex parte protection order for the child for an adequate amount of time to seek relief in the state with jurisdiction. Ms. DeMarco's right to due process was not violated by the trial court's issuance of an interim order and final judgment on the magistrate's decision without conducting a full DVCPO hearing. The trial court also did not err as a matter of law in determining the magistrate appropriately issued his decision on the jurisdictional question and recommendation for an interim order extending the temporary ex parte DVCPO order pursuant to Civ.R. 53 instead of Civ.R. 65.1.

{¶6} Further, the trial court did not abuse its discretion in failing to grant Ms. DeMarco a third extension of the ex parte order, since she had already begun to seek the same relief in Tennessee when the order expired.

{¶7} Lastly, the trial court did not abuse its discretion in adopting the magistrate's amended decision, which included additional factual findings indicating Ms. DeMarco failed to disclose the pending child custody matter in Tennessee in her attached list of present and pertinent past cases and failed to disclose what matters were pending with any specificity in the Tennessee case in her parenting affidavit. Thus, we affirm the judgment of the Geauga County Court of Common Pleas.

Substantive and Procedural History

{¶8} Prior to divorcing Mr. Pace, Ms. DeMarco and their minor son, J.P., resided in Tennessee. When J.P. was only a few weeks old, Ms. DeMarco moved to Ohio to be with her family. The parties have struggled with the appropriate forum state in their divorce and custody matters since 2012, with Ms. DeMarco filing in Ohio and Mr. Pace filing in Tennessee.

{¶9} In 2013, the Geauga County Court of Common Pleas determined that Tennessee was the "home state" of the parties' minor child pursuant to the UCCJEA because J.P. had lived in Tennessee for at least six consecutive months immediately preceding the commencement of the child custody proceeding and Mr. Pace had filed his action for custody in the Fifth District of the Third Circuit Court for Davidson County, Tennessee (the "Tennessee court") before Ms. DeMarco filed for divorce and custody in the Geauga County Court of Common Pleas. Thus, the Geauga County Court of Common Pleas found that while it would determine the divorce action, the Tennessee court would determine all matters relating to parental rights and responsibilities. The Geauga County Court of Common Pleas granted the parties a divorce on February 19, 2013. In a judgment entered in June of 2014, the Tennessee court named Ms. DeMarco the residential parent and awarded Mr. Pace defined rights of contact and visitation with J.P.

{¶10} The parties have subsequently been embroiled in litigation over custody matters, both in Tennessee and in Ohio. Ms. DeMarco initiated the instant matter in Ohio when she filed a petition for a DVCPO pursuant to R.C. 3113.31 against Mr. Pace. Ms. DeMarco alleged that Mr. Pace was physically abusing J.P. when he was with Mr. Pace in Tennessee. After an ex parte hearing held on the same day, the court issued a temporary ex parte order of protection, naming Ms. DeMarco and J.P. as the protected parties. The order suspended Mr. Pace's exercise of parenting time with J.P., and the matter was set for a full hearing on May 31, 2018.

{¶11} Mr. Pace's attorney appeared at the scheduled full hearing, contesting the court's personal jurisdiction over Mr. Pace and the court's subject matter jurisdiction in the action. The court granted Mr. Pace's motion for a continuance with the temporary ex parte DVCPO still in effect.

{¶12} On October 15, 2018, Mr. Pace filed a motion to dismiss and/or order Ms. DeMarco to refile her petition in Tennessee, arguing that pursuant to the UCCJEA, specifically R.C. 3127.18(C), the trial court lacked jurisdiction to proceed.

{¶13} Simultaneously, motions were being filed in the Tennessee custody case, and on September 7, 2018, the Tennessee court denied Ms. DeMarco's third motion to transfer jurisdiction to Ohio pursuant to Tennessee's UCCJEA, T.C.A. 36-2-21 et. seq.

{¶14} Mr. Pace supplemented his motion to dismiss/refile in the Geauga County Court of Common Pleas on November 2, 2018 with an order that the Tennessee court had issued on October 30, 2018. The Tennessee court found that Tennessee is not an inconvenient forum and will continue to be the forum for the remaining issues of the parties' custody case. The court did not find any changed circumstances from its original decisions in 2012 and 2016. Thus, the basis for the court's original rulings per T.C.A...

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