Dunn, In re

• Decision Date: 17 April 1992
• Docket Number: No. 2-91-21,2-91-21
• Citation: 79 Ohio App.3d 268,607 N.E.2d 81
• Parties: In re DUNN et al. *
• Court: Ohio Court of Appeals

Page 268

79 Ohio App.3d 268

607 N.E.2d 81

In re DUNN et al. ^*

No. 2-91-21.

Court of Appeals of Ohio, Third District, Auglaize County.

Decided April 17, 1992.

Quentin M. Derryberry II, Wapakoneta, for appellant Roxanne wyman.

Jerry M. Johnson and F. Stephen Chamberlain, Lima, for appellee Tanya Dunn.

HADLEY, Presiding Judge.

Appellant, Roxanne (Dunn) Wyman ("Roxanne"), appeals from the judgment of the Auglaize Court of Common Pleas, Juvenile Division, which awarded custody of appellant's two minor children to appellee, Tanya J. Dunn ("Tanya").

Roxanne married Larry Dunn ("Larry") in March 1973 and they had two children, Averil in 1973 and Andrea in 1977. In December 1981 Roxanne left Larry and their two children and moved in with Tim Wyman. In 1984, Larry was granted a divorce from Roxanne in the Van Wert County Common Pleas Court. This court also awarded custody of Larry and Roxanne's children to Larry, with liberal visitation rights to Roxanne. Roxanne was ordered to pay child support in the amount of $25 a week. Subsequently, Roxanne married Tim and Larry married Tanya. Roxanne continued to visit regularly with her children, but did not provide any support for them.

Larry unexpectedly died in February 1991. The present action was thereafter commenced by Tanya, first seeking an order for temporary custody and, then, a complaint to determine permanent custody. ¹ A trial on the merits was held in July 1991, wherein psychological examinations of the children were presented and the juvenile judge interviewed both children in chambers. On August 27, 1991, the court rendered its decision and on September 23, 1991, Tanya was awarded custody of Averil and Andrea. It is from this decision and judgment that Roxanne appeals, asserting the following assignment of error:

Assignment of Error

"Whether statutory and case law in Ohio supports an award of custody to a non-parent and non-relative when the Court has specifically found that the surviving parent seeking custody is suitable to have custody but then determines that custody to a non-parent/non-relative is in the best interest of the children."

We will first address the parties' dispute over the applicability of R.C. 3109.06 and 3109.04. R.C. 3109.06 provides for certification to another court in cases regarding the allocation of parental rights and responsibilities. It also provides that the court which has already issued an order regarding such parental rights and responsibilities does not lose jurisdiction upon the death of the custodial parent. That court retains jurisdiction to resolve the case in the best interest of the child. The test of best interest of the child stated in R.C. 3109.06 refers to the court that has already issued an order allocating parental rights and responsibilities. In the present action, the Van Wert Court of Common Pleas had already issued such an order regarding the Dunn children. Therefore, that paragraph of R.C. 3109.06 has no application to the present action because this case was certified by the Van Wert court to the Auglaize court. Rather, it is unequivocal that the standards set forth in R.C. 3109.04 must be followed, as R.C. 3109.06 dictates:

"Any disposition made pursuant to this section, whether by a juvenile court after a case is certified to it, or by any court upon the death of a person awarded custody of a child, shall be made in accordance with section 3109.04 of the Revised Code."

Therefore, when a court undertakes the allocation of parental rights and responsibilities, it must follow R.C. 3109.04. Relevant to the present action is R.C. 3109.04(D)(2) which states:

"If the court finds, with respect to any child under eighteen years of age, that it is in the best interest of the child for neither parent to be designated the residential parent and legal custodian of the child, it may commit the child to a relative of the child * * *."

This language has been interpreted by the Ohio Supreme Court. First, in Boyer v. Boyer (1976), 46 Ohio St.2d 83, 75 O.O.2d 156, 346 N.E.2d 286, the Supreme Court had the opportunity to interpret the language of R.C. 3109.04 as amended in 1975. ² Therein, the court applied only a best-interest test to a custody dispute between a parent and a nonparent. The following year, the Supreme Court modified its ruling in Boyer in In re Perales (1977), 52 Ohio St.2d 89, 6 O.O.3d 293, 369 N.E.2d 1047. Although Perales involved a custody dispute under R.C. 2151.23, instead of a dispute under R.C. 3109.04, the Perales court's reasoning has been applied to the latter. E.g., Thrasher v. Thrasher (1981), 3 Ohio App.3d 210, 213, 3 OBR 240, 242, 444 N.E.2d 431, 434; In re Zeedyk (Nov. 30, 1988), Defiance App. No. 4-87-5, unreported, 1988 WL 126768.

The Perales decision involved a dispute between a parent and a nonparent, and modified the construction of R.C. 3109.04 by combining the best-interest test and the prior-suitability test. Thrasher, supra, and Zeedyk, supra. Perales, at the syllabus, stated:

"In an R.C. 2151.23(A)(2) child custody proceeding between a parent and a nonparent, the hearing officer may not award custody to the nonparent without first making a finding of parental unsuitability--that is, without first determining that a preponderance of the evidence shows that the parent abandoned the child, that the parent contractually relinquished custody of the child, that the parent has become totally incapable of supporting or caring for the child, or that an award of custody to the...