Hise v. Laiviera

• Decision Date: 27 December 2018
• Docket Number: No. 18 MO 0010,18 MO 0010
• Citation: 127 N.E.3d 460,2018 Ohio 5399
• Parties: Barbara Anne HISE, F/K/A, Barbara Scicluna Laiviera, Plaintiff-Appellee, v. Ian Andre Scicluna LAIVIERA, Defendant-Appellant.
• Court: Ohio Court of Appeals

127 N.E.3d 460

2018 Ohio 5399

Barbara Anne HISE, F/K/A, Barbara Scicluna Laiviera, Plaintiff-Appellee,

v.Ian Andre Scicluna LAIVIERA, Defendant-Appellant.

No. 18 MO 0010

Court of Appeals of Ohio, Seventh District, Monroe County.

Dated: December 27, 2018

Atty. Elgine Heceta McArdle, McArdle Law Office, 2139 Market Street, Wheeling, West Virginia 26003, for Plaintiff-Appellee and

Ian Andre Scicluna Laiviera, pro se, 7, Marrubja Street, Housing Estate, Zejtun, Malta, Europe for Defendant-Appellant.

BEFORE: Carol Ann Robb, Gene Donofrio, Cheryl L. Waite, Judges.

OPINION AND JUDGMENT ENTRY

Robb, P.J.

{¶1} Appellant Ian Scicluna Laiviera (the father) appeals the judgment of the Monroe County Common Pleas Court changing an agreed parenting plan which had been incorporated into a West Virginia divorce decree (and into a parenting order issued by a court in the country of Malta). The court granted "sole custody" of the child to Barbara Hise (the mother), eliminated the father's two to three months of annual parenting time in Malta, decreased the father's parenting time in the United States to two weeks per year, and ordered this parenting time to be supervised.

{¶2} The father contends the court violated his due process rights and abused its discretion in refusing his motion to appear at the hearing via telephonic conference and thereby denied him the opportunity to be heard and defend against the allegations. The father also argues the court's modification disregards the child's best interests and is based on misrepresentations.

{¶3} As the trial court applied a "good cause" test rather than a best interest test, this case must be remanded for application of the correct test, with additional instructions to set forth a specific analysis of the statutory best interest factors. Before the trial court can conduct such analysis, however, a new hearing must be conducted as the totality of the circumstances leads this court to conclude a new hearing is warranted where the father can appear live or electronically. The trial court's decision is therefore reversed, and the case is remanded for further proceedings in accordance with this opinion.

STATEMENT OF THE CASE

{¶4} The parties' child was born in March 2008. They were divorced in West Virginia in 2010. The December 10, 2010 divorce decree incorporated an agreement, including an agreement on parenting. The agreement provided: "The care and custody of the minor child is to be entrusted to both parties jointly. The parties agree that the minor is to reside with the wife. The parties agree that the minor['s] habitual place of residence is in the United States, presently at [a West Virginia address]." The father was provided with "free unlimited access whenever he is in the United States of America * * * to include overnight stays." The parties agreed the father "has the right to take the minor for a visit to Malta for a period of not less than 2 months and not exceeding 3 months annually" (once the child reached the age of 4.5). The father agreed "to return the child to his domicile in the USA" at the expiration of these visits.

{¶5} The mother agreed to allow and encourage regular contact with the father and to inform the father of the child's academic progress. Decisions on the child's education, including the choice of schools, were to be jointly made. As to passports, the agreement specified: "The father agrees to renew the child's American Passport, provided that the mother agrees to renew the child's Maltese passport." The agreement also required the father "to drop proceedings undertaken by him under the Hague Convention on the Civil Aspects of International Child Abduction after this agreement has been registered and ratified by the Maltese and United States judicial authorities."

{¶6} The child left the mother's residence on November 28, 2016 in order to embark on his annual visit to Malta. (In prior years, the annual Malta parenting time occurred during the summer months, but the mother began homeschooling the child that year.) The father did not return the child when expected in February 2017. A court in Malta issued a temporary order on February 2, 2017 stating the child would reside with the father.

{¶7} The underlying Ohio case was commenced on February 16, 2017, when the mother filed a petition to adopt a foreign order under R.C. 3127.35, asking the court to adopt the West Virginia custody order so it could be enforced and modified in Ohio since the mother and the child had been residents of Ohio for years. The mother attached the 2010 agreement which had been incorporated into the divorce decree and a West Virginia judgment.¹ She also asked the court to order the father to return the child, contending he was in violation of the divorce decree by refusing to return the child at the expiration of his parenting time in Malta.

{¶8} On April 26, 2017, the Ohio court declined to accept jurisdiction. The decision showed the court considered: the case file ordered from West Virginia; the December 10, 2010 West Virginia divorce decree adopting the parenting agreement; the mother's 2014 West Virginia modification motion; and a Maltese court's decision to decline to exercise jurisdiction as to that motion.

{¶9} On July 13, 2017, the West Virginia court found jurisdiction in the United States under the Hague Convention and ruled the child must be returned to the United States forthwith. This order recited: courts in Malta and the United States concurrently entered a parenting order providing the child's primary residence was with his mother and providing parenting to the father in Malta; the father began exercising parenting time in Malta in December 2016 and retained the child longer than permitted; the father's petition to modify the parenting plan should be heard in the United States as the habitual residence of the child was in Woodsfield, Ohio; and the United States has superior jurisdiction over any pleading for modification.

{¶10} The Malta Civil Court (Family Division) conducted several hearings. On September 14, 2017, the court issued a decision in a 28-page document, containing a factual history and a recitation of the parties' arguments. The Maltese court concluded: the father wrongfully retained the child in Malta in breach of the mother's custody rights; the child's habitual residence is in the United States; and none of the exceptions in Article 13 of the Hague Convention were substantiated. The Maltese court ordered the immediate return of the child to the United States accompanied by the mother at the father's expense, ordered educational records to be forwarded, and recommended international mediation. The child was immediately returned to the mother who was in Malta at the time.

{¶11} On January 16, 2018, the mother filed various motions in the same Monroe County case number as the denied petition to adopt a foreign order. She filed a motion asking the Ohio court to assume jurisdiction pursuant to the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), citing her residence with the child in Ohio, the father's residence in Malta, and their absence from West Virginia for over a year. She moved to modify the parenting plan by granting her "sole custody" and limiting the father's parenting time to two weeks per year of supervised visitation in the United States (during the last two weeks of June). See R.C. 3127.17(B) (allowing an Ohio court to modify the custody order of another state where the Ohio court has jurisdiction to make an initial determination under R.C. 3127.15(A)(1) or (2) and the child and parents do not presently reside in the other state); R.C. 3127.15(A)(1) (explaining how a court of this state has jurisdiction to make an initial determination in a child custody proceeding). The mother also asked the court to adopt the findings, conclusions, and orders of the Malta Civil Court (9/14/17) and the Family Court of Tyler County, West Virginia (7/13/17).

{¶12} The Ohio court scheduled a hearing for April 5, 2018.² The mother filed a request for a continuance (which the father intended to join). The court granted the motion on February 28, 2018 and rescheduled the hearing for April 12, 2018. On March 14, 2018, the father filed a motion seeking permission to appear at the hearing by telephonic conference (at which a notary would verify his identity). He disclosed he was of "modest economic means" and recently incurred costs making it financially impossible for him to afford to travel from Malta to Ohio for the hearing. The court denied the motion on March 15, 2018.

{¶13} On March 19, 2018, the father filed a response to the mother's motions. He agreed to the history supporting the motion to transfer jurisdiction to Ohio but objected to the mother's proposed amendments to the parenting plan. He disputed that he violated the Parental Kidnapping Prevention Act, noting that he availed himself of the Hague Convention by filing a petition to keep the child in Malta, which was eventually denied by the Maltese court as the court found the exceptions for the protection of a child were inapplicable. He pointed to his receipt of a temporary order from the Maltese court on February 2, 2017 (at the time of the originally scheduled return date), allowing him to retain the child until the proceedings were concluded. He returned the child to the mother immediately upon the final Maltese ruling, which he agreed not to appeal.

{¶14} The father emphasized the final decision by the court in Malta was not a ruling on the merits of the mother's modification request, and he urged the child's best interests would not be served by eliminating the child's annual visit to Malta or by decreasing and restricting parenting time. Summarizing evidence presented in Malta, the father's response also stated: the father, the mother, and the child moved to the father's home country of Malta after the child was born in West Virginia in 2008; half of the child's family lives in Malta; ...