Holm v. Smilowitz

• Decision Date: 16 November 1992
• Docket Number: No. 1520,1520
• Citation: 83 Ohio App.3d 757,615 N.E.2d 1047
• Parties: HOLM, Appellant, v. SMILOWITZ, Appellee.
• Court: Ohio Court of Appeals

Page 757

83 Ohio App.3d 757

615 N.E.2d 1047

HOLM, Appellant, v. SMILOWITZ, Appellee.

No. 1520.

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

Decided Nov. 16, 1992.

Schottenstein, Zox & Dunn Co., L.P.A., and Bridgette C. Roman; Friedman & Babbitt and Gerald J. Babbitt, Columbus, for appellant.

Eslocker, Grim, Hodson & Diogardi and Thomas E. Eslocker, Athens, for appellee.

STEPHENSON, Presiding Judge.

This is an appeal from a judgment entered by the Athens County Court of Common Pleas which, among other things, designated Michael Smilowitz, defendant below and appellee herein, as the residential parent for his daughter, Margaret Jean Holm Smilowitz, a.k.a. Meg (d.o.b. March 9, 1988) (hereinafter referred to as the "minor child"), and provided visitation and child support orders for the mother, Margaret Holm, plaintiff below and appellant herein. Appellant assigns the following errors for our review ¹:

I. "The lower court lacked subject matter jurisdiction to entertain Appellee's motion to change custody."

II. "The time limitation of one and one-half hours imposed by the lower court was an abuse of discretion."

III. "The lower court's order modifying custody is contrary to the manifest weight of the evidence."

IV. "The lower court's contempt citation is jurisdictionally deficient and is contrary to the weight of the evidence."

V. "The lower court's visitation order is predicated upon inadmissible evidence and is not in the minor child's best interest."

This case involves an acerbic and convoluted custody battle between the parties herein. Although the pleadings are numerous and the proceedings below complex, a summary of the facts pertinent to this particular appeal is as follows. The parties were divorced in 1989. Custody of the minor child was awarded to appellant and appellee was ordered to pay child support and was allotted one week of visitation per month. Just prior to the conclusion of the original divorce proceedings, appellee left Ohio to accept a teaching position at the University of North Carolina. ² As evidenced by the number of contempt motions appearing of record after the final divorce judgment, there have been difficulties between the parties in complying with the visitation and support orders.

On September 5, 1990, appellant filed a motion requesting that the one-week visitation with the minor child in North Carolina be terminated and that appellee be required to travel to Athens, Ohio, to visit with his daughter. On November 6, 1990, appellee filed a motion requesting that custody of the minor child be transferred to him on the grounds that appellant had "carried out a pattern of behavior intended to interfere with or obstruct [his] visitation rights." ³

Less than three months after appellee filed his motion for custody modification, appellant took the minor child and moved back to her home state of Utah. Appellee was thereafter denied monthly visitations by appellant for March, April and May of that year. ⁴ Although appellee was permitted to spend several weeks with the minor child in June 1991, he was denied court-ordered visitation that was to occur during the following July and August. On August 19, 1991, appellee obtained an interim custody order pursuant to Civ.R. 53(E) granting him immediate temporary custody of the minor child. ⁵ With the assistance of several Utah police officers, appellee thereafter regained physical possession of his daughter.

Appellant then filed a motion below requesting that the interim custody order be vacated and that all previous motions filed by appellee be dismissed for want of subject matter jurisdiction. In support of her motion, appellant argued that Ohio law is preempted by federal provisions enacted as the Parental Kidnapping Prevention Act (hereinafter referred to as "PKPA") and codified at Section 1738A(d), Title 28, U.S.Code, which Act indicates that a state court loses jurisdiction to determine child custody matters when said state is no longer the residence of the child or of either contestant in a custody action. Given that appellee is a resident of North Carolina, and considering that the minor child had been moved to Utah, appellant reasoned that Ohio had lost jurisdiction and that her daughter should be immediately returned to her custody.

Appellee filed his memorandum contra motion to dismiss and argued that the provisions of the PKPA were not controlling in the cause sub judice because there was no dispute between Utah and Ohio as to which state would assume jurisdiction over the matter. In support of this argument, appellee attached a copy of a judgment entered by the Fifth Judicial District Court for Iron County, Utah, which declared, inter alia, "[t]hat the Utah court declined to exercise jurisdiction after consultation with the Athens County, Ohio Court." The Utah court further declared that "original and continuing jurisdiction remains in Athens, Ohio." ⁶

The matter was referred to the court referee who issued her report on October 8, 1991, recommending that the motion to dismiss be denied. In so doing, the referee opined that the PKPA was not designed to wrest jurisdiction from state courts under these sorts of circumstances. Although appellant filed objections to the report, they were overruled and the trial court entered judgment adopting the report and denying the motion to dismiss.

On October 11, 1991, the referee conducted a hearing on a number of pending motions, including those for contempt, termination of visitation and change of custody. The referee issued her report on November 12, 1991, recommending, among other things, that appellee be designated as the new residential parent and legal custodian for the minor child and that appellant be found in contempt of court for "willful denial" of visitation rights. On January 16, 1992, the trial court entered judgment overruling objections to that report and adopted its recommendation. This appeal followed. ⁷

In the first assignment of error, appellant renews her argument that the lower court was without subject matter jurisdiction to entertain the motion(s) to change custody/modify allocation of parental rights. The resolution of this issue requires us to analyze the interplay between the federal provisions of the PKPA and the Ohio version of the Uniform Child Custody Jurisdiction Act ("UCCJA") enacted by the General Assembly in 1977. See Am.S.B. No. 135, 137 Ohio Laws, Part I, 359 (codified at R.C. 3109.21 to 3109.37). This would appear to be a novel issue in Ohio jurisprudence as neither party has cited a case which has previously considered it and we are not aware of any. Nevertheless, for the reasons that follow, we hold that the trial court properly found that it had subject matter jurisdiction over this case. ⁸

It is well-settled law that the court which renders a decree of divorce retains continuing jurisdiction over matters relating to the custody of the parties' minor children. Loetz v. Loetz (1980), 63 Ohio St.2d 1, 2, 17 O.O.3d 1, 2, 406 N.E.2d 1093, 1093; Van Divort v. Van Divort (1956), 165 Ohio St. 141, 59 O.O. 207, 134 N.E.2d 715, at paragraph one of the syllabus. The court below, having been the original forum which entered the divorce decree between the parties and awarded custody of the minor child to appellant, would therefore have retained continuing jurisdiction over the matter. Such jurisdiction is significantly affected when the parties begin moving outside the state, thereby triggering Ohio's version of the UCCJA. In that event, a court with continuing jurisdiction is required by R.C. 3109.22(A) to refrain from exercising jurisdiction unless certain statutory requirements are met. ⁹

Appellant contends that even if continuing jurisdiction is proper under the UCCJA, its exercise may still be precluded by the following portion of the PKPA codified at Section 1738A(d), Title 28, U.S.Code:

"The jurisdiction of a court of a State which has made a child custody determination consistently with the provisions of this section continues as long as the requirement of subsection (c)(1) of this section continues to be met and such State remains the residence of the child or of any contestant." (Emphasis added.)

As previously discussed, appellant and the minor child moved to Utah in February 1991. Appellant reasons that Ohio was no longer the residence of any party involved in the custody battle after such move and, therefore, the court below lost jurisdiction to consider the matter pursuant to the PKPA. In that federal law will control over state regulation on the same subject, appellant concludes that the UCCJA has been preempted by the PKPA and the trial court should have dismissed the proceedings for lack of jurisdiction. The referee below rejected this argument and, relying on several federal cases construing the PKPA, opined that the federal statute was inapplicable and controlled only when there was a dispute between several states as to which forum would assert jurisdiction. Inasmuch as there was no dispute between Utah and Ohio, the referee concluded that the statute did not control in the cause sub judice. The trial court apparently accepted this interpretation and declined to dismiss the proceedings. On appeal, appellant argues that the PKPA controls regardless of the absence of conflict between the states. We disagree.

The federal preemption doctrine is based on the Supremacy Clause of Article VI, United States Constitution, and holds that any state law must yield if it interferes with, or is contrary to, federal law. See, generally, Fid. Fed. S. & L. Assn. v. de la Cuesta (1982), 458 U.S. 141, 152, 102 S.Ct. 3014, 3022, 73 L.Ed.2d 664, 674; Free v. Bland (1962), 369 U.S. 663, 666, 82 S.Ct. 1089, 1092, 8 L.Ed.2d 180, 182. Be that as it may, state law is a nullity only to the extent of actual conflict with federal law and such a conflict is determined when, under the particular facts and circumstances of the case, such...