In re B.M., No. 16CA12

• Court: United States Court of Appeals (Ohio)
• Writing for the Court: McFarland, J.
• Citation: 2017 Ohio 7878,98 N.E.3d 9
• Parties: In the MATTER OF: B.M.
• Decision Date: 21 September 2017
• Docket Number: No. 16CA12

98 N.E.3d 9
2017 Ohio 7878

In the MATTER OF: B.M.

No. 16CA12

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

Released: September 21, 2017

98 N.E.3d 12

APPEARANCES:¹ L. Jackson Henniger, Logan, Ohio, for Appellants.

William W. Henderson, Logan, Ohio, for Appellee.

Charles A. Gerken, Logan, Ohio, Guardian Ad Litem.

Melissa Meuller Rose, Middletown, Ohio, Pro Se Appellee.

DECISION AND JUDGMENT ENTRY

McFarland, J.

{¶ 1} Mark L. Meuller and Melody L. Meuller, (hereinafter "Appellants") are the maternal grandfather and step-grandmother of B.M. Appellants are now appealing the entries of the Hocking County Court of Common Pleas, Juvenile Division, filed July 9, 2014 and May 3, 2016. Upon review of the record, we find the trial court did not abuse its discretion in dismissing Appellants' complaint/motion for custody of B.M. Because we find no error, we affirm the judgment of the trial court. Appellants' assignments of error are overruled.

FACTS

{¶ 2} This matter concerns "B.M.," who was born in 2002.² B.M.'s parents are Melissa Meuller–Rose (hereinafter "Mother") and Nickolas R. Mabry, (hereinafter "Father"). B.M.'s parents did not marry and lived together intermittently during the first 3–4 years of B.M.'s life. A detailed chronology of the procedural history of the case will be set forth below in our discussion of the first assignment of error.

{¶ 3} In 2005, the Hocking County Juvenile Court designated Mother as the residential parent and established a child support order. At that time, the court noted

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B.M. and her mother resided in Laurelville, Ohio, in Hocking County. Father was properly served notice of the proceeding but did not make an appearance.

{¶ 4} In November, 2013, Appellants filed a complaint for grandparent custody in Shelby County, Ohio.³ In December 2013, the Father filed a complaint for custody in Shelby County as well. Then in early 2014, Appellants and B.M.'s Father also filed complaints for custody in Hocking County Juvenile Court. On January 28, 2014, the Hocking County Juvenile Court found that Hocking County had first acquired jurisdiction in 2005. All proceedings were cancelled in Shelby County.

{¶ 5} The Hocking County Juvenile Court held a final hearing on the motion for change of custody and the grandparents' complaint on June 27, 2014. By the court's entry dated July 9, 2014, the court found that both parents were suitable and denied the Appellants' complaint for custody. The court further found a substantial change in circumstances since the time custody was granted to the Mother. The trial court found it in the best interests of B.M. to grant the Father's motion for custody and also granted the Mother standard visitation rights pursuant to local rule. The trial court continued Appellants' motion for visitation pending further order of the court.

{¶ 6} Appellants commenced a timely appeal. On April 15, 2015, this court dismissed the grandparents' appeal for lack of a final appealable order due to the Appellants' unresolved claim for visitation with B.M. On May 3, 2016, the visitation request came on for hearing. By agreement of parties, the trial court granted Appellants visitation one weekend per month. On June 1, 2016, Appellants instituted the current appeal, challenging the trial court's judgments dated July 9, 2014 and May 3, 2016. Where relevant, additional facts will be set forth below.

ASSIGNMENTS OF ERROR ONE AND TWO

"I. THE HOCKING COUNTY JUVENILE COURT DID NOT HAVE SUBJECT MATTER JURISDICTION OF THIS CASE, UNDER R.C. SECTION 2151.23(A)(2) AND R.C. SECTION 2151.06 IN THAT NO PARTY WAS A RESIDENT OF THE COUNTY AND THE CHILD SUPPORT CASE FILED & DETERMINED IN THE COURT IN 2005 DID NOT CONFER SUBJECT MATTER JURISDICTION ON THE COURT, AND THE PARTIES COULD NOT SO CONFER."

A. Standard of Review

{¶ 7} The existence of a 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 (11th Dist. 1996). Therefore, we do not grant any deference to the trial court's conclusion. Tewksbury, supra , citing Balch , at ¶ 22.

B. Legal Analysis

{¶ 8} Subject-matter jurisdiction is defined as a court's power to hear and

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decide particular classes of cases. Gonzales v. Perez, 7th Dist. Carroll No. 13CA893, 2015-Ohio-1282, 2015 WL 1453290, ¶ 11, citing Pratts v. Hurley , 102 Ohio St.3d 81, 2004-Ohio-1980, 806 N.E.2d 992, ¶ 11. It may not be conferred by agreement of the parties or waived, and is the basis for mandatory, sua sponte dismissal either at the trial court or on appeal. Keeley v. Stoops, 7th Dist. Belmont No. 13 BE 23, 2014-Ohio-4161, 2014 WL 4672480, ¶ 10. Personal jurisdiction describes a court's authority over particular litigants in a specific case, and "may be acquired either by service of process upon the defendant or the voluntary appearance and submission of the defendant to the jurisdiction of the court." Snyder Computer Sys., Inc. v. Stives, 175 Ohio App.3d 653, 2008-Ohio-1192, 888 N.E.2d 1117, ¶ 14 (7th Dist.), citing Maryhew v. Yova, 11 Ohio St.3d 154, 156, 464 N.E.2d 538 (1984). Unlike subject-matter jurisdiction, personal jurisdiction and venue can be waived. Keeley at ¶ 11. Moreover, jurisdiction and venue are distinct legal concepts. In re Z.R., 144 Ohio St. 3d 380, 2015-Ohio-3306, 44 N.E.3d 239, ¶ 16 ; In re A.G., 139 Ohio St.3d 572, 2014-Ohio-2597, 13 N.E.3d 1146, ¶ 53, citing Morrison v. Steiner, 32 Ohio St.2d 86, 290 N.E.2d 841 (1972), paragraph one of the syllabus. Venue is a "procedural matter," and it refers not to the power to hear a case but to the geographic location where a given case should be heard. Morrison at 87–88, 290 N.E.2d 841.

{¶ 9} In this case, custody of B.M. has been the subject of actions filed in Shelby County Probate Court, Shelby County Juvenile Court, and Hocking County Juvenile Court. On appeal, Appellants argue the Hocking County Juvenile Court does not possess subject-matter jurisdiction pursuant to R.C. 2151.23(A)(2) or R.C. 2151.06, read together. Appellants point out the Hocking County Juvenile Court acquired jurisdiction in 2005 only by virtue of the child support case filed by the Hocking County Child Support Enforcement Agency. However, when the Father filed his ex parte motion for temporary custody on January 14, 2014, none of the parties resided in Hocking County. Appellants contend the Hocking County Juvenile Court has no jurisdiction in these proceedings due to the fact of the Father's residence in Franklin County, and also due to the fact B.M.'s mother is no longer a resident of Hocking County.

{¶ 10} "The juvenile court possesses only the jurisdiction that the General Assembly has expressly conferred upon it." In re T.J.B. , 1st Dist. Hamilton No. C-130725, 2014-Ohio-2028, 2014 WL 1999332, at ¶ 8. See In re Gibson, 61 Ohio St.3d 168, 172–173, 573 N.E.2d 1074 (1991), citing Ohio Constitution, Article IV, Section 4 (B). The subject-matter jurisdiction of the juvenile court is created and defined in R.C. 2151.23. See Id. ; see also Rowell v. Smith , 133 Ohio St.3d 288, 2012-Ohio-4313, 978 N.E.2d 146, ¶ 13. The pertinent portion of R.C. 2151.23 states: "(A) The juvenile court has exclusive original jurisdiction under the Revised Code as follows: (2) * * * to determine the custody of any child not a ward of another court of this state." Therefore, the unambiguous statutory language demonstrates that a juvenile court has subject-matter jurisdiction over the parties' competing motions for custody of B.M.

{¶ 11} Under sections 2151.04 to 2151.54, inclusive, of the Revised Code, a child has the same residence or legal settlement as his parents, legal guardian of his person, or his custodian who stands in the relation of loco parentis. Appellants contend at the time they filed their complaint for custody, they stood "in loco parentis" of B.M. The Ohio Supreme Court explained the term "in loco parentis" as

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meaning "charged, factitiously, with a parent's rights, duties, and responsibilities." In re T.H. , 5th Dist. Muskingum No. CT2016-0008, 2016-Ohio-7310, 2016 WL 5940833, ¶ 30, quoting State v. Noggle, 67 Ohio St.3d 31, 33, 615 N.E.2d 1040 (1993) (superseded by statute as stated in State v. Mole, 149 Ohio St.3d 215, 2016-Ohio-5124, 74 N.E.3d 368, citing Black's Law Dictionary (6th Ed. 1990) 787. A person in loco parentis has assumed the same duties as a guardian or custodian, only not through a legal proceeding. Id.⁴

{¶ 12} Our review of the law indicates that, faced with conflicts between a probate court and a domestic or juvenile court's exercise of jurisdiction, Ohio courts have held that the first court to properly exercise jurisdiction over the custody of a minor retains exclusive jurisdiction. In re N.P. ,...