Porter, In re

• Decision Date: 19 August 1996
• Docket Number: No. 9-95-43,9-95-43
• Citation: 681 N.E.2d 954,113 Ohio App.3d 580
• Parties: In re PORTER.
• Court: Ohio Court of Appeals

Page 580

113 Ohio App.3d 580

681 N.E.2d 954

In re PORTER.

No. 9-95-43.

Court of Appeals of Ohio,

Third District, Marion County.

Decided Aug. 19, 1996.

Piacentino & Piacentino and C. Michael Piacentino, Marion, for appellant, Sarah Porter.

Michael Grimes, Marion, for appellee, Connie Sue Lowe-Workman.

Maria L. Hypes, Marion, guardian ad litem, for Amy Sue Porter.

EVANS, Judge.

This appeal is brought by Sarah Porter ("appellant"), the paternal grandmother of Amy Sue Porter, a minor, from a judgment of the Court of Common Pleas of Marion County, Juvenile Division, denying appellant's complaint for permanent custody.

The facts of this case are as follows. On March 7, 1982, Connie Workman, ("appellee") gave birth to Amy Sue Porter, out of wedlock. Amy's father is Thomas Porter. On August 3, 1987, appellee and Thomas Porter contractually agreed to temporarily place custody of their daughter, Amy, with Sarah and Keith Porter, the child's paternal grandparents, during a period of appellee's absence from the state of Ohio. The Porters then approached the Juvenile Division of the Court of Common Pleas of Marion County with a complaint for temporary custody, attaching the signed agreement of the parties. Without a hearing, the court filed an entry granting the Porters temporary custody of Amy on September 16, 1987.

At that time, Amy was five years old and had spent much of her infancy in the care of her paternal grandparents. For the next seven years, she was cared for by appellants, receiving occasional visits from her mother. (The record indicates that Connie Workman had a drug and alcohol problem that to some degree precipitated and extended the temporary custody arrangement.) Throughout this time, Amy had regular contact and visitation with her father. Both parents contributed to Amy's support while she was in the custody of the Porters. In 1994, the Porters moved to Arizona and took Amy with them. Thomas Porter also lived in Arizona at the time and continued regular visitation with Amy.

In September 1994, appellee filed a motion requesting the court to find appellant in contempt for failing to comply with a prior court order relating to visitation and a motion requesting the court to terminate the temporary custody order granting appellant custody of Amy. On October 27, 1994, the court dismissed the contempt charge and vacated the temporary custody order, returning Amy to the custody of her mother without a hearing and over the objections of appellant. In its October 27, 1994 judgment entry, the trial court joined appellant as a party, granting her standing to file additional motions or actions relating to the custody of Amy.

On January 4, 1995, appellant filed a complaint for permanent custody. A hearing was held on August 14, 1995. On August 16, 1995, the trial court issued its decision from the bench, finding appellee a suitable parent with a paramount right to the custody of her minor child. This decision was journalized on August 25, 1995 and appellant filed a timely appeal.

Appellant now asserts four assignments of error for review. For the sake of clarity in this opinion, we will address the assignments of error out of sequence.

Assignment of Error No. Two

"The trial court committed error prejudicial to the appellant, Sarah Porter, by vacating its previous order. The trial court did not have jurisdiction to change custody because the pleading requirements of Section 3107.29 [sic, 3109.27] of the Ohio Revised Code were not met."

Appellant's second assignment of error alleges that appellee's failure to file an R.C. 3109.27 affidavit at the time she motioned the court for termination of the temporary custody order resulted in a jurisdictional flaw. Appellant argues that because the affidavit was not filed in September 1994, the court had no jurisdiction to vacate the previous order granting appellant temporary custody.

According to R.C. 3109.27:

"(A) Every party in a custody proceeding, in his first pleading or in an affidavit attached to that pleading, shall give information under oath as to the child's present address, the places where the child has lived within the last five years, and the names and present addresses of the persons with whom the child has lived during that period. In this pleading or affidavit every party shall also include all of the following information:

"(1) Whether the party has participated as a party, witness or in any other capacity in any other litigation concerning the custody of the same child in this or any other state;

"(2) Whether the party has information of any custody proceeding concerning the child pending in a court of this or any other state;

"(3) Whether the party knows of any person not a party to the proceedings who has physical custody of the child or claims to have custody or visitation rights with respect to the child."

The term "custody proceeding" is defined in R.C. 3109.21 as a proceeding "in which a custody determination is one of several issues, such as an action for divorce or separation, and includes child neglect and dependency proceedings."

Appellant cites the Supreme Court of Ohio's holding in Pasqualone v. Pasqualone (1980), 63 Ohio St.2d 96, 17 O.O.3d 58, 406 N.E.2d 1121, which made compliance with R.C. 3109.27 a jurisdictional requirement. The plaintiff in Pasqualone brought an action in Ohio for custody of his daughter without informing the court about a pending custody case in Illinois of which he was aware. The court in Pasqualone held that a parent bringing an action for custody must inform the court at the onset of the proceedings of any knowledge of custody proceedings pending in other jurisdictions. Id., paragraph one of the syllabus.

The purpose of the affidavit is to avoid jurisdictional disputes and conflicts with other courts and to facilitate the speedy resolution of custody matters so that children do not become the victims of jurisdictional "tugs of war." In re Palmer (1984), 12 Ohio St.3d 194, 196, 12 OBR 259, 261-262, 465 N.E.2d 1312, 1314-1315. By the submission of an affidavit, the court is made aware at the onset of other proceedings affecting its jurisdiction.

After examining appellant's second assignment of error, we are not persuaded by her argument that appellee's failure to file an affidavit with her 1994 motion results in a failure of subject matter jurisdiction in this case. According to the statute, a jurisdictional affidavit should be filed in the parties' first pleadings. However, we note that the first pleading in this case was not appellee's motion to vacate the temporary custody order. In fact, by the time this motion was filed, the case had been continuing for approximately seven years. The juvenile court had been exercising continuing jurisdiction, issuing periodic judgment entries as needed to rectify child support and visitation problems between the parties. Rather, the first pleading submitted to the juvenile court was the complaint filed by appellant requesting temporary custody of Amy in accordance with the private agreement of the parties formed in August 1987.

The requirement that an affidavit be filed in a party's first pleading has been relaxed to allow amended pleading or subsequent filings to include the affidavit information. See Squires v. Squires (1983), 12 Ohio App.3d 138, 143, 12 OBR 460, 465-466, 468 N.E.2d 73, 78-79; Cook v. Marion Cty. Court of Common Pleas (1986), 28 Ohio App.3d 82, 28 OBR 124, 502 N.E.2d 245; Mercer v. Channell (May 14, 1986), Jackson App. No. 509, unreported, 1986 WL 6051. In the instant case, it was not until January 1995, after appellant had moved to Arizona and filed her complaint for permanent custody, that an R.C. 3109.27 affidavit was filed with the court. We note that appellee did not object to the averments made in appellant's affidavit. Furthermore, we find that much of the paperwork compiling the record in this case demonstrates the parties' acknowledgement of facts sufficient to invoke the court's jurisdiction.

In Adkins v. Adkins (May 15, 1991), Pickaway App. No. 89 CA 26, unreported, 1991 WL 87301, the Fourth District Court of Appeals upheld the jurisdiction of the trial court in the absence of an affidavit. ¹ Judge Stephenson issued a detailed and insightful concurring opinion which reviewed the history, policy and application of R.C. 3109.27. ² In that concurrence, Judge Stephenson noted that where the information required by statute is eventually supplied to the court and no other jurisdiction appears to be involved in the custody dispute, mechanistic compliance with R.C. 3109.27 is not necessary. See Mercer v. Channell, supra. Judge Stephenson wrote:

" * * * The Ohio Supreme Court has, itself, stated that when applying the provisions of the Uniform Act, the courts should be guided by, and take note of, the express purposes of said act which, among other things, is 'to avoid jurisdictional competition and conflict with the courts of other states and assure that the state with the optimum access to the relevant facts makes the custody determination, thus protecting the best interests of the child.' [Citations omitted; emphasis sic.] There being no other states involved in the case sub judice, it is difficult to imagine what possible purpose could be served by a wooden mechanistic application of these statutory provisions.

"Moreover, we are admonished that the ultimate issue in any custody proceeding is the 'best interest of the child' and this concern is paramount to any application of the strictures of R.C. 3109.27." Palmer [12 Ohio St.3d at 197, 12 OBR at 262, 465 N.E.2d at 1315]."

Similarly, in cases with facts and circumstances distinguishable from Pasqualone, such as where the parties are in the same state and do not challenge the court's jurisdiction, some courts, in order to best uphold the policy considerations behind R.C. 3109.27, have deviated from Pasqualone' § strict affidavit requirement. In In re Hites (Apr. 22,...