Rowell v. Smith

• Decision Date: 26 September 2012
• Docket Number: No. 2011–1053.,2011–1053.
• Citation: 133 Ohio St.3d 288,978 N.E.2d 146
• Parties: ROWELL, Appellant, v. SMITH, Appellee.
• Court: Ohio Supreme Court

133 Ohio St.3d 288

978 N.E.2d 146

ROWELL, Appellant,

v.SMITH, Appellee.

No. 2011–1053.

Supreme Court of Ohio.

Submitted May 8, 2012.

Decided Sept. 26, 2012.

Syllabus of the Court

In exercising its jurisdiction under R.C. 2151.23(A)(2), a juvenile court may issue temporary visitation orders that are in the best interest of the minor child during the litigation. Juv.R. 13(B)(1).

Massucci & Kline, L.L.C., and LeeAnn Massucci; and Carol Ann Fey, Columbus, for appellant.

Gary J. Gottfried Co., L.P.A., Gary J. Gottfried, and Eric M. Brown, Westerville, for appellee.

Einstein & Poling, L.L.C., and Dianne Einstein, Dublin, urging affirmance for amici curiae, Marlin and Jennifer Herrick.

LUNDBERG STRATTON, J.

[Ohio St.3d 288]{¶ 1} We must determine whether a juvenile court may issue temporary visitation orders in a pending case for custody under R.C. 2151.23(A)(2) between a parent and nonparent. For the reasons that follow, we hold that in exercising its jurisdiction under R.C. 2151.23(A)(2), a juvenile court may issue temporary [Ohio St.3d 289]visitation orders that are in the best interest of the minor child during the litigation.

{¶ 2} Consequently, we reverse the judgment of the court of appeals and reinstate the trial court's orders of June 30, 2010, and July 27, 2010.

Facts and Procedural History

{¶ 3} On September 9, 2003, appellee, Julie Ann Smith, gave birth to a daughter as the result of artificial insemination with sperm from an unknown donor. At the time, Smith was involved in a relationship with appellant, Julie Rose Rowell. Several years later, when Smith and Rowell's relationship ended, Rowell filed a petition in juvenile court pursuant to R.C. 2151.23(A)(2) seeking an order for shared custody of the minor child and simultaneously requesting a temporary order granting her companionship time with the child.

{¶ 4} A magistrate issued a temporary order granting Rowell and Smith shared custody of the child. Smith moved to set aside the order. On January 15, 2009, the juvenile court granted Smith's motion to set aside the magistrate's temporary order, but issued another temporary order that again granted Rowell and Smith shared custody. On January 26, 2009, the court modified its previous order per Civ.R. 60(A) and issued another temporary order, this time designating Smith as the child's legal custodian and residential parent and granting Rowell visitation rights.

{¶ 5} Soon thereafter, Rowell filed a motion for contempt for Smith's failure to comply with the court's orders. Smith opposed Rowell's motion, arguing that the court had not had jurisdiction to award visitation rights to Rowell, so it also did not have the power to enforce the visitation order through contempt. On June 23, 2009, the trial court issued a decision and judgment entry finding Smith in contempt of its order of January 26, 2009. The court held that it had authority to issue temporary orders under Juv.R. 13(B)(1) and Loc.R. 5(D) of the Court of Common Pleas of Franklin County, Juvenile Division, allowing nonparent visitation and that Smith had violated the January 26, 2009 order and was in contempt. Smith filed a notice of appeal.

{¶ 6} The court of appeals reversed the finding of contempt, holding that the juvenile court had improperly used Civ.R. 60(A) to make a substantive change to the January 26, 2009 order on which the contempt finding was based. 186 Ohio App.3d 717, 2010-Ohio-260, 930 N.E.2d 360.

{¶ 7} On February 18, 2010, a magistrate again issued an order that designated Smith as the child's temporary custodian and granted Rowell temporary visitation. When Smith failed to comply with the February 18 order, Rowell filed another motion for an order finding Smith in contempt. On March 22, 2010, a magistrate found Smith guilty of contempt and sentenced her to three days in [Ohio St.3d 290]jail, suspending the sentence if within 30 days of the order, Smith purged herself of contempt by allowing visitation and paying Rowell $2,500 for attorney fees and costs associated with prosecuting the motion for contempt. Smith failed to comply with the order giving her the terms of the opportunity to purge the contempt, and on June 28, 2010, Rowell moved for enforcement of the March 22 order. Smith filed objections to the magistrate's March 22 decision.

{¶ 8} On June 30, 2010, the trial court overruled Smith's objections to the magistrate's decision and issued a decision and judgment entry of contempt. Smith appealed this decision to the Franklin County Court of Appeals in case No. 10AP–675.

{¶ 9} Initially, the court of appeals stayed the trial court's imposition of the three-day jail sentence pending appeal, but in doing so, it stated: “The trial court orders in regard to visitation with the minor child are not stayed by virtue of this entry. This court will revisit the matter of this stay in the event [Smith] continues to violate orders of court.” Smith continued to disobey the court's order, so the appellate court released its stay and directed Rowell to apply to the trial court for enforcement orders.

{¶ 10} On July 27, 2010, the court granted Rowell's motion to enforce the contempt order. Smith appealed this decision to the Franklin County Court of Appeals in case No. 10AP–708.

{¶ 11} The court of appeals consolidated the appeals and stayed the trial court's orders pending the outcome of the appeal. In a split decision, the court of appeals held that the juvenile court lacked authority to order visitation in an R.C. 2151.23(A)(2) custody case; thus, the court held, the underlying temporary order of February 18, 2010, was invalid and Smith could not be in contempt of an invalid order. The appellate court reversed the judgments and remanded the cause for further proceedings.

{¶ 12} The cause is before this court upon our acceptance of a discretionary appeal. 130 Ohio St.3d 1415, 2011-Ohio-5605, 956 N.E.2d 308.

Analysis

{¶ 13} A juvenile court may exercise jurisdiction only if expressly granted the authority to do so by statute. SeeOhio Constitution, Article IV, Section 4(B); R.C. 2301.03(A); In re Gibson, 61 Ohio St.3d 168, 172, 573 N.E.2d 1074 (1991). The term “jurisdiction” encompasses both subject-matter jurisdiction, i.e., the court's power to adjudicate the merits of a case, and the exercise of that jurisdiction. “ ‘Once a tribunal has jurisdiction over both the subject matter of an action and the parties to it, “ * * * the right to hear and determine is perfect; and the decision of every question thereafter arising is but the exercise of the jurisdiction thus conferred * * *.” ’ ” [Ohio St.3d 291]Pratts v. Hurley, 102 Ohio St.3d 81, 2004-Ohio-1980, 806 N.E.2d 992, ¶ 12, quoting State ex rel. Pizza v. Rayford, 62 Ohio St.3d 382, 384, 582 N.E.2d 992 (1992), quoting Sheldon's Lessee v. Newton, 3 Ohio St. 494, 499 (1854).

{¶ 14} In this case, Rowell filed her petition for shared custody under R.C. 2151.23(A)(2), which grants juvenile courts exclusive original jurisdiction “to determine the custody of any child not a ward of another court of this state.” This includes “custodial claims brought by the persons considered nonparents at law.” In re Bonfield, 97 Ohio St.3d 387, 2002-Ohio-6660, 780 N.E.2d 241, ¶ 43. Having acquired subject-matter jurisdiction, the juvenile court then issued temporary orders to permit visitation between Rowell and the minor child who is the subject of the complaint while the case was pending, citing as authority Juv.R. 13(B)(1) and Loc.R. 5(D) of the Court of Common Pleas of Franklin County, Juvenile Division.¹ Under Juv.R. 13(B)(1), a “judge or magistrate may issue temporary orders with respect to the relations and conduct of other persons toward a child who is the subject of the complaint as the child's interest and welfare may require.”

{¶ 15} On appeal to the court of appeals, Smith argued that a court must have statutory authority to act and that R.C. 2151.23(A)(2) confers jurisdiction to determine custody but does not authorize a court to grant visitation rights. Smith cited In re Gibson, 61 Ohio St.3d 168, 573 N.E.2d 1074, in support of this argument. Thus, according to Smith, the juvenile court lacked authority to issue the underlying order for visitation. The court of appeals agreed and reversed the order of contempt.

{¶ 16} In re Gibson involved a grandparent who filed a complaint seeking visitation rights with a grandchild who was in the custody of his parents. The grandparent alleged that R.C. 2151.23(A)(2), among other statutes, conferred jurisdiction upon the juvenile court to award visitation rights because custody includes visitation. But his complaint did not seek an order of custody under R.C. 2151.23(A)(2).

{¶ 17} The court in Gibson reasoned that custody and visitation, although related, are two distinct legal concepts. “In asking for visitation only, [the grandfather] was not asking the juvenile court to determine or award him ‘custody.’ ” Id. at 171, 573 N.E.2d 1074. Thus, we held that a complaint for custody filed under R.C. 2151.23(A)(2) does not confer jurisdiction on the juvenile court to determine “[t]he complaint of a grandparent seeking only visitation with a grandchild.” (Emphasis added.) Id. at syllabus. The court expressly reserved its opinion [Ohio St.3d 292]regarding a juvenile court's authority to order visitation when ruling on a complaint seeking a determination of custody—exactly the situation here. Id. at 172, fn. 3, 573 N.E.2d 1074. Thus, Gibson is inapposite.

{¶ 18} The dissenting judge in the court of appeals in this case found persuasive an opinion by the Eighth District Court of Appeals that affirmed a juvenile court's order granting temporary visitation rights under circumstances similar to the facts in this case. In the Eighth District case, Rita Goodman sought custody of and/or companionship rights with two children afterher long-time relationship with the children's biological mother ended. In re LaPiana, 8th Dist. Nos. 93691 and 93692,...