State ex rel. Aycock v. Mowrey

• Decision Date: 27 September 1989
• Docket Number: No. 89-534,89-534
• Citation: 544 N.E.2d 657,45 Ohio St.3d 347
• Parties: , 58 USLW 2288 The STATE, ex rel. AYCOCK v. MOWREY, Judge.
• Court: Ohio Supreme Court

Page 347

45 Ohio St.3d 347

544 N.E.2d 657, 58 USLW 2288

The STATE, ex rel. AYCOCK v. MOWREY, Judge.

No. 89-534.

Supreme Court of Ohio.

Submitted June 28, 1989.

Decided Sept. 27, 1989.

Relator, Donna W. Robison Aycock ("Aycock"), was formerly married to Greg F. Robison. Aycock and Robison were divorced in 1984 by a decree of the Family Court of Anderson County, South Carolina, and Aycock was granted custody of their son, Gregory Forest Robison, Jr. ("Greg Jr."), pursuant to an incorporated separation agreement. Among other things, the agreement provided that Robison, who lives in Chillicothe, Ohio, would have visitation with Greg Jr. during one week each Christmas.

Greg Jr. was scheduled to stay with Robison from December 23, 1988 until January 2, 1989. He had visited his father before, and apparently used a round trip flight ticket that Robison had given him for this occasion. Greg Jr. arrived in Chillicothe on December 23. On December 28, however, Aycock arrived in Chillicothe and telephoned Robison to ask that Greg Jr. be returned to her earlier than planned. Aycock, who had just remarried and was on her way to relocate or had already moved to Calgary in Alberta, Canada, wanted Greg Jr. back so that she could enroll him in a school there by January 4, 1989.

Robison refused to return Greg Jr. Instead, he filed a complaint in the Court of Common Pleas of Ross County seeking to modify the South Carolina custody order. The complaint was based upon an election affidavit in which thirteen-year-old Greg Jr. indicated that he did not want to live in Canada with a stepfather he "barely" knew, and that he would rather remain with his father and paternal grandparents in Chillicothe. The affidavit also indicated that Greg Jr. had been living with his maternal grandparents in Anderson County, South Carolina, for the last four and one-half years. Greg Jr.'s affidavit conflicts with one executed by Aycock, which states that the boy "lived with [her]," although he spent "a lot of time with his grandparents."

When Robison refused to return Greg Jr., Aycock petitioned the South Carolina family court for an order requiring Robison to appear and show cause why he should not be held in contempt for failing to abide by the Robison divorce decree from that court. In response, the family court issued a show cause order that was served on Robison on January 5, 1989. Also on January 5, respondent, Judge Val B. Mowrey of the Ross County Court of Common Pleas, issued an ex parte order granting temporary custody of Greg Jr. to Robison.

Judge H. Dean Hall of the South Carolina family court held a hearing on Aycock's contempt motion, but Robison did not appear. In an order dated January 13, 1989, Judge Hall found that he had jurisdiction over all matters connected with the divorce decree issued in 1984, the contempt action included. In the same order, he declared Robison in contempt because, among other things, Robison had failed to return Greg Jr. and had failed to keep up with the decree's child support provisions and insurance requirements. Significantly, Judge Hall's order noted that Aycock had recently moved to Canada and that she was a resident there.

Meanwhile, Aycock had moved to dismiss Robison's action in Ross County. However, after a hearing on January 25, 1989, Judge Mowrey overruled her motion. In his February 8, 1989 order, Judge Mowrey indicated that he would hear Robison's change-of-custody suit because it was in Greg Jr.'s best interest, Judge Hall's contempt order notwithstanding.

Aycock then filed a complaint in this court seeking a writ of prohibition preventing Judge Mowrey from proceeding in Robison's change-of-custody suit. Her complaint also sought a writ of mandamus ordering Judge Mowrey to transfer that matter to the South Carolina family court, and further ordering the return of her son. Although the complaint did not ask for any alternative writs to be issued, Aycock did move for expedited treatment and for a stay of the proceedings below. This court stayed the action before Judge Mowrey and, sua sponte, granted alternative writs of prohibition and mandamus on May 3, 1989.

Judge Mowrey answered the complaint and filed a motion for summary judgment to which certain evidentiary items were attached. Aycock opposed the motion, and her response also includes evidentiary materials, among them being a second affidavit of Greg Jr., which indicates that he would now like to reside with his mother. Thereafter, the parties submitted the rest of their evidence.

Frederick Meister, Columbus, for relator.

Richard G. Ward, Pros. Atty., for respondent.

PER CURIAM.

Civ.R. 56 provides the standard for summary judgment motions. It states, in part:

"(C) * * * Summary judgment shall be rendered forthwith if the pleading, depositions, answers to interrogatories, written admissions, affidavits, transcripts of evidence in the pending case, and written stipulations of fact, if any, timely filed in the action, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. * * * A summary judgment shall not be granted unless it appears from such evidence or stipulation and only therefrom, that reasonable minds can come to but one conclusion and that conclusion is adverse to the party against whom the motion for summary judgment is made, such party being entitled to have the evidence construed most strongly in his favor. * * * "

For a writ of prohibition to issue, a relator must establish (1) that the court or officer against whom the writ is sought is about to exercise judicial or quasi-judicial power, (2) that the exercise of that power is unauthorized by law, and (3) that denying the writ will result in injury for which no other adequate remedy exists in the ordinary course of law. State, ex rel. Tollis, v. Court of Appeals (1988), 40 Ohio St.3d 145, 147, 532 N.E.2d 727, 729. For a writ of mandamus to issue, a relator must show (1) that he has a clear legal right to the relief prayed for, (2) that respondent is under a clear legal duty to perform the requested act, and (3) that there is the absence of a plain and adequate remedy in the ordinary course of law. State, ex rel. Berger, v. McMonagle (1983), 6 Ohio St.3d 28, 6 OBR 50, 451 N.E.2d 225. Thus, for Judge Mowrey to be entitled to summary judgment, this court must find, after construing any material factual disputes in Aycock's favor, that she cannot establish any element of either of these standards.

For the following reasons, we find the assumption of jurisdiction in the Robison custody suit to be within Judge Mowrey's discretion and, therefore, that he is not completely without jurisdiction to hear it. Moreover, because Judge Mowrey has discretion to hear the case, he has no clear duty to transfer it to the South Carolina court or to return Greg Jr. to his mother. As these findings require the conclusion that neither the prohibition standard nor the mandamus standard can be satisfied, we are compelled to grant the motion for summary judgment.

With respect to prohibition, the issue before us is whether Judge Mowrey has any authority pursuant to Ohio's adoption of the Uniform Child Custody Jurisdiction Act ("UCCJA"), R.C. 3109.21 to 3109.37, to consider the action to modify the custody order of the South Carolina court. Because it is relevant to several of these statutes, we note that South Carolina has enacted reciprocal provisions of the Act, Section 20-7-782 et seq., Code of Laws of South Carolina (1976).

The purpose of the UCCJA is to avoid jurisdictional conflict and to promote cooperation between state courts in custody matters so that a decree is rendered in the state that can best decide the best interest of the child. Annotation, Validity, Construction, and Application of Uniform Child Custody Jurisdiction Act (1979), 96 A.L.R.3d 968, 973. In effect, the Act generally limits interstate interference in custody proceedings. There are exceptions to this rule, however, and some of them are found in R.C. 3109.22(A)(1) through (4).

R.C. 3109.22(A)(1) permits an Ohio court to assume jurisdiction to determine custody when Ohio is the child's home state (basically, the state where the child lived with both parents, one parent, or a person acting as a parent for the six-month period immediately before the time involved, R.C. 3109.21[E] ) at the commencement of the proceeding or Ohio was the child's home state within six months prior thereto before someone removed or retained him. R.C. 3109.22(A)(2) permits an Ohio court to assume jurisdiction to determine custody when it is in the best interest of the child because the child and at least one contestant (a person claiming custody or visitation rights with respect to the child, R.C. 3109.21[A] ) have a significant connection with Ohio, and there is available in Ohio "substantial evidence concerning the child's present or future care, protection, training, and personal relationships." R.C. 3109.22(A)(3) permits an Ohio court to assume jurisdiction to determine custody when the child has been abandoned in this state or mistreated. Finally, R.C. 3109.22(A)(4) permits an Ohio court to assume jurisdiction to determine custody when:

"It appears that no other state would have jurisdiction under prerequisites substantially in accordance with division (A)(1), (2), or (3) of this section, or a court in another state has declined to exercise jurisdiction on the ground that this state is the more appropriate forum to determine the custody of the child, and it is in the best interest of the child that this court assume jurisdiction."

R.C. 3109.22(A)(1) through (4) apply to an Ohio court's assumption of jurisdiction to decide custody in the first instance. However, they also apply when an Ohio court is assuming jurisdiction to change or modify another state's custody decree by operation of R.C. 3109.31(A), which provides:

"If a court of another...