State ex rel. Shelton Reeves v. the Hon. Kathleen O'malley .,
| Decision Date | 01 June 2001 |
| Docket Number | 78900,01-LW-2373 |
| Parties | STATE OF OHIO, EX REL., SHELTON REEVES, Relator v. THE HON. KATHLEEN O'MALLEY, ET AL., Respondents |
| Court | United States Court of Appeals (Ohio) |
WRIT OF MANDAMUS and PROHIBITION
For Relator: ALAN S. LEVINE, ESQ., LEVINE & LEVINE, 1200 Illuminating Building, 55 Public Square, Cleveland, Ohio 44113-1937
PAUL W FLOWERS CO., L.P.A., 1200 Illuminating Building, 55 Public Square, Cleveland, Ohio 44113-1937
For Respondents: WILLIAM D. MASON, ESQ., Cuyahoga County Prosecutor, CHARLES E. HANNAN, ESQ., Assistant County Prosecutor, The Justice Center, 1200 Ontario Street, Cleveland, Ohio 44113
For Respondent/Third-Party Defendant Deryvonnie Tyson: GEORGE L. FORBES, ESQ., DENNIS N. LoCONTI, ESQ., FORBES, FIELDS & ASSOC. CO., 700 Rockefeller Building, 614 W. Superior Avenue, Cleveland, Ohio 44113-1318
KARPINSKI A.J.:
On November 30, 2001, the relator, Shelton Reeves, Sr., commenced this mandamus and prohibition action against the respondents, Judge Kathleen O'Malley, the Cuyahoga County Court of Common Pleas - Domestic Relations Division, and Deryvonne Tyson, to compel the judicial respondents to dismiss respondent Tyson (along with her efforts to seek custody of Shelton Reeves, Jr.) in the underlying domestic relations case, Reeves v. Reeves, Cuyahoga County Common Pleas Court, Domestic Relations Division Case No. D93-223387 and to prohibit the respondents from interfering with relator's parental rights. Mr. Reeves maintains that because the recent United States Supreme Court decision, Troxel v. Granville (2000), 530 U.S. 57, 120 S.Ct. 2054, 147 L.Ed.2d 49, recognizes the fundamental liberty interest of natural parents in the care, custody, and management of their child, the respondents have no authority to even consider granting custody to anyone else, including a grandparent.
On December 13, 2000, the judicial respondents moved to dismiss, and on December 21, 2000, Ms. Tyson also moved to dismiss the complaint. On January 2, 2001, Mr. Reeves filed his brief in opposition to the respondents' motions to dismiss and filed his own motion for summary judgment. On January 29, 2001, the judicial respondents filed their brief in opposition to the motion for summary judgment, and on February 27, 2001, Ms. Tyson filed her brief in opposition. On March 13, 2001, Mr. Reeves filed a notice of supplemental authority. The court has reviewed the submitted materials, and there are no genuine issues of material fact. Accordingly, the matter is now ripe for resolution. For the following reasons, this court grants the respondents' motions to dismiss, denies Mr. Reeves' motion for summary judgment, and dismisses the complaint for writs of mandamus and prohibition.
FACTUAL AND PROCEDURAL BACKGROUND
Linda Reeves and Shelton Reeves were married, when Linda gave birth to Shelton Reeves, Jr. on March 30, 1987. During the vast majority of his life, Shelton, Jr., has lived with his mother and maternal grandmother, Deryvonne Tyson, at his grandmother's residence on E. 127th Street. The parties do not dispute that Shelton, Jr. has lived with his father only for short periods of time. Nor do they dispute that Mr. Reeves has never been adjudicated a neglectful or abusive parent. In early 1993, Linda Reeves filed for divorce in the underlying case. When the court granted the divorce, it awarded custody of Shelton, Jr. to her.
Linda Reeves died on April 13, 1999. A month later Mr. Reeves moved to modify the existing custody order and on July 27, 1999, filed a suggestion of Linda Reeves' death. On August 26, 1999, Ms. Tyson moved to intervene into the underlying case to seek custody of Shelton, Jr. On September 18, 1999, the judicial respondents granted her motion to intervene. Since Mrs. Reeves' death Shelton, Jr., has continued to reside with his grandmother, and Mr. Reeves has had visitation.[1] After Troxel's release on June 5, 2000, Mr. Reeves moved the judicial respondents to reconsider the order
DISCUSSION OF LAW
Prohibition Claim
The principles governing prohibition are well established. Its requisites are (1) the respondent against whom it is sought is about to exercise judicial power, (2) the exercise of such power is unauthorized by law, and (3) there is no adequate remedy at law. State ex rel. Largent v. Fisher (1989), 43 Ohio St.3d 160, 540 N.E.2d 239. Prohibition will not lie unless it clearly appears that the court has no jurisdiction of the cause which it is attempting to adjudicate or the court is about to exceed its jurisdiction. State ex rel. Ellis v. McCabe (1941), 138 Ohio St. 417, 35 N.E.2d 571, paragraph three of the syllabus. The writ will not issue to prevent an erroneous judgment, or to serve the purpose of appeal, or to correct mistakes of the lower court in deciding questions within its jurisdiction. State ex rel. Sparto v. Juvenile Court of Darke County (1950), 153 Ohio St. 64, 65, 90 N.E.2d 598. Furthermore, it should be used with great caution and not issue in a doubtful case. State ex rel. Merion v. Tuscarawas Cty. Court of Common Pleas (1940), 137 Ohio St. 273, 28 N.E.2d 273 and Reiss v. Columbus Municipal Court (App. 1956), 76 Ohio Law Abs. 141, 145 N.E.2d 447. Nevertheless, when a court is patently and unambiguously without jurisdiction to act whatsoever, the availability or adequacy of a remedy is immaterial to the issuance of a writ of prohibition. State ex rel. Tilford v. Crush (1988), 39 Ohio St.3d 174, 529 N.E.2d 1245 and State ex rel. Csank v. Jaffe (1995), 107 Ohio App.3d 387. However, absent such a patent and unambiguous lack of jurisdiction, a court having general jurisdiction of the subject matter of an action has authority to determine its own jurisdiction. A party challenging the court's jurisdiction has an adequate remedy at law via appeal from the court's holding that it has jurisdiction. State ex rel. Rootstown Local School District Board of Education v. Portage County Court of Common Pleas (1997), 78 Ohio St.3d 489, 678 N.E.2d 1365 and State ex rel. Bradford v. Trumbull County Court (1992), 64 Ohio St.3d 502, 597 N.E.2d 116. Moreover, the court has discretion in issuing the writ of prohibition. State ex rel. Gilligan v. Hoddinott (1973), 36 Ohio St.2d 127, 304 N.E.2d 382.
Ohio law currently provides that a domestic relations court in a divorce, legal separation or annulment proceeding, such as the underlying case, may award legal custody of a child to non-parents. R.C. 3109.06 provides in pertinent part:
In any case in which a court of common pleas, or other court having jurisdiction, has issued an order that allocates parental rights and responsibilities for the case of minor children ***, the jurisdiction of the court shall not abate upon the death of the person awarded custody but shall continue for all purposes during the minority of the children. The court, upon its own motion or the motion of either parent or of any interested person acting on behalf of the children, may proceed to make further disposition of the case in the best interest of the children ***. More specifically, R.C. 3109.04(D)(2) provides in pertinent part: If the court finds, with respect to any child under eighteen years of age, that it is in the best interest of the child for neither parent to be designated the residential parent and legal custodian of the child, it may commit the child to a relative of the child ***.
The Supreme Court of Ohio in Boyer v. Boyer (1976), 46 Ohio St.2d 83, 346 N.E.2d 286, paragraph one of the syllabus, cert. denied (1976), 429 U.S. 889, held [i]n determining who shall have the care, custody and control of a child under 18 years of age, even though the child's parents are not found to be unfit or unsuitable, the court may commit the child to a relative of the child where the court finds that custody to neither parent is in the best interest of the child. In Boyer the Supreme Court upheld the trial court's decision that an eight-year-old boy remain with his paternal grandparents, with whom he lived almost all of his life, instead of custody returning to the mother. The Supreme Court concluded: Appellant's basic premise, that the parents have a right to custody which transcends consideration of the child's best interest, is recognition that the child's right to suitable custodian and parental rights, when not in harmony, are competing interests, requiring that one give way to the other. 46 Ohio St.2d at 87. Similarly, this court in Wright v. Wright (Oct. 19, 1995), Cuyahoga App. No. 67884, unreported, followed Boyer in allowing a grandmother to retain custody of a child over the appeals of the mother. This court ruled that because of the statutory emphasis on protecting the best interests of the child, the trial court was not obligated to find that the parents were unfit before awarding custody to the grandmother.
Other provisions of Ohio law also permit courts to award custody of children to persons other than their parents. R.C 2151.23(A)(2) provides that the juvenile court has exclusive jurisdiction to determine the custody of any child not a ward of another court of this state. In interpreting this statute, the Supreme Court of Ohio in In re Perales (1977), 52 Ohio St.2d 89, 369 N.E.2d 1047, formulated the criteria for determining when custody should be given to a nonparent slightly differently than under R.C. 3109.04 and Boyer. In granting child custody to a nonparent under R.C. 2151.23(A)(2), the trial court must find parental unsuitability, such as abandonment or incapacity in caring for a child. Such unsuitability could include a finding that an award of custody to the parent would be detrimental to the child. The Supreme Court, relying on Meyer v. Nebraska (1923), 262 U.S. 390, recognized [t]he right of a parent to raise his or...
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