State ex rel. Thompson v. Spon

• Decision Date: 10 November 1998
• Docket Number: No. 98-505,98-505
• Citation: 83 Ohio St.3d 551,700 N.E.2d 1281
• Parties: The STATE ex rel. THOMPSON, Appellant, v. SPON, Judge, Appellee.
• Court: Ohio Supreme Court

Page 551

83 Ohio St.3d 551

700 N.E.2d 1281

The STATE ex rel. THOMPSON, Appellant, v. SPON, Judge, Appellee.

No. 98-505.

Supreme Court of Ohio.

Submitted Sept. 15, 1998.

Decided Nov. 10, 1998.

Richland County Legal Services, and Dennis C. Tenison, Cleveland, for appellant.

James J. Mayer, Jr., Richland County Prosecuting Attorney, Nancy H. Massie and Stephen M. Wildermuth, Assistant Prosecuting Attorneys, for appellee.

Ohio State Legal Services Association, and Michael R. Smalz, Columbus; Southeastern Ohio Legal Services, and Rebecca Baird, Austin, TX, urging reversal for amici curiae, Action Ohio, Ohio Domestic Violence Network, and Ohio NOW Education and Legal Fund.

PER CURIAM.

Appellant and the various amici curiae assert that the court of appeals erred in sua sponte dismissing the mandamus complaint. Sua sponte dismissal of a complaint is appropriate if the complaint is frivolous or the claimant obviously cannot prevail on the facts alleged in the complaint. State ex rel. Luna v. Huffman (1996), 74 Ohio St.3d 486, 487, 659 N.E.2d 1279, 1280; State ex rel. Fogle v. Steiner (1995), 74 Ohio St.3d 158, 161, 656 N.E.2d 1288, 1292. Consequently, we must determine whether appellant's mandamus claim is frivolous or obviously without merit. Luna and Fogle, supra.

Appellant and the amici curiae contend that R.C. 3109.04(C) required the magistrate to issue findings of fact and conclusions of law.

The paramount consideration in construing a statute is legislative intent. State ex rel. Asberry v. Payne (1998), 82 Ohio St.3d 44, 47, 693 N.E.2d 794, 797. In determining legislative intent, we must first review the language of the statute in question. State ex rel. Sinay v. Sodders (1997), 80 Ohio St.3d 224, 227, 685 N.E.2d 754, 758.

R.C. 3109.04(C) provides in pertinent part:

"When the court allocates parental rights and responsibilities for the care of children or determines whether to grant shared parenting in any proceeding, it shall consider whether either parent has been convicted of or pleaded guilty to a violation of section 2919.25 of the Revised Code involving a victim who at the time of the commission of the offense was a member of the family or household that is the subject of the proceeding, has been convicted of or pleaded guilty to any other offense involving a victim who at the time of the commission of the offense was a member of the family or household that is the subject of the proceeding and caused physical harm to the victim in the commission of the offense, or has been determined to be the perpetrator of the abusive act that is the basis of an adjudication that a child is an abused child. If the court determines that either parent has been convicted of or pleaded guilty to a violation of section 2919.25 of the Revised Code involving a victim who at the time of the commission of the offense was a member of the family or household that is the subject of the proceeding, has been convicted of or pleaded guilty to any other offense involving a victim who at the time of the commission of the offense was a member of the family or household that is the subject of the proceeding and caused physical harm to the victim in the commission of the offense, or has been determined to be the perpetrator of the abusive act that is the basis of an adjudication that a child is an abused child, it may designate that parent as the residential parent and may issue a shared parenting decree or order only if it determines that it is in the best interest of the child to name that parent the residential parent or to issue a shared parenting decree or order and it makes specific written findings of fact to support its determination." (Emphasis added.)

Appellant and the amici curiae rely on the isolated phrase "[w]hen the court allocates parental rights and responsibilities for the care of children * * * in any proceeding" contained in R.C. 3109.04(C). They argue that "any proceeding" includes proceedings concerning the propriety of a temporary order allocating parental rights and responsibilities for the care of children. In turn, this would impose on the magistrate the duty under the last sentence of R.C. 3109.04(C) to issue findings of fact and conclusions of law to support the award of temporary custody of the children to Christopher, who had previously been convicted of an offense involving a family-member victim that resulted in physical harm to that victim. For the following reasons, however, the court of appeals properly dismissed appellant's complaint for a writ of mandamus.

First, we must review all of R.C. 3109.04 rather than an isolated phrase to determine the legislative intent. "In reviewing a statute, a court cannot pick out one sentence and disassociate it from the context, but must look to the four corners of the enactment to determine the intent of the enacting body." State v. Wilson (1997), 77 Ohio St.3d 334, 336, 673 N.E.2d 1347, 1350; MacDonald v. Bernard (1982), 1 Ohio St.3d 85, 89, 1 OBR 122, 125, 438 N.E.2d 410, 413.

After reviewing the entirety of R.C. 3109.04, it is evident that the R.C. 3109.04(C) requirement of findings of fact and conclusions of law applies to final decrees allocating parental rights and responsibilities or subsequent modification of final decrees rather than temporary orders allocating parental rights and responsibilities. For example, R.C. 3109.04(A) refers to allocating parental rights and responsibilities following testimony and consideration of a mediation report, R.C. 3109.04(E)(1)(a) addresses modification of a prior "decree," and R.C. 3109.04(H) provides for an appeal from decisions granting or modifying a decree allocating parental rights and responsibilities for the care of children, i.e., a final appealable order, not an interlocutory, temporary order. Even R.C. 3109.04(C) provides for an investigation and examinations "[p]rior to trial," indicating some final allocation of parental rights and responsibilities.

Second, this conclusion is consistent with the applicable Rules of Civil Procedure. See Civ.R. 53(C)(3)(a), 53(E), and 75(M). Magistrates may issue a temporary order regarding allocation of parental rights and responsibilities for the care of children during the pendency of a divorce action. Civ.R. 75(M). Unless otherwise specified in the reference order, the magistrate may enter orders without judicial approval in pretrial hearings under Civ.R. 75(M). Civ.R. 53(C)(3)(a). When the magistrate enters these temporary orders, she or he may, but is not required to, issue findings of fact and conclusions of law. Civ.R. 53(E).

Third, this result comports with our duty to give R.C. 3109.04(C) as well as the applicable Rules of Civil Procedure a constitutional construction. Courts must liberally construe statutes in order to avoid constitutional infirmities. State ex rel. McGinty v. Cleveland City School Dist. Bd. of Edn. (1998), 81 Ohio St.3d 283, 288, 690 N.E.2d 1273, 1278. The Ohio Rules of Civil Procedure, promulgated pursuant to Section 5(B), Article IV of the Ohio Constitution, control over conflicting statutes on procedural matters while statutes supersede conflicting rules on substantive matters. See, generally, Fraiberg v. Cuyahoga Cty. Court of Common Pleas, Domestic Relations Div. (1996), 76 Ohio St.3d 374, 376, 667 N.E.2d 1189, 1192; State v. Greer (1988), 39 Ohio St.3d 236, 245, 530 N.E.2d 382, 395. Appellant and amici curiae's interpretation of R.C. 3109.04(C) would create a potential conflict with Civ.R. 53(C)(3)(a), 53(E), and 75(M). As we held in State v. Keenan (1998), 81 Ohio St.3d 133, 150, 689 N.E.2d 929, 946, we are "bound to give a statute a constitutional construction, if one is reasonably available, in preference to one that raises serious questions about the statute's constitutionality." The conclusion that R.C. 3109.04(C) does not apply to temporary orders allocating parental rights and responsibilities affords a constitutional construction that harmonizes both the statute and the pertinent rules.

Fourth, analogous precedent supports this result. Courts have consistently held, for example, that R.C. 3109.04(B) is inapplicable to temporary awards of custody made during the pendency of a divorce case. In Thompson v. Thompson (1987), 31 Ohio App.3d 254, 257-258, 31 OBR 538, 542, 511 N.E.2d 412, 415, quoting Schoffner v. Schoffner (1984), 19 Ohio App.3d 208, 19 OBR 352, 483 N.E.2d 1190, syllabus, the court held:

" 'An interlocutory order respecting custody of children made pursuant to Civ.R. 75(M) is by its very nature temporary and is subject to modification upon the entering of the final divorce decree. Therefore, the trial court need not make a finding as to the requirements of R.C. 3109.04(B) prior to entering a final custody decree, as the provisions of R.C. 3109.04(B) are only applicable to final decrees awarding custody in the action or a subsequent modification of such final decrees.' " See, also, Spence v. Spence (1981), 2 Ohio App.3d 280, 2 OBR 310, 441 N.E.2d 822.

Finally, mandamus may not be employed as a substitute for an interlocutory appeal. State ex rel. Toledo Metro Fed. Credit Union v. Ohio Civ. Rights Comm. (1997), 78 Ohio St.3d 529, 532, 678 N.E.2d 1396, 1398. The magistrate's pretrial order is, as appellant concedes, an interlocutory order. Brooks v. Brooks (1996), 117 Ohio App.3d 19, 22, 689 N.E.2d 987, 989; Lilly v. Lilly (1985), 26 Ohio App.3d 192, 194, 26 OBR 412, 414, 499 N.E.2d 21, 24. Appellant's mandamus claim is an improper attempt to garner review of an interlocutory order.

Admittedly, we have previously recognized the appropriateness of mandamus to compel a trial court to issue findings of fact and conclusions of law when required by statute. See State ex rel. Konoff v. Moon (1997), 79 Ohio St.3d 211, 212, 680 N.E.2d 989, 990. But here, R.C. 3109.04(C) does not require findings of fact and conclusions of law regarding a magistrate's temporary allocation of parental rights during a pending...