Wonderly's Guardianship, In re

Decision Date15 July 1981
Docket NumberNo. 80-1314,80-1314
Citation67 Ohio St.2d 178,423 N.E.2d 420
Parties, 21 O.O.3d 111 In re GUARDIANSHIP of WONDERLY et al., Minors.
CourtOhio Supreme Court

Syllabus by the Court

1. The Uniform Child Custody Jurisdiction Act, as adopted in Ohio, is applicable to and must be complied with in a guardianship termination proceeding. (R.C. 2111.06, 2111.07, 3109.21-3109.37 construed and applied.)

2. An Ohio court is not a convenient forum for a guardianship termination proceeding where the foreign contestants have been guardians of and have had custody of the children for over nine years and have integrated the children into their own family, notwithstanding the facts that (1) the same Ohio court originally appointed the foreign guardians and (2) the other contestants are Ohio residents. (R.C. 3109.22 and 3109.25 applied.)

This case centers around two minors, Scott L. Wonderly and Heidi M. Wonderly, the orphaned children of the late Gary Wonderly and the late Marcille E. Wonderly. Gary Wonderly died on September 12, 1969. Marcille Wonderly, then an unremarried widow, died on September 12, 1971. At the time of their mother's death, Heidi was one year old and Scott was two years old. The children are now approximately nine and ten years old, respectively.

Prior to their deaths, Gary and Marcille Wonderly, as well as their two children, were residents of Defiance County, Ohio. Marcille Wonderly, then the sole surviving parent of the two children, died testate and, in her will, specifically requested that her two children be placed in the custody of Edward and Sharon Herschberger, appellants herein, who were and continue to be residents of Grabill, Indiana. Marcille Wonderly also directed, in her will, that in "no event" 1 were the children to be placed in the custody of William K. Wonderly and Luella Wonderly, appellees (hereinafter also referred to as the grandparents), the paternal grandparents of the children and, also, residents of Ohio.

In 1971, shortly after the death of Marcille Wonderly, the Probate Court of Defiance County found that it would be in the children's best interests for them to be placed with the Herschbergers. Accordingly, the Probate Court appointed the Herschbergers guardians of the persons and the estates of both children. Ever since 1971, Scott and Heidi have resided with the Herschbergers in Indiana and have been completely integrated into the Herschberger family. As a practical matter, the Herschbergers are the only "real parents" that Scott and Heidi have ever known. 2

In September of 1979, the grandparents filed a motion in the Probate Court of Defiance County, seeking termination of the Herschberger's guardianship of the two children. In November of 1979, a judge of the Probate Court of Defiance County not the same judge who initially awarded custody to the Herschbergers in 1971 terminated the guardianship of the Herschbergers. In so ruling, the Probate Court, contrary to the Herschberger's specific Civ.R. 52 request, 3 failed to issue separate findings of fact and conclusions of law.

The Court of Appeals affirmed the judgment of the Probate Court.

The grandparents' subsequent attempts to enforce the order of the Ohio court in Indiana, through writs of habeas corpus, mandamus and prohibition, have all been unsuccessful. It should also be noted that the Herschbergers have filed, in an Indiana court, a petition for the adoption of Scott and Heidi Wonderly. That proceeding has been stayed pending the resolution of this appeal.

The cause is now before this court pursuant to the allowance of a motion to certify the record.

Shaw, Clemens, Williams, Nichol & Korhn, Erwin L. Clemens and Joseph N. Schmenk, Defiance, for appellants.

Weaner, Hutchinson, Zimmerman & Bacon and John E. Zimmerman, Defiance, for appellees.

FRANK D. CELEBREZZE, Chief Justice.

The focal point of this case is the legal and emotional battle for custody of Scott and Heidi Wonderly, two members of that ever-proliferating class of individuals known as "interstate children." 4 In addressing the arguments and concerns voiced by both parties, we feel like those ancient sailors trapped between the rock of Scylla and the whirlpool of Charybdis. 5 In arriving at our decision today, we have been guided by, and take note of, the express purposes of the Uniform Child Custody Jurisdiction Act (UCCJA), adopted in Ohio in 1977 and codified at R.C. 3109.21 through R.C. 3109.37, which are, inter alia, 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. See UCCJA, (9 Uniform Laws Annot. 111); Annotation, 96 A.L.R.3d 968.

There are three critical issues in this case. The threshold question is whether a guardianship termination proceeding is the functional equivalent of a custody proceeding which could result in a change of custody of the two Wonderly children, thus mandating compliance with Ohio's version of the UCCJA. Secondly, we must determine, based on the statutorily- articulated significant contacts of R.C. 3109.22, 6 whether Ohio or Indiana, or, indeed, both states, have jurisdiction of the custody dispute involving Scott and Heidi Wonderly. Finally, assuming, for the moment, concurrent jurisdiction in Ohio and Indiana, we must then determine if the Probate Court abused its discretion in failing to designate itself an inconvenient forum, pursuant to R.C. 3109.25. 7

We conclude, initially, that the Court of Appeals erred in failing to decide that the UCCJA applies in a proceeding to terminate guardianship. Both R.C. 2111.06 8 and 2111.07 9 indicate that the guardian shall have custody of the person and estate of a minor. Yet, on the other hand, both a "custody determination," pursuant to R.C. 3109.21(B), 10 and a "custody proceeding," pursuant to R.C. 3109.21(C), 11 require the application of the UCCJA when the custody of a minor is the main issue or one of several issues in the litigation.

Applying the foregoing statutes to the facts at bar, it is immediately evident that, if the Herschbergers are removed as guardians, custody of the children, too, would change since the Herschbergers would no longer have a right to the custody of the Wonderly children. Therefore, the guardianship issue and the custody issues are inextricably intertwined, thus requiring compliance with the UCCJA.

The jurisdictional prerequisites of the Act are set forth in R.C. 3109.22. 12 The appellate court below specifically rules that an Ohio court should assume jurisdiction, pursuant to R.C. 3109.22(A)(2), since (1) the grandparents, being residents of Ohio, had a significant connection with this state, and (2) there was substantial evidence available in Ohio concerning the children's present and future care, protection, training, and personal relationships. In evaluating the correctness of the appellate court's conclusion, we are mindful of the fact that the Act clearly contemplates that more than one state will meet the aforementioned jurisdictional prerequisites, as evidenced by the Commissioners' Note to Section 3 of the Act (R.C. 3109.22), which states in part:

" * * * Paragraph (2) perhaps more than any other provision of the Act requires that it be interpreted in the spirit of the legislative purposes expressed in section 1. The paragraph was phrased in general terms in order to be flexible enough to cover many fact situations too diverse to lend themselves to exact descriptions. But its purpose is to limit jurisdiction rather than to proliferate it. The first clause of the paragraph is important: jurisdiction exists only if it is in the child's interest, not merely the interest or convenience of the feuding parties, to determine custody in a particular state. The interest of the child is served when the forum has optimum access to relevant evidence about the child and family. There must be maximum rather than minimum contact with the state." (Emphasis added in part.) 9 Uniform Laws Annot., at 124. See, also, Schlumpf v. Superior Court (1978), 79 Cal.App.3d 892, 145 Cal.Rptr. 190; Clark v. Superior Court (1977), 73 Cal.App.3d 298, 140 Cal.Rptr. 709. See, generally, Sampsell v. Superior Court (1948), 32 Cal.2d 763, 197 P.2d 739 (Traynor, J.)

In reviewing the Ohio connections of the case sub judice, we agree with the court below that the residency of the grandparents here is a significant connection. Similarly, the grandparents' presence in Ohio is probative of the future care, protection and personal relationships that the children would encounter if they returned to Ohio in the custody of the grandparents. Of course, the accounts and financial records which the Herschbergers have continued to file with the Probate Court of Defiance County are other connections with Ohio that relate to the care and protection of the children.

On the other hand, though, Indiana, the children's home since 1971, qualifies as their "home state," for purposes of R.C. 3109.21(E) 13 and 3109.22(A) (1). As previously mentioned, the Herschberger family resides in Indiana. The children's education, personal relationship with their peer group and adults, medical care, and religious training all center in Indiana. Based upon this record, it is clear that, for the purposes of R.C. 3109.22(A)(2), substantial evidence of Scott and Heidi Wonderly's past, present and future care, protection, training, and personal relationships is available in Indiana.

While, as just noted, Indiana has a significant connection to and substantial evidence about the Wonderly children, it is not at all clear to us, based on this record, that the children have a significant connection to and that there is substantial evidence available in Ohio pertaining to their present and future well-being. Our difficulty in analyzing the significance and substantiality of the Ohio connections is exacerbated by...

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