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Stephen M. Mumford v. Dana Shackleton

October 24, 2011

STEPHEN M. MUMFORD,
PLAINTIFF-APPELLANT,
v.
DANA SHACKLETON, DEFENDANT-APPELLEE.



CHARACTER OF PROCEEDING: Appeal from the Stark County Court of Common Pleas, Family Division, Case No. 2011DR00302

The opinion of the court was delivered by: Delaney, J.

Cite as Mumford v. Shackleton,

: JUDGES: : Hon. W. Scott Gwin, P.J. : Hon. William B. Hoffman, J. : Hon. Patricia A. Delaney, J.

: OPINION

JUDGMENT: AFFIRMED

{¶1} Appellant Stephen M. Mumford, a resident of Stark County, appeals the May 9, 2011 judgment of the Stark County Court of Common Pleas, Family Division, which denied temporary emergency jurisdiction over Appellant's minor child A.Y., a resident of Philadelphia, Pennsylvania.

{¶2} Appellant and Appellee Dana Shackleton married on June 13, 2002, in North Carolina and A.Y. was born issue of the marriage on December 23, 2003. The couple has lived separate and apart since March, 2008. At that time, Appellee and A.Y. moved to Philadelphia.

{¶3} On March 11, 2011, Appellant filed for divorce in Stark County and sought temporary allocation of parental rights and responsibilities for A.Y. The same day, Appellant filed a motion for ex parte order requiring that A.Y. remain in the jurisdiction of Stark County pursuant to R.C. 3127.18(A)(2) and R.C. 3127.15. Appellant alleged he was contacted by relatives of Appellee to retrieve A.Y. when Appellee was about to be incarcerated in Philadelphia. Appellant further alleged that Appellee had lost her apartment and there was no satisfactory place for A.Y. to live. Lastly, Appellant alleged A.Y. had missed a considerable amount of school due to Appellee's excessive drinking.

{¶4} A magistrate issued an ex parte order placing A.Y. in Appellant's temporary custody, allowing Appellant to enroll A.Y. in school and preventing either parent from removing A.Y. from Stark County until further order of the court. The magistrate also appointed a guardian ad litem.

{¶5} The matter was set for hearing on March 23, 2011. The same day, Appellee filed a motion to dismiss the divorce complaint and ex parte order on the grounds the Stark County Court of Common Pleas lacked jurisdiction over the minor child and sought immediate return of A.Y. to Pennsylvania.

{¶6} At hearing, the trial court heard the arguments of counsel regarding jurisdiction and took the matter under advisement. The trial court also referred the matter to the Stark County Department of Job and Family Services due to the allegations of neglect, dependency and abuse of A.Y.

{¶7} On April 21, 2011, Appellee filed a motion for return of A.Y., which was originally set for hearing on May 16, 2011, however, it was continued until June 27, 2011.

{¶8} On May 9, 2011, the trial court issued the following order:

{¶9} "The Court finds that Pennsylvania is the home state of the parties' child, pursuant to ORC 3127.15. No action has been filed in Pennsylvania. ORC 3127.18 does not confer authority for this court to issue emergency custody orders as there is insufficient evidence to convince this court that the child is abandoned, mistreated or abused. The allegations of potential neglect are insufficient to warrant this court to confer emergency jurisdiction. All orders with regard to [A.Y.] DOB 12/23/2003 are vacated. The child is to be returned to the legal custody of his mother, Dana Shackelton [sic]. The Stark County Sheriff and/or any police agency having jurisdiction are directed to facilitate the return of the child to his mother forthwith."

{¶10} Subsequently, both the trial court and this Court denied Appellant's motion to stay the May 9th order.

{¶11} Appellant filed a timely appeal.

{¶12} Assignments of Error are as follows:

{¶13} "I. THE TRIAL COURT ERRED IN DISMISSING THE ISSUE OF CUSTODY AND FINDING THAT OHIO REVISED CODE §3127.18 DID NOT CONFER AUTHORITY ON THE COURT TO ISSUE EMERGENCY CUSTODY ORDERS.

{¶14} "II. THE TRIAL COURT ERRED IN NOT GRANTING PLAINTIFF/APPELLANT ADDITIONAL TIME TO PRESENT EVIDENCE OF THE ABUSE AND MISTREATMENT OF [A.Y.] BY THE DEFENDANT/APPELLEE.

{ΒΆ15} "III. THE TRIAL COURT ERRED IN GRANTING LEGAL CUSTODY TO THE DEFENDANT/APPELLEE WHEN NO CUSTODY DETERMINATION HAD BEEN RENDERED ...


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