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In re R.M.S.N.

Court of Appeals of Ohio, Seventh District, Belmont

December 11, 2017

IN RE: R.M.S.N., T.M.L.N., MINOR CHILDREN

         Civil Appeals from the Court of Common Pleas, Juvenile Division, of Belmont County, Ohio Case Nos. 13JG661; 13JG660

          For Appellee: Atty. Joseph A. Varvra Vavra Law Office No Brief Filed

          For Appellant: Atty. Elgine Heceta McArdle McArdle Law Office

          JUDGES: Hon. Cheryl L. Waite Hon. Gene Donofrio Hon. Mary DeGenaro

          OPINION

          WAITE, J.

         {¶1} In these consolidated appeals, Appellant Oscar Norris is challenging decisions of the Belmont County Court of Common Pleas, Juvenile Division, granting Appellee Heather Beasley's motion to dismiss his request for a change in parenting time for lack of jurisdiction and ordering the transfer of the parties' child custody matters to Rowan County, North Carolina. Appellant argues the trial court erred in failing to rule on his motion for contempt regarding Appellee's relocation of the children to North Carolina without filing a notice of intent to relocate. Appellant also contends the trial court erred in declining to exercise jurisdiction over child custody matters pursuant to the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA). For the reasons below, neither of Appellant's arguments have merit. Pursuant to R.C. 3127.16, the trial court has exclusive, continuing jurisdiction until a court determines that none of the parties reside in Ohio. Further, utilizing the factors set forth in R.C. 3127.21(B), the trial court determined that the North Carolina forum was more convenient and appropriate, regardless of any alleged contemptuous conduct by Appellee. Therefore, based on this record, the judgments of the trial court are affirmed.

         Statement of the Facts and Case

         {¶2} The parties had been married and had two children, R.M.S.N. and T.M.L.N. Subsequent to the parties' divorce, they entered into a shared parenting plan relative to their children in the Family Court of Ohio County, West Virginia on January 24, 2012. The parties had lived in West Virginia during the marriage, and it appears that Appellant continues to reside in that state. Appellee had moved to Belmont County, Ohio by August of 2011, and in May of 2013, Appellee sought a domestic violence civil protection order in Belmont County against Appellant based on a series of threatening text messages she had received from him. A hearing was held on May 2, 2013. Appellee testified and one of the minor children was interviewed by the court. The Belmont County Court of Common Pleas issued a domestic violence civil protection order on May 8, 2013. Appellant's parenting time was suspended for the duration of the civil protection order, which expired on May 2, 2014.

         {¶3} On August 28, 2013, while the civil protection order was in effect, Appellee filed a motion to transfer jurisdiction of the parenting matters to Ohio. In her motion to transfer, Appellee stated that she and the children had been residing in Belmont County, Ohio since August of 2011, before the shared parenting agreement was issued in West Virginia, and that the children had been enrolled in school in the Shadyside School District since that time. Appellant did not dispute that Appellee and the children had been living in Ohio but did oppose transferring jurisdiction to Belmont County. A hearing was held on November 1, 2013. Both parties were present with counsel. Appellee sought not only to transfer jurisdiction of the parenting matters to Ohio but also to terminate the existing shared parenting agreement. While opposing the motion, Appellant did acknowledge the children had been living in Belmont County for at least six months prior to the filing of Appellee's motion. By this time, Appellant no longer resided in Ohio County, West Virginia and had relocated to Hancock County, West Virginia. The Belmont County Court of Common Pleas, Juvenile Division granted Appellee's motion and accepted jurisdiction of the parties' child custody matters in a judgment entry dated January 8, 2014. The court noted that the children had attended the same school for two years and that Appellant had not exercised any parenting time since the civil protection order was issued. The judge concluded that there had been a change in circumstance and proceeded to evaluate the factors enumerated in R.C. 3109.04(F)(1)(a)-(j). Based on these factors, the court terminated the shared parenting agreement. Appellant was granted parenting time with the children every other Saturday from 10:00 a.m. to 6:00 p.m. Appellant never appealed that judgment nor did he make any attempt to enforce that order despite being estranged from his children for some time.

         {¶4} It is undisputed that Appellee and the children moved to North Carolina in December of 2013. She relocated out of state without first seeking permission from the Belmont County Common Pleas Court. On May 12, 2015, Appellee filed a notice seeking registration of a foreign order in the trial court of Rowan County, North Carolina. Appellant filed a response in opposition on June 12, 2015. Appellant also filed a motion seeking a modification of his parenting time and alleging contempt on the part of Appellee with the Belmont Court on June 15, 2015. Appellee filed a motion to dismiss Appellant's Belmont County action for lack of jurisdiction on September 4, 2015. In Appellant's September 18, 2015 response he contended that the UCCJEA and Ohio statutes prohibited North Carolina from taking jurisdiction of any of the parenting issues.

         {¶5} A hearing on the matter was held on March 11, 2016. On March 17, 2016 the magistrate issued a decision taking the jurisdictional dispute under advisement, but also ordering the minor children to contact Appellee every Sunday at 6:00 p.m. On March 21, 2016, a second magistrate's decision was issued declining to exercise jurisdiction over the matter and concluding that the North Carolina court was the most convenient forum, pursuant to R.C. 3127.21(B).

         {¶6} Appellant filed objections to the magistrate's decision which were overruled by the trial court on May 26, 2016. Appellee filed a motion for reconsideration on July 26, 2016 which was also denied. Appellant then filed these timely appeals, which have been consolidated. For the sake of clarity, Appellant's assignments of error will be addressed together.

         ASSIGNMENT OF ERROR NO. 1

THE TRIAL COURT ABUSED ITS DISCRETION IN FAILING TO ADDRESS THE MAGISTRATE'S DENIAL OF JURISDICTION OVER APPELLANT'S PETITION FOR CONTEMPT.

         ASSIGNMENT OF ERROR NO. 2

THE TRIAL COURT ABUSED ITS DISCRETION IN FAILING TO REVERSE THE MAGISTRATE'S RULING WHICH DECLINED TO EXERCISE JURISDICTION OVER A CUSTODY ORDER MADE IN BELMONT COUNTY, OHIO WHERE ...

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