Court of Appeals of Ohio, Eighth District, Cuyahoga
of Prohibition and Mandamus Motion No. 525264 Order No.
V.R.T., pro se.
Michael C. O'Malley, Prosecuting Attorney, and James E.
Moss, Assistant Prosecuting Attorney, for respondent.
JOURNAL ENTRY AND OPINION
C. GALLAGHER, J.
1} This mandamus and prohibition action arises out
of a divorce case, P.B. (mother) v. V.R.T. (father),
Cuyahoga D.R. No. DR-07-317518. The parents married in 1996
and had two children. The older child was born in January
2000, and is now emancipated. The younger child was born in
November 2005. In 2007, the mother commenced the underlying
divorce case, and the trial court granted the divorce in
early 2009. In 2011, the mother and the two children moved to
Indiana, and the father moved to Pennsylvania in 2012.
2} In March 2018, the mother filed the subject
motion to modify visitation in the underlying case. After
some delays regarding service, the father filed a declaratory
judgment/motion to dismiss for lack of jurisdiction. When the
trial court did not rule on the filing and scheduled final
arguments on the visitation motion, the father on January 14,
2019, commenced this writ action against the respondents,
Judge Leslie A. Celebrezze and Magistrate Patrick Kelly. The
father seeks to compel the respondents in the underlying
case, to rule on the declaratory judgment/motion to dismiss
for lack of jurisdiction or to prohibit the respondents from
further adjudicating the case. He argues that pursuant to
R.C. 3127.16 the respondents do not have jurisdiction,
because all the parties have moved out of Ohio.
3} On January 17, 2019, this court issued an
alternative writ of mandamus and prohibition that by February
7, 2019, the respondents shall rule on the father's claim
that it does not have jurisdiction or show cause why it need
not rule, that it either dismiss the case for lack of
jurisdiction by that date or show cause why it does have
jurisdiction, and that it shall not rule on the underlying
motion to modify visitation until further order of this
court. On February 4, 2019, the respondents filed a brief
responding to the alternative writ. Attached to this filing
is a copy of the court's journal entry ruling that the
father's declaratory judgment is actually a motion to
dismiss for lack of subject matter jurisdiction. The
respondents denied the motion and held that they have
jurisdiction over the underlying case. The respondents also
moved to dismiss the writ action. The father filed his brief
in opposition to the motion to dismiss on February 25, 2019.
This court allowed the mother to intervene when she filed an
answer and supporting brief. On March 21, 2019, the father
filed his response to the mother's brief. For the
following reasons, this court grants the respondents'
motion to dismiss and dismisses the application for writs of
mandamus and prohibition.
4} The father's claim for mandamus is moot
because the respondents have ruled on his declaratory
judgment/motion to dismiss for lack of jurisdiction. The
trial court's journal entry fully answers the
father's argument and concludes that it still has
jurisdiction over the case. The trial court's action also
moots the issue of whether the "declaratory
judgment" was an authentic counterclaim or in substance
a motion to dismiss.
5} 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, 43 Ohio St.3d 160, 540 N.E.2d 239 (1989).
Prohibition will not lie unless it clearly appears that the
court has no jurisdiction of the cause that it is attempting
to adjudicate or the court is about to exceed its
jurisdiction. State ex rel Ellis v. McCabe, 138 Ohio
St. 417, 35 N.E.2d 571 (1941), 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 Cty., 153 Ohio St. 64, 65, 90
N.E.2d 598 (1950). 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, 137
Ohio St. 273, 28 N.E.2d 641 (1940). 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, 39 Ohio St.3d 174,
529 N.E.2d 1245 (1988); and State ex rel Csank v.
Jaffe, 107 Ohio App.3d 387, 668 N.E.2d 996 (8th
Dist.1995). 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 an appeal from
the court's holding that it has jurisdiction. State
ex rel Rootstown Local School Dist. Bd. of Edn. v. Portage
Cty. Court of Common Pleas, 78 Ohio St.3d 489, 678
N.E.2d 1365 (1997). Moreover, this court has discretion in
issuing the writ of prohibition. State ex rel. Gilligan
v. Hoddinott, 36 Ohio St.2d 127, 304 N.E.2d 382 (1973).
6} R.C. 3127.16 provides in pertinent part as
follows: "a court of this state that has made a child
custody determination * * * has exclusive, continuing
jurisdiction over the determination until the court or a
court of another state determines that the child, the
child's parents, * * * do not presently reside in this
state." The father argues that the statute divests an
Ohio court of jurisdiction when the court or a court of
another state determines that the child and the child's
parents do not reside in Ohio. Thus, because in this case the
parents and the child no longer reside in Ohio and because
the respondents have recognized this fact, the respondents no
longer have jurisdiction to hear the subject motion and
prohibition will issue.
7} However, the courts have not so interpreted R.C.
3127.16. In Mulatu v. Girsha, 12th Dist. Clermont
No. CA2011-07-051, 2011-Ohio-6226, Ethiopian parents married
in Sweden and moved to the United States, initially to
Indiana and then to Ohio. The father obtained a divorce in
Sweden and also obtained "sole guardianship" of the
couple's three children. The family then visited
relatives in Ethiopia. Because the father took the
children's passports, the children were
"stranded" in Ethiopia. After registering the
Swedish divorce in Ohio, the father sought in an Ohio court a
civil protection order against the mother, and the mother,
who was then living in Maryland, sought modification of the
Swedish order, custody of the children, and the return of
their passports. The trial court granted temporary custody to
the mother and ordered the father to return the
children's passports. When the father refused to produce
the passports, the trial court found him in contempt. The
father then moved to dismiss the proceedings for lack of
jurisdiction. The trial court granted that motion because
there was insufficient evidence that the father still resided
in Ohio. On appeal, the Twelfth District Court of Appeals
ruled that the trial court did have jurisdiction under R.C.
3127.16. The court reasoned that there must be a forum to
determine the welfare of the children. Once Ohio has obtained
jurisdiction, it retains continuing jurisdiction, even if the
parties no longer reside in Ohio, as long as no other court
has asserted jurisdiction over the parties. "R.C.
3127.16 simply sets forth the terms under which Ohio no
longer has exclusive jurisdiction. * * * However, the
statutory principle does not strip the Ohio trial court from
continuing jurisdiction." Id. at ¶ 45.
8} Similarly, in Johnson v. Kelly, 10th
Dist. Franklin No. 14AP-1037, 2015-Ohio-2666, the father
established paternity and a shared parenting plan in Ohio,
when all the parties lived in Ohio. The mother subsequently
moved to Michigan and the father moved out of Ohio on various
Army assignments. When the mother obtained legal custody of
their child in the Ohio court, the father appealed on the
grounds that pursuant to R.C. 3127.16, Ohio lacked
jurisdiction because none of the parties resided in Ohio. The
court of appeals rejected this proposition. If none of the
parties reside in Ohio, and if "another court has not
indicated an intent to take jurisdiction, R.C. 3127.16 does
not completely deprive an Ohio court of jurisdiction but
merely deprives it of 'exclusive' jurisdiction."
Id. at ¶ 16. Therefore, the court of appeals
upheld the decision of the trial court.
9} In Robinette v. Bryant, 4th Dist.
Lawrence No. 12CA20, 2013-Ohio-2889, the mother argued that
because none of the parties remained in Ohio, R.C. 3127.16
deprived the Ohio court of jurisdiction to consider custody.
The Fourth District ruled: "R.C. 3127.16 does not
totally divest a trial court of jurisdiction if the parties
move out of state; rather the court only loses its claim to
exclusive jurisdiction. * * * the trial court retained its
continuing jurisdiction after [the parties] left Ohio."
Id. at ¶ 1.
10} Applying these principles to the present case,
although it is undisputed that the parents and the child have
not lived in Ohio for years, it is also undisputed that no
other court has exerted jurisdiction. Thus, under the