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State ex rel. Heineman v. Stucki

Court of Appeals of Ohio, Eleventh District, Geauga

July 1, 2019

STATE OF OHIO ex rel. SEAN HEINEMAN, Relator,
v.
HON. DAVID E. STUCKI, Respondent.

         Original Action for Writ of Prohibition.

          Paul W. Flowers and Louis Everett Grube, Paul W. Flowers Co., L.P.A., Terminal Tower, Suite Anne S. Magyaros, The Gallery Building, (For Relator).

          James R. Flaiz, Geauga County Prosecutor, and Linda Applebaum, Assistant Prosecutor, Courthouse Annex, (For Respondent).

          OPINION

          PER CURIAM

         {¶1} Relator, Sean Heineman, seeks a writ of prohibition preventing respondent, Hon. David E. Stucki ("Judge Stucki") of the Geauga County Court of Common Pleas, Juvenile Division, from continuing to exercise judicial authority over the proceedings in case No. 17 JF 000071. Heineman asserts that Judge Stucki lacks jurisdiction over the action because notices of voluntary dismissal were filed in accordance with Civ.R. 41(A). Before this court are the parties' competing motions for summary judgment. We conclude summary judgment in favor of Judge Stucki is warranted as a matter of law.

         Procedural History

         {¶2} Heineman was married to Nika McNulty until their divorce in 2013. During the marriage, they had three children together-M.H., L.H., and C.H.-all of whom are still minors. Thereafter, Heineman became incarcerated, and McNulty had custody of the children.

         {¶3} On April 17, 2017, Geauga County Job and Family Services ("GCJFS") filed a complaint in the Juvenile Division of the Geauga County Court of Common Pleas ("Juvenile Court"), pursuant to R.C. 2151.27, alleging the children were dependent. The complaint was assigned case No. 17 JF 000071.

         {¶4} On May 8, 2017, three matters came before the Juvenile Court. (1) Heineman filed his own R.C. 2151.27 complaint, under the same case number, alleging the children were abused, neglected, or dependent.[1] (2) Heineman's mother, Cheryl Heineman ("Paternal Grandmother), moved to interplead and moved for emergency temporary custody of the children. (3) GCJFS moved to dismiss its complaint and requested the court return the children to McNulty.

         {¶5} On May 16, 2017, the Juvenile Court issued a judgment entry, in which it entered the following "interim orders": (1) GCJFS's motion to dismiss its dependency complaint was granted; (2) emergency temporary custody of M.H. and L.H. was granted to Paternal Grandmother; (3) custody of C.H. was returned to McNulty; (4) McNulty was granted supervised visitation with M.H. and L.H.; (5) GCJFS was made a party to the proceedings, pursuant to Juv.R. 2, and was granted protective supervision of all three children; (6) Heineman was granted supervised telephonic and personal visitations with the children as permitted by the correctional institution; (7) a hearing was scheduled on Heineman's complaint and Paternal Grandmother's motions.

         {¶6} The Juvenile Court issued another judgment entry, on July 11, 2017, in which it stated that "this case has evolved into a private custody dispute between the paternal grandmother and mother." It therefore dismissed GCJFS as a party to the proceedings. In the interest of complete impartiality due to an allegation made by McNulty, the judge also recused himself from the matter, stating "all pending motions will be heard by the successor judge in this case." Finally, the entry ordered that "[a]ll prior orders shall remain in full force and effect."

         {¶7} Thereafter, Judge Stucki was assigned to preside over the proceedings.

         {¶8} On June 1, 2018, McNulty filed a motion for a subpoena to be issued to the Ohio Department of Rehabilitation and Corrections ("ODRC") to produce recordings of certain nonprivileged telephone calls placed by Heineman from July 11, 2017, through the date of the motion.

         {¶9} GCJFS filed a case plan regarding the children on August 23, 2018.

         {¶10} On August 31, 2018, McNulty moved to dismiss Heineman's complaint and Paternal Grandmother's motions on the basis that the juvenile proceedings had turned into "a custody dispute between two formerly married parents and jurisdiction over the children herein does not belong in the Juvenile Court, absent a finding of dependency, abuse or neglect or facts equivalent to those standards that would indicate [McNulty] was unsuitable pursuant to In re Perales, 52 Ohio St.2d 89 (1977)."[2]

         {¶11} Despite having moved to dismiss the proceedings, McNulty filed several motions on September 6, 2018. McNulty filed an ex parte motion to suspend prison visitation between the children and Heineman and a motion for a ruling on her previous motion for a subpoena to be issued to ODRC regarding Heineman's prison telephone records. McNulty also moved the Juvenile Court to order Heineman and Paternal Grandmother to show cause why they should not be held in contempt of court and for an award of attorney fees.

         {¶12} The following day, September 7, 2018, Paternal Grandmother filed a "Notice of Dismissal Civ.R. 41(A)," stating she "hereby dismisses her Complaint and all of her other pending motions in this case, without prejudice, at her cost." Heineman also filed a "Notice of Dismissal," stating he "dismisses his Complaint and all of his other pending motions in this case, without prejudice pursuant to Rule 41(A) of the Ohio Rules of Civil Procedure."

         {¶13} Judge Stucki issued a judgment entry on September 19, 2018, in which he (1) overruled McNulty's motion to dismiss as moot, due to the voluntary dismissals filed by Heineman and Paternal Grandmother; (2) granted McNulty's motion to suspend Heineman's prison visitation with the children; (3) granted McNulty's motion for a subpoena to issue to ODRC for Heineman's telephone records; and (4) set a hearing on McNulty's motions to show cause and for attorney fees against Heineman and Paternal Grandmother.

         {¶14} No adjudicatory hearing was ever held, and no finding was ever entered that the children were abused, neglected, or dependent. However, the children apparently remained placed in temporary ...


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