Court of Appeals of Ohio, Eleventh District, Geauga
STATE OF OHIO ex rel. SEAN HEINEMAN, Relator,
HON. DAVID E. STUCKI, Respondent.
Action for Writ of Prohibition.
W. Flowers and Louis Everett Grube, Paul W. Flowers Co.,
L.P.A., Terminal Tower, Suite Anne S. Magyaros, The Gallery
Building, (For Relator).
R. Flaiz, Geauga County Prosecutor, and Linda Applebaum,
Assistant Prosecutor, Courthouse Annex, (For Respondent).
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.
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.
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.
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. (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.
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.
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."
Thereafter, Judge Stucki was assigned to preside over the
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.
GCJFS filed a case plan regarding the children on August 23,
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)."
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.
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
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.
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 ...