[Cite as State ex rel. Jones v. Paschke, 2023-Ohio-1536.]

IN THE COURT OF APPEALS OF OHIO

ELEVENTH APPELLATE DISTRICT

GEAUGA COUNTY

STATE OF OHIO ex rel.

JEREMY J. JONES,

Relator,

- vs -

THE HONORABLE JUDGE

CAROLYN J. PASCHKE,

Respondent.

CASE NO. 2022-G-0037

Original Action for 

Writ of Prohibition

P E R C U R I A M

O P I N I O N

Decided: May 8, 2023

Judgment: Petition denied

Joseph G. Stafford, Nicole A. Cruz, and Kelley R. Tauring, Stafford Law Co., LPA, 55 

Erieview Plaza, 5th Floor, Cleveland, OH 44114 (For Relator).

James R. Flaiz, Geauga County Prosecutor, and Linda M. Applebaum, Assistant 

Prosecutor, Courthouse Annex, 231 Main Street, Chardon, OH 44024 (For 

Respondent).

PER CURIAM.

{¶1} Relator, Jeremy J. Jones (“Mr. Jones”), filed a verified petition for writ of 

prohibition against respondent, the Honorable Judge Carolyn J. Paschke (“Judge 

Paschke”), to prevent Judge Paschke from exceeding her jurisdiction in the matter of 

Heidi O’Neill v. Jeremy J. Jones in the Geauga County Court of Common Pleas by 

proceeding upon the complaint for grandparent companionship rights pursuant to R.C. 

3109.11 that was filed by plaintiff, Heidi O’Neill (“Mrs. O’Neill). 
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{¶2} This matter is currently before the court for resolution of the parties’ 

competing motions for summary judgment. 

{¶3} Since Mr. Jones can prove no set of facts establishing that Judge Paschke 

“patently and unambiguously” lacks jurisdiction or that he lacks an adequate remedy at 

law, we grant Judge Paschke’s motion for summary judgment, overrule Mr. Jones’ motion 

for summary judgment, and deny Mr. Jones’ petition.

Factual and Procedural History

{¶4} In his petition, Mr. Jones alleges that on July 12, 2022, Mrs. O’Neill filed a 

complaint in the Geauga County Court of Common Pleas against Mr. Jones seeking 

reasonable grandparent companionship/visitation with Mr. Jones’ minor son. The minor 

was born on December 26, 2015, to Mr. Jones and Mrs. O’Neill’s deceased daughter, 

Molly A. Jones, as issue of their marriage. Molly A. Jones died on July 2, 2022. 

{¶5} In response, Mr. Jones filed a motion to dismiss, alleging the trial court 

lacked jurisdiction to determine grandparent visitation pursuant to R.C. 3109.11. 

{¶6} In September 2022, the trial court issued a judgment entry denying Mr. 

Jones’ motion to dismiss, finding that the Geauga County Court of Common Pleas has 

subject matter jurisdiction to proceed on Mrs. O’Neill’s complaint. More specifically, the 

trial court found that R.C. 3109.11, applicable in the underlying case, authorizes a 

common pleas court to grant reasonable companionship or visitation rights to the parents 

of a deceased father or mother if the court determines that such visitation is in the best 

interest of the minor child. Further, juvenile courts do not have original subject matter 

jurisdiction over visitation motions brought under R.C. 3109.11. Lastly, since the same 

magistrate presided over the divorce proceedings of Mr. Jones and Molly Jones, and 
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since he is already familiar with the history and circumstances related to the care of the 

minor child, the interests of justice are better served by the Court of Common Pleas as 

opposed to the Juvenile Court. 

{¶7} In his petition, Mr. Jones contends that the Juvenile Court has jurisdiction 

to determine claims for grandparent visitation. This is especially so because prior to his 

divorce proceedings with Molly Jones, he had filed a complaint for neglect and 

dependency and an ex parte motion for temporary custody against Molly Jones in the 

Juvenile Court. Ultimately, the Juvenile Court vacated the ex parte temporary custody 

order after reviewing drug test results of Mr. Jones and Molly Jones and relinquished 

jurisdiction to the Domestic Relations Division because the parties were married. 

{¶8} Mr. Jones also contends the trial court lacks jurisdiction to appoint a 

guardian ad litem (“GAL”) in the underlying matter because it “failed to set forth any 

statutory grounds for the appointment of a guardian ad litem in a grandparent 

companionship case.” He further asserts that a GAL may only be appointed upon the 

allocation of parental rights and responsibilities pursuant to R.C. 3109.04. 

Standard of Review

{¶9} Both parties have moved for summary judgment. To be entitled to summary

judgment, they must show that: “(1) No genuine issue as to any material fact remains to 

be litigated; (2) the moving party is entitled to judgment as a matter of law; and (3) it 

appears from the evidence that reasonable minds can come to but one conclusion, and 

viewing such evidence most strongly in favor of the party against whom the motion for 

summary judgment is made, that conclusion is adverse to that party.” Temple v. Wean

United, Inc., 50 Ohio St.2d 317, 327, 364 N.E.2d 267 (1977), citing Civ.R. 56(C).
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Legal Standards

{¶10} A writ of prohibition is an extraordinary judicial writ issuing out of a court of 

superior jurisdiction and directed to an inferior tribunal commanding it to cease abusing 

or usurping judicial functions. State ex rel. Tubbs Jones v. Suster, 84 Ohio St.3d 70, 73, 

701 N.E.2d 1002 (1998). The purpose of a writ of prohibition is to restrain inferior courts 

and tribunals from exceeding their jurisdiction. Id. As such, it is an extraordinary remedy 

which is customarily granted with caution and restraint and is issued only in cases of 

necessity arising from the inadequacy of other remedies. Id.

{¶11} To be entitled to a writ of prohibition, a relator must establish that (1) the 

respondent is about to exercise judicial or quasi-judicial power, (2) the exercise of that 

power is unauthorized by law, and (3) denying the writ would result in injury for which no 

other adequate remedy exists in the ordinary course of law. State ex rel. Bell v. Pfeiffer,

131 Ohio St.3d 114, 2012-Ohio-54, 961 N.E.2d 181, ¶ 18. 

{¶12} The last two elements can be met by a showing that the trial court “patently 

and unambiguously” lacked jurisdiction. Chesapeake Exploration, L.L.C. v. Oil & Gas 

Comm., 135 Ohio St.3d 204, 2013-Ohio-224, 985 N.E.2d 480, ¶ 11. “Where an inferior 

court patently and unambiguously lacks jurisdiction over the cause, prohibition will lie both 

to prevent the future unauthorized exercise of jurisdiction and to correct the results of 

previous jurisdictionally unauthorized actions.” State ex rel. Stern v. Mascio, 81 Ohio 

St.3d 297, 298-299, 691 N.E.2d 253 (1998).
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Law and Analysis

{¶13} A review of Mr. Jones’s petition demonstrates he cannot establish that 

Judge Paschke “patently and unambiguously” lacks jurisdiction or that he lacks an 

adequate remedy at law. 

Subject Matter Jurisdiction 

{¶14} Mr. Jones incorrectly asserts that the juvenile court should have jurisdiction 

over Ms. O’Neill’s claims for grandparent visitation. 

{¶15} The General Assembly authorizes nonparent visitation with a child in three 

situations: (1) in a divorce, dissolution, legal separation, annulment, or child support 

proceeding, the court may grant reasonable companionship or visitation rights to any 

grandparent, any person related to the child by consanguinity or affinity, or any other 

person other than the parent (R.C. 3109.051(B)(1)); (2) the court may grant the parents 

and other relatives of the deceased parent reasonable companionship or visitation rights 

(R.C. 3109.11); and (3) the court may grant grandparents and other relatives reasonable 

companionship or visitation rights to grandparents and other relatives when the child’s 

mother is unmarried (R.C. 3109.12).

{¶16} Mrs. O’Neill filed her complaint for grandparent visitation pursuant to R.C. 

3109.11, which states: 

{¶17} “If either the father or mother of an unmarried minor child is deceased, the 

court of common pleas of the county in which the minor child resides may grant the 

parents and other relatives of the deceased father or mother reasonable companionship 

or visitation rights with respect to the minor child during the child’s minority if the parent 

or other relative files a complaint requesting reasonable companionship or visitation rights 
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and if the court determines that the granting of the companionship or visitation rights is in 

the best interest of the minor child. In determining whether to grant any person 

reasonable companionship or visitation rights with respect to any child, the court shall 

consider all relevant factors, including, but not limited to, the factors set forth in division 

(D) of section 3109.051 of the Revised Code. Divisions (C), (K), and (L) of section 

3109.051 of the Revised Code apply to the determination of reasonable companionship 

or visitation rights under this section and to any order granting any such rights that is 

issued under this section.” (Emphasis added.)

{¶18} Jurisdiction is the trial court’s “statutory or constitutional power to

adjudicate the case.” Steel Co. v. Citizens for a Better Environment, 523 U.S. 83, 89, 118

S.Ct. 1003, 140 L.Ed.2d 210 (1998); Subject matter jurisdiction is defined as a court’s

power to hear and decide cases. Morrison v. Steiner, 32 Ohio St.2d 86, 290 N.E.2d 841

(1972), paragraph one of the syllabus. Because subject matter jurisdiction goes to the

power of the court to adjudicate the merits of a case, it can never be waived and may be

challenged at any time. Wells Fargo Bank, Natl. Assn. v. Elliott, 5th Dist. Delaware No.

13 CAE 03 0012, 2013-Ohio-3690, ¶ 9.

{¶19} “A juvenile court may exercise jurisdiction only if expressly granted the 

authority to do so by statute.” Rowell v. Smith, 133 Ohio St.3d 288, 2012-Ohio-4313, 978 

N.E.2d 146, ¶ 13, citing Article IV, Section 4(B), Ohio Constitution (“The courts of common 

pleas and divisions thereof shall have such original jurisdiction over all justiciable matters 

and such powers of review of proceedings of administrative officers and agencies as may 

be provided by law”).
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{¶20} R.C. 2151.23(A)(2) confers exclusive, original jurisdiction on juvenile courts 

“to determine the custody of any child not a ward of another court of this state[.]” It has 

been suggested that this provision “typically encompasses all custody disputes between 

parents and non-parents.” (Emphasis added.) Scavio v. Ordway, 3d Dist. Shelby No. 

17-09-07, 2010-Ohio-984, ¶ 18, citing In re James, 113 Ohio St.3d 420, 2007-Ohio-2335, 

866 N.E.2d 467, ¶ 38 (Lundberg Stratton, J., dissenting) (“R.C. 2151.23(A)(2) authorizes 

a juvenile court to determine custody issues of any child who is not a ward of another 

court of the state, which often involve proceedings between a parent and a nonparent”).

{¶21} The Supreme Court of Ohio has explained that the grant of authority in R.C. 

2151.23(A)(2) to determine the custody of a child not a ward of another Ohio court does 

not provide the juvenile court with jurisdiction to determine a nonparent’s claim for 

visitation. In re Gibson, 61 Ohio St.3d 168, 573 N.E.2d 1074 (1991), syllabus. This is 

because “visitation” and “custody” are related but distinct legal concepts. Id. at 171. 

{¶22} “Custody” is granted to the party who has “the right to ultimate legal and 

physical control of a child.” Id. “Visitation” is granted to a “noncustodial party and 

encompasses that party’s right to visit the child.” Id. “Although a party exercising 

visitation rights might gain temporary physical control over the child for that purpose, such 

control does not constitute ‘custody’ because the legal authority to make fundamental 

decisions about the child’s welfare remains with the custodial party and because the child 

eventually must be returned to the more permanent setting provided by that party.” Id. A 

grandparent’s complaint seeking visitation with a grandchild cannot be determined by the 

juvenile court pursuant to its authority to determine the “custody” of children under R.C. 

2151.23(A)(2). Id. at syllabus.
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{¶23} Thus, pursuant to R.C. 2151.23, which governs the jurisdiction of the 

juvenile court, there is no authority within the statute for a juvenile court to consider a 

complaint where the sole issue is a grandparent seeking visitation with a grandchild. See 

Waters v. Waters, 4th Dist. Gallia No. 95CA20, 1996 WL 442345, *1 (July 31, 1996) 

(Juvenile court was without jurisdiction to determine grandparent visitation where sole 

issue was grandparent seeking visitation); In re Burrows, 3d Dist. Seneca Nos. 13-04-03 

and 13-04-04, 2004-Ohio-2619, ¶ 2 (Juvenile court was correct in finding that it did not 

have subject matter jurisdiction over R.C. 3109.11 grandparent motions for visitation); In 

re McCrady, 4th Dist. Washington Nos. 99CA52 and 00CA16, 2000 WL 1717557, *2-3 

(Nov. 6, 2000) (Juvenile court correctly ruled that it did not have jurisdiction to award 

visitation to paternal grandparents where maternal grandparents had custody of the child 

after the child’s father went to prison for murdering the child’s mother). 

{¶24} Thus, it is clear Mr. Jones cannot establish that the Geauga County Court 

of Common Pleas “patently and unambiguously” lacks subject matter jurisdiction over 

Mrs. O’Neill’s complaint for grandparent visitation. 

Appointment of the GAL

{¶25} Mr. Jones also contends the trial court lacked jurisdiction to appoint a GAL 

in the underlying case because it “failed to set forth any statutory grounds for the 

appointment of a guardian ad litem in a grandparent companionship case.” He further 

asserts that a GAL may only be appointed upon the allocation of parental rights and 

responsibilities pursuant to R.C. 3109.04. 

{¶26} Most fundamentally, Mr. Jones’ contention is not a question of the trial 

court’s subject matter jurisdiction. Rather, he is challenging the trial court’s exercise of 
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subject matter jurisdiction, which may give rise to a claim of trial court error of which he 

has an adequate remedy by way of an appeal. 

{¶27} Prohibition “tests and determines ‘solely and only’ the subject matter

jurisdiction” of the trial court. Tubbs Jones, supra, at 73, quoting State ex rel. Eaton Corp.

v. Lancaster, 40 Ohio St.3d 404, 409, 534 N.E.2d 46 (1988). As the Supreme Court of 

Ohio has recognized, “there are many cases in which a court lacks the legal authority to 

grant the relief sought but nevertheless has subject-matter jurisdiction to hear the case.” 

Ohio High School Athletic Assn. v. Ruehlman, 157 Ohio St.3d 296, 2019-Ohio-2845, 136 

N.E.3d 436, ¶ 14, citing State ex rel. Enyart v. O’Neill, 71 Ohio St.3d 655, 656, 646 N.E.2d 

1110 (1995) (“the fact that [a judge] may have exercised that jurisdiction erroneously does 

not give rise to extraordinary relief by prohibition”). Thus, there is “a distinction between 

a court that lacks subject-matter jurisdiction over a case and a court that improperly 

exercises that subject-matter jurisdiction once conferred upon it.” Pratts v. Hurley, 102

Ohio St.3d 81, 2004-Ohio-1980, 806 N.E.2d 992, ¶ 10 (2004).

{¶28} “[A]ppeal, not mandamus or prohibition, is the remedy for the correction of 

errors.” State ex rel. Levin v. Sheffield Lake, 70 Ohio St.3d 104, 109, 637 N.E.2d 319 

(1994). Therefore, “‘[e]xtraordinary remedies, i.e., mandamus [and] prohibition[,] * * * may 

not be employed before trial on the merits, as a substitute for an appeal for the purpose 

of reviewing mere errors, or irregularities in the proceedings of a court having proper 

jurisdiction * * *.’” Id., quoting State ex rel. Woodbury v. Spitler, 34 Ohio St.2d 134, 137, 

296 N.E.2d 526 (1973). An appeal from the judgment concluding a case is an adequate 

legal remedy barring issuance of a writ of prohibition. State ex rel. Welt v. Doherty, 11th 

Dist. Portage No. 2020-P-0018, 2020-Ohio-6684, ¶ 21. 
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{¶29} We make no determination as to the ultimate merits of Mr. Jones’ 

arguments concerning the appointment of the GAL because the proper time to make such 

an argument is on direct appeal, with full consideration of a record not currently before 

us. 

{¶30} Because Mr. Jones has an adequate remedy at law, he can prove no set of 

facts warranting relief in prohibition. State ex rel. Hummel v. Sadler, 96 Ohio St.3d 84, 

2002-Ohio-3605, 771 N.E.2d 853, ¶ 20.

{¶31} For the foregoing reasons, Judge Paschke’s motion for summary judgment 

is granted, Mr. Jones’ motion for summary judgment is overruled, and Mr. Jones’ petition 

is denied.

JOHN J. EKLUND, P.J., MARY JANE TRAPP, J., MATT LYNCH, J., concur.