[Cite as Dole v. Dole, 2011-Ohio-1314.]

COURT OF APPEALS 

HOLMES COUNTY, OHIO 

FIFTH APPELLATE DISTRICT 

JENNIFER DOLE 

 Plaintiff-Appellee 

-vsRYAN DOLE 

 Defendant-Appellant 

JUDGES: 

: Hon. W. Scott Gwin, P.J. 

: Hon. Sheila G. Farmer, J. 

: Hon. Patricia A. Delaney, J. 

: 

: 

: Case No. 10CA013 

: 

: 

: O P I N I O N

CHARACTER OF PROCEEDING: Civil appeal from the Holmes County Court 

of Common Pleas, Domestic Relations 

Division, Case No. 01DR106 

JUDGMENT: Affirmed in part; reversed in part 

DATE OF JUDGMENT ENTRY: March 18, 2011 

APPEARANCES: 

For Plaintiff-Appellee For Defendant-Appellant 

JAMES M. RICHARD ROSANNE K. SHRINER 

127 East Liberty Street, Ste. 100 146 East Liberty Street, Ste. 185 

Wooster, OH 44691 Wooster, OH 44691 
[Cite as Dole v. Dole, 2011-Ohio-1314.]

Gwin, P.J. 

{¶1} Defendant-appellant Ryan Dole appeals a judgment of the Court of 

Common Pleas, Domestic Relations Division, of Holmes County, Ohio, which dismissed 

his motion to renew his previously filed motion for reallocation of parental rights and 

responsibilities. Plaintiff-appellee is Jennifer Dole, nka, Felton. Appellant assigns two 

errors to the trial court: 

{¶2} “I. THE TRIAL COURT ABUSED ITS DISCRETION BY DISMISSING 

APPELLANT’S MOTION FOR LACK OF JURISDICTION UNDER THE UNIFORM 

CHILD CUSTODY JURISDICTION ENFORCEMENT ACT. 

{¶3} “II. THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT ORDERED 

APPELLANT TO PAY $500.00 IN ATTORNEY FEES FOR THE ‘UNNECESSARY 

PREPARATION’ OF APPELLEE’S ATTORNEY.” 

{¶4} The record reflects appellant filed a motion for reallocation of parental 

rights and responsibilities in October, 2008. With the motion, pursuant to R.C. 3127.23, 

he filed an affidavit, commonly known as a UCCJEA affidavit, which is a statement 

informing the court that no other court has taken jurisdiction over the minor child. On 

May 27, 2009, the trial court entered a judgment finding the parties had reached an 

agreement on the motion. The court recited the terms of the parties’ agreement in the 

judgment entry. The settlement set the times for visitation and companionship with the 

child, and stated the parties further agreed to attend parenting counseling. The court 

set the matter for a review hearing for August 3, 2009. 

{¶5} On July 27, 2009, appellant filed a motion to renew his motion for 

reallocation of parental rights and responsibilities. He alleged as his reason for 
Holmes County, Case No. 10CA013 3 

renewing his motion that there was a change of circumstances in the home environment 

which was having an adverse effect on the child, so modification of the existing order 

would be in the child’s best interest. He did not file a new UCCJA affidavit. The judge 

who conducted the review hearing was sitting by assignment and apparently had no 

previous involvement in the case. 

{¶6} At the hearing, appellant first moved for a continuance, but the court 

directed the parties to proceed. Appellant informed the court the previous judge had 

scheduled the review hearing to permit the trial court to see how the agreed visitation 

schedule was working out. The court responded it had reviewed the file and the court’s 

judgment entry and based upon that, the court believed the original motion was closed 

by the judgment entry. The court noted it did not have a transcript nor had the present 

judge conducted the first hearing. Appellant did not inform the court he had requested 

and filed a transcript of the hearing, and the record in this case is voluminous. 

{¶7} The court found it did not have jurisdiction over the matter because 

according to the record before it, this present motion was a new motion and required a 

new UCCJA affidavit. The court dismissed the matter without prejudice and explained 

how it could be re-filed with a new deposit to be allocated to guardian ad litem fees. 

The previous guardian ad litem had been paid in 2009 after the parties settled the 

matter, and a new guardian ad litem would be appointed. After the court announced it 

was dismissing the motion to reallocate parental rights and responsibilities, appellant 

dismissed his other pending motion, which was a show cause motion. Appellee 

objected that she was prepared to go forward. The court then found appellee was 

entitled to an award of attorney fees for unnecessary preparation for the hearing. 
Holmes County, Case No. 10CA013 4 

I. 

{¶8} In his first assignment of error, appellant argues the trial court abused its 

discretion in dismissing the matter for lack of jurisdiction. We agree. 

{¶9} In the case of In Re: Complaint for Writ of Habeas Corpus for Goeller: 

Moore v. Goeller, 103 Ohio St. 3d 427, 2004-Ohio-5579, 816 N.E. 2d 594, the Ohio 

Supreme Court held the failure of a party to file a UCCJA affidavit did not divest a 

juvenile court of subject matter jurisdiction to determine custody of a minor child. In 

Goeller, the court agreed its previous holding in Pasqualone v. Pasqualone (1980), 63 

Ohio St. 2d 96, 406 N.E. 2d 1121, had held the filing of the UCCJA affidavit is a 

mandatory jurisdictional requirement. The Supreme Court found, however, the 

requirement that the affidavit must be filed in the first pleading has been “relaxed” by 

numerous courts of appeals to allow amended pleadings or subsequent filings to 

include the required affidavit. Goeller at paragraphs 9-11, citations deleted. The court 

found the purpose of the UCCJA is to avoid jurisdictional competition and conflict with 

courts of other jurisdictions. Goeller at paragraph 12, citing In re: Palmer (1984), 12 

Ohio St.3d at 196, 12 OBR 259, 465 N.E.2d 1312. The court found the Palmer case

stood for the proposition that a “mechanistic interpretation of R.C. 3109.27 [now R.C. 

3127.23] * * * would not only contravene the clear intent of R.C. 3109.27 but could 

potentially render the custody statutes of this state a nullity.” Id. 

{¶10} It is irrelevant whether the hearing was a review of the parties’ settlement 

agreement or a new motion. The court could have proceeded to hear the motion in 

either case. 
Holmes County, Case No. 10CA013 5 

{¶11} At the hearing, neither party directed the court’s attention to the transcript 

of the hearing buried in amongst numerous other documents in the record. Appellant 

did not offer to amend or supplement his motion with a UCCJA affidavit. Appellant refiled the motion approximately one week after the court dismissed his motion to renew. 

Nevertheless, we find the trial court erred in dismissing the motion for lack of 

jurisdiction. 

{¶12} The first assignment of error is sustained. 

II. 

{¶13} In his second assignment of error, appellant argues the trial court erred in 

awarding appellee attorney fees. Appellee’s counsel requested $1,000.00, but the court 

ordered $500.00. 

{¶14} After the trial court announced the dismissal of appellant’s motion to renew 

his motion for re-allocation of parental rights and responsibilities, appellant withdrew his 

pending contempt motion which had been scheduled to be heard that day. Appellant 

cited judicial economy, and stated that it did not make sense to proceed with the 

contempt motion. Appellant advised the court he would withdraw it and re-file it with the 

new motion to re-allocate parental rights and responsibilities. 

{¶15} Appellee objected, asserting she was prepared to go forward with all 

pending motions. Appellee requested the court dismiss the motion with prejudice, or 

instruct appellant to proceed on the record immediately. Appellee’s counsel informed 

the court appellee had incurred attorney fees for several hours on the day of the hearing 

alone. Counsel also noted appellant had not specified that the contempt motion would 

be “tied in” to his motion for re-allocation of parental rights and responsibilities. 
Holmes County, Case No. 10CA013 6 

{¶16} Our review of the record leads us to conclude the trial court did not err in 

finding appellee was entitled to recover attorney fees. The court and opposing counsel 

were prepared to go forward with the contempt motion. Appellant could have proceeded 

with the show cause motion and if the court found appellee in contempt, it could 

consider that fact in the future. 

{¶17} The second assignment of error is overruled. 

{¶18} For the foregoing reasons, the judgment of the Court of Common Pleas, 

Domestic Relations Division, of Holmes County, Ohio, is affirmed in part and reversed in 

part, and the cause is remanded to the court for further proceedings in accord with law 

and consistent with this opinion. 

By Gwin, P.J., 

Farmer, J., and 

Delaney, J., concur 

 

 _________________________________ 

 HON. W. SCOTT GWIN 

 _________________________________ 

 HON. SHEILA G. FARMER 

 _________________________________ 

 HON. PATRICIA A. DELANEY 

WSG:clw 0303 
[Cite as Dole v. Dole, 2011-Ohio-1314.]

IN THE COURT OF APPEALS FOR HOLMES COUNTY, OHIO 

FIFTH APPELLATE DISTRICT 

JENNIFER DOLE : 

 : 

 Plaintiff-Appellee : 

 : 

 : 

-vs- : JUDGMENT ENTRY 

 : 

RYAN DOLE : 

 : 

 : 

 Defendant-Appellant : CASE NO. 10CA013 

 For the reasons stated in our accompanying Memorandum-Opinion, the judgment of 

the Court of Common Pleas, Domestic Relations Division, of Holmes County, Ohio, is 

affirmed in part and reversed in part, and the cause is remanded to the court for further 

proceedings in accord with law and consistent with this opinion. Costs to be split 

between the parties. 

 _________________________________ 

 HON. W. SCOTT GWIN 

 _________________________________ 

 HON. SHEILA G. FARMER 

 _________________________________ 

 HON. PATRICIA A. DELANEY