[Cite as State ex rel. M.L. v. O'Malley, 2014-Ohio-3927.]

 Court of Appeals of Ohio 

EIGHTH APPELLATE DISTRICT 

COUNTY OF CUYAHOGA 

JOURNAL ENTRY AND OPINION 

No. 101191 

STATE OF OHIO, EX REL., M.L. 

RELATOR 

vs. 

JUDGE THOMAS F. O’MALLEY, ET AL. 

RESPONDENTS 

JUDGMENT: 

WRIT DENIED

Writ of Prohibition 

Motion Nos. 474719 and 476078 

Order No. 477854 

RELEASE DATE: September 10, 2014 
ATTORNEYS FOR RELATOR

John J. Schneider 

Gerald R. Walton 

Gerald R. Walton & Associates 

2800 Euclid Avenue 

Suite 320 

Cleveland, Ohio 44115 

ATTORNEYS FOR RESPONDENTS

Timothy J. McGinty 

Cuyahoga County Prosecutor 

Charles E. Hannan 

Assistant County Prosecutor 

The Justice Center - 8th Floor 

1200 Ontario Street 

Cleveland, Ohio 44113 
MARY EILEEN KILBANE, J.: 

{¶1} Relator, M.L., filed this writ of prohibition seeking to prevent respondents, 

Judge Thomas F. O’Malley, Magistrate Eleanore E. Hilow, and the Cuyahoga County 

Juvenile Court from exercising jurisdiction with respect to the custody of her minor child, 

M.A.H. 

{¶2} Relator was granted leave to file a second amended complaint and 

respondents then moved for summary judgment, which relator opposed. For the reasons 

that follow, we grant respondents’ motion for summary judgment and deny the writ. 

{¶3} M.A.H. was born in Ohio on February 22, 2010. Relator is M.A.H.’s 

mother. Relator admits J.H. is M.A.H.’s father. Relator never married J.H., however, 

relator signed a voluntary acknowledgment of paternity affidavit that was filed in juvenile 

court that established J.H. is M.A.H.’s legal father. In re: M.A.H., 8th Dist. Cuyahoga 

No. 97963, 2012-Ohio-2318, ¶ 2. Relator maintains that she moved to New Jersey in 

April 2011. Father testified that relator relocated to New Jersey at the end of August 

2011. Id. at ¶ 5. It is undisputed that relator and M.A.H. lived in Ohio until at least April 

30, 2011. Id. at ¶ 9, 12. 

{¶4} On April 21, 2011, Father filed an application to determine custody of 

M.A.H. in Cuyahoga County Court of Common Pleas, Juvenile Division, Case No. CU 

11107326. 

{¶5} There is no dispute that the Cuyahoga County Juvenile Court had 

jurisdiction over father’s application to determine custody pursuant to the Uniform Child 
Custody Jurisdiction and Enforcement Act (“UCCJEA”). However, relator contended that 

the juvenile court lacked jurisdiction to issue a custody order because Father did not 

properly serve her. 

{¶6} The respondent magistrate rendered a decision that designated Father as the 

residential parent and legal custodian of M.A.H. The respondent judge adopted the 

magistrate’s decision on December 5, 2011. The respondent judge denied relator’s Civ.R. 

60(B) motion, and relator pursued an appeal of that decision. 

{¶7} This court found that Father never perfected service on relator and ordered 

the juvenile court to vacate the custody order and return M.A.H. to relator. In re: M.A.H., 

8th Dist. Cuyahoga No. 97963, 2012-Ohio-2318, ¶ 23, 25. Although relator also alleged on 

appeal that the trial court should have dismissed the matter for failure of service pursuant 

to Civ.R. 4(E), this court found that the motion to dismiss was properly denied. Id. at ¶ 

26-28. The matter was remanded to the juvenile court with instructions. M.A.H. was 

returned to relator’s custody sometime after this court’s decision was released on May 24, 

2012. 

{¶8} Father filed a subsequent application to determine custody in the Cuyahoga 

County Juvenile Court on July 6, 2012. Relator moved to dismiss that matter, which 

respondents denied and relator attempted to appeal. This court dismissed that appeal on 

April 11, 2013, for lack of a final, appealable order. In re: M.A.H., 8th Dist. Cuyahoga 

No. 99353, entry no. 463942. 

{¶9} Relator indicates that she initiated custody proceedings in New Jersey. On 
April 1, 2014, the New Jersey family court found that Ohio is the child’s home state and 

denied relator’s motion to transfer jurisdiction to New Jersey. There is evidence that the 

Ohio court communicated with the New Jersey court concerning this matter. 

{¶10} Relator filed her initial complaint for a writ of prohibition with this court on 

March 31, 2014. Respondents moved for summary judgment on various grounds 

including that relator had failed to comply with Loc.App.R. 45(B)(1)(a). Relator moved 

for leave to amend her complaint seeking an opportunity to comply with the rule. Relator 

was granted leave and filed her second amended complaint on June 2, 2014. Respondents 

moved for summary judgment on the second amended complaint and relator has opposed 

the motion. Relator has not satisfied the requirements for issuance of a writ in this case, 

which is denied for the reasons that follow. 

{¶11} In order for this court to issue a writ of prohibition, relator is required to 

demonstrate each prong of the following three-part test: (1) respondent is about to exercise 

judicial power; (2) the exercise of judicial power by respondent is not authorized by law; 

and (3) there exists no other adequate remedy in the ordinary course of the law. State ex 

rel. Florence v. Zitter, 106 Ohio St.3d 87, 2005-Ohio-3804, 831 N.E.2d 1003, ¶ 14. In 

addition, prohibition does not lie if relator has or had an adequate remedy in the ordinary 

course of the law, even if the remedy was not employed. State ex rel. Lesher v. Kainrad, 

65 Ohio St.2d 68, 417 N.E.2d 1382 (1981); State ex rel. Sibarco Corp. v. Berea, 7 Ohio 

St.2d 85, 218 N.E.2d 428 (1966). 

{¶12} Prohibition does not lie unless it clearly appears that the court possesses 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). 

Also, prohibition will not issue to prevent an erroneous judgment, or serve the purpose of 

an appeal, or to correct errors committed by the lower court in deciding questions within 

its jurisdiction. State ex rel. Sparto v. Juvenile Court of Darke Cty., 153 Ohio St. 64, 90 

N.E.2d 598 (1950). Furthermore, prohibition should be used with great caution and not 

issue in doubtful cases. State ex rel. Merion v. Tuscarawas Cty. Court of Common Pleas, 

137 Ohio St. 273, 28 N.E.2d 641 (1940). 

{¶13} However, when a court is patently and unambiguously without jurisdiction to 

act, the existence of an adequate remedy at law will not prevent the issuance of a writ of 

prohibition. Zitter at ¶ 16. Nevertheless, absent a patent and unambiguous lack of 

jurisdiction a court possessing general jurisdiction of the subject matter of an action has 

the authority to determine its own jurisdiction. Id. at ¶ 15. A party challenging the court’s 

jurisdiction possesses an adequate remedy at law through an appeal from the court’s 

judgment that it possesses 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); State ex rel. Bradford v. Trumbull Cty. Court, 64 Ohio St.3d 502, 1992-Ohio-132, 

597 N.E.2d 116. Finally, this court possesses discretion in issuing a writ of prohibition. 

State ex rel. Gilligan v. Hoddinott, 36 Ohio St.2d 127, 304 N.E.2d 382 (1973). 

{¶14} Relator contends that respondents patently and unambiguously lack 

jurisdiction. Having thoroughly reviewed the evidence presented, the facts, and the law, 
relator has not established that jurisdiction is patently and unambiguously lacking. 

{¶15} Respondents have statutory jurisdiction to determine the custody of children 

in this state. R.C. 2151.23. The dispute focuses on whether Ohio or New Jersey has 

jurisdiction over the custody determination for M.A.H. pursuant to the Uniform Child 

Custody Jurisdiction and Enforcement Act (“UCCJEA”). The purpose of the UCCJEA is 

to avoid jurisdictional conflicts between the states in custody matters. Rosen v. 

Celebrezze, 117 Ohio St.3d 241, 2008-Ohio-853, 883 N.E.2d 420, ¶ 21 (the UCCJEA 

gives “jurisdictional priority and exclusive continuing jurisdiction to the home state. * * * 

[and] eliminates a determination of ‘best interests’ of a child from the original 

jurisdictional inquiry.”) 

{¶16} R.C. 3127.15 governs the jurisdiction of the Ohio court to make an initial 

custody determination as follows: 

(A) Except as otherwise provided in section 3127.18 of the Revised Code, a 

court of this state has jurisdiction to make an initial determination in a child 

custody proceeding only if one of the following applies: 

(1) This state is the home state of the child on the date of the commencement 

of the proceeding, or was the home state of the child within six months 

before the commencement of the proceeding and the child is absent from this 

state but a parent or person acting as a parent continues to live in this state. 

(2) A court of another state does not have jurisdiction under division (A)(1) 

of this section or a court of the home state of the child has declined to 

exercise jurisdiction on the basis that this state is the more appropriate forum 

under section 3127.21 or 3127.22 of the Revised Code, or a similar statute of 

the other state, and both of the following are the case: 

(a) The child and the child’s parents, or the child and at least one parent or a 

person acting as a parent, have a significant connection with this state other 

than mere physical presence. 
(b) Substantial evidence is available in this state concerning the child’s care, 

protection, training, and personal relationships. 

 (3) All courts having jurisdiction under division (A)(1) or (2) of this section 

have declined to exercise jurisdiction on the ground that a court of this state 

is the more appropriate forum to determine the custody of the child under 

section 3127.21 or 3127.22 of the Revised Code or a similar statute enacted 

by another state. 

(4) No court of any other state would have jurisdiction under the criteria 

specified in division (A)(1), (2), or (3) of this section. 

(B) Division (A) of this section is the exclusive jurisdictional basis for 

making a child custody determination by a court of this state. 

(C) Physical presence of, or personal jurisdiction over, a party or a child is 

not necessary or sufficient to make a child custody determination. 

{¶17} “Home state” is defined as 

the state in which a child lived with a parent or a person acting as a parent for 

at least six consecutive months immediately preceding the commencement of 

a child custody proceeding and, if a child is less than six months old, the state 

in which the child lived from birth with any of them. A period of temporary 

absence of any of them is counted as part of the six-month or other period. 

R.C. 3127.01(B)(7). 

{¶18} The juvenile court is mandated by R.C. 2151.23(F)(1) to “exercise its 

jurisdiction in child custody matters in accordance with sections 3109.04 and 3127.01 to 

3127.53 of the Revised Code and, as applicable, sections 5103.20 to 5103.22 or 5103.23 to 

5103.237 of the Revised Code.” 

{¶19} Pursuant to R.C. 3127.01(B)(5), a child custody action is commenced by the 

filing of the first pleading in a proceeding. Further, R.C. 3127.15 explicitly permits the 
court to make a child custody determination without personal jurisdiction over a party or a 

child. Accordingly, the commencement provisions Civ.R. 3(A) do not apply for 

determining the juvenile court’s jurisdiction pursuant to R.C. 3127.15. 

{¶20} M.A.H. lived in Ohio from birth until at least April 30, 2011, and then, 

pursuant to respondents’ initial custody determination, from December 3, 2011 until 

sometime after May 24, 2012. Based on the child’s periods of residence in Ohio, Ohio 

was the home state when father filed his first application to determine custody. Relator, 

however, maintains that M.A.H.’s residence in Ohio with her Father under the prior order 

(between 12/3/11 and 5/24/12) should be disregarded because the order was subsequently 

vacated, and it should be presumed that M.A.H. would have instead resided in New Jersey 

during that time period. Relator argues that a void judgment operates to return the parties 

to the status that existed prior to the judgment. However, that would mean Ohio is the 

home state because this was the status prior to the initial determination. Instead, relator is 

advocating that we find New Jersey to be the home state, which was not the status prior 

to the initial determination. 

{¶21} Relator’s argument that New Jersey is the home state depends on the 

following being true: (1) that it would be appropriate to disregard M.A.H.’s residency in 

Ohio with her father pursuant to the initial determination; (2) it is appropriate to assume 

M.A.H. would have resided in New Jersey but for the initial determination; and (3) the fact 

that the respondent court assigned father’s second application a new case number negates 

the commencement of the initial custody proceedings in Ohio. Relator has not presented 
any analogous case that has applied this line of reasoning. Employing this convoluted 

application of the law would appear to subvert the purpose of the UCCJEA, which is to 

avoid interstate jurisdictional custody conflicts. 

{¶22} Relator places great significance on the juvenile court’s ministerial act of 

giving father’s second application for custody a new case number. However, relator does 

not question, and admits, that respondents would have jurisdiction to proceed if the second 

application was pending under the previous case number. 

{¶23} Under these circumstances, respondents have determined that Ohio has 

jurisdiction to proceed on the custody determination for M.A.H. under the UCCJEA. 

Furthermore, the respondent magistrate did communicate with the New Jersey family 

court, and the New Jersey court also determined that Ohio is the home state for purposes 

of UCCJEA.1

 Therefore, relator has not established a patent and unambiguous lack of 

jurisdiction, and any error by the court in determining its own jurisdiction can be 

adequately addressed by appealing the final order. France v. Celebrezze, 8th Dist. 

Cuyahoga No. 98147, 2012-Ohio-2072, ¶ 7, citing State ex rel. Hughley v. McMonagle, 

121 Ohio St.3d 536, 2009-Ohio-1703, 905 N.E.2d 1220; State ex rel. Jaffal v. Calabrese, 

 1

Relator’s second amended complaint at paragraph 40 averred that a certified 

copy of the New Jersey court’s order is part of the record before this court as an 

attachment to respondents’ initial motion for summary judgment. Accordingly, 

relator’s argument that this court should strike another copy of the same document 

that was attached as an exhibit to respondents’ subsequent motion for summary 

judgment is moot because it was already in the record without objection. Further, 

even if the court record was not made part of the record, we can take judicial notice 

of it. France at ¶ 6. There is an obvious clerical error on the document because the 

file date stamp should be April 1, 2014, rather than April 1, 2013. The order was 
105 Ohio St.3d 440, 2005-Ohio-2591, 828 N.E.2d 107 (“any decision rendered by [the 

respondent judge] with regard to jurisdiction under the UCCJEA is subject to an appeal, 

which also provides [relator] with an adequate remedy at law.”) 

{¶24} This case is unlike In re: V.K.B. v. Smith, 138 Ohio St.3d 84, 

2013-Ohio-5477, 3 N.E.2d 1184, where the Ohio Supreme Court found that an appeal 

would not be an adequate remedy under the following circumstances: 

(1) custody has been removed from a parent who previously had been 

awarded permanent custody, (2) custody is awarded to a nonparent in an ex 

parte proceeding, (3) the juvenile court is not complying with the 

requirements of the Uniform Act or other applicable law, and (4) the 

juvenile court has issued a “temporary” order with no indication of when a 

hearing or other action might be taken to resolve the case. 

Id. at ¶ 27. None of those circumstances are present in this case. 

{¶25} In re: V.K.B. did not involve a question of whether the juvenile court was 

deprived of jurisdiction because of assigning a second application for custody 

determination a separate case number rather than proceeding with the custody 

determination in the initially filed matter. In that case, V.K.B. was named the custodial 

parent by an Ohio court in 2009. V.K.B. relocated to Arizona in 2010 and notified the 

Ohio court. In 2012, V.K.B. and her child temporarily returned to Ohio. V.K.B. went to 

Arizona for a job interview and left her child in the care of V.K.B.’s mother. During this 

time, the child’s grandfather filed an ex parte motion with an Ohio court and was granted 

emergency custody pursuant to R.C. 3127.18. R.C. 3127.18 pertains to temporary 

 

entered on April 1, 2014, and therefore, could not have been filed in 2013.
emergency jurisdiction and does not depend on a home state analysis for purposes of 

triggering jurisdiction. This matter does not involve a court order based on temporary 

emergency custody. 

{¶26} There was no question in In re: V.K.B. that the child had resided in Arizona 

for two years prior to the Ohio court’s 2012 order, and that Arizona was the child’s home 

state. V.K.B. commenced a child-custody enforcement action in Arizona based on the 

2009 order that had awarded her custody. The Ohio court had exercised emergency 

jurisdiction without communicating with the Arizona court as required by statute and 

failed to establish a period for the duration of its order as required by R.C. 3127.18(C). 

Finally, the Ohio Supreme Court noted that the order granted custody to a grandparent 

who, unlike a parent does not have fundamental rights in the care and 

custody of a child. “Within the framework of the statutes, the overriding 

principle in custody cases between a parent and nonparent is that natural 

parents have a fundamental liberty interest in the care, custody, and 

management of their children.” 

(Citations omitted.) Id. at ¶ 16, quoting In re Hockstok, 98 Ohio St.3d 238, 

2002-Ohio-7208, 781 N.E.2d 971, ¶ 16 

{¶27} In recognizing that “Ohio law has consistently applied the principle that 

appeal is an adequate remedy in cases involving child custody” the Ohio Supreme Court 

cited State ex rel. Mosier v. Fornof, 126 Ohio St.3d 47, 2010-Ohio-2516, 930 N.E.2d 305. 

 The court specifically found Mosier distinguishable from V.K.B., on the grounds that 

Mosier involved a “dispute * * * between parents, both of whom have a fundamental 

constitutional interest in the care, custody, and management of their children.” In re: 
V.K.B., 138 Ohio St.3d 84, 2013-Ohio-5477, 3 N.E.2d 1184 at ¶ 89. Therefore, adhering 

to the reasoning contained in V.K.B., we find an appeal would be an adequate remedy to 

challenge the court’s authority to issue a custody determination in this case because it 

involves a dispute between parents. 

{¶28} Further, this matter does not involve the exercise of temporary emergency 

jurisdiction, but rather involves respondents exercising jurisdiction with the belief that 

Ohio is the home state as a matter of law. 

{¶29} For all of the reasons set forth above, relator has not established the 

requisites for a writ of prohibition. Respondents do not patently and unambiguously lack 

jurisdiction to proceed, and an appeal provides an adequate remedy at law. Dzina v. 

Celebrezze, 108 Ohio St.3d 385, 2006-Ohio-1195, 843 N.E.2d 1202. Respondents motion 

for summary judgment is granted. Relator to pay costs. This court directs the clerk of 

court to serve all parties notice of this judgment and its date of entry upon the journal as 

required by Civ.R. 58(B). 

{¶30} Writ denied. 

 

 

MARY EILEEN KILBANE, JUDGE 

KENNETH A. ROCCO, P.J., and 

LARRY A. JONES, SR., J., CONCUR