[Cite as In re A.W. , 2012-Ohio-1629.]

IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT MONTGOMERY COUNTY

IN RE A.W.

CALVIN CLIFTON WHEELER

Petitioner

v. JENNIFER GADEGBEKU Respondent Appellate Case No. 25017

DECISION AND FINAL JUDGMENT ENTRY April 3rd , 2012

PER CURIAM: {¶ 1} This matter is before the court on Calvin Wheeler’s January 31, 2012 petition for a writ of prohibition. Wheeler seeks an orde r from this Court that prohibits Judge Anthony Capizzi of the Montgomery County Common Pleas C ourt, Juvenile Division, from issuing an order

that commands Wheeler to return the minor ch ild, A.W., to her mother, Jennifer Gadegbeku. {¶ 2} A.W. is the minor child of Wheeler and Gadegbeku, who we re never married. It is alleged that A.W. has been living with Wheeler, his wife, and their daughter in Michigan since April 2010. {¶ 3} On March 1, 2011, Wheeler filed a petition fo r custody of A.W. in the Circuit Court for Ingham County, Michigan, Family Division. Pursuant to an ex-p arte order dated March2 7, 2011, the Michigan court granted Wheeler tem porary sole physical custody of A.W. while Gadegbeku was granted supervised parenting time. The issues of custody, parenting time, and child support were referred to a c onciliator for further proceedings. {¶ 4} Shortly after the March 7, 2011 ex-parte order was issued by the Michigan court, Gadegbeku filed a complaint for custody and motion for an ex-parte order/hearing in the Common Pleas Court of Montgomery County, Oh io, Juvenile Division. On March 17, 2011, the Ohio juvenile court ordered Wheeler to return A.W. to Gadegbeku immediately, finding that: The mother is the sole legal custodian pursuant to Ohio Revised Code §3109.04 and therefore remains th e sole legal custodian. 1 The father shall return the child to the mother forthwith and any law enforcement officer is authorized to assist

the mother in the return of the child to her. The mother and child are both residents

of Ohio. The child was removed from the mo ther by the father without the mother’s permission. Father is to apply to Oh io Court for any further relief sought. {¶ 5} A.W. remained in Wheeler’s custody. On June 12, 2011, the Michigan family court adopted a referee’s recommendation that Wheeler be gr anted sole legal and physical custody of A.W. with Gadegbeku entitled to exercise parenting time. The court noted that a question of jurisdiction had been raised due to Gadegbeku receiving an ex-parte order from the Montgomery County, Ohio juvenile court that gran ted her physical custody of A.W. However, the referee found that Michigan ha d “home state” jurisdiction under the Uniform Child Custody

1 In its motion to dismiss, Respondent cites R.C. 3109.042 as its basis for jurisdiction to hear custody matters involving unmarried parents. That section states that “[a]n unmarried female who gives birth to a child is the sole residential parent and legal custodian of the child until a court of competent jurisdiction issues an order designating another person as the residential parent and legal custodian.”3 Jurisdiction and Enforcement Act (“UCCJEA”), as codified in Michigan law. Both Wheeler and Gadegbeku participated in the child-custody proceedings. {¶ 6} In an effort to resolve the conflicting custody orders issued by the Michigan and Ohio courts, Wheeler filed a petition for cust ody in the Montgomery County, Ohio juvenile court on November 18, 2011. The matter proceeded to a hearing before a magistrate on January 23, 2012, the decision from which was adopted by the juvenile court on Janua ry 27, 2012. The court

found that A.W. had been ordered to be return ed to Gadegbeku on March 17, 2012, but Wheeler did

not return the child. The court further found that by filing his petition for custody in the Montgomery County court, Wheeler submitted himsel f to the jurisdiction of the court and, thus, remained under a legal duty to return A.W. forthwit h. The court scheduled the issue of custody of A.W. for trial to be held April 20, 2012.

Writ of Prohibition {¶ 7} The writ of prohibition has been describe d as an “extraordinary remedy which is customarily granted with caution and restraint, * * * issued only in cases of necessity arising from the inadequacies of other remedies.” State ex rel. Henry v. Britt , 67 Ohio St.2d 71, 73, 424 N.E.2d 297 (1981). The purpose of the writ is to restrain lower courts from exceeding their jurisdiction. {¶ 8} In order to be entitled to a writ of pr ohibition, Wheeler must establish “(1) that the court or officer against whom the writ is soug ht is about to exercise judicial or quasi-judicial power, (2) that the exercise of that power is unauthorized by law, and (3) that denying a writ will result in injury for which no othe r adequate remedy exists in th e ordinary course of law.” Goldstein

v. Christiansen , 70 Ohio St.3d 232, 234-35, 638 N.E.2d 541 (1994), citing State ex rel. Koren v. Grogan , 68 Ohio St.3d 590, 629 N.E.2d 446 (1994). In cases “where jurisdicti on is patently and4 unambiguously lacking, the requirement of the lack of an adequate remedy at law need not be proven, because the availability of alternate remedies lik e appeal is immaterial.” Rosen v. Celebrezze , 117 Ohio St.3d 241, 2008-Ohio-853, 883 N.E.2d 420, ¶ 18. {¶ 9} Wheeler argues that Judge Capizzi patently and unambiguously lacked jurisdiction under the UCCJEA to order the return of A.W. since the Circuit Court for Ingham County, Michigan previously granted Wheeler sole physical custody of the child. Respondent, in opposition, contends that Wheeler’s pe tition claims errors in the exer cise of the juvenile court’s jurisdiction rather than a complete lack of subject-matter jurisdiction. {¶ 10} There is no dispute that the Montgome ry County, Ohio juvenile court has jurisdiction to determine custody matters. R.C. 2151.23(A). That authority is subject to the UCCJEA, however, when the matter involves modifyin g a child-custody deter mination made by an

out-of-state court. In such a situation, R.C. 3127.17 provides: Except as otherwise provided in sec tion 3127.18 of the Revised Code, a court of this state may not modify a child custody determination made by a court of another state unless the court of this state has jurisdiction to make an initial determination under division (A)(1) or (2) of section 3127.15 of the Revised Code and one of the following applies: (A) The court of the other state deter mines that it no longer has exclusive, continuing jurisdiction under section 3127.16 of the Revised Code or a similar

statute of the other state or that a court of this stat e would be a more convenient

forum under section 3127.21 of the Revised C ode or a similar statute of the other

state.5 (B) The court of this state or a court of the other state determines that the child, the child's parents, and any person actin g as a parent do not presently reside in

the other state. {¶ 11} With respect to the first requirement , R.C. 3127.15(A) specifies the following jurisdictional grounds for an Ohio court to make an initial determinati on in a child-custody proceeding: (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 c ontinues to live in this state. 2 (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 s imilar 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 significan t connection with this state other than

2 “‘Home state’” means the state in which the child lived with a parent or a person acting as a parent for at least six c onsecutive months immediately preceding the commencement of a child custody proceeding * * * .” R.C. 3127.01(B)(7).6 mere physical presence. (b) Substantial evidence is available in this state concerning the ch ild's care, protection, training, and pers onal relationships. (3) All courts having jurisdiction under division (A)(1) or (2) of this section have declined to exercise jurisdiction on th e 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 simila r statute enacted by another state. {¶ 12} Respondent contends that it expressly found in its March 17, 2011 order that

A.W.’s “home state” is Ohio because both A.W. and Gadegbeku are reside nts of Ohio, and A.W. was removed from Ohio by Wheeler without Ga degbeku’s permission. R.C. 3127.22 governs the effect of unjustifiable conduct upon the jurisdiction of an Ohio court. “Subsection (A) of the statute generally states that any court of our st ate should decline to exercise its authority over a custody matter when the acts forming the foundati on of its jurisdiction constituted unjustifiable

conduct.” McGhan v. Vettel , 11th Dist. Ashtabula No. 2008-A-0036, 2008-Ohio-6063, ¶ 37. This

is not a situation where either party has invoked the Ohio court’ s jurisdiction by engaging in unjustifiable conduct. Instead, by finding that it has home-state jurisdicti on, the juvenile court’s order presumes that Wheeler improperly, and with unjustifiable conduct, i nvoked the jurisdiction of the Michigan family court, thereby nullifying the effect of its custody determination. {¶ 13} Respondent’s jurisdictional argument is flawed. A lthough the court does not expressly utilize R.C. 3127.22(A), the procedure ther ein “cannot be employed in a second court to contest the validity of the original order. In other words, it must be assumed that, if applicable, the issue of unjustifiable conduct was ra ised and fully litigated in the first court before the original7

decision was made.” Id . at ¶ 39. The Montgomery County j uvenile court may not simply ignore the custody determination of the Michigan fa mily court on the basis that Wheeler invoked the Michigan court’s jurisdiction by way of unjustifiable conduct. That court was competent to fully litigate this and other issues raised by the parties. After hearing testimony from both parties and multiple witnesses regarding the length of time and circumstan ces under which A.W. had been living in Michigan prior to Wheeler filing his complaint for custody in the Ingham County family court, the court made the following determination that it had home-state jurisdiction to hear the

case: 3. Jurisdiction: Referee finds that the parties’ child [A.W.] resided in the state of Michigan since on or about April 29, 2010, which is more than six consecutive months prior to Plaintiff filing a Verified Complaint for Custody on March 1, 2011. Referee finds that pur suant to MCL722.1102(g), the state of Michigan has “home state” jurisdiction unde r the UCCJEA as follows: “Home state” means the state in which a child lived with a parent or a person acting as a parent for at least six months immediately before the commencement of a child-custody proceeding. June 12, 2011 Referee Recommendation and Order Regarding Plaintiff’s Complaint for Custody and Objections to the Conciliator’s

Recommendation. {¶ 14} We find that the facts alleged in Wheeler’s petition establish that Michigan was the home state of A.W. prior to Wheeler filing his complaint for custody on March 1, 2012. R.C. 3127.15(A)(1); MCL722.1102(g). As a result, th e Montgomery County juvenile court lacked the authority to modify the Michigan court’s March 7, 2011 custody order because the Ohio court8 did not have jurisdiction at that point to make an initial determination in the custody matter. R.C.

3127.17. {¶ 15} Nor does the fact that Respondent found Gadegbeku to be the sole custodian

of the child under R.C. 3109.042 result in a different conclusion. That statut e states that “[a]n unmarried female who gives birth to a child is the sole residential parent a nd legal custodian of the child until a court of competent jurisdiction issues an order designating another person as the residential parent and legal custodian.” We find that the Michigan family court’s custody determination is an order by a court of competent jurisdiction designating a person other than Gadegbeku the custodian of A.W. {¶ 16} Finally, contrary to Respondent’s argu ment, this is not a case where the petition has raised claims amoun ting to mere error in the trial court’s jurisdiction. State ex rel.

Florence v. Zitter , 106 Ohio St.3d 87, 2005-Ohio-3804, ¶ 26. The Montgomery County, Ohio juvenile court’s lack of juri sdiction under the UCCJEA “is a defect in the Ohio court’s subject-matter jurisdiction.” Rosen , 117 Ohio St.3d 241, 2008-Ohio-853, 883 N.E.2d 420, at ¶ 44. R.C. 3127.15(A) sets forth the exclusive jurisd ictional basis for making a child custody determination by a court of Ohio. See R.C. 3127.15(B). {¶ 17} In conclusion, we find that the Montgo mery County juvenile court lacked jurisdiction to make an initial cu stody determination in its March 17, 2011 order. Accordingly, we hereby GRANT Wheeler’s petition for a writ of prohibition to prevent Judge Capizzi from proceeding with the issue of child custody in th e underlying case. Respondent’s motion to dismiss is OVERRULED. Custody of A.W. shall remain with Wheeler pursuant to the determination made by the Circuit Court for Ingham County, Michigan.9

SO ORDERED.

THOMAS J. GRADY, Presiding Judge

MIKE FAIN, Judge

JEFFREY E. FROELICH, Judge

To The Clerk: Within three (3) days of ente ring this judgment on the journal, you are directed to serve on all parties not in default for failure to appear notice of the judgment and the date of its entry upon the journal, pursuant to Civ.R. 58(B).

THOMAS J. GRADY, Presiding Judge

Copies provided to: Eugene Robinson Attorney for Petitioner 131 N. Ludlow Street, Suite 304 Dayton, Ohio 45402 John Cumming Attorney for Hon. Anthony Capizzi 301 W. Third Street, 5 th Floor Dayton, Ohio 45422 Jennifer Gadegbeku Respondent, Pro Se10 4403 Burkhardt Avenue, #C2 Dayton, Ohio 45431 Hon. Anthony Capizzi Montgomery County Juvenile Court 380 W. Second Street Dayton, Ohio 45422

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