[Cite as In re C.W. , 2020-Ohio-2660.]

STATE OF OHIO ) IN THE COURT OF APPEALS )ss: NINTH JUDICIAL DISTRICT COUNTY OF LORAIN )

IN RE: C.W. B.W. C.A. No. 19CA011521

APPEAL FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF LORAIN, OHIO CASE No. 10 JG 30837

DECISION AND JOURNAL ENTRY Dated: April 27, 2020

SCHAFER, Judge. {¶1} Plaintiffs-Appellants, Melva She rwood and Scott Sherwood (colle ctively, the “Sherwoods”), appeal the June 10, 2019 judgment entry of the Lo rain County Court of Common Pleas, Juvenile Division, grantin g the motion of Defendant-Appe llee, Lindsay Eberhardt, to dismiss pending matters for l ack of jurisdiction. For the reas ons that follow, we affirm.

I. {¶1} Due to the exceedingly complicated and lengthy history of this matter, we

summarize the essential facts re levant to the present appeal as follows. {¶2} Ms. Eberhardt is the mother of two minor children born to her a nd father, Andrew

Weaver. C.W. was born Octobe r 3, 2007. B.W. was born June 3, 2009. Melva Sherwood is the paternal grandmother of C.W. a nd B.W. Scott Sherwood is Melva’ s husband and the paternal step-grandfather to the children.2

{¶3} This appeal stems from a dispute regarding custody and visitati on rights over C.W.

and B.W. Melva and Scott Sherw ood (the “Sherwoods”) initially filed a complaint on September 14, 2010, seeking custody of C.W. and B.W. pursuant to R.C. 215 1.23. Then, on May 10, 2011, the Sherwoods filed a motion seeking to establish grandparent v isitation and companionship rights pursuant to R.C. 3109.12 in the altern ative to an award of cust ody. {¶4} In October 2011, all parties invol ved reported a complete resol ution of the case pursuant to a settlement agreement. The settlement agreement s tated that they reached “a resolution of all matters in regards to [the September 14, 2010 c]omplaint” and “all pending

motions before the court are here by resolved and otherwise disp osed of as a result of the resolution set forth herein.” The parties assented to a visitation schedu le, detailed certain terms and conditions of the visitation, and agreed that a court mediator would provide assistance in resolving disputes that might arise pertaining to the children’s visits. The agreed journal entry was submitted to the trial court, signed by t he judge, and filed in the recor d on November 1, 2011. {¶5} Nearly a year after the parties entered the visitation agreemen t, Mr. Weaver passed away due to a drug overdose. Still, Ms. Eberhardt and the Sher woods continued on with the

visitation schedule for the ne xt two years. On October 17, 201 4, the Sherwoods filed a motion in the underlying case, Case No. 10JG30837, requesting that the tr ial court modify the visitation

schedule to increase the Sherw ood’s visitation time with the ch ildren. Ms. Eberhardt responded with her own motion to modify companionship time, contending th at visitation was not in the best interest of her children and seeking to discontinue the visitat ion schedule with the Sherwoods. The Sherwoods then filed a supplemen tal motion to modify companions hip time. On October 6, 2015, the Sherwoods filed a motion for legal custody of C.W. and B.W. pursuant to R.C. 2151.23(A)(2).3

{¶6} The Sherwoods filed a notice of voluntary dismissal on August 2 9, 2016, dismissing their motion for custody and motion to modify grandp arent visitation time. Thereafter, the trial court issued a journal entry acknowledging the Sherwo ods’ dismissal of the motions seeking custody or visitation. The trial court indicated that Ms. Eberhardt’s motion to modify visitation remained pending and set a contested hearing to comm ence on September 19, 2016. {¶7} On October 14, 2016, the trial court issued its judgment entry ruling on matters it considered after the contested hearing. Ms. Eberhardt appealed that judgment entry arguing, in pertinent part, that “the trial court was without ‘jurisdiction to issue the November 1, 2011 Grandparent Visitation Order and was without [j]urisdiction to issue the October 14, 2016 Grandparent Visitation Order.’” In re C.W. , 9th Dist. Lorain Nos. 16CA011044, 17CA011162, 17CA011165, 2018-Ohio-5265, ¶ 21 (“ In re C.W. I ”). {¶8} In In re C.W. I , this Court determined that the juvenile court had “usurped th e statutory authority of R.C. 3109.11” and that it lacked subject matter jurisdiction to issue the October 14, 2016 judgment entry. Id . at ¶ 43. This Court conclude d that the Sherwoods had never invoked the juvenile court’s jur isdiction to order companionshi p or visitation rights pursuant to

R.C. 3109.11. Id . at ¶ 42. Because Ms. Eberhardt’s motion to modify or termina te visitation was the only issue before the juvenile court at the September 19, 2 016 hearing, this court further concluded that the juvenile cour t erred when it sua sponte asse rted jurisdiction under R.C. 3109.11 as a basis for modifying the pa rties’ agreed visitation schedul e and granting the Sherwoods companionship visitation pursuant to that statute. Id . at ¶ 43. Having concluded that the October 14, 2016 judgment entry was void ab initio, we reversed and rem anded the matter to the juvenile

court.4

{¶9} During the pendency of the appeal in In re C.W. I , and following our remand of the matter, the parties presented numerous filings and motions to t he juvenile court in the underlying case, and the court issued several rulings. During that time, several other appeals were taken from the juvenile court’s rulings. The relevance of all that transp ired in the record is not readily apparent in the context of the present appeal. {¶10} Eventually, the judge who issued the October 11, 2016 judgment entry recused, and a visiting judge was appointed in the case. Thereafter, Ms. Eb erhardt filed a motion to dismiss any pending matters for lack of subject matter jurisdiction. T he Sherwoods opposed the motion. On June 10, 2019, the juvenile court issued a judgment entry gr anting the motion to dismiss. The juvenile court conclude d that it lacked jurisdiction to address “the later contempt and the motion to modify [the parties’ agreement] filed by both [the Sherwoods ] and [Ms. Eberhardt].” The judgment entry stated “[t]his case is now concluded and no furt her [c]ourt action i s appropriate.” {¶11} The Sherwoods timely appealed the trial court’s decision raisin g one assignment of

error of our review.

II. Assignment of Error The trial court erred as a matter of law by finding that it did not have subject matter jurisdiction over any pending motion and proceeding in C ase No. 10J[G]30837 where the parties entered into a legally-binding se ttlement agreement on October 17, 2011 which was memorialized into a leg ally binding judgment entry on November 1, 2011 and where this Court has alr eady determined that the trial court had subject matter jurisdiction to enforce the November 1, 2011 judgment entry mem orializing that settlement. {¶12} In their sole assignment of erro r, the Sherwoods argue the juve nile court erred as a matter of law by dismissing the underlying case. The Sherwoods contend that the juvenile court erred by misconstruing t his Court’s decision in In re C.W. I and concluding that it had no5

jurisdiction to act on any “pending motion and proceeding” beca use a visitation order pursuant to R.C. 3109.12 had never been issued in the underlying case. The Sherwoods assert the juvenile court “had subject matter jurisdiction to enforce” the parties’ “legally-binding settlement agreement” set forth in the agr eed journal entry of November 1, 2011. {¶13} “Ohio’s juvenile courts have limited jurisdiction: they can exe rcise only the authority conferred on them by the General Assembly.” State ex rel. C.V. v. Adoption Link, Inc. , 157 Ohio St.3d 105, 2019-Ohio-2118, ¶ 14, citing In re Z.R. , 144 Ohio St.3d 380, 2015-Ohio3306, ¶ 14. The juvenile court does not have “inherent equitab le jurisdiction” to determine grandparent visitation, and “posse sses only the jurisdiction th at the General Assembly has expressly conferred upon it.” In re Gibson , 61 Ohio St.3d 168, 172 (1991), citing Ohio Constitution, Article IV, Section 4(B). “The juvenile court’s determination regarding its subject matter jurisdiction implicates a question of law which this Cou rt reviews de novo.” In re J.L.M. , 9th Dist. Summit No. 28867, 2018-Ohio-2175, ¶ 9. {¶14} “Visitation” encompasses the righ t of a party—who does not have custody of that

child—to visit the child. In re Gibson , 61 Ohio St.3d 168, 171 (1991). “The law does not provide grandparents with inherent legal r ights based simply on the fam ily relationship.” In re H.W. , 114 Ohio St.3d 65, 2007-Ohio-2879, ¶ 9. However, “Ohio law provide s various methods for grandparents to obtain a legal right of access to their grandch ildren outside of the juvenile custody

situation.” In re M.N. , 9th Dist. Wayne No. 07CA0088, 2008-Ohio-3049, ¶ 20. {¶15} R.C. 3190.12 is one statutory method grandparents may use to se ek visitation rights with a grandchild if the child’s mother is unmarried. R.C. 310 9.12(A) provides in pertinent part

that [i]f a child is born to an unmarried woman and if the father of the child has acknowledged the child and that acknowledgment has become final * * *[,] the6

parents of the father * * * may f ile a complaint requesting tha t the court grant them reasonable companionship or vis itation rights with the child. A court may grant the companions hip or visitation rights reques ted under R.C. 3109.12(A) “if it determines that the granting of the * * * companionship or visi tation rights is in the best interest of the child[ren].” R.C. 3109.12(B). In determining whether to grant * * * reasonable companionship or visitation rights with respect to any child, the court shall consider all relevan t factors, including, but not limited to, the factors set forth in [R.C. 3109.051(D)].” “Divisions (C), (K), and (L) of [R.C. 3109.051] apply to the determination of * * * reasonable companionship or visitation rig hts under this section and to an y order granting any such rights that is issued under this section. R.C. 3109.12(B). {¶16} Additionally, R.C. 3109.11 allows a g randparent to file a compl aint in the juvenile court for companionship or visitation rights when a parent of t he child is deceased. A juvenile court may award visitation pur suant to R.C. 3109.11 based on th e same considerations stated in R.C. 3109.12(B), including the relevant factors of R.C. 3109.05 1(D). “Even though [R.C. 3109.11 and 3109.12] grant standing to a nonparent to request visitatio n, the ability to have visitation awarded is conditional upon a findi ng that visitation with the nonparent is in the best interest of

the child.” In re N.C.W. , 12th Dist. Butler No. C A2013-12-229, 2014-Ohio-3381, ¶ 25. {¶17} In their brief on appeal, the Sherwoods argue that the juvenile court erred when it

misconstrued this Court’s decision in In re C.W. I to hold that the juvenile court “had no [] subject matter jurisdiction to act in the case whatsoever, and thus it had no jurisdiction to act further on any pending motion, including enforcing the Sherwoods’ visitati on rights and the trial court’s contempt findings, because a vi sitation order pursuant to R.C. 3109.12 had never bee n issued.” {¶18} Although Ms. Eberhardt moved the court to “dismiss” any pending matters for lack of subject matter jurisdiction, Ms. Eberhardt essentially moved the court to stop acting or7

exercising authority regarding the November 1, 2011 agreed judg ment entry and to cease any additional “proceedings” in t he matter. In its June 10, 2019 j udgment entry ruling on the motion, the juvenile court indicated that, in In re C.W. I , this Court “held that the agreement did not have the necessary language pursuant to law to meet the requisite st andard to be an order for grandparent visitation.” The judgment entry noted that both parties had pe titioned the juvenile court to modify their settlement agreement. The juvenile court concluded “[i]t appears that the original pending motions of the [p]arties were r esolved with a reliance upon thi s agreement, however, the decision of the Court of Appeals clearly states that the agreement was d eficient and as a result the court did not exercise the requisite subject matter jurisdiction over thi s matter to make said agreement an

enforceable court order.” {¶19} In In re C.W. I , Ms. Eberhardt raised an argumen t challenging the juvenile cou rt’s subject matter jurisdiction under R.C. 3109.12 to issue the “‘N ovember 1, 2011 Grandparent

Visitation Order.’” In re C.W. I at ¶ 21. We determined that her argument lacked merit because the November 1, 2011 agreed journal entry memorializing the set tlement agreement between the parties did not involve an exerci se of jurisdiction under R.C. 3109.12. The journal entry did not reflect any finding as to the statutory factors or determinatio n as to the best interest of the children as required by R.C. 3109.12, nor did it expressly grant the She rwoods a right to grandparent visitation or companionship. Id . at ¶ 29-30. Thus, we rejected Ms. Eberhardt’s argument becau se we concluded the juvenile court could not have erred by exercis ing jurisdiction in the November 1, 2011 agreed journal entry when, in fact, it had not exercised such jurisdiction. While the juvenile court appears, at least in part, to have based its Jun e 10, 2019 ruling on conjecture and a

mischaracterization of our deci sion, the ultimate conclusion th at the juvenile cour t reached in its8

June 10, 2019 judgment entry was that the court lacked jurisdic tion to take further action in the

matter. {¶20} In their merit brief, the Sherw oods argue that the juvenile cou rt erred by “dismissing” the case and by “finding that all claims and proce edings in Case No. 10JG30837 were void for want of subject m atter jurisdiction.” However, t he June 10, 2019 judgment entry did not dismiss a pending action or make a finding regarding al l claims and proceedings. Further,

the Sherwoods’ contention that t he juvenile court erred “by fin ding that it did not have subject matter jurisdiction over any pe nding motion and proceeding[,]” overstates the hol ding of the June 10, 2010 judgment entry. The juve nile court found that it was without authority to enforce the November 1, 2011 agreed journal en try and concluded that it “la ck[ed jurisdiction to address the later contempt and the motion to modify [the parties’] agreemen t filed by both [the Sherwoods] and [Ms. Eberhardt].” The judgment entry further stated that t he case was “concluded and no further [c]ourt acti on is appropriate.” {¶21} Any jurisdictional argument notwithstanding, the Sherwoods have not demonstrated prejudice from the juvenile court’s ruling, and it is unclear exactly what relief the Sherwoods are seeking. See App.R. 16(A)(7). Though the record is replete with motions an d filings—including some purporting to assert new claims—the Sher woods have not identified any particular motion or proceeding they believe to be within the j uvenile court’s jurisdiction. Reviewing the June 10, 2019 judgme nt entry, it is unclear what the juvenile court was referring to when it stated that it lacked jurisdiction over “the later cont empt” or the motions to modify the agreement. While the Sherwoods a rgue in their merit brief that the juvenile court’s error was in concluding that it lacked “jurisdiction to act further on any p ending motion, including enforcing the Sherwoods’ visitation rights and the trial court’s contempt findings,” they do not point to the9

record to explain what they belie ve to have been wrongly “dismi ssed” or to show how they were otherwise impacted by th e court’s June 10, 2019 decision. {¶22} As the Sherwoods have not identified any motion or proceeding a s having been improperly dismissed, the Sherwoods are essentially asking this Court for an advisory opinion declaring that the juvenile court may, or must, continue to “ex ercise jurisdiction” with respect to the terms of the settlement agreement memorialized in the Novem ber 1, 2011 agreed journal entry. A decision reversing the June 10, 2019 judgment entry upon spec ulation that the juvenile court may be capable of exercising jur isdiction in some undefined man ner with regard to the November 1, 2011 agreed entry “‘would be completely advisory, and have n o practical effect on the proceedings. This Court may not issue an advisory opinion.’” In re Guardianship of Bakhtiar , 9th Dist. Lorain No. 15CA010721, 2016-Ohio-8199, ¶ 10, quoting In re Emergency Guardianship of Stevenson , 9th Dist. Medina No. 04CA0036-M, 2005-Ohio-997, ¶ 11. {¶23} Based on the foregoing we conclude that the Sherwoods have fail ed to show how they were prejudiced by the June 10, 2019 judgment entry. See Civ.R. 61; R.C. 2309.59. See also

Ohio Edison Co. v. Williams , 9th Dist. Summit No. 23530, 2007-Ohio-5028, ¶ 10 (“An appella nt bears the burden of affirmatively demonstrating the error on ap peal, and substantiating his or her arguments in support.”). Because the Sherwoods have failed to demonstrate that the juvenile court committed prejudicial error as a result of the June 10, 2019 ju dgment entry, and because this Court cannot issue an advisory opinion, t his Sherwood’s assignment of error is not well taken.

III. {¶24} The Sherwoods’ assignment of error is overruled. The judgment of the Lorain County Court of Common Pleas, Juve nile Division, is affirmed. Judgment affirmed.10

There were reasonable grounds for this appeal. We order that a special mandate issue out of this Court, direc ting the Court of Common Pleas, County of Lorain, State of Ohio, to carry this judgment into execution. A certified copy of this journal entry shall constitu te the mandate, pursuant to Ap p.R. 27. Immediately upon the filing hereof , this document shall consti tute the journal entry of judgment, and it shall be file s tamped by the Clerk of the Cour t of Appeals at which time the period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is instructed to mail a notice of entry of this judgment to the parties and to m ake a notation of the mailing in the docket, pursuant to App.R. 30. Costs taxed to Appellants.

JULIE A. SCHAFER FOR THE COURT

CALLAHAN, P. J. TEODOSIO, J. CONCUR.

APPEARANCES: BRENT L. ENGLISH, Attorney at Law, for Appellants. JONATHAN E. ROSENBAUM, Attorney at Law, for Appellee.