[Cite as Thompson v. Thompson, 188 Ohio App.3d 199, 2010-Ohio-2534.]

STATE OF OHIO, CARROLL COUNTY 

IN THE COURT OF APPEALS 

SEVENTH DISTRICT 

THOMPSON, 

 APPELLANT, 

v. 

THOMPSON, 

 APPELLEE. 

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 CASE NO. 09-CA-861 

OPINION 

CHARACTER OF PROCEEDINGS: Civil Appeal from Court of Common 

Pleas, Domestic Relations Division of 

Carroll County, Ohio 

Case No. 08DRA25692 

JUDGMENT: Affirmed 

APPEARANCES: 

Lorrie E. Fuchs, for appellant. 

Diane J. Thompson, pro se. 

JUDGES: 

Hon. Gene Donofrio 

Hon. Cheryl L. Waite 

Hon. Mary DeGenaro 

 

 Dated: June 4, 2010 

DONOFRIO, J. 
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{¶1} Plaintiff-appellant, David Thompson, appeals from a Carroll County 

Common Pleas Court judgment granting a divorce between him and defendantappellee, Diane Thompson, and finding Florida to be the home state of the parties’ 

children. 

{¶2} The parties were married on July 5, 1985. Seven children were born as 

issue of the marriage: Deborah (d.o.b. 11/17/92); Jeremiah (d.o.b. 3/13/96); Gabrielle 

(d.o.b. 5/9/97); Sarah (d.o.b. 6/4/98); Noah (d.o.b. 11/11/99); Lucas (d.o.b. 1/9/02); and 

Victoria (d.o.b. 10/13/03). 

{¶3} Sometime in 2005, appellee left Ohio with the children. It is unclear 

exactly where appellee went initially. But it appears that she and the children spent 

some time in Texas before moving to Florida. By November 2007, appellee and the 

children were living in Florida, where they have remained. 

{¶4} Appellant filed a complaint for divorce on November 4, 2008. In the 

complaint, he sought custody of the parties’ children. At the time, he was unaware of 

where appellee and the children were living. 

{¶5} On December 22, 2008, a letter was received by the Carroll County Clerk 

of Courts from Legal Services of North Florida stating that it was representing appellee 

in a dissolution action filed in Florida. 

{¶6} On June 24, 2009, a copy of a document filed in a Florida court was filestamped and made a part of the record in this case. The document was titled Verified 

Ex-Parte Motion for Temporary Injunction to Prevent Removal of Minor Child(ren) and 

Request for Confidential Filing of Address. In this document, appellee requested that 

the Florida court issue a temporary injunction to prevent the removal of the children 

from its jurisdiction and allow her to file her address confidentially. In support of her 

requests, appellee asserted that she feared for her safety and the children’s safety. 

She detailed an extensive history of domestic violence by appellant. This is the only 

document in the record filed by appellee. 

{¶7} The trial court proceeded with the divorce hearing. Appellee did not 

appear, nor did an attorney appear on her behalf. The trial court heard testimony from 
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appellant, his mother, and his sisters. 

{¶8} The court made the following findings in its judgment entry granting 

appellant a divorce from appellee. Appellee removed the children from Ohio sometime 

during 2005, and they have not since returned. Since November 2007, appellee and 

the children have resided in Okaloosa County, Florida. Pursuant to the Uniform Child 

Custody Jurisdiction and Enforcement Act, the children’s home state is Florida. 

Therefore, the court cannot exercise personal jurisdiction over the children nor issue 

any order with respect to the allocation of parental rights and responsibilities. 

{¶9} Appellant filed a timely notice of appeal on July 24, 2009. 

{¶10} Appellee has failed to file a brief in this matter. Therefore, we may 

consider appellant's statement of the facts and issues as correct and reverse the 

judgment if appellant's brief reasonably appears to sustain that action. App.R. 18(C). 

{¶11} Appellant raises a single assignment of error, which states: 

{¶12} “The trial court abused its discretion and committed an error of law when it 

failed to find that the home state for the children was the state of Ohio and when it failed 

to award custody of the children to the plaintiff.” 

{¶13} Appellant argues that the trial court should have found Ohio to be the 

children’s home state and awarded custody to him. He points out that the evidence 

demonstrated that appellee removed the children from Ohio in 2005 and failed to 

disclose their whereabouts to him. Appellant alleges that appellee did not enroll the 

children in school or obtain a job, so as to avoid being located by him. 

{¶14} The Uniform Child Custody Jurisdiction and Enforcement Act (“UCCJEA”) 

was enacted in 1997 to address interstate recognition and enforcement of child-custody 

orders. R.C. 3127.01(A). 

{¶15} A trial court’s decision to exercise jurisdiction pursuant to the UCCJEA is a 

matter within its discretion. Rodriguez v. Frietze, 4th Dist. No. 04CA14, 2004-Ohio7121, at ¶22. Thus, we will not reverse the trial court’s decision on this matter absent 

an abuse of discretion. An abuse of discretion connotes more than an error of law; it 

implies that the trial court’s judgment is unreasonable, arbitrary, or unconscionable. 
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Blakemore v. Blakemore (1983), 5 Ohio St.3d 217, 219. 

{¶16} The record does not identify any prior custody orders in this case. As set 

out in R.C. 2111.08, because appellant and appellee were married, they had equal 

rights to the custody of their children: 

{¶17} “The wife and husband are the joint natural guardians of their minor 

children and are equally charged with their care, nurture, welfare, and education and the 

care and management of their estates. The wife and husband have equal powers, 

rights, and duties and neither parent has any right paramount to the right of the other 

concerning the parental rights and responsibilities for the care of the minor * * *.” 

{¶18} Because the parties had equal rights to the care and custody of the 

children and because there was no previous order concerning the children’s custody, 

this case involved an initial custody determination. 

{¶19} R.C. 3127.15 deals with a court’s jurisdiction to make initial custody 

determinations under the UCCJEA: 

{¶20} “(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: 

{¶21} “(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. 

{¶22} “(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: 

{¶23} “(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. 
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{¶24} “(b) Substantial evidence is available in this state concerning the child's 

care, protection, training, and personal relationships. 

{¶25} “(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 * * *. 

{¶26} “(4) No court of any other state would have jurisdiction under the criteria 

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

{¶27} “(B) Division (A) of this section is the exclusive jurisdictional basis for 

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

{¶28} “(C) Physical presence of, or personal jurisdiction over, a party or a child is 

not necessary or sufficient to make a child custody determination.” 

{¶29} Pursuant to R.C. 3127.01(B)(7), a child’s “home state” is “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.” (Emphasis added.) 

{¶30} Based on the above, the trial court did not abuse its discretion in 

determining that Florida, and not Ohio, is the children’s home state. Therefore, once it 

made that decision, it did not have jurisdiction to make an award as to their custody. 

None of the conditions specified in R.C. 3127.15(A) for making an initial custody 

determination exist here. The children have not resided in Ohio since sometime in 

2005. Since November 2007, they have resided with appellee in Florida. Appellant did 

not commence the divorce proceedings until November 4, 2008. By this time, the 

children had not resided in Ohio for three years and had resided in Florida for at least 

the previous 12 months. Thus, Ohio was not the children’s home state on the day 

appellant commenced the divorce action, nor was Ohio their home state within six 

months of the commencement of the divorce action. 

{¶31} Finding no Ohio case on point, appellant relies on two out-of-state cases, 

Sams v. Boston (W.Va.1989), 384 S.E.2d 151, and Gruber v. Gruber (Md.2001), 784 
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A.2d 583, in support of his argument. 

{¶32} In Boston, the Supreme Court of Appeals for West Virginia held that when 

children have been abducted to and concealed in another state by one of the parents, 

the children’s original state remains their “home state” for a reasonable period of time 

under the circumstances. Id., 384 S.E.2d at 162. And in Gruber, the Court of Special 

Appeals of Maryland held that “deception directly resulting in the establishment of home 

state jurisdiction is reprehensible conduct that may be ‘so objectionable that a court in 

the exercise of its inherent equity powers cannot in good conscience permit that party 

access to its jurisdiction.’” Id., 784 A.2d at 599. 

{¶33} One significant difference exists between the cited cases and the present 

case. In Boston and Gruber, courts in both states entered orders relating to custody, 

neither one deferring to the other or finding that it did not have jurisdiction. In the case 

sub judice, however, the trial court found that it did not have jurisdiction to enter a 

custody order. And under our standard of review, this was a matter within the trial 

court’s discretion. 

{¶34} One case from this district also lends some guidance here. In In re 

Sklenchar, 7th Dist. No. 04-MA-55, 2004-Ohio-4405, the father moved to Alabama with 

the parties’ children. Eight months later, the mother, who was still in Ohio, filed a 

motion for custody. The father later filed a divorce complaint in Alabama. The Alabama 

court granted the father a divorce and granted him custody of the children. 

Subsequently, the trial court in Ohio determined that it did not have jurisdiction over the 

children and that the matter had already been adjudicated in Alabama. The mother 

appealed, arguing in part that Ohio, not Alabama, was the home state. 

{¶35} In affirming the trial court’s decision, this court pointed out that the parties 

had equal rights to their children and the father’s relocation to Alabama was not contrary 

to any Ohio order. In fact, there was never an Ohio custody order in place. Id. at ¶49, 

52. We also noted that the father had had physical custody of the children for several 

years and the mother did not request custody or visitation until eight months after the 

father and children moved to Alabama. Id. at ¶64. 
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{¶36} In Sklenchar, there was no custody order in place, and appellee’s move to 

Florida was not against any Ohio court order. Additionally, as was the case in 

Sklenchar, appellee here has had physical custody of the children since she left 

appellant in 2005. And it was not until November 2008 that appellant filed the divorce 

action seeking custody of the children. 

{¶37} Appellant testified at the divorce hearing that he was unaware of the fact 

that appellee was going to leave Ohio with the children. And he testified that he tried to 

locate them but was unsuccessful. However, he also admitted that once he received an 

address for them in Florida, he never attempted to go there to visit his children or track 

them down. And he offers no explanation why he waited three years to initiate any 

attempt to seek custody or visitation with the children. 

{¶38} Given the above considerations, we cannot conclude that the trial court 

acted unreasonably, arbitrarily, or unconscionably in determining that it did not have 

jurisdiction to issue a custody award in this case. Accordingly, appellant’s sole 

assignment of error is without merit. 

{¶39} For the reasons stated above, the trial court’s judgment is hereby affirmed. 

Judgment affirmed. 

 WAITE and DEGENARO, JJ., concur.