Miller v. Henry, Unpublished Decision (3-27-2003)
Miller v. Henry, Unpublished Decision (3-27-2003)
Opinion of the Court
OPINION
{¶ 1} Daniel W. Miller, Jr., plaintiff-appellant, appeals a judgment of the Franklin County Court of Common Pleas, Division of Domestic Relations, Juvenile Branch, rendered June 5, 2002.{¶ 2} On July 3, 1997, appellant filed a complaint against Jenny Henry (nka Harrison), defendant-appellee, to establish the paternity of Jacob Henry, born June 13, 1997. At that time, both parties were residents of Ohio. On August 10, 1998, the court made an initial custody determination and retained continuing jurisdiction over custody matters pursuant to R.C.
{¶ 3} "The trial court erred by granting Defendant's Motion to Transfer Venue and relinquishing its jurisdiction over this case allowing Tennessee to exercise exclusive jurisdiction under the Parental Kidnapping Prevention Act, 28 U.S. § 1738(A)."
{¶ 4} Appellant argues in his first assignment of error the trial court erred when it granted appellee's motion to transfer venue and found that Franklin County, Ohio, was an inconvenient forum for determining parental rights and responsibilities. The trial court declined to exercise its jurisdiction based on the finding that the court was an inconvenient forum in accordance with R.C.
{¶ 5} "In determining if it is an inconvenient forum, the court shall consider if it is in the interest of the child that another state assume jurisdiction. For this purpose it may take into account, but is not limited to, any of the following factors:
{¶ 6} "(1) If another state is or recently was the child's home state;
{¶ 7} "(2) If another state has a closer connection with the child and his family or with the child and one or more of the contestants;
{¶ 8} "(3) If substantial evidence concerning the child's present or future care, protection, training, and personal relationships is more readily available in another state;
{¶ 9} "(4) If the parties have agreed on another forum that is no less appropriate."
{¶ 10} The UCCJA contemplates that more than one state may meet the jurisdictional requirements; however, the purpose of the act is to limit jurisdiction, not to proliferate it. In re Wonderly (1981),
{¶ 11} We first note that the fourth factor is not applicable, as the parties have not agreed on another forum that is no less appropriate. The first factor considers whether another state was recently the child's home state. In this case, Tennessee was Jacob's home state at the time of the hearing and had been for approximately two years and five months. Although appellant points out that Jacob lived in Ohio for two years and six months, about half of his life had been spent in Tennessee, and it is his current home state. This factor favors Tennessee.
{¶ 12} The second factor considers if another state has a closer connection with the child and his family or with the child and one or more of the contestants. Jacob currently lives in Tennessee with appellee, appellee's husband, and appellee's three stepdaughters. Appellant contends Ohio has an equally strong connection with Jacob in that appellant lives in Ohio, as do both sets of Jacob's grandparents, a great grandmother, at least eight aunts and uncles, and at least eight cousins. However, as the trial court found, the future school Jacob would attend in Tennessee is the same as his stepsisters, and his relationship with his three stepsisters is very close. He also attends church in Tennessee with his mother, stepfather, and three stepsisters. Although Jacob has close connections with his father and extended family in Ohio, the trial court did not abuse its discretion in finding that Tennessee has a closer connection with Jacob, his stepfather and stepsisters, and appellee.
{¶ 13} The third factor for a court to consider is if substantial evidence concerning the child's present or future care, protection, training, and personal relationships is more readily available in another state. Despite the existence of several personal relationships in Ohio, evidence regarding Jacob's present and future care, protection, training, and numerous personal relationships is more readily available in Tennessee. Sole access to Jacob's current medical, preschool, and future educational records is through Tennessee. Clearly this consideration weighs in favor of Tennessee. In sum, after examining all four factors outlined in R.C.
{¶ 14} However, appellant asserts the trial court abused its discretion by finding Tennessee to be a more convenient venue after failing to consider the factors enumerated in Zwissler v. Zwissler (Mar. 13, 1998), Montgomery App. No. 16483, and Willis v. Willis (1985),
{¶ 15} In Willis, the mother, who had relocated with the children to West Virginia, filed a motion to transfer venue in November 1984. The trial court found that because the court had been involved with the matter as recently as April 1984, when the parties entered into a consent order specifying visitation, it would be an abuse of discretion to transfer the matter to West Virginia. The court of appeals agreed with the trial court and found that because the parties had previously entered into a consent order with regard to custody and visitation, this raised a reasonable inference that the parties themselves considered the family ties with Ohio to be stronger.
{¶ 16} We first note that no other appellate court in the state, including this court, has followed or cited Zwissler. Likewise, no other appellate court in the state, including this court, has cited Willis for the proposition urged by appellant. Zwissler and Willis are not binding upon this court or lower courts in this jurisdiction. On this basis alone, clearly the trial court could not be said to have abused its discretion in failing to consider the factors in Zwissler and Willis. Notwithstanding this fact, we find that Zwissler and Willis have little application to this case. With regard to the factors in Zwissler, appellant contends that after moving to Tennessee in January 2000, appellee submitted to this court's jurisdiction when she signed an agreed entry controlling child custody issues in December 2000. However, as appellee points out, it was appellant who initiated the action resulting in the December 2000 agreed entry. Appellant also claims that, as in Zwissler, appellee has interfered with his visitation rights. However, although appellant did file a contempt motion, there has been no finding by the trial court that appellee has interfered with visitation rights.
{¶ 17} Further, Willis is distinguishable from the present case in two respects. In Willis, the parties had submitted to the jurisdiction of the court about six months prior to the motion to transfer jurisdiction filed by the relocated parent. In the present case, appellee's motion to transfer was filed over twelve months after the agreed entry was signed by both parties regarding parental rights and responsibilities. Obviously, the more remote the submission to jurisdiction becomes, the less relevant it becomes. We find no reasonable inference that the parties here considered the family ties with Ohio to be stronger than Tennessee. Further, in Willis, the court found that Ohio had at least equal family ties as compared to West Virginia, and there was substantial evidence available in Ohio concerning the children's care, protection, training and relationships, even though the children had another home state. To the contrary, in the present case, the trial court found that Tennessee has stronger family ties and better access to evidence regarding Jacob's care, protection, training, and relationships than Ohio. Therefore, we find Zwissler and Willis unpersuasive under the present circumstances.
{¶ 18} Appellant also asserts the trial court's decision to relinquish jurisdiction, based upon a finding of a more convenient venue, contradicts the purpose of the Parental Kidnapping Prevention Act ("PKPA"), Section 1738A, Title 28, U.S.Code. The purpose of this PKPA provision is to protect the right of the state that issued the original child custody determination to exercise its continuing jurisdiction, and in doing so discourage forum shopping and continuing interstate controversies over child custody, avoid jurisdictional competition and conflict between state courts in matters of child custody and visitation, and curtail excessive relitigation of child custody matters. See Zwissler citing Mark L. v. Jennifer S. (1986),
{¶ 19} Appellant also argues that under the factors in R.C.
{¶ 20} Accordingly, appellant's single assignment of error is overruled, and the judgment of the Franklin County Court of Common Pleas, Division of Domestic Relations, Juvenile Branch is affirmed.
Judgment affirmed.
McCORMAC, J., and PETREE, P.J., concur.
McCORMAC, J., retired, of the Tenth Appellate District, assigned to active duty under authority of Section
Case-law data current through December 31, 2025. Source: CourtListener bulk data.