In Re Rutan, Unpublished Decision (8-2-2004)
In Re Rutan, Unpublished Decision (8-2-2004)
Opinion of the Court
OPINION
{¶ 1} The appellant, Anna Canter ("Anna"), appeals the November 18, 2003 judgment of the Common Pleas Court, Juvenile Division, of Union County, Ohio, designating her ex-husband, Appellee Charles Brian Rutan ("Brian"), the residential parent of their son, Charles Franklin Rutan ("Frankie").{¶ 2} On November 9, 1988, Frankie's maternal grandparents, Frank and Doreen Snow, filed an application for custody of Frankie, who was twenty-one months old, in the juvenile court of Union County, the county in which they then resided. At the time, Anna and Brian, who were married to one another, consented to custody being placed with the Snows. On December 14, 1988, the juvenile court granted temporary custody of Frankie to the Snows. No other motions were filed within the following year, and, pursuant to Juv.R. 14, the temporary custody order expired. Thereafter, Anna and Brian filed a petition for dissolution in the Common Pleas Court of Union County, Ohio, on May 30, 1990. That court dissolved the marriage between Anna and Brian, and Anna was awarded custody of Frankie pursuant to the parties' agreement. Brian was granted visitation and ordered to pay child support in the amount of $140.00 per month.
{¶ 3} Throughout the next several years, Anna remained in the area but moved repeatedly. While Frankie lived with her at times, he primarily stayed with his grandparents, who lived in Union County until 1999. During this time, Brian exercised his visitation with Frankie and paid support for him to Anna. In August of 2001, Frankie moved to Houston, Texas, to live with his paternal aunt. He remained in Texas until March of 2003, when he returned to Ohio. Frankie, who was then sixteen, lived with his mother for the next two months while he completed the school year. Anna then moved to Kentucky with her current husband, David Canter, and the Snows took Frankie to West Virginia, where they currently reside.
{¶ 4} Shortly after Frankie went to West Virginia, Anna decided that she wanted him to come to Kentucky to live with her. Anna called Frankie, and the two argued about him moving to Kentucky. When the call ended, Frankie was upset and crying. The next time Anna called the Snow home, her father told her not to call there again. Thereafter, Anna contacted authorities in Kentucky to pursue criminal charges against her parents for kidnapping Frankie. This resulted in Frank Snow's arrest in West Virginia and felony charges filed against both Frank and Doreen for kidnapping. However, Frank was released from custody shortly after his arrest, and Frankie continued to live in West Virginia with his grandparents.
{¶ 5} On July 7, 2003, the Snows filed a motion to modify the parental rights and responsibilities of Frankie in the Union County juvenile court. Pursuant to R.C.
{¶ 6} On September 30, 2003, the Common Pleas Court certified the record in this case to the juvenile court in accordance with R.C.
{¶ 7} In her first assignment of error, Anna maintains that the juvenile court did not have jurisdiction in this matter for two reasons. First, she contends that the common pleas court's decision as to Frankie's custody during the divorce proceedings in 1990, was invalid because his custody had previously been determined by the juvenile court in 1988. Second, she asserts that even if the common pleas court's custody determination was valid and it could certify its jurisdiction to another court, it could only certify jurisdiction to a court with proper jurisdiction. Under this theory, she contends that Ohio was not the proper forum but that this matter should have been heard in either Kentucky or West Virginia. For the reasons that follow, we disagree with both assertions.
{¶ 8} The Revised Code provides that a juvenile court has jurisdiction "to determine the custody of any child not a ward of another court of this state[.]" R.C.
{¶ 9} As previously noted, Brian and Anna initiated dissolution proceedings in 1990. At that time and even today, the court of common pleas had "full equitable powers and jurisdiction appropriate to the determination of all domestic relations matters." R.C.
{¶ 10} The Revised Code states,
[a]ny court, other than a juvenile court, that hasjurisdiction in any case respecting the allocation of parentalrights and responsibilities for the care of a child undereighteen years of age and the designation of the child's place ofresidence and legal custodian * * * may, on its own motion * * *,with the consent of the juvenile court, certify the record in thecase * * * to the juvenile court for further proceedings[.]
R.C.
{¶ 11} As previously noted, in the case sub judice, the Union County Court of Common Pleas obtained jurisdiction over this matter in 1990, when the marriage between Anna and Brian was dissolved. This included making determinations regarding custody, visitation, and support of Frankie, who was only three at the time. Therefore, it had jurisdiction over Frankie's custody until he attained the age of eighteen. See Loetz v. Loetz (1980),
{¶ 12} Having determined that the juvenile court had subject matter jurisdiction over this custody dispute, we must now determine whether the State of Ohio was the proper forum for the dispute at issue rather than another state, as Anna asserts. As noted by the Ohio Supreme Court, a jurisdictional dispute between states may arise when a child is taken to another state. Justisv. Justis (1998),
{¶ 13} In order to resolve these issues and to prevent the repeated removal of children to other states by a parent in order to obtain a more favorable judgment, i.e. forum shopping, "the Uniform Child Custody Jurisdiction Act ("UCCJA") was drafted in 1968 and adopted by Ohio in 1977. See R.C.
{¶ 14} The UCCJA, as it is codified in Ohio, provides that although an Ohio court may have jurisdiction to a make a parenting determination relative to a child in a particular case, that court is not to exercise that jurisdiction unless one of four factors applies. R.C.
(1) This state is the home state of the child at the time ofthe commencement of the proceeding, or this state had been thechild's home state within six months before commencement of theproceeding and the child is absent from this state * * *, and aparent * * * continues to live in this state; (2) It is in the best interest of the child that a court ofthis state assumes jurisdiction because the child and hisparents, or the child and at least one contestant, have asignificant connection with this state, and there is available inthis state substantial evidence concerning the child's present orfuture care, protection, training, and personal relationships; (3)The child is physically present in this state and eitherhas been abandoned * * *; (4) It appears that no other state would have jurisdictionunder prerequisites substantially in accordance with division(A)(1), (2), or (3) of this section * * * and it is in the bestinterest of the child that this court assume jurisdiction.
R.C.
{¶ 15} A child's home state is defined as "the state in which the child, immediately preceding the time involved, lived with the child's parents, a parent, or a person acting as parent, for at least six consecutive months." R.C.
{¶ 16} As noted, R.C.
{¶ 17} Clearly, Frankie's father, one of the contestant's in this case who was requesting custody of Frankie, had a significant connection to Ohio because he lives in this state. Frankie also had a significant connection to Ohio, having lived and attended school in Ohio most of his life, including the two months prior to the circumstances that gave rise to the motions currently at issue. In addition, two maternal aunts and a great-aunt, all of whom testified at the hearing and all of whom had significant contact with Frankie throughout his life, live in Ohio. Thus, substantial evidence was available in Ohio concerning Frankie's care, protection, training, and personal relationships, all of which was necessary to the determination of whether the previous order should be modified and custody of Frankie awarded to someone other than Anna, particularly his father.
{¶ 18} Moreover, no other state, namely West Virginia or Kentucky, was more suited to determine Frankie's custody, as he lived in West Virginia for only four months by the time of the hearing and had never lived in Kentucky where his mother had lived for only four months. Therefore, it was in Frankie's best interest that Ohio, the state with the most significant connection to Frankie, exercise its jurisdiction. Accordingly, R.C.
Second Assignment of Error
{¶ 19} Anna next contends that the juvenile court's modification of the prior allocation of parental rights and responsibilities was against the manifest weight of the evidence. The Revised Code states that a "court shall not modify a prior decree allocating parental rights and responsibilities for the care of children unless it finds, based on facts that have arisen since the prior decree * * * that a change has occurred in the circumstances of the child [or] the child's residential parent[.]" R.C.
R.C.
{¶ 20} In determining whether a modification of a prior decree is in the best interest of the child at issue, the Revised Code requires the trial court to consider several enumerated factors, as well as any other relevant factors. These factors include, but are not limited to, the following:
(a) The wishes of the child's parents regarding the child'scare; (b) If the court has interviewed the child in chamberspursuant to division (B) of this section * * *, the wishes andconcerns of the child, as expressed to the court; (c) The child's interaction and interrelationship with thechild's parents, siblings, and any other person who maysignificantly affect the child's best interest; (d) The child's adjustment to the child's home, school, andcommunity; (e) The mental and physical health of all persons involved inthe situation; (f) The parent more likely to honor and facilitatecourt-approved parenting time rights or visitation andcompanionship rights; (g) Whether either parent has failed to make all child supportpayments * * * that are required of that parent * * *;
* * *
(j) Whether either parent has established a residence, or isplanning to establish a residence, outside this state.
R.C.
{¶ 21} The Ohio Supreme Court has previously held that a decision to modify custody pursuant to this statute will not be disturbed on appeal absent an abuse of discretion. Davis v.Flickinger (1997),
{¶ 22} In the case sub judice, the juvenile court found that Anna moved a great deal during Frankie's childhood. This finding was supported by the evidence, which revealed that Anna had no less than ten different addresses since her marriage was dissolved in 1990, including periods where she lived with her parents. In addition, the evidence revealed that Frankie spent a considerable amount of time with his maternal grandparents, who provided him with food, clothing, and shelter. They also took him to school and to visit Brian during Brian's visitation time.
{¶ 23} The evidence also demonstrated that at one time, Anna lived with Gary Shaw, whose car she took out of town for several weeks without his permission and without leaving Frankie in anyone's care. However, upon discovering that Anna had left town, the Snows took care of Frankie. Further, since her dissolution in 1990, she also lived with Terry Niece, who physically abused her, and Mike Yates. In 1998, Anna married David Canter, her current husband, who was previously convicted of manslaughter. David suffers from bi-polar disorder and receives disability payments from the government because of this disorder, as do Anna and her other son, Eric Niece. However, David recently lost his job, and he and Anna lost their home in Ohio. As a result, in June of 2003, the couple moved to Kentucky to be closer to David's family and the Snows brought Frankie to West Virginia.
{¶ 24} Prior to that time, she sent Frankie to live with Brian's sister in Texas in August of 2001. Admittedly, she sent him to Texas because he needed stability and an environment where he could prepare for college. Since sending him to Texas in 2001, Frankie lived with Anna for only two months. However, while he was in Texas, Anna flew him back to Ohio for various holidays.
{¶ 25} In addition to this evidence, Brian testified that in May and June of 2003, Anna repeatedly told him that he could have custody of Frankie as long as she did not have to pay support. However, Brian testified that she changed her mind when he told her that he thought Frankie should live with whomever he wanted because he was old enough to make that decision. Further, Frankie testified that he wanted to live with his grandparents because he felt safe and stable at their home and that he did not feel this way while in his mother's care. He also testified regarding the numerous moves his mother made throughout his life and that he was often with his grandparents.
{¶ 26} The evidence at the hearing also revealed that Brian always satisfied his support obligation for Frankie, maintained health insurance for his son, and exercised the visitation provided to him in the dissolution. Brian further testified that he is an ironworker in Dayton, Ohio, earning $25.63 per hour for forty hours per week, is married, and has three other children and two stepchildren.
{¶ 27} Based on the aforementioned evidence, the juvenile court found that a modification of the prior custody decree was in Frankie's best interest because of his need for stability in his life, that there had been a change of circumstances since the original custody decree in 1990, and that the harm likely to be caused by a change of environment was outweighed by the advantages of the change of environment to Frankie. In reviewing the relevant factors to consider, we cannot find that the trial court abused its discretion in modifying the prior decree and designating Brian as the residential parent. Although every aspect of Brian's life and ability to care for Frankie was not introduced into evidence, evidence was presented to show that (1) the critical element missing in Frankie's life was stability, (2) Anna was unable to provide this stability, and (3) Frankie would have a stable home with Brian. Therefore, the second assignment of error is overruled.
{¶ 28} For these reasons, the judgment of the Common Pleas Court, Juvenile Division, of Union County, Ohio, is affirmed.
Judgment affirmed. Cupp and Rogers, JJ., concur.
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