[Cite as In re D.P.J.,

.] IN THE COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT SCIOTO COUNTY

IN THE MATTER OF: :

D.P.J. and : P.R.J. Case No. 13CA3532 : Minor Children-Custody. : DECISION AND JUDGMENT ENTRY

APPEARANCES:

COUNSEL FOR APPELLANT: Michael H. Mearan, 547 South Sixth Street, Portsmouth, Ohio 45662

COUNSEL FOR APPELLEES: John R. Stevenson, 116 Poole Street, West Portsmouth, Ohio 45663

CIVIL APPEAL FROM COMMON PLEAS COURT, JUVENILE DIVISION DATE JOURNALIZED: 9-27-13 ABELE, J.

{¶ 1} This is an appeal from a Scioto County Common Pleas Court,

Juvenile Division, judgment that dismissed the Civ.R. 60(B) motion

for relief for judgment that Latisha Price, the biological mother

of D.P.J. and P.R.J., filed.

{¶ 2} Appellant raises the following assignment of error:

“THE TRIAL COURT ERRED IN DISMISSING APPELLANT’S 60(B) MOTION TO SET ASIDE A CUSTODY ORDER FOR FAILURE TO FILE A U.C.C.J.E.A. AFFIDAVIT WITH THE 60(B) MOTION.”

{¶ 3} On July 27, 2011, appellees Teresa Lynn and David Allen

Justice, the children’s paternal grandparents, filed a petition for

custody of D.P.J. and P.R.J. On that same date, appellant signed

a “consent to custody” form. In it, she consented to give custody

of the two children to the appellees. On July 28, 2011, the court SCIOTO, 13CA3532 2

entered an “agreed judgment entry of custody” and granted the paternal

grandparents custody of the two children.

{¶ 4} On October 6, 2011, appellant filed a motion to modify

the custody order along with a R.C. 3127.23(A) custody affidavit.

The trial court later dismissed the motion upon appellant’s request.

{¶ 5} On July 26, 2012, appellant filed a Civ.R. 60(B) motion

for relief from the trial court’s July 28, 2011 “agreed judgment

of custody.” Appellant alleged that when she signed the custody

order, she was in the hospital, suffering from depression, was heavily

medicated, and “had no idea what she was signing.”

{¶ 6} On December 20, 2012, the trial court held a hearing

regarding appellant’s motion. During the hearing, appellees

requested the court to dismiss appellant’s motion due to her failure

to file an R.C. 3127.23(A) custody affidavit when she filed her Civ.R.

60(B) motion for relief from judgment. Appellees contended that

appellant’s Civ.R. 60(B) motion sought to change the children’s

custodial status and, thus, constituted a child custody proceeding

subject to the R.C. 3127.23(A) requirements. Appellees argued that

appellant’s failure to file a custody affidavit deprived the court

of jurisdiction to consider appellant’s motion.

{¶ 7} Appellant countered that R.C. 3127.23 did not apply when

seeking relief from judgment. She argued that her Civ.R. 60(B)

motion did not request the court to change custody, but rather simply SCIOTO, 13CA3532 3

requested that the court set aside the prior order that granted

appellees custody.

{¶ 8} On January 18, 2013, the trial court granted appellees’

motion to dismiss and determined that appellant, by filing a motion

for relief from the prior custody order, “was indeed initiating a

custody proceeding.” The court concluded that “the parenting

proceeding affidavit must be filed with the first pleading filed

by each party in every parenting proceeding.” The court found that

appellant failed to file an R.C. 3127.23(A) custody/parenting

proceeding affidavit when she filed her Civ.R. 60(B) motion to set

aside the trial court’s judgment. Consequently, the court dismissed

appellant’s Civ.R. 60(B) motion. This appeal followed.

{¶ 9} In her sole assignment of error, appellant argues that

the trial court erred by dismissing her Civ.R. 60(B) motion.

Specifically, she contends that the court wrongly determined that

her failure to file an R.C. 3127.23(A) custody affidavit with her

Civ.R. 60(B) motion deprived the court of jurisdiction to consider

her motion.

{¶ 10} Appellees assert that the trial court properly dismissed

appellant’s Civ.R. 60(B) due to a lack of subject-matter

jurisdiction. Appellees contend, in essence, that when a party seeks

to litigate an issue involving the custody of a child, whether arising

from an initial complaint or from a post-decree motion, a R.C. SCIOTO, 13CA3532 4

3127.23(A) custody affidavit is mandatory to vest the trial court

with subject-matter jurisdiction.

{¶ 11} “The jurisdiction of a court is that power conferred upon

it by law, by which the court is authorized to hear, determine and

render final judgment in an action, and to enforce its judgment by

legal process.” Borkosky v. Mihailoff,

,

(3rd Dist. 1999), citing State ex rel. Ellis v. Bd.

of Deputy State Supervisors of Cuyahoga Cty.,

, 349,

(1904). Subject-matter jurisdiction “is a ‘condition

precedent to the court’s ability to hear the case. If a court acts

without jurisdiction, then any proclamation by that court is void.’”

Pratts v. Hurley,

, 2004–Ohio–1980,

, ¶11 (citations omitted). The existence of a trial court’s

jurisdiction is a question of law that we review de novo. State

ex rel. ACCSEA v. Balch, 4th Dist. Athens No. 06CA26, 2007–Ohio–7168,

¶22; Yazdani–Isfehani v. Yazdani–Isfehani, 4th Dist. Athens No.

06CA6, 2006–Ohio–7105, ¶20.

{¶ 12} R.C. 3127.23(A) states:

(A) Each party in a child custody proceeding, in the party’s first pleading or in an affidavit attached to that pleading, shall give information if reasonably ascertainable under oath as to the child’s present address or whereabouts, the places where the child has lived within the last five years, and the name and present address of each person with whom the child has lived during that period. * * * *”

{¶ 13} Appellees contend that the filing of an R.C. 3127.23(A)

affidavit “is a mandatory jurisdictional requirement” and “has been SCIOTO, 13CA3532 5

for more than 30 years.” Appellees cite Pasqualone v. Pasqualone,

,

,

(1980), to support

their assertion.

{¶ 14} In Pasqualone, the Ohio Supreme Court held:

“The requirement in R.C. [3127.23] that a parent bringing an action for custody inform the court at the outset of the proceedings of any knowledge he has of custody proceedings pending in other jurisdictions is a mandatory jurisdictional requirement of such an action.”1

at paragraph one of the syllabus.

{¶ 15} The Ohio Supreme Court has, however, limited the

application of Pasqualone. In re Complaint for Writ of Habeas Corpus

for Goeller,

,

,

.

In Goeller, the court explained that despite Pasqualone’s language

“it is well settled that ‘[t]he requirement that an affidavit be

filed in a party’s first pleading [under R.C. 3127.23] has been

relaxed to allow amended pleading or subsequent filings to include

the affidavit information.’” Id. at ¶11, quoting In re Porter,

,

(3rd Dist. 1996). The court

reiterated its prior holding that a “‘mechanistic interpretation

of R.C. [3127.23] * * * would not only contravene the clear intent

of R.C. [3127.23] but could potentially render the custody statutes

of this state a nullity.’” Id. at ¶12, quoting In re Palmer,

, 12 OBR 259,

(1984).

1 Pasqualone construed the substantially similar predecessor statute, R.C. 3109.27. SCIOTO, 13CA3532 6

{¶ 16} The Goeller court further explained that “the initial

failure to comply with R.C. [3127.23] has bearing on the juvenile

court’s authority to exercise jurisdiction rather than on its

subject-matter jurisdiction.”

citing Pratts v. Hurley,

,

,

, ¶10–13, and Cook,

28 Ohio App.3d at 84, 28 OBR 124,

.

{¶ 17} In the case at bar, we agree with appellant that the trial

court erred to the extent that it believed that it lacked

subject-matter jurisdiction to consider appellant’s Civ.R. 60(B).

Goeller states that the failure to file an R.C. 3127.23 custody

affidavit does not affect the trial court’s subject-matter

jurisdiction. Moreover, we question whether a Civ.R. 60(B) motion

from relief from a prior custody order should be construed as “the

party’s first pleading” in a “child custody proceeding” and, thus,

subject to R.C. 3127.23(A). R.C. Chapter 3127 does not define “first

pleading” in a “child custody proceeding.” R.C. 3127.01(B)(5),

however, explains that the “first pleading” occurs at the

“commencement” of “a proceeding.” A “child custody proceeding”

means “a proceeding in which legal custody * * * with respect to

a child is an issue.” R.C. 3127.01(B)(4).

{¶ 18} In the case at bar, one might argue that the “commencement”

of “a proceeding” occurred when appellees originally requested

custody of the children in July 2011 and, thus, that the “first

pleading” was appellees’ petition for custody. One might also SCIOTO, 13CA3532 7

contend, however, that the “commencement” of “a proceeding” occurred

when appellant filed her Civ.R. 60(B) motion and, thus, that her

Civ.R. 60(B) motion was the first pleading relating to that

proceeding. Until appellant filed her Civ.R. 60(B) motion, the

children’s custodial status had been determined. Appellant’s motion

sought to place their custodial status again in issue.

{¶ 19} Nevertheless, until the General Assembly clarifies the

meaning of the “first pleading” in a “child custody proceeding” as

used in R.C. 3127.23(A), we will adhere to our prior holdings that

a party need not file an R.C. 3127.23(A) custody affidavit when

seeking to modify a prior custody order.2 Knight v. Knight, 4th Dist.

Meigs No. 99CA2 (Sept. 29, 1999) (holding that a motion to modify

custody was not the party’s “first pleading” in a “parenting

proceeding,” under former R.C. 3109.27, and thus was not subject

to the statutory requirement to file a custody affidavit); Christy

v. Christy, 4th Dist. Highland No. 96CA902 (June 12, 1997) (concluding

that party’s motion for change of custody, filed two years after

the commencement of divorce proceedings that included a parenting

proceeding determination, was not the party’s “first pleading” that

2 We recognize that the authors of Ohio Domestic Relations Law treatise state that “‘compliance with RC 3127.23 * * * is a jurisdictional requirement in any action for the allocation of parental rights and responsibilities, and is necessary to properly invoke the continuing jurisdiction of the court in a modification proceeding.’” Knight (Harhsa, J., concurring), quoting 1 Sowald and Morganstern, Ohio Domestic Relations Law 678, Section 16:2 (1997). We further observe, however, that the authors rely, in part, upon the Ohio Supreme Court’s decision in Pasqualone. As we indicated above, the Ohio Supreme Court has limited Pasqualone. The authors of Ohio Domestic Relations Law do not analyze in Section 16:2 whether the Ohio Supreme Court’s more recent decisions affect the statement that compliance with R.C. 3127.23 is a jurisdictional requirement SCIOTO, 13CA3532 8

required a custody affidavit). Accord Adkins v. Adkins, 4th Dist.

No. Pickaway 89CA26 (May 15, 1991) (Stephenson, J., concurring);

Dole v. Dole, 5th Dist. Holmes No. 10CA013,

(concluding

that party need not file updated child custody affidavit when filing

motion to renew motion requesting court to reallocate parental rights

when custody affidavit filed approximately eight months earlier);

Metcalfe v. Metcalfe, 12th Dist. Clermont No. CA95-04-025 (Jan. 29,

1996)(concluding that new child custody affidavit need not be filed

in modification proceeding when affidavit filed with divorce

complaint); Matter of Frateschi, 7th Dist. Columbiana No. 92-C-58

(June 8, 1993) (“The custody affidavit was not necessary in this

case since the motion for change of custody before the trial court

was not the first pleading in this custody proceeding, rather, the

trial court has had continuing jurisdiction over the matter for the

past eight years.”). See Sumerford v. Sumerford, 10th Dist. Franklin

Nos. 11AP-29 and 11AP-358,

, ¶16 (determining that

the failure to file the custody affidavit with the initial filing

was not fatal to the action when “the statutory requirements have

been substantially satisfied and no prejudice has resulted” and when

“the trial court was well aware of where and with whom the children

have been living”); State ex rel. Browning v. Browning, 5th Dist.

Muskingum Nos. CT-2011-CA-55 and CT2011-CA-60,

(declining to “blind[ly] adhere[] to the affidavit requirement” when

in a custody modification proceeding. SCIOTO, 13CA3532 9

none of the parties claimed “to have instituted or have knowledge

of custody proceedings pending in another jurisdiction”).

{¶ 20} In the case sub judice, we believe that the trial court

imposed an interpretation of R.C. 3127.23(A) that the Ohio Supreme

Court has rejected over time. While appellant may not have filed

a custody affidavit with her Civ.R. 60(B) motion, according to Knight,

her Civ.R. 60(B) motion is not the “first pleading” in the child

custody proceeding. Instead, according to Knight, the first

pleading occurred when appellees initially sought custody of the

children. Appellees filed a child custody affidavit when they filed

the first pleading in July 2011. Appellant filed a second custody

affidavit in October 2011, when she filed a motion to modify the

prior custody order.

{¶ 21} Additionally, we further point out that it is a “basic

tenet of Ohio jurisprudence that cases should be determined on their

merits and not on mere procedural technicalities.” Barksdale v.

Van’s Auto Sales, Inc.,

,

(Ohio,1988). Thus, to the extent that appellant should have filed

a custody affidavit with her Civ.R. 60(B) motion, we believe that

the trial court could have afforded appellant an opportunity to cure

the defect before the court dismissed her motion.

{¶ 22} Accordingly, based upon the foregoing reasons, we hereby

sustain appellant’s assignment of error and reverse and remand the SCIOTO, 13CA3532 10

trial court’s judgment for further proceedings consistent with this

opinion.

JUDGMENT REVERSED AND REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION.

Harsha, J., concurring:

{¶ 23} Based upon

I join my colleagues in

concluding that proceeding without custody affidavit would be an

error in the exercise of jurisdiction that renders a resulting

judgment voidable but not void ab initio. I also agree that the

trial court should have allowed the appellant an opportunity to cure

the omission prior to dismissing her motion. Accordingly, I concur

in the court’s judgment. SCIOTO, 13CA3532 11

JUDGMENT ENTRY

It is ordered that the judgment be reversed and the case remanded

for further proceedings consistent with this opinion. Appellant

shall recover of appellees the costs herein taxed.

The Court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate issue out of this Court

directing the Scioto County Common Pleas Court, Juvenile Division,

to carry this judgment into execution.

A certified copy of this entry shall constitute that mandate

pursuant to Rule 27 of the Rules of Appellate Procedure.

Harsha, J.: Concurs in Judgment & Opinion with Attached Opinion Hendon*, J.: Concurs in Judgment & Opinion

For the Court

BY: Peter B. Abele, Judge

NOTICE TO COUNSEL

Pursuant to Local Rule No. 14, this document constitutes a final judgment entry and the time period for further appeal commences from the date of filing with the clerk.

*Judge Sylvia Sieve Hendon, of the First Appellate District, sitting by assignment of the Ohio Supreme Court in the Fourth Appellate District.