[Cite as Kallet v. Wilgus,

.]

COURT OF APPEALS TUSCARAWAS COUNTY, OHIO FIFTH APPELLATE DISTRICT

CHRISTINE AND JONATHAN KALLET : JUDGES: : Hon. Craig R. Baldwin, P.J. Relators : Hon. Patricia A. Delaney, J. : Hon. Earle E. Wise, Jr., J. -vs- : : HON. ADAM W. WILGUS : Case No. 2021 AP 01 0004 : Respondent : : and : : REBECCA HERSHBERGER : : Intervenor/Respondent : OPINION

CHARACTER OF PROCEEDING: Writ of Prohibition

JUDGMENT: Granted

DATE OF JUDGMENT: May 11, 2021

APPEARANCES:

For Relators For Respondent Hon. Adam W. Wilgus

MONICA D. DERAMUS ROBERT R. STEPHENSON II McCleery Law Firm, LLC Assistant Prosecuting Attorney 203 Front Avenue, SE 125 East High Avenue New Philadephia, OH 44663 New Philadelphia, OH 44663

For Intervenor/Respondent Rebecca Hershberger

J. KEVIN LUNDHOLM 300 E. Third Street Tuscarawas County, Case No. 2021 AP 01 0004 2

Dover, OH 44622 Wise, Earle, J.

{¶ 1} On January 15, 2021, Relators, Christine and Jonathan Kallet, filed a

Complaint for Writ of Prohibition against Respondents, The Honorable Linda A. Kate and

Magistrate Adam W. Wilgus of the Tuscarawas County Common Pleas Court, Juvenile

Division. We substitute Judge Kate’s successor to the bench, Judge Adam W. Wilgus, as

Respondent under Civ.R. 25(D)(1).1

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

{¶ 2} The Kallets are the biological parents of the minor child who is the subject

of this original action. Complaint, ¶ 4; Agreed Stmt. Facts, ¶ 1. Rebecca Hershberger is

the plaintiff/maternal grandmother in the underlying custody case pending in the

Tuscarawas County Court of Common Pleas, Juvenile Division, Case No. 2020 CC

00100. Complaint, ¶ 4. She is also an Intervenor/Respondent in the present matter.2

{¶ 3} The minor child was born on July 17, 2019. Complaint, ¶ 4; Agreed Stmt.

Facts, ¶ 3. He lived in Ann Arbor, Michigan from the time of his birth until June 11, 2020

when Ms. Kallet and the minor child traveled to Ohio and resided with the child’s maternal

grandmother, Ms. Hershberger.

Mr. Kallet was not permitted to stay in Ms.

Hershberger’s home and stayed in a nearby hotel in Ohio. Complaint, ¶ 5; Agreed Stmt.

Facts, ¶ 4.

{¶ 4} On June 16, 2020, Ms. Kallet left Ms. Hershberger’s residence following an

argument. Complaint, ¶ 6; Agreed Stmt. Facts, ¶ 5. The minor child remained at Ms.

1 Judge Wilgus’s term commenced on February 9, 2021 after the commencement of this original action. See Agreed Stmt. Facts, ¶ 18. 2 The Court granted Ms. Hershberger’s Motion to Intervene on March 5, 2021. Tuscarawas County, Case No. 2021 AP 01 0004 3

Hershberger’s residence.

The following day Ms. Kallet attempted to return to Ms.

Hershberger’s residence to remove the minor child and Ms. Hershberger advised her not

to return and that if she did, Ms. Hershberger would call the police. Complaint, ¶ 6.

{¶ 5} On June 17, 2020, Ms. Hershberger filed a Complaint for Custody in the

Tuscarawas County Court of Common Pleas, Juvenile Division. Complaint, ¶ 7; Agreed

Stmt. Facts, ¶ 6. Ms. Hershberger alleged the minor child was living with her and her

husband because Ms. Kallet “took her dog for a walk and didn’t come back last night at

5:30 p.m.”

Ms. Hershberger further averred it was in the minor child’s best interest that

she be granted custody because, “the parents * * * cannot be contacted.”

{¶ 6} Ms. Hershberger also filed with her Complaint a form titled "Declaration

Under Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) [.]" Complaint,

¶ 8; Agreed Stmt. Facts, ¶ 7. In her Declaration, Ms. Hershberger only disclosed the minor

child’s residence information in Ohio from June 12, 2020 through June 17, 2020.

Ms.

Hershberger did not disclose the minor child’s residence information in Michigan prior to

June 12, 2020.

{¶ 7} On June 22, 2020, Ms. Hershberger filed a Motion for Ex Parte Temporary

Custody and supported the motion with her own affidavit. Complaint, ¶ 9; Agreed Stmt.

Facts, ¶ 8. Ms. Hershberger indicated she was proceeding under Juv.R. 13.

Ms.

Hershberger requested custody of the minor child due to the Kallets’ “unknown

whereabouts.”

Ms. Hershberger also indicated that Ms. Kallet “accused [Ms.

Hershberger] of taking her son and her possessions * * *.” Agreed Stmt. Facts, ¶ 8.

{¶ 8} On June 24, 2020, Judge Wilgus, acting in his capacity as magistrate,

granted Ms. Hershberger’s Motion for Ex Parte Temporary Custody, awarding Ms. Tuscarawas County, Case No. 2021 AP 01 0004 4

Hershberger temporary custody of the minor child. Complaint, ¶ 10; Agreed Stmt. Facts,

¶ 9. Magistrate Wilgus scheduled the matter for a hearing on July 9, 2020.

Following

the hearing, Magistrate Wilgus issued an order continuing temporary custody of the minor

child with Ms. Hershberger.

Magistrate Wilgus also appointed a Guardian ad Litem

and granted Ms. Kallet supervised visitation for one hour per week.

{¶ 9} On August 19, 2020, the Kallets filed a Motion to Dismiss/Stay for Lack of

Subject Matter and Personal Jurisdiction on a variety of grounds. Complaint, ¶ 11; Agreed

Stmt. Facts, ¶ 10. One ground alleged by the Kallets included the lack of subject matter

jurisdiction by the trial court under the UCCJEA and the trial court’s lack of personal

jurisdiction over them.

On September 10, 2020, Ms. Hershberger filed a Memorandum

in Opposition. Complaint, ¶ 12; Agreed Stmt. Facts, ¶ 11.

{¶ 10} On September 23, 2020, Magistrate Wilgus issued an order denying the

Kallets’ Motion to Dismiss. Complaint, ¶ 13; Agreed Stmt. Facts, ¶ 12. The order also

provided temporary custody would remain with Ms. Hershberger.

On October 1, 2020,

the Kallets filed a Motion to Set Aside the Magistrate’s Order. Complaint, ¶ 14; Agreed

Stmt. Facts, ¶ 13. On October 5, 2020, the Kallets filed a Complaint for Custody and a

Motion to Transfer Case, to Accept Jurisdiction Pursuant to the Uniform Child Custody

Jurisdiction and Enforcement Act in the 4th Circuit Court, Jackson County, Michigan.

Complaint, ¶ 15; Agreed Stmt. Facts, ¶ 14. The Kallets alleged in their Complaint that

Michigan is the minor child’s “home state” as defined under the UCCJEA. Complaint, ¶

15.

{¶ 11} On November 20, 2020, Judge Kate overruled the Kallets’ Motion to Set

Aside the Magistrate’s Order. Complaint, ¶ 16; Agreed Stmt. Facts, ¶ 15. The Judgment Tuscarawas County, Case No. 2021 AP 01 0004 5

Entry indicated the Michigan and Ohio courts had been attempting to contact each other

to no avail, and that a separate entry would issue by the juvenile court upon determination

of the appropriate court’s jurisdiction.

{¶ 12} On December 17, 2020, the Kallets and Ms. Hershberger appeared in the

4th Circuit Court in Michigan for a hearing on the Kallets’ Motion to Transfer the case to

Michigan. Complaint, ¶ 17; Agreed Stmt. Facts, ¶ 16. Judge Diane Rappleye indicated

she attempted to contact the juvenile court in Ohio on four separate occasions and was

only able to speak with Magistrate Wilgus once. Complaint, ¶ 17. Judge Rappleye

expressed that her hands were tied until she was able to speak with Judge Kate.

{¶ 13} Thereafter, Ms. Hershberger made an oral Motion to Dismiss, which Judge

Rappleye denied. Complaint, ¶ 17; Agreed Stmt. Facts, ¶ 16. Judge Rappleye entered an

order indicating the case would remain pending until further order of the court and set a

status conference for March 11, 2021.

Presently, the minor child remains in the

custody of Ms. Hershberger in Ohio. Complaint, ¶ 18; Agreed Stmt. Facts, ¶ 17.

{¶ 14} In response to the writ, Respondents Judge Kate and Magistrate Wilgus

filed a Motion to Dismiss/Judgment on the Pleadings on February 3, 2021. We denied the

motion on February 25, 2021, granted an alternative writ, and ordered a briefing schedule

for the presentation of evidence and the filing of briefs. This matter is now ripe for

determination.

LEGAL ANALYSIS

{¶ 15} The Kallets’ Complaint seeks relief in prohibition. They ask the Court to

order Judge Wilgus to vacate all orders and immediately return the minor child to them in

Michigan. Complaint, p. 15. Tuscarawas County, Case No. 2021 AP 01 0004 6

A. Required elements for a writ of prohibition

{¶ 16} To be entitled to a writ of prohibition, the Kallets must establish: (1)

Respondent is about to exercise judicial power, (2) the exercise of power is unauthorized

by law, and (3) denying the writ would result in injury for which no adequate remedy exists

in the ordinary course of law. (Citation omitted.) State ex rel. Duke Energy Ohio, Inc. v.

Hamilton Cty. Court of Common Pleas,

,

,

. “If a lower court patently and unambiguously lacks jurisdiction to proceed in a

cause, prohibition * * * will issue to prevent any future unauthorized exercise of jurisdiction

and to correct the results of prior jurisdictionally unauthorized actions.” Id. at ¶ 17, quoting

State ex rel. Mayer v. Henson,

,

,

, citing State ex rel. Dannaher v. Crawford,

,

(1997). “Where jurisdiction is patently and unambiguously lacking, [a relator] need not

establish the lack of an adequate remedy at law because the availability of alternate

remedies like appeal would be immaterial.”

quoting State ex rel. Sapp v. Franklin Cty.

Court of Appeals,

,

,

, citing State

ex rel. Columbus S. Power v. Fais,

,

,

.

B. Subject-matter jurisdiction of the juvenile court

{¶ 17} Here, we must determine whether Judge Wilgus patently and

unambiguously lacks subject-matter jurisdiction to proceed in the custody matter currently

pending in the juvenile court. The Kallets contend Judge Wilgus ignored the UCCJEA.

Complaint, ¶ 22. Tuscarawas County, Case No. 2021 AP 01 0004 7

{¶ 18} Ms. Hershberger’s Complaint for Temporary Custody did not indicate a

statutory basis for her request. However, she averred in her Complaint the minor child’s

parents could not be contacted and she requested that she be named residential parent

and sole custodian of the minor child. Complaint, Exh. A-1. Further, attached to the

Complaint is a form identified as a “Declaration Under Uniform Child Custody Jurisdiction

and Enforcement Act (UCCJEA)[.]” Complaint, Exh. A-2. The section of the Declaration

regarding information about the minor child’s place of birth and history of residence is

completely blank. Ms. Hershberger also filed a Motion for Ex Parte Temporary Custody

under Juv.R.13. Complaint, Exh. A-3.

{¶ 19} Respondents Judge Kate and Magistrate Wilgus indicated in their Motion to

Dismiss/Judgment on the Pleadings and Fifth Affirmative Defense of the Answer the

juvenile court has jurisdiction under R.C. 2151.23, et seq. and Juv.R. 10. In addition, Ms.

Hershberger asserts in her merit brief the juvenile court has jurisdiction under R.C.

3127.18(A)(2) or R.C. 3127.15(A)(2). Intervenor Merit Brief, p. 1. We will review these

alleged grounds for jurisdiction.

1. R.C. 2151.23 and Juv.R. 10 are inapplicable because they only address the juvenile court’s statutory jurisdiction.

{¶ 20} The juvenile court relies on R.C. 2151.23 and Juv.R. 10 as a basis to

exercise jurisdiction. R.C. 2151.23 addresses the jurisdiction of the juvenile court and

provides in section (A)(2) the court has jurisdiction “to determine the custody of any child

not a ward of another court of this state.” Likewise, Juv.R.10 contains language almost

identical to that found in R.C. 2151.23(A)(2). Section (A) of Juv.R. 10 provides, in pertinent

part: “Any person may file a complaint to have determined the custody of a child not a

ward of another court of this state * * *.” Tuscarawas County, Case No. 2021 AP 01 0004 8

{¶ 21} We find the juvenile court’s reliance on R.C. 2151.23 and Juv.R. 10 is

misplaced because neither address whether Ohio or Michigan has subject-matter

jurisdiction to determine the minor child’s custody under the UCCJEA. See State ex rel.

M.L. v. O’Malley,

,

,

(“Respondents undoubtedly have statutory jurisdiction to determine the custody of

children in Ohio under R.C. 2151.23(A)(2). The dispute here is whether Ohio or New

Jersey has jurisdiction to determine M.A.H.’s custody under the UCCJEA.”)

{¶ 22} Further, “R.C. 2151.23(F)(1) specifically mandates that juvenile courts

exercise jurisdiction in custody matters in accordance with R.C. 3127.01 to 3127.53 of

the Uniform Child Custody Jurisdiction and Enforcement Act (“UCCJEA”).” In re B.P., 11th

Dist. Trumbull No. 2011-T-0032,

, ¶ 37. “The UCCJEA defines a trial

court’s subject-matter jurisdiction to issue a child custody determination.” In re R.M., 4th

Dist. Athens No. 12CA43, 12CA44,

,

, ¶ 79.

{¶ 23} R.C. Chapter 3127 [UCCJEA] sets forth standards and definitions for

determining when an Ohio court has jurisdiction, as opposed to another state, to issue a

child custody decision. In re B.P. at ¶ 37. “The primary purpose of the UCCJEA is ‘to

avoid jurisdictional competition and conflict with courts of other jurisdictions’ in custody

matters.”

citing Rosen v. Celebrezze,

,

,

, quoting In re Palmer,

,

(1984).

{¶ 24} Therefore, R.C. 2151.23 and Juv.R. 10 grant a juvenile court exclusive,

original jurisdiction to make custody determinations for children who are not wards of a

court of this state. In re R.M. at ¶ 78. However, only the UCCJEA delineates a juvenile

court’s power to issue a child custody decision and thus, defines the subject-matter Tuscarawas County, Case No. 2021 AP 01 0004 9

jurisdiction of the court. Id. at ¶ 79. In Rosen v. Celebrezze, the Ohio Supreme Court

explained even though a statute provides a juvenile court with “basic statutory jurisdiction

to determine custody matters * * * a more specific statute like R.C. 3127.15 [may] patently

and unambiguously divest [ ] the court of such jurisdiction.” Rosen at ¶ 46.

{¶ 25} Therefore, R.C. 2151.23 and Juv.R. 10 do not grant the juvenile court

subject-matter jurisdiction, which must be determined in accordance with the UCCJEA.

2. No grounds exist for the juvenile court to exercise temporary emergency jurisdiction under R.C. 3127.18.

{¶ 25} Next, Ms. Hershberger maintains the juvenile court has jurisdiction under

R.C. 3127.18(A)(2). This statute concerns when a court may exercise temporary

emergency jurisdiction outside the four situations identified in R.C. 3127.15(A) [UCCJEA].

In re R.M. at ¶ 92. It provides juvenile courts with temporary and emergency jurisdiction

over a child who demands immediate protection due to abandonment, mistreatment, or

abuse. Id. at ¶ 93. In fact, “[t]he statute has no applicability unless the child is abandoned

or subjected to or threatened with mistreatment or abuse.” Id. Thus, “the purpose of the

statute is to provide a court that otherwise lacks jurisdiction under R.C. 3127.15

[UCCJEA] with jurisdiction if a temporary emergency situation presents itself.” Id. at ¶ 94.

{¶ 26} R.C. 3127.18 provides, in pertinent part:

(A) A court of this state has temporary emergency jurisdiction if

a child is present in this state and either of the following applies:

(1) The child has been abandoned.

(2) It is necessary in an emergency to protect the child because the

child * * * is subject to or threatened with mistreatment or abuse. Tuscarawas County, Case No. 2021 AP 01 0004 10

{¶ 27} In her Complaint for Temporary Custody and Motion for Ex Parte Temporary

Custody, Ms. Hershberger impliedly relied on Section (A)(1) regarding abandonment. She

alleged Ms. Kallet left to walk her dog at 5:30 p.m. and never returned. Writ Complaint,

Exh. A-1.

{¶ 28} A child is considered abandoned for purposes of R.C. 3127.18(A)(1) when

“the parents of a child have failed to visit or maintain contact with the child for more than

ninety days, regardless of whether the parents resume contact with the child after that

ninety-day period.” See R.C. 3127.01(B)(1); In re A.G.M., 12th Dist. Warren No. CA2010-

02-016,

, ¶ 24.

{¶ 29} We find no basis for the juvenile court to exercise temporary emergency

jurisdiction on the theory of abandonment. Christine Kallet stated in her affidavit attached

to her Motion to Dismiss/Stay for Lack of Subject Matter Jurisdiction Under Civ.R.

12(B)(1), that she did not abandon her child and she had contact and communication with

the minor child prior to Ms. Hershberger filing for ex parte custody. See Writ Complaint,

affidavit attached to Exh. A-6, ¶ 4.

{¶ 30} Ms. Hershberger confirmed this fact when she averred in her affidavit that

she spoke to both Jonathan and Christine Kallet after Christine Kallet left her residence.

Writ Complaint, affidavit attached to Exh. A-3, ¶¶ 17, 19. This contact occurred around

the time Ms. Hershberger filed her Complaint and the Complaint was filed one day after

Christine Kallet left Ms. Hershberger’s residence and failed to return. Therefore, we find

the minor child was not abandoned for more than 90 days as required by R.C.

3127.18(A)(1) for the juvenile court to exercise temporary emergency jurisdiction. Tuscarawas County, Case No. 2021 AP 01 0004 11

{¶ 31} For the first time in her Merit Brief, Ms. Hershberger argues Section (A)(2)

of R.C. 3127.18 applies because the minor child was subject to or threatened with

mistreatment or abuse. Ms. Hershberger submitted no evidence to support this claim.

Further, this ground was never alleged in her Complaint for Temporary Custody or Motion

for Ex Parte Temporary Custody.

{¶ 32} Even if we were to conclude the juvenile court properly exercised jurisdiction

in this matter under sections (A)(1) or (A)(2) of R.C. 3127.18, the juvenile court should

have followed the procedures set forth in R.C. 3127.18(C) and (D) after the Kallets filed

their Complaint for Custody and Motion to Transfer Case, to Accept Jurisdiction Pursuant

to the Uniform Child Custody and Enforcement Act in Michigan, the minor child’s home

state.3

{¶ 33} Sections (C) and (D) of R.C. 3127.18 provide safeguards for a child once a

child custody proceeding is commenced in a state having jurisdiction under the UCCJEA.

For example, section (C) of R.C. 3127.18 provides:

(C) If * * * a child custody proceeding has been commenced in a court of

a state having jurisdiction under sections 3127.15 to 3127.17 of the

Revised Code * * * any order issued by a court of this state under this

section must specify in the order a period that the court considers

adequate to allow the person seeking an order to obtain an order from

the state having jurisdiction under section 3127.15 to 3127.17 of the

Revised Code or a similar statute of another state. The order issued in

3 See Section (B)(3) herein for a discussion about the minor child’s home state. Tuscarawas County, Case No. 2021 AP 01 0004 12

this state remains in effect until an order is obtained from the other state

within the period specified or until the period expires.

(Emphasis added.) {¶ 34} Further, section (D) of R.C. 3127.18 requires the court exercising temporary

emergency custody and the home state to “immediately communicate” once a child

custody proceeding is commenced in the home state. This statute provides:

(D) * * * A court of this state that is exercising jurisdiction pursuant to

sections 3127.15 to 3127.17 of the Revised Code, upon being informed

that a child custody proceeding has been commenced in * * * another

state under a statute similar to this section, shall immediately

communicate with the court of that state to resolve the emergency,

protect the safety of the parties and the child, and determine a period for

the duration of the temporary order.

(Emphasis added.) {¶ 35} Here, the Kallets commenced an action under the UCCJEA, on October 5,

2020, in the 4th Circuit Court, Jackson County, Michigan, the minor child’s home state.

Therefore, even if the juvenile court believed it was properly exercising jurisdiction in this

matter under R.C. 3127.18(A)(1) or (A)(2), which we do not find, once the Kallets

commenced their action in Michigan, the juvenile court should have followed the

mandates of R.C. 3128.18(C) and (D). Although the record indicates some attempts were

made by the Ohio and Michigan courts to communicate, communication broke down, and

the requirements of the above statutes were not followed. Tuscarawas County, Case No. 2021 AP 01 0004 13

{¶ 36} For these reasons, we find the juvenile court could not exercise jurisdiction

under R.C. 3127.18(A)(1) or (A)(2), the temporary emergency exception to the UCCJEA.

Even if we found a proper initial exercise of jurisdiction under this statute, it terminated

once the Kallets commenced the Michigan action the juvenile court should have followed

the procedures outlined in R.C. 3127.18(C) and (D).

3. The juvenile court does not have jurisdiction under R.C. 3127.15(A)(2) because the minor child's home state is Michigan.

{¶ 37} Finally, Ms. Hershberger asserts the juvenile court properly exercised

jurisdiction under R.C. 3127.15(A)(2) because the minor child does not have a “home

state” as defined in R.C. 3127.01(B)(7). Under the UCCJEA, the “home state” has

jurisdictional priority and exclusive continuing jurisdiction. (Citations omitted.) Rosen,

,

,

. There can be only one home

state, which precludes competition for jurisdiction between the states. (Citations omitted.)

In re B.P. at ¶ 37.

{¶ 38} R.C. 3127.15 addresses jurisdiction to make the initial determination in a

child custody proceeding. This statute provides, in pertinent part:

(A) Except as otherwise provided in section 3127.18 of the Revised Code

[emergency jurisdiction], a court of this state has jurisdiction to make

an initial determination in a child custody proceeding only if one of the

following applies:

(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 Tuscarawas County, Case No. 2021 AP 01 0004 14

the child is absent from this state but a parent or person acting as a

parent continues to live in this state.

(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:

(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.

(b) Substantial evidence is available in this state concerning the

child’s care, protection, training, and personal relationships.

(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 under section 3127.21 or 3127.22 of the Revised Code or a

similar statute enacted by another state.

(4) No court of any other state would have jurisdiction under the criteria

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

{¶ 39} The above statute “provides four types of initial child-custody jurisdiction:

home-state jurisdiction, significant-connection jurisdiction, jurisdiction based on

declination of jurisdiction, and default jurisdiction.” Rosen at ¶ 31. Importantly, Section (B) Tuscarawas County, Case No. 2021 AP 01 0004 15

of R.C. 3127.15 states that: “Division (A) of this section is the exclusive jurisdictional basis

for making a child custody determination by a court of this state.” (Emphasis added.)

{¶ 40} With regard to the term “home state” used in R.C. 3127.15, R.C.

3127.01(B)(7) defines the term as “the state in which a child lived with a parent * * * for at

least six consecutive months immediately preceding the commencement of a child

custody proceeding * * *. A period of temporary absence * * * is counted as part of the

six-month * * * period.” Thus, R.C. 3127.15(A)(1) “manifestly confer[s] home-state

jurisdiction on the state that either (1) ‘is the home state of the child on the date of the

commencement of the proceeding,’ or (2) ‘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 * * * continues to live in this state.’ ” Id. at ¶ 34.

{¶ 41} Judge Wilgus and Ms. Hershberger allege neither Ohio nor Michigan is a

statutory home state under the provisions of R.C. Chapter 3127. See Answer, Second

Affirmative Defense; Motion to Dismiss/Judgment on the Pleadings, p. 2; Intervenor’s

Merit Brief, p. 5. We disagree. In the Rosen decision, the Ohio Supreme Court reviewed

case law from around the country, specifically focusing on a Montana case that defined

home state under the Montana version of the UCCJEA. In Stephens v. Fourth Judicial

Dist. Court,

,

(2006), the parents and their minor children

lived in Arkansas from 2002 until May 2005, when they moved to Montana. Id. at ¶ 36.

Less than six months later, the father filed a dissolution action in Montana. Id. The

Montana Supreme Court granted a writ of prohibition to the mother to prevent the

Montana dissolution action from proceeding because Arkansas was the home state of the

minor children within six months before the filing of the case. Id. at ¶ 36. Tuscarawas County, Case No. 2021 AP 01 0004 16

The Montana Supreme Court explained the meaning of “home state”:

[W]e hold that “home state” for purposes of determining initial jurisdiction

under [the Montana UCCJEA], is not limited to the time period of “6

consecutive months immediately before the commencement of a child

custody proceeding.” The applicable time period to determine “home

state” in such circumstances should be “within 6 months before the

commencement of [the ‘child custody] proceeding.”

Id. at ¶ 36.

{¶ 42} The Ohio Supreme Court adopted this definition of “home state” in

the Rosen decision and based on the facts presented in Rosen concluded:

West Virginia [rather than Ohio where the minor children had lived for

approximately four months before mother commenced legal proceedings

for divorce and custody] was the home state of David and Kathleen’s

minor children because they had lived there [West Virginia] for six

consecutive months as of a date within the six-month period before David

filed his West Virginia divorce action. Therefore, West Virginia was the

home state of the minor children “within six months before the

commencement” of David’s West Virginia divorce case, i.e., they had

lived in West Virginia for six consecutive months ending within the six

months before the West Virginia case commenced.

Id. at ¶ 42. Tuscarawas County, Case No. 2021 AP 01 0004 17

{¶ 43} In the present matter, the minor child was in the state of Ohio for only six

days before Ms. Hershberger filed her Complaint for Temporary Custody. Except for

those six days, the minor child resided in Michigan his entire life. Under the Rosen court’s

definition of “home state,” Michigan is the minor child’s home state for purposes of the

UCCJEA. The minor child resided in Michigan for six consecutive months ending within

the six months before Ms. Hershberger filed her Motion for Temporary Custody in Ohio.

{¶ 44} Further, Ms. Hershberger's reliance on R.C. 3127.15(A)(2) is misplaced.

This section applies only if “[a] court of another state does not have jurisdiction under

division (A)(1) of this section[.]” As we noted above, based on the definition of “home

state” Michigan has jurisdiction under R.C. 3127.15(A)(1) as the minor child’s home state.

Section (A)(2) also applies if “a court of the home state of the child has declined to

exercise jurisdiction[.]” A Complaint for Custody and a Motion to Transfer Case, to Accept

Jurisdiction Pursuant to the Uniform Child Custody Jurisdiction and Enforcement Act is

pending in the 4th Circuit, Jackson County, Michigan. The judge overseeing the case

entered an order indicating the case would remain pending until further order of the court.

There is no evidence the Michigan judge has declined to exercise jurisdiction in this

matter. Therefore, for these reasons we do not find R.C. 3127.15(A)(2) grants the juvenile

court in Ohio jurisdiction over this custody matter.

{¶ 45} Finally, we find the facts here similar to those addressed by the Ohio

Supreme Court in State ex rel. V.K.B. v. Smith,

,

,

. In that case, mother had sole custody of the minor child per a judgment

issued by an Ohio juvenile court in 2009. Id. at ¶ 2. Since then, mother moved to Arizona

with her daughter and lived there for two years, making Arizona her permanent home. Id. Tuscarawas County, Case No. 2021 AP 01 0004 18

On a visit to Ohio in 2012, she was called back to Arizona, and she left the minor child

temporarily with her mother. Id. While mother was in Arizona, the minor child’s paternal

grandfather filed an ex parte motion in the Sandusky Juvenile Court for emergency

temporary custody under R.C. 3127.18. Id. After the ex parte order was granted, mother

filed a “notice of filing of foreign judgment” in Arizona, giving that court notice of the 2009

Ohio custody order. Id. at ¶ 6.

{¶ 46} Thereafter, Mother filed a complaint for a writ of prohibition alleging the Ohio

court lacked jurisdiction now that she and the minor child were residents of Arizona. Id.

The court of appeals dismissed the writ finding the juvenile court had jurisdiction under

the UCCJEA and mother had an adequate remedy at law by way of an appeal. Id. at ¶ 3.

{¶ 47} On appeal the Ohio Supreme Court explained the question to be

determined was whether the juvenile court’s exercise of jurisdiction was authorized by

law and whether denying the writ would result in an injury for which no other adequate

remedy exists. Id. at ¶ 12.

{¶ 48} The Ohio Supreme Court granted the writ and determined the juvenile court

had not complied with the mandates of R.C. 3127.18 regarding the grant of temporary

custody to a grandparent. Id. at ¶ 27. Importantly, the Court noted the lack of jurisdiction

need not be “ ‘patent and unambiguous’ ” as is normally required for a writ of prohibition

to issue. Id. at ¶ 18. The Court explained an appeal would not be adequate because the

contest is between a parent and a nonparent. Id. at ¶ 21. “[N]atural parents have a

fundamental constitutional interest in the care, custody, and management of their children

that grandparents do not.” Id., citing Harrold v. Collier,

, 2005-Ohio-

5334,

. Tuscarawas County, Case No. 2021 AP 01 0004 19

{¶ 49} Further, the Court explained:

An “adequate remedy” in child-custody cases is unlike that in other types

of cases, because for a child and her parent, time is the most precious of

commodities. If a child is removed from her parent for a year, as has

already occurred in this case, that year can never be replaced. If a writ is

not issued and the case returned to the juvenile court in these

circumstances, it may languish for one or two more years before the court

issues an appealable order. The appeal can take an additional year or

two by the time briefs are prepared and oral arguments delivered and the

judges arrive at a conclusion.

Id. at ¶ 23.

{¶ 50} Finally, the Court also noted the lack of communication between the Ohio

and Arizona courts, which also appears to be an issue in the present matter. Id. at ¶ 22.

Under the V.K.B. decision, we find an appeal from the juvenile court’s decision would not

be an adequate remedy. The minor child has already been in the temporary custody of

Mrs. Hershberger for almost one year. An appeal would only further delay reunification.

CONCLUSION

{¶ 51} For the reasons set forth above, we conclude the juvenile court lacked

subject matter jurisdiction to rule on Ms. Hershberger’s Complaint for Custody and Motion

for Ex Parte Temporary Custody because Michigan is the minor child’s home state under

the UCCJEA. The Court hereby grants the Kallets' Complaint for Writ of Prohibition to

prevent Judge Wilgus from proceeding with the issue of child custody in the underlying

case. Tuscarawas County, Case No. 2021 AP 01 0004 20

{¶ 52} Under R.C. 3127.18(C), Judge Wilgus shall issue an order specifying in the

order a period the court considers adequate to allow Ms. Hershberger and the Kallets to

obtain an order from Michigan. Judge Wilgus’s order granting temporary custody of the

minor child to Ms. Hershberger shall remain in effect until an order is obtained from

Michigan within the time period specified or until the period ends. Further, under R.C.

3127.18(D), Judge Wilgus shall immediately communicate with the 4th Circuit Court,

Jackson County, Michigan, to resolve the emergency, protect the safety of the parties

and minor child, and determine a period for the duration of the temporary order.

{¶ 53} The clerk of courts is hereby directed to serve upon all parties not in default

notice of this judgment and its date of entry upon the journal. See Civ.R. 58(B).

{¶ 54} WRIT GRANTED.

{¶ 55} COSTS TO RESPONDENT AND INTERVENOR/RESPONDENT.

{¶ 56} IT IS SO ORDERED.

By Earle E. Wise, Jr., J.

Baldwin, P.J. and

Delaney, J. concur.

EEW/ac