[Cite as State ex rel. Jones v. Paschke,

.]

IN THE COURT OF APPEALS OF OHIO ELEVENTH APPELLATE DISTRICT GEAUGA COUNTY

STATE OF OHIO ex rel. CASE NO. 2022-G-0037 JEREMY J. JONES,

Relator, Original Action for Writ of Prohibition - vs -

THE HONORABLE JUDGE CAROLYN J. PASCHKE,

Respondent.

PER CURIAM OPINION

Decided: May 8, 2023 Judgment: Petition denied

Joseph G. Stafford, Nicole A. Cruz, and Kelley R. Tauring, Stafford Law Co., LPA, 55 Erieview Plaza, 5th Floor, Cleveland, OH 44114 (For Relator).

James R. Flaiz, Geauga County Prosecutor, and Linda M. Applebaum, Assistant Prosecutor, Courthouse Annex, 231 Main Street, Chardon, OH 44024 (For Respondent).

PER CURIAM.

{¶1} Relator, Jeremy J. Jones (“Mr. Jones”), filed a verified petition for writ of

prohibition against respondent, the Honorable Judge Carolyn J. Paschke (“Judge

Paschke”), to prevent Judge Paschke from exceeding her jurisdiction in the matter of

Heidi O’Neill v. Jeremy J. Jones in the Geauga County Court of Common Pleas by

proceeding upon the complaint for grandparent companionship rights pursuant to R.C.

3109.11 that was filed by plaintiff, Heidi O’Neill (“Mrs. O’Neill). {¶2} This matter is currently before the court for resolution of the parties’

competing motions for summary judgment.

{¶3} Since Mr. Jones can prove no set of facts establishing that Judge Paschke

“patently and unambiguously” lacks jurisdiction or that he lacks an adequate remedy at

law, we grant Judge Paschke’s motion for summary judgment, overrule Mr. Jones’ motion

for summary judgment, and deny Mr. Jones’ petition.

Factual and Procedural History

{¶4} In his petition, Mr. Jones alleges that on July 12, 2022, Mrs. O’Neill filed a

complaint in the Geauga County Court of Common Pleas against Mr. Jones seeking

reasonable grandparent companionship/visitation with Mr. Jones’ minor son. The minor

was born on December 26, 2015, to Mr. Jones and Mrs. O’Neill’s deceased daughter,

Molly A. Jones, as issue of their marriage. Molly A. Jones died on July 2, 2022.

{¶5} In response, Mr. Jones filed a motion to dismiss, alleging the trial court

lacked jurisdiction to determine grandparent visitation pursuant to R.C. 3109.11.

{¶6} In September 2022, the trial court issued a judgment entry denying Mr.

Jones’ motion to dismiss, finding that the Geauga County Court of Common Pleas has

subject matter jurisdiction to proceed on Mrs. O’Neill’s complaint. More specifically, the

trial court found that R.C. 3109.11, applicable in the underlying case, authorizes a

common pleas court to grant reasonable companionship or visitation rights to the parents

of a deceased father or mother if the court determines that such visitation is in the best

interest of the minor child. Further, juvenile courts do not have original subject matter

jurisdiction over visitation motions brought under R.C. 3109.11. Lastly, since the same

magistrate presided over the divorce proceedings of Mr. Jones and Molly Jones, and

2

Case No. 2022-G-0037 since he is already familiar with the history and circumstances related to the care of the

minor child, the interests of justice are better served by the Court of Common Pleas as

opposed to the Juvenile Court.

{¶7} In his petition, Mr. Jones contends that the Juvenile Court has jurisdiction

to determine claims for grandparent visitation. This is especially so because prior to his

divorce proceedings with Molly Jones, he had filed a complaint for neglect and

dependency and an ex parte motion for temporary custody against Molly Jones in the

Juvenile Court. Ultimately, the Juvenile Court vacated the ex parte temporary custody

order after reviewing drug test results of Mr. Jones and Molly Jones and relinquished

jurisdiction to the Domestic Relations Division because the parties were married.

{¶8} Mr. Jones also contends the trial court lacks jurisdiction to appoint a

guardian ad litem (“GAL”) in the underlying matter because it “failed to set forth any

statutory grounds for the appointment of a guardian ad litem in a grandparent

companionship case.” He further asserts that a GAL may only be appointed upon the

allocation of parental rights and responsibilities pursuant to R.C. 3109.04.

Standard of Review

{¶9} Both parties have moved for summary judgment. To be entitled to summary

judgment, they must show that: “(1) No genuine issue as to any material fact remains to

be litigated; (2) the moving party is entitled to judgment as a matter of law; and (3) it

appears from the evidence that reasonable minds can come to but one conclusion, and

viewing such evidence most strongly in favor of the party against whom the motion for

summary judgment is made, that conclusion is adverse to that party.” Temple v. Wean

United, Inc.,

,

(1977), citing Civ.R. 56(C).

3

Case No. 2022-G-0037 Legal Standards

{¶10} A writ of prohibition is an extraordinary judicial writ issuing out of a court of

superior jurisdiction and directed to an inferior tribunal commanding it to cease abusing

or usurping judicial functions. State ex rel. Tubbs Jones v. Suster,

,

(1998). The purpose of a writ of prohibition is to restrain inferior courts

and tribunals from exceeding their jurisdiction.

As such, it is an extraordinary remedy

which is customarily granted with caution and restraint and is issued only in cases of

necessity arising from the inadequacy of other remedies.

{¶11} To be entitled to a writ of prohibition, a relator must establish that (1) the

respondent is about to exercise judicial or quasi-judicial power, (2) the exercise of that

power is unauthorized by law, and (3) denying the writ would result in injury for which no

other adequate remedy exists in the ordinary course of law. State ex rel. Bell v. Pfeiffer,

,

,

, ¶ 18.

{¶12} The last two elements can be met by a showing that the trial court “patently

and unambiguously” lacked jurisdiction. Chesapeake Exploration, L.L.C. v. Oil & Gas

Comm.,

,

,

. “Where an inferior

court patently and unambiguously lacks jurisdiction over the cause, prohibition will lie both

to prevent the future unauthorized exercise of jurisdiction and to correct the results of

previous jurisdictionally unauthorized actions.” State ex rel. Stern v. Mascio,

,

(1998).

4

Case No. 2022-G-0037 Law and Analysis

{¶13} A review of Mr. Jones’s petition demonstrates he cannot establish that

Judge Paschke “patently and unambiguously” lacks jurisdiction or that he lacks an

adequate remedy at law.

Subject Matter Jurisdiction

{¶14} Mr. Jones incorrectly asserts that the juvenile court should have jurisdiction

over Ms. O’Neill’s claims for grandparent visitation.

{¶15} The General Assembly authorizes nonparent visitation with a child in three

situations: (1) in a divorce, dissolution, legal separation, annulment, or child support

proceeding, the court may grant reasonable companionship or visitation rights to any

grandparent, any person related to the child by consanguinity or affinity, or any other

person other than the parent (R.C. 3109.051(B)(1)); (2) the court may grant the parents

and other relatives of the deceased parent reasonable companionship or visitation rights

(R.C. 3109.11); and (3) the court may grant grandparents and other relatives reasonable

companionship or visitation rights to grandparents and other relatives when the child’s

mother is unmarried (R.C. 3109.12).

{¶16} Mrs. O’Neill filed her complaint for grandparent visitation pursuant to R.C.

3109.11, which states:

{¶17} “If either the father or mother of an unmarried minor child is deceased, the

court of common pleas of the county in which the minor child resides may grant the

parents and other relatives of the deceased father or mother reasonable companionship

or visitation rights with respect to the minor child during the child’s minority if the parent

or other relative files a complaint requesting reasonable companionship or visitation rights

5

Case No. 2022-G-0037 and if the court determines that the granting of the companionship or visitation rights is in

the best interest of the minor child. In determining whether to grant any person

reasonable companionship or visitation rights with respect to any child, the court shall

consider all relevant factors, including, but not limited to, the factors set forth in division

(D) of section 3109.051 of the Revised Code. Divisions (C), (K), and (L) of section

3109.051 of the Revised Code apply to the determination of reasonable companionship

or visitation rights under this section and to any order granting any such rights that is

issued under this section.” (Emphasis added.)

{¶18} Jurisdiction is the trial court’s “statutory or constitutional power to

adjudicate the case.” Steel Co. v. Citizens for a Better Environment,

,

,

(1998); Subject matter jurisdiction is defined as a court’s

power to hear and decide cases. Morrison v. Steiner,

,

(1972), paragraph one of the syllabus. Because subject matter jurisdiction goes to the

power of the court to adjudicate the merits of a case, it can never be waived and may be

challenged at any time. Wells Fargo Bank, Natl. Assn. v. Elliott, 5th Dist. Delaware No.

13 CAE 03 0012,

.

{¶19} “A juvenile court may exercise jurisdiction only if expressly granted the

authority to do so by statute.” Rowell v. Smith,

,

,

, citing Article IV, Section 4(B), Ohio Constitution (“The courts of common

pleas and divisions thereof shall have such original jurisdiction over all justiciable matters

and such powers of review of proceedings of administrative officers and agencies as may

be provided by law”).

6

Case No. 2022-G-0037 {¶20} R.C. 2151.23(A)(2) confers exclusive, original jurisdiction on juvenile courts

“to determine the custody of any child not a ward of another court of this state[.]” It has

been suggested that this provision “typically encompasses all custody disputes between

parents and non-parents.” (Emphasis added.) Scavio v. Ordway, 3d Dist. Shelby No.

17-09-07,

, citing In re James,

,

,

(Lundberg Stratton, J., dissenting) (“R.C. 2151.23(A)(2) authorizes

a juvenile court to determine custody issues of any child who is not a ward of another

court of the state, which often involve proceedings between a parent and a nonparent”).

{¶21} The Supreme Court of Ohio has explained that the grant of authority in R.C.

2151.23(A)(2) to determine the custody of a child not a ward of another Ohio court does

not provide the juvenile court with jurisdiction to determine a nonparent’s claim for

visitation. In re Gibson,

,

(1991), syllabus. This is

because “visitation” and “custody” are related but distinct legal concepts.

.

{¶22} “Custody” is granted to the party who has “the right to ultimate legal and

physical control of a child.”

“Visitation” is granted to a “noncustodial party and

encompasses that party’s right to visit the child.”

“Although a party exercising

visitation rights might gain temporary physical control over the child for that purpose, such

control does not constitute ‘custody’ because the legal authority to make fundamental

decisions about the child’s welfare remains with the custodial party and because the child

eventually must be returned to the more permanent setting provided by that party.”

A

grandparent’s complaint seeking visitation with a grandchild cannot be determined by the

juvenile court pursuant to its authority to determine the “custody” of children under R.C.

2151.23(A)(2).

at syllabus.

7

Case No. 2022-G-0037 {¶23} Thus, pursuant to R.C. 2151.23, which governs the jurisdiction of the

juvenile court, there is no authority within the statute for a juvenile court to consider a

complaint where the sole issue is a grandparent seeking visitation with a grandchild. See

Waters v. Waters, 4th Dist. Gallia No. 95CA20,

, *1 (July 31, 1996)

(Juvenile court was without jurisdiction to determine grandparent visitation where sole

issue was grandparent seeking visitation); In re Burrows, 3d Dist. Seneca Nos. 13-04-03

and 13-04-04,

, ¶ 2 (Juvenile court was correct in finding that it did not

have subject matter jurisdiction over R.C. 3109.11 grandparent motions for visitation); In

re McCrady, 4th Dist. Washington Nos. 99CA52 and 00CA16,

, *2-3

(Nov. 6, 2000) (Juvenile court correctly ruled that it did not have jurisdiction to award

visitation to paternal grandparents where maternal grandparents had custody of the child

after the child’s father went to prison for murdering the child’s mother).

{¶24} Thus, it is clear Mr. Jones cannot establish that the Geauga County Court

of Common Pleas “patently and unambiguously” lacks subject matter jurisdiction over

Mrs. O’Neill’s complaint for grandparent visitation.

Appointment of the GAL

{¶25} Mr. Jones also contends the trial court lacked jurisdiction to appoint a GAL

in the underlying case because it “failed to set forth any statutory grounds for the

appointment of a guardian ad litem in a grandparent companionship case.” He further

asserts that a GAL may only be appointed upon the allocation of parental rights and

responsibilities pursuant to R.C. 3109.04.

{¶26} Most fundamentally, Mr. Jones’ contention is not a question of the trial

court’s subject matter jurisdiction. Rather, he is challenging the trial court’s exercise of

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Case No. 2022-G-0037 subject matter jurisdiction, which may give rise to a claim of trial court error of which he

has an adequate remedy by way of an appeal.

{¶27} Prohibition “tests and determines ‘solely and only’ the subject matter

jurisdiction” of the trial court. Tubbs

, quoting State ex rel. Eaton Corp.

v. Lancaster,

,

(1988). As the Supreme Court of

Ohio has recognized, “there are many cases in which a court lacks the legal authority to

grant the relief sought but nevertheless has subject-matter jurisdiction to hear the case.”

Ohio High School Athletic Assn. v. Ruehlman,

,

,

, ¶ 14, citing State ex rel. Enyart v. O’Neill,

, 656,

(1995) (“the fact that [a judge] may have exercised that jurisdiction erroneously does

not give rise to extraordinary relief by prohibition”). Thus, there is “a distinction between

a court that lacks subject-matter jurisdiction over a case and a court that improperly

exercises that subject-matter jurisdiction once conferred upon it.” Pratts v. Hurley,

,

,

, ¶ 10 (2004).

{¶28} “[A]ppeal, not mandamus or prohibition, is the remedy for the correction of

errors.” State ex rel. Levin v. Sheffield Lake,

,

(1994). Therefore, “‘[e]xtraordinary remedies, i.e., mandamus [and] prohibition[,] * * * may

not be employed before trial on the merits, as a substitute for an appeal for the purpose

of reviewing mere errors, or irregularities in the proceedings of a court having proper

jurisdiction * * *.’”

quoting State ex rel. Woodbury v. Spitler,

,

(1973). An appeal from the judgment concluding a case is an adequate

legal remedy barring issuance of a writ of prohibition. State ex rel. Welt v. Doherty, 11th

Dist. Portage No. 2020-P-0018,

, ¶ 21.

9

Case No. 2022-G-0037 {¶29} We make no determination as to the ultimate merits of Mr. Jones’

arguments concerning the appointment of the GAL because the proper time to make such

an argument is on direct appeal, with full consideration of a record not currently before

us.

{¶30} Because Mr. Jones has an adequate remedy at law, he can prove no set of

facts warranting relief in prohibition. State ex rel. Hummel v. Sadler,

,

,

, ¶ 20.

{¶31} For the foregoing reasons, Judge Paschke’s motion for summary judgment

is granted, Mr. Jones’ motion for summary judgment is overruled, and Mr. Jones’ petition

is denied.

JOHN J. EKLUND, P.J., MARY JANE TRAPP, J., MATT LYNCH, J., concur.

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Case No. 2022-G-0037