Pegan v. Crawmer

[This opinion has been published in Ohio Official Reports at 

76 Ohio St.3d 97

.]




                   PEGAN, APPELLANT, v. CRAWMER, APPELLEE.
                    [Cite as Pegan v. Crawmer, 

1996-Ohio-419

.]
Petition for writ of habeas corpus seeking restoration of custody of minor child—
        Writ denied, when.
         (No. 95-2569—Submitted June 4, 1996—Decided July 24, 1996.)
     APPEAL from the Court of Appeals for Licking County, No. 94-CA-106.
                                  __________________
        {¶ 1} In February 1989, appellant, Stella M. Pegan, gave birth to a daughter,
Candi. Pegan subsequently filed a paternity action against appellee, Ronald L.
Crawmer, who acknowledged that he is Candi’s natural father. In December 1990,
the Licking County Court of Common Pleas, Juvenile Division, entered a judgment
establishing Crawmer’s paternity of Candi and ordering him to pay child support.
The juvenile court further awarded custody of the minor child to Pegan and
visitation rights to Crawmer. Effective January 1991, the General Assembly
established the Licking County Court of Common Pleas, Domestic Relations
Division, which possesses exclusive jurisdiction over, inter alia, parentage actions
and postdecree proceedings arising in parentage actions in Licking County. R.C.
2301.03(S). The domestic relations court thus possessed continuing jurisdiction
over the orders previously entered by the juvenile court in Pegan’s paternity action.
        {¶ 2} In October 1993, Candi was discovered wandering the streets after
she had been left alone by Pegan with Pegan’s two other minor children, Tekela
and Daniel, who are younger than Candi. In February 1994, the Licking County
Municipal Court convicted Pegan of theft in connection with a shoplifting incident.
In March 1994, Tekela, then about two years old, was found wandering the
neighborhood. A police officer observed that the child had dried fecal matter on
her legs and dried green “nasal matter” coming from her nostrils, and looked as if
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she had not bathed in several days. In October 1994, the municipal court convicted
Pegan of child endangering in connection with the March 1994 incident.
       {¶ 3} Meanwhile, Crawmer had filed a motion for change of custody in the
Licking County Court of Common Pleas, Domestic Relations Division. The
domestic relations court granted temporary custody of Candi to Crawmer, pending
a hearing on the motion. At the October 1994 hearing on Crawmer’s motion, Pegan
moved to dismiss the motion for lack of jurisdiction because Crawmer had failed
to attach an R.C. 3109.27 custody affidavit. On October 19, 1994, the domestic
relations court granted Pegan’s motion and dismissed Crawmer’s motion.
However, the court stayed the dismissal pending an appeal by Crawmer. During
the stay, Pegan filed a complaint for a writ of habeas corpus in the Licking County
Court of Appeals to restore custody of Candi to her.
       {¶ 4} On October 20, 1994, just prior to filing his notice of appeal from the
domestic relations court’s October 19 dismissal entry, Crawmer filed a second
motion for a change of custody, this time attaching an R.C. 3109.27 child custody
affidavit indicating that he had no knowledge of any pending custody proceeding
involving Candi in any other court. The domestic relations court immediately
issued an ex parte order granting temporary custody of Candi to Crawmer pending
a hearing on his second motion for change of custody.
       {¶ 5} The court of appeals dismissed Pegan’s habeas corpus complaint for
failing to certify that a copy of it had been served on Crawmer. On appeal, we
reversed and remanded the cause to the court of appeals to determine if the writ
should be allowed and a return ordered. Pegan v. Crawmer (1995), 

73 Ohio St.3d 607

, 

653 N.E.2d 659

. In the interim, the court of appeals affirmed the domestic
relations court’s dismissal of Crawmer’s first motion for a change of custody.
Pegan v. Crawmer (Apr. 13, 1995), Licking App. No. 94-CA-107, unreported,

1995 WL 434108

. Thereafter, the domestic relations court proceeded to hold a




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                                 January Term, 1996




hearing on Crawmer’s second change-of-custody motion and awarded custody of
Candi to Crawmer. Pegan appealed the custody determination.
          {¶ 6} On remand of Pegan’s habeas corpus action, the court of appeals
allowed the writ. Crawmer then filed a trial brief with attached exhibits. In
November 1995, the court of appeals denied the writ of habeas corpus.
          {¶ 7} The cause is now before this court upon an appeal as of right.
                               ____________________
          Central Ohio Legal Aid Society, Inc. and Patricia L. Moore, for appellant.
          Cindy Ripko, for appellee.
          Price & Neel and Tyra L. Taylor, guardian ad litem, urging affirmance for
amicus curiae, Candi Pegan.
                               ____________________
          Per Curiam.
          {¶ 8} Pegan asserts that the court of appeals erred in denying the writ of
habeas corpus. The court of appeals determined that the domestic relations court
retained continuing jurisdiction over the custody issues, that Pegan’s appeal was
pending before the court of appeals regarding the domestic relations court’s custody
award, and that Pegan had failed to demonstrate that she has no adequate remedy
at law.
          {¶ 9} A writ of habeas corpus lies in certain extraordinary circumstances
where there is an unlawful restraint of a person’s liberty and there is no adequate
remedy in the ordinary course of law. State ex rel. Pirman v. Money (1994), 

69 Ohio St.3d 591, 593

, 

635 N.E.2d 26, 29

. Habeas corpus relief is the exception
rather than the general rule in child custody actions. Barnebey v. Zschach (1995),

71 Ohio St.3d 588

, 

646 N.E.2d 162

. A writ of habeas corpus will ordinarily be
denied where there is an adequate remedy in the ordinary course of the law. In re
Hunt (1976), 

46 Ohio St.2d 378

, 

75 O.O.2d 450

, 

348 N.E.2d 727

, paragraph two of
the syllabus; Marich v. Knox Cty. Dept. of Human Serv. (1989), 

45 Ohio St.3d 163

,




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165, 

543 N.E.2d 776, 779

. Nevertheless, where a judgment is void due to lack of
jurisdiction, habeas corpus is an appropriate remedy despite the availability of
alternative remedies such as appeal. Gaskins v. Shiplevy (1995), 

74 Ohio St.3d 149, 151

, 

656 N.E.2d 1282, 1284

; In re Lockhart (1952), 

157 Ohio St. 192

, 195, 

47 O.O. 129

, 131, 

105 N.E.2d 35

, 37, and paragraph three of the syllabus.
        {¶ 10} In her first and second propositions of law, Pegan contends that the
domestic relations court lacked continuing jurisdiction to grant custody of the
parties’ child to Crawmer when its predecessor juvenile court lacked jurisdiction to
originally award custody and visitation concerning the child in the context of the
paternity action instituted by Pegan.
        {¶ 11} R.C. 3111.13(C) provides:
        “The judgment or order [determining the existence or nonexistence of the
parent and child relationship] may contain any other provision directed against the
appropriate party to the proceeding, concerning the duty of support, the furnishing
of bond or other security for the payment of the judgment, or any other matter in
the best interest of the child. *** After entry of the judgment or order, the father
may petition that he be designated the residential parent and legal custodian of the
child or for visitation rights in a proceeding separate from any action to establish
paternity. ***” (Emphasis added.)
        {¶ 12} Pegan relies on Burns v. Darnell (1995), 

100 Ohio App.3d 419

, 

654 N.E.2d 169

, in which an appellate court held that there is no provision in the
paternity statute for the determination of visitation rights and that a trial court does
not err in requiring a father to seek visitation in a separate action rather than by
postjudgment motion for visitation in the paternity proceeding.
        {¶ 13} The Burns view is not shared by other appellate courts. See, e.g.,
Hammon v. Hammon (Apr. 12, 1991), Van Wert App. No. 15-90-14, unreported,

1991 WL 53747

 (R.C. 3111.13[C] “does not mandate a separate proceeding [to
determine visitation]. Instead, it grants permission to the father to petition for



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                                  January Term, 1996




visitation in a separate proceeding rather than doing so at the paternity hearing. The
trial court may include provisions for visitation [in the paternity judgment] if it is
‘in the best interest of the child.’”); West v. Anderson (Mar. 17, 1992), Franklin
App. No. 91AP-1006, unreported, 

1992 WL 55440

 (“[T]he father may maintain a
separate action, but [R.C. 3111.13(C)] does not preclude the parties from agreeing
to litigate all issues in one action, including visitation.”).
        {¶ 14} In addition, Burns noted that “any error in proceeding to determine
visitation in [a paternity] action, rather than in a separate action, may not be
prejudicial.” Burns, 

100 Ohio App.3d at 421

, 

654 N.E.2d at 170

; see, also, West,
supra (“The legislature has vested the common pleas court with subject matter
jurisdiction over visitation and, therefore, whether the actions are maintained
separately or jointly is not an issue of non-waivable jurisdiction but, rather, one of
venue, which is waivable.”). Burns is also distinguishable from the instant case,
since the trial court in Burns did not enter a visitation order in the original paternity
determination.
        {¶ 15} Pegan further relies on In re Byard (1996), 

74 Ohio St.3d 294

, 

658 N.E.2d 735

. In Byard, at the syllabus, we held that “Ohio’s Uniform Reciprocal
Enforcement of Support Act [‘URESA’], R.C. Chapter 3115, does not confer
subject matter jurisdiction over issues concerning child custody and visitation in an
action for child support enforcement.” In so holding, we noted that in a URESA
action, the custodial parent requesting support enforcement has no notice that
visitation and custody issues will be raised. 

Id.,

 74 Ohio St.3d at 297, 

658 N.E.2d at 738

. Conversely, the record in this case, which does not include the pleadings
or hearing in the 1990 paternity action, discloses no lack of notice concerning
visitation and custody. In fact, the record before the court of appeals indicates no
argument to that effect by Pegan. Further, the paternity action was governed by
R.C. 3111.13(C), rather than the URESA provisions applicable in Byard. Byard is
thus not controlling here.




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       {¶ 16} Pegan next contends that the domestic relations court lacked
continuing jurisdiction, since the juvenile court did not have original jurisdiction to
award custody and visitation where no party filed the child custody affidavit
required by R.C. 3109.27 in the paternity action. R.C. 3109.27, part of Ohio’s
adoption of the Uniform Child Custody Jurisdiction Act, provides:
       “(A) Each party in a parenting proceeding, in the party’s first pleading or in
an affidavit attached to that pleading, shall give information under oath as to the
child’s present address, 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. In this pleading or affidavit, each party shall also include
all of the following information:
       “***
       “(2) Whether the party has information of any parenting proceeding
concerning the child pending in a court of this or any other state ***.”
       {¶ 17} Parenting proceedings include proceedings in which a court awards
custody and visitation. R.C. 3109.21(B) and (C). The juvenile court’s 1990
paternity determination      included custody and visitation          determinations.
Consequently, R.C. 3109.27(A) required each party to file a child custody affidavit.
       {¶ 18} “The requirement of R.C. 3109.27 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.” Pasqualone v. Pasqualone (1980),

63 Ohio St.2d 96

, 

17 O.O.3d 58

, 

406 N.E.2d 1121

, paragraph one of the syllabus.
Pegan relies on Pasqualone to support her jurisdictional argument on appeal.
However, she neither raised this issue nor introduced evidence below that no R.C.
3109.27 affidavit was filed in the paternity proceeding. The record does not include
the pleadings filed in the paternity action.




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                                 January Term, 1996




        {¶ 19} Based on the foregoing, the juvenile court possessed jurisdiction to
make custody and visitation orders in its paternity judgment under R.C.
3111.13(C).    Furthermore, the domestic relations court possessed continuing
jurisdiction over the juvenile court’s original custody award so that it could
determine Crawmer’s motion for change of custody. R.C. 3111.16 and 2301.03(S).
Pegan had an adequate remedy by appeal to raise her contentions concerning any
alleged failure to comply with R.C. 3111.13(C).
        {¶ 20} Moreover, in order to prevail on a petition for a writ of habeas corpus
in a child custody case, the petitioner must establish that (1) the child is being
unlawfully detained, and (2) the petitioner has the superior legal right to custody of
the child. 2 Child Custody and Visitation Law and Practice (1992) 7-7, Section
7.02[1]. In her complaint for habeas corpus relief, Pegan claimed entitlement to
custody of Candi by virtue of the 1990 custody award in her paternity action.
Therefore, assuming, arguendo, the validity of Pegan’s contentions in her first and
second propositions of law contesting the jurisdiction of the juvenile court, her
same arguments would defeat the very judgment she seeks to enforce to establish
her alleged superior legal right to custody. Any conclusion that the decisions
relating to custody and visitation are void would result in neither Pegan nor
Crawmer possessing a judicial order awarding custody, and the custody
determination would simply be between Candi’s natural parents.
        {¶ 21} In such circumstances, the court would have to determine which
custody award would be in the best interest of the child. See, e.g., Pruitt v. Jones
(1980), 

62 Ohio St.2d 237

, 

16 O.O.3d 276

, 

405 N.E.2d 276

 (In a habeas corpus
action to obtain custody of an illegitimate child in a controversy between the child’s
natural parents, a determination of the child’s best interests is required.); 1 Antieau,
The Practice of Extraordinary Remedies (1987) 113, Section 1.50 (“Whenever
child custody is litigated in a habeas corpus action, the best interest of the child is
the prime consideration.”). The evidence in the record indicates that the child’s




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best interests will be served by Crawmer retaining custody. Candi’s guardian ad
litem concurs in this conclusion.       Consequently, Pegan’s first and second
propositions of law are meritless and are overruled.
       {¶ 22} In her third proposition of law, Pegan asserts that the domestic
relations court could not exercise its continuing jurisdiction to modify custody
based on Crawmer’ second postjudgment motion for change of custody where he
had appealed the dismissal of his first motion for change of custody. When a case
has been appealed, the trial court retains all jurisdiction not inconsistent with the
reviewing court’s jurisdiction to reverse, modify, or affirm the judgment. State ex
rel. Neff v. Corrigan (1996), 

75 Ohio St.3d 12, 15

, 

661 N.E.2d 170, 174

. Here, the
domestic relations court granted temporary custody to Crawmer pending a hearing
on his second motion prior to the filing of his notice of appeal from the court’s
dismissal of his first motion. Further, the domestic relations court did not proceed
with the hearing and custody determination on the second motion until after the
court of appeals had resolved the appeal concerning the dismissal of his first
motion. See State ex rel. Newton v. Court of Claims (1995), 

73 Ohio St.3d 553, 558

, 

653 N.E.2d 366, 371

 (After appeal was dismissed, trial court had jurisdiction
to rule on previously filed Civ.R. 60[B] motion.). Finally, Crawmer filed the child
custody affidavit required by R.C. 3109.27(A) with his second motion for change
of custody.    The domestic relations court properly exercised its continuing
jurisdiction. Pegan’s third proposition of law is overruled.
       {¶ 23} In conclusion, Pegan did not establish her right to extraordinary
relief in habeas corpus. She possesses an adequate remedy via appeal of the
domestic relations court’s award of custody of Candi to Crawmer. In fact, she has
an appeal from that judgment pending in the court of appeals. Based on the
foregoing, the judgment of the court of appeals denying the writ is affirmed.
                                                                Judgment affirmed.




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                          January Term, 1996




       MOYER, C.J., DOUGLAS, RESNICK, F.E. SWEENEY, PFEIFER, COOK and
STRATTON, JJ., concur.
                         __________________




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