State ex rel. Willacy v. Smith

[This opinion has been published in Ohio Official Reports at 

78 Ohio St.3d 47

.]




      THE STATE EX REL. WILLACY, APPELLANT, v. SMITH, JUDGE, ET AL.,
                                       APPELLEES.
              [Cite as State ex rel. Willacy v. Smith, 

1997-Ohio-244

.]
Writ of prohibition to prevent juvenile court from proceeding in parentage action
        denied, when.
     (No. 96-1819—Submitted January 21, 1997—Decided March 19, 1997.)
       APPEAL from the Court of Appeals for Cuyahoga County, No. 69723.
                                  __________________
        {¶ 1} In July 1986, Chisara S. Nwabara (“Nwabara”) married Walter L.
Hugley, Jr. (“Hugley”). One child, Starr Chika Hugley, was born as issue of the
marriage in January 1987. After October 1987, Nwabara and Hugley lived separate
and apart. In December 1989, the Cuyahoga County Court of Common Pleas,
Domestic Relations Division, entered a judgment granting Nwabara a divorce from
Hugley. The domestic relations court expressly determined that at the time of the
divorce decree, Nwabara was pregnant and that Hugley was not the father of the
unborn child. The parties to the divorce action never appealed the foregoing
finding.    In February 1990, Nwabara gave birth to Maxim Chidi Nwabara
(“Maxim”).
        {¶ 2} In February 1992, Nwabara and Maxim filed a parentage action in the
Cuyahoga County Court of Common Pleas, Juvenile Division, appellee, to establish
appellant, Aubrey Willacy, as the biological father of Maxim. Nwabara alleged
that Maxim’s conception and birth resulted from an affair with Willacy from
December 1987 through July 1989. Nwabara further alleged that no other person
was presumed to be Maxim’s biological father and that a paternity test indicated
that Willacy was the biological father. In an amended answer, Willacy admitted
                             SUPREME COURT OF OHIO




having sexual intercourse with Nwabara and additionally conceded that the
paternity test purported to establish that he is Maxim’s biological father.
       {¶ 3} Appellee, Judge Burke E. Smith, a visiting judge assigned to hear the
parentage action in juvenile court, overruled Willacy’s motion to dismiss the action
based on lack of subject-matter jurisdiction. Judge Smith also determined that
because of the domestic relations court’s previous finding in the divorce action that
Hugley is not the biological father of Maxim, Hugley’s name would not be
mentioned to the jury. The jury found that Willacy is Maxim’s natural father. In
January 1993, Judge Smith entered a decision incorporating the jury verdict,
granting temporary custody of Maxim to Nwabara, and ordering Willacy to pay
interim child support of $200 per week.
       {¶ 4} The Court of Appeals for Cuyahoga County dismissed Willacy’s
appeal from the January 1993 entry. The court of appeals determined that Judge
Smith’s January 1993 entry “clearly contemplated further action with regard to past
due care, permanent support and permanent custody and, therefore, was not a final
judgment or order.”     Nwabara v. Willacy (May 6, 1994), Cuyahoga App. No.
65450, unreported, 

1994 WL 189141

, appeal dismissed (1994), 

70 Ohio St.3d 1465

, 

640 N.E.2d 527

.
       {¶ 5} In October 1995, Willacy filed a complaint in the court of appeals
seeking (1) a writ of prohibition to prevent appellees, Judge Smith and the juvenile
court, from proceeding any further in the parentage action, and (2) a writ of
mandamus compelling appellees to vacate their interlocutory orders and reimburse
Willacy for any amounts paid pursuant to those orders.
       {¶ 6} Two days after Willacy filed the court of appeals action, Judge Smith
ordered Willacy to (1) pay Nwabara $34,003 for past care, (2) pay Nwabara’s
counsel $5,000 in attorney fees, and (3) share in the $1,842.02 expense for an expert
witness. Judge Smith stated that his October 1995 entry was a final order, and he
overruled Willacy’s motion to stay enforcement of the entry. The court of appeals



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                                 January Term, 1997




dismissed Willacy’s appeal from Judge Smith’s October 1995 entry because it did
not constitute a final appealable order absent a determination on permanent custody
and child support. Nwabara v. Willacy (June 13, 1996), Cuyahoga App. No. 69786,
unreported, 

1996 WL 325318

.
        {¶ 7} In Willacy’s action for writs of prohibition and mandamus, the court
of appeals converted appellees’ motion to dismiss into a motion for summary
judgment, and gave Willacy notice of the conversion and an opportunity to respond
to the summary judgment motion. The court of appeals subsequently granted
appellees’ motion and denied the writs.
        {¶ 8} The cause is now before this court upon an appeal as of right.
                               ____________________
        Willacy, LoPresti & Marcovy and Timothy A. Marcovy, for appellant.
                               ____________________
        Per Curiam.
        {¶ 9} Willacy asserts in his propositions of law that the court of appeals
erred in granting appellees’ motion for summary judgment and denying the
requested writs of prohibition and mandamus. Before summary judgment may be
granted, it must be determined 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 that reasonable minds can come to only one conclusion of
the evidence, and viewing the evidence most strongly in favor of the nonmoving
party, that conclusion is adverse to the party against whom the summary judgment
motion is made. Mootispaw v. Eckstein (1996), 

76 Ohio St.3d 383, 385

, 

667 N.E.2d 1197, 1199

.
        {¶ 10} Initially, we note appellees did not file an appellate brief in this court.
Under S.Ct.Prac.R. VI(6), “[i]f the appellee fails to file a merit brief within the time
provided by this rule or as extended in accordance with S.Ct.Prac.R. XIV, Section
3, the Supreme Court may accept the appellant’s statement of facts and issues as




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correct and reverse the judgment if appellant’s brief reasonably appears to sustain
the reversal.” State ex rel. Montgomery v. R & D Chem. Co. (1995), 

72 Ohio St.3d 202

, 204, 

648 N.E.2d 821

, 822-823. We do not condone appellees’ failure to file a
merit brief because “[b]riefs serve the important function of narrowing and
sharpening the parties’ arguments to the Court.” Staff Commentary to S.Ct.Prac.R.
VI(6). Nevertheless, for the reasons that follow, Willacy is not entitled to reversal
of the court of appeals’ judgment.
                             Adequate Remedy at Law
       {¶ 11} The court of appeals determined that Willacy was not entitled to the
requested extraordinary relief because appellees did not patently and
unambiguously lack jurisdiction to proceed in the parentage action, and Willacy
thus had an adequate remedy at law by appeal to raise his jurisdictional contentions.
Willacy contends that the court of appeals improperly restricted its review of his
action because postjudgment appeal does not constitute an adequate remedy at law.
Willacy suggests that due to the inadequacy of the appellate remedy, the court of
appeals should have determined each of his jurisdictional contentions, rather than
examining only whether a “patent and unambiguous” lack of jurisdiction existed.
       {¶ 12} Neither prohibition nor mandamus will lie where relator possesses
an adequate remedy in the ordinary course of law. State ex rel. Newton v. Court of
Claims (1995), 

73 Ohio St.3d 553, 555

, 

653 N.E.2d 366, 369

. Appeal is inadequate
if it is not complete in its nature, beneficial, and speedy. State ex rel. Nichols v.
Cuyahoga Cty. Bd. of Mental Retardation & Dev. Disabilities (1995), 

72 Ohio St.3d 205, 209

, 

648 N.E.2d 823, 826

.
       {¶ 13} Willacy asserts that appeal following the entry of a final appealable
order by the juvenile court in the parentage action is not an adequate remedy
because of the numerous interlocutory orders and the fact that there is no
mechanism to guarantee reimbursement of his payments of, e.g., temporary child
support, should he obtain a reversal on appeal. But contentions that appeal from



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                                January Term, 1997




any subsequent adverse final judgment would be inadequate due to time and
expense are meritless. Whitehall ex rel. Wolfe v. Ohio Civ. Rights Comm. (1995),

74 Ohio St.3d 120, 124

, 

656 N.E.2d 684

, 688; State ex rel. Gillivan v. Bd. of Tax
Appeals (1994), 

70 Ohio St.3d 196, 200

, 

638 N.E.2d 74, 77

.
       {¶ 14} In addition, Judge Smith’s interlocutory orders and his failure to
require security pending appeal from a subsequent judgment do not render the
remedy of postjudgment appeal inadequate. Fraiberg v. Cuyahoga Cty. Court of
Common Pleas, Domestic Relations Div. (1996), 

76 Ohio St.3d 374, 379

, 

667 N.E.2d 1189, 1194

 (“Although the amount of money involved may be substantial,
the parties appear to possess a large wealth of marital assets, which includes twelve
vehicles and numerous investment accounts. The interlocutory orders and their
effect on relator’s finances do not supply the ‘dramatic fact pattern’ necessary for
us to conclude that postjudgment appeal is not a complete, beneficial, and speedy
remedy.”). Willacy advised Judge Smith that he grossed $105,000, and maybe
more, in 1991. There is also no evidence in the record that an order on appeal
vacating the interlocutory orders and providing for reimbursement of the sums paid
by Willacy would necessarily be futile.
       {¶ 15} Willacy further claims that postjudgment appeal is inadequate
because appellees did not comply with the court of appeals’ “mandate” to issue a
final, appealable order. See State ex rel. Heck v. Kessler (1995), 

72 Ohio St.3d 98, 101-102

, 

647 N.E.2d 792, 796

 (“In cases where a lower court refuses to follow a
superior court’s mandate, appeal is an inadequate remedy, *** [because] *** [t]o
hold otherwise might lead to the result of a lower court perpetually refusing a
superior court’s mandate, necessitating repeated, ineffective appeals.”). The court
of appeals, however, issued no such mandate in Nwabara v. Willacy (May 6, 1994),
Cuyahoga App. No. 65450, unreported, 

1994 WL 189141

. Instead, it simply
dismissed the appeal and remanded the cause “for further proceedings according to
law.” 

Id.

 Therefore, Heck is inapposite.




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                             SUPREME COURT OF OHIO




       {¶ 16} In sum, we need not determine whether appellees’ exercise of
jurisdiction in the parentage proceedings is unauthorized, since postjudgment
appeal constitutes an adequate remedy at law to raise the alleged jurisdictional
errors, absent a patent and unambiguous lack of jurisdiction. Willacy’s arguments
to the contrary are an ill-conceived attempt to contravene the well-settled rule that
neither prohibition nor mandamus may be employed as a substitute for an appeal
from interlocutory orders. State ex rel. Hunter v. Patterson (1996), 

75 Ohio St.3d 512, 514

, 

664 N.E.2d 524, 526

; Newton, 

73 Ohio St.3d at 555

, 

653 N.E.2d at 369

;
State ex rel. Daggett v. Gessaman (1973), 

34 Ohio St.2d 55

, 

63 O.O.2d 88

, 

295 N.E.2d 659

, paragraph three of the syllabus.
                   Patent and Unambiguous Lack of Jurisdiction
       {¶ 17} Absent a patent and unambiguous lack of jurisdiction, a court having
general subject-matter jurisdiction can determine its own jurisdiction, and a party
challenging the court’s jurisdiction possesses an adequate remedy by appeal. State
ex rel. Fraternal Order of Police, Ohio Labor Council, Inc. v. Franklin Cty. Court
of Common Pleas (1996), 

76 Ohio St.3d 287, 289

, 

667 N.E.2d 929, 931

.
Conversely, appeal is immaterial in prohibition and mandamus actions where the
court patently and unambiguously lacks jurisdiction to act. State ex rel. Lewis v.
Moser (1995), 

72 Ohio St.3d 25, 28

, 

647 N.E.2d 155, 157

.                In this latter
circumstance, extraordinary relief lies to prevent the excesses of jurisdiction and to
invalidate orders previously made that engage in such excesses. State ex rel. News
Herald v. Ottawa Cty. Court of Common Pleas, Juv. Div. (1996), 

77 Ohio St.3d 40, 43

, 

671 N.E.2d 5, 7

.
       {¶ 18} Willacy contends that appellees lacked jurisdiction over the
parentage action because (1) Maxim was conceived during marriage and born
within three hundred days of the natural mother’s divorce, (2) Hugley, Nwabara’s
ex-husband, was not joined in the parentage proceeding, (3) the domestic relations
court acquired jurisdictional priority over the parentage issue and that issue is still



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                                January Term, 1997




pending in that court, and (4) even if the domestic relations court’s jurisdiction over
the parentage issue is exhausted, the statutory nature of the parentage action
precludes the juvenile court from subsequently exercising jurisdiction over the
parentage action.
       {¶ 19} Juvenile courts have original jurisdiction over parentage actions.
State ex rel. Smith v. Smith (1996), 

75 Ohio St.3d 418, 419

, 

662 N.E.2d 366, 368

;
R.C. 3111.06(A). Nwabara, Maxim’s natural mother, was a proper party to bring
the parentage action. R.C. 3111.07(A). Under R.C. 2151.23(B)(2), appellees
possess jurisdiction to “determine the paternity of any child alleged to have been
born out of wedlock” pursuant to the parentage provisions. Nwabara’s complaint
sufficiently alleged that Maxim was born out of wedlock by stating that his
conception and birth resulted from Nwabara’s affair with Willacy. Appellees thus
possessed basic statutory jurisdiction to proceed in the parentage action.
       {¶ 20} None of Willacy’s jurisdictional contentions establishes a patent and
unambiguous divestment of appellees’ basic statutory jurisdiction to proceed. In
fact, it does not appear that Willacy even asserts on appeal that any of his
jurisdictional arguments reflects a patent and unambiguous lack of jurisdiction.
Instead, Willacy submits these arguments under his erroneous premise that the
court of appeals improperly restricted its analysis to a patent and unambiguous lack
of jurisdiction and that this court must consequently resolve each jurisdictional
issue under a less restrictive standard. As previously discussed, however,
postjudgment appeal provides Willacy with an adequate remedy at law. Therefore,
as the court of appeals correctly held, this court need not expressly rule on Willacy’s
jurisdictional issues, “‘since our review is limited to whether *** jurisdiction is
patently and unambiguously lacking.’” (Emphasis sic.) State ex rel. Sellers v.
Gerken (1995), 

72 Ohio St.3d 115, 118

, 

647 N.E.2d 807, 810

, quoting Goldstein v.
Christiansen (1994), 

70 Ohio St.3d 232, 238

, 

638 N.E.2d 541, 545

.
                                     Conclusion




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                            SUPREME COURT OF OHIO




       {¶ 21} The summary judgment evidence established that appellees did not
patently and unambiguously lack jurisdiction to proceed in the parentage action and
that Willacy has an adequate remedy in the ordinary course of law by postjudgment
appeal to raise his claims of error. Based on the foregoing, the court of appeals
properly granted appellees’ motion for summary judgment and denied Willacy’s
request for extraordinary relief in prohibition and mandamus. Accordingly, the
judgment of the court of appeals is affirmed.
                                                               Judgment affirmed.
       MOYER, C.J., DOUGLAS, RESNICK, F.E. SWEENEY, PFEIFER, COOK and
LUNDBERG STRATTON, JJ., concur.
                              __________________




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