[Cite as Dole v. Dole, 2011-Ohio-1314.]


                                       COURT OF APPEALS
                                     HOLMES COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT

                                                      JUDGES:
JENNIFER DOLE                                 :       Hon. W. Scott Gwin, P.J.
                                              :       Hon. Sheila G. Farmer, J.
                         Plaintiff-Appellee   :       Hon. Patricia A. Delaney, J.
                                              :
-vs-                                          :
                                              :       Case No. 10CA013
RYAN DOLE                                     :
                                              :
                     Defendant-Appellant      :       OPINION




CHARACTER OF PROCEEDING:                          Civil appeal from the Holmes County Court
                                                  of Common Pleas, Domestic Relations
                                                  Division, Case No. 01DR106


JUDGMENT:                                         Affirmed in part; reversed in part


DATE OF JUDGMENT ENTRY:                           March 18, 2011




APPEARANCES:

For Plaintiff-Appellee                            For Defendant-Appellant

JAMES M. RICHARD                                  ROSANNE K. SHRINER
127 East Liberty Street, Ste. 100                 146 East Liberty Street, Ste. 185
Wooster, OH 44691                                 Wooster, OH 44691
[Cite as Dole v. Dole, 2011-Ohio-1314.]


Gwin, P.J.

        {¶1} Defendant-appellant Ryan Dole appeals a judgment of the Court of

Common Pleas, Domestic Relations Division, of Holmes County, Ohio, which dismissed

his motion to renew his previously filed motion for reallocation of parental rights and

responsibilities. Plaintiff-appellee is Jennifer Dole, nka, Felton. Appellant assigns two

errors to the trial court:

        {¶2} “I. THE TRIAL COURT ABUSED ITS DISCRETION BY DISMISSING

APPELLANT’S MOTION FOR LACK OF JURISDICTION UNDER THE UNIFORM

CHILD CUSTODY JURISDICTION ENFORCEMENT ACT.

        {¶3} “II. THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT ORDERED

APPELLANT TO PAY $500.00 IN ATTORNEY FEES FOR THE ‘UNNECESSARY

PREPARATION’ OF APPELLEE’S ATTORNEY.”

        {¶4} The record reflects appellant filed a motion for reallocation of parental

rights and responsibilities in October, 2008. With the motion, pursuant to R.C. 3127.23,

he filed an affidavit, commonly known as a UCCJEA affidavit, which is a statement

informing the court that no other court has taken jurisdiction over the minor child. On

May 27, 2009, the trial court entered a judgment finding the parties had reached an

agreement on the motion. The court recited the terms of the parties’ agreement in the

judgment entry. The settlement set the times for visitation and companionship with the

child, and stated the parties further agreed to attend parenting counseling. The court

set the matter for a review hearing for August 3, 2009.

        {¶5} On July 27, 2009, appellant filed a motion to renew his motion for

reallocation of parental rights and responsibilities.     He alleged as his reason for
Holmes County, Case No. 10CA013                                                      3


renewing his motion that there was a change of circumstances in the home environment

which was having an adverse effect on the child, so modification of the existing order

would be in the child’s best interest. He did not file a new UCCJA affidavit. The judge

who conducted the review hearing was sitting by assignment and apparently had no

previous involvement in the case.

       {¶6} At the hearing, appellant first moved for a continuance, but the court

directed the parties to proceed. Appellant informed the court the previous judge had

scheduled the review hearing to permit the trial court to see how the agreed visitation

schedule was working out. The court responded it had reviewed the file and the court’s

judgment entry and based upon that, the court believed the original motion was closed

by the judgment entry. The court noted it did not have a transcript nor had the present

judge conducted the first hearing. Appellant did not inform the court he had requested

and filed a transcript of the hearing, and the record in this case is voluminous.

       {¶7} The court found it did not have jurisdiction over the matter because

according to the record before it, this present motion was a new motion and required a

new UCCJA affidavit. The court dismissed the matter without prejudice and explained

how it could be re-filed with a new deposit to be allocated to guardian ad litem fees.

The previous guardian ad litem had been paid in 2009 after the parties settled the

matter, and a new guardian ad litem would be appointed. After the court announced it

was dismissing the motion to reallocate parental rights and responsibilities, appellant

dismissed his other pending motion, which was a show cause motion. Appellee

objected that she was prepared to go forward. The court then found appellee was

entitled to an award of attorney fees for unnecessary preparation for the hearing.
Holmes County, Case No. 10CA013                                                        4


                                                   I.

       {¶8} In his first assignment of error, appellant argues the trial court abused its

discretion in dismissing the matter for lack of jurisdiction. We agree.

       {¶9} In the case of In Re: Complaint for Writ of Habeas Corpus for Goeller:

Moore v. Goeller, 103 Ohio St. 3d 427, 2004-Ohio-5579, 816 N.E. 2d 594, the Ohio

Supreme Court held the failure of a party to file a UCCJA affidavit did not divest a

juvenile court of subject matter jurisdiction to determine custody of a minor child. In

Goeller, the court agreed its previous holding in Pasqualone v. Pasqualone (1980), 63

Ohio St. 2d 96, 406 N.E. 2d 1121, had held the filing of the UCCJA affidavit is a

mandatory jurisdictional requirement.         The Supreme Court found, however, the

requirement that the affidavit must be filed in the first pleading has been “relaxed” by

numerous courts of appeals to allow amended pleadings or subsequent filings to

include the required affidavit. Goeller at paragraphs 9-11, citations deleted. The court

found the purpose of the UCCJA is to avoid jurisdictional competition and conflict with

courts of other jurisdictions. Goeller at paragraph 12, citing In re: Palmer (1984), 12

Ohio St.3d at 196, 12 OBR 259, 465 N.E.2d 1312. The court found the Palmer case

stood for the proposition that a “mechanistic interpretation of R.C. 3109.27 [now R.C.

3127.23] * * * would not only contravene the clear intent of R.C. 3109.27 but could

potentially render the custody statutes of this state a nullity.” Id.

       {¶10} It is irrelevant whether the hearing was a review of the parties’ settlement

agreement or a new motion. The court could have proceeded to hear the motion in

either case.
Holmes County, Case No. 10CA013                                                           5


       {¶11} At the hearing, neither party directed the court’s attention to the transcript

of the hearing buried in amongst numerous other documents in the record. Appellant

did not offer to amend or supplement his motion with a UCCJA affidavit. Appellant re-

filed the motion approximately one week after the court dismissed his motion to renew.

Nevertheless, we find the trial court erred in dismissing the motion for lack of

jurisdiction.

       {¶12} The first assignment of error is sustained.

                                                  II.

       {¶13} In his second assignment of error, appellant argues the trial court erred in

awarding appellee attorney fees. Appellee’s counsel requested $1,000.00, but the court

ordered $500.00.

       {¶14} After the trial court announced the dismissal of appellant’s motion to renew

his motion for re-allocation of parental rights and responsibilities, appellant withdrew his

pending contempt motion which had been scheduled to be heard that day. Appellant

cited judicial economy, and stated that it did not make sense to proceed with the

contempt motion. Appellant advised the court he would withdraw it and re-file it with the

new motion to re-allocate parental rights and responsibilities.

       {¶15} Appellee objected, asserting she was prepared to go forward with all

pending motions. Appellee requested the court dismiss the motion with prejudice, or

instruct appellant to proceed on the record immediately. Appellee’s counsel informed

the court appellee had incurred attorney fees for several hours on the day of the hearing

alone. Counsel also noted appellant had not specified that the contempt motion would

be “tied in” to his motion for re-allocation of parental rights and responsibilities.
Holmes County, Case No. 10CA013                                                        6


       {¶16} Our review of the record leads us to conclude the trial court did not err in

finding appellee was entitled to recover attorney fees. The court and opposing counsel

were prepared to go forward with the contempt motion. Appellant could have proceeded

with the show cause motion and if the court found appellee in contempt, it could

consider that fact in the future.

       {¶17} The second assignment of error is overruled.

       {¶18} For the foregoing reasons, the judgment of the Court of Common Pleas,

Domestic Relations Division, of Holmes County, Ohio, is affirmed in part and reversed in

part, and the cause is remanded to the court for further proceedings in accord with law

and consistent with this opinion.

By Gwin, P.J.,

Farmer, J., and

Delaney, J., concur




                                             _________________________________
                                             HON. W. SCOTT GWIN

                                             _________________________________
                                             HON. SHEILA G. FARMER

                                             _________________________________
                                             HON. PATRICIA A. DELANEY
WSG:clw 0303
[Cite as Dole v. Dole, 2011-Ohio-1314.]


               IN THE COURT OF APPEALS FOR HOLMES COUNTY, OHIO

                                   FIFTH APPELLATE DISTRICT


JENNIFER DOLE                                    :
                                                 :
                            Plaintiff-Appellee   :
                                                 :
                                                 :
-vs-                                             :       JUDGMENT ENTRY
                                                 :
RYAN DOLE                                        :
                                                 :
                                                 :
                        Defendant-Appellant      :       CASE NO. 10CA013




       For the reasons stated in our accompanying Memorandum-Opinion, the judgment of

the Court of Common Pleas, Domestic Relations Division, of Holmes County, Ohio, is

affirmed in part and reversed in part, and the cause is remanded to the court for further

proceedings in accord with law and consistent with this opinion.         Costs to be split

between the parties.




                                                     _________________________________
                                                     HON. W. SCOTT GWIN

                                                     _________________________________
                                                     HON. SHEILA G. FARMER

                                                     _________________________________
                                                     HON. PATRICIA A. DELANEY
