[Cite as State ex rel. Browning v. Browning, 2012-Ohio-2158.]


                                       COURT OF APPEALS
                                   MUSKINGUM COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT

                                                             JUDGES:
STATE OF OHIO, EX REL. LORI                          :       Hon. W. Scott Gwin, P.J.
ANN BROWNING NKA BURNS                               :       Hon. Sheila G. Farmer, J.
                                                     :       Hon. Julie A. Edwards, J.
                         Plaintiff-Appellee          :
                                                     :
-vs-                                                 :       Case No.      CT2011-CA-55
                                                     :                     CT2011-CA-60
TERRY DEAN BROWNING                                  :
                                                     :       OPINION
                    Defendant-Appellant




CHARACTER OF PROCEEDING:                                 Criminal appeal from the Muskingum
                                                         County Court of Common Pleas, Domestic
                                                         Relations Division, Case No. JV00036341

JUDGMENT:

DATE OF JUDGMENT ENTRY:                                  May 14, 2012

APPEARANCES:

For Plaintiff-Appellee                                   For Defendant-Appellant

GREGORY A. STARCHER                                      ELIZABETH N. GABA
MCJ&FS                                                   1231 East Broad Street
1830 East Pike                                           Columbus, OH 43205
Zanesville, OH 43702


LORI ANN (BROWNING) BURNS
200 Willis Drive, Lot 109
Zanesville, OH 43701
[Cite as State ex rel. Browning v. Browning, 2012-Ohio-2158.]


Gwin, P.J.

        {¶1}      Defendant-appellant Terry Dean Browning (“Father”) appeals in Fifth

District Case No. CT-2011-55, the September 21, 2011 Judgment Entry of the

Muskingum County Court of Common Pleas, Domestic Relations Division denying his

motion to dismiss and vacate1. Father appeals in Fifth District Case No. CT2011-0060,

the October 27, 2011 Judgment Entry of the Muskingum County Court of Common

Pleas, Domestic Relations Division overruling his objections to the magistrate’s

decision.2 Plaintiff-appellee in both cases is the Muskingum County Job and Family

Services, Child Support Division (“MCCSEA”). This Court has consolidated these cases

for appeal by Judgment Entry filed January 3, 2012.

                                         Facts and Procedural History

        {¶2}      On February 1, 1982 Lori A. Browning (nka Burns) (“Mother”) and Father

were married in Zanesville, Ohio. The couple had two children, Joshua Browning b. May

5, 1982 and Jason Browning, b. January 31, 1991. On or about September 1, 1995,

Father and Mother ceased living with one another. No divorce or separation

proceedings were initiated at that time.

        {¶3}      These cases originated in the Muskingum County Juvenile Court on July

15, 1996 as an application requesting Father pay child support and obtain health care

insurance for the parties' two minor children. The case caption is styled as Case No.

36341.




        1
            Father’s motion was filed June 29, 2011
        2
            Father’s objections were filed August 18, 2011.
Muskingum County, Case No. CT2011-CA-55 & CT2011-CA-0060                                               3


        {¶4}    Service of the application and notice of hearing were perfected by certified

mail upon both Mother and Father.3

        {¶5}    By Judgment Entry filed September 24, 1996, the trial court found,

                The Court has jurisdiction over this action and the parties to this

        action, including jurisdiction to determine custody of the minor children of

        the parties under Section 2151.23 and Chapter 3109.36 of the Revised

        Code.

                ***

                The parties are agreed that custody shall remain with the Plaintiff.

                ***

                Pursuant to O.R.C. Section 2151.23(A) (2), Plaintiff is granted

        custody of the minor children. Pursuant to O.R.C. Section 2151.23(F)(1),

        custody shall mean that this Order is a Parenting Decree as defined in

        O.R.C Section 3109.21(D), and that Plaintiff is designated as the

        residential parent and legal custodian of the children. Defendant is

        designated as the noncustodial or nonresidential parent.

                ***

                Plaintiff shall maintain hospitalization and medical insurance

        coverage for the minor children through her employer. All medical and

        health care needs of the Children not paid by any insurance shall be paid

        by the parties as follows:




        3
          A transcript of the hearing held on August 28, 1996 is not available from the Juvenile Court as
the tape used to record the hearing has been erased or reused. Both parties attended that hearing.
Muskingum County, Case No. CT2011-CA-55 & CT2011-CA-0060                                 4


             Plaintiff shall pay first $100.00 per child per year in expenses not

      paid by insurance, including any deductible. Any additional expenses not

      paid by insurance shall be divided between the parties with Defendant

      paying 50% and Plaintiff paying the remaining 50%.

             ***

      {¶6}   Neither party appealed the adoption of those findings by the trial court.

      {¶7}   The parties ultimately commenced a civil action by a Complaint for

Divorce in the Domestic Relations Division of the Court of Common Pleas of

Muskingum County, Ohio filed on May 23, 1997.

      {¶8}   In connection with the divorce action, the parties filed a Separation

Agreement on November 24, 1997. That Separation Agreement states in part:

             This Agreement is made and entered into between Terry D.

      Browning, hereinafter referred to as Husband, and Lori A. Browning,

      hereinafter referred to as Wife, both of whom represent that:

             There are two children born as issue of said marriage, to wit:

      Joshua born May 25, 1982 and Jason born January 31, 1991. The care,

      custody and control of the minor children are with the Muskingum County

      Juvenile Court in Case Number: 36341.

      {¶9}    A Judgment Entry Decree of Divorce was filed on December 8, 1997.

Paragraph two of the Decree states, "That the parties were married on 1st day of

February, 1982 at Zanesville, Ohio and that there are two children born as issue of said

marriage, to wit: Joshua born May 25, 1982 and Jason born January 31, 1991. The
Muskingum County, Case No. CT2011-CA-55 & CT2011-CA-0060                                 5


care, custody and control of the minor children are with the Muskingum County Juvenile

Court in Case Number: 36341....”

       {¶10} MCCSEA filed their first Motion for Contempt on June 24, 1997. The

Motion moved the Court for an Order requiring Father to appear and show cause why

he should not be held in contempt of Court for failing to pay child support as previously

ordered by the Court. On September 26, 1997, Father, without counsel, admitted to

being guilty of contempt of Court for failing to pay his child support as ordered. This

contempt was further resolved on January 26, 1998. Father was represented by counsel

at that time.

       {¶11} Other contempt actions were filed in October 1998, December 1999, and

January 2007. Father admitted contempt each time and was approximately $9,500.00

behind in his child support in the 1998 action, $14,800.00 behind in his 1999 action, and

$16,000.00 behind in his 2007 action. Each Order to Appear and Show Cause directed

Father to contact his caseworker before the hearing to try to resolve any discrepancies.

       {¶12} On October 30, 2000, the current child support order for the parties' oldest

child, Joshua, was terminated, subject to any remaining arrears.

       {¶13} In 2003, in Muskingum County Court of Common Pleas Case No.

CR2003-0040, Father was charged with two counts of criminal nonsupport. Counsel

different from the previous counselors who had represented him in his divorce action

and the contempt actions represented Father. By entry filed August 18, 2003, Father

waived the reading of the indictment, the time and manner of service, and any

deficiencies therein. Father withdrew his former plea of not guilty and pled guilty to both

counts in the indictment. That plea was accepted by the Court. The counts were merged
Muskingum County, Case No. CT2011-CA-55 & CT2011-CA-0060                             6


and Father was sentenced to three years community control. Father was also ordered

to make restitution for his unpaid and overdue child support arrears for approximately

$20,000.00 through July 31, 2003. Father was ordered to pay $250.00 per month

toward this obligation.

       {¶14} In January 2006, Mother requested a modification of the child support

order. This matter went to the Court upon objections to the MCCSEA’s

recommendation. Both parties attended that hearing. A hearing was held and an order

was issued. Neither party objected to, or appealed, that order.

       {¶15} In order to avoid being incarcerated, Father made an $840.00 payment to

bring him into compliance with the 2007 court order. Another request was made to

impose the suspended sentence. Father paid $6,000.00 to avoid the jail sentence. By

separate entry filed April 3, 2009, Father was placed in the "pay or appear" program of

the Court. That program required Father to pay not less than $615.90 per month or

appear each month to explain his non-compliance. Father’s participation in that program

ran from April 2009 through September 2009.

       {¶16} The child support order for the youngest child of the parties was

terminated effective May 23, 2009 as that child had reached the age of 18 and

graduated from high school on May 23, 2009. As of April 30, 2009, Father still owed

over $12,000.00 in arrears.

       {¶17} Father objected to the amount ordered to be paid on his remaining

arrears. On August 4, 2009, the Court issued an order requiring Father to pay $250.00

per month, and processing charge, toward his overdue and unpaid child support arrears

balance of approximately $12,800.00.
Muskingum County, Case No. CT2011-CA-55 & CT2011-CA-0060                              7


        {¶18} On July 13, 2010, a contempt action was filed by the MCCSEA alleging

that Father failed to follow the order to pay his arrears as directed. There was a show

cause hearing scheduled for November 11, 2010, which was vacated. On December

28, 2010, MCCSEA filed a motion charging Father with contempt for failure to pay child

support.

        {¶19} On June 29, 2011, Father filed a motion titled "Defendant-Respondent

Terry Browning's Memorandum Contra the MCCSEA Motion, and Motion to Dismiss the

MCCSEA's Case and Vacate All Orders and/or Judgments." The Court set this Motion

for non-oral hearing July 29, 2011. MCCSEA filed a reply and Father filed a Response

to MCCSEA’s reply.

        {¶20} The magistrate denied Father’s motion by Judgment Entry filed August 4,

2011. Father timely filed an objection to the magistrate’s decision August 18, 2011. The

Court overruled Father’s objections September 21, 2011. Father filed a Notice of Appeal

from the September 21, 2011 Judgment Entry in Case No. CT2011-0055 on October

20, 2011.

        {¶21} On October 27, 2011, a second Judgment Entry was filed similarly

denying Father’s Motion to Dismiss the MCCSEA's Case and Vacate All Orders and/or

Judgments and adopting the magistrate’s decision of August 4, 2011. Father filed a

Notice of Appeal of this entry on November 14, 2011 in Case No. CT2011- 0060. This

Court has consolidated these cases for appeal by Judgment Entry filed January 3,

2012.
Muskingum County, Case No. CT2011-CA-55 & CT2011-CA-0060           8

                                            Assignments of Error

     {¶22} Father raises the following assignments of error:4

     {¶23} “I. THE TRIAL COURT ERRED TO THE PREJUDICE OF APPELLANT

WHEN IT DID NOT DISMISS THE CASE AND VACATE ALL ORDERS IN THE CASE,

AND ERRED BY FINDING THAT THE "MOTION FOR CHILD SUPPORT" FILED BY

THE MCCSEA COULD EFFECTIVELY OPEN THE CASE. APPELLEE'S "MOTION"

DID NOT ADHERE TO THE MANDATES OF CIV. R. 3(A) AND WAS THUS FATALLY

DEFECTIVE.

     {¶24} “II. THE TRIAL COURT ERRED TO THE PREJUDICE OF APPELLANT

WHEN IT DID NOT DISMISS THE CASE AND VACATE ALL ORDERS IN THE CASE,

AND ERRED BY FINDING THAT THE "MOTION FOR CHILD SUPPORT" FILED BY

THE MCCSEA COULD EFFECTIVELY OPEN THE CASE WITHOUT A UCCJA

3109.27 — UCCJEA 3127.23 AFFIDAVIT. THE APPELLEE'S "MOTION" DID NOT

ADHERE TO THE MANDATES OF UCCJA 3109.27 — UCCJEA 3127.23 AND WAS

THUS FATALLY DEFECTIVE.

     {¶25} “III. THE TRIAL COURT ERRED TO THE PREJUDICE OF APPELLANT

WHEN IT DID NOT DISMISS THE CASE AND VACATE ALL ORDERS IN THE CASE,

AND ERRED BY FINDING THAT THE CSEA HAD STATUTORY AUTHORITY TO

ATTEMPT TO BRING AN "ACTION" IN ITS OWN NAME WHEN RELATOR AND

HUSBAND WERE MARRIED, DID NOT DISPUTE PARENTAGE, AND DID NOT

RECEIVE PUBLIC ASSISTANCE.

     {¶26} “IV. THE TRIAL COURT ERRED TO THE PREJUDICE OF APPELLANT

WHEN IT DID NOT DISMISS THE CASE AND VACATE ALL ORDERS IN THE CASE,
     4
         Father has filed a single brief.
Muskingum County, Case No. CT2011-CA-55 & CT2011-CA-0060                                  9


AS THE COURT DID NOT HAVE THE POWER OR AUTHORITY TO RENDER THE

PARTICULAR JUDGMENTS.”

                                             Analysis

                                            I, II, III & IV

       {¶27} In each of his four assignments of error, Father challenges the subject

matter jurisdiction of the trial court. Father additionally contends that a R.C. 3109.27

affidavit was a “mandatory jurisdictional requirement” which was not done in this case

and further MCCSEA had no authority to initiate an action for support in his case.

       {¶28} The underlying support action was brought by the MCCSEA on behalf of

the mother, a nominal co-plaintiff in 1996. R.C. 3103.03(A) and R.C. 3103.031 impose a

duty on each biological or adoptive parent to support his or her minor child, regardless

of the parent's gender or marital status. This obligation is owed to the state as well as to

the child. Woods v. Mt. Castle, 2nd Dist. No. 01 CA-0050, 2002-Ohio-1878, citing

Bowen v. State, 56 Ohio St. 235, 46 N.E. 708 (1897).

       {¶29} Juvenile courts have jurisdiction over child support matters concurrent with

domestic relation and common pleas courts. Newton v. Newton, 11th Dist. No. 2011-L-

048, 2011-Ohio-6520, ¶15; Madewell v. Powell, 12th Dist. No. CA2006-05-053, 2006-

Ohio-7046, ¶5. Under R.C. 3105.011, the domestic relations division of a court of

common pleas has full authority to determine all domestic relations matters. In relation

to the question of child support, R.C. 3109.05(A)(1) states that, in the context of a

divorce proceeding, a domestic relations court “may order either or both parents to

support * * * their children, without regard to marital misconduct.”
Muskingum County, Case No. CT2011-CA-55 & CT2011-CA-0060                                  10


       {¶30} As a “juvenile” court, the jurisdiction of the trial court is controlled by R.C.

2151.23. As to the issue of child support, this statute provides, in pertinent part:

       (A) The juvenile court has exclusive original jurisdiction under the Revised

       Code as follows:

       “***

       (11) * * * to hear and determine a request for an order for the support of

       any child if the request is not ancillary to an action for divorce, dissolution

       of marriage, annulment, or legal separation, * * *.”

       {¶31} Because Mother's request in 1996 for support was “not ancillary to an

action for divorce, dissolution of marriage, annulment, or legal separation,” the action

was properly brought in the juvenile court, vesting that court with exclusive and

continuing jurisdiction over the child support issue. Madewell, supra at ¶6. MCCSEA’s

motion to intervene in that case was granted, permitting the agency to participate and

assert a claim in the juvenile court. Id. At that time, the court granted custody of the

minor children to Mother as was agreed by the parties. The court further ordered Father

to pay support for his children. No appeal was taken.

       {¶32} By Judgment Entry filed in the subsequent divorce action, the trial court

noted the jurisdiction of the Juvenile Court, as well as the prior establishment of custody

and support. No appeal was taken from the trial court’s Judgment Entry granting the

divorce.

        {¶33} Thus, in the case at bar there is no doubt that the juvenile court had

subject matter jurisdiction. R.C. 2151.23.
Muskingum County, Case No. CT2011-CA-55 & CT2011-CA-0060                              11


       {¶34} Courts have drawn a clear distinction between subject matter jurisdiction

and standing. Subject matter jurisdiction refers to the statutory and/or constitutional

power to adjudicate a case. Pratts v. Hurley, 102 Ohio St.3d 81, 806 N.E.2d 992, 2004–

Ohio–1980, ¶11. A jurisdictional defect cannot be waived. Painesville v. Lake County

Budget Commission, 56 Ohio St.2d 282, 383 N.E.2d 896(1978). Lack of jurisdiction can

be raised at any time, even for the first time on appeal. See In re Byard (1996), 74 Ohio

St.3d 294, 296, 658 N.E.2d 735, 737. This is because jurisdiction is a condition

precedent to the court's ability to hear the case.

       {¶35} A judgment entered by a court that lacks subject matter jurisdiction is void

ab initio Patton v. Diemer, 35 O.St.3d 68, 518 N.E.2d 941(1988). The authority to

vacate a void judgment is an inherent common law power. Patton syllabus paragraph 4,

citing Lincoln Tavern, Inc. v. Snader, 165 Ohio St. 61,133 N.E.2d 606(1956), paragraph

one of the syllabus; Westmoreland v. Valley Homes Corp., 42 Ohio St.2d 291, 294

(1975).

       {¶36} By contrast, Civ. R. 17(A) provides in part:

              Every action shall be prosecuted in the name of the real party in

       interest. * * * No action shall be dismissed on the ground that it is not

       prosecuted in the name of the real party in interest until a reasonable time

       has been allowed after objection for ratification of commencement of the

       action by, or joinder or substitution of, the real party in interest. Such

       ratification, joinder, or substitution shall have the same effect as if the

       action had been commenced in the name of the real party in interest.
Muskingum County, Case No. CT2011-CA-55 & CT2011-CA-0060                                  12


       {¶37} A real party in interest is “one who has a real interest in the subject matter

of the litigation, and not merely an interest in the action itself, i.e., one who is directly

benefitted or injured by the outcome of the case.” Shealy v. Campbell, 20 Ohio St.3d 23,

24–25, 485 N.E.2d 701(1985).

       {¶38} If one who is not the real party in interest asserts a claim, then the party

lacks standing to prosecute the action, but the court is not deprived of subject matter

jurisdiction. See State ex rel. Tubbs Jones v. Suster, 84 Ohio St.3d 70, 701 N.E.2d

1002(1998), citing State ex rel. Smith v. Smith, 75 Ohio St.3d 418, 420, 662 N.E.2d 366,

369(1996); and State ex rel. LTV Steel Co. v. Gwin, 64 Ohio St.3d 245, 251, 594 N.E.2d

616, 621(1992). The lack of standing may be cured by substituting the proper party so

that a court otherwise having subject matter jurisdiction may proceed to adjudicate the

matter. Civ.R. 17. Unlike lack of subject matter jurisdiction, other affirmative defenses

can be waived. Houser v. Ohio Historical Soc., 62 Ohio St.2d 77, 403 N.E.2d

965(1980). Lack of standing challenges the capacity of a party to bring an action, not

the subject matter jurisdiction of the court. State ex rel. Smith v. Smith, 75 Ohio St.3d at

420; State ex rel. LTV Steel Co. v. Gwin, 64 Ohio St.3d at 251.

       {¶39} Because compliance with Civ. R. 17 is not necessary to invoke the

jurisdiction of the court, the failure to name the real party in interest is an objection or

defense to a claim that is waived if not timely asserted. Suster, supra.

       {¶40} In the case at bar, Father could have, but did not, challenge the standing

of MCCSEA to bring the support action in 1996 or in 1997. He did not. Accordingly,

Father has waived any defect or objection to MCCSEA’s initiating the original action by

his over fourteen-year delay to assert his claim.
Muskingum County, Case No. CT2011-CA-55 & CT2011-CA-0060                                13


       {¶41} Father further contends that pursuant to Ohio Civ. Rule 3, a civil action is

commenced by filing a complaint with the court. The filing of a complaint is a

prerequisite to a court acquiring subject matter jurisdiction. Because this action was

commenced by filing of a “motion,” Father contends the trial court never acquired

subject matter jurisdiction and therefore all judgments allegedly rendered in this instant

matter in the trial court are null and void ab initio.

       {¶42} Civ. R. 3 provides in relevant part,

       (A) Commencement

       A civil action is commenced by filing a complaint with the court, if service

       is obtained within one year from such filing upon a named defendant, or

       upon an incorrectly named defendant whose name is later corrected

       pursuant to Civ.R. 15(C), or upon a defendant identified by a fictitious

       name whose name is later corrected pursuant to Civ.R. 15(D).

       {¶43} Courts of this state have recognized that the name given to a pleading or

motion is not controlling. Lungard v. Bertram, 86 Ohio App. 392, 395, 88 N.E.2d

308(1949). Rather, the substance of the pleading or motion determines the operative

effect thereof. Id. Accord, Morris v. Children's Hospital Medical Ctr., 73 Ohio App.3d

437, 441, 597 N.E.2d 1110, 1112(1991); Cooke v. United Dairy Farmers, Inc. 10th Dist.

No. 05 AP-1307, 2006-Ohio-4365, ¶29. Pleadings are to be construed to do substantial

justice, and claims for relief should concisely set forth only those operative facts as are

necessary to give “fair notice of the nature of the action.” Salamon v. Taft Broadcasting

Co., 16 Ohio App.3d 336, 475 N.E.2d 1292(1984); Civ.R. 8(A), (E), and (F).
Muskingum County, Case No. CT2011-CA-55 & CT2011-CA-0060                                  14


       {¶44} In the case at bar, the plain words of the pleading that was filed set forth

the claim for child support and health care insurance. Because Father had notice of the

child support action, actually appeared, and defended his position at the child support

hearings held in this case, due process was met.

       {¶45} Accordingly, in the case at bar, captioning the matter as a “motion” rather

that a “complaint” did not deprive the trial court of subject matter jurisdiction.

       {¶46} Father next contends that the trial court lacked subject matter jurisdiction

because the requirement in 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. Father argues that filing an R.C. 3109.27 affidavit was a “mandatory

jurisdictional requirement” which was not done in this case.

       {¶47} The Ohio Supreme Court has held that a mechanistic interpretation of

R.C. 3109. 27 would not only contravene the clear intent of R.C. 3109. 27 but could

potentially render the custody statutes of this state a nullity. In re Palmer, 12 Ohio St. 3d

194, 197, 465 N.E. 2d 1312(1984); See also, In re Complaint for Writ of Habeas Corpus

for Goeller, 103 Ohio St.3d 427, 2004-Ohio-5579, 816 N.E.2d 594, ¶12. In Palmer, the

Court acknowledged that subject-matter jurisdiction could be asserted at any time even

on appeal. 12 Ohio St. 3d at 196. However, the Court established an exception in a

case where children are concerned.

              Stipulation to the truth of facts necessary to insure jurisdiction may

       suffice to confer jurisdiction through estoppel. See Beatrice Foods Co. v.
Muskingum County, Case No. CT2011-CA-55 & CT2011-CA-0060                             15

     Porterfield (1972), 30 Ohio St.2d 50, 282 N.E.2d 355 [59 O.O.2d 76], at

     paragraph one of the syllabus.

            Application of the rule of estoppel is necessarily limited to the

     factual exigencies of each case.

            ***

            If we were to deny subject-matter jurisdiction by a mechanistic

     interpretation of R.C. 3109.27, it would be possible for any party to

     completely obstruct a custody proceeding by willfully failing to file an R.C.

     3109.27 affidavit or pleading. Such a result would not only contravene the

     clear intent of R.C. 3109.27 but could potentially render the custody

     statutes of this state a nullity. Moreover, such a result would hamstring our

     long-established rule that ultimately the issue must be what is in the best

     interests of the child. In re Cunningham (1979), 59 Ohio St.2d 100, 391

     N.E.2d 1034 [13 O.O.3d 78]. Under the present circumstances, a rigid

     interpretation of R.C. 3109.27 would only serve to prolong the agony of

     the children herein. Moreover, in instances when a public agency is a

     party, rigid adherence to R.C. 3109.27 would open the door to the

     contingency where a child, inarticulate, injured, neglected and found by

     the roadside, could not be provided for because the public agency could

     not ascertain the information required under R.C. 3109.27 with regard to

     the places where the child had lived within the past five years, and the

     names and present addresses of those persons with whom the child had

     lived during that period.
Muskingum County, Case No. CT2011-CA-55 & CT2011-CA-0060                                 16

In re Palmer at 197. Subsequent to Palmer courts have held, “the mandates of R.C.

3109.27, while required, are not jurisdictional so long as the statute's requirements are

substantially satisfied and no prejudice results.” (Citations Omitted.) Mendiola v.

Mendiola, 11th Dist No. 2006-P-0038, 2007-Ohio-466, ¶57. Accord, D.D. v. Hayes, 8th

Dist. No. 96825, 2011-Ohio-4963, ¶11; In re Porter, 113 Ohio App.3d 580, 584, 681

N.E.2d 954(3rd Dist. 1996); Adkins v. Adkins, 4th Dist. No. 89 CA 26, 1991 WL

87301(May 15, 1991)(Stephenson, P.J., concurring).

       {¶48} We conclude that any failure to comply with R.C. 3109.27 was not

prejudicial to Father. We note that Father did not object to the children remaining in the

custody of Mother. Moreover, we are admonished that the ultimate issue in any custody

proceeding is the “best interest of the child” and this concern is paramount to any

application of the strictures of R.C. 3109.27. Palmer, supra at 197.

       {¶49} In the case at bar, we find that a blind adherence to the affidavit

requirement in the instant case would frustrate the policy behind the rule. No party in

this case claims to have instituted or have knowledge of custody proceedings pending

in another jurisdiction. Further, the parties have litigated the issues for over fourteen

years without claiming prejudice because of the failure to file the affidavit. Finally, both

children have long since been emancipated.

                                           Conclusion

       {¶50} Father’s first and fourth assignments of error are overruled in their entirety

because the trial court had subject matter jurisdiction over the proceedings and properly

exercised that jurisdiction.
Muskingum County, Case No. CT2011-CA-55 & CT2011-CA-0060                               17


      {¶51} Father’s second assignment of error is overruled because the parties have

litigated the issues for over fourteen years without claiming prejudice because of the

failure to file the R.C. 3109.27 affidavit. In this case, blind adherence to the affidavit

requirement would frustrate the policy behind the rule.

      {¶52} Father’s third assignment of error is overruled in its entirety because

Father has waived any defect or objection to MCCSEA’s initiating the original action by

his over fourteen year delay to assert his claim.

      {¶53} Accordingly, for the foregoing reasons, the judgments of the Muskingum

County Court of Common Pleas, Domestic Relations Division are affirmed.

By: Gwin, P.J.,

Farmer, J., and

Edwards, J., concur



                                             _________________________________
                                             HON. W. SCOTT GWIN


                                             _________________________________
                                             HON. SHEILA G. FARMER


                                             _________________________________
                                             HON. JULIE A. EDWARDS




WSG:clw 0430
[Cite as State ex rel. Browning v. Browning, 2012-Ohio-2158.]


            IN THE COURT OF APPEALS FOR MUSKINGUM COUNTY, OHIO

                                   FIFTH APPELLATE DISTRICT


STATE OF OHIO, EX REL.
LORI ANN BROWNING NKA BURNS                            :
                                                       :
                            Plaintiff-Appellee         :
                                                       :
                                                       :
-vs-                                                   :        JUDGMENT ENTRY
                                                       :
TERRY DEAN BROWNING                                    :
                                                       :
                                                       :
                        Defendant-Appellant            :        CASE NO. CT2011-CA-55




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

judgments of the Muskingum County Court of Common Pleas, Domestic Relations

Division are affirmed. Costs to appellant.




                                                           _________________________________
                                                           HON. W. SCOTT GWIN


                                                           _________________________________
                                                           HON. SHEILA G. FARMER


                                                           _________________________________
                                                           HON. JULIE A. EDWARDS
          IN THE COURT OF APPEALS FOR MUSKINGUM COUNTY, OHIO
                        FIFTH APPELLATE DISTRICT




STATE OF OHIO, EX REL.
LORI ANN BROWNING NKA BURNS                  :
                                             :
             Plaintiff-Appellee              :
                                             :
                                             :
-vs-                                         :       JUDGMENT ENTRY
                                             :
TERRY DEAN BROWNING                          :
                                             :
                                             :
             Defendant-Appellant             :     CASE NO. CT2011-CA-60




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

judgments of the Muskingum County Court of Common Pleas, Domestic Relations

Division are affirmed. Costs to appellant.




                                             _________________________________
                                             HON. W. SCOTT GWIN


                                             _________________________________
                                             HON. SHEILA G. FARMER


                                             _________________________________
                                             HON. JULIE A. EDWARDS
[Cite as State ex rel. Browning v. Browning, 2012-Ohio-2158.]
