[Cite as Faraschuk v. Clingaman, 2013-Ohio-4636.]




                     IN THE COURT OF APPEALS OF OHIO
                         THIRD APPELLATE DISTRICT
                             DEFIANCE COUNTY




APRIL L. FARASCHUK,
fka CLINGAMAN,

        PLAINTIFF-APPELLANT,                            CASE NO. 4-13-03

        v.

KELLY A. CLINGAMAN,                                     OPINION

        DEFENDANT-APPELLEE.




                Appeal from Defiance County Common Pleas Court
                          Trial Court No. 12-CV-42001

                                    Judgment Affirmed

                          Date of Decision: October 21, 2013




APPEARANCES:

        James E. Hitchcock for Appellant

        Daniel R. Michel for Appellee
Case No. 4-13-03


ROGERS, J.

       {¶1} Plaintiff-Appellant, April Faraschuk, appeals the judgment of the

Court of Common Pleas of Defiance County granting summary judgment in favor

of Defendant-Appellee, Kelly Clingaman. On appeal, Faraschuk argues that the

trial court erred by (1) finding that it lacked jurisdiction in this matter; (2) finding

that she was untimely in seeking a share of Clingaman’s military pension; (3)

finding that the doctrine of laches barred her claim; and (4) failing to give full

faith and credit to a California court order regarding the division of Clingaman’s

military pension. For the reasons that follow, we affirm the trial court’s judgment.

       {¶2} The parties were married from 1989 to 2000. During the course of the

marriage, Clingaman was employed in the United States Navy.                The parties

obtained a divorce decree on July 14, 2000 from a California state court. The

decree included a “partial stipulated judgment,” which states, in pertinent part, as

follows:

       5. [Clingaman] is a resident of Ohio for purposes of his military
       retirement pay.     The court shall have no jurisdiction over
       [Clingaman]’s military retirement pay pursuant to the provisions of
       the Uniformed Services Former Spouses’ Protection Act and
       Marriage of Tucker ((1991) 226 Cal.App.3d 1249, 1257, 277 Cal.
       Rptr. 403). [Faraschuk] acknowledges this lack of jurisdiction.

(Docket No. 1, “Partial Stipulated Judgment,” p. 2).

       {¶3} On July 23, 2012, Faraschuk filed a complaint in the Court of

Common Pleas of Defiance County, Ohio, seeking a qualified domestic relations

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order that equally divided Clingaman’s military pension between the parties. On

December 14, 2012, Clingaman, with leave of the trial court, filed a motion to

dismiss the complaint. In the motion, Clingaman contended that the trial court

lacked jurisdiction. To support the motion, Clingaman attached an affidavit in

which he attested that he changed his “home of record” with the military from

Defiance, Ohio to Racine, Wisconsin on June 15, 2006. Clingaman also attested

that the parties had never resided in Ohio during the course of their marriage and

that Faraschuk had never resided in the state.

       {¶4} On February 22, 2013, the trial court issued a ruling converting

Clingaman’s motion to dismiss into a motion for summary judgment since it

implicated evidentiary material outside of the complaint.

       {¶5} On March 19, 2013, Clingaman filed an additional brief in support of

his motion. He attached a copy of his Virginia driver’s license to the brief.

Clingaman also attached another affidavit in which he attested that his “home of

record” was Racine, Wisconsin from June 2006 to September 2007, when he

changed it to Springfield, Virginia.

       {¶6} On March 21, 2013, Faraschuk filed a “supplemental affidavit” in

opposition to Clingaman’s motion. In it, she attested that she initiated proceedings

in 2009 to obtain her purported share of Clingaman’s military pension. The

proceedings occurred in California state court. According to the June 23, 2009


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court order attached to Faraschuk’s affidavit, the California court refused to grant

one-half of Clingaman’s pension to Faraschuk.                         The basis for the California

court’s order was that it did not have jurisdiction over Clingaman’s military

pension.

         {¶7} On April 23, 2013, the trial court granted summary judgment in favor

of Clingaman. The trial court found that it lacked personal jurisdiction over

Clingaman under Civ.R. 4.3(A)(8). It also found that it lacked subject matter

jurisdiction under 10 U.S.C. 1408. Moreover, the trial court stated that even if

proper jurisdiction existed, Faraschuk’s claim was still barred by the doctrine of

laches since she sat on her rights for 12 years without a legitimate excuse.

         {¶8} Faraschuk timely appealed this judgment, presenting the following

assignments of error for our review.

                                     Assignment of Error No. I

         THE TRIAL COURT ERRED IN DETERMINING OHIO DID
         NOT HAVE JURISDICTION.

                                    Assignment of Error No. II

         THE TRIAL COURT ERRED WHEN IT DETERMINED
         APRIL FARASCHUK DID NOT TRY AND RESOLVE THE
         PENSION ISSUE FOR 14 YEARS.1



1
  Faraschuk’s second assignment of error identifies the trial court as finding that she did not try to resolve
the pension issue for 14 years. Meanwhile, the body of her brief identifies the trial court as finding that she
did not resolve the pension issue for 13 years. However, the trial court’s judgment entry granting summary
judgment plainly states that it found that Faraschuk failed to resolve the issue for 12 years.

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                                 Assignment of Error No. III

        THE TRIAL COURT ERRED IN DETERMINING THAT THE
        PLAINTIFF WAS BARRED BY THE DOCTRINE OF
        LATCHES [SIC].

                                 Assignment of Error No. IV

        THE TRIAL COURT FAILED TO GIVE FULL FAITH AND
        CREDIT TO A CALIFORNIA ORDER.

                                   Assignment of Error No. I

        {¶9} In her first assignment of error, Faraschuk argues that the trial court

erred in granting summary judgment on the basis that it lacked jurisdiction in this

matter. Specifically, she argues that the trial court had personal jurisdiction over

Clingaman because the parties’ divorce decree purportedly includes a forum

selection clause in which Clingaman consented to jurisdiction in Ohio.2                            We

disagree.

                                 Summary Judgment Standard

        {¶10} An appellate court reviews a summary judgment order de novo.

Hillyer v. State Farm Mut. Auto. Ins. Co., 131 Ohio App.3d 172, 175 (8th Dist.

1999). Accordingly, a reviewing court will not reverse an otherwise correct

judgment merely because the lower court utilized different or erroneous reasons as


2
  Faraschuk also argues that the trial court had subject matter jurisdiction here pursuant to R.C.
3105.0171(A)(3)(a). We need not address this argument due to our finding that the trial court properly
found that it lacked personal jurisdiction over Clingaman. See Beegle v. Beegle, 10th Dist. Franklin No.
07AP-24, 2007-Ohio-4314, ¶ 26 (“[B]ecause both personal and subject matter jurisdiction are required in
order for a court to modify the child support order, appellant’s remaining arguments and assignments of
error are rendered moot and we need not address the same.”).

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Case No. 4-13-03


the basis for its determination. Diamond Wine & Spirits, Inc. v. Dayton

Heidelberg Distrib. Co., 148 Ohio App.3d 596, 2002-Ohio-3932, ¶ 25 (3d Dist.),

citing State ex rel. Cassels v. Dayton City School Dist. Bd. of Edn., 69 Ohio St.3d

217, 222 (1994). Summary judgment is appropriate when, looking at the evidence

as a whole: (1) there is no genuine issue as to any material fact, and (2) the moving

party is entitled to judgment as a matter of law. Civ.R. 56(C). In conducting this

analysis the court must determine “that reasonable minds can come to but one

conclusion and that conclusion is adverse to the party against whom the motion for

summary judgment is made, [the nonmoving] party being entitled to have the

evidence or stipulation construed most strongly in the [nonmoving] party’s favor.”

Id. If any doubts exist, the issue must be resolved in favor of the nonmoving

party. Murphy v. Reynoldsburg, 65 Ohio St.3d 356, 358-59 (1992).

       {¶11} The party moving for summary judgment has the initial burden of

producing some evidence which demonstrates the lack of a genuine issue of

material fact. Dresher v. Burt, 75 Ohio St.3d 280, 292 (1996). In doing so, the

moving party is not required to produce any affirmative evidence, but must

identify those portions of the record which affirmatively support his argument. Id.

at 292. The nonmoving party must then rebut with specific facts showing the

existence of a genuine triable issue; he may not rest on the mere allegations or

denials of his pleadings. Id.; Civ.R. 56(E).


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Case No. 4-13-03


                             Personal Jurisdiction and Consent

        {¶12} When assessing the existence of personal jurisdiction over a non-

resident defendant like Clingaman, we must consider both the directives of state

law, as found in R.C. 2307.382 and Civ.R. 4.3, and the due process dictates of the

United States Constitution. Goldstein v. Christiansen, 70 Ohio St.3d 232, 233, fn.

1 (1994). As such, “the existence of personal jurisdiction over a nonresident

defendant depends on: (1) whether R.C. 2307.382, Ohio’s ‘long-arm’ statute, and

Civ.R. 4.3 confer personal jurisdiction, and if so, (2) whether the defendant has

sufficient minimum contacts with Ohio to justify the existence of personal

jurisdiction.” During v. Quoico, 10th Dist. Franklin No. 11AP-735, 2012-Ohio-

2990, ¶ 20. This matter specifically implicates Civ.R. 4.3(A)(8),3 which provides,

in pertinent part, as follows:

        Service of process may be made outside of this state, as provided in
        this rule, in any action in this state, upon a person who, at the time of
        service of process, is a nonresident in this state * * *. “Person”
        includes an individual * * * who * * * has caused an event to occur
        out of which the claim that is the subject of the complaint arose,
        from the person’s:

        ***

        (8) Living in the marital relationship within this state
        notwithstanding subsequent departure from this state, as to all
        obligations arising from spousal support, custody, child support, or
        property settlement, if the other party to the martial relationship
        continues to reside in this state[.]
3
 R.C. 2307.382(A) does not have a provision regarding personal jurisdiction in divorce and post-divorce
proceedings. As such, we only need to consider the dictates of Civ.R. 4.3(A). During at ¶ 23, fn. 2.

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In applying these guiding principles, we must resolve the overarching issue of

“whether the nonresident defendant lived in a marital relationship within the state

to an extent sufficient to satisfy the minimum-contacts requirement of

constitutional due process.” Fraiberg v. Cuyahoga Cnty. Court of Common Pleas,

Domestic Relations Div., 76 Ohio St.3d 374, 377-78 (1996).

      {¶13} Faraschuk has not argued that the provisions of Civ.R. 4.3(A)(8)

apply in this matter. Indeed, the rule clearly does not apply. The parties were

never domiciled or resided in this state during the course of their marriage.

Moreover, Faraschuk has never resided in Ohio and Clingaman has not listed Ohio

as his “home of record” with the military since June 2006. In light of these facts,

we find that Ohio courts, including the Court of Common Pleas of Defiance

County, do not have personal jurisdiction over Clingaman pursuant to Civ.R.

4.3(A)(8).

      {¶14} Even if the provisions of Civ.R. 4.3 do not apply, an Ohio tribunal

may still exercise personal jurisdiction over a nonresident defendant if he or she

consents to it. E.g., Ins. Corp. of Ireland, Ltd. v. Compagnie des Bauxites de

Guinee, 456 U.S. 694, 703, 102 S.Ct. 2099 (1982); Preferred Capital, Inc. v.

Power Eng. Group, Inc., 112 Ohio St.3d 429, 2007-Ohio-257, ¶ 6. Such consent

is often found where a contract between the parties includes a forum selection

clause that identifies an Ohio tribunal as the proper forum for the litigation of

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disputes between the parties.    See IntraSee v. Ludwig, 9th Dist. Lorain Nos.

10CA009916, 11CA010024, 2012-Ohio-2684, ¶ 7 (“One way litigants may

consent to personal jurisdiction of a particular court system is through a valid

forum selection clause.”). When considering a purported forum selection clause,

we must remember that “[t]he fundamental purpose of contract interpretation is to

determine and carry out the intention of the parties,” which is presumably

contained in the language of the agreement. Heritage Court, LLC v. Merritt, 187

Ohio App.3d 117, 2010-Ohio-1711, ¶ 14 (3d Dist.).

       {¶15} Faraschuk has identified the following provision of the parties’

divorce decree as a forum selection clause:

       5. [Clingaman] is a resident of Ohio for purposes of his military
       retirement pay.     The court shall have no jurisdiction over
       [Clingaman]’s military retirement pay pursuant to the provisions of
       the Uniformed Services Former Spouses’ Protection Act and
       Marriage of Tucker ((1991) 226 Cal.App.3d 1249, 1257, 277 Cal.
       Rptr. 403). [Faraschuk] acknowledges this lack of jurisdiction.

(Docket No. 1, “Partial Stipulated Judgment,” p. 2). This language does not

indicate that the parties agreed to bring all disputes regarding Clingaman’s

military pension in Ohio tribunals. The provision in the decree merely indicates

that at the time of the divorce, Clingaman was an Ohio resident, which precluded

the California court from exercising jurisdiction over his military pension. There

is no reference to future litigation and the proper forum for such disputes. Based

on this language, it would contravene the clear intention of the parties to interpret

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this provision as a forum selection clause requiring that all actions regarding

Clingaman’s military pension be brought in Ohio.                               As such, we decline

Faraschuk’s invitation to do so.4

         {¶16} Finally, Faraschuk asserts that Ohio should exercise personal

jurisdiction over Clingaman since “no place else literally has jurisdiction.”

Amended Appellant’s Br., p. 12.                     We are unsure that this is the case –

Clingaman’s current home of record with the military is Virginia while he appears

to have a wife and real estate in Racine, Wisconsin. Those facts may be sufficient

under the laws of those states for them to exercise personal jurisdiction over

Clingaman. However, whether Virginia or Wisconsin has personal jurisdiction

over Clingaman is immaterial to the disposition of this matter. We are merely

faced with the issue of whether an Ohio state court has personal jurisdiction over

Clingaman. Under our well-settled law, the Court of Common Pleas for Defiance

County could not exercise personal jurisdiction and consequently, Faraschuk’s

argument to the contrary must fail.

         {¶17} Accordingly, we overrule Faraschuk’s first assignment of error.




4
  Faraschuk additionally points out that the Partial Stipulated Judgment was purportedly a contract of
adhesion. However, Faraschuk did not raise this issue in the court below and the record does not include
evidence relating to it. By failing to assert this argument in the trial court, Faraschuk waived the issue and
we will not consider it on appeal.

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                               Assignments of Error Nos. II & III

        {¶18} In her second and third assignments of error, Faraschuk challenges

the trial court’s grant of summary judgment on the basis that the doctrine of laches

barred her claim. Because we have found that the trial court properly granted

summary judgment on the basis that it lacked personal jurisdiction over

Clingaman, we need not consider the issues relating to laches, which served as

alternative bases for the trial court’s grant of summary judgment.5 As such, our

resolution of the first assignment renders the second and third assignments of error

moot and we decline to address them. App.R. 12(A)(1)(c).

                                   Assignment of Error No. IV

        {¶19} In her fourth assignment of error, Faraschuk contends that the trial

court’s grant of summary judgment violates the United States Constitution’s Full

Faith and Credit Clause. Specifically, she suggests that the 2000 California court

order granting a divorce decree to the parties and the 2009 California court order

denying her request for one-half of Clingaman’s military pension both declared

that Ohio had jurisdiction over this matter. Because we find that neither of the

California court orders requires Ohio to exercise personal jurisdiction over

Clingaman, we disagree.




5
  Further, we note that since the trial court lacked jurisdiction over Clingaman, it had no jurisdiction to
consider Clingaman’s laches argument. As such, the trial court’s consideration of laches was improper.

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       {¶20} Article IV, Section 1 of the United States Constitution provides, in

pertinent part, that “[f]ull faith and credit shall be given in each state to the * * *

judicial proceedings of every other state.” Under this provision, all state courts are

required to “treat a state court judgment with the same respect that it would

receive in the court of the rendering state.” Matsushita Elec. Indus. Co., Ltd. v.

Epstein, 516 U.S. 367, 373, 116 S.Ct. 873 (1996).

       {¶21} In this matter, we must determine the import of the 2000 and 2009

California state orders. After reviewing both orders, we find that they neither

explicitly nor implicitly state that Ohio has jurisdiction over the division of

Clingaman’s military pension. Rather, the orders merely state that California does

not have jurisdiction. As such, the trial court was only required to give full faith

and credit to the California state courts’ determinations that they lacked

jurisdiction. The trial court complied with this requirement since it did not find

that California had to exercise jurisdiction in this matter. Consequently, the trial

court did not run afoul of the Full Faith and Credit Clause.

       {¶22} Accordingly, we overrule Faraschuk’s fourth assignment of error.

       {¶23} Having found no error prejudicial to Faraschuk in the particulars

assigned and argued, we affirm the trial court’s judgment.

                                                                 Judgment Affirmed

PRESTON, P.J. and WILLAMOWSKI, J., concur.


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