[Cite as In re A.W., 2012-Ohio-1629.]



                                IN THE COURT OF APPEALS OF OHIO
                                   SECOND APPELLATE DISTRICT
                                     MONTGOMERY COUNTY


IN RE A.W.

CALVIN CLIFTON WHEELER

        Petitioner

v.

JENNIFER GADEGBEKU

        Respondent

Appellate Case No. 25017



                           DECISION AND FINAL JUDGMENT ENTRY
                                     April 3rd , 2012

PER CURIAM:

                {¶ 1} This matter is before the court on Calvin Wheeler’s January 31, 2012 petition

for a writ of prohibition. Wheeler seeks an order from this Court that prohibits Judge Anthony

Capizzi of the Montgomery County Common Pleas Court, Juvenile Division, from issuing an order

that commands Wheeler to return the minor child, A.W., to her mother, Jennifer Gadegbeku.

                {¶ 2} A.W. is the minor child of Wheeler and Gadegbeku, who were never married.

 It is alleged that A.W. has been living with Wheeler, his wife, and their daughter in Michigan since

April 2010.

                {¶ 3} On March 1, 2011, Wheeler filed a petition for custody of A.W. in the Circuit

Court for Ingham County, Michigan, Family Division. Pursuant to an ex-parte order dated March
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7, 2011, the Michigan court granted Wheeler temporary sole physical custody of A.W. while

Gadegbeku was granted supervised parenting time. The issues of custody, parenting time, and

child support were referred to a conciliator for further proceedings.

                {¶ 4} Shortly after the March 7, 2011 ex-parte order was issued by the Michigan

court, Gadegbeku filed a complaint for custody and motion for an ex-parte order/hearing in the

Common Pleas Court of Montgomery County, Ohio, Juvenile Division. On March 17, 2011, the

Ohio juvenile court ordered Wheeler to return A.W. to Gadegbeku immediately, finding that:

                The mother is the sole legal custodian pursuant to Ohio Revised Code

       §3109.04 and therefore remains the sole legal custodian.1 The father shall return the

       child to the mother forthwith and any law enforcement officer is authorized to assist

       the mother in the return of the child to her. The mother and child are both residents

       of Ohio. The child was removed from the mother by the father without the mother’s

       permission. Father is to apply to Ohio Court for any further relief sought.

                {¶ 5} A.W. remained in Wheeler’s custody. On June 12, 2011, the Michigan

family court adopted a referee’s recommendation that Wheeler be granted sole legal and physical

custody of A.W. with Gadegbeku entitled to exercise parenting time. The court noted that a

question of jurisdiction had been raised due to Gadegbeku receiving an ex-parte order from the

Montgomery County, Ohio juvenile court that granted her physical custody of A.W. However, the

referee found that Michigan had “home state” jurisdiction under the Uniform Child Custody


            1
               In its motion to dismiss, Respondent cites R.C. 3109.042 as its basis for
    jurisdiction to hear custody matters involving unmarried parents. That section states
    that “[a]n unmarried female who gives birth to a child is the sole residential parent and
    legal custodian of the child until a court of competent jurisdiction issues an order
    designating another person as the residential parent and legal custodian.”
                                                                                                        3


Jurisdiction and Enforcement Act (“UCCJEA”), as codified in Michigan law. Both Wheeler and

Gadegbeku participated in the child-custody proceedings.

               {¶ 6} In an effort to resolve the conflicting custody orders issued by the Michigan

and Ohio courts, Wheeler filed a petition for custody in the Montgomery County, Ohio juvenile

court on November 18, 2011. The matter proceeded to a hearing before a magistrate on January 23,

2012, the decision from which was adopted by the juvenile court on January 27, 2012. The court

found that A.W. had been ordered to be returned to Gadegbeku on March 17, 2012, but Wheeler did

not return the child.    The court further found that by filing his petition for custody in the

Montgomery County court, Wheeler submitted himself to the jurisdiction of the court and, thus,

remained under a legal duty to return A.W. forthwith. The court scheduled the issue of custody of

A.W. for trial to be held April 20, 2012.

                                            Writ of Prohibition

               {¶ 7} The writ of prohibition has been described as an “extraordinary remedy which

is customarily granted with caution and restraint, * * * issued only in cases of necessity arising from

the inadequacies of other remedies.” State ex rel. Henry v. Britt, 67 Ohio St.2d 71, 73, 424 N.E.2d

297 (1981). The purpose of the writ is to restrain lower courts from exceeding their jurisdiction.

               {¶ 8} In order to be entitled to a writ of prohibition, Wheeler must establish “(1)

that the court or officer against whom the writ is sought is about to exercise judicial or quasi-judicial

power, (2) that the exercise of that power is unauthorized by law, and (3) that denying a writ will

result in injury for which no other adequate remedy exists in the ordinary course of law.” Goldstein

v. Christiansen, 70 Ohio St.3d 232, 234-35, 638 N.E.2d 541 (1994), citing State ex rel. Koren v.

Grogan, 68 Ohio St.3d 590, 629 N.E.2d 446 (1994). In cases “where jurisdiction is patently and
                                                                                                  4


unambiguously lacking, the requirement of the lack of an adequate remedy at law need not be

proven, because the availability of alternate remedies like appeal is immaterial.”         Rosen v.

Celebrezze, 117 Ohio St.3d 241, 2008-Ohio-853, 883 N.E.2d 420, ¶ 18.

                {¶ 9} Wheeler argues that Judge Capizzi patently and unambiguously lacked

jurisdiction under the UCCJEA to order the return of A.W. since the Circuit Court for Ingham

County, Michigan previously granted Wheeler sole physical custody of the child. Respondent, in

opposition, contends that Wheeler’s petition claims errors in the exercise of the juvenile court’s

jurisdiction rather than a complete lack of subject-matter jurisdiction.

                {¶ 10} There is no dispute that the Montgomery County, Ohio juvenile court has

jurisdiction to determine custody matters. R.C. 2151.23(A). That authority is subject to the

UCCJEA, however, when the matter involves modifying a child-custody determination made by an

out-of-state court. In such a situation, R.C. 3127.17 provides:

                Except as otherwise provided in section 3127.18 of the Revised Code, a court

       of this state may not modify a child custody determination made by a court of another

       state unless the court of this state has jurisdiction to make an initial determination

       under division (A)(1) or (2) of section 3127.15 of the Revised Code and one of the

       following applies:

                (A) The court of the other state determines that it no longer has exclusive,

       continuing jurisdiction under section 3127.16 of the Revised Code or a similar

       statute of the other state or that a court of this state would be a more convenient

       forum under section 3127.21 of the Revised Code or a similar statute of the other

       state.
                                                                                                      5


                  (B) The court of this state or a court of the other state determines that the

       child, the child's parents, and any person acting as a parent do not presently reside in

       the other state.

                  {¶ 11} With respect to the first requirement, R.C. 3127.15(A) specifies the following

jurisdictional grounds for an Ohio court to make an initial determination in a child-custody

proceeding:

                  (A) Except as otherwise provided in section 3127.18 of the Revised Code, a

       court of this state has jurisdiction to make an initial determination in a child custody

       proceeding only if one of the following applies:

                  (1) This state is the home state of the child on the date of the commencement

       of the proceeding, or was the home state of the child within six months before the

       commencement of the proceeding and the child is absent from this state but a parent

       or person acting as a parent continues to live in this state.2

                  (2) A court of another state does not have jurisdiction under division (A)(1)

       of this section or a court of the home state of the child has declined to exercise

       jurisdiction on the basis that this state is the more appropriate forum under section

       3127.21 or 3127.22 of the Revised Code, or a similar statute of the other state, and

       both of the following are the case:

                  (a) The child and the child's parents, or the child and at least one parent or a

       person acting as a parent, have a significant connection with this state other than


              2
            “‘Home state’” means the state in which the child lived with a parent or a
    person acting as a parent for at least six consecutive months immediately preceding the
    commencement of a child custody proceeding * * * .” R.C. 3127.01(B)(7).
                                                                                                      6


       mere physical presence.

       (b) Substantial evidence is available in this state concerning the child's care, protection,

training, and personal relationships.

               (3) All courts having jurisdiction under division (A)(1) or (2) of this section

       have declined to exercise jurisdiction on the ground that a court of this state is the

       more appropriate forum to determine the custody of the child under section 3127.21

       or 3127.22 of the Revised Code or a similar statute enacted by another state.

               {¶ 12} Respondent contends that it expressly found in its March 17, 2011 order that

A.W.’s “home state” is Ohio because both A.W. and Gadegbeku are residents of Ohio, and A.W.

was removed from Ohio by Wheeler without Gadegbeku’s permission. R.C. 3127.22 governs the

effect of unjustifiable conduct upon the jurisdiction of an Ohio court. “Subsection (A) of the

statute generally states that any court of our state should decline to exercise its authority over a

custody matter when the acts forming the foundation of its jurisdiction constituted unjustifiable

conduct.” McGhan v. Vettel, 11th Dist. Ashtabula No. 2008-A-0036, 2008-Ohio-6063, ¶ 37. This

is not a situation where either party has invoked the Ohio court’s jurisdiction by engaging in

unjustifiable conduct. Instead, by finding that it has home-state jurisdiction, the juvenile court’s

order presumes that Wheeler improperly, and with unjustifiable conduct, invoked the jurisdiction of

the Michigan family court, thereby nullifying the effect of its custody determination.

               {¶ 13} Respondent’s jurisdictional argument is flawed. Although the court does not

expressly utilize R.C. 3127.22(A), the procedure therein “cannot be employed in a second court to

contest the validity of the original order. In other words, it must be assumed that, if applicable, the

issue of unjustifiable conduct was raised and fully litigated in the first court before the original
                                                                                                  7


decision was made.” Id. at ¶ 39. The Montgomery County juvenile court may not simply ignore

the custody determination of the Michigan family court on the basis that Wheeler invoked the

Michigan court’s jurisdiction by way of unjustifiable conduct. That court was competent to fully

litigate this and other issues raised by the parties. After hearing testimony from both parties and

multiple witnesses regarding the length of time and circumstances under which A.W. had been

living in Michigan prior to Wheeler filing his complaint for custody in the Ingham County family

court, the court made the following determination that it had home-state jurisdiction to hear the

case:

                3. Jurisdiction: Referee finds that the parties’ child [A.W.] resided in the

        state of Michigan since on or about April 29, 2010, which is more than six

        consecutive months prior to Plaintiff filing a Verified Complaint for Custody on

        March 1, 2011.     Referee finds that pursuant to MCL722.1102(g), the state of

        Michigan has “home state” jurisdiction under the UCCJEA as follows: “Home state”

        means the state in which a child lived with a parent or a person acting as a parent for

        at least six months immediately before the commencement of a child-custody

        proceeding.     June 12, 2011 Referee Recommendation and Order Regarding

        Plaintiff’s   Complaint   for   Custody    and   Objections    to   the   Conciliator’s

        Recommendation.

                {¶ 14} We find that the facts alleged in Wheeler’s petition establish that Michigan

was the home state of A.W. prior to Wheeler filing his complaint for custody on March 1, 2012.

R.C. 3127.15(A)(1); MCL722.1102(g). As a result, the Montgomery County juvenile court lacked

the authority to modify the Michigan court’s March 7, 2011 custody order because the Ohio court
                                                                                                    8


did not have jurisdiction at that point to make an initial determination in the custody matter. R.C.

3127.17.

               {¶ 15} Nor does the fact that Respondent found Gadegbeku to be the sole custodian

of the child under R.C. 3109.042 result in a different conclusion. That statute states that “[a]n

unmarried female who gives birth to a child is the sole residential parent and legal custodian of the

child until a court of competent jurisdiction issues an order designating another person as the

residential parent and legal custodian.”     We find that the Michigan family court’s custody

determination is an order by a court of competent jurisdiction designating a person other than

Gadegbeku the custodian of A.W.

               {¶ 16} Finally, contrary to Respondent’s argument, this is not a case where the

petition has raised claims amounting to mere error in the trial court’s jurisdiction. State ex rel.

Florence v. Zitter, 106 Ohio St.3d 87, 2005-Ohio-3804, ¶ 26. The Montgomery County, Ohio

juvenile court’s lack of jurisdiction under the UCCJEA “is a defect in the Ohio court’s

subject-matter jurisdiction.” Rosen, 117 Ohio St.3d 241, 2008-Ohio-853, 883 N.E.2d 420, at ¶ 44.

R.C. 3127.15(A) sets forth the exclusive jurisdictional basis for making a child custody

determination by a court of Ohio. See R.C. 3127.15(B).

               {¶ 17} In conclusion, we find that the Montgomery County juvenile court lacked

jurisdiction to make an initial custody determination in its March 17, 2011 order. Accordingly, we

hereby GRANT Wheeler’s petition for a writ of prohibition to prevent Judge Capizzi from

proceeding with the issue of child custody in the underlying case. Respondent’s motion to dismiss

is OVERRULED. Custody of A.W. shall remain with Wheeler pursuant to the determination made

by the Circuit Court for Ingham County, Michigan.
                                                                                                       9


       SO ORDERED.




                                                        THOMAS J. GRADY, Presiding Judge




                                                      MIKE FAIN, Judge




                                                        JEFFREY E. FROELICH, Judge



         To The Clerk: Within three (3) days of entering this judgment on the journal, you are
directed to serve on all parties not in default for failure to appear notice of the judgment and the date
of its entry upon the journal, pursuant to Civ.R. 58(B).




                                                      THOMAS J. GRADY, Presiding Judge



Copies provided to:

Eugene Robinson
Attorney for Petitioner
131 N. Ludlow Street, Suite 304
Dayton, Ohio 45402

John Cumming
Attorney for Hon. Anthony Capizzi
301 W. Third Street, 5th Floor
Dayton, Ohio 45422
Jennifer Gadegbeku
Respondent, Pro Se
                                   10


4403 Burkhardt Avenue, #C2
Dayton, Ohio 45431

Hon. Anthony Capizzi
Montgomery County Juvenile Court
380 W. Second Street
Dayton, Ohio 45422

CA3/JN
