[Cite as In re A.D., 2019-Ohio-3212.]




                            IN THE COURT OF APPEALS OF OHIO
                                SIXTH APPELLATE DISTRICT
                                     LUCAS COUNTY


In re A.D., T.D.                                 Court of Appeals No. L-18-1151

                                                 Trial Court No. JC 18267086



                                                 DECISION AND JUDGMENT

                                                 Decided: August 9, 2019

                                         *****

        Karin L. Coble, for appellant.

        Joanna M. Orth, for appellee.

                                         *****

        SINGER, J.

        {¶ 1} In this accelerated appeal, D.D. (“appellant”) challenges the June 27, 2018

judgment of the Lucas County Court of Common Pleas, Juvenile Division, where

maternal aunt, H. K. (“appellee”), was awarded temporary custody of appellant’s two
children, A.D. and T.D. Finding error in the trial court’s exercise of jurisdiction, we

vacate and remand.

       {¶ 2} A.S. was appellant’s ex-wife and the mother of his two children. She and

appellant divorced in 2013, but maintained a post-marital relationship until January 2018,

when she died. The children were born in Michigan and resided there, aside from a

period between January and August of 2017. During that time, the children lived in Ohio

with A.S. following a domestic dispute between appellant and A.S., which occurred in

January 2017. During the dispute, appellant allegedly locked A.S. out of their shared

residence and physically harmed A.D.

       {¶ 3} Sometime before August 18, 2017, A.S. and the children moved back to

Michigan and lived separately from appellant. There is a contention as to when exactly

A.S. moved back to Michigan, but for purposes of disposition we find that point of

contention irrelevant. The children were enrolled in a Michigan school for the 2017-2018

school year. A.S. and appellant rekindled their relationship, and he remained present and

active in her and their children’s lives.

       {¶ 4} Pursuant to a January 22, 2013 Michigan court order in which A.S. and

appellant were granted their divorce, both parties were awarded joint custody of A.D. and

T.D. The order has a section entitled “CUSTODY OF CHILDREN,” which states: “IT

IS FURTHER ORDERED AND ADJUDGED that the parties are awarded joint legal

custody of the minor child[ren]. Physical custody of said child[ren] shall be with the

Plaintiff/Mother.”



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      {¶ 5} The order also reflects that the parties agreed to the following terms:

             DOMICILE/RESIDENCE OF MINOR CHILDREN

             Upon every change of residence or address of any minor child

      mentioned herein, the person having custody of such child shall promptly

      notify the Friend of the Court thereof in writing, stating the new address

      with like particularity as noted above. THE DOMICILE OF ANY MINOR

      CHILD MENTIONED HEREIN SHALL NOT BE REMOVED FROM

      THE STATE OF MICHIGAN * * * WITHOUT THE PRIOR WRITTEN

      CONSENT OF THIS COURT.

             100 MILE RULE

             A parent who has custody or parenting time of a child as governed

      by this Order shall not change the legal residence (domicile) of the child

      outside the region agreed upon above except in compliance with Section 11

      of the Child Custody Act of 1970, 1970 PA 91, MCL 722.31.

      {¶ 6} Subsequently, A.S. and appellant petitioned the same Michigan court to

expand the terms of the January 22, 2013 order. As a result, the court issued a June 13,

2013 order, which states as follows:

             Exchange of the children for parenting time shall take place at the

      gas station at Exit 1 on Rte 23. Mother shall be allowed to change domicile

      to the State of Ohio as long as that domicile is within 100 miles of the

      Courthouse in the City of Monroe. Father shall advise mother when his



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      counselling is concluded. There shall be no use or possession of alcohol or

      illegal drugs during contact with the minor children.

      {¶ 7} As of September 2017, appellant’s visitation with A.D. was “as agreed upon

by the parties[,]” and his visitation with T.D. was during the week, every other weekend,

holidays, and four weeks of summer. According to appellant, his relationship with A.S.

and the children remained positive and consistent.

      {¶ 8} January 26, 2018 is the day A.S. died from injuries sustained in a motorcycle

accident while riding with appellant. He was the driver and was allegedly intoxicated.

This is the same night A.S.’s sister, appellee H.K., retrieved the children from Michigan

and brought them to Maumee. Appellant remained hospitalized with a traumatic brain

injury for approximately two weeks.

      {¶ 9} On February 9, 2018, appellee H.K. filed an ex parte emergency petition for

custody of the children in the trial court. An emergency hearing was held on February

13, 2018, and appellee was granted temporary custody.

      {¶ 10} During the hearing the trial court acknowledged that appellant had filed, in

Jackson County, Michigan Probate Court, a petition to suspend his parental rights and for

his mother, J.W., to be appointed as a limited guardian over the children. In open court

the magistrate specifically told appellant’s counsel to advise the grandmother to inform

the Michigan court that Ohio had exercised emergency jurisdiction over the children.

The Michigan petition was subsequently withdrawn or dismissed, but there is no

judgment entry in the record indicating a reason why.



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       {¶ 11} On March 29, 2018, a hearing was held to determine if Ohio had

jurisdiction. The magistrate determined it did. Appellant filed objections, but on June

27, 2018, the magistrate’s order was affirmed by the trial court.

       {¶ 12} Appellant timely appeals, setting forth the following assigned error:

              I. The trial court clearly and unambiguously lacks subject matter

       jurisdiction pursuant to the UCCJEA and the PKPA.

Appellee contends the court was properly vested with jurisdiction.

       {¶ 13} In order for Ohio to have jurisdiction in this matter, the procedural

requirements of the Uniform Child Custody Jurisdiction and Enforcement Act

(“UCCJEA”) must be satisfied. See R.C. 3127.01-3127.53. The Supreme Court of Ohio

has summarized the relevant sections of the UCCJEA, R.C. 3127.18(C) and (D), as

follows: “[I]f a child-custody proceeding has been started in another state, the court must

immediately communicate with the court of the other state to resolve the emergency,

protect the safety of the parties and the child, and set a period for the duration of the

temporary order.” See State ex rel V.K.B. v. Smith, 138 Ohio St.3d 84, 2013-Ohio-5477,

3 N.E.3d 1184, ¶ 13.

       {¶ 14} Moreover, R.C. 3127.09 mandates that “‘a record shall be made’ of this

communication, except for matters concerning scheduling, calendars, and court records,

and the parties shall be promptly informed of the communication and granted access to

said record.” In re E.G., 8th Dist. Cuyahoga No. 98652, 2013-Ohio-495, ¶ 15, citing R.C.

3127.09(C)-(D). “When two states communicate and ascertain the availability of a forum



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to exercise jurisdiction, it fulfills the * * * UCCJEA.” In re S.C.R., 2018-Ohio-4063, 121

N.E.3d 10, ¶ 45 (12th Dist.).

       {¶ 15} To illustrate we first point to Smith, where the Supreme Court of Ohio held

that the court lacked jurisdiction because there was no evidence that (1) the court

communicated with Arizona to resolve the child custody emergency, or that (2) the

temporary order had a specified set period of duration. Smith at ¶ 22. V.K.B. obtained

sole custody of her daughter in Ohio, and later relocated to Arizona. Id. at ¶ 2. After

living in Arizona for approximately two years, V.K.B. visited family in Ohio and

temporarily left her daughter in their care. Id. The child’s paternal grandfather

subsequently filed and was awarded emergency, temporary custody in Ohio. Id. The

order was in effect “until a full and fair hearing may be held.” Id. at ¶ 14. V.K.B.

commenced a child-custody-enforcement action in Arizona during that time period and

appealed the judgment in Ohio. Id. The Smith court reversed in favor of V.K.B. Id. at ¶

29.

       {¶ 16} To distinguish from Smith, we point to In re A.G.M., where the appellate

court found sufficient communication occurred between the Ohio and Michigan courts.

In re A.G.M., 12th Dist. Warren No. CA2011-09-095, 2012-Ohio-998, ¶ 23. Ohio

communicated with Michigan and sent it a proposed journal entry to set forth the decision

reached that Michigan will decline jurisdiction. Id. Michigan confirmed that position

was accurate, and the confirmation was in the record. Id. The court held that this was the




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type of communication the statute anticipated, and that the communication was properly

recorded in compliance with R.C. 3127.09. Id. The Ohio court was held to have satisfied

the UCCJEA’s procedural requirements. Id. at ¶ 29-30.

       {¶ 17} Applying the law as demonstrated in Smith and In re A.G.M., we find no

evidence in this case that Ohio properly communicated with Michigan about jurisdiction,

despite the fact that the trial court acknowledged that custody had been determined and

that a petition for limited guardianship was filed in Michigan. The record reveals the

magistrate, on February 8, 2018, and in open-court, specifically requested that appellant’s

counsel “advise [the paternal grandmother] that when the guardianship hearing comes up

[in Michigan], that she notify them that Ohio has exercised its emergency jurisdiction * *

*.” We find this open-court request displays knowledge of Michigan’s jurisdiction and,

further, considering there is no evidence showing Michigan was informed or notified, is

insufficient to conclude the required communication occurred. Additionally, we note the

court failed to set a period of duration in the June 27, 2018 temporary order. Smith at ¶

13, supra.

       {¶ 18} Accordingly, we find Ohio lacked jurisdiction to properly grant temporary

custody of appellant’s children to appellee, and appellant’s sole assignment of error is

well-taken.

                                        Conclusion

       {¶ 19} The June 27, 2018 judgment of the Lucas County Court of Common Pleas,

Juvenile Division, is vacated for lack of jurisdiction and remanded for the trial court to



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proceed in a manner consistent with this opinion. Appellee is ordered to pay the costs of

this appeal pursuant to App.R. 24.

                                                               Judgment vacated and
                                                               matter remanded.




       A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.




Arlene Singer, J.                              _______________________________
                                                           JUDGE
Thomas J. Osowik, J.
                                               _______________________________
Christine E. Mayle, P.J.                                   JUDGE
CONCUR.
                                               _______________________________
                                                           JUDGE




           This decision is subject to further editing by the Supreme Court of
      Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
           version are advised to visit the Ohio Supreme Court’s web site at:
                    http://www.supremecourt.ohio.gov/ROD/docs/.




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