[Cite as Santos v. Parks, 2018-Ohio-3111.]


                                       COURT OF APPEALS
                                    ASHLAND COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT


JENNIFER A. SANTOS                           :      JUDGES:
                                             :      Hon. William B. Hoffman, P.J.
        Plaintiff - Appellant                :      Hon. Craig R. Baldwin, J.
                                             :      Hon. Earle E. Wise, J.
-vs-                                         :
                                             :
AMANDA M. PARKS                              :      Case No. 17-COA-044
                                             :
and                                          :
                                             :
MICHAEL C. PARKS                             :
                                             :
        Defendants – Appellees               :      OPINION



CHARACTER OF PROCEEDING:                            Appeal from the Ashland County
                                                    Court of Common Pleas, Juvenile
                                                    Division, Case No. 20174001




JUDGMENT:                                           Affirmed



DATE OF JUDGMENT:                                   August 3, 2018



APPEARANCES:

For Plaintiff-Appellant                             For Defendants-Appellees

DAVID R. PLUMB                                      RENEE J. JACKWOOD
Weis + O'Connor LLC                                 3540 Burbank Road, #139
22 E. Gay Street, Suite 401                         Wooster, Ohio 44691
Columbus, Ohio 43215
Ashland County, Case No. 17-COA-044                                                2

Baldwin, J.

      {¶1}    Plaintiff-appellant Jennifer A. Santos appeals from the November 29, 2017

Opinion and Judgment Entry issued by the Ashland County Court of Common Pleas,

Juvenile Division.

                          STATEMENT OF THE FACTS AND CASE

      {¶2}    On January 3, 2017, appellant filed a Complaint for Grandparent’s Visitation

rights, seeking temporary and permanent companionship/visitation rights with her

grandchild pursuant to R.C. 3109.12. The minor child, R.P. who is the subject this case,

was born on September 10, 2015 to appellee Amanda M. Parks, and appellant’s son,

Michael C. Parks. At the time of his birth, the two were not married but later married on

February 12, 2016.

      {¶3}    Appellees filed a Motion to dismiss the complaint on February 27, 2017,

arguing that application of R.C. 3109.12 to them, an intact, married family unit, was

unconstitutional. Appellees cited to this court’s Opinion in Rugola-Dye v. Dye, 5th Dist.

Delaware No. 08 CAF 06 0038, 2009-Ohio-2471. A hearing for the limited purpose of

determination of paternity was held on February 27, 2017. Appellees did not contest the

issue of paternity. Pursuant to a Magistrate’s Decision and Judgment Entry filed on March

2, 2017, the Magistrate found that appellee Michael C. Parks was the father of R.P. and

that a parent-child relationship existed between the two. The Magistrate further found that

appellee Amanda M. Parks and appellee Michael C. Parks were married on February 12,

2016 and continued to be married, sharing a residence with their son. The trial court

approved and adopted the Magistrate’s Decision.
Ashland County, Case No. 17-COA-044                                                 3


       {¶4}   Appellant, on March 16, 2017, filed a memorandum in opposition to the

Motion to Dismiss and appellees filed a reply on March 20, 2017. As memorialized in a

Magistrate’s Decision filed on March 22, 2017, the Magistrate recommended that the

Motion to Dismiss be granted, applying this Court’s precedent in the Rugola-Dye case.

Appellant filed objections to the Magistrate’s Decision on April 3, 2017 and appellees filed

a response on April 26, 2017. The trial court, on November 29, 2017, issued an Opinion

and Judgment Entry overruling the objections and ordering that the Motion to Dismiss the

Complaint be granted.

       {¶5}   Appellant now raises the following assignment of error on appeal:

       {¶6}   I. WHETHER THE CENTRAL HOLDING OF RUGOLA-DYE V. DYE, 5TH

DIST. DELAWARE N0. 08 CAF 060038, 2009-OHIO-2471 SHOULD BE APPLIED AS A

BRIGHT- LINE RULE, I.E. WHETHER R.C. 3109.12 (A) IS UNCONSTITUTIONAL AS

APPLIED TO THE CIRCUMSTANCES OF HIS CASE UNDER THE EQUAL

PROTECTION CLAUSE OF THE UNITED STATES CONSTITUTION.

                                             I

       {¶7}   Appellant, in her sole assignment of error, argues that the trial court erred

in applying this Court’s decision in Rugola-Dye v. Dye, 5th Dist. Delaware No. 08 CAF 06

0038, 2009-Ohio-2471 to the case sub judice. Appellant specifically asks that this Court

reconsider our decision in such case arguing that this case presents a constitutional

question of law.

       {¶8}   “Constitutional analysis is a question of law that we review de novo.” State

v. Rayburn, Jackson App. No. 09CA6, 2010–Ohio–5693, at ¶ 25 (citations omitted).
Ashland County, Case No. 17-COA-044                                                   4


       {¶9}   Appellant filed her complaint for grandparent visitation pursuant to R.C.

3109.12. R.C. 3109.12(A) governs the issue of the grandmother's right of visitation with

the minor child in this case. That section provides as follows:

       {¶10} [i]f a child is born to an unmarried woman, the parents of the woman and

any relative of the woman may file a complaint requesting the court of common pleas of

the county in which the child resides to grant them reasonable companionship or visitation

rights with the child. If a child is born to an unmarried woman and if the father of the child

has acknowledged the child and that acknowledgment has become final pursuant to

section 2151.232, 3111.25, or 3111.821 of the Revised Code or has been determined in

an action under Chapter 3111. of the Revised Code to be the father of the child, the father

may file a complaint requesting that the court of appropriate jurisdiction of the county in

which the child resides grant him reasonable parenting time rights with the child and the

parents of the father and any relative of the father may file a complaint requesting that the

court grant them reasonable companionship or visitation rights with the childI

       {¶11} R.C. 3109.12(B) provides that [t]he marriage or remarriage of the mother or

father of a child does not affect the authority of the court under this section to grant * * *

the parents or relatives of the natural father or the parents or relatives of the mother of

the child reasonable companionship or visitation rights with respect to the child.

       {¶12} In the Rugola-Dye case cited above, the appellants, Michael C. and Jessica

L. Dye, fka Ward, appealed the decision of the Delaware County Court of Common Pleas,

Juvenile Division, which granted a complaint for grandparent visitation in favor of appellee

Mary C. Rugola. Appellants were the parents of a son, “H.D.”, born in 2005. Appellants

were not married to each other at the time H.D. was born. Appellant Michael had legally
Ashland County, Case No. 17-COA-044                                                     5


acknowledged paternity of the child. Appellants did marry about eighteen months after

H.D.'s birth.

       {¶13} Appellee, H.D.'s paternal grandmother, filed a complaint in the trial court on

May 22, 2006 seeking grandparent visitation under R.C. 3109.12. Following a hearing,

the trial court, issued a Judgment Entry granting appellee Grandmother Mary C. Rugola-

‘reasonable’ Companionship time with her grandson. The appellants then appealed to

this Court arguing, in part, that the trial court's decision was an unconstitutional application

of R.C. 3109.12. We agreed. In our Opinion, this Court stated, in relevant part, as follows

at paragraphs 18-23:

                In Troxel v. Granville (2000), 530 U.S. 57, 64, 120 S.Ct. 2054, 2059,

       the United States Supreme Court stated: “Because grandparents and other

       relatives undertake duties of a parental nature in many households, States

       have sought to ensure the welfare of the children therein by protecting the

       relationships those children form with such third parties. The States'

       nonparental visitation statutes are further supported by a recognition, which

       varies from State to State, that children should have the opportunity to

       benefit from relationships with statutorily specified persons-for example,

       their grandparents. * * *.”1 Nonetheless, the United States Supreme Court

       also recognized in the Troxel opinion that the parents' interest in the care,

       custody and control of their children “is perhaps the oldest of the

       fundamental liberty interests recognized by [the] Court.” Id. at 65. The Ohio

       Supreme Court has stated that grandparents have no constitutional right of
Ashland County, Case No. 17-COA-044                                                   6

     association with their grandchildren. See In re Schmidt (1986), 25 Ohio

     St.3d 331, 336, 496 N.E.2d 952.

            The Ohio Revised Code contains at least three main subsections

     governing non-parent visitation with minor children. See In re C.C.,

     Montgomery App.No. 21707, 2007-Ohio-3696, ¶ 5, citing In re E.H., Lorain

     App. No. 04CA008585, 2005-Ohio-1952. The statute at issue in the case

     sub judice is R.C. 3109.12(A), which authorizes a visitation complaint by a

     relative if the minor child was born to an unmarried woman. R.C. 3109.12(A)

     reads in pertinent part:

            * * * If a child is born to an unmarried woman and if the father of the

     child has acknowledged the child and that acknowledgment has become

     final pursuant to section 2151.232, 3111.25, or 3111.821 of the Revised

     Code or has been determined in an action under Chapter 3111. of the

     Revised Code to be the father of the child, the father may file a complaint

     requesting that the court of appropriate jurisdiction of the county in which

     the child resides grant him reasonable parenting time rights with the child

     and the parents of the father and any relative of the father may file a

     complaint requesting that the court grant them reasonable companionship

     or visitation rights with the child.

            We generally afford a presumption of constitutionality to legislative

     enactments. See, e.g., State v. Anderson (1991), 57 Ohio St.3d 168, 171,

     566 N.E.2d 1224. Appellants herein direct us to Nicoson v. Hacker, Lake

     App.No.2000-L-213, 2001-Ohio-8718, wherein the Eleventh District Court
Ashland County, Case No. 17-COA-044                                                      7


     of Appeals found that R.C. 3109.12, supra, violates the Equal Protection

     Clause of the United States Constitution as applied to the facts of that case,

     concluding “[t]here is no rational basis for distinguishing between a child

     born prior to the marriage of the natural parents and a child born to the same

     parents after their marriage.” Id. at 3. Appellants further contend that their

     marriage has created an intact family unit subsequent to appellee's

     visitation complaint, and the allowance of appellee's involvement in the

     child's life by judicial process violates their right to parental care, custody,

     and control pursuant to Troxel, supra.

            We find the constitutional question before us under these facts is

     whether there is an Equal Protection violation in the statute's differentiation

     of married parents who were unmarried at the time of the complaint's filing

     from those who were married at the time of such a complaint. “The

     constitutional guarantee of equal protection requires that laws operate

     equally upon persons who are alike in all relevant respects.” State v.

     Williams, 179 Ohio App.3d 584, 598, 2008-Ohio-6245, citing McCrone v.

     Bank One Corp., 107 Ohio St.3d 272, 2005-Ohio-6505, 839 N.E.2d 1, ¶ 20.

     “When suspect classes are not involved, the equal-protection clause

     permits class distinctions in legislation if the distinctions bear some rational

     relationship to a legitimate government objective.” Id., citing State ex rel.

     Vana v. Maple Hts. City Council (1990), 54 Ohio St.3d 91, 92, 561 N.E.2d

     909. Under the rational basis test, the legislation must be upheld unless the

     classification is totally unrelated or irrelevant to the state's goals or purpose
Ashland County, Case No. 17-COA-044                                                    8

       for enacting the legislation. Menefee v. Queen City Metro (1990), 49 Ohio

       St .3d 27, 29, 550 N.E.2d 181. We find that under R.C. 3109.12, the General

       Assembly has provided a means for extended family members of children

       born to unwed parents to involve themselves in the lives of such children,

       who do not benefit from a marital two-parent nuclear home environment.

       However, where, as in this case, the parents of the child indeed marry each

       other during the pendency of the relative's visitation complaint, we find no

       rational basis for differentiating married parents who were unmarried at the

       time of the complaint's filing from those who were married at that time.

              We therefore hold R.C. 3109.12 is unconstitutional as applied to the

       particular facts and circumstances of this case.

       {¶14} As noted by the trial court in its November 29, 2017 Decision and Judgment

Entry, the facts in the Rugola-Dye case are nearly identical to the facts in the case sub

judice. In both cases, the parents were not married at the time of the child’s birth, but later

married. In the case sub judice, the parties married approximately five months after the

child’s birth and almost a year prior to the filing of appellant’s complaint for companionship

time. Based on the Rugola-Dye case, because the parents of the child married each other

during the pendency of the relative’s visitation complaint, “we find no rational basis for

differentiating married parents who were unmarried at the time of the complaint's filing

from those who were married at that time”. Rugola–Dye v. Dye, 5th Dist. Delaware No.

08 CAF 06 0038, 2009-Ohio-2471, 2009 WL 1485035, ¶ 22.

       {¶15} We therefore hold that the trial court did not err in applying in this court’s

Opinion in Rugola-Dye v. Dye        and finding that R. C. 3109.12 is unconstitutional as
Ashland County, Case No. 17-COA-044                                             9


applied to the particular facts and circumstances of this case. We choose to follow our

prior precedent and see no reason for our Court to reconsider the matter.

       {¶16} Appellant’s sole assignment of error is, therefore, overruled.

       {¶17} Accordingly, the judgment of the Ashland County Court of Common Pleas,

Juvenile Division, is affirmed.

By: Baldwin, J.

Hoffman, P.J. and

Earle Wise, J. concur.
