[Cite as In Re A.B., 2019-Ohio-90.]


                      IN THE COURT OF APPEALS OF OHIO
                         FOURTH APPELLATE DISTRICT
                              ATHENS COUNTY

IN THE MATTER OF:              :    Case No. 18CA13
A.B. D.O.B. 7/21/2011          :
B.B. D.O.B. 7/21/2014          :
                               :
JARVIS BATEMAN,                :
                               :    DECISION AND JUDGMENT
     Plaintiff-Appellee,       :    ENTRY
                               :
     vs.                       :
                               :
GINA SUFRONKO,                 :
                               :
     Defendant-Appellant.      :    Released: 01/08/19
_____________________________________________________________
                          APPEARANCES:

Susan L. Gwinn, Athens, Ohio, for Appellant.

K. Robert Toy, Athens, Ohio, for Appellee.
_____________________________________________________________

McFarland, J.

        {¶1} Gina Sufronko, mother of A.B. and B.B., appeals the Juvenile

Division of the Athens County Court of Common Pleas’ judgment granting

Jarvis Bateman, alleged father of A.B. and B.B., full custody of both A.B.

and B.B. On appeal, Appellant contends that 1) an adjudication granting

custody to the putative father and assigning parental rights and

responsibilities should be set aside where the biological mother was denied

her right to be represented by counsel, was not properly notified of the
Athens App. No. 18CA13                                                           2

hearing, and where she had no opportunity to present arguments or to be

heard at said hearing, as violating the substantive and due process rights of

the mother; and 2) an adjudication granting custody to the putative father

and assigning parental rights and responsibilities should be set aside where

the father has not established paternity, as the court lacked subject matter

jurisdiction. Because we conclude questions regarding whether Jarvis

Bateman was, in fact, the biological father of the children did not divest the

juvenile court of subject matter jurisdiction with respect to a custody

complaint filed in juvenile court, Appellant’s second assignment of error is

overruled. Further, although we reject the arguments raised under

Appellant’s first assignment of error, we have sua sponte determined that the

trial court failed to make a best interest determination in granting Appellee

custody of the children at issue. As such, the judgment of the trial court

must be reversed and this matter is remanded for further proceedings

consistent with this opinion.

                                    FACTS

      {¶2} Appellee, Jarvis Bateman, filed a complaint for custody/court

ordered visitation on June 21, 2017, essentially alleging that he was

concerned for the safety of his children, A.B. and B.B., and that Appellant,

the mother of the children, had recently moved out of the family’s home,
Athens App. No. 18CA13                                                            3

was living with another man, and had a known drug addiction. Appellee

attached an affidavit in support of his complaint averring, among other

things, that he was the biological father of the children at issue, that he was

present at the birth of both of the children, and that he had lived with them

until two months prior. The record further reflects that the parties were

never married, there had been no prior legal custody determinations, and the

children were not wards of any other court. Further, there is no evidence in

the record regarding Appellee’s establishment of paternity regarding the

children.

      {¶3} An initial hearing was held on August 31, 2017. Appellant

appeared pro se and Appellee appeared with counsel. The parties requested

mutual drug testing, which was ordered by the magistrate. A second hearing

was held on November 9, 2017. Appellant appeared pro se, but requested a

continuance citing the fact she had an appointment scheduled with attorney

Christopher Tenoglia. The trial court denied the request for a continuance

and in light of the fact Appellant’s drug screen was positive and Appellee’s

was negative, the magistrate placed the children in the temporary custody of

Appellee. A third hearing was held on February 15, 2018. Appellant again

appeared pro se, explaining that she had spoken with Attorney Tenoglia’s

secretary and had paid his office a significant sum of money. However, Mr.
Athens App. No. 18CA13                                                         4

Tenoglia had not yet entered an appearance and did not appear at the

hearing. The magistrate continued the temporary custody order with

Appellee and urged Appellant to obtain counsel and get her counsel involved

on her behalf.

      {¶4} The court scheduled a final hearing on April 19, 2018. The

hearing notice issued by the clerk listed Attorney Toy’s name at the bottom,

but did not list Appellant’s name or the guardian ad litem’s name. A review

of the record reveals that none of the notices of hearing sent by the clerk

included Appellant’s name. Some listed the guardian’s name. All of them

listed Attorney Toys’ name. The final hearing was held on April 19, 2018,

and Appellant failed to appear. Upon inquiring with the deputy clerk as to

whether Appellant was properly served and being satisfied that she was, the

magistrate proceeded with a short hearing, noting that Appellee would

essentially be granted “Judgment by Default” due to Appellant’s failure to

appear.

      {¶5} Thereafter, Appellant retained counsel and filed a motion to set

aside the judgment as well as a motion for paternity testing. Appellant

argued she did not receive notice of the final hearing. The magistrate denied

the motions. At the request of the trial court, Attorney Toy drafted a short

entry for the court’s signature noting Appellant’s failure to appear, awarding
Athens App. No. 18CA13                                                           5

custody of the children to Appellee, and limiting Appellant’s parenting time

to the sole discretion of Appellee. It is from this final order that Appellant

now brings her timely appeal, assigning the following errors for our review.

                        ASSIGNMENTS OF ERROR

“I.   AN ADJUDICATION GRANTING CUSTODY TO THE
      PUTATIVE FATHER AND ASSIGNING PARENTAL RIGHTS
      AND RESPONSIBILITIES SHOULD BE SET ASIDE WHERE THE
      BIOLOGICAL MOTHER WAS DENIED HER RIGHT TO BE
      REPRESENTED BY COUNSEL, WAS NOT PROPERLY
      NOTIFIED OF THE HEARING, AND WHERE SHE HAD NO
      OPPORTUNITY TO PRESENT ARGUMENTS OR TO BE HEARD
      AT SAID HEARING AS VIOLATING THE SUBSTANTIVE AND
      PROCEDURAL DUE PROCESS RIGHTS OF THE MOTHER.

II.   AN ADJUDICATION GRANTING CUSTODY TO THE
      PUTATIVE FATHER AND ASSIGNING PARENTAL RIGHTS
      AND RESPONSIBILITIES SHOULD BE SET ASIDE WHERE THE
      FATHER HAS NOT ESTABLISHED PATERNITY AS THE
      COURT LACKED SUBJECT MATTER JURISDICTION.”

                        ASSIGNMENT OF ERROR II

      {¶6} We address Appellant’s second assignment of error first, out of

order, as it raises a subject-matter jurisdiction argument. In her second

assignment of error, Appellant contends that the trial court’s adjudication

granting custody to Appellee, who Appellant characterizes as the putative

father, and assigning parental rights and responsibilities should be set aside

as Appellee has not established paternity and the trial court lacked subject-

matter jurisdiction. Appellant contends the issue presented is whether a
Athens App. No. 18CA13                                                           6

court has subject-matter jurisdiction to decide legal custody and assign

parental rights and responsibilities in the absence of the establishment of

paternity.

      {¶7} The existence of the trial court's subject matter jurisdiction is a

question of law that we review de novo. Tewksbury v. Tewksbury, 4th Dist.

Pike No. 07CA771, 2008–Ohio–4600, ¶ 15; citing State ex rel. ACCSEA v.

Balch, 4th Dist. Athens No. 06CA26, 2007–Ohio–7168, ¶ 22; Yazdani–

Isfehani v. Yazdani–Isfehani, 170 Ohio App.3d 1, 2006–Ohio–7105, 865

N.E.2d 924, ¶ 20; citing State v. Moore, 4th Dist. Highland No. 03CA18,

2004–Ohio–3977, ¶ 8, and Burns v. Daily, 114 Ohio App.3d 693, 701, 683

N.E.2d 1164 (1996). Therefore, we do not grant any deference to the trial

court's conclusion, Tewksbury, supra; citing Balch at ¶ 22. Here, we note

that Appellant never challenged the trial court’s subject-matter jurisdiction

of this matter below. However, “[b]ecause subject-matter jurisdiction goes

to the power of the court to adjudicate the merits of a case, it can never be

waived and may be challenged at any time.” Pratts v. Hurley, 102 Ohio

St.3d 81, 2004-Ohio-1980, 806 N.E.2d 992, ¶ 11.

      {¶8} “ ‘* * * Jurisdiction * * * is the “right and power to * * * apply

the law[.]” ’ ” State v. Lowery, 4th Dist. Ross No. 16CA3533, 2016-Ohio-

7701, ¶ 7; quoting State v. Rode, 11th Dist. Portage No. 2010–P–0015,
Athens App. No. 18CA13                                                         7

2011–Ohio–2455,¶ 15; in turn quoting The American Heritage Dictionary,

Second College Edition 694 (1982). “Subject-matter jurisdiction” is used

when referring to a court's authority to act. Lowery at ¶ 7; citing Cleveland v.

Persaud, 6 N.E.3d 701, ¶ 16 (Feb. 10, 2014). “Subject-matter jurisdiction”

of a court connotes the power to hear and decide a case upon its merits, and

defines the competency of a court to render a valid judgment in a particular

action. Id. A judgment rendered by a court lacking subject-matter

jurisdiction is void. Lowery at ¶ 7; citing Cleveland v. Kutash, 8th Dist.

Cuyahoga No. 99509, 2013–Ohio–5124, ¶ 8; Patton v. Diemer, 35 Ohio

St.3d 68, 518 N.E.2d 941, paragraph three of the syllabus (1988).

      {¶9} The judicial power of the state is vested in “such other courts

inferior to the supreme court as may from time to time be established by

law.” Section 1, Article IV, Ohio Constitution. Rode, supra, at ¶ 16. In

Ohio, by Section 1, Article IV of the Ohio Constitution, the General

Assembly has been given the power to provide for various different

divisions of the courts of common pleas. The lower court at issue here is the

Juvenile Division of the Athens County Court of Common Pleas.

      {¶10} Appellant contends that the trial court lacked subject-matter

jurisdiction in this particular case, based upon an argument that Appellee

had never established paternity and, as such, was only a “putative” father.
Athens App. No. 18CA13                                                        8

Appellant argues that she, as an unmarried mother, was the sole residential

parent as there was no presumption of Appellee’s paternity under Ohio law,

and that R.C. 3109.042 requires the existence of the presumption of

paternity for the “father” to become a party to custody proceedings involving

an unwed mother. Appellee responds by arguing that Appellant

acknowledged from the beginning of the case that Appellee was the

children’s father, and that there was never a request for paternity testing

because of her acknowledgement.

      {¶11} Title 31 of the Ohio Revised Code governs domestic relations

and specifically, children. As set forth by Appellant in her brief, R.C.

3109.042 governs the custody rights of unmarried mothers and provides as

follows:

      “(A) An 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. A court
      designating the residential parent and legal custodian of a child
      described in this section shall treat the mother and father as
      standing upon an equality when making the designation.”

However, we note that the proceedings below took place in juvenile court,

not domestic court.

      {¶12} R.C. 2151.23 governs the jurisdiction of juvenile courts and

provides, in pertinent part, as follows:
Athens App. No. 18CA13                                                            9

           “(A) The juvenile court has exclusive jurisdiction under the
           Revised Code as follows:
           ***
           (2) Subject to divisions (G), (K), and (V) of section 2301.03 of
           the Revised Code, to determine the custody of any child not a
           ward of another court of this state.”1

Here, the record indicates the parties were never married and that no custody

determination had ever been made with respect to the children. Further,

there is no evidence in the record before us indicating that the children

herein were wards of any other court at the time Appellee filed his motion

for custody. Additionally, Juv.R. 10 govern complaints and provides in

pertinent part in section (A) as follows: “[a]ny person may file a complaint

to have determined the custody of a child not a ward of another court of this

state[.]”

           {¶13} We agree with Appellant that, based upon the record before us,

it appears Appellee’s status as to the children is that of a “putative father.”

R.C. 3107.01 defines a “putative father” as follows:

           “a man, including one under age eighteen, who may be a child’s
           father and to whom all of the following apply:

           (1) He is not married to the child’s mother at the time of the
           child’s conception or birth;
           (2) He has not adopted the child;
           (3) He has not been determined, prior to the date a petition to
           adopt the child is filed, to have a parent and child relationship
           with the child by a court proceeding pursuant to sections

1
    R.C. 2301.03(G)(K) and (V) have no applicability in the present case.
Athens App. No. 18CA13                                                     10

      3111.01 to 3111.18 of the Revised Code, a court proceeding in
      another state, an administrative agency proceeding pursuant to
      sections 3111.38 to 3111.54 of the Revised Code, or an
      administrative agency proceeding in another state;
      (4) He has not acknowledged paternity of the child pursuant to
      sections 3111.21 to 3111.35 of the Revised Code.”

Also relevant to this determination is R.C. 3111.03, which governs

presumptions as to father and child relationships, and which provides as

follows:

      (A) A man is presumed to be the natural father of a child under
      any of the following circumstances:
      (1) The man and the child's mother are or have been married to
      each other, and the child is born during the marriage or is born
      within three hundred days after the marriage is terminated by
      death, annulment, divorce, or dissolution or after the man and
      the child's mother separate pursuant to a separation agreement.
      (2) The man and the child's mother attempted, before the child's
      birth, to marry each other by a marriage that was solemnized in
      apparent compliance with the law of the state in which the
      marriage took place, the marriage is or could be declared
      invalid, and either of the following applies:
      (a) The marriage can only be declared invalid by a court and the
      child is born during the marriage or within three hundred days
      after the termination of the marriage by death, annulment,
      divorce, or dissolution;
      (b) The attempted marriage is invalid without a court order and
      the child is born within three hundred days after the termination
      of cohabitation.
      (3) An acknowledgment of paternity has been filed pursuant to
      section 3111.23 or former section 5101.314 of the Revised
      Code and has not become final under former section 3111.211
      or 5101.314 or section 2151.232, 3111.25, or 3111.821 of the
      Revised Code.
Athens App. No. 18CA13                                                                                   11

         {¶14} Here, based upon the limited record before us, it appears

Appellee meets the definition of putative father and fails to meet the

requirements in order for there to be a presumption as to his paternity.2

         {¶15} However, the Supreme Court of Ohio considered a similar

situation in In re Byrd, 66 Ohio St.2d 334, 421 N.E.2d 1284 (1981). In

Byrd, the Court held as follows in paragraphs one and two of the syllabus:

         “1. When the alleged natural father of an illegitimate child, who
         has participated in the nurturing process of the child, files a
         complaint seeking custody of the child under R.C.
         2151.23(A)(2), and the mother admits that he is the natural
         father of the child, the natural father has equality of standing
         with the mother with respect to the custody of the child.

         2. In such case, the court shall determine which parent shall
         have the legal custody of the child, taking into account what
         would be in the best interests of the child.”

In reaching its decision, the Byrd Court reasoned as follows:

         “Appellant argues that not until the natural father has
         legitimated the child should he have equal standing with the
         mother with respect to custody. While we agree with appellant
         that legitimation of a child is always a preferred goal, we cannot
         agree that legitimation is a prerequisite for the natural father to
         have equality of standing with the mother in a R.C.
         2151.23(A)(2) custody action. We reach this result for two
         reasons. First, there are three methods in Ohio by which a father
         can legitimate his child: (1) in an acknowledgment proceeding
         brought under R.C. 2105.18[]; (2) by adopting the child; or (3)
         by marrying the mother. All these methods require the consent
         of the mother, and therefore the mother can thwart any attempt
2
  The fact that separate child support proceedings had been initiated by one of the parties was referenced on
the record during the final hearing below, however no information regarding the status of that case or
whether Appellee had, in fact, established paternity as part of that case was made part of the record below.
Athens App. No. 18CA13                                                       12

      by the natural father to legitimate the child. Our second reason
      for not requiring legitimation is that such a requirement would
      not necessarily be in the best interest of the child, and would, in
      fact, result in dissimilar treatment between legitimate and
      illegitimate children.” (Internal footnote omitted).

      {¶16} Since Byrd was decided, the legislature remedied the first

concern expressed by the Court regarding the fact that the only ways a father

can legitimate his child all require the mother’s consent. R.C. 3111.04,

which originally took effect in 1982, not long after the Byrd decision was

released, now provides that “a man alleged or alleging himself to be the

child’s father[]” may bring an action to determine the existence or

nonexistence of the father and child relationship.” The bringing of this

action does not require the consent of the child’s mother. As such, the first

concern underlying the Byrd decision has now been addressed. However,

the second concern expressed in Byrd still remains. Our research reveals

that the Byrd decision has not been reversed or modified and remains good

law today. Here, as in Byrd, the record before us indicates that Appellee was

present at the birth of both A.B. and B.B., participated in their care and lived

with them until just a few months prior to the filing of the complaint for

custody. Further, Appellant appeared at three different hearings, albeit

without counsel, but never challenged Appellee’s paternity and made

otherwise affirmative statements acknowledging he was father of the
Athens App. No. 18CA13                                                           13

children. Thus, we believe this case falls squarely within the application of

Byrd.

        {¶17} Further, and more recently, the Supreme Court of Ohio

determined that a juvenile court magistrate did not patently and

unambiguously lack jurisdiction to proceed on a child custody matter

involving a complaint for custody filed by a putative father. State ex rel.

Mosier v. Fornof, 126 Ohio St.3d 47, 2010-Ohio-2516, 930 N.E.2d 305.

Although Mosier involved a request for a writ of mandamus, it is

nevertheless instructive on the issue of a court’s subject matter jurisdiction

in custody cases. In particular, on the issue of subject matter jurisdiction,

the Court reasoned that the juvenile court had subject matter jurisdiction to

award custody of a child to a putative father, stating as follows: “* * *

Mosier’s claim alleges, at best, an error in the court’s exercise of its

jurisdiction rather than a lack of subject-matter jurisdiction. See Jimison v.

Wilson, 106 Ohio St.3d 342, 2005-Ohio-5143, 835 N.E.2d 34, ¶ 11. The

Mosier Court ultimately denied Mosier’s request for a writ of mandamus,

reasoning that the juvenile judge and magistrate below did “not patently and

unambiguously lack jurisdiction to determine child-custody matters in the

underlying case * * *.” Mosier at ¶ 7.
Athens App. No. 18CA13                                                                                    14

         {¶18} In light of the foregoing, we are satisfied that the trial court

possessed the requisite subject-matter jurisdiction to determine the custody

of A.B. and B.B. upon the filing of a complaint for custody by the putative

father, where the putative father was present at the birth of the children and

participated in the nurturing process, and where the mother admitted, or at

least did not dispute, the paternity of the children.3 Accordingly, we find no

merit to Appellant’s second assignment of error and it is overruled.

                                 ASSIGNMENT OF ERROR I

         {¶19} In her second assignment of error, Appellant contends that an

adjudication granting custody to the putative father and assigning parental

rights and responsibilities should be set aside where the biological mother

was denied her right to be represented by counsel, was not properly notified

of the hearing, and where she had no opportunity to present arguments or to

be heard at said hearing, as being violative of substantive and procedural due

process. Appellee contends that Appellant was aware of her right to

counsel, had communicated with counsel, but that no counsel ever entered

an appearance on her behalf. Appellee also contends Appellant was

provided with notice of the final hearing, but that she failed to appear.
3
  Although Appellant filed a motion for paternity testing, through counsel, after the magistrate issued a
decision awarding custody of the children to Appellee, she never filed an answer to Appellee’s complaint
for custody in which he averred, in an affidavit filed in support of his motion, that he was the children’s
father. Further, Appellant appeared at three different hearings, participated, and requested Appellee be
drug tested, but she never raised the issue of paternity. In fact, she made statements acknowledging
Appellee’s parents were the children’s grandparents.
Athens App. No. 18CA13                                                      15

      {¶20} The Due Process Clause of the Fifth Amendment to the United

States Constitution, as applicable to the states through the Fourteenth

Amendment, provides: “No person shall * * * be deprived of life, liberty, or

property, without due process of law.” Parents have a fundamental liberty

interest in the care, custody, and control of their children. Troxel v.

Granville, 530 U.S. 57, 65–66, 120 S.Ct. 2054 (2000). Thus, the state may

not deprive parents of their parental rights without due process of law. In re

James, 113 Ohio St.3d 420, 2007–Ohio–2335, 866 N.E.2d 467, ¶ 16; In re

M.H., 4th Dist. Vinton No. 11CA683, 2011–Ohio–5140, ¶¶ 49–50. This

right to due process “does not evaporate simply because [parents] have not

been model parents or have lost temporary custody of their child to the

State.” Santosky v. Kramer, 455 U.S. 745, 753, 102 S.Ct. 1388 (1982).

      {¶21} Although “due process” lacks precise definition, courts have

long held that due process requires both notice and an opportunity to be

heard. In re Thompkins, 115 Ohio St.3d 409, 2007–Ohio–5238, 875 N.E.2d

582, ¶ 12; citing Hagar v. Reclamation Dist. No. 108, 111 U.S. 701, 708, 4

S.Ct. 663, (1884); Caldwell v. Carthage, 49 Ohio St. 334, 348, 31 N.E. 602

(1892). “An elementary and fundamental requirement of due process in any

proceeding which is to be accorded finality is notice reasonably calculated,

under all the circumstances, to apprise interested parties of the pendency of
Athens App. No. 18CA13                                                          16

the action and afford them an opportunity to present their objections.”

Mullane v. Cent. Hanover Bank & Trust Co., 339 U.S. 306, 314, 70 S.Ct.

652 (1950); accord In re Thompkins at ¶ 13. Accordingly, when the state

seeks to interfere with a parent's liberty interest in the care, custody, and

management of his or her child, the state “must attempt to provide actual

notice” to the parents. Thompkins at ¶ 14; citing Dusenbery v. United States,

534 U.S. 161, 170, 122 S.Ct. 694 (2002). Due process does not, however,

require “ ‘heroic efforts’ ” to effectuate service or that a parent receives

actual notice. Id., citing Dusenbery at 170. Instead, the means employed

must be reasonably calculated to inform the parent of the proceeding

involving his or her child. Id.; citing Mullane at 315.

      {¶22} Further, this Court recently noted as follows in In re A.G.

regarding notice and the right to counsel:

      “ ‘Ohio courts hold that where a parent is provided notice of his
      or her “right to counsel, but fails to pursue it, [the parent] has
      not been denied [the] statutory right to counsel.” In re Williams,
      Franklin App. No. 03AP–1007, 2003–Ohio–678, ¶ 13, citing In
      re Careuthers (May 2, 2001), Summit App. No. 20272; In re
      Ramsey Children (1995), 102 Ohio App.3d 168, 169–170. ’ ” In
      re A.G., 4th Dist. Athens No. 14CA28, 2014-Ohio-5014, ¶ 22;
      citing In re T.F., 4th Dist. Pickaway No. 07CA34, 2008–Ohio–
      1238.

      {¶23} We first address Appellant’s contention that she was deprived

of her right to counsel. Juv.R. 4(A) governs assistance of counsel in juvenile
Athens App. No. 18CA13                                                          17

proceedings and provides as follows:

      “(A) Assistance of Counsel. Every party shall have the right to
      be represented by counsel and every child, parent, custodian, or
      other person in loco parentis the right to appointed counsel if
      indigent. These rights shall arise when a person becomes a
      party to a juvenile court proceeding. When the complaint
      alleges that a child is an abused child, the court must appoint an
      attorney to represent the interests of the child. This rule shall
      not be construed to provide for a right to appointed counsel in
      cases in which that right is not otherwise provided for by
      constitution or statute.”

      {¶24} Here, the record reflects that Appellant was initially served with

Appellee’s complaint for custody and court-ordered visitation and appeared

at the first hearing that was held. A return of service appears in the record

showing Appellant was personally served with the complaint. Further, the

hearing transcript from the first hearing indicates that Appellant appeared

and participated in the hearing, pro se, and represented to the court that she

did not have an attorney and had not spoken to an attorney. Appellant did

not claim to be indigent or ask for appointed counsel. Instead, she asked that

Appellee be drug tested and informed the court she could pay the $350.00

fee for the drug testing.

      {¶25} A second hearing was held on November 9, 2017, and

Appellant again appeared and participated. Appellant began the hearing by

asking for a continuance and stating that she had hired an attorney to

represent her. “We review the denial of a motion for a continuance for
Athens App. No. 18CA13                                                          18

abuse of discretion.” State ex rel. Athens Cty. Dept. of Job & Family Servs.

v. Martin, 4th Dist. Athens No. 07CA11, 2008–Ohio–1849, ¶ 22; See also

Gussler v. Morris, 4th Dist. Ross No. 06CA2884, 2006–Ohio–6627, ¶ 8. An

abuse of discretion connotes more than a mere error of judgment; it implies

that the court's attitude is arbitrary, unreasonable, or unconscionable.

Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983).

“The trial court has broad discretion in ruling on requests for continuances.

* * * However, that discretion is not unlimited.” State v. Miller, 5th Dist.

Tuscarawas No. 86AP060038, 1987 WL 9876 (Apr. 20, 1987) (internal

citation omitted).

      {¶26} “Our review of a denial of a motion for a continuance requires

us to ‘apply a balancing test, thereby weighing the trial court's interest in

controlling its own docket, including the efficient dispensation of justice,

versus the potential prejudice to the moving party.’ ” Foley v. Foley, 10th

Dist. Franklin Nos. 05AP–242 & 05AP–463, 2006–Ohio–946, ¶ 16; quoting

Fiocca v. Fiocca, 10th Dist. Franklin No. 04AP–962, 2005–Ohio–2199, ¶ 7.

      {¶27} “In evaluating a motion for a continuance, a court should note,

inter alia: the length of the delay requested; whether other continuances have

been requested and received; the inconvenience to litigants, witnesses,

opposing counsel and the court; whether the requested delay is for legitimate
Athens App. No. 18CA13                                                        19

reasons or whether it is dilatory, purposeful, or contrived; whether the

defendant contributed to the circumstance which gives rise to the request for

a continuance; and other relevant factors, depending on the unique facts of

each case.” State v. Unger, 67 Ohio St.2d 65, 67–68, 423 N.E.2d 1078

(1981). Although Unger was a criminal matter, appellate courts have also

applied these factors in civil cases. See, e.g., King v. Kelly, 4th Dist.

Lawrence No. 02CA42, 2003–Ohio–4412, ¶ 11; Henson v. Highland Dist.

Hosp., 143 Ohio App.3d 699, 707, 2001–Ohio–2513, 758 N.E.2d 1166, fn.

4; Integrated Payment Systems, Inc. v. A & M 87th Inc., 8th Dist. Cuyahoga

Nos. 91454 & 91473, 2009–Ohio–2715, ¶ 73; Truex v. Truex, 179 Ohio

App.3d 188, 2008–Ohio–5690, 901 N.E.2d 259, ¶ 15.

      {¶28} Here, the record reflects that upon further inquiry by the

magistrate it appeared Appellant had simply spoken with the attorney’s

secretary and had an appointment scheduled. Appellant had not actually met

the attorney nor had the attorney entered an appearance in the matter, despite

the fact that more than two months had passed since the initial hearing. In

light of these facts and also because of Appellant’s positive drug screen, the

trial court denied the continuance and placed the children in the temporary

custody of Appellee. When Appellant expressed concerns during the

hearing that Appellee was using drugs that were not detected on the drug
Athens App. No. 18CA13                                                        20

screen, and that Appellee’s parents, who would be taking care of the

children while Appellee worked, had another son living in the house who

had a drug problem, the trial court explained this was only a temporary

decision and urged Appellant to get her attorney involved to help her raise

these issues.

      {¶29} A third hearing was held on February 22, 2018, and Appellant

again appeared without counsel. When the trial court inquired of the status

of her representation she stated that she had retained an attorney and paid

him a significant amount of money. However, the attorney had not entered

an appearance and did not appear at the hearing. At the conclusion of the

hearing the following exchange took place between the magistrate and

Appellant:

      “Magistrate: Here’s what I’m inclined to do. I am inclined to
      leave it the way it is today. You say you’ve retained Mr.
      Tenoglia and . . .

      Ms. Sufronko: Yes.

      Magistrate: you’ve paid him a significant amount of money.
      Ms. Sufronko: Yes.

      Magistrate: If that’s the case and he enters an appearance he
      can definitely argue with Mr. Toy and make sure . . .

      Ms. Toy: Sure.

      Magistrate: And they will try to resolve the issue as best they
      can.
Athens App. No. 18CA13                                                         21

      Ms. Sufronko: Okay.

      Magistrate: So if you feel that you want something set rather
      than informal you first need to get Mr. Tenoglia on board and
      then have him make those request [sic] and arguments with Mr.
      Toy, okay?

      Ms. Sufronko: Okay.

      ***

      Magistrate: Now again, you said no, you say yes, so the first
      call you want to make when you leave here is his office, okay?
      I mean, you didn’t call him yesterday or today about I’ll see
      you in court.

      Ms. Sufronko: I called yesterday but I didn’t hear back from
      him.

      Magistrate: Okay, well, that must mean he thinks he’s not
      retained. Okay, we are off the record.”

No attorney ever entered a notice of appearance on Appellant’s behalf

thereafter. Further, when the final hearing took place, neither Appellant or

counsel on her behalf appeared at the hearing.

      {¶30} We cannot conclude under these circumstances that the trial

court denied Appellant her right of representation. To the contrary, the trial

court urged Appellant to retain and work with counsel. Although the trial

court denied Appellant’s request for a continuance, such decision was within

its discretion to do and we cannot conclude that the trial court abused its

discretion given the facts before it, which included the fact that Appellant
Athens App. No. 18CA13                                                         22

had a positive drug screen, Appellee did not, Appellant raised no issue

regarding the paternity of the children at that time, and the decision was a

temporary, rather than final. Thus, we find no merit to this portion of

Appellant’s argument under her first assignment of error.

      {¶31} We now turn our attention to Appellant’s contention that she

was deprived of due process when the trial court granted custody to

Appellee and assigned parental rights and responsibilities without providing

her with proper notice and an opportunity to be heard. Appellant argued

below via a Civ.R. 53 (D)(2)(b) motion to set aside, which was denied by the

magistrate, and now argues on appeal, that she was not provided with notice

of the final hearing. A reviewing court will not disturb a trial court's finding

regarding whether service was proper unless the trial court abused its

discretion. E.g., Huntington Natl. Bank v. Payson, 2nd Dist. Montgomery

No. 26396, 2015-Ohio-1976, ¶ 32; Ramirez v. Shagawat, 8th Dist. Cuyahoga

No. 85148, 2005-Ohio-3159, ¶ 11.

      {¶32} Service of process must be made in a manner reasonably

calculated to apprise interested parties of the action and to afford them an

opportunity to respond. Price v. Combs, 2nd Dist. Darke No. 2015-CA17,

2016-Ohio-429, at ¶ 19; Akron–Canton Regional Airport Auth. v. Swinehart,

62 Ohio St.2d 403, 406, 406 N.E.2d 811 (1980); citing Mullane v. Cent.
Athens App. No. 18CA13                                                       23

Hanover Bank & Trust Co., 339 U.S. 306, 314, 70 S.Ct. 652 (1950). The

plaintiff bears the burden of obtaining proper service on a defendant.

Cincinnati Ins. Co. v. Emge, 124 Ohio App.3d 61, 63, 705 N.E.2d 408 (1st

Dist.1997).

      {¶33} Because the notice of hearing at issue was issued by the clerk

and constituted a written notice subsequent to the original complaint, the

service requirements here are governed by Civ.R. 5. Civ.R. 5 provides, in

pertinent part, as follows:

      (A) Service: When Required. Except as otherwise provided in
      these rules, every order required by its terms to be served, every
      pleading subsequent to the original complaint unless the court
      otherwise orders because of numerous defendants, every paper
      relating to discovery required to be served upon a party unless
      the court otherwise orders, every written motion other than one
      which may be heard ex parte, and every written notice,
      appearance, demand, offer of judgment, and similar paper shall
      be served upon each of the parties. Service is not required on
      parties in default for failure to appear except that pleadings
      asserting new or additional claims for relief or for additional
      damages against them shall be served upon them in the manner
      provided for service of summons in Civ. R. 4 through Civ. R.
      4.6.
      (B) Service: How Made.
      (1) Serving a Party; Serving an Attorney. Whenever a party is
      not represented by an attorney, service under this rule shall be
      made upon the party. If a party is represented by an attorney,
      service under this rule shall be made on the attorney unless the
      court orders service on the party. Whenever an attorney has
      filed a notice of limited appearance pursuant to Civ.R. 3(B),
      service shall be made upon both that attorney and the party in
      connection with the proceedings for which the attorney has
      filed a notice of limited appearance.
Athens App. No. 18CA13                                                       24

      (2) Service in General. A document is served under this rule by:
      ***
      (c) Mailing it to the person's last known address by United
      States mail, in which event service is complete upon mailing[.]”
      (Emphasis added).

      {¶34} Thus, we must begin with a presumption of proper service. In

support of her argument, Appellant has attached a notice of hearing for the

final hearing, dated February 22, 2018, issued by the Deputy Clerk of the

Juvenile Division of the Athens County Court of Common Pleas which only

lists Attorney Toy’s name at the bottom. As set forth above, the magistrate

denied Appellant’s motion, stating in its entry that:

      “The court docket created by the clerk contemporaneously with
      her performance, demonstrates adequate notice by regular mail
      of the 4/19/18 hearing was provided to Defendant. Docket
      entry attached. Defendant may pursue her concerns by
      objections or in paternity cases #20174307 & 20174308.”

The print-out of the docket entry that appears in the record lists only one of

Appellant’s underlying case numbers along with the following notation:

“Copies sent to both parties or attorney via regular mail/box in courthouse.”

Although the docket only lists one of the underlying case numbers, the

actual notice of hearing lists both. Further, it appears both cases were

handled simultaneously throughout the pendency of the cases. Further, and

importantly, although Appellant’s name is not listed at the bottom of the

hearing notice that was mailed by the clerk, her name was not listed on any
Athens App. No. 18CA13                                                      25

of the other hearing notices issued by the clerk either, yet Appellant received

notice and appeared at three prior hearings.

      {¶35} Additionally, the transcript from the final hearing demonstrates

the following exchange regarding whether Appellant had been served with

notice of the hearing:

      “Magistrate: What’s the last contact you had with Ms.
      Sufronko?

      Ms. Rector [the GAL]: The last time that we were in court.

      Magistrate: Oh, . . .

      Ms. Rector: Yeah, I’ve called and texted her but she never gets
      back to me.

      Magistrate: Okay, fine. And has she had any contact with the
      children?

      Jarvis Bateman: Uh, she actually came out to the house last
      night.

      Magistrate: She did.

      Jarvis Bateman: For a little bit.

      Magistrate: I see. Was the fact of the hearing discussed?

      Jarvis Bateman: Uh, no it was not.

      Magistrate: It was not raised, all right. Well, she was here and,
      uh, it was set by hearing notice sent out by you Ms. Lewis [the
      Deputy Clerk]. The only thing that puzzles me here is has [sic]
      Mr. Toy’s name and it does not have hers (unintelligible)
      address.
Athens App. No. 18CA13                                                        26

      Female: (unintelligible)

      Magistrate: Alright, so . . .

      Darci [the Deputy Clerk]: It was mailed out and nothing was
      returned.

      Magistrate: Okay, from now on we should probably write the
      other parties name there just so I can tell if they’ve been served.
      Based on your statement we sent hearing notice.”

Thus, the record reflects the magistrate addressed the issue of service during

the hearing, inquired directly with the deputy clerk who confirmed notice of

hearing was sent by regular mail, and nothing had been returned. Service by

regular mail is acceptable under Civ.R. 5 and service was considered

complete upon mailing, which was noted on the docket.

      {¶36} While we agree with the magistrate that "from now on" all

parties' names should be listed on hearing notices so the court can confirm

they have been served, we cannot conclude, based upon the record before us,

that Appellant has overcome the presumption that proper service was made.

Nor can we conclude that the magistrate abused its discretion in concluding

proper service was accomplished. Thus, we also overrule this portion of

Appellant’s argument raised under her first assignment of error.

      {¶37} However, our review of this matter does not end here.

Although not raised by Appellant, this Court sua sponte finds a defect in the

trial court’s judgment. During the final hearing, it was suggested that
Athens App. No. 18CA13                                                      27

because Appellant failed to appear, Appellee would essentially be granted

default judgment. For instance, the following exchange took place on the

record when it became apparent Appellant had failed to appear:

      “Magistrate: Mr. Tenoglia never did enter an appearance in the
      case. So, given the fact that we were suppose [sic] to start
      roughly five minutes and she’s not here I’m going to proceed.
      Generally speaking that would, uh, generally result absent some
      persuasive costs to the contrary by somebody, would result in
      Mr. Toy, your client, winning the day.

      Mr. Toy: Okay.

      Magistrate: Ms. Rector, do you have any issues if I were to
      essentially grant a Judgement by Default [sic] given the fact
      that the defendant is not present.

      Ms. Rector: No, I have no issues.

      ***

      Magistrate: * * * So, Mr. Toy you want to do a short Entry . . .

      Mr. Toy: I will do an Entry your honor. Thank you.”

Thereafter, Mr. Toy prepared an entry for the court’s signature which, aside

from noting service was provided, the trial court had subject-matter

jurisdiction, and due process had been complied with, simply provided as

follows:

      “IT IS HEREBY: ORDERED, that the Plaintiff be granted full
      custody of the minor children; it is further, ORDERED, that
      Defendant may have parenting time with the minor children at
      the sole discretion of the Plaintiff; it is further, ORDERED that
      Plaintiff shall claim the minor children on his federal and state
Athens App. No. 18CA13                                                           28

      tax returns every year until the children reach the age they are
      no longer able to be claimed. * * *.”

Thus, it appears from the record before us that the trial court failed to take

into consideration the best interests of the children, or otherwise make any

best interest determination, in awarding Appellee custody of the children and

limiting Appellant’s parenting time to the “sole discretion” of Appellee.

      {¶38} As set forth above, the juvenile court had exclusive, original

jurisdiction under R.C. 2151.23 to determine the custody of the children at

issue, as they were not wards of any other court. However, R.C. 2151.23

further provides in section (F)(1) that “the juvenile court shall exercise its

jurisdiction in child custody matters in accordance with sections 3109.04 and

3127.01 to 3127.53 of the Revised Code and, as applicable, sections 5103.20

or 5103.23 to 5103.237 of the Revised Code.” Of importance and relevance

here, R.C. 3109.04 governs courts awarding parental rights and

responsibilities and requires the best interests of the child be taken into

consideration in making those determinations. See R.C. 3109.04(B)(1).

      {¶39} As between two parents, which is the situation here, the

universally applied standard to be used in initial custody determinations is

the best interests of the child. See Boyer v. Boyer, 46 Ohio St.2d 83, 346

N.E.2d 286 (1976); see also In re Webster II, 4th Dist. Athens No.

92CA1559, 1993 WL 373784 (reasoning that where there was no prior
Athens App. No. 18CA13                                                         29

custody decree and where father moved for custody prior to paternity

determination, the trial court did not err in applying the standard utilized in

initial custody awards between parents, which is the best interests of the

child standard). In re Webster further cited In re Byrd as follows:

      “When an alleged natural father of an illegitimate child, who
      has participated in the nurturing process of the child, files a
      complaint seeking custody of the child, and the mother admits
      that he is the natural father of the child, the natural father of the
      child has equality of standing with respect to the custody of the
      child, and the best interest test is applied.” In re Webster II at
      *4; citing In re Byrd, supra, paragraphs one and two of the
      syllabus. (Emphasis added).

Further, although R.C. 3111.08 permits the grant of default judgment in civil

actions to establish a father and child relationship, this was an action for

custody, not to establish the father and child relationship, and we are aware

of no such counterpart permitting default judgment in connection with child

custody determinations.

      {¶40} Accordingly, although we have found no merit to the

assignments of error raised by Appellant, because we have sua sponte

determined the trial court erred in failing to make a best interest of the

children determination prior to making an initial custody determination as

between two parents, the mother and putative father, the judgment of the

trial court is reversed and this matter is remanded for further proceedings

consistent with this opinion.
Athens App. No. 18CA13                     30

                         JUDGMENT REVERSED
                         AND REMANDED FOR
                         FURTHER PROCEEDINGS
                         CONSISTENT WITH THIS
                         OPINION.
Athens App. No. 18CA13                                                         31

                           JUDGMENT ENTRY

     It is ordered that the JUDGMENT BE REVERSED AND
REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH
THIS OPINION. Costs are assessed to Appellee.

      The Court finds there were reasonable grounds for this appeal.

      It is ordered that a special mandate issue out of this Court directing
the Athens County Common Pleas Court, Juvenile Division, to carry this
judgment into execution.

       Any stay previously granted by this Court is hereby terminated as of
the date of this entry.

      A certified copy of this entry shall constitute the mandate pursuant to
Rule 27 of the Rules of Appellate Procedure.

Hoover, P.J.:      Concurs in Judgment and Opinion.
Harsha, J.:        Concurs in Judgment and Opinion as to Assignment of
                   Error II; Concurs in Judgment Only as to Assignment of
                   Error I.

                                       For the Court,


                                 BY: ______________________________
                                     Matthew W. McFarland, Judge




                         NOTICE TO COUNSEL

      Pursuant to Local Rule No. 14, this document constitutes a final
judgment entry and the time period for further appeal commences from
the date of filing with the clerk.
