Summary
holding that a writ of habeas corpus was unavailable when former R.C. 3109.32 provided an adequate statutory remedy to enforce an Illinois custody order
Summary of this case from In re M.TOpinion
No. 83-401
Decided July 3, 1984.
Appellate procedure — Custody — Writ of habeas corpus improperly granted, when — Adequate remedy pursuant to R.C. Chapter 3109 to enforce out-of-state custody decree.
APPEAL and CROSS-APPEAL from the Court of Appeals for Wood County.
This cause arises as a result of a custody dispute between Samuel F. Wagner, appellant, and Louanne C. Luchene, appellee, former spouses who resided in Pennsylvania at the time of the birth of their second child, Devon, in April 1978. Shortly after Devon's birth, the parties separated. At that time, Samuel retained custody of Devon, as well as the parties' oldest child, Samuel F. Wagner, Jr.
The parties obtained a dissolution of marriage in the Circuit Court of Cook County, Illinois, on July 30, 1980. The question of the custody of their minor children was not submitted to the court for consideration.
In August 1980, Samuel and the two children moved to Bowling Green, Ohio. Meanwhile, Louanne moved to the state of Illinois. Sometime in June 1981, Samuel requested that Louanne temporarily care for the children until he could resolve a series of domestic difficulties. Louanne consented to this request and Samuel personally took the children to her residence in Illinois.
In July 1981, less than thirty days later, Louanne returned Samuel, Jr., to his father. Louanne, however, refused to return Devon, instead retaining him in Illinois over the initial objections of his father. Ten months later, Samuel journeyed to Illinois, picked up Devon, and returned to Ohio. Once in Ohio, Samuel telephoned Louanne and informed her of Devon's whereabouts.
On May 27, 1982, Louanne filed a petition in the Circuit Court of Cook County, Illinois, seeking custody of Devon. Appellant received notice of the proceeding by certified mail and by personal service, yet he failed to appear or otherwise contact the court. On June 23, 1982, the Illinois court awarded Louanne custody of Devon.
Thereafter, Louanne filed a complaint in the Court of Common Pleas of Wood County, Ohio, asking the court to extend full faith and credit to the Illinois custody decree and to enforce the same pursuant to R.C. 3109.32(A). The matter was referred to a referee who concluded that the Illinois decree was enforceable. The court of common pleas rejected the referee's recommendation and concluded, inter alia, that the Illinois court lacked in personam jurisdiction over Samuel.
From that judgment, Louanne perfected an appeal to the Court of Appeals for Wood County, case No. WD-82-68. Immediately preceding the appeal, however, appellee also initiated the within action in habeas corpus in the same court of appeals, case No. WD-82-63, seeking the identical relief sought in the cause then pending before the trial court, i.e., the enforcement of the Illinois custody order and Devon's return. The court of appeals, upon motion, consolidated the causes and reversed the judgment of the trial court, finding that the Illinois order was entitled to full faith and credit. In addition, the court granted the writ.
Appellant then filed a memorandum in support of jurisdiction and a motion to certify the record, in an attempt to have this court review the judgment of the court below. We denied review by entry dated April 27, 1983. This appeal, which involves the identical relief sought in appellant's prior appeal to this court, is taken as of right from that portion of the judgment of the court of appeals granting the writ of habeas corpus.
Case No. 83-400.
Mr. Alan R. Kirshner and Mr. Gordon H. Hirsch, for appellee and cross-appellant.
Mr. Michael J. Marsh, for appellant and cross-appellee.
Although the parties to the within appeal frame the issue as being whether the Illinois custody decree should be extended full faith and credit, the initial question posed for review is whether habeas corpus should issue in spite of the existence of an adequate remedy at law. It is well-settled concerning an appeal as of right from an action originating in the court of appeals that this court will review the judgment of the court as if the action had originally been filed herein to determine, inter alia, whether a plain and adequate remedy existed in the ordinary course of the law. See State, ex rel. Pressley, v. Indus. Comm. (1967), 11 Ohio St.2d 141, 164 [40 O.O.2d 141].
The common thread linking such extraordinary remedies as mandamus, prohibition or habeas corpus is that none of these writs will issue when a plain and adequate remedy exists in the ordinary course of the law. See State, ex rel. Berger, v. McMonagle (1983), 6 Ohio St.3d 28, and cases cited therein as this rule is applied to actions in mandamus and prohibition, and In re Hunt (1976), 46 Ohio St.2d 378 [75 O.O.2d 450], for the application of the rule to habeas corpus actions.
As stated in In re Piazza (1966), 7 Ohio St.2d 102, 103 [36 O.O.2d 84]:
"* * * Habeas corpus is an extraordinary remedy and as with every extraordinary remedy is not available as a means of relief where there is an adequate remedy in the ordinary course of the law. In re Burson, 152 Ohio St. 375 [40 O.O. 391]. Habeas corpus may not be used as a substitute for appeal nor may it be resorted to where an adequate statutory remedy for review of the questions presented exists." See, also, Linger v. Weiss (1979), 57 Ohio St.2d 97 [11 O.O.3d 281]; In re Hunt, supra; In re Clendenning (1945), 145 Ohio St. 82 [30 O.O. 301].
Moreover, it is firmly established that a discretionary right of appeal to the court of appeals constitutes a sufficiently plain and adequate remedy in the ordinary course of the law. State, ex rel. Cleveland, v. Calandra (1980), 62 Ohio St.2d 121, 122 [16 O.O.3d 143]; State, ex rel. Berger, v. McMonagle, supra, at 30.
In the instant cause, appellee not only possessed an adequate statutory remedy under R.C. 3109.32(A), by which to seek enforcement of the Illinois custody order, but she pursued that remedy and received a decision from the court of common pleas on the precise issue which she then placed before the court of appeals through a discretionary appeal, as well as an original action in habeas corpus. Clearly, appellee sought to employ the writ as a substitute for, or in conjunction with, her statutory remedy under R.C. Chapter 3109 and her discretionary appeal, contrary to this court's prior pronouncements. In re Hunt, supra, at 381; In re Piazza, supra, at 103. Cf. Hardesty v. Williamson (1984), 9 Ohio St.3d 174, 176.
R.C. 3109.32(A) provides:
"A certified copy of a custody decree of another state may be filed in the office of the clerk of any court of this state that renders custody decrees. The clerk shall treat the decree in the same manner as a custody decree of an appropriate court of this state. Until modified, a custody decree so filed has the same effect and shall be enforced in like manner as a custody decree rendered by a court of this state."
We therefore conclude that since this cause exhibits no circumstances warranting the issuance of the extraordinary writ of habeas corpus in place of the statutory procedure contained under R.C. Chapter 3109, or an appeal from the trial court's judgment, the court of appeals improperly granted the writ.
Our decision today leaves undisturbed the balance of the judgment of the court of appeals reversing the judgment of the court of common pleas in case No. WD-82-68.
Accordingly, the judgment of the court of appeals is reversed and the writ is denied.
In view of our decision, appellee's cross-appeal, which raises a question concerning the presentation of evidence before the court of appeals, need not be addressed.
Judgment reversed and writ denied.
CELEBREZZE, C.J., W. BROWN, SWEENEY, LOCHER, HOLMES, C. BROWN and J.P. CELEBREZZE, JJ., concur.