Opinion
No. 80-1630
Decided March 31, 1981.
Mandamus — Prohibition — Writs not available, when — No clear legal duty shown — No abuse of discretion by trial court — Writ not available to prevent prospective erroneous judgment.
APPEAL from the Court of Appeals for Hamilton County.
Relator-appellant, Patricia Scordato, is divorced. She was given legal custody of the couple's two children at the time of the divorce on February 1, 1977. She lives in New York. The father has presumably remarried and lives in Hamilton County, Ohio. In November of that year, the custody of Christina, then age 13, was changed to the father by agreed entry. She has since elected to live with her mother. On August 14, 1978, the father moved the court for award of eight-year old Matthew's custody. No action was taken on this motion until a hearing was held on August 20, 1979. The court then continued the motion indefinitely, but granted the father visitation rights for the summer of 1980.
On August 20, 1980, the motion came on for hearing again. At that time, the appellee judge spoke with Matthew and a counselor from the court's counseling department in the judge's chambers. Following this discussion, the judge announced that he would grant extended visitation to the father for the 1980-81 school year.
Appellant then instituted this action in mandamus and prohibition in the Court of Appeals, seeking an order requiring appellee to vacate his extended visitation order, to hold a hearing on the motion for change of custody, and to follow R.C. 3109.04(B) and (C) in making his decision on the merits of the pending motion. Appellee filed a motion to dismiss.
The court granted the motion to dismiss with regard to the writ of prohibition. The court further denied the writ of mandamus, holding that appellee had not abused his discretion in granting extended visitation. Appellant's motion for reconsideration was overruled.
The cause is now before this court on an appeal as of right.
Mr. Paul A. Nidich, for appellant.
Messrs. Furer, Moskowitz, Siegel Mezibov, and Mr. Joel S. Moskowitz, for appellee.
The Court of Appeals, in effect, found that the extended visitation order at issue in this case was not the equivalent of a formal modification of a prior custody decree. While custody and visitation are obviously related, a court's discretion regarding visitation is broader. See R.C. 3109.05. The Court of Appeals also found that appellee had not abused his discretion in ordering the "extended visitation." We do not find that the Court of Appeals abused its discretion in making such determination. State, ex rel. Pressley, v. Indus. Comm. (1967), 11 Ohio St.2d 141. Appellee is thus under no clear legal duty to act as the appellant requests, and the denial of the writ of mandamus is affirmed.
As for the writ of prohibition, the decision of the Court of Appeals will be affirmed. Prohibition does not lie when the court has jurisdiction of the subject matter and the parties; the writ will not issue to prevent a prospective erroneous judgment. State, ex rel. Erie County Demo. Exec. Comm., v. Brown (1966), 6 Ohio St.2d 136, 138.
For the foregoing reasons, the judgment of the Court of Appeals is affirmed.
Judgment affirmed.
CELEBREZZE, C.J., W. BROWN, P. BROWN, SWEENEY, LOCHER, HOLMES and C. BROWN, JJ., concur.