Opinion
Case No. 2012 CA 00121
10-15-2012
STATE EX REL. CHAD A. OSTROWSKI Relator v. HONORABLE DIXIE N. PARK Respondent
For Relator CRAIG T. CONLEY For Respondent JOHN D. FERRERO Prosecuting Attorney Stark County, Ohio BY: ROSS RHODES Assistant Prosecuting attorney Chief of the Civil Division
JUDGES:
Patricia A. Delaney, P.J.
William B. Hoffman, J.
Julie A. Edwards, J.
OPINION
CHARACTER OF PROCEEDING: Writ of Procedendo Complaint JUDGMENT: Writ Issued APPEARANCES: For Relator CRAIG T. CONLEY For Respondent JOHN D. FERRERO
Prosecuting Attorney
Stark County, Ohio
BY: ROSS RHODES
Assistant Prosecuting attorney
Chief of the Civil Division
Edwards , J.
{¶1} Relator, Chad Ostrowski, has filed a Complaint in Procedendo requesting this Court order the trial court to lift a stay in the underlying adoption petition. Respondent has filed a Motion to Dismiss.
{¶2} Relator filed a Petition for Adoption in the trial court which the trial court stayed pending the resolution of a motion for visitation in the Stark County Court of Common Pleas, Juvenile Division. Respondent argues a stay of the adoption proceedings is warranted based upon the Supreme Court's holding in In re Adoption of Pushcar, 110 Ohio St.3d 332, 2006-Ohio-4572. Relator in turn argues the Respondent's reliance on Pushcar is misplaced. For the following reasons, we agree with Relator and grant the requested Writ of Procedendo.
{¶3} "A 'writ of procedendo is appropriate when a court has either refused to render a judgment or has unnecessarily delayed proceeding to judgment.'" State ex rel. CNG Fin. Corp. v. Nadel, 111 Ohio St.3d 149, 2006-Ohio-5344, 855 N.E.2d 473, ¶ 20, quoting Weiss, 84 Ohio St.3d at 532, 705 N.E.2d 1227.
{¶4} "[T]he requirements for a writ of procedendo are met if a judge erroneously stays a proceeding." State ex rel. Charvat v. Frye, 114 Ohio St.3d 76, 2007-Ohio-2882, 868 N.E.2d 270, ¶ 15. Consequently, "a writ of procedendo will issue to require a court to proceed to final judgment if the court has erroneously stayed the proceeding." State ex rel. Watkins v. Eighth Dist. Court of Appeals (1998), 82 Ohio St.3d 532, 535, 696 N.E.2d 1079." State ex rel. Sawicki v. Lucas Cty. Court of Common Pleas, 126 Ohio St.3d 198, 200, 931 N.E.2d 1082, 1086 (2010). Stark County App. Case No. 2012 CA 00121 3
{¶5} The Supreme Court in Pushcar held, "[W]hen an issue concerning the parenting of a minor child is pending in the juvenile court, a probate court must refrain from proceeding with the adoption of that child." Pushcar at 334. In the instant case, the proceeding pending in the Juvenile Court is a Complaint for Visitation. According to the Complaint for Visitation, paternity has already been established. The subject of the case in Pushcar was the establishment of paternity and not merely visitation. The establishment of paternity is a necessary element of an adoption case which is why a stay was necessary in Pushcar. Here, the same adoption prerequisite does not exist.
{¶6} Subsequent to its holding in Pushcar, the Supreme Court noted that the term "parenting" as used in Pushcar was synonymous with "parentage." In re G.T.B. 128 Ohio St.3d 502 (2011), at FN2. Parentage clearly refers to the establishment of paternity.
{¶7} We find, Pushcar stands for the proposition that a stay must be imposed only where parentage is at issue. Because parentage has been established in this case the trial court erred in imposing a stay. Stark County App. Case No. 2012 CA 00121
{¶8} We grant the writ of procedendo and order the trial court to proceed with the adoption case forthwith. By: Edwards, J. Delaney, P.J. and Hoffman, J. concur
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JUDGES JAE/ads0905 STATE EX REL. CHAD A. OSTROWSKI
Relator -vs- HONORABLE DIXIE N. PARK
Respondent
JUDGMENT ENTRY
CASE NO. 2012 CA 00121
For the reasons stated in our accompanying Memorandum-Opinion on file, a Writ of Procedendo is issued. The stay imposed by the trial court is lifted. Costs are waived.
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JUDGES