COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 68671 PETER D. KIRBY : : PLAINTIFF-APPELLEE : : JOURNAL ENTRY : v. : AND : ALISON NAKANISHI : OPINION AKA KIRBY : : DEFENDANT-APPELLANT : DATE OF ANNOUNCEMENT OF DECISION: DECEMBER 20, 1995 CHARACTER OF PROCEEDING: Civil appeal from Domestic Relations Court, Case No. D-236949. JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: William Kelly, Esq. 11210 Lorain Avenue Cleveland, OH 44111 For Defendant-Appellant: Susan M. Lawko, Esq. Lawko & Lawko 11711 Lorain Avenue Cleveland, OH 44111 -2- DAVID T. MATIA, J.: Alison Nakanishi, fka Alison Kirby, defendant-appellant, appeals from the judgment of the Cuyahoga County Court of Common Pleas, Domestic Relations Division, which granted the motion for adoption of foreign decree filed by Peter Kirby, plaintiff-appellee. Defendant-appellant assigns five errors for this court's review. Defendant-appellant's appeal is not well taken. I. THE FACTS Alison Nakanishi, defendant-appellant, and Peter Kirby, plaintiff-appellee, were married on May 14, 1987. One child, Samuel Kirby, was born as issue of the marriage. Samuel Kirby was born on October 16, 1987. In August, 1992, the parties entered into a stipulated decree of dissolution of marriage in the Multnomah County Circuit Court in the State of Oregon. Pursuant to the stipulated decree, Peter Kirby, plaintiff-appellee, agreed to have "no visitation or contact" with the couple's minor son, Samuel Kirby. In exchange for giving up visitation rights, Alison Nakanishi, defendant- appellant, agreed to forego child support payments for Samuel Kirby from Peter Kirby, plaintiff-appellee, which were calculated at $370 per month. Neither party was obligated to pay spousal support to the other party. During the pendency of the domestic relations action, Alison Nakanishi relocated to Cleveland, Ohio with Samuel Kirby. On August 6, 1993, Alison and Eric Nakanishi were married in Cleveland, Ohio where they still reside along with Samuel Kirby. -3- Peter Kirby, plaintiff-appellee, continues to maintain his residence in the State of Oregon. On June 15, 1994, Alison Nakanishi, defendant-appellant, filed an application to change Samuel Kirby's name to Samuel Nakanishi. The application was filed in the Cuyahoga County Probate Court. Peter Kirby, plaintiff-appellee, filed an objection to the proposed name change. On October 27, 1994, Peter Kirby, plaintiff-appellee, filed a motion to adopt foreign decree along with motions for modification of custody and for appointment of a guardian ad litem in the Cuyahoga County Court of Common Pleas, Domestic Relations Division. These motions were filed prior to any ruling by the Cuyahoga County Probate Court on Alison Nakanishi's, defendant-appellant's, application for name change of Samuel Kirby. On February 14, 1995, the trial court held a hearing on Peter Kirby's, plaintiff-appellee's, motion to adopt foreign decree. At the hearing, plaintiff-appellee's counsel maintained that the State of Ohio is the proper forum to litigate the issue of custody and support was given that defendant-appellant and Samuel Kirby have both lived here since 1992 and will continue to reside in the State. Alison Nakinishi's, defendant-appellant's, counsel argued that, since plaintiff-appellee had voluntarily forfeited his right to custody and visitation in exchange for being relieved of his obligation to pay child support, he had no rights or standing to ask the State of Ohio to adopt the foreign decree. -4- No witnesses testified at the hearing although defendant- appellant's counsel attempted to elicit the testimony of Dr. Gee regarding Samuel Kirby's attention deficit syndrome. The trial court did not allow the testimony of Dr. Gee or other testimony relating to Samuel Kirby's home and family life. The trial court stated: *** that it would be better for me to leave the case in Oregon? I mean, that is the only issue that I am here to decide. I should grant his motion to accept jurisdiction or deny his motion. If I grant his motion at that point, you know, then anything regarding the best interest of the child would be pertinent to his subsequent motion for a modification of visitation. The only thing pertinent at this point is what is in the best interest of the child in terms of is this court appropriate or is the Oregon (sic) appropriate to hear the issue. (Tr., pp. 12-13.) On February 21, 1995, the trial court granted Peter Kirby's, plaintiff-appellee's, motion to adopt foreign decree. The judgment entry stated in pertinent part: The Court finds that this Court initiated communication with the Court in Multnomah, Oregon by letter dated January 24, 1995. Judge Elizabeth Welch then responded by telephone, indicating that she had reviewed the file and there was no reason why our Court could not assume jurisdiction concerning the matters of custody and/or visitation. The Court finds that Ohio is the minor child's home state, and has been since 1992, that Ohio has a closer connection with the minor child and his family than the state of Oregon, and that substantial evidence concerning the minor child's present and -5- future care, protection, training, and personal relationships is more readily available in the state of Ohio than in the state of Oregon. On March 13, 1995, Alison Nakanishi, defendant-appellant, filed a timely notice of appeal from the judgment of the trial court. II. FIRST AND THIRD ASSIGNMENTS OF ERROR Alison Nakanishi's, defendant-appellant's, first assignment of error states: THE DECISION OF THE COURT OF COMMON PLEAS OF CUYAHOGA COUNTY, DOMESTIC RELATIONS DIVISION, OHIO IS UNREASONABLE AND UNLAWFUL AND IS CONTRARY TO THE LAW OF THE STATE OF OHIO AS IT SEVERELY JEOPARDIZES THE BEST INTEREST OF THE CHILD. Alison Nakanishi's, defendant-appellant's, third assignment of error states: THE DECISION OF THE COURT OF COMMON PLEAS OF CUYAHOGA COUNTY, DOMESTIC RELATIONS DIVISION, OHIO IS CONTRARY TO THE PURPOSE OF THE UNIFORM CHILD CUSTODY JURISDICTION ACT, OHIO REVISED CODE 3109.21 THROUGH OHIO REVISED CODE 3109.37. Having a common basis in both law and fact, this court shall consider defendant-appellant's first and third assignments of error concurrently. A. THE ISSUE RAISED: UNIFORM CHILD CUSTODY JURISDICTION ACT. Alison Nakanishi, defendant-appellant, argues through her first and third assignments of error that the trial court's decision granting Peter Kirby's, plaintiff-appellee's, motion to adopt foreign decree is contrary to the Uniform Child Custody -6- Jurisdiction Act. Specifically, defendant-appellant maintains that R.C. 3109.22(A)(2) clearly prohibits the trial court from exercising jurisdiction over this case. Defendant-appellant's first and third assignments of error are not well taken. B. R.C. 3109.22(A) The Uniform Child Custody Jurisdiction Act is codified in Ohio at R.C. 3109.21 through R.C. 3109.37. Snelling v. Gardner (1990), 69 Ohio App.3d 196, 204. R.C. 3109.22(A), which deals with a court's jurisdiction to make parenting determinations relative to a child, provides: (A) No court of this state that has jurisdiction to make a parenting determination relative to a child shall exercise that jurisdiction unless one of the following applies: (1) This state is the home state of the child at the time of commencement of the proceeding, or this state had been the child's home state within six months before commencement of the proceeding and the child is absent from this state because of his removal or retention by a parent who claims a right to be the residential parent and legal custodian of a child or by any other person claiming his custody or is absent from this state for other reasons, and a parent or person acting as parent continues to live in this state; (2) It is in the best interest of the child that a court of this state assumes jurisdiction because the child and his parents, or the child and at least one contestant, have a significant connection with this state, and there is available in this state substantial evidence concerning the child's present or future care, -7- protection, training, and person relationships; (3) The child is physically present in this state and either has been abandoned or it is necessary in an emergency to protect the child because he has been subjected to or threatened with mistreatment or abuse or is otherwise neglected or dependent; (4) It appears that no other state would have jurisdiction under prerequisites substantially in accordance with division (A)(1), (2), or (3) of this section, or a court in another state has declined to exercise jurisdiction on the ground that this state is the more appropriate forum to make a parenting determination relative to the child, and it is in the best interest of the child that this court assume jurisdiction. Clearly, the statute requires that only one of the four previous requirements be present before a court may properly exercise subject matter jurisdiction over an action. In the matter of Joshua Ghadar (August 28, 1995), Hocking App. No. 94- CA-15, unreported. In re Wonderly (1981), 67 Ohio St.2d 178, the Ohio Supreme Court set forth the express purposes of the Uniform Child Custody Jurisdiction Act: *** to avoid jurisdictional competition and conflict with the court of other states and assure that the state with the optimum access to the relevant facts makes the custody determination ***. Id. at 180. C. STANDARD OF REVIEW FOR ABUSE OF DISCRETION. The determination as to whether a trial court may exercise subject matter jurisdiction over a case under the Uniform Child -8- Custody Jurisdiction Act is left to the sound discretion of the trial court. State ex rel. Aycock v. Mowery (1989), 45 Ohio St.3d 347, 352; Bowen v. Britton (1993), 84 Ohio App.3d 473, 478. Accordingly, the trial court's decision to exercise jurisdiction will not be disturbed on appeal unless it is clear that the trial court's decision was unreasonable, arbitrary or unconscionable. Blakemore v. Blakemore (1983), 5 Ohio St.3d 217. As stated by the Ohio Supreme Court in Blakemore: The term "abuse of discretion" was defined by this court in State v. Adams (1980), 62 Ohio St.2d 151, 157 [16 O.O.3d 169]: "The term 'abuse of discretion' connotes more than an error of law or judgment; it implies that the court's attitude is unreasonable, arbitrary or unconscionable. Steiner v. Custer (1940), 137 Ohio St. 448 [19 O.O. 148]; Conner v. Conner (1959), 170 Ohio St. 85 [9 O.O.2d 480]; Chester Township v. Geauga Co. Budget Comm. (1976), 48 Ohio St.2d 372 [2 O.O.2d 484]." Id. at 219. D. THE TRIAL COURT DID NOT VIOLATE THE UNIFORM CHILD CUSTODY JURISDICTION ACT. In the case sub judice, a review of the record demonstrates that the trial court properly considered R.C. 3109.22(A) before exercising subject matter jurisdiction. In the trial court's judgment entry dated February 21, 1995, the trial court correctly determined that Samuel Kirby, the couple's minor child, was and is a resident of Ohio. The trial court determined further that Ohio has a much closer connection with Samuel Kirby and his family than the State of Oregon. Lastly, the trial court -9- correctly determined that substantial evidence concerning the minor child's present and future care, protection, training and personal relationships was more readily available in Ohio. In addition, the trial court took the initiative to contact the Multnomah County Circuit Court in Oregon to determine if that court would have any objection to Ohio assuming jurisdiction. The Multnomah County Circuit Court informed the trial court that it saw no reason why Ohio would not be a proper forum to determine the issues of custody, visitation and support. As the Ohio Supreme Court has stated: "The interest of the child is served when the forum has optimum access to relevant evidence about the child and family." In re Wonderly, supra, at 184. A review of the record clearly shows that Ohio is the forum with optimum access to information regarding both Samuel Kirby and his family. Accordingly, the trial court did not err in granting plaintiff-appellee's motion to adopt foreign decree and exercising jurisdiction over this case pursuant to R.C. 3109.22(A). Defendant-appellant's first and third assignments of error are not well taken. III. SECOND ASSIGNMENT OF ERROR Alison Nakanishi's, defendant-appellant's, second assignment of error states: THE DECISION OF THE COURT OF COMMON PLEAS OF CUYAHOGA COUNTY, DOMESTIC RELATIONS DIVISION, OHIO IS CONTRARY TO THE NOTION OF FUNDAMENTAL -10- FAIRNESS, AND THE EQUITABLE ADJUDICATION OF PARENTAL RIGHTS. -11- A. THE ISSUE RAISED: STANDING. Alison Nakanishi, defendant-appellant, argues that since plaintiff-appellee voluntarily relinquished his right to custody and visitation in exchange for relief from child support payments, plaintiff-appellee no longer has any standing to request the Cuyahoga County Court of Common Pleas, Domestic Relations Division, to apply the Uniform Child Custody Jurisdiction Act. Defendant-appellant argues further that, even if plaintiff-appellee has standing under the Uniform Child Custody Jurisdiction Act, it would be contrary to the principles of fundamental fairness to even consider adopting the foreign decree thereby allowing plaintiff-appellee the opportunity to become acquainted with his biological son, Samuel Kirby. Defendant-appellant's second assignment of error is not well taken. B. STANDARD OF REVIEW. As previously stated in this court's discussion and disposition of defendant-appellant's first and third assignments of error, the determination as to whether a trial court may exercise subject matter jurisdiction over an action pursuant to the Uniform Child Custody Jurisdiction Act is left to the sound discretion of the trial court and will not be reversed on appeal absent an abuse of that discretion. Bowen v. Britton, supra, at 478. An abuse of discretion connotes more than an error in law or judgment; it implies that the trial court's attitude is -12- unreasonable, arbitrary or unconscionable. State v. Montgomery (1991), 61 Ohio St.3d 410, 413. C. THE TRIAL COURT DID NOT ABUSE ITS DISCRETION. Here, a review of the record fails to support defendant- appellant's assertion that the trial court's adoption of the foreign decree is unreasonable, arbitrary or unconscionable. Initially, defendant-appellant contends that plaintiff-appellee is without standing to proceed based upon plaintiff-appellee's voluntary relinquishment of all parental rights. However, a review of the decree of dissolution demonstrates that plaintiff- appellee only agreed to give up custody and visitation, not any and all rights he may have regarding Samuel Kirby in the future. Pursuant to R.C. 3109.04, a modification of a prior court order regarding custody may be appropriate as long as the trial court takes into account the best interests of the minor child and a substantial change in circumstances has occurred. Therefore, it was not an abuse of discretion for the trial court to grant plaintiff-appellee's motion to adopt foreign decree so that any potential custody, visitation or child support issues that exist can be litigated and decided by the court with the closest connection to Samuel Kirby's present and future well being. Defendant-appellant's second assignment of error is not well taken. IV. FOURTH ASSIGNMENT OF ERROR Alison Nakanishi's, defendant-appellant's, fourth assignment of error states: -13- THE DECISION OF THE COURT OF COMMON PLEAS OF CUYAHOGA COUNTY, DOMESTIC RELATIONS DIVISION, OHIO IS AGAINST THE PROVISIONS OF THE UNIFORM CHILD CUSTODY JURISDICTION ACT, SPECIFICALLY OHIO REVISED CODE STATUTES 3109.22, 3109.25, 3109.30 AND 3109.31. A. THE ISSUE RAISED: UNIFORM CHILD CUSTODY JURISDICTION ACT. Alison Nakanishi, defendant-appellant, argues that the trial court's decision to exercise jurisdiction over this case violates the Uniform Child Custody Jurisdiction Act. Specifically, defendant-appellant maintains that the trial court violated R.C. 3109.22, R.C. 3109.25, R.C. 3109.30 and R.C. 3109.31. This court has previously addressed defendant-appellant's argument relating to R.C. 3109.22 therefore, this section of the opinion will focus on the remaining Revised Code sections identified by defendant- appellant. Defendant-appellant's fourth assignment of error is not well taken. B. R.C. 3109.25. R.C. 3109.25, which sets forth the requirements for determining whether Ohio constitutes an inconvenient forum, provides in pertinent part: (C) In determining if it is an inconvenient forum, the court shall consider if it is in the interest of the child that another state assume jurisdiction. For this purpose it may take into account, but is not limited to, any of the following factors: (1) If another state is or recently was the child's home state; (2) If another state has a closer connection with the child and his family or -14- with the child and one or more of the contestants; (3) If substantial evidence concerning the child's present or future care, protection, training, and personal relationships is more readily available in another state; (4) If the parties have agreed on another forum that is no less appropriate. (D) Before determining whether to decline or retain jurisdiction, the court may communicate with a court of another state and exchange information pertinent to the assumption of jurisdiction by either court for the purpose of assuring that jurisdiction is exercised by the more appropriate court and that a forum is available to the parties. C. R.C. 3109.30. R.C. 3109.30(B), which deals with the enforcement of foreign decrees, provides: (B) The courts of this state shall recognize and enforce an initial or modification decree of a court of another state if that court assumed jurisdiction under statutory provisions substantially in accordance with section 3109.21 to 3109.36 of the Revised Code or if the decree was made under factual circumstances meeting the jurisdictional standards of sections 3109.21 to 3109.36 of the Revised Code, so long as the decree has not been modified in accordance with jurisdictional standards substantially similar to those of these sections. D. R.C. 3109.31. R.C. 3109.31(B), which deals with the modification of foreign decrees, provides: (B) If a court of this state is authorized under division (A) of this section -15- and section 3109.26 of the Revised Code to modify a parenting decree of another state, it shall give due consideration to the transcript of the record and other documents of all previous proceedings submitted to it in accordance with division (B) of section 3109.36 of the Revised Code. E. THE TRIAL COURT DID NOT VIOLATE THE PROVISIONS OF THE UNIFORM CHILD CUSTODY JURISDICTION ACT. In the case sub judice, a review of the record demonstrates that the trial court complied with the provisions of the Uniform Child Custody Jurisdiction Act in accepting jurisdiction over this case. R.C. 3109.25(C) and (D) set forth the factors which should be considered Ohio constitutes an inconvenient forum. Contrary to defendant-appellant's assertion, Ohio is not an inconvenient forum given the following considerations: 1. Ohio is Samuel Kirby's home state; 2. Ohio is the state with the closer connection to both Samuel Kirby and his family; and, 3. Substantial evidence concerning Samuel Kirby's present or future care, protection training and personal relationships is clearly more readily available in Ohio. Taking into account these factors along with the trial court's communication with the circuit court in Oregon regarding jurisdiction, it cannot now be said that the trial court erred in accepting jurisdiction. Mayor v. Mayor (1991), 71 Ohio App.3d 789, 794-795. -16- R.C. 3109.30(B) and R.C. 3109.31(B) deal with the enforcement and modification of foreign decrees respectively. Since the trial court's only action to date has been to accept jurisdiction over this case pursuant to the considerations set forth in R.C. 3109.22 and R.C. 3109.25, the enforcement and/or potential modification of the foreign decree from the State of Oregon has yet to occur and any discussion regarding future enforcement or modification of the foreign decree by this court would be premature. Defendant-appellant's fourth assignment of error is not well taken. V. FIFTH ASSIGNMENT OF ERROR Alison Nakanishi's, defendant-appellant's, fifth and final assignment of error states: THE DECISION OF THE COURT OF COMMON PLEAS OF CUYAHOGA COUNTY, DOMESTIC RELATIONS DIVISION, OHIO IS CONTRARY TO THE ADOPTION STATUTE, OHIO REVISED CODE SECTION 3107.07(A), AS THE CONDUCT OF THE PLAINTIFF IS EQUIVALENT TO THAT OF ABANDONMENT. A. THE ISSUE RAISED: ABANDONMENT. Alison Nakashini, defendant-appellant, argues through her final assignment of error that R.C. 3107.07(A), an adoption statute governing consent of a parent or legal guardian, should somehow prohibit the Cuyahoga County Court of Common Pleas, Domestic Relations Division, from exercising jurisdiction over this action. Defendant-appellant maintains that plaintiff- appellee has, in effect, abandoned Samuel Kirby pursuant to the -17- adoption statute and should therefore be prohibited from requesting the trial court to assume jurisdiction by adopting the foreign decree of dissolution from the State of Oregon. Defendant-appellant's fifth and final assignment of error is not well taken. B. R.C. 3107.07(A). R.C. 3107.07(A), which deals with situations where parental consent to an adoption is not required, states: Consent to adoption is not required of any of the following: (A) A parent of a minor, when it is alleged in the adoption petition and the court finds after proper service of notice and hearing, that the parent has failed without justifiable cause to communicate with the minor or to provide for the maintenance and support of the minor as required by law or judicial decree for a period of at least one year immediately preceding either the filing of the adoption petition or the placement of the minor in the home of the petitioner. C. R.C. 3107.07(A) DOES NOT PROHIBIT THE DOMESTIC RELATIONS COURT FROM ASSUMING JURISDICTION. In this instance, defendant-appellant has failed to present any evidence to demonstrate that R.C. 3107.07(A), or any of the Ohio adoption statutes, were meant to be applied to domestic relations actions regarding subject matter jurisdiction and adoption of a foreign decree. Ohio's adoption statutes, R.C. 3107.01 et seq., were not intended to control the Domestic Relations Court's jurisdiction. Accordingly, defendant- -18- appellant's fifth and final assignment of error is not well taken. Judgment of the trial court is affirmed. -19- It is ordered that appellee recover of appellant his costs herein taxed. The court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this court directing the Domestic Relations Court to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. PATTON, P.J. and JAMES D. SWEENEY, J., CONCUR. DAVID T. MATIA JUDGE N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announcement of decision (see Rule 26). Ten (10) days from the date hereof this document will be stamped to indicate .