Opinion
No. 84-1019
Decided July 17, 1985.
Child custody — Uniform Child Custody Jurisdiction Act — R.C. 3109.21 et seq. — Writ of habeas corpus denied, when.
APPEAL from the Court of Appeals for Cuyahoga County.
Petitioner-appellee, Gwendolyn Davis, is the mother of Beulah and Emma Davis, ages five and seven, respectively. Respondent-appellant, Emma Davis of Clayton, Louisiana, is the grandmother of the two minor children, and the mother of appellee. On or about October 1, 1982, appellant had the two minor children taken from Cleveland to Louisiana, and appellee has been unable to procure the return of her children.
On March 1, 1983, appellee filed complaints in the court of common pleas, juvenile division, seeking an order of custody over her children, along with a request for a writ of habeas corpus. The trial court granted appellee custody of the children, finding that Ohio is their home state, but denied the writ of habeas corpus. In the statement of proceedings filed in lieu of a record in each case, the court stated that since the children were located in Louisiana, it would be ineffectual to grant a writ in the state of Ohio, and that application for such writ ought to be made in the jurisdiction which can enforce it ( i.e., Louisiana).
Upon the appellee's appeal in each case, the court of appeals reversed and remanded in a split decision. The appellate court ruled that the juvenile court erred in failing to issue a writ of habeas corpus because there exists an alternative means of enforcement available to the juvenile court under R.C. 3109.34(B). The dissenting appellate judge opined that the juvenile court's decisions should be affirmed, since the cause presents no circumstances which would warrant use of the extraordinary remedy of habeas corpus in addition to the usual procedures under the Ohio and Louisiana statutes which adopt the Uniform Child Custody Jurisdiction Act.
This section provides in pertinent part:
"A court of this state may request the appropriate court of another state to order a party to custody proceedings pending in the court of this state to appear in the proceedings, and if that party has physical custody of the child, to appear with the child. * * *"
The cause is now before the court pursuant to the allowance of a motion to certify the record.
Sheila Tew and Mohamed I. Chambas, for appellee.
Stotter, Koosed Potash Co., L.P.A., and Lee A. Koosed, for appellant.
The appellee-mother contends that the trial court erred in appointing counsel for the indigent appellant-grandmother for purposes of an appeal, and that, therefore, the appeal before this court should be dismissed. Appellee also argues that in a child-custody case brought under the Uniform Child Custody Jurisdiction Act, an Ohio juvenile court may issue a writ of habeas corpus against a respondent residing in another state that has also adopted the uniform Act.
The appellant contends that since appellee has gained and pursued her adequate remedy at law, issuance of the extraordinary writ of habeas corpus would be both duplicative and unnecessary.
In the recent case of Luchene v. Wagner (1984), 12 Ohio St.3d 37, we stated at 39:
"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 [(1976), 46 Ohio St.2d 378 (75 O.O.2d 450)], 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 [(1983), 6 Ohio St.3d 28], supra, at 30."
In the cause sub judice, the trial court granted appellee custody of her children under Ohio's version of the Uniform Child Custody Jurisdiction Act, R.C. 3109.21 et seq. We find that the case herein is similar to, and controlled by Luchene, supra, because we can find no circumstances warranting the issuance of the extraordinary writ in addition to the custody decree granted by the trial court pursuant to R.C. Chapter 3109. Moreover, it is extremely doubtful that a writ of habeas corpus issued by an Ohio court could be enforced in a sister state such as Louisiana. See Lemley v. Kaiser (1983), 6 Ohio St.3d 258.
Given the fact that both Ohio and Louisiana have adopted the Uniform Child Custody Jurisdiction Act, the custody decree rendered by the juvenile court below is binding on the appellant since the record indicates she was properly served. The appellee's enforcement of the custody decree can and should be made through the Louisiana courts. The procedure undertaken by appellee in the juvenile court has provided her with an adequate remedy at law. This being the case, the issuance of an extraordinary writ of habeas corpus would be, as appellant contends, both unnecessary and duplicative and will not be sanctioned by this court.
With respect to the issue raised by appellee concerning the appointment of appellate counsel for the indigent appellant, we find that such appointment was a function of discretion on the part of the juvenile court, and does not constitute reversible error.
Based upon the foregoing, the judgment of the court of appeals is reversed.
Judgment reversed.
CELEBREZZE, C.J., SWEENEY, HOLMES, C. BROWN, DOUGLAS and WRIGHT, JJ., concur.
LOCHER, J., concurs in judgment only.