Crall-Shaffer v Shaffer (Ohio App. 1 Dist 1995)663 N.E.2e 1346
8 International Abduction [USA 1995]
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Crall-Shaffer, Appellant
v
Shaffer, Appellee
No C-940589, 19 Jul 1995
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Taft, Stettinius & Hollister and Thomas E. Grossmann,
Cincinnati, for appellant.
Thompson, Hine & Flory and Gerald W. Simmons, Cincinnati,
for appellee.
PER CURIAM.
001 Plaintiff-appellant Jane Crall-Shaffer (“the mother”)
and defendant-appellee Gregory Shaffer (“the father”) are
United States citizens with family in Cincinnati, Ohio. The
parties were, married in 1982, and a son, Brook Shaffer
(“the child”), was born to them in 1985. In 1988, the
family moved to Paris, France, where the father was and
still is employed as an attorney with a French law firm. In
1992 the mother and the father separated, and the child’s
primary residence was established with the father; however,
the mother continued her relationship with the child. In
April 1994, the father filed a complaint for divorce in
Paris. A hearing date was set for June 28, 1994, and the
mother, was served with notice of the action and hearing
date according to French law. FN01
002 On June 26, 1994, the mother picked up the child from
the father’s residence for an “overnight” at her apartment,
promising to bring the child to school the next morning. She
instead boarded an airplane with the child for Cincinnati,
Ohio, arriving in Cincinnati with the child sometime on June
27, 1994. On June 27, 1994, the mother’s attorney filed a
complaint for legal separation in the, Hamilton County Court
of Common Pleas, Domestic Relations Division (“the trial
court”).
003 When the father was informed that the child had not
attended school and had not arrived home, the father
investigated and finally discovered the child’s whereabouts
in Cincinnati. Through his attorney in Cincinnati, the
father filed a motion to dismiss the action for legal
separation on July 5, 1994. On July 25, the father also
filed a petition for return of the child, or a “Hague
petition,” pursuant to the International Child Abduction
Remedies Act (“ICARA”), Section 11601 et seq., Title 42,
U.S. Code. ICARA is a codification of the Hague Convention
on the Civil Aspects of International Child Abduction, to
which both the United States and France are signatory
countries.
004 A conference was held with the court on the father’s
motion to dismiss and other procedural matters on July 8 and
July 12, 1994, and counsel for both parties participated.
The court entered an order on July 14, 1994, which
prohibited the mother from removing the child from Hamilton,
County, and which required her to appear and produce the
child in court at a hearing, set for August 1, 1994. The
father’s motion to dismiss was taken under advisement. On
July 29, 1994, the mother submitted an entry to dismiss her
complaint for legal separation. The trial court signed and
journalized the entry to dismiss, then vacated the entry
later the same day.
005 The mother and the child failed to appear at the
hearing. FN02 The court proceeded to conduct a hearing on
the merits of the Hague petition despite counsel for
plaintiffs’ refusal to participate. The court found the
mother in contempt of court and issued a bench warrant for
her arrest on August 4, 1994. The court entered an order on
August 5, 1994, in which it granted the father’s motion to
dismiss, granted the father’s Hague petition, and ordered
the return of the child to France. Attorney fees were also
awarded to the father. The mother timely appealed the
August 5, 1994 Order.
006 The mother raises three assignments of error in her
appeal: (1) the trial court erred to her prejudice when it
vacated her voluntary dismissal, (2) the trial court erred
to
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her prejudice when it dismissed her complaint with
prejudice; and (3) the trial court erred to her prejudice
when it granted the father’s petition for return of the
child.
007 In her first and second assignments of error, the
mother asserts that she has an absolute right to a dismissal
of her complaint for legal separation under Civ.R.
41(A)(1)(a), and that such a dismissal is without prejudice.
Because we decline to construe the Hague petition as a
counterclaim which could not remain pending for independent
adjudication by the court, we hold that it was error for the
trial court to vacate the mother’s voluntary dismissal.
008 Because we hold that the trial court erred in vàeating
the mother’s entry of dismissal, it follows that the trial
court erred in dismissing the mother’s complaint with
prejudice. The first and second assignments of error are,
therefore, well taken. We hold that the judgment dismissing
the mother’s complaint should be modified to reflect a
dismissal of her complaint without prejudice.
009 In her third assignment of error, the mother argues
that the trial court had no subject matter jurisdiction over
the Hague petition. After reviewing all relevant case law
on Hague petitions and the statute which implements the
Hague convention on the Civil Aspects of Child Abduction, we
hold that the Hamilton County Court of Common Pleas,
Domestic Relations Division, as a court of the state of
Ohio, had original and concurrent jurisdiction over the
Hague petition, pursuant to Section 11603(a), Title 42, U.S.
Code. The merits of the petition were correctly before the,
trial court, and the mother had notice of the hearing and an
opportunity to be heard. The fact that the mother chose not
to participate in the hearing does not make the hearing and
subsequent order in favor of the father invalid. The,
mother’s objection to the trial court’s assertion of
jurisdiction over the Hague petition was overruled but
preserved for appeal; the proper, course of action was to
participate in the proceedings and appeal the issue of
subject matter jurisdiction.
010 We hold that the trial court did not abuse its
discretion in finding that (1) the child’s habitual
residence is France; (2) the child was wrongfully retained
by the ‘mother in Cincinnati, Ohio; (3) the child should be
returned to France, where a custody order of a French court
is in effect; and (4) attorney fees and costs are to be
awarded to the father. The petitioner’s third assignment of
error is overruled.
011 Therefore, the judgment of the, trial court with
respect to the dismissal of the mother’s complaint for
separation is modified as a dismissal without prejudice, and
the remaining portions of the judgment are affirmed.
Judgment accordingly.
GORMAN, P.J., and PAINTER and SHANNON, JJ., concur.
RAYMOND E. SHANNON, J., retired, of the First Appellate
District, sitting by assignment.
Footnotes
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1. The hearing was held in Paris on June 8, 1994, and the
mother failed to appear. On July 1, 1994 the French
court awarded joint custody, with the child’s primary
residence to remain with the father.
2. The mother and the child had not been located at the
time of this appeal, and the father had not seen the
child since June 26, 1994.
Comment by Wm M Hilton, 06 Sep 1999
The case illustrates the point that one should bring an
action under The Convention on the Civil Aspects of
International Child Abduction, done at the Hague on 25 Oct
1980 [The Convention] in a proceeding that is separate from
any existing domestic relations matter.
While it didn’t happen here, it is within the realm of
possibility that when the mother dismissed the underlying
domestic relations action, the action under The Convention
could have been dismissed as well.
Imagine the problem that could have caused if the dimissal
was with prejudice.
If the original filing under The Convention had been close
to the end of the Art. 12 one year period, a dismissal of
The Convention could then place the requesting parent
outside of the Art. 12 one year period, thus allowing a
further defense to the removal by the other parent.
The case also is useful in that it iterates the standard
that all that is required is “notice and an opportunity to
be heard” and actual presence of a party is not required.