PAMPHLET, additional precedent,law,code,statute,constitutional
PRECEDENT
176 OS 299,199 NE(2d) 586 (1964),Bartlett v Bartlett.
Error in the application of law to the facts in the
rendition of a judgement is judicial error, and is a matter
which must be raised by appeal, and is not irregularity in
obtaining the judgement within the meaning of RC
2325.01.(Annotation from RC 2325.01.)
59 USLW 4070(US 1991), FirsTier Mortgage Co. v Investors
Mortgage Insurance Co.
Under Fed ÿApp R 4(a)(2), a notice of appeal filed from a
decision that is not final can serve as an effective notice
of appeal from a subsequently entered final judgement when a
district court announces a decision that would be
appealable if immediately followed by the entry of judgement.
18 OS(2d) 154,248 NE(2d) 57(1969),Lincoln Properties,Inc. v
ÿGoldslager.
In an appeal on questions of law and fact, a court of
appeals is without power to remand the cause to the inferior
court for further proceedings tantamount to a new trial, but
is required to substitute it's independant judgement for that
of the inferior court and to grant final judgement in
accordance with its findings on the evidence before it.
63 O St. 3d 173,State, ex rel. Beacon Journal Publishing Co.,
v. Donaldson
An appeal may be heard when there is a reasonable
expectation that the same complaining party will be subject
to the same action again.
Pence v. Darst(1989), 62 Ohio App. 3d 32
When an appellant elects to wait until the case is
completely over in the trial court before maintaining his
appeal, and the issue that he is seeking to raise on appeal
has not become moot as result of intervening events, it will
not have been impracticable for him to have waited to perfect
his appeal.......
176 OS 299,199 NE(2d) 586 (1964),Bartlett v. Bartlett
Error in the application of law to the facts in the
rendition of a judgement is judicial error, and is a matter
which must be raised by appeal,... .
46 App(3d) 102,546 NE(2d) 950(Franklin 1988), Buckles v. Buckles
A trial court's failure to individually determine each piece of
property considered in an alimony determination constitutes error.
40 App(3d) 155,532 NE(2d) 201(Franklin 1988),Day v. Day
A trial court's failure to consider whether or not a spouse's
pension plan may properly be subject to "qualified domestic
relations order" pursuant to "29 USC 1056" constitutes an abuse of
discretion.
CUSTODY
46 O Jur 3d Family Law í307
" A court's determination of custody must be made in accordance with
the provisions of the Uniform Child Custody Jurisdiction Act."
pamplet pages 5-15
UCCJA- mandate of Act
1 [SECTION 24.[PRIORITY.] Upon the request of a party to a cus-
2 tody proceeding which raises a question of the existance or
exercise of
3 jurisdiction under this Act the case shall be given calender
priority
4 and handled expeditiously.]
Comment
Judicial time spent in determining which court has or should
exercise jurisdiction often prolongs the period of uncertainty and
turmoil in a child's life more than is necessary. The need for
speedy adjudication exists, of course, with respect to all aspects
of child custody litigation. The priority requirement is limited to
jurisdictional questions because an all encompassing priority would
be beyond the scope of this Act. Since some states may have or wish
to adopt a statutory provision or court rule of wider scope, this
section is placed in brackets and may be omitted.
Proper Forum, Investigations, Party Actions, Court procedure
Snelling v. Gardner(1990),69 O App 3d 196
Custody of the child must be a disputed issue before the UCCJA
applies.
PAMPHLET PAGES 5-17
Am. Sub. S.B. 3, Am Sub H.B. 514 submit guidelines for the issue
of custody, and additional property seperation, spousal support.
Precedent
49 OS(3d) 21,550 NE(2d) 178(1990), ÿBechtol v ÿBechtol.
When forming a custody order, a trial court should give due
consideration to which parent performed the role of primary
caregiver.
23 O App 3d 109,Charles v. Charles
There is no longer a presumption that the mother is entitled
to custody of a child of tender years.
In re Custody of Carpenter, 41 App(3d) 182,534 NE(2d) 1216 (Greene
1987),
As between a parent and non-parent, a parent may be denied custody
only if a preponderance of the evidence indicates abandonment,
contractural relinquishment of custody, total inability to provide
care or support, or that the parent is otherwise unsuitable so that
an award of custody to the parent would be detrimental to the child
and although RC 3109.04(C) does not apply to temporary custody
orders, the factors enumerated therein are factors which the court
may consider in determining the suitability or unsuitability of the
parent.
In re Maxwell(1982),8 O App 3d 302,
"In those custody disputs where the facts demonstrate that child
care and custody are shared in an entirely equal way, then indeed no
presumption arises and the court must proceed to inquire further
into relative degrees of parental competance. However, where one
parent can demonstrate with regard to a child of tender years that
he or she is clearly the primary caretaker parent, then the court
must further determine only whether the primary caretaker parent is
a fit parent. Where the primary caretaker parent achieves the
minimum, objective standard of behavior which qualifies him or her
as a fit parent, the trial court must award the child to the primary
caretaker parent.
66 O App 3d 724, Glover v. Glover
The court abused its discretion by failing to consider the
primary caretaker factor.
No.88-CA-119(7th Dist. Ct. App.,Mahoning, 3-23-89),Paparodis
v Paparodis.
A trial court does not abuse it's discretion in modifying a prior
custody order when there is some evidence to support the trial
court's finding of a change in circumstances in that the children's
schooling is very poor while in the mother's custody and the father
can offer a better educational environment, which is in the
children's best interest.
66 O App 3d 342, Seibert v. Seibert(1990).
A child's tender years, like the role of the primary caretaker, is
a relevent factor in a custody determination. An award based on
future possibilities is contrary to the purpose of R.C. 3109.04
which is to base custody on present circumstances.
60 App(2d) 339,397 NE(2d) 425 (1978), ÿSexton v. ÿSexton
Where a court in a change of custody action determines it is no
longer equitable that a judgement continue to have prospective
application, it may change such, not withstanding RC 3109.04(B) and
even though none of the exceptions in that statute exist.
31 O App 3d Thomson v. Thomson,
O Jur 3d Family Law íí1013,1197--The "primary caretaker doctrine" is
part of the best interest of the child and is included in the
language of R.C. 3109.04(C)(3),"the child's interaction and
interrelationship with his parents."
70 O App 3d 317, Thornton v. Thornton(1990)
The court did not err by awarding custody to the husband where the
wife provided an unclean and unfit enviroment for them and did not
participate sufficiently in thier activities.
3 O App 3d 210,Thrasher v. Thrasher(1981)
Suitable parent has paramount right to custody so long as such
custody is not detrimental to the child.
PROPERTY DIVISION, SPOUSAL SUPPORT, PROFESSIONAL DEGREE
4 ALR4th 1294
Spouse's professional degree or licence as marital property
for purposes of alimony, support, or property settlement.
In Am. Sub H.B. 514 the court finds that if a spouse has
engaged in financial misconduct, the court may compensate the
offended spouse with a distributive award or with a greater
distributive award to the offended party.
In Am. Sub. H.B. 514 and Am. Sub. S.B.3 the court finds the
guidelines under which it must distribute marital property and
assets, and spousal support.
42 O St. 3d 61, Kahn v. Kahn(1987)
Goodwill is part of a professional business.
23 O St. 3d 115, Stevens v. Stevens(1986)
Professional degree or licence is not marital property, and
the present value of the projected future earnings of the
degreed spouse is not a marital asset subject to division
upon divorce. Although not a marital asset, the future value
of a professional degree or licence acquired by one of the
parties during the marriage is an element to be considered in
reaching an equitable award of alimony.
21 O St. 3d 73,Worthington v. Worthington
Court does not abuse its discretion by apportioning the
appreciation in value of non-marital property as a marital asset,
where significant marital funds and labor are expended to improve
and maintain such property.
Compensable Loss
In re Wilson(1989),61 O Misc. 2d 369
For an unemployed claimant to sustain compensable "work loss," it
must be shown that he had secured a specific job commencing at some
known date or was in the process of negotiating for a job he was
likely to get.
Retirement benefits, pension plans, related matter
94 ALR3d 176
Pension or retirement benefits as subject to award or division by
court in settlement of property rights between spouses.
49 OS(3d) 120,551 NE(2d) 157 (1990),ÿBolinger v ÿBolinger.
The subject matter jurisdiction of a trial court to award permanent
alimony and to formulate an equitable division of the marital assets
commences when either party files a complaint for divorce and a
division of marital property.
11 O Misc. 2d 26, Bohnlein v. Bohnlein(1983)
Spouse's vested interest in a profit sharing and pension plan
earned during marriage is a marital asset subject to division.
46 ÿApp(3d) 102,546 NE(2d) 950(Franklin 1988),Buckles v
Buckles.
" Parity as a goal of alimony expressed in RC 3105.18 is not a
mathematical equality but an equitable term.
A trial court's failure to indivigually determine each piece of
property considered in an alimony determination constitues error.
At the very least, equity requires that a party receives sufficient
sustanance alimony to bring him or her to a reasonable standard of
living, one in reasonable relationship to the standard maintained
during the marriage.
In achieving a reasonable property-division alimony award, under
R.C. í3105.18, the court must first determine the seperate property
of each party, including but not limited to property held outside
the marriage, and must divide between the parties the property
acquired during the marriage sometimes referred to as "marital
property." After making this determination, the court must consider
whether either party should be awarded alimony from the property of
the other party by utilizing all relevent factors including those
set forth in R.C.í 3105.18."
46 ÿApp(3d) 132,546 NE(2d) 226(Wayne 1988),Carr v Carr.
A court may order an award of sustenance alimony where no specific
demand for alimony has been made if such an award is warrented.
70 O App 3d 738, Connolly v. Connolly(1990)
The trial erred by failing to affix a present value to the
husband's retirement benefits. Portion of retirement benefits which
is marrital property should be determined by computing the ratio of
the number of years of employment during the marriage to the toal
years of employment.
40 ÿApp(3d) 155,532 NE(2d) 201(Franklin 1988),Day v Day.
A trial court's failure to consider whether or not a spouse's
pension plan may properly be subject to "qualified domestic
relations order " pursuant to 29 USC 1056" constitues an abuse of
discretion.
24 O App 3d 151,Eisler v. Eisler(1985)
It is error for the trial court to fail to make findings as to the
fair market value of each item of marital property so that an
appellate court may effectively review.
44 OS(3d) 128,541 NE(2d) 597(1989),ÿHolcomb v ÿHolcomb.
A vested pension plan accumulated during a marrige is a marital
asset and must be considered in conjunction with other factors
listed under RC 3105.18 and other relevant factors in dividing
marital assets and liabilities to insure the result reached is
equitable.
53 OS(3d) 120,551 NE(2d) 1292(1990),Hoyt v Hoyt.
When considering a fair and equitable distribution of pension or
retirement benefits in a divorce, the trial court must apply it's
discretion based on (1) the circumstances of the case; (2) the
status of the parties; (3) the nature, terms and conditions of the
pension or retirement plan; and (4) the reasonableness of the
result.
35 O St. 3d 93, Kaechele v. Kaechele (1988)
In making a sustanance alimony award the court must consider all
factors listed in R.C.í 3105.18(B). For puposes of an appellate
review, the court must detail the basis for its property allocation
and alimony award.
51 OS(3d) 64,554 NE(2d) 83(1990), Kunkle v Kunkle.
Except in cases involving a marriage of long duration, parties of
advanced age, OR a homemaker-spouse who has had little opportunity
to develope meaningful employment outside the home, where a payee
spouse has the resourses, and potential to be self-supporting, an
award of sustenance alimony should provide for the termination of
the award, to place a definative limit upon the parties rights and
responsibilities.
42 App(3d) 142,537 NE(2d) 246(Hocking 1988),Lemon v Lemon.
An unvested pension may be a marital asset under RC 3105.18 and in
determining whether the unvested pension is a marital asset the
court should consider the time left before the pension becomes
vested, the length of the marriage between the parties, and the
contribution of the parties both primarily and secondarily to the
pension plan.
63 O App 3d 671,Mocho v. Mocho(1990),
Trial court exceeded its discretion in its division of marrital
property and its denial of sustenance alimony.........its
distribution of marital assets, spouses' incomes and earning
capacities, its failure to state with specificity its reasons for
its decision. R.C.í3105.18(B)
65 O App 3d 763, Pendleton v. Pendleton(1989),
Under appropriate cicumstances, a court may award sustenance
alimony without setting a definate termination date.
52 App(3d) 117,557 NE(2d) 145(Putnam 1988),Schroeder v
Schroeder.
A divorce decree awarding specific marital property to one spouse
and "the balance of the property" to the other spouse may be
modified to fairly and completely dispose of newly disclosed
property after it is found that the parties did not disclose the
full extent of marital property.
55 App(3d) 111(Williams 1988),Welly v Welly.
In a divorce action, the trial court may either divide the interest
in a retirement plan or award it entirely to one party depending on
what would be equitable in the circumstances.
19 O App 3d 45,Willis v. Willis
Court must develop some method of valuing marital property prior to
division.
Physical condition of parties
23 O App 3d 67,Reichert v. Reichert
Court is required to consider the physical conditions of the
parties in deciding alimony.
Health Insurance
Stone v. Stone, No 1872(4th Dist. Ct. App.,Lawrence,11-23-88)
A court has the authority to order lump sum payment for the
purchase of health insurance as part of an alimony award even absent
a request for such in the demand for alimony or the pleadings.
Moving to another state
8 O App 3d 372,In re Marriage of Barber
Where it is in the best interests of the child, the custodial
parent will be permitted to move with the child to another
jurisdiction.
Undue influance, ineffective use of counsel, other related material
10 O App 3d 44, Dipetro v. Dipetro
To vacate a seperation agreement on the basis of incompetency, a
party must prove by clear and convincing evidence that the agreement
was executed while he was mentally incompetent or under the
influance of fraud, undue influance or duress.
In re Murphy(1983),10 O App 3d 134
Seperation agreement incorporated into a dissolution decree may be
vacated under Civ. R. 60(B) where the agreement omits a substantial
and material amount of the parties' property.
8 O App 3d 52, Young v. Young(1982)
Court may refuse to incorporate a seperation agreement into a
divorce decree where the agreement was the product of one spouse's
duress and undue influance.
Wife's duty to support
5 O App 3d 46, Hacker v. Hacker
Under appropriate circumstances, a wife may be required to pay
support for children in the custody of the father.
NUNC PRO TUNC ORDERS
24 App(3d) 74,24 OBR 129,493 NE(2d) 317 (Geauga 1985) McKay
v. McKay
A court may render a nunc pro tunc order only to place upon
the record evidence of judicial action which actually was
earlier taken; a nunc pro tunc order may not be used to
modify an order.
Buckles v. Buckles (1988,Franklin Co.) 46 O App 3d 118,546
NE(2d) 965
During the pendency of an appeal a trial court continues to
have jurisdiction to exercise so long as the exercise of that
jurisdiction does not interfere with the power of the
appellate court to review the judgement under appeal and
affirm, modify, or reverse that judgement;........
CODE, RULE, LAW
Spousal support, property disbursement
3105.18 (C)(1)
In determining whether spousal support is appropriate and
reasonable, and in determining the nature, amount, and terms
of payment, and duration of spousal support, which is payable
either in gross or in installments, the court shall consider
all of the following factors:
(a) The income of the parties, from all sources, including
but not limited to, income derived from property divided,
disbursed, or distributed under section 3105.171 of Revised
Code;
(b) The relative earning abilities of the parties;
(c) The ages and physical, mental, and emotional conditions
of the parties;
(d) The retirement benefits of the parties;
(e) The duration of the marriage;
(f) The extent to which it would be inappropriate for a
party, because he will be custodian of a minor child of the
marriage, to seek employment outside the home;
(g) The standard of living of the parties established during
the marriage;
(h) The relative extent of education of the parties;
(i) The relative assets and liabilities of the parties;
(j) The contribution of each party to the education,
training, or earning ability of the other party, including,
but not limited to, any party's contribution to the
acquisition of a professional degree of the other party.
(k) The time and expense necessary for the spouse who is
seeking spousal support to acquire education, training, or
job experience so that the spouse will be qualified to obtain
appropriate employment, provided the education, training, or
job experience, and employment is in fact, sought.
(l) The tax consequences, for each party, of an award of
spousal support;
(m) The lost income production capacity of either party that
resulted from that party's marital responsibilities;
(n) any other factor that the court expressly finds to be
relevant and equitable.
(2) In determining whether spousal support is reasonable and
in determining the amount and terms of payment of spousal
support, each party shall be considered to have contributed
equally to the production of marital income.
(H)
In divorce or legal seperation proceedings, the court may
award reasonable attorney's fees at any stage of the
proceedings, including but not limited to appeal, any
proceeding arising from a motion to modify a prior order or
decree, and any proceeding to enforce a prior order or
decree, if it determines that the other party has the ability
to pay the attorney's fees that the court awards. When the
court determines whether to award reasonable attorney's fees
to any party pursuant to this division, it shall determine
whether either party will be prevented from protecting his
interests if it does not award reasonable attorney's fees.
Investigation for custody, divirce, spousal support
3109.04 (C)
"Prior to trial, the court may cause an investigation to be
made as to the character, family relations, past conduct,
earning ability, and financial worth of each parent and may
order parents and thier minor children to submit to medical,
psychological, and psychiatric examinations................
..............................................
If the court determines.................................
(E)(1)(a)(iii)
(F)(1)
In determining the best interest of a child pursuant to this
section, whether on an original decree allocating parental rights
and responsibilities for the care of the children or a modification
of a decree allocating those rights and responsibilities, the court
shall consider all relevant factors, including, but not limited to:
(h)
....; and whether there is reason to believe that either
parent has acted in a manner resulting in a child being an
abused or neglected child."
2151.03 "Neglected child" defined
As used in sections 2151.01 to 2151.54, inclusive, of the
Revised Code, "neglected child" includes any child:
(B) Who lacks proper parental care because of the faults or
habits of his parents, guardian, or custodian;
(C) Whose parents, guardian, or custodian neglects or refuses
to provide him with proper or necessary subsistance,
education, medical or sugical care, or other care necessary
for his health, morals, or well being;
2151.031 "Abused child" defined
As used in sections 2151.01 to 2151.54 of the Revised Code,
an "abused child" includes any child who:
(B) Is endangered as defined in secdtion 2919.22 of the
Revised Code, except that the court need not find that any
person has been convicted under that section in order to find
that the child is an abused child;
2151.352 Right to counsel O Const Art 1 í10
2151.353 Disposition of abused, neglected, or dependant child
(A) If a child is adjudicated an abused, neglected, or
dependant child, the court may make any of the following
orders of disposition:
(3) Award legal custody of the child to either parent or to
any other person who, prior to the dispositional hearing,
files a motion requesting legal custody of the child;
(B) No order for ................... right to be represented
by counsel and to have counsel appointed pursuant to Chapter
120, of the Revised Code if they are indigent.
(C) If the court issues an order for protective supervision
pursuant to division (A)(1) of this section, the court may
place any reasonable restrictions upon the child, the child's
parents, guardian, or custodian, or any other person,
including but not limited to, any of the following:
(1) Order a party, within forty-eight hours after issuance
of the order, to vacate the child's home indefinately or for
a specified period of time;
(2) Order a party, a parent of the child, or physical
custodian of the child to prevent any particular person from
having contact with the child;
(3) Issue an order restraining or otherwise controlling the
conduct of any person which conduct would not be in the best
interest of the child.
2151.421 persons required to report injury or neglect;
procedures on receipt of report
(A)(1) No attorney, ......, licenced professional counselor,
......, who is acting in his official professional capacity
and knows or suspects that a child under eighteen years of
age or a physically or mentally handicapped child under
twenty-one years of age has suffered or faces a threat of
suffering any physical or mental wound, injury, disability,
or condition of nature that reasonably indicates abuse or
neglect of the child, shall fail to immediately report or
cause reports to be made of that knowledge or suspicion to
the children services board, the county department of human
services exercising the children services function, or a
municipal or county peace officer in the county in which the
child resides or in which the abuse or neglect is occurring
or has occurred.
(C) Any report made pursuant to division (A) or (B) of this
section shall be made forthwith by telephone or in person
forthwith, and shall be followed by a written report, if
requested by the receiving agency or officer. The written
report shall contain:
(1) The names and addresses of the child and his parents or
the person or persons having custody of the child, if known;
(2) The child's age and nature and extent of the child's
known or suspected injuries, abuse, or neglect or of the
known or susupected threat of injury, abuse, or neglect
including any evidence of previous injuries, abuse, or
neglect;
(3) Any other information that might be helpful in
establishing the cause of the known or suspected injury,
abuse, or neglect, or of the known or suspected threat of
injury, abuse, neglect.
(D) Upon the receipt of a report concerning the possible
abuse or neglect of a child or the possible threat of abuse
or neglect of a child, the municipal or county peace officer
who receives the report shall refer the report to the
appropriate county department of human services or children
sevices board.
2919.22 Endangering children
(A) No person, who is the parent, guardian, custodian, person
having custody or control, or person in loco parentis of a
child under eighteen years of age or a mentally or physically
handicapped child under twenty-one years of age, shall create
a substantial risk to the health or safety of the child, by
violating a duty of care, protection, or support.
(B) no person shall do any of the following to a child under
eighteen years of age or a mentally or physically handicapped
child under twenty-one years of age:
(1) Abuse the child;
3109.05 Factors determining amount of support; support orders;
medical needs
(A)(1) In a divorce, dissolution ofd marriage, legal separation, or
child support proceeding, the court may order either or both parents
to support or help support their children, without regard to marital
misconduct. In determining the amount reasonable or neccessary for
child support, including the medical needs of the child, the court
shall comply with sections 3113.21 to 3113.28 of the Revised Code
and shall consider all relevant factors, including, but not limited
to, all of the following:
(b) The relative finacial resources, other assets and resources, and
needs of the residential parent and of the parent who is not the
residential parent, when a decree for shared parenting is not
issued;
(c) The relative standard of living and circumstances of each parent
and the standard of living the child would have enjoyed had the
marriage continued;
(d) The physical and emotional condition and needs of the child;
(f) the needand capacity of the child for an education, and the
educational opportunities that would have been available to him had
the circumstances requiring a court order for his support not
arisen;
(g) The earning ability of each parent;
(h) The age of the child;
(j) the value of sevices contributed by the residential parent.
3109.24
41 App(3d) 206,534 NE(2d) 1229 (Medina 1987), Daerr v. Daerr
RC 3109.24 contemplates that jurisdiction be exercised only after
there has been " some cooperation, exchange of information and
communication" between two states.
3109.25
pamplet pages 16-17
3109.26
(A)
If the petitioner for an initial decree has wrongfully taken
the child from another state or has engaged in similar
conduct, the court may decline to exercise jurisdiction, if
this is just and proper under the circumstances.
(C)
In appropriate cases, a court dismissing a petion under this
section may charge the petitioner with neccessary travael and other
expences, including attorney's fees, incured by other parties or
their witnesses.
3113.215 Calculation of amount of child support obligation
(2)(a) .....The court shall review the obligor's gross income and
living expences to determine the maximum amount of child support
that it reasonably can order without denying the obligor the means
for self-support at a minimum subsistence level...........
(3) The court........
(4)..............................
(5) (a) The parents shall verify current and past income and
personal earnings with suitable documents, including, but not
limited to paystubs, employer statements, .................
.............................
CONSTITUTIONAL GUARANTIES
Ohio Constitution
Art 1
í1
All men are, by nature, free and independant, and have
certain inalienable rights, amoung which are those of
enjoying and defending life and liberty, acquiring,
possessing, and protecting property, and seeking and
obtaining happiness and safety.
í9
......... Excessive bail shall not be required; nor
excessive fines imposed; nor cruel and unusual punishments
inflicted.
í10
.......... In any trial, in any court the party accused shall
be allowed to appear and defend in person and with counsel;
........; and to have compulsory process to procure witnesses
in his behalf, and a speedy public trial by an impartial jury
of the county in which the offence is alleged to have
committed;..............., always securing to the accused
means and the opportunity to be present in person and with
counsel...........
í15
í16
All courts shall be open, and every person, for an injury
done him in his land, goods, person, or reputation, shall
have remedy by due course of law, and shall have justice
administered without denial or delay
í20
This enumeration of rights shall not be construed to impair
or deny others retained by the people; and all powers, not
herin delegated, remain with the people.
Art IV
(B)(1) The courts of appeals shall have original jurisdiction in the
following:
(f) In any cause on review as may be necessary to its complete
determination.
(2) Courts of appeals shall have such jurisdiction as may be
provided by law to review and affirm, modify, or reverse judgements
or final orders of the courts of record inferior to the court of
appeals within the district and shall have such appellate
jurisdiction as may be provided by law to review and affirm, modify,
or reverse final orders or actions of administrative officers or
agencies.
í4
(A) ................... In the interest of the fair,
impartial, speedy, and sure administration of justice,......
Art XV
í7
Every person chosen or appointed to any office under this
state, before entering upon the discharge of its duties,
shall take an oath or affermation, to support the
Constitution of the United States, and of this state, and
also an oath of office.
United States
We the People of the United States, in order to form a more
perfect union, establish justice, insure domestic
tranquility, provide for the common defence, promote the
general welfare, and secure the blessings of liberty to
ourselves and our posterity, do ordain and establish this
Constitution for the United States of America.
ART III
Sec. 1
The judicial power of the United States, shall be vested in
one Supreme Court, and in such inferior courts as the
Congress may from time to time ordain and establish. The
judges, both of the Supreme and inferior courts, shall hold
thier offices during good behavior,............
Sec. 2
(1) The judicial power shall extend to all cases, in law and
equity, arising under this Constitution, the laws of the
United States...............................: -to
controversies to which the United states shall be a party;-
to controversies between two or more States;- between a State
and citizens of another State;- between citizens of different
States;.......................
Art. IV
Sec. 1
Full faith and credit shall be given in each State to the
public acts, records, and judicial proceedings of every other
State. ............
Sec. 2
(1) The citizens of each State shall be entitled to all
privilages and immunities of citizens in the several States.
Art. VI
Sec. 2
This Constitution, and the laws of the United States which
shall be made in pursuance thereof; and all treaties made, or
which shall be made, under authority of the United States,
shall be the supreme law of the land; and the judges in every
State shall be bound thereby, anything in the constitution or
laws of any State to the contrary notwithstanding.
Articles and Amendments
Art. 1
Congress shall make no law respecting an establishment of
religion, or prohibiting the free exercise thereof; or
abridging the freedom of speech, or of the press; or of the
right of the people peaceably to assemble, and to petition
the government for redress of grievances.
Art. V
No person........................nor shall be compelled in
any criminal case to be a witness against himself, nor be
deprived of life, liberty, or property, without due process
of law; ........
Art. VI
..........................; to have compulsory process for
obtaining witnesses in his favor, and to have the assitance
of counsel for his defence.
Art. VIII
Excessive bail shall not be required, nor excessive fines
imposed, nor cruel and unusual punishments inflicted.
Art. IX
The enumeration in the Constitution, of certain rights,
shall not be construed to deny or disparage others retained
by the people.
Art. XIV
Sec. 1
All persons born or naturalized in the United States, and
subject to the jurisdiction thereof, are citizens of the
United States and of the State wherein they reside. No State
shall make or enforce any law which shall abridge the
privileges or immunities of citizens of the United States;
nor shall any State deprive any person of life, liberty, or
property, without due process of law; nor deny any person
within its jurisdiction the equal protection of the laws.
Art. XXVII
(proposed to the States for ratification, March 22, 1972,
legislative intent)
Sec. 1
Equality of rights under law shall not be denied or abridged
by the United States or by any State on account of sex.
CRIMINAL
2921.11 Perjury
(A) No person, in any official proceeding, shall knowingly
make a false statement under oath or affermation, or
knowingly swear or affirm the truth of a false statement
previously made, when either is material.
(B) A falsification is material, regardless of its
admissibility in evidence, if it can affect the course or
outcome of the proceeding. It is no defence to a charge under
this section that the offender mistakenly believed a
falsification to be immaterial.
(C) It is no defence to a charge under this section that the
oath or affermation was administered or taken in an irregular
manner.
(F) Whoever violates this section is guilty of perjury, a
felony of the third degree.
2921.12 Tampering with evidence
(A) No person, knowing that an official proceeding or
investigation is in progress, or is about to be or likely to
be instituted, shall do any of the following:
(1) Alter, destroy, conceal, remove any record, document, or
thing, with purpose to impair its value or availability as
evidence in such proceeding or investigation;
(2) Make, present, or use any record, document, or thing,
knowing it to be false and with purpose to mislead a public
official who is or may be engaged in such proceeding or
investigation, or with purpose to corrupt the outcome of any
such proceeding or investigation.
(B) Whoever violates this section is guilty of tampering with
evidence, a felony of the third degree.
2921.13 Falsification
(A) No person shall knowingly make a false statement, or
knowingly swear or affirm the truth of a false statement
previously made, when any of the following applies:
(1) The statement is made in any official proceeding.
(2) The statement is made to incriminate another.
(3) The statement is made with the purpose to mislead a
public official in performing his official function.
(11) The statement is knowingly made to a probate court in
connection with any action, proceeding, or other matter
within its jurisdiction, either orally or in a written
document, including, but not limited to, an application,
petition, complaint, or other pleading, or an inventory,
account or report.
(D)(1) Whoever violates division (A)(1),(2),(3),(4),(5),(6),
(7),(8),(11), or (12) of this section is guilty of
falsification, a misdemeanor of the first degree.
Commonwealth Land Title Ins. Co. v. Davis(1989),63 O App 3d
521
Court properly found defendants guilty of contempt and
imposed a sentence where they concealed business records
which were ordered to be turned over to a receiver.
Civ R 60 Relief from judgement or order
(B) Mistakes; inadvertance; excusable neglect; newly
discovered evidence; fraud; etc.
On motion and upon such terms are just, the court may relieve a
party or his representative from final judgement, order or
proceeding for the following reasons:(1) mistake, inadvertance,
suprise or excusable neglect;(2) newly discovered evidence which by
due diligence could not have been discovered in time to move for a
new trial under Rule 59(B); (3)fraud (whether heretofore denominated
intrinsic or extrinsic), misrepresentation or other misconduct of
an adverse party; (4) the judgement has been satisfied, released or
discharged, or a prior judgement upon which it is based has been
reversed or otherwise vacated, or is no longer equitable that the
judgement should have prospective application; or (5) any other
reason justifying relief from the judgement. The motion shall be
made within a reasonable time, and for reasons (1),(2),(3) not more
than one year after the judgement, order or proceeding was entered
or taken. A motion under this subdivision (B) does not affect the
finality of a judgement or suspend its operation.
The procedure for obtaining any relief from a judgement
shall be by motion as prescribed in these rules.
Civ R 75(G)
The trial court may, when a motion to modify a custody, support or
alimony order is filed prior to the filing of the notice of appeal
modify the order for the period of the pendency of the appeal upon
such terms as to bond or otherwise as it considers proper for the
security of the rights of the adverse party and in the best interest
of the children involved. Rule 62(B) does not apply to custody,
alimony or support orders. When appeal is taken by any party, the
court of appeals may grant like orders concerning custody, support
or alimony during pendency of the appeal.
í519 Unnecessary or immaterial matters
55 O App 3d 153, motion overr 41 OS3d 717,535 NE2d 313,
Frank v. Valcan Materials Co.(1988,Erie Co.)
Appellate courts are restrained from making premature declarations
upon merely potential controversies.
í522 Moot questions
30 OS3d 28,30 OBR 33,505 NE2d 966, Franchise Developers,Inc.
v. Cincinnati(1987)
Although a case may be moot with respect to one of the litigants,
this court may here the appeal where there remains a debatable
constitutional question to resolve, or where the matter appealed is
one of great public or general interest.
28 USCS í1738A
In Patricia R. v Andrew W.(1983) 121 Misc 2d 103,467 NY S 2d
322 the court finds:
"No condition of wrong doing is necessary to invoke
provisions of Parental Kidnapping Prevention Act. (28 USCS í
1738A)"
In Arbogast v Arbogast(1984,W.Va.)327 SE2d 675 the court
finds that:
"Before custody decree is entitled to recognition and
enforcement under 28 USCS í 1738A, it must be demonstrated
that decreeing court had jurisdiction of parties as well as
of subject matter."
TEXT
(a) The appropriate authorities of every State shall enforce
according to its terms, and shall not modify except as
provided in subsection (f) of this section, any child custody
determination made consistently with the provisions of this
section by a court of another State.
(b) (3) ............. Periods of temporary absence of any of
such persons are counted as part of the six-month or other
period;
(7) "physical custody" means actual possession and control of
a child
(c) A child custody determination made by a court of a State
is consistent with the provisions of this section only if-
(2)(B)(i) it appears that no other State would have
jurisdiction under subparagraph (A), and (ii) it is the best
interest of the child that a court of such State assume
jurisdiction because (I) the child and his parents, or the
child and at least one contestant, have a significant
connection with such State other than mere physical presence
in such State, and there is available in such State
substantial evidence concerning the child's present and
future care, protection, training, and personal
relationships;
Congressional findings and declaration of purposes (appears as 42
USCS í 1395\[1\], note provides:
"(a) The congress finds that-
(1) there is a growing number of cases annually involving
disputes between persons claiming rights of custody
and visitation of children under the laws, and in the courts
of different States,.........;
(2) the laws and practices by which the courts of those
jurisdictions determine thier jurisdiction to decide such
disputes, and the effect to be given the decisions of such
disputes by the courts of other juridictions, are often
inconsistent and conflicting;
(3) those characteristics of the law and practice in such
cases, along with the limits imposed by a Federal system on
the authority of each such jurisdiction to conduct
investigations and take other actions outside its own
boundaries, contribute to a tendency of parties involved in
such disputes to frequently resort to the seizure, restraint,
concealment, and interstate transportation of children, the
disregard of court orders, excessive relitigation of cases,
obtaining of conflicting orders by the courts of various
jurisdictions, and interstate travel and communication that
is so expensive and time consuming as to disrupt thier
occupations and commercial activities; and
(4) amoung the results of those conditions and activities are
the failure of the courts of such jurisdiction to give full
faith and credit to judicial proceedings of the other
jurisdictions, the deprivation or rights of liberty and
property without due process of law, burdens on commerce
amoung such jurisdictions and with foreign nations, and harm
to the welfare of children and thier parents and other
custodians.
(b) For these reasons it is necessary to establish a national
system for locating parents and children who travel from one
jurisdiction to another and are concealed in connection with
such disputes, and to establish national standards under
which the courts of such jurisdiction will determine thier
jurisdiction to decide such diputes and the effect to be
given by each such jurisdiction to such decisions by the
courts of other jurisdictions.
(c) The general purpose of sections 6 to 10 of this act
(which, amoung other things, enact this note; for full
classification, consult USCS Tables volumes) are to-
(1) promote cooperation between State courts to the end that
a determination of custody and visitation is rendered in the
State which can best decide the case in the interest of the
child;
(2) promote and expand the exchange of information and other
forms of mutual assistance between States which are concerned
with the same child;
(6) deter interstate abductions and other unilateral removals
of children undertaken to obtain custody and visitation
awards."
\[P.L. 96-611, í 8(c),94 Stat. 3571
\]"in futherance of the purposes of section 1738A of title 28,
United States Code, as added by subsection (a) of this
section [this section], State courts are encouraged to-
(1) afford priority to proceedings for custody
determinations; and
(2) award to the person entitled to custody or visitation
pursuant to a custody determination which is consistent with
the provisions of such section 1738A [this section],
necessary travel expenses, attorneys' fees, costs of private
investigations, witness fees or expenses, and other expenses
incurred in connection with such custody determination in any
case in which-
(A) a contestant has, without the consent of the person
entitled to custody or visitation pursuant to custody
determination which is consistent with the provisions of such
section 1738A [this section],(i) wrongfully removed the child
from the physical custody of such person, or (ii) wrongfully
retained the child after a visit or other temporary relinquishment
of physical custody; or
(B) the court determines it is appropriate.
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