|BRIEF IN OPPOSITION TO MOTIONS TO
VACATE PRIOR TEMPORARY ORDERS AND TRANSFER JURISDICTION TO CHURCH TRIBUNAL
AND COMPEL ARBITRATION
Guardian Ad Litem, John J. Ready, hereby opposes Defendantís Motions to Vacate Prior Temporary Orders and Transfer Jurisdiction to Church Tribunal and Compel Arbitration for the reasons set forth in the Brief attached hereto and incorporated herein.
The gravaman of Defendantís argument is that this Court should uphold a purported oral antenuptial agreement entered into by both parties in contemplation of marriage and, due to the purported oral agreement, cede jurisdiction of the partiesí pending divorce and custody matter to an unidentified Church tribunal for ultimate resolution.
While this argument may be novel, it is fraught with inconsistencies, gross misstatements of current case law, and is contrary to leading case authority in Ohio as decided by the Ohio Supreme Court. Most notably, Defendantís motion is in direct contravention of the mandate of Kelm v. Kelm (2001), 92 Ohio St.3s 223. In Kelm. The Ohio Supreme Court held that while issues pertaining to child and spousal support could be the subject of arbitral proceedings if both parties assented, child custody and visitation issues could not be submitted to arbitration, regardless of the partiesí agreement.
Ready, the court ordered attorney for the children has charged the
parents over $11,000 as of January 2005.
He submitted this proposal to the judge in September 2004. Though the judge has stated in one sentence that she denies the defendants motion to transfer jurisdiction to the ecclesiastic authorities, the judge has still not provided a reason based on finding of fact and conclusion of law. She could designate this argument, from children's attorney's, her answer, but she's done nothing. The defendant asked her to provide findings of facts and conclusion of law to support her denial of the motion in August 2003. and the judge has not done so as of January 3, 2005.
Mr. Ready accuses the defendant of making gross misstatements of current case law, but he makes no reference to case law regarding pre-nuptial agreements including arbitration for care of children.
|The driving force behind this prohibition
is to preserve the domestic courtís role as parens patriae. Once
the courtís jurisdiction is invoked, it has a duty to the minor children,
who have no legal voice of their own, to provide a resolution that is in
their best interests. Surely one cannot ask this Court to cede jurisdiction
regarding the most critical issue to be decided, the best interests of
the minor children, to any other organization or individual once its jurisdiction
(and its duty to the minor children) was invoked by Marie Christine MacFarlane
when she filed her original Complaint with the court.
Defendant seeks to analogize an arbitration panel with a local church ordinary or tribunal and would have the partiesí divorce proceedings transferred to such a panel. If her argument is accepted, and the church tribunal is interpreted to be a kind of arbitration board or panel, then clearly the mandate of Kelm applies and the church tribunal may not decide issues regarding the allocation of parental rights and responsibilities.
The fact of the matter is that both parties sought the jurisdiction of this court to resolve their marital difficulties and allocate parental rights and responsibilities. Plaintiff and Defendant filed complaints with the Clerk of Courts; the fact that Defendantís complaint (which was filed first in time, being Case No. 294322) was consolidated with Plaintiffís complaint (filed second), and then subsequently voluntarily dismissed does not change the fact that Defendant herself invoked this Courtís jurisdiction.
In her motion, Defendant cites specific canons of the Catholic Church, apparently in support of her position that the Church tribunal has the authority to issue a decree of separation. (Defendantís brief pg. 2). While this may be true, the teachings of the canon law of the Church have no influence or authority over the civil domestic relations courts. Whether Defendant should have, or could have, approached the church cannot be this Courtís concern. The parties each filed actions with the domestic relations court, thus invoking its jurisdiction, not the Churchís.
Furthermore, Defendantís proposition that the verbal antenuptial agreement is valid is made in error. Defendant mistakenly relies on In Re Weber (1960), 170 Ohio St. 567, for the proposition that a verbal antenuptial agreement was upheld when there was a written ďmemorandum or notesĒ pursuant to Ohioís Statute of Frauds (ORC #13335.05). While Weber did involve a verbal antenuptial agreement, the written ďmemorandum or notesĒ was a subsequent memorialization of the agreement, with the particular and express terms of the oral agreement incorporated. Both parties signed the document in Weber. The facts clearly set Weber apart from the instant case and render Weber inapplicable. In the instant case, there was no subsequent memorialization of the prior purported oral agreement or even an acknowledgement of any such agreement by Plaintiff to the extent of the document found sufficient in Weber.
Defendantís demand of submitting the partiesí marital issues to an arbitrator (or Church tribunal) appears to have caused her to overlook the rationale behind the holdings in the cases she uses in support of her position. We do not operate in a vacuum; courtsí holdings are dependent on the surrounding facts and circumstances of the case and cannot be taken out of context for the sake of finding support for a particular strained position.
Defendant repeatedly asserts that her position is supported by Ohio case law and Ohio laws relating to arbitration. Defendant even states that ď[t]he Kelm case strongly supported the use of arbitration provisions in antenuptial agreements.Ē (Defendantís brief pg. 5). What Defendant utterly fails to mention throughout her entire motion is that Kelmís holding is narrowly tailored to only allow binding arbitration to be used in child support and spousal support disputes, not child custody and visitation.
Ohio case law does not support Defendantís position that the Court must honor all agreements by the parties to arbitrate all of their disputes if they in fact exist in the first instance. The most that a religious tribunal may accomplish is terminating a marriage in the religious realm. The termination does not allocate parental rights and responsibilities, divide property and debt in an equitable manner, or award child and/or spousal support. These latter actions are functions of the state, and fall within the jurisdiction of this Court. Furthermore, religious institutions have no coercive ability to enforce compliance with their mandates. The domestic relations courts have, inter alia, contempt powers, among their coercive powers.
For these reasons, this Court should deny Defendantís motions to vacate all prior temporary orders and to transfer jurisdiction to the church tribunal and compel arbitration. Whether Plaintiff wishes to arbitrate division of property, debt and/or support issues is between Plaintiff and Defendant. There is no authority for this Court to order arbitration of issues relating to the allocation of parental rights and responsibilities.
Ready states that the court is the parens patriea. This means the
governent (patriae) takes over parenting. Weeks befor our
wedding, when we advised the state of Ohio that we were soon to be married,
so they could include us in their county registry, we never signed over
our parenting rights to the government.
On the contrary, when we prepared to be married, we agreed to be married as the Catholic Church understands marraige. Before we married, we knew we, by being married in the Catholic Church knew we agreed in advance that we would "accept children lovingly from God, and bring them up according to the law of Christ and his Church?" This is from the Catholic Marraige Rite, Part 24 Questions
As Catholics the law of Christ and his Chruch include the Code of Canon law.