State ex rel. Ostrowski v. Park

[Cite as State ex rel. Ostrowski v. Park, 2012-Ohio-4813.]

COURT OF APPEALS STARK COUNTY, OHIO FIFTH APPELLATE DISTRICT

: JUDGES: STATE EX REL. CHAD A. : Patricia A. Delaney, P.J. OSTROWSKI : William B. Hoffman, J. : Julie A. Edwards, J. Relator : : Case No. 2012 CA 00121 -vs- : : : OPINION HONORABLE DIXIE N. PARK

Respondent CHARACTER OF PROCEEDING: Writ of Procedendo Complaint JUDGMENT: Writ Issued DATE OF JUDGMENT ENTRY: October 15, 2012 APPEARANCES: For Relator For Respondent

CRAIG T. CONLEY JOHN D. FERRERO 604 Huntington Plaza Prosecuting Attorney 220 Market Avenue South Stark County, Ohio Canton, Ohio 44702 BY: ROSS RHODES Assistant Prosecuting attorney Chief of the Civil Division 110 Central Plaza South, Suite 510 Canton, Ohio 44702

[Cite as State ex rel. Ostrowski v. Park, 2012-Ohio-4813.] Edwards, J.

{¶1} Relator, Chad Ostrowski, has filed a Complaint in Procedendo requesting this Court order the trial court to lift a stay in the underlying adoption petition. Respondent has filed a Motion to Dismiss.

{¶2} Relator filed a Petition for Adoption in the trial court which the trial court stayed pending the resolution of a motion for visitation in the Stark County Court of Common Pleas, Juvenile Division. Respondent argues a stay of the adoption proceedings is warranted based upon the Supreme Court’s holding in In re Adoption of Pushcar, 110 Ohio St.3d 332, 2006-Ohio-4572. Relator in turn argues the Respondent’s reliance on Pushcar is misplaced. For the following reasons, we agree with Relator and grant the requested Writ of Procedendo.

{¶3} “A ‘writ of procedendo is appropriate when a court has either refused to render a judgment or has unnecessarily delayed proceeding to judgment.’” State ex rel. CNG Fin. Corp. v. Nadel, 111 Ohio St.3d 149, 2006-Ohio-5344, 855 N.E.2d 473, ¶ 20, quoting Weiss, 84 Ohio St.3d at 532, 705 N.E.2d 1227.

{¶4} “[T]he requirements for a writ of procedendo are met if a judge erroneously stays a proceeding.” State ex rel. Charvat v. Frye, 114 Ohio St.3d 76, 2007-Ohio-2882, 868 N.E.2d 270, ¶ 15. Consequently, “a writ of procedendo will issue to require a court to proceed to final judgment if the court has erroneously stayed the proceeding.” State ex rel. Watkins v. Eighth Dist. Court of Appeals (1998), 82 Ohio St.3d 532, 535, 696 N.E.2d 1079.” State ex rel. Sawicki v. Lucas Cty. Court of Common Pleas, 126 Ohio St.3d 198, 200, 931 N.E.2d 1082, 1086 (2010). Stark County App. Case No. 2012 CA 00121 3

{¶5} The Supreme Court in Pushcar held, “[W]hen an issue concerning the parenting of a minor child is pending in the juvenile court, a probate court must refrain from proceeding with the adoption of that child.” Pushcar at 334. In the instant case, the proceeding pending in the Juvenile Court is a Complaint for Visitation. According to the Complaint for Visitation, paternity has already been established. The subject of the case in Pushcar was the establishment of paternity and not merely visitation. The establishment of paternity is a necessary element of an adoption case which is why a stay was necessary in Pushcar. Here, the same adoption prerequisite does not exist.

{¶6} Subsequent to its holding in Pushcar, the Supreme Court noted that the term “parenting” as used in Pushcar was synonymous with “parentage.” In re G.T.B. 128 Ohio St.3d 502 (2011), at FN2. Parentage clearly refers to the establishment of paternity.

{¶7} We find, Pushcar stands for the proposition that a stay must be imposed only where parentage is at issue. Because parentage has been established in this case the trial court erred in imposing a stay. Stark County App. Case No. 2012 CA 00121 4

{¶8} We grant the writ of procedendo and order the trial court to proceed with the adoption case forthwith. By: Edwards, J. Delaney, P.J. and Hoffman, J. concur

______________________________

______________________________

______________________________

JUDGES

JAE/ads0905 [Cite as State ex rel. Ostrowski v. Park, 2012-Ohio-4813.]

IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO

FIFTH APPELLATE DISTRICT

STATE EX REL. CHAD A. OSTROWSKI : : Relator : : : -vs- : JUDGMENT ENTRY : HONORABLE DIXIE N. PARK : : Respondent : CASE NO. 2012 CA 00121

For the reasons stated in our accompanying Memorandum-Opinion on file, a Writ of Procedendo is issued. The stay imposed by the trial court is lifted. Costs are waived.

_________________________________

_________________________________

_________________________________

JUDGES