Opinion
No. 82-1781
Decided February 15, 1984.
Prohibition — Writ denied, when — Discretionary appeal provides adequate remedy at law.
APPEAL from the Court of Appeals for Wood County.
On December 1, 1980, appellant, John W. Hardesty, filed a complaint for divorce against Christine M. Hardesty, in the Court of Common Pleas of Franklin County, Division of Domestic Relations. Prior to the institution of appellant's divorce action, his wife had initiated an action in the Probate Court of Wood County, Juvenile Court Division, to obtain custody of the parties' minor children, as well as child support payments. On May 5, 1981, the juvenile court entered its judgment awarding custody of the children and child support payments to appellant's wife.
On October 5, 1981, appellant obtained a divorce in Franklin County. The trial court declined to address any issues relating to the custody or support of the parties' minor children.
In May 1982, the Wood County Juvenile Court relinquished its jurisdiction over the custody and child support matter, transferring the cause to the Court of Common Pleas of Wood County, Division of Domestic Relations. Thereafter, the county prosecutor instituted proceedings to enforce the payment of past-due child support previously ordered by the juvenile court. At that time, appellant objected to the jurisdiction of the Wood County domestic relations court, contending that when the juvenile court relinquished its jurisdiction the matter could only be transferred to the Franklin County domestic relations court, where the parties had been previously divorced.
On October 5, 1982, appellee, Judge Gale Williamson of the Wood County domestic relations court, overruled appellant's jurisdictional objections and issued an order approving the report and recommendation of the court's referee that appellant be held in contempt of court and incarcerated for ten days unless back child support was immediately paid.
Appellant then perfected an appeal to the Court of Appeals for Wood County, Hardesty v. Hardesty (April 1, 1983), No. WD-82-67, unreported, contesting appellee's jurisdiction to review the nonpayment of child support. In addition, appellant filed the instant action in prohibition in the same court of appeals, No. WD-82-66, wherein a writ was sought to prohibit appellee from proceeding further with the cause. On December 21, 1982, the court of appeals denied the writ.
The cause is now before this court on an appeal as of right.
Mr. Douglas B. Dougherty, for appellant.
Ms. Betty D. Montgomery, prosecuting attorney, and Mr. James H. Granecki, for appellee.
This court has consistently held that entitlement to a writ of prohibition is dependent upon the demonstration of the following three requirements: "(1) the court or officer against whom it is sought is about to exercise judicial or quasi-judicial power; (2) the exercise of such power is unauthorized by law; and (3) it will result in injury for which no other adequate remedy exists." Ohio Bell v. Ferguson (1980), 61 Ohio St.2d 74, 76 [15 O.O.3d 117]. See, also, State, ex rel. Wall, v. Grossman (1980), 61 Ohio St.2d 4 [15 O.O.3d 2]; State, ex rel. Geauga County Budget Comm., v. Court (1982), 1 Ohio St.3d 110, 111; State, ex rel. Berger, v. McMonagle (1983), 6 Ohio St.3d 28, 29.
The record reveals that concurrent with or soon after the prohibition action was filed in the court of appeals, appellant filed a discretionary appeal from the October 5, 1982 order, in which Judge Williamson declined to relinquish jurisdiction over the custody and child support issues. That appeal set forth precisely the same contentions contained in the present original action. On April 1, 1983, the court of appeals released its decision in that discretionary appeal, concluding that the juvenile court erred in transferring the case to the Wood County domestic relations court. The court of appeals therefore ordered the cause remanded to the juvenile court for further proceedings.
We find that the availability of a plain and adequate remedy by way of appeal, of which appellant has availed himself, is fatal to appellant's request for a writ of prohibition.
It is well-settled that a "* * * discretionary right of appeal * * * [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, supra, at 30. Moreover, where such a discretionary appeal exists, this court has consistently held that prohibition cannot be used as a substitute therefor. State, ex rel. Rose Hill Burial Park, v. Moser (1982), 1 Ohio St.3d 13, 14; State, ex rel. Crebs, v. Court of Common Pleas (1974), 38 Ohio St.2d 51, 52 [67 O.O.2d 61]; State, ex rel. Toerner, v. Common Pleas Court (1971), 28 Ohio St.2d 213 [57 O.O.2d 439]; State, ex rel. Rhodes, v. Solether (1955), 162 Ohio St. 559 [55 O.O. 440].
Appellant not only possessed an adequate remedy at law by way of appeal, but he pursued that remedy and received a decision from the court of appeals on the precise issue which he now seeks to place before this court through an action in prohibition. Without question, appellant is seeking to employ the writ as a substitute for, or in conjunction with, a discretionary appeal contrary to this court's prior pronouncements.
In addition, we conclude that in view of the April 1, 1983 decision of the court of appeals, the subject action has been rendered moot. In State, ex rel. Stefanick, v. Municipal Court (1970), 21 Ohio St.2d 102, 104 [50 O.O.2d 265], this court stated that "[p]rohibition is a preventive writ rather than a corrective remedy and is designed to prevent a tribunal from proceeding in a matter which it is not authorized to hear and determine." However, where factual circumstances arise subsequent to the filing of a complaint requesting a writ of prohibition, which render the basis of the complaint moot, the writ will not issue. State, ex rel. Phillips, v. Andrews (1977), 50 Ohio St.2d 341, 342 [4 O.O.3d 480]; State, ex rel. Stokes, v. Probate Court (1970), 22 Ohio St.2d 120, 124 [51 O.O.2d 180]; State, ex rel. Relyea, v. Schoonmaker (1946), 147 Ohio St. 215, 216 [34 O.O. 104].
Such is the case in the present appeal, for when the court of appeals ordered the custody and child support action remanded to the juvenile court, the need to prevent appellee from further proceeding in the matter was obviated since appellee no longer possessed jurisdiction over the cause.
For the foregoing reasons, the judgment of the court of appeals denying the writ is affirmed.
Judgment affirmed.
CELEBREZZE, C.J., W. BROWN, SWEENEY, LOCHER, HOLMES, C. BROWN and J.P. CELEBREZZE, JJ., concur.