Mandamus Is Not a Shortcut Around Nonfinal Custody Orders: State ex rel. Conomy v. Fuller

Introduction

In State ex rel. Conomy v. Fuller, 2025-Ohio-4411, the Supreme Court of Ohio reaffirmed core limits on the extraordinary writ of mandamus in the domestic relations context. The appellant, Christopher P. Conomy, a pro se litigant and father embroiled in a divorce and custody dispute before Judge Randall D. Fuller of the Delaware County Domestic Relations Court, sought a writ compelling the judge to grant him custody of his two minor children. After the Fifth District Court of Appeals dismissed his mandamus petition under Civ.R. 12(B)(6), Conomy appealed to the Supreme Court.

The case presented interrelated questions:

• Can mandamus compel a trial judge to grant a parent custody over a nonparent during ongoing divorce proceedings?
• Does the dismissal of an interlocutory appeal (for lack of a final, appealable order) show the absence of an “adequate remedy” and thereby open the door to mandamus?
• Are damages under R.C. 2731.11 available when the requested writ is denied?
• What is the Supreme Court’s approach to motions seeking to supplement the appellate record or to invoke Civ.R. 60(B)(5) in the Supreme Court?

The Supreme Court’s per curiam opinion—joined unanimously by all seven participating justices—affirms the Fifth District’s dismissal and clarifies several procedural and substantive points that will guide litigants, especially in family-law disputes where temporary orders and urgent motions often precede final judgments.

Summary of the Opinion

• Mandamus cannot be used to control judicial discretion, including a trial judge’s discretionary rulings on custody motions. A writ may compel a court to act, but not to act in a particular way or reach a particular outcome.
• The availability of a direct appeal from the final custody determination constitutes an adequate remedy at law. The fact that an earlier appeal from a nonfinal, interlocutory order was dismissed does not eliminate the adequate-remedy bar to mandamus.
• Conomy’s reliance on In re Hockstok was misplaced; Hockstok does not confer an absolute right to a custody award in favor of a natural parent in all circumstances. It requires a parental-unsuitability determination before awarding custody to a nonparent, but that determination is for the trial court in the first instance.
• Because Conomy did not prevail on his mandamus claim, he cannot recover damages under R.C. 2731.11. (The Court resolved the damages issue on the merits and did not need to reach the Fifth District’s jurisdictional rationale.)
• Appellate record integrity was reinforced: the Court denied Conomy’s motion to amend the appendix to include a post-briefing magistrate’s order not considered below.
• Civ.R. 60(B)(5) is not a vehicle to appoint a special master in the Supreme Court or to revisit a court of appeals’ handling of a case; the rule applies to relief from a final judgment, which was not at issue in the posture presented.
• A motion to strike affidavits filed in response to the special-master request was denied as immaterial to the Court’s disposition.

Analysis

Precedents Cited and Their Influence

The Court’s analysis rests on settled mandamus doctrine and appellate procedure:

• State ex rel. Mitchell v. Pittman, 2022-Ohio-2542 — Establishes the standard of review: de novo review of a Civ.R. 12(B)(6) dismissal of a mandamus action, presuming factual allegations to be true and determining whether the relator can prove any set of facts warranting relief. This frames the Supreme Court’s gatekeeping function: even taking Conomy’s allegations as true, the legal relief he sought was unavailable as a matter of law.
• State ex rel. Walker v. Ballinger, 2024-Ohio-181 — Restates the three elements for mandamus: (1) clear legal right to relief, (2) clear legal duty to act, and (3) lack of an adequate remedy in the ordinary course of law. These elements anchor the Court’s conclusion that Conomy could not meet either the “clear duty/right” or the “no adequate remedy” prongs.
• State ex rel. Rashada v. Pianka, 2006-Ohio-6366 — Clarifies that mandamus cannot control judicial discretion, even if that discretion is allegedly abused. This is the linchpin against using mandamus to compel a custody grant; the trial court has discretion in interim custody decisions and motions practice. R.C. 2731.03 allows mandamus to compel a court to act, not to dictate how it rules.
• State ex rel. Luoma v. Russo, 2014-Ohio-4532 — Confirms that the availability of an appeal is an adequate remedy at law precluding mandamus relief. The Court applies this to hold that a later direct appeal from the final custody determination forecloses the extraordinary writ, even if interim orders are nonfinal.
• State ex rel. Gallagher v. Collier-Williams, 2023-Ohio-748 — Emphasizes that mandamus is not a substitute for an appeal or a means to create appellate jurisdiction over nonfinal orders. This directly addresses Conomy’s argument that the dismissal of his interlocutory appeal justifies mandamus; it does not.
• State ex rel. Thompson v. Spon, 1998-Ohio-298 — Holds that temporary custody orders in domestic relations are interlocutory and subject to modification until the final divorce decree. Consequently, mandamus cannot be used to challenge such orders; the appropriate route is appeal from the final decree.
• In re Hockstok, 2002-Ohio-7208 — Requires a parental-unsuitability determination before awarding custody to a nonparent. The Court clarifies that Hockstok does not create an absolute rule mandating custody for a parent in all circumstances; rather, it prescribes a threshold finding that the trial court must make based on the record.
• State ex rel. S.Y.C. v. Floyd, 2024-Ohio-1387 — Reinforces that the Supreme Court will not consider materials not part of the record considered by the court of appeals; thus, the Court denied Conomy’s motion to amend his appendix to include a later magistrate’s order.
• State ex rel. Shie v. Ohio Adult Parole Auth., 2022-Ohio-270 — Interprets R.C. 2731.11’s damages provision to allow recovery only where the relator actually prevails on the writ. Because Conomy’s writ failed, damages are foreclosed.

Legal Reasoning

The Court’s reasoning proceeds in three main steps: (1) the legal unavailability of the relief requested via mandamus, (2) the existence of an adequate remedy at law, and (3) the derivative unavailability of damages, along with rulings on three ancillary motions.

1) Mandamus cannot control judicial discretion in custody rulings

Mandamus lies only to compel the performance of a clear legal duty; it does not authorize an appellate court to second-guess a trial judge’s discretionary determinations or to dictate a result. Here, Conomy did not allege that Judge Fuller refused to rule on his emergency-custody motion—indeed, the judge ruled and gave reasons (no supporting affidavit, no new grounds to alter previously agreed temporary custody, and no immediate health or safety concern).

Because Conomy sought an order compelling the court to grant him custody, the writ would have intruded directly into the trial judge’s discretionary call, which is foreclosed by R.C. 2731.03 and the Rashada principle. Even assuming error, mandamus is not the vehicle to correct it when discretion is involved.

2) Adequate remedy at law: appeal from the final custody determination

R.C. 2731.05 prohibits mandamus where there is a plain and adequate remedy in the ordinary course of law. The Court held that the ability to appeal the final custody determination—which will follow the resolution of the domestic relations case—is an adequate remedy.

Importantly, the prior dismissal of Conomy’s interlocutory appeal does not prove the absence of an adequate remedy; it simply reflects Ohio’s final-order doctrine. Interlocutory orders (like temporary custody arrangements and interim denials of emergency motions) are generally not final or appealable and remain subject to modification before the final decree. The correct path is to raise alleged errors on appeal from the final judgment allocating parental rights and responsibilities, not to use mandamus as a surrogate appeal or to manufacture appellate jurisdiction over nonfinal orders.

3) No absolute right to immediate custody under Hockstok

Conomy invoked In re Hockstok to argue that, as a natural parent, he possessed a “fundamental right” to custody superior to that of a nonparent (here, the maternal grandmother, who held agreed temporary custody). The Court clarified that Hockstok does not demand that a judge must always award custody to a parent; it mandates that a trial court must make a parental-unsuitability finding before awarding custody to a nonparent. That is a trial-level determination to be made on an evidentiary record and, if needed, reviewed on appeal from a final custody judgment—not imposed via mandamus.

4) Damages under R.C. 2731.11 require success on the writ

The damages provision in R.C. 2731.11 applies only “if judgment in a proceeding for a writ of mandamus is rendered for the plaintiff.” Because the Court affirmed dismissal of the writ, damages were categorically unavailable. Notably, the Supreme Court resolved the damages issue on this merits basis and did not need to reach the Fifth District’s separate holding that it lacked jurisdiction to award such damages.

5) Ancillary motions: record integrity, special-master request, and affidavits

• Motion to amend appendix — Denied. The Court reiterated that it cannot consider materials (such as a later magistrate’s order) that were not before the court of appeals when it rendered its decision. S.Ct.Prac.R. 3.13(B)(3) does not permit enlarging the record on appeal with post hoc materials.
• Motion for referral to a special master under Civ.R. 60(B)(5) — Denied. Civ.R. 60(B)(5) permits a court to grant relief from a final judgment, order, or proceeding for “any other reason,” but Conomy did not seek relief from a final judgment; he sought a special-master referral in the Supreme Court based on perceived conflicts. The rule does not supply such a mechanism.
• Motion to strike affidavits — Denied. Affidavits filed by Judge Fuller’s counsel were immaterial to the Court’s disposition of the special-master motion and did not improperly add to the record on the merits of the appeal. Because the Court rejected the special-master request on purely legal grounds, the affidavits had no effect on the outcome.

Impact

The decision has several practical effects for Ohio litigation, particularly in domestic relations:

• Reaffirmed limits on extraordinary writs in family law — Parents cannot use mandamus to force a trial court to grant custody or to bypass the final-order requirement. Relief must await the final allocation of parental rights, barring jurisdictional excess or refusal to act by the trial court (which would implicate different writs, such as procedendo).
• Temporary orders remain interlocutory — Even in high-stakes custody disputes, the nonfinal nature of temporary orders means litigants must preserve arguments and develop a record for appeal after the final decree, not seek immediate appellate intervention through mandamus.
• Parental-rights arguments must be channeled through trial and final appeal — Hockstok-based claims (e.g., the need for an unsuitability finding before awarding custody to a nonparent) are to be litigated in the trial court and, if necessary, reviewed on direct appeal. Extraordinary writs are not the forum to adjudicate the merits of custody.
• Appellate record discipline — Parties cannot enlarge the record in the Supreme Court with materials not considered below. This reinforces procedural rigor and prevents litigation from morphing on appeal.
• Damages under R.C. 2731.11 are strictly derivative — They hinge on success in the mandamus proceeding. Courts need not reach complex jurisdictional issues where the writ fails on the merits; damages claims fall with the writ.

Complex Concepts Simplified

• Writ of mandamus — An extraordinary remedy ordering a public official or court to perform a clear legal duty. It may compel action (e.g., to issue a ruling) but cannot dictate how a court should rule where discretion is involved.
• Judicial discretion — Many trial-level decisions (such as interim custody rulings) require judgment calls based on facts and law. Even alleged abuses of such discretion are ordinarily addressed on appeal, not via mandamus.
• Adequate remedy at law — If a party can obtain relief through regular legal processes (most commonly a direct appeal from a final judgment), extraordinary writs are unavailable. The availability of a future appeal typically satisfies this requirement, even if interim orders are nonfinal and temporarily unreviewable.
• Final, appealable order — Only certain orders may be appealed immediately. Temporary custody orders are generally not final; they remain subject to change until the final decree. Alleged errors in such orders are raised on appeal from the final judgment.
• In re Hockstok principle — Before awarding custody to a nonparent, a court must determine that the parent is unsuitable. This does not mean a parent automatically wins custody in every dispute; the trial court must make factual findings based on the record.
• Civ.R. 60(B)(5) — A rule allowing trial courts to relieve a party from a final judgment for “any other reason justifying relief.” It does not authorize the Supreme Court to appoint a special master or to revisit nonfinal appellate matters.
• R.C. 2731.11 damages — Statutory damages are available in mandamus cases only if the relator wins the writ. If the writ is denied or dismissed, damages are not available.
• Record on appeal — Reviewing courts decide appeals based on the record considered by the lower tribunal. New materials created after the lower court’s decision cannot be added to the appellate record for the first time on appeal.

Practical Guidance for Litigants and Counsel

• In urgent custody situations, pursue relief in the trial court with procedurally compliant filings (e.g., include required affidavits and evidentiary proffers). If the court fails to rule, a writ of procedendo (to compel a decision) may be appropriate; if it rules but you disagree with the outcome, preserve the issue for direct appeal.
• Do not expect mandamus to compel a particular custody outcome. Focus on building a record (testimony, exhibits, findings) that will support your position on appeal from the final decree.
• If alleging conflicts or impropriety, use the prescribed mechanisms (motions to disqualify under applicable rules) in the appropriate forum and posture; Civ.R. 60(B) relief presupposes a final judgment and is generally addressed by the court that entered that judgment.
• Maintain strict record discipline. Materials not considered by the lower court cannot be appended for the first time on appeal to the Supreme Court.

Conclusion

State ex rel. Conomy v. Fuller underscores enduring limits on the writ of mandamus in Ohio: it cannot be used to direct judicial outcomes in matters committed to trial-court discretion, nor can it stand in for an appeal where a final judgment will provide an adequate remedy. The Court’s treatment of the ancillary motions strengthens the architecture of appellate procedure by protecting the integrity of the record and rejecting attempts to deploy Civ.R. 60(B)(5) outside its proper context.

For family-law practitioners, the decision affirms that interim custody disputes must be litigated in the trial court and preserved for appeal from the final decree. For mandamus practitioners, it reiterates that damages under R.C. 2731.11 are strictly contingent on success and that writs cannot be used to circumvent the final-order doctrine. The unanimous opinion provides clear guidance: extraordinary writs are extraordinary, not a shortcut around ordinary appellate process.