Burke v. French

2015 Ohio 4558

• Court: Ohio Court of Appeals
• Decided: November 2, 2015
• Docket: 15CA8
• Status: Published

Opinion

[Cite as Burke v. French, 2015-Ohio-4558.]

COURT OF APPEALS KNOX COUNTY, OHIO FIFTH APPELLATE DISTRICT

DONALD BURKE, et al., : JUDGES: : Hon. W. Scott Gwin, P.J. Plaintiffs - Appellees : Hon. Patricia A. Delaney, J. : Hon. Craig R. Baldwin, J. -vs- : : JAMIE M. FRENCH, et al., : Case No. 15CA8 : Defendants - Appellants : OPINION

CHARACTER OF PROCEEDING: Appeal from the Knox County Court of Common Pleas, Juvenile Division, Case No. 212-3155

JUDGMENT: Affirmed

DATE OF JUDGMENT: November 2, 2015

APPEARANCES:

For Plaintiffs-Appellees For Defendant-Appellant Jamie French

HARLOW H. WALKER D. DERK DEMAREE 120 1/2 East High Street 205 E. Chestnut Street Mount Vernon, Ohio 43050 POB 766 Mount Vernon, Ohio 43050 Knox County, Case No. 15CA8 2

Baldwin, J.

{¶1} Appellant Jamie M. French appeals a judgment of the Knox County

Common Pleas Court, Juvenile Division, overruling her motion to modify a court order as

to counseling. Appellees are Donald and Susan Burke.

STATEMENT OF FACTS AND CASE

{¶2} Q.B., a minor child, was born on May 8, 2008 to appellant. Appellees are

appellant's parents and the grandparents of the child . On November 8, 2012, appellees

filed a complaint for grandparent visitation pursuant to R.C. 3109.12.

{¶3} On June 4, 2013 the parties filed a joint Memorandum of Agreement. The

handwritten agreement stated that the parties "shall pursue counseling with Jeannette

Hammond (or another qualified clinician) to work on interpersonal & historical matters

between themselves, and on matters concerning [Q.B.]'s best interests."

{¶4} The agreement was signed and approved by the magistrate on June 4,

2013.

{¶5} On August 9, 2013, appellees filed a Motion to Show Cause, alleging that

appellant failed to comply with the court order on three bases: denial of companionship

time, video recording of companionship time, and failure to pursue counseling. A show

cause hearing was scheduled for September 19, 2013.

{¶6} On September 24, 2013, a Magistrate's Decision was filed. The findings of

fact stated that appellant "unilaterally discontinued counseling with Jeannette Hammond

due to differences with the counselor." The magistrate found appellant in contempt of the

court order due to her denial of companionship, videotaping of the exchange, and

discontinuance of counseling. Appellant was ordered to serve a jail term of 30 days, with Knox County, Case No. 15CA8 3

5 of those days being “actual incarceration for violation of the prohibition regarding

videotaping or recording, an act of criminal contempt for which no purge condition is

possible.” On January 9, 2014, the trial court filed a Judgment Entry reducing appellant's

jail time to 2 days, noting “[w]hile the Court cannot and will not tolerate direct

disobedience of its orders, the punishment must fit the nature and extent of the offense.”

{¶7} This Court affirmed the contempt finding, holding in pertinent part, "The trial

court's decision finding appellant in contempt is not unreasonable, arbitrary, or

unconscionable because it is evident from her own admissions Mother did not abide by

the terms of the agreement and sought to hold Grandparents to terms not included in the

parties' agreement. Mother has essentially attempted to re-write the terms of the

agreement to her own ends, thereby overriding the terms and spirit of the agreement and

flouting the authority of the Court." Burke v. French, 5th Dist. Knox No. 14CA1, 2014-

Ohio-3217, ¶27.

{¶8} On December 16, 2014, appellant filed a motion to modify the court order as

to counseling. She alleged that the counselor had not been receptive to information

provided by the parties, and asked to have a different counselor selected. The magistrate

overruled the motion, finding that appellant failed to demonstrate any bias on the part of

the counselor.

{¶9} The court held an evidentiary hearing on appellant's objections to the

magistrate's decision. The court entered judgment overruling the objections and entering

judgment in accordance with the magistrate's decision.

{¶10} Appellant assigns a single error on appeal: Knox County, Case No. 15CA8 4

{¶11} "THE JUDGMENT OF THE TRIAL COURT WAS AGAINST THE

MANIFEST WEIGHT OF THE EVIDENCE."

{¶12} A judgment supported by some competent, credible evidence going to all

the essential elements of the case will not be reversed as against the manifest weight of

the evidence. C.E. Morris Co. v. Foley Construction Company, 54 Ohio St.2d 279, 376

N.E.2d 578, syllabus (1978). As the trier of fact is in the best position to view the

witnesses and their demeanor, in making a determination that a judgment is against the

manifest weight of the evidence, this Court must indulge every reasonable presumption in

favor of the lower court's judgment and findings of fact. Shemo v.. Mayfield Hts., 88 Ohio

St.3d 7, 10, 722 N.E.2d 1018 (2000).

{¶13} Appellant testified at the hearing that she felt her concerns were not

important to the counselor, Jeanette Hammond, and that issues she raised were "brushed

off." Appellant in particular sought to discuss her son being exposed to cigarette smoke

during visits, and testified that the counselor told her she was an ex-smoker and knows

how the smell of smoke can get on clothing. She also was concerned that she did not

receive a response to issues she raised in emails to Hammond.

{¶14} Jeanette Hammond testified that she only met with appellant four times:

three times either individually or with appellant's husband, and once in 2014 with all

parties present. She testified that she believed they could move forward if all parties had

more sessions with her, but she had experienced scheduling problems with appellant.

She testified that she addressed appellant's concerns with her father smoking and

drinking in front of the child at the meeting between all the parties. She further testified

that she had not had an opportunity to move the parties beyond what has happened in Knox County, Case No. 15CA8 5

the past because she only had one session with all the parties present. She

acknowledged receipt of appellant's email regarding appellant's concern that she sided

with appellees on the issue of smoking because she was an ex-smoker, and testified that

she did not like to address specific counseling issues by email and would address such

matters at the next meeting.

{¶15} The trial court did not err in overruling appellant's motion to remove the

counselor. The counselor had only had one meeting with all parties present. The fact

that the counselor formerly smoked and expressed that to appellant is not sufficient

demonstration of bias against appellant to discontinue counseling after a single meeting.

The counselor testified that she felt the parties could possibly move forward if all parties

had more sessions with her, both individually and jointly.

{¶16} The assignment of error is overruled. The judgment of the Knox County

Common Pleas Court, Juvenile Division, is affirmed. Costs are assessed to appellant.

By: Baldwin, J.

Gwin, P.J. and

Delaney, J. concur.