[Cite as Haupt v. Haupt, 2017-Ohio-2719.]
IN THE COURT OF APPEALS
ELEVENTH APPELLATE DISTRICT
GEAUGA COUNTY, OHIO
ANDREW W. HAUPT, : OPINION
Plaintiff-Appellee, : CASE NO. 2015-G-0049 - vs - :
HEATHER A. HAUPT, :
Defendant-Appellant. :
Appeal from the Geauga County Court of Common Pleas, Case No. 11 DC 000358.
Judgment: Affirmed.
Robert E. Zulandt, Jr., Zulandt & Smalheer, 114 East Park Street, Chardon, OH 44024 (For Plaintiff-Appellee).
Margaret M. Metzinger, Climaco, Wilcox, Peca, Tarantine & Garofoli Co., 55 Public Square, Suite 1950, Cleveland, OH 44113 (For Defendant-Appellant).
THOMAS R. WRIGHT, J.
{¶1} Appellant, Heather A. Haupt, appeals the trial court’s judgment overruling
objections to the magistrate’s decision and adopting the magistrate’s custody
recommendation. In addition to evidentiary challenges, she contests the conclusion that
the shared parenting plan is no longer in the child’s best interest due to parental
cooperation issues. We affirm.
{¶2} Appellant and appellee, Andrew W. Haupt, were married for approximately two years and had one child, Holly, born December 22, 2010. Within one year of birth,
Holly was diagnosed with eczema, a recurring condition causing skin irritability including
reddening, dryness, and itching. Her condition requires regular application of various
salves or creams to reduce discomfort and to moisturize, primarily after a bath or
shower. Holly is also allergic to amoxicillin. Over the first five years of her life, Holly
experienced other physical ailments.
{¶3} Shortly after Holly’s birth, the parties ceased living together, and appellee
filed for divorce. Ultimately, the parties’ separation agreement and shared parenting
plan were incorporated into the final divorce decree. The shared parenting plan
provides appellant with custody of the child at least 75 percent of the time and has
specific provisions governing the child’s care.
{¶4} Even before the final decree was issued, child care disputes developed.
Appellant questioned the manner in which appellee addressed Holly’s hygiene and
various ailments, including the eczema, while she was with him. Appellant questioned
the character and parenting ability of various relatives or friends providing childcare.
{¶5} As to the hygiene and health disputes, appellant alleged that when
appellee returned Holly to her after he had custody for more than two days, her eczema
would often be worse or she would be suffering from another illness. Medical records
established that, during the first five years of Holly’s life, appellant had taken her to a
doctor’s office or emergency room approximately 60 times. Thirty visits occurred
immediately after appellee had custody. Based upon this, appellant asserted that much
of her parenting time was spent helping Holly recover from her health problems.
{¶6} A major dispute centered upon Holly bathing versus showering.
2 Appellee’s residence only has shower facilities. He deems this sufficient. In contrast,
appellant believes Holly’s skin condition requires bathing as opposed to showering.
Medical records indicate that some of Holly’s doctors think that a shower is generally
sufficient except when her eczema is at its worst.
{¶7} In light of appellant’s belief that Holly’s health suffers when she is with
appellee, she demanded that he provide a list of items in his home and other homes he
visits with Holly, such as furniture and chemicals, so that she could determine if Holly is
allergic. Appellee did not appease.
{¶8} As to the child care disputes, appellant deems appellee’s relatives and
friends as unqualified to provide care. Appellant objects to appellee’s sister-in-law,
Terri, as a childcare provider citing obesity, mental illness, alcoholism, and because
another child had once fallen into a sewer hole while on Terri’s property. Appellee
supported the “alcohol” allegation, with claims that Terri kept alcohol in her home and
served it when children were present.
{¶9} Given appellant’s suspicions about appellee’s relatives, if she knew that
her child would be seeing those relatives on a particular day, she would call the sheriff’s
department and ask that a “welfare check” be performed. One of these incidents
occurred when appellant knew that Terri and her family would be visiting appellee’s
home on Easter. During the welfare checks, the deputies never found Holly in danger.
{¶10} The parties also had ongoing disputes concerning appellee’s shared
parenting time. On multiple occasions, appellee would cancel his visitation claiming that
he had to work. When he would attempt to reschedule the lost time, appellant would
refuse to do so absent verification from his employer that he was actually working. In
3 addition, at times appellant would unilaterally cancel appellee’s parenting time. On
more than one occasion, she refused to deliver the child for a weekend visit on the
grounds that it was too cold outside. Additionally, rather than scheduling Holly’s
summer vacation time with her all at once, she would schedule it two or three days at a
time, such that the days would directly conflict with appellee’s regular visitation time.
{¶11} In light of the constant conflict, the parties filed multiple post-decree child
custody motions. In 2013, each party moved for termination or modification of the
shared parenting plan. Furthermore, in April 2014, appellee filed a contempt motion
against appellant, claiming that she was wrongfully depriving him of his time with Holly.
Ultimately, the trial court referred the motions to a magistrate who appointed a new
guardian ad litem (“GAL”) to advance Holly’s interests.
{¶12} The initial evidentiary hearing on the pending motions was postponed so
that appellant could obtain new counsel. Ultimately, the hearing went forward. After
testimony of one witness was heard, the parties settled the majority of the custody
disputes, but not summer parenting time. The settlement was memorialized and
appellee dismissed his contempt motion.
{¶13} A subsequent hearing was scheduled to address summer parenting time.
However, before evidence was taken, appellant’s counsel orally moved to withdraw
from the case due to conflict between her and appellant. The magistrate granted the
motion to withdraw to reset the hearing, and gave appellant three weeks to obtain new
counsel.
{¶14} Before the next evidentiary hearing took place, each party filed additional
motions. Acting pro se, appellant requested that appellee be held in contempt for
4 violating the terms of their most recent settlement. She further requested that
appellee’s parenting time be limited to 48 hours per visit. In his new motion, appellee
again asked that the shared parenting plan be terminated and that he be named sole
custodial parent.
{¶15} At the ongoing hearing, appellant stated that she intended to represent
herself. She also moved for dismissal of appellee’s supplemental motion for custody,
claiming it was not served upon her at her current address. In response, appellee’s
counsel conceded the motion was mailed to the wrong address, but that appellant was
now fully aware of the motion and its substance. In denying the motion to dismiss, the
magistrate held that the lack of proper service did not justify dismissal and instead,
offered appellant a continuance if she was not prepared to go forward. She declined
the continuance, and the hearing proceeded that day and multiple days thereafter.
{¶16} The GAL participated in all of the hearings and filed four reports. In her
first three reports, the GAL recommended that the parties continue to follow the shared
parenting plan with some modifications. In her last report, however, the GAL deemed
the shared parenting no longer feasible because appellant could not communicate with
appellee and make joint decisions concerning Holly’s welfare. The GAL, therefore,
recommended that the shared parenting plan be terminated and that appellee be
deemed the sole custodial parent.
{¶17} In June 2015, the magistrate issued a comprehensive decision on all
pending motions. The magistrate recommended termination of the shared parenting
plan and that appellee be designated the sole custodial parent. In support, the
magistrate found appellant’s erroneous belief that she is the only person qualified to
5 make decisions concerning Holly renders her incapable of communicating with or
making joint decisions with appellee. The magistrate further found that appellant used
the multiple doctor appointments as a pretext to limit appellee’s parenting time and raise
questions about his ability to provide care. The magistrate also found that appellant
used the welfare checks by the sheriff’s department to harass appellee.
{¶18} Both sides filed objections to the magistrate’s decision. Appellant hired an
attorney to represent her during this phase of the proceedings. Besides contesting
many of the magistrate’s findings of fact, appellant argued that her actions in protecting
Holly’s welfare are not legally sufficient to warrant termination of the shared parenting
plan and argued for less drastic measures.
{¶19} The trial court issued its judgment overruling both parties’ respective
objections and adopting the magistrate’s decision in its entirety.
{¶20} Appellant appeals asserting the following as error:
{¶21} “[1.] The trial court committed reversible error when it adopted the
magistrate’s decision without conducting an independent, de novo review of the
magistrate’s decision.
{¶22} “[2.] The trial court committed reversible error in adopting the magistrate’s
decision which terminated the shared parenting plan and designated appellee as the
child’s sole legal custodial and residential parent, where the trial court overruled
appellant’s numerous objections and denied appellant’s request for a hearing before the
trial court, in violation of appellant’s due process rights.
{¶23} “[3.] The trial court committed reversible error when it adopted the
magistrate’s decision over appellant’s objections, which terminated shared parenting
6 and designated appellee as the child’s sole legal custodial and residential parent, where
the trial court failed to consider the best interest of the child factors found in ORC
3109.04(F).
{¶24} “[4.] The trial court committed reversible error when it adopted the
magistrate’s decision over appellant’s objections, where the magistrate relied on the
biased and insufficient report and recommendations of the Guardian Ad Litem in
terminating shared parenting.”
{¶25} Under her first assignment, appellant argues that the trial court committed
four errors in adopting the magistrate’s decision and overruling her objections and that
such shows the trial court failed to conduct a de novo review of the record as required.
{¶26} In reviewing a magistrate’s decision, a trial court does not sit in the same
manner as an appellate court; rather, it must conduct an independent review of the facts
and conclusions made by the magistrate. Phillips v. Phillips, 5th Dist. Stark No.
2014CA00090, 2014-Ohio-5439, ¶26; Civ.R. 53(D)(4)(d) (“[i]n ruling on objections, the
court shall undertake an independent review as to the objected matters to ascertain that
the magistrate has properly determined the factual issues and appropriately applied the
law.”)
{¶27} “‘As the ultimate finder of fact, the trial court must make its own factual
determinations through an independent analysis of the issues and should not adopt the
findings of the magistrate unless the trial court fully agrees with them. The trial court’s
role is to determine whether the magistrate has properly determined the factual issues
and appropriately applied the law, and, if the magistrate has failed to do so, the trial
court must substitute its judgment for that of the magistrate.’” (Emphasis sic.) Doody v.
7 Doody, 11th Dist. Lake No. 2006-L-200, 2007-Ohio-2567, ¶27, quoting Tulley v. Tulley,
11th Dist. Portage No. 2000-P-0044, 2001 Ohio App. LEXIS 4611, *11-12.
{¶28} Appellant’s first argument maintains that the trial court failed to review all
of the evidence submitted to the magistrate because in its judgment entry, it states that
the magistrate held hearings on six days rather than eight.
{¶29} While appellant’s assertion that the trial court failed to list all of the hearing
dates is true, the recitation of hearing days is merely precatory. In the third paragraph
of its judgment, the trial court expressly states that it read the transcripts of the hearings
and considered all of the evidence submitted. Therefore, the record does not support
appellant’s assertion that the trial court conducted a partial, rather than complete,
review of the evidence.
{¶30} Under her second argument, appellant maintains the trial court failed to
fully consider her objections because it did not individually analyze each objection
raised. However, she fails to cite any authority for the proposition that the trial court
must provide separate analysis for each objection. Moreover, the trial court provided an
analysis as to its reasons for overruling appellant’s factual objections and separate
reasons for overruling her legal arguments. Appellant has not demonstrated that the
trial court failed to fully consider her objections prior to overruling them.
{¶31} Under her third argument, appellant argues the trial court erred in
considering audio recordings of conversations between the parties that appellee made
while at a doctor’s office and during custody exchanges.
{¶32} Appellant did not generally object to the audio recordings. Instead,
appellant objected to but one of the recordings on the basis that it is incomplete but not
8 that it is misleading. Given the lack of a proper objection, the trial court did not err in
considering them.
{¶33} Under her last argument, appellant contends that, prior to ruling upon her
objections, the trial court should have held an additional evidentiary hearing to afford
her the opportunity to present three witnesses whose testimony was wrongfully
excluded by the magistrate. However, as will be discussed under the second
assignment, exclusion was proper. Thus, an additional evidentiary hearing was
unnecessary. Appellant’s first assignment is overruled.
{¶34} Under her second assignment, appellant submits that, as a direct result of
her decision to represent herself, the magistrate deprived her of due process. In
support, she raises three arguments. First, she asserts that the magistrate failed to
inform her of the issues being tried.
{¶35} At the outset of the first hearing held after appellant’s second attorney
withdrew, the magistrate stated all issues that were pending before the trial court,
including the two motions that had been filed since the last hearing, one of which was
appellee’s supplemental request to terminate shared parenting. Therefore, appellant
was given adequate notice and her argument is meritless.
{¶36} Appellant’s second due process argument states that the magistrate
deprived her of her right to present character evidence from three separate witnesses.
{¶37} Evidence of a person’s character is generally not admissible to show that
she has acted in conformity therewith. State v. Young, 3d Dist. Marion No. 9-99-53,
1999 Ohio App. LEXIS 6249, *10 (Dec. 27, 1999); Evid.R. 404(A). An exception is
stated in Evid.R. 608(A), and provides that evidence of a witness’s character for
9 truthfulness is admissible if that person’s character has been attacked during the
proceeding. Id. at *10-11. Appellant’s character for truthfulness, however, was never
directly attacked. Accordingly, exclusion of the witnesses was proper.
{¶38} Appellant also contends that the magistrate improperly limited the scope
of her cross-examination of Terri Haupt, the former sister-in-law who sometimes
provided care for Holly. However, she fails to show that the magistrate interfered with
relevant inquiry.
{¶39} Appellant also claims she was denied a fair trial because the magistrate
would not allow her to introduce into evidence the affidavit of a doctor who examined
the child for a problem with her genitals. But an affidavit cannot be used as a substitute
for direct testimony because it constitutes hearsay. Tyra v. Tyra, 1st Dist. Hamilton No.
C-140211, 2014-Ohio-5732, ¶8-9. Hence, the magistrate’s ruling to exclude the
affidavit was correct.
{¶40} Under her third due process argument, appellant alleges that while she
was attempting to act as her own counsel, the magistrate did not afford her the degree
of respect and courtesy that an attorney would be shown. She notes that the magistrate
often showed frustration with her while she questioned witnesses.
{¶41} Many of appellant’s questions were vague, making it difficult to ascertain
the evidence sought and how it related to the issues. Often, the magistrate would state
that he did not understand her question, and that she needed to give explanation before
the question would be allowed. To the extent that many of appellant’s questions were
difficult to follow, the magistrate did not treat appellant any differently than an attorney
asking cryptic or irrelevant questions.
10 {¶42} Furthermore, taken as a whole, the magistrate gave appellant some
leeway in her presentation of evidence. Accordingly, any disadvantage appellant may
have had during the evidentiary hearing was due entirely to her decision to represent
herself. As appellant has failed to show any due process violation, her second
assignment lacks merit.
{¶43} Under her third assignment, appellant challenges the factual predicate for
the magistrate’s conclusion to terminate the shared parenting plan and award custody
to appellee. She contends that the evidence does not support the finding that she is
unable to communicate with and cooperate with appellee. According to her, the
evidence instead supports a finding that she is a good mother who may have acted
overzealously in protecting Holly’s health.
{¶44} “* * * [D]ecisions involving the custody of children are accorded great
deference on review. Bates-Brown v. Brown, 11th Dist. No. 2006-T-0089, 2007 Ohio
5203, at ¶18, citing Miller v. Miller (1988), 37 Ohio St.3d 71, 74, 523 N.E.2d 846. Thus,
any judgment of the trial court involving the allocation of parental rights and
responsibilities will not be disturbed absent a showing of an abuse of discretion. Bates
{¶45} , supra, citing Davis v. Flickinger, 77 Ohio St.3d 415, 418, 1997 Ohio 260,
674 N.E.2d 1159. Further, we review a judgment of the trial court adopting the decision
of its magistrate for an abuse of discretion. Rutherford v. Rutherford, 11th Dist. No.
2009-P-0086, 2010 Ohio 4195, at ¶10. In addition, an appellate court reviews the trial
court’s termination of a shared parenting plan for an abuse of discretion. Matis v. Matis,
9th Dist. No. 04CA0025-M, 2005 Ohio 72, at ¶4.” In re K.R., 11th Dist. Trumbull No.
2010-T-0050, 2011-Ohio-1454, ¶28.
11 {¶46} “‘* * * [A]n abuse of discretion is the trial court’s “failure to exercise sound,
reasonable, and legal decision making.” State v. Beechler, 2d Dist. No. 09-CA-54, 2010
Ohio 1900, ¶62, quoting Black’s Law Dictionary (8 Ed.Rev.2004) 11. When an
appellate court is reviewing a pure issue of law, “the mere fact that the reviewing court
would decide the issue differently is enough to find error (of course, not all errors are
reversible. Some are harmless; others are not preserved appellate review). By
contrast, where the issue on review has been confined to the discretion of the trial court,
the mere fact that the reviewing court would have reached a different result is not
enough, without more, to find error.” Id. at ¶67.’ Ivancic v. Enos, 11th Dist. Lake No.
2011-L-050, 2012-Ohio-3639, 978 N.E.2d 927, ¶70.” Chapman v. Chapman, 11th Dist.
Lake No. 2015-L-039, 2015-Ohio-4833, ¶22.
{¶47} When a shared parenting plan is jointly filed by the parties, the trial court
can terminate that plan “upon the request of one or both of the parents or whenever it
determines that shared parenting is not in the best interest of the children.” R.C.
3109.04(E)(2)(c). In deciding whether termination is in the child’s best interest, the trial
court must consider:
{¶48} “(a) The ability of the parents to cooperate and make decisions jointly, with
respect to the children;
{¶49} “(b) The ability of each parent to encourage the sharing of love, affection,
and contact between the child and the other parent;
{¶50} “(c) Any history of, or potential for, child abuse, spouse abuse, other
domestic violence, or parental kidnapping by either parent;
{¶51} “(d) The geographic proximity of the parents to each other; as the
12 proximity relates to the practical considerations of shared parenting;
{¶52} “(e) The recommendation of the guardian ad litem of the child, if the child
has a guardian ad litem.” R.C. 3109.04(F)(2).
{¶53} The failure of parents to communicate or cooperate effectively is grounds
for terminating a shared parenting plan. Duricy v. Duricy, 11th Dist. Trumbull Nos.
2009-T-0078 and 2009-T-0118, 2010-Ohio-3556, ¶43; R.C. 3104.09(F)(2)(a).
{¶54} As noted previously, appellant filed a pro se motion to modify the existing
shared parenting plan limiting appellee’s custody to 48 hours at any given time. This
motion was based upon her assertion that appellee did not take proper care of the child,
and that she would become ill when his time with her was over. Yet, appellant did not
present any direct evidence demonstrating that the child’s health problems were caused
by appellee in any respect.
{¶55} Notwithstanding the lack of any direct correlation, appellant took the child
to doctor’s appointments and emergency rooms approximately 60 times during the first
five years of her life, and over half of the visits occurred immediately after appellee had
custody. In many of these visits, appellant expressly told the doctor that the child had
recently been with appellee. In addition, appellant unreasonably demanded that
appellee provide a detailed list of items in his residence and others’, for the purpose of
determining whether the child was allergic to something in their homes.
{¶56} Given the foregoing, the magistrate reasonably inferred that appellant was
wrongfully attempting to show that appellee was not providing proper care for the child.
It was also reasonable to infer that appellant unreasonably asserts excess control over
parenting decisions.
13 {¶57} Moreover, appellant would deny appellee scheduled time for inappropriate
reasons, such as it was too cold for the child to leave her residence. Appellant also
used abusive language in addressing appellee, and engaged in tirades against him
while Holly was present.
{¶58} Taken as a whole, there is credible evidence that appellant was
overbearing and operated as a dictator rather than a partner.
{¶59} Under her fourth assignment, appellant maintains that the magistrate
erred in relying in any way upon the GAL’s final recommendation claiming bias. In
support, appellant notes that the GAL’s recommendation is based, at least in part, on
her belief that appellant accused appellee of sexual abuse. The GAL’s fourth report
states a basis for her belief that appellant, at the very least, raised the issue with one of
Holly’s doctors. Accordingly, this argument is baseless.
{¶60} Moreover, although the magistrate referenced the GAL’s recommendation
in his decision, it does not appear that the magistrate’s decision was influenced in any
way by a false abuse claim, and the same can be said of the trial court’s judgment.
{¶61} Appellant separately argues that the GAL failed to investigate a laundry
list of issues. Obviously, a GAL’s report can always contain more. Thus, merely noting
omissions does not support appellant’s premise. The GAL’s report contains a plethora
of relevant discussion in support of her decision. To the extent that appellant deemed
the omitted issues relevant, she had more than ample opportunity to present evidence.
{¶62} As a final issue regarding the GAL, appellant claims the magistrate erred
in appointing a new guardian ad litem to make a recommendation as to the post-decree
motions. She asserts that the magistrate should have re-appointed the same guardian
14 ad litem who worked on the action prior to the final divorce decree. However, the new
GAL was appointed in a magistrate’s order issued on April 2, 2014. Appellant did not
object to the appointment until May 13, 2014, when she moved for reinstatement of the
prior guardian. Since Civ.R. 53(D)(2)(b) states that a request to vacate a magistrate’s
order must be filed within ten days of the order, appellant’s objection was untimely, and
she is precluded from re-arguing the issue on appeal. O’Brien v. O’Brien 8th Dist.
Cuyahoga No. 98336, 2012-Ohio-5185, ¶8. Accordingly, the fourth assignment is
without merit.
{¶63} The judgment of the Geauga County Court of Common Pleas is affirmed.
TIMOTHY P. CANNON, J., concurs,
COLLEEN MARY O’TOOLE, J., dissents.