In re A.J.

2013 Ohio 5737

• Court: Ohio Court of Appeals
• Decided: December 26, 2013
• Docket: 99881
• Status: Published

Opinion

[Cite as In re A.J., 2013-Ohio-5737.]

Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION No. 99881

IN RE: A.J. (A.K.A. A.R.) A Minor Child [Appeal By D.J.R., Father]

JUDGMENT: AFFIRMED

Civil Appeal from the Cuyahoga County Court of Common Pleas Juvenile Division Case No. SU 10721470

BEFORE: Boyle, P.J., Keough, J., and Kilbane, J. RELEASED AND JOURNALIZED: December 26, 2013 FOR APPELLANT FATHER

D.J.R., pro se 7800 Dorothy Avenue Parma, Ohio 44129

FOR APPELLEE MOTHER

J.J.J., pro se 13614 Courtland Avenue Cleveland, Ohio 44111

William Weston Guardian Ad Litem 20545 Center Ridge Road Suite 424 Rocky River, Ohio 44116 MARY J. BOYLE, P.J.: {¶1} Plaintiff-appellant, D.J.R. (“father”), appeals the trial court’s order denying

father’s motion to set aside the magistrate’s pretrial order and adopting the magistrate’s

decision, whereby the trial court upheld mother’s weekly parenting time. As part of the

order, the trial court adopted the magistrate’s recommendation allowing mother’s

scheduled Sunday parenting time at Safe and Sound to be changed to an alternative day of

the week that Safe and Sound could accommodate. We find no merit to the appeal and

affirm.

Procedural History and Facts

{¶2} This case involves a long protracted history, originating with father’s

challenge of an administrative decision establishing paternity and an order to pay child

support. The relevant history for this appeal, however, begins in January 2013. At that

time, the parties agreed to a shared parenting plan for their minor child, A.R., born May

22, 2010. The agreement divided holidays between the parties and provided that

“Mother shall have parenting time with said minor child every Sunday from 8:00 a.m.

until 5:30 p.m.” The agreement further provided the following: “When mother receives

her own independent residence, parties shall agree to increase mother’s regular parenting

time.”

{¶3} On February 8, 2013, following the magistrate’s recommendation, the trial

court adopted the parties’ agreement as an order of the court, finding that the terms of the

agreement were in the best interest of the child. Two and one-half weeks later, father

filed a “motion to suspend visitation and motion to void agreement.” Father sought to “void” the agreement after A.R. had allegedly been returned with a bruise on his forehead

after a visit with his mother and maternal grandmother.

{¶4} The magistrate held a hearing on the motion and ultimately recommended

denying the motion but ordering that “Mother’s visitation to take place at Safe and Sound

ONLY” and that “[p]arties to contact Safe and Sound to schedule Sunday visitation.”1

Neither party objected to the order. On March 28, 2013, the trial court approved and

adopted the magistrate’s recommendation, denying father’s “motion to void the

agreement,” but ordering that mother’s visitation take place at Safe and Sound. Neither

party appealed the decision.

{¶5} On April 9, 2013, the magistrate issued the following order after being

contacted by Safe and Sound:

The Court has been notified by Safe and Sound that they cannot accommodate a visit with the mother and child on Sundays and requested this Court permit them to schedule the visit on an alternative day.

The Court finds it is in the child’s best interest to have a visit with his mother weekly.

It is furthered ordered that: Mother is to have weekly visitation with the child at Safe and Sound. Day of visit to be determined by Safe and Sound based on when they can accommodate the visit.

{¶6} Father subsequently filed a motion to set aside this order, arguing that the

order violated his due process rights. He also filed an affidavit in support of his motion,

emphasizing that he previously agreed to Sunday visitation because he could transport

Safe and Sound is a domestic violence center that hosts supervised 1

visitation. A.R. on that day without disrupting his work schedule. Father further stated the

following:

I feel that my Civil Rights will [sic] have been violated if this Order

is allowed to stand. If Safe and Sound could not accommodate a Sunday

visitation schedule, it is the responsibility of [mother’s] attorney, Adam

Baker, to file a motion with the Court to move for a modification of the

Order and Judgment Entry because that is his duty. Magistrate Hilow has

acted on behalf of [mother], in connection with [Safe and Sound] to make a

change to a previously agreed upon visitation schedule behind closed doors

to benefit [mother]. I had no opportunity to be heard before the Court, and

the appropriate protocol was not used.

{¶7} The trial court subsequently denied father’s motion to set aside and adopted

the magistrate’s decision, ordering mother to have weekly visitation with the child at Safe

and Sound. From that decision, father now appeals, raising the following six

assignments of error:

I. The trial court erred and abused its discretion by sua sponte modifying the Judgment Entry of 3/28/2013.

II. The trial court erred and abused its discretion by acting on behalf of the Defendant in sua sponte modifying the Judgment Entry of 3/28/2013.

III. The trial court erred and abused its discretion by granting authority over the parties in the proceedings to a domestic violence center for the purpose of establishing a visitation schedule.

IV. The trial court erred and abused its discretion by violating Mr. [D.J.R.’s] due process rights. V. The trial court erred and abused its discretion by modifying the Judgment Entry without scheduling a hearing or presenting any opportunity to any of the parties to be heard.

VI. The trial court erred and abused its discretion by finding that weekly visitation was in the best interest of the minor child with no evidence to support such a finding.

{¶8} For ease of discussion, we will address father’s assignments of error out of

order and together where appropriate.

Best Interest of the Child

{¶9} In his sixth assignment of error, father argues that the trial court abused its

discretion in finding that weekly visitation was in the best interest of the child. He

contends that the trial court had no evidence before it to reach such a finding. We find

father’s argument misplaced.

{¶10} R.C. 2151.23(F) states that the juvenile court shall exercise its jurisdiction in

child-custody matters in accordance with R.C. Chapter 3109, which governs domestic

relations cases. R.C. 3109.051 governs the modification of parenting time or visitation

rights. Braatz v. Braatz, 85 Ohio St.3d 40, 44-45, 706 N.E.2d 1218 (1999). It requires

that court orders that address visitation be “just and reasonable.” In re Bailey, 1st Dist.

Hamilton Nos. C-040014 and C-040479, 2005-Ohio-3039, ¶ 25. “In modifying

visitation rights, a court must determine whether a change in the visitation order is in the

child’s best interest, and it must consider the facts set forth in R.C. 3109.051(D) in

making this determination.” Id. {¶11} A trial court has broad discretion with regard to modification of visitation so

long as its orders are in the best interests of the child. In re Bailey, ¶ 25, citing Braatz at

44-45. We therefore will not disturb a trial court’s ruling absent an abuse of discretion.

“Abuse of discretion” has been defined as an attitude that is unreasonable, arbitrary, or

unconscionable. In re C.K., 2d Dist. Montgomery No. 25728, 2013-Ohio-4513, ¶ 13,

citing Huffman v. Hair Surgeon, Inc., 19 Ohio St.3d 83, 482 N.E.2d 1248 (1985). A

decision is unreasonable if there is no sound reasoning process that would support that

decision. Id., citing AAAA Ents., Inc. v. River Place Community Urban Redevelopment

Corp., 50 Ohio St.3d 157, 553 N.E.2d 597 (1990).

{¶12} The record reveals that the issue of mother’s weekly visitation was heard at

the hearing on father’s motion to suspend visitation and “motion to void” the parties’

shared parenting plan. The trial court ultimately adopted the magistrate’s decision and

concluded that weekly visitation should continue. Father never appealed that decision,

and we have no transcript of that proceeding before us. Father cannot now untimely

attack that decision through the instant appeal of an order changing the designated day for

weekly visitation. See App.R. 4(A) (appeal must be filed 30 days from the order

appealed from).

{¶13} The sixth assignment of error is overruled.

Court’s Authority

{¶14} In his first assignment of error, father argues that the trial court lacked

authority to modify its earlier order of March 28, 2013, which ordered mother’s parenting time to occur at Safe and Sound and the “[p]arties to contact Safe and Sound to schedule

Sunday visitation.” He contends that the trial court lacked authority to issue the

subsequent order allowing the parenting to occur on an alternative day other than Sunday.

{¶15} In support of his argument, father relies on In re W.R.P., 8th Dist. Cuyahoga

No. 99010, 2013-Ohio-702, for the proposition that the juvenile court cannot sua sponte

vacate a final judgment. In that case, this court held that the juvenile court had no

authority to sua sponte vacate its prior judgment entry of contempt. Id. at ¶ 9. We find,

however, that In re W.R.P. is not controlling and is distinguishable from this case.

{¶16} Here, the trial court did not sua sponte vacate a final judgment. The trial

court merely carried its earlier order into effect, honoring the best interest of the child and

the parties’ agreed weekly parenting time with mother. Indeed, “[o]nce the juvenile

court has exercised jurisdiction over a child, the court has continuing jurisdiction to

determine what is in the best interests of the child.” In re E.Z.H., 5th Dist. Holmes No.

12CA015, 2013-Ohio-3494, ¶ 18. The juvenile court’s paramount concern is always the

best interest of the child. And while father clearly believes that any other day than

Sunday is an inconvenience to his schedule, that is irrelevant to the ultimate issue of the

best interest of the child.

{¶17} Notably, the trial court’s order does not preclude Sunday visitation.

Instead, the award addresses the practical concern that if Sunday visitation is not available

at Safe and Sound, then another day shall be chosen. {¶18} We find no basis to conclude that the trial court has abused its discretion in

this case. To the contrary, we find that the trial court reasonably exercised its discretion

to uphold the mother’s one day of parenting time with child.

{¶19} The first assignment of error is overruled.

Failing to Act Impartially

{¶20} In his second assignment of error, father argues that the magistrate

improperly acted on behalf of mother by issuing the order of April 9, 2013. He contends

that such an order only served the purpose of facilitating visitation and that mother should

have had to wait until Sunday visitation became available. According to father, “Sunday

[visitation] was never impossible with Safe and Sound, only unavailable at the time.”

{¶21} But the juvenile court’s primary concern is not the father or mother — it is

the child. We find no merit to father’s claim that the magistrate was acting on behalf of

mother. Instead, the record reveals that the magistrate, and subsequently the trial judge,

were acting on behalf of the child.

{¶22} The second assignment of error is overruled.

Transfer of Jurisdiction

{¶23} In his third assignment of error, father argues that the juvenile court

impermissibly transferred jurisdiction of the case to Safe and Sound by allowing Safe and

Sound to determine the day of visitation. We find this argument to have no merit.

There is no evidence in the record that the juvenile court “transferred” jurisdiction to Safe

and Sound. To the extent that the court ordered that mother’s one day of visitation be consistent with a day that Safe and Sound can accommodate, we do not find this to be a

transfer of the court’s authority.

{¶24} The third assignment of error is overruled.

Due Process and Hearing

{¶25} In his fourth and fifth assignments of error, father argues that his due

process rights were violated because “the proper procedure was not followed in the

issuance of the 4/9/2013 order.” He argues that he was denied any opportunity to be

heard because the trial court never held a hearing. We fail to see how father’s due

process rights were violated. As part of its April 9, 2013 order, the magistrate

specifically instructed the parties to file a motion to set aside the order in accordance with

Civ.R. 53(D)(2)(b) if they wished to challenge the order. The trial court then separately

heard the father’s motion to set aside and ultimately denied it. Father had an opportunity

to be heard through his motion, which the trial court separately considered and rejected.

{¶26} The fourth and fifth assignments of error are overruled.

{¶27} Judgment affirmed.

It is ordered that appellee recover from appellant costs herein taxed.

The court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate be sent to said court to carry this judgment into

execution.

A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure. MARY J. BOYLE, PRESIDING JUDGE

KATHLEEN ANN KEOUGH, J., and MARY EILEEN KILBANE, J., CONCUR