In re A.K.

2012 Ohio 412

• Court: Ohio Court of Appeals
• Decided: February 3, 2012
• Docket: 2011 CA 15
• Status: Published

Opinion

[Cite as In re A.K., 2012-Ohio-412.]

IN THE COURT OF APPEALS FOR CHAMPAIGN COUNTY, OHIO

IN THE MATTER OF: :

A.K., C.K. and Z.K. : C.A. CASE NO. 2011 CA 15

: T.C. NO. 2007JI08, 2007JI09, 2007JI10 : (Civil appeal from Common : Pleas Court, Juvenile Division)

:

..........

OPINION

Rendered on the 3rd day of February , 2012.

BRIAN L. KINTER, 362 East Madison Avenue, Springfield, Ohio 45503 Appellant Pro Se

MICHAEL EDWARDS, Atty. Reg. No. 0082030, 41 E. Main Street, Enon, Ohio 45323 Attorney for Appellee

RONALD TOMPKINS, Atty. Reg. No. 0030007, 19 Pearce Place, Urbana, Ohio 43078 Attorney for Appellee

DONOVAN, J.

{¶ 1} This matter is before the Court on the pro se Notice of Appeal of Brian

Kinter, filed June 22, 2011. Kinter appeals from the trial court’s May 23, 2011 2

denial of his pro se “Motion for Contempt,” filed January 28, 2011. Therein Kinter

sought an order finding Jenise Boltz in contempt for interfering with his visitation

rights with the parties’ children, A.K., C.K. and Z.K.

{¶ 2} In his motion, Kinter asserted that, on December 17, 2010, he was

denied an hour of visitation with his children after they were released from school at

2:00 p.m. and were cared for by a babysitter until 3:00 p.m. at the direction of Boltz.

He further asserted that Boltz denied him his scheduled visitation on December

31, 2010, as well as January 14, 2011. Kinter requested “an order granting

makeup time for the visitation time denied,” as well as “an order awarding him a

reasonable sum as reimbursement” for his costs to travel to Kenton, Ohio, where

his children reside. Kinter further asserted that Boltz impeded telephone

communication between him and his children. Finally, he sought an “order

requesting police intervention and arrest” in the event Boltz interferes with his

visitation rights in the future.

{¶ 3} Boltz filed a pro se response, asserting that the children went to the

babysitter’s on December 17, 2010, because Kinter was an hour late picking them

up at school. Boltz asserted that Kinter had the school nurse call her to inquire

about the children’s whereabouts and that he was “yelling what a bad mom I am” in

the background. According to Boltz, she “asked the nurse to tell him to stop using

the children as pawn[s] in his game of life and she said she would.” Boltz asserted

that Kinter was not entitled to visitation on December 31, 2010 and January 14,

2011. According to her, she was entitled to have the children over the Christmas

holiday, and Kinter’s regular visitation was to resume on January 7, 2011. Boltz 3

asserted that Kinter had telephone communication with the children “until he failed

to pay the phone bill.” Boltz asked the court for an order prohibiting Kinter from

making negative comments about her in front of the children.

{¶ 4} The docket sheet indicates that Kinter filed a motion for a change of

custody on February 11, 2011, along with an affidavit of indigency, and that the

court issued an Order indicating that Kinter is not indigent for purposes of the

motion to change custody, and further assessed a $100.00 filing fee. The docket

sheet further indicates that the court issued an Entry on February 28, 2011, placing

Kinter’s custody motion on the inactive docket, noting that the same issues were

currently pending on appeal in this Court (in Kinter’s appeal from the denial of his

Civ.R. 60(B) motion for relief from judgment).

{¶ 5} On May 23, 2011, after a hearing, the court issued a Decision that

provides that Kinter “presented the testimony of Cary Roehm, elementary principal

for the Kenton City Schools, Jennifer Penczarski, Superintendent of Kenton City

Schools, Brenda Jennings, nurse for Kenton City Schools, Jenise Boltz, mother and

Marjorie Cannode, baby sitter.” The court found that Boltz was not in contempt

regarding Kinter’s visitation on December 17, 2010. According to the court, in

“Mr. Kinter’s mind, the visitation should have started at 2:00 P.M. but the court finds

that regularly scheduled visitation always started at 3:00 P.M. and on this day, Mr.

Kinter received the children at 3:00 P.M.” Regarding visitation on December 31,

2010, and January 14, 2011, the court found that Boltz was not in contempt

because neither party had followed the court-ordered holiday parenting time

schedule, “which has lead to a complete misunderstanding and misinterpretation of 4

when visitation should take place during these times.” The court denied Kinter’s

requests for make-up visitation and travel costs because of the parties’ “mutual

misinterpretation and miscommunication.” Regarding Kinter’s allegations that

Boltz impedes his telephone communication with the children, the court found

“absolutely no evidence to support this claim.” The court refused to order police

intervention and arrest as Kinter requested, and noted that the proper vehicle to

address visitation issues is a motion for contempt. The court ordered that “neither

party is to use obscene language or gestures in front of the children particularly if

either is directed at the other parent.”

{¶ 6} In addition to his appellate brief, Kinter filed multiple exhibits, including

a Magistrate’s Decision and Orders, dated February 9, 2009, designating Boltz as

the sole custodian and residential parent of the parties’ children and granting Kinter

parenting time; a Decision dated October 5, 2010, sustaining Kinter’s objection to a

decision of the magistrate that Kinter waived his right to counsel; Kinter’s February

11, 2011, Motion for Change of Custody; correspondence from the principal of Espy

Elementary School, Cary Roehm, that provides in part that Boltz contacted the

school on December 17, 2010, requesting that the children be released to the

babysitter at 2:00, and that Kinter arrived at the school at 2:00 to pick up the

children; correspondence from Kinter to previous counsel for Boltz, dated January

5, 2011 and January 10, 2011; correspondence from Kinter to Boltz, dated

December 13, 2010, in which Kinter indicates that he will pick the children up one

hour early at school on December 17, 2010 due to an early dismissal, and in which

he offers to pick up the children at 9:00 a.m. on January 14, 2011, a school holiday, 5

on which he asserts he is entitled to visitation; a decision issued by the trial court on

December 20, 2011, denying Kinter’s Civ.R. 60(B) motion as untimely, finding

Kinter indigent, and waiving costs; a Journal Entry dated February 14, 2011, finding

that Kinter is not indigent and providing that the court “will assess filing fees of

$100.00"; and correspondence dated June 3, 2011, from Marcy L. Bills of the

Official Reporting Agency requesting a deposit of $860.00 for the preparation of a

transcript of the hearing on Kinter’s contempt motion.

{¶ 7} Boltz did not file a brief in response to Kinter’s.

{¶ 8} Kinter asserts one assignment of error as follows:

{¶ 9} “THE COURT ABUSED ITS DISCRETION WHEN IT FAILED TO

FIND THE DEFENDANT IN CONTEMPT FOR INTERFERENCE WITH THE

PLAINTIFF’S VISITATION WHEN THE OVERWHELMING WEIGHT OF THE

EVIDENCE FAVORS A FINDING OF GUILT.”

{¶ 10} Kinter asserts that it is “highly probable” that the trial court refused to

enforce its own order regarding visitation in “retaliation” for Kinter’s Civ.R. 60(B)

motion for relief from judgment, in which he argues he exposed “Fraud upon the

Court, Through the Court, and by the Court.” Kinter asserts that the record herein

reveals “an appearance of bias, discrimination, and corruption in the Champaign

County Court * * * .”

{¶ 11} Regarding the events of December 17, 2010, according to Kinter, the

testimony of the principal at the hearing and her correspondence confirms that

Kinter, not Boltz, complied with the visitation schedule. Kinter further asserts, in

reliance upon the testimony of the school nurse, that Boltz lied about telling the 6

nurse to tell Kinter to stop using the children as pawns. Kinter asserts that the

court “will do everything it can to assist Ms. Boltz in carrying through with her

alienation efforts.” Kinter directs our attention to the Magistrate’s Decision and

Orders of February 9, 2009, which provides in part that Kinter “shall have parenting

time with the children in alternating weekends from Friday at the conclusion of the

children’s school day until Monday morning at the start of the children’s school day,”

and he argues that his visitation began at 2:00, when school concluded, and not

3:00.

{¶ 12} Kinter denies the court’s determination that he misunderstood the

visitation schedule; he notes that two weeks from December 17, 2010, when the

children were undisputably with him, was December 31, 2010, and that two weeks

from that date was January 14, 2011.

{¶ 13} In response to the trial court’s indication that filing a motion for

contempt is the proper vehicle to address visitation issues, Kinter argues that doing

so serves no value.

{¶ 14} Kinter directs our attention to the December 20, 2010, decision of the

trial court, which provides that he is indigent, and the journal entry of February 14,

2011, which to the contrary provides, “Based upon the information given, the Court

does not find that movant, Brian Kinter, is found to be indigent.” Kinter further

directs our attention to the correspondence from Marcy Bills requesting a deposit of

$860.00 for a transcript of the April 13, 2011 hearing. He asserts that the court

imputed minimum wage income to him for child support purposes, and that he pays

$547.47 a month “in child support and arrearages, in addition to transportation 7

costs of approximately $100 per month [and] it is impossible for the father to have

the finances to pay for the transcript of record within thirty days in which one has to

file an appeal.”

{¶ 15} Although Kinter asserts that he is unable to afford a transcript, our

review is limited to the record provided to us under App.R. 9. “The duty to provide

a transcript for appellate review falls upon the appellant. (Internal citations omitted).

An appellant bears the burden of showing prejudicial error by reference to matters nd in the record.” Shirley v. Kruse, 2 Dist. Greene No. 2006-CA-12, 2007-Ohio-193,

¶ 22. “When portions of the transcript necessary for resolution of assigned errors

are omitted from the record, we have nothing to pass upon and, thus, we have no

choice but to presume the validity of the lower court’s proceedings and affirm.”

Shirley, Id.

{¶ 16} If the transcript of proceedings is unavailable, App.R. 9(C) requires

appellant to prepare a statement of the evidence. “The Supreme Court of Ohio

has held, in the context of a civil case, that ‘a transcript is unavailable for purposes

of App.R.9(C) to an indigent appellant unable to bear the cost of providing a nd transcript.’” St. Germaine v. St. Germaine, 2 Dist. Greene No. 2009 CA 28,

2010-Ohio-3656, ¶ 14 n. 1, quoting State ex rel. Motley v. Capers (1986), 23 Ohio

St.3d 56, 491 N.E. 2d 311. “The narrative statement provided for in App.R. 9(C) is

an available, reliable alternative to an appellant unable to bear the cost of a

transcript.” State ex rel. Motley, at 58.

{¶ 17} Presuming the regularity of the proceedings below in the absence of a

transcript or statement of the evidence, Kinter’s assigned error is overruled. The 8

judgment of the trial court is affirmed.

GRADY, P.J. and HALL, J., concur.

Copies mailed to:

Brian L. Kinter Michael Edwards Ronald Tompkins Hon. Lori L. Reisinger