In re E.C.

2014 Ohio 4340

Opinion

[Cite as In re E.C., 2014-Ohio-4340.]

IN THE COURT OF APPEALS OF OHIO SIXTH APPELLATE DISTRICT LUCAS COUNTY

In re E.C., A.C. Court of Appeals No. L-14-1085

Trial Court No. 13232242

DECISION AND JUDGMENT

Decided: September 26, 2014

*****

Gary L. Smith, for appellant.

Alan J. Lehenbauer, for appellee.

PIETRYKOWSKI, J.

{¶ 1} This accelerated appeal is before the court following the April 15, 2014

judgment of the Lucas County Court of Common Pleas, Juvenile Division, which denied

appellant-respondent’s objections to the magistrate’s decision and approved the

mediation agreement of the parties allowing visitation and companionship between the appellant-respondent’s minor children and their paternal grandmother. Because we find

that the mediation agreement resolved the dispute between the parties, we affirm.

{¶ 2} This action commenced on April 24, 2013, with the petition to establish

visitation and companionship rights filed by appellee-petitioner, paternal grandmother of

E.C., born in 2010, and A.C., born in 2011, following the death of their father in 2012.

Appellant opposed the petition first arguing that R.C. 3109.11, providing visitation to

grandparents when the parent is deceased, is unconstitutional as applied to the facts of the

case. Alternatively, appellant argued that appellee’s right to visitation, if such right were

established, should be limited to a few hours per month and conducted according to

respondent’s schedule and conditions.

{¶ 3} On August 19, 2013, the matter proceeded to a hearing on the petition. On

September 16, 2013, the magistrate found in favor of appellee and granted visitation

starting with Sundays only at a neutral location for a limited duration and ultimately

building up to the second weekend of each month from Saturday at 9:00 a.m. until

Sunday at 5 p.m. and Christmas Eve from 10 a.m. until 8 p.m. Appellant filed objections

to the magistrate’s decision.

{¶ 4} While the objections were pending, the parties entered into an interim

mediation agreement. The agreement provided for four supervised visitation dates and

stated that the parties would attend a second mediation on March 7, 2014. The agreement

was approved by the court and filed into the record on February 13, 2014.

2. {¶ 5} Following the second mediation, an agreement was filed with and approved

by the court. The mediation report indicated that the agreement was a “complete”

agreement between the parties. The agreement provided that appellee be granted

unsupervised visitation on the third weekend of each month from 3:00 p.m. Saturday

until 5:00 p.m. Sunday. If a holiday or one of the children’s birthday was that weekend,

visitation would be held on the second weekend of the month. The agreement was signed

by the parties and appellant’s attorney and provided, in part:

BY SIGNING BELOW, PARTIES AGREE THAT THIS

AGREEMENT IS FAIR, EQUITABLE, AND IN THE BEST INTEREST

OF THE CHILD(REN). PARTIES SUBMIT THEIR AGREEMENT TO

THE COURT FOR APPROVAL. FURTHER, PARTIES

ACKNOWLEDGE AND UNDERSTAND THAT THEY ARE BOUND

BY THE TERMS OF THIS AGREEMENT UNLESS OTHERWISE

MODIFIED BY COURT ORDER. (Emphasis in original.)

{¶ 6} On April 11, 2014, the trial court denied appellant’s objections to the

magistrate’s decision finding that based upon the mediation agreement, the objections

were moot. On April 15, 2014, the court approved the agreement of the parties and found

that the agreement was in the best interests of the children. This appeal followed and

appellant raises the following two assignments of error:

I. The trial court’s application of O.R.C. Section 3109.11 when

applied to the facts of this case is an unconstitutional infringement upon

3. appellant’s fundamental liberty interest in the care, custody and control of

her children.

II. The trial court erred in declaring the respondent’s objection to

the magistrate’s decision as being moot.

{¶ 7} We will first address appellant’s second assignment of error. Appellant

argues that the trial court erred when it found that the mediation agreement resolved the

dispute between the parties. In this assignment of error, appellant asserts that she only

entered into the agreement to prevent the court from imposing a less favorable schedule.

Appellant claims that she “clearly stated on several occasions” that she intended to appeal

an unfavorable decision.

{¶ 8} As set forth above, the mediation agreement signed by appellant clearly

stated that she agreed to be bound by the terms of the agreement; there is no evidence in

the record of a contrary intent or belief. She was also aware that only the court could

modify the order. Further, the trial court, in finding that the agreement was in the best

interest of the children, had before it the magistrate’s decision as well as the transcript

from the August 19, 2013 hearing. Accordingly, we cannot say that the trial court erred

when it found the objections moot and further found the agreement to be in the best

interest of the children. Appellant’s second assignment of error is not well-taken.

{¶ 9} Appellant’s first assignment of error argues that the grandparent visitation

statute, R.C. 3109.11, is unconstitutional as applied to the facts of this case. Appellant

4. specifically contends that the court failed to give “special weight” to her wishes regarding

the petition as required under the statute.

{¶ 10} We first note that the magistrate did, in her judgment entry, plainly state

that under R.C. 3109.11, in considering the best interests of the children, the court was

“required to give special consideration or weight to the wishes and concerns of the

child/ren’s parent concerning that relative visitation.” The magistrate then specifically

found that appellant was withholding visitation not based on the children’s best interests

but due to “anger and vindictiveness.”

{¶ 11} Following the decision, appellant entered into the mediation agreement

which provided that the signed agreement was in the best interest of the children. Based

on these facts, appellant cannot now complain that the court unconstitutionally failed to

give “special weight” to her wishes in determining the best interests of her children.

Accordingly, appellant’s first assignment of error is not well-taken.

{¶ 12} On consideration whereof, we find that appellant was not prejudiced or

prevented from having a fair proceeding and the judgment of the Lucas County Court of

Common Pleas, Juvenile Division, is affirmed. Pursuant to App.R. 24, appellant is

ordered to pay the costs of this appeal.

Judgment affirmed.

5. In re E.C. C.A. No. L-14-1085

A certified copy of this entry shall constitute the mandate pursuant to App.R. 27. See also 6th Dist.Loc.App.R. 4.

Mark L. Pietrykowski, J. _______________________________ JUDGE Stephen A. Yarbrough, P.J. _______________________________ James D. Jensen, J. JUDGE CONCUR. _______________________________ JUDGE

This decision is subject to further editing by the Supreme Court of Ohio’s Reporter of Decisions. Parties interested in viewing the final reported version are advised to visit the Ohio Supreme Court’s web site at: http://www.sconet.state.oh.us/rod/newpdf/?source=6.

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