[Cite as In re J.M., 2013-Ohio-4179.]
COURT OF APPEALS MUSKINGUM COUNTY, OHIO FIFTH APPELLATE DISTRICT
IN THE MATTER OF: J.M. : JUDGES: : Hon. W. Scott Gwin, P.J. : Hon. Sheila G. Farmer, J. : Hon. Patricia A. Delaney, J. : : : Case No. CT2013-0009 : : OPINION
CHARACTER OF PROCEEDING: Appeal from the Court of Common Pleas, Juvenile Division, Case No. 20830022
JUDGMENT: Affirmed
DATE OF JUDGMENT: September 23, 2013
APPEARANCES:
For Appellant Rebecca McManes For Appellee Erin Shrigley
JOHN D. WEAVER HERBERT W. BAKER 542 South Drexel Avenue P.O. Box 400 Bexley, OH 43209 Zanesville, OH 43702-0400 Muskingum County, Case No. CT2013-0009 2
Farmer, J.
{¶1} On May 5, 2011, an agreed entry was filed wherein appellant, Rebecca
McManes, was named legal custodian of J.M. born July 17, 2007. Appellant is the
maternal grandmother of the child. Appellee, Erin Shrigley, the child's paternal aunt,
was granted visitation rights.
{¶2} Disputes over visitation arose and the parties filed contempt motions
against each other. On August 15, 2012, appellant filed a motion to modify visitation. A
hearing on all the outstanding motions was held on December 4, 2012. By entry filed
January 7, 2013, the trial court revised the visitation schedule.
{¶3} Appellant filed an appeal and this matter is now before this court for
consideration. Assignment of error is as follows:
I
{¶4} "THE TRIAL COURT DENIED APPELLANT DUE PROCESS OF LAW BY
DENYING APPELLANT AN OPPORTUNITY TO BE HEARD."
I
{¶5} Appellant claims the trial court erred in failing to afford her the opportunity
to present testimony on her motion to modify the visitation schedule. We disagree.
{¶6} On December 4, 2012, a hearing was held on appellant's motion to modify
visitation and a contempt motion against appellee, along with contempt motions filed by
appellee against appellant for failure to afford visitation. The trial court proceeded first
with the contempt motions filed by appellee. T. at 4. After the cross-examination of
appellant by appellee's counsel, the trial court permitted direct examination by her
attorney but stated "we can keep that [motion to modify] separate. Let's get these Muskingum County, Case No. CT2013-0009 3
contempt things out of the way." T. at 24. The trial court decided to bifurcate the
contempt motions from the motion to modify. Id. Appellee's attorney clarified that the
trial court desired bifurcation (T. at 25):
Attorney Baker: All right. Well Your Honor, the reason I am asking
this my next witness is going to be my client. I won't ask her questions
about the modification then if that's the way you want to do it. That's the
reason I am asking the question.
Judge Gormley: Well yeah, when your client testifies, let's get the
contempt part of this stuff out of the way and then she can come back and
testify about the modification.
Attorney Baker: All right, that's all I wanted to know. Thank you
Your Honor.
{¶7} The testimony following the bifurcation decision was limited to the
contempt motions. Appellant's defense to appellee's allegation that she was not
affording appellee visitation was that appellee was not exercising visitation rights but
rather her mother was. T. at 46-47. As a result, appellant believed she was justified in
denying visitation. Appellee's defense to appellant's allegation was that her mother
provided transportation, picking up the child for visitation, and she only missed
visitations when she was working or unable to be there. T. at 80-81. Muskingum County, Case No. CT2013-0009 4
{¶8} The testimony presented to the trial court was a litany of observed
visitations, unobserved visitations, failed visitations, and the methods used to attempt
visitations.
{¶9} During her direct examination, appellee testified she saw no reason to
modify the visitation schedule because the issues seemed to be resolved during the
summer of 2012, but did suggest some time changes. T. at 108-109. Appellant's
counsel objected because of the bifurcation order and the trial court ruled as follows (T.
at 110):
Attorney Russo: Your Honor, I am going to object to this line of
questioning. I think we are getting into modification of the visitation order
and it was my understanding we were initially addressing...
Judge Gormley: Well that's what I originally said but we are burning
up the clock and so if we are going to, if you want to get into modification
of visitation today we better get started on it because we only got forty five
minutes left to talk about it.
{¶10} Appellee saw the only need for change to be a half-hour adjustment on
the weekday visit. T. at 110-112. Appellee admitted that Wednesday evening
visitations were not with her, but with some members of her family. T. at 114.
Appellant's counsel cross-examined appellee on her actual personal visitation with the
child and the fact that she was not picking up the child for visitations. T. at 116-118,
124-126. Muskingum County, Case No. CT2013-0009 5
{¶11} At the conclusion of the testimony of both appellant and appellee, the trial
court asked appellant's counsel what she wanted relative to her motion to modify
visitation. T. at 134. Appellant and her counsel enumerated to the trial court appellant's
desires regarding modification. T. at 134-140. The trial court then specifically ordered
appellant's counsel to prepare in writing the specific changes appellant wanted and
appellee's counsel was to respond. T. at 141. The trial court suggested an entire
"rewrite" of the designation of "non-residential" parent to include appellee and her
extended family on the issue of visitation and appellee was to prepare a list of family
members. T. at 144-145. Appellant's counsel did not object to the trial court's
suggestion, but requested that the guardian ad litem be involved. T. at 146-147. The
trial court ordered the following (T. at 148):
Judge Gormley: And for the child. And for the child. Yes. All right,
that's all we are going to do today this morning on this matter. And you,
Mr. Russo you submit in writing your proposed, how you would like the
visitation order modified. Mr. Baker you can respond to that. I think seven
days would be reasonable enough. You don't need very much time on
this. Seven days, you respond in seven days. You give me your list in
seven days and you can respond to that. I mean if there is a person on
that list that your client for some reason, particularly undesirable, you can
let me know and I will consider whether that is a reasonable complaint,
you know? Muskingum County, Case No. CT2013-0009 6
{¶12} Appellant's counsel did not objection to this procedure. T. at 148-149.
Both parties complied with the trial court's directives. After the responses were filed, the
trial court modified the visitation schedule, basically adjusted the visitation schedule
according to appellee's wishes.
{¶13} We note appellant was present at the hearing and testified and was
represented by counsel. Appellant did not request a continuance or proffer or express a
desire to present additional evidence. Appellant was not denied due process. Braden
v. Braden, 8th Dist. Portage No. 2006-P-0028, 2006-Ohio-6878; Yeupell v. Yeupell, 6th
Dist. Williams No. WM-95-021, 1996 WL 302360 (June 7, 1996). Further, after a review
Free access — add to your briefcase to read the full text and ask questions with AI
[Cite as In re J.M., 2013-Ohio-4179.]
COURT OF APPEALS MUSKINGUM COUNTY, OHIO FIFTH APPELLATE DISTRICT
IN THE MATTER OF: J.M. : JUDGES: : Hon. W. Scott Gwin, P.J. : Hon. Sheila G. Farmer, J. : Hon. Patricia A. Delaney, J. : : : Case No. CT2013-0009 : : OPINION
CHARACTER OF PROCEEDING: Appeal from the Court of Common Pleas, Juvenile Division, Case No. 20830022
JUDGMENT: Affirmed
DATE OF JUDGMENT: September 23, 2013
APPEARANCES:
For Appellant Rebecca McManes For Appellee Erin Shrigley
JOHN D. WEAVER HERBERT W. BAKER 542 South Drexel Avenue P.O. Box 400 Bexley, OH 43209 Zanesville, OH 43702-0400 Muskingum County, Case No. CT2013-0009 2
Farmer, J.
{¶1} On May 5, 2011, an agreed entry was filed wherein appellant, Rebecca
McManes, was named legal custodian of J.M. born July 17, 2007. Appellant is the
maternal grandmother of the child. Appellee, Erin Shrigley, the child's paternal aunt,
was granted visitation rights.
{¶2} Disputes over visitation arose and the parties filed contempt motions
against each other. On August 15, 2012, appellant filed a motion to modify visitation. A
hearing on all the outstanding motions was held on December 4, 2012. By entry filed
January 7, 2013, the trial court revised the visitation schedule.
{¶3} Appellant filed an appeal and this matter is now before this court for
consideration. Assignment of error is as follows:
I
{¶4} "THE TRIAL COURT DENIED APPELLANT DUE PROCESS OF LAW BY
DENYING APPELLANT AN OPPORTUNITY TO BE HEARD."
I
{¶5} Appellant claims the trial court erred in failing to afford her the opportunity
to present testimony on her motion to modify the visitation schedule. We disagree.
{¶6} On December 4, 2012, a hearing was held on appellant's motion to modify
visitation and a contempt motion against appellee, along with contempt motions filed by
appellee against appellant for failure to afford visitation. The trial court proceeded first
with the contempt motions filed by appellee. T. at 4. After the cross-examination of
appellant by appellee's counsel, the trial court permitted direct examination by her
attorney but stated "we can keep that [motion to modify] separate. Let's get these Muskingum County, Case No. CT2013-0009 3
contempt things out of the way." T. at 24. The trial court decided to bifurcate the
contempt motions from the motion to modify. Id. Appellee's attorney clarified that the
trial court desired bifurcation (T. at 25):
Attorney Baker: All right. Well Your Honor, the reason I am asking
this my next witness is going to be my client. I won't ask her questions
about the modification then if that's the way you want to do it. That's the
reason I am asking the question.
Judge Gormley: Well yeah, when your client testifies, let's get the
contempt part of this stuff out of the way and then she can come back and
testify about the modification.
Attorney Baker: All right, that's all I wanted to know. Thank you
Your Honor.
{¶7} The testimony following the bifurcation decision was limited to the
contempt motions. Appellant's defense to appellee's allegation that she was not
affording appellee visitation was that appellee was not exercising visitation rights but
rather her mother was. T. at 46-47. As a result, appellant believed she was justified in
denying visitation. Appellee's defense to appellant's allegation was that her mother
provided transportation, picking up the child for visitation, and she only missed
visitations when she was working or unable to be there. T. at 80-81. Muskingum County, Case No. CT2013-0009 4
{¶8} The testimony presented to the trial court was a litany of observed
visitations, unobserved visitations, failed visitations, and the methods used to attempt
visitations.
{¶9} During her direct examination, appellee testified she saw no reason to
modify the visitation schedule because the issues seemed to be resolved during the
summer of 2012, but did suggest some time changes. T. at 108-109. Appellant's
counsel objected because of the bifurcation order and the trial court ruled as follows (T.
at 110):
Attorney Russo: Your Honor, I am going to object to this line of
questioning. I think we are getting into modification of the visitation order
and it was my understanding we were initially addressing...
Judge Gormley: Well that's what I originally said but we are burning
up the clock and so if we are going to, if you want to get into modification
of visitation today we better get started on it because we only got forty five
minutes left to talk about it.
{¶10} Appellee saw the only need for change to be a half-hour adjustment on
the weekday visit. T. at 110-112. Appellee admitted that Wednesday evening
visitations were not with her, but with some members of her family. T. at 114.
Appellant's counsel cross-examined appellee on her actual personal visitation with the
child and the fact that she was not picking up the child for visitations. T. at 116-118,
124-126. Muskingum County, Case No. CT2013-0009 5
{¶11} At the conclusion of the testimony of both appellant and appellee, the trial
court asked appellant's counsel what she wanted relative to her motion to modify
visitation. T. at 134. Appellant and her counsel enumerated to the trial court appellant's
desires regarding modification. T. at 134-140. The trial court then specifically ordered
appellant's counsel to prepare in writing the specific changes appellant wanted and
appellee's counsel was to respond. T. at 141. The trial court suggested an entire
"rewrite" of the designation of "non-residential" parent to include appellee and her
extended family on the issue of visitation and appellee was to prepare a list of family
members. T. at 144-145. Appellant's counsel did not object to the trial court's
suggestion, but requested that the guardian ad litem be involved. T. at 146-147. The
trial court ordered the following (T. at 148):
Judge Gormley: And for the child. And for the child. Yes. All right,
that's all we are going to do today this morning on this matter. And you,
Mr. Russo you submit in writing your proposed, how you would like the
visitation order modified. Mr. Baker you can respond to that. I think seven
days would be reasonable enough. You don't need very much time on
this. Seven days, you respond in seven days. You give me your list in
seven days and you can respond to that. I mean if there is a person on
that list that your client for some reason, particularly undesirable, you can
let me know and I will consider whether that is a reasonable complaint,
you know? Muskingum County, Case No. CT2013-0009 6
{¶12} Appellant's counsel did not objection to this procedure. T. at 148-149.
Both parties complied with the trial court's directives. After the responses were filed, the
trial court modified the visitation schedule, basically adjusted the visitation schedule
according to appellee's wishes.
{¶13} We note appellant was present at the hearing and testified and was
represented by counsel. Appellant did not request a continuance or proffer or express a
desire to present additional evidence. Appellant was not denied due process. Braden
v. Braden, 8th Dist. Portage No. 2006-P-0028, 2006-Ohio-6878; Yeupell v. Yeupell, 6th
Dist. Williams No. WM-95-021, 1996 WL 302360 (June 7, 1996). Further, after a review
of appellant's motion to modify, it is clear that appellant's position was thoroughly vented
during the hearing and in her proposal to the trial court.
{¶14} Upon review, we conclude appellant, via her testimony during the hearing
and her proposal for modification of visitation, had a full hearing on her motion to
modify. With the assent by counsel to the trial court's procedures, we find no lack of
due process or a denial of any opportunity to be heard.
{¶15} The sole assignment of error is denied. Muskingum County, Case No. CT2013-0009 7
{¶16} The judgment of the Court of Common Pleas of Muskingum County, Ohio,
Juvenile Division is hereby affirmed.
By Farmer, J.
Gwin, P.J. and
Delaney, J. concur.
_______________________________ Hon. Sheila G. Farmer
_______________________________ Hon. W. Scott Gwin
_______________________________ Hon. Patricia A. Delaney
SGF/sg 903 [Cite as In re J.M., 2013-Ohio-4179.]
IN THE COURT OF APPEALS FOR MUSKINGUM COUNTY, OHIO
FIFTH APPELLATE DISTRICT
IN THE MATTER OF: J.M. : : : JUDGMENT ENTRY : : : : CASE NO. CT2013-0009
For the reasons stated in our accompanying Memorandum-Opinion, the
judgment of the Court of Common Pleas of Muskingum County, Ohio, Juvenile Division
is affirmed. Costs to appellant.
_______________________________ Hon. Sheila G. Farmer
_______________________________ Hon. W. Scott Gwin
_______________________________ Hon. Patricia A. Delaney