In Re Thrush

Ohio Court of Appeals

In Re Thrush

541 N.E.2d 119, 44 Ohio App. 3d 40, 1988 Ohio App. LEXIS 3201

CourtOhio Court of Appeals

DecidedAugust 1, 1988

Docket88AP020013

StatusPublished

Cited by5 cases

This text of 541 N.E.2d 119 (In Re Thrush) is published on Counsel Stack Legal Research, covering Ohio Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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In Re Thrush, 541 N.E.2d 119, 44 Ohio App. 3d 40, 1988 Ohio App. LEXIS 3201 (Ohio Ct. App. 1988).

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Opinions

Milligan, J.

The father filed a timely notice of appeal of the January 6, 1988 judgment of the Tuscarawas County Court of Common Pleas, modifying visitation and granting supervised visitation.

He assigns a single error:

“The trial court has failed to furnish appellant a statement of the court’s findings of fact and conclusions of law, as required by Civil Rule 52. Such failure prevents the appellant from knowing the basis for his failure on the merits and thus what grounds for appeal he may have.”

If the appellant is entitled to separate written findings of fact and conclusions of law pursuant to Civ. R. 52 as interpreted by the courts, it is error and the judgment should be vacated and the cause remanded for further proceedings. Compare Werden v. Crawford (1982), 70 Ohio St. 2d 122, 24 O.O. 3d 196, 435 N.E. 2d 424, holding that Civ. R. 52 does apply to the ancillary motion for change of custody.

The propriety of the sole assignment of error depends for its integrity upon the legal right of a party adversely affected by a visitation modification judgment to separate findings of fact and conclusions of law. We find no such authority.

Visitation oversight and control by the trial court is significantly different than the continuing jurisdiction to modify and change custody. Thus, proof of changed circumstances and conditions is not a prerequisite to modification of visitation as it is for a change of custody. Roudebush v. Roudebush (1984), 20 Ohio App. 3d 380, 20 OBR 485, 486 N.E. 2d 849. See, also, Appleby v. Appleby (1986), 24 Ohio St. 3d 39, 24 OBR 81, 492 N.E. 2d 831, and 14 West’s Ohio Practice: Family Law (1975), Section 4812, at 469 et seq. and (Supp. 1988), at 179 et seq.

We conclude that neither a reading of Civ. R. 52 nor the above-cited authority impels the trial court to state separate findings of fact and conclusions of law when the issue resolved is one relative to visitation only.

For the above reason, the single assignment of error is overruled.

There being no other assigned errors to the January 6, 1988 judgment, said judgment is affirmed.

Judgment affirmed.

Putman, P.J., concurs separately. Wise, J., dissents.

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Milligan, J.

The father filed a timely notice of appeal of the January 6, 1988 judgment of the Tuscarawas County Court of Common Pleas, modifying visitation and granting supervised visitation.

He assigns a single error:

“The trial court has failed to furnish appellant a statement of the court’s findings of fact and conclusions of law, as required by Civil Rule 52. Such failure prevents the appellant from knowing the basis for his failure on the merits and thus what grounds for appeal he may have.”

If the appellant is entitled to separate written findings of fact and conclusions of law pursuant to Civ. R. 52 as interpreted by the courts, it is error and the judgment should be vacated and the cause remanded for further proceedings. Compare Werden v. Crawford (1982), 70 Ohio St. 2d 122, 24 O.O. 3d 196, 435 N.E. 2d 424, holding that Civ. R. 52 does apply to the ancillary motion for change of custody.

The propriety of the sole assignment of error depends for its integrity upon the legal right of a party adversely affected by a visitation modification judgment to separate findings of fact and conclusions of law. We find no such authority.

Visitation oversight and control by the trial court is significantly different than the continuing jurisdiction to modify and change custody. Thus, proof of changed circumstances and conditions is not a prerequisite to modification of visitation as it is for a change of custody. Roudebush v. Roudebush (1984), 20 Ohio App. 3d 380, 20 OBR 485, 486 N.E. 2d 849. See, also, Appleby v. Appleby (1986), 24 Ohio St. 3d 39, 24 OBR 81, 492 N.E. 2d 831, and 14 West’s Ohio Practice: Family Law (1975), Section 4812, at 469 et seq. and (Supp. 1988), at 179 et seq.

We conclude that neither a reading of Civ. R. 52 nor the above-cited authority impels the trial court to state separate findings of fact and conclusions of law when the issue resolved is one relative to visitation only.

For the above reason, the single assignment of error is overruled.

There being no other assigned errors to the January 6, 1988 judgment, said judgment is affirmed.

Judgment affirmed.

Putman, P.J., concurs separately. Wise, J., dissents.

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541 N.E.2d 119, 44 Ohio App. 3d 40, 1988 Ohio App. LEXIS 3201, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-thrush-ohioctapp-1988.

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