Jamison v. Massey

2018 Ohio 3034

• Court: Ohio Court of Appeals
• Decided: August 1, 2018
• Docket: CT2018-0027
• Status: Published

Opinion

[Cite as Jamison v. Massey, 2018-Ohio-3034.]

COURT OF APPEALS MUSKINGUM COUNTY, OHIO FIFTH APPELLATE DISTRICT

JOHN W. JAMISON, IV : JUDGES: : Hon. W. Scott Gwin, P.J. Plaintiff-Appellant : Hon. Patricia A. Delaney, J. : Hon. Earle E. Wise, Jr., J. -vs- : : ANNA M. MASSEY : Case No. CT-2018-0027 : Defendant-Appellee : OPINION

CHARACTER OF PROCEEDING: Appeal from the Court of Common Pleas, Domestic Relations Division, Case No. DE2017-0496

JUDGMENT: Affirmed

DATE OF JUDGMENT: July 30, 2018

APPEARANCES:

For Plaintiff-Appellant For Defendant-Appellee

JOHN W. JAMISON, IV, Pro Se HERBERT W. BAKER Inmate #716112 301 Main Street Madison Correctional Institution P.O. Box 400 P.O. Box 740 Zanesville, OH 43702-0400 London, OH 43140-0740 Muskingum County, Case No. CT-2018-0027 2

Wise, Earle, J.

{¶ 1} Plaintiff-Appellant, John W. Jamison, IV, appeals the April 5, 2018 decision

of the Court of Common Pleas of Muskingum County, Ohio, Domestic Relations Division,

denying in part his request for parenting time with his minor child. Defendant-Appellee is

the child's mother, Anna M. Massey.1

FACTS AND PROCEDURAL HISTORY

{¶ 2} Appellant and appellee have a child together, E.J., born February 24, 2010.

The parties were never married. Paternity was established in the state of Florida in June

2011. All parties currently reside in Ohio.

{¶ 3} In June 2015, appellant was incarcerated on drug trafficking convictions.

His expected release date is in early November 2018.

{¶ 4} On June 27, 2017, appellant filed a complaint for parentage, allocation of

parental rights and responsibilities, and parenting time. Appellant sought video visits,

telephone calls, and physical visits with the minor child during his incarceration. Appellant

also sought a shared parenting plan upon his release from prison.

{¶ 5} A hearing before a magistrate was held on January 29, 2018. Appellant

"appeared" telephonically. By decision filed February 1, 2018, the magistrate noted the

parties agreed that appellee would be designated the child's residential parent and legal

custodian; therefore, the only remaining issue was parenting time with the child. The

magistrate determined appellant would be permitted to communicate with the minor child

only in writing.

1We note appellee's brief fails to conform to App.R. 16(A)(1)-(4). Nevertheless, this court read and considered it. Muskingum County, Case No. CT-2018-0027 3

{¶ 6} Appellant filed objections, but did not file a transcript of the hearing. By

judgment entry filed April 5, 2018, the trial court denied the objections, and approved and

adopted the magistrate's decision.

{¶ 7} Appellant filed an appeal and this matter is now before this court for

consideration. Assignments of error are as follows:

I

{¶ 8} "THE TRIAL COURT ACTED CONTRARY TO THE BEST INTEREST OF

MINOR CHILD, [E.M.J.], WHEN IT DENIED MR. JOHN W. JAMISON, IV IN-PERSON

VISITS, VIDEO VISITS AND TELEPHONIC CONTACT WITH APPELLANT'S SON

WHILE HE IS INCARCERATED."

II

{¶ 9} "THE TRIAL COURT ACTED CONTRARY TO THE BEST INTEREST OF

MINOR CHILD [E.M.J.], WHEN IT DENIED MR. JOHN W. JAMISON, IV A CHANCE TO

BUILD A BONDING RELATIONSHIP DURING THE REMAINING TIME MR. JOHN W.

JAMISON, IV HAS LEFT OF INCARCERATION."

I, II

{¶ 10} In his two assignments of error, appellant claims the trial court erred in

denying him in-person communications with his minor child during his incarceration and

denying him a chance to build a bonding relationship with the minor child during the

remaining time of his incarceration. We disagree.

{¶ 11} R.C. 3109.12(B) permits a trial court to grant parenting time rights to the

acknowledged father of a child born to an unmarried woman if it is in the best interest of Muskingum County, Case No. CT-2018-0027 4

the child. Factors to be considered include, but are not limited to, sixteen factors set forth

in R.C. 3109.051(D). Pertinent to the magistrate/trial court's decisions are the following:

(1) The prior interaction and interrelationships of the child with the

child's parents, siblings, and other persons related by consanguinity or

affinity, and with the person who requested companionship or visitation if

that person is not a parent, sibling, or relative of the child;

(2) The geographical location of the residence of each parent and

the distance between those residences, and if the person is not a parent,

the geographical location of that person's residence and the distance

between that person's residence and the child's residence;

(4) The age of the child;

(10) Each parent's willingness to reschedule missed parenting time

and to facilitate the other parent's parenting time rights, and with respect to

a person who requested companionship or visitation, the willingness of that

person to reschedule missed visitation;

(12) Whether the residential parent has continuously and willfully

denied the other parent's right to parenting time in accordance with an order

of the court.

{¶ 12} In his decision filed February 1, 2018, the magistrate found the following on

these respective factors: Muskingum County, Case No. CT-2018-0027 5

(1) [E.] was born February 24, 2010. He has continuously lived with

his mother since birth. The parties did not reside together at anytime after

the child's birth. John Jamison has had very brief contact with the child on

about four occasions, the most recent of which was on December 26, 2013.

The child has even less contact with John Jamison's extended family

members.

(2) Ann Massey and the child reside in Muskingum County, Ohio.

John Jamison is presently incarcerated in the Marion Correctional Institution

in London, Ohio. His expected release date is in November 2018.

(4) [E.] is six years of age.2

(10) Anna Massey opposes parenting time between the child and

John Jamison.

(12) No parenting time order exists. Consequently, it would be

impossible for Anna Massey to have denied John Jamison's parenting time

in accordance with a court order.

{¶ 13} No evidence was presented pertaining to the other factors listed in R.C.

3109.051(D).

{¶ 14} The magistrate concluded the following:

2We note at the time of the hearing, the minor child was seven years old, turning eight twenty-three days after the filing of the magistrate's decision. Muskingum County, Case No. CT-2018-0027 6

Every child is entitled to have a relationship with his or her parents.

Where a healthy parent-child relationship already exists, it is probably in a

child's best interest to maintain in-person, video, and telephonic contact with

his or her nonresidential parent even if the parent is incarcerated, so as [to]

maintain their existing relationship. But [E.] has not had the opportunity to

form any type of relationship with his father. There is no relationship to

maintain. He is six years of age and has interacted with his father for very

short periods of time on only about four occasions, the most recent of which

was in December 2013 when he was only a toddler. It would be detrimental

to him to begin the necessarily long and gradual process of establishing a

relationship with his father by compelling him to visit his father at a state

penal institution. For the same reason, requiring [E.] to participate in video

or telephonic communication with his father would do nothing to facilitate

the formation of a parent-child relationship between them.

Therefore, Anna Massey is designated the residential parent and

legal custodian of [E.J.] (DOB 02/24/2010). John Jamison, IV is designated

as the child's nonresidential parent. Until further order, John Jamison shall

be permitted to communicate with the minor child only in writing. Anna

Massey shall permit the child to receive, read, and retain any written

communication from John Jamison.

Mr. Jamison is scheduled to be released from incarceration in

November 2018. At that time he can move the Court to enter such orders Muskingum County, Case No. CT-2018-0027 7

as may be in the child's best interest, including orders that facilitate the

gradual process of establishing a relationship with his son.

{¶ 15} Appellant filed objections to these findings, but did not file a transcript of the

magistrate's hearing for the trial court's review. Civ.R. 53(D)(3)(b)(iv) states:

Waiver of right to assign adoption by court as error on appeal.

Except for a claim of plain error, a party shall not assign as error on appeal

the court's adoption of any factual finding or legal conclusion, whether or

not specifically designated as a finding of fact or conclusion of law under

Civ.R. 53(D)(3)(a)(ii), unless the party has objected to that finding or

conclusion as required by Civ.R. 53(D)(3)(b).

{¶ 16} Civ.R. 53(D)(3)(b)(iii) states:

Objection to magistrate's factual finding; transcript or affidavit. An

objection to a factual finding, whether or not specifically designated as a

finding of fact under Civ.R. 53(D)(3)(a)(ii), shall be supported by a transcript

of all the evidence submitted to the magistrate relevant to that finding or an

affidavit of that evidence if a transcript is not available. With leave of court,

alternative technology or manner of reviewing the relevant evidence may

be considered. The objecting party shall file the transcript or affidavit with

the court within thirty days after filing objections unless the court extends Muskingum County, Case No. CT-2018-0027 8

the time in writing for preparation of the transcript or other good cause. If a

party files timely objections prior to the date on which a transcript is

prepared, the party may seek leave of court to supplement the objections.

{¶ 17} As explained by the Supreme Court of Ohio in Goldfuss v. Davidson, 79

Ohio St.3d 116, 679 N.E.2d 1099, syllabus:

In appeals of civil cases, the plain error doctrine is not favored and

may be applied only in the extremely rare case involving exceptional

circumstances where error, to which no objection was made at the trial

court, seriously affects the basic fairness, integrity, or public reputation of

the judicial process, thereby challenging the legitimacy of the underlying

judicial process itself.

{¶ 18} In Lesh v. Moloney, 10th Dist. Franklin No. 11AP-353, 2011-Ohio-6565, ¶

11, our colleagues from the Tenth District stated:

In the absence of a transcript or an affidavit, the trial court is required

to accept the magistrate's findings of fact and may only determine the legal

conclusions drawn from those facts. * * * Similarly, because plaintiff failed

to file a transcript of the hearing with the trial court, our review is limited to

whether the trial court correctly applied the law to the facts set forth in the

magistrate's decision. * * *. (Citations omitted.) Muskingum County, Case No. CT-2018-0027 9

{¶ 19} Accordingly, we review appellant's assignments of error only to determine

whether the trial court committed plain error.

{¶ 20} In its April 5, 2018 judgment entry finding the magistrate's decision

contained no error of law, the trial court reviewed appellant's objections and ruled as

follows:

Plaintiff asserts that the Magistrate was in error finding Plaintiff and

his son had not formed any type of relationship. Again, no transcript of that

evidence was provided but the Court notes that in Plaintiff's objection he is

not objecting to the conclusion of the Magistrate but is actually admitting no

relationship exists asserting that he had attempted on numerous times to

build a bonding relationship but was denied by the child's mother.

Plaintiff next asserts that the Magistrate was in error finding a

detriment to the minor child to commence building a relationship with that

child while Plaintiff was still incarcerated. This conclusion by the Magistrate

is a reasonable conclusion based upon the facts that were presented and

not controverted in that the child, age 6, has had only about four short

periods of contact with the Plaintiff the most recent being December 2013.

The same reasoning applies to Plaintiff's objection to not being permitted to

participate in video or telephonic communication with the minor child while

he is still incarcerated. Permitting communication in written form again,

based upon evidence that is not disputed in this matter, is not unreasonable

for a child who is six years old. Written correspondence could include cards, Muskingum County, Case No. CT-2018-0027 10

photographs and other forms of communication that would be clearly

understood by a six year old.

The omission of a standard parenting time order being contained in

the Magistrate's Decision is appropriate given the uncertainty of Plaintiff's

circumstances upon release in November and his ability upon release to file

further motions to address the issue of parenting time.

With regard to the failure by Defendant to permit communication

between Plaintiff and his son by way of calling, or visiting, Plaintiff has

addressed that issue in his objections stating that "no court order has been

given."

{¶ 21} The magistrate found appellant and the minor child have had brief contact

over the years. Appellant is not precluded from communicating with the child as he was

granted the ability to communicate with the child in writing. Once appellant is released

from prison in November 2018, less than four months from now, he can move the trial

court for additional orders to facilitate the gradual process of establishing a relationship.

{¶ 22} Upon review, we find the magistrate and trial court properly considered the

factors regarding parenting time set forth in R.C. 3109.051(D) and 3109.12(B). We do

not find any plain error in the trial court adopting the magistrate's decision. Muskingum County, Case No. CT-2018-0027 11

{¶ 23} The judgment of the Court of Common Pleas of Muskingum County, Ohio,

Domestic Relations Division is hereby affirmed.

By Wise, Earle, J.

Gwin, P.J. and

Delaney, J. concur.

EEW/db 712