Szymczak v. Tanner

2013 Ohio 4277

• Court: Ohio Court of Appeals
• Decided: September 30, 2013
• Docket: 12CA0092-M
• Status: Published

Opinion

[Cite as Szymczak v. Tanner, 2013-Ohio-4277.]

STATE OF OHIO ) IN THE COURT OF APPEALS )ss: NINTH JUDICIAL DISTRICT COUNTY OF MEDINA )

ANNE K. SZYMCZAK C.A. No. 12CA0092-M

Appellee

v. APPEAL FROM JUDGMENT ENTERED IN THE ANDREW N. TANNER COURT OF COMMON PLEAS COUNTY OF MEDINA, OHIO Appellant CASE No. 01 DR 0651

DECISION AND JOURNAL ENTRY

Dated: September 30, 2013

WHITMORE, Judge.

{¶1} Appellant, Andrew Tanner (“Husband”), appeals from the judgment of the

Medina County Court of Common Pleas, Domestic Relations Division. This Court affirms.

I

{¶2} Husband and Anne Szymczak (“Wife”) were divorced in 2002. They have one

minor child, D.T., from the marriage. A shared parenting plan was entered into as part of their

divorce, but this plan was terminated in 2005 because there was too much animosity between

Husband and Wife. At that time, the parties agreed that Husband would be designated as the

residential parent and that the parties would comply with a standard parenting time order.

Szymczak v. Tanner, 9th Dist. Medina No. 10CA0101-M, 2012-Ohio-540, ¶ 2.

{¶3} In 2007, Wife’s parenting time was restricted because “the trial court found that

[she] was exhibiting extreme animosity toward [Husband] in the presence of D.T. and that her

inappropriate behavior posed a threat to his emotional well-being.” Szymczak at ¶ 3. In June 2

2008, the parties entered into an agreement to restore Wife’s parenting time and, ultimately, to

return to the standard parenting time order. In 2009, having still not resumed standard parenting

time, Wife filed a motion to modify her parenting time. In August 2010, after trial, the court

denied Wife’s motion. Wife appealed and this Court reversed. Szymczak at ¶ 26.

{¶4} On remand, the trial court entered an order granting Wife’s motion and reinstating

the standard parenting time order. Husband now appeals and raises five assignments of error for

our review. To facilitate our analysis, we combine several assignments of error.

II

Assignment of Error Number One

THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION BY GRANTING APPELLEE STANDARD PARENTING TIME RATHER THAN THE PARENTING TIME SCHEDULE SHE REQUESTED, AND THE PARTIES’ (SIC) AGREED UPON, IN THE JOURNAL ENTRY OF JUNE 13, 2008.

Assignment of Error Number Three

THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION BY FAILING TO DETERMINE IF APPELLEE HAD MET THE TERMS OF THE JUNE 13, 2008 JOURNAL ENTRY REQUIRING APPELLEE TO ATTEND INDIVIDUAL THERAPY AND CO-PARENTING THERAPY PRIOR TO GRANTING HER STANDARD PARENTING TIME WITH THE CHILD.

Assignment of Error Number Five

THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION BY MODIFYING APPELLEE’S PARENTING TIME SCHEDULE WITHOUT FIRST DETERMINING THAT SUCH MODIFICATION WAS IN THE CHILD’S BEST INTEREST, AND WITHOUT ADDRESSING THE STATUTORY FACTORS SET FORTH IN R.C. 3109.051.

{¶5} In his first, third, and fifth assignments of error, Husband argues that the court

erred in granting Wife standard parenting time because: (1) it is contra to the parties’ agreement

to gradually restore her parenting time; (2) the court did not determine that Wife was in

compliance with the therapy requirements of the parties’ agreement; and (3) the court did not 3

determine the standard order was in the child’s best interest, using factors set forth in R.C.

3109.051.

{¶6} The law of the case doctrine “provides that the decision of a reviewing court in a

case remains the law of that case on the legal questions involved for all subsequent proceedings

in the case at both trial and reviewing levels.” Nolan v. Nolan, 11 Ohio St.3d 1, 3 (1984). This

is necessary “to ensure consistency of results in a case, to avoid endless litigation by settling the

issues, and to preserve the structure of superior and inferior courts as designed by the Ohio

Constitution.” Id. “Absent extraordinary circumstances, such as an intervening decision by the

Supreme Court, an inferior court has no discretion to disregard the mandate of a superior court in

a prior appeal in the same case.” Id. at syllabus.

{¶7} In Wife’s prior appeal in this case, she argued “that the trial court erred by failing

to grant her motion to remove the restrictions from her parenting time with her child and to

reinstate a standard order.” Szymczak, 2012-Ohio-540, at ¶ 10. We agreed. We concluded that

there was no evidence to justify the continued deviation from the standard order of parenting

time and held that the court “erred in denying [Wife’s] motion to remove the restrictions on her

parenting time and reinstate a standard order.” Szymczak at ¶ 25. We remanded the case to the

trial court for proceedings consistent with our opinion. After a status conference hearing, the

trial court issued an order granting Wife’s motion to remove the restrictions on her parenting

time and reinstated the standard order.

{¶8} Husband now argues that the trial court erred by reinstating the standard parenting

order because Wife had not yet complied with the terms of the parties’ agreement and the trial

court did not find that the standard parenting plan was in the best interest of the child. However,

in the prior appeal in this case, we decided that there was no evidence to justify a continued 4

deviation from the standard order of parenting time. Id. Based on our decision in that appeal,

Husband’s arguments are precluded by the law of the case doctrine. See Nolan, 11 Ohio St.3d at

3 (“[T]he decision of a reviewing court in a case remains the law of that case on the legal

questions involved for all subsequent proceedings in the case at both trial and reviewing

levels.”).

{¶9} Husband’s first, third, and fifth assignments of error are overruled.

Assignment of Error Number Two

THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION BY FAILING TO CONDUCT AN EVIDENTIARY HEARING PRIOR TO MODIFYING APPELLEE’S PARENTING TIME SCHEDULE.

Assignment of Error Number Four

THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION BY GRANTING APPELLEE STANDARD PARENTING TIME PRIOR TO APPOINTING A GUARDIAN AD LITEM FOR THE CHILD PER APPELLANT’S PENDING REQUESTS FOR SUCH APPOINTMENT.

{¶10} In his second assignment of error, Husband argues that the court erred by not

conducting a hearing to determine if the standard parenting order was in the best interest of the

child. In his fourth assignment of error, Husband argues that the court erred in granting Wife

standard parenting time without ruling on his motion to appoint a GAL. In essence, Husband’s

second and fourth assignments of error argue that the court erred in failing to hear additional

evidence to determine the best interest of the child before entering an order for standard

parenting time. We disagree.

{¶11} In our prior decision, we concluded that there was no evidence to justify a

continued deviation from the standard order and held that the trial court erred in denying Wife’s

motion to reinstate the standard order. Szymczak, 2012-Ohio-540, at ¶ 25. We remanded for

further proceedings consistent with our opinion. Id. at ¶ 26. Nothing in our previous decision 5

required the trial court to hear additional evidence, nor did we did limit the scope of the remand

to prohibit the trial court from doing so.

{¶12} “When a judgment is reversed and remanded for further proceedings, the trial

court may take up the matter at the point where the first error was committed.” In re C.P., 187

Ohio App.3d 246, 2010-Ohio-346, ¶ 19 (10th Dist.). “The effect of a reversal and an order of

remand is to reinstate the case to the docket of the trial court in precisely the same condition that

obtained before the error occurred.” In re G.N., 176 Ohio App.3d 236, 2008-Ohio-1796, ¶ 11

(12th Dist.), quoting Wilson v. Kreusch, 111 Ohio App.3d 47, 51 (2d Dist.1996).

{¶13} Therefore, on remand, the case was reinstated at the point at which both parties

had rested after presenting their evidence on Wife’s motion to modify parenting time. A

decision to hear additional evidence after the parties have rested is within the discretion of the

trial court. Mills v. Mills, 11th Dist. Trumbull No. 2002-T-0102, 2003-Ohio-6676, ¶ 48. An

abuse of discretion indicates that a trial court’s attitude was unreasonable, arbitrary, or

unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219 (1983).

{¶14} In September 2009, Wife filed her motion to modify her parenting time. A trial

was held in August 2010, and, on September 7, 2010, the court denied Wife’s motion. Wife

appealed, and, on February 13, 2012, this Court reversed and remanded. Subsequently, Husband

filed several motions in this Court which prevented the trial court from regaining jurisdiction for

several more months. Ultimately, the trial court entered a standard parenting time order on

October 9, 2012, more than three years after Wife filed her motion.

{¶15} At a status conference on remand, Husband requested that the court “set [the

matter] for a full hearing, reappoint the Guardian, [and] give the Guardian a reasonable amount

of time to do an investigation” before determining the best interest of the child. Husband 6

acknowledged that if the court were to enter an order granting the standard parenting time, he

would be entitled to file a motion to modify, which would provide him the opportunity to re-

litigate the best interest of the child.

{¶16} We acknowledge that “a child’s best interest is such a ‘dynamic factual issue,’

[that] events [that] occur after a court’s initial decision may be important in assessing what is in a

child’s best interest following remand.” In re C.P., 187 Ohio App.3d 246, 2010-Ohio-346, at ¶

23, quoting In re D.J., 2d Dist. Montgomery No. 21666, 2006-Ohio-6304, ¶ 20. However,

Husband’s argument for a full hearing was not that some circumstance had changed, but that our

decision “dramatically changed the law in this jurisdiction” and unexpectedly shifted the burden

of proof from Wife to him. We disagree that Szymczak v. Tanner, 9th Dist. Medina No.

10CA0101-M, 2012-Ohio-540, was a change in the law.

{¶17} In light of the lengthy period of time that Wife’s motion was pending and the fact

that both parties had a full and fair opportunity to present evidence and to be heard on the matter,

we cannot conclude that the trial court abused its discretion in refusing to hear additional

evidence before entering an order consistent with this Court’s remand. Husband’s second and

fourth assignments of error are overruled.

III

{¶18} Husband’s assignments of error are overruled. The judgment of the Medina

County Court of Common Pleas, Domestic Relations Division, is affirmed.

Judgment affirmed.

There were reasonable grounds for this appeal. 7

We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Medina, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.

Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

Costs taxed to Appellant.

BETH WHITMORE FOR THE COURT

MOORE, P. J. HENSAL, J. CONCUR.

APPEARANCES:

JAMES L. LANE, Attorney at Law, for Appellant.

DAVID H. FERGUSON, Attorney at Law, for Appellee.