2022 Ohio 1744
Ohio Ct. App.2022Background
- Dwayne and Alecia Huston divorced in 2016; Alecia was designated the residential parent and Dwayne had supervised parenting time subject to counseling recommendations.
- Dwayne repeatedly filed motions to reallocate parental rights; prior motions were denied for lack of a change in circumstances (see previous appeal, Huston I).
- In May 2018 the trial court found Dwayne in contempt for providing certain information to the children, suspended his parenting time, and ordered counseling with Dr. Michael Smith and an anger-management assessment; the court later concluded Dwayne failed to comply with the counseling requirement.
- A magistrate held hearings in 2020 and declined to reinstate Dwayne’s parenting time; the trial court adopted the magistrate’s decision and overruled Dwayne’s objections on April 13, 2021.
- Dwayne, proceeding pro se, appealed from the April 13, 2021 entry raising eight consolidated assignments of error alleging judicial misconduct, malpractice by mental-health providers, and error in custody determinations.
- The Ninth District affirmed: it found many claims barred by res judicata or beyond the scope of the appeal, held the appeal frivolous, and awarded Alecia $2,690 in attorney’s fees under App.R. 23.
Issues
| Issue | Huston’s Argument | Alecia’s Argument | Held |
|---|---|---|---|
| Trial court’s April 13, 2021 order overruling objections to magistrate (parenting-time reinstatement) | Trial court ignored evidence, harmed children, and should have reinstated parenting time | Dwayne failed to assign any specific error to the April 13 entry; many complaints concern earlier orders | Overruled — appellant did not identify errors germane to the designated entry; many complaints were untimely or beyond this appeal’s scope (res judicata) |
| Alleged judicial misconduct / Code of Judicial Conduct violations | Court created conflicts of interest, acted with bias, and violated multiple judicial rules | Judicial-misconduct allegations are not properly raised here and were litigated in prior appeal | Overruled — such claims were previously decided or outside this Court’s jurisdiction; res judicata bars relitigation |
| Alleged malpractice / ethical violations by court-ordered mental-health providers | Providers failed professional standards; court should have reported them and acted to protect children | These claims were either previously raised or not properly presented in this appeal | Overruled — claims are barred or not properly before the Court; trial court’s adoption of the magistrate’s factual findings stands |
| Whether this appeal was frivolous and whether fees are warranted | Dwayne contended prior decision omitted vital evidence and refiled arguments with more evidence | Alecia moved for fees under App.R. 23, arguing the appeal recycled a losing brief and raised no reasonable question for review | Held frivolous: appellate court finds no reasonable question for review and orders Dwayne to pay Alecia $2,690 in attorney’s fees; costs taxed to appellant |
Key Cases Cited
- Huston v. Huston, 163 Ohio St.3d 1505, 2021-Ohio-2401 (Supreme Court of Ohio) (Supreme Court declined jurisdiction of prior appeal)
- Slone v. Bd. of Embalmers & Funeral Dirs. of Ohio, 123 Ohio App.3d 545 (8th Dist. 1997) (appellate court lacks jurisdiction to review an order not designated in the notice of appeal)