2018 Ohio 5265
Ohio Ct. App.2018Background
- Lindsey Eberhardt is mother of C.W. (b.2007) and B.W. (b.2009); Andrew Weaver (father) died in 2012. Paternal grandparents Melva and Scott Sherwood sought custody/visitation beginning in 2010.
- The parties entered a comprehensive settlement read into the record and journalized on November 1, 2011, setting a visitation schedule agreed to by the parties.
- After Weaver’s death and several years of the schedule in place, the Sherwoods moved in 2014–2015 to modify visitation and later sought custody; Eberhardt moved to terminate the court-appointed visitation.
- A guardian ad litem (GAL) was appointed; the GAL sought temporary restrictions (suspending overnight visits) and later GAL fees were contested. The trial court held extended hearings and conducted in camera interviews of the children.
- The trial court issued a substantive October 14, 2016 judgment reestablishing visitation and imposing restrictions; multiple rulings on GAL fees and objections followed, spawning consolidated appeals.
- On appeal the court (1) vacated the October 14, 2016 judgment as void to the extent it purported to grant visitation under R.C. 3109.11, (2) found several fee/objection issues moot after remand, and (3) affirmed/overruled other procedural rulings as described below.
Issues
| Issue | Sherwoods' Argument | Eberhardt's Argument | Held |
|---|---|---|---|
| Whether the court had jurisdiction to enter the Nov. 1, 2011 journal entry as a grandparent-visitation order | N/A (Sherwoods agreed to settlement) | Nov. 1, 2011 order was an improper exercise of juvenile jurisdiction because Sherwoods filed a motion not a complaint under R.C. 3109.12 | Court: Nov. 1, 2011 merely memorialized a party settlement, not a statutory grandparent visitation order; no jurisdictional defect in memorializing agreement |
| Whether the court had subject-matter jurisdiction to enter the Oct. 14, 2016 visitation judgment under R.C. 3109.11 | Sherwoods: argued for visitation/modification and standing as relatives of deceased father | Eberhardt: trial court lacked jurisdiction to convert parties’ agreement into a statutory visitation order without a proper complaint under R.C. 3109.11 | Court: October 14, 2016 judgment was entered under an improper assumption of jurisdiction under R.C. 3109.11 and is void ab initio; vacated and remanded |
| Whether the trial court properly refused to consider Eberhardt’s objection to the magistrate’s GAL-fee decision as untimely | Sherwoods: maintained objections and procedural posture; later sought relief under Civ.R. 60(B) | Eberhardt: her objection was timely under Juv.R.40 as filed within 10 days after other party’s objections | Court: parties concede objection timely; but issue rendered moot because trial court later vacated the GAL-fee judgment on remand |
| Whether Eberhardt’s R.C. 2323.51 motion for sanctions (attorney fees) was timely | Sherwoods: argued motion was filed more than 30 days after the final judgment and thus untimely | Eberhardt: argued her 30-day clock began from a later order and her motion was timely | Court: construed final order as the Oct. 14, 2016 entry; Eberhardt’s fee motion (filed Nov.15, 2016) was untimely and trial court did not err in denying fees |
Key Cases Cited
- Rowell v. Smith, 133 Ohio St.3d 288 (discusses limits of juvenile-court statutory jurisdiction)
- Troxel v. Granville, 530 U.S. 57 (parents’ fundamental right to make decisions concerning care and control of their children)
- Harrold v. Collier, 107 Ohio St.3d 44 (grandparents bear burden to show visitation is in child’s best interest; parental wishes get special weight)
- In re Gibson, 61 Ohio St.3d 168 (juvenile-court jurisdiction principles)
- Bank of Am., N.A. v. Kuchta, 141 Ohio St.3d 75 (a judgment rendered without subject-matter jurisdiction is void ab initio)