In re E.J.M.
2011 Ohio 977
Ohio Ct. App.2011Background
- E.J.M. was born August 5, 2005, to unmarried parties who filed a shared parenting plan on February 23, 2009, which the court adopted.
- Bryan McBeath sought modification of the plan in September 2009 and Sarah Appleby sought custody in October 2009.
- A pre-trial on November 23, 2009 included a finding that Appleby failed to pay guardian ad litem (GAL) and to set up a payment plan.
- In March 2010 the court contemplated changing custody, ordered psychological evaluations at mother's expense, and reset trial for July 2010, citing GAL recommendations and concerns about parenting feasibility.
- On July 1, 2010 the court summarily changed custody without a hearing, citing continued noncompliance by Appleby and ongoing concerns raised by the GAL.
- Appleby challenged the summary custody change as a denial of due process and an abuse of discretion under Ohio law.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Did the court violate due process by changing custody without an evidentiary hearing? | Appleby argues lack of hearing denied opportunity to present evidence and cross-examine GAL. | McBeath contends summary change was justified by noncompliance and best interests. | Yes; due process was violated; remand for evidentiary proceedings. |
| Did the court abuse its discretion under R.C. 3109.04(E) by modifying custody without sufficient evidence? | Appleby contends no evidence supported modification or best interests in light of statutory factors. | McBeath asserts change was in best interests and allowed by statute upon modification. | Yes; modification without evidence and hearing was improper. |
| Was the contempt/punitive rationale appropriate for a custody modification? | Appleby alleges the court used noncompliance as punishment rather than child welfare. | McBeath asserts noncompliance justifies modification to protect child. | Yes; court cannot punish noncompliance by altering custody. |
Key Cases Cited
- Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532 (U.S. Supreme Court 1985) (due process requires notice and hearing)
- Myers v. Myers, 170 Ohio App.3d 436 (Ohio Ct. App. 2007) (change of custody not punishment for contempt)
- Sheppeard v. Brown, 2008-Ohio-203 (Ohio Ct. App. 2 Dist.) (3109.04 not to be used as punitive weapon)
- Culberson v. Culberson, 60 Ohio App.2d 304 (Ohio Ct. App. 1978) (limits on changing custody for contempt)
- In re Roberson, 2004-Ohio-4996 (Stark App. 2004) (due process in custody matters; evidentiary rights)