Brenda Bonn v. John Bonn
No. 14AP-967
IN THE COURT OF APPEALS OF OHIO TENTH APPELLATE DISTRICT
September 8, 2015
2015-Ohio-3642
(C.P.C. No. 11DR06-2241) (REGULAR CALENDAR)
Tyack, Blackmore, Liston & Nigh Co., L.P.A., Jefferson Liston and Elizabeth R. Werner, for appellee.
John Bonn, pro se.
APPEAL from the Franklin County Court of Common Pleas, Division of Domestic Relations.
PER CURIAM
{¶ 1} Defendant-appellant, John Bonn, appeals a judgment of the Franklin County Court of Common Pleas, Division of Domestic Relations, that granted his motion to modify his parental rights and responsibilities. For the following reasons, we affirm that judgment.
{¶ 2} John and plaintiff-appellee, Brenda Bonn, married on August 27, 1994. They have one daughter, T.B., who was born on January 8, 2001.1 The parties petitioned for a dissolution of their marriage on June 6, 2011. In a decree dated July 14, 2011, the trial court dissolved the parties’ marriage. The trial court also designated Brenda as the residential parent and legal custodian of T.B. and granted John parenting time per the
{¶ 3} On September 20, 2011, Brenda filed an ex parte motiоn seeking the suspension of John‘s parenting time. Brenda attached to the motion an affidavit in which she testified that John had falsely accused her and her mother (T.B.‘s maternal grandmother) of sexually abusing T.B. As a result of John‘s accusation, the Children Services Division of Pickaway County Job and Family Services had requested interviews with T.B. and Brenda. During her interview with a caseworker, T.B. explained that her father had stated to her that he knew that her mother and grandmother had touched her privates. T.B. told the caseworker that her father‘s statement was not true, but she had agreed with her father to get him to stop talking. During the interview, T.B. was upset and crying.
{¶ 4} The trial court granted Brenda‘s ex parte motion and awarded her exclusive custody of T.B. until the matter could be heard at a hеaring scheduled for September 27, 2011. In a separate entry filed the same day, the trial court also appointed a guardian ad litem for T.B.
{¶ 5} Apparently, the September 27, 2011 hearing did not go forward. Rather, the parties, their attorneys, the guardian ad litem, and the trial judge signed an agreed entry, filed on September 27, that stated:
Subject to further order of the court[,] father shall have no less than two (2) supervised visits with the minor child at Buckeye Ranch per week. Father is responsible for costs subject to reallocation. [The] GAL shall investigate and make [a] recommendation for non-Ranch supervisor(s) within one week. Upon agreeing to a non[-]Ranch supervisor[,] [the] parties agree to [parenting time] every other Tuesday [at] 5:30 to 8:30 p.m. and every other Saturday [at] noon to six supervised.
(R. 76.)
{¶ 6} The guardian ad litem initially approved John‘s parents to supervise John‘s parenting time with T.B. However, the guardian ad litem rescinded her approval when
{¶ 7} When Brenda had filed her ex parte motion, she had simultaneously filed a motion to reallocate John‘s parental rights and responsibilities. That motion was set for а trial before the magistrate to occur on August 28, 2012. The parties appeared for the trial with counsel, and they reached an agreement regarding John‘s parenting time and telephone contact between John and T.B. Both parties, their attorneys, the guardian ad litem, and the magistrate signed a memorandum of agreement setting forth the agreed-upon terms. On October 23, 2012, the trial court issued an agreed judgment entry that, in accordance with the parties’ memorandum of agreement, ordered that:
1. Petitioner-Father‘s parenting time shall be supervised by a mutually agreed upon independent supervisor. Said visits shall be up to 6 hours in length either on Saturday or Sunday on alternating weekends, the date to be determined by Father‘s work schedule and daughter‘s extracurricular activities subject to further modification by the Court.
2. Petitioner-Father shall have telephone contact with the minor child on Tuesdays between 6:00 p.m. – 7:00 p.m. and Sundays from 10:00 a.m. 11:00 a.m. Father shall initiate the telephone contact. There shall be no discussion of this case. The first month of said telephone contact may be monitored by Mother. Petitioner-Mother mаy discontinue telephone contact if the minor child reports that Father has discussed inappropriate matters with the child.
3. Neither parent shall disparage the other to the minor child.
(R. 175.) Additionally, the agreed judgment entry recognized that the parties had agreed that the magistrate would rely on the parties’ affidavits to decide whether to modify John‘s child support obligаtion.
{¶ 8} In a decision dated November 19, 2012, the magistrate: (1) modified John‘s child support obligation from zero to $255.65 per month effective September 20, 2011 and $424.81 per month effective May 1, 2012, (2) ordered Brenda to maintain health
{¶ 9} John moved for relief from the November 19, 2012 judgment pursuant to
{¶ 10} Even after we affirmed the trial court‘s judgment, the custody matter remained before the trial court because John had filed his own motion to realloсate parental rights and responsibilities on December 11, 2012. John later also moved for removal of the guardian ad litem and emergency custody.
{¶ 11} In September 2013, the guardian ad litem and John requested that the magistrate designate a different supervisor for overseeing John‘s parenting time. The magistrate granted that request. John, who had stopped exercising his parenting time in June 2013, once again began meeting with T.B. According to the guardian ad litem‘s March 25, 2014 report, those visits went well. Consequently, during a November 2013 hearing before the magistrate, the guardian ad litem moved to convert John‘s parenting time from supervised to unsupervised. In an order dated November 13, 2013, the magistrate granted this motion, stating “father‘s parenting time with the minor child [shall] be amended from supervisеd time to unsupervised, commencing on Sunday[,] November 17, 2013, and on Sunday, November 24, 2013, and then shall resume alternating Sundays, from noon until 6:00 p.m.” (R. 426.) Brenda moved to set aside the November 13, 2013 order, but she later withdrew that motion.
{¶ 12} On April 1, 2014, a trial before the magistrate began on John‘s motions seeking reallocation of parental rights and responsibilities, removal of the guardian ad litem, and emergency custody.2 After a three-day trial, the magistrate issued a decision that recommended granting John‘s motion to reallocate and awarding him unsupervised parenting time every other Sunday from 12 noon to 6:00 p.m. The magistrate
{¶ 13} John objected to the magistrate‘s decision, but he failed to submit а transcript to support his factual arguments. In a judgment dated October 23, 2014, the trial court overruled John‘s objections and adopted the magistrate‘s decision.
{¶ 14} John now appeals from the October 23, 2014 judgment, and he assigns the following error:
Abuse of Process found in high conflict family court cases, maliciously prosecuted by the opposition to control the outcomе by and through unsubstantiated allegations, accepted and adopted by family court judicators unable to justify the punitive actions enforced on record or otherwise.
{¶ 15} Courts of appeals decide appeals on assignments of error.
{¶ 16} With regard to his abuse-of-process argument, John contends that he was coerced into signing the September 27, 2011 agreed entry and the August 30, 2012 memorandum of agreement.3 John asserts that each of those documents was drafted in meetings that included only the parties’ attorneys and the magistrate or trial judge, and excluded him. According to John, after the closed-door meetings, his attorneys presented him with the documents and pressured him to “comply or else.” (Appellant‘s briеf, at 15.)
{¶ 17} “Courts possess the general power to enter judgment by consent of the parties for the purpose of executing a compromise and settlement.” Grace v. Howell, 2d Dist. No. 20283, 2004-Ohio-4120, ¶ 9. In an agreed judgment, litigants voluntarily resolve an issue in controversy by agreeing to specific terms, which the court agrees to enforce as its judgment by signing and journalizing an entry reflecting the terms of the settlement agreеment. Bryan v. Johnston, 7th Dist. No. 11 CA 871, 2012-Ohio-2703, ¶ 12. In essence, an agreed judgment entry is a contract reduced to judgment by a court.
{¶ 18} John‘s argument, however, faces two unsurmountable hurdles. First, neither the September 27, 2011 agreed judgment nor the October 23, 2012 agreed judgment is at issue in this appeal. Thus, even if we agreed with John‘s argument, we have no authority to reverse either of those agreed judgments. Moreover, a reversal of those judgments would not benefit John. The October 23, 2014 judgment, which resеt the terms of John‘s parenting time, supersedes the September 27, 2011 and October 23, 2012 agreed judgments. Thus, the October 23, 2014 judgment determines the amount of parenting time John now receives. For John to achieve greater parenting time through this appeal, we must find error in the October 23, 2014 judgment, and consequently, reverse that judgment. A finding of error in, and a concomitant reversal of, the September 27, 2011 and October 23, 2012 agreed judgments does not mean that error exists in the October 23, 2014 judgment.
{¶ 19} Second, the doctrine of law of the case bars John‘s abuse-of-process argument. Under the doctrine of law of the case, “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 the trial and reviewing levels.” Nolan v. Nolan, 11 Ohio St.3d 1, 3 (1984). This doctrine ensures the consistency of results in a case and avoids endless litigation by settling the issues. Id. Pursuant to the doctrine, a litigant may not raise arguments “which were fully pursued, or available to be pursued, in a first appeal.” Hubbard ex rel. Creed v. Sauline, 74 Ohio St.3d 402, 404-05 (1996).
{¶ 20} Here, the abuse-of-process argument as to both the September 27, 2011 and the October 23, 2012 agreed judgments wаs available to be pursued at the time of the first appeal. John actually raised that argument with regard to the October 23, 2012 agreed judgment. We rejected the argument due to John‘s testimony before the magistrate that his consent to the memorandum of agreement was not the result of any threat and he was “okay” with the agreement. Bonn, 2013-Ohio-2313, at ¶ 14. That ruling is now law of the
{¶ 21} Having found John‘s abuse-of-process argument unavailing, we turn to his argument that the October 23, 2014 judgment relies on unsubstantiated allegations. John argues that, contrary to Brenda‘s statements, he never interrogated T.B. or made false claims about Brenda‘s family.
{¶ 22} Under
{¶ 23} John contends that he hаs presented evidence that demonstrates that Brenda‘s family members have engaged in sexually aberrant behavior. Given this evidence, John asserts that he acted reasonably in questioning T.B. about sexual abuse. John maintains that the trial court erred in overlooking his evidence and finding no merit in his allegations of sexual misconduct.
{¶ 24} The trial court could not err as alleged beсause the trial court never conducted a substantive review of the magistrate‘s factual findings. The trial court could not perform that review because John failed to file a transcript of the trial before the magistrate.
{¶ 25} Pursuant to
{¶ 26} Here, although John objected to the magistrate‘s decision on factual grounds, he did not submit a transcript or affidavit of evidenсe in support of his objections. In the absence of a transcript or affidavit, John had no basis on which to raise a challenge to the magistrate‘s factual findings. The trial court, therefore, did not err in accepting those factual findings as correct.
{¶ 27} John attempts to circumvent the dictates of
{¶ 28} In sum, we reject both of John‘s arguments. We, thus, overrule John‘s assignment of error.
{¶ 30} We have strugglеd with the question of how to rule on Brenda‘s
{¶ 31} While it appears that John‘s unfamiliarity with legal procedure resulted in his inability to raise a reasonable question on appeal, we cannot excuse the filing of a frivolous appeal because the appellant is a pro se litigant. We must hold John, who chose to proceed pro se, to the same standard as a litigant represented by counsel. Discover Bank v. Doran, 10th Dist. No. 10AP-496, 2011-Ohio-205, ¶ 6. Accordingly, we grant Brenda‘s motion and order John to pay Brenda $1,000, which we find constitutes reasonable compensation for the expenses Brenda incurred to respond to this appeal.
{¶ 32} For the forеgoing reasons, we overrule the sole assignment of error, and we affirm the judgment of the Franklin County Court of Common Pleas, Division of Domestic Relations. Additionally, we grant the
Motion for attorneys fees granted; judgment affirmed.
BROWN, P.J., KLATT and HORTON, JJ., concur.