Christian v. JohnsonChristian v. Johnson
Dated: August 5, 2009
DICKINSON, Presiding Judge.
INTRODUCTION
{¶1} Carolyn Christian and Larry Johnson were once married and had two sons together. Ms. Christian now lives in Ohio with both boys, while Mr. Johnson lives in California, but has visitation rights. Ms. Christian and Mr. Johnson cannot seem to cooperate with each other in following trial court orders regarding visitation. When Mr. Johnson appeared pro se and unprepared to proceed to trial on the slew of contempt, custody, and visitation motions both parties had filed, the trial court modified the visitation schedule and denied all pending motions. This Court reverses and remands because, although the trial court did not err by denying Mr. Johnson’s request for a continuance, it incorrectly modified his visitation rights without considering
{¶2} In 2004, a court in St. Louis County, Missouri, granted Mr. Johnson and Ms. Christian a divorce and joint legal custody of their two sons. The court placed the boys in the sole physical custody of Ms. Christian and established a parenting plan for Mr. Johnson. Before that proceeding was complete, Ms. Christian moved to Hudson, Ohio, with the parties’ two children, where they have lived since 2003. Mr. Johnson later moved to California.
{¶3} In late 2005, Ms. Christian moved the Domestic Relations Division of the Summit County Common Pleas Court to register the Missouri decree and assume jurisdiction over all parenting matters. On March 16, 2006, on Ms. Christian’s motion, the Summit County court designated Ms. Christian the residential parent and legal custodian of both of the parties’ sons. The court established a visitation schedule for Mr. Johnson, granting him five holiday weekends, one weekend in April, spring break, two weeks in June, one three-day weekend in July, two weeks in August, Thanksgiving, and winter break. The order also granted him one weekend a month to be spent “in the city in which [Ms. Christian] resides.” Since December of 2006, the parties have consistently had problems with how the other parent has handled court-ordered visitation.
{¶4} After both parties had filed various motions regarding custody and visitation issues, the court held an evidentiary hearing in June 2007. Despite a July 13, 2007, praecipe, the record does not contain a transcript of that proceeding. On June 26, 2007, the magistrate issued an order giving Mr. Johnson the remainder of summer 2007 for visitation with the two children.
{¶5} The court held a review hearing when the children returned from California in August 2007. Following that hearing, the magistrate issued a “PROVISIONAL INTERIM ORDER” on August 28, 2007. The magistrate determined “it [wa]s appropriate to immediately
{¶6} The flurry of motions from both sides continued. In addition to moving four times for a contempt finding against her, Mr. Johnson moved the court for a psychological evaluation of Ms. Christian and for immediate removal of the children from her home. On January 28, 2008, Mr. Johnson moved the court for an “emergency” order establishing a specific parenting time schedule for 2008. Meanwhile, on four separate occasions, Ms. Christian moved the court for a contempt finding against Mr. Johnson, as well as for a home study and termination of visitation.
{¶7} In early 2008, a visiting judge was appointed to hear the case. After a March hearing attended by attorneys for both parties, the court issued an order scheduling a settlement conference for June 10, 2008, with trial set to begin June 13. Mr. Johnson’s lawyer withdrew from the case immediately after the March hearing. The court consolidated Ms. Christian’s four pending motions to show cause and scheduled them for hearing on the morning of trial, June 13, 2008. At that time, Mr. Johnson also had four pending motions to show cause against Ms. Christian, as well as various emergency motions for modification of the parenting schedule and for change of custody.
{¶8} Mr. Johnson appeared without counsel at the June 10, 2008, pretrial hearing and requested a continuance of the trial scheduled for three days later. He told the court that he
FINAL, APPEALABLE ORDER
{¶9} Although the parties have not mentioned it, a threshold jurisdictional question must be addressed before reaching the merits of this appeal. This Court’s jurisdiction over trial court judgments extends only to final orders.
{¶10} The trial court modified the visitation schedule and denied all pending motions at the same time. The June 20, 2008, order was not an interim visitation order subject to review by the trial court in future related proceedings. See Hissa v. Hissa, 8th Dist. No. 90612, 2008-Ohio-4872, at ¶3 ((“A judgment that leaves issues unresolved and contemplates further action is not a final appealable order.”) (citing Circelli v. Keenan Constr., 165 Ohio App. 3d 494, 2006-Ohio-949, at ¶14)). In view of the fact that the trial court denied all pending motions, its restriction of Mr. Johnson’s visitation time with his children to Summit County, Ohio, affected his substantial right to parent his children. Under the circumstances, the order restricting Mr. Johnson’s visitation rights was final and appealable.
DENIAL OF CONTINUANCE
{¶11} Mr. Johnson’s first assignment of error is that the trial court abused its discretion by denying his request for a continuance of trial on the many pending motions to show cause and for reallocation of parental rights and responsibilities. He has argued the denial of a continuance “was unreasonable under the circumstances.” Whether to grant a requested continuance is within a trial court‘s discretion. State v. Unger, 67 Ohio St. 2d 65, 67 (1981). A trial court abuses its discretion if its “attitude is unreasonable, arbitrary or unconscionable.” Blakemore v. Blakemore, 5 Ohio St. 3d 217, 219 (1983).
{¶12} The trial court began the pretrial hearing on June 10 by asking Mr. Johnson whether he had complied with the court’s orders to provide certain documents to his ex-wife, complete a home study, and submit to a parenting evaluation. Mr. Johnson responded that he had not done any of those things. The trial court asked how his telephone contact with his sons
{¶13} The trial court did not wish to proceed with the trial without Mr. Johnson’s participation and did not want to interfere with his job search. Ms. Christian, however, strenuously objected to a continuance. She argued that a continuance would merely reward Mr. Johnson for refusing to comply with the court’s orders. According to her, a continuance was unnecessary because Mr. Johnson had known about the trial date “for months.” She also argued that a further delay would be burdensome for her because she had subpoenaed “a whole list of witnesses” for trial and her lawyers were ready to proceed. The trial court’s decision in this case was not unreasonable, arbitrary, or unconscionable. The trial court did not abuse its discretion in denying Mr. Johnson’s request for a continuance. Mr. Johnson’s first assignment of error is overruled.
MODIFICATION OF VISITATION
{¶14} Mr. Johnson’s second assignment of error is that the trial court incorrectly modified his visitation time sua sponte and without reason. He has specifically objected to the court’s order of June 20, 2008, requiring that all visitation occur in Summit County, Ohio. Mr. Johnson has argued that, because he lives so far away from Ohio, the court essentially “eliminated [his] visitation and companionship time with his children” by restricting it to Summit County.
{¶15} Contrary to Mr. Johnson’s argument, the topic of visitation was properly before the court. Mr. Johnson had invoked the continuing jurisdiction of the court by moving for a modification of visitation and custody, in addition to moving on four separate occasions for Ms. Christian to be held in contempt. See
{¶16}
{¶17} In this case, there is no evidence in the record regarding any of the statutory factors. Not only does the court’s June 20, 2008, order not refer to
CONCLUSION
{¶18} The trial court did not err by denying Mr. Johnson’s motion for a continuance, but it incorrectly modified his visitation rights without considering the factors of
Reversed and remanded.
There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common Pleas, County of Summit, 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(E). 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 appellee.
CLAIR E. DICKINSON
FOR THE COURT
WHITMORE, J.
BELFANCE, J.
CONCUR
APPEARANCES:
CHRISTOPHER R. SNYDER, attorney at law, for appellant.
JEFFREY V. HAWKINS, attorney at law, for appellee.