Denier v. Carnes-DenierDenier v. Carnes-Denier
- Reporters:
- , ,
- Before:
- M. Powell, Ringland, Hendrickson
M. POWELL, P.J.
{¶ 1} Defendant-appellant, Carrie D. Carnes-Denier (“Mother“), appeals two judgments of the Warren County Court of Common Pleas, Domestic Relations Division, detеrmining parenting issues concerning her children.
{¶ 2} Mother and Charles Denier (“Father“), were divorced on September 10, 2014.
{¶ 3} Mother and Father have engaged in extensive post-decree litigation related to parenting issues. In early 2015, Father moved for custody of the children. Later, after the children‘s guardian ad litem (GAL) recommended it, Father moved the court to adopt a shared parenting plan which he submitted to the court.
{¶ 4} In July 2015, a magistrate issued a decision on Father‘s motions, which adopted Father‘s shared parenting plan, subjеct to certain magistrate-recommended modifications. The plan provided Father with gradually increasing parenting time with Ca.D. and video conferences with Co.D. and Ch.D.
{¶ 5} Mother moved the court to stay the decision pending her objections. The court overruled Mother‘s request and simultaneously issued an interim order giving immediate effect to the July 2015 magistrate‘s decision for 28 days. The interim order provided that it would automatically renew for additional 28-day increments until the court had ruled on any objections.
{¶ 6} Mother filed objections to the July 2015 magistrate‘s decision. While Mother‘s objections were pending, the GAL filed a motion to modify parenting time. Father filed a new motion asking for custody of Ca.D. and a modification to parenting time with Co.D. and Ch.D. All of these motions were premised on Mother‘s alleged efforts to alienate the children from Father.
{¶ 7} In September 2015, the magistrate issued a decision оn these three motions.
{¶ 8} The court entered an interim order giving effect to the September 2015 magistrate‘s decision. The interim order provided that it was effective for 28-day increments and would automatically renew for additional 28-day increments. Mother did not file objections to the September 2015 magistrate‘s decision.
{¶ 9} On October 1, 2015, the magistrate held a hearing to review the status of the parties’ parenting issues as scheduled in the July 2015 magistrate‘s decision. Following the hearing, the magistrate issued a decision that made changes to the current shared parenting arrangement. The magistrate‘s decision reflected that the changes were by agreement of the parties. The decision scheduled another hearing to review the status of the case on December 2, 2015. Mother did not file objections to this October 2015 magistrate‘s decision.
{¶ 10} On October 23, 2015, the court overruled Mother‘s objections to the July 2015 magistrate‘s decision. Mother appealed that judgment, which was the subject of an earlier appeal decided by this court. See Denier v. Carnes-Denier, 12th Dist. Warren No. CA2015-11-106, 2016-Ohio-4998 (hereafter, ”Denier I“).
{¶ 11} While Denier I was pending, Mother moved the court to remove the children‘s GAL, which she premised on the claim that the GAL was not acting impartially. And one week before the December 2015 review hearing, Mother moved the court for a continuance. Mother explained that she was not able to secure certain subpoenaed documents prior to the hearing.
{¶ 12} The magistrate denied the request for a continuance and the December
{¶ 13} Mother filed оbjections to this December 2015 magistrate‘s decision. In January 2016, the court entered another interim order giving effect to the December 2015 decision for 28 days, with automatic renewal for additional 28-day increments.
{¶ 14} In late January 2016, the court issued its “Final Judgment Entry and Decree of Shared Parenting.” This entry contained the final version of Father‘s shared parenting plan and incorporated elements and concerns from hearings that had occurred аnd entries that had been journalized in the case since July 2015. This entry is the first of the two that Mother is seeking relief from in this appeal.
{¶ 15} In February 2016, the magistrate issued a decision from the December 2015 review hearing (which continued in progress for two additional days in December 2015 and January 2016). The decision found that no progress had been made in reuniting Father with Co.D. and Ch.D. and recommended “therapeutic intervention” to aid in reunification. Mother filed objectiоns to this magistrate‘s decision.
{¶ 16} In a February 2016 entry, the trial court overruled Mother‘s objections to the December 2015 magistrate‘s decision. In a March 2016 entry, the trial court overruled Mother‘s objections to the February 2016 magistrate‘s decision. Mother also appeals from this judgment entry.
{¶ 17} In July 2016, this court issued its decision in Denier I. We affirmed the trial
{¶ 18} Mother assigns one error for our review:
{¶ 19} THE TRIAL COURT ERRED WHEN IT DENIED THE MOTHER DUE PROCESS BEFORE CHANGING THE RESIDENTIAL STATUS OF THE YOUNGEST CHILD AND MODIFYING THE PARENTAL RIGHTS AS TO THE OLDER TWO CHILDREN.
{¶ 20} While Mother‘s brief contains оne assignment of error asserting a violation of due process, Mother presents seven issues for review involving various and overlapping procedural issues. For ease of analysis we address many these issues collectively.
DUE PROCESS
{¶ 21} “The Fourteenth Amendment provides that no State shall ‘deprive any person of life, liberty, or property, without due process of law.‘” Troxel v. Granville, 530 U.S. 57, 65, 120 S.Ct. 2054 (2000); see also the Due Process and Remedies Clauses,
{¶ 22} The liberty interest of parents in the care, custody, and management of their children is perhaps the oldest of the fundamental liberty interests recognized by the United States Supreme Court. Troxel at 65. Thus “the Due Process Clause of the Fourteenth
MODIFICATION OF PARENTAL RIGHTS AFTER JULY 2015
{¶ 23} In the following issues for review, Mother alleges that the court violated her due process rights by various actions it took after she filed objections to the July 2015 magistrate‘s decision and her subsequent appeal of the entry adopting that decision.
{¶ 24} First, Second, Third, and Seventh Issues for Review:
- When an appeal is pending the trial court is prohibited from hearing the same issues without receiving an order from the Appellate Court permitting the trial court to move forward.
- It is plain error for a trial court to proceed with modifying a decision/temporary order that has not become a final order of the court.
- A trial court should not proceed tо modify an order that has not become final and is subject to the Trial Court‘s review of a Magistrate‘s Decision.
- The trial court adopted a Share[d] Parent[ing] Plan that was not in conformity with the July 31, 2015 [decision] and while an appeal was pending.
{¶ 25} In all four issues, Mother presents variations of the same argument, i.e., that the trial court violated her due process rights by holding various modification hearings before a shared parenting plan had been adоpted by the court and while Denier I was pending. Mother argues that this action violated her due process rights because it caused her “uncertainty” as to the “true issues” at the December review hearing. Mother never raised this argument with the lower court and is therefore limited to civil plain error analysis.
{¶ 26} The plain error doctrine in civil cases applies only in the “extremely rare case
{¶ 27} This court rejects the contention that Mother was unaware of or failed to receive notice of the issues that would be addressed at the December review hearing. The motions filed and issues raised following the July 2015 magistrate‘s decision were based on circumstances (Mother‘s conduct) that occurred after July 2015. Mother was on notice of Father‘s and the GAL‘s allegations that she was alienating the children from Father and otherwise failing to make efforts to normalize relations. Mother cannot claim that her uncertainty concerning whether objections to the July 2015 magistrate‘s decision would be sustained or whether the court would adopt a shared parenting plan caused her to have difficulty defending her post-July 2015 conduct. The July 2015 magistrate‘s decision recommending shared parenting was adopted as an interim order of the court. Until her objections were sustained, Mother should have proceeded with defending her parental rights on the basis of the interim order.
{¶ 28} Additionally, the parties’ goal as provided in the divorce decree was the reunification of all three children with Father. In this case the court clearly used review hearings to monitor progress, or lack thereof, towards that goal. Mother was aware of the pendency of these review heаrings, as the first was scheduled in the July 2015 magistrate‘s
{¶ 29} While Mother now contends that the court erred in holding modification hearings, Mоther filed her own motions that were addressed at the hearings beginning in December, including her motion to remove the children‘s GAL. Consequently, Mother had the requisite notice and opportunity to be heard as required to afford her procedural due process.
{¶ 30} We next address Mother‘s argument that the court infringed upon her fundamental right to the care and custody of her children by continuing to exercise jurisdiction over shared parenting issues after shе filed her appeal in Denier I. Generally, after the notice of appeal is filed, a trial court loses jurisdiction to proceed in any way that would interfere with an appellate court‘s ability to review, affirm, reverse, vacate, or modify the judgment of the trial court. Welsh Dev. Co. v. Warren Cty. Regional Planning Comm., 12th Dist. Warren No. CA2008-02-026, 2009-Ohio-1158, ¶ 11. However,
A motion to modify, pending appeal, either a decree allocating parental rights and responsibilities for the care of children, a spousal or other support order, shall be made to the trial court in the first instance, whether made before or after a notice of appeal is filed. The trial court may grant relief upon terms as to bond or otherwise as it considers proper for the security of the rights of the adverse party and in the best interests of the children involved.
Civ.R. 62(B) does not apply to orders allocating parental rights and responsibilities for the care of children or a sрousal or other support order. An order entered upon motion under this rule may be vacated or modified by the appellate court. The appellate court has authority to enter like orders pending appeal, but an application to the appellate court for relief shall disclose what has occurred in the trial court regarding the relief.
{¶ 31}
USE OF INTERIM ORDERS
{¶ 32} Mother presents two issues concerning the trial court‘s use of interim orders.
{¶ 33} Fourth Issue for Review:
- A trial court should not use the interim order as a means to eliminate a parent‘s right to a timely review by the Court and a rеview by the Appellate Court.
{¶ 34} Mother argues that the court violated her due process rights through its use of interim orders. Mother argues that her life and Ca.D.‘s were “turned upside down” because the magistrate‘s decisions were immediately enforced and she would have to wait until the trial court reviewed her objections to obtain an order she could appeal. Mother did not challenge the trial court‘s use of interim orders in the court below. Thеrefore, Mother‘s claim that the trial court improperly adopted the various interim orders is again subject to a civil plain error review. Furthermore, Mother does not specify which interim orders are the subject
{¶ 35} There were two magistrate‘s decisions to which Mother objected and upon which the court issued interim orders: the July 2015 and the December 2015 magistrate‘s decisions. However, only the December 2015 decision is relevant in this appеal because the July 2015 decision (and any order enforcing it) is res judicata, i.e., it was or should have been raised and disposed of in Denier I.3
{¶ 36} The December 2015 magistrate‘s decision recommended the following, to which Mother objected: (1) denial of Mother‘s motion to remove the GAL; (2) denial of Mother‘s motion to continue the December review hearing.
{¶ 37} Mother has not appealed the court‘s denial of her motion to remove the GAL. Accordingly, she cannоt claim that her due process rights were violated because the interim order delayed her ability to appeal that decision.
{¶ 38} With respect to the denial of the motion for a continuance, such an order would not have been a final appealable order even if the court, and not the magistrate, had entered it. Venable v. Venable, 3 Ohio App.3d 421, 427 (8th Dist.1981). Accordingly, Mother cannot demonstrate prejudice or a denial of due process.
{¶ 39} Fifth Issue for Review:
- A trial court cannot make an interim order automatically renewable every 28 days without issuing a new order.
{¶ 40} Mother argues that the court committed plain error and violated her due process rights by issuing 28-day interim orders that would automatically renew for additional 28-day increments. Mother argues that the Civil Rules required the court to have good cause to extend the interim order an additional 28 days and that the record does not reflect any
{¶ 41} Mother did not rаise this issue with the lower court and we review for plain error. Mother does not specify which interim order violated her rights but we must assume it is the order that gave effect to the December 2016 decision. As previously described, the only recommendations in that decision adverse to Mother were the denials of her motion to remove the GAL and for a continuance.
{¶ 42}
Interim order. The court may enter an interim order on the basis of a magistrate‘s decision without waiting for or ruling on timely objections by the parties where immediate relief is justified. The timely filing of objections does not stay the execution of an interim order, but an interim order shall not extend more than twenty-eight days from the date of entry, subject to extension by the court in increments of twenty-eight additional days for good cause shown. An interim order shall comply with
Civ.R. 54(A) , be journalized pursuant toCiv.R. 58(A) , and be served pursuant toCiv.R. 58(B) .
{¶ 43} We agree with Mother that
{¶ 44} But even if the court erred in using this interim order, Mother cannot demonstrate prejudice. As discussed previously, Mother did not appeal the denial of her motion to remove the GAL. She has appеaled the court‘s denial of her motion for a continuance of the December review hearing. However, the denial of the motion for continuance was not immediately appealable in any event as it is not a final appealable order; and, as will be discussed in the next section, we find no error in the decision denying Mother‘s requested continuance. Accordingly, even if the trial court erred, Mother cannot
DENIAL OF MOTHER‘S MOTION FOR CONTINUANCE
{¶ 45} Sixth Issue for Review:
- A trial court should not proceed with a hearing when discovery has not been completed until after the hearing had substantially occurred.
{¶ 46} Mother argues that the court violated her due process rights by overruling her motion to continue the December 2015 review hearing. In the motion, Mother stated that she had not yet obtained cеrtain subpoenaed documents from Franklin County Children‘s Services that she wanted to use at the hearing. The magistrate denied Mother‘s motion but indicated that the hearings would be continued in progress to allow Mother time to obtain the documents.
{¶ 47} Separately, the Franklin County prosecutor filed a motion to quash Mother‘s subpoena. The magistrate granted the motion but ordered the county to deliver the subpoenaed documents to it for an in camera review. After the in camera review, the court released certain redacted documents to Mother at some point after the first day of the hearing. Mother did not challenge the magistrate‘s order granting the motion to quash her subpoena subject to the magistrate‘s in camera review of the documents, nor does she assign error on appeal to the granting of the motion to quash.
{¶ 48} Nonetheless, Mother received some of the documents she requested while the review hearing was still in progress. However, she argues that the timing of the release prejudiced her because she did not see the documents before the first hearing date and was not afforded the opportunity to prepare a trial strategy or determine how to proceed at trial.
{¶ 49} We review the denial of a motion for a continuance under the abuse of
the length of the delay requested; whether other continuances have been requested and received; the inconvenience to litigants, witnesses, opposing counsel and the court; whether the requested delay is for legitimate reasons or whether it is dilatory, purposeful, or contrived; whether the defendant contributed to the circumstance which gives rise to the request for а continuance; and other relevant factors, depending on the unique facts of each case.
{¶ 50} We find that Mother was primarily responsible for the need for the continuance. Mother had two months’ notice of the hearing date. Mother issued her subpoena to Franklin County Children‘s Services on November 23, 2015, and demanded Franklin County provide the documents on November 30, 2015 for use at the hearing scheduled for December 2, 2015. Mother would be awаre that there would not be sufficient time to allow the court to decide the issue should Franklin County, as it did, move to quash the subpoena.
{¶ 51} Mother also does not explain the significance of the documents she requested other than to say they would “substantiate or disprove certain critical matters at issue.” We are dubious of this claim however, given that Mother was provided the documents before the hearings resumed. In this respect, Mother fails to explain how her receipt of the documents on or shortly after the first day of the hearing prevented her from utilizing them effectively. The December 2, 2015 review hearing for which mother subpoenaed the documents was continued in progress to December 9, 2015 and again until January 19, 2016. The documents were available to Mother at these two later hearing dates, providing her more time to review them than the two days she had allowed pursuant to hеr subpoena. In sum, we perceive no abuse of discretion in the court‘s denial of the motion. Nor do we find any
{¶ 52} Judgment affirmed.
RINGLAND and HENDRICKSON, JJ., concur.