Dragon v. DragonDragon v. Dragon
Civil Appeals from the Court of Common Pleas, Case No. 2008 DR 162.
Judgment: Affirmed.
Robert E. Somogyi, Hans C. Kuenzi Co., L.P.A., Skylight Office Tower, Suite 410, 1660 West Second Street, Cleveland, OH 44113 (For Plaintiff-Appellee).
Paul A. Dragon, pro se, 1507 West 19th Street, Ashtabula, OH 44004 (Dеfendant-Appellant).
TIMOTHY P. CANNON, P.J.
{¶1} Appellant, Paul A. Dragon, appeals the judgment of the Ashtabula County Court of Common Pleas denying his motion to modify parental rights and awarding attorney fees in the amount of $2,923.30 to аppellee, Holly M. Dragon.1 For the reasons stated herein, we affirm the judgment of the trial court.
{¶2} The parties to the instant appeal were married in 2001 and have two minor children. The parties divоrced in January 2009. As part of the final divorce decree,
{¶3} Upon being reinstated to the trial court, appellant filed numerous pro se motions, including a motion to modify parental rights and respоnsibilities. A hearing was held on said motion, and the trial court dismissed appellant‘s motion due to his failure to present evidence demonstrating a change of circumstances. After the hearing was cоncluded on appellant‘s motion, the trial court conducted a hearing on appellee‘s motion for attorney fees. The trial court granted judgment in favor of appellee in the аmount of $2,923.30.
{¶4} Appellant filed a timely notice of appeal. Appellant‘s first assignment of error states:
{¶5} “The trial court erred when it dismissed the defendant‘s motion to modify parental rights and responsibilitiеs for lack of evidence under Revised Code 3109.04.”
{¶7} A trial court has broad discretion in its determination of parental custody rights. Booth v. Booth, 44 Ohio St. 3d 142, 144 (1989). A trial court‘s custody determination should not be disturbed unless it constitutes an abuse of discretion. Bechtol v. Bechtol, 49 Ohio St. 3d 21, 23 (1990). An abusе of discretion is the trial court‘s “‘failure to exercise sound, reasonable, and legal decision-making.‘” State v. Beechler, 2d Dist. No. 09-CA-54, 2010-Ohio-1900, ¶61-62, quoting Black‘s Law Dictionary 11 (8th Ed.2004).
{¶8} The Ohio Supreme Court has stated the following with regard to a reviewing court‘s duty of deferencе to the trial court when making a custody determination:
{¶9} The discretion which a trial court enjoys in custody matters should be accorded the utmost respect, given the nature of the proceeding and the impact the court‘s determination will have on the lives of the parties concerned. The knowledge a trial court gains through observing the witnesses and the parties in a custody proceеding cannot be conveyed to a reviewing court by a printed record. In this regard, the reviewing court in such proceedings should be guided by the presumption that the trial court‘s findings were indeed correсt. (Internal citation omitted.) Miller v. Miller, 37 Ohio St. 3d 71, 74 (1988).
unless it finds, based on facts that have arisen since the prior decree or that were unknown to the court at the time of the prior decree, that a change has occurred in the circumstances of the child, the child‘s residential parent, or either of the parents subject to a shared parenting decree, and that the modification is necessary to serve the best interest of the child.
{¶11} Additionally, a trial court is required to consider whether the “harm likely to be сaused by a change of environment is outweighed by the advantages of the change of environment to the child.”
{¶12} ”
{¶13} Here, appellant argues a change has occurred in the circumstances of the children, as they are spending time with daycare providers and family members after school due to appellee‘s full-time employment. Appellant maintains this was not contemplated at the time of the divorce. To support this argument, appellant attempted to elicit testimony that the parties’ two minor children were in the care of third parties after school. However, appellant presented no evidence to suggest this arrangement has had an adverse effect upon the children. Further, at the time of the parties’ divorce,
{¶14} Appellant‘s first assignment of error is without merit.
{¶15} In his second assignment of error, appellant maintains:
{¶16} “The trial court erred when it found no merit in defendant‘s motion to set aside the magistrate‘s order.”
{¶17} Appеllant‘s argument revolves around the December 4, 2009 “alleged agreement” of the parties. In Dragon v. Dragon, 2010-Ohio-4694, ¶6-10, this court addressed appellant‘s assertion that the trial court erred in adopting this “Agreed Judgment Entry” without holding а hearing on the terms of the agreement. We held that “[i]n the absence of demonstrating a factual dispute over the terms of the settlement agreement, the trial court did not err by adopting the proposed judgment entry.” Id. at ¶10.
{¶18} Both the magistrate and the trial court held this argument is barred by the doctrine of res judicata. In the May 20, 2011 judgment entry, the trial court stated:
{¶19} On March 2, 2011, the Defendant filed his Objection To The Magistratе‘s Report of February 24, 2011. The Magistrate found that the Defendant based his Objection on arguments surrounding the Agreed Judgment Entry of December 4, 2009, which Defendant stated he never agreed to. The Magistrate found that the
{¶20} “It has long been the lаw of Ohio that ‘an existing final judgment or decree between the parties to the litigation is conclusive as to all claims which were or might have been litigated in a first lawsuit.‘” (Emphasis sic.) Natl. Amusements, Inc. v. Springdale, 53 Ohio St. 3d 60, 62 (1990), quoting Rogers v. Whitehall, 25 Ohio St. 3d 67, 69 (1986). The Ohio Supreme Court hаs stated, “we expressly adhere to the modern application of the doctrine of res judicata * * * and hold that a valid, final judgment rendered upon the merits bars all subsequent action based upon any claim arising out of the transaction or occurrence that was the subject matter of the previous action.” Grava v. Parkman Twp., 73 Ohio St. 3d 379, 382 (1995).
{¶21} Finding that appellant‘s argument is barred by the doctrine of res judicata, aрpellant‘s second assignment of error is not well-taken.
{¶22} Appellant‘s third assignment of error alleges:
{¶23} “The trial court erred when it found it equitable that the defendant pay all post decree attorney fees and court cost[s.]”
{¶24} Pursuant to
{¶26} The record reveals that appellant has been reprеsented by six attorneys in this matter; appellee has been represented by one attorney. Appellee‘s counsel testified at the hearing that, after the meeting upon which the parties аgreed to the terms of child support, appellant failed to execute the ‘Agreed Judgment Entry.’ Appellant further issued a number of subpoenas and filed additional motions with the court. Further, appellant also refused to sign the QDRO. Dragon, 2010-Ohio-4694, ¶10.
{¶27} Upon reinstatement to the trial court, appellant began to file numerous pro se motions pertaining to issues that have already been reviewed by this court or issuеs that the trial court found to be without merit. For example, appellant filed an objection to an administrative finding that he was in contempt for failure to pay spousal support, a motion tо modify parental rights, and requested the trial court to revisit its previous award of attorney fees, which had been upheld by this court. At the hearing for attorney fees, the trial court noted that while apрellant has the “right to file” motions, the motions should be “on the grounds permitted by the statute[.]” The trial court further acknowledged that based on the evidence presented, appellant‘s motion to mоdify parental rights was meritless. Therefore, based on the record before us, this court cannot say that the trial court abused its discretion in finding it appropriate to award appellee аttorney fees.
{¶28} Appellant‘s third assignment of error is without merit.
CYNTHIA WESTCOTT RICE, J.,
THOMAS R. WRIGHT, J.,
concur.