Gabriel v. GabrielGabriel v. Gabriel
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Thоmas P. Goodwin, for appellee; John C. Intagliata, guardian ad litem.
Grant E. Gabriel, pro se.
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PIETRYKOWSKI, J.
{¶ 1} Appellant, Grant E. Gabriel, and appellee, Pamela J. Gabriel, were divorced under a judgment entry filed in the Lucas County Court of Common Pleas, Domestic Relations Division, on February 27, 2002. The decree designated Pamela Gabriel as the primary residential parent and legal guardian of their children. Disputes over custody of
{¶ 2} Despite the settlement, appellant argues that disputes remain with respect to orders to pay guardiаn ad litem fees, the trial court‘s denial of appellant‘s motion to remove the guardian ad litem, and the trial court‘s use of contempt to compel compliance with prior court orders requiring payment of guardian ad litem fees. We dismissed an earlier appeal concerning removal of the guardian ad litem and payment of guardian ad litem fees in Gabriel v. Gabriel (Mar. 14, 2008), 6th Dist. No. L-07-1405 due to lack of a final appealable order.
{¶ 3} Appellant asserts four assignments of error in this appeal:
{¶ 4} “I. The trial court abused its discretion in finding appellant in contempt of court.
{¶ 5} “II. The trial court erred in denying appellant‘s motion to remove the guardian ad litem.
{¶ 6} “III. The trial court errеd in overruling appellant‘s objections to magistrate‘s order (and adopting the magistrate‘s decision) awarding guardian ad litem fees and classifying these fees as child support.
{¶ 7} “IV. Trial court erred in not providing appellant and appellant‘s children procedural and substantive due process prior to appellee‘s relocation.”
{¶ 8} In this appeal, appellant appeals judgments of the trial court that were journalized on August 1, 2008 and October 9, 2007. In the October 9, 2007 judgment,
{¶ 9} In the August 1, 2008 judgment, the trial court approved and adopted the findings of fact and decision of the magistrate that was signed July 31, 2008, awarding guardian ad litem fees and holding appellant in contempt for failurе to pay earlier fees that had been approved by the court and ordered paid. The trial court found appellant to be in contempt of prior orders of the court with respect to payment of guardian ad litem fees and sentenced him to serve up to 30 days in the Lucas County Correction Center unless he purged contempt by payment of $1,200 to the guardian ad litem within 30 days. The matters of cоntempt and sentence were continued for hearing on November 20, 2008.
Contempt
{¶ 10} Under Assignment of Error No. I, appellant argues that the trial court‘s order holding him in contempt of a prior court order to pay guardiаn ad litem fees is prohibited under
{¶ 12} The August 1, 2008 trial court judgment held appellant in contempt of a court order requiring payment of guardian ad litem fees and sentenced him to serve up to thirty days in the county jail. The order also provided that the finding of contempt would be purged by payment of the total sum of $1,200 within thirty days. The record reflects payment by appellant of $1,200 to the court on August 29, 2008. The payment rendered the issue of the propriety оf the contempt order moot. Faith C. v. Tim P., 6th Dist. No. L-05-1250, 2006-Ohio-3049, ¶ 3; Davis v. Lewis (Dec. 12, 2000), 10th Dist. No. 99AP-814.
{¶ 13} Assignment of Error No. I is not well-taken.
Guardian ad Litem
{¶ 14} Under Assignments of Error Nos. II and III, appellant argues trial court error in denying appellant‘s motion to remove the guardian ad litem and in awarding guardian ad litem fees. He alsо claims error in designating the fees as child support. Appellant has paid most, but not all, of the sums owed under the August 1, 2008 judgment. These issues have not been mooted by settlement of the custody dispute or by payment оf the sum required to purge the contempt order.
{¶ 15} A trial court is granted broad discretion under
{¶ 16} We have reviewed the record and find no abuse of discretion in the trial court‘s overruling the motion to remove the guardian ad litem. Appellant offered no expert witness testimony to support his claim that the guardian ad litem had failed to perform his duties in a professional manner.1 The trial court found that the guardian ad litem was a licensed practicing attorney with twenty-five years of experience as a guardian ad litem in Lucas County Juvenile Court and in both the Wood County and Lucas County Courts of Commоn Pleas, Domestic Relations Divisions. The court recognized that the guardian ad litem had served in the past where conflicts existed between the recommendations of the guardian ad litem and wishes of the сhildren.
{¶ 17} The record reflects that the guardian ad litem performed an investigation and filed two reports with his recommendations. The guardian ad litem testified concerning the performance of his duties in the hеarings on fees and on the motion to remove him.
{¶ 19} In the trial court, appellant agreed to the manner of apportionment between the parties of the rеsponsibility to pay guardian ad litem fees. He did not dispute the hours spent or activities performed as detailed in the guardian ad litem‘s motions for approval of fees for payment. Appellant‘s аrgument has been that the guardian ad litem breached his duties to the parties’ children and is not entitled to payment of any fees.
{¶ 20} Appellant includes, in Assignment of Error No. III, claimed error in awarding guardian ad litem fеes and in classifying them as child support. His argument under the assignment of error was limited, however, to a claim that the services had no value.3
{¶ 22} Accordingly, we find that Assignment of Error No. III is not well-taken.
Lack of Oral Hearing on Relocation
{¶ 23} On November 21, 2006, appellee provided notice of an intent to relocate to Liсking County, Ohio, on or about December 26, 2006. Appellant opposed the relocation of the children and filed a motion to prevent it, with brief, on December 6, 2006. Appellant also filed a motion for аn “emergency hearing” on the matter on December 19, 2006. The trial court denied the motion for an emergency hearing in a judgment entry journalized on December 20, 2006. Under Assignment of Error No. IV, appellant argues that the trial court erred in failing to conduct an oral hearing prior to the relocation.
{¶ 24} In our view, consideration of the relocation custody dispute now would serve no purpose. Custody is now govеrned by a settlement entry filed on March 31, 2008, by mutual consent. A ruling on issues raised under Assignment of Error No. IV would not allow for a present remedy that would affect any matter in controversy between the parties. The mattеr is moot. See In re K.P., 8th Dist. No. 82709, 2004-Ohio-1448, ¶ 67 (stipulated order on pre-dispositional temporary custody rendered defect in original order moot).
{¶ 26} Assignment of Error No. IV is not well-taken.
{¶ 27} On consideration whereof, the court finds that substantial justice has been done the party complaining and that appellant has not been denied а fair hearing. The judgment of the Lucas County Court of Common Pleas, Domestic Relations Division is affirmed. Appellant is ordered to pay the costs of this appeal pursuant to
JUDGMENT AFFIRMED.
A certified copy of this entry shall constitute the mandate pursuant tо
JUDGE
Mark L. Pietrykowski, J. _______________________________
Thomas J. Osowik, J. JUDGE
CONCUR. _______________________________
JUDGE
This decision is subject to further editing by the Supreme Court of Ohio‘s Reporter of Decisions. Parties interested in viewing the final reported version are advised to visit the Ohio Supreme Court‘s web site at: http://www.sconet.state.oh.us/rod/newpdf/?source=6.