Nathan C. Hamilton, Plaintiff-Appellee, v. Pamela M. Hamilton, Defendant-Appellant.
No. 14AP-1061
IN THE COURT OF APPEALS OF OHIO TENTH APPELLATE DISTRICT
Rendered on September 20, 2016
[Cite as Hamilton v. Hamilton, 2016-Ohio-5900.]
(C.P.C. No. 02DR-3997) (REGULAR CALENDAR)
On brief: Mowery, Youell and Galeano, Ltd., Judith E. Galeano, and Sean P. Sheridan, for appellee. Argued: Judith E. Galeano.
On brief: Pamela M. Hamilton, pro se. Argued: Pamela M. Hamilton.
APPEAL from the Franklin County Court of Common Pleas, Division of Domestic Relations
DORRIAN, P.J.
{1} Defendant-appellant, Pamela M. Hamilton, appeals from the May 21, 20141 judgment of the Franklin County Court of Common Pleas, Division of Domestic Relations, which adopted the decision of the court‘s magistrate filed May 19, 2014, granting the motion by plaintiff-appellee, Nathan C. Hamilton, for modification of parental rights and responsibilities regarding the parties’ minor child. The judgment designated appellee as the sole residential and custodial parent of the minor child and ordered there be no parenting time for appellant prior to extensive individual counseling for appellant and
I. Standard of Review
{2} Because the evidentiary hearing in the trial court was handled by a magistrate, we first examine the trial court‘s responsibilities, pursuant to
{3} Under
{4} Furthermore, because appellant did not file objections, our review of the trial court‘s adoption of the magistrate‘s decision is limited to plain error.
{5} Each of the magistrate‘s decisions adopted by the court concluded with the following notification in bold type:
A party shall not assign as error on appeal the court‘s adoption of any factual finding or legal conclusion, whether or not specifically designated as a finding of fact or conclusion of law under
Civ.R. 53(D)(3)(a)(ii) orJuv.R. 40(D)(3)(a)(ii) , unless the party timely and specificallyobjects to that factual finding or legal conclusion as required by Civ.R. 53(D)(3)(b) 2 orJuv.R. 40(D)(3)(b) .3
(Emphasis omitted.) (May 19 2014 Magistrate‘s Decision at 29; Nov. 24, 2014 Magistrate‘s Decision at 5; Dec. 10, 2014 Magistrate‘s Decision at 5.) In her reply brief, appellant argues that her objections were filed under
{6} We discussed the consequences of an appellant‘s failure to object to a magistrate‘s decision in Lavelle v. Lavelle, 10th Dist. No. 12AP-159, 2012-Ohio-6197, ¶ 8:
Civ.R. 53(D)(3)(b)(iv) states that: “Except for a claim of plain error, a party shall not assign as error on appeal the court‘s adoption of any factual finding or legal conclusion * * * unless the party has objected to that finding or conclusion as required byCiv.R. 53(D)(3)(b) .” The Supreme Court of Ohio has firmly adhered to this procedural mandate. McLellan v. McLellan, 10th Dist. No. 10AP-1105, 2011-Ohio-2418. In State ex rel. Findlay Industries v. Indus. Comm., 121 Ohio St.3d 517, 2009-Ohio-1674, the Supreme Court dismissed an appeal from a magistrate‘s decision and affirmed the lower court‘s judgment, finding “[a]ppellant‘s arguments derive directly from the conclusions of law provided in the magistrate‘s decision. Appellant, however, did not object to those conclusions asCiv.R. 53(D)(3)(b) requires. Thus * * * we can proceed no further.” Id. at ¶ 3.
Likewise, here, because appellant failed to object to the magistrate‘s decision, we can proceed no further unless we find plain error.
II. Assignments of Error
{7} Notwithstanding the lack of objections, appellant now makes twelve assignments of error:
- I. THE COURT‘S DECISION VIOLATES MOTHER‘S FUNDAMENTAL PARENTAL RIGHTS PROTECTED BY THE CONSTITUTION.
- II. THE COURT ABUSED ITS DISCRETION BY FINDING THE EVIDENCE MEETS THE REQUIRED STANDARDS, RELYING ON IMPROPER EVIDENCE, AND THE DECISION IS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.
- III. THE COURT ERRED IN FAILING TO APPLY THE STRICT SCRUTINY ANALYSIS AS MANDATED BY THE CONSTITUTION.
IV. THE COURT ABUSED ITS DISCRETION BY MODIFYING THE TERMS OF THE CONSENT AGREEMENT AND BY ALLOWING FATHER NOT TO SIGN THE REQUIRED RELEASES. - V. THE COURT ABUSED ITS DISCRETION BY ENGAGING IN A PATTERN OF CONDUCT OF DISREGARDING CONSTITUTIONAL, STATE AND LOCAL LAWS IN VIOLATION OF MOTHER‘S RIGHT OF DUE PROCESS.
- VI. THE COURT ABUSED ITS DISCRETION BY DENYING PSYCHOLOGICAL EVALUATIONS.
- VII. THE COURT ABUSED ITS DISCRETION IN ALLOWING THE GUARDIAN AD LITEM * * * TO FAIL IN HER DUTIES.
- VIII. THE COURT ABUSED ITS DISCRETION BY FINDING AN AUTHORIZED CHANGE IN CIRCUMSTANCE UNDER
R.C. 3109.04(E) OCCURRED. - IX. THE COURT ABUSED ITS DISCRETION IN DETERMINING THE BEST INTEREST OF THE CHILD UNDER
R.C. 3109.04(F) . - X. THE COURT ABUSED ITS DISCRETION BY DENYING PARENTING TIME UNDER
R.C. 3109.051 . - XI. THE COURT ABUSED ITS DISCRETION BY DENYING ANY CONTACT, NOTIFICATIONS, AND ACCESS TO RECORDS AND EXTRA-CURRICULAR ACTIVITIES UNDER
R.C. 3109.051 . - XII. THE COURT ABUSED ITS DISCRETION BY ISSUING CHILD SUPPORT WITHOUT A SPECIFIC VISITATION SCHEDULE UNDER
R.C. 3119.08 .
III. Discussion
{8} “[I]n appeals of civil cases, the plain error doctrine is not favored and may be applied only in the extremely rare case involving exceptional circumstances where error seriously affects the basic fairness, integrity, or public reputation of the judicial process itself.” Uretsky v. Uretsky, 10th Dist. No. 02AP-1011, 2003-Ohio-1455, ¶ 7, citing Goldfuss v. Davidson, 79 Ohio St.3d 116 (1997), syllabus. “Indeed, the plain error doctrine implicates errors in the judicial process where the error is clearly apparent on the face of the record and is prejudicial to the appellant.” Skydive Columbus Ohio, LLC v. Litter, 10th Dist. No. 09AP-563, 2010-Ohio-3325, ¶ 13, citing Reichert v. Ingersoll, 18 Ohio St.3d 220, 223 (1985). “‘Plain error does not exist unless it can be said that but for the error, the outcome of the trial would clearly have been otherwise.’ ” In re C.M., 10th Dist. No. 07AP-933, 2008-Ohio-2977, ¶ 50, quoting State v. Moreland, 50 Ohio St.3d 58, 62 (1990). “Because parental rights determinations are difficult to make and appellate courts accord wide latitude to the trial court‘s consideration of evidence in these cases, ‘[p]lain error is particularly difficult to establish.’ ” Faulks v. Flynn, 4th Dist. No. 13CA3568, 2014-Ohio-1610, ¶ 20, quoting Robinette v. Bryant, 4th Dist. No. 12CA20, 2013-Ohio-2889, ¶ 28. For the reasons that follow, we find no plain error in the judgment of the trial court to reallocate parental rights and responsibilities regarding the minor child.
{9} In her reply brief, appellant argued “this case contains the rare circumstances needed to establish plain errors. Most of the errors are plain.” (Appellant‘s Reply brief at 2.) However, she did not assert plain error in her assignments of error. Rather, assignments of error two, four, five, six, seven, eight, nine, ten, eleven, and twelve assert the trial court “abused its discretion.” Appellate courts decide assignments of error, not arguments or issues contained in a brief.
{10} Thus, we overrule appellant‘s assignments of error two, four, five, six, seven, eight, nine, ten, eleven,5 and twelve.
{12} To begin, the Supreme Court of Ohio has held that the statutory framework for modifying parental rights and responsibilities, pursuant to
{13} Of note as well:
In order to further a child‘s best interest, a trial court has the discretion to limit parenting time rights. Moore v. Moore, 5th Dist. No. 04CA111, 2005-Ohio-4151, ¶ 7; Hoppel [v. Hoppel, 7th Dist. No. 03 CO 56, 2004-Ohio-1574] at ¶ 15; Anderson v. Anderson, [147 Ohio App.3d 513], 2002-Ohio-1156, ¶ 18 [7th Dist.]. Trial courts may restrict the time and place of visitation, determine the conditions under which parenting time will take place, and deny parenting time rights altogether if parenting time would not be in the best interest of the child. Moore at ¶ 7; In re Bailey, 1st Dist. No. C-040014, 2005-Ohio-3039, ¶ 25; Hoppel at ¶ 15; Anderson at ¶ 18.
Williamson v. Cooke, 10th Dist. No. 09AP-222, 2009-Ohio-6842, ¶ 18.
{14} Appellant‘s claim that the trial court‘s decision is equivalent to complete termination of her parental rights is rebutted by the trial court‘s adoption of the magistrate‘s statement as follows:
Notices Pursuant to
§3109.051 : The court finds that the relationship between defendant and [minor child] is such that any interaction between defendant and [minor child] prior to extensive individual counseling for defendant and reunification counseling for both is detrimental to the minor child and not in her best interests.
{15}
IV. Conclusion
{16} For the foregoing reasons, we overrule appellant‘s twelve assignments of error and the judgment of the Franklin County Court of Common Pleas, Division of Domestic Relations, is affirmed.
Judgment affirmed.
SADLER, J., concurs in part and concurs in judgment.
BRUNNER, J., concurs in part and dissents in part.
SADLER, J., concurring separately and concurring in judgment.
{17} I concur with the conclusion and rationale of the lead opinion in determining that our review on this matter is limited to plain error and that appellant failed to raise plain error in any of her assignments of error. I also concur with the rationale and conclusion of the lead opinion to not address assignments of error two, four, five, six, seven, eight, nine, ten, eleven, and twelve on this basis. In my view, this same analysis applies equally to assignments of error one and three. For these reasons, I concur with the lead opinion in affirming the judgment of the trial court.
{18} I concur in judgment only with the lead opinion as to all assignments of error, except the tenth and eleventh assignments of error. The trial court‘s decision designates appellee as the sole residential and custodial parent of the parties’ minor child, suspends appellant‘s visitation time pending extensive individual counseling for appellant, determining that further reunification counseling is not in the minor child‘s best interests, and denies appellant access to the minor child‘s health and school records and the child‘s extracurricular activities. As to the tenth and eleventh assignments of error, concerning parenting time and access to records and extracurricular activities pursuant to
{19} In reviewing appellant‘s tenth and eleventh assignments of error, I am troubled by the omission of a separate analysis of the factors set forth in
{20} The magistrate decided that appellant‘s relationship with the child was such that any interaction prior to extensive individual counseling for appellant and reunification counseling for both would be detrimental to the child and not in her best interests. Appellee also acknowledges that the door remains open for restoration of
{21}
In determining whether to grant parenting time to a parent pursuant to this section or
section 3109.12 of the Revised Code or companionship or visitation rights to a grandparent, relative, or other person pursuant to this section orsection 3109.11 or3109.12 of the Revised Code , in establishing a specific parenting time or visitation schedule, and in determining other parenting time matters under this section orsection 3109.12 of the Revised Code or visitation matters under this section orsection 3109.11 or3109.12 of the Revised Code , the court shall consider all of the following factors:(1) The prior interaction and interrelationships of the child with the child‘s parents, siblings, and other persons related by consanguinity or affinity, and with the person who requested companionship or visitation if that person is not a parent, sibling, or relative of the child;
(2) The geographical location of the residence of each parent and the distance between those residences, and if the person is not a parent, the geographical location of that person‘s residence and the distance between that person‘s residence and the child‘s residence;
(3) The child‘s and parents’ available time, including, but not limited to, each parent‘s employment schedule, the child‘s school schedule, and the child‘s and the parents’ holiday and vacation schedule;
(4) The age of the child;
(5) The child‘s adjustment to home, school, and community;
(6) If the court has interviewed the child in chambers, pursuant to division (C) of this section, regarding the wishes and concerns of the child as to parenting time by the parent who is not the residential parent or companionship or visitation by the grandparent, relative, or other person who requested companionship or visitation, as to a specific parenting time or visitation schedule, or as to other parenting time or visitation matters, the wishes and concerns of the child, as expressed to the court;
(7) The health and safety of the child;
(8) The amount of time that will be available for the child to spend with siblings; (9) The mental and physical health of all parties;
(10) Each parent‘s willingness to reschedule missed parenting time and to facilitate the other parent‘s parenting time rights, and with respect to a person who requested companionship or visitation, the willingness of that person to reschedule missed visitation;
(11) In relation to parenting time, whether either parent previously has been convicted of or pleaded guilty to any criminal offense involving any act that resulted in a child being an abused child or a neglected child; whether either parent, in a case in which a child has been adjudicated an abused child or a neglected child, previously has been determined to be the perpetrator of the abusive or neglectful act that is the basis of the adjudication; and whether there is reason to believe that either parent has acted in a manner resulting in a child being an abused child or a neglected child;
(12) In relation to requested companionship or visitation by a person other than a parent, whether the person previously has been convicted of or pleaded guilty to any criminal offense involving any act that resulted in a child being an abused child or a neglected child; whether the person, in a case in which a child has been adjudicated an abused child or a neglected child, previously has been determined to be the perpetrator of the abusive or neglectful act that is the basis of the adjudication; whether either parent previously has been convicted of or pleaded guilty to a violation of
section 2919.25 of the Revised Code involving a victim who at the time of the commission of the offense was a member of the family or household that is the subject of the current proceeding; whether either parent previously has been convicted of an offense involving a victim who at the time of the commission of the offense was a member of the family or household that is the subject of the current proceeding and caused physical harm to the victim in the commission of the offense; and whether there is reason to believe that the person has acted in a manner resulting in a child being an abused child or a neglected child;(13) Whether the residential parent or one of the parents subject to a shared parenting decree has continuously and willfully denied the other parent‘s right to parenting time in accordance with an order of the court;
(14) Whether either parent has established a residence or is planning to establish a residence outside this state;
(15) In relation to requested companionship or visitation by a person other than a parent, the wishes and concerns of the child‘s parents, as expressed by them to the court;
(16) Any other factor in the best interest of the child.
{22} As we stated in Graham v. Harrison, 10th Dist. No. 08AP-1073, 2009-Ohio-4650, ¶ 39-40:
In Dannaher v. Newbold, 10th Dist. No. 03AP-155, 2004-Ohio-1003, ¶ 114, we noted that
R.C. 3109.051(F)(2) “requires each common pleas court to adopt standard parenting time guidelines.” Pursuant to that requirement, the Franklin County Court of Common Pleas, Division of Domestic Relations, has adopted Loc.R. 27. A court possesses “discretion to deviate from its standard parenting time guidelines based upon factors set forth in division (D) of this section.” Id. In Dannaher, while we noted that, “[a] deviation from the standard schedule is, of course, permitted if that deviation will serve the child‘s best interest,” we also determined that where a trial court does deviate from the standard schedule without mention of theR.C. 3109.051 factors and an explanation for the deviation, the case must be remanded for the trial court to do so. Id. at ¶ 122.The factors enumerated in
R.C. 3109.051 are not identical to, or interchangeable with, the factors inR.C. 3109.04 in determining whether shared parenting is in the child‘s best interest. Flynn v. Flynn, 10th Dist. No. 02AP-801, 2003-Ohio-990. In the present case, while the trial court thoroughly discussed theR.C. 3109.04 factors in determining whether shared parenting was in the child‘s best interest, it made no mention of theR.C. 3109.051 factors relating to parenting time, and it deviated from the Loc.R. 27 schedule without an explanation therefor.
{23} In Cavagnaro v. Cavagnaro, 12th Dist. No. CA2012-02-012, 2012-Ohio-4024, ¶ 11, the trial court implicitly considered some factors listed in
{24} The decision in this matter contains the same error requiring reversal as in Flynn and Graham, albeit the magistrate did note that then-applicable Loc.R. 27 of the Franklin County Court of Common Pleas, Domestic Relations Division, would not be adopted as appellant would not have any parenting time. The Supreme Court of Ohio clearly stated in Braatz that “modification of visitation rights is governed by
{25} Our decisions have treated the mistaken substitution of
{26} The Seventh District Court of Appeals in Campana v. Campana, 7th Dist. No. 08 MA 88, 2009-Ohio-796 noted
{27} In In re K.S., 12th Dist. No. CA2012-07-050, 2013-Ohio-216, ¶ 53-55, the Twelfth District Court of Appeals excused the failure to address the
{28} I would sustain the eleventh assignment of error, as well. The magistrate‘s decision gave no reason why it would be in the best interest of the child for appellant to not receive school activity notices,6 to not attend school and extracurricular activities and to not obtain mental health records under
{29} For these reasons, I concur with the lead opinion in affirming the judgment of the trial court as to all assignments of error, except assignments ten and eleven. I would sustain those assignments of error, reversing the trial court‘s decision and remanding it for resolution of those assignments of error in accordance with this dissenting opinion.