In Re: C.W. and B.W.
C.A. Nos. 16CA011044, 17CA011162, 17CA011165
IN THE COURT OF APPEALS NINTH JUDICIAL DISTRICT
December 28, 2018
2018-Ohio-5265
SCHAFER, Presiding Judge.
STATE OF OHIO, COUNTY OF LORAIN. APPEAL FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF LORAIN, OHIO CASE No. 10JG30837
Dated: December 28, 2018
SCHAFER, Presiding Judge.
{¶1} Defendant-Appellant/Cross-Appellee, Lindsey E. Eberhardt, appeals three separate judgments, entered October 14, 2016, June 5, 2017, and June 7, 2017, in the Lorain County Court of Common Pleas, Juvenile Division. Plaintiffs-Appellees/Cross-Appellants, Melva Sherwood and Scott Sherwood (collectively, the “Sherwoods“), appeal the June 7, 2017 judgment entry. For the reasons that follow, we affirm in part, reverse in part, and remand.
I.
{¶2} Ms. Eberhardt is the mother of two minor children born to her and father, Andrew Weaver. C.W. was born October 3, 2007. B.W. was born June 3, 2009. Ms. Eberhardt and Mr. Weaver were unmarried at the birth of both children.
{¶4} This matter involves a lengthy and complicated history beginning with the Sherwoods filing a complaint on September 14, 2010, seeking custody of C.W. and B.W. pursuant to
{¶5} Ms. Eberhardt reached an agreement with the Sherwoods and entered an agreed order on October 29, 2010. The agreed order restored Ms. Eberhardt as custodian and returned the children to her care. The order also set a temporary schedule for the Sherwoods to have visitation with the children.
{¶6} The Sherwoods filed a motion on May 10, 2011, seeking to establish grandparent visitation and companionship rights. They sought this visitation in the alternative to an award of custody. The Sherwoods asserted that they were entitled to visitation, pursuant to
{¶7} Shortly thereafter, on June 7, 2011, Ms. Eberhardt and Mr. Weaver married. Ms. Eberhardt and Mr. Weaver filed a motion to dismiss all claims, arguing that, in light of their status as the married biological parents of C.W. and B.W., the trial court lacked subject matter jurisdiction. The Sherwoods responded in opposition, asserting that the trial court had jurisdiction over the pending complaint for custody. Further, the Sherwoods argued that marriage did not affect the trial court‘s authority to consider their alternative request for
{¶8} On October 11, 2011, the parties reported to the trial court that they reached a complete resolution of the case. The Sherwoods, Ms. Eberhardt, Mr. Weaver, along with counsel, signed and submitted an agreed journal entry setting forth the terms of their agreement and incorporating by reference the attached transcript of their oral agreement. The agreement stated that they reached “a resolution of all matters in regards to [the September 14, 2010 c]omplaint” and “all pending motions before the court are hereby resolved and otherwise disposed of as a result of the resolution set forth herein.” The parties assented to a visitation schedule, detailed the terms and conditions of the visitation, and agreed that the court mediator would provide assistance in resolving disputes that might arise pertaining to the children‘s monthly visits. The judge signed the agreed journal entry memorializing the parties’ settlement agreement, and it was filed in the record on November 1, 2011.
{¶9} With the settlement agreement in place and the litigation resolved, the visitation schedule remained. Nearly one year later, on October 3, 2012, Mr. Weaver passed away from a heroin overdose. The parties continued on with the visitation schedule for another two years after Mr. Weaver‘s death, until October 17, 2014—nearly three years after entering the agreement—when the Sherwoods filed a motion under the case number of the previously resolved action. The Sherwoods requested that the trial court modify their visitation schedule to increase visitation time with the children.
{¶10} Shortly thereafter, on December 5, 2014, Ms. Eberhardt filed her own motion to modify companionship time. Ms. Eberhardt sought to discontinue what she described as “court-
{¶11} The Sherwoods next filed a supplemental motion to modify companionship time. They sought to stand in the place of Mr. Weaver, the children‘s deceased father, and requested that the trial court grant them, at a minimum, a “standard order of parenting time.” Then, on October 6, 2015, the Sherwoods filed a motion for legal custody pursuant to
{¶12} Through the course of performing his duties, the GAL deemed it necessary to file a motion for temporary orders, requesting that the trial court place certain limitations and restrictions on the Sherwoods’ visitation with the children, including a suspension of any overnight visitation. The trial court entered an order on June 29, 2016, suspending the Sherwoods from all overnight visitation with the children. The Sherwoods contested the trial court‘s order restricting their visitation with the children. On July 8, 2016 the Sherwoods filed a motion to remove the GAL for his “outrageous conduct” and alleged that the GAL had “lost all objectivity” and “grossly misstated the facts and twisted the truth” and “cannot be trusted.” The trial court denied this motion.
{¶13} Filing a notice of voluntary dismissal on August 29, 2016, the Sherwoods dismissed their motion for custody and motion to modify grandparent visitation time. Thereafter, the trial court issued a journal entry indicating that Ms. Eberhardt‘s motion to modify
{¶14} The court held a hearing over the course of several days to determine Ms. Eberhardt‘s motion to modify or terminate the Sherwoods’ visitation with the children. Following the hearing, the court sua sponte scheduled and conducted an in camera interview with C.W. and B.W. On October 14, 2016, the trial court issued its judgment entry ruling on visitation issues. Ms. Eberhardt appealed that judgment entry. See In Re: C.W. and B.W., 9th Dist. Lorain No. 16CA011044 (Nov. 10, 2016).
{¶15} Ms. Eberhardt filed a motion on November 25, 2016, requesting sanctions against the Sherwoods and an award of attorney fees for frivolous conduct pursuant to
{¶16} On April 11, 2017, the Sherwoods filed preliminary objections to the magistrate‘s decision. Ms. Eberhardt then filed her objection to the magistrate‘s decision ten days later, on April 21, 2017. The Sherwoods followed up with a supplement to their objections.
{¶17} On June 5, 2017, the trial court issued a judgment entry ruling on Ms. Eberhardt‘s motion for attorney fees and transcripts. The trial court overruled the motion and found that Ms. Eberhardt failed to timely file her motion for attorney fees. The trial court issued a judgment entry on June 7, 2017, affirming its prior judgment entry adopting the magistrate‘s decision,
{¶18} The Sherwoods appealed the June 7, 2017 judgment entry regarding the magistrate‘s decision. See In Re: C.W. and B.W., 9th Dist. Lorain No. 17CA011162 (Jun. 30, 2017). Ms. Eberhardt then filed an appeal of both the June 5, 2017 and June 7, 2017 judgment entries. See In Re: C.W. and B.W., 9th Dist. Lorain No. 17CA011165 (Jul. 5, 2017). This Court consolidated the three appeals from cases 16CA011044, 17CA011162, and 17CA011162.
{¶19} This case was remanded on December 21, 2017, upon motion filed by the Sherwoods, to allow the trial court to rule on the
{¶20} On appeal, Ms. Eberhardt presents four assignments of error. The Sherwoods present five issues on cross-appeal for our review.
II.
Ms. Eberhardt‘s Assignment of Error I
The trial court was without subject matter jurisdiction to issue a grandparent visitation order and the trial court erred in not terminating the existing order.
{¶21} Ms. Eberhardt argues that the Sherwoods never filed a complaint for visitation under any statute that would confer subject matter jurisdiction upon the juvenile court to issue an order awarding grandparent visitation rights. Therefore, Ms. Eberhardt contends, the trial court
A. Jurisdiction to order/grant grandparent visitation rights
{¶22} “A juvenile court may exercise jurisdiction only if expressly granted the authority to do so by statute.” Rowell v. Smith, 133 Ohio St.3d 288, 2012-Ohio-4313, ¶ 13, citing
{¶23} “Ohio law provides various methods for grandparents to obtain a legal right of access to their grandchildren outside of the juvenile custody situation.” In re M.N., 9th Dist. Wayne No. 07CA0088, 2008-Ohio-3049, ¶ 20.
If either the father or mother of an unmarried minor child is deceased, the court of common pleas of the county in which the minor child resides may grant the parents and other relatives of the deceased father or mother reasonable companionship or visitation rights with respect to the minor child during the child‘s minority if the parent or other relative files a complaint requesting reasonable companionship or visitation rights and if the court determines that the granting of the companionship or visitation rights is in the best interest of the minor child.
If a child is born to an unmarried woman, the parents of the woman and any relative of the woman may file a complaint requesting the court of common pleas of the county in which the child resides to grant them reasonable companionship or visitation rights with the child. If a child is born to an unmarried woman *** the parents of the father and any relative of the father may file a complaint requesting that the court grant them reasonable companionship or visitation rights with the child.
The court may grant a grandparent‘s request under
{¶24} Significantly, even where a grandparent properly asserts a statutory claim for companionship or visitation rights and invokes the jurisdiction of the juvenile court, an order of the court granting companionship or visitation rights must be based on the court‘s determination that visitation with the grandparent is in the best interest of the child. See
{¶25} For ease of analysis, we review separately the contested orders of November 1, 2011, and October 14, 2016. Furthermore, we note that this matter involves a complicated and voluminous procedural history with several ancillary issues stemming from the custody and
B. The journal entry of November 1, 2011
{¶26} In 2010, the Sherwoods commenced the action with a complaint seeking custody of C.W. and B.W. Thereafter, they filed a motion seeking, in the alternative, companionship and visitation rights as grandparents of the children pursuant to
{¶27} The parties executed an agreement resolving and disposing of “all pending motions before the court” including “a resolution of all matters in regards to [the c]omplaint” filed September 14, 2010. The agreement provided that the Sherwoods would have visitation with C.W. and B.W. according to the stated schedule as agreed by the parties. The parties agreed that the court mediator would provide assistance in resolving disputes that might arise pertaining to the monthly visits and that if, after the children reached age ten, visitation would cease if the children expressed such a wish to the mediator. The agreement was entered upon the record as a journal entry on November 1, 2011, and signed by the judge.
{¶29} However, this Court‘s review of the record reveals that the trial court did not order grandparent visitation pursuant to
{¶30} The November 1, 2011 journal entry was an agreement between the parties to resolve the litigation. As such, it did not involve the trial court rendering a judgment or adjudicating the merits of any claims. The trial judge signed the agreed journal entry, but did not purport to exercise jurisdiction with respect to the Sherwoods’ complaint for custody or motion for visitation rights. We conclude that Ms. Eberhardt‘s argument—that the court lacked
C. The judgment entry of October 14, 2016
{¶31} With the visitation schedule in place, and with the parties having agreed that the complaint and all motions were resolved, the matter was inactive for nearly three years, although neither a notice of dismissal nor an administrative dismissal of the complaint appears in the record following the parties’ settlement. The Sherwoods sought to reactivate the original case by filing a motion to “modify companionship time” and requesting that the trial court modify the November 1, 2011 schedule to allow the Sherwoods to spend more time with the children. The Sherwoods later supplemented their motion to modify, requesting that the juvenile court allow them to stand in place of the children‘s deceased father and grant them, at a minimum, a standard order of “parenting” time.
{¶32} Ms. Eberhardt responded by filing her own motion to modify companionship time. She requested that the court “discontinue all court-appointed visitation time” between her children and the Sherwoods. Ms. Eberhardt asserted that “the court-appointed time is not in the best interest of the children.”
{¶33} The Sherwoods next filed a motion for legal custody of C.W. and B.W. pursuant to
{¶35} The Sherwoods contested the trial court‘s order restricting their visitation with the children and sought, unsuccessfully, to remove the GAL for allegedly “outrageous conduct” and on the grounds that the GAL had “lost all objectivity” and “grossly misstated the facts and twisted the truth” and “cannot be trusted.” Soon thereafter, the Sherwoods filed a notice purporting to dismiss their motions for custody and modification of grandparent visitation time. In light of the dismissal of the custody motion, the GAL filed a motion seeking clarification as to his status in the case and requested that the court hear Ms. Eberhardt‘s motion to modify visitation.
{¶36} The trial court issued a journal entry acknowledging that the Sherwood‘s motions were dismissed. The journal entry indicated that the court would hear all pending motions, which it recognized as the GAL‘s motion for fees and Ms. Eberhardt‘s motion to modify visitation. The trial court also removed the GAL from the matter since the Sherwoods were no longer challenging Ms. Eberhardt for custody of the children.
{¶38} Although the trial court‘s stated purpose for the hearing was to review Ms. Eberhardt‘s motion to modify or discontinue visitation, the trial court did not address its jurisdiction or authority to modify the parties’ agreed journal entry of November 1, 2011. Instead, the court summarily concluded that because “the prior visitation decree originated with” the trial court, the court had proper jurisdiction to consider mother‘s motion. However, the trial court also discussed cases involving relative or grandparent visitation and companionship rights and cited to
{¶39} The trial court then sua sponte concluded that it possessed jurisdiction pursuant to
{¶40} Following its review of the
{¶41} The October 14, 2016 judgment stated several orders, including that the Sherwoods would receive visitation with C.W. and B.W. on the second weekend of each month from Friday at 6:00 p.m. to Sunday at 6:00 p.m. The trial court ordered that the Sherwoods were restrained from certain behavior and activities regarding the children, that the Sherwoods must not undermine Ms. Eberhardt‘s authority as the children‘s mother, and that the Sherwoods must promptly communicate to Ms. Eberhardt any issues or concerns arising during visitation. Regarding Ms. Eberhardt, the trial court ordered that she shall provide the “children with a structured academic curriculum that includes social development with peers” and stated that if she is unable to meet the children‘s needs through home schooling, then she “shall enroll the
{¶42} We conclude that the trial court misconstrued its role in reviewing Ms. Eberhardt‘s motion. Where, as is the case here, the father of a minor child is deceased,
{¶43} Although the court had not previously made any finding or adjudication regarding the Sherwoods’ right to visitation or companionship with the children, the trial court usurped the statutory authority of
D. Conclusion
{¶44} The trial court lacked jurisdiction pursuant to
Ms. Eberhardt‘s Assignment of Error II
The trial court abused its discretion in not terminating grandparents[‘] visitation[.]
{¶45} Ms. Eberhardt argues that the trial court erred by not terminating the Sherwoods’ visitation with the children. However, in the previous assignment of error, we concluded that the October 14, 2016 judgment entry determining visitation issues pursuant to
The [trial] court erred, abused its discretion and violated [Ms. Eberhardt]‘s procedural due process rights in overruling her objection to [the] magistrate‘s decision as being untimely filed.
{¶46} The trial court, in the October 14, 2016 judgment entry, set the issue of the allocation of GAL fees over for a separate hearing before the magistrate. On March 29, 2017, the magistrate issued a decision allocating the GAL fees between Ms. Eberhardt and the Sherwoods and ruling on another issue relating to a prior magistrate‘s decision. The trial court adopted the magistrate‘s decision that same day. The Sherwoods filed preliminary objections to the magistrate‘s decision on April 11, 2017. Ms. Eberhardt then filed her objection to the magistrate‘s decision ten days later on April 21, 2017. On May 30, 2017, the Sherwoods supplemented their objections to the magistrate‘s decision.
{¶47} The trial court issued its judgment entry ruling on the objections on June 7, 2017. The trial court overruled the Sherwoods’ objections to the magistrate‘s decision, stating that it would adhere to its March 29, 2017 judgment entry. The trial court declined to consider Ms. Eberhardt‘s objection, stating that she failed to timely file her objection. Ms. Eberhardt argues that the trial court erred in this conclusion and contends that her objection was timely filed. In response, the Sherwoods concede that Ms. Eberhardt timely filed her objection pursuant to
{¶48} Upon review of the record, it appears that the parties are correct in their shared conclusion that Ms. Eberhardt‘s objection was timely filed. However, on August 22, 2018, this Court granted the Sherwoods’ motion to supplement the record with the trial court‘s judgment
Ms. Eberhardt‘s Assignment of Error IV
The [trial] court erred, abused its discretion and violated [Ms. Eberhardt]‘s procedural due process rights in overruling her motion for attorney fees as being untimely filed.
{¶49} On November 15, 2016, Ms. Eberhardt filed a motion for and award of attorney fees and requesting that transcript expenses be taxed as court costs. Ms. Eberhardt sought attorney fees pursuant to
{¶50} ”
{¶51} Ms. Eberhardt acknowledges that
{¶52} The issues relevant to Ms. Eberhardt‘s motion appear to have been resolved in the October 14, 2016 judgment entry; the “final order” which is the subject of her initial appeal. Although we determined above that that the October 14, 2016 judgment entry is void ab initio because the trial court lacked jurisdiction to enter it, we cannot say that the trial erred in finding that Ms. Eberhardt‘s motion filed November 15, 2016 was untimely. Ms. Eberhardt‘s fourth assignment of error is overruled.
The Sherwoods’ Assignment of Error I
The trial court did not have subject matter jurisdiction to issue the June 7, 2017 judgment entry regarding [GAL] fees.
The Sherwoods’ Assignment of Error II
The trial court deprived the Sherwoods of due process of law by refusing to conduct an evidentiary hearing on the necessity, reasonableness and amount of [GAL] fees before allocating responsibility for payment thereof.
The Sherwoods’ Assignment of Error III
The trial court erred and abused its discretion by making findings that are not supported by the record.
The trial court erred in affirming the magistrate‘s decision to quash a properly-issued subpoena and cancelling a deposition of the [GAL] on the issue of [GAL] fees.
The Sherwoods’ Assignment of Error V
The trial court erred in affirming the magistrate‘s action ruling on the Sherwoods’ motion to set aside his own orders preventing an evidentiary hearing on [GAL] fees and to quash a subpoena directed to the [GAL].
{¶53} For ease of analysis, we review the Sherwoods’ assignments of error together. Initially we note that Ms. Eberhardt has not filed a brief in response to the Sherwoods’ merit brief. However, as a threshold matter we must address the issue of mootness with respect to each of the Sherwoods’ assignments of error.
{¶54} As we discussed above in Ms. Eberhardt‘s third assignment of error, the trial court, on remand, granted the Sherwoods’
{¶55} The trial court‘s June 8, 2018 judgment entry vacated the basis for the Sherwoods’ appeal and rendered moot all five of the Sherwoods’ assignments of error. Consequently, we need not reach the merits of any of the Sherwoods’ five assignments of error. The Sherwoods’ assignments of error are overruled.
{¶56} Ms. Eberhardt‘s first assignment of error is sustained in part, the trial court‘s judgment entry of October 14, 2016 is vacated, and the matter is remanded to the trial court for proceedings consistent with this decision. Ms. Eberhardt‘s second, third, and fourth assignments of error are overruled. The Sherwoods’ five assignments of error are all overruled.
Judgment affirmed in part, reversed in part, and cause 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 Lorain, State of Ohio, to carry this judgment into execution. A certified copy of this journal entry shall constitute the mandate, pursuant to
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.
Costs taxed equally to both parties.
JULIE A. SCHAFER
FOR THE COURT
CARR, J. CONCURS IN JUDGMENT ONLY.
APPEARANCES:
LINDSEY E. EBERHARDT, pro se, Appellant/Cross-Appellee.
BRENT L. ENGLISH, Attorney at Law, for Appellees/Cross-Appellants.
JAMES V. BARILLA, Attorney at Law, for Appellee.