In re T.D.J.
S.M.J., pro se
P.O. Box 32706
Euclid, Ohio 44132
FOR APPELLEE FATHER
T.J., Jr., pro se
2982 E. 59th Street
Cleveland, Ohio 44127
{1} Appellant-mother, S.M.J. (“mother“), appeals from the denial of her motion to modify custody and the grant of a motion to modify custody filed by appellee-father, T.J., Jr. (“father“), giving him legal custody of their minor child. Mother assigns three errors related to that decision and the denial of other motions. After a thorough review of the record and law, we reverse for a new hearing.
I. Factual and Procedural History
{2} Mother and father entered into a shared parenting agreement in 2009. However, problems arose between the parents that resulted in a number of reports of abuse and neglect to Cuyahoga County Department of Children and Family Services (“CCDCFS“), the police, and others. The investigations that resulted all ended with findings that the allegations were unsubstantiated. Prior to August 17, 2012, the parties had filed numerous motions, but in a tense hearing on that date, the trial judge dismissed all motions except two for failure to prosecute by failing to abide by court orders. The court indicated a long history of fighting between mother and father with little concern for the best interest of the child. This court reversed the dismissals of father‘s motions for failure to properly inform the parties that failure to comply would result in dismissal. In re T.D.J., III, 8th Dist. Cuyahoga No. 98963, 2013-Ohio-1454.
{3} From March 30, 2012, to the October 28, 2013 trial date, the parties filed more than 31 motions with the court seeking sanctions, modification of custody, emergency custody, to show cause, and a myriad of other things. The trial court held a two-day hearing on these motions and those subject to this court‘s reversal, which began on October 28, 2013. The trial court issued a ten-page opinion on December 31, 2013, disposing of the motions. The trial court dismissed the motions of both mother and father that sought sanctions and to declare either
{4} Mother appeals from the court‘s decision, assigning three errors for review:
I. The trial court abused its discretion by granting [an] oral motion during trial dismissing all of appellant‘s witnesses violating Judicial Code 2.6.
II. The trial court abused its discretion in granting appellee sole custody when the weight of the evidence shows change of circumstance with child and appellee violating R.C. 3109.04(E)(1)(a).
III. The trial court abused its discretion dismissing with prejudice appellant‘s motions violating Ohio Judicial Code 2.15.
II. Law and Analysis
A. Exclusion of Witnesses
{5} Mother first argues that the trial court erred in excluding her from calling any witnesses other than herself. Although she couches this assigned error in terms of violating a cannon of judicial ethics, this court interprets this argument as alleging that the trial court abused its discretion in granting father‘s motion to exclude these witnesses.
{6} Because this court has no authority to enforce the code of judicial conduct, we cannot address the other aspect of mother‘s assigned error and her third assignment of error.
{7} At the commencement of trial, father moved to preclude mother from calling any witnesses other than herself. Father stated that he had not been served with any notices of subpoena as required by
{8}
A party on whose behalf a subpoena is issued under division (A)(1)(b)(ii), (iii), (iv), (v), or (vi) of this rule shall serve prompt written notice, including a copy of the subpoena, on all other parties as provided in
Civ.R. 5 . If the issuing attorney modifies a subpoena issued under division (A)(1)(b)(ii), (iii), (iv), (v), or (vi) of this rule in any way, the issuing attorney shall give prompt written notice of the modification, including a copy of the subpoena as modified, to all other parties.
The Staff Notes accompanying the 2005 amendment to the rule state:
The notice requirement of amended
Civ.R. 45(A)(3) , like its counterpart in Rule 45(b)(1), Federal Rules of Civil Procedure, is intended “to afford other parties an opportunity to object to the production or inspection, or to serve ademand for additional documents or things.” Advisory Committee‘s Note to 1991 Amendments to the Federal Rules of Civil Procedure; see, e.g., Spencer v. Steinman, 179 F.R.D. 484, 488 (E.D.Pa. 1998).
No penalty is prescribed for a party‘s violation of the notice requirement. Schultz v. Mayfield Neurological Inst., 1st Dist. Hamilton No. C-120764, 2013-Ohio-4146, ¶ 21.
{9} A reading of
{10}
{12} Mother‘s first assignment of error is sustained. This renders her second assignment of error moot.
III. Conclusion
{13} The trial court erred in precluding mother from calling witnesses at trial. Mother was not required to send notice of subpoenas to father pursuant to
{14} This cause is reversed and remanded to the lower court for further proceedings consistent with this opinion.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the common pleas court, juvenile division to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
FRANK D. CELEBREZZE, JR., JUDGE
MARY J. BOYLE, A.J., and KATHLEEN ANN KEOUGH, J., CONCUR