BERT MOLZON, Plaintiff-Appellee, v. JEANNE MOLZON, Defendant-Appellant.
CASE NO. 2021-A-0024
IN THE COURT OF APPEALS OF OHIO ELEVENTH APPELLATE DISTRICT ASHTABULA COUNTY
May 16, 2022
2022-Ohio-1634
MARY JANE TRAPP, J.
Civil Appeal from the Court of Common Pleas, Trial Court No. 2015 DR 00055. Judgment: Affirmed in part and remanded.
Joseph G. Stafford and Nicole A. Cruz, Stafford Law Co., LPA, 55 Erieview Plaza, 5th Floor, Cleveland, OH 44114 (For Defendant-Appellant).
Edith M. Jonas, P.O. Box 684, Andover, OH 44003 (Guardian ad litem).
O P I N I O N
MARY JANE TRAPP, J.
{¶1} Appellant, Jeanne Molzon (“Ms. Molzon“), appeals the judgments of the Ashtabula County Court of Common Pleas that overruled her objections and adopted the magistrate‘s decision that terminated the parties’ shared parenting plan, granted custody to appellee, Bert Molzon (“Mr. Molzon“), and terminated Mr. Molzon‘s child support obligation.
{¶2} Ms. Molzon raises four assignments of error on appeal, contending that the magistrate (1) erred in denying her motion to continue after her counsel was granted leave
{¶3} After a careful review of the record and pertinent law, we find Ms. Molzon‘s first three assignments of error to be without merit. Firstly, Ms. Molzon failed to demonstrate prejudice from the magistrate‘s ruling denying her motion for a continuance and/or offer any additional evidence or testimony that would have likely changed the outcome of the hearing on the motion to terminate shared parenting.
{¶4} Secondly, the magistrate was not required to find a change in circumstances before terminating the shared parenting plan.
{¶5} Lastly, regarding Ms. Molzon‘s fourth assignment of error as to the termination of child support, we remand this matter to the trial court because it appears from the record before us that the trial court did not complete and file a child support worksheet, inasmuch as no financial information was submitted. Thus, we have nothing before us to review, and any determination regarding the trial court‘s termination of child support wоuld be premature.
Substantive and Procedural Facts
{¶7} In 2017, the Ashtabula County Court of Common Pleas granted the parties a divorce in which the parties agreed to a shared parenting plan for their two minor children, R.M., born in 2006, and J.M., born in 2011.
{¶8} Several years later, at the start of the COVID epidemic in January 2020, Mr. Molzon filed a “Motion to Terminate the Shared Parenting Plan and Modify Mother‘s Time.” At the time the motion was filed, Ms. Molzon had the children from Monday until Wednesday and every other weekend, and Mr. Molzon paid a child support obligation of $1,697.66. In his affidavit attached to his motion, Mr. Molzon attested that he and Ms. Molzon were having problems with their older daughter‘s schooling, as well as difficulty communicating, and that it would be in the children‘s best interests that shared parenting be terminated and he be designated the residential parent and legal custodian.
{¶9} Mr. Molzon filed several other motions, including a motion for a guardian ad litem (“GAL“) to be appointed for the children and a motion for the parties to communicate via Our Family Wizard (“OFW“), a mobile apрlication for co-parenting that facilitates and tracks communication, helps coordinate child duties, and stores important information. He also filed a motion seeking an independent psychological investigation due to Ms. Molzon‘s alleged erratic behavior and confrontations she was having with their daughter, R.M. Finally, Mr. Molzon sought an emergency ex parte motion to suspend Ms. Molzon‘s parenting time and an ex parte emergency motion to enroll R.M. in online schooling.
{¶11} The magistrate held a full hearing, during which the parties reached an interim agreement that included a new parenting schedule providing Ms. Molzon parenting time with the children every other weekend and additional parenting time after school on Mondays, Tuesdays, and Wednesdays with their son, J.M. The parties also agreed to communicate via OFW, and a GAL was appointed.
{¶12} At a pretrial several months later, the parties agreed to adjust their parenting time with the children on an alternative week on/week off schedule, and the trial was continued in order to allow the GAL time to speak with the children since their meeting was delayed due to restrictions associated with the COVID epidemic.
{¶13} At the final pretrial, the parties agreed that both children would undergo complete mental health evaluations.
Motion for a Continuance
{¶14} On the day before trial, Ms. Molzon, pro se, filed a motion requesting a continuance because she terminated her attorney and was seeking new counsel. On the same day, the trial court denied the motion and granted her attorney‘s motion to withdraw. On the day of trial, Ms. Molzon orally moved for a continuance due to her counsel‘s withdrawal:
{¶15} “[The Court]: Yesterday, prior to the hearing, Ms. Molzon‘s attorney of record was allowed to withdraw because the filing indicated, Ms. Molzon, that you had terminated her services, correct?
{¶16} “[Ms. Molzon]: Oh, sorry. Yes.
{¶17} “[The Court]: Okay. You filed then a motion for an emergency continuance. Actually, it wasn‘t a motion. It was a letter to the Court that was improperly served on the parties. The Court did consider it, though, considering the circumstances, and denied the motion. You have another motion?
{¶18} “[Ms. Molzon]: Ah, just that I would like to bе granted a continuance for, like 60 days, even 30 days, so I can seek counsel so I have legal representation, ‘cause I don‘t know what I‘m doing.
{¶19} “[The Court]: Ms. Kurt? (Mr. Molzon‘s counsel)
{¶20} “[Ms. Kurt]: Your Honor, my client actually has no position on the continuance.
{¶21} “[The Court]: Ms. Jonas? (the GAL)
{¶22} “[Ms. Jonas]: Ma‘am, I would oppose that motion for continuance. These children have been in limbo for several months, and I think a resolution of this case would be in their best interests.
{¶23} “[Ms. Kurt]: My client would concur with the Guardian, given the Guardian‘s statement, Your Honor.
{¶24} “[The Court]: Okay. This matter - - let‘s see - - it was filed in January. We had our final pretrial June 8, 2020. The matter was set for two days of hearings four
months ago after the COVID crisis had been dealt with by this Court, so at this point I am denying the continuance and I am proceeding today.”
{¶25} Ms. Molzon was present for the trial but did not participate in questioning witnesses and did not present any witnesses or exhibits.
Termination of Shared Parenting Hearing
{¶26} Prior to the start of trial, Ms. Molzon filed a motion for the court to conduct in camera interviews with the children, which the court granted. Mr. Molzon also withdrew his motion for an independent psychological evaluation. Mr. Molzon and the GAL testified at the hearing.
{¶27} Mr. Molzon testified that his primary concern was the stability of the children because Ms. Molzon was not coоperative with shared parenting, she did not keep him informed of the activities, she did not respond to OFW, and she responded to text messages infrequently. Mr. Molzon provided several purported examples.
{¶28} For instance, Mr. Molzon believed J.M. had a respiratory problem, but Ms. Molzon refused to respond to his requests to cooperate with a medical examination. He also attempted to arrange for flu shots for the children, but she disagreed and refused her consent. One of Ms. Molzon‘s adult children (instead of Ms. Molzon) informed Mr. Molzon of a serious incident between J.M. and a neighbor. In fact, her two adult children often relayed information to Mr. Molzon regarding the children. In addition, R.M. started to display behavioral difficulties, including inappropriate communications with a boy via her iPad, and vaping. R.M. told Mr. Molzon that Ms. Molzon allowed her to vape so long as she did not use “real things.”
{¶30} Mr. Molzon also testified that after the GAL filed her report, Ms. Molzon shared the report with the children, and R.M. threatened to commit suicide. He believes Ms. Molzon often shared inappropriate information with the children regarding himself and the custody proceedings.
{¶31} The GAL documented her findings in a report. Among other observations, the GAL noted Ms. Molzon‘s refusal to co-parent with Mr. Molzon in accordance with the shared parenting plan. Ms. Molzon viewed Mr. Molzon‘s attempts to communicate with her as trying to control her, and for the most part, Ms. Molzon did not respond to Mr. Molzon. With those issues in mind, the GAL recommended that Mr. Molzon be named the legal custodian and residential parent for school purposes; that Ms. Molzon have visitation on alternative weekends with an extra hour on her weekend during the school year; and that the parties share school breaks. The GAL “hesitantly agreed” to alternative weeks during the summer. Lastly, she rеcommended counseling for Ms. Molzon to learn better parenting skills and to address her personal issues.
{¶33} During the in camera interviews, the children confirmed the incidents between Ms. Molzon and R.M. They also discussed schedules, hоw each parent handled the other, and how each parent disciplined the children.
{¶34} The magistrate found that there was no evidence that either parent denied the other parenting time on a continuous basis. However, due to Ms. Molzon‘s lack of effort to share information, her failure to respond to Mr. Molzon‘s requests to discuss the children‘s needs, and her inability to consult with him regarding their needs, the magistrate found that shared parenting was no longer in the best interests of the children.
{¶35} The magistrate terminated the shared parenting plan, named Mr. Molzon as the residential parent and lеgal custodian of the children, and granted parenting time with Ms. Molzon every other weekend and one evening a week.
{¶36} The magistrate also terminated Mr. Molzon‘s child support order and ordered a recalculation of child support since no financial information had been submitted at trial.
Procedural Ping-Pong
{¶37} Shortly after trial, Ms. Molzon obtained counsel, filed preliminary objections to the magistrate‘s decision, and obtained an extension to file supplemental objections
{¶38} Before Ms. Molzon had the opportunity to file supplemental objections, the trial court issued a judgment entry adopting the magistrate‘s decision.
{¶39} Shortly afterwards, Ms. Molzon filed a motion to modify allocation of parental rights and responsibilities, alleging there was a change of circumstances because R.M. was residing with her 100% of the time and J.M. was residing with her 50% of the time.
{¶40} Ms. Molzon filed her supplemental objections to the mаgistrate‘s decision. Shortly thereafter, she filed a motion to vacate the trial court‘s order adopting the magistrate‘s decision because Mr. Molzon prepared and submitted the judgment entry without notifying Ms. Molzon. Further, the trial court had made no mention of Ms. Molzon‘s preliminary objections and issued the entry prior to the deadline for the filing of her supplemental objections.
{¶41} Ms. Molzon filed an appeal of the trial court‘s judgment entry adopting the magistrate‘s decision in this court.
{¶42} We remanded the matter to allow the trial court to rule on Ms. Molzon‘s motion to vacate. On remand, the trial сourt granted Ms. Molzon‘s motion to vacate because it had adopted the magistrate‘s decision before ruling on her timely objections. The trial court scheduled a hearing on her objections. Ms. Molzon filed a motion to
{¶43} After a video conference pretrial with the parties and their respective counsel, the magistrate issued an order noting that the issues before the court were Ms. Molzon‘s two motions to modify parental rights and responsibilities. Since the objections to the magistrate‘s deсision were yet unresolved, the parties agreed that the order providing for a weekly rotating parenting schedule would remain in place. Ms. Molzon also moved the court to reinstate the child support order and a motion to reactivate the GAL, which the magistrate granted.
{¶44} The trial court issued a judgment entry overruling Ms. Molzon‘s objections, and Ms. Molzon filed the instant appeal.
{¶45} The trial court issued a new judgment entry adopting the magistrate‘s decision after overruling Ms. Molzon‘s objections, and Ms. Molzon filed an amended appeal. Lastly, the trial court stayed Mr. Molzon‘s reinstated child support obligation pending this appeal.
{¶46} Ms. Molzon raises four assignments of error for our review:
{¶47} “[1.] The trial court erred as a matter of law and abused its discretion in denying the appellant‘s motion for continuance in order to obtain counsel.
{¶48} “[2.] The trial court erred as a matter of law and abused its discretion by granting the appellee‘s motion to terminate shared parenting and designating the appellee as the sole residential parent and legal custodian of the minor children.
{¶50} “[4.] The trial court erred as a matter of law and abused its discretion in modifying and terminating the appellee‘s child support obligation.”
Standard of Review
{¶51} This court has held that decisions involving the allocation of parental rights and responsibilities are accorded great deference on review. In re K.R., 11th Dist. Trumbull No. 2010-T-0050, 2011-Ohio-1454, ¶ 28; Miller v. Miller, 37 Ohio St.3d 71, 74, 523 N.E.2d 846 (1988). Thus, any judgment of the trial court involving the allocation of parental rights and responsibilities will not be disturbed absent a showing of an abuse of discretion. In re K.R. at ¶ 28; Davis v. Flickinger, 77 Ohio St.3d 415, 418, 674 N.E.2d 1159 (1997). Further, we review a judgment of the trial court adopting the decision of its magistrate for an abuse of discretion. In re K.R. at ¶ 28. In addition, an aрpellate court reviews the trial court‘s termination of a shared parenting plan and child support orders for an abuse of discretion. Id.; Booth v. Booth, 44 Ohio St.3d 142, 144, 541 N.E.2d 1028 (1989).
{¶52} An abuse of discretion is the “‘failure to exercise sound, reasonable, and legal decision-making.‘” State v. Beechler, 2d Dist. Clark No. 09-CA-54, 2010-Ohio-1900, ¶ 62, quoting Black‘s Law Dictionary 11 (8th Ed.Rev.2004). When an appellate court is reviewing a pure issue of law, the mere fact that the reviewing court would decide the issue differently is enough to find error. Id. at ¶ 67. By contrast, where the issue on review has been confided to the discretion of the trial court, the mere fact that the
{¶53} The highly deferential abuse of discretion standard is particularly appropriate in allocation of parental rights and responsibilities cases since the trial judge is in the best position to determine the credibility of the witnesses and there “‘may be much that is evident in the parties’ demeanor and attitude that does not translate well to the record.‘” In re K.R. at ¶ 30, quoting Wyatt v. Wyatt, 11th Dist. Portage No. 2004-P-0045, 2005-Ohio-2365, ¶ 13. In so doing, a reviewing court is not to weigh the evidence, “‘but must ascertain from the record whether there is some competent evidence to sustain the findings of the trial court.‘” Id., quoting Clyborn v. Clyborn, 93 Ohio App.3d 192, 196, 638 N.E.2d 112 (3d Dist.1994).
Motion to Continue
{¶54} In her first assignment of error, Ms. Molzon contends the trial court erred in overruling her objection to the magistrate‘s decision denying her motion for a continuance in order to obtain counsel after she dismissed her counsel one day before trial.
{¶55} In reviewing whether a trial court abused its discretion in denying a continuance, an appellate court weighs any potential prejudice to the movant against the court‘s right to control its docket and the public‘s interest in the prompt and efficient dispatch of justice. In re Zak, 11th Dist. Lake Nos. 2001-L-216, 2001-L-217, and 2011-L-218, 2003-Ohio-1974, ¶ 29.
{¶56} Some of the objective factors that a reviewing court should consider include thе following: (1) the length of the requested delay; (2) whether the parties have requested and received other continuances; (3) the inconvenience to the parties,
{¶57} A review of Ms. Molzon‘s objection to the magistrate‘s decision tо deny her motion for a continuance reveals she failed to demonstrate any resulting prejudice, i.e. she failed to allege any additional evidence or testimony she would have presented that would have likely changed the outcome of the trial.
{¶58} Analyzing the facts with the Unger factors in mind, we note Ms. Molzon requested a 60- or 30-day continuance to secure new counsel. While that is not an unreasonable request for a continuance, Ms. Molzon terminated her attorney because she was unsatisfied with her representation one day before and with full knowledge of the impending trial. Trial was originally sсheduled for June of 2020; however, due to COVID-related delays (primarily the GAL meeting with the children), the trial was continued until October. The GAL was concerned for the children because they were in a state of “limbo” for so long.
{¶59} While she proceeded pro se during the trial and did not cross-examine Mr. Molzon, make any objections, or present her own witnesses and evidence, Ms. Molzon was given numerous opportunities to present additional evidence and testimony after she obtained counsel shortly after trial. Ms. Molzon filed preliminary objections and supplemental objections, and the trial court granted her motion to vacate so that the trial court could hear and rule on her objections. In all of these motions and filings, Ms. Molzon
{¶60} In In re Dryer, 2d Dist. Montgomery No. 18040, 2000 WL 331770 (Mar. 31, 2000), the appellant similarly complained that the trial court held a patently unfair hearing and prejudiced her by allowing opposing counsel to lead witnesses without objection. Id. at *2. The Second District aptly stated, “On the record before us, we cannot find that the triаl court abused its discretion when it denied [the appellant‘s] motion. No doubt, she was impaired in supporting her claims when she was required to proceed unrepresented. The matters of which she complains in her second assignment of error demonstrate that. However, frustration is not prejudice, and [the appellant] has not stated in her brief to this court what matters she was prevented from putting before the court because she was unrepresented.” (Emphasis sic.) Id. at *3.
{¶61} After considering the circumstances surrounding the denial of the motion for a continuance, and the Unger factors, we cannot say the trial court abused its discretion in overruling Ms. Molzon‘s objection to the magistrate‘s decision to deny her
{¶62} Ms. Molzon‘s first assignment of error is without merit.
Change of Circumstances
{¶63} In her second assignment of error, Ms. Molzon contends the trial court erred in adopting the magistrate‘s decision terminating the parties’ shared parenting plan and designating Mr. Molzon as the residential parent and legal custodian of the minor children without finding a сhange of circumstances pursuant to
{¶64}
{¶65} Thus,
{¶67} The Supreme Court of Ohio recently clarified this issue in Bruns v. Green, 163 Ohio St.3d 43, 2020-Ohio-4787, 168 N.E.3d 396, where it determined that a trial court need consider only the best interest of the child when deciding whether to terminate a shared parenting plan and which parent to designate as the residential and custodial parent of a minor child. Id. at ¶ 1. Stated differently, the Supreme Court held that a trial court does not have to find a change of circumstances in order to designate a parent the residential parent and legal custodian of a minor child after terminating a shared parenting plan and decree. Id.
{¶68} Ms. Molzon‘s second assignment of error is without merit.
Best Interest Factors
{¶69} In her third assignment of error, Ms. Molzon cоntends the trial court erred in adopting the magistrate‘s decision when the magistrate‘s decision failed to consider the best interest factors pursuant to
{¶70}
{¶71} The factors found in
{¶72} The factors found in
{¶74} In addition, the magistrate conducted in camera interviews with the minor children. The magistrate found that Ms. Molzon made no effort to share information with Mr. Molzon, and that she did not respond to Mr. Molzon‘s requests to discuss the children‘s needs or consult him regarding their needs.
{¶75} The magistrate considered the GAL‘s testimony that Mr. Molzоn would encourage the children to contact Ms. Molzon but that Ms. Molzon would not do the same. Critically, the magistrate noted that while she believed Ms. Molzon would honor parenting orders, she did not believe Ms. Molzon would facilitate shared parenting. The magistrate considered the recommendation in the GAL‘s report that shared parenting terminate and Mr. Molzon be named the residential and custodial parent. The magistrate also considered that there was no history of domestic abuse and that neither party indicated an intent to leave the state of Ohio. Finally, inasmuch as no financial information was offered, the magistrate could not assess child support obligations after terminating the shared parenting plan.
{¶77} Ms. Molzon‘s third assignment of error is without merit.
Termination of Child Support Obligation
{¶78} In her fourth assignment of error, Ms. Molzon contends the trial court erred in modifying and terminating Mr. Molzon‘s child support obligation without completing or considering a child support worksheet/schedule.
{¶79} Any review of the trial court‘s termination of child support, however, would be premature. Although the trial court terminated Mr. Molzon‘s child support order when it terminated the shared parenting plan, no financial information was submitted by the parties. Specifically, the magistrate determined that “[t]he child support order of Bert Molzon should terminate at the time this Decision is adopted by the Court. A support order cannot be calculated at this time as no financial information has been submitted by the Court.” Thereafter, due to the convoluted procedure of this case, the child support
{¶80} Thus, there is nothing before us to review, and we remand on this limited basis for the trial court to determine the parties’ child support obligations in light of our affirmance of the trial court‘s judgment adopting the magistrate‘s decision terminating the parties’ shared parenting plan and designating Mr. Molzon as the residential parent and legal guardian.
{¶81} We affirm the judgments of the Ashtabula County Court of Common Pleas in part since we dismiss Ms. Molzon‘s fourth assignment of error as unripe and remand to the trial court to determine the parties’ child support obligations.
MATT LYNCH, J.,
JOHN J. EKLUND, J.,
concur.