DAWN MYERS v. JEFFREY G. MYERS
C.A. No. 25997
IN THE COURT OF APPEALS NINTH JUDICIAL DISTRICT COUNTY OF SUMMIT, OHIO
May 21, 2012
[Cite as Myers v. Myers, 2012-Ohio-2282.]
DICKINSON, Judge.
APPEAL FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF SUMMIT, OHIO CASE No. 2003-01-0261
INTRODUCTION
{¶1} Jeffrey and Dawn Myers divorced in 2004. The trial court originally named Ms. Myers residential parent of the parties’ children, but, in 2009, it reallocated all parental rights and responsibilities to Mr. Myers. Ms. Myers appealed, and this Court affirmed the trial court’s decision. After this Court decided her appeal, Ms. Myers moved to increase her parenting time. The trial court subsequently ordered the parties to participate in mediation. Before the mediation session, however, Mr. Myers accepted an employment transfer to Arkansas. He, therefore, filed a notice of intent to relocate under
JURISDICTION
{¶2} Mr. Myers has argued that this Court does not have jurisdiction over the appeal because the trial court’s decision was merely an interim visitation order. Under the Ohio Constitution, Ohio’s courts of appeals “have such jurisdiction as may be provided by law to review and affirm, modify, or reverse judgments or final orders of the courts of record inferior to the court of appeals within the district . . . .”
{¶3}
{¶4} Divorce and ancillary custody proceedings did not exist at common law, but were crеated by statute, and are special proceedings within the meaning of
{¶5} The trial court’s order allows Mr. Myers to move out of state with the parties’ minor child and changes Ms. Myers’s parenting time. Although the court set a later conference on Ms. Myers’s motion for change of custody, the court’s order affects Ms. Myers’s ability to see her daughter until the court hears and decides that motion. We, therefore, conclude that the order from which Ms. Myers has appealed affects a substantial right in a speсial proceeding under
GUARDIAN AD LITEM
{¶6} Ms. Myers’s assignment of error is that the trial court’s conduct at its hearing and its subsequent decision on her motions were unreasonable, arbitrary, and unconscionable and demonstrated a perversity of will, passion, prejudice, and partiality. Her first argument is that the court incorrectly ignored her motion to appoint a new guardian ad litem. In her motion, she noted that she had previously accused the guardian ad litem of testifying falsely under oath. She asserted that, because of her accusation, the guardian ad litem would not be able to render an impartial opinion. She also аsserted that, whatever the guardian ad litem might say, her daughter had told her that she does not want to move to Arkansas.
{¶7} At the hearing and in its decision, the trial court only considered the effect of Mr. Myers’s notice of intent to relocate and Ms. Myers’s motion for a temporary restraining order to prevent Mr. Myers frоm removing their daughter from the state. See
CHILD INTERVIEW
{¶8} Ms. Myers’s second argument is that the trial court incorrectly failed to interview the parties’ daughter before making its decision. She has noted that, under
{¶9}
{¶10} Similarly to Ms. Myers’s motion for appointment of a new guardian ad litem, the court noted in its journal entry that Ms. Myers had also filed a motion for change of custody, but reserved the motion for later consideration. Upon review of the record, we conclude that, because the trial court was not considering whether to reallocate the parties’ parental rights and responsibilities, but only whether to revise the parenting time schedule, it was not required to interview the Myеrses’ daughter before making its decision.
PARENTING TIME
{¶11} Ms. Myers’s third argument is that the trial court’s parenting time decision was unreasonable and unconscionable. The court’s order provides that, if Ms. Myers travels to Arkansas, she may spend up to six hours a day with her daughter, but that she may only spend three days with the daughter on any one trip. Thе order also provides that, if Mr. Myers travels back to Ohio, he must arrange a six-hour visit between Ms. Myers and the daughter. Ms. Myers has argued that the trial court’s order effectively takes away all of her parenting time.
{¶12} Under the prior parenting time order, Ms. Myers was allowed eight hours of companionship time every Sundаy. If a child’s residential parent files a notice of intent to relocate, the court “may schedule a hearing . . . to determine whether it is in the best interest of the child to revise the parenting time schedule for the child.”
{¶13} The trial court noted Mr. Myers’s intent to move to Arkansas and the parties’ history, including its prior determination that the daughter’s life with Ms. Myers had been marked by invasive medical care and dominated by a fear of illness and death, that the daughter’s health had improved while living with Mr. Myers, that Mr. Myers would more likely honоr and facilitate a relationship with the other parent, and that the daughter’s doctors had contacted the Children Services Board while she was in Ms. Myers’s care. It also noted that Ms. Myers had been unable to accept that the reason her daughter had been subjected to unnecessary medicаl treatment was because of misinformation Ms. Myers had provided to doctors. Upon review of the trial court’s order, it appears that the court considered all of the relevant factors required under
{¶14} Ms. Myers has also argued that the court misunderstood the facts of this case. According to her, the court has treated her as if she suffers from Munchausen syndrome by
{¶15} The trial court noted that Ms. Myers testified at the relocation hearing that she was only following doctor’s orders when she managed her daughter’s care. It found that she “still refuses to acknowledge” that those orders were based on misinformation that she had provided. The trial court’s finding is consistent with the evidence presented at earlier hearings and is not inconsistent with our prior opiniоn in this case. We also note that the trial court’s modified companionship-time order was simply “[p]ending further hearing in this matter.” Considering that Ms. Myers had only previously been allowed eight hours a week with her daughter, which we previously determined was a proper exercise of discretion, we conclude that the limited visitation schedule imposed by the trial court was not unreasonable, arbitrary, or unconscionable.
PASSION, PREJUDICE, OR PARTIALITY
{¶16} Ms. Myers’s final argument is that the trial court has developed “a passion, prejudice, and partiality” against her that is not supported by the evidence. She has argued that, although Mr. Myers was allowеd to cross-examine her about their daughter’s medical treatment, her lawyer was not allowed to ask her about the same issues on redirect. She has also argued that the court ignored the evidence, clinging, instead, to its unsupported preconceptions about her
{¶17} If a party believes that a common-pleas-court judge is prejudiced or has exhibited bias, she may file an affidavit of disqualification under
CONCLUSION
{¶18} The trial court has not yet ruled on Ms. Myers’s motion to appoint a new guardian ad litem or her motion for change of custody. The court exercised proper discretion when it temporarily changed Ms. Myers’s parenting time. This Court does not have authority to review claims of improper bias. The judgment of the Summit County Common Pleas Court, Domestic Relations Division, is affirmed.
Judgment affirmed.
There were reasonable grounds for this appeal.
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. App.R. 22(C). The Clerk of the Court of Appeals is instructed to mail a notice of entry of this judgment to the parties and to make a notation of the mailing in the docket, pursuant to App.R. 30.
Costs taxed to Appellant.
CLAIR E. DICKINSON
FOR THE COURT
WHITMORE, P. J.
MOORE, J.
CONCUR.
APPEARANCES:
STEVE C. BAILEY, Attorney at Law, for Appellant.
DEAN S. HOOVER, Attorney at Law, for Appellee.