Otten v. TuttleOtten v. Tuttle
Edwin L. Hoseus, Jr., 741 Milford Hills Drive, Milford, Ohio 45150-1446, for defendant-appellee
BRESSLER, P.J.
{¶1} Plaintiff-appellant, Gary Otten (Father), appeals pro se from the decision of the Clermont County Court of Common Pleas, Juvenile Division, to amend its order granting Father standard parenting time with his daughter, Paityn Tuttle (Daughter), something which this court ordered be put into effect on an immediate basis, and implement a “schedule of transition.” Father also appeals the juvenile court‘s decision denying his motion for contempt
{¶2} Daughter was born on July 13, 2005. At the time of Daughter‘s birth, Mother was married to Jeremy Tuttle. Tuttle is listed as father on Daughter‘s birth certificate.
{¶3} On August 12, 2005, Father, who was involved in a romantic relationship with Mother during her marriage to Tuttle, obtained genetic test results that confirmed he was, in fact, Daughter‘s biological father. After learning of the genetic test results, Tuttle and Mother were divorced on November 2, 2005.
{¶4} On January 29, 2007, once his romаntic relationship with Mother turned sour, Father filed a complaint with the Clermont County Juvenile Court to establish his parental rights and responsibilities. Shortly thereafter, Mother filed her own parentage action against Father in the same court. The cases were subsequently consolidated.
{¶5} On April 13, 2007, Mother married Kevin Crooks (Husband). On April 20, 2007, one week after the marriage, Husband filed a petitiоn to adopted Daughter in the Hamilton County Court of Common Pleas, Probate Division. On June 6, 2007, the probate court stayed the adoption proceeding pending resolution of the parties’ parentage action.
{¶6} On August 22, 2007, after holding a hearing on the matter, a juvenile court magistrate issued an amended decision declaring Father to be Daughter‘s biological father. Desрite this finding, the magistrate determined that it would “not be in the best interest of [Daughter], to grant parenting time to [Father] at present as any parenting orders issued by this court may be superseded by a deсree of adoption issued by the Hamilton County Probate Court * * *.” Father filed objections to the magistrate‘s decision, which the juvenile court overruled on December 11, 2007. Father then apрealed the juvenile court‘s decision to this court, but, upon his request, the appeal was dismissed on February 29, 2008.
{¶7} On March 10, 2008, shortly after Father‘s appeal was dismissed, the juvenile
{¶8} On November 5, 2008, after lifting its stay, the probatе court dismissed Husband‘s petition to adopt Daughter because Father did not consent to the adoption as required by
{¶9} On June 29, 2009, after a number of further delays, this court affirmed the juvenile court‘s decision granting Father standard parenting time. See Otten v. Tuttle, Clermont App. No. CA2008-05-053, 2009-Ohio-3158. In that decision, we explicitly stated, in pertinent part, the following:
{¶10} “Because of excessive delay in this case that has prevented [Father] from visiting [Daughter] for over two years, we instruct that the juvenile court‘s order awarding [Father] standard pаrenting time be put into effect on an immediate basis with the issuance of this opinion.” Id. at ¶17.
{¶11} After our decision was released, Father attempted to schedule visitation with Daughter in accordаnce with the juvenile court‘s May 16, 2008 standard parenting time order. However, instead of following our clear instructions, Mother sent Father a notice indicating she wanted to implement “transitional time.” Father refused Mother‘s offer, and, as a result,
{¶12} On August 10, 2009, after holding a hearing on Mother‘s motion, and withоut first putting its standard parenting order into effect in accordance with this court‘s mandate, the juvenile court determined that it was “in the best interest of the child, and in the best interest of a healthy, positive, and long term relationship with both parents, that a graduated schedule of contact and visitation be implemented.” The juvenile court then amended its May 16, 2008 order granting Father standаrd parenting time and implemented a “schedule of transition” effective from August 10, 2009 through October 4, 2010. Father appealed the juvenile court‘s decision implementing the “schedule of transitiоn” on September 1, 2009.
{¶13} On September 21, 2009, while his original appeal was still pending, Father filed a motion for contempt alleging Mother violated the juvenile court‘s August 10, 2009 order implementing the “schеdule of transition.” The juvenile court denied Father‘s motion on February 10, 2010. Father appealed the juvenile court‘s decision denying his motion for contempt on February 23, 2010.
{¶14} On March 16, 2010, this court grantеd Father‘s motion to consolidate his appeals.
{¶15} Now pending before this court is Father‘s consolidated appeal, which raises a total of eight assignments of error for our rеview. For ease of discussion, Father‘s first, second, third, fourth, fifth, and sixth assignments of error addressing the juvenile court‘s decision to impose a “schedule of transition” will be addressed together, as will his seventh and eighth assignments of error addressing the juvenile court‘s decision denying his motion for contempt.
{¶16} Assignment of Error No. 1:
{¶17} “THE TRIAL COURT ABUSED IT‘S DISCRETION WHEN IT REDUCED [FATHER‘S] PARENTING TIME DOWN TO 4 HOURS.” [sic]
{¶19} “THE TRIAL COURT‘S DECISION PLACED UNDUE BURDEN ON [FATHER].”
{¶20} Assignment of Error No. 3:
{¶21} “THE TRIAL COURT‘S DECISION INVOLVED PARTIES OUTSIDE THE COURT‘S JURISDICTION.”
{¶22} Assignment of Error No. 4:
{¶23} “THE TRIAL COURTS DECISION VIOLATED [FATHER‘S] CONSTITUTIONAL RIGHTS BECAUSE IT DID NOT ALLOW HIM ENOUGH TIME TO TEACH HIS ETHICAL AND RELIGIOUS BELIEFS TO HIS DAUGHTER.”
{¶24} Assignment of Error No. 5:
{¶25} “THE TRIAL COURTS DECISION VIOLATED [FATHER‘S] RIGHT TO PROCEDURAL DUE PROCESS.”
{¶26} Assignment of Error No. 6:
{¶27} “THE TRIAL COURTS DECISION VIOLATED [FATHER‘S] EQUAL PROTECTION RIGHTS.”
{¶28} In his first six assignments of error, Father presents numerous challenges to the juvenile court‘s August 10, 2009 decisiоn to amend its May 16, 2008 order granting him standard parenting time, something which this court ordered be put into effect on an immediate basis, and implement a “schedule of transition.” Without addressing Father‘s specific arguments, we find the juvenile court abused its discretion by failing to comply with this court‘s clear instructions to put its May 16, 2008 order granting standard time into effect immediately, and therefore, erronеously deviated from the law of the case.
{¶29} It is well-established that decisions made by a reviewing court regarding legal
{¶30} As noted above, this court ordered the juvenile court‘s May 16, 2008 decision granting Father standard parenting time “be put into effect on an immediate basis” with the issuance of our June 29, 2009 opinion. However, instead of following our clear mandate, the juvenile court determined that ignoring our instructions by amending the order to implement a “schedule of transition” was more appropriate. While we are certainly mindful that a juvenile court is vested with broad discretion in determining the parenting rights of a nonresidentiаl parent, to permit the juvenile court to deviate so markedly from this court‘s order would essentially defeat the purposes behind the law of the case doctrine. Otten, 2009-Ohio-3158 at ¶13; Roush at ¶21, citing Nolan at 5. In turn, as much as it may disаgree with our ruling, the juvenile court‘s August 10, 2009 decision to amend its May 16, 2008 order and implement a “schedule of transition” is reversed. In addition, because the juvenile court failed to follow our original mаndate, we again remand this matter with the unambiguous instruction to grant
Accordingly, based on the facts and circumstances оf this case, Father‘s first, second, third, fourth, fifth, and sixth assignments of error are sustained.
{¶31} Assignment of Error No. 7:
{¶32} “THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT DID NOT FIND TUTTLE IN CONTEMPT OF COURT.” [sic]
{¶33} Assignment of Error No. 8:
{¶34} “THE TRIAL COURT‘S SHOULDN‘T HAVE LET IT‘S DECISION BE INFLUENCED BY A PENDING ADOPTION MATTER.” [sic]
{¶35} In his seventh and eighth assignments of error, Father argues that the trial court erred by not finding Mother in contempt becаuse, according to him, she refused to follow the juvenile court‘s August 10, 2009 order implementing the “schedule of transition.” However, after a thorough review of the record, and even though there may be some evidence indicating Mother was less than accommodating during the initial parenting time visits under the “schedule of transition,” as the juvenile court found, and for which we agree, Father did nоt provide sufficient evidence to find Mother in contempt. Kranz v. Kranz, Warren App. No. CA2008-04-054, 2009-Ohio-2451, ¶29; Hueber v. Hueber, Clermont App. Nos. CA2006-01-004, CA2006-02-019, CA2006-02-020, 2007-Ohio-913, ¶16, citing Arthur Young & Co. v. Kelly (1990), 68 Ohio App.3d 287, 295. Therefore, based on the evidence presented, we find the juvenile court did not abuse its discretion by dеnying Father‘s motion. Rapp v. Pride, Butler App. No. CA2009-12-311, 2010-Ohio-3138, ¶17. Accordingly, Father‘s seventh and eighth assignments of error are overruled.
RINGLAND and HENDRICKSON, JJ., concur.