Reed v. Reed, 2007 Ca 00321 (8-26-2008)Reed v. Reed, 2007 Ca 00321 (8-26-2008)
OPINION
{¶ 1} Appellant Daniel J. Reed appeals two post-decree decisions of the Stark County Court of Common Pleas, Domestiс Relations Division. Appellee Julia Reed is appellant‘s former spouse. The relevant facts leading to this appeal are as follows.
{¶ 2} Appellant and appеllee were married on June 26, 1987. There are two children of the marriage: Laura, born in 1989, and Joseph, born in 1993.
{¶ 3} On May 1, 2007, the Stark County Court of Common Pleas, Domestic Relations Division, issued a decree of divorce, incorporating the parties’ separation agreement. Said separation agreement included provisions that appellant would have supervisеd visits with Laura, and that, pursuant to a shared parenting agreement, appellant would have supervised parenting time with Joseph, with potential unsupervised parenting time conditioned upon future approval by the guardian ad litem.
{¶ 4} Furthermore, in regard to property division, the separation agreement required that the marital home in Jackson Township be listed at $210,000 for ninety days, at which time, if unsold, the property was to be auctioned.
{¶ 5} Just six weeks after the divorce was final, appellant filed a motion for “immediate review” of the parenting time arrangement regarding Joseph. The matter was heard by the chief magistrate on July 10, 2007, who found the requested review “not appropriate based upon [the] Shared Parening (sic) Agreеment between [the] parties.” Magistrate‘s Order at 1.
{¶ 6} On July 12, 2007, appellant filed a motion to set aside the magistrate‘s order. The matter was set for hearing on July 18, 2007, at the same time set for pending contempt motions previously filed by the parties. The court issued a judgment entry on
{¶ 7} On October 3, 2007, the guardian ad litem filed a motion for an ex parte “no contact” order between appellant and the parties’ son, Joseph, alleging thаt appellant had refused to provide the names of experts, had failed to sign release forms, and was “manipulating” Joseph. The guardian also requested a psychological evaluation. The trial court granted both requests on October 3, 2007.
{¶ 8} On October 17, 2007, the court, upon a motion filed by the guardian ad litem, dismissed what it labeled as appellant‘s custody motion, and ordered that the no-contact order remain in effect “until Daniel Reed cooperates with the Guardian [ad Litem] and follows through with all court orders or until further order from this court.” Judgment Entry, October 17, 2007.
{¶ 9} On October 24, 2007, appellee filed a motion asserting she could not locate appellant, and requesting permission to execute appellant‘s namе on an auction agreement for selling the marital home, as set forth in the separation agreement. On October 24, 2007, the court granted, ex parte, an order requiring the home to bе listed for auction with Kiko, Inc. within 45 days, and further authorizing appellee to execute appellant‘s name on the auction agreement.
{¶ 10} Appellant filed a notice of appeal on November 14, 2007, as to the October 17th judgment entry. Appellant then filed a notice of appeal on November 21, 2007, as to the October 24th judgment entry. We consolidatеd both appeals on February 22, 2008, with 2007CA00321 to be the controlling case number. Appellant herein raises the following four Assignments of Error:
{¶ 11} “I. THE TRIAL COURT ERRED BY GRANTING AN EX-PARTE ORDER FOR NO CONTACT BETWEEN APPELLANT AND HIS MINOR SON.
{¶ 12} “II. THE TRIAL COURT ERRED BY GRANTING AN EX-PARTE ORDER PERMITTING APPELLEE TO SIGN APPELLANT‘S NAME TO AN AUCTION LISTING AGREEMENT.
{¶ 13} “III. THE TRIAL COURT ERRED BY GRANTING DISMISSAL OF `MOTION FOR CUSTODY.’
{¶ 14} “IV. THE TRIAL COURT ERRED BY CLOSING THE CASE, IGNORING APPELLANT‘S MOTIONS.”
I.
{¶ 15} In his First Assignment of Error, appellant contends the trial court erred in granting an ex parte no-contact order regarding appellant and Joseph. We disagree.
{¶ 16} Issues of visitation and the granting of no contact orders are within the sound discrеtion of the trial court, and the trial court‘s discretion must be exercised in a manner to best protect the interest of the child. See In re Cassidy, Stark App. No. 2001CA00278, 2002-Ohio-2897, citing In re: Whaley (1993), 86 Ohio App.3d 304, 317, 620 N.E.2d 954.
{¶ 17} We reiterate that pursuant to
{¶ 18} Upon review, we are unpersuaded the issuance of the ex parte no contact order constituted an abuse of discretion under the facts and circumstances presented.
{¶ 19} Appellant‘s First Assignment of Error is overruled.
II.
{¶ 20} In his Second Assignment of Error, appellant contends the trial court erred, in the ex parte judgment entry of October 24, 2007, in authorizing appellee to sign on appellant‘s behalf on the auction agreement for the marital home. We disagree.
{¶ 21} It is well established that a trial court retains jurisdiction to enforce its judgments. Dvorak v. Dvorak, Portage App. No. 2006-P-0003, 2006-Ohio-6875, ¶ 7. Furthermore,
{¶ 22} In the case sub judice, the separation agreement incorporated intо the parties’ divorce clearly required the home to be listed for auction if not sold by a date certain. Upon review, we hold appellant has failed to demonstrate prejudicial error under these circumstances.
{¶ 23} Accordingly, appellant‘s Second Assignment of Error is overruled.
III.
{¶ 24} In his Third Assignment of Error, appellant contends the trial court erred in dismissing his “custody” motion. We disagree.
{¶ 25} On October 17, 2007, the trial court dismissed what it labeled as appellant‘s custody motion, and ordered that the ex parte no-contact order remain in effect “until Dаniel Reed cooperates with the Guardian [ad Litem] and follows through with all court orders or until further order from this court.” Judgment Entry, October 17, 2007. No provision was made for redress of the allegations against appellant in the guardian ad litem‘s motion for the ex parte no contact order.
{¶ 26} This Court has reiterated that due process generally requires that a deprivаtion of life, liberty, or property be preceded by notice and opportunity for hearing appropriate to the nature of the case. Himes v. Himes, Tuscarawas App. No. 2002 AP 10 0084, 2003-Ohio-2935, ¶ 9, citing Cleveland Bd. of Educ. v. Loudermill (1985), 470 U.S. 532, 542, 105 S.Ct. 1487, 84 L.Ed.2d 494. At a minimum, due process of law requires notice and opportunity for a hearing, that is, an opportunity to be heard. Id., citing Mathews v. Eldridge (1976), 424 U.S. 319, 96 S.Ct. 893, 47 L.Ed.2d 18. The prejudice which may inherently result from an ex parte order “can be cured by a full hearing with appropriate notice on the issue submitted for the court‘s review.” In re Knight, Trumbull App. No. 2002-T-0158, 2003-Ohio-7222, ¶ 11.
{¶ 27} We recognize that ex parte no contact orders are frequently necessary in family court proceedings, and, as per our holding in appellant‘s First Assignment of Error, there was no error in granting same in the case sub judice. In the October 17,
{¶ 28} Appellant‘s Third Assignment of Error is therefore overruled. The no contact order shall remain in effect pending further hearing/order of the trial сourt.
IV.
{¶ 29} In his Fourth Assignment of Error, appellant contends the trial court erred by effectively closing his case and declining further redress of pending motions.
{¶ 30} In light of our above holding, appellаnt‘s Fourth Assignment of Error is found without merit and is overruled.
{¶ 31} For the foregoing reasons, the judgments of the Court of Common Pleas, Domestic Relations Division, Stark County, Ohio, are hereby affirmed.
Wise, J., Gwin, P. J., and Farmer, J., concur.
JUDGMENT ENTRY
For the reasоns stated in our accompanying Memorandum-Opinion, the judgments of the Court of Common Pleas, Domestic Relations Division, Stark County, Ohio, are affirmed. The no contact order shall remain in effect pending further hearing/order of the trial court.
Costs are assessed to appellant.