Thompson v. ThompsonThompson v. Thompson
THOMAS SCHIFF, Atty. Reg. No. 0039881, 500 Lincoln Park Boulevard, Suite 216, Kettering, Ohio 45429 Attorney for Appellee-Movant
OPINION
Rendered on the 13th day of October, 2017.
HALL, P.J.
I. Background
{¶ 2} After eight years of marriage, Craig and Thuyvi were divorced in September 2015. Under their separation agreement, Craig was named the residential parent of their children. In December 2015, Craig was found guilty of complicity to commit burglary and sent to prison to serve a mandatory six-year sentence. We affirmed his conviction. See State v. Thompson, 2d Dist. Montgomery No. 26954, 2016-Ohio-7521. The children began living with Thuyvi.
{¶ 3} In September 2016, Thuyvi moved for custody of the children, and a hearing was set for November 4, 2016 before a magistrate. Before the hearing, Craig filed several motions. One asked the court to allow Crystal Reed, his mother and attorney-in-fact, to appear on his behalf. In another motion, Craig asked the court to issue subpoenas on his behalf for the hearing. Present at the hearing were Thuyvi and Reed. The magistrate did not permit Reed to represent Craig, saying that it is inappropriate for an attorney-in-fact to represent a party before a court. Thuyvi was the only witness to testify. Craig, imprisoned, did not attend.
{¶ 4} On November 14, the magistrate issued a written decision. She overruled
{¶ 5} A week later, on December 6, 2016, Craig filed a motion asking the court for an extension of time to file objections and he also filed his objections. On December 21, the trial court entered a judgment overruling Craig‘s objections as untimely. Attached to Craig‘s objections was the “Sworn statement of Craig Thompson.” He told the court that he wanted the statement to be considered his testimony in the matter. On Thuyvi‘s motion, the court struck the statement from the record.
{¶ 6} Craig appealed.
II. Analysis
{¶ 7} Craig assigns seven errors to the trial court. The first alleges that the magistrate erred by naming Thuyvi the children‘s residential parent and legal guardian. The second alleges that the magistrate erred by not issuing subpoenas on Craig‘s behalf. The third alleges that the court erred by not ordering parenting time or visitation. The fourth assignment of error alleges that the court erred by setting child support at more than Craig earns. The fifth alleges that the magistrate erred by denying his request to be present at the hearings. The sixth alleges that the court erred by overruling Craig‘s objections to the magistrate‘s decision. And the seventh assignment of error alleges that the trial court erred by striking Craig‘s sworn statement.
A. Craig‘s objections to the magistrate‘s decision
{¶ 9} Craig argues in the sixth assignment of error that the trial court erred by overruling his objections to the magistrate‘s decision. Under
{¶ 10} The November 14, 2016 Magistrate Decision contains specific language that pursuant to
{¶ 11} The sixth assignment of error is overruled.
{¶ 12} Because Craig did not timely object to the magistrate‘s decision our review of the first, second, third, fourth, and fifth assignments is limited to review for plain error.
{¶ 13} Craig has waived all but plain error regarding the magistrate‘s findings and conclusions and likewise he has waived all but plain error regarding the magistrate‘s rulings on his motions. See Trammell v. Powell, 2d Dist. Montgomery No. 23832, 2011-Ohio-2978, ¶ 10 (concluding that because the appellant did not file written objections he waived all but plain error regarding the magistrate‘s denial of his motion to be present at a CSPO hearing). “The plain error doctrine permits correction of judicial proceedings when error is clearly apparent on the face of the record and is prejudicial to the appellant.” (Citation omitted.) Reichert v. Ingersoll, 18 Ohio St.3d 220, 223, 480 N.E.2d 802 (1985). Accord In re C.N., 2d Dist. Montgomery No. 27119, 2016-Ohio-7322, ¶ 55. Plain error does not occur unless, but for the error, the outcome of the trial clearly would have been otherwise. State v. Long, 53 Ohio St.2d 91, 97, 372 N.E.2d 804 (1978). “[U]se of this doctrine ‘is to be taken with utmost caution, under exceptional circumstances and only to prevent a manifest miscarriage of justice.‘” Schutz v. Schutz, 2017-Ohio-695, ___ N.E.3d ___, ¶ 44 (2d Dist.), quoting Reichert at 223.
{¶ 14} Craig argues in the first assignment of error that the magistrate erred by
{¶ 15} Ordinarily “[a] court‘s custody decision is reviewed under the abuse-of-discretion standard.” Shaffer v. Wagaman, 2d Dist. Clark No. 2012-CA-53, 2013-Ohio-509, ¶ 6, citing Masters v. Masters, 69 Ohio St.3d 83, 85, 630 N.E.2d 665 (1994). A court does not abuse its discretion if its decision “is supported by a substantial amount of credible and competent evidence.‘” Davis v. Flickinger, 77 Ohio St.3d 415, 418, 674 N.E.2d 1159 (1997), quoting Bechtol v. Bechtol, 49 Ohio St.3d 21, 550 N.E.2d 178 (1990), syllabus. There is evidence to support the magistrate‘s findings and the custody decision. We see no abuse of discretion and therefore there is no plain error in this regard.
{¶ 17} Craig argues in the third assignment of error that parenting time or visitation should have been ordered. When determining whether to grant parenting time the court shall consider those factors listed in
{¶ 18} We have previously held that a trial court cannot impose a blanket policy to deny visitation to an incarcerated parent. In re C.K., 2d Dist. Montgomery No. 25728, 2013-Ohio-4513, ¶ 14. We recently reiterated “incarcerated parents ‘have the right to present evidence in an attempt to meet their burden of proof’ to establish that an award of parenting time is in their child‘s best interest. [C.K.] at ¶ 15, quoting In re Jergens, 2d Dist. Montgomery No. 16848, 1998 WL 336702, *2 (June 26, 1998). We also recognized in Jergens ‘[i]f [a parent is] unable to attend a visitation hearing, [the parent] can always file affidavits or testify by deposition. Id.‘” In the Matter of A.K.C., 2d Dist. Champaign No. 2016 CA 16, 2017-Ohio-847, ¶ 5. Craig did not present an affidavit or deposition and failed to present evidence that it was in the best interest of the children to visit him in prison.
{¶ 19} The children in this matter are a boy born in early 2010 and a girl born in early 2011, which would have made them age 6 and 5 at the time of the hearing. In the decision of the magistrate it is reflected that originally mother took the children to prison approximately 2 times a month after father was sentenced in December 2015. “But those
{¶ 20} Craig argues in the fourth assignment of error that child support is too high. In determining child support, the magistrate deviated from the guidelines, finding that it is “just, reasonable, appropriate and in the children‘s best interest” that Craig pay nominal child support of $15 each month for each child plus a $1 administration fee, for a total of $31 per month. Said the magistrate, “This will allow Craig to contribute to his [children‘s] needs if he can and if Craig is unable to pay that amount during his incarceration, then the arrearage of approximately $2,160 will be owed when he is released which is a manageable amount.” According to Craig, in prison he earns only $17 each month.
{¶ 21} By statute, the minimum amount of child support is $50 per month unless circumstances warrant less. See
{¶ 22} Craig argues in the fifth assignment of error that he should have been allowed to be physically present at the hearings before the magistrate or at least present
{¶ 23} “[A] Fourteenth Amendment due process right of physical access to the courts has not been extended to prisoners.” Trammell, 2011-Ohio-2978, at ¶ 6; see also Cincinnati Ins. Co. v. Jacob, 2d Dist. Montgomery No. 25407, 2013-Ohio-2573, ¶ 45 (quoting the same). Indeed, it has been held that an incarcerated appellant‘s due process rights were not violated when the trial court denied her motion to appear at a hearing involving the termination of her parental rights. See In re Sprague, 113 Ohio App.3d 274, 276-277, 680 N.E.2d 1041 (12th Dist.1996). But we have said that “[w]hen prisoners are involved in civil actions in courts and the court does not find it appropriate to transport the prisoner to the courthouse, a trial court should consider innovative, alternative ways for the prisoner to participate in the action, such as telephone conference calls, rather than rendering judgment against the prisoner, especially if the prisoner suggests an alternative means for participation.” Shepard Grain Co. v. Creager, 160 Ohio App.3d 377, 2005-Ohio-1717, 827 N.E.2d 392, ¶ 24 (2d Dist.) (holding that the trial court abused its discretion by not allowing the defendant to participate in a hearing via telephone). Here though, Craig did not ask to participate in the hearing by telephone. Moreover there is
{¶ 24} As to the first five assignments of error, we find no clear error on the face of the record and no exceptional circumstances or manifest injustice warranting the application of the plain error doctrine.
{¶ 25} Accordingly, the first, second, third, fourth, and fifth assignments of error are overruled.
C. Craig‘s “sworn statement”
{¶ 26} Craig argues in the seventh assignment of error that the trial court should not have stricken his “sworn statement” from the record. Craig attached the statement to his untimely filed objections and asked the court to consider it as his “testimony to the court.” Craig says that he submitted the statement because the magistrate did not allow him to participate in the hearing.
{¶ 27} The trial court did not err by striking the statement. “[A] party generally does not have the right to reopen his case and submit further evidence after he has rested; however, a court can, within its discretion, allow a party to do so when the circumstances warrant such relief.” (Citations omitted.) Pisanick-Miller v. Roulette Pontiac-Cadillac GMC, Inc., 62 Ohio App.3d 757, 761, 577 N.E.2d 446 (11th Dist.1991). Assuming that Craig‘s
{¶ 28} The seventh assignment of error is overruled.
III. Conclusion
{¶ 29} We have overruled all seven of the assignments of error presented. The trial court‘s judgment is affirmed.
TUCKER, J., concurs.
DONOVAN, J., concurring:
{¶ 30} Although I agree with the judgment on this record, it is important to recognize the compelling need for a father/child relationship even though the circumstances are less than ideal. Courts must be cautious to recognize the natural rights of an incarcerated parent.
{¶ 31} The Ohio Supreme Court has not weighed in on the issue of whether the party opposing visitation should bear the burden of proof by adducing evidence (expert or otherwise) of physical or psychological harm to the child if visitation occurs. See generally Sims, Can My Daddy Hug Me?: Deciding Whether Visiting Dad in a Prison Facility is in the Best Interest of the Child, 66 Brook. L. Rev. 933 (2001). This is an important issue which the Ohio Supreme Court should address as modern prisons encourage visitation which may not only benefit the child but the offender as well in the rehabilitative process.
Craig Thompson
Thomas Schiff
Hon. Timothy D. Wood