Williamson v. CookeWilliamson v. Cooke
Rendered on December 24, 2009
Babbitt & Weis LLP, Gerald J. Babbitt, for appellee.
Regina L. Hillburn, for appellant.
APPEAL from the Franklin County Court of Common Pleas, Division of Domestic Relations
KLATT, J.
{¶1} Defendant-appellant, Reginald A. Cooke, appeals from a judgment of the Franklin County Court of Common Pleas, Division of Domestic Relations, modifying his parenting time with his son. For the following reasons, we affirm.
{¶3} On March 30, 2006, Cooke filed a motion for reallocation of parental rights and responsibilities with the trial court. In that motion, Cooke indicated that he had complied with Tarpey‘s recommendations and moved from his previous residence. Because he had fulfilled the conditions imposed in thе divorce decree, Cooke asked the trial court to remove the travel and time restrictions on his parenting time. On October 13, 2006, Cooke filed a second, virtually identical motion for reallocation of parental rights and responsibilities.
{¶5} On July 12, 2007, Williamson filed a motion to modify the parenting time schedule. In her motion, Williamson stated that she intended to move to Chapel Hill, North Cаrolina. Williamson requested that the trial court revise the parenting time schedule to accommodate her relocation.
{¶6} Cooke responded to Williamson‘s motion with another motion for reallocation of parental rights and responsibilities. Different from his previous two motions for reallocаtion of parental rights and responsibilities, this July 20, 2007 motion asked the trial court to designate Cooke as Joseph‘s sole residential parent and legal custodian.
{¶7} Because Williamson needed to move to North Carolina before the trial court could hold a hearing on her motion, the trial court decided to issue an interim parenting time order to govern the period between Williamson‘s move and the hearing. The trial court instructed both parties and Joseph‘s guardian ad litem to submit proposals for the interim parenting time order. Finding the guardian ad litem‘s recommendations in Joseph‘s best interest, the trial court adoрted them. In its September 24, 2007 interim parenting time order, the trial court specified that:
1. [Cooke] shall have parenting time with the parties’ minor child * * * on a schedule consistent with the long distance model schedule set forth in Franklin County Local Rule 27, with the exceptions that there shall be no overnights, parenting time should cоnsist of day visits of not less than five (5) hours per day for no more than three (3) consecutive days.
2. [Williamson] shall provide [Cooke] with advance notice of her intent to visit the Columbus area and afford [Cooke] at least one (1) day visit with Joseph for every seven (7) days she and/or Joseph are in Columbus.
3. [Cooke] shall have two (2) consecutive day visits with Joseph per month should he visit [Williamson‘s] new residential area with at least seventy-two (72) hours advance notice to [Williamson].
4. [Cooke] shall have unlimited but reasonable telephone, email and webcam access to Joseph. This access shall not be less than Tuesdays and Sundays for a reasonable time between 5:00 p.m. and 8:00 p.m. Abuse of this access will result in access being reduced, diminished or forbidden.
5. [Cooke] shall be provided with all of Joseph‘s educational, medical, dental, optical and mental health information promptly.
6. [Williamson] shall bring Joseph to Columbus, or see to it that he is brought to Columbus, at least once between August 29, 2007 and the trial date, at her expense.
(R. at 708.)
{¶8} On November 1, 2007, Cooke moved for an oral hearing pursuant to
{¶9} After a year of delay, the trial court conducted a hearing оn the parties’ outstanding motions on December 22, 2008. Immediately prior to the hearing, Cooke dismissed “his pending Motion to Reallocate Parental Rights and Responsibilities, without
{¶10} At the hearing, both parties’ attorneys orally withdrew various other earlier-filed motions. After significant confusion regarding which motions were still pending and needed to be heard,2 the trial court and Cooke‘s attorney engaged in the following discussion:
The Court: So today is going forward – would you go forward on the motion requesting that the child be assessed with respect to autism and the like?
Ms. Hillman: Yes.
The Court: And for modification of child support?
Ms. Hillman: No, I‘m dismissing that motion.
The Court: So the only thing left is testing for the autism.
Ms. Hillman: And the motion to modify the interim order on parenting time. That‘s not the same as the custody motion, this is to modify it to a different schеdule ordered by the Court on [an] interim basis.
The Court: So testing for autism, modify the interim order respecting the –
Ms. Hillman: Regarding the time and travel conditions on my client. And those are the main things we have to deal with.
{¶11} Only Cooke and the guardian ad litem testified during the hearing. Cooke protested that the interim parenting time order left him only with “telephone parenting rights.” (Dec. 22, 2008 Tr. 17.) Cooke testified that he spoke with Joseph on the telephone approximately four times а week, but rarely saw him. With regard to his mental health, Cooke stated that his psychologist had determined that he did not suffer from a psychological impairment and that nothing prevented him from taking a child out of town or parenting for over three days at a time.
{¶12} On cross examination, Cooke acknowledged that he hаd enjoyed parenting time with Joseph on the multiple occasions when Williamson and Joseph had visited Columbus. Additionally, Cooke admitted that he had not installed a webcam to communicate with Joseph, and he had never traveled to North Carolina to spend time with Joseph.
{¶13} In her testimony, the guardian ad litem recommended that the trial court adopt the interim parenting time order as the final order. The guardian ad litem stated that Joseph had indicated that his relationship with his father had improved since his move, and Joseph attributed the improvement to the distance between them and the decreased frequency of visits. According to the guardian ad litem:
What Joseph expresses is that the longer amount, the longer he is with his dad, the less kind his dad becomes, quite honestly. So he is hesitant to extend the amount of time, because he frankly doesn‘t believe that it would be particularly pleasant. He doesn‘t believe his dad really hears him. * * *
{¶14} At the conclusion of the hearing, the trial court denied Cooke‘s request to expand his parenting time. Although the trial court invited Cooke to work with the guardian ad litem to increase the amount of contact with Joseph, the court ordered that all future visitation proceed according to the interim (now final) parenting time order. On February 3, 2009, the trial court reduced its ruling to judgment.3
{¶15} Cooke now appeals from the February 3, 2009 judgment, and he assigns the following errors:
[1.] THE TRIAL COURT ABUSED ITS DISCRETION BY RULING THAT APPELLANT HAD NOT MET CONDITIONS FOR LIFTING OF THE DIVORCE DECREE PARENTING RESTRICTIONS.
[2.] THE COURT COMMITTED AN ABUSE OF DISCRETION IN REGARDS TO DISMISSING THE OCTOBER 13, 2006 [MOTION] BECAUSE THE MOTION TO [sic] BURDEN OF PROOF HAD SHIFTED TO THE APPELLEE AT THE CLOSE OF APPELLANT‘S CASE.
[3.] THE COURT COMMITTED AN ABUSE OF DISCRETION IN REGARDS TO THE JULY 12, 2007 MOTION TO RELOCATE BY NOT REQUIRING APPELLEE TO MEET HER BURDEN OF PROOF.
[4.] THE COURT COMMITTED AN ABUSE OF DISCRETION IN REGARDS TO APPELLEE‘S JULY 12, 2007 MOTION BY ISSUING A PARENTING ORDER WHICH IS INCONSISTENT WITH THE PARTIES’ HISTORY.
[5.] THE COURT COMMITTED ERROR IN RULING THAT APPELLANT HAD WITHDREW [SIC] HIS JULY 11, 2007 MOTION OF CONTEMP[T] [AGAINST] APPELLEE.
{¶16} Because they are interrelated, we will discuss Cooke‘s first four assignments of error together. By these assignments of error, Cook argues that the trial court erred in adopting a parenting time schedule that significantly limits his access to Joseph. We disagree.
{¶17}
{¶18} In order to further a child‘s best interest, a trial court has the discretion to limit parenting time rights. Moore v. Moore, 5th Dist. No. 04CA111, 2005-Ohio-4151, ¶7;
{¶19} In the case at bar, both Cooke and Williamson sought modification of the parenting time schedule incorporated in the divorce decree. Cooke requested that the trial court expand his parenting time rights, while Williamson wanted the trial court to constrict those rights to accommodate her and Joseph‘s move to North Carolina. Consequently, each party bore the burden of proving that the changes they requested were in Joseph‘s best interest.
{¶20} Ultimately, the trial court rejected Cooke‘s assertion that an increase in his parenting time rights was in Joseph‘s best interest. Rather, the trial court relied upon the guardian ad litem‘s testimony that the interim parenting time schedule, which diminished the time Cooke spent with Joseph, actually served Joseph‘s interests the best. Given the
{¶21} In so holding, we recognize that the modified parenting time schedule substantially restricts Cooke‘s in-person parenting time. Nevertheless, the trial court found the modified parenting time schedule to be in Joseph‘s best interest. We will not second guess that decision.
{¶22} In addition to challenging the parameters of the parenting time schedule, Cooke also argues that the trial court could not modify the schedule without first determining that a change in circumstances had оccurred. We find this argument unavailing. Pursuant to
{¶23} Accordingly, we conclude that the trial court did not еrr in its resolution of the parties’ dispute over Cooke‘s parenting time rights. We therefore overrule Cooke‘s first, second, third, and fourth assignments of error.
{¶24} By Cooke‘s fifth assignment of error, he argues that the trial court erred in ruling that he withdrew his July 11, 2007 motion for contempt. We disagree.
{¶25} In its February 3, 2009 judgment, the trial court stated that, prior to the December 22, 2008 hearing, Cooke withdrew all pending motions except for his November 1, 2007 motion to modify the interim parenting time order. Although Cooke‘s attorney never explicitly withdrew the July 11, 2007 motion for contempt, she failed to bring this motion to the trial court‘s attention during the hearing. By not pursuing this motion at the hearing intended tо resolve all pending motions, Cooke abandoned the motion, implicitly withdrawing it from the trial court‘s consideration. Accordingly, we overrule Cooke‘s fifth assignment of error.
{¶26} For the foregoing reasons, we overrule Cooke‘s five assignments of error, and we affirm the judgment of the Franklin County Court of Common Pleas, Division of Dоmestic Relations.
Judgment affirmed.
FRENCH, P.J. & BRYANT, J., concur.