Zibaie v. ZibaieZibaie v. Zibaie
Rendered on March 26, 2024
On brief: Ashley N. Zibaie, pro se.
APPEALS from the Franklin County Court of Common Pleas, Division of Domestic Relations
LUPER SCHUSTER, J.
{¶ 1} In these coordinated cases, plaintiff-appellant, Ashley N. Zibaie, pro se, appeals from a judgment entry/decree of divorce of the Franklin County Court of Common Pleas, Division of Domestic Relations, granting sole legal custody of the minor children to defendant-appellee, Cyrus A. Zibaie. Ashley additionally appeals from a judgment entry of
I. Facts and Procedural History
{¶ 2} Ashley and Cyrus were married September 7, 2012 and have two minor children. On November 2, 2018, Ashley filed a complaint for divorce. Cyrus filed an answer and counterclaim for divorce on November 15, 2018. Pursuant to
{¶ 3} Subsequently, on September 10, 2019, the magistrate issued another temporary order modifying the parties’ parenting time. The temporary order provided Cyrus with parenting time from Sundays at 6:00 p.m. until Wednesdays at 6:00 p.m., provided Ashley with parenting time from Wednesdays at 6:00 p.m. until Fridays at 6:00 p.m., and provided for alternating weekends for each parent. On December 28, 2021, Cyrus filed a motion for an order to find Ashley in contempt of the temporary order on grounds that Ashley refused to provide him parenting time and had withheld the children from him for two weeks. Following a May 18, 2022 hearing on the motion, the magistrate issued a decision on May 25, 2022 finding Ashley in contempt and sentencing Ashley to 30 days in jail unless she purged her contempt. The decision provided Ashley could purge her contempt by providing Cyrus with 14 days of make-up parenting time as well as the entirety of the children‘s 2022-23 school year winter break and by paying Cyrus $1,500 for attorney fees and costs associated with the contempt action. Ashley filed objections to the magistrate‘s decision, and the matter was stayed pending the divorce decree.
{¶ 4} Beginning June 1, 2022, the trial court conducted a full evidentiary hearing. Subsequently, in a January 13, 2023 judgment entry/decree of divorce, the trial court ordered Cyrus to be the sole legal custodian and residential parent of the minor children. The trial court further ordered Ashley to have parenting time pursuant to Loc.R. 27, Option C, of the Franklin County Domestic Relations Court, which provides for alternating weekends from Friday at 6:00 p.m. until Monday at 6:00 p.m. and one weekday overnight
{¶ 5} Within the divorce decree, the trial court also affirmed the May 25, 2022 magistrate‘s decision finding Ashley in contempt, noting Ashley failed to prosecute her objections at trial and did not support credible testimony to support her claim. On May 19, 2023, Cyrus filed a motion to enforce jail sentencing, asserting Ashley had not complied with either of the directives by which she could purge her contempt. Ashley filed a memorandum contra on May 21, 2023 arguing she had provided Cyrus with make-up parenting time to purge her contempt. The trial court conducted a hearing on July 25, 2023 and found Ashley had not purged her contempt. In a July 25, 2023 entry, the trial court ordered Ashley to serve 27 days in jail.
{¶ 6} Ashley then filed a
{¶ 7} Ashley timely appeals from both the judgment entry/decree of divorce and from the July 25, 2023 entry and the August 4, 2023 amendments to that entry finding she had not purged her contempt.
II. Assignments of Error
{¶ 8} Ashley assigns the following three assignments of error in case No. 23AP-87, involving the divorce decree, for our review:
- The trial court erred by performing a Facebook search for Appellant and then making remarks on the record of the case that were so antagonistic as to make a fair ruling impossible,
thereby denying Appellant‘s constitutionally protected right to due process of law. - The trial court erred by failing the legal best interest standard while ignoring evidence of child abuse and child sexual abuse.
- The trial court erred in other ways relating to the rules of evidence and the way in which the trial proceeded.
{¶ 9} Additionally, Ashley assigns the following four assignments of error in case No. 23AP-484, involving the contempt entry, for our review:
- The trial court erred by refusing to disqualify, where the trial court made remarks on the record of the case that were so antagonistic as to make a fair ruling impossible, after performing a Facebook search of Appellant from the bench, thereby violating Appellant‘s constitutionally protected right to due process of law.
- The trial court erred by making no finding as to whether Appellant purged her contempt before sentencing her to jail time.
- The trial court erred by abusing Ohio Civil Rule 60(A) to alter the original entry in order to mitigate a basis upon which Appellant seeks relief.
- The trial court erred by sentencing Appellant to jail against the manifest weight of the evidence.
III. Divorce Decree First Assignment of Error - Due Process
{¶ 10} In her first assignment of error from the divorce decree, Ashley argues the trial court denied her due process of law. More specifically, Ashley asserts the trial court was unable to act impartially after the judge performed a Facebook search and made allegedly disparaging and antagonistic comments to her.
{¶ 11} “It is axiomatic that a ’ “fair trial in a fair tribunal is a basic requirement of due process,” ’ and a ‘biased decision maker is constitutionally unacceptable.’ ” Ramsey v. Ramsey, 10th Dist. No. 13AP-840, 2014-Ohio-1921, ¶ 72, quoting Bailey v. Beasley, 10th Dist. No. 09AP-682, 2010-Ohio-1146, ¶ 21, quoting Withrow v. Larkin, 421 U.S. 35, 46 (1975), quoting In re Murchison, 349 U.S. 133, 136 (1955). However, a bare allegation of bias does not substantiate a claim of a violation of due process. Id.
{¶ 13} Cyrus moved to admit some of the Facebook posts into evidence. Ashley asserts the trial court deprived her of due process by reviewing her entire Facebook page instead of the limited posts Cyrus introduced into evidence. To the extent the trial court inspected Ashley‘s Facebook page beyond the exhibits introduced at trial, the trial court did not do so to determine the merits of the divorce proceedings but to take into account the safety of court personnel. See Lupo v. Columbus, 10th Dist. No. 13AP-1063, 2014-Ohio-2792, ¶ 20 (“trial courts have inherent authority to manage their own dockets and the cases before them“), citing State ex rel. Charvat v. Frye, 114 Ohio St.3d 76, 2007-Ohio-2882, ¶ 23. Thus, we do not agree with Ashley that the trial court violated her right to due process by conducting an independent investigation into the facts. Moreover, we do not agree with Ashley that the trial court made disparaging comments to her that would affect the trial court‘s impartiality. Instead, the trial court warned Ashley not to continue with her current behavior and informed her that if she continued to post on Facebook about the trial or the guardian ad litem, she would be held in contempt.
{¶ 14} Because Ashley does not demonstrate the trial court was biased or otherwise deprived her of due process, we overrule Ashley‘s first assignment of error from the divorce decree.
{¶ 15} In her second assignment of error from the divorce decree, Ashley argues the trial court erred in allocating parenting time and determining Cyrus to be the sole legal custodian of the children. Ashley asserts the trial court ignored evidence of child abuse and child sexual abuse in making its determination of the best interest of the children.
{¶ 16}
{¶ 17} Ashley argues the trial court abused its discretion in allocating parental rights and responsibilities because the trial court ignored evidence of child abuse and child sexual abuse. Under
{¶ 18} In the judgment entry/decree of divorce, the trial court specifically notes Ashley testified about her concerns that Cyrus abuses the children, both physically and sexually. The trial court noted that Ashley instituted three or four investigations of Cyrus by Franklin County Children Services due to her concerns but all the investigations were closed as unsubstantiated. Thus, we do not agree with Ashley that the trial court ignored her evidence of child abuse and child sexual abuse. Instead, the trial court considered her testimony on the matter and made a determination of the credibility and weight to afford
V. Divorce Decree Third Assignment of Error - Additional Errors
{¶ 19} In her third and final assignment of error from the divorce decree, Ashley argues the trial court committed other errors throughout the trial. Under this assignment of error, Ashley does not identify any particular errors; rather, she asserts it is for this court to review the record and address any potential errors.
{¶ 20} Ashley‘s third assignment of error from the divorce decree does not comply with the requirements of App.R. 16. Pursuant to
{¶ 21} Because Ashley did not comply with
VI. Contempt Entry First Assignment of Error - Refusal to Disqualify
{¶ 22} In her first assignment of error from the entry finding she failed to purge her contempt, Ashley argues the trial court violated her right to due process when it refused to disqualify from the case due to lack of impartiality.
{¶ 23} As we explained in our analysis of Ashley‘s first assignment of error from the divorce decree, a fair trial in an impartial tribunal is a basic requirement of due process. Ramsey at ¶ 72. “Judicial bias is demonstrated by ‘a hostile feeling or spirit of ill will or undue friendship or favoritism toward one of the litigants or his attorney, with the formation of a fixed anticipatory judgment on the part of the judge, as contradistinguished from an open state of mind which will be governed by the law and the facts.’ ” Columbus v. Flowers, 10th Dist. No. 19AP-423, 2019-Ohio-5205, ¶ 25, quoting State ex rel. Pratt v. Weygandt, 164 Ohio St. 463, 469 (1956). ” ‘A judge is presumed not to be biased or prejudiced, and a party alleging bias or prejudice must present evidence to overcome the presumption.’ ” Id., quoting Wardeh v. Altabchi, 158 Ohio App. 325, 2004-Ohio-4423, ¶ 20 (10th Dist.).
{¶ 24} Under this assignment of error, Ashley contends the trial court was biased against her in the contempt proceedings because the trial court had already exhibited bias against her in the divorce proceedings when it reviewed her Facebook page and placed her under a gag order. Because of what Ashley deemed a pre-existing bias from the divorce proceedings, Ashley moved for the trial court to disqualify itself from the contempt proceedings. The trial court denied her motion. Ashley now argues the trial court deprived her of due process when it refused to disqualify from the contempt proceedings.
{¶ 25} In our resolution of Ashley‘s first assignment of error from the divorce proceedings, we determined the trial court did not exhibit a lack of impartiality when it
VII. Contempt Entry Second and Third Assignments of Error - Entry and Amended Entry
{¶ 26} Ashley‘s second and third assignments of error from the contempt entry are interrelated, and we address them jointly. In her second assignment of error, Ashley argues the trial court erred in failing to include in the entry a determination of whether she purged her contempt. In her third assignment of error, Ashley argues the trial court erred in using
{¶ 27}
{¶ 28} While
{¶ 29} Here, in the original judgment entry, filed July 25, 2023, the first sentence of the entry stated: “Ashley N. Zibaie having appeared and having been found guilty of contempt of Court, it is therefore ORDERED, ADJUDGED and DECREED that the aforesaid party be sentenced to 27 days in the Franklin County Jail/Women‘s Correctional Institute.” (July 25, 2023 Jgmt. Entry.) Ashley then filed a
{¶ 30} Within the divorce decree, the trial court affirmed the magistrate‘s May 25, 2022 decision finding Ashley in contempt of the temporary order for failing to provide Cyrus with his allotted parenting time. Several months after the divorce decree, on May 19, 2023, Cyrus filed a motion to enforce the jail sentence associated with the contempt finding,
{¶ 31} Ashley‘s argument ignores the larger context in which the trial court made that statement. The transcript of the July 25, 2023 hearing on Cyrus’ motion indicates the trial court understood the issue before it as Cyrus’ motion to enforce the jail sentence and not, as Ashley asserts, as a new hearing on whether Ashley should be found in contempt. As the Supreme Court of Ohio has explained, “a court order finding a party in contempt and imposing a sentence conditioned on the failure to purge is a final, appealable order on the issue whether the party is in contempt of court.” Docks Venture, L.L.C. v. Dashing Pacific Group, Ltd., 141 Ohio St.3d 107, 2014-Ohio-4254, ¶ 23. Separately, however, “a contemnor may have an additional appeal on the question whether the purge conditions have been met following execution of sentence on the failure to purge.” Id.
{¶ 32} Here, the trial court stated at the outset of the hearing that the purpose of the hearing was “a motion filed by [Cyrus] for enforcement of jail sentence filed on May 19th, 2023, and a memo contra filed by [Ashley] on May 21st, 2023.” (July 25, 2023 Tr. at 3.) During the hearing, the parties discussed the magistrate‘s May 25, 2022 decision granting Cyrus’ motion for contempt and then discussed the mechanisms through which Ashley could purge her contempt pursuant to the terms of the contempt decision. Cyrus testified that Ashley had neither paid him the $1,500 in attorney fees nor provided him the make-up parenting time. Ashley also testified and questioned Cyrus, providing different justifications as to why she did not provide Cyrus with the make-up parenting time or pay him the attorney fees. After hearing testimony, in ruling on the motion, the trial court reiterated that the magistrate had found Ashley in contempt in the May 25, 2022 decision and that the trial court affirmed the magistrate‘s decision in the divorce decree. The court then found that Ashley did not remediate the willful violation of the court order within a sufficient amount of time, 60 days after the divorce decree. Thus, the court stated Ashley
{¶ 33} Based on this record, we find the change made in the amended entry was to correct a clerical mistake and, thus, was appropriate under
VIII. Contempt Entry Fourth Assignment of Error - Manifest Weight of the Evidence
{¶ 34} In her fourth and final assignment of error from the contempt entry finding Ashley failed to purge, Ashley argues the trial court‘s judgment entry finding she failed to purge her contempt and sentencing her to 27 days in jail was against the manifest weight of the evidence.
{¶ 35} In a civil case, a reviewing court will not reverse the judgment as being against the manifest weight of the evidence when some competent, credible evidence supports all the essential elements of the case. C.E. Morris Co. v. Foley Constr. Co., 54 Ohio St.2d 279 (1978), syllabus. In determining whether a civil judgment is against the manifest weight of the evidence, an appellate court is guided by the presumption that the findings of the trial court are correct. Seasons Coal Co., Inc. v. Cleveland, 10 Ohio St.3d 77, 80 (1984). “The underlying rationale of giving deference to the findings of the trial court rests with the knowledge that the trial judge is best able to view the witnesses and observe their demeanor, gestures and voice inflections, and use these observations in weighing the credibility of the proffered testimony.” Id.
IX. Disposition
{¶ 37} Based on the foregoing reasons, the trial court did not deprive Ashley of due process during the divorce proceedings, did not abuse its discretion in allocating parental rights and responsibilities under
Judgments affirmed.
DORRIAN and JAMISON, JJ., concur.