In re B.D. , 2021 Ohio 3792 ( 2021 )

[Cite as In re B.D., 2021-Ohio-3792.]
IN THE COURT OF APPEALS OF OHIO
ELEVENTH APPELLATE DISTRICT
LAKE COUNTY
IN THE MATTER OF: CASE NO. 2021-L-030
B.D.
Civil Appeal from the
Court of Common Pleas,
Juvenile Division
Trial Court No. 2019 CV 000976
OPINION
Decided: October 25, 2021
Judgment: Affirmed
Kenneth J. Cahill, Dworken & Bernstein Co., LPA, 60 South Park Place, Painesville, OH
44077 (For Appellant).
Ann S. Bergen, 24 Public Square, Willoughby, OH 44094 (For Appellee).
JOHN J. EKLUND, J.
{¶1} Mark Dombrowski (“Appellant”) appeals the February 8, 2021, judgment
entry of the Lake County Common Pleas Court, Juvenile Division, declining to grant
Appellant’s shared parenting plan, ordering Appellant to pay $900.22 per month for child
support, and the court’s denial of two unopposed motions for continuance. Finding no
reversable error, we affirm.
{¶2} Appellant filed a pro se custody complaint against Appellee on September
3, 2019. The complaint was amended on September 12 to provide a prayer for relief “[t]o
grant joint custody and restricting my son to Lake County to prevent Ashley Johnson from
taking my son away from me.” Appellee filed a counterclaim seeking to be designated as
the residential parent and legal custodian of the minor child, B.D. DOB 4/11/2018.
Appellee also requested an order establishing child support retroactive to B.D.’s date of
birth.
{¶3} The court held pretrial hearings on November 4, 2019, January 15, 2020,
March 18, 2020 (remote), and June 10, 2020 (remote). The court held a trial management
conference on September 15, 2020 (remote), and the trial on October 5, 2020. The record
reflects that at the in person pretrials, Appellant waived his right to have counsel present.1
{¶4} On September 14, 2020, Appellant hired counsel who filed a notice of
appearance and attended the remote September 15 trial management conference. On
September 21, Appellant filed a motion to continue the October 5 trial date citing a
previously scheduled court appearance in Lake County Domestic Relations Court. The
motion for continuance was unopposed by the Guardian ad Litem and Appellee. On
October 2, the court denied the motion for continuance and the matter proceeded to trial.
{¶5} At the October 5 trial, Appellant sought an oral continuance of the hearing.
Counsel for Appellant related that he had been scheduled for a trial in Domestic Relations
Court for that same day and stated that matter had been continued at the request of
opposing counsel at 9:00 pm the night before due to illness. Counsel had only been
retained on the matter for three weeks and the Appellant had not sought any prior
continuances. Appellant’s September 21 and October 5 requests for continuance were
unopposed by Appellee and the Guardian ad Litem. Appellant’s counsel noted that he
was
1
Pretrial hearings held after January 15, 2020, were conducted remotely due to the COVID-19 pandemic.
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ready to schedule this as soon as possible. I realize that this
court has an obligation to move its docket, especially in the
circumstances with the virus that we’ve had to deal with. But,
at the same time, that must be tempered with a client’s, a
litigant’s right to have a full and fair hearing, to be represented
by counsel of his choosing, and especially if I am ready to
reset this as soon as possible.
Appellant cited In re B.D., 11th Dist. Lake Nos. 2009-L-003 and 2009-L-007, 2009-Ohio-
2299 in support of his requests for continuance.
{¶6} The trial court said that In re B.D. was distinguishable from Appellant’s case
and further referenced that Appellant’s initial pro se complaint did not contain a prayer for
relief until it was amended nine days later to request “joint custody.” The court noted that
October 5, 2020, was
13 months past when this case was originated. * * *
Additionally, this trial date has been pending since June 11, it
was scheduled. So I get the fact that you got on the case late,
I think September 14th, but I think the correct thing to do would
have been file a provisional notice of appearance and based
on the court continuing the matter.
After denying the oral motion to continue, the trial proceeded and both parties
presented their cases. The trial court issued a post-hearing order taking the matter under
advisement and allowed Appellant fourteen days to file his shared parenting plan.
Appellant timely filed the shared parenting plan on October 8, 2020.
{¶7} In its November 10 Magistrate’s Decision, the trial court did not consider
shared parenting. The magistrate made this decision because of the Appellee’s
opposition and because of due process concerns caused by Appellant’s failure to file the
proposed shared parenting plan 30 days prior to trial as required by 3109.04(G). Appellant
timely objected to the magistrate’s decision and the trial court adopted the Magistrate’s
Decision in full on February 8, 2021. Appellant timely filed this appeal.
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{¶8} Appellant’s first assignment of error states:
{¶9} “[1.] The Trial Court Erred by not granting Appellant-Father’s Motion
for Continuance.”
{¶10} Juv.R. 23 governs continuances in juvenile court and states that
“[c]ontinuances shall be granted only when imperative to secure fair treatment for the
parties.” Lake County Juvenile Court Local Rule I(C)(3)(b) states that “[n]o case assigned
for trial may be continued except on written motion, subject to the approval of Court.” An
appellate court will not reverse a trial court’s decision to deny a motion to continue unless
the trial court has abused its discretion. In re Kangas, 11th Dist. Ashtabula No. 2006–A–
0010, 2006–Ohio–3433, ¶ 24. “The term ‘abuse of discretion’ is one of art, connoting
judgment exercised by a court which neither comports with reason, nor the record.” State
v. Underwood, 11th Dist. Lake No. 2008-L-113, 2009-Ohio-208 [2009 WL 1177050], ¶
30, citing State v. Ferranto, 112 Ohio St. 667, 676-678 [148 N.E. 362] (1925).” State v.
Raia, 11th Dist. Portage No. 2013-P-0020, 2014-Ohio-2707, 2014 WL 2881994, ¶ 9.
Stated differently, an abuse of discretion is “the trial court’s ‘failure to exercise sound,
reasonable, and legal decision-making.’” Id., quoting State v. Beechler, 2d Dist. Clark No.
09-CA-54, 2010-Ohio-1900, 2010 WL 1731784, ¶ 62, quoting Black’s Law Dictionary 11
(8th Ed.Rev.2004). “When an appellate court is reviewing a pure issue of law, ‘the mere
fact that the reviewing court would decide the issue differently is enough to find error[.] *
* * By contrast, where the issue on review has been confined to the discretion of the trial
court, the mere fact that the reviewing court would have reached a different result is not
enough, without more, to find error.’” Id., quoting Beechler at ¶ 67.
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{¶11} “To determine whether a trial court abused its discretion by denying a
motion for continuance, a reviewing court must consider (1) the length of the requested
delay, (2) prior continuances requests/received, (3) the presence or absence of legitimate
reasons for the requested delay, (4) the appellant’s contribution to the circumstances
giving rise to the request for delay, and (5) any other relevant factors. State v. Unger, 67
Ohio St.2d 65, 67–68, 423 N.E.2d 1078 (1981). While these factors provide basic
guidance, a reviewing court must be mindful that “‘[t]here are no mechanical tests for
deciding when a denial of a continuance is so arbitrary as to violate due process. The
answer must be found in the circumstances present in every case, particularly in the
reasons presented to the trial judge at the time the request is denied.’” Unger at 67,
quoting Ungar v. Sarafite, 376 U.S. 575, 589, 84 S.Ct. 841, 11 L.Ed.2d 921 (1964).
{¶12} Although Appellant cites In re B.D., 11th Dist. Lake No. 2009-L-003, 2009-
Ohio-2299, in support of his position, this case is distinguishable in several key points. In
re B.D. involved an appeal of a permanent custody hearing. The father and mother in that
case requested certain discovery materials which the Lake County Department of Jobs
and Family Services did not timely produce until the court ordered an in camera review
where it determined that the materials were “‘necessary and relevant to the pending
action’” and “‘necessary to ensure due process.’” Id. at ¶ 51. However, the parties were
not afforded an opportunity to review the materials until the day of the hearing. Id. Both
parties moved for a continuance to permit adequate review of the records. Instead, the
court granted a recess of two hours to allow a review of the documents. Id. at ¶ 52. After
the recess, the parties again moved for a continuance as they were only able to review
one-third of approximately 1500 documents. Id.
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{¶13} The trial court overruled the requests stating that one of the best defense
attorneys in Lucas County had routinely practiced without looking at discovery documents
or discussing matters with his clients. The trial court further said that “99.9 percent” of the
documents “are not relevant to the issues that the Court has to consider anyway.” Id. at
¶ 53, 55.
{¶14} This court determined that under the above circumstances, it was an abuse
of discretion to deny a request for a continuance. This was because “nothing in the record
indicates that the trial court conducted a review of the documents, two-thirds of which
counsel had insufficient time to review.” Id. at ¶ 65. Further, the trial court implied as a
supplementary basis for overruling the motions that “full and careful preparation for a case
is a mere luxury that ‘accomplished’ lawyers do not need. In effect, the trial court’s
anecdote was a recognition that counsel would be forced to defend their clients with, at
best, partial preparation.” Id. at ¶ 66. The trial court’s denial of a continuance served to
“deprive appellants’ of their ability to fully protect their essential rights” and we found merit
in the assigned error.
{¶15} Here, Appellant’s case is not so egregious; however, the court recognizes
that the so-called Unger factors are mixed. Appellant requested only a short delay and
had requested no prior continuances. The reason for the delay was a scheduling conflict
with Appellant’s attorney as well as the short time counsel had been on the case. The
other parties did not object to the continuance. However, Appellant is ultimately
responsible for the circumstances giving rise to the request for the continuance. Appellant
filed a pro se complaint and waited nearly thirteen months to hire counsel. Further, the
court set the trial date in June, allowing Appellant sufficient time to hire counsel between
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June and the October trial date. Finally, Juv.R. 23 provides a high bar to granting
continuances, stating that a continuance “shall be granted only when imperative to secure
fair treatment for the parties,” while the local rules of the juvenile court require all
continuances to be upon written motion.
{¶16} Appellant also argues that the court abused its discretion in denying his
motion because he did not receive exhibits until the day of trial. However, Appellant did
not raise any objection to this prior to trial. Instead, Appellant raised this issue as an
objection to the admission of exhibits during the trial itself. Therefore, the trial court could
not have abused its discretion in denying a motion to continue relative to the availability
of exhibits when their absence was not cited as a basis for continuance. See Ungar,
supra, at 589.
{¶17} After considering the Unger factors in the record, we do not find that the trial
court abused its discretion.
{¶18} Accordingly, Appellant’s first assignment of error is without merit.
{¶19} The second assignment of error states:
{¶20} “[2.] The trial court erred by failing to consider Appellant-Father’s Proposed
Shared Parenting Plan.”
{¶21} Appellant argues that the trial court should have considered the Proposed
Shared Parenting plan that was filed on October 8, 2020, despite it not being submitted
thirty days prior to trial as required by statute.
{¶22} Ohio Revised Code Section 3109.04(G) requires that a “plan for shared
parenting shall be filed * * * at a time at least thirty days prior to the hearing on the issue
of the parental rights and responsibilities for the care of the children.” Although the
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requirement of the statutory language is clear, Appellant cites cases from sister districts
where some Ohio appellate courts have held that R.C. 3109.04(G)
was not intended by the legislature to divest the trial court of
a reasonable degree of flexibility in considering shared
parenting plans. Within its discretion, the trial court may
relieve a party of the statutory deadline and grant a party's
request to file a shared parenting plan within thirty days prior
to the hearing. We also agree * * * that the statutory deadline
implicates [the party's] right to due process. The critical inquiry
is thus whether [the party] had an adequate opportunity to
respond to the plan so that her due process right was
protected.
Clouse v. Clouse, 3d Dist. Seneca No. 13-08-40, 2009-Ohio-1301, ¶ 36, quoting Harris
v. Harris, 105 Ohio App.3d 671, 674, 664 N.E.2d 1304 (2d Dist. 1995).
However, even in the cases cited by Appellant, it is within the trial court’s discretion to
relieve a party of this statutory deadline. Absent an abuse of discretion, a reviewing court
will not disturb the decision of a lower court.
{¶23} In this case, the magistrate’s post-hearing order allowed the Appellant to
file the Motion for Proposed Shared Parenting plan and to provide legal authority to submit
a proposed plan “once all evidence has been presented.” The Magistrate’s November
10, 2020, Decision determined that it would “not consider Shared Parenting” because of
due process concerns resulting from Appellee presenting her case to the court before
Appellant filed his shared parenting plan. In the February 8, 2021, Judgment Entry
adopting the magistrate’s decision, the court ruled that “Father’s motion for Shared
Parenting filed October 8, 2020, is not well-taken and denied.”
{¶24} Although some Ohio appellate courts have held that it is within the trial
court’s discretion to exercise flexibility in applying R.C. 3109.04(G), this flexibility is limited
to the parties’ right to due process. Here, although the trial court provided leave to
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Appellant to submit the shared parenting plan after the trial’s conclusion, the court was
under no legal obligation to accept the proposed plan after the deadline. Indeed, the trial
court ultimately declined to consider the proposed shared parenting plan because it was
submitted after the conclusion of the hearing and because its inclusion would create due
process concerns for the Appellee. The cases cited by Appellant state that courts have
the discretion to exercise a “reasonable degree of flexibility in considering shared
parenting plans” filed outside of the statutory deadline. Harris, supra, at 674. However, it
is not abuse of discretion when merely declining to grant that flexibility.
{¶25} Accordingly, Appellant’s second assignment of error is without merit.
{¶26} The third assignment of error states:
{¶27} “[3.] The trial court erred in ordering Father to pay $900.22 per month as to
child support.”
{¶28} Appellant argues that the trial court abused its discretion in setting the
monthly child support payment amount at $900.22.
{¶29} A court reviews child support decisions under an abuse of discretion
standard. In re Sullivan, 167 Ohio App.3d 458, 2006-Ohio-3206, 855 N.E.2d 554, ¶ 12
(11th Dist.), citing Booth v. Booth, 44 Ohio St.3d 142, 144, 541 N.E.2d
(1989). “‘[C]ommon sense and fundamental fairness compel the application of the
“abuse of discretion” standard in reviewing matters concerning child support* * *.’” Id.,quoting Booth.
{¶30} Appellant claims that the trial court could have allocated more parenting
time to Appellant which would save money that Appellee spends on childcare expenses.
However, Appellant’s argument is dependent on Appellant’s mother to provide regular
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childcare. Although there was trial testimony indicating that Appellant’s mother was willing
to provide childcare, Appellee testified at trial that Appellant’s mother was not in favor of
watching B.D. daily for the next few years.
{¶31} Significantly, this assignment calls upon the court to question Appellee’s
decision to place B.D. in childcare and the costs associated with it. As the sole legal
custodian of B.D., Appellee is entitled to place B.D. in daily childcare and undue scrutiny
by the court would infringe upon Appellee’s right to parent her child. See In re Davis, 7th
Dist. Mahoning No. 02-CA-95, 2003-Ohio-809, ¶ 15, citing Troxel v. Granville, 530 U.S.
57, 72-73, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000). Appellant does not claim that the trial
court incorrectly calculated any aspect of the parties’ income or expenses. Instead,
Appellant characterizes the childcare expense as “unnecessary.” Based on the evidence
at trial and the monthly income and expenses of the parties, this Court finds nothing in
the record to indicate that the trial court’s calculation of child support was an abuse of
discretion.
{¶32} Accordingly, Appellant’s third assignment of error is without merit.
{¶33} For the foregoing reasons, the judgment of the Lake County Common Pleas
Court, Juvenile Division, is affirmed.
MARY JANE TRAPP, P.J.,
CYNTHIA WESTCOTT RICE, J.,
concur.
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