In re E.C. ( 2014 )

[Cite as In re E.C., 2014-Ohio-4340.]
IN THE COURT OF APPEALS OF OHIO
SIXTH APPELLATE DISTRICT
LUCAS COUNTY
In re E.C., A.C. Court of Appeals No. L-14-1085
Trial Court No. 13232242
DECISION AND JUDGMENT
Decided: September 26, 2014
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Gary L. Smith, for appellant.
Alan J. Lehenbauer, for appellee.
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PIETRYKOWSKI, J.
{¶ 1} This accelerated appeal is before the court following the April 15, 2014
judgment of the Lucas County Court of Common Pleas, Juvenile Division, which denied
appellant-respondent’s objections to the magistrate’s decision and approved the
mediation agreement of the parties allowing visitation and companionship between the
appellant-respondent’s minor children and their paternal grandmother. Because we find
that the mediation agreement resolved the dispute between the parties, we affirm.
{¶ 2} This action commenced on April 24, 2013, with the petition to establish
visitation and companionship rights filed by appellee-petitioner, paternal grandmother of
E.C., born in 2010, and A.C., born in 2011, following the death of their father in 2012.
Appellant opposed the petition first arguing that R.C. 3109.11, providing visitation to
grandparents when the parent is deceased, is unconstitutional as applied to the facts of the
case. Alternatively, appellant argued that appellee’s right to visitation, if such right were
established, should be limited to a few hours per month and conducted according to
respondent’s schedule and conditions.
{¶ 3} On August 19, 2013, the matter proceeded to a hearing on the petition. On
September 16, 2013, the magistrate found in favor of appellee and granted visitation
starting with Sundays only at a neutral location for a limited duration and ultimately
building up to the second weekend of each month from Saturday at 9:00 a.m. until
Sunday at 5 p.m. and Christmas Eve from 10 a.m. until 8 p.m. Appellant filed objections
to the magistrate’s decision.
{¶ 4} While the objections were pending, the parties entered into an interim
mediation agreement. The agreement provided for four supervised visitation dates and
stated that the parties would attend a second mediation on March 7, 2014. The agreement
was approved by the court and filed into the record on February 13, 2014.
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{¶ 5} Following the second mediation, an agreement was filed with and approved
by the court. The mediation report indicated that the agreement was a “complete”
agreement between the parties. The agreement provided that appellee be granted
unsupervised visitation on the third weekend of each month from 3:00 p.m. Saturday
until 5:00 p.m. Sunday. If a holiday or one of the children’s birthday was that weekend,
visitation would be held on the second weekend of the month. The agreement was signed
by the parties and appellant’s attorney and provided, in part:
BY SIGNING BELOW, PARTIES AGREE THAT THIS
AGREEMENT IS FAIR, EQUITABLE, AND IN THE BEST INTEREST
OF THE CHILD(REN). PARTIES SUBMIT THEIR AGREEMENT TO
THE COURT FOR APPROVAL. FURTHER, PARTIES
ACKNOWLEDGE AND UNDERSTAND THAT THEY ARE BOUND
BY THE TERMS OF THIS AGREEMENT UNLESS OTHERWISE
MODIFIED BY COURT ORDER. (Emphasis in original.)
{¶ 6} On April 11, 2014, the trial court denied appellant’s objections to the
magistrate’s decision finding that based upon the mediation agreement, the objections
were moot. On April 15, 2014, the court approved the agreement of the parties and found
that the agreement was in the best interests of the children. This appeal followed and
appellant raises the following two assignments of error:
I. The trial court’s application of O.R.C. Section 3109.11 when
applied to the facts of this case is an unconstitutional infringement upon
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appellant’s fundamental liberty interest in the care, custody and control of
her children.
II. The trial court erred in declaring the respondent’s objection to
the magistrate’s decision as being moot.
{¶ 7} We will first address appellant’s second assignment of error. Appellant
argues that the trial court erred when it found that the mediation agreement resolved the
dispute between the parties. In this assignment of error, appellant asserts that she only
entered into the agreement to prevent the court from imposing a less favorable schedule.
Appellant claims that she “clearly stated on several occasions” that she intended to appeal
an unfavorable decision.
{¶ 8} As set forth above, the mediation agreement signed by appellant clearly
stated that she agreed to be bound by the terms of the agreement; there is no evidence in
the record of a contrary intent or belief. She was also aware that only the court could
modify the order. Further, the trial court, in finding that the agreement was in the best
interest of the children, had before it the magistrate’s decision as well as the transcript
from the August 19, 2013 hearing. Accordingly, we cannot say that the trial court erred
when it found the objections moot and further found the agreement to be in the best
interest of the children. Appellant’s second assignment of error is not well-taken.
{¶ 9} Appellant’s first assignment of error argues that the grandparent visitation
statute, R.C. 3109.11, is unconstitutional as applied to the facts of this case. Appellant
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specifically contends that the court failed to give “special weight” to her wishes regarding
the petition as required under the statute.
{¶ 10} We first note that the magistrate did, in her judgment entry, plainly state
that under R.C. 3109.11, in considering the best interests of the children, the court was
“required to give special consideration or weight to the wishes and concerns of the
child/ren’s parent concerning that relative visitation.” The magistrate then specifically
found that appellant was withholding visitation not based on the children’s best interests
but due to “anger and vindictiveness.”
{¶ 11} Following the decision, appellant entered into the mediation agreement
which provided that the signed agreement was in the best interest of the children. Based
on these facts, appellant cannot now complain that the court unconstitutionally failed to
give “special weight” to her wishes in determining the best interests of her children.
Accordingly, appellant’s first assignment of error is not well-taken.
{¶ 12} On consideration whereof, we find that appellant was not prejudiced or
prevented from having a fair proceeding and the judgment of the Lucas County Court of
Common Pleas, Juvenile Division, is affirmed. Pursuant to App.R. 24, appellant is
ordered to pay the costs of this appeal.
Judgment affirmed.
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In re E.C.
C.A. No. L-14-1085
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.
Mark L. Pietrykowski, J. _______________________________
JUDGE
Stephen A. Yarbrough, P.J.
_______________________________
James D. Jensen, J. JUDGE
CONCUR.
_______________________________
JUDGE
This decision is subject to further editing by the Supreme Court of
Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
version are advised to visit the Ohio Supreme Court’s web site at:
http://www.sconet.state.oh.us/rod/newpdf/?source=6.
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