Troyer v. Troyer ( 2010 )

[Cite as Troyer v. Troyer, 188 Ohio App.3d 543, 2010-Ohio-3276.]
STATE OF OHIO, JEFFERSON COUNTY
IN THE COURT OF APPEALS
SEVENTH DISTRICT
TROYER, )
) CASE NO. 09 JE 5
APPELLEE, )
)
v. ) OPINION
)
TROYER a.k.a., )
MULLET, )
)
APPELLANT. )
CHARACTER OF PROCEEDINGS: Civil Appeal from Common Pleas
Court, Juvenile Division
Case Nos. 2007 CV 00074,
2007 CV 00075.
JUDGMENT: Affirmed.
APPEARANCES:
Mascio Law Offices and John Mascio,, for appellee.
Bryan Felmet and D. Brian Scarnecchia, for appellant.
JUDGES:
Hon. Mary DeGenaro
Hon. Joseph J. Vukovich
Hon. Gene Donofrio
Dated: June 28, 2010
DEGENARO, Judge.
{¶1} This timely appeal comes for consideration upon the record in the trial court,
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the parties' briefs and their oral arguments before this court. Defendant-appellant, Wilma
S. Troyer, a.k.a. Wilma S. Mullet, appeals the decision of the Jefferson County Court of
Common Pleas, Juvenile Division, designating plaintiff-appellee, Aden Troyer, the legal
custodian and residential parent of the parties' two minor children, granting Wilma visitation
and placing limits on that visitation which included restraining four of Wilma's relatives from
any contact with the children. Although Wilma assigns several errors challenging the trial
court's custody determination and the location restrictions on her visitation, because of
jurisdictional issues resolved previously by this court, the scope of this appeal is limited to
the portion of the trial court's judgment restraining four members of Wilma's family from
having contact with the children. Wilma argues that the trial court's restraining orders were
an abuse of discretion. Upon review, this argument is meritless. There was competent-
credible evidence supporting the trial court's decision that it was in the best interests of the
children to have no contact with Samuel Mullet, Eli Mullet, Johnny Mullet, and Christopher
Mullet. Accordingly, the judgment of the trial court is affirmed.
Facts and Procedural History
{¶2} This case involves a custody dispute regarding Aden and Wilma's two minor
children: Mattie and Linda Troyer. Aden and Wilma were married on November 11, 2004.
At the time of the marriage, both lived in the Bergholz, Ohio, Amish community. Mattie was
born on November 27, 2005. Wilma's father, Samuel Mullet, is the Bishop of the Amish
community in Bergholz. Due to disagreements with Samuel Mullet, Aden's parents were
excommunicated from the Bergholz community, and they moved to another Amish
community in Ulysses, Pennsylvania. This became a source of conflict between Wilma
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and Aden. Other families also began to move from the Bergholz community.
{¶3} Wilma and Aden separated in early August 2006, after Wilma expressed
concerns about the couple's sexual practices to her father and brother. Wilma also
indicated she was concerned that Aden had been sexually abused by his mother as a
child. Samuel Mullet refused to allow Aden to see Wilma and Mattie for several days after
these allegations surfaced. According to Aden, Samuel Mullet told him he had to confess
to sexual contact with his mother in order to see his wife and young child again. Aden then
wrote a letter to that effect and was taken to publicly confess his actions to the Bishop of
the Ulysses, Pennsylvania Amish community. According to Samuel Mullet, Aden
confessed of his own free will and without any direction or coercion. On the other hand,
Aden testified that his statements were false and that he made them only to try to make
peace with Samuel Mullet and be reunited with Wilma and Mattie, from whom he had been
separated for several days, which is an uncommon occurrence among the Amish. At trial,
Aden explained that his statements about inappropriate sexual contact with his mother
were unequivocally false. He said he admitted these acts only because he feared that if he
failed to do so, Samuel Mullet would forbid him to see Wilma and Mattie. Notably, at trial,
Jefferson County Sheriff Fred Abdalla testified that he investigated the incest allegations
and found them to be false. Sheriff Abdalla also said that he believed Aden's letter was
written under duress.
{¶4} Wilma and Aden remained separated for approximately nine months, during
which time their second daughter Linda was born. In early May 2007, Aden and Wilma
reunited for several weeks, and Aden met three-month-old Linda for the first time. Wilma
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and Aden first went to Indiana for counseling and then to Pennsylvania. While they were in
Pennsylvania, Wilma's brother, Eli Mullet, and cousin, Eli Miller, broke into Aden's parents'
home in an attempt to find Wilma. Eli Mullet also assaulted Aden's father, Laverne. The
Potter County Sheriff's department was called to the scene, and both Eli Mullet and Eli
Miller were arrested and charged with breaking and entering.
{¶5} A preliminary hearing for the two men was held several days later in
Coudersport, Pennsylvania. Wilma testified that she was safe with Aden, that Aden had
not harmed her, and that she wished to stay with him rather than return to Ohio. However,
after the hearing, several of Wilma's sisters convinced Wilma that she should return to
Bergholz with the children. Wilma's sister, Lizzie Mullet, told her she would be
excommunicated and would go to hell if she did not return. Wilma also asked Aden to
return to Bergholz. Samuel Mullet told Aden that he could return to Bergholz and further
told him: "You know we ain't going to take you down there and throw you in a manure pit."
Aden took this as a threat and did not go with Wilma and the children. Instead, he
remained in Pennsylvania.
{¶6} On September 14, 2007, Aden filed a complaint for allocation of parental
rights and responsibilities in the Jefferson County Court of Common Pleas, Juvenile
Division, in which he asked the court to designate him the residential parent of Linda and
Mattie. Aden also filed a motion seeking custody of the children during the pendency of
the proceedings. Attached to this motion were affidavits executed by Aden and Sheriff
Abdalla.
{¶7} The trial court granted Aden's motion, issuing an ex parte judgment entry on
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September 14, 2007, which designated Aden the residential parent of both the children and
directed Sheriff Abdalla to take the children into his custody and to place them in the
custody of Aden. The order also enjoined Samuel and Eli Mullet from contact with the
minor children. Sheriff Abdalla served the order on Wilma while she was teaching at the
one-room Amish schoolhouse in Bergholz, and retrieved Mattie and Linda.
{¶8} A hearing on the ex parte order was continued by agreement of the parties
until October 5, 2007. In the meantime, the trial court issued an order granting Wilma
visitation from September 28, 2007, until October 1, 2007, which was restricted to the
residence of Andy and Nancy Yoder. Samuel Mullet and Eli Mullet continued to be
restrained from contact with the minor children.
{¶9} Aden presented several witnesses at the October 5, 2007 hearing that the
parties later stipulated would be used for purposes of the final custody hearing. Wilma
failed to file a transcript of the October 5, 2007 hearing as part of the record before this
court; however, a review of the record and briefs reveals that most of the testimony
presented on that date was essentially duplicative of other testimony presented later in the
proceedings.
{¶10} On October 10, 2007, Wilma filed a counterclaim for allocation of parental
rights and responsibilities. On October 11, 2007, the magistrate issued an order stating
that the parties had conferred and reached an agreement that the ex parte order of
September 14, 2007, would remain in effect, and Aden would be designated the residential
parent of the minor children. The order designated Wilma the nonresidential parent during
the pendency of the proceedings and granted her parenting time every other Thursday at
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9:00 a.m. until Monday at 5:00 p.m., at the residence of Andy and Nancy Yoder. Finally,
the magistrate lifted the restraining order as it pertained to Samuel Mullet and Eli Mullet for
purposes of Sunday church attendance and Sunday family activities only.
{¶11} Both parties were ordered to submit to psychological testing, and a guardian
ad litem was appointed to represent the interests of the minor children.
{¶12} On November 15 and 16, 2007, Aden presented the remainder of his
witnesses. On November 20, 2007, the magistrate issued an order detailing Wilma's
parenting time pending the resumption of the final hearing in January 2008. This order
stated that Samuel Mullet and Eli Mullet would continue to be enjoined from contact with
the minor children, subject to Sunday church attendance and Sunday family activities. The
order also added that Christopher Mullet would be enjoined from contact with the minor
children subject to the Sunday church and family activities. Finally, the order added that
these three individuals shall not be left alone with the minor children.
{¶13} Psychological evaluations were conducted on the parties and received by the
court on December 19, 2007. Wilma presented her lay witnesses on January 8 through
11, 2008.
{¶14} The magistrate issued an order on January 29, 2008, that added additional
restrictions to Wilma's visitation. Specifically, the magistrate directed that Wilma's visitation
should be on weekends when the Bergholz community does not have church service so as
not to interfere with Wilma's parenting time. Further, the magistrate added Wilma's
brother, Johnny Mullet, to the list of family members who were restrained from contact with
the minor children. The magistrate also made the restraining orders more stringent,
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ordering: "[a]t no time are Chris Mullet, Eli Mullet, Johnny Mullet, or Sam Mullet (Bishop) to
have any contact with the minor children." Finally, the magistrate ordered that the children
were not permitted in the Bergholz community at any time unless consent is given by the
court.
{¶15} Wilma presented several expert witnesses on March 10, 2008. Aden did not
present any experts of his own, as he chose to rely on the conclusions contained in the
psychological evaluations. The guardian ad litem issued his report on April 21, 2008.
{¶16} During trial, there was extensive testimony about the culture in Bergholz,
Ohio, Amish practices, Wilma's family, Aden's family, and the conflicts between the two
families. Relevant to the issues in this appeal was extensive testimony about the past
conduct of Wilma's father, Samuel Mullet, and Wilma's brothers—Eli, Johnny and
Christopher Mullet. This testimony will be discussed in more detail in the analysis of the
first assignment of error below.
{¶17} During the pendency of this action, Wilma filed separately for divorce in the
Jefferson County Court of Common Pleas, Domestic Division, Case No. 07 DR 312. The
parties were subsequently granted a divorce on March 14, 2008. The record of this case
was supplemented with a transcript of the final divorce hearing.
{¶18} On May 16, 2008, the magistrate issued a final decision on custody, in which
he recommended that the court grant Aden's complaint for allocation of parental rights and
responsibilities. The magistrate further recommended that Aden be designated the
residential parent and legal custodian of the minor children. Finally, the magistrate
recommended that Wilma's parenting time take place every other Thursday at 10:00 a.m.
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until Tuesday at 5:00 p.m. at the residence of Wilma's brother, Joe Mullet, in Ulysses, PA,
and that the visitation should occur on the off weekends with Wilma's church services so as
not to interfere with the same. The decision did not address the restraining orders against
Samuel, Eli, Christopher, and Johnny Mullet.
{¶19} Following a request by Wilma, the magistrate issued findings of fact and
conclusions of law on October 30, 2008, which also failed to address the restraining orders.
Wilma filed a request for oral hearing, and request for consideration of additional
evidence, as well as objections to the magistrate's decision on December 5, 2008.
{¶20} In a January 30, 2009 judgment entry, the trial court overruled the request for
oral hearing and request for consideration of additional evidence. The court overruled
Wilma's objections to the magistrate's decision and approved the magistrate's findings of
fact and conclusions of law. The court further adopted the magistrate's decision in its
entirety with the exception that the court provided a specific schedule for Christmas
parenting time; ordered that parenting time take place only in Pennsylvania but not be
restricted to the home of Wilma's brother Joseph; and added that "under no circumstances
shall parenting time take place in Bergholz, Ohio." Again, there was no mention of the
restraining orders against Wilma's family members.
{¶21} At a February 6, 2009, hearing on a contempt motion, Aden's counsel
brought up the fact that the January 30, 2009 order did not address the restraining orders
and asked the magistrate for clarification. The magistrate indicated he would bring that
issue to the attention of the trial judge, who could then render a decision accordingly.
{¶22} On February 13, 2009, the trial court issued a nunc pro tunc judgment entry.
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Although labeled nunc pro tunc, the February 13, 2009 judgment contains substantive
changes that were not included in the January 30, 2009 judgment, namely that: "All prior
restraining orders are to remain in full force and effect." In all other respects, the February
13, 2009 entry is identical to the January 30, 2009 entry.
{¶23} Wilma filed a notice of appeal from the February 13, 2009 nunc pro tunc entry
with this court on March 9, 2009. On March 12, 2009, Aden filed a motion to dismiss this
appeal. Aden argued that the appeal was untimely, as a nunc pro tunc judgment entry
does not extend the time for filing a notice of appeal. Aden urged this court to dismiss this
appeal as untimely because the notice of appeal was not filed within 30 days of the
January 30, 2009 order. Wilma responded that the focus of this appeal is to challenge the
restraining orders, the language about them having been first added to the trial court's
February 13, 2009 judgment entry, from which she timely appealed.
{¶24} On May 29, 2009, this court overruled Aden's motion to dismiss. However,
this court specified:
{¶25} "Appellant is limited in this appeal to the substance of the judgment entry filed
on February 13, 2009. Should appellees believe that appellant is addressing an error which
relates to a previous judgment from which no timely appeal was taken, the appellees are to
bring such issue to this Court's attention prior to filing their amended answer brief."
{¶26} Wilma filed her appellant's brief on July 23, 2009. On July 23, 2009, Aden
filed a motion to strike, arguing that several of Wilma's assignments of error raise issues
pertaining to child custody, which was resolved in the January 29, 2009 judgment from
which Wilma did not timely appeal, and therefore in violation of this court's May 29, 2009
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order.
{¶27} On September 11, 2009, this court issued a judgment entry:
{¶28} "Insofar as any assignments of error seek to change the final judgment of
January 30, 2009, wherein appellee was designated as residential parent, it will be
disregarded pursuant to this Court's May 29, 2009 judgment entry. As previously noted,
this appeal is limited to a review of the restraining order, which was language added into
the February 13, 2009 judgment entry. This Court will only address assignments of error
properly before the Court." On September 14, 2009, Aden filed an answer brief.
Restraining Orders against Wilma's Family Members
{¶29} In her first of four assignments of error Wilma asserts:
{¶30} "The trial court erred in restraining the grandfather, Samuel Mullet, and
uncles, Johnny Mullet, Eli Mullet and Christopher Mullet from all contact with two minor
children, Mattie Troyer and Linda Troyer, their granddaughters and nieces respectively,
without probative evidence that either their alleged immoral or bad behavior of their Amish
religious beliefs and practices had a direct adverse harm on the two children."
{¶31} At their core, these restraining orders are restrictions placed upon Wilma's
visitation with her children. See, e.g., Callender v. Callender, 7th Dist. No. 03-CA-790,
2004-Ohio-1382, at ¶ 30-31 (treating court's order that the children have no contact with
appellant's ex-girlfriend as a restraint on visitation). Matters concerning visitation rights are
reviewed for an abuse of discretion. Booth v. Booth (1989), 44 Ohio St.3d 142, 144, 541
N.E.2d 1028. Abuse of discretion means more than an error in judgment, but rather that
the trial court's decision is unreasonable, arbitrary, or unconscionable. Blakemore v.
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Blakemore (1983), 5 Ohio St.3d 217, 219, 5 OBR 481, 450 N.E.2d 1140.
{¶32} Visitation rights, also known as "parenting time" rights of the nonresidential
parent, are governed by R.C. 3109.051: "If a divorce, dissolution, legal separation, or
annulment proceeding involves a child and if the court has not issued a shared parenting
decree, the court * * * shall make a just and reasonable order or decree permitting each
parent who is not the residential parent to have parenting time with the child at the time and
under the conditions that the court directs, unless the court determines that it would not be
in the best interest of the child to permit that parent to have parenting time with the child
and includes in the journal its findings of fact and conclusions of law." R.C. 3109.051(A).
{¶33} As an overarching matter, with respect to matters of visitation, the central
focus is the best interests of the children. See R.C. 3109.051(A) through (D); Kelm v. Kelm
(2001), 92 Ohio St.3d 223, 226, 749 N.E.2d 299. "A trial court may limit or restrict visiting
rights of a party in order to further the child's best interest." Callender, 2004-Ohio-1382, at
¶ 31. The court has the "power to restrict the time and place of visitation, to determine the
conditions under which visitation will take place and to deny visitation rights altogether if
visitation would not be in the best interests of the child." Id., quoting Anderson v.
Anderson, 147 Ohio App.3d 513, 2002-Ohio-1156, 771 N.E.2d 303, at ¶ 18, and Jannetti v.
Nichol (May 12, 2000), 7th Dist. No. 97 CA 239.
{¶34} R.C. 3109.051(D) sets forth 15 visitation best-interest factors that the trial
court must consider when determining visitation issues. As a threshold issue, we address
the fact that neither the trial court nor the magistrate cited or specifically addressed the
R.C. 3109.051(D) factors when considering whether the four Mullets should be restrained
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from contact with the children during Wilma's visitation. Instead, the court analyzed
everything under the R.C. 3109.04(F) custody best-interest factors.
{¶35} In the past, this court has reversed and remanded when there was no
consideration of the R.C. 3109.051(D) factors. For example, in Brown v. Brown, 7th Dist.
No. 04-MO-13, 2005-Ohio-6936, this court held that it was an abuse of discretion for the
trial court to order supervised visitation when the trial court "focused solely on the [R.C.
3109.04(F)] custody factors and not on the [R.C. 3109.051(D)] visitation factors." Id. at ¶
56. More recently, however, in Campana v. Campana, 7th Dist. No. 08 MA 88, 2009-Ohio-
796, this court held that when the trial court's decision evinced consideration of the relevant
visitation factors, the court's citing the custody factors was harmless error and therefore not
grounds for reversal. Id. at ¶ 56. In Campana, this court distinguished Brown because the
magistrate's decision in Brown failed to demonstrate the requisite consideration of the
relevant factors. Id. at ¶ 51. Accord Bernard v. Bernard, (Jan. 30, 2002), 7th Dist. No. 00
CO 25, 2002 WL 206411, at * 7 (it is not an abuse of discretion where the journal entry
shows that some of the visitation factors were addressed.)
{¶36} The present case is analogous to Campana. Here, although the court did not
specifically cite the visitation best-interest factors, its judgment, along with the magistrate's
decision that it adopted, did evince consideration of the relevant factors. Moreover, most of
the R.C. 3109.051(D) visitation factors pertinent to the issues in this appeal have
analogues within the R.C. 3109.04(F) custody best-interest factors. Compare R.C.
3109.051(D)(1) (the prior interaction and interrelationships of the child with the child's
parents, siblings, and other persons related by consanguinity or affinity), (D)(5) (the child's
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adjustment to home, school, and community), (D)(9) (the mental and physical health of all
parties), and (D)(15) (any other factor in the best interest of the child) with R.C.
3109.04(F)(1)(c) (the child's interaction and interrelationship with the child's parents,
siblings, and any other person who may significantly affect the child's best interest),
(F)(1)(d) (the child's adjustment to the child's home, school, and community), and (F)(1)(e)
(the mental and physical health of all persons involved in the situation). And although the
custody factors do not contain a specific provision regarding the "health and safety of the
child," as the visitation factors do in R.C. 3109.051(D)(7), it is evident that the trial court
gave significant consideration to this factor. Accordingly, any error on the part of the trial
court in failing to specifically refer to the R.C. 3109.051(D) visitation best-interest factors
was harmless.
{¶37} Wilma argues, however, that the trial court looked beyond the best interests
of the children and considered issues of religion and morals when making its decision to
prohibit the four Mullets from having contact with the children during visitation. The trial
court's consideration of morals, lifestyle choices, religion, and sexual preferences is not per
se an abuse of discretion. Dexter v. Dexter, 11th Dist. No. 2006-P-0051, 2007-Ohio-2568,
at ¶ 32. Rather, such evidence may be considered to the extent that it has a direct adverse
impact on the child. Pater v. Pater (1992), 63 Ohio St.3d 393, 588 N.E.2d 794, paragraph
one of the syllabus; Anderson v. Anderson (2002), 147 Ohio App.3d 513, 520, 524, 771
N.E.2d 303.
{¶38} In Pater, the Ohio Supreme Court held that the trial court abused its
discretion by denying the mother custody based on her religious practices and by ordering
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that the mother shall not teach or expose her child to her religious faith during visitation,
where there was no evidence that the religious practices would adversely affect the mental
or physical health of the child. Id. at 399-402. Similarly in Anderson, this court held that
the trial court abused its discretion by prohibiting the presence of any unrelated male
during the mother's visitation, where the trial court gave no explanation as to the direct
adverse impact on the children, but instead commented on the mother's questionable
morals and her numerous extramarital affairs. Id. at 520, 522.
{¶39} Here, Wilma argues that there was likewise no evidence presented that the
conduct of Samuel, Johnny, Eli, and Christopher Mullet had a direct adverse impact on the
minor children, especially because many of the problematic incidents occurred when Mattie
and Linda were infants, or in some cases, before they were born. However, the direct-
adverse-impact test does not apply to this case.
{¶40} The situation presented here is distinguishable from that in Anderson and
Pater because the visitation restraints at issue in this appeal are not morally or religiously
motivated. Rather, the trial court here restrained Wilma's family members from contact
with the minor children out of a general concern for the children's safety and welfare. For
example, the trial court expresses concern that Christopher Mullet had confessed to
molesting children. The court further notes the "disturbing testimony" about the behaviors
of Wilma's other family members, including Eli Mullet's psychotic episode and the family's
response to it; Johnny Mullet's malicious behavior towards his brother William in the
presence of William's children; and Samuel Mullet's decision to close the Amish school for
an entire school year. Thus, Wilma's contention that the trial court's restraining orders
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were put in place due to moral or religious concerns is unfounded.
{¶41} A similar argument was made by the appellant and rejected by this court in
Bernard, 2002 WL 206411. There, the appellant-mother claimed that the trial court had
erred by restricting her visitation because of her live-in boyfriend. The mother claimed that
there was no evidence that the boyfriend had a direct adverse impact on the children,
especially considering that the children had never met him. This court rejected the
mother's assertion that the court's restrictions were based on moral concerns and thus held
that the direct adverse-impact test was inapplicable. Id. at * 7Specifically, this court stated:
{¶42} "[T]he trial court's ruling was based on the safety, health, and best interests of
the children. Evidence was presented that [the boyfriend] supplied marijuana to his
daughter and that drug use occurred in [the boyfriend's] house. Evidence was also
presented that [the boyfriend] threatened [the mother's] life twice and during one of those
threats [the mother] took her children to her parents to ensure their safety. The conditions
were put in place to protect the best interests of the children. For these reasons, the trial
court did not abuse its discretion by imposing limitations on visitation." (Emphasis added.)
Id.{¶43} Similarly, in the instant case, the trial court limited Wilma's visitation, not out
of moral or religious concerns, but rather out of concerns for the safety and welfare of the
children. Accordingly, no direct adverse impact upon the children must be shown to uphold
the restraining orders. Rather, we will examine whether the trial court abused its discretion
in determining that it was not in the best interests of the minor children to have contact with
each of the four Mullets. Id.; see also Callender, 2004-Ohio-1382, at ¶ 32-34 (applying the
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best-interest test, and not requiring proof of direct adverse harm, with regard to order that
the children have no contact with the father's ex-girlfriend.) Each restraining order at issue
in this case will be discussed in turn.
Samuel Mullet
{¶44} The trial court did not abuse its discretion by prohibiting Samuel Mullet from
contact with the minor children. Samuel Mullet prevented Aden from having contact with
his children for nine months, during which time Aden missed the birth of his second child.
Aden testified that Samuel Mullet told him he had to admit to a false incestuous
relationship with his own mother or he would not be permitted to see his wife and children.
There was testimony that Samuel Mullet, even taking into account his role as Bishop,
exerted an inordinately large amount of control over the members of the Bergholz
community. Sheriff Abdalla testified that he received numerous complaints in this regard,
including complaints that Samuel Mullet had threatened to kill various members of the
community, including the sheriff. Sheriff Abdalla believed the people of Bergholz were
extremely fearful of Samuel Mullet.
{¶45} Emanuel Schrock, whose daughter married one of Samuel Mullet's sons,
testified that Samuel Mullet became angry at him for helping his brother move away from
Bergholz and that in response, Samuel prohibited Emanuel and his wife from all further
contact with their daughter and grandchildren.
{¶46} Samuel's son Joseph Mullet testified that he believes that his father controls
Wilma's choices. Joseph Mullet also testified that Samuel Mullet made threats against his
life and against the lives of his brother Samuel Mullet Jr. and Sheriff Abdalla. Joseph
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Mullet testified further that he was concerned for his father's mental health and tried to get
him professional help. Atlee Miller, the Bishop of the Amish church in Ulysses,
Pennsylvania was concerned enough to attempt to have Samuel Mullet probated.
{¶47} Further, Samuel Mullet reacted to the serving of custody papers upon his
daughter by closing the Amish schoolhouse in Bergholz for an entire year, a reaction the
trial court and the guardian ad litem found unreasonable based on the circumstances.
Thus, there is competent, credible evidence demonstrating that it is not in the best interests
of the children to have contact with Samuel Mullet.
Johnny Mullet
{¶48} The trial court did not abuse its discretion by prohibiting Johnny Mullet from
having contact with the minor children. There was testimony that in February 2007, Johnny
Mullet acted maliciously towards his brother William Mullet and that some of this behavior
occurred in the presence of William's young children. William and his family had moved
away from Bergholz and when they returned were denied access to their house by Johnny
Mullet, who admittedly felled large trees in the driveway and nailed the windows shut.
When this incident occurred, there were two to three inches of snow on the ground.
William Mullet and his family were forced to immediately flee Bergholz. Johnny Mullet
testified that he felt he did the right thing by preventing William and his family from
accessing their house in this way. Johnny felt this conduct was justified because he and
Samuel Mullet had cosigned with William on the Mennonite church loan obtained to build
the house. However, the guardian ad litem expressed serious concerns about this
incident.
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{¶49} In a separate incident, William went to retrieve a horse and buggy, and
Johnny admitted holding William down on the ground in the presence of William's young
children. Lizzie Mullet testified that William's children witnessed this incident and were
crying. Again, Johnny testified he believed this conduct was right. The guardian ad litem
also expressed concerns over this incident.
{¶50} Finally, Johnny admitted holding his brother Eli Mullet down on the ground in
freezing temperatures throughout the night while Eli had a psychotic episode in 2005. In
sum, there is competent, credible evidence demonstrating that it is not in the best interests
of the children to have contact with Johnny Mullet.
Eli Mullet
{¶51} The trial court did not abuse its discretion by prohibiting Eli Mullet from having
contact with the minor children. Eli has a history of mental-health issues, namely a
psychotic episode that lasted for several days and was witnessed by young children in the
community, including some under the age of ten. During this episode, Eli attempted to
grab a gun to shoot at his father. Eli's mother, Martha Mullet, agreed that this event was
"terrifying" for the children in the community. Eli's sister, Lizzie Mullet, who was 15 at the
time, also witnessed Eli being held down outside on the ground overnight in freezing
temperatures during his psychotic break. Eli's sister Alma was 17 at the time, and Eli's
episode caused her a great deal of stress and insomnia. Eli was subsequently admitted to
a mental-health facility in Cambridge for 11 days.
{¶52} Further, Eli threatened the life of Sheriff Abdalla three separate times—
threats the sheriff took seriously. During his testimony, Eli admitted that he had made
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these threats and that he had pleaded guilty to three charges in connection with them.
Finally, Eli broke into the home of Aden's father, Laverne Troyer. Once inside, Eli had
demanded to see Wilma and had assaulted Laverne by pulling on his beard. Eli admitted
fault and testified that he intended to plead guilty to charges in Pennsylvania in connection
with that incident.
{¶53} The guardian ad litem expressed serious concerns about the minor children
having contact with Eli, stating: "Eli Mullet has undergone psychotic episodes in the
presence of children, is currently unmedicated for any mental disorder, and appears
intimidating to the point of appearing to be a violent person."
{¶54} In sum, there is competent, credible evidence that it is not in the best
interests of the children to have contact with Eli during Wilma's visitation. Wilma's
contentions to the contrary are meritless.
{¶55} We note that Wilma also challenges the trial court's refusal to hear additional
evidence regarding Eli Mullet. Contemporaneous with filing objections to the magistrate's
decision, on December 5, 2008, Wilma filed a request for oral hearing and a request for
consideration of additional evidence. Among other things, Wilma requested that the court
consider new evidence about Eli when deciding the objections. Specifically, Wilma sought
to present evidence that Eli Mullet and his family had moved out of Bergholz to his wife's
parents' community in Atlantic, Pennsylvania. Further, Wilma sought to introduce evidence
that Eli had continued with his mental-health treatment. In light of this new evidence,
Wilma asserted that any concerns about Eli had become moot.
{¶56} However, the issue whether to take additional evidence was decided in the
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January 30, 2009 entry from which Wilma failed to timely appeal. Therefore, this issue is
outside the scope of this appeal.
Christopher Mullet
{¶57} The trial court did not abuse its discretion in prohibiting Christopher Mullet
from having contact with the minor children. There was uncontroverted testimony from
witnesses for both sides that Christopher Mullet had sexually molested several young
children in the Bergholz community. Plaintiff's Exhibit A includes written statements made
by I.T., A.T., D.T., and R.T., in which they state that Christopher sexually molested them
when they were children.
{¶58} Further, there was testimony that Christopher Mullet had confessed his abuse
to the Bergholz Amish church and was forgiven and permitted to continue to reside in the
community. As of the time of the hearings, Christopher had not been prosecuted. The
guardian ad litem expressed serious concerns about Christopher Mullet’s having contact
with the minor children. Thus, there is certainly competent, credible evidence supporting
the trial court's decision that it was not in the best interests of the minor children to have
contact with Christopher Mullet.
{¶59} Wilma also challenges the trial court's refusal to hear additional evidence
regarding Christopher Mullet. In her December 5, 2008 request for oral hearing and
request for consideration of additional evidence, Wilma sought to introduce evidence that
Christopher Mullet had subsequently been prosecuted for his crimes, convicted, found
guilty, sentenced, and classified as a Tier II sex offender. Wilma wanted the trial court to
consider this evidence when ruling on her objections to the magistrate's decision. Again,
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this issue is outside the scope of our review because the decision not to hear additional
evidence was decided in the January 30, 2009 entry from which Wilma failed to timely
appeal.
{¶60} In conclusion, the trial court did not abuse its discretion by restraining Samuel
Mullet, Johnny Mullet, Eli Mullet, and Christopher Mullet from contact with the minor
children. There is competent, credible evidence demonstrating it is not in the best interests
of the minor children to have contact with these four individuals. Therefore, Wilma's first
assignment of error is meritless.
Remaining Assignments of Error
{¶61} In Wilma's remaining three assignments of error, she asserts:
{¶62} "The trial court erred in restraining Wilma Mullet, the mother of Mattie and
Linda Troyer, from taking her children with her to her Amish worship service in Bergholz,
Ohio without probative evidence that her Amish religious beliefs and practices had a direct
adverse harm on her two children or without a clear and affirmative showing that the
conflicting religious beliefs of the father and mother affected the general welfare of the
children."
{¶63} "The trial court erred in prohibiting the visitation of Wilma Mullet from
occurring in Bergholz, Ohio when the restraining orders on Wilma Mullet, Samuel Mullet,
Johnny Mullet and Christopher Mullet were improper because there was no probative
evidence that either their alleged immoral or bad conduct or their religious beliefs had a
direct adverse impact on the general welfare of Wilma's children, Mattie and Linda Troyer."
{¶64} "The trial court erred in denying custody to Wilma Mullet when the restraining
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orders on Wilma Mullet, Samuel Mullet, Johnny Mullet and Christopher Mullet were
improper because there was no probative evidence that either their alleged immoral or bad
conduct or their religious beliefs had a direct adverse impact on the general welfare of
Wilma's children, Mattie and Linda Troyer."
{¶65} We cannot address the merits of these assignments of error. As we
explained in our September 11, 2009 judgment entry, we have no jurisdiction to address
these issues because they were resolved in the January 30, 2009 final order, an order from
which Wilma did not timely appeal.
{¶66} We note further that although Aden responds to Wilma's arguments about
the trial court's decision to restrain her from conducting her visitation in Bergholz, Ohio, this
issue is also outside the scope of our review. This issue was conclusively decided in the
January 30, 2009 judgment entry, which states on page four: "All parenting time shall be in
Pennsylvania. Under no circumstances shall parenting time take place in Bergholz, Ohio."
The only new rulings added to the February 13, 2009 judgment entry, and hence the only
rulings that may be reviewed by this court on appeal, are the restraining orders against Eli
Mullet, Samuel Mullet, Johnny Mullet, and Christopher Mullet.
Conclusion
{¶67} Wilma's first assignment of error is meritless. The trial court did not abuse its
discretion by restraining Eli, Samuel, Johnny, and Christopher Mullet from contact with the
minor children. There is competent, credible evidence in the record that contact with these
individuals is not in the best interests of the children. We cannot reach the merits of
Wilma's remaining assignments of error, as we lack jurisdiction to review issues that were
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conclusively decided in an earlier order from which Wilma did not timely appeal.
Accordingly, the judgment of the trial court is affirmed.
Judgment affirmed.
VUKOVICH, P.J., concurs.
DONOFRIO, J., concurs in judgment only.