Midkiff v. Kuzniak ( 2010 )

[Cite as Midkiff v. Kuzniak, 2010-Ohio-2531.]
STATE OF OHIO, MAHONING COUNTY
IN THE COURT OF APPEALS
SEVENTH DISTRICT
NICOLE MIDKIFF, )
)
PLAINTIFF-APPELLEE, )
)
VS. ) CASE NO. 09-MA-104
)
ROBERT KUZNIAK, ) OPINION
)
DEFENDANT-APPELLANT. )
CHARACTER OF PROCEEDINGS: Civil Appeal from Court of Common
Pleas, Juvenile Division, of Mahoning
County, Ohio
Case No. 96JI907
JUDGMENT: Affirmed
APPEARANCES:
For Plaintiff-Appellee No brief filed
For Defendant-Appellant Rev. Robert S. Kuzniak, Jr., pro-se
1865 Basil Avenue
Poland, Ohio 44514
JUDGES:
Hon. Gene Donofrio
Hon. Joseph J. Vukovich
Hon. Mary DeGenaro
Dated: June 4, 2010
[Cite as Midkiff v. Kuzniak, 2010-Ohio-2531.]
DONOFRIO, J.
{¶1} Defendant-appellant, Robert Kuzniak, appeals from a Mahoning County
Common Pleas Court judgment disposing of various motions filed by appellant and
plaintiff-appellee, Nicole Midkifff. Specifically, in the judgment entry appealed from,
the trial court addressed an audit by the Mahoning County Child Support
Enforcement Agency, denied appellant’s motion to compel discovery, modified its
prior order with respect to guardian ad litem fees, and granted appellee’s motion to
modify the standard order of visitation.
{¶2} This case originated in 1996 when appellee filed a contested paternity
complaint against appellant. It was determined that appellant is the father of
appellee's daughter Chrysta (d.o.b.10/25/95).
{¶3} Since that time, this case has been ongoing due to various motions filed
by the parties. This is the fifth time the case has been before us on appeal. See
Midkiff v. Kuzniak, 7th Dist. No. 08-MA-74, 2008-Ohio-6356; Midkiff v. Kuzniak, 7th
Dist. No. 06-MA-155, 2007-Ohio-5936; Midkiff v. Kuzniak, 7th Dist. No. 06-MA-181,
2006-Ohio-6249; Midkiff v. Kuzniak, 7th Dist. No. 06-MA-66, 2006-Ohio-6243.
{¶4} The facts relevant to the present appeal are as follows.
{¶5} Appellant filed a multi-branch motion on December 5, 2008, which
included motions for an emergency expedited hearing, for a hearing to replace the
guardian ad litem, to show cause, for modification of visitation/custody, to rescind a
license suspension lien, to review psychologist reports, and for
physical/psychological examinations. He later withdrew his motions for modification
of visitation/custody and for physical/psychological examinations.
{¶6} On January 15, 2009, appellee filed motions for an in-camera interview
of the minor child, for a guardian ad litem report, and to terminate the standard order
of visitation.
{¶7} On February 6, 2009, the trial court held a hearing. At the hearing the
court referenced an audit of the Mahoning County Child Support Enforcement
Agency (CSEA) records for appellant’s child support payments. (Feb. Tr. 12). It
noted that it had ordered an audit from CSEA and that appellant had asked for a
-2-
hearing on the issue. (Feb. Tr. 12). The court and appellant seemed ready to
proceed but apparently CSEA had not yet prepared the audit. (Feb. Tr. 33). The
court then granted appellant’s motion to review a psychologist report. (Feb. Tr. 15).
Next, the court addressed appellee’s motions for an in-camera interview of the child
and to terminate visitation. (Feb. Tr. 19-20). It stated that it would proceed on those
motions at a later time. (Feb, Tr. 20-21). Finally, the court determined that it would
conduct an in-camera interview of the child and have the guardian ad litem issue a
report. (Feb. Tr. 37).
{¶8} On April 21, 2009, the trial court entered a judgment. It noted that it
had conducted an in-camera interview of the child. It set the matter for an evidentiary
hearing on appellee’s motion to modify the standard order of visitation. And it
modified the standard order of visitation pending the evidentiary hearing setting three
specific visits for appellant with his daughter.
{¶9} A hearing was held on May 15. At the hearing, a CSEA audit specialist
testified regarding an audit she performed per the court’s order. She stated that it
revealed appellant’s account was current. Next, the court heard arguments and
determined that it would deny appellant’s motion to compel the discovery of
appellee’s income tax returns. The court then heard from the child’s guardian ad
litem, who recommended visits with appellant continue. The court additionally
discussed with the parties the amount they were to deposit to pay the guardian ad
litem.
{¶10} The resulting judgment entry addressed the CSEA audit, denied
appellant’s motion to compel discovery, modified its prior order with respect to
guardian ad litem fees, and granted appellee’s motion to modify the standard order of
visitation. As to visitation, the court ordered that appellant was to have visitation with
his daughter every Wednesday for two hours and also every Saturday from 9:00 a.m.
until 8:00 p.m. throughout summer vacation. At the conclusion of summer vacation,
appellant’s weekend visits would switch to every Sunday from 9:00 a.m. until 6:00
p.m.
-3-
{¶11} Appellant filed a timely notice of appeal on June 9, 2009.
{¶12} Appellant, acting pro se, raises four assignments of error, the first of
which states:
{¶13} “THE TRIAL COURT ERRED AS A MATTER OF LAW BY FAILING TO
TIMELY RESPOND TO MOTIONS FILED BY APPELLANT KUZNIAK.”
{¶14} Appellant contends that he was unaware of the nature of the May 15,
2009 hearing. He asserts that he filed a motion asking the court what it would
address at that hearing and the trial court did not respond.
{¶15} On April 8, 2009, the trial court issued a judgment entry where it (1)
noted that it conducted an in-camera interview with the minor child, (2) set the case
for an evidentiary hearing on May 15, (3) granted appellant’s motion for leave to pay
the guardian ad litem fees, (4) overruled appellant’s motion for court-appointed
counsel, (5) modified the standard order of visitation pending the May 15 evidentiary
hearing, and (6) set out three specific visits for appellant and his daughter.
{¶16} On April 15, 2009, appellant filed “objections to April 8, 2009 journal
entry.” In these “objections” appellant attacked the court’s judgment entry on various
grounds, discussed guardian ad litem fees, set out why he believed he is entitled to a
court-appointed attorney, brought up issues with visitation and generally berated
appellee and the court. Also buried within these objections was a request that the
court specifically articulate the issues that would be addressed at the May 15
hearing.
{¶17} While appellant claims ignorance of the purpose of the May 15 hearing,
the record reflects otherwise. The May 15 hearing dealt with two main issues: (1)
modification/termination of the standard order of visitation and (2) the CSEA audit
that had been pending. By appellant’s own admission, he was aware of the CSEA
audit issue. (See appellant’s brief). And appellant was made aware that the
visitation issue would be addressed at the hearing by the court’s April 8 judgment
entry. In that entry, the court specifically stated that it held the in-camera interview,
that the matter was set for a May 15 evidentiary hearing, and that the standard order
-4-
of visitation was modified pending the evidentiary hearing. Thus, appellant had
notice of the main purposes of the hearing. At the May 15 hearing, the court also
addressed appellant’s pending motion to compel discovery and the guardian ad litem
fees. And while it does not appear that these issues were set out in a judgment entry
to give appellant specific notice, he was aware that they were pending issues that the
court needed to resolve.
{¶18} On a more technical note, appellant never filed a motion requesting that
the court provide him with the agenda of the May 15 hearing. His request for an
agenda was buried in a set of objections to the court’s previous judgment entry.
{¶19} Based on the above, the court did not commit reversible error in failing
to provide appellant with a specific notice of what it would address at the May 15
hearing.
{¶20} Appellant also argues that the trial court erred in failing to compel
appellee to provide him with his requested discovery.
{¶21} On February 12, 2009, the court granted appellee’s request for 30 days
to produce discovery that appellant had requested. On March 13, 2009, appellant
filed a motion for an order to compel discovery. In the motion, appellant stated that
appellee had still not produced his requested discovery.
{¶22} At the May 15 hearing, it came out that the discovery appellant
requested was for appellee’s 2001-2009 income tax returns. (May Tr. 39, 40).
Appellee’s counsel stated that he was reluctant to hand those over to appellant due
to appellant’s vexatious nature and also because he thought them to be irrelevant to
any pending issues. (May Tr. 39-40). Appellant stated that the returns were relevant
to prove that appellee acted against a prior court order that the parties alternate
years claiming the child tax credit. (May Tr. 40-41). The court told appellant that the
tax returns were not relevant because if appellee provided incorrect information on
her tax return, that was an issue for the IRS. (May Tr. 45).
{¶23} Again, the trial court did not commit any type of reversible error here.
Firstly, there were no issues dealing with the child tax credit pending before the court.
-5-
Secondly, as the court pointed out, if appellee erred on her tax returns that would be
an issue for the IRS to deal with, not the trial court.
{¶24} Accordingly, appellant’s first assignment of error is without merit.
{¶25} Appellant’s second assignment of error states:
{¶26} “THE TRIAL COURT ERRED AS A MATTER OF LAW BY FAILING TO
HOLD MAHONING COUNTY CHILD SUPPORT AGENCY AUDITOR IN
CONTEMPT OF COURT FOR FAILING TO COMPLY WITH THE TRIAL COURT’S
ORDERS.”
{¶27} Here appellant contends that the CSEA audit of his child support
account was not actually an audit but was merely a summary of payments.
Therefore, he argues that the trial court should have held the CSEA auditor in
contempt of court for failing to comply with the court’s order to provide an audit.
{¶28} At the May 15 hearing, Barbara DeFrances-Bieber, a CSEA audit
specialist, testified regarding her audit of appellant’s account. She testified that the
audit computed the payments from September 2006 through April 2009. (May Tr.
10). She stated that she began with September 2006, because there had been a
September 5, 2006 judgment entry setting appellant’s arrearage at $2,660.45. (May
Tr. 10). DeFrances-Bieber stated that the balance currently due on appellant’s
account was $1.89, so the payments were basically up to date. (May Tr. 11).
Appellant objected to the entire audit on the basis that it did not go back far enough
to show that the CSEA owed him approximately $1,155. (May Tr. 11-12). In reply,
DeFrances-Bieber testified that the CSEA must compute its figures from the last
adjudicated arrearage because that is a court-determined amount. (May Tr. 21-22).
Furthermore, DeFrances-Bieber testified that the audit reflected all payments made
and credits received and it was not merely a payment history as appellant alleged.
(May Tr. 18, 27-28).
{¶29} It is difficult to discern why appellant believes the court should have
held DeFrances-Bieber in contempt. The court ordered a CSEA audit. DeFrances-
Bieber provided the court with a CSEA audit. There is no basis for a contempt
-6-
finding.
{¶30} Accordingly, appellant’s second assignment of error is without merit.
{¶31} Appellant’s third assignment of error states:
{¶32} “THE TRIAL COURT ERRED AS A MATTER OF LAW BY NOT
ALLOWING APPELLANT KUZNIAK HIS RIGHT TO THOROUGHLY EXAMINE
EVIDENCE AND QUESTION AND CALL WITNESSES.”
{¶33} Appellant alleges here that the trial court limited his ability to examine
witnesses and present evidence.
{¶34} While appellant asserts that the trial court did not permit him to present
evidence and question witnesses, he does not cite to any portions of the transcript
where the trial court actually prevented him from presenting relevant evidence or
where he attempted to question a witness and the court stopped him.
{¶35} Pursuant to App.R. 16(A)(7), the appellant's brief shall include “[a]n
argument containing the contentions of the appellant with respect to each
assignment of error presented for review and the reasons in support of the
contentions, with citations to the * * * parts of the record on which appellant relies.”
(Emphasis added.) Appellant failed to comply with this Rule. Furthermore, a review
of the transcript does not reveal any instances of the court limiting appellant’s
presentation of relevant evidence or asking pertinent questions.
{¶36} Accordingly, appellant’s third assignment of error is without merit.
{¶37} Appellant’s fourth assignment of error states:
{¶38} “THE TRIAL COURT ERRED AS A MATTER OF LAW BY MODIFYING
APPELLANT KUZNIAK’S PARENTAL RIGHTS WITHOUT FOLLOWING STATE
LAW OR PROCEDURE.”
{¶39} In this assignment of error, appellant alleges that the trial court failed to
follow R.C. 3109.04 in modifying his visitation with his daughter. He further asserts
that the trial court should not have changed the standard order of visitation based
only on an in-camera interview with the child and the guardian ad litem’s report.
{¶40} A trial court's decision on the modification of parenting time shall not be
-7-
reversed absent an abuse of discretion. Booth v. Booth (1989), 44 Ohio St.3d 142,
144. The trial court has wide latitude in considering all the evidence, and the trial
court is in the best position to view the demeanor, attitude, and credibility of the
witnesses. Davis v. Flickinger (1997), 77 Ohio St.3d 415, 418, citing Seasons Coal
Co. v. Cleveland (1984), 10 Ohio St.3d 77, 80-81.
{¶41} Firstly, appellant does not point out which of R.C. 3109.04’s 13
subsections, or those subsections’ 20-plus additional subsections, he claims the trial
court violated. Thus, we have no way of knowing what his specific argument is here.
{¶42} Secondly, appellant’s argument that the court somehow violated R.C.
3109.04 is misplaced. R.C. 3109.04 deals solely with custody issues, not visitation
issues. Campana v. Campana, 7th Dist. No. 08-MA-88, 2009-Ohio-796, at ¶45. It is
R.C. 3109.051 that deals with parenting time, or visitation issues. Id. at 46, citing
Braatz v. Braatz (1999), 85 Ohio St.3d 40, at 44-45.
{¶43} Thirdly, appellant did not file a transcript of the in-camera interview with
the parties’ daughter. Therefore, we have no way of knowing how the interview may
have affected the trial court’s judgment.
{¶44} Given the above, there is no basis on which to determine that the trial
court abused its discretion in modifying appellant’s parenting time with his daughter.
Accordingly, appellant’s fourth assignment of error is without merit.
{¶45} For the reasons stated above, the trial court’s judgment is hereby
affirmed.
Vukovich, P.J., concurs.
DeGenaro, J., concurs.