Dyer v. Gomez , 2022 Ohio 1127 ( 2022 )

[Cite as Dyer v. Gomez, 2022-Ohio-1127.]
IN THE COURT OF APPEALS OF OHIO
SEVENTH APPELLATE DISTRICT
NOBLE COUNTY
DAGMAR D. DYER,
Plaintiff-Appellee,
v.
JOHN PAUL GOMEZ,
Defendant-Appellant.
OPINION AND JUDGMENT ENTRY
Case No. 21 NO 0484
Domestic Relations Appeal from the
Court of Common Pleas of Noble County, Ohio
Case No. 205-0135
BEFORE:
Carol Ann Robb, Gene Donofrio, David A. D’Apolito, Judges.
JUDGMENT:
Affirmed in part, Reversed and Remanded, in part.
No Brief filed for Plaintiff-Appellee and
John Paul Gomez, pro se, 3313 Kathy Drive, Pittsburgh, PA 15204 for Defendant-
Appellant.
Dated: March 31, 2022
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Robb, J.
{¶1} Appellant John Paul Gomez (the father) appeals the decisions entered by
the Noble County Common Pleas Court on his child custody motions. In his first
assignment of error, he argues the trial court should have granted his 2019 motion to
modify parental rights and responsibilities. His motion was denied in 2020, and the
findings of fact and conclusions of law were issued in 2021 (on this court’s instruction due
to the father’s timely motion). The father sets forth other complaints under this
assignment of error as well, such as a contention the case should not have been heard
in Ohio based on his belief the home state of both children had changed to Pennsylvania.
The judgment denying the father’s 2019 motion to modify parental rights is affirmed.
{¶2} In his second assignment of error, the father argues the trial court should
have relieved him of the obligation to pay child support to Appellee Dagmar Dyer (the
mother) when the court granted his 2021 motion for custody of the parties’ son. The
September 21, 2021 judgment granting the father’s 2021 motion is reversed to the
extent it modifies custody in his favor without addressing his continuing child support
obligation. The case is remanded for the trial court to address termination of the
father’s monthly child support obligation corresponding to the son and other matters
related to child support.
STATEMENT OF THE CASE
{¶3} When the parties divorced in 2006, the mother was named the residential
parent of both children (a daughter born in August 2003 and a son born in March 2005).
Gomez v. Gomez, 7th Dist. Noble No. 06 NO 330, 2007-Ohio-1559. The father’s initial
motion to reallocate parental rights was denied, and that decision was eventually affirmed.
Gomez v. Gomez, 7th Dist. Noble No. 10-NO-375, 2011-Ohio-2843 (after we reversed
the finding on changed circumstances and remanded to address the children’s best
interest).
{¶4} On May 16, 2019, the father filed a motion to modify parental rights and
responsibilities, and a motion to terminate child support as the son started living with him
in Pittsburgh in April 2018 and the daughter started living with him in February 2019. A
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hearing was conducted on July 26, 2019. On the same day, the father filed a motion to
transfer the case to Allegheny County, Pennsylvania. The court denied the motion,
finding jurisdiction and venue were proper. (8/8/19 J.E.; 9/10/19 J.E).
{¶5} The next hearing included an in camera interview with the children. As the
father wished to present more evidence than time permitted, the hearing was continued.
(8/30/19 Tr. 67-68). The daughter started staying at the mother’s residence in mid-
August. The court issued an order confirming the mother’s custody of the daughter and
ordering enrollment at a school in Ohio (pending a ruling on the father’s modification
motion). (9/10/19 J.E.). On September 23, 2019, the mother filed a motion seeking to
confirm her legal status as the custodian of the son and to obtain physical custody of him.
{¶6} The father filed more motions protesting the case proceeding in Ohio. He
asked the court to reconsider his motion to transfer the case to Allegheny County,
disclosing he obtained a protection order against the mother and filed a motion for custody
in that county’s family court. He also moved to dismiss, claiming Ohio lacked jurisdiction
and was an inconvenient forum.
{¶7} On October 30, 2019, the mother filed a motion to show cause for failing to
comply with the original custody order and an emergency motion for physical custody of
the son disclosing new issues (with school, running away, and the father’s wife ejecting
the son from the home). The mother attached an entry showing the court in Allegheny
County dismissed the father’s custody motion on October 17, 2019, as the court found
the father “failed to establish proper jurisdiction/venue exists” in Pennsylvania. The court
granted the mother’s motion to obtain physical custody of the son and ordered the father
to immediately surrender him. (11/4/19 J.E.).
{¶8} On November 22, 2019, the father filed motion to hold the mother in
contempt for violating the Allegheny County protection order, which contained a provision
granting him temporary custody of the son. The same day, the father filed a “renewed”
motion for modification of parental rights and responsibilities. He said the children lacked
stability and supervision, pointing to the time the son spent living with him (5/4/18-
10/30/19) and the time the daughter spent living with him (2/7/19-8/16/19).
{¶9} There were delays in setting a further hearing after the father filed an
original action in this district against the trial judge (and the mother), which the father
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voluntarily dismissed weeks later. State ex rel. Gomez v. Favreau, 7th Dist. Noble No.
19 NO 0469 (filed 9/4/19). Soon after that dismissal, he filed a similar action in the Ohio
Supreme Court, which was dismissed on December 13, 2019 on the judge’s motion.
State ex rel. Gomez v. Favreau, 157 Ohio St.3d 1508, 2019-Ohio-5152, 136 N.E.3d 493.
{¶10} The next hearing proceeded on January 17, 2020 but was continued after
the father’s presentation of his case took longer than expected; the court pointed out the
mother was entitled to an opportunity to present evidence. The scheduling of the
continued hearing was delayed after the father filed a notice of appeal from various orders
entered between August and November of 2019. Dyer v. Gomez, 7th Dist. Noble No. 20
NO 0471. The appeal was dismissed in June 2020.
{¶11} The final day of the hearing proceeded on July 17, 2020. The trial court
denied the father’s motion and maintained the mother as the residential parent. (7/21/20
J.E. 1). Hours later, the court rejected the father’s motion for findings of fact and
conclusions of law, which had been filed the previous day. (7/21/20 J.E. 2). The father
appealed from those entries. This court dismissed the appeal but instructed the trial court
to issue findings of fact and conclusions of law. Dyer v. Gomez, 7th Dist. Noble No. 20
NO 0476, 2021-Ohio-1168.
{¶12} Less than three weeks after our April 1, 2021 decision, the father filed an
original action in the Supreme Court seeking to compel the trial judge to issue findings of
fact and conclusions of law. The judge’s response pointed out: he acted as a visiting
judge in this case; he retired when his term ended in February 2021; the regular common
pleas court judge recused himself from this case years ago (and then retired in April
2021); the new common pleas court judge recused herself on April 28, 2021; and a visiting
judge was recently assigned to this case. The Supreme Court dismissed the father’s
action on June 2, 2021. State ex rel. Gomez v. Favreau, 163 Ohio St.3d 1437, 2021-
Ohio-1870, 168 N.E.3d 1192.
{¶13} While the new judge was reviewing the record in order to issue findings of
fact and conclusions of law, the father filed a motion for temporary custody of the son.
This August 24, 2021 motion explained a new development: a Muskingum County
juvenile court placed the son in his custody as part of a plea agreement to avoid further
juvenile incarceration. The father’s motion said the mother agreed with the placement
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and would visit on Sundays. The court held a hearing on the motion and conducted an
in camera interview of the son.
{¶14} On September 21, 2021, the trial court issued two judgments. Both are
encompassed in the father’s notice of appeal. First, in order to comply with the
instructions of this court in the prior appeal, the trial court issued findings of fact and
conclusions of law in support of the July 21, 2020 decision denying the father’s 2019
motion to modify parental rights and responsibilities. The father’s first assignment of error
on appeal contests this decision denying his 2019 motion.
{¶15} In the other judgment issued on September 21, 2021, the court granted the
father’s 2021 motion related to the son’s custody. The judgment set forth conclusions of
law, recited new facts learned at the latest hearing, and referred to the prior situation in
the case by incorporating the other findings of fact and conclusions of law (which were
filed the same day). In addition to the father’s testimony on the juvenile delinquency
adjudication and the mother’s agreement with the placement, the court cited the latest in
camera interview of the child and the exhibits.
{¶16} An hour later, the father filed a Civ.R. 52 motion for findings of fact and
conclusions of law, expressing a belief it was “procedurally necessary” for him to do so
but observing “To the extent that this Honorable Court has satisfied this request in the
combined Journal Entry dated September 21, 2021, the Court may render said motion
moot.” On September 27, 2021, the court found the motion moot pointing to the findings
of fact and conclusions of law in the entry granting him custody (including the incorporated
findings and conclusions on the other decision). The father’s second assignment of error
on appeal contests the failure to terminate child support while granting his 2021 custody
motion.
ASSIGNMENT OF ERROR ONE
{¶17} The father’s first assignment of error provides:
“The trial court erred by denying my Civil Rule 52 motion, abused its discretion
failing to find change of circumstances and considering the best interests of the children;
and that the harm likely to be caused by a change of environment was outweighed by the
advantages of the change. Thus, failed to modify allocation [of] parental rights and
responsibilities violating my due process and right to raise my children unreasonably,
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arbitrarily, and unconscionably to my prejudice against the manifest weight of the
evidence.”
{¶18} As to the assignment of error’s reference to the denial of his Civ.R. 52
motion, the father points out the original judge denied his July 20, 2020 motion for findings
of fact and conclusions of law. He believes the judge who was assigned the case after
this court instructed the trial court to issue findings of fact and conclusions of law
misinterpreted this court’s instruction and the rule as constraining the trial court to
maintain the July 21, 2020 judgment. He says the trial court was not required to support
the “irrational” decision denying his 2019 motion.
{¶19} However, the trial court did not believe the denial was irrational.
Furthermore, reconsideration of a final judgment is a nullity. Pitts v. Ohio Dept. of Transp.,
67 Ohio St.2d 378, 379-381, 423 N.E.2d 1105 (1981), fn. 1 (consistent with Civ.R. 54(B),
only an interlocutory order is subject to revision). Relief from a judgment is only available
by rule, such as Civ.R. 59 (motion for new trial) or Civ.R. 60(B) (motion for relief from
judgment). Id. at 380. App.R. 4(B)(2) tolls the time for appealing an “otherwise final”
judgment when there is a pending timely motion for findings of fact and conclusions of
law.
{¶20} The fact that a ruling is pending on a motion for findings of fact and
conclusions of law does not mean a court can reconsider the otherwise final judgment.
Perfection Graphics Inc. v. Sheehan, 11th Dist. Geauga No. 93-G-1776 (Mar. 3, 1995) (a
motion seeking reconsideration is not proper merely because the time for appealing was
tolled by a motion for findings and conclusions). It has been observed:
Filing a Civ.R. 52 motion means the judgment is not final for purposes of
appeal, pursuant to App.R. 4, but that does not mean that it is not final for
other purposes. * * * There is no provision in Civ.R. 52 to permit the trial
court to reconsider or change its judgment pursuant to a request for findings
of facts and conclusions of law. Civ.R. 52 provides a vehicle for a trial court
to clarify its judgment, not to modify an otherwise final judgment.
Vanderhoff v. Vanderhoff, 3d Dist. Seneca No. 13-09-21, 2009-Ohio-5907, ¶ 12. Upon
pointing out the divorce judgment was final under R.C. 2505.02, Civ.R. 54, and Civ.R.
75(F), the Third District concluded the court could not reconsider the judgment,
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notwithstanding the pending motion for findings of fact and conclusions of law. Id. at ¶
14-16. See also Hein Bros. v. Reynolds, 7th Dist. Belmont No. 21 BE 0017, 2021-Ohio-
4633, ¶ 42 (where the court asked for proposed findings and conclusions, we held: “after
a court announces its decision, the chance to file proposed findings of fact and
conclusions of law is not meant to be a reconsideration procedure”).
{¶21} In any event, the trial court specifically opined the father failed to meet his
burden to present sufficient evidence to support a modification of parental rights and
responsibilities under R.C. 3109.04. This leads to the father’s argument that the trial court
abused its discretion in denying his 2019 motion for modification of parental rights and
responsibilities.
{¶22} A trial court's custody modification decision is reviewed for an abuse of
discretion. Davis v. Flickinger, 77 Ohio St.3d 415, 416, 421, 674 N.E.2d 1159 (1997).
Pursuant to statute:
The court shall not modify a prior decree allocating parental rights and
responsibilities for the care of children unless it finds, based on facts that
have arisen since the prior decree or that were unknown to the court at the
time of the prior decree, that a change has occurred in the circumstances
of the child, the child's residential parent, or either of the parents subject to
a shared parenting decree, and that the modification is necessary to serve
the best interest of the child.
R.C 3109.04(E)(1)(a). This statute then states the court shall retain the previously
designated residential parent unless one of the following applies: (i) the residential parent
agrees to change the residential parent; (ii) the child has been integrated into the other
parent’s family with the residential parent’s consent; or (iii) the harm likely to be caused
by a change of environment is outweighed by the advantages of the change of
environment to the child. R.C 3109.04(E)(1)(a)(i)-(iii). The father relies on subdivision
(iii), arguing any harm from a change of environment would be outweighed by the
advantages to the child.
{¶23} The father complains the original judge described the children’s time living
with him as “extended visitation” accomplished without motion or court order and found
“there had been an agreement that the children should remain in the custody of their
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mother in Ohio * * *.” However, the comments were making the point that the court’s prior
designation of the mother as residential parent was not changed by the children’s
relocation to Pittsburgh with the mother’s consent. The mother testified that after the
house was burglarized and she suffered an accident in the same weekend, they agreed
the son would move to Pittsburgh with the father temporarily; she said they did not agree
it was a permanent move. (7/26/19 Tr. 7, 9). This was explained in ¶ 5 of the court’s
findings of fact. (9/21/20 J.E.1).
{¶24} As for a change of circumstances, the father’s May 2019 motion said the
son began living with him in Pittsburgh in the spring of 2018 and attended school there
for the 2018-2019 school year and the daughter moved into his residence and began
school there in February 2019. The daughter returned to the mother’s residence in
August 2019, and the son returned to the mother’s residence in November 2019. The
father’s brief points out the son also lived with him for a time in 2012 and the daughter
lived with him for a time in 2015. He also points to the mother’s many moves since the
prior order and says she was unavailable to supervise the children as she has three jobs.
{¶25} A change of circumstances must be a “change of substance, not a slight or
inconsequential change”; however, the change need not be substantial. Davis, 77 Ohio
St.3d at 418 (taking no issue with the appellate court requiring the change to be
“substantiated, continuing, and have a materially adverse effect upon the child”). A court
is not bound by a child’s status at the time a motion is filed and may consider later events
in ascertaining changed circumstances, as the hearings may take time to conduct and
important developments may have occurred. Hagan v. Hagan, 5th Dist. Delaware No. 18
CAF 03 0030, 2019-Ohio-51, ¶ 35
{¶26} The father criticizes ¶ 7 of the conclusions of law where the trial court said
the parties’ various alterations in the children’s living arrangements do “not necessarily
constitute a change of circumstances pursuant to R.C. 3109.04.” Although they had
moved in with their father, they then moved back to their mother. In the next sentence,
the court proceeded to discuss various behavioral issues that have arisen with the
children. By the time of the final hearing on the 2019 motion, each child had experienced
an adverse change (Guernsey County juvenile adjudication with probation for one and
pregnancy for the other).
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{¶27} Assuming the totality of evidence sufficiently evinced a change of
circumstances, we move to the remaining modification provisions. “[I]f the threshold test
of changed circumstances is not met, then a court is prohibited from granting the non-
residential parent's motion to reallocate parental rights (by finding a change of custody
would be in the child's best interest). Yet, this does not mean a court cannot make
alternative holdings in support of its denial of modification.” Chick v. Chick, 7th Dist.
Columbiana No. 19 CO 0021, 2020-Ohio-4431, ¶ 30-31 (“Even where a trial court finds a
lack of changed circumstances, the trial court is permitted to make alternative holdings
on the best interest test and the harm versus advantage test.”).
{¶28} In outlining the behavioral problems, the trial court found issues arose in
both households and the prior agreements to relocate the children were not necessarily
in each child’s best interest at the time. The court then said it considered the best interest
factors in R.C. 3109.04(F)(1) and listed the factors considered. The court concluded the
modification proposed by the father was not in either child’s best interest and the harm
from another change in environment was not outweighed by the advantages of the
change of environment to each child. To the contrary, the father urges the modification
would have been in each child’s best interest and the benefits of the modification would
outweigh any harm.
{¶29} We review the best interest factors. The father moved for modification of
parental rights and responsibilities, and the mother wished to maintain her residential
parent status. See R.C. 3109.04(F)(1)(a) (wishes of parents). Notably, the father
essentially withdrew his request for custody of the daughter at the final hearing where he
declared: “I will grant [the daughter’s] wishes to stay here with her mom in Cambridge * *
*.” He pointed out she was just turning 17, was pregnant, and the baby’s father lived near
her. (7/17/20 Tr. 33). At the time of the final hearing on the 2019 motion, the son was 15
years old. The children’s wishes and concerns were considered, and the court conducted
in camera interviews. See R.C. 3109.04(F)(1)(b).
{¶30} The father emphasized the mother was working three jobs at once: she
owned a salon; she sold items for a beauty supply company; and she bartended three to
four nights a month (while the father had the children). The father complained the mother
moved many times in the past ten years. We note the moves were all within the same
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area. At the time of the August 2019 hearing, the mother lived in a two-bedroom
apartment above her salon in Cambridge. By the time of the final hearing in July 2020,
she had moved with the children to a three-bedroom house, still in Cambridge.
{¶31} The father lived with his wife and their four children in Pittsburgh. See R.C.
3109.04(F)(1)(j) (residence out of state). As acknowledged by the mother, the children
at issue here missed their four half-siblings. See R.C. 3109.04(F)(1)(c) (relationship with
those who may significantly affect child’s best interest).
{¶32} Yet, the daughter was prohibited from visiting the father’s residence due to
a civil protection order which his wife obtained against the daughter in Pennsylvania.
(1/17/20 Tr. 141; 7/17/20 Tr. 31). There was also a physical incident between the father’s
wife and the son; according to the mother’s testimony, Children Services was involved.
(7/17/20 Tr. 7, 15). The father acknowledged his wife attempted to hit the son for being
disrespectful and he had to calm his wife. They then had a disagreement, prompting him
to move with the son to another location for a month. (7/17/20 Tr. 26-27). The father also
acknowledged there were incidents of each child running away while in his care. (7/17/20
Tr. 35). The father’s witness found the daughter at a bus stop in downtown Pittsburgh
after she jumped out of her father’s car; the witness said the daughter wanted to go home
as she missed her mother and friends. (8/30/19 Tr. 25). The father accused the mother
of encouraging the children to run away.
{¶33} The father presented evidence on his parenting style and his dedication to
the children’s upbringing and their participation in an after-school program conducted by
a non-profit run by his wife. See R.C. 3109.04(F)(1)(d) (adjustment to home, school, and
community). The father urged the children received much-needed supervision and
stability after the son moved to his residence in May 2018 and the daughter moved to his
residence in February 2019 (until the mother sought their return).
{¶34} At the time of the final hearing, the daughter was about to be a junior in high
school in the district where she lived with her mother; they were considering an online
option which became available due to the pandemic. She worked at the salon owned by
the mother. (7/17/20 Tr. 10, 12).
{¶35} The son adjusted to his prior charter school in Pennsylvania where he
attended eighth grade for the 2018-2019 school year. However, that entity had no high
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school. The mother wanted the son to come home to start ninth grade, but the father
enrolled him at the Catholic high school in Pittsburgh which the daughter attended the
prior spring. The son then moved back to the mother in November 2019 and suffered
issues with school. In the summer of 2020, the son was working full-time at a fast food
restaurant. The mother believed this was beneficial to him while the father said he would
disallow work once school started (and allow 15 hours in the summer). (7/17/20 Tr. 37).
{¶36} The trial court said it considered the mental and physical health of all
involved. See R.C. 3109.04(F)(1)(e). The father testified about attending family therapy.
The daughter was approximately six months pregnant.
{¶37} The mother facilitated visitation in the past, and there was no indication the
father would not facilitate visitation if he was granted custody. See R.C.
3109.04(F)(1)(f),(i). It seemed the father’s more recent lack of visitation was attributable
to the dynamic with the father’s wife (and her protection order against the daughter). After
the father’s May 2019 motion was filed, the mother complained he was keeping custody
of the children contrary to the court’s designation of the mother as the residential parent.
The father pointed out he initially relied on their verbal agreement about custody; the
mother said they agreed it was temporary. He claimed she only cared that the children
wanted to return to her because she feared she would lose the child support he was
paying.
{¶38} On the best interest factor related to past child support, the father paid child
support as ordered and did not seek termination until a year after the son began living
with him in May 2018. See R.C. 3109.04(F)(1)(g). After the daughter also moved in with
him in February 2019, the mother provided him with her child support debit card. He then
filed a motion to terminate support in May 2019 along with the motion to modify parental
rights.
{¶39} As the court pointed out, there was no evidence either parent acted in a
manner resulting in an abused or neglected child. See R.C. 3109.04(F)(1)(h). As to this
factor, the father points to the Pennsylvania protection order issued against the mother
with regards to her threats against him and his wife.
{¶40} In reviewing a custody modification decision for an abuse of discretion, we
do not substitute our judgment for that of the trial court. See Davis, 77 Ohio St.3d at 416,
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421; Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983). In
evaluating a case under the abuse of discretion standard, the court determines whether
the decision was arbitrary, unconscionable, or unreasonable. Blakemore, 5 Ohio St.3d
at 219. “It is to be expected that most instances of abuse of discretion will result in
decisions that are simply unreasonable, rather than decisions that are unconscionable or
arbitrary. A decision is unreasonable if there is no sound reasoning process that would
support that decision.” AAA Ents. Inc. v. River Place Community Urban Redev. Corp., 50
Ohio St.3d 157, 161, 553 N.E.2d 597 (1990). “It is not enough that the reviewing court,
were it deciding the issue de novo, would not have found that reasoning process to be
persuasive, perhaps in view of countervailing reasoning processes that would support a
contrary result.” Id.{¶41} With these standards governing and pointing to our review of the best
interest factors conducted above, we hereby conclude the decision denying the father’s
2019 motion to modify parental rights and responsibilities was not arbitrary or
unconscionable, and there exists a sound reasoning process that would support such a
decision.
Delay
{¶42} The father complains about the delay between his 2019 motion and the July
2020 final hearing and ruling on the motion. Our review of the record indicates the father
was the cause of delay during this time, as supported by our above Statement of the
Case. As a recap, the case was promptly heard in July and August 2019 on a May 2019
motion. Because the father wished to present more evidence than time permitted, the
August hearing was continued. The hearing was not held until January 2020 due to the
original actions filed by the father against the judge. That is, he filed an original action
against the judge in this court on September 13, 2019. Soon after that action was
dismissed, he filed an original action against the judge in the Ohio Supreme Court on
October 11, 2019, which was dismissed on December 13, 2019.
{¶43} The hearing convened on January 17, 2020 but went longer than expected,
and the court commented a further date was required to allow the mother to present a
defense. The father complains about this comment along with a statement in the findings
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of fact and conclusions of law referencing his claim of racial discrimination 1 and his slow
presentation. Yet, the court was merely reviewing the history of the case and explaining
the judge can properly encourage the parties to move along when they start repeating
themselves. See Evid.R. 403(B) (“Although relevant, evidence may be excluded if its
probative value is substantially outweighed by considerations of undue delay, or needless
presentation of cumulative evidence.”). The hearing was not rescheduled until July 17,
2020 because the father decided to file an untimely notice of appeal in January from
interlocutory orders issued between August and November of 2019. The appeal was
dismissed in June 2020, after which the final hearing was promptly scheduled.
Accordingly, the delay between the first and last hearings on his 2019 motion was not
caused by the trial court’s inaction.
Ohio Court Maintaining Jurisdiction
{¶44} In the recitation of the issues presented and in the argument section under
this assignment of error, the father briefly argues the trial court should have found
Pennsylvania was the home state of both children. Although the father sets forth a lengthy
and specific assignment of error arguing why the court erred in failing to modify custody,
the text of the assignment of error does not mention or relate to his argument on
jurisdiction.
{¶45} At the first hearing in the case, where the father’s argument under the
Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) was initially
addressed, he said the son began living with him in Pennsylvania a year before he filed
his motion to modify custody and the daughter began living with him around February 8,
2019 which he calculated to be six months as of the date of the July 26, 2019 hearing.
(7/26/19 Tr. 16-17). However, the father’s argument on the time the daughter spent in
Pennsylvania was mathematically incorrect. As the mother and the court pointed out, the
period he referred to (2/8/19 - 7/26/19) was less than six months.
1
We note the father claims racism is evidenced by the original judge using German to repeat a remark
initially made in English. However, this was not random linguistic usage with some underlying malicious
intent but was clearly the product of earlier banter after the mother explained her first name was German
and she was born in Germany; the court also repeated a comment in Spanish after the mother noted she
grew up in Spain. (8/30/19 Tr. 3; 1/17/20 Tr. 140).
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{¶46} Moreover, even assuming the home state issue was relevant to the
modification proceedings, it would have been the time prior to the filing of his May 16,
2019 motion that would be relevant, not the time passing after his motion. “Home state”
is defined in the UCCJEA as “the state in which a child lived with a parent or a person
acting as a parent for at least six consecutive months immediately preceding the
commencement of a child custody proceeding * * *.” (Emphasis added.) R.C.
3127.01(B)(7). “Commencement” is specifically defined as “the filing of the first pleading
in a proceeding.” R.C. 3127.01(B)(5). The daughter was only with him for three months
at the time of his motion.
{¶47} In any event, the father relied on R.C. 3127.15(A)(1) in making his transfer
argument about the home state of the children. (7/26/19 Tr. 28). However, this statute
applies to the court’s “jurisdiction to make an initial determination in a child custody
proceeding * * *.” (Emphasis added.) R.C. 3127.15(A)(1). This statute can also be
relevant when an Ohio court is determining whether there is jurisdiction to modify a
custody order of a different state. R.C. 3127.17 (“a court of this state may not modify a
child custody determination made by a court of another state” unless certain conditions
exist), citing R.C. 3127.15.
{¶48} However in this case, the prior initial determination in the child custody
proceeding was made by an Ohio court. Therefore, the pertinent statute is R.C. 3127.16.
See Slaughter v. Slaughter, 10th Dist. Franklin No. 11AP-997, 2012-Ohio-3973, ¶ 22.2
The statute relating to Ohio’s continuing jurisdiction over its own custody orders provides:
a court of this state that has made a child custody determination consistent
with section 3127.15 or 3127.17 of the Revised Code has exclusive,
continuing jurisdiction over the determination until the court or a court of
another state determines that the child, the child's parents, and any person
acting as a parent do not presently reside in this state.
R.C. 3127.16 (with exception for temporary emergency custody in R.C. 3127.18).
2
The case cited in the father’s brief did not involve continuing jurisdiction upon a motion to modify an Ohio
custody order; rather, it involved an initial determination of custody. See Rosen v. Celebrezze, 117 Ohio
St.3d 241, 2008-Ohio-853, 883 N.E.2d 420 (where the mother moved with the children to Ohio from West
Virginia four months before filing her complaint for legal separation).
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{¶49} We emphasize to the father the statute pluralizes “parents” and uses “and”
(rather than “or”) when asking if the child “and” the child’s parents do not presently reside
in Ohio. As Ohio had jurisdiction to make the initial custody determination, Ohio’s
continuing and exclusive jurisdiction does not terminate unless none of the listed parties
still live in this state. R.C. 3127.16; Slaughter, 10th Dist. No. 11AP-997 at ¶ 23-25, citing
Lafi v. Lafi, 2d Dist. Miami No. 2007 CA 37, 2008-Ohio-1871, ¶ 5, 12-13. Similarly, we
note the federal Parental Kidnapping Prevention Act (PKPA) provides continuing
jurisdiction to the state issuing the initial custody order if that state remains the residence
of the child or of a person who claims a custody or visitation right with regards to the child.
28 U.S.C. 1738A (b) (defining contestant), (d) (“The jurisdiction of a court of a State which
has made a child custody or visitation determination consistently with the provisions of
this section continues as long as [such court had jurisdiction under its state laws] and
such State remains the residence of the child or of any contestant.”).
{¶50} As modification of a prior Ohio custody order is sought: “the determinative
fact in this case was whether either appellant or appellee or any of their children were
residents of Ohio at the time [of the] motion to transfer venue. If none of these individuals
was a resident of Ohio at that time, the domestic relations court no longer had continuing
jurisdiction.” Slaughter, 10th Dist. No. 11AP-997 at ¶ 27. As the mother continued to live
in Ohio, which is the state of the initial custody determination, the father’s argument on
Pennsylvania’s jurisdiction is without merit.
{¶51} Lastly, we note as to venue, “the legislature has entrusted trial courts
with the discretion to determine whether their court is an inconvenient forum under
R.C. 3127.21.” In re N.R., 7th Dist. Mahoning No. 09 MA 85, 2010-Ohio-753, ¶ 28.
In that case, the court in Mercer County, Pennsylvania “expressed its willingness to
accept jurisdiction in the event that the Ohio court chose to transfer the case.” Id. at
¶ 5 (where the mother filed a motion in Ohio and the father filed a motion in
Pennsylvania). Still, we concluded: “the trial court determined that retaining
jurisdiction did not pose an inconvenience. While it is true that certain enumerated
factors favored Pennsylvania as a more convenient forum, and others favored Ohio
as more convenient, the trial court acted within its discretion in weighing the factors.”
Id. at ¶ 28.
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{¶52} Those venue factors include: whether domestic violence has occurred
and is likely to continue in the future and which state could best protect the parties
and the child; the length of time the child has resided outside this state; the distance
between the court in this state and the court in the state that would assume jurisdiction;
the relative financial circumstances of the parties; any agreement of the parties as to
which state should assume jurisdiction; the nature and location of the evidence
required to resolve the pending litigation, including the testimony of the child; the
ability of the court of each state to decide the issue expeditiously and the procedures
necessary to present the evidence; and the familiarity of the court of each state with
the facts and issues in the pending litigation. R.C 3127.21(B)(1)-(8).
{¶53} Here, the father initiated the action in Ohio and later asked to transfer
the case by claiming Pennsylvania was the children’s home state (as discussed
supra). There was no compelling evidence at the July 26, 2019 hearing indicating
Ohio would be an inconvenient forum besides the location of the children in
Pennsylvania, which was said to be contrary to the residential parent’s wishes at the
time. In any event, the father’s brief does not cite R.C. 3127.21 or specify Ohio was
an inconvenient forum.
{¶54} On this topic, the brief merely complains the trial court did not provide him
with a transcript of a call with the judge in Allegheny County and alleges the Ohio judge
should not have told the Supreme Court (in a motion filed in his original action) that the
court in Allegheny County found Pennsylvania to be an inconvenient forum. However, on
October 17, 2019, the court in Allegheny County found the father “failed to establish
proper jurisdiction/venue exists.” That entry also indicated the existence of an Ohio order
was confirmed by a procedural phone call with the Ohio judge. Pursuant to the relevant
statute, a court of this state may communicate with a court of another state on a UCCJEA
matter, and a “record need not be made of the communication” where the
communication concerned court records and similar matters. R.C. 3127.09(A),(C).
The arguments under this section are overruled.
Case No. 21 NO 0484
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Failure to Hold Mother in Contempt
{¶55} The father’s list of issues presented for review contains a query as to
whether the trial court’s failure to address his November 22, 2019 motion for contempt
deprived him of redress. (We note the mother filed a motion to hold the father in
contempt of the original custody order a month before he filed his motion, and the court
did not issue a specific order in denying that motion either.) Initially, we point out the
father’s contention on this topic is not briefed in the argument section under the
assignment of error as required by App.R. 16(A)(7). In any event, his argument is without
merit.
{¶56} He filed the motion in Ohio seeking to hold the mother in contempt for
violating a provision of the protection order obtained in Allegheny County, Pennsylvania
on October 1, 2019 (after he reported the mother threatened him). That order contained
a provision granting him “Temporary primary custody” over the son. Yet, his custody
motion was thereafter dismissed by the court in Allegheny County in a final order issued
on October 17, 2019. Contrary to the father’s contention, the temporary custody provision
in the earlier order did not remain effective.
{¶57} Moreover, after the Pennsylvania court found a lack of jurisdiction and
venue, the trial court in the case at bar issued a decision ordering the father to
immediately surrender physical custody of the son to the mother. (11/4/19 J.E.). Also,
the court’s findings of fact and conclusions of law cited the Pennsylvania court’s
November 20, 2019 decision, which dismissed his contempt request upon citing Ohio’s
November 4, 2020 custody order.
{¶58} Under such circumstances, a trial court can reasonably exercise its
discretion to refrain from holding a hearing on a motion for contempt that the court intends
to deny. Due process and statutory protections protect the accused by providing an
opportunity to explain before being held in contempt. Anderson v. Fleagane, 7th Dist.
Belmont No. 21 BE 0020, 2022-Ohio-___, ¶ 59-60 (and the movant cannot appeal on
grounds of failure to hold a hearing without showing prejudice in that the motion would
have been granted).
{¶59} In any event, there was a hearing. The court issued a summons on the
father’s motion and set a hearing for December 2, 2020, the same day as the continued
Case No. 21 NO 0484
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hearing on modification was scheduled to proceed. As already noted, the hearing was
then continued until January due to the father’s original action pending in the Ohio
Supreme Court. Two evidentiary hearings were eventually held after the motion for
contempt was filed, and the court thereafter implicitly denied the father’s motion.
{¶60} “Ohio law is well established that where the court fails to rule on an objection
or motion, it will be presumed that the court overruled the objection or motion. Generally,
when the trial court enters judgment without expressly determining a pending motion, the
motion is also considered impliedly overruled.” Portofe v. Portofe, 153 Ohio App.3d 207,
2003-Ohio-3469, 792 N.E.2d 742, ¶ 16 (7th Dist). See also Batten v. Batten, 5th Dist.
Fairfield No. 09-CA-33, 2010-Ohio-1912, ¶ 82 (finding “silence on the issue of contempt
to be an implicit denial of the motion”); Bond v. Frank, 2nd Dist. Miami No. 00CA55, 2001
WL 468386 (May 4, 2001) (rejecting the argument the court erred in failing to rule on the
contempt motion and finding contempt motion was implicitly denied where the court
entered judgment without mentioning the motion). Accordingly, Appellant was provided
the right to redress his allegations and failed to show his contention had merit.
{¶61} For all of the foregoing reasons, the father’s first assignment of error is
overruled.
ASSIGNMENT OF ERROR TWO
{¶62} The father’s second assignment of error alleges:
“The trial court erred by failing to relieve me of child support obligation and not
providing adequate findings of fact and conclusions of law against the manifest weight
of the evidence.”
{¶63} As set forth in our Statement of the Case, the court issued two judgments
on September 21, 2021: (1) the findings of fact and conclusions of law to support the
July 20, 2020 denial of the father’s 2019 motion to modify parental rights; and (2) the
judgment granting of the father’s 2021 motion seeking custody of the son. In the
second judgment, the court expressed its findings and conclusions drawn from the
new evidence. The court also incorporated its findings of fact and conclusions of law
supporting the first judgment issued the same day. This assisted in reviewing the
Case No. 21 NO 0484
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history of the proceedings and the fact the situation existed prior to the most recent
occurrences.
{¶64} We note one of the judgments listed in the father’s notice of appeal was
the September 27, 2021 denial of findings of fact and conclusions of law (which he
requested as to the second September 21, 2021 judgment, the one granting his
motion). Yet, the father does not specify an argument on the September 27, 2021
decision. We simply point out further findings of fact and conclusions of law are not
required, even on a timely motion, where the judgment was not general. Civ.R. 52.
See also Saadi v. American Family Ins. Co., 7th Dist. Mahoning No. 20 MA 0083,
2021-Ohio-2360, ¶ 43 (a decision is not general merely because an appellant believes
the court missed the point of a certain argument); Shrock v. Mullet, 7th Dist. Jefferson
No. 18 JE 0018, 2019-Ohio-2707, ¶ 58 (request for findings and conclusions was moot
where judgment was not general). The father recognized this when he acknowledged
to the trial court that his request may be moot.
{¶65} Related to this assignment of error, the father contends the trial court
abused its discretion in failing to relieve him of child support in the second September
21, 2021 judgment, which granted his 2021 motion for custody of the son. (Apt.Br.
21).3 To review, the father’s August 2021 motion said the mother agreed to transfer
custody and said she would visit on Sundays. The motion was instigated by an August
19, 2021 Muskingum County juvenile court order releasing the child to the father’s
temporary custody to avoid juvenile incarceration.
{¶66} The trial court set the matter for an emergency hearing on September 1 in
a judgment specifying the child had been released to the father’s custody by a juvenile
court and the son was living in Pennsylvania with the apparent consent of the mother.
The father filed a parenting proceeding affidavit. Before the hearing, the court conducted
an in camera interview with the son.
{¶67} The court found the mother had notice of the hearing by regular mail,
certified mail, and telephone contact by a court employee (who spoke at the hearing).
3
The father also incorporates his arguments under his first assignment of error and suggests child support
would be terminated if we reversed the denial of his 2019 motion to modify parental rights. Because we
affirmed that judgment under the first assignment of error, this argument fails.
Case No. 21 NO 0484
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The court noted the emergency hearing was required to ensure the father could enroll the
child in school or therapy. The sixteen-year-old received his high school diploma and
was about to start college in Pittsburgh. The juvenile court judgment was marked as an
exhibit, and the father submitted other exhibits as well. The father testified in support of
his motion. He also noted there was no longer any issue between his wife and his son,
referring to successful therapy.
{¶68} The court cited R.C. 3109.04 as governing its custody decision and R.C.
3109.051 as governing its visitation decision. (9/1/21 Tr. 4). The court concluded there
was a change in circumstances, the child’s best interest would be served by a grant of
custody to the father, and the harm from the change was outweighed by the advantages.
(9/1/20 Tr. 19). These findings were reiterated in the September 21, 2021 judgment
designating the father as the residential parent and legal custodian under R.C.
3109.04 and providing parenting time to the mother (on Sundays) under R.C.
3109.051. The entry noted the court was treating the father’s motion as a motion to
modify parental rights and responsibilities (J.E. at 3) and to modify the designation of
residential parent and legal custodian (J.E. at 1). The mother did not appeal from this
order granting the father’s motion, but the father did.
{¶69} As the father complains, the trial court’s judgment made no mention of
child support. (Apt.Br. 19). He argues the court should have terminated the prior
order obligating him to pay child support to the mother for the son because he was
granted custody and named the residential parent. The father asks this court to modify
the trial court’s judgment by terminating his child support obligation; he is not seeking
child support from the mother. (Apt. Br. at 40). The mother did not file a brief.
{¶70} Although the father filed a motion to terminate child support when he filed
his 2019 motion to modify custody, he did not file a motion to terminate child support
when he filed his 2021 custody motion addressing the new circumstances. The
question is whether the court erred in failing to sua sponte terminate child support for
a child when the court was granting a parent’s motion to modify parental rights and
thereby designating the child support obligor as the residential parent and legal
custodian of that child.
Case No. 21 NO 0484
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{¶71} We note the father could have notified the child support enforcement
agency of the existence of a statutory reason for which the child support order should
terminate. See R.C. 3119.87 (stating a residential parent and legal custodian shall
and an obligor may notify the agency of a reason for termination). One of the statutory
“[r]easons for which a child support order should terminate through the administrative
process” is a “[c]hange of legal custody of the child.” R.C. 3119.88(A)(9).
{¶72} Although R.C. 3119.88(A) speaks of the administrative process for
termination due to a change of legal custody, division (B) then states: “A child support
order may be terminated by the court or child support enforcement agency for any
reasons listed in division (A) of this section. A court may also terminate an order for
any other appropriate reasons brought to the attention of the court, unless otherwise
prohibited by law.” R.C. 3119.88(B). Therefore, the trial court could properly
terminate the child support order while it was changing legal custody, regardless of
the lack of a specific motion or the non-utilization of the administrative process under
R.C 3119.87.
{¶73} We also point out the custody statute applied by the trial court initially
states “in any proceeding pertaining to the allocation of parental rights and
responsibilities for the care of a child” (where neither party seeks shared parenting):
the court, in a manner consistent with the best interest of the children, shall
allocate the parental rights and responsibilities for the care of the children
primarily to one of the parents, designate that parent as the residential
parent and the legal custodian of the child, and divide between the
parents the other rights and responsibilities for the care of the children,
including, but not limited to, the responsibility to provide support for the
children and the right of the parent who is not the residential parent to
have continuing contact with the children.
(Emphasis added.) R.C. 3109.04(A)(1). As set forth supra, division (E)(1) provides
the restrictions on modification of a prior allocation.
{¶74} Although, division (A) is generally viewed as applying to an initial
allocation, it would still apply to a subsequent modification order issued after the
Case No. 21 NO 0484
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dictates of the modification standard in (E)(1) are found to apply. That is, when
parental rights and responsibilities are modified and re-allocated to the other parent,
the court is to “designate that parent as the residential parent and the legal custodian
of the child” as set forth in R.C. 3109.04(A)(1). Likewise, if a new residential parent
and legal custodian is designated, the court should “divide between the parents the
other rights and responsibilities, including, but not limited to, the responsibility to
provide support for the children * * *”. See R.C. 3109.041(A)(1). The father’s motion
seeking custody invoked the court’s jurisdiction to rule on other parental
responsibilities which would necessarily be impacted by the court’s modification of the
prior custody order. See generally Civ.R. 75(J). For instance, the court addressed
parenting time and provided the mother with visitation of every Sunday.
{¶75} In any event, as set forth above, a court may terminate child support
when the legal custodian is changed to the obligor. R.C. 3119.88(B). As the trial court
granted the father’s 2021 motion and issued a decision modifying parental rights and
responsibilities and naming the father as the residential parent and legal custodian of
the son, it was unreasonable to refrain from addressing the father’s continuing
obligation to pay child support to the mother for a child for whom she was no longer
the residential parent or legal custodian.
{¶76} As such, we reverse the September 21, 2021 judgment but only to the
extent it fails to address the father’s monthly child support obligation corresponding to
the son. We must remand on this issue as it is for the trial court in the first instance
to address child support termination and related matters. See, e.g., R.C. 3119.30
(health care); R.C. 3119.82 (tax dependent).
CONCLUSION
{¶77} For the foregoing reasons, we affirm the July 21, 2020 judgment (with
September 21, 2021 findings of fact and conclusions of law) denying the father’s 2019
motion to modify parental rights. As to the separate September 21, 2021 decision
granting the father’s 2021 motion and naming him the residential parent of the parties’
son, we reverse this judgment to the extent it fails to address the father’s child support
Case No. 21 NO 0484
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obligation related to the son and remand for the trial court to address the issue of child
support termination and any related matters.
Donofrio, P J., concurs.
D’Apolito, J., concurs.
Case No. 21 NO 0484
[Cite as Dyer v. Gomez, 2022-Ohio-1127.]
For the reasons stated in the Opinion rendered herein, we affirm the July 21, 2020
judgment (with September 21, 2021 findings of fact and conclusions of law) denying the
father’s 2019 motion to modify parental rights. As to the separate September 21, 2021
decision granting the father’s 2021 motion and naming him the residential parent of the
parties’ son, we reverse this judgment to the extent it fails to address the father’s child
support obligation related to the son and remand for the trial court to address the issue of
child support termination and any related matters according to law and consistent with
this Court’s Opinion. Costs to be taxed against the Appellee.
A certified copy of this opinion and judgment entry shall constitute the mandate in
this case pursuant to Rule 27 of the Rules of Appellate Procedure. It is ordered that a
certified copy be sent by the clerk to the trial court to carry this judgment into execution.
NOTICE TO COUNSEL
This document constitutes a final judgment entry.