O'Malley v. O'Malley , 2013 Ohio 5238 ( 2013 )

[Cite as O'Malley v. O'Malley, 2013-Ohio-5238.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 98708
VICKI M. O’MALLEY
PLAINTIFF-APPELLANT
vs.
PATRICK J. O’MALLEY
DEFENDANT-APPELLEE
JUDGMENT:
AFFIRMED
Civil Appeal from the
Cuyahoga County Court of Common Pleas
Domestic Relations Division
Case No. D-299141
BEFORE: E.T. Gallagher, J., Stewart, A.J., and Keough, J.
RELEASED AND JOURNALIZED: November 27, 2013
ATTORNEYS FOR APPELLANT
Brian S. Schick
1516 Sunview Road
Lyndhurst, Ohio 44124
Michael A. Partlow
112 South Water St., Suite C
Kent, Ohio 44240
ATTORNEYS FOR DOMESTIC VIOLENCE LEGAL EMPOWERMENT AND
APPEALS PROJECT
Christopher Marcinko
430 Fremont Road
Port Clinton, Ohio 43452
Nomi Berenson
Jessica Davis
Goodwin Procter LLP
The New York Times Bldg.
620 Eighth Avenue
New York, New York 10018
ATTORNEYS FOR APPELLEE
Margaret M. Metzinger
John R. Climaco
David M. Cuppage
Climaco, Wilcox, Peca, Tarantino & Garafoli
55 Public Square, Suite 1950
Cleveland, Ohio 44113
ATTORNEY FOR GUARDIAN AD LITEM
Adam J. Thurman
Schoonover, Rosenthal, Thurman & Daray, L.L.C.
1001 Lakeside Avenue, Suite 1720
Cleveland, Ohio 44114
EILEEN T. GALLAGHER, J.:
{¶1} Plaintiff-appellant, Vicki M. O’Malley (“Mother”) appeals the trial court’s
judgment designating Patrick J. O’Malley (“Father”) as the residential parent and legal
custodian of the parties’ minor children. We find no merit to the appeal and affirm.
{¶2} Mother and Father were married in April 2000, separated in February 2003,
and were divorced in February 2006. They had two children as issue of the marriage;
(“P.O.”) born in 2001, and (“C.O.”) born in 2002. During the divorce proceedings, the
court appointed Dr. Sandra McPherson (“Dr. McPherson”), a psychologist, as guardian ad
litem for the children. Much of the divorce litigation involved controversy over the
allocation of parental rights and responsibilities. The parties ultimately reached a
settlement agreement, and the trial court filed an agreed judgment entry of divorce
incorporating the parties’ shared parenting plan in February 2006.
{¶3} The parties initially cooperated with each other in implementing the shared
parenting plan. Father traveled with the children and they spent long periods of time in
his home. However, in 2008 the parties’ relationship deteriorated, and Father was
indicted and sentenced to federal prison for 15 months on an obscenity charge.
{¶4} Mother initiated this post-decree litigation in October 2008. She filed a
motion to modify the allocation of parental rights and responsibilities and/or to terminate
the shared parenting plan. The court appointed Mother the temporary residential parent
and legal custodian while Father was in federal prison, and Father resumed visitation after
his release.
{¶5} During the pendency of the post-decree litigation, that lasted almost four
years, the trial court reappointed Dr. McPherson as the children’s guardian ad litem.
Throughout the litigation, Mother alleged Father had physically and mentally abused the
children. Father alleged Mother had programmed the children to fear and dislike him.
Following the trial that concluded in February 2012, the court issued an interim order
dated April 12, 2012 (the “Interim Order”), in which the trial court stated that it found that
Mother “used all means available to her to intimidate and discredit [Father], and she has
interfered with his having a relationship with the children.” The court also found
Mother’s accusations that Father was abusive were not supported by the evidence and that
Mother “failed to inform or engage Father in their children’s school, physical health, or
mental health counseling, and she ha[d] taken no responsibility toward modifying their
children’s negative behavior when they were with Father.”
{¶6} With respect to Father, the court found he “spent minimal time with the
children the past two and half years.” After he completed his sentence and resumed
limited parenting time, “on two occasions he chose to stay away from his children for
extended periods of time because the children challenged his parenting skills.” Several
witnesses who testified at trial described a dramatic change in the children’s behavior after
Father began serving his sentence. Father’s sister, the children’s aunt, and Father’s oldest
son from a prior marriage, testified that at family gatherings, the children stated: “You are
not my family,” and “Mom hates you.” Father’s girlfriend testified that after 2008, the
children became “vicious and hateful.”
{¶7} The children’s behavior worsened over time. They refused to eat or talk
during visits. P.O. punched and kicked their aunt. Father’s girlfriend testified that she
observed the children trying to hit Father in the head with a boot. At a birthday party in
January 2011, P.O. told his grandmother, “I hate you, I hate all the O’Malleys.” Both the
children declared: “We are not O’Malleys.” P.O. threw oranges at Father and pulled an
aerosol can from his backpack and sprayed him. When Father moved to restrain P.O.,
C.O. jumped on his back while P.O. kicked Father. The children were screaming and
crying. According to Father’s girlfriend, the adults were “shocked” and “dumbfounded.”
The entire episode was videotaped and someone called the police, who interviewed the
children and viewed the videotape. A police officer reprimanded the children for lying
regarding the incident, told them they assaulted their father, and ordered them to
apologize.
{¶8} In the trial court’s Interim Order, the court found:
These children are “out of control” and their emotional, mental, and physical
health has been adversely affected by both parents’ unreasonable attitudes
and behavior during the present litigation. Both parents have positive
assets. Their primary liability is that they have failed to take personal
responsibility for their children’s problems. They do not communicate or
do a reality check regarding their children. This is why this court is
ordering family therapy before making major modification to the terms of
their shared parenting plan (“SPP”).
{¶9} The Interim Order required the parties: (1) work with Western Reserve
Psychological Associates to establish ground rules for their children with therapeutic
intervention for both parents and their children, (2) submit their suggestions for modifying
the shared parenting plan, and (3) submit proposals for a parent coordinator. The order
also scheduled a status conference for May 23, 2012, to review the parties’ progress
regarding reunification.
{¶10} Neither party complied with the court’s Interim Order. On May 16, 2012,
Mother filed a writ of mandamus, seeking a final judgment on her motion to terminate the
shared parenting plan, and a writ of prohibition to prohibit the judge from holding any
further hearings until the judge issued her final ruling. This court dismissed both writs.
State ex rel. O’Malley v. Nicely, 8th Dist. Cuyahoga No. 98368, 2012-Ohio-4405. On
May 23, 2012, Father filed a motion to reconsider the Interim Order.
{¶11} In its final judgment, the trial court did reconsider its Interim Order and
found “that it would be in the best interest of these children to terminate the parties’
[shared parenting plan] and reallocate the parental rights and responsibilities to Father who
will be the residential parent and legal custodian of the children.” The order further stated
that Mother’s “parenting time would not begin until the therapist has determined the
children have successfully made the transition to Father’s home.” Mother now appeals
and raises eleven assignments of error.1
Evidence Outside of Trial
Action Ohio Coalition for Battered Women, Ohio Now Education and Legal Fund, Professor
1
Mike Briger, J.D., and Domestic Violence Legal Empowerment and Appeals Project filed an Amici
Curiae brief. However, we find the Amici brief is not informative for purposes of this appeal.
{¶12} In the first assignment of error, Mother argues the trial court violated her
right to due process and committed a structural error by relying on evidence outside the
scope of the trial in rendering its final judgment. She contends the trial court originally
found that retaining the shared parenting plan, with modifications, was in the best interest
of the children in its Interim Order and improperly changed its best interest determination
in its final judgment dated July 20, 2012, without hearing any additional sworn testimony.
She also contends this change constituted plain error.
{¶13} “Structural errors” are a category of fundamental constitutional errors that
“are so intrinsically harmful as to require automatic reversal * * * without regard to their
effect on the outcome.” Neder v. United States, 527 U.S. 1, 7, 119 S.Ct. 1827, 144
L.Ed.2d 35 (1999). They are predominately applicable to the rights of a defendant in a
criminal trial. Striff v. Luke Med. Practitioners, Inc., 3d Dist. Allen No. 1-10-15,
2010-Ohio-6261, fn. 2. See, e.g., State v. Colon, 118 Ohio St.3d 26, 2008-Ohio-1624,
885 N.E.2d 917 (the omission of a mens rea allegation in the indictment was a structural
defect that rendered the conviction improper);2 Gideon v. Wainwright, 372 U.S. 335, 83
S.Ct. 792, 9 L.Ed.2d 799 (1963) (the defendant was completely denied counsel); Vasquez
v. Hillery, 474 U.S. 254, 106 S.Ct. 617, 88 L.Ed.2d 598 (1986) (racial discrimination took
place in grand jury selection); Waller v. Georgia, 467 U.S. 39, 104 S.Ct. 2210, 81 L.Ed.2d
31 (1984) (the defendant was denied a public trial).
Colon was later overruled by State v. Horner, 126 Ohio St.3d 466,
2
2010-Ohio-3830, 935 N.E.2d 26 (a defendant’s failure to make a timely objection to a
defect in an indictment constitutes waiver of all but plain error).
{¶14} Even in criminal prosecutions, where constitutional rights to life and liberty
are at stake, the United States Supreme Court has made clear that situations involving
structural error requiring automatic reversal are a “very limited class of cases.” Johnson
v. United States, 520 U.S. 461, 468, 117 S.Ct. 1544, 137 L.Ed.2d 718 (1997). Structural
errors are the “exception and not the rule,” Id., quoting Rose v. Clark, 478 U.S. 570, 578,
106 S.Ct. 3101, 92 L.Ed.2d 460 (1986), and most constitutional errors are harmless.
Arizona v. Fulminante, 499 U.S. 279, 306, 111 S.Ct. 1246, 113 L.Ed.2d 302 (1991).
{¶15} A parent’s right to the custody of her child is a fundamental liberty interest
protected by due process. Troxel v. Granville, 530 U.S. 57, 65-66, 120 S.Ct. 2054, 147
L.Ed.2d 49 (2000); In re Adoption of Walters, 112 Ohio St.3d 315, 2007-Ohio-7, 859
N.E.2d 545, ¶ 18. The Due Process Clause of the Fifth Amendment to the United States
Constitution, as applicable to the states through the Fourteenth Amendment, provides: “No
person shall * * * be deprived of life, liberty, or property, without due process of law.”
Therefore, a court may not deprive a parent of her right to custody of her child without due
process of law.
{¶16} Due process requires both notice and an opportunity to be heard. In re
Thompkins, 115 Ohio St.3d 409, 2007-Ohio-5238, 875 N.E.2d 582, ¶ 13. “An elementary
and fundamental requirement of due process in any proceeding which is to be accorded
finality is notice reasonably calculated, under all the circumstances, to apprise interested
parties of the pendency of the action and afford them an opportunity to present their
objections.” Id., quoting Mullane v. Cent. Hanover Bank & Trust Co., 339 U.S. 306, 70
S.Ct. 652, 94 L.Ed. 865 (1950).
{¶17} In its Interim Order, the trial court concluded it was in the children’s best
interest that they have a meaningful relationship with their father, and the order was
designed to implement reunification through family therapy. The court concluded
reunification therapy was necessary because from 2008, when Mother filed the motion to
modify, until the time of trial, Mother “failed to inform or engage Father in their children’s
school, physical health, or mental health counseling, and she has taken no responsibility
toward modifying their children’s negative behavior when they are with Father.” The
court also found that the children’s negative feelings and beliefs about their father were
“significantly disproportionate to” their “actual past experiences” with him and that their
misperceptions and negative beliefs hindered their ability to have a positive relationship.
{¶18} The Interim Order clearly indicates the court would hold a status conference
to assess the parties’ progress toward reunification. Further, it is undisputed that both
Mother and her counsel were present at the May 23, 2012 status conference. Therefore,
Mother had notice and an opportunity to be heard. The fact that the trial court did not hear
any sworn testimony does not diminish the impact on Mother’s already fulfilled due
process rights. In re J.M., 12th Dist. Warren No. CA2008-01-004, 2008-Ohio-6763, ¶
26.3
3
In In re J.M., the court affirmed a judgment holding a father in
contempt for failing to pay therapy fees for his children in violation of an
interim order without sworn testimony. In affirming the contempt order, the
{¶19} At the May 23, 2012 status conference, the court asked the parties, on the
record, to discuss the status of the reunification therapy. Mother admitted to the court that
she refused to participate in family therapy, claiming the therapists told her they had been
instructed to provide reports on the therapy to the court. During the discussion, the court
stated:
My Interim Order was to make the transition of these children and their
relationship with their father an easier transition; and so I felt that a therapist
was needed, was in need of purely family intervention to help the process
because father spent very little time with the children.
Mother, through counsel, would not agree to provide testimonial immunity to the
therapists, expressing her desire to reserve the right to call them as witnesses at a future
proceeding. The court concluded that without testimonial immunity, therapy would be
impossible. Thus, at the conclusion of the May 23, 2012 status conference, the court
found itself in the same position it was in at the conclusion of the trial, and it was evident
no progress would be made under the current shared parenting arrangement.
{¶20} The court’s final order was not based on Mother’s admitted failure to comply
with the Interim Order. It was based on almost four years of proceedings, including 15
days of trial, which included the testimony of 24 witnesses. Indeed, nothing had changed
between the time the trial concluded and the court’s final judgment. In its Interim Order,
appellate court found no due process violation because the father had notice
that the court scheduled the pretrial to determine whether father paid the fees
in compliance with the court’s earlier order and his counsel, who was present
at the pretrial, admitted that he had not. Id. at ¶ 23-26.
the court specifically found that a meaningful relationship with their father was in the
children’s best interests and that the current arrangement under the shared parenting plan
was hindering the necessary reunification. This determination did not change between the
Interim Order and the court’s final judgment.
{¶21} Furthermore, courts have discretion to modify interlocutory orders at any
time. Yuse v. Yuse, 8th Dist. Cuyahoga No. 89213, 2007-Ohio-6198, ¶ 15; Varney v.
Varney, 8th Dist. Cuyahoga Nos. 70709 and 70710, 1997 Ohio App. LEXIS 4705 (Oct.
23, 1997). Finality does not attach until the court renders its final judgment. Id.Therefore, the trial court acted within its discretion to reconsider its Interim Order.
Mother was not deprived of due process because she had notice of and participated in the
status conference. Therefore, no structural error occurred. Without any error, there can
be no plain error.
{¶22} The first assignment of error is overruled.
Violation of the Interim Order
{¶23} In the second assignment of error, Mother argues the trial court committed a
reversible error in finding that she violated the Interim Order. She contends the Interim
Order was voidable because the court lacked authority to order her to submit to
psychological and psychiatric examinations and counseling.
{¶24} The Ohio Supreme Court defined voidable, as opposed to void, judgments as
follows:
It is said that, although in a sense every order which lacks jurisdictional
support is erroneous, those which are erroneous for such lack of jurisdiction
are void and subject to collateral attack, whereas those which are erroneous
for other than jurisdictional reasons are merely voidable and not subject to
collateral attack.
State ex rel. Beil v. Dota, 168 Ohio St. 315, 319-320, 154 N.E.2d 634 (1958) (erroneous
exercise of judicial power where there existed subject matter and personal jurisdiction is
not void). Thus, a voidable order is one issued by a court possessing subject matter
jurisdiction, but lacking authority to issue the order in question. State ex rel. Gains v. Go
Go Girls Cabaret, Inc., 187 Ohio App.3d 356, 2010-Ohio-870, 932 N.E.2d 353, ¶ 26-29
(7th Dist.).
{¶25} R.C. 3109.04(C) provides, in pertinent part: “Prior to trial, the court * * *
may order the parents and their minor children to submit to medical, psychological, and
psychiatric examinations.” (Emphasis added.) The statute does not authorize the court to
order the parents and their minor children to submit to psychological or psychiatric
examinations after trial. However, R.C. 3109.04(B) states that when determining the
allocation of the parental rights and responsibilities for the care of the children, “the court
shall take into account that which would be in the best interest of the children.” Thus,
R.C. 3109.04(B) gives the trial court broad discretion when allocating parental rights and
responsibilities.
{¶26} The court’s Interim Order does not require the parties to submit to
psychological or psychiatric examinations pursuant to R.C. 3109.04(C). To the contrary,
the court ordered counseling to help the children re-establish a meaningful relationship
with their father. Pursuant to R.C. 3109.04(B), the court determined that it was in the
children’s best interest to maintain a meaningful relationship with their father and that
counseling was necessary for that relationship to develop. Throughout the proceedings,
the court had ordered consultations with therapists to assist with shared parenting, and all
attempts at therapy failed. Dr. Lisa Green, who the court had appointed in the fall of
2010, ended the counseling relationship because Mother failed to cooperate and the
children were disrespectful. Therefore, because the court was authorized to order the
parents and children to participate in family therapy for the purposes of allocating parental
rights and responsibilities, its Interim Order is a valid enforceable court order.
{¶27} The second assignment of error is overruled.
Right to Privacy
{¶28} In the third assignment of error, Mother argues the court’s final judgment of
July 20, 2012, instructing Father to use video security cameras in his home, violates the
children’s constitutional right to privacy.
{¶29} The trial court’s final judgment orders, in pertinent part:
6. For the purpose of assisting the children in making the transition to
Father’s home, Father shall do the following:
a. He shall provide security cameras in his home for the purpose of
securing the safety of the children and others in the home and providing a
record of the children’s interaction with him and others.
{¶30} Mother cites State ex rel. McCleary v. Roberts, 88 Ohio St.3d 365,
2000-Ohio-345, 725 N.E.2d 1144, for the proposition that the children’s right to privacy
precluded the court from ordering the use of surveillance cameras in Father’s home. In
McCleary, a private citizen sought a writ of mandamus to compel the city of Columbus to
provide a copy of a photo identification database that contained identifying information of
children, including children’s names, home addresses, names of parents or guardians, and
medical information. Id. at 368. The city’s recreation department compiled the personal
information of children who used recreational facilities as a safety measure. The Ohio
Supreme Court held that the personal information contained in the city’s database was not
subject to disclosure under Ohio’s Public Records Law. Id. at syllabus. The court
reasoned that because a third party’s request for information about a private citizen can
reasonably be expected to invade that citizen’s privacy, government records are not subject
to disclosure if they provide little or no insight into the government’s operations but
contain personal information about private citizens. Id. at 369. The court further
explained that disclosure of the children’s identifying information would place the children
at risk of irreparable harm. Id. at 371.
{¶31} Mother contends the court’s final order requiring Father to use surveillance
cameras to record the children at his house creates the same danger to the children that the
court aimed to prevent in McCleary. She further asserts: “[T]here is nothing to prohibit
Mr. O’Malley, who was known to possess child pornography, from disseminating naked
pictures of the children.” We disagree.
{¶32} The court’s final order in this case does not violate the children’s privacy
rights and is consistent with the McCleary court’s concern for children’s safety. The use
of security cameras to record the children in their Father’s home is similar to the
previously ordered videotaping of Father’s visits under the shared parenting plan with the
children. Indeed, the court stated that the purpose of the cameras was to secure “the
safety of the children and others in the home and providing a record of the children’s
interaction with him and others.” Furthermore, Dr. McPherson, the children’s guardian
ad litem, suggested recording the visits as a result of the children’s past behavior, which
had been both violent and dishonest. Dr. McPherson stated:
There were allegations of Mr. O’Malley being aggressive towards the
children and there were allegations that the children were — children’s
behavior had been seriously aggressive towards adults and the environment *
* * Given that both the children and the father, therefore, are extremely
vulnerable in the situation, it was my recommendation that there be
videotaping when the court made the decision to go forward with
unsupervised visits.
{¶33} It is clear the security cameras were not intended to violate the children’s
right to privacy in any way. The court’s order does not require Father to publish the
videotapes to anyone. Father could decide to install security cameras in his home for his
own protection if he so desired without a court order. Although the court’s final order
does not expressly prohibit Father from disseminating naked pictures of children, both
Ohio and federal laws proscribe such conduct and impose strict penalties to prevent such
actions.
{¶34} Therefore, the third assignment of error is overruled.
Mother’s Right to Visitation
{¶35} In the fourth assignment of error, Mother argues the court’s final judgment
violates her constitutional right to visit her children.
{¶36} With respect to Mother’s right of visitation, the court’s final judgment states:
Mother, the non-residential parent, shall have parenting time with the
children pursuant to the Cuyahoga County Domestic Relations Court
Standard Parenting Time Order; with the exception that her parenting time
will not begin until the therapist has determined that the children have
successfully made the transition to Father’s home. The children’s
appropriate behavior will determine when Mother’s parenting time shall
begin.
{¶37} Parents have a constitutionally protected interest in the care, custody, and
management of their children. Troxel v. Granville, 530 U.S. 57, 66, 120 S.Ct. 2054, 147
L.Ed.2d 49 (2000); In re Murray, 53 Ohio St.3d 155, 157, 556 N.E.2d 1169 (2000). For
this reason, a parent’s right of visitation with her children should only be denied under
extraordinary circumstances. Pettry v. Pettry, 20 Ohio App.3d 350, 486 N.E.2d 213 (8th
Dist.1984). Suspension of visitation is only appropriate where it can be demonstrated that
particularly egregious conduct by the noncustodial parent would result in harm to the
children. Leasure v. Leasure, 8th Dist. Cuyahoga No. 72415, 1998 Ohio App. LEXIS 987(Mar. 12, 1998), citing Conkel v. Conkel, 31 Ohio App.3d 169, 509 N.E.2d 983 (4th
Dist.1987).
{¶38} The trial court found evidence that continued visitation with Mother while
the children were re-establishing their relationship with Father would harm the children.
Dr. Timothy Kohl, who performed a psychological custody evaluation for the court, found
that Mother willfully prevented the children from having a meaningful relationship with
their father. During an interview with Dr. Kohl, Mother admitted she wanted Father to
have no involvement in the children’s lives.
{¶39} When Dr. Kohl asked the children in another interview what kind of
relationship they would like to have with their father, P.O. stated: “I don’t want to have
any relationship with him. We don’t love our father.” P.O. also accused Father of failing
to pay child support.4 C.O., who was seven-years-old, stated in a sing-song manner, that
she and her brother will celebrate when their father dies.
{¶40} P.O. also told Dr. Kohl that he had seen his father hit his mother and that he
“got arrested for it!” When Dr. Kohl asked P.O. what he did when he saw his father hit is
mother, he stated: “How could I remember what I did; I was only three!” And C.O.
added: “Yeah, me too! I was only two!” When Dr. Kohl asked Mother in the children’s
presence whether she agreed that it was important for the children to have a relationship
with their father, Mother replied:
They should have a relationship with a father that makes them feel safe and
important. * * * In the past, when they were with their father they have been
hurt, and doctors told them they don’t have to be with someone who hurts
them. “Don’t you agree with that?”
Dr. Kohl told Mother that he expected the children to be polite and courteous to their
father during their interview together the following week and asked whether she shared
those same expectations for the children. Mother ambiguously replied, “Kids, we can
always go that far.”
{¶41} The following week when the children returned for a visit with Father, P.O.
addressed his father by declaring: “I don’t love you!” C.O. added, “I hate him!” When
Mother testified at trial that she received regular child support payments from Father.
4
Dr. Kohl reminded the children that their mother had agreed they were to be polite to their
father, the children explained: “No. Mom changed her mind afterward, when we were in
the car.” According to Dr. Kohl, Father remained calm and asked them to recall
memories of their good times together. He attempted to remind P.O. of their last night
together before he was incarcerated, when P.O. allegedly told him, “You’re the best dad in
the world.” P.O., who was close to tears, stated: “That never happened.”
{¶42} When Dr. Kohl asked Father what he would like to say and have the children
remember about this meeting together, he stated: “I love them, and I know they love me.”
P.O. remained close to tears while C.O. crossed her arms and, according to Dr. Kohl,
“alternately glared with exaggerated disapproval at Father and grinningly looked away.”
{¶43} Dr. Kohl concluded that Mother intended to alienate the children from their
father and that Mother intentionally tried to sabotage Father’s meeting with the children as
part of the evaluation. He also concluded:
Rather than learning their oppositional, fearful attitudes solely from personal
experience, it is this examiner’s opinion that these children’s attitudes and
beliefs toward father have, in large part, been internalized based on their
mother’s experience, perception, and influence. These children have begun
to adopt a maladaptive attitude of “mother against the world.” These
children have adopted the belief that only mother has their interest at heart,
that they must “watch their backs,” and that they need to be vigilant toward
others, who lie, deceive, and “trick” them. This is increasingly likely to
instill in the children bitter, aggrieved, and victim attitudes.
Based on these conclusions, Dr. Kohl ultimately determined that it is not
possible for the O’Malley children to have a meaningful relationship with
their father while they are in their mother’s care, given mother’s continuing
open mentality of exaggerated fear, avoidance, and hatred of father. Mother
is currently incapable of fostering common courtesy in the children toward
their father, much less fostering respect, affection, and love for him.
{¶44} As previously stated, other witnesses corroborated Dr. Kohl’s observations of
the children’s behavior and attitudes. The children’s aunt testified that after Father went
to prison, and when the children were in Mother’s sole custody, they became “destructive,
hateful and demonic.” Father’s girlfriend testified that they became increasingly “vicious
and hateful.” Referring to the children’s statement, the guardian ad litem stated:
The reality base for the statements which have been made, starting with
assertions that go back to the time[s] when the mother picked up the children
in the middle of the night at the Patrick O’Malley home, and proceeding up
to the present time, all suggest an ongoing program of disinformation and
discouragement, if not outright negative programming of these youngsters
with respect to their father.5
The record is replete with evidence showing that Mother has caused serious damage to the
children’s attitudes and relationship with their father that justified a temporary suspension
of Mother’s visitation until the children have successfully made the transition to Father’s
home.
{¶45} Moreover, R.C. 3109.04(B) gives the court discretion to “take into account
that which would be in the best interest of the children.” The court found that it would be
in the children’s best interest to have a meaningful relationship with their father. Under
the circumstances of this case, including recommendations from two psychologists, the
court reasonably found that a temporary suspension of Mother’s visitation with the
children was necessary in order for the children to re-establish a healthy relationship with
Mother picked the children up from Father’s home in the middle of the
5
night without Father’s knowledge. He woke in the morning to find they were gone.
their father. Therefore, the trial court acted within its discretion and did not violate
Mother’s constitutional rights when it temporarily suspended her right of visitation.
{¶46} Mother also asserts that Dr. Kohl diagnosed the children with “parental
alienation syndrome,” but that he was not competent to render such an opinion because he
was not licensed to practice child psychology in Ohio. However, Dr. Kohl never made
this diagnosis. He merely described his observations of the children and concluded that
they were alienated from their father as a result of their mother’s behavior.
{¶47} Furthermore, Dr. Kohl’s competency to render expert opinion regarding the
children was established on the record. Dr. Kohl admitted on cross-examination that
when he submitted his licensing registration, he did not mark the box indicating he was
competent to provide service to children. However, he later explained that he did not feel
it was necessary to check the box regarding children’s services because he indicated on the
registration form that he conducted “psychological evaluations and civil forensic services,”
which would include evaluations of children for custody purposes. The registration form
thus indicates that he may not be competent to provide counseling to children but he is
competent to perform evaluations. There was no evidence to suggest Dr. Kohl was not
competent to make evaluations for custody proceedings. Therefore, Dr. Kohl’s
competency to render expert opinions regarding the children was established.
{¶48} The fourth assignment of error is overruled.
Separate Counsel for the Children
{¶49} In the fifth assignment of error, Mother argues the trial court abused its
discretion by failing to appoint separate counsel for the minor children. She contends the
trial court should have appointed counsel for the children because the guardian ad litem’s
opinions differed from those expressed by the children.
{¶50} Mother cites Civ.R. 75(B)(2) in support of her argument. Trial court
decisions on whether to appoint counsel for children are reviewed for an abuse of
discretion. In re J.L.R. & M.M.R., 4th Dist. Washington No. 08CA17, 2009-Ohio-5812, ¶
37. Civ.R. 75(B)(2) states: “When it is essential to protect the interests of a child, the
court may join the child of the parties as a party defendant and appoint a guardian ad litem
and legal counsel, if necessary, for the child and tax the costs.” (Emphasis added.)
{¶51} Civ.R. 75(B)(2) does not require the court to appoint counsel for the children
in every case where there is conflict between the children’s wishes and the guardian ad
litem’s assessment of their best interest. Here, the court determined the children’s
interests were sufficiently protected by the guardian ad litem and there was no need to
appoint counsel. The guardian ad litem was a well-qualified psychologist with
considerable experience in court proceedings. Further, appointed counsel would have
unnecessarily added to the expense of this litigation. Under these circumstances, we find
no abuse of discretion in the court’s decision not to appoint counsel for the children.
{¶52} Mother also relies on Sup.R. 48(D)(8), which states: “When a guardian ad
litem determines that a conflict exists between the child’s best interest and the child’s
wishes, the guardian ad litem shall, at the earliest practical time, request in writing that the
court promptly resolve the conflict by entering appropriate orders.” This rule does not
stand for the proposition that the court must appoint counsel for the children. Moreover,
Sup.R. 48 is a general guideline that does not have the force of statutory law. In re
D.C.J., 8th Dist Cuyahoga Nos. 97681 and 97776, 2012-Ohio-4154, ¶ 48. Therefore, the
trial court was not obligated to appoint counsel pursuant to Sup.R. 48(D)(8).
{¶53} The fifth assignment of error is overruled.
Guardian Ad Litem Testimony
{¶54} In the sixth assignment of error, Mother argues the trial court abused its
discretion by relying on the guardian ad litem’s report and testimony. She contends Dr.
McPherson, the guardian ad litem, violated Sup.R. 48(D)(8) and Sup.R. 48(D)(13)(g), and
that her testimony should have been stricken.
{¶55} Sup.R. 48(D)(8) requires the guardian ad litem to seek court orders to resolve
a conflict that exists between the guardian’s best interest determination and the child’s
wishes. Sup.R. 48(D)(13)(g) requires the guardian ad litem to interview the children’s
medical providers as part of her investigation.
{¶56} Again, the rules of superintendence are guidelines and do not have the force
of statutory law. In re D.C.J., 2012-Ohio-4154, at ¶ 48. And in any case, we have
already determined that the court did not abuse its discretion when it decided not to
appoint counsel for the children.
{¶57} Mother nevertheless contends that McPherson’s testimony should be stricken
because she disregarded the opinions of several treating health professionals in violation
of Sup.R. 48(D)(13)(g). She cites Nolan v. Nolan, 4th Dist. Scioto No. 11CA3444,
2012-Ohio-3736, in which the court struck the guardian ad litem’s testimony. However,
the Nolan court did not hold that the superintendence rules are the equivalent to statutory
laws. It merely used Sup.R. 48 as a guideline and ultimately determined, based on the
facts of that case, that the guardian ad litem failed to adequately investigate the case.
{¶58} The record indicates Dr. McPherson thoroughly investigated this case. She
interviewed the parties, numerous therapists, other family members, and school personnel.
She also reviewed the evaluations from two other psychologists. Over the course of the
proceedings, Dr. McPherson continued to have contact with the parties and the children to
determine if any progress had been achieved in the reunification of the children with their
father.
{¶59} Moreover, Dr. McPherson’s report does not disregard the evidence provided
by the children’s therapists and physicians. Rather, she found the “testimony and records
of a variety of treating personnel were patently reflective of mother’s perspectives and
information.” She explained:
To the extent that these sources included reports of the children’s input, the
content mirrored the mother’s views when it came to the family situation.
Also presented were reports and testimony of professionals who had not had
the advantage of having evaluated both of the parties. In both cases, the
difficulties of the mother in supporting a relationship with father were noted.
{¶60} Therefore, because the rules of superintendence are not binding on the trial
court and because the record reflects that Dr. McPherson completed a thorough
investigation, we find no abuse of discretion in the court’s reliance on her findings and
recommendations.
{¶61} The sixth assignment of error is overruled.
Mandatory Guidelines for Trial and Disposition
{¶62} In the seventh assignment of error, Mother argues the trial court failed to
reach a final disposition within the time frame set forth in Sup.R. 40(A)(3), which imposes
a 120-day limit for trial courts to rule on motions. She asserts that because she filed her
motion to terminate the parties’ shared parenting plan in October 2008, and the court did
not render a final judgment until July 2012, the trial court violated her right to due process.
{¶63} Mother filed two affidavits of disqualification with the Ohio Supreme Court
to disqualify the trial judge in this case. In the second affidavit filed in October 2012,
Mother argued the trial judge’s delay in rendering its final judgment unfairly prejudiced
her. In denying her request for disqualification, the Ohio Supreme Court stated:
The trial court’s final order sets forth several reasons for the prolonged
nature of the case, including Father O’Malley’s incarceration, the fact that
Mother O’Malley has had multiple attorneys, the judge’s guardian ad litem’s
“busy schedules,” and the previous affidavit of disqualification filed in 2011.
***
The trial court’s delay in deciding the parents’ motion to modify parental
rights — and the prolonged period of the trial — is concerning. But
similar to the other allegations in this proceeding, affiants have failed to
demonstrate the court’s delay is the product of bias or prejudice against
Mother O’Malley.
{¶64} Furthermore, Mother was responsible for much of the delay. As the
Supreme Court noted, Mother had five different attorneys during the course of this
litigation and filed a multitude of motions. She filed the first affidavit of disqualification
days before trial was scheduled to begin. She also filed at least five motions to continue
the proceedings, which resulted in further delays.
{¶65} We find no due process violation. The trial court considered all the
evidence, which was substantial, and authored an 83-page opinion. It is clear the trial
court tried to do what was in the best interest of the children under the troublesome
circumstances presented in this case.
{¶66} Therefore, the seventh assignment of error is overruled.
Best Interest of the Children
{¶67} In the eighth assignment of error, Mother argues the trial court abused its
discretion in determining the best interest of the children by failing to consider certain
factors set forth in R.C. 3109.04(F)(1).
{¶68} R.C. 3109.04(F)(1) lists the relevant factors the court should consider in
determining the best interest of the child. The relevant factors include:
(b) If the court has interviewed the child in chambers pursuant to division
(B) of this section regarding the child’s wishes and concerns as to the
allocation of parental rights and responsibilities concerning the child, the
wishes and concerns of the child, as expressed to the court;
(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;
(d) The child’s adjustment to the child’s home, school, and community;
(e) The mental and physical health of all persons involved in the situation;
(f) The parent more likely to honor and facilitate court-approved parenting
time or visitation and companionship rights;
Although a trial court must follow the dictates of R.C. 3109.04 in making child custody
decisions, it enjoys broad discretion when determining the appropriate allocation of
parental rights and responsibilities. As the Ohio Supreme Court in Miller v. Miller, 37
Ohio St.3d 71, 74, 523 N.E.2d 846 (1988), held:
The discretion which a trial court enjoys in custody matters should be
accorded the utmost respect, given the nature of the proceeding and the
impact the court’s determination will have on the lives of the parties
concerned. The knowledge a trial court gains through observing the
witnesses and the parties in a custody proceeding cannot be conveyed to a
reviewing court by a printed record. (Citations omitted.)
{¶69} Mother argues the trial court abused its discretion because it failed to
consider the children’s desire to live solely with their mother as required by R.C.
3109.04(F)(1)(b). However, the court conducted two in camera interviews of the children
and heard their wishes. The court found, based on the evidence including the in camera
interviews, that “Mother does not see that bending the children’s will to conform to her
own attitudes, feelings, and beliefs and agenda is causing the children to be unruly,
distrustful, untruthful, anxious, confused, aggressive, and sad.” As previously discussed,
this finding is well supported by both expert and lay witness testimony. Thus, despite
Mother’s argument otherwise, the trial court considered the children’s wishes and found
that their wishes would not be in their best interest.
{¶70} Mother also argues the trial court failed to consider the children’s
interactions with their father as required by R.C. 3109.04(F)(1)(c). Yet the trial court
described their interactions with their father in detail throughout its 83-page opinion. The
children were hostile, aggressive, and hateful but the court found that they behaved this
way as a result of their mother’s attitudes and influence. The court determined that
granting custody to the father would allow their relationships to heal and improve.
{¶71} Mother argues the trial court failed to consider the children’s adjustment to
school, home, and the community. This assertion is also not supported by the record.
Based on the evidence adduced at trial, the court found that while the children were in
Mother’s custody, P.O. was late for school on 33 separate days during the 2010-2011
school year. C.O. was late on 38 days that year. The school administrator spoke to
Mother about his concerns regarding the children’s sporadic attendance. Mother took the
children to the doctor 23 times in 2009, and 33 times in 2010. She also took them to
Urgent Care facilities on numerous occasions.
{¶72} The guardian ad litem opined that the children should be removed from their
current school and enrolled in the school district where Father intended to live, in part
because of the negative views the Chagrin Falls teachers and administrators had of Father.
The court noted that Father met with the North Royalton school superintendent to devise
a plan to efficiently transition the children into the new school. 6 Thus, the court
considered the children’s adjustment to school, home, and community and determined that
a fresh start in Father’s community would be in the children’s best interest.
Father has since established a residence in Independence, Ohio where the children are
6
currently enrolled in school.
{¶73} Mother contends the court failed to consider the mental health of all persons
involved with the children as required by R.C. 3109.04(F)(1)(e). The parties’ physical
health was not an issue. Mother contends the court failed to consider evidence of Father’s
mental health condition when it refused to allow an FBI agent, who participated in the
investigation of obscenity allegations against Father, to testify at trial. The FBI agent
proffered testimony that Father’s home computer contained child pornography, bestiality,
and stories about the rape of children. However, the FBI agent was not a psychologist
and was not competent to render expert opinions of Father’s mental condition. The court
also noted that Mother gave the computer to the FBI during the original divorce
proceedings, suggesting perhaps that the evidence was not a reliable reflection of Father’s
mental state.
{¶74} Mother voiced concerns about Father’s mental health in light of the fact that
he pleaded guilty to a federal charge of transportation and importation of obscene
materials. The court relied on Dr. Steven Levine, who conducted a sexual risk assessment
of the parties and concluded that Father posed no sexual threat to the children. The court
also found:
There was no indication at [the time of the divorce] or any of these
proceedings that the children had ever seen [the obscene] materials. There
are no reports from any counselors, therapists, doctors, or police departments
that indicate any sexual abuse of these children.
{¶75} The court also considered the state of Mother’s mental health and determined
that her attitudes and behavior were “causing the children to be unruly, distrustful,
untruthful, anxious, confused, aggressive, sad.”
{¶76} Finally, the court considered the mental health of the children. In this
regard, the court found: “The children’s unreasonable negative feelings and beliefs such as
anger, hatred, rejection, disrespect, avoidance, and fear toward Father are significantly
disproportionate to the children’s actual past experiences.” The court recognized that the
“children ha[d] been adversely affected by Mother’s and Father’s continuing conflicts and
their inability to communicate with one another about their children.” Finally, the court
concluded:
Mother has had numerous counselors for these children and the Court has
observed that such counseling was not helpful because of the one-sided
approach of the counselors and Mother’s unwarranted conviction of Father’s
domestic violence toward the children.
***
[P.O.] is the most sensitive and troubled child. He appears to be more
adversely affected by these litigious proceedings showing more anxiety,
depression, and psychosomatic symptoms than his sister, [C.O.]
Clearly the court complied with its duty to consider all the factors set forth in R.C.
3109.04(F)(1) when it made its best interest determination. The evidence
overwhelmingly supports the trial court’s conclusions. Therefore, we find no abuse of
discretion.
{¶77} The eighth assignment of error is overruled.
Visitation
{¶78} In the ninth assignment of error, Mother argues the trial court abused its
discretion by failing to consider R.C. 3109.051 when establishing Mother’s right of
visitation. She contends the trial court improperly required approval from the children’s
therapist after it had been determined that the children were successfully transitioned to
Father’s home and their behavior improved.
{¶79} R.C. 3109.051(A) provides that when deciding a parent’s right of visitation,
the trial 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 law.
{¶80} R.C. 3109.051(C) further provides that when determining whether to grant
parenting time rights to a parent, “the court shall consider all other relevant factors,
including but not limited to, all of the factors listed in division (D) of this section.” The
factors listed in R.C. 3109.051(D) are the same factors found in R.C. 3109.04.
{¶81} As previously stated, the court found Mother purposefully programmed the
children to fear and hate their father. The court also found that their unruly and
disrespectful behavior was caused by “Mother’s campaign of deception and distortion.”
Based on these findings, the trial court reasonably concluded that it would not be in the
best interest of the children to permit Mother to have parenting time until after the children
had an opportunity to heal their relationship with Father.
{¶82} The ninth assignment of error is overruled.
Child Support Worksheet
{¶83} In the tenth assignment of error, Mother argues the trial court abused its
discretion by failing to complete and attach a child support computation worksheet to its
final judgment. She contends the trial court erred in requiring her to pay half the guardian
ad litem fees, and the guardian ad litem’s attorney fees, and expert fees as child support.
{¶84} In its final judgment, the trial court modified child support by cancelling its
order designating Father the obligor, and ordering the parties to pay in equal shares the
expert fees, guardian ad litem fees, and the guardian ad litem’s attorney fees. Paragraph
18(b) of the court’s final judgment states, in relevant part:
[E]ach party shall pay a minimum of $300 each month to the GAL who will
reimburse Attorney Thurman with one-half of said payment until all fees are
paid in full. The GAL fees are awarded in the nature of child support.
Paragraphs 19 and 20 of the final judgment also ordered Mother to pay in full the expert
fees for Dr. Levine and Dr. Kohl “in the nature of child support.”
{¶85} Although the court ordered Mother to pay half the guardian ad litem fees and
the expert fees as child support, it did not attach a child-support worksheet or make that
worksheet part of the record as required by R.C. 3113.215. A trial court’s failure to
complete a child-support worksheet and make it part of the record as required by R.C.
3113.215 is error as a matter of law. Marker v. Grimm, 65 Ohio St.3d 139, 601 N.E.2d 496(1992), paragraphs one and two of the syllabus. Nevertheless, reversal and remand are
not always dictated when a court does not comply with R.C. 3113.215. See, e.g., McCoy
v. McCoy, 105 Ohio App.3d 651, 655-656, 664 N.E.2d 1012 (4th Dist.1995). Civ.R. 61
states that
no error or defect in any ruling or order * * * is ground for * * * vacating,
modifying or otherwise disturbing a judgment or order, unless refusal to take
such action appears to the court inconsistent with substantial justice. The
court at every stage of the proceeding must disregard any error or defect in
the proceeding which does not affect the substantial rights of the parties.
See also R.C. 2309.59. Therefore, we will not reverse the order including the expert fees
and guardian ad litem fees as a child support obligation unless the failure to complete and
journalize a child support worksheet affected a substantial right.
{¶86} In this case, the court did not create a new child support worksheet but made
reference to its previous child support worksheet in the final judgment. Although the
court modified child support, the failure to file a new child support worksheet did not
prejudice either of the parties. The court determined that Mother had no income other
than the money she received from her family, and that this fact had not changed
throughout the post-decree litigation. Father’s only source of income from his Ohio
Public Employees Retirement System account had also not changed. Yet, Father received
full custody of the children. Therefore, equity requires Father be relieved of the
previously ordered child support to Mother.
{¶87} The trial court also found that neither party had paid the guardian ad litem,
her court appointed attorney, or the expert fees despite prior court orders to do so. At the
time of the court’s final judgment, the parties owed the guardian ad litem and her attorney
over $42,000. Dr. Levine had an outstanding bill of $2,375, and Dr. Kohl had an
outstanding bill for $1,575. Pursuant to R.C. 3105.73, a domestic relations court may
award all or part of the litigation expenses to either party if the court finds the award
equitable. Guardian ad litem fees, expert fees, and attorney fees are “litigation expenses”
under R.C. 3105.73. In re S.B., 11th Dist. Ashtabula No. 2010-A-0019, 2011-Ohio-1162,
¶ 119 (guardian ad litem fees are litigation expenses); Brooks v. Brooks, 6th Dist. Fulton
No. F-11-020, 2013-Ohio-405, ¶ 24 (expert fees are litigation expenses).
{¶88} In determining whether an award of litigation expenses is equitable, the court
may consider the parties’ marital assets and income, any award of temporary spousal
support, the conduct of the parties, and any other relevant factors the court deems
appropriate. R.C. 3105.73(A). We review the trial court’s assessment of litigation
expenses for an abuse of discretion. Carmen v. Carmen, 8th Dist. Cuyahoga Nos. 97539
and 97542, 2012-Ohio-325, ¶ 41.
{¶89} Here, the court considered the fact that Mother has little income.
Nevertheless, it found that Mother made the proceedings much longer and more complex
than necessary. The guardian ad litem fees and expert fees increased substantially as a
result of Mother’s conduct, and the record clearly supports this conclusion. Under these
circumstances, we find no abuse of discretion in the trial court’s order requiring Mother to
pay half the guardian ad litem fees and all of the expert fees.
{¶90} The trial court required the fees to be paid “in the nature of child support” to
prevent the parties from discharging these obligations in bankruptcy. If fees were awarded
as “costs,” they could be discharged through bankruptcy proceedings. Sutherland v.
Sutherland, 61 Ohio App.3d 154, 572 N.E.2d 215 (10th Dist.1989). However, pursuant to
11 U.S.C. 523(a)(5), bankruptcy “does not discharge an individual debtor from any debt *
* * for a domestic support obligation.” Jackson v. Herron, 11th Dist. Lake No.
2004-L-045, 2005-Ohio-4039 (“the United States Bankruptcy Court for the Northern
District of Ohio * * * held that the nature and duties performed by guardian ad litem ‘is
clearly within the nature of support to meet the needs of the minor child.’ As such,
guardian ad litem fees, like a child support obligation, is a nondischargeable
debt.”)(quoting In re Lever, 174 B.R. 936, 942 (Bankr.N.D.Ohio 1991). See also Raleigh
v. Hardy, 5th Dist. Licking No. 08 CA 0140, 2009-Ohio-4829, ¶ 38; In re Thomas, 8th
Dist. Cuyahoga Nos. 86375 and 86939, 2006-Ohio-3324, ¶ 7-8.
{¶91} Under the circumstances presented in this case, we find no abuse of
discretion in the trial court’s judgment ordering Mother to pay half the guardian ad litem
fees, half the guardian ad litem’s attorney fees, and all of the expert fees “in the nature of
child support,” even though the court did not make a modified child support worksheet
part of the record.
{¶92} The tenth assignment of error is overruled.
Cumulative Error
{¶93} In the eleventh assignment of error, Mother asserts that the trial court
committed multiple errors that denied Mother her right to a fair trial.
{¶94} Pursuant to the cumulative error doctrine, which is usually presented in
criminal cases, a conviction will be reversed where the cumulative effect of errors in a trial
deprives the defendant of the constitutional right to a fair trial even though each individual
error by itself does not constitute cause for reversal. State v. Garner, 74 Ohio St.3d 49,
656 N.E.2d 623 (1995).
{¶95} We have found “the extension of the cumulative error doctrine to civil cases
is warranted where the court is confronted with several errors, which either are harmless
individually or have marginally prejudicial effects, but combine to require a new trial.”
Edge v. Fairview Hosp., 8th Dist. Cuyahoga No. 95215, 2011-Ohio-2148, ¶ 46.
However, we do not find the doctrine applicable here where there have not been multiple
errors.
{¶96} Therefore, the eleventh assignment of error is overruled.
{¶97} Judgment affirmed.
It is ordered that appellee recover from appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate be sent to the domestic relations division to
carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the
Rules of Appellate Procedure.
EILEEN T. GALLAGHER, JUDGE
MELODY J. STEWART, A.J., and
KATHLEEN ANN KEOUGH, J., CONCUR