Emigh v. Swiger

[Cite as Emigh v. Swiger, 2016-Ohio-272.]
COURT OF APPEALS
STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT
CRISTA EMIGH, nka TABOR JUDGES:
Hon. W. Scott Gwin, P. J.
Plaintiff-Appellant Hon. William B. Hoffman, J.
Hon. John W. Wise, J.
-vs-
Case No. 2015 CA 00110
SHAUN SWIGER
Defendant-Appellee OPINION
CHARACTER OF PROCEEDING: Civil Appeal from the Court of Common
Pleas, Juvenile Division, Case No. 2007
JCV 01228
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: January 25, 2016
APPEARANCES:
For Plaintiff-Appellant For Defendant-Appellee
JOHN E. HAUPT TRACEY A. LASLO
HAUPT LAW OFFICES COURTNEY S. BALDWIN
950 South Sawburg 325 East Main Street
Alliance, Ohio 44601 Alliance, Ohio 44601
Stark County, Case No. 2015 CA 00110 2
Wise, J.
{¶1} Appellant Crista Emigh nka Tabor appeals the decision of the Stark County
Court of Common Pleas, Juvenile Division, which granted unsupervised visitation time
between her minor son and the child’s father, Appellee Shaun Swiger. The relevant facts
leading to this appeal are as follows.
{¶2} Appellant Crista and Appellee Shaun are the parents of E.S., born in 2005.
Appellant was designated the residential and custodial parent of E.S. via an order from
the Stark County Juvenile Court issued on January 16, 2009. In said order, appellee was
granted the court’s standard order of visitation.
{¶3} However, on April 22, 2010, the court issued an order suspending
appellee’s visitation with E.S.
{¶4} On May 6, 2010, the aforesaid suspension was modified via a magistrate’s
order to permit supervised visitation by appellee under the Safe Haven Program.
{¶5} On December 23, 2013, appellee-father filed a motion for the reallocation
of parental rights and responsibilities or, in the alternative, a motion for shared parenting.
{¶6} On February 11, 2014, appellant-mother filed a motion for supervised
visitation.
{¶7} On May 20, 2014, the court issued a temporary order granting appellee
weekly Sunday visits with E.S. for two to three hours in duration at Silver Park in Alliance,
Ohio. Said visits were to be supervised by appellant.
{¶8} A trial on the pending motions was held before the chief magistrate on
October 29, 2014 and January 26, 2015.
Stark County, Case No. 2015 CA 00110 3
{¶9} Following the trial, the chief magistrate issued an eleven-page decision on
March 10, 2015. His first finding of fact is as follows: “Matter proceeded to trial on several
motions. Defendant (Father) filed a Motion for Reallocation of Parental Rights and
Responsibilities on December 23, 2013. Plaintiff (Mother) filed a Motion for Supervised
Visits and Motion for Modification of Child Support on February 11, 2014. Service has
been perfected. Jurisdiction over the parties and subject matter exists with regard to the
pending motions.” Magistrate’s Decision at 1.
{¶10} The chief magistrate also found, inter alia, that the guardian ad litem had
recommended that appellee begin having unsupervised visitation “at a graduated
schedule.” Id. at 7. The chief magistrate ultimately ordered appellant to remain the
residential parent and legal custodian, and correspondingly denied appellee’s motion for
the reallocation of parental rights and responsibilities or, in the alternative, motion for
shared parenting. He further determined that it would be in the child’s best interest for the
following visitation phase-in schedule to be introduced, culminating in unsupervised
visitation by appellee:
Commencing March 21, 2015 Father to have visits with E.S. as
follows:
Beginning the first weekend, Father to visit on Saturday or Sunday
from 10:00 am until 2:00 pm every other weekend for six (6) rotations. The
first three (3) visits to be supervised by a paid visitation supervisor at
Father’s expense. The next three (3) visits to be supervised by paternal
grandmother. The next set of visits shall be unsupervised and shall occur
on Saturday or Sunday from 10:00 am to 4:00 pm every other weekend for
Stark County, Case No. 2015 CA 00110 4
six (6) rotations. Mother to transport for the preceding visits. The next visits
shall occur all day Saturday or Sunday from 10:00 am to 8:00 pm every
other weekend for three (3) rotations. The next set of visits shall occur with
Father receiving all day Saturday and all day Sunday from 10:00 am to 8:00
pm every other weekend for three (3) rotations. The visits and transitions
to the next stage shall occur on an every other weekend schedule. The
parent receiving E.S. to transport for the preceding visits. Following the
transitional visits, Father to have exhibit A with two (2) weeks in the summer
for vacation. The summer vacation time shall be taken in one (1) week
blocks with at least two (2) weeks in between the one (1) week blocks.
{¶11} Id. at 8-9.
{¶12} Additional orders, including a modification of child support, were also
recommended in the decision.
{¶13} On March 20, 2015, appellant filed objections under Civ.R. 53, including a
specific objection that despite the chief magistrate’s above ruling, appellee had not filed
any motion beyond his request for a reallocation of parental rights, or, in the alternative,
shared parenting.
{¶14} On May 7, 2015, the juvenile court isued a judgment entry approving and
adopting the chief magistrate's decision.
{¶15} On June 5, 2015, appellant filed a notice of appeal. The juvenile court
thereafter issued an order staying execution of the judgment, ordering the temporary
order to remain in effect pending the present appeal. Appellant herein raises the following
sole Assignment of Error:
Stark County, Case No. 2015 CA 00110 5
{¶16} “I. THE TRIAL COURT ERRED BY MODIFYING THE VISITATION
RIGHTS OF THE APPELLEE.”
I.
{¶17} In her sole Assignment of Error, appellant argues the trial court erred in
modifying its visitation orders regarding E.S. We disagree.
{¶18} Appellant couches her argument as a claim of a violation of due process; in
other words, while appellant had requested supervised visitation between appellee and
E.S. via her motion of February 11, 2014, she maintains that she was not provided with
actual or constructive knowledge of the potential for a phased-in order of unsupervised
visitation, as appellee had only filed for reallocation of parental rights or shared parenting
via his motion of December 23, 2013.
{¶19} We have recognized that “[a]t a minimum, due process of law requires
notice and opportunity for a hearing, that is, an opportunity to be heard.” Shell v. Shell,
5th Dist. Stark No. 2010CA00026, 2010–Ohio–5813, ¶ 24, citing Mathews v. Eldridge
(1976), 424 U.S. 319, 96 S.Ct. 893, 47 L.Ed.2d 18.
{¶20} In Ohio, “custody” and “visitation” are related but distinct legal concepts.
See, e.g., In re J.S., 11th Dist. Lake No. 2011-L-162, 2012-Ohio-4461, ¶ 28. “Custody”
resides in the party or parties who have the right to ultimate legal and physical control of
a child; “visitation” resides in a noncustodial party and encompasses that party's right to
visit the child. Id., citing Braatz v. Braatz, 85 Ohio St.3d 40, 44, 706 N.E.2d 1218 (1999).
R.C. 3109.04 addresses the allocation of parental rights and responsibilities, the General
Assembly’s preferred terminology in lieu of the term “custody.” See Litreal v. Litreal, 4th
Dist. Adams No. 93 CA 546, 1993 WL 415310, f.n. 2. See, also, Fisher v. Hasenjager,
Stark County, Case No. 2015 CA 00110 6
116 Ohio St.3d 53, 876 N.E.2d 546, 2007–Ohio–5589, ¶ 22 (noting that the General
Assembly changed the terms “custody and control” to “parental rights and responsibilities”
when it amended R.C. 3109.04 in 1991). In contrast, parental “visitation” rights and
“parenting time” rights, which are often discussed interchangeably, may be modified as
set forth in R.C. 3109.051. See In re A.J., 8th Dist. Cuyahoga No. 99881, 2013-Ohio-
5737, ¶ 10.1
{¶21} Thus, there is some initial merit in appellant’s claim that relief in the form of
unsupervised visitation was never specifically pled in either party’s motions which were
addressed in the evidentiary hearings of October 29, 2014 and January 26, 2015. Under
the Ohio Rules of Civil Procedure, cases should be decided on the issues actually litigated
at trial. See Meilen v. Meilen, 10th Dist. Franklin No. 13AP-66, 2013-Ohio-4883, ¶ 21,
citing Civ.R. 15(B). As appellant notes, while a number of the best interest factors listed
in R.C. 3109.04(F) for the reallocation of parental rights and responsibilities are the same
as or similar to the factors for visitation modification under R.C. 3109.51(D), some of them
are unique to the latter statute. Appellant urges that she was prejudiced by not being
aware that she might have to address these additional factors.
{¶22} However, we are not inclined to find reversible error under the
circumstances of the case sub judice for at least three reasons. First, we find appellant’s
own motion for supervised visitation between appellee and the child sufficiently opened
the door to a prospective general litigation of visitation issues, at least to the point that
1 The juvenile court jurisdictional statute, R.C. 2151.23(F)(1), cross-references R.C.
3109.04. Our review of the pertinent case law reveals general acceptance of R.C.
3109.051 in juvenile courts as well. See, e.g., Price v. Nixon, 2nd Dist. Clark No. 2010-
CA-058, 2011-Ohio-2430, ¶ 36. See, also, R.C. 3109.12(B).
Stark County, Case No. 2015 CA 00110 7
appellant’s due process rights were not implicated. Secondly, appellee’s motion for
reallocation included a catch-all request for “such other relief as shall be found in the best
interest of the parties[’] minor child.” Finally, appellant’s counsel’s opening trial statements
undermine appellant’s present claim that she did not implicitly consent to a general review
of visitation issues: “I think after hearing the testimony of the Guardian and my client and
another witness that we have today, we believe that the Court will find that supervised
visitation is the appropriate method of companionship for dad. Um what I have asked the
Court to do, I would ask the Court to consider uh if in fact this was a child, any child, your
child, the guardian's child, my child, anybody's child, whether or not a parent would feel
safe allowing the child to be with the father in an unsupervised visitation mode.” Tr.,
October 29, 2014, at 6 (emphasis added).
{¶23} Accordingly, we are unpersuaded that appellant’s due process rights were
violated due to a claimed lack of prior notice about the nature of the proceedings before
the chief magistrate.
{¶24} Appellant’s sole Assignment of Error is therefore overruled.
{¶25} For the reasons stated in the foregoing opinion, the judgment of the Court
of Common Pleas, Juvenile Division, Stark County, Ohio, is hereby affirmed.
By: Wise, J.
Gwin, P. J., and
Hoffman, J., concur.
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