Jagodzinski v. Abdul-Khaliq

[Cite as Jagodzinski v. Abdul-Khaliq, 2015-Ohio-5510.]
COURT OF APPEALS
LICKING COUNTY, OHIO
FIFTH APPELLATE DISTRICT
ANDREA JAGODZINSKI : JUDGES:
:
: Hon. Sheila G. Farmer, P.J.
Plaintiff-Appellee : Hon. John W. Wise, J.
: Hon. Patricia A. Delaney, J.
-vs- :
: Case No. 15-CA-31
:
OMRAN ABDUL-KHALIQ :
:
:
Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Licking County Court of
Common Pleas, Domestic Relations
Division, Case No. 11 DR 01162 RPW
JUDGMENT: AFFIRMED
DATE OF JUDGMENT ENTRY: December 30, 2015
APPEARANCES:
For Plaintiff-Appellee: For Defendant-Appellant:
PHILIP L. PROCTOR ALFRED RAY ENGLISH
P.O. Box 4803 1549 Wood Iris Way
Newark, OH 43058 Lawrenceville, GA 30045
Licking County, Case No. 15-CA-31 2
Delaney, J.
{¶1} Defendant-appellant Omran Abdul-Khaliq (“Father”) appeals from the April
24, 2015 Judgment Entry of the Licking County Court of Common Pleas, Domestic
Relations Division. Plaintiff-appellee is Andrea Jagodzinski (“Mother”).
FACTS AND PROCEDURAL HISTORY
{¶2} Mother and Father have a minor child in common, D., d.o.b. October 14,
2004. Mother and Father have never been married. The instant case has a long and
convoluted procedural history. The following includes the procedural history relevant to
the issues in this appeal. It is undisputed that both parties want custody of D. and the
parties have rarely cooperated on any shared parenting plan for any length of time.
{¶3} Mother filed a complaint to establish father-child relationship on June 6,
2006 in Franklin County. In 2008 and 2009, Father filed motions for ex parte custody.
On June 25, 2009, the parties executed a Shared Parenting Plan.
{¶4} On May 31, 2011, Mother filed a motion for emergency custody order and
a motion to reallocate parental rights and responsibilities.
{¶5} The case was transferred to the Licking County Court of Common Pleas,
Domestic Relations Division on July 13, 2011. On January 17, 2012, the parties
reached a settlement agreement which was modified by an agreed judgment entry filed
February 10, 2012. Essentially, the parties agreed to return to the terms of the 2009
shared parenting plan with some modifications.
{¶6} From June 2012 through December 2013, both parties filed numerous
contempt motions, ex parte motions for custody, and a petition for civil protection order
that was ultimately denied.
Licking County, Case No. 15-CA-31 3
{¶7} Relevant to this appeal, on November 9, 2013; January 27-28, 2014, and
February 21, 2014, a final hearing was held on the parties’ various motions for
contempt, motion to reallocate parental rights and responsibilities, and a motion for
payment of fees by the guardian ad litem.
{¶8} On April 17, 2014, Mother filed an ex parte motion for emergency custody
of the minor child premised upon Father’s indictment upon criminal charges in the
Licking County Court of Common Pleas.1
{¶9} On April 18, 2014, the trial court granted Mother’s motion, designated
Mother temporary legal custodian of the child and suspended Father’s parenting time.
{¶10} On April 21, 2014, the magistrate entered its decision upon the pending
motions heard on November 9, 2013 and January 27-28 and February 21, 2014. Father
filed objections to this decision on May 5, 2014.
{¶11} On April 25, 2014, an immediate hearing was held upon Mother’s ex parte
motion for emergency custody of the minor child.
{¶12} On May 5, 2014, the magistrate entered an order reaffirming the orders of
the ex parte hearing designating Mother as temporary legal custodian and suspending
Father’s parenting time.
{¶13} On June 18 and 19, 2014, Father filed a motion to set aside and an
amended motion to set aside.
1 On May 14, 2015, in Licking County Court of Common Pleas Case No. 2014 CR
00305, Father was convicted upon one count of intimidation pursuant to R.C. 2921.03, a
felony of the third degree; one count of trademark counterfeiting pursuant to R.C.
2913.34, a misdemeanor of the first degree; and one count of impersonating a peace
officer pursuant to R.C. 2921.51, a misdemeanor of the fourth degree.
Licking County, Case No. 15-CA-31 4
{¶14} On March 26, 2015, the trial court entered an opinion and decision
overruling Father’s objections and adopting the magistrate’s decision.
{¶15} On April 24, 2015, the trial court entered a judgment entry terminating the
Shared Parenting Plan and granting sole custody to Mother.
{¶16} On April 29, 2015, Father filed a motion for new trial which was denied by
the trial court on June 3, 2015.
{¶17} Appellant now appeals from the April 24, 2015 Judgment Entry of the
Licking County Court of Common Pleas, Domestic Relations Division.
{¶18} Father raises two assignments of error:
ASSIGNMENTS OF ERROR
{¶19} “I. THERE WAS INSUFFICIENT EVIDENCE FOR THE TRIAL COURT TO
CONCLUDE THAT THE TERMINATION OF THE SHARED PARENTING PLAN WAS
IN THE BEST INTEREST OF THE CHILD.”
{¶20} “II. THE TRIAL COURT ERRED WHEN IT DENIED THE APPELLANT’S
MOTION FOR A NEW TRIAL.”
ANALYSIS
I.
{¶21} In his first assignment of error, appellant argues the trial court erred in
terminating the shared parenting plan and granting sole custody to Mother. We
disagree.
{¶22} A trial court enjoys broad discretion in custody proceedings. Cossin v.
Holley, 5th Dist. Morrow No.2006 CA 0014, 2007–Ohio–5258, ¶ 28 citing Davis v.
Flickinger, 77 Ohio St. 3d 415, 674 N.E.2d 1159 (1997), paragraph one of the syllabus.
Licking County, Case No. 15-CA-31 5
A trial court's decision to terminate a shared parenting plan is reviewed under an abuse
of discretion standard. In re J.L.R., 4th Dist. Washington No. 08CA17, 2009–Ohio–
5812, ¶ 30. In order to find an abuse of discretion, we must determine the trial court's
decision was unreasonable, arbitrary or unconscionable and not merely an error of law
or judgment. Blakemore v. Blakemore, 5 Ohio St. 3d 217, 219, 450 N.E.2d 1140 (1983).
Furthermore, a judgment supported by some competent, credible evidence will not be
reversed by a reviewing court as against the manifest weight of the evidence. C.E.
Morris Co. v. Foley Construction Co., 54 Ohio St. 2d 279, 280-281, 376 N.E.2d 578
(1978). A reviewing court must not substitute its judgment for that of the trial court
where there exists some competent and credible evidence supporting the judgment
rendered by the trial court. Myers v. Garson, 66 Ohio St. 3d 610, 615, 1993–Ohio–9, 614
N.E.2d 742. “The reason for this standard of review is that the trial judge has the best
opportunity to view the demeanor, attitude, and credibility of each witness, something
that does not translate well on the written page.” Davis v. Flickinger, supra, 77 Ohio
St.3d at 418. “[D]eferential review in a child custody determination is especially crucial
‘where there may be much evident in the parties' demeanor and attitude that does not
translate to the record well.’ “Haines v. Haines, 5th Dist. Morrow No. 15CA0003, 2015-
Ohio-4299, ¶ 27, citing Wright v. Wright, 5th Dist. Stark No.2012CA00232, 2013–Ohio–
4138, ¶ 20.
{¶23} A trial court is required to evaluate a number of factors in modifying or
terminating a shared parenting plan. R.C. 3109.04(E)(1)(a), (E)(2)(b), (E)(2)(c), and
(E)(2)(d) state in pertinent part:
Licking County, Case No. 15-CA-31 6
(E)(1)(a) 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. In applying these standards, the court
shall retain the residential parent designated by the prior decree or
the prior shared parenting decree, unless a modification is in the
best interest of the child and one of the following applies:
(i) The residential parent agrees to a change in the residential
parent or both parents under a shared parenting decree agree to a
change in the designation of residential parent.
(ii) The child, with the consent of the residential parent or of both
parents under a shared parenting decree, has been integrated into
the family of the person seeking to become the residential parent.
(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.
* * * *.
(2) In addition to a modification authorized under division (E)(1) of
this section:
Licking County, Case No. 15-CA-31 7
* * * *.
(b) The court may modify the terms of the plan for shared parenting
approved by the court and incorporated by it into the shared
parenting decree upon its own motion at any time if the court
determines that the modifications are in the best interest of the
children or upon the request of one or both of the parents under the
decree. Modifications under this division may be made at any time.
The court shall not make any modification to the plan under this
division, unless the modification is in the best interest of the
children.
(c) The court may terminate a prior final shared parenting decree
that includes a shared parenting plan approved under division
(D)(1)(a)(i) of this section upon the request of one or both of the
parents or whenever it determines that shared parenting is not in
the best interest of the children. The court may terminate a prior
final shared parenting decree that includes a shared parenting plan
approved under division (D)(1)(a)(ii) or (iii) of this section if it
determines, upon its own motion or upon the request of one or both
parents, that shared parenting is not in the best interest of the
children. If modification of the terms of the plan for shared parenting
approved by the court and incorporated by it into the final shared
parenting decree is attempted under division (E)(2)(a) of this
section and the court rejects the modifications, it may terminate the
Licking County, Case No. 15-CA-31 8
final shared parenting decree if it determines that shared parenting
is not in the best interest of the children.
(d) Upon the termination of a prior final shared parenting decree
under division (E)(2)(c) of this section, the court shall proceed and
issue a modified decree for the allocation of parental rights and
responsibilities for the care of the children under the standards
applicable under divisions (A), (B), and (C) of this section as if no
decree for shared parenting had been granted and as if no request
for shared parenting ever had been made.
{¶24} Further, R.C. 3109.04(F) states:
(F)(1) In determining the best interest of a child pursuant to this
section, whether on an original decree allocating parental rights and
responsibilities for the care of children or a modification of a decree
allocating those rights and responsibilities, the court shall consider
all relevant factors, including, but not limited to:
(a) The wishes of the child's parents regarding the child's care;
(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;
Licking County, Case No. 15-CA-31 9
(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 rights or visitation and companionship rights;
(g) Whether either parent has failed to make all child support
payments, including all arrearages, that are required of that parent
pursuant to a child support order under which that parent is an
obligor;
(h) Whether either parent or any member of the household of either
parent previously has been convicted of or pleaded guilty to any
criminal offense involving any act that resulted in a child being an
abused child or a neglected child; whether either parent, in a case
in which a child has been adjudicated an abused child or a
neglected child, previously has been determined to be the
perpetrator of the abusive or neglectful act that is the basis of an
adjudication; whether either parent or any member of the
household of either parent previously has been convicted of or
pleaded guilty to a violation of section 2919.25 of the Revised Code
Licking County, Case No. 15-CA-31 10
or a sexually oriented offense involving a victim who at the time of
the commission of the offense was a member of the family or
household that is the subject of the current proceeding; whether
either parent or any member of the household of either parent
previously has been convicted of or pleaded guilty to any offense
involving a victim who at the time of the commission of the offense
was a member of the family or household that is the subject of the
current proceeding and caused physical harm to the victim in the
commission of the offense; and whether there is reason to believe
that either parent has acted in a manner resulting in a child being
an abused child or a neglected child;
(i) Whether the residential parent or one of the parents subject to a
shared parenting decree has continuously and willfully denied the
other parent's right to parenting time in accordance with an order of
the court;
(j) Whether either parent has established a residence, or is
planning to establish a residence, outside this state.
(2) In determining whether shared parenting is in the best interest
of the children, the court shall consider all relevant factors,
including, but not limited to, the factors enumerated in division
(F)(1) of this section, the factors enumerated in section 3119.23 of
the Revised Code, and all of the following factors:
Licking County, Case No. 15-CA-31 11
(a) The ability of the parents to cooperate and make decisions
jointly, with respect to the children;
(b) The ability of each parent to encourage the sharing of love,
affection, and contact between the child and the other parent;
(c) Any history of, or potential for, child abuse, spouse abuse, other
domestic violence, or parental kidnapping by either parent;
(d) The geographic proximity of the parents to each other, as the
proximity relates to the practical considerations of shared parenting;
(e) The recommendation of the guardian ad litem of the child, if the
child has a guardian ad litem.
(3) When allocating parental rights and responsibilities for the care
of children, the court shall not give preference to a parent because
of that parent's financial status or condition.
{¶25} The instant case involves termination of a shared parenting plan. In
Fisher v. Hasenjager, 116 Ohio St. 3d 53, 2007–Ohio–5589, syllabus, the Supreme
Court of Ohio reviewed the termination of a shared parenting plan and held: “A
modification of the designation of residential parent and legal custodian of a child
requires a determination that a ‘change in circumstances' has occurred, as well as a
finding that the modification is in the best interest of the child.” Haines v. Haines, supra,
2015-Ohio-4299 at ¶ 20.
{¶26} Termination of a shared parenting plan is thus a highly fact-driven,
subjective decision. Our standard of review is abuse of discretion and deferential to the
trial court. “Presumptions of validity and deference to a trial court as an independent
Licking County, Case No. 15-CA-31 12
fact-finder are embodied in the abuse of discretion standard.” Howard v. Wilson, 186
Ohio App. 3d 521, 2010-Ohio-1125, 928 N.E.2d 1180, ¶ 8 (2nd Dist.), citing Dayton v.
Whiting, 110 Ohio App. 3d 115, 118, 673 N.E.2d 671 (2nd Dist.1996).
{¶27} In the instant case, the trial court’s decision is premised upon the
magistrate’s decision of April 21, 2014, the amended magistrate’s decision of April 22,
2014, and the trial court’s ruling upon Father’s objections as journalized on March 26,
2015. Each of these decisions arose from the evidentiary hearings which took place on
November 9, 2012; January 27-28, 2014; and February 21, 2014. During these
hearings, both parties submitted a significant number of exhibits including at least two
reports of the guardian ad litem. Of these hearings, only the November 9, 2012 hearing
has been transcribed for our review, and that hearing pre-dates significant events in the
case history.
{¶28} It is with regret in a case such as this, with so much at stake not only for
the parties but especially for D., that we must affirm the trial court’s decision on a basis
other than upon the merits. In light of the evidence, the trial court agreed with the
magistrate that a change in circumstances has occurred with respect to D. because the
parties “are unable to communicate reasonably effectively and have become unable to
effectively make joint parenting decisions regarding D.;” further, termination of the
shared parenting plan was in D.’s best interest. Father challenges these findings but the
record on appeal is incomplete; specifically, Father has failed to include the records of
the relevant hearings (with the exception of November 9, 2012), as required by App.R.
Licking County, Case No. 15-CA-31 13
9.2 As appellant, Father bears the burden of ensuring that the record necessary to
determine the appeal is filed with the appellate court. App.R. 9(B). See State v.
Williams, 73 Ohio St. 3d 153, 160, 652 N.E.2d 721 (1995). If the record is incomplete,
the reviewing court must presume the regularity of the trial court's proceedings and
affirm its decision. Knapp v. Edwards Laboratories, 61 Ohio St. 2d 197, 199, 400 N.E.2d
384 (1980). See, also, Wozniak v. Wozniak, 90 Ohio App. 3d 400, 409, 629 N.E.2d 500
(9th Dist.1993) (declaring where portions of record are omitted, which are necessary for
effective review, the appellate court must affirm).
{¶29} The trial court explicitly based its findings, in part, on testimony and
evidence admitted at the hearings and, in the absence of the complete record, we must
presume that the evidence, combined with the record on appeal, supports the finding
that termination of the shared parenting plan is in the best interest of D. Jagusch v.
Jagusch, 9th Dist. Medina No. 02CA0036-M, 2003-Ohio-243, ¶ 35, citing Knapp, supra,
61 Ohio St.2d at 199; Wozniak, supra, 90 Ohio App.3d at 409.
{¶30} Appellant’s first assignment of error is overruled.
II.
{¶31} In his second assignment of error, Father argues the trial court should
have granted his motion for new trial. We disagree.
2 Father has been pro se throughout much of this case (although he is represented
in this appeal). We note the United States Supreme Court has recognized a
constitutional right to appointment of counsel or to a transcript at the State's expense
only in appeals from orders permanently terminating parental rights. See M.L.B. v.
S.L.J. (1996), 519 U .S. 102. Appellant appeals from an ordering modifying custody and
terminating a shared parenting plan. As this case does not concern the permanent
termination of Appellant's parental rights, he does not have a constitutional right to
transcripts at the State's expense. Murray v. Murray, 9th Dist. Lorain No. 06CA008982,
2007-Ohio-3301 at ¶ 6, citing Knapp, supra, 61 Ohio St.2d at 199.
Licking County, Case No. 15-CA-31 14
{¶32} Civ.R. 59(A)(8) permits a new trial on the ground of newly discovered
evidence where such evidence is material for the party applying, and where it could not
with reasonable diligence have been discovered and produced at trial. Id. The standard
to be applied in determining whether to grant a new trial based on newly discovered
evidence is set forth in the third paragraph of the syllabus in Sheen v. Kubiac, 131 Ohio
St. 52, 1 N.E.2d 943 (1936), which provides:
To warrant the granting of a motion for a new trial based on
the ground of newly discovered evidence, it must be shown that (1)
the new evidence must be such as will probably change the result if
a new trial is granted, (2) it must have been discovered since the
trial, (3) it must be such as could not in the exercise of due
diligence have been discovered before the trial, (4) it must be
material to the issues, (5) it must not be merely cumulative to
former evidence, and (6) it must not merely impeach or contradict
the former evidence.
{¶33} The decision whether to grant or deny a motion for new trial is committed
to the sound discretion of the trial court. State v. Matthews, 81 Ohio St. 3d 375, 378, 691
N.E.2d 1041 (1998), citing State v. Schiebel, 55 Ohio St. 3d 71, 564 N.E.2d 54 (1990),
paragraph one of the syllabus; Taylor v. Ross, 150 Ohio St. 448, 83 N.E.2d 222 (1948),
at paragraph two of the syllabus. We will not reverse a trial court's denial of a motion for
new trial absent an abuse of that discretion. Sharp v. Norfolk & W. Ry. Co, 72 Ohio
St.3d 307, 313, 649 N.E.2d 1219 (1995). An abuse of discretion implies that a court's
Licking County, Case No. 15-CA-31 15
ruling is unreasonable, arbitrary, or unconscionable; it is more than a mere error of law
or judgment. Blakemore v. Blakemore, 5 Ohio St. 3d 217, 219, 450 N.E.2d 1140 (1983).
{¶34} “In general, newly discovered evidence has been interpreted to mean
facts in existence at the time of trial of which the aggrieved party was excusably
ignorant.” In Re S.S., 9th Dist. Wayne No. 04CA0032, 2004–Ohio–5371, at ¶ 13, citing
Schwenk v. Schwenk, 2 Ohio App. 3d 250, 253, 441 N.E.2d 631 (8th Dist.1982).
{¶35} In the instant case, Father’s newly discovered evidence consists of
allegations a private investigation firm hired by Mother resulted in his criminal charges
and was hired with the “primary objective” of having Father criminally charged. Father
asserts the charges came about as a result of the private investigation rather than
through an investigation conducted by any law enforcement agency. It is not clear, and
Father does not point out, how this information changes his criminal culpability; he
remains convicted of the offenses he was charged with. Assuming arguendo the
criminal investigation was somehow instigated by Mother, Father was nevertheless
convicted and this information would not likely change the result of the custody
determination.
{¶36} Because Father’s newly discovered evidence would not have changed the
result of the custody hearing, we find that the trial court did not abuse its discretion in
denying his motion for a new trial.
{¶37} Father’s second assignment of error is overruled.
Licking County, Case No. 15-CA-31 16
CONCLUSION
{¶38} Father’s two assignments of error are overruled and the judgment of the
Licking County Court of Common Pleas, Domestic Relations Division is affirmed.
By: Delaney, J. and
Farmer, P.J.
Wise, J., concur.