In re B.M.

[Cite as In re B.M., 2017-Ohio-7878.]
IN THE COURT OF APPEALS OF OHIO
FOURTH APPELLATE DISTRICT
HOCKING COUNTY
IN THE MATTER OF: : Case No. 16CA12
:
B.M. : DECISION AND JUDGMENT
: ENTRY
:
: Released: 09/21/17
____________________________________________________________
APPEARANCES:1
L. Jackson Henniger, Logan, Ohio, for Appellants.
William W. Henderson, Logan, Ohio, for Appellee.
Charles A. Gerken, Logan, Ohio, Guardian Ad Litem.
Melissa Meuller Rose, Middletown, Ohio, Pro Se Appellee.
_____________________________________________________________
McFarland, J.
{¶1} Mark L. Meuller and Melody L. Meuller, (hereinafter
“Appellants”) are the maternal grandfather and step-grandmother of B.M.
Appellants are now appealing the entries of the Hocking County Court of
Common Pleas, Juvenile Division, filed July 9, 2014 and May 3, 2016.
Upon review of the record, we find the trial court did not abuse its discretion
in dismissing Appellants’ complaint/motion for custody of B.M. Because
1
Neither Attorney Henderson, on behalf of Appellee Nickolas Mabry, nor Appellee Melissa Meuller Rose,
pro se, elected to file a brief on appeal.
Hocking App. No. 16CA12 2
we find no error, we affirm the judgment of the trial court. Appellants’
assignments of error are overruled.
FACTS
{¶2} This matter concerns “B.M.,” who was born in 2002.2 B.M.’s
parents are Melissa Meuller-Rose (hereinafter “Mother”) and Nickolas R.
Mabry, (hereinafter “Father”). B.M.’s parents did not marry and lived
together intermittently during the first 3-4 years of B.M.’s life. A detailed
chronology of the procedural history of the case will be set forth below in
our discussion of the first assignment of error.
{¶3} In 2005, the Hocking County Juvenile Court designated Mother
as the residential parent and established a child support order. At that time,
the court noted B.M. and her mother resided in Laurelville, Ohio, in
Hocking County. Father was properly served notice of the proceeding but
did not make an appearance.
{¶4} In November, 2013, Appellants filed a complaint for
grandparent custody in Shelby County, Ohio.3 In December 2013, the
Father filed a complaint for custody in Shelby County as well. Then in early
2014, Appellants and B.M.’s Father also filed complaints for custody in
2
These facts are similarly set forth in our prior decision in In re B.M., 4th Dist. Hocking No. 14CA12,
2015-Ohio-1504, supra, at ¶¶ 2-7.
3
The complaint alleged that both B.M.’s parents were unsuitable and incapable of being her legal
custodians. The complaint also alleged B.M. had been abused and neglected by the Mother’s husband,
Jeremy Rose. By this time, Mother was living in Middletown, Ohio.
Hocking App. No. 16CA12 3
Hocking County Juvenile Court. On January 28, 2014, the Hocking County
Juvenile Court found that Hocking County had first acquired jurisdiction in
2005. All proceedings were cancelled in Shelby County.
{¶5} The Hocking County Juvenile Court held a final hearing on the
motion for change of custody and the grandparents’ complaint on June 27,
2014. By the court’s entry dated July 9, 2014, the court found that both
parents were suitable and denied the Appellants’ complaint for custody. The
court further found a substantial change in circumstances since the time
custody was granted to the Mother. The trial court found it in the best
interests of B.M. to grant the Father’s motion for custody and also granted
the Mother standard visitation rights pursuant to local rule. The trial court
continued Appellants’ motion for visitation pending further order of the
court.
{¶6} Appellants commenced a timely appeal. On April 15, 2015, this
court dismissed the grandparents’ appeal for lack of a final appealable order
due to the Appellants’ unresolved claim for visitation with B.M. On May 3,
2016, the visitation request came on for hearing. By agreement of parties,
the trial court granted Appellants visitation one weekend per month. On
June 1, 2016, Appellants instituted the current appeal, challenging the trial
Hocking App. No. 16CA12 4
court’s judgments dated July 9, 2014 and May 3, 2016. Where relevant,
additional facts will be set forth below.
ASSIGNMENTS OF ERROR ONE AND TWO
“I. THE HOCKING COUNTY JUVENILE COURT DID NOT
HAVE SUBJECT MATTER JURISDICTION OF THIS CASE,
UNDER R.C. SECTION 2151.23(A)(2) AND R.C. SECTION
2151.06 IN THAT NO PARTY WAS A RESIDENT OF THE
COUNTY AND THE CHILD SUPPORT CASE FILED &
DETERMINED IN THE COURT IN 2005 DID NOT
CONFER SUBJECT MATTER JURISDICTION ON THE
COURT, AND THE PARTIES COULD NOT SO CONFER.”
A. Standard of Review
{¶7} The existence of a trial court’s subject-matter jurisdiction is a
question of law that we review de novo. Tewksbury v. Tewksbury, 4th Dist.
Pike No. 07CA771, 2008-Ohio-4600, ¶ 15, citing State ex rel. ACCSEA v.
Balch, 4th Dist. Athens No. 06CA26, 2007-Ohio-7168, ¶ 22; Yazdani-
Isfehani v. Yazdani-Isfehani, 4th Dist. Athens No. 06CA6, 2006-Ohio-7105,
¶ 20, citing State v. Moore, 4th Dist. Highland No. 03CA18, 2004-Ohio-
3977, ¶ 8, and Burns v. Daily, 114 Ohio App. 3d 693, 701, 683 N.E.2d 1164
(11th Dist.1996). Therefore, we do not grant any deference to the trial
court’s conclusion. Tewksbury, supra, citing Balch, at ¶ 22.
B. Legal Analysis
{¶8} Subject-matter jurisdiction is defined as a court's power to hear
and decide particular classes of cases. Gonzales v. Perez, 7th Dist. Carroll
Hocking App. No. 16CA12 5
No. 13CA893, 2015-Ohio-1282, ¶ 11, citing Pratts v. Hurley, 102 Ohio
St.3d 81, 2004–Ohio–1980, 806 N.E.2d 992, ¶ 11. It may not be conferred
by agreement of the parties or waived, and is the basis for mandatory, sua
sponte dismissal either at the trial court or on appeal. Keeley v. Stoops, 7th
Dist. Belmont No. 13 BE 23, 2014–Ohio–4161, ¶ 10. Personal jurisdiction
describes a court's authority over particular litigants in a specific case, and
“may be acquired either by service of process upon the defendant or the
voluntary appearance and submission of the defendant to the jurisdiction of
the court.” Snyder Computer Sys., Inc. v. Stives, 175 Ohio App. 3d 653,
2008–Ohio–1192, 888 N.E.2d 1117, ¶ 14 (7th Dist.), citing Maryhew v.
Yova, 11 Ohio St. 3d 154, 156, 464 N.E.2d 538 (1984). Unlike subject-
matter jurisdiction, personal jurisdiction and venue can be waived. Keeley at
¶ 11. Moreover, jurisdiction and venue are distinct legal concepts. In re
Z.R., 144 Ohio St. 3d 380, 2015-Ohio-3306, 44 N.E.3d 249, ¶ 16; In re A.G.,
139 Ohio St. 3d 572, 2014-Ohio-2597, 13 N.E.3d 1146, ¶ 53, citing Morrison
v. Steiner, 32 Ohio St. 2d 86, 290 N.E.2d 841 (1972), paragraph one of the
syllabus. Venue is a “procedural matter,” and it refers not to the power to
hear a case but to the geographic location where a given case should be
heard. Morrison at 87–88, 290 N.E.2d 841.
Hocking App. No. 16CA12 6
{¶9} In this case, custody of B.M. has been the subject of actions
filed in Shelby County Probate Court, Shelby County Juvenile Court, and
Hocking County Juvenile Court. On appeal, Appellants argue the Hocking
County Juvenile Court does not possess subject-matter jurisdiction pursuant
to R.C. 2151.23(A)(2) or R.C. 2151.06, read together. Appellants point out
the Hocking County Juvenile Court acquired jurisdiction in 2005 only by
virtue of the child support case filed by the Hocking County Child Support
Enforcement Agency. However, when the Father filed his ex parte motion
for temporary custody on January 14, 2014, none of the parties resided in
Hocking County. Appellants contend the Hocking County Juvenile Court
has no jurisdiction in these proceedings due to the fact of the Father’s
residence in Franklin County, and also due to the fact B.M.’s mother is no
longer a resident of Hocking County.
{¶10} “The juvenile court possesses only the jurisdiction that the
General Assembly has expressly conferred upon it.” In re T.J.B., 1st Dist.
Hamilton No. C-130725, 2014-Ohio-2028, at ¶ 8. See In re Gibson, 61 Ohio
St.3d 168, 172–173, 573 N.E.2d 1074 (1991), citing Ohio Constitution,
Article IV, Section 4(B). The subject-matter jurisdiction of the juvenile
court is created and defined in R.C. 2151.23. See Id.; see also Rowell v.
Smith, 133 Ohio St. 3d 288, 2012–Ohio–4313, 978 N.E.2d 146, ¶ 13. The
Hocking App. No. 16CA12 7
pertinent portion of R.C. 2151.23 states: “(A) The juvenile court has
exclusive original jurisdiction under the Revised Code as follows: (2) * * *
to determine the custody of any child not a ward of another court of this
state.” Therefore, the unambiguous statutory language demonstrates that a
juvenile court has subject-matter jurisdiction over the parties’ competing
motions for custody of B.M.
{¶11} Under sections 2151.04 to 2151.54, inclusive, of the Revised
Code, a child has the same residence or legal settlement as his parents, legal
guardian of his person, or his custodian who stands in the relation of loco
parentis. Appellants contend at the time they filed their complaint for
custody, they stood “in loco parentis” of B.M. The Ohio Supreme Court
explained the term “in loco parentis” as meaning “charged, factitiously, with
a parent's rights, duties, and responsibilities.” In re T.H., 5th Dist.
Muskingum No. CT2016-0008, 2016-Ohio-7310, ¶ 30, quoting State v.
Noggle, 67 Ohio St. 3d 31, 33, 1993–Ohio–189, 615 N.E.2d 1040
(superseded by statute as stated in State v. Mole, 149 Ohio St. 3d 215, 2016-
Ohio-5124, 74 N.E.3d 368, citing Black's Law Dictionary (6th Ed.1990)
Hocking App. No. 16CA12 8
787. A person in loco parentis has assumed the same duties as a guardian or
custodian, only not through a legal proceeding. Id.4
{¶12} Our review of the law indicates that, faced with conflicts
between a probate court and a domestic or juvenile court's exercise of
jurisdiction, Ohio courts have held that the first court to properly exercise
jurisdiction over the custody of a minor retains exclusive jurisdiction. In re
N.P., 6th Dist. Fulton No. F-10-030, 2011-Ohio-3846, at ¶ 13. See, e.g.,
Addams v. State, 104 Ohio St. 475, 135 N.E. 667 (1992); In re Pushcar, 110
Ohio St. 3d 332, 853 N.E.2d 647, 2006–Ohio–4572, citing In re Asente, 90
Ohio St. 3d 91, 734 N.E.2d 1224 (2000); In the Matter of the Guardianship
of Pierce, 4th Dist. Ross No. 03CA2712, 2003–Ohio–3997. Here, the record
reflects the following chronology of filings in the Shelby County Juvenile
and Probate Courts and Hocking County Juvenile courts:
Hocking JC, Aug. 8, 2005– Hocking CSEA filed motion for
support and medical insurance.
Hocking JC, Oct. 13, 2005– Hocking JC designated Mother as
residential parent and established
child support order.
Shelby PC, Oct. 28, 2013– Grandparents granted guardianship.
Shelby JC, Nov. 4, 2013– Grandparents filed for Ex Parte
custody and full legal custody as B.M.
4
B.M. went to stay with Appellants after she made allegations of physical abuse by Mother’s husband,
Jeremy Rose, and sexual abuse by another male occurring during the time she was in the care of her
Mother.
Hocking App. No. 16CA12 9
had been with them since June 2013.
Both parents alleged to be unsuitable.
Grandparents were current legal
guardians.
Shelby PC, Nov. 15, 2013– Court sua sponte dismissed
guardianship as grandparents had
filed for custody and juvenile court
had jurisdiction.
Shelby JC, Nov. 14, 2013– Grandparents granted Ex Parte
temporary custody of B.M.
Shelby JC, Dec. 12, 2013– Father filed complaint for
temporary and permanent custody.
Father also filed motion to dismiss
Grandparents’ complaint.
Hocking JC, Jan. 14, 2014– Father filed Ex Parte complaint for
emergency custody. B.M. was staying
with Grandparents and not being
cared for by Mother.
Shelby JC, Jan. 15, 2014– Father filed motion to dismiss the
Grandparents’ complaint in Shelby JC
for lack of jurisdiction. Alleged
Grandparents were forum shopping
and jurisdiction was previously
acquired in Hocking County in 2005.
Hocking JC, Jan. 21, 2014– Court granted Ex Parte custody to
Father.
Shelby JC, Jan 24, 2014– Grandparents filed motion in response
to Father’s motion to dimiss. They
stood in loco parentis to B.M. and
jurisdiction was appropriate in county
where B.M. resided. In the alternative,
Grandparents requested transfer of
venue to Hocking County.
Hocking App. No. 16CA12 10
Shelby JC, Jan. 27, 2014– Shelby JC transferred matter to
Hocking JC.
Hocking JC, Jan. 28, 2014– Court accepted transfer of case.
Hocking JC, Feb. 27, 2014– Grandparents filed motion for
visitation.
{¶13} For the reasons which follow, we agree with the trial court’s
determination that it properly retained subject-matter jurisdiction in this
case. The facts in the record clearly demonstrate that the Hocking County
Juvenile Court acquired jurisdiction in 2005. R.C. 2151.23(B) also
provides: “* * * [T]he juvenile court has original jurisdiction under the
Revised Code: (4) To hear and determine an application for an order for the
support of any child, if the child is not a ward of another court of this state.”
The record demonstrates at the time of the 2005 child support proceeding in
which the Mother was designated the residential parent, B.M. and her
Mother resided in Hocking County. B.M. was not a ward of the Shelby
County Probate Court or any other court of the state at the time Hocking
County established jurisdiction. The simple passage of time between the
2005 child support order and the 2013 custody filings did not somehow
function to deprive Hocking County of its original jurisdiction.
{¶14} In their brief, Appellants argue:
“At the time and that father filed his ex parte motion for
temporary custody of the child, the county that had jurisdiction
Hocking App. No. 16CA12 11
was Shelby County * * *. The county having jurisdiction did
not change by virtue of the agreement of the courts or any of
the parties. Only the statute can confer jurisdiction, and the
county is not Hocking County.” (sic.)
{¶15} We disagree with Appellants’ construal of the clear record and
construal of the facts regarding the transfer of the Shelby County
proceedings to Hocking County. It does not appear that the judges simply
“agreed” to confer jurisdiction on Hocking County without a consideration
of the facts. When Appellants filed their complaint for custody in Shelby
County, either by inadvertence, misrepresentation, or simple lack of
knowledge, they failed to report on the attached parenting proceeding
affidavit that proceedings involving B.M. had previously taken place in
Hocking County.5 When the Shelby County Juvenile Court became aware
of Hocking County’s prior jurisdiction in the matter, it was then discussed
between the judges and agreed that the case be transferred back to Hocking
County where proceedings involving B.M. originated in 2005. The Hocking
County Juvenile Court’s entry filed January 28, 2014 reflects that when
Judge Zimmerman in Shelby County and Judge Wallar in Hocking County
realized there were conflicting ex parte custody orders issued from their
courts, and conflicting court dates, and they engaged in discussion to resolve
the matter of “competing” jurisdictions of the two juvenile courts. Given the
5
Appellants have argued Father mislead the court in this same regard.
Hocking App. No. 16CA12 12
clear record of the proceedings, these circumstances certainly do not
characterize any improper “conferral” or agreement regarding transfer of
jurisdiction.
{¶16} Jurisdiction is a legal question which may be raised at any
time. Parker v. Jones, 4th Dist. Ross No. 14CA3421, 2014-Ohio- 3862, ¶ 7.
However, we also observe that while B.M. was residing with Appellants in
Shelby County in 2013 when they filed the grandparents’ complaint for
custody, Appellants did not protest the Hocking County Juvenile Court’s
jurisdiction until they received an unfavorable decision. Appellants filed a
motion to transfer the matter to Hocking County Juvenile Court as an
alternative, in response to the Father’s motion to dismiss their complaint for
custody in Shelby County. After Appellants filed for custody in February
2014, they followed up with multiple appearances and filings, voluntarily
appearing and submitting themselves to the authority of the Hocking County
Juvenile Court.
{¶17} For the foregoing reasons, we find no improper subterfuge
between the trial courts regarding jurisdiction. We find subject-matter
jurisdiction of these proceedings involving B.M. was properly retained in
Hocking County Juvenile Court. As such, Appellants’ first assignment of
error has no merit and is hereby overruled.
Hocking App. No. 16CA12 13
II. THE TRIAL COURT ERRED AND ABUSED ITS
DISCRETION IN AWARDING CUSTODY TO APPELLEE-
DEFENDANT FATHER, IN THAT:
A. FAILING TO FIND HIM UNSUITABLE, WHEN
CLEARLY HE HAD ABANDONED THE CHILD BY
FAILING TO OBTAIN VISITATION ORDERS, FAILING
TO EXERCISE VISITATION, AND FAILING TO PAY
CHILD SUPPORT WHICH CONSTITUTES AN
ABANDONMENT OF THE CHILD.
B. FAILNG TO CONSIDER THE FOURTH CRITERIA
OF PERALES, THAT AN AWARD OF CUSTODY TO A
GIVEN PARENT, TO WIT, FATHER, WOULD BE
DETERIMENTAL TO THE CHILD.
C. FAILING TO FIND THAT AN AWARD OF
CUSTODY TO FATHER WOULD BE DETERMENTAL TO
THE CHILD WHEN OBVIOUSLY IT WAS, UNDER THE
CIRCUMSTANCES ADDITIONALLY THAT THE COURT
HAD IMPROPERLY INFLUENCED THE EVIDENCE
AVAILABLE TO IT BY ITS COERCIVE, WRONG, AND
INCORRECT COMMENTS, PRONOUNCEMENTS,
STATEMENTS OF THE LAW, EXPRESSIONS OF
PREJUDICE, AND NEGATIVE DEMEANOR TOWARD
APPELLANTS AND THE CHILD.
D. FAILING TO FIND MOTHER SUITABLE OR
UNSUITABLE.
E. FAILING TO PROPERLY INQUIRE INTO THE
TRUTH AND CIRCUMSTANCES OF THE ALLEGATIONS
OF CHILD ABUSE OF THE CHID IN THE HANDS OF HER
MOTHER, BY HER HUSBAND, PARAMOUR, OR THEIR
RELATIVES, IN THE EXERCISE OF ITS DUTY TO
DETERMINE SUITABILITY OF MOTHER.
A. Standard of Review
1. Custody Disputes
{¶18} A trial court has broad discretion in determining custody
matters. S.R. v. T.A. (R.), 4th Dist. Highland No. 15CA9, 2015-Ohio-5322,
Hocking App. No. 16CA12 14
¶ 6; Reynolds v. Goll, 75 Ohio St. 3d 121, 124, 661 N.E.2d 1008 (1996).
Consequently, we can sustain a challenge to a trial court's custody decision
only upon a finding that the trial court abused its discretion. Davis v.
Flickinger, 77 Ohio St. 3d 415, 418, 674 N.E.2d 1159 (1997). An abuse of
discretion is an unreasonable, arbitrary, or unconscionable use of discretion,
i.e., a view or action that no conscientious judge could honestly have taken.
State v. Kirkland, 140 Ohio St. 3d 73, 2014–Ohio–1966, 15 N.E.3d 818,
¶ 67; State v. Gavin, 4th Dist. Scioto No. 13CA3592, 2015–Ohio–2996,
¶ 20. When applying an abuse-of-discretion standard, we are not free to
merely substitute our judgment for that of the trial court. In re Jane Doe 1,
57 Ohio St. 3d 135, 137–138, 566 N.E.2d 1181 (1991). A deferential review
in a child-custody case is appropriate because much may be evident in the
parties' demeanor and attitude that does not translate to the record well.
Davis, n.k.a. Baker v. Flickinger, 77 Ohio St. 3d at 419, 674 N.E.2d 1159.
2. Custody Disputes Involving Nonparent
{¶19} It is undisputed that the right of a parent to raise her own child
is an essential and basic civil right. S.R., supra, ¶ 7; In re Murray, 52 Ohio
St.3d 155, 157, 556 N.E.2d 1169 (1990), citing Stanley v. Illinois, 405 U.S.
645, 651, 92 S. Ct. 1208 (1972). Thus, natural parents have a paramount
right, as against third parties, to custody of their children. Murray, supra;
Hocking App. No. 16CA12 15
Clark v. Bayer, 32 Ohio St. 299, 310 (1877). This right, however, is not
absolute. See In re Kovaleski, 4th Dist. Washington No. 05CA12, 2006–
Ohio–317, at ¶ 14, citing In re Johnson, 4th Dist. Ross No. 94CA2003,
1995 WL 146064 (Mar. 29, 1995). In a custody proceeding under R.C.
2151.23(A)(2) between a parent and a nonparent, the court may not award
custody to the nonparent without first determining that the parent is
unsuitable to raise the child, i.e., without determining by a preponderance of
the evidence that the parent abandoned the child or contractually
relinquished custody of the child, that the parent has become totally
incapable of supporting or caring for the child, or that an award of custody to
the parent would be detrimental to the child. In re Perales, 52 Ohio St. 2d 89,
6 O.O.3d 293, 369 N.E.2d 1047 (1977), at syllabus. If a trial court's
“unsuitability” finding is based on detriment to the child, the court must
measure suitability in terms of the harmful effect on the child, not in terms
of society's judgment of the parent. In re Dunn, 79 Ohio App. 3d 268, 271,
607 N.E.2d 81, (3rd Dist.1992), citing Perales at ¶ 98.
B. Legal Analysis
1. Application of the Law
{¶20} As an initial consideration, Appellants contend the trial court
had a “mistaken view” of the law. Appellants point to several portions of
Hocking App. No. 16CA12 16
the transcript to support this argument.6 However, we do not find the trial
court applied incorrect standards regarding custody proceedings involving
nonparents. In the trial court’s July 9, 2014 entry, the language used
references the Perales standard for determination of custody proceedings
involving nonparents seeking custody.
{¶21} We also observe that the trial court did set forth findings of fact
in its July 9, 2014 decision, though not captioned as such. However, the
record does not reflect Appellants made any written request, pursuant to
Civil Rule 52, for findings of fact and conclusions of law. In the absence of
findings of fact and conclusions of law, we generally must presume that the
trial court applied the law correctly and must affirm if some evidence in the
record supports its judgment. In re S.S., 4th Dist. Jackson Nos. 16CA7,
16CA8, 2017-Ohio-2938, at ¶ 131, citing Bugg v. Fancher, 4th Dist.
Highland No. 06CA12, 2007–Ohio–2019, ¶ 10, citing Allstate Fin. Corp. v.
Westfield Serv. Mgt. Co., 62 Ohio App. 3d 657, 577 N.E.2d 383 (12th
Dist.1989); accord Yocum v. Means, 2nd Dist. Darke No. 1576, 2002–Ohio–
3803, ¶ 7 (“The lack of findings obviously circumscribes our review
6
Upon our review of all the transcripts in this matter, it appears the trial court was either: (1) paraphrasing
for the benefit of the parties, the Mother in particular who was representing herself pro se; (2) discussing
the potentially applicable standards with counsel in conjunction with a discussion of the timeframe needed
to hear the case; or (3) cautioning the parties about “mudslinging” and the questions to be submitted for use
during the in camera interviews.
Hocking App. No. 16CA12 17
* * *.”). As the court explained in Pettet v. Pettet, 55 Ohio App. 3d 128,
130, 562 N.E.2d 929 (5th Dist.1988).
2. Unsuitability of the Father.
{¶22} Under the second assignment of error, Appellants argue the
trial court erred and abused its discretion in awarding custody to the Father
because Appellants presented evidence that the Father abandoned the child.
Then, Appellants join many of the remaining assignments of error under this
assignment of error and further argue that they did not receive a fair trial
from a fair and impartial judge. “[F]ailure to comply with the rules
governing practice in the appellate courts is a tactic which is ordinarily
fatal.” Cantanzarite v. Boswell, 9th Dist. Summit No. 24184, 2009-Ohio-
1211, at ¶16, quoting Kremer v. Cox, 114 Ohio App. 3d 41, 60, 682 N.E.2d
1006 (9th Dist.1996). Further, “t]hough appellate courts have the option to
address two or more assignments of error at once, the parties do not.”
Grimes v. Grimes, 4th Dist. Washington No. 08CA35, 3009-Ohio-3126,
¶ 15. Powell v. Vanlandingham, 4th Dist. Washington No. 10CA24, 2011-
Ohio-3208, ¶ 24; Keffer v. Cent. Mut. Ins. Co., 4th Dist. Vinton No.
06CA652, 2007-Ohio-3984, ¶ 8, fn.2. Parties must comply with the Ohio
Rules of Appellate Procedure. Grimes, at ¶ 15, fn.4. If not, App.R. 12(A)(2)
permits us to disregard those assignments of error that are not separately
Hocking App. No. 16CA12 18
argued. Id. Prokos v. Hines, 4th Dist. Athens Nos. 10CA51, 10CA57, 2014-
Ohio-1415, ¶63. However, in the interest of justice, we address the second
assignment of error solely with regard to Appellants’ argument, which we
interpret as the trial court’s alleged abuse of discretion in denying
Appellants’ complaint for custody.
{¶23} We begin by recognizing that Appellants have the burden to
establish by a preponderance of the evidence that the Father is an unsuitable
parent. See S.R., supra, citing In re Z.A. P., 2008-Ohio-3701, 894 N.E.2d
342 (4th Dist.). Appellants argue the trial court erred in failing to find the
Father’s errors or omissions constituted abandonment of B.M. Appellants
point out (1) Father had failed to obtain a visitation order or exercise
visitation rights; (2) Father had failed to pay child support from 2005 to the
present; and (3) B.M. testified that she had little contact with her father and
he allowed smoking in his household. Here, the trial court heard testimony
from the Father and other witnesses. The trial court also conducted two in
camera interviews of B.M.
{¶24} The Father testified he is married to Melinda Mabry, they have
one child together, and her two other children live with them. The Father is
employed by a computer company. He drives a truck through the State of
Ohio and delivers computer items.
Hocking App. No. 16CA12 19
{¶25} Father testified he has had a relationship with B.M. her entire
life. After B.M. was born, Father and Mother lived together for the first 3-4
years of her life. However, when Mother married Jeremy Rose, she moved
to Middletown, Ohio, and “fell off the globe.” Father did not have a contact
number for Mother and he lost contact with B.M. for approximately 9
months. Eventually, through a mutual friend, he sent a message for Mother
to contact him and although he did not have court-ordered visitation, he
again began to see B.M. on weekends. Mother or another family member
met him to exchange B.M. for visitation. Mother and Father remained civil
to each other. According to Father, he saw B.M. every weekend or every
other weekend, if his work schedule interfered.
{¶26} In June 2013, B.M. had been in Father’s care for 10-11 days.
He had dropped her off to stay with Jennifer Meuller, B.M.’s maternal aunt,
for a couple of days. On June 15th, Ms. Meuller called Father and advised
him of B.M.’s allegations of abuse against Jeremy Rose. On June 15th,
Father met Ms. Meuller in Pickaway County. The sheriff and a social
worker were also there to question B.M. about the abuse. Then, Father took
B.M. back to Columbus. The next day he took her to Franklin County
Children’s Services. However, because Father was not the legal guardian,
B.M. was not questioned. Early the next morning, Appellants arrived and
Hocking App. No. 16CA12 20
took B.M. with them. Father testified B.M. was kicking and screaming
when she left and did not want to go with Appellants.
{¶27} Father testified he and B.M. had a good relationship until June
15, 2013 when Appellants took her to stay with them. Since the ongoing
custody dispute, he feels B.M. has distanced herself from him. However,
once she is at his home, she’s fine. Father admitted the Appellants had
facilitated weekend visitations.
{¶28} Regarding child support, Father testified he was behind in
payments 2-3 years when he first moved to Columbus. However, Mother
had indicated she did not want child support and that Father “was doing his
part.” He did not know he was ordered to pay child support until he
received a letter from the BMV indicating his license was suspended.
Currently, child support is taken out of his paycheck and he has been current
the last couple of years.
{¶29} Father testified he wants custody of B.M. and thinks she will
adjust. Father always had a good relationship with the Mother until she
became involved with Jeremy Rose. If granted custody, Father was willing
that Mother have visitation because B.M. needs Mother in her life. Father
testified he doesn’t think visitation with Appellants would be a good idea.
Hocking App. No. 16CA12 21
In his opinion, their continued involvement would interrupt his rekindling of
his relationship with her.
{¶30} When B.M. went to stay with the Appellants on June 15th, he
did not see her for 9 months. Appellants told him B.M. could not come to
his house because Mother would take her away. Appellants indicated B.M.
was supposed to stay with them until the children’s services investigation
was over. Father explained he did not know where to file for custody
because of Mother’s transient lifestyle, but when he hired an attorney, he
was advised to file in Shelby County when he should have filed in Hocking
County.
{¶31} Father testified B.M. loves her father’s family and looked
forward to seeing them. He testified B.M. had never rebelled against
coming to see him or talking on the phone. He has an album full of pictures
with B.M. in most of them. To him, B.M. appears happy.
{¶32} On cross-examination, Father denied complaining about
driving some distance when visitation was set up in the case. He denied
complaining about attending B.M.’s basketball games in Shelby County. He
testified that he could not take off time from work if he was to support his
family. He further testified he was advised to stay out of Shelby County by
Hocking App. No. 16CA12 22
the police chief. Father denied ignoring the guardianship order Appellants
were granted in Shelby County.7
{¶33} On cross-examination, Father admitted he has not paid off his
arrears, but he is set up on a monthly payment and his taxes have been
intercepted once. Father admitted there was friction between him and B.M.
and, to an extent, he took some responsibility. Father testified in his
opinion, Appellants have controlled how B.M. acts at his home by making
promises to her. He cited B.M.’s lack of respect for him, Mother, and the
rest of the family.
{¶34} Father testified Mother advised him B.M. was doing well in
school. He admitted has never seen her report card. He admitted not
knowing if B.M.’s immunizations were current.
{¶35} Father’s observation is that Appellants have “bought” B.M.’s
happiness. Although he admitted she was physically healthy, he opined
Appellants had not taken good care of her “psychologically or mentally.”
Father testified as follows:
“Mr. Mueller did say one time and standing in McDonald’s
parking lot that I was taking [B.M.’s] golden ticket and [B.M.]
is looking at me like I’m a monster because he can provide so
7
On this point, Father testified that when the parties appeared in Shelby County Probate Court and
Appellants were granted a limited guardianship, the Judge “looked at all three parties in that courtroom that
day and told us that this was probate court and it didn’t mean nothing, all we had to do was go to where our
Court order was for her- - um- - for her custody, get a juvenile paper, come up the next day and we could
take our daughter any time of the week and that Judge said in that courtroom that all parties understood that
and we all agreed that we did.”
Hocking App. No. 16CA12 23
much for her up her in Botkins and he - - if my daughter comes
and lives with me down in Columbus, she’s going to become a
little whore at thirteen years old, knocked up and pregnant.”
* * * “Nick, you got three or four kids up there, you know, I’ve
got nothing but time to kill up here and you can ask my wife the
very same question.”
{¶36} On cross-examination by the guardian ad litem, Father stated
he would honor the Court’s orders because he didn’t want to be in contempt.
He stated he was trying to do things the “right way.” B.M. needed
everybody involved in her life. Father expressed doubt that Jeremy Rose
was completely “out of the picture.” Father would take legal steps if
necessary to protect B.M. from further abuse.
{¶37} Melinda Mabry, Father’s spouse; Appellants; Jennifer
Meuller, B.M.’s maternal aunt; and the court-appointed guardian ad litem
also testified.8 We reiterate that we have thoroughly reviewed the record
and the transcripts of all the witnesses’ testimony. The trial court’s entry of
July 9, 2014 states:
“This court finds that [B.M.] has a strong bond with her mother,
father Nickolas, stepmother Melinda Mabry, grandparents Mark
and Melody Meuller and maternal aunt Jennifer Meuller and
her children. There appears to be an unhealthy relationship
between B.M. and her stepfather Jeremy Rose. It appears that
[B.M.] has regularly moved from home to home and to
different cities while in the custody of her mother; and has
recently benefitted and experienced stability and good academic
8
Mother, appearing pro se, had a passive role in the proceedings. She stated that she sought to retain
custody of B.M. but she had not filed a motion in writing. She did not formally testify.
Hocking App. No. 16CA12 24
improvement during the time she has temporarily lived with her
maternal grandparents, Mark and Melody Meuller. * * *
However, the Court finds that the maternal grandparents have
not encouraged [B.M.] to love and respect her mother and
father. The Guardian Ad Litem Charles Gerken performed a
thorough investigation, and consistent with the leading case of
In re Perales (1977) 52 OS 2d 89, recommends that absent a
finding of parental unfitness that the Court must grant custody
to one of the parents. The Court agrees and finds that both
parents are suitable parents and that grandparents’
complaint/motion for custody must be denied.”
{¶38} Having reviewed the record, we are mindful of the trial court’s
great deference in assessing witnesses’ demeanor, attitude, and credibility.
We defer to the trial court’s determinations regarding all the witnesses who
testified herein. In Riley, supra, at ¶ 19, we reiterated the law as set forth in
Seasons Coal Co. v. Cleveland, 10 Ohio St. 3d 77, 80-81, 461 N.E.2d 1273,
1276-1277 (1984);
“A reviewing court should not reverse a decision simply
because it holds a different opinion concerning the credibility of
the witnesses and evidence submitted before the trial court. A
finding of an error in law is a legitimate ground for reversal, but
a difference of opinion on credibility of witnesses and evidence
is not. The determination of credibility of testimony and
evidence must not be encroached upon by a reviewing court
* * *. This is even more crucial in a child custody case, where
there may be much evidence in the parties’ demeanor and
attitude that does not translate to the record well.” Id. at 418-
419.
{¶39} As noted above, Appellants argue that Father abandoned B.M.
Hocking App. No. 16CA12 25
by failing to establish a visitation schedule years prior to the current
proceedings and failing to maintain his child support obligations until recent
years. The trial court heard conflicting evidence on these issues. In In re
J.R., 2nd Dist. Montgomery No.26894, 2016-Ohio-5054, Appellant sought
custody of his “godson.” He contended the trial court should have found the
child’s mother unsuitable because ample evidence showed that she had
“constructively abandoned” him and giving custody to the mother would be
to the child’s detriment. Emphasizing a trial court’s discretion in custody
matters, the appellate court, however, noted, the only question presented was
“whether Mother is a suitable custodian, “ ‘not whether someone else is
more suitable.’ ” (Emphasis sic.) In re D.C.J., 2012–Ohio–4154, 976 N.E.2d
931, at ¶ 58, quoting In re S.M., 160 Ohio App. 3d 794, 2005–Ohio–2187,
828 N.E.2d 1044, ¶ 31 (8th Dist.) (McMonagle, J., concurring).
{¶40} Based on our review of the record and transcripts herein, and
the pertinent case law, we are not persuaded to disturb the trial court’s
findings. The record supports the trial court’s determination as to Father’s
suitability. Thus, the trial court did not abuse its discretion by denying
Appellants legal custody of B.M.
{¶41} Appellants also assert the trial court erred in failing to consider
the fourth factor of Perales, that an award of custody to the Father would be
Hocking App. No. 16CA12 26
detrimental to B.M. Appellants contend the trial court’s pronouncement that
both parents are suitable does not equate to a specific finding as to the
Perales factor. “Detrimental” means some type of harm is or can be
suffered by the child. In re M.N., 6th Dist. Lucas No. L-15-1317, 2016-
Ohio-7808, at ¶ 13; See Choi v. Ohio Univ., Ct. of Cl. No. 2015–00256–AD,
2015–Ohio–4898, ¶ 10. The court “is to consider the extent and magnitude
of [harm] that is likely to be experienced by a child being placed with his or
her natural parent.” See, e.g., Butts v. Hill, 5th Dist. Licking No. 11–CA–46,
2011–Ohio–5512, ¶ 51 (affirming finding of parental unsuitability). Along
with Appellants’ argument that Father abandoned B.M. by failing to seek
visitation and maintain child support, Appellants point to evidence that
Father and his wife allowed smoking in their home and photographs of an
ashtray taken by B.M. and introduced into evidence at the final custody
hearing.
{¶42} Again, however, we observe Appellants’ failed to make a
written request for findings of fact and conclusions of law. This failure
results in a waiver of the right to challenge the trial court’s lack of an
explicit finding concerning an issue. Riley v. Riley, 4th Dist. Washington No.
Hocking App. No. 16CA12 27
07CA16, 2008-Ohio-859, ¶17. (Internal citations omitted.)9 As such, we
may presume the trial court correctly considered all relevant facts and
factors. Furthermore, again, the trial court heard evidence that Appellants’
manipulated B.M. or “bought” her. There was conflicting evidence on the
smoking issue and we defer to the trial court’s determination of credibility.
3. Unsuitability of the Mother
{¶43} Appellants also argue the trial court erred by failing to find the
Mother was unsuitable. Appellants point to the testimony regarding
Mother’s transient lifestyle. All witnesses testified to this fact. Jennifer
Mueller recognized her sister had not provided stability for B.M. by moving
so frequently. However, she also expressed no hesitation or concern about
Mother’s continuing as B.M.’s legal guardian in her own right. Ms.
Mueller’s only concern had to do with Jeremy Rose’s possible involvement
in Mother’s and B.M.’s lives. None of the parties wished to exclude Mother
from B.M.’s life. Again, given the court’s better position to weigh
credibility of all witnesses, we find the trial court did not abuse its discretion
when it also found Mother to be a suitable parent.
9
“[W]hen a party does not request that the trial court make findings of fact and conclusions of law under
Civ.R. 52, the reviewing court will presume that the trial court considered all the factors and all other
relevant facts.” Id., quoting Fallang v. Fallang, 109 Ohio App. 3d 543, 549, 672 N.E.2d 730 (12th
Dist.1996); see also In re Barnhart, 4th Dist. Athens No. 02CA20, 2002-Ohio-6023, ¶ 23.
Hocking App. No. 16CA12 28
{¶44} Appellants’ argument that the trial court did not properly
inquire into the circumstances of the allegations of child abuse when B.M.
resided with her mother is particularly without merit. We disagree. Upon
review of the record, we observe the trial court showed great concern with
regard to the abuse allegations. In the trial court’s July 9, 2014 entry, the
trial court explicitly stated:
“The sworn testimony established that * * * did allege physical
and sexual abuse by her stepfather, Jeremy Rose, while the
child was living with her Mother and Jeremy Rose. She also
alleged abuse by step-grandfather Mr. Passmore in Pickaway
County Ohio. Although the father and grandparent petitioners
reported the allegations to Butler County Children Services,
Pickaway County Children Services and Franklin County
Children Services, the allegations were either found
unsubstantiated or not investigated at all, leaving all reporters
feeling that the system had not adequately protected * * *.
There appears to be an unhealthy relationship between * * *
and her stepfather Jeremy Rose. It appears that * * * has
regularly moved from home to home and to different cities
while in the custody of her mother * * *.”10
{¶45} For the foregoing reasons, we find no merit to Appellants’
second assignment of error. As such, it is hereby overruled.
THE REMAINING ASSIGNMENTS OF ERROR
10
The trial court’s record reflected those concerns repeatedly, and specifically, when the trial judge stated:
“But, you know, something horrible has happened here and I don’t know what it is. * * * If we were to
believe children services, they are saying nothing happened, that the girl is a liar. That’s a horrible
outcome as far as I’m concerned because if she’d lie about that, what else would she lie about. So I tend to
believe something did happen that has traumatized this young lady.”
Hocking App. No. 16CA12 29
{¶46} App.R. 16(A)(17) requires an appellant’s brief to contain an
argument with citations to authorities. McDonald v. McDonald, 4th Dist.
Highland No. 12CA1, 2013-Ohio-470, ¶ 20. Appellants’ brief sets forth in
the “Table of Contents” ten assignments of error. Appellants’ first
“Assignment of Error” regarding subject-matter jurisdiction, as discussed
above, is set forth separately in the “Argument” section of the brief.
“Assignment of Error Two,” regarding the trial court’s award of custody to
the father, appears to argue jointly various other assignments of error. And,
beginning with “Assignment of Error Three,” the remaining assignments of
error are not argued fully.
{¶47} An appellate court may rely upon App.R. 12(A) in overruling
or disregarding an assignment of error because of “lack of briefing” on the
assignment of error. In the Matter of G.N.C., 5th Dist. Licking No. 13-CA-
112, 2014-Ohio-3092, ¶ 17, citing Hawley v. Ritley, 35 Ohio St. 3d 157, 159,
519 N.E.2d 390, 392-393 (1988); Abon, Ltd. v. Transcontinental Ins. Co.,
5th Dist. Richland No.2004-CA-0029, 2005 WL 1414486, ¶ 100; State v.
Miller, 5th Dist. Ashland No. 04-COA-003, 2004-Ohio-4636, ¶ 41. The
remaining assignments of error were set forth as follows:
III. THE TRIAL COURT ERRED AND ABUSED ITS
DISCRETION IN FAILING TO FIND THAT BOTH
APPELLEE DEFENDANT FATHER AND APPELLEE
DEFENDANT MOTHER WERE UNSUITABLE.
Hocking App. No. 16CA12 30
IV. THE TRIAL COURT ERRED AND ABUSED ITS
DISCRETION IN THAT THE TRIAL JUDGE RICHARD M.
WALLAR FAILED TO ACT IN A FAIR AND IMPARTIAL
MANNER, BY, INTER ALIA:
A. IMPROPERLY, INAPPROPRIATELY, AND WITH
PARTIALITY AND PREJUDICE ORDERING THAT HE
DID NOT CARE TO ENTERTAIN NEGATIVE VIEWS OF
THE PARENTS WHEN PROOF OF NEGATIVE MATTERS
ABOUT THEM IS THE ESSENCE OF MEETING THE
UNSUITABILITY STANDARD IN PROVING
UNSUITABILITY, THEREBY IMPROPERLY
PREDLUDING THE APPELLANTS FROM PROVING
THEIR CASE.
B. THROUGH OUT THE PROCEEDINGS, JUDGE
WALLAR ACTED WITH PREJUDICE, AND THEREBY
ABUSED HIS DISCRETION, TO INITMIDATE, COERCE
AND COW THE APPELLANTS, THEIR WITNESSES,
THEIR ATTORNEY, AND THE CHILD, THEREBY
DEPRIVING THE APPELLANTS OF A FAIR TRIAL, AND
IMPROPERLY AFFECTING WHAT EVIDENCE CAME
BEFORE THE COURT, KEEPING EVIDENCE OUT OF
COURT, AND NOT GIVING THE EVIDENCE BEFORE
THE COURT ITS PROPER WEIGHT BY REASON OF THE
JUDGE’S PREJUDICE TOWARD AND INAPPROPRIATE
ATTITUDE TOWARD THE APPELLANT LITIGANTS AND
THE CHILD.
V. THE TRIAL COURT JUDGE WALLAR FAILED TO
ACT IN A FAIR AND IMPARTIAL MANNER, AND
THEREBY ABUSED HIS DISCRETION, BY, INTER ALIA,
JARRINGLY AND INAPPROPRIATELY ANNOUNCING
THAT HE WAS UPSET WITH APPELLANTS BECAUSE
THEY HAD FILED PLEADINGS IN SHELBY COUNTY
WHICH WAS THE IMPROPER COUNTY, WHICH IS A
STATEMENT BASED ON AN INCORRECT LEGAL
ASSESSMENT IN THE FIRST PLACE, AND BY
IMPROPERLY TWISTING AND MISCHARACTERIZING
THE STATEMENT OF COUNSEL RELATIVE TO THE
ISSUE OF NOT BEING ABLE TO SCHEDULE A
Hocking App. No. 16CA12 31
COUNSELING SESSION FOR THE CHILD BY
CRITICIZING AND BERATING COUNSEL, OR THE
APPELLANTS AS IF THEY HAD BEEN RESPONSIBLE
FOR BEING UNABLE TO SCHEDULE THE SESSIONS
AND IN WRONGLY ACCUSING COUNSEL OF BLAMING
THE FAILURE TO OBTAIN THE COUNSELING ON THE
STAFF MEMBER THE COURT HAD ASSIGNED TO
ASSIST, WHEN IN FACT THAT WAS NOT COUNSEL’S
STATEMENT NOR HIS POSITION, AND WHEN IN FACT
THAT FAILURE TO OBTAIN THE COUNSELING WAS
NOT DUE TO ANYTHING COUNSEL OR HIS CLIENTS
DID.
VI. THE TRIAL COURT JUDGE WALLAR ABUSED HIS
DISCRETION IN THAT:
A. HE CONDUCTED LEAST (SIC) ONE IN CAMERA
INTERVIEW(S) OF THE CHILD THAT WERE
CONDUCTED CONTRARY TO LAW, IN THAT
CONTRARY TO R.C. SECTION 3109.04(B)(2), MADE
APPLICABLE TO THE PROCEEDING BY R.C. SECTION
2151.23(F)(1), BY INTERVIEWING THE CHILD WITH THE
CHILD’S MOTHER PRESENT.
VII. THE TRIAL COURT JUDGE WALLAR ABUSED HIS
DISCRETION IN THAT: MADE INAPPROPRIATE
COMMENTS AND STATEMENTS TO THE CHILD
DESIGNED TO IMPROPERLY INFLUENCE HER
RESPONSES AND COW HER INTO NOT BEING CANDID
AND FORTHRIGHT, WHICH IS THE VERY PURPOSE OF
AN IN CAMERA INTERVIEW OF A CHILD.
VIII. THE TRIAL COURT JUDGE WALLAR ABUSED HIS
DISCRETION BY FAILING TO PROVIDE A FAIR AND
IMPARTIAL HEARING TO THE APPELLANTS BY
ANNOUNCING AN INCOMPLETE STATEMENT OF THE
LAW OF UNSUITABILITY AND THEN FAILING TO
APPLY OR CONSIDER THE PROPER CRITERIA FOR
DETERMINING UNSUITABILITY.
IX. THE TRIAL COURT JUDGE WALLAR FAILED TO
MAKE PROPER FINDINGS OF FACT AND LAW
Hocking App. No. 16CA12 32
REGARDING HIS JUDGEMENT THAT THE APPELLANTS
FAILED TO PROVE BY A PREPONDERANCE OF THE
EVIDENCE THAT NEITHER PARENT WAS
UNSUITABLE, IN THAT, INTER ALIA, HE FAILED TO
CONSIDER THE FOURTH CRITERIA, UNDER PERALES
AND HOCKSTOCK, THAT AN AWARD OF CUSTODY TO
EITHER PARENT WOULD BE DETRIMENTAL TO THE
CHILD.
X. THE TRIAL COURT JUDGE RICHARD M. WALLAR
ABUSED HIS DISCRETION IN FAILING TO CONSIDER
THE FACT OF THE SHELBY COUNTY PROBATE COURT
HAVING APPOINTED APPELLANTS AS GUARDIAN OF
THE PERSON OF THE MINOR CHILD AND NOT THE
APPELLEE FATHER, TO WHICH PROCEEDINGS,
FATHER FAILED TO FILE ANY FORMAL OBJECTON OR
APPEAL WHICH HAS THE LEGAL EFFECT OF
DETERMINING THAT FATHER IS UNSUITABLE.
{¶48} Based on noncompliance with App.R. 16 and the redundancy
of arguments made, along with a lack of briefing and citation, we decline to
consider Assignments of Error Three through Ten. As such, those
assignments of error are hereby overruled. Accordingly, the judgment of the
trial court is affirmed.
JUDGMENT AFFIRMED.
Hocking App. No. 16CA12 33
JUDGMENT ENTRY
It is ordered that the JUDGMENT BE AFFIRMED and that costs be
assessed to Appellants.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing
the Hocking County Common Pleas Court, Juvenile Division, to carry this
judgment into execution.
Any stay previously granted by this Court is hereby terminated as of
the date of this entry.
A certified copy of this entry shall constitute the mandate pursuant to
Rule 27 of the Rules of Appellate Procedure.
Hoover, J.: Concurs in Judgment and Opinion as to Assignments of Error I
and II; Concurs in Judgment Only as to Assignments of Error
III through X.
Harsha, J. Concurs in Judgment Only.
For the Court,
BY: _________________________
Matthew W. McFarland, Judge
NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a final
judgment entry and the time period for further appeal commences from
the date of filing with the clerk.