Huston v. Huston

[Cite as Huston v. Huston, 2022-Ohio-1744.]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT )
ALECIA HUSTON C.A. No. 29983
Appellee
v. APPEAL FROM JUDGMENT
ENTERED IN THE
DWAYNE HUSTON COURT OF COMMON PLEAS
COUNTY OF SUMMIT, OHIO
Appellant CASE No. DR 2015-03-0714
DECISION AND JOURNAL ENTRY
Dated: May 25, 2022
TEODOSIO, Judge.
{¶1} Appellant, Dwayne Huston, appeals from the April 13, 2021, judgment entry of the
Summit County Court of Common Pleas, Domestic Relations Division, overruling his objections
to the magistrate’s decision. This Court affirms.
I.
{¶2} In a prior appeal, this Court set out the pertinent facts and procedural history of this
case as follows:
Dwayne and Alecia Huston divorced in 2016. They are the parents of three
children, all of whom were minors at the time of the divorce. The divorce decree
provided that Ms. Huston would be the residential parent of the minor children and
that Mr. Huston would have supervised companionship time, subject to the ongoing
recommendations of a counselor. Within six months of the divorce decree, Mr.
Huston filed his first motion to reallocate parental rights and responsibilities. He
filed a supplement to that motion on June 7, 2017, and on April 17, 2018, he filed
another motion. With respect to each, the trial court determined that Mr. Huston
did not demonstrate a change in circumstances that warranted designating Mr.
Huston as the residential parent, although the trial court made some modifications
to the parenting-time schedule and the conditions under which parenting time could
be exercised.
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On November 21, 2019, Mr. Huston again moved to reallocate parental rights,
raising many of the same arguments regarding the nature of his relationship with
Ms. Huston that he had raised in previous motions. The trial court adopted a
magistrate’s decision and denied Mr. Huston’s motion on March 16, 2020,
concluding that Mr. Huston had failed to demonstrate a change in circumstances.
Mr. Huston filed objections and supplemental objections to the magistrate’s
decision. The trial court denied all of Mr. Huston’s objections, and Mr. Huston
[appealed].
Huston v. Huston (“Huston I”), 9th Dist. Summit No. 29808, 2021-Ohio-1077, ¶ 2-3. On appeal,
we overruled Mr. Huston’s eight assignments of error and affirmed the trial court’s judgment. Id.
at ¶ 8. Mr. Huston appealed our decision, but the Supreme Court of Ohio declined to accept
jurisdiction. See Huston v. Huston, 163 Ohio St.3d 1505, 2021-Ohio-2401.
{¶3} Meanwhile, Mr. Huston was found to be in contempt of court in May 2018 “for
failure to abide by order of court directing him to refrain from providing certain information to the
children[,]” and the trial court temporarily suspended his parenting time. The court permitted him
to purge the contempt by re-engaging in weekly therapy with Dr. Michael Smith and completing
an anger management assessment. Mr. Huston filed two notices of compliance in December 2018
and July 2019. Although the trial court recognized his completion of the anger management
assessment, it also found that he had stopped his counseling with Dr. Smith. Mr. Huston filed
another notice of compliance a month later, and two hearings were held before a magistrate in May
2020 and July 2020. Upon finding that Mr. Huston failed to present any evidence that he had
complied with the May 2018 order, the magistrate declined to reinstate his parenting time. The
trial court adopted the magistrate’s findings and entered judgment on the matter. Mr. Huston filed
an objection and a supplemental objection to the magistrate’s decision. In overruling those
objections, the trial court found that Mr. Huston: failed to point to any specific finding of fact in
the magistrate’s decision in which he believed the Court erred; alleged error contained in a
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different judgment entry; and failed to establish any evidence that he had complied with prior court
orders.
{¶4} Mr. Huston now appeals from the trial court’s April 13, 2021, judgment entry
overruling his objections to the magistrate’s decision and raises eight assignments of error for this
Court’s review. Because all of his assignments of error must be overruled for the same reason, we
have consolidated them to facilitate our review.
II.
ASSIGNMENT OF ERROR ONE
THE TRIAL COURT ERRED BY WILLFULLY NEGLECTING, AIDING,
ABETTING, AND PARTICIPATING IN THE MENTAL INJURY OF THE
HUSTON CHILDREN AND INTIMATE PARTNER VIOLENCE OF [MR.
HUSTON], AS COURT ORDERED LICENSED PSYCHOLOGISTS AND GAL
REPORTED TO THE [TRIAL] COURT WOULD OCCUR TO THE HUSTON
CHILDREN AND [MR. HUSTON] BY [MS. HUSTON]. OHIO REVISED
CODE 2151.031 ABUSED CHILD DEFINED * * * AS USED IN THIS
CHAPTER, AN “ABUSED CHILD” INCLUDES ANY CHILD WHO: (D)
BECAUSE OF THE ACTS OF HIS PARENTS, GUARDIAN, OR CUSTODIAN,
SUFFERS PHYSICAL OR MENTAL INJURY THAT HARMS OR
THREATENS TO HARM THE CHILD’S HEALTH OR WELFARE.
ASSIGNMENT OF ERROR TWO
THE TRIAL COURT IS SUPPORTING AND PUSHING THE TRAUMA
REENACTMENT NARRATIVE OR PARALLEL PROCESS AND ERRED BY
OBSTRUCTING JUSTICE, TRUTH, DUE PROCESS, AND BEST INTERESTS
OF THE HUSTON CHILDREN. THE FACTS AND EVIDENCE
OVERWHELMINGLY PROVE THE TRIAL COURT ABUSE[D] ITS POWER
TO CREATE CONFLICTS OF INTERESTS WITH LICENSED LAWYERS
AND MENTAL HEALTH PERSONNEL TO CREATE THE FALSE
NARRATIVE THAT IT IS IN THE BEST INTERESTS OF THE HUSTON
CHILDREN TO INFLICT ATTACHMENT TRAUMA WITH [MR. HUSTON].
THE TRIAL COURT FAILED TO COMPLY WITH OHIO CODE OF JUDICIAL
CONDUCT CANON 2 – “A JUDGE SHALL PERFORM THE DUTIES OF
JUDICIAL OFFICE IMPARTIALLY, COMPETENTLY, AND
DILIGENTLY[.”] SPECIFICALLY, WITH RULE 2.1 GIVING PRECEDENCE
TO THE DUTIES OF JUDICIAL OFFICE[,] RULE 2.2 IMPARTIALITY AND
FAIRNESS, RULE 2.3 BIAS, PREJUDICE, AND HARASSMENT, RULE 2.9 EX
PARTE CONTACTS AND COMMUNICATIONS WITH OTHERS, RULE 2.11
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DISQUALIFICATION, RULE 2.12 SUPERVISORY DUTIES, AND RULE 2.15
RESPONDING TO JUDICIAL AND LAWYER MISCONDUCT.
ASSIGNMENT OF ERROR THREE
THE TRIAL COURT FAILED TO COMPLY WITH [THE] OHIO CODE OF
JUDICIAL CONDUCT CANONS, AND THE COURT’S DUTY TO CARE AND
DUTY TO PROTECT THE CHILDREN AND THE DEFENDANT AS
REPORTED TO THIS COURT BEING REQUIRED BY THE THREE COURT
ORDERED LICENSED MENTAL HEALTH PERSONNEL AND THE HUSTON
CHILDREN’S GAL, AS SUMMARIZED IN (EXHIBIT CL) SOURCE OF
CHILD ABUSE TABLE – WHICH PARENT IS THE SOURCE OF
PATHOGENIC PARENTING CREATING ATTACHMENT PATHOLOGY.
THE TRIAL COURT FAILED TO COMPLY WITH OHIO CODE OF JUDICIAL
CONDUCT CANON 2 – “A JUDGE SHALL PERFORM THE DUTIES OF
JUDICIAL OFFICE IMPARTIALLY, COMPETENTLY, AND
DILIGENTLY[.”] SPECIFICALLY, WITH RULE 2.5 COMPETENCE,
DILIGENCE, AND COOPERATION.
ASSIGNMENT OF ERROR FOUR
THE TRIAL COURT FAILED TO COMPLY WITH THE INTENTIONS OF
“THE BEST INTERESTS OF THE [HUSTON] CHILDREN STANDARD[,”]
DIRECTION AND LAWS INTENDED TO ADDRESS THE ISSUES
IDENTIFIED IN THE “FAMILY LAW REFORM: MINIMIZING CONFLICT,
MAXIMIZING FAMILIES” BY THE OHIO TASK FORCE ON FAMILY LAW
AND CHILDREN – SUPREME COURT, WHICH DOCUMENTS MORE
CLEARLY THE ESSENCE AND INTENTIONS OF OHIO REVISED CODE
3109.04.
ASSIGNMENT OF ERROR FIVE
WHILE UNDER THE ACCOUNTABILITY, ORDERS, AND CONTROL OF
THE TRIAL COURT, THE TRIAL COURT ERRED IN PROVIDING THE
HUSTON FAMILY WITH MENTAL HEALTH SERVICES THAT FAILED TO
MEET PROFESSIONAL STANDARDS OF PRACTICE OR CARE, WHICH
VIOLATED THE FOLLOWING ETHICAL PRINCIPLES OF
PSYCHOLOGISTS, CODE OF CONDUCT OF THE AMERICAN
PSYCHOLOGICAL ASSOCIATION (APA), AND OHIO ADMINISTRATIVE
CODES (OAC) RULES OF PROFESSIONAL CONDUCT, WHICH IS
MALPRACTICE * * *.
ASSIGNMENT OF ERROR SIX
WHILE UNDER THE ACCOUNTABILITY, ORDERS, AND CONTROL OF
THE TRIAL COURT, THE TRIAL COURT ERRED IN NOT REPORTING
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ILLEGAL MENTAL HEALTH SERVICES TO THE OHIO LICENSING
BOARDS THAT FAILED TO MEET PROFESSIONAL STANDARDS OF
PRACTICE OR CARE OR MALPRACTICE. SEE 4732-19-01 ENFORCEMENT
AND DISCIPLINE. LICENSED PSYCHOLOGISTS AND LICENSED
SCHOOL PSYCHOLOGISTS GOVERNED BY CHAPTER 4732. OF THE
REVISED CODE AND BY THESE RULES SHALL BE DISCIPLINED IN
ACCORDANCE WITH CHARPERTS 4732. AND 119. OF THE REVISED
CODE FOR VIOLATION OF THESE RULES * * *.
ASSIGNMENT OF ERROR SEVEN
WHILE UNDER THE ACCOUNTABILITY, ORDERS, AND CONTROL OF
THE TRIAL COURT, THE TRIAL COURT ERRED BY DEEMING
THEMSELVES COMPETENT AND LICENSED TO PRACTICE
BEHAVIORAL SCIENCE AND JUDGE WHICH LICENSED MENTAL
HEALTH PROVIDER SUBMITTED TRUE TESTIMONY TO THE TRIAL
COURT AND WHICH LICENSED MENTAL HEALTH PROVIDER
SUBMITTED FALSE TESTIMONY TO THE TRIAL COURT OR
COMMITTED MALPRACTICE, WHEN MENTAL HEALTH EVIDENCE,
LACKING INTER-RATER RELIABILITY, WAS REPORTED TO THE TRIAL
COURT. SUCH JUDG[]MENT REQUIRES COMPETENCE AND LICENSURE
WHICH IS THE JURISDICTION OF THE OHIO BOARD OF PSYCHOLOGY.
SEE CHAPTER 4732.01 PSYCHOLOGIST DEFINITIONS (B) “THE
PRACTICE OF PSYCHOLOGY” MEANS RENDERING OR OFFERING TO
RENDER TO INDIVIDUALS, GROUPS, ORGANIZATIONS, OR THE PUBLIC
ANY SERVICE INVOLVING THE APPLICATION OF PSYCHOLOGICAL
PROCEDURES TO ASSESSMENT, DIAGNOSIS, PREVENTION,
TREATMENT, OR AMELIORATION OF PSYCHOLOGICAL PROBLEMS OR
EMOTIONAL OR MENTAL DISORDERS OF INDIVIDUALS OR GROUPS;
OR TO THE ASSESSMENT OR IMPROVEMENT OF PSYCHOLOGICAL
ADJUSTMENT OR FUNCTIONING OF INDIVIDUALS OR GROUPS,
WHETHER OR NOT THERE IS A DIAGNOSABLE PRE-EXISTING
PSYCHOLOGICAL PROBLEM * * * PSYCHOLOGICAL PROCEDURES
WHICH CREATE A SERIOUS HAZARD TO MENTAL HEALTH AND
REQUIRE PROFESSIONAL EXPERTISE IN PSYCHOLOGY (B) THE
FOLLOWING PSYCHOLOGICAL PROCEDURES ARE A SERIOUS HAZARD
TO MENTAL HEALTH AS THAT TERM IS DEFINED IN PARAGRAPH (L)
OF RULE 4732-3-01 OF THE ADMINISTRATIVE CODE AND REQUIRE
PROFESSIONAL EXPERTISE IN PSYCHOLOGY: (1) PSYCHOLOGICAL
AND SCHOOL PSYCHOLOGICAL DIAGNOSIS * * *.
ASSIGNMENT OF ERROR EIGHT
THE TRIAL COURT ERRED BY IGNORING REPORTS FROM LICENSED
MENTAL HEALTH TO PROVIDE THE SPECIALIZED TREATMENT THE
HUSTON CHILDREN AND FAMILY REQUIRES TO SUCCESSFULLY
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TRANSITION INTO A HEALTHY SEPARATED FAMILY STRUCTURE. THE
TRIAL COURT ERRED TO MINIMIZING CONFLICT AND MAXIMIZING
FAMILY, WHICH MAXIMIZED EXPENSIVE LITIGATION. THE TRIAL
COURT ERRED BY ENABLING [MS. HUSTON’S] ATTORNEY TO MAKE
THE SIMPLEST TASKS LIKE DIVIDING HOUSEHOLD ASSETS AND
OBTAINING REQUIRED INFORMATION FOR [MR. HUSTON] TO FILE
FEDERAL AND STATE TAXES “HIGH CONFLICT[,”] REQUIRING
EXPENSIVE LITIGATION RATHER THAN MINIMIZING CONFLICT. * * *
THE TRIAL COURT ERRED AND TOOK ADVANTAGE OF THE “HIGH
CONFLICT PERSONALITY” OF [MS. HUSTON], AS COURT ORDERED
LICENSED PSYCHOLOGISTS AND GAL REPORTED TO THE [TRIAL]
COURT, WHICH WAS NOT IN THE BEST INTERESTS OF THE HUSTON
CHILDREN OR FAMILY.
{¶5} We first recognize that Mr. Huston has proceeded with this appeal pro se. With
respect to pro se litigants, this Court has determined:
[P]ro se litigants should be granted reasonable leeway such that their motions and
pleadings should be liberally construed so as to decide the issues on the merits, as
opposed to technicalities. However, a pro se litigant is presumed to have
knowledge of the law and correct legal procedures so that he remains subject to the
same rules and procedures to which represented litigants are bound. He is not given
greater rights than represented parties, and must bear the consequences of his
mistakes. This Court, therefore, must hold [pro se appellants] to the same standard
as any represented party.
State v. Goldshtein, 9th Dist. Summit No. 25700, 2012-Ohio-246, ¶ 6, quoting Sherlock v. Myers,
9th Dist. Summit No. 22071, 2004-Ohio-5178, ¶ 3.
{¶6} Res judicata bars the assertion of claims against a valid, final judgment that have
been raised or could have been raised on appeal. Prussak-Klein v. Durachinsky, 9th Dist. Summit
No. 26780, 2013-Ohio-4894, ¶ 24. Ms. Huston has argued that Mr. Huston’s brief in this matter
is almost a word-for-word recitation of the merit brief he filed in Huston I, even though a different
judgment entry was the subject of that appeal. In his first, fourth, fifth, and eighth assignments of
error, Mr. Huston appears to again argue error in connection with earlier rulings that pertained to
custody matters and to the divorce decree itself. He neglects, however, to assign any error to the
trial court’s April 13, 2021, judgment entry overruling his objections to the magistrate’s decision,
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which is the order designated in his notice of appeal. As we determined in Huston I, “[n]o appeals
were taken from those earlier orders, and these arguments are both untimely and beyond the scope
of this appeal.” Huston I at ¶ 4. See also State v. Dixon, 9th Dist. Summit No. 21463, 2004-Ohio-
1593, ¶ 7, quoting Slone v. Bd. of Embalmers & Funeral Dirs. of Ohio, 123 Ohio App.3d 545, 548
(8th Dist.1997) (“An appellate court ‘is without jurisdiction to review a judgment or order that is
not designated in the appellant’s notice of appeal.’”). In his second, third, sixth, and seventh
assignments of error, Mr. Huston appears to again suggest that the trial court violated various
professional standards and the Code of Judicial Conduct or Rules for the Government of the
Judiciary. As we determined in Huston I, “[a]llegations of judicial misconduct * * * are not within
this Court’s jurisdiction.” Huston I at ¶ 6. Because we overruled these same assignments of error
in Huston I, res judicata now prohibits Mr. Huston from relitigating them again. See Weber v.
Devanney, 9th Dist. Summit No. 29374, 2020-Ohio-4450, ¶ 22.
{¶7} Accordingly, Mr. Huston’s assignments of error are all overruled.
{¶8} Ms. Huston has also moved this Court for attorney’s fees in this matter and argues
that this appeal is frivolous, as it does not identify any errors in the April 13, 2021, judgment entry,
recycles the same merit brief previously filed in Huston I, and attempts to relitigate issues that
have already been resolved. She attached an itemized invoice to her motion detailing a total of
$2,690.00 in attorney’s fees she incurred in defending against this appeal between May 25, 2021,
and July 1, 2021. Mr. Huston responded with a motion to quash Ms. Huston’s motion for fees,
arguing that Huston I was decided without certain “vital evidence” (e.g., his objections to the
magistrate’s decision and the court’s April 13, 2021, judgment entry overruling his objections) and
explaining that he reused the same arguments in this appeal because they are “even more fully
substantiated with [additional] evidence * * *.”
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{¶9} Pursuant to App.R. 23: “If a court of appeals shall determine that an appeal is
frivolous, it may require the appellant to pay reasonable expenses of the appellee including
attorney fees and costs.” “‘Under App.R. 23, a frivolous appeal is one that presents no reasonable
question for review.’” Moss v. Lorain Cty. Bd. of Mental Retardation, 9th Dist. Lorain No.
13CA010335, 2014-Ohio-969, ¶ 15, quoting W. Res. Logistics v. Hunt Machine & Mfg. Co., 9th
Dist. Summit No. 23124, 2006-Ohio-5070, ¶ 14. “‘App.R. 23 serve[s] two important functions:
compensation for the non-appealing party for the defense of spurious appeals, and deterrence of
frivolity to preserve the appellate calendar for cases truly worthy of consideration.’” Jackson v.
Walker, 9th Dist. Summit No. 22996, 2006-Ohio-4351, ¶ 7, quoting Eatherton v. New York Life
Ins. Co., 6th Dist. No. L-05-1171, 2006-Ohio-2233, ¶ 16.
{¶10} Upon review, we conclude that Mr. Huston’s appeal in this matter is wholly
frivolous. Despite appealing from the trial court’s April 13, 2021, judgment entry overruling his
objections to the magistrate’s decision, Mr. Huston has failed to raise any issues germane to that
entry. He has instead chosen to refile an almost exact replica of the merit brief he filed in Huston
I, which proved unsuccessful in challenging a different judgment entry. This Court has previously
recognized that where there is no reasonable ground in law or fact for a reversal, the expenditure
of this state’s judicial resources can serve no valid purpose. In re K.D., 9th Dist. Wayne No.
06CA0027, 2006-Ohio-4730, ¶ 15. “‘While citizens have a right of access to our nation’s courts,
they do not have a right to frustrate the workings of the judicial system or to abuse the judicial
process * * *.’” Id., quoting Stupelli v. Rose, 9th Dist. Lorain No. 95CA006078, 1995 WL 608387,
*2 (Oct. 18, 1995). We further find, based on our review of the itemized invoice submitted, that
the amount of attorney’s fees requested in this matter is reasonable. We therefore exercise our
discretion in this matter and order Mr. Huston to pay Ms. Huston’s reasonable attorney’s fees in
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the amount of $2,690.00 as a sanction for unnecessarily consuming the resources of this Court and
for imposing an improper burden upon Ms. Huston to develop and present her own argument on
appeal. See Cardservice Internatl., Inc. v. Farmer, 9th Dist. Summit No. 24642, 2009-Ohio-3692,
¶ 12; W. Res. Logistics at ¶ 14.
III.
{¶11} Mr. Huston’s assignments of error are all overruled. The judgment of the Summit
County Court of Common Pleas is affirmed. Mr. Huston is ordered to pay Ms. Huston’s attorney’s
fees in the amount of $2,690.00.
Judgment affirmed.
We order that a special mandate issue out of this Court, directing the Court of Common
Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy
of this journal entry shall constitute the mandate, pursuant to App.R. 27.
Immediately upon the filing hereof, this document shall constitute the journal entry of
judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the period
for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is instructed to
mail a notice of entry of this judgment to the parties and to make a notation of the mailing in the
docket, pursuant to App.R. 30.
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Costs taxed to Appellant.
THOMAS A. TEODOSIO
FOR THE COURT
HENSAL, P. J.
CALLAHAN, J.
CONCUR.
APPEARANCES:
DWAYNE HUSTON, pro se, Appellant.
CHARLES M. BUDDE, CHARLES E. GRISI, and GUENNA BOLINGER, Attorneys at Law, for
Appellee.