Beard v. Bloomfield

[Cite as Beard v. Bloomfield, 2012-Ohio-2133.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
WYANDOT COUNTY
DAMIAN BEARD,
PLAINTIFF-APPELLEE,
v. CASE NO. 16-11-09
BRENDA BLOOMFIELD,
DEFENDANT-APPELLANT,
-and-
OPINION
WYANDOT COUNTY JOB AND
FAMILY SERVICES, ET AL.,
DEFENDANTS-APPELLEES.
Appeal from Wyandot County Common Pleas Court
Juvenile Division
Trial Court No. I 2103032
Judgment Affirmed
Date of Decision: May 14, 2012
APPEARANCES:
John C. Filkins for Appellant
Dennis E. Pfiefer for Appellee, Damian Beard
Case No. 16-11-09
WILLAMOWSKI, J.
{¶1} Defendant-Appellant, Brenda Bloomfield (“Brenda” or “the Mother”),
appeals the judgment of the Wyandot County Court of Common Pleas, Juvenile
Division, designating Plaintiff-Appellee, Damian Beard (“Damian” or “the
Father”) as the residential parent of the unmarried couple’s young daughter, and
assigning other parental rights and responsibilities. On appeal, Brenda contends
that the trial court erred: in admitting a supplemental guardian ad litem report into
evidence after the conclusion of the hearing; in awarding custody to the Father; in
not providing the Mother with additional parenting time; and, when the judge did
not recuse herself due to an alleged conflict. For the reasons set forth below, the
judgment is affirmed.
{¶2} Damian and Brenda are the parents of a young daughter, Riley, who
was born in January of 2009. The parties were never married, although they were
in a relationship and resided together in a home they both owned in Carey, Ohio,
along with Riley and Brenda’s two children from a previous marriage. Paternity
was not in dispute, and both parties acknowledged Damian was the father of Riley.
The parties’ relationship was very tumultuous, and Damian vacated the home in
March of 2010, while Riley remained in the parties’ home with Brenda.
{¶3} On July 30, 2010, Damian filed a complaint requesting that he be
named the residential parent and legal custodian of Riley. Brenda filed an answer
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wherein she requested that she be named residential parent and legal custodian. A
CASA Guardian Ad Litem (“GAL”), June Hess, was appointed for Riley. A
hearing for temporary orders was held, and on September 23, 2010, Brenda, who
had been caring for Riley since the separation, was named the temporary
residential parent and legal custodian. Damian was afforded the standard
parenting time.
{¶4} The conflicts between the parties continued after the separation, with
allegations that Damian tried to kick in the doors to the home, and that Brenda
might be suicidal and was not in touch with reality. Both parties raised concerns
about Riley’s care and well-being when with the other parent. During the
pendency of the case, both parties alleged domestic violence and filed petitions for
civil protection orders.
{¶5} A final hearing was held before a magistrate on December 14, 2010
and February 9, 2011. At the hearing, the trial court heard testimony from Brenda,
Damian, Damian’s father and mother, Brenda’s father, Brenda’s boyfriend,
Kimberly (a friend/roommate of Brenda), a police sergeant who had been called to
Brenda’s residence, and the GAL.
{¶6} The GAL filed her report on December 5, 2010, and both parties had
the opportunity to review it before the hearing. The GAL testified at the final
hearing on February 9, 2011, and both parties cross-examined her. The GAL’s
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report was detailed and involved numerous interviews with relatives, friends, and
various professionals, along with a review of correspondence, and psychological
reports and evaluations. The GAL’s conclusions were:
In the GAL’s opinion, Riley will be in a better environment with her
father, Damian Beard. Damian is very attentive to Riley’s every
need engaging her in outside activities, fresh air, and age-appropriate
play. The GAL witnessed where Riley likes to be held and read to in
a rocking chair in Damian’s living room. Although the ‘farm’ house
is not updated, all necessities are available on the first floor of the
residence. Damian has a more positive, stable outlook in the GAL’s
opinion. Brenda is very “emotionally charged” and has shown
instability in choosing male companions and frequent moving.
Brenda does not acknowledge any of her faults in relationships with
male companions or others, but rather blames her life’s happenings
on someone else.
(GAL 12/7/10 Report.) The report recommended that Damian be named the
residential parent and legal custodian. It recommended that Brenda have the
standard parenting visitation time with Riley, but that she also engage in
counseling until successfully released by the counselor. (Id.) The GAL again
stated this recommendation at the hearing, and also testified that she found Brenda
to be uncooperative, untruthful and unstable. (Trans. Vol. 2, pp. 52-55)
{¶7} The parties stipulated that the GAL report be placed “under seal” and
submitted to the trial court for review and consideration along with documents
provided by Wyandot County Job and Family Services. The trial court received
results of the psychological testing that had been ordered and these documents
were placed in the trial court’s “Social File” and were not subject to public
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inspection. Brenda objected to the trial court using the results of the MMPI
psychological testing done on her. (Mag. Dec., p. 2) Both parties submitted
various exhibits, but these were objected to and none of the exhibits were admitted
into evidence.
{¶8} Subsequent to the hearing, the GAL submitted a “Supplemental
Report” on March 16, 2011, stating that she “must amend my previously
submitted report and take out the information about Mother’s current residence.
At minimum, I must supplement the report to indicate that I have NO knowledge
as to Mother or Riley’s current living environment. My previous recommendation
remains the same, only stronger.” (3/16/11 GAL Suppl. Rpt.) Attached was an
affidavit stating that on March 7, 2011, she had received information that Brenda
had vacated her residence; that she was unable to locate a new address for Brenda;
and that on March 15, 2011, she went to the residence and observed that it had
been vacated, with all of the furniture, toys, clothes and food removed. (Id.) She
further attested that “I do not know where or with whom Riley is residing except
when she is with Mr. Beard.” (Id.)
{¶9} On March 22, 2011, the magistrate filed a lengthy and detailed report
containing findings of fact and conclusions of law along with her
recommendations. The magistrate concluded that it would be in Riley’s best
interest that Damian should be designated the residential parent and legal
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custodian. The magistrate recommended that Brenda have standard parenting time
with Riley.
{¶10} On March 30, 2011, the trial court filed an Interim Order, approving
and adopting the magistrate’s decision in its entirety and ordering that its terms
and conditions take effect. Extensions of time were granted for the filing of
objections, pending receipt and review of the transcript of proceedings.1 The
Interim Orders were extended several times before the final judgment entry.
{¶11} On May 6, 2011, Damian requested that the trial court modify
companionship, asking that Brenda’s companionship with Riley be supervised
through Patchworks House. Damian alleged that on March 16, 2011, Brenda
pointed a loaded 357 Magnum at him (and at law enforcement officers who had
responded) while she was holding Riley. Thereafter, on April 26, 2011, Damian
was granted a 5-year Domestic Violence Civil Protection Order (“CPO”) by Judge
Kelbley in Wyandot County Domestic Relations Case 11-DR-0026. Riley was
also named a protected person under this CPO. Damian further requested that the
trial court interview the GAL relative to this matter. Brenda filed a motion in
opposition.
{¶12} On May 10, 2011, the trial court filed a judgment entry in response to
these motions, stating that a hearing on the motions should be scheduled at the
1
Brenda’s original attorney withdrew subsequent to the final hearing, and Brenda obtained new counsel.
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earliest possible time because: (1) the CPO contained contradictions within it,
namely, it granted Brenda visitation with Riley pursuant to the magistrate’s
decision and yet, it also stated that Brenda was not to be within 500 feet of the
protected persons, which included Riley; and, (2) if the GAL has information that
is pertinent to the motion, then “due process demands that she be called as a
witness and subject to cross examination.” (May, 10, 2011 J.E.) A full-day
hearing was set for July 12, 2011 before the magistrate.
{¶13} On August 2, 2011, after receiving and reviewing all of Brenda’s
numerous objections, and Damian’s response, the trial court overruled almost all
of the objections.2 The trial court adopted the magistrate’s decision and made it an
order of the court.
{¶14} The trial court filed its final judgment entry on August 17, 2011.3
This judgment designated Damian as the residential parent and legal custodian of
Riley. Brenda was awarded standard parenting time consistent with the local
rules, and was ordered to pay child support.
2
The trial court noted that the few objections that were sustained were inconsequential in nature and did
not affect the court’s determination of the appropriateness of the magistrate’s decision.
3
The magistrate’s decision on the motion to modify parenting time was also filed on August 17, 2011,
reporting the magistrate’s findings of fact, conclusions of law, and recommendations as a result of the July
12, 2011 hearing on Damian’s motion to modify parenting time. The magistrate recommended that
Brenda’s parenting time with Riley be at Patchworks House, under Level 2 supervision. (See Aug. 17,
2011 Mag. Dec.) No objections were filed, and this decision was later adopted and made an order of the
court. (See Sept. 7, 2011 Judgment Entry)
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{¶15} It is from the trial court’s August 17, 2011, final judgment entry that
Brenda brings this appeal, raising the following four assignments of error for our
review.
First Assignment of Error
The trial court erred in admitting into evidence, and relying
upon, the supplemental guardian ad litem report that was filed
after the final hearing because the report did not comply with
Superintendence Rule 48 and the report violated [the Mother’s]
due process rights.
Second Assignment of Error
The trial court’s award of custody to [the Father] was against
the manifest weight of the evidence and not in the best interest of
the minor child.
Third Assignment of Error
The trial court’s award of standard parenting time to [the
Mother] was against the manifest weight of evidence and not in
the best interest of the minor child.
Fourth Assignment of Error
The trial court erred as a result of Judge Kathleen A. Aubry’s
failure to recuse herself in the present case after she already
recused herself from a companion case between the same two
parties upon the basis that a conflict existed.
First Assignment of Error – Supplemental GAL Report
{¶16} In the first assignment of error, Brenda complains that the
supplemental GAL report contained new facts and evidence that were not testified
to at the hearing in this case, and yet they were mentioned and relied upon in the
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magistrate’s decision. She cites several cases wherein it was considered reversible
error when the parties did not have the opportunity to cross-examine a GAL about
information submitted in a report.
{¶17} A GAL is appointed to investigate the child’s situation in order to
make a recommendation to the court regarding the child's best interest. R.C.
3109.04(C); Ferrell v. Ferrell, 7th Dist. No. 01AP0763, 2002-Ohio-3019, at ¶ 43,
citing In re Baby Girl Baxter, 17 Ohio St.3d 229, 232 (1985). However, the
ultimate decision is for the trial judge and not a representative of the children.
Warnecke v. Warnecke, 3rd Dist. No. 12-2000-10, 2001-Ohio-2135. The
magistrate, as the trier of fact, is presumed to be capable of both weighing the
credibility of the GAL and disregarding any inadmissible findings in the report.
Brunip v. Nickerson, 7th Dist. No. 07 CO-42, 2008-Ohio-5052, ¶ 65. The court's
consideration of a GAL's report does not violate any party's due process rights as
long as the party had an opportunity to cross-examine the GAL on issues raised in
the report. In re Hoffman, 97 Ohio St.3d 92, 2002-Ohio-5368, at ¶ 25.
{¶18} Brenda relies upon the Ohio Supreme Court’s holding in the case of
In re Hoffman and its progeny in support of her position. In Hoffman, the Ohio
Supreme Court held that, “[i]n a permanent custody proceeding in which the
guardian ad litem's report will be a factor in the trial court's decision, parties to the
proceeding have the right to cross-examine the guardian ad litem concerning the
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contents of the report and the basis for a custody recommendation.” Id. at the
syllabus.4 The Court further held that “without these safeguards, there are no
measures to ensure the accuracy of the information provided and the credibility of
those who made the statements.” Id. at ¶ 25.
{¶19} However, Hoffman is distinguishable in at least two important
aspects: (1) the parties in Hoffman were denied any opportunity to question or
cross-examine the GAL; and, (2) the case involved a permanent custody
proceeding and the termination of parental rights. All of the other cases cited by
Brenda in support of her opinion also involved permanent custody proceedings.
{¶20} In a case involving a change of custody between the two parents,
similar to the case before us today, the Eleventh District Court of Appeals found
that Hoffman was distinguishable and not applicable. See Jackson v. Herron, 11th
Dist. No. 2003-L-145, 2005-Ohio-4046. In Jackson, the court of appeals found
that: “Hoffman was a permanent custody proceeding, i.e. a proceeding to
permanently terminate a parent's fundamental right to the care and custody of their
children. Such proceedings have infamously been referred to as ‘the family law
equivalent of the death penalty.’ In re Hayes, 79 Ohio St.3d 46, 48, (1997)
(citation omitted).” Jackson at ¶ 20. The procedural protections are not as critical
in a proceeding concerning the determination of which parent will be the child’s
4
The Supreme Court was resolving a certified question concerning the application of R.C. 2151.414(C),
pertinent to permanent custody proceedings.
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“residential parent and legal custodian,” as “custody orders are ‘of temporary
nature * * * and never final,’” and the other parent will still enjoy visitation with
the child and will bear the responsibility of participating in the child’s upbringing.
Id. But see, Allen v. Allen, 11th Dist. No. 1009-T-0070, 2010-Ohio-475, ¶¶ 34-40
(finding support for the application of Hoffman outside of permanent custody
proceedings, in addition to discussing cases which have found Hoffman to be
factually distinguishable and not applicable.)
{¶21} While the better procedure would have been to either ignore the
supplemental report or to have allowed for a renewed cross-examination of the
GAL concerning the amended information, we do not find that the submission of
the supplemental report in this case was in any way prejudicial or that it affected
the outcome of the proceedings for the following reasons. The information
provided was merely an informative, factual statement updating information
concerning the address/location of the Mother and child, and did not change the
GAL’s recommendation. The original report had already stated that the Mother
had a history of moving frequently and recommended that the Father be appointed
the residential parent. The parties had ample opportunity to question the GAL as
to her findings and recommendations at the hearing during direct, cross, redirect
and re-cross examinations. (Tr. Vol. II, pp. 42-158) And, the trial court indicated
that it was fully aware of its duty to protect the parties’ rights, when it refused to
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have any communication with the GAL, or consider any significant new facts or
modification of her position, without giving the parties the opportunity for a
hearing and cross-examination. (See May 10, 2011 J.E.).
{¶22} Furthermore, a follow-up hearing was held on July 12, 2012.
Although it originally appeared as if the GAL would testify at this hearing, only
the two parents were witnesses. The magistrate’s decision sets forth the following
findings concerning the testimony at this hearing, which was held before the final
judgment entry:
At the time of the last hearing, [Brenda] indicated she resided at the
address of 5796 Township Highway 103, Carey, Ohio. [Damian]
believed [Brenda] had vacated that residence. That property is in
[Damian] and [Brenda’s] name jointly. [Brenda] did not notify
[Damian] of a change in address. [Damian] believed [Brenda]
vacated the premises as there was no heat on in the premises and it
appeared “ransacked” with clothing strewn about and rooms stripped
of furniture. Also, there were kitchen appliances missing. [Brenda]
admitted to not staying at that residence and described her living
arrangements on March 16, 2011 as “in the process of moving to
Bluffton.”
(Emphasis added.) (Aug. 17, 2011 Mag. Dec., p. 2) After this hearing, Brenda did
file an “Intent to Relocate” on August, 3, 2011, stating that she was moving from
the Carey, Ohio address to Bluffton.5 Therefore, the information that Brenda
objects to in the GAL’s amended report was before the trial court prior to the final
judgment in this case, as a result of Brenda’s own testimony.
5
Although the date listed for this move was represented to be “approx. 5-16-2011.”
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{¶23} Based on the above, if there was any error in the submission of the
GAL’s supplemental report, we find that it was harmless error and did not provide
any information that was not already substantiated by Brenda prior to the final
judgment entry. There was no prejudice to Brenda. See, Mackowiak v.
Mackowiak, 12th Dist. CA 2010-04-001, 2011-Ohio-3013, ¶ 78 (finding that the
juvenile court's failure to permit mother to cross-examine the GAL was not
prejudicial to mother).
{¶24} Brenda’s complaint that she did not have the opportunity to cross-
examine the GAL as to the accuracy of the supplemental report was rendered moot
when she herself confirmed the accuracy of the report. The first assignment of
error is overruled.
Second Assignment of Error – Custody to Father Against Manifest Weight
{¶25} In her second assignment of error, Brenda contends that the trial
court’s decision to name Damian as the residential parent was against the manifest
weight of the evidence and was not in the best interest of the child. Brenda
maintains that when the evidence is applied to the statutory factors, the decision
should have been in favor of Brenda being named the residential and custodial
parent.
{¶26} R.C. 3109.04(B)(1) requires a trial court to consider a child's best
interests when the trial court allocates parental rights. To determine a child's best
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interests, a trial court must consider the non-exclusive list of factors set forth in
R.C. 3109.04(F)(1). Fricke v. Fricke, 3d Dist. No. 1-06-18, 2006-Ohio-4845, ¶ 7.
R.C. 3104.04(F)(1) states that the court shall consider all relevant factors,
including, but not limited to:
(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;
(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;
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(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; * * *
(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.
A trial court is not limited to the listed factors in R.C. 3109.04(F), but may
consider any other relevant factors in making a determination of child custody.
Shaffer v. Shaffer, 3d Dist. No. 11-04-22, 2005-Ohio-3884, ¶ 20.
{¶27} A trial court has broad discretion in allocating parental rights, and its
decision will not be disturbed on appeal absent an abuse of discretion. Id. at ¶ 10,
citing Davis v. Flickinger, 77 Ohio St.3d 415, 418 1997-Ohio-260; Siefker v.
Siefker, 3d Dist. No. 12–06–04, 2006–Ohio–5154, ¶ 4. An abuse of discretion is
more than an error of judgment; it implies that the trial court's attitude was
unreasonable, arbitrary, or unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d
217, 219 (1983). When applying the abuse of discretion standard, a reviewing
court may not simply substitute its judgment for that of the trial court. Berk v.
Matthews, 53 Ohio St.3d 161, 169 (1990). Furthermore, a reviewing court will not
reverse an award of custody that is supported by a substantial amount of
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competent, credible evidence as being against the weight of the evidence. Bechtol
v. Bechtol, 49 Ohio St.3d 21, 23, (1990).
{¶28} The magistrate set forth the facts before the trial court and carefully
analyzed each applicable factor in 3104.04(F)(1) before making her
recommendations. While Brenda is correct in that the facts pertaining to several
of the factors were either neutral, or positive to Brenda, the trial court’s findings as
to the significant factors (e), (f), and (j) weighed heavily against Brenda. The
magistrate’s report stated:
(5) The mental health of both parents is concerning, with there
being more concern about [Brenda’s] mental health than [Damian’s].
[Damian] is an alcoholic, currently sober, without any structured
support. [Brenda] will not allow the Guardian Ad Litem to talk to
her longtime counselor, has an invalid MMPI due to invalid
responses, blames others for all the wrongs in her life, continues to
enter relationships with “abusive” men. [Brenda] subjects her
children to these abusive relationships. As a result of the abuse, real
or imaginary, the children have been uprooted and moved. [Brenda]
is not truthful [with Dr. McIntyre] * * *. [Brenda] also was
uncooperative with the Guardian Ad Litem. [Brenda] has told JFS
that she can smell cancer and she has cured her son of cancer.
[Brenda] has taken pictures of the child’s genitalia, and of her person
on numerous occasions. The continuation of this behavior may have
a negative impact on the emotional well being of the child.
(6) [Brenda] has denied parenting time to [Damian] prior to the
Court Order. * * *
(8) [Brenda] has threatened to move, to Georgia, when she is upset
with [Damian]. * * *
(9) [Brenda] moves from relationship to relationship seemingly
without pause. She has subjected her children to various men, all of
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which [Brenda] claims are abusive. She calls her children
demeaning names. She gets physical with her children. * * *
(Mar. 22, 2011 Mag. Dec., pp. 19-21)
{¶29} In determining the best interest of a child under R.C. 3109.04(F)(1),
the court has discretion in determining which factors are relevant. Hammond v.
Harm, 9th Dist. No. 23993, 2008-Ohio-2310, ¶ 51. The factors are merely to
provide guidance for the trial court in determining what is in the child’s best
interest, and each factor may not necessarily carry the same weight or have the
same relevance, depending upon the facts before the trial court.
{¶30} Given the seriousness of some of the factors that weighed against the
trial court finding that Brenda should be the custodial parent, we do not find that
the trial court abused its discretion, or that the decision was against the manifest
weight of the evidence. Based on the above, the second assignment of error is
overruled.
Third Assignment of Error – Parenting Time
{¶31} Brenda asserts that the trial court erred in analyzing the factors under
R.C. 3109.051 in addressing parenting time for the non-residential parent. Brenda
particularly believes she should have been granted more parenting time with Riley
because she is currently unemployed and is available to watch Riley while Damian
works.
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{¶32} The trial court’s establishment of a non-residential parent's visitation
rights is within its sound discretion, and will not be disturbed on appeal absent a
showing of an abuse of discretion. Fordham v. Fordham, 3rd Dist. No. 8–08–17,
2009–Ohio–1915, ¶ 18, citing Appleby v. Appleby, 24 Ohio St.3d 39, 41 (1986).
As stated above, an abuse of discretion connotes that the trial court's attitude was
unreasonable, arbitrary or unconscionable. Blakemore v. Blakemore, supra.
Additionally, the trier of fact is in the best position to observe the witnesses, weigh
evidence, and evaluate testimony. Clark v. Clark, 3d Dist. No. 14-06-56, 2007-
Ohio-5771, ¶ 23, citing In re Brown, 98 Ohio App.3d 337 (1994).
{¶33} Pursuant to R.C. 3109.051(D), the trial court shall consider the
fifteen factors enumerated in the statute, and in its sound discretion determine
visitation that is in the best interest of the child. Braatz v. Braatz, 85 Ohio St.3d
40, 44, 1999-Ohio-203; See, generally, Booth v. Booth, 44 Ohio St.3d 142, 144
(1989). As it did with the factors in R.C. 3104.04(F) in determining the residential
parent, the trial court again listed the facts that were relevant to the applicable
factors under R.C. 3109.051(D). Similar to what was found in the previous
assignment of error, some of the factors were neutral or were not applicable.
However, of particular concern to the trial court in this case were the following
factors in R.C. 3109.051(D):
(7) The health and safety of the child;
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***
(9) The mental and physical health of all parties;
(10) Each parent's willingness to reschedule missed parenting time
and to facilitate the other parent's parenting time rights, and with
respect to a person who requested companionship or visitation, the
willingness of that person to reschedule missed visitation;
***
(14) Whether either parent has established a residence or is planning
to establish a residence outside this state;
***
(16) Any other factor in the best interest of the child.
{¶34} The magistrate listed the following concerns as applicable to the
above statutory factors.
The health and safety of the child is a troubling concern as it relates
to the mental health of [Brenda]. * * *
[Brenda] does not appear willing to facilitate a relationship between
[Damian] and the child. She has called [Damian] the devil, and
stated God cursed her with a child with [Damian]. [Brenda’s] oldest
child is filled with hate for his father. There was no indication
[Brenda] would not encourage Riley to hate her father as well. * * *
[Brenda] does harmful things to her children when she is mad. She
calls her teenage son names, like retarded, stupid and a dumb ass,
and deliberately smokes around them all when she is mad. When
she was mad at [Damian] she threatened to move his daughter to
Georgia.
(Mar. 22, 2011 Mag. Dec., pp. 21-22)
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{¶35} While a child’s best interest might sometimes be better served by
spending extra time with a non-working, non-residential parent while the custodial
parent is at work, that is not always the case. Again, given the seriousness of the
negative factors in this case, we do not find that the trial court abused its discretion
in limiting the amount of parenting time Brenda has with the child. Based on the
above, the third assignment of error is overruled.
Fourth Assignment of Error – Recusal of Judge
{¶36} In the final assignment of error, Brenda submits that because Judge
Kathleen Aubry recused herself from Case #11-DR-0026 (see ¶ 11 above) wherein
Damian requested a CPO, she should have recused herself from all companion
cases pending before her between the same parties. Because Brenda claims that
Judge Aubry is “conflicted” from presiding over this case, and Judge Aubry
appoints her magistrate, she contends that Magistrate O’Connell also has a conflict
and lacked jurisdiction to hear the evidence in this case.
{¶37} Brenda has not provided any specific facts as to why Judge Aubry
might have a conflict with this case, nor does she provide any case law or any
citations to the record indicating that Judge Aubry would have a conflict in this
case. Damian represents that the reasoning behind Judge Aubry’s recusal in the
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companion case was because of a conflict that was of very short duration and not
applicable to the case at bar.6
{¶38} The statute governing disqualification of a judge of common pleas
court provides the exclusive means by which a litigant may claim that a common
pleas court judge is biased and prejudiced, warranting recusal. R.C. § 2701.03;
Jones v. Billingham, 105 Ohio App.3d 8, 11 (2d Dist.1995). R.C. 2701.03 sets
forth the proper procedures and states that:
(A) If a judge of the court of common pleas allegedly is interested
in a proceeding pending before the court, allegedly is related to or
has a bias or prejudice for or against a party to a proceeding pending
before the court or a party's counsel, or allegedly otherwise is
disqualified to preside in a proceeding pending before the court, any
party to the proceeding or the party's counsel may file an affidavit of
disqualification with the clerk of the supreme court in accordance
with division (B) of this section.
The record does not reflect that Brenda has followed the statutory procedures.
{¶39} Furthermore, an appellate court does not have the authority to review
an assignment of error claiming that a judge is biased or prejudiced. Wiltz v. Clark
Schaefer Hackett & Co., 10th Dist. Nos. 11AP-64, 11AP-282, 2011-Ohio-6664, ¶
9. The Chief Justice of the Supreme Court of Ohio, or his designee, has exclusive
jurisdiction to determine a claim that a common pleas judge is biased or
6
In his Appellee’s Brief, Damian represents that Brenda filed a complaint against Judge Aubry and Sheriff
Hetzel in the Upper Sandusky Municipal Court under case number CVI 1100029, just prior to Damian
filing his petition for a CPO against Brenda. Damian claims Aubry recused herself from the CPO case due
to the existence of a conflict. However, Brenda’s complaint against the judge and sheriff was dismissed
shortly thereafter on April 6, 2011.
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Case No. 16-11-09
prejudiced. Id.; Section 5(C), Article IV, Ohio Constitution. Beer v. Griffith, 54
Ohio St.2d 440, 441 (1978); Fazio v. Gruttadauria, 8th Dist. No. 90562, 2008-
Ohio-4586, ¶ 25.
{¶40} Brenda has not alleged any reasons why the judge in the trial court
should have recused herself, nor has she followed any of the correct procedures to
pursue this matter if there was any basis for her claim. Furthermore, this Court is
without jurisdiction to rule upon this matter. The fourth assignment of error is
overruled.
{¶41} Having found no error prejudicial to the Appellant herein in the
particulars assigned and argued, we affirm the judgment of the trial court.
Judgment Affirmed
SHAW, P.J. and ROGERS, J., concur.
/jlr
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