In re S.S.

[Cite as In re S.S., 2016-Ohio-7328.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
MONTGOMERY COUNTY
IN RE: :
:
S.S. : Appellate Case No. 26997
:
: Trial Court Case No. 2004-3934
:
: (Juvenile Appeal from
: Common Pleas Court)
:
:
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OPINION
Rendered on the 14th day of October, 2016.
...........
T.J.,
Appellant, pro se
HEATHER DUWEL-MEHL, Atty. Reg. No. 0085938, Wright & Schulte,
Attorney for Appellee
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HALL, J.
{¶ 1} The father of the minor child in this case appeals pro se from the judgment
of the juvenile court overruling his objections to the magistrate’s decision denying his
motion to continue the hearing on his motion to modify child support. Upon careful review
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and consideration of father’s brief and oral argument, we affirm.
I. Background
{¶ 2} In this parentage action, Father was ordered to pay child support to Mother,
who has custody of the child, who we will call Stacey1, and was given parenting time. A
few years ago Father moved to the State of Georgia. In March 2015, he filed a motion to
modify child support, as well as an application for child support, claiming that he was
unemployed and had no income. The following May, Mother filed a motion to modify
parenting time. In October, a hearing before a magistrate on both motions was set to be
heard at 9 a.m. on December 15, 2015. At argument, father stated that the December 15,
2015 proceeding was only a pretrial and a full hearing should not have been conducted.
However, we have reviewed the filings and the entry and order setting the December 15,
2015 hearing, which was filed on October 5, 2015, and it clearly states: “The Court orders
that the same be and hereby is set for December 15, 2015 at 9:00AM before Maristrate
John Kolberg,* * * for trial.” (Doc. #11).
{¶ 3} Father did not attend the December 15 hearing. At the start of the hearing,
the magistrate said that Father had telephoned that morning to say that on December 9
he was subpoenaed by a Georgia court to testify in a trial that was to begin on December
14 and was scheduled to last two days. The magistrate said that Father had filed a motion
for a continuance that morning, though after the hearing was scheduled to begin.
(According to the record, it was filed at 9:09 a.m.) The magistrate then overruled Father’s
continuance motion and dismissed his motion to modify child support for failure to
prosecute. The magistrate emphasized that it was dismissing the modification motion
1 We use this pseudonym to protect the minor child’s privacy.
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without prejudice, meaning that Father could always refile it. The hearing then proceeded
on Mother’s motion to modify parenting time. After the hearing, the magistrate sustained
Mother’s motion and ordered that Father could have parenting time with Stacey, who at
the time of the hearing was 17 years old, only if Mother agreed.
{¶ 4} Father filed objections to the magistrate’s decision with the juvenile court. On
December 31, the court overruled the objections because Father had failed to file a
transcript of the hearing.
{¶ 5} Father, who seems genuinely concerned about his daughter’s well-being,
appealed from the judgment overruling his objections.
II. Analysis
{¶ 6} Father’s brief sets out three assignments of error. But as he says in the brief,
“Appellant’s main argument on appeal is that the trial court should have granted him a
continuance rather than conduct a trial hearing in his absence.” Mother did not file a brief.
{¶ 7} “We review the juvenile court’s decision for an abuse of discretion.” (Citation
omitted.) In re J.T., 2d Dist. Montgomery No. 26839, 2016-Ohio-602, ¶ 17. “The term
‘abuse of discretion’ implies that the court’s attitude is unreasonable, arbitrary or
unconscionable.” In re R.L., 2d Dist. Greene No. 2012CA32, 2012-Ohio-6049, ¶ 31, citing
Blakemore v. Blakemore, 5 Ohio St. 3d 217, 219, 450 N.E.2d 1140 (1983). Continuance
decisions are discretionary. State v. Unger, 67 Ohio St. 2d 65, 67, 423 N.E.2d 1078
(1981). While the magistrate here did not give any express reason for overruling Father’s
continuance motion, we see nothing in the record that convinces us that this decision was
unreasonable. Father knew at least six days before the hearing that he might have a
conflict that could interfere with his attendance, yet his written motion was filed at about
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the time the hearing began as was his call to the magistrate. While Father indicates that
he called the court on Friday, December 11th and talked to the bailiff about rescheduling
the hearing, the nature of this communication is not in the record nor is information
indicating that either the magistrate or the trial court was appraised of that call. We could
not fault either the trial court or the magistrate for not earlier considering information of
which they were not aware. Appellant’s written motion does not reference this earlier
telephone call. At argument, we inquired of the Appellant about the Georgia court
appearance that was set for December 14, 2015, the day before the Ohio hearing, and
gave him an opportunity to indicate whether he actually did appear in Georgia Court on
December 14th and 15th, 2015. He failed to indicate whether he did or did not.
{¶ 8} Ultimately we are unable to discern how Appellant has been harmed or what
relief we can now grant. As to Father’s motion to modify child support, Father is free to
refile it, like the magistrate said. Nor do we see prejudice as to Mother’s motion to modify
parenting time. Stacey turned 18 years old on September 27, 2016, meaning that her
minority has terminated, see R.C. 3109.01, and she is no longer a child under the juvenile
code, see R.C. 2151.011(B)(6). Although the obligation of support may continue beyond
the age of majority, see R.C. 3103.031, court control over parenting time does not. So the
issue of parenting time is moot, as Stacey now has the right to decide for herself whether,
and when, she wants to spend time with Father.
{¶ 9} In his brief Father makes (almost ad hominem) allegations against the
magistrate, saying that, for various reasons, the magistrate did not grant a continuance
because he did not want Father at the hearing. Also, Father cites a 20-year-old criminal
case against him as being a reason why the continuance was not granted. We find no
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merit to either of these alleged contentions.
{¶ 10} All of the assignments of error are overruled.
III. Conclusion
{¶ 11} The juvenile court’s judgment is affirmed.
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FAIN, J., and FROELICH, J., concur.
Copies mailed to:
T.J.
Heather Duwel-Mehl
Lori Cicero
Hon. Nick Kuntz