[Cite as In re T.J.D., 2013-Ohio-1991.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 98964
IN RE: T.J.D.
A Minor Child
[Appeal by A.S., Mother]
JUDGMENT:
REVERSED AND REMANDED
Civil Appeal from the
Cuyahoga County Court of Common Pleas
Juvenile Division
Case No. CU 04107697
BEFORE: S. Gallagher, J., Boyle, P.J., and Celebrezze, J.
RELEASED AND JOURNALIZED: May 16, 2013
FOR APPELLANT
A.S., pro se
16410 Scottsdale Blvd.
Shaker Heights, OH 44120
FOR APPELLEE
J.F., pro se
3539 W. 50th Street
Cleveland, OH 44102
Also listed:
For C.J.F.S.
Timothy J. McGinty
Cuyahoga County Prosecutor
By: Joseph C. Young
Assistant Prosecuting Attorney
C.J.F.S.
P.O. Box 93894
Cleveland, OH 44101-5984
SEAN C. GALLAGHER, J.:
{¶1} This cause came to be heard upon the accelerated calendar pursuant to
App.R. 11.1 and Loc.R. 11.1. Appellant A.S., pro se, appeals the decision of the
Cuyahoga County Court of Common Pleas, Juvenile Division, that denied her motion to
enforce visitation. For the reasons stated herein, we reverse the decision of the trial court
and remand the matter for a hearing on the motion.
{¶2} The underlying action is a child custody proceeding. Appellant is the mother
of T.J.D. (“the child”), who was born in June 2003. Paternity was established for the
child’s father. On December 1, 2004, the child’s maternal grandmother filed an
application to determine custody.
{¶3} On August 22, 2005, the trial court issued a judgment entry that designated
the maternal grandmother as the child’s legal custodian, provided visitation for appellant
and the child’s father, and incorporated the terms of a mediated agreement reached by the
parties. On June 26, 2007, appellant filed a motion to modify custody and/or visitation.
After a hearing on December 19, 2007, the court magistrate issued a decision indicating
that appellant had voluntarily dismissed the motion to modify custody.
{¶4} In the meantime, in August 2007, the maternal grandmother obtained a
domestic violence criminal temporary protection order against appellant in the Cleveland
Municipal Court. The child was among those named as a family or household member
protected by the order.
{¶5} On January 11, 2012, the court ordered appellant to pay child support and
adopted the magistrate’s decision on support establishment. On July 10, 2012, appellant
filed a motion to modify custody and/or visitation. Appellant sought custody of the child
and alleged a change in circumstances had occurred in that she was no longer a minor and
that there was possible fraud with regard to earlier proceedings. On July 11, 2012,
appellant filed a “motion to enforce visitation pending modification of custody with [a]
motion to void.” She included a request for a “finding of fact oral hearing.”
{¶6} On July 13, 2012, the court magistrate summarily denied the motion to
enforce and motion to void and referred the motion to modify custody to the court’s
mediation unit. On July 20, 2012, appellant filed a motion to set aside the magistrate’s
order and requested a “finding of fact oral hearing.” The trial court summarily denied
the motion on August 21, 2012. Appellant timely filed this appeal on September 17,
2012.
{¶7} Appellant’s amended assignment of error claims that the trial court abused its
discretion by denying her motion to enforce visitation. She states that visitation was not
an issue until she filed a motion to modify custody and/or visitation. She further claims
in her original brief that the trial court erred in denying her motion without setting forth
findings of fact.
{¶8} A trial court’s decision concerning visitation rights is reviewed for an abuse
of discretion. See Booth v. Booth, 44 Ohio St.3d 142, 144, 541 N.E.2d 1028 (1989). An
abuse of discretion implies an attitude that is unreasonable, arbitrary or unconscionable.
Id., citing Blakemore v. Blakemore, 5 Ohio St.3d 217, 450 N.E.2d 1140 (1983).
{¶9} Appellant’s pro se motion to enforce visitation specifically included a request
for a finding of fact oral hearing. While her motion may have been inartfully worded, it
is evident that appellant sought to present evidence at a hearing on her motion and to have
the court issue findings of fact. While we have found no authority that mandates a
hearing on such a motion, we note that had appellant filed a motion to show cause, R.C.
2705.05(A) mandates a hearing in contempt proceedings. See In re Gruber, 11th Dist.
No. 2007-T-0001, 2007-Ohio-3188, ¶ 12-14. Additionally, Juv.R. 40(D)(3)(a)(ii) and
Civ.R. 53(D)(3)(a)(ii) require that a magistrate’s decision include findings of fact when
timely requested by a party. Further, Juv.R.40(D)(4)(d) and Civ.R. 53(D)(4)(d) permit a
court to hear additional evidence when the party objecting to a magistrate’s decision
could not, with reasonable diligence, have produced that evidence for consideration by
the magistrate.
{¶10} In this case, the magistrate summarily ruled on appellant’s motion, without
including any findings of fact. Upon objecting to the magistrate’s decision, appellant
again requested a “finding of fact oral hearing.” Again, her motion was summarily
denied. At no point did the trial court afford appellant the opportunity to present
evidence in support of her motion or set forth findings to support its decision. At a
minimum, the magistrate, or the court in ruling on the objections, should have set forth
findings to support the court’s decision.
{¶11} While the record reflects that a criminal temporary protective order was
obtained against appellant in a separate proceeding in 2007, it does not appear that the
trial court addressed this order with the parties, nor did the court set this forth as a basis
for its ruling. Further, appellant represents that visitation with the child did not become
an issue until she filed for modification of custody. Because we have an inadequate
record before us, we cannot conduct a meaningful review in the matter.
{¶12} Under the circumstances herein, we find the trial court abused its discretion
by summarily denying appellant’s motion to enforce visitation. We remand the matter to
the trial court for a hearing on the motion. The trial court may consider the motion to
enforce visitation in conjunction with the hearing on appellant’s pending motion to
modify custody and/or visitation, and the trial court is instructed to expedite resolution of
the matter.
{¶13} Judgment reversed, and case remanded.
It is ordered that appellant recover from appellee costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the common
pleas court to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.
SEAN C. GALLAGHER, JUDGE
MARY J. BOYLE, P.J., and
FRANK D. CELEBREZZE, JR., J., CONCUR
In re T.J.D.
Combined Opinion