[Cite as Burke v. French, 2015-Ohio-4558.]
COURT OF APPEALS
KNOX COUNTY, OHIO
FIFTH APPELLATE DISTRICT
DONALD BURKE, et al., : JUDGES:
: Hon. W. Scott Gwin, P.J.
Plaintiffs - Appellees : Hon. Patricia A. Delaney, J.
: Hon. Craig R. Baldwin, J.
-vs- :
:
JAMIE M. FRENCH, et al., : Case No. 15CA8
:
Defendants - Appellants : OPINION
CHARACTER OF PROCEEDING: Appeal from the Knox County Court
of Common Pleas, Juvenile Division,
Case No. 212-3155
JUDGMENT: Affirmed
DATE OF JUDGMENT: November 2, 2015
APPEARANCES:
For Plaintiffs-Appellees For Defendant-Appellant Jamie French
HARLOW H. WALKER D. DERK DEMAREE
120 1/2 East High Street 205 E. Chestnut Street
Mount Vernon, Ohio 43050 POB 766
Mount Vernon, Ohio 43050
Knox County, Case No. 15CA8 2
Baldwin, J.
{¶1} Appellant Jamie M. French appeals a judgment of the Knox County
Common Pleas Court, Juvenile Division, overruling her motion to modify a court order as
to counseling. Appellees are Donald and Susan Burke.
STATEMENT OF FACTS AND CASE
{¶2} Q.B., a minor child, was born on May 8, 2008 to appellant. Appellees are
appellant's parents and the grandparents of the child . On November 8, 2012, appellees
filed a complaint for grandparent visitation pursuant to R.C. 3109.12.
{¶3} On June 4, 2013 the parties filed a joint Memorandum of Agreement. The
handwritten agreement stated that the parties "shall pursue counseling with Jeannette
Hammond (or another qualified clinician) to work on interpersonal & historical matters
between themselves, and on matters concerning [Q.B.]'s best interests."
{¶4} The agreement was signed and approved by the magistrate on June 4,
2013.
{¶5} On August 9, 2013, appellees filed a Motion to Show Cause, alleging that
appellant failed to comply with the court order on three bases: denial of companionship
time, video recording of companionship time, and failure to pursue counseling. A show
cause hearing was scheduled for September 19, 2013.
{¶6} On September 24, 2013, a Magistrate's Decision was filed. The findings of
fact stated that appellant "unilaterally discontinued counseling with Jeannette Hammond
due to differences with the counselor." The magistrate found appellant in contempt of the
court order due to her denial of companionship, videotaping of the exchange, and
discontinuance of counseling. Appellant was ordered to serve a jail term of 30 days, with
Knox County, Case No. 15CA8 3
5 of those days being “actual incarceration for violation of the prohibition regarding
videotaping or recording, an act of criminal contempt for which no purge condition is
possible.” On January 9, 2014, the trial court filed a Judgment Entry reducing appellant's
jail time to 2 days, noting “[w]hile the Court cannot and will not tolerate direct
disobedience of its orders, the punishment must fit the nature and extent of the offense.”
{¶7} This Court affirmed the contempt finding, holding in pertinent part, "The trial
court's decision finding appellant in contempt is not unreasonable, arbitrary, or
unconscionable because it is evident from her own admissions Mother did not abide by
the terms of the agreement and sought to hold Grandparents to terms not included in the
parties' agreement. Mother has essentially attempted to re-write the terms of the
agreement to her own ends, thereby overriding the terms and spirit of the agreement and
flouting the authority of the Court." Burke v. French, 5th Dist. Knox No. 14CA1, 2014-
Ohio-3217, ¶27.
{¶8} On December 16, 2014, appellant filed a motion to modify the court order as
to counseling. She alleged that the counselor had not been receptive to information
provided by the parties, and asked to have a different counselor selected. The magistrate
overruled the motion, finding that appellant failed to demonstrate any bias on the part of
the counselor.
{¶9} The court held an evidentiary hearing on appellant's objections to the
magistrate's decision. The court entered judgment overruling the objections and entering
judgment in accordance with the magistrate's decision.
{¶10} Appellant assigns a single error on appeal:
Knox County, Case No. 15CA8 4
{¶11} "THE JUDGMENT OF THE TRIAL COURT WAS AGAINST THE
MANIFEST WEIGHT OF THE EVIDENCE."
{¶12} A judgment supported by some competent, credible evidence going to all
the essential elements of the case will not be reversed as against the manifest weight of
the evidence. C.E. Morris Co. v. Foley Construction Company, 54 Ohio St.2d 279, 376
N.E.2d 578, syllabus (1978). As the trier of fact is in the best position to view the
witnesses and their demeanor, in making a determination that a judgment is against the
manifest weight of the evidence, this Court must indulge every reasonable presumption in
favor of the lower court's judgment and findings of fact. Shemo v.. Mayfield Hts., 88 Ohio
St.3d 7, 10, 722 N.E.2d 1018 (2000).
{¶13} Appellant testified at the hearing that she felt her concerns were not
important to the counselor, Jeanette Hammond, and that issues she raised were "brushed
off." Appellant in particular sought to discuss her son being exposed to cigarette smoke
during visits, and testified that the counselor told her she was an ex-smoker and knows
how the smell of smoke can get on clothing. She also was concerned that she did not
receive a response to issues she raised in emails to Hammond.
{¶14} Jeanette Hammond testified that she only met with appellant four times:
three times either individually or with appellant's husband, and once in 2014 with all
parties present. She testified that she believed they could move forward if all parties had
more sessions with her, but she had experienced scheduling problems with appellant.
She testified that she addressed appellant's concerns with her father smoking and
drinking in front of the child at the meeting between all the parties. She further testified
that she had not had an opportunity to move the parties beyond what has happened in
Knox County, Case No. 15CA8 5
the past because she only had one session with all the parties present. She
acknowledged receipt of appellant's email regarding appellant's concern that she sided
with appellees on the issue of smoking because she was an ex-smoker, and testified that
she did not like to address specific counseling issues by email and would address such
matters at the next meeting.
{¶15} The trial court did not err in overruling appellant's motion to remove the
counselor. The counselor had only had one meeting with all parties present. The fact
that the counselor formerly smoked and expressed that to appellant is not sufficient
demonstration of bias against appellant to discontinue counseling after a single meeting.
The counselor testified that she felt the parties could possibly move forward if all parties
had more sessions with her, both individually and jointly.
{¶16} The assignment of error is overruled. The judgment of the Knox County
Common Pleas Court, Juvenile Division, is affirmed. Costs are assessed to appellant.
By: Baldwin, J.
Gwin, P.J. and
Delaney, J. concur.