[Cite as In re C.W., 2018-Ohio-5265.]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF LORAIN )
In Re: C.W. and B.W. C.A. Nos. 16CA011044
17CA011162
17CA011165
APPEAL FROM JUDGMENT
ENTERED IN THE
COURT OF COMMON PLEAS
COUNTY OF LORAIN, OHIO
CASE No. 10JG30837
DECISION AND JOURNAL ENTRY
Dated: December 28, 2018
SCHAFER, Presiding Judge.
{¶1} Defendant-Appellant/Cross-Appellee, Lindsey E. Eberhardt, appeals three
separate judgments, entered October 14, 2016, June 5, 2017, and June 7, 2017, in the Lorain
County Court of Common Pleas, Juvenile Division. Plaintiffs-Appellees/Cross-Appellants,
Melva Sherwood and Scott Sherwood (collectively, the “Sherwoods”), appeal the June 7, 2017
judgment entry. For the reasons that follow, we affirm in part, reverse in part, and remand.
I.
{¶2} Ms. Eberhardt is the mother of two minor children born to her and father, Andrew
Weaver. C.W. was born October 3, 2007. B.W. was born June 3, 2009. Ms. Eberhardt and Mr.
Weaver were unmarried at the birth of both children.
2
{¶3} Melva Sherwood, Mr. Weaver’s mother, is the paternal grandmother of C.W. and
B.W. Scott Sherwood is Melva’s husband, Mr. Weaver’s stepfather, and the paternal step-
grandfather to the children.
{¶4} This matter involves a lengthy and complicated history beginning with the
Sherwoods filing a complaint on September 14, 2010, seeking custody of C.W. and B.W.
pursuant to R.C. 2151.23. The Sherwoods filed contemporaneously an ex parte motion for
emergency temporary custody of the children. The trial court held a hearing on that ex parte
motion and granted temporary custody of the children to the Sherwoods.
{¶5} Ms. Eberhardt reached an agreement with the Sherwoods and entered an agreed
order on October 29, 2010. The agreed order restored Ms. Eberhardt as custodian and returned
the children to her care. The order also set a temporary schedule for the Sherwoods to have
visitation with the children.
{¶6} The Sherwoods filed a motion on May 10, 2011, seeking to establish grandparent
visitation and companionship rights. They sought this visitation in the alternative to an award of
custody. The Sherwoods asserted that they were entitled to visitation, pursuant to R.C. 3109.12,
as the paternal grandparents of the minor children born to Ms. Eberhardt as an unmarried mother.
{¶7} Shortly thereafter, on June 7, 2011, Ms. Eberhardt and Mr. Weaver married. Ms.
Eberhardt and Mr. Weaver filed a motion to dismiss all claims, arguing that, in light of their
status as the married biological parents of C.W. and B.W., the trial court lacked subject matter
jurisdiction. The Sherwoods responded in opposition, asserting that the trial court had
jurisdiction over the pending complaint for custody. Further, the Sherwoods argued that
marriage did not affect the trial court’s authority to consider their alternative request for
3
visitation. The trial court denied the motion to dismiss, citing R.C. 3109.12(B) without
elaborating, and set the matter over for a settlement conference and a trial.
{¶8} On October 11, 2011, the parties reported to the trial court that they reached a
complete resolution of the case. The Sherwoods, Ms. Eberhardt, Mr. Weaver, along with
counsel, signed and submitted an agreed journal entry setting forth the terms of their agreement
and incorporating by reference the attached transcript of their oral agreement. The agreement
stated that they reached “a resolution of all matters in regards to [the September 14, 2010
c]omplaint” and “all pending motions before the court are hereby resolved and otherwise
disposed of as a result of the resolution set forth herein.” The parties assented to a visitation
schedule, detailed the terms and conditions of the visitation, and agreed that the court mediator
would provide assistance in resolving disputes that might arise pertaining to the children’s
monthly visits. The judge signed the agreed journal entry memorializing the parties’ settlement
agreement, and it was filed in the record on November 1, 2011.
{¶9} With the settlement agreement in place and the litigation resolved, the visitation
schedule remained. Nearly one year later, on October 3, 2012, Mr. Weaver passed away from a
heroin overdose. The parties continued on with the visitation schedule for another two years
after Mr. Weaver’s death, until October 17, 2014—nearly three years after entering the
agreement—when the Sherwoods filed a motion under the case number of the previously
resolved action. The Sherwoods requested that the trial court modify their visitation schedule to
increase visitation time with the children.
{¶10} Shortly thereafter, on December 5, 2014, Ms. Eberhardt filed her own motion to
modify companionship time. Ms. Eberhardt sought to discontinue what she described as “court-
4
appointed visitation time” between the Sherwoods and her two children. Ms. Eberhardt asserted
“the court-appointed time is not in the best interest of the children.”
{¶11} The Sherwoods next filed a supplemental motion to modify companionship time.
They sought to stand in the place of Mr. Weaver, the children’s deceased father, and requested
that the trial court grant them, at a minimum, a “standard order of parenting time.” Then, on
October 6, 2015, the Sherwoods filed a motion for legal custody pursuant to R.C. 2151.23(A)(2).
The Sherwoods sought an order from the trial court granting them legal custody of their two
minor grandchildren. As a result of the Sherwoods’ motion for custody the trial court appointed
for the benefit of the children a Guardian ad Litem (“GAL”), James Barilla, on November 5,
2015.
{¶12} Through the course of performing his duties, the GAL deemed it necessary to file
a motion for temporary orders, requesting that the trial court place certain limitations and
restrictions on the Sherwoods’ visitation with the children, including a suspension of any
overnight visitation. The trial court entered an order on June 29, 2016, suspending the
Sherwoods from all overnight visitation with the children. The Sherwoods contested the trial
court’s order restricting their visitation with the children. On July 8, 2016 the Sherwoods filed a
motion to remove the GAL for his “outrageous conduct” and alleged that the GAL had “lost all
objectivity” and “grossly misstated the facts and twisted the truth” and “cannot be trusted.” The
trial court denied this motion.
{¶13} Filing a notice of voluntary dismissal on August 29, 2016, the Sherwoods
dismissed their motion for custody and motion to modify grandparent visitation time.
Thereafter, the trial court issued a journal entry indicating that Ms. Eberhardt’s motion to modify
5
visitation remained pending and scheduled a hearing on the motion. The trial court also
terminated the GAL in light of the Sherwoods’ dismissal of their motion seeking custody.
{¶14} The court held a hearing over the course of several days to determine Ms.
Eberhardt’s motion to modify or terminate the Sherwoods’ visitation with the children.
Following the hearing, the court sua sponte scheduled and conducted an in camera interview
with C.W. and B.W. On October 14, 2016, the trial court issued its judgment entry ruling on
visitation issues. Ms. Eberhardt appealed that judgment entry. See In Re: C.W. and B.W., 9th
Dist. Lorain No. 16CA011044 (Nov. 10, 2016).
{¶15} Ms. Eberhardt filed a motion on November 25, 2016, requesting sanctions against
the Sherwoods and an award of attorney fees for frivolous conduct pursuant to R.C. 2323.51. On
that same day, the magistrate issued an order declining to hold an evidentiary hearing regarding
the GAL fees, and setting an oral hearing for the allocation of GAL fees. Following the hearing,
the magistrate issued a decision on March 29, 2017, ruling on the outstanding GAL issues and
allocating the GAL fees between the Sherwoods and Ms. Eberhardt. The trial court adopted the
magistrate’s decision that same day.
{¶16} On April 11, 2017, the Sherwoods filed preliminary objections to the magistrate’s
decision. Ms. Eberhardt then filed her objection to the magistrate’s decision ten days later, on
April 21, 2017. The Sherwoods followed up with a supplement to their objections.
{¶17} On June 5, 2017, the trial court issued a judgment entry ruling on Ms. Eberhardt’s
motion for attorney fees and transcripts. The trial court overruled the motion and found that Ms.
Eberhardt failed to timely file her motion for attorney fees. The trial court issued a judgment
entry on June 7, 2017, affirming its prior judgment entry adopting the magistrate’s decision,
6
overruling the Sherwoods’ objection to the magistrate’s decision, and declining to consider Ms.
Eberhardt’s objection, which it deemed untimely.
{¶18} The Sherwoods appealed the June 7, 2017 judgment entry regarding the
magistrate’s decision. See In Re: C.W. and B.W., 9th Dist. Lorain No. 17CA011162 (Jun. 30,
2017). Ms. Eberhardt then filed an appeal of both the June 5, 2017 and June 7, 2017 judgment
entries. See In Re: C.W. and B.W., 9th Dist. Lorain No. 17CA011165 (Jul. 5, 2017). This Court
consolidated the three appeals from cases 16CA011044, 17CA011162, and 17CA011162.
{¶19} This case was remanded on December 21, 2017, upon motion filed by the
Sherwoods, to allow the trial court to rule on the Civ.R. 60(B) motion the Sherwoods filed with
the trial court. On remand, the trial court issued a judgment entry ruling, inter alia, on the
Sherwoods’ Civ. R. 60(B) motion, vacating the March 29, 2017/June 7, 2017 judgment entry
awarding GAL fees, and denying the GAL’s motion for fees. On August 22, 2018, this Court
granted the Sherwoods’ motion to supplement the record on appeal with the June 8, 2018
judgment entry the trial court issued upon remand.
{¶20} On appeal, Ms. Eberhardt presents four assignments of error. The Sherwoods
present five issues on cross-appeal for our review.
II.
Ms. Eberhardt’s Assignment of Error I
The trial court was without subject matter jurisdiction to issue a
grandparent visitation order and the trial court erred in not terminating the
existing order.
{¶21} Ms. Eberhardt argues that the Sherwoods never filed a complaint for visitation
under any statute that would confer subject matter jurisdiction upon the juvenile court to issue an
order awarding grandparent visitation rights. Therefore, Ms. Eberhardt contends, the trial court
7
was without “jurisdiction to issue the November 1, 2011 Grandparent Visitation Order and was
without [j]urisdiction to issue the October 14, 2016 Grandparent Visitation Order.”
A. Jurisdiction to order/grant grandparent visitation rights
{¶22} “A juvenile court may exercise jurisdiction only if expressly granted the authority
to do so by statute.” Rowell v. Smith, 133 Ohio St.3d 288, 2012-Ohio-4313, ¶ 13, citing Ohio
Constitution, Article IV, Section 4(B); In re Gibson, 61 Ohio St.3d 168, 172 (1991). “Any
person with standing may file a complaint for the determination of any other matter over which
the juvenile court is given jurisdiction by the Revised Code.” Juv.R. 10. The complaint is “the
legal document that sets forth the allegations that form the basis for juvenile court jurisdiction.”
Juv.R. 2(F). “The term ‘jurisdiction’ encompasses both subject-matter jurisdiction, i.e., the
court’s power to adjudicate the merits of a case, and the exercise of that jurisdiction.” Rowell at
¶ 13. “The juvenile court’s determination regarding its subject matter jurisdiction implicates a
question of law which this Court reviews de novo. In re J.L.M., 9th Dist. Summit No. 28867,
2018-Ohio-2175, ¶ 9.
{¶23} “Ohio law provides various methods for grandparents to obtain a legal right of
access to their grandchildren outside of the juvenile custody situation.” In re M.N., 9th Dist.
Wayne No. 07CA0088, 2008-Ohio-3049, ¶ 20. R.C. 3109.11 permits grandparents to pursue
visitation rights when a parent is deceased, providing in relevant part:
If either the father or mother of an unmarried minor child is deceased, the court of
common pleas of the county in which the minor child resides may grant the
parents and other relatives of the deceased father or mother reasonable
companionship or visitation rights with respect to the minor child during the
child’s minority if the parent or other relative files a complaint requesting
reasonable companionship or visitation rights and if the court determines that the
granting of the companionship or visitation rights is in the best interest of the
minor child.
8
R.C. 3109.12 allows grandparents to seek visitation rights of a grandchild born to an unmarried
mother. R.C. 3109.12(A) provides that:
If a child is born to an unmarried woman, the parents of the woman and any
relative of the woman may file a complaint requesting the court of common pleas
of the county in which the child resides to grant them reasonable companionship
or visitation rights with the child. If a child is born to an unmarried woman * * *
the parents of the father and any relative of the father may file a complaint
requesting that the court grant them reasonable companionship or visitation rights
with the child.
The court may grant a grandparent’s request under R.C. 3109.12(A) “if it determines that the
granting of the * * * companionship or visitation rights is in the best interest of the child.” R.C.
3109.12(B).
{¶24} Significantly, even where a grandparent properly asserts a statutory claim for
companionship or visitation rights and invokes the jurisdiction of the juvenile court, an order of
the court granting companionship or visitation rights must be based on the court’s determination
that visitation with the grandparent is in the best interest of the child. See R.C. 3109.11, R.C.
3109.12(B). Parents have a fundamental right “to make decisions concerning the care, custody,
and control of their children.” Troxel v. Granville, 530 U.S. 57, 66 (2000). “[T]here is a
presumption that fit parents act in the best interests of their children.” Id. at 68. Thus, the trial
court must give some special weight to a parent’s wishes and concerns regarding visitation, and
ensure that grandparents meet their burden to demonstrate that visitation is in the best interest of
the child. See Harrold v. Collier, 107 Ohio St.3d 44, 2005-Ohio-5334, ¶ 44-45.
{¶25} For ease of analysis, we review separately the contested orders of November 1,
2011, and October 14, 2016. Furthermore, we note that this matter involves a complicated and
voluminous procedural history with several ancillary issues stemming from the custody and
9
visitation dispute between the Sherwoods and Ms. Eberhardt. We confine our review to the
portions of the record relevant to this assignment of error.
B. The journal entry of November 1, 2011
{¶26} In 2010, the Sherwoods commenced the action with a complaint seeking custody
of C.W. and B.W. Thereafter, they filed a motion seeking, in the alternative, companionship and
visitation rights as grandparents of the children pursuant to R.C. 3109.121. The record reveals
that the trial court never made a finding or adjudication respecting either the complaint for
custody or the motion for visitation. Instead, prior to the scheduled trial date, the parties reached
a settlement agreement. On October 17, 2011, the trial court issued a journal entry stating that
the parties “report reaching a complete resolution on October 11, 2011.” The journal entry noted
that the parties’ agreement was read into the record, and instructed counsel to submit an agreed
entry, otherwise the matter would proceed to trial.
{¶27} The parties executed an agreement resolving and disposing of “all pending
motions before the court” including “a resolution of all matters in regards to [the c]omplaint”
filed September 14, 2010. The agreement provided that the Sherwoods would have visitation
with C.W. and B.W. according to the stated schedule as agreed by the parties. The parties agreed
that the court mediator would provide assistance in resolving disputes that might arise pertaining
to the monthly visits and that if, after the children reached age ten, visitation would cease if the
children expressed such a wish to the mediator. The agreement was entered upon the record as a
journal entry on November 1, 2011, and signed by the judge.
1
At this point in the litigation the Sherwoods sought visitation based on R.C. 3109.12
because Mr. Weaver was still living and not yet married to Ms. Eberhardt.
10
{¶28} Ms. Eberhardt argues that the trial court lacked “subject matter jurisdiction to
issue the November 1, 2011 Grandparent Visitation Order.” Ms. Eberhardt contends that
because, the Sherwoods filed a complaint for custody, but then only filed a motion for visitation
pursuant to R.C. 3109.12, rather than a complaint, the trial court lacked jurisdiction to order
visitation. In support of her position, she cites to R.C. 3109.12(A) which states that “the parents
of the [children’s] father and any relative of the father may file a complaint requesting that the
court grant them reasonable companionship or visitation rights with the child[ren]. Thus, it is
Ms. Eberhardt’s contention that the Sherwoods’ complaint for custody and subsequent motion
for visitation did not permit the trial court to exercise jurisdiction to award companionship or
visitation rights pursuant to R.C. 3109.12.
{¶29} However, this Court’s review of the record reveals that the trial court did not
order grandparent visitation pursuant to R.C. 3109.12. The journal entry of November 1, 2011
memorialized the parties’ settlement agreement and set forth the visitation schedule agreed to by
the parties. That journal entry does not include any finding that companionship or visitation with
the Sherwoods is in the best interest of the children, does not grant the Sherwoods a right to
visitation or companionship time with the children, and does not purport to make anything
beyond the parties’ agreement an order of the court.
{¶30} The November 1, 2011 journal entry was an agreement between the parties to
resolve the litigation. As such, it did not involve the trial court rendering a judgment or
adjudicating the merits of any claims. The trial judge signed the agreed journal entry, but did not
purport to exercise jurisdiction with respect to the Sherwoods’ complaint for custody or motion
for visitation rights. We conclude that Ms. Eberhardt’s argument—that the court lacked
11
jurisdiction to order grandparent visitation on November 1, 2011—is without merit, because that
journal entry simply memorialized the entire agreement of the parties.
C. The judgment entry of October 14, 2016
{¶31} With the visitation schedule in place, and with the parties having agreed that the
complaint and all motions were resolved, the matter was inactive for nearly three years, although
neither a notice of dismissal nor an administrative dismissal of the complaint appears in the
record following the parties’ settlement. The Sherwoods sought to reactivate the original case by
filing a motion to “modify companionship time” and requesting that the trial court modify the
November 1, 2011 schedule to allow the Sherwoods to spend more time with the children. The
Sherwoods later supplemented their motion to modify, requesting that the juvenile court allow
them to stand in place of the children’s deceased father and grant them, at a minimum, a standard
order of “parenting” time.
{¶32} Ms. Eberhardt responded by filing her own motion to modify companionship
time. She requested that the court “discontinue all court-appointed visitation time” between her
children and the Sherwoods. Ms. Eberhardt asserted that “the court-appointed time is not in the
best interest of the children.”
{¶33} The Sherwoods next filed a motion for legal custody of C.W. and B.W. pursuant
to R.C. 2151.23(A)(2). They alleged that Ms. Eberhardt was an unsuitable parent. A few weeks
later the Sherwoods filed an ex parte motion for emergency temporary custody. The trial court
denied the motion for emergency temporary custody, but ordered that the children have no
contact with a particular individual who is not otherwise related to these proceedings. The trial
court also appointed James Barilla as GAL at that point in response to the Sherwoods’ motion
seeking custody of the children.
12
{¶34} On June 29, 2016, the GAL filed an ex parte motion, pursuant to Juv.R. 13 for
emergency temporary orders. Based on disclosures from the children and the GAL’s
investigation, the GAL indicated that both he and the children’s therapist reported to the Lorain
County Children Services Melva Sherwood’s actions with regard to C.W. and B.W. The GAL
requested that certain limitations and restrictions be placed on the Sherwoods’ visitation with the
children, including a suspension of any overnight visitation. The trial court entered an order
granting the GAL’s motion suspending the Sherwoods from all overnight visitation with the
children, and restraining Melva Sherwood from certain behaviors and actions affecting the
children and Ms. Eberhardt.
{¶35} The Sherwoods contested the trial court’s order restricting their visitation with the
children and sought, unsuccessfully, to remove the GAL for allegedly “outrageous conduct” and
on the grounds that the GAL had “lost all objectivity” and “grossly misstated the facts and
twisted the truth” and “cannot be trusted.” Soon thereafter, the Sherwoods filed a notice
purporting to dismiss their motions for custody and modification of grandparent visitation time.
In light of the dismissal of the custody motion, the GAL filed a motion seeking clarification as to
his status in the case and requested that the court hear Ms. Eberhardt’s motion to modify
visitation.
{¶36} The trial court issued a journal entry acknowledging that the Sherwood’s motions
were dismissed. The journal entry indicated that the court would hear all pending motions,
which it recognized as the GAL’s motion for fees and Ms. Eberhardt’s motion to modify
visitation. The trial court also removed the GAL from the matter since the Sherwoods were no
longer challenging Ms. Eberhardt for custody of the children.
13
{¶37} At the contested hearing, which spanned five days, the court heard testimony from
several witnesses and took evidence. Following the hearing, the trial court conducted an in
camera interview with C.W. and B.W. The trial court issued a judgment entry on October 14,
2016. This judgment entry discussed the procedural history of the case and made numerous
findings of fact based on the record of the case and the evidence and testimony presented at trial.
{¶38} Although the trial court’s stated purpose for the hearing was to review Ms.
Eberhardt’s motion to modify or discontinue visitation, the trial court did not address its
jurisdiction or authority to modify the parties’ agreed journal entry of November 1, 2011.
Instead, the court summarily concluded that because “the prior visitation decree originated with”
the trial court, the court had proper jurisdiction to consider mother’s motion. However, the trial
court also discussed cases involving relative or grandparent visitation and companionship rights
and cited to R.C. 3109.11 as the basis for a court’s jurisdiction to award a relative visitation with
minor children if the court determines such visitation to be in the best interest of the children.
{¶39} The trial court then sua sponte concluded that it possessed jurisdiction pursuant to
R.C. 3109.11 to “grant relatives of the deceased father visitation rights with respect to the minor
children.” It is unclear why the trial court pursued this as a basis to determine the issue of the
Sherwoods’ right to visitation in the absence of any complaint or claim asserted by the
Sherwoods. Nonetheless, the trial court proceeded upon its presumption of jurisdiction under
R.C. 3109.11, which calls for the court to “consider all relevant factors, including, but not
limited to, the factors set forth in [R.C. 3109.051](D).” The trial court then conducted interviews
of C.W. and B.W. for the purpose of considering those factors. See R.C. 3109.051(C) (In
considering the factors of R.C. 3109.051(D) for purposes of determining whether to grant
visitation rights, establish a visitation schedule, or resolve any related issues, “the court, in its
14
discretion, may interview in chambers any or all involved children regarding their wishes and
concerns.”).
{¶40} Following its review of the R.C. 3109.051 factors, the trial court found Melva
Sherwood’s “conduct to be adverse to the best interest of the children.” Nevertheless, the trial
court went on to find that it is in the best interest of the children “to return the [Sherwoods]’
visitation back to the 2011 [v]isitation order, but to include the restrictions from the June 29,
2016 [j]udgment [e]ntry” restricting the Sherwoods’ visitation with the children. The October
14, 2016 judgment entry did not directly rule on Ms. Eberhardt’s motion to modify or
discontinue the agreed visitation schedule with the Sherwoods. Instead, the trial court
discounted Ms. Eberhardt’s motion and stated that “[a]lthough mother filed a motion to terminate
the [Sherwoods’] visitation, she at no time testified that she wants their visitation to be
terminated” and that Ms. Eberhardt did not truly oppose the visitation schedule itself—only
Melva Sherwood’s conduct during visitation.
{¶41} The October 14, 2016 judgment stated several orders, including that the
Sherwoods would receive visitation with C.W. and B.W. on the second weekend of each month
from Friday at 6:00 p.m. to Sunday at 6:00 p.m. The trial court ordered that the Sherwoods were
restrained from certain behavior and activities regarding the children, that the Sherwoods must
not undermine Ms. Eberhardt’s authority as the children’s mother, and that the Sherwoods must
promptly communicate to Ms. Eberhardt any issues or concerns arising during visitation.
Regarding Ms. Eberhardt, the trial court ordered that she shall provide the “children with a
structured academic curriculum that includes social development with peers” and stated that if
she is unable to meet the children’s needs through home schooling, then she “shall enroll the
15
children in a traditional school.” Additionally, the trial court ordered that “other sections of the
2011 Judgment Decree2, which have not been modified as above remain in full force and effect.”
{¶42} We conclude that the trial court misconstrued its role in reviewing Ms.
Eberhardt’s motion. Where, as is the case here, the father of a minor child is deceased, R.C.
3109.11 provides that the relatives of the deceased father may file a complaint requesting
reasonable companionship or visitation rights, which the court may grant upon determining that
such companionship or visitation rights are in the best interest of the child. The September 14,
2010 complaint seeking custody of the minor children is the only pleading ever filed in this
matter. At no point in these proceedings have the Sherwoods ever filed a pleading or otherwise
invoked the trial court’s jurisdiction pursuant to R.C. 3109.11. Even if the Sherwoods’ October
17, 2014 motion to modify and the supplemental motion that followed could be construed so as
to state a proper claim under R.C. 3109.11, the Sherwoods voluntarily abandoned those claims
prior to the hearing. The trial court clearly erred in assuming that it had jurisdiction pursuant to
R.C. 3109.11. The trial court lacked authority to enter judgment pursuant to R.C. 3109.11 based
on Ms. Eberhardt’s motion seeking to discontinue the visitation schedule the parties agreed to
and memorialized in the November 1, 2011 agreed journal entry.
{¶43} Although the court had not previously made any finding or adjudication regarding
the Sherwoods’ right to visitation or companionship with the children, the trial court usurped the
statutory authority of R.C. 3109.11 to confer such rights on the Sherwoods, against Ms.
Eberhardt’s wishes, and transformed a voluntary agreed visitation schedule into a judgment
granting the Sherwoods a right to visitation and establishing a visitation schedule. This Court
2
The record does not contain a “2011 Judgment Decree” though, presumably, the trial
court meant to refer to the November 1, 2011 agreed journal entry.
16
concludes that the trial court lacked subject matter jurisdiction to enter judgment granting
visitation to the Sherwoods pursuant to R.C. 3109.11. Furthermore, the trial court has stated no
jurisdictional basis for entering orders regarding the children’s education and socialization, and
certainly lacked the authority to infringe upon Ms. Eberhardt’s fundamental right to make
decisions concerning the care and control of the minor children in her custody. Troxel, 530 U.S.
at 66. Because the court lacked subject matter jurisdiction, the October 14, 2016 judgment entry
is void ab initio. See Bank of Am., N.A. v. Kuchta, 141 Ohio St.3d 75, 2014-Ohio-4275, ¶ 17
(“[A] court’s lack of subject-matter jurisdiction renders that court’s judgment void ab initio.”)
D. Conclusion
{¶44} The trial court lacked jurisdiction pursuant to R.C. 3109.11 to determine visitation
and companionship rights and to issue a visitation schedule. The judgment entry of October 14,
2016, is based upon an improper exercise of subject matter jurisdiction, and the orders contained
therein exceed the authority of the trial court. Ms. Eberhardt’s first assignment of error is
sustained in part, and the void judgment entered October 14, 2016 is vacated.
Ms. Eberhardt’s Assignment of Error II
The trial court abused its discretion in not terminating grandparents[’]
visitation[.]
{¶45} Ms. Eberhardt argues that the trial court erred by not terminating the Sherwoods’
visitation with the children. However, in the previous assignment of error, we concluded that the
October 14, 2016 judgment entry determining visitation issues pursuant to R.C. 3109.11 is void
for lack of subject matter jurisdiction. In light of this Court’s resolution of Ms. Eberhardt’s first
assignment of error vacating the judgment entry that is the basis for Ms. Eberhardt’s present
argument, her second assignment of error is moot. Ms. Eberhardt’s second assignment of error is
overruled.
17
Ms. Eberhardt’s Assignment of Error III
The [trial] court erred, abused its discretion and violated [Ms. Eberhardt]’s
procedural due process rights in overruling her objection to [the]
magistrate’s decision as being untimely filed.
{¶46} The trial court, in the October 14, 2016 judgment entry, set the issue of the
allocation of GAL fees over for a separate hearing before the magistrate. On March 29, 2017,
the magistrate issued a decision allocating the GAL fees between Ms. Eberhardt and the
Sherwoods and ruling on another issue relating to a prior magistrate’s decision. The trial court
adopted the magistrate’s decision that same day. The Sherwoods filed preliminary objections to
the magistrate’s decision on April 11, 2017. Ms. Eberhardt then filed her objection to the
magistrate’s decision ten days later on April 21, 2017. On May 30, 2017, the Sherwoods
supplemented their objections to the magistrate’s decision.
{¶47} The trial court issued its judgment entry ruling on the objections on June 7, 2017.
The trial court overruled the Sherwoods’ objections to the magistrate’s decision, stating that it
would adhere to its March 29, 2017 judgment entry. The trial court declined to consider Ms.
Eberhardt’s objection, stating that she failed to timely file her objection. Ms. Eberhardt argues
that the trial court erred in this conclusion and contends that her objection was timely filed. In
response, the Sherwoods concede that Ms. Eberhardt timely filed her objection pursuant to
Juv.R. 40(D)(3)(b)(i)—which permits a party to file objections no later than ten days after
another party files timely objections—and further concede that the trial court erred in concluding
that her objection was not timely filed.
{¶48} Upon review of the record, it appears that the parties are correct in their shared
conclusion that Ms. Eberhardt’s objection was timely filed. However, on August 22, 2018, this
Court granted the Sherwoods’ motion to supplement the record with the trial court’s judgment
18
entry of June 8, 2018, issued upon remand, ruling on the Sherwoods’ Civ.R. 60(B) motion. In
that order, the trial court vacated the judgment entry awarding GAL fees and denied the GAL’s
motion for fees. Because the trial court has vacated the judgment entry that served as the basis
for Ms. Eberhardt’s objection, her third assignment of error is rendered moot. Ms. Eberhardt’s
third assignment of error is overruled.
Ms. Eberhardt’s Assignment of Error IV
The [trial] court erred, abused its discretion and violated [Ms. Eberhardt]’s
procedural due process rights in overruling her motion for attorney fees as
being untimely filed.
{¶49} On November 15, 2016, Ms. Eberhardt filed a motion for and award of attorney
fees and requesting that transcript expenses be taxed as court costs. Ms. Eberhardt sought
attorney fees pursuant to R.C. 2323.51 as a sanction for the Sherwoods’ allegedly frivolous
conduct. The Sherwoods opposed the motion on the merits and also argued that it was untimely
because Ms. Eberhardt filed it more than thirty days after the October 14, 2016 entry of
judgment—one day late. The trial court found that the motion was untimely, and overruled it on
that basis. Ms. Eberhardt contends that the trial court erred in finding that the motion was not
timely filed and denying her request for attorney fees.
{¶50} “R.C. 2323.51 sets a 30-day time limit from the date of final judgment in which a
party may move for sanctions[.]” State ex rel. DiFranco v. S. Euclid, 144 Ohio St.3d 571, 2015-
Ohio-4915, ¶ 10. “[A]t any time not more than thirty days after the entry of final judgment * * *,
any party adversely affected by frivolous conduct may file a motion for an award of court costs,
reasonable attorney’s fees, and other reasonable expenses incurred in connection with the civil
action or appeal.” R.C. 2323.51(B)(1). A determination as to the timing provision of R.C.
2323.51(B)(1) is based on the trial court’s interpretation of the statute; therefore, we apply the de
19
novo standard of review. Adams v. Pitorak & Coenen Invests., Ltd., 11th Dist. Geauga No.
2013-G-3129, 2013-Ohio-4102, ¶ 11.
{¶51} Ms. Eberhardt acknowledges that R.C. 2323.51 establishes a thirty day period
following a judgment entry to file a motion seeking attorney fees as a sanction for frivolous
conduct. However, she contends that the relevant judgment entry is the June 7, 2017 judgment
entry regarding the allocation of GAL fees. “‘The term “final judgment” as used in R.C. 2323.51
is synonymous with the term “final order” as defined by R.C. 2505.02.’” DiFranco at ¶ 10,
quoting Adams at ¶ 12. Ms. Eberhardt has not provided any support for her contention the ruling
on GAL fees should serve as the final order commencing her time to file under R.C. 2323.51.
{¶52} The issues relevant to Ms. Eberhardt’s motion appear to have been resolved in the
October 14, 2016 judgment entry; the “final order” which is the subject of her initial appeal.
Although we determined above that that the October 14, 2016 judgment entry is void ab initio
because the trial court lacked jurisdiction to enter it, we cannot say that the trial erred in finding
that Ms. Eberhardt’s motion filed November 15, 2016 was untimely. Ms. Eberhardt’s fourth
assignment of error is overruled.
The Sherwoods’ Assignment of Error I
The trial court did not have subject matter jurisdiction to issue the June 7,
2017 judgment entry regarding [GAL] fees.
The Sherwoods’ Assignment of Error II
The trial court deprived the Sherwoods of due process of law by refusing to
conduct an evidentiary hearing on the necessity, reasonableness and amount
of [GAL] fees before allocating responsibility for payment thereof.
The Sherwoods’ Assignment of Error III
The trial court erred and abused its discretion by making findings that are
not supported by the record.
20
The Sherwoods’ Assignment of Error IV
The trial court erred in affirming the magistrate’s decision to quash a
properly-issued subpoena and cancelling a deposition of the [GAL] on the
issue of [GAL] fees.
The Sherwoods’ Assignment of Error V
The trial court erred in affirming the magistrate’s action ruling on the
Sherwoods’ motion to set aside his own orders preventing an evidentiary
hearing on [GAL] fees and to quash a subpoena directed to the [GAL].
{¶53} For ease of analysis, we review the Sherwoods’ assignments of error together.
Initially we note that Ms. Eberhardt has not filed a brief in response to the Sherwoods’ merit
brief. However, as a threshold matter we must address the issue of mootness with respect to
each of the Sherwoods’ assignments of error.
{¶54} As we discussed above in Ms. Eberhardt’s third assignment of error, the trial
court, on remand, granted the Sherwoods’ Civ.R. 60(B) motion. The trial court vacated its
judgment entry allocating GAL fees, which was the basis for the Sherwoods’ appeal, and also
denied the GAL’s motion for fees. Each of the Sherwoods’ assignments of error are based
entirely on the motion for GAL fees, the magistrate’s and the trial court’s rulings on issues
arising from the GAL fee motion, and the trial court’s judgment adopting the magistrate’s
decision and allocating the GAL fees.
{¶55} The trial court’s June 8, 2018 judgment entry vacated the basis for the
Sherwoods’ appeal and rendered moot all five of the Sherwoods’ assignments of error.
Consequently, we need not reach the merits of any of the Sherwoods’ five assignments of error.
The Sherwoods’ assignments of error are overruled.
21
III.
{¶56} Ms. Eberhardt’s first assignment of error is sustained in part, the trial court’s
judgment entry of October 14, 2016 is vacated, and the matter is remanded to the trial court for
proceedings consistent with this decision. Ms. Eberhardt’s second, third, and fourth assignments
of error are overruled. The Sherwoods’ five assignments of error are all overruled.
Judgment affirmed in part,
reversed in part,
and cause remanded.
There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common
Pleas, County of Lorain, 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.
Costs taxed equally to both parties.
JULIE A. SCHAFER
FOR THE COURT
22
HENSAL, J.
CONCURS.
CARR, J.
CONCURS IN JUDGMENT ONLY.
APPEARANCES:
LINDSEY E. EBERHARDT, pro se, Appellant/Cross-Appellee.
BRENT L. ENGLISH, Attorney at Law, for Appellees/Cross-Appellants.
JAMES V. BARILLA, Attorney at Law, for Appellee.