Hartman v. Hartman

[Cite as Hartman v. Hartman, 2019-Ohio-1637.]
[Please see vacated opinion at 2019-Ohio-177.]

Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION
No. 107251

TAMAR A. HARTMAN
PLAINTIFF-APPELLEE

vs.

DALE M. HARTMAN
DEFENDANT-APPELLANT

JUDGMENT:
REVERSED AND REMANDED

Civil Appeal from the
Cuyahoga County Court of Common Pleas
Domestic Relations Division
Case No. DR-15-360167

BEFORE: E.T. Gallagher, P.J., Laster Mays, J., and Celebrezze, J.

RELEASED AND JOURNALIZED: May 2, 2019
ATTORNEY FOR APPELLANT

Dale M. Hartman, pro se
2195 South Green Road
University Heights, Ohio 44121

ATTORNEY FOR APPELLEE

Mary Sotera
Weston Hurd, L.L.P.
The Tower at Erieview
1301 East 9th St., Suite 1901
Cleveland, Ohio 44114
ON RECONSIDERATION1

EILEEN T. GALLAGHER, P.J.:

{¶1} Defendant-appellant, Dale M. Hartman (“appellant”), appeals pro se from

the trial court’s modification of the parenting plan he entered into with his former wife,

plaintiff-appellee, Tamar Hartman (“appellee”). He raises the following assignments of

error for review:

1. The trial court erred in issuing a void post-decree entry when there was
no pending justiciable controversy.

2. The domestic relations court violated appellant’s right to due process.

{¶2} After careful review of the record and relevant case law, we reverse the trial

court’s judgment.

I. Procedural and Factual History

{¶3} Appellant and appellee were married in March 2002. They have two minor

children together. In December 2015, appellee filed a complaint against appellant,

seeking a divorce, allocation of parental rights and responsibilities, child support, spousal

support, mutual restraining orders, and attorney fees.

{¶4} On April 28, 2017, the trial court ordered the parties to “participate in the

court’s case management services and cooperate with the forensic case manager, the

1 The original announcement of decision, Hartman v. Hartman, 8th Dist. Cuyahoga No.
107251, 2019-Ohio-177, released January 17, 2019, is hereby vacated. This opinion, issued upon
reconsideration, is the court’s journalized decision in this appeal. See App.R. 22(C); see also
S.Ct.Prac.R 7.01. This court deemed reconsideration necessary based on the court’s
mischaracterization of the parties’ parenting plan as a “shared” parenting plan.
children’s mental health providers, and other religious and medical professionals to

resolve parenting disputes including, but not limited to, issues of communication and

transitions between households.” The order further provided that the parties’

compliance with the case management services would be administratively reviewed by

the trial court in December 2017.

{¶5} On May 31, 2017, the trial court issued a decree of divorce, which granted the

parties a divorce and designated appellee as the children’s residential parent and legal

custodian. The divorce decree further incorporated the parties’ agreed upon separation

agreement and parenting plan. Relevant to this appeal, the parenting plan set forth the

parties’ parental rights and responsibilities; compiled a parenting time schedule; required

the parties to communicate with each other by using a program called “Our Family

Wizard”; and provided detailed guidelines for how the parents were to communicate and

conduct themselves during their “possession time.” The plan further required the parties

to continue their use of the domestic relations case management services and parenting

coordinator, Dr. Heather Bohn. Finally, the parties were ordered to make “in kind”

contributions for their children’s education, uninsured medical expenses, uninsured

psychological expenses, and extracurricular activity expenses.

{¶6} On December 4, 2017, the trial court issued a journal entry that set an

administrative review hearing for April 30, 2018. The purpose of the hearing was to

assess the parties’ progress with the court ordered case-management services. Notice of

the hearing was sent to the parties on December 5, 2017. Prior to the administrative
review hearing, the trial court scheduled an attorney conference to be held before the

court on February 21, 2018. The docket, however, does not contain an entry indicating

whether the February 21, 2018 attorney conference was held, and if so, who appeared

before the court. Nor does the docket contain an entry indicating whether the April 30,

2018 administrative review hearing was held, and if so, who appeared before the court.

Instead, the next entry set forth in the record is a judgment entry, dated May 1, 2018,

which ordered the parties to comply with the following amendments to the parenting plan:

1. Both parents shall check [Our Family Wizard] daily and when they
receive notifications of new messages. Text messages and phone calls are
reserved for emergency.

2. The parenting time schedule should be adhered to with both parents
sending both children to the other parent at exchanges per the court ordered
times. Deviations in the schedule must be discussed beforehand, including
an [Our Family Wizard] message 48 hours before Shabbos, if the change
will occur on Shabbos and 24 hours before the change on weekdays. An
exception would be if an emergency occurs or medical care is required, then
the parent should notify as soon as he/she is able.

3. If the children will be absent from school, the parent who is aware of
the absence should let the other parent know through [Our Family Wizard]
before 12 p.m. on the day of the absence.

4. If there will be a deviation in pick up or drop off, including time or
location, let the other parent know immediately when the information is
obtained and by at least 24 hours before the change. If the change is due
to sickness and school absence, notify the other parent by 12 p.m. of the
change when the parent is notified of the child’s absence.

5. If the children will have an extracurricular activity or event during the
other parent’s time, please let the other parent know immediately or within
24 hours of the event.
6. If a major change will be made in the children’s school schedule or
educational programming, please let the other parent know within 24 hours
of being notified about the information.

7. If there is no school or the children miss school, the after school parent
time pick up should occur at 3 p.m. If there will be a deviation in this
time, please communicate on [our Family Wizard] immediately and with
more than 24 hours’ notice.

8. If a doctor’s appointment is made for the children, let the other parent
know when it is made on [Our Family Wizard]. Within 24 hours after the
doctor’s appointment occurs, update the other parent about the outcome and
summary of the appointment. An exception would be an emergency
medical event that requires one’s attention to the children and immediate
notification as soon as a parent is able.

9. Father shall continue to call the children at 8 p.m. Mother shall
instruct the children to answer the telephone. If the children do not wish
to talk, they can inform their father themselves. Father shall respect the
child’s preference. Father should then address this issue with Dr. Miller.

10. Neither parent shall expose the children to [Our Family Wizard]
messages. Ensure that the children are not reading the messages.

11. If the children miss parenting time due to one parent’s behavior, that
parent shall offer make up time.

12. Treatment with Dr. Miller shall continue. Both parents should make
sure this occurs.
13. Mother shall sign releases to allow Dr. Eilback to communicate with
Father. Said communication with Father can be a method chosen by Dr.
Eilback. Mother shall request that Dr. Eilback communicate with Father
after or during appointments.

14. Cost for Dr. Miller is shared by the parents per the divorce decree,
regardless of who attends sessions. Dr. Miller can structure the sessions as
he recommends.

15. The children are not to be involved in adult matters or financial issues
such as therapy being cancelled. They do not need to know who canceled
therapy or why.
 {¶7} Appellant now appeals from the trial court’s judgment.

II. Law and Analysis

{¶8} In his first assignment of error, appellant argues the trial court erred in issuing

a void post-decree entry when there was no pending justiciable controversy. Appellant

contends that at the time the trial court issued its May 1, 2018 order, the court lacked

continuing jurisdiction to make “substantial changes regarding parenting time, phone

calls, healthcare and support.” In his second assignment of error, appellant argues the

trial court violated his right to due process by issuing the May 1, 2018 order without

holding a hearing or providing him with the opportunity to be heard. We address these

assigned errors together for clarity.

{¶9} Divorce and ancillary custody actions are purely matters of statute. Hanna v.

Hanna, 177 Ohio App.3d 233, 2008-Ohio-3523, 894 N.E.2d 355, ¶ 9 (10th Dist.), citing

Shively v. Shively, 10th Dist. Franklin No. 94APF02-249, 1994 Ohio App. LEXIS 4130

(Sept. 22, 1994). Accordingly, we begin our analysis by assessing the statutory

framework supporting the trial court’s modification of the parenting plan in this case.

{¶10} On appeal, and in his motion for reconsideration, appellant maintains the

trial court’s May 1, 2018 order amounted to a modification of “a prior decree allocating

parental rights and responsibilities.” He therefore argues that the court was required to

follow the mandates of R.C. 3109.04.

{¶11} “R.C. 3109.04 governs the domestic relations court’s allocation of parental

rights and responsibilities and sets forth the procedures and standards courts are to use in
proceedings pertaining to such matters.” Id. at ¶ 10, citing Braatz v. Braatz, 85 Ohio

St.3d 40, 706 N.E.2d 1218 (1999).

{¶12} R.C. 3109.04(A)(1) provides, in relevant part:

the court, in a manner consistent with the best interest of the children, shall
allocate the parental rights and responsibilities for the care of the children
primarily to one of the parents, designate that parent as the residential
parent and the legal custodian of the child, and divide between the parents
the other rights and responsibilities for the care of the children, including,
but not limited to, the responsibility to provide support for the children and
the right of the parent who is not the residential parent to have continuing
contact with the children.

{¶13} In this case, the divorce decree allocated parental rights and responsibilities;

and designated appellee as the children’s residential parent and legal custodian. In

addition, the divorce decree incorporated the parties’ parenting plan that, in compliance

with R.C. 3109.04(A)(1), “divided between the parents other rights and responsibilities

for the children,” including the conditions and mechanisms of visitation.

{¶14} R.C. 3109.04(E)(1) sets forth the procedure for modifying a prior decree

allocating parental rights and responsibilities for the care of children. It provides, in

relevant part:

The court shall not modify a prior decree allocating parental rights and
responsibilities for the care of children unless it finds, based on facts that
have arisen since the prior decree or that were unknown to the court at the
time of the prior decree, that a change has occurred in the circumstances of
the child, the child’s residential parent, or either of the parents subject to a
shared parenting decree, and that the modification is necessary to serve the
best interest of the child.

{¶15} Thus, “when a court modifies a prior decree allocating parental rights and

responsibilities, which includes a change in the designation of the residential parent or
legal custodian, the court must find that a change in circumstance has occurred.” Picciano

v. Lowers, 4th Dist. Washington No. 08CA38, 2009-Ohio-3780, ¶ 20, citing Fisher v.

Hasenjager, 116 Ohio St.3d 53, 2007-Ohio-5589, 876 N.E.2d 546, ¶ 26. If a change of

circumstances is demonstrated, the trial court must then determine whether the

“modification is necessary to serve the best interest of the child.” R.C.

3109.04(E)(1)(a).

{¶16} Appellee disputes appellant’s characterization of the proceedings, and

argues that the trial court’s May 1, 2018 order did not modify the allocation of parental

rights and responsibilities. We agree. The Ohio Supreme Court has explained that the

allocation of parental rights and responsibilities equates to the designation of the

residential parent and legal custodian. Hasenjager at ¶ 26. Thus, R.C.

3109.04(E)(1)(a) applies only “when a court modifies an order designating the residential

parent and legal custodian.” Id. This is because the statutory reference to modification

of parental rights and responsibilities is a reference to custody and control, not visitation.

Braatz, 85 Ohio St.3d 40, at 43, 706 N.E.2d 1218. Consequently, when one parent is

the legal custodian, modifications to visitation or parenting time are not governed by R.C.

3109.04(E)(1)(a). Rather, such modifications are subject to R.C. 3109.051. In re J.H.,

8th Dist. Cuyahoga No. 106658, 2019-Ohio-9, ¶ 29.

{¶17} In this case, the trial court’s May 1, 2018 order did not modify the allocation

of parental rights and responsibilities. Appellee remains the residential parent and legal

custodian of the children. However, the court’s order did add new terms and obligations
to the parenting plan, including additional conditions for how the parties are to

communicate and conduct themselves while in possession of the children. Under these

circumstances, the additional terms and conditions set forth in the May 1, 2018 order

amounted to more than a mere clarification of its prior order. Rather, the trial court’s

implementation of the15 new conditions of visitation constituted a substantive

modification of the original parenting plan’s visitation guidelines.2 Thus, R.C. 3109.051

is controlling.

{¶18} “Under R.C. 3109.051, a trial court is permitted to modify visitation rights if

it determines that the modification is in the child’s best interest.” Lisboa v. Lisboa, 8th

Dist. Cuyahoga No. 92321, 2009-Ohio-5228, ¶ 11; see also In re A.J., 8th Dist. Cuyahoga

No. 99881, 2013-Ohio-5737, ¶ 10. In determining whether a modification is in the

child’s best interest, the court is guided by the factors set forth in R.C. 3109.051(D),

including:

(1) The prior interaction and interrelationships of the child with the child’s
parents, siblings, and other persons related by consanguinity or affinity, and
with the person who requested companionship or visitation if that person is
not a parent, sibling, or relative of the child;

***

(3) The child’s and parents’ available time, including, but not limited to,
each parent’s employment schedule, the child’s school schedule, and the
child’s and the parents’ holiday and vacation schedule;

2 We note that there is nothing in this record to suggest that the trial court’s
May 1, 2018 order was premised on a decision of the parenting coordinator that was
issued and filed with the court pursuant to Loc.R. 38(G)(2) of the Court of Common
Pleas of Cuyahoga County, Domestic Relations Division.
 (4) The age of the child;

(5) The child’s adjustment to home, school, and community;

***

(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;

***

(13) 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;

***

(16) Any other factor in the best interest of the child.

R.C. 3109.051(D).

{¶19} With respect to the foregoing best interest factors, appellant does not dispute

the merits of the specific provisions contained in the modification order and concedes that

“some portions” of the judgment are favorable to him. Nevertheless, he maintains that

“absent an extraordinary emergency situation,” the trial court lacked jurisdiction to enter

the May 31, 2018 order and, therefore, the entry is void and must be reversed.

{¶20} We begin by noting that the court in which a decree of divorce is originally

rendered retains continuing jurisdiction over matters relating to the custody, care, and

support of the minor children of the parties. In re Poling, 64 Ohio St.3d 211, 215, 594

N.E.2d 589 (1992), citing Corbett v. Corbett, 123 Ohio St. 76, 174 N.E. 10 (1930). This
includes orders of visitation. Pulice v. Collins, 8th Dist. Cuyahoga No. 86669,

2006-Ohio-3950, ¶ 10.

{¶21} Civ.R. 75(J) governs the procedure for invoking the continuing jurisdiction

of the court following a final judgment. It states:

The continuing jurisdiction of the court shall be invoked by motion filed in
the original action, notice of which shall be served in the manner provided
for the service of process under Civ.R. 4 to 4.6. When the continuing
jurisdiction of the court is invoked pursuant to this division, the discovery
procedures set forth in Civ.R. 26 to 37 shall apply.

{¶22} It is undisputed that neither appellant or appellee filed a formal motion to

modify matters relating to the custody, care, or support of their children. Thus, it is

questionable whether the court’s continuing jurisdiction to modify visitation under R.C.

3109.051 was sufficiently invoked pursuant to Civ.R. 75(J). Nevertheless, without

assessing whether the trial court had continuing jurisdiction to issue a sua sponte

modification, we find the record supports appellant’s contention that he was not afforded

due process in this matter.

{¶23} Under the Due Process Clause of the Fourteenth Amendment to the United

States Constitution and Article I, Section 16, of the Ohio Constitution, parties are entitled

to reasonable notice of judicial proceedings and a reasonable opportunity to be heard.

Ohio Valley Radiology Assocs., Inc. v. Ohio Valley Hosp. Assn., 28 Ohio St.3d 118, 125,

502 N.E.2d 599 (1986). Thus, it has routinely been stated that the fundamental

“‘requirement of due process in any proceeding * * * is notice reasonably calculated,

under all the circumstances, to apprise interested parties of the pendency of the action and
afford them an opportunity to present their objections.’” Armstrong v. Manzo, 380 U.S.

545, 550, 85 S.Ct. 1187 14 L.Ed.2d 62 (1965), quoting Mullane v. Cent. Hanover Bank &

Trust Co., 339 U.S. 306, 314, 70 S.Ct. 652, 94 L.Ed. 865 (1950).

{¶24} In this case, counsel for appellee maintains that the parties appeared before

the court on April 30, 2018 for an administrative review hearing and addressed the

circumstances warranting the court’s May 1, 2018 order. While such a hearing may have

been held, the record before this court simply does not contain an entry reflecting that the

hearing actually occurred. Beyond an entry indicating that an attorney conference was

scheduled for February 21, 2018, the docket contains no entries between the December 4,

2017 entry that scheduled the administrative review hearing, and the May 1, 2018 order

modifying the parenting plan. Thus, the record does not support the contention that

appellant had the opportunity to be heard, either in writing or in person.

{¶25} The record is equally silent on the issue of notice. Here, appellant

understood the trial court would be reviewing the parties’ progress with the case

management services, presumably in an effort to assess the status of the on-going

“parenting disputes” the program sought to remedy. However, we find no language in

the relevant journal entries to suggest appellant was notified, prior to the May 1, 2018

order, that the trial court might, in its discretion, modify the terms of the parties’

agreed-upon parenting plan based on the information provided to the court by the

parenting coordinator.
 {¶26} In the absence of adequate notice, a formal motion to modify, or a

designation in the record that the parties had the opportunity to oppose the modifications,

this court is unable to conclude that appellant was afforded due process. In short, the

record does not support appellee’s position that appellant had knowledge of the proposed

modifications and the opportunity to debate their merits before the final order was

entered.

{¶27} We recognize that the additions, or modifications, to the parenting plan were

made in an effort to resolve specific points of contention that developed after the

execution of the divorce decree. The more definitive and practical conditions of the

modification order sought to promote common decency amongst the parties during the

interactions and communications that are inherently necessary when raising children

together pursuant to a parenting plan. Unquestionably, the court was acting in the

children’s best interests. However, this court’s review is bound by the record placed

before it. Accordingly, we are compelled to reverse the trial court’s judgment and

vacate the May 1, 2018 order. Appellant’s second assignment of error is sustained.

The first assignment of error is rendered moot.

{¶28} Judgment reversed and 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 be sent to the Cuyahoga County Common Pleas

Court, Domestic Relations Division, 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.

EILEEN T. GALLAGHER, PRESIDING JUDGE

ANITA LASTER MAYS, J., and
FRANK D. CELEBREZZE, JR., J., CONCUR