Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Yannitell v. Oaks

November 26, 2008

MARK YANNITELL, PLAINTIFF-APPELLEE,
v.
CHEYENNE YANNITELL OAKS, DEFENDANT-APPELLANT.



The opinion of the court was delivered by: McFarland, J.

DECISION AND JUDGMENT ENTRY

{¶1} Appellant, Cheyenne Yannitell Oaks, appeals from the judgment of the Washington County Court of Common Pleas denying her request that her ex-husband, Appellee Mark Yannitell, have only supervised visitation with their three minor children. In support of her appeal, Appellant presents two assignments of error. First, Appellant contends that the trial court's denial of her request is against the manifest weight of the evidence, is an abuse of discretion, and is not in the best interests of the children. Secondly, Appellant contends that the trial court erred in relitigating evidence that it should have been barred from relitigating under the doctrine of collateral estoppel. Because we find no merit to the issues raised by Appellant, and because the trial court's decision was supported by competent, credible evidence, we affirm the judgment of the trial court.

FACTS

{¶2} Appellant and Appellee were divorced in Washington County on August 23, 2005. Appellant was designated the residential parent of the parties' three minor children and Appellee was granted standard orders of visitation. There was no shared parenting plan. Subsequent to the divorce, Appellee relocated to Texas and remarried. Appellant also remarried and now resides in Franklin county.*fn2

{¶3} In 2007, several motions came before the trial court for determination. The first of these, filed on February 20, 2007, was a motion by Appellant to transfer jurisdiction to Franklin county. This motion was denied on March 14, 2007. The next motion, which was filed by Appellant on March 23, 2007, was an emergency ex parte motion to suspend or terminate visitation. On the same day, Appellant also filed a motion to reallocate parental rights and responsibilities, claiming that a change in circumstances had occurred. In support of these motions, Appellant attached exhibits which included the following: (1) a copy of a criminal complaint filed in West Virginia charging Appellee with a felony charge of false pretenses, and stating that a warrant had been issued for his arrest; (2) an ex parte order issued by a North Carolina court indicating that Appellee's visitation with his other child from another marriage was modified to supervised visitation only; (3) the affidavit of Appellant; and (4) a copy of a videotape of an internet YouTube video created by Appellee regarding his children and issues related to custody and visitation.

{¶4} In response to these filings, on March 30, 2007, Appellee filed an affidavit in response to Appellant's motion for an ex parte order. Subsequently, on April 12, 2007, Appellee filed a motion to show cause and affidavit in support, asking that Appellant be required to show cause as to why she had failed to comply with the prior orders of the court, namely with the order of visitation, which Appellant had denied Appellee, as a result of her concerns, and also based upon advice of counsel. The trial court issued an entry on April 23, 2008, ordering that Appellee's visitation with the minor children be supervised, setting the matter for further hearing on June 14, 2008.

{¶5} In the meantime, on April 24, 2008, Appellant apparently filed a motion for a civil protection order ("CPO") in the Franklin County Court of Common Pleas. A hearing on that motion was apparently held on May 8, 2007, which resulted in the granting of a CPO against Appellee with respect to Appellant and their three minor children. Although Appellant filed a copy of the transcript of that hearing in the present case on June 13, 2007, neither a copy of the complaint, nor a copy of the final order granting the CPO was filed or made part of the record.

{¶6} On June 14, 2007, a hearing was held in the Washington County court on all pending motions. The entry issued by the court as a result of that hearing indicated that "[t]he parties advised the Court that a resolution of the case had been negotiated and the same was read into the record by attorney Stephen P. Ames. Upon inquiry, Plaintiff's [Appellee herein] attorney acknowledged the accuracy of the agreement as read into the record and Defendant [Appellant herein] personally requested that the agreement be approved and made the Order of the Court. The entry goes on to state that "[b]ased upon the agreement of the parties, the Court makes the following ORDERS:

I. Plaintiff, Mark Yannitell, shall submit to psychological testing by Dr. Michael Harding, providing Dr. Harding is available to complete the testing in a timely fashion. In the event Dr. Harding is unavailable, the parties shall utilize the services of Dr. Gail Rymer or any other Doctor agreeable to both parties. The evaluation is to determine (a) If Plaintiff is suicidal and because of such condition he presents a risk of harm to the parties' three minor children while exercising unsupervised visitation and (b) If Plaintiff suffers from any additional mental health condition that, without proper treatment, presents a risk of harm to the parties' three minor children if Plaintiff is permitted to exercise unsupervised visitation.

II. Both parties, through their counsel of record, shall be given the opportunity to advise the testing Doctor of concerns, or lack thereof, they have relative to Mark Yannitell's mental health. Both parties shall also be given the opportunity to supply the Doctor with physical evidence, such as video tapes, e-mails, letters, etc. Copies of all such material supplied to the Doctor shall also be provided to opposing counsel of record.

III. The report of the Doctor shall be filed with the Court with a copy provided to each attorney of record. * * *"

{¶7} The matter came on for hearing on September 4, 2007. When it became apparent that Dr. Harding would not recommend that Appellee's visitation be supervised, Appellant requested and was granted a continuance in order to obtain her own expert; however, the trial court reinstated Appellee's visitation with the children pursuant to the previous orders of the court.

{¶8} The matter was finally heard by the court on December 10, 2007. At that hearing, both Dr. Harding, as well as Appellant's retained expert, Dr. Paulucci, testified. After hearing testimony by both experts, as well as by the parties and various witnesses, the trial court denied Appellant's motions and ordered that Appellee continue to have unsupervised visitation, with one caveat. Pursuant to the recommendation expressed by Appellant's expert, Dr. Paulucci, the trial court ordered: "As a prophylactic measure, Plaintiff [Appellee] shall submit a statement from a family physician regarding Plaintiff's need or lack of need for treatment of depression or other mental health condition. The first such statement shall be supplied to Defendant [Appellant] before Plaintiff exercises visitation during the 2007 Christmas Holiday. Additional statements from Plaintiff's Doctor shall be supplied to Defendant at least thirty (30) days before exercised summer visitation."

{¶9} It is from this order that Appellant now brings her current appeal, assigning the following errors for our review.

ASSIGNMENTS OF ERROR

{¶10} "I. THE TRIAL COURT'S DECISION TO DENY APPELLANT'S REQUEST FOR THE REALLOCATION OF PARENTAL RIGHTS AND RESPONSIBILITIES IS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE AND IS AN ABUSE OF DISCRETION OF THE TRIAL COURT AND NOT IN THE BEST INTEREST OF THE PARTIES' THREE MINOR CHILDREN.

{¶11} II. THE TRIAL COURT ERRED IN RELITIGATING EVIDENCE THAT IT SHOULD HAVE BEEN BARRED FROM RELITIGATING UNDER THE DOCTRINE OF COLLATERAL ESTOPPEL."

LEGAL ANALYSIS

{¶12} In her first assignment of error, Appellant contends that the trial court's decision to deny her request for the reallocation of parental rights and responsibilities was against the manifest weight of the evidence, was an abuse of discretion and was not in the best interests of the children. We initially note that the motion at issue that was denied at the trial court level was styled as a motion to reallocate parental rights and responsibilities and was based on an alleged change in circumstance. However, as the court properly noted during the hearing on the motion, the motion was essentially a motion for a modification of visitation, which is governed by R.C. 3109.051 and only involves a best interest of the child analysis, rather than a motion for reallocation of parental rights and responsibilities, which is governed by R.C. 3109.04 and requires that a change in circumstance be demonstrated, as well as a best interest of the child analysis. R.C. 3109.04 and 3109.051; See, also, Braatz v. Braatz, 85 Ohio St.3d 40, 1999-Ohio-203, 706 N.E.2d 1218; Flynn v. Flynn, Franklin App. No. 02AP-801, 2003-Ohio-990. Thus, we will review Appellant's first assignment of error as a challenge to the court's denial of her motion for modification of visitation.

{¶13} Appellant raises several issues under her first assignment of error. First, Appellant essentially contends that the trial court improperly weighed the expert testimony provided by Dr. Harding and Dr. Paulucci, arguing that more weight should have been afforded to Dr. Paulucci's testimony. Appellant also argues that Appellee was not truthful in his testimony or during the evaluation by Dr. Harding. Second, Appellant contends that the trial court should have given more weight to the testimony of Michelle Dyer, another ex-wife of Appellee's and mother of his teenage daughter. Specifically, Appellant argues that the trial court abused its discretion in not placing more weight on testimony from Dyer that Appellee had failed to return their child on time after visitation and also had made false allegations of abuse to Children Services.

{¶14} Third, Appellant essentially contends that the trial court abused its discretion in failing to defer to the credibility determinations made by the Franklin County court in issuing the CPO, arguing that by hearing evidence on issues already litigated during the motion for the CPO, the trial court was "relitigating evidence that has already been litigated." Appellant claims such action is barred by the doctrine of collateral estoppel. Finally, Appellant contends that the trial court erred by ordering standard visitation for Appellee to take place in Florida in a home with Appellee's new wife, who is wanted on a felony charge. Specifically, Appellant argues that the trial court did not consider the relevant best interest factors, including the factors contained in R.C. 3109.051(D)(2)(7) and (9).

{¶15} "[W]hen a parent seeks to modify a previous visitation arrangement, it is that party who bears the burden of proof as to whether the prior arrangement was not in the best interests of the [child]." Bodine v. Bodine (1988), 38 Ohio App .3d 173, 175. We will not reverse a trial court's decision on a motion for modification of visitation rights absent an abuse of discretion. Archer v. Archer (Sep. 24, 1997), Pickaway App. No. 96CA37. An abuse of discretion "connotes more than an error of law or judgment; it implies that the court's attitude is unreasonable, arbitrary or unconscionable." Blakemore v. Blakemore (1983), 5 Ohio St.3d 217, 219. When applying the abuse of discretion standard of review, we must not substitute our judgment for that of the trial court. In re Jane Doe I (1991), 57 Ohio St.3d 135, 138. We must presume the findings of the trial court are correct because the trial judge is best able to observe the witnesses and use those observations in weighing the credibility of the testimony. Seasons Coal Co. v. Cleveland (1984), 10 Ohio St.3d 77, 81; See, also Knapp v. Knapp, Lawrence App. No. 05CA2, 2005-Ohio-7105.

{¶16} Further, with respect to Appellant's contentions regarding the weight afforded to certain testimony by the trial court, we note that the judgment of a trial court should not be overturned as being against the manifest weight of the evidence if some competent and credible evidence supports that judgment. See C.E. Morris Co. v. Foley Construction Co. (1978), 54 Ohio St.2d 279, 376 N.E.2d 578, syllabus. Factual findings of the trial court are to be given great deference on review because the trial court is in a better position "to view the witnesses and observe their demeanor, gestures and voice inflections, and use these observations in weighing the credibility of the proffered testimony." Seasons Coal Co. v. Cleveland (1984), 10 Ohio St.3d 77, 80, 461 N.E.2d 1273; see, also, Myers v. Garson (1993), 66 Ohio St.3d 610, 615, 614 N.E.2d 742.

{¶17} The credibility of witnesses and the weight given to the evidence are issues for the trier of fact. See Cole v. Complete Auto Transit, Inc. (1997), 119 Ohio App.3d 771, 777-778, 696 N.E.2d 289; GTE Telephone Operations v. J & H Reinforcing & Structural Erectors, Inc., Scioto App. No. 01CA2808, 2002-Ohio-2553, at ¶ 10; Reed v. Smith (Mar. 14, 2001), Pike App. No. 00CA650. The trier of fact is better suited than an appellate court to view the witnesses and observe their demeanor, gestures, and voice inflections and to use those observations in weighing credibility. See Myers v. Garson and Seasons Coal Co. v. Cleveland, supra. Thus, the trier of fact is free to believe all, part, or none of the testimony of any witness who appears before it. See Rogers v. Hill (1998), 124 Ohio App.3d 468, 470, 706 N.E.2d 438; Stewart v. B.F. Goodrich Co. (1993), 89 Ohio App.3d 35, 42, 623 N.E.2d 591; see, also, State v. Nichols (1993), 85 Ohio App.3d 65, 76, 619 N.E.2d 80; State v. Harriston (1989), 63 Ohio App.3d 58, 63, 577 N.E.2d 1144.

{ΒΆ18} The first issue raised under Appellant's first assignment of error deals with the weight afforded by the trial court to the expert testimony of Drs. Harding and Paulucci. As set forth above, the parties agreed that Appellee would be evaluated by Dr. Harding. Dr. Harding's expert opinion, after evaluating Appellee, was that Appellee did not pose a current threat to himself or his children, should he be permitted to exercise unsupervised visitation with them. Appellant's expert, Dr. Paulucci, did not conduct an evaluation of Appellee, but did review the raw data submitted to Dr. Harding, as well as Dr. Harding's report. In her brief, Appellant seems to argue that it was Dr. Paulucci's opinion that Appellee did pose a threat to his ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.