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Martin v. Martin

December 5, 2008

SARAH J. MARTIN PLAINTIFF-APPELLANT
v.
NICHOLAS E. MARTIN DEFENDANT-APPELLEE



(Civil Appeal from Common Pleas Court) T.C. CASE No. 01DR0904.

The opinion of the court was delivered by: Walters, J. BY Assignment

OPINION

{¶1} Plaintiff-Appellant, Sarah Martin, appeals a judgment of the Clark County Common Pleas Court, Domestic Relations Division, finding her in contempt of court and overruling her motion to modify visitation. Sarah argues that the trial court erred in refusing to deem as admitted, her requests for admission that were not answered by her ex-husband, Nicholas; that the trial court erred in finding that she had willfully disobeyed a prior court order; and that the trial court abused its discretion in refusing to modify the parenting schedule as she requested. We find that the trial court erred in refusing to find that the facts contained in the requests for admission were conclusively established, and because of that we find that the trial court erred in overruling the motion to modify visitation. However, we find no error in the trial court's finding of contempt. Therefore, we affirm in part and reverse in part.

{¶2} Sarah and Nicholas Martin were divorced in April 2002. In the final decree, Sarah was designated the residential parent and custodian of their two year old son. Nicholas was awarded every-other-weekend, and holiday parenting time pursuant to the Clark County Standard Order. Within one year of the final decree, Sarah and the child moved, without objection, to West Virginia. After the divorce, Nicholas rarely exercised his visitation obligation.

In January 2007, after nearly five years of very limited contact with the child, Nicholas demanded that Sarah comply with the prior every-other-weekend visitation order, which would require a total of nine hours of travel time for the child on the visitation weekend.

{¶3} In February 2007, Nicholas filed a motion to show cause against Sarah alleging her failure to comply with the prior visitation order. Subsequently, Sarah filed a motion to modify visitation. On March 13, 2007, Sarah filed Requests for Admission, pursuant to Civ.R. 36. On April 11, 2007, the court ordered Nicholas to respond to the requests for discovery, and the requests for admission within ten days. After Nicholas failed to respond by that date, Sarah moved the trial court to deem the matters admitted. This motion was denied at the hearing on April 30, 2007, and the trial court then allowed Nicholas to present evidence on the facts addressed in the requests for admission.

{¶4} On May 3, 2007, the court found that Sarah had failed to provide visitation on three required weekends, one of which was after the filing of the motion, and therefore found her to be in contempt. The court also denied Sarah's motion to modify visitation. Sarah was ordered to pay Nicholas' attorney fees, and to provide visitation every-other-weekend, and set a pick-up and drop-off point approximately half way between the parents' residences.

{¶5} It is from this decision that Sarah appeals, setting forth three assignments of error for our review.

{¶6} As a preliminary matter, we note that Nicholas has failed to file a brief. Under such circumstances, App.R. 18(C) allows us to accept an appellant's statement of facts as correct, and to reverse the judgment if the appellant's brief reasonably appears to support reversal. However, we are not required to reverse. Castlebrook Apts. v. Ballard, Montgomery App. No. 22421, 2008-Ohio-4633, at ¶3, citing, Rogers v. Rogers, Butler App. No. 2004-08-207, 2005-Ohio-2661, at ¶2.

FIRST ASSIGNMENT OF ERROR

{¶7} "THE TRIAL COURT ERRED IN FAILING TO DEEM APPELLANT'S REQUESTS FOR ADMISSIONS ADMITTED WHEN APPELLEE REFUSED TO ANSWER SAID REQUESTS AND HAD BEEN GIVEN A SECOND OPPORTUNITY TO ANSWER THOSE REQUESTS."

{¶8} In her first assignment of error, Sarah argues that the trial court erred in refusing to deem the matters addressed in the Requests for Admission admitted. Just as Nicholas failed to respond to those requests, and other discovery requests, he has failed to respond to this assignment of error by failing to file a brief.

{¶9} Civ.R. 36 provides, in pertinent part:

{ΒΆ10} " * * * [a] party may serve upon any other party a written request for the admission, for purposes of the pending action only, of the truth of any matters within the scope of Civ.R. 26(B) set forth in the request * * * . The matter is admitted unless, within a period designated in the request, not less than twenty-eight days after service thereof * * * the party to whom the request is directed serves upon the party requesting the ...


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