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Smith v. Smith

Court of Appeals of Ohio, Eleventh District

September 23, 2013

JULIE A. SMITH, Plaintiff-Appellee,
v.
DEREK A. SMITH, Defendant-Appellant.

Civil Appeal from the Geauga County Court of Common Pleas, Case No. 02 DC 0450.

Julie A. Smith, pro se, (Plaintiff-Appellee).

Michael A. Partlow, (For Defendant-Appellant).

OPINION

COLLEEN MARY OTOOLE, J.

(¶1} Appellant, Derek A. Smith, appeals from the December 4, 2012 judgment of the Geauga County Court of Common Pleas, adopting in part, rejecting in part, and modifying a magistrate's decision.

(¶2} Appellant and appellee, Julie A. Smith, were married on October 19, 1996. One child ("the minor child") was born on March 7, 1998 as issue of the marriage.

(¶3} On May 24, 2002, appellee filed a complaint for divorce based on incompatibility. She demanded the following: temporary and permanent custody of the minor child; temporary and permanent child support and spousal support; an equitable division of property; and fees and costs in prosecuting the action. Appellant subsequently filed an answer and counterclaim, demanding, inter alia, that he be named residential parent and legal custodian of the minor child.

(¶4} Later that summer, the parties filed an agreed judgment entry on August 5, 2002. Appellant and appellee agreed to both be designated residential parents and legal custodians of the minor child; they agreed to follow the court's temporary parenting time schedule; and appellant agreed to pay child support in the amount of $636.08 per month.

(¶5} A month after the filing of the agreed judgment, appellant filed a motion to modify the August 5, 2002 entry. Appellant requested that he be granted full custody of the minor child. He alleged, inter alia, that appellee denied him visitation on numerous occasions, that appellee was alcohol dependent, and that he was concerned for his daughter's safety. Appellee filed a response, denying the allegations. On November 5, 2002, the court ordered the parties to submit to a custody evaluation and psychological examinations.

(¶6} On March 7, 2003, appellee filed a motion for leave to add new party defendants, (appellant's parents, Kendel and Judith Smith ("the Smiths")). Appellee maintained that the addition of the Smiths was necessary because the marital home was in their names. The court agreed with appellee and granted her motion to add the Smiths as new party defendants. As a result, on April 2, 2003, appellee filed a complaint against appellant and the Smiths, demanding that the Smiths transfer the marital home to appellant and appellee, subject to an equitable division. The Smiths filed an answer later that month.

(¶7} Thereafter, the parties filed a Shared Parenting Plan, which the court found to be in the best interest of the minor child. A shared parenting decree was filed on December 3, 2003. Appellant was ordered to pay $471.64 in child support per month. Also on that date, the parties were granted a divorce. The court ordered the following: certain personal property was divided between the parties; each was ordered to pay certain debts; each was ordered to pay their own attorney fees and expenses; neither party was ordered to pay spousal support to the other; the Smiths were ordered to pay appellee $2, 000; and appellee was ordered to relinquish her claims against the Smiths regarding the marital home.

(¶8} Over three years later, upon the request of appellant, an administrative review hearing for a modification of child support was held. On August 8, 2007, appellant was ordered to pay $595.14 per month, the new child support amount.

(¶9} Almost three years thereafter, on July 14, 2010, appellant filed three motions: (1) a motion to show cause and for attorney fees; (2) a motion to terminate the Shared Parenting Plan; and (3) an emergency ex parte motion for temporary custody. On August 9, 2010, appellant filed a motion to appoint a guardian ad litem for the minor child.

(¶10} On August 17, 2010, appellee filed four motions: (1) a motion to terminate shared parenting; (2) a motion for sole custody; (3) a motion for appellant to show cause why he should not be held in contempt; and (4) a motion for attorney fees.

(¶11} On September 24, 2010, the court granted appellant's motion to appoint a guardian ad litem. Attorney Mary K. Bender ("GAL") was appointed to serve as guardian ad litem for the minor child.

(¶12} In May 2011, a hearing was held before the magistrate on appellant's July 14, 2010 and appellee's August 17, 2010 motions. The main issues centered around alleged violations of the Shared Parenting Plan. Four incidents were discussed concerning appellee's handling of medical treatments with respect to the minor child, as well as appellee's handling of visitation.

(¶13} Before addressing the four incidents, we note that the Shared Parenting Plan states, in part:

(¶14} "2. The parents agree that if either has any knowledge of any illness, accident, problem in discipline, or change in the routine of [the minor child] or any other circumstances seriously affecting the health or welfare of [the minor child, ] he or she will promptly notify the other of such circumstances. Mother and Father shall consult with each other about [the minor child's] health care and shall discuss all major nonemergency medical decisions before a course of treatment is begun. * * * In the event of a medical emergency, either parent may authorize any necessary emergency treatment for [the minor child] and shall immediately [notify] the other parent of the emergency.

(¶15} "* * *

(¶16} "5. Father and Mother shall mutually agree upon the selection of appropriate professionals to render services to [the minor child, ] including but not limited to, physicians and/or dentists. Each parent has the right to be present with [the minor child] at medical, dental and other health related examinations and treatments. Each parent has the right * * * to consult with any treating physician or dentist or health care provider [of the minor child.]"

(¶17} The first incident concerning appellee's handling of medical treatments occurred when the minor child was six years old. The minor child chipped a baby tooth while eating. Appellant testified that appellee did not take the minor child to the dentist until a few months after the injury. Appellee testified that she did not specifically recall when she took the minor child to the dentist but that she and appellant discussed the chipped tooth and he had recommended Dr. Weisberg.

(¶18} The second incident involved another chipped baby tooth which happened about a year and a half before the hearing. The minor child chipped another tooth and half of it came out. It did not become abscessed. The minor child told appellant about her tooth. The other half of the broken tooth came out a couple of days later. Appellee told appellant that she was taking the minor child to the dentist.

(¶19} The third incident involved a jammed finger that occurred during gym class. The injury was painful but nothing was broken. Appellee took the minor child for x-rays and treated her finger by wrapping it with a bandage. Appellee stated she told appellant about the injury, but it is unclear as to when she did so. Appellee said she sent the x-ray negatives to appellant. Appellant stated that the minor child told him about the injury.

(¶20} The fourth incident occurred on the evening of Saturday, July 10, 2010, when the minor child slipped and fell and broke her leg. The minor child was in great pain and appellee immediately took her to the emergency room. The treating physician put the minor child's leg in a splint and recommended that she be seen again by an orthopedist within three to five days. Appellee did not call appellant to inform him about their daughter's injury until the following day, Sunday, July 11. Appellee admitted that she should have called appellant from the emergency room. Appellee took the minor child for a follow-up visit on Wednesday, July 14. The orthopedist put the minor child in a non-weight bearing cast and released her with instructions to return in about three weeks. The minor child went to appellant's house later that day. Appellant missed two and a half days of visitation, as he was supposed to have possession of his daughter on Mondays.

(¶21} There was also an issue regarding Christmas visitation at the hearing before the magistrate. The Shared Parenting Plan, in accordance with the Standard Visitation Guidelines, contains the heading, "Vacation Visitation, " which provides:

(¶22} "Christmas visitation shall alternate according to the Christmas Eve/Day schedule. If the non-residential parent's visitation is Christmas Eve then he/she shall have December 19th from 9:00 a.m. to December 24th at 10:00 p.m. If the nonresidential parent's visitation is Christmas Day, then he/she shall have December 24th at 10:00 p.m. to December 30th at 6:00 p.m."

(¶23} Appellant asserts that when he has the minor child from December 19 to December 24, the other dates, i.e., December 24 to December 30, are ordinary days for purposes of visitation, and vice versa. Appellant testified that every Christmas holiday since the parties' divorce, appellee has kept the minor child from him for times which are known and established to be his possession times, as a penalty for his exercising his Christmas visitation time, per the terms of the Shared Parenting Plan. Appellee's interpretation of "vacation" includes the entire time from December 19 to December 30, with Christmas and Christmas Eve being the "holidays" that are specifically assigned to one parent or the other.

(¶24} The parties agreed to resolve conflicts through mediation, as evidenced under paragraph 14 of the Shared Parenting Plan. Appellee participated in one or two mediations but declined to mediate the Christmas issue because she did not have enough money to pay her half of the fee.

(¶25} Following the hearing, the magistrate made 92 findings and issued his decision on June 16, 2011. Appellant filed timely objections. ...


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