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Johnson v. Ulmer

Court of Appeals of Ohio, Second District

September 27, 2013

BRITTANY R. JOHNSON Plaintiff-Appellant
MICHAEL D. ULMER, Defendant-Appellee

Civil appeal from Common Division Pleas Court, Juvenile, T.C. NO. P9044

PATRICIA N. CAMPBELL, Atty. Reg. No. 0068662 and STEPHEN D. GREGG, Atty. Reg. No. 0089577 Attorneys for Plaintiff-Appellant

MICHAEL D. ULMER, 1920 Bridge Street, Apt. 710, Chillicothe, Ohio 45601 Defendant-Appellee



(¶ 1} This matter is before the Court on the Notice of Appeal of Brittany Johnson,

filed February 28, 2013. Johnson and Michael Ulmer are the parents of A.J., born May 28, 2008, and Johnson appeals from the February 13, 2013 decision of the juvenile court which found her in contempt of court for violating the court's order regarding Ulmer's parenting time, denied her request that Ulmer's parenting time be supervised, and determined that Ulmer "has not willfully violated the Court's child support order." Ulmer did not file a brief herein.

(¶ 2} Johnson filed a Complaint for Paternity, Sole Custody, Child Support and Other Related Matters on August 2, 2010. On October 26, 2010, after Ulmer's paternity was established, he filed a Motion to Establish Shared Parenting Plan/Motion for Allocation of Parental Rights and Responsibilities/Request for Interim Parenting Time. Following a pre-trial conference, an Agreed Entry was filed that established interim parenting time for Ulmer and determined his child support obligation.

(¶ 3} Following a hearing, the court issued a Judgment on April 13, 2011 that granted legal custody of A.J. to Johnson, maintained Ulmer's child support obligation as set forth in the Agreed Entry, and set forth Ulmer's parenting time schedule pursuant to the attached "Age Appropriate Visitation Guideline, " with certain modifications. One modification is that "All visits may be exercised at a location of Mr. Ulmer's choice; however, Mr. Ulmer shall not permit the child to be in the presence of his mother's husband. Mr. Ulmer may permit the child to be in the presence of his mother as long as Mr. Ulmer is also present."

(¶ 4} On September 24, 2012, Ulmer filed a motion requesting that the court find Johnson in contempt for denying him parenting time with A.J. His motion provides that Johnson was "noncompliant on several occasions regarding court ordered visitation." On October 10, 2012, Johnson filed a Motion for Supervised Parenting Time, asserting that Ulmer "frequently exercises his parenting time at his mother's residence where he allows the minor child to be in the presence of his mother's husband, which is in direct violation of the Judgment filed on April 13, 2011." Johnson also filed a Motion for Contempt and Other Related Matters, in which she asserted that Ulmer "is not paying his child support obligation" and is allowing A.J. "to be in the presence of his mother's husband." On November 1, 2012, Ulmer filed an Amended Motion to Show Cause and Other Related Matters, which delineates the dates that he asserts Johnson denied him parenting time, namely September 7, 2012, September 21, 2012, October 5, 2012, and "one week of parenting time during the summer of 2012, " and "one weekend in November 2011." Ulmer also sought to modify his parenting time.

(¶ 5} A hearing was held on the motions on February 11, 2013, at which both Johnson and Ulmer testified. Ulmer testified that he lives in Chillicothe, Ohio. He stated that he worked as a server at Red Lobster for almost a year until he was laid off in June, 2012. He testified that he "just came from an interview today" at Towne Properties, for a job as an administrative assistant. He stated that he is not voluntarily unemployed, and that he has not quit any of his jobs. He stated that he last made a child support payment in November of one thousand dollars. On cross-examination, he acknowledged writing on his FaceBook page on December 8, 2012, that he was not looking for work, and he testified, "I wasn't looking for a job because I went to Florida" for a vacation at a timeshare owned by his wife's grandfather. He stated that he is planning to move to Dayton. According to Ulmer, in looking for work, he "applied to Sam's Club, I applied to Liberty Mutual, I applied to Express temp agencies. * * * I applied to the Reserve Network temp agency. I've applied for like 50 jobs." He also stated that he applied to PNC and Fifth Third. Ulmer acknowledged that his most recent child support payment was "a tax refund intercept." He acknowledged that he is in arrears $2, 600.00 in child support. On redirect, Ulmer stated that he believes child support is necessary and that he intends to make payments.

(¶ 6} Ulmer testified that his visitation schedule consisted of one overnight visitation with A.J. every other weekend and three hours midweek. He asked that his parenting time be increased to two nights on the weekend, from Friday to Sunday, and that his mid-week hours be "transferred to the weekend." Ulmer stated that Johnson denied visitation on September 7, 2012, September 21, 2012, and October 5, 2012, because he failed to call her ahead of time to confirm his visitation. He stated that she denied him a week of visitation in the summer of 2012, and that Johnson "thinks that we had made an agreement to switch the dates around, which there was no agreement." According to Ulmer, he "was supposed to get [A.J.] for Thanksgiving and [Johnson] told me to talk to my lawyer, " and that "Christmas, I was supposed to get her as well and I text messaged her and she said she would let me get her for two hours, but my, my schedule wouldn't allow me" to be there for the two hours. Ulmer testified that he has not seen A.J. in five months.

(¶ 7} Ulmer testified that A.J. has never been harmed while in his care. Ulmer admitted violating the court's order regarding his stepfather, Lester Allen, on Mother's Day, 2012, and he stated that he has done so "maybe ten" times. Ulmer stated that Allen was convicted of unlawful sexual conduct with a minor, and that he is a registered sex offender. Ulmer identified a photograph, provided by Johnson, depicting A.J. in the presence of Allen and other family members. He stated that his visitations occur at his mother's Beavercreek home since he resides in Chillicothe. When asked if Johnson was aware that A.J. was in Allen's presence, he responded, "She knew that it would be a possibility every time that I got my daughter, that that's where I would take her, to my mother's house where Lester lives." He stated that A.J. has never been harmed while in Allen's presence. In response to a question from the court, Ulmer stated that Johnson has specifically told him that it is all right for A.J. to be around Allen. Ulmer stated that in the future he will honor the court order that A.J. is not to be in the presence of Allen. Ulmer stated that Johnson "knew Lester and his history prior to us having [A.J.]." Ulmer testified, "I'll do whatever it takes to protect my daughter. He, Lester has never been around [A.J.] without my supervision." When asked what protection he believed A.J. needed from Allen, Ulmer responded, "* * * No protection."

(¶ 8} The following exchange occurred on recross-examination:

Q. Can we assume correctly that you are going to continue to go over to your mom's when you have your daughter?
A. It depends what the judgment is of the court.
Q. How do we know that Mr. Allen is not going to be present at his wife's house while you bring your daughter over there, Mr. Ulmer?
A. I won't take her over there if he is there.

(¶ 9} Ulmer stated that if his motion for extended parenting time is granted, he wants to exercise his full weekend visitation at his home in Chillicothe, and that he is "planning on moving back to Dayton here within the next couple months. And then it will be in Dayton, in my household in Dayton." He stated that he will not reside with his mother.

(¶ 10} Johnson stated that she resides in Beavercreek and is employed as a nurse. She stated that she never agreed to allow A.J. to be in Allen's presence. She stated that supervision of Ulmer's visitation is necessary so "[t]hat way I can know [A.J.] is protected and she's not being around Lester." Regarding her initial denial of visitation, she stated, "What happened, when Michael was talking about that, I had asked him to let me know on Mondays or Tuesdays if he was going to be able to make it for the weekend. Because I work nights, I leave for work at 6:00 or 6:30. When he comes at 6:00, if he just doesn't show up, I don't have a babysitter." According to Johnson, "A couple times he did come right when I was leaving, and he just wouldn't text me back and let me know that he was coming. I'm requesting that the Judge will put that in the paper, that he can at least have the decency to tell me if he's coming or not so I can arrange a babysitter."

(¶ 11} Johnson admitted that she further withheld visitation beginning on September 7 or 8, 2012, after she observed the photograph, identified by Ulmer, on the Facebook page of Ulmer's sister depicting A.J. and Allen together with several family members. She testified, "I was withholding visits from Michael because I wanted to protect my daughter. She's four years old, she can't protect herself, only I can. That is the only reason that I wasn't letting him have her. It had ...

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