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Haupt v. Haupt

Court of Appeals of Ohio, Eleventh District, Geauga

May 8, 2017

ANDREW W. HAUPT, Plaintiff-Appellee,
HEATHER A. HAUPT, Defendant-Appellant.

         Appeal from the Geauga County Court of Common Pleas, Case No. 11 DC 000358.

          Robert E. Zulandt, Jr., Zulandt & Smalheer, For Plaintiff-Appellee.

          Margaret M. Metzinger, Climaco, Wilcox, Peca, Tarantine & Garofoli Co., For Defendant-Appellant.


          THOMAS R. WRIGHT, J.

         {¶1} Appellant, Heather A. Haupt, appeals the trial court's judgment overruling objections to the magistrate's decision and adopting the magistrate's custody recommendation. In addition to evidentiary challenges, she contests the conclusion that the shared parenting plan is no longer in the child's best interest due to parental cooperation issues. We affirm.

         {¶2} Appellant and appellee, Andrew W. Haupt, were married for approximately two years and had one child, Holly, born December 22, 2010. Within one year of birth, Holly was diagnosed with eczema, a recurring condition causing skin irritability including reddening, dryness, and itching. Her condition requires regular application of various salves or creams to reduce discomfort and to moisturize, primarily after a bath or shower. Holly is also allergic to amoxicillin. Over the first five years of her life, Holly experienced other physical ailments.

         {¶3} Shortly after Holly's birth, the parties ceased living together, and appellee filed for divorce. Ultimately, the parties' separation agreement and shared parenting plan were incorporated into the final divorce decree. The shared parenting plan provides appellant with custody of the child at least 75 percent of the time and has specific provisions governing the child's care.

         {¶4} Even before the final decree was issued, child care disputes developed. Appellant questioned the manner in which appellee addressed Holly's hygiene and various ailments, including the eczema, while she was with him. Appellant questioned the character and parenting ability of various relatives or friends providing childcare.

         {¶5} As to the hygiene and health disputes, appellant alleged that when appellee returned Holly to her after he had custody for more than two days, her eczema would often be worse or she would be suffering from another illness. Medical records established that, during the first five years of Holly's life, appellant had taken her to a doctor's office or emergency room approximately 60 times. Thirty visits occurred immediately after appellee had custody. Based upon this, appellant asserted that much of her parenting time was spent helping Holly recover from her health problems.

         {¶6} A major dispute centered upon Holly bathing versus showering. Appellee's residence only has shower facilities. He deems this sufficient. In contrast, appellant believes Holly's skin condition requires bathing as opposed to showering. Medical records indicate that some of Holly's doctors think that a shower is generally sufficient except when her eczema is at its worst.

         {¶7} In light of appellant's belief that Holly's health suffers when she is with appellee, she demanded that he provide a list of items in his home and other homes he visits with Holly, such as furniture and chemicals, so that she could determine if Holly is allergic. Appellee did not appease.

         {¶8} As to the child care disputes, appellant deems appellee's relatives and friends as unqualified to provide care. Appellant objects to appellee's sister-in-law, Terri, as a childcare provider citing obesity, mental illness, alcoholism, and because another child had once fallen into a sewer hole while on Terri's property. Appellee supported the "alcohol" allegation, with claims that Terri kept alcohol in her home and served it when children were present.

         {¶9} Given appellant's suspicions about appellee's relatives, if she knew that her child would be seeing those relatives on a particular day, she would call the sheriff's department and ask that a "welfare check" be performed. One of these incidents occurred when appellant knew that Terri and her family would be visiting appellee's home on Easter. During the welfare checks, the deputies never found Holly in danger.

         {¶10} The parties also had ongoing disputes concerning appellee's shared parenting time. On multiple occasions, appellee would cancel his visitation claiming that he had to work. When he would attempt to reschedule the lost time, appellant would refuse to do so absent verification from his employer that he was actually working. In addition, at times appellant would unilaterally cancel appellee's parenting time. On more than one occasion, she refused to deliver the child for a weekend visit on the grounds that it was too cold outside. Additionally, rather than scheduling Holly's summer vacation time with her all at once, she would schedule it two or three days at a time, such that the days would directly conflict with appellee's regular visitation time.

         {¶11} In light of the constant conflict, the parties filed multiple post-decree child custody motions. In 2013, each party moved for termination or modification of the shared parenting plan. Furthermore, in April 2014, appellee filed a contempt motion against appellant, claiming that she was wrongfully depriving him of his time with Holly. Ultimately, the trial court referred the motions to a magistrate who appointed a new guardian ad litem ("GAL") to advance Holly's interests.

         {¶12} The initial evidentiary hearing on the pending motions was postponed so that appellant could obtain new counsel. Ultimately, the hearing went forward. After testimony of one witness was heard, the parties settled the majority of the custody disputes, but not summer parenting time. The settlement was memorialized and appellee dismissed his contempt motion.

         {¶13} A subsequent hearing was scheduled to address summer parenting time. However, before evidence was taken, appellant's counsel orally moved to withdraw from the case due to conflict between her and appellant. The magistrate granted the motion to withdraw to reset the hearing, and gave appellant three weeks to obtain new counsel.

         {¶14} Before the next evidentiary hearing took place, each party filed additional motions. Acting pro se, appellant requested that appellee be held in contempt for violating the terms of their most recent settlement. She further requested that appellee's parenting time be limited to 48 hours per visit. In his new motion, appellee again asked that the shared parenting plan be terminated and that he be named sole custodial parent.

         {¶15} At the ongoing hearing, appellant stated that she intended to represent herself. She also moved for dismissal of appellee's supplemental motion for custody, claiming it was not served upon her at her current address. In response, appellee's counsel conceded the motion was mailed to the wrong address, but that appellant was now fully aware of the motion and its substance. In denying the motion to dismiss, the magistrate held that the lack of proper service did not justify dismissal and instead, offered appellant a continuance if she was not prepared to go forward. She declined the continuance, and the hearing proceeded that day and multiple days thereafter.

         {¶16} The GAL participated in all of the hearings and filed four reports. In her first three reports, the GAL recommended that the parties continue to follow the shared parenting plan with some modifications. In her last report, however, the GAL deemed the shared parenting no longer feasible because appellant could not communicate with appellee and make joint decisions concerning Holly's welfare. The GAL, ...

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