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Jagodzinski v. Abdul-Khaliq

Court of Appeals of Ohio, Fifth District, Licking

May 9, 2018

ANDREA JAGODZINSKI Plaintiff-Appellee
v.
OMRAN ABDUL-KHALIQ Defendant-Appellant

          Appeal from the Licking County Court of Common Pleas, Domestic Relations Division, Case No. 11-DR-01162 RPW

          For Plaintiff-Appellee PHILIP L. PROCTOR

          For Defendant-Appellant OMRAN ABDUL-KHALIQ, PRO SE

          JUDGES: Hon. John W. Wise, P.J. Hon. William B. Hoffman, J. Hon. Earle E. Wise, Jr., J.

          OPINION

          HOFFMAN, J.

         {¶1} Defendant-appellant Omran Abdul-Khaliq ("Father") appeals the September 30, 2016 Opinion and Judgment Entry and the February 23, 2017 Opinion and Judgment Entry entered by the Licking County Court of Common Pleas, Domestic Relations Division, which overruled his objections to the Magistrate's June 13, 2016, and July 27, 2016 Decisions, recommending Father's parenting time be suspended and plaintiff-appellee Andrea Jagodzinski ("Mother") be permitted to relocate to the state of Florida with the parties' minor child, and approved and adopted said decisions as orders of the court.

         FACTS AND PROCEDURAL HISTORY

         {¶2} Mother and Father are the biological parents of one child. The parties were never married. Mother filed a complaint to establish paternity on June 6, 2006, in Franklin County. The parties executed a shared parenting plan in June, 2009. On May 31, 2011, Mother filed a motion for emergency custody order and a motion to reallocate parental rights and responsibilities. The case was transferred to the Licking County Court of Common Pleas, Domestic Relations Division, on July 13, 2011. The parties subsequently reached a settlement agreement, which the trial court modified by Agreed Judgment Entry filed February 10, 2012. The parties essentially agreed to return to the terms of the 2009 shared parenting plan with some modifications.

         {¶3} Between June, 2012, and December, 2013, both parties filed numerous contempt motions, ex parte motions for custody, and a petition for civil protection order, which was ultimately denied. Over the course of four days between November, 2013, and February, 2014, the magistrate conducted a final hearing on the parties' motions. The magistrate filed his decision on April 21, 2014, recommending the shared parenting agreement be terminated, and Mother be granted sole custody of the child. Father filed objections to the decision on May 5, 2014.

         {¶4} Subsequently, Father was indicted on one count of intimidation, in violation of R.C. 2921.03, a felony of the third degree; one count of trademark counterfeiting, in violation of R.C. 2913.34, a misdemeanor of the first degree; and one count of impersonating a peace officer, in violation of R.C. 2921.51, a misdemeanor of the fourth degree. As a result, Mother filed an ex parte motion for emergency custody of the minor child. The magistrate granted Mother's motion, designating her as the temporary legal custodian of the child, and suspending Father's parenting time.

         {¶5} On March 26, 2015, the trial court overruled Father's objections to the magistrate's April 21, 2014 decision, and approved and adopted said decision as order of the court. Via Judgment Entry filed April 24, 2015, the trial court terminated the shared parenting plan, and granted sole custody of the child to Mother. Father filed a motion for new trial, which the trial court denied. Father appealed the April 24, 2015 Judgment Entry, and this Court affirmed. Jagodzinski v. Abdul-Khaliq, 5th Dist. Licking App. No. 15-CA-31, 2015-Ohio-5510.

         {¶6} On May 14, 2015, Father was convicted in Licking County Court of Common Pleas Case No.2014 CR 00305, of one count each of intimidation, trademark counterfeiting, and impersonating a peace officer, and sentenced to a period of incarceration of 18 months.

         {¶7} Via Judgment Entry filed February 12, 2016, the trial court reactivated the case which had been stayed pending the appeal, and scheduled the matter for final hearing on April 18, 2016. Father requested a continuance of the hearing due to his incarceration, which the trial court denied. Mother filed a Notice of Intent to Relocate on April 18, 2016, and a motion to suspend Father's parenting time on April 19, 2016. Father filed an objection to Mother's intent to relocate, and requested the trial court enter an order restraining Mother from removing the child from the area, pending "all final outcome of [Father's] criminal appeal." The magistrate scheduled an oral hearing on Father's objection for July 18, 2016. The magistrate further ordered Mother be restrained from permanently removing the child from Licking County, Ohio, pending the outcome of the hearing.

         {¶8} The magistrate filed a decision on June 13, 2016, recommending Father's parenting time be suspended. The magistrate found:

[Father] has been and is presently incarcerated in the Ohio penal system after having been convicted of a felony offense of intimidation. The Magistrate is not persuaded or convinced that the parties' son's best interest will be served by mandating [Mother] to transport the child to prison to visit with [Father] in accordance with Local R. 19.0, which is the current parenting time order, or pursuant to another arrangement at this time.
The Court retains jurisdiction over the parenting time issue. Once he is released from prison, [Father] may file a motion requesting that his parenting time be reinstated. Magistrate's June 13, 2016 Decision at 2.

         {¶9} On June 27, 2016, Father filed objections to the magistrate's decision as well as a motion to continue the July 18, 2016 hearing. Father requested the continuance due to his incarceration, his expected mid-July release date, and his attorney's lack of contact with him. Via Magistrate's Order filed July 6, 2016, the magistrate, having "reviewed [Father's] motion as well as the Court's docket of this matter, overruled Father's request for a continuance.

         {¶10} The magistrate filed a decision on July 27, 2016, recommending Mother and the child be permitted to relocate to Florida. The magistrate found Mother had received "an advantageous employment offer" in Florida, and she and the child would be able to reside with Mother's mother until she was in a position to move to a home of her own. The magistrate further found Mother's mother had "an excellent, loving relationship" with the child. The magistrate added:

[Mother's] testimony further establishes that [she] has bona fide concerns for her personal safety in relation to [Father] once he is released from prison, as she believes he blames her for his current incarceration. The Magistrate finds that [Mother's] concerns are reasonable in light of the evidence admitted into the record during the post-decree litigation that took place in this matter during 2011 through the present. Further, the evidence presented concerning [Father's] 2015 felony conviction for intimidating a police officer and veiled threats contained in his sentencing statement before the General Division in August of 2015 does not diminish [Mother's] concerns. Magistrate's July 27, 2016 Decision at 3-4.

         {¶11} Via Opinion and Judgment Entry filed September 30, 2016, the trial court overruled Father's objections to the magistrate's June 13, 2016 decision, and approved and adopted said decision as order of the court. Via Opinion and Judgment Entry filed February 23, 2017, the trial court overruled Father's objections to the magistrate's July 27, 2016 decision, and approved and adopted said decision as order of the court.

         {¶12} It is from these judgment entries Father appeals, assigning as error:

I. THE TRIAL COURT ABUSED ITS DISCRETION, PREJUDICED THE APPELLANT AND VIOLATED HIS DUE PROCESS RIGHTS WHEN IT DENIED THE APPELLANT'S MOTION TO CONTINUE THE APRIL 18, 2016 CONTEMPT HEARING AND THE JULY 18, 2016 RELOCATION HEARING.
II. THE TRIAL COURT ABUSED ITS DISCRETION TO THE PREJUDICE OF THE APPELLANT WHEN IT DENIED DEFENDANT'S MOTIONS TO CONTINUE AFTER HIS ATTORNEY OF RECORD FAILED TO SHOW FOR TWO SCHEDULED COURT HEARINGS OR FILE A MOTION TO WITHDRAW AS ATTORNEY OF RECORD.
III. THE TRIAL COURT ERRED TO THE PREJUDICE OF THE APPELLANT AND ABUSED ITS DISCRETION WHEN IT GRANTED PLAINTIFF'S MOTION TO SUSPEND DEFENDANT'S PARENTING TIME WITHOUT AN ORAL HEARING, REFUSAL TO SCHEDULE AN IN-CHAMBER INTERVIEW OF THE MINOR CHILD, GRANTED PLAINTIFF'S REQUEST TO SEAL ...

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