Court of Appeals of Ohio, Eleventh District, Portage
JULIE M. CAIN, Plaintiff-Appellee,
JOHN A. CAIN, Defendant, LYNNE BENEK, et al., Third Party Intervenor-Appellant.
from the Portage County Court of Common Pleas, Domestic
Relations Division, Case No. 2009 DR 000597.
Michael A. Noble, Lentz, Noble & Heavner, LLC, (For
L Benek, pro se, (For Third Party Intervenor-Appellant).
R. WRIGHT, P.J.
Appellant, Lynne Benek, appeals the denial of her motion for
custody of her minor grandchild, E.C. She asserts that
appellee, Julie M. Cain, EC's mother is not a suitable
parent, and that it is in E.C.'s best interest for her to
have custody. We affirm.
Appellant is John A. Cain's mother. John and appellee
were marred for approximately three years and had one child,
E.C. Before the birth of their daughter, John and appellee
separated because John was having mental problems and was
prone to abusive behavior. In May 2011, a stipulated final
divorce was entered naming appellee residential parent and
legal custodian. John was granted visitation rights with
supervision by appellant.
Within two years of divorce, John and appellee became
embroiled in a series of disagreements regarding John's
visitation, his treatment of E.C, and the effect
appellee's boyfriend was having upon E.C.'s welfare.
At some point, E.C. accused John of engaging in sexual
behavior with her. Thus, appellee unilaterally stopped
John's visitation. An investigation was conducted, but no
independent evidence was found corroborating E.C.'s
accusation. Appellee did not move to terminate visitation and
after John filed a contempt motion, supervised visitation
Although appellee initially lived with her parents following
the divorce, she and E.C. later resided with her boyfriend.
At some point, appellee and her boyfriend had a physical
altercation resulting in a domestic violence charge against
him. Because the altercation occurred in E.C.'s presence,
John moved for a change of custody. The motion became moot
when appellee agreed to not allow any further contact between
E.C. and the boyfriend.
Approximately six months later, appellee violated the
agreement when she posted photographs on social media showing
E.C. with her and her boyfriend. A short time after that,
appellee married her boyfriend and took E.C. to again live
with him. This led appellant, E.C.'s paternal
grandmother, to move for emergency temporary legal custody,
asserting that it was unsafe for E.C. to cohabitate with
appellee's new husband. Following an evidentiary hearing,
appellant's motion was granted and the child lived with
appellant for nine months.
As temporary legal custodian, appellant moved to intervene in
the divorce proceeding. After that motion was also granted,
she moved for permanent custody, maintaining that appellee
was consistently denying John visitation by asserting false
accusations. Before a separate hearing was held, appellee
moved to her parents' home because of a second domestic
violence altercation with her then husband. Accordingly, at
the outset of the next hearing, she orally moved for custody
on the grounds that, since she planned to bring a separate
divorce action against her husband, E.C. would no longer have
contact with him.
Finding that appellant did not prove appellee to be unfit,
the trial court overruled her motion for permanent custody
and ordered legal custody of E.C. to appellee, so long as
appellee continues to reside with her parents. As to John,
the court reaffirmed supervised visitation. Appellant
appealed this decision. We affirmed. Cain v. Cain,
11th Dist. Portage No. 2016-P-0011, 2017-Ohio-708.
In April 2017, appellant again moved for permanent custody
alleging appellee to be unfit because she refused to show any
respect for visitation rights. In support, appellant referred
to a new confrontation between the two families, but
otherwise she relied primarily upon events that the court had
already considered in deciding prior motions.
Before appellant's motion was heard, John submitted two
motions. First, he moved for contempt on the grounds that
appellee was refusing to comply with the trial court's
order relating to summer visitation. Second, he moved for a
change of custody, arguing that a change of circumstances
occurred due to appellee's consistent refusal to honor
his visitation rights. As alternative relief under the second
motion, John requested unsupervised visitation.
An evidentiary hearing on all pending motions was held
September 5, 2017, during which the trial court heard
testimony from John, appellee, and appellant. As to
John's contempt motion, the trial court overruled it on
the basis that, even though appellee had
"technically" failed to follow certain visitation
orders, her conduct was not willful or wanton. As to the two
motions for change of custody, the court denied both on the
basis that neither John nor appellant proved a change in
circumstances. However, John's alternative request ...