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Cain v. Cain

Court of Appeals of Ohio, Eleventh District, Portage

July 30, 2018

JULIE M. CAIN, Plaintiff-Appellee,
JOHN A. CAIN, Defendant, LYNNE BENEK, et al., Third Party Intervenor-Appellant.

          Appeal from the Portage County Court of Common Pleas, Domestic Relations Division, Case No. 2009 DR 000597.

          Michael A. Noble, Lentz, Noble & Heavner, LLC, (For Plaintiff-Appellee).

          Lynne L Benek, pro se, (For Third Party Intervenor-Appellant).


          THOMAS R. WRIGHT, P.J.

         {¶1} 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.

         {¶2} 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.

         {¶3} 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 continued.

         {¶4} 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.

         {¶5} 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.

         {¶6} 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.

         {¶7} 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.

         {¶8} 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.

         {¶9} 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.

         {¶10} 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 ...

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