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Jonathan W. v. Ashley W.

Court of Appeals of Ohio, Fifth District, Muskingum

December 12, 2019

JONATHAN W. Plaintiff-Appellant
v.
ASHLEY W. Defendant-Appellee

          Appeal from the Muskingum County Court of Common Pleas, Domestic Relations Division, Case No. DE2008-0358

         JUDGMENT: AFFIRMED

          For Plaintiff-Appellant: JONATHAN W., PRO SE

         For Defendant-Appellee: No Appearance

          JUDGES: Hon. W. Scott Gwin, P.J. Hon. John W. Wise, J. Hon. Patricia A. Delaney, J.

          OPINION

          DELANEY, J.

         {¶1} Plaintiff-Appellant Jonathan W. appeals the April 10, 2018 judgment entry of the Muskingum County Court of Common Pleas, Domestic Relations Division. Defendant-Appellee is Ashley W., who did not file an Appellee's brief.

         FACTS AND PROCEDURAL HISTORY

         {¶2} Plaintiff-Appellant Jonathan W. and Defendant-Appellee Ashley W. are the biological parents of two children, C.G.W. (born on February 29, 2004) and J.C.W. (born on February 27, 2006). Mother and Father were never married. Brenda R. is the maternal grandmother of the children.

         {¶3} On July 10, 2008, Mother and Father entered into an Agreed Order where Mother was named the residential parent and legal custodian of the children. Father was ordered to pay child support.

         {¶4} On October 4, 2013, Father moved for the reallocation of parental rights and responsibilities. It was determined that Mother was drug dependent and Maternal Grandmother was caring for the children. Father had relocated to Florida, secured employment as a teacher, and was married. The trial court granted Father's motion for reallocation of parental rights on March 19, 2014, naming Father as the residential parent and legal custodian. It determined there had been a change of circumstances where Mother was drug dependent and not participating in drug treatment. Visitation with Mother was at Father's discretion.

         {¶5} In the March 19, 2014 order, the trial court found there was insufficient evidence to establish a child support order for Mother. Father submitted a proposed child support worksheet where it was suggested that Mother had an annual earning ability of $11, 778.00. The trial court found there was no evidence of Mother's past earning ability and Mother was currently unemployed due to her drug abuse, and she had numerous drug related convictions. The trial court stated it would consider a motion for child support if Father could establish a better basis for Mother's earnings ability.

         {¶6} On July 8, 2014, Father and Maternal Grandmother entered into a consent agreement where Maternal Grandmother was permitted visitation with the children for 14 days during summer vacation.

         {¶7} On March 22, 2018, Mother filed a Motion for Change in Parenting Time. Around that time, Father filed a Complaint for Custody in Florida. Father filed a Motion to Declare the State of Ohio an Inconvenient Forum. On August 22, 2018, the trial court overruled Father's motion and found Ohio was the appropriate jurisdiction to consider Mother's motion for change in parenting time. The trial court set the matter for a hearing on April 5, 2019. The trial court permitted Father to attend the hearing by telephone.

         {¶8} At the hearing, Mother and Maternal Grandmother appeared in person and Father appeared by telephone. None of the parties were represented by counsel. Mother requested six weeks of visitation with the children during the summer, communication with the children on Skype two times a week, and notification from Father regarding emergencies with the children. Father agreed Mother should have visitation and communication with the children, but due to the children's busy schedules, Father argued three-week visitation concurrent with Maternal Grandmother's visitation and Skype communication once a week would fit with the children's schedules. At the time of the hearing, the children were 13 and 15 years old.

         {¶9} Mother testified as to her progress with drug treatment. She had an active case with Muskingum County Child Protective Services after her child was born on January 12, 2018. Mother did not reside with the child's father, who was unknown. Mother was receiving drug tests and attending AA, NA, and behavioral therapy. She submitted letters as exhibits from Muskingum Children Services and Muskingum Behavioral Health favorable to Mother's progress. Prior to the hearing, Mother was ordered to submit her exhibits to Father, but the Clerk of Courts told Mother that she was not required to send the exhibits to Father. The trial court read the exhibits into the record. Father questioned Mother as to the stability of her drug treatment and if there were safeguards in place in case of relapse. Mother resided with Maternal Grandmother.

         {¶10} Mother testified she was not currently employed. Father was employed and paid for the children's health insurance.

         {¶11} On April 10, 2019, the trial court issued its judgment entry granting Mother parenting time for five weeks in Ohio during the children's summer vacation. The trial court found that Mother had a history of drug abuse but had voluntarily entered outpatient treatment in February 2018. She regularly attended AA and NA support groups. Mother was working with the Muskingum County Adult and Child Services and the Muskingum County Juvenile Court/Family Dependency Court for the care of her third child. Father agreed that Mother should have parenting time with the children but was concerned about the children being away from their home for a long period, due the children's activities. The trial court found the children's activities were important but maintaining their relationship with their Mother was also important. The trial court allowed Mother five weeks of visitation, with two weeks of that time to be visitation with Maternal Grandmother.

         {¶12} Also in its judgment entry, the trial court noted the prior order did not set a support award based on insufficient evidence. Based on the evidence presented at the April 5, 2019 hearing, the trial court declined to set a support order because of the uncertainty of the health issues faced by Mother. The trial court ordered Mother to seek employment and report to the court her earning information when she obtained employment. Because of the lack of child support, the trial court ordered Mother and Maternal Grandmother to split the airfare for the children for the summer visitation. Mother was ordered to pay for the entire cost of transportation for the Christmas parenting time.

         {¶13} The trial court further reserved the right to request periodic drug screens to assure continued sobriety for Mother.

         {¶14} It is from this judgment entry Father now appeals.

         ASSIGNMENTS OF ERROR

         {¶15} Father raises six Assignments of Error:

         {¶16} "I. ACCORDING TO SECTION 3109.03 OF THE OHIO REVISED CODE, BOTH PARENTS SHALL STAND ON AN EQUALITY OF RIGHTS AND RESPONSIBILITIES OF THE CARE OF THEIR CHILDREN. THE MUSKINGUM COUNTY COURT OF COMMON PLEAS HAS VIOLATED THIS EQUALITY BY REQUIRING GROSSLY DIFFERENT LEVELS OF PARENTAL RESPONSIBILITY FOR THE PARTIES OF THIS CASE.

         {¶17} "II. SECTION 3119.01 OF THE OHIO REVISED CODE SPECIFICALLY ALLOWS FOR INCOME USED IN CHILD SUPPORT CALCULATIONS TO BE DEFINED AS POTENTIAL INCOME. THIS DEFINITION HAS BEEN RIGHTLY APPLIED IN ORDER TO COMPEL PLAINTIFF-APPELLANT TO SHARE IN THE RESPONSIBILITY OF PROVIDING FOR THE CHILDREN IN PAST PROCEEDINGS. THE SAME DEFINITION OUGHT TO BE APPLIED TO THE DEFENDANT-APPELLEE. FAILURE TO DO SO CONSTITUTES AN EQUALITY OF PARENTAL RESPONSIBILITIES FORBIDDEN BY SECTION 3119.01.

         {¶18} "III. PURSUANT TO SECTIONS 3109.04 AND 3109.12 OF THE OHIO REVISED CODE, DECISIONS REGARDING THE ALLOCATION OF PARENTING TIME SHOULD BE MADE ON THE BASIS OF THE BEST INTERESTS OF THE CHILD. SECTION 3109.04 FURTHER OUTLINES SPECIFIC CONSIDERATIONS IN DETERMINING THE BEST INTERESTS OF THE CHILD INCLUDING: THE MENTAL AND PHYSICAL HEALTH OF THE ALL PERSON'S INVOLVED IN THE SITUATION; WHETHER EITHER PARENT HAS BEEN CONVICTED OR PLEAD GUILTY TO ANY CRIMINAL OFFENSE INVOLVING ANY ACT THAT RESULTED IN A CHILD BEING ABUSED OR NEGLECTED CHILD. IN HIS JUDGMENT ENTRY, JUDGE HOOPER FAILS TO CONSIDER HOW THE CHRONIC NATURE OF ADDICTION COULD IMPACT THE WELLBEING OF THE CHILDREN WHILE UNDER THE CARE OF THE DEFENDANT-APPELLEE.

         {¶19} "IV. JUDGE HOOPER FAILED TO CONDUCT THE TRIAL IN A FAIR MANNER AS SET FORTH IN IN [SIC] SECTIONS 2015.01 AND 2315.08 OF THE OHIO REVISED CODE. AT TRIAL, THE PARTIES DID NOT HAVE ADEQUATE OPPORTUNITIES TO PRESENT EVIDENCE NOR TO REBUT EVIDENCE PRESENTED BY THE ADVERSE SIDE.

         {¶20} "V. THE PLAINTIFF-APPELLANT WAS DENIED A FAIR AND IMPARTIAL TRIAL AS GUARANTEED IN ARTICLE IV OF THE OHIO CONSTITUTION. AS NOTED BY JUDGE HOOPER (TRANSCRIPT P.22 LINE 19), THE PLAINTIFF-APPELLANT DID NOT HAVE ACCESS TO EVIDENCE PRESENTED BY THE DEFENDANT-APPELLEE WHICH CREATED AN ...


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