Court of Appeals of Ohio, Fifth District, Muskingum
JONATHAN W. Plaintiff-Appellant
ASHLEY W. Defendant-Appellee
from the Muskingum County Court of Common Pleas, Domestic
Relations Division, Case No. DE2008-0358
Plaintiff-Appellant: JONATHAN W., PRO SE
Defendant-Appellee: No Appearance
JUDGES: Hon. W. Scott Gwin, P.J. Hon. John W. Wise, J. Hon.
Patricia A. Delaney, J.
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.
AND PROCEDURAL HISTORY
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.
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
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.
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.
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
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.
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.
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.
Mother testified she was not currently employed. Father was
employed and paid for the children's health insurance.
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
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.
The trial court further reserved the right to request
periodic drug screens to assure continued sobriety for
It is from this judgment entry Father now appeals.
Father raises six Assignments of Error:
"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.
"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.
"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.
"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.
"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 ...