Patel v. Patel , 2019 Ohio 3672 ( 2019 )

[Cite as Patel v. Patel, 2019-Ohio-3672.]
COURT OF APPEALS
DELAWARE COUNTY, OHIO
FIFTH APPELLATE DISTRICT
DIANE BURCHETT PATEL : JUDGES:
: Hon. William B. Hoffman, P.J.
Plaintiff-Appellant : Hon. John W. Wise, J.
: Hon. Earle E. Wise, Jr., J.
-vs- :
:
SUNIR SUDHANSHU PATEL : Case No. 18 CAF 10 0078
:
Defendant-Appellee : OPINION
CHARACTER OF PROCEEDING: Appeal from the Court of Common
Pleas Domestic Relations Division,
Case No. 13DRA030132
JUDGMENT: Reversed and Remanded
DATE OF JUDGMENT: September 11, 2019
APPEARANCES:
For Plaintiff-Appellant For Defendant-Appellee
ROBERT M. OWENS ANTHONY W. GRECO
40 S. Franklin Street JOSEPH S. JEZIOROWSKI
Suite 202 6810 Caine Road
Delaware, OH 43015 Columbus, OH 43235
Delaware County, Case No. 18 CAF 10 0078 2
Wise, Earle, J.
{¶ 1} Plaintiff-Appellant Diane Buchett Patel appeals the September 19, 2018
Judgment Entry of the Delaware County Court of Common Pleas, Domestic Relations
Division which dismissed Defendant-Appellee Sunir S. Patel's Motion for Contempt
Against the Plaintiff, and ordered appellant to have no contact with the parties' minor child,
L.P.
FACTS AND PROCEDURAL HISTORY
{¶ 2} The parties herein divorced on September 29, 2014, and have been in near
constant litigation ever since. The present matter stems from appellee's March 7, 2018
Emergency Ex Parte Motion to Modify Parenting Time. Appellee is the custodial parent
of L.P., the parties' sixteen-year-old child. The motion requested that the trial court reduce
or suspend appellant's parenting time with L.P. due to appellant's interference with L.P.'s
therapy sessions, monopolization of the sessions, and verbal abuse of L.P. both during
and outside of therapy sessions. The motion included a sworn affidavit from L.P's
therapist which indicated her progress with L.P was being hindered by appellant's
behavior during therapy sessions. The motion further included text messages from L.P.
to appellee indicating L.P. no longer desired to see appellant "a lot anymore" due to
appellant's behavior toward L.P.
{¶ 3} Appellant filed a Memorandum Contra Defendant's Motion for Emergency
Orders. Appellant attached an affidavit which did not dispute the therapist's factual
allegations, but rather argued the allegations did not constitute an "emergency" based on
the timing. She alleged she had not had contact with L.P's therapist since January 2018.
Delaware County, Case No. 18 CAF 10 0078 3
{¶ 4} On March 7, 2018, the trial court suspended appellant's parenting time with
L.P. "pending further order of the court." The court indicated it would consider modifying
the order upon the guardian ad litem's recommendation at or before the next hearing
scheduled for April 11, 2018.
{¶ 5} On April 11, 2018, the parties and the guardian ad litem appeared for a
hearing and advised the trial court that a settlement was "imminent." There is no transcript
of this hearing. Upon request of the parties to finalize their settlement, a second hearing
was scheduled for June 27, 2018. The trial court issued a judgment entry indicating it had
already ruled on issues properly before it, including suspending appellant's parenting
time, but was considering vacating that order if no agreed judgment entry was submitted
by the parties.
{¶ 6} On June 29, 2018, the trial court issued a judgment entry indicating the
parties had met and failed to reach a settlement after two hours of negotiations. The court
further again indicated it had already ruled on matters properly submitted, including the
motion to suspend appellant's parenting time, and again noted it was considering vacating
or extending the order if no judgment entry was submitted by the parties.
{¶ 7} On July 9, 2018, the parties filed a joint motion to extend time to file the
judgment entry. On July 20, 2018, the trial court took the same under advisement and
continued the prior orders.
{¶ 8} On August 17, 2018, appellee filed a motion for contempt which centered
on appellant's failure to see to certain aspects of L.P's health insurance coverage. As of
that date, the parties still had not submitted a judgment entry on the visitation issue. On
September 19, 2018, following a hearing which did not address the visitation issue, the
Delaware County, Case No. 18 CAF 10 0078 4
trial court issued a judgment entry dismissing the contempt action and stating its final
orders shall be as previously ordered, including that appellant have no contact with L.P.
{¶ 9} It is from this judgment entry that appellant appeals raising two assignments
of error:
I
{¶ 10} "THE TRIAL COURT ABUSED ITS DISCRETION AND PREJUDICED THE
SUBSTANTIAL RIGHTS OF THE APPELLANT BY ORDERING APPELLANT TO HAVE
NO CONTACT WITH HER MINOR CHILD."
II
{¶ 11} "THE COURT COMMITTED PREJUDICIAL AND PLAIN ERROR AND
VIOLATED APPELLANT'S RIGHTS UNDER THE DUE PROCESS CLAUSE AND
EQUAL PROTECTION CLAUSE OF THE UNITED STATES AND OHIO
CONSTITUTIONS BY ORDERING HER TO HAVE NO CONTACT WITH HER MINOR
CHILD."
PRELIMINARY MATTERS
{¶ 12} First, we note this case is before this court on the accelerated calendar
which is governed by App.R. 11.1. Subsection (E), determination and judgment on
appeal, provides in pertinent part: “The appeal will be determined as provided by App.R.
11.1. It shall be sufficient compliance with App.R. 12(A) for the statement of the reason
for the court's decision as to each error to be in brief and conclusionary form.”
{¶ 13} One of the important purposes of the accelerated calendar is to enable an
appellate court to render a brief and conclusory decision more quickly than in a case on
the regular calendar where the briefs, facts, and legal issues are more complicated.
Delaware County, Case No. 18 CAF 10 0078 5
Crawford v. Eastland Shopping Mall Assn., 11 Ohio App.3d 158, 463 N.E.2d 655 (10th
Dist.1983).
{¶ 14} This appeal shall be considered in accordance with the aforementioned
rules.
{¶ 15} Second, appellee urges us to dismiss this appeal as untimely, arguing the
matter was ripe for appeal as of the trial court’s March 7, 2018 judgment entry granting
appellee’s ex parte emergency motion to suspend appellant’s parenting time. We
disagree. The March 7, 2018 judgment entry indicated the trial court would revisit the
issue at or before the April 11, 2018 hearing or upon recommendation of the guardian ad
litem. Then, between April and the end of June, 2018, negotiations took place between
the parties on two occasions, but no agreed upon judgment entry was ever submitted to
the trial court as requested. It was not until the September 19, 2018 judgment entry that
the trial court indicated “the final order shall be as previously ordered. Plaintiff shall have
no contact with [L.P].”
{¶ 16} We therefore find appellant has timely appealed the matter.
I
{¶ 17} In her first assignment of error, appellant agues the trial court's decision to
terminate her visitation rights and extinguish her parental rights constitutes an abuse of
discretion. We disagree.
{¶ 18} A trial court enjoys broad discretion in deciding matters regarding the
visitation of non-residential parents. Matter of X.G., 5th Dist. Tuscarawas No. 2018 AP 04
0015, 2018-Ohio-4890, 2018 WL 6435764, ¶¶ 26-28 citing Appleby v. Appleby, 24 Ohio
St.3d 39, 492 N.E.2d 831 (1986). The standard of review concerning visitation rights is
Delaware County, Case No. 18 CAF 10 0078 6
whether the trial court committed an abuse of discretion. Booth v. Booth, 44 Ohio St.3d
142, 541 N.E.2d 1028 (1989). An abuse of discretion implies that the court's attitude is
unreasonable, arbitrary, or unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217,
450 N.E.2d 1140 (1983).
{¶ 19} Appellant makes several arguments under this assignment of error. She
argues the trial court abused its discretion by suspending her parenting time with L.P
without first conducting a hearing and interviewing L.P as to his wishes, by demonstrating
bias, and by failing to issue findings of fact and conclusions of law.
{¶ 20} We first note that throughout her first assignment of error, appellant
essentially argues the trial court's ruling terminated her parental rights. This is not
accurate. Rather, the trial court suspended her visitation. According to the September 19,
2018 judgment entry, she is not foreclosed from making future efforts to reinstate
visitation with L.P. Rather, she may seek reinstatement of visitation upon joint motion of
herself, appellee and the guardian ad litem. We therefore reject those portions of
appellant's arguments which allege a permanent revocation of her parental rights.
{¶ 21} Next, the instant matter involves visitation rights where one parent has been
designated the residential parent and legal custodian rather than the allocation of parental
rights and responsibilities. Therefore, R.C. 3109.051 is the applicable statute. Braatz v.
Braatz, 85 Ohio St.3d 40, 706 N.E.2d 1218 (1999), paragraph one of the syllabus. R.C.
3109.051(C) provides that in resolving any issues related to parenting time, “ * * * the
court, in its discretion, may interview in chambers any or all involved children regarding
their wishes and concerns.” (Emphasis added). Thus unlike R.C. 3109.04(B)(1), cited by
Delaware County, Case No. 18 CAF 10 0078 7
appellant, R.C. 3109.051(C) does not require the trial court to conduct an in-camera
interview and we find no abuse of discretion in the trial court's failure to do so.
{¶ 22} Appellant further faults the trial court for failing to conduct a hearing.
However, the record reflects the matter was scheduled for hearing twice; on April 11,
2018 and June 27, 2018. There are no transcripts of these hearings in the record. The
trial court's judgment entries, however, indicate that during the April hearing the parties
advised a settlement was "imminent" yet failed to submit a proposed judgment entry as
requested by the trial court. The parties then again met on June 27 for two hours without
settling the matter. On July 9, 2018, however, the parties filed a joint motion to extend
time to file an agreed upon judgment entry. When a judgment entry still had not been filed
in September 2018, the trial court finalized its decision to suspend appellant's visitation
with L.P.
{¶ 23} Additionally, we have previously found a trial court does not abuse its
discretion by granting a motion to suspend visitation based on due consideration of the
parties motions, responses, and accompanying affidavits, and without conducting an oral
hearing in Jagodzinski v. Abdul-Khaliq, 5th Dist. Licking No. 17-CA-22, 2018-Ohio-1898¶ 29-32. Like Jagodzinski, the trial court here indicated it had considered defendant-
appellee's motions, "supported by affidavit and argument," as well as "the responsive
pleading also supported by affidavits filed on behalf of Plaintiff [-appellant]* * * ." We
therefore find no abuse of discretion in the trial court's failure to hold a hearing before
issuing a final ruling.
{¶ 24} Appellant also argues the trial court's failure to issue findings of fact and
conclusions of law constitutes an abuse of discretion. Appellant, however, failed to
Delaware County, Case No. 18 CAF 10 0078 8
request findings of fact and conclusions of law as required by R.C. 3109.051(F)(1): "If the
court, pursuant to division (A) of this section, denies parenting time to a parent who is not
the residential parent or denies a motion for reasonable companionship or visitation rights
filed under division (B) of this section and the parent or movant files a written request for
findings of fact and conclusions of law, the court shall state in writing its findings of fact
and conclusions of law in accordance with Civil Rule 52." We therefore reject her
argument.
{¶ 25} Finally, appellant alleges the trial court exhibited hostility toward her during
the September 14, 2018 contempt hearing by threatening to incarcerate her if she refused
to sign a form authorizing her health insurance company to share L.P's information with
appellee. Appellant fails to explain how the court's comment on the insurance matter
makes its decision to suspend appellant's visitation with L.P an abuse of discretion, and
we reject her argument alleging the same.
{¶ 26} The first assignment of error is overruled.
II
{¶ 27} In her second assignment of error, appellant argues the trial court
committed plain error by granting appellee's motion to modify parenting time and issuing
a "permanent no contact order" in violation of due process rights. We disagree.
{¶ 28} There is no indication in the record that appellant raised any due process
objections related to the suspension of her parenting time with L.P. during either the April
or June hearings. An error not raised in the trial court must be plain error for an appellate
court to reverse. State v. Long, 53 Ohio St.2d 91, 372 N.E.2d 804 (1978) at paragraph
one of the syllabus; Crim.R. 52(B). In order to prevail under a plain error analysis,
Delaware County, Case No. 18 CAF 10 0078 9
appellant bears the burden of demonstrating that the outcome of the proceeding clearly
would have been different but for the error. Id. at paragraph two of the syllabus. Notice
of plain error "is to be taken with the utmost caution, under exceptional circumstances
and only to prevent a manifest miscarriage of justice." Id. at paragraph three of the
syllabus.
{¶ 29} Although appellant sets forth the fact that parents have a fundamental
liberty interest in the custody, care and management of their children, she fails to point to
any procedural irregularity that might give rise to a due process violation, and we find
none evidenced in the record. She argues instead that until L.P affirmatively and
independently decides to decline visitation, her relationship with L.B "should not be totally
severed." As we have concluded above, however, appellant’s parenting time was
suspended, not “forever terminated” as appellant argues. The September 19, 2019
judgment entry indicated the trial court would revisit appellant’s parenting time with L.P
upon motion of the parties and the guardian ad litem.
{¶ 30} We find no plain error occurred as there was no violation of appellee’s
constitutional right to due process.
{¶ 31} The second assignment of error is overruled.
{¶ 32} The judgment of the Delaware County Court of Common Pleas Domestic
Relations Division is affirmed.
By Wise, Earle, J.
Hoffman, P.J. and
Wise, John, J. concur.
EEW/rw