Turner v. Morgan , 2023 Ohio 1387 ( 2023 )

[Cite as Turner v. Morgan, 2023-Ohio-1387.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
Walter Lee Turner, :
Plaintiff-Appellee, : No. 22AP-504
(C.P.C. No. 20JU-2103)
v. :
(REGULAR CALENDAR)
Ariel C. Morgan, :
Defendant-Appellant. :
D E C I S I O N
Rendered on April 27, 2023
On brief: Ariel C. Morgan, pro se. Argued: Ariel C.
Morgan.
APPEAL from the Franklin County Court of Common Pleas,
Division of Domestic Relations and Juvenile Branch
LUPER SCHUSTER, J.
{¶ 1} Defendant-appellant, Ariel C. Morgan, appeals from a judgment of the
Franklin County Court of Common Pleas, Division of Domestic Relations and Juvenile
Branch, approving a shared parenting plan submitted by plaintiff-appellee, Walter Lee
Turner, concerning their child, G.T. For the following reasons, we reverse and remand.
I. Facts and Procedural History
{¶ 2} In February 2020, Turner filed a complaint for custody of G.T. On July 10,
2020, a trial court magistrate issued a temporary order naming Turner the residential
parent and legal custodian of G.T. Eleven days later, Morgan filed a motion for change of
parental rights and responsibilities. In August 2020, the magistrate issued a temporary
order again naming Turner as G.T.’s legal custodian and granting Morgan parenting time
pursuant to Loc.R. 22 of the Court of Common Pleas of Franklin County, Juvenile Branch.
In October 2020, Turner requested the court enter a shared parenting order in accordance
No. 22AP-504 2
with his proposed shared parenting plan. A hearing on the matter was repeatedly
continued and ultimately held by the magistrate on February 28, 2022. Both parties
appeared at the hearing, and they signed a memorandum of agreement indicating their
mutual approval of Turner’s proposed shared parenting plan, subject to certain
modifications. The magistrate informed the parties that the matter would be dismissed
unless a proposed entry journalizing the agreement was received by March 28, 2022.
{¶ 3} Because the trial court did not timely receive the proposed entry, the
magistrate recommended dismissal of the matter. Shortly thereafter, Turner objected to
the magistrate’s decision and moved the court to enforce the parties’ memorandum of
agreement. The hearing on Turner’s request was scheduled for July 26, 2022, but the
record does not reflect that Morgan received notice of that hearing date. At the hearing on
July 26, 2022, Turner appeared with counsel, and Morgan did not appear. Turner’s counsel
indicated that despite signing the memorandum of agreement, Morgan refused to sign the
subsequently prepared shared parenting plan reflecting the terms of the memorandum of
agreement. After the hearing, the trial court filed an entry sustaining Turner’s objection
and granting his motion to enforce the memorandum of agreement. Consequently, the trial
court filed a Shared Parenting Decree, which incorporated the agreed shared parenting plan
that Morgan had refused to sign.
{¶ 4} Morgan timely appeals.
II. Assignment of Error
{¶ 5} Morgan assigns the following sole assignment of error for our review:
The trial court erred and abused its discretion in failing to
notify the Defendant-Appellant of hearing on 07/26/2022.
III. Discussion
{¶ 6} In her sole assignment of error, Morgan, who has proceeded pro se in this
matter, contends the trial court erred because she was not served with notice of the July 26,
2022 hearing. She asserts she was not provided an opportunity to explain her refusal to
agree with, and therefore sign, the shared parenting plan submitted to the trial court for
approval and filing. This assignment of error is well-taken.
{¶ 7} Due process of law is guaranteed by both the Fifth Amendment to the United
States Constitution, as applicable to the states through the Fourteenth Amendment, and
No. 22AP-504 3
Article I, Section 16 of the Ohio Constitution. But “[f]or all its consequence, ‘due process’
has never been, and perhaps can never be, precisely defined. * * * Rather, the phrase
expresses the requirement of ‘fundamental fairness,’ a requirement whose meaning can be
as opaque as its importance is lofty.” Lassiter v. Dept. of Social Servs. of Durham Cty.,
North Carolina, 452 U.S. 18, 24-25 (1981). Although “due process” lacks a precise
definition, courts have long held that due process requires both notice and an opportunity
to be heard. In re Thompkins, 115 Ohio St.3d 409, 2007-Ohio-5238, ¶ 13. Consistent with
these principles, Juv.R. 18(D) provides that “[a] written motion * * * and notice of hearing
therefor, shall be served not later than seven days before the time specified for the hearing
unless a different period is fixed by rule or order of the court.”
{¶ 8} Here, the record does not reflect that Morgan was served with notice of the
July 26, 2022 hearing, and Turner does not contend otherwise, as he has not filed a
responsive brief in this appeal. Thus, we find Morgan was not provided an opportunity, at
that hearing, to appear and respond to Turner’s request that the trial court approve and file
the shared parenting plan that Morgan had refused to sign. The absence of the required
notice violated Juv.R. 18(D) and Morgan’s due process rights.
{¶ 9} Accordingly, we sustain Morgan’s sole assignment of error.
IV. Disposition
{¶ 10} Having sustained Morgan’s sole assignment of error, we reverse the
judgment of the Franklin County Court of Common Pleas, Division of Domestic Relations
and Juvenile Branch, and remand this matter to that court for further proceedings
consistent with law and this decision.
Judgment reversed;
cause remanded.
DORRIAN and EDELSTEIN, JJ., concur.