Whitesed v. Huddleston , 2021 Ohio 2400 ( 2021 )

[Cite as Whitesed v. Huddleston, 2021-Ohio-2400.]
IN THE COURT OF APPEALS OF OHIO
FOURTH APPELLATE DISTRICT
PICKAWAY COUNTY
ALLIE J. WHITESED, : Case No. 21CA3
Plaintiff-Appellant :
v. : DECISION AND
JUDGMENT ENTRY
JONATHAN R. HUDDLESTON, :
Defendant-Appellee. : RELEASED 7/13/2021
______________________________________________________________________
APPEARANCES:
Stephen D. Brown, Lancaster, Ohio, for appellant.
Charles C. Postlewaite, Columbus, Ohio, for appellee.
______________________________________________________________________
Hess, J.
{¶1} Allie J. Whitesed appeals from a judgment of the Pickaway County
Common Pleas Court, Juvenile Division, that overruled her objections to the
magistrate’s decision and designated Jonathan R. Huddleston the residential parent
and legal custodian of A.J.W. Whitesed contends that the trial court erred in adopting
the magistrate’s decision without appointing a guardian ad litem for the child. Whitesed
also claims that the trial court should not have adopted the magistrate’s decision
granting her attorney’s request to withdraw the morning of the trial and determining that
she had constitutionally sufficient notice of the trial. However, we find that the
magistrate was not required to appoint a guardian ad litem because there were no
allegations of abuse or neglect. The trial court properly adopted the magistrate’s
decision allowing Whitesed’s attorney to withdraw because Whitesed knowingly chose
Pickaway App. No. 21CA3 2
not to appear for the trial and repeatedly violated court orders and deadlines. The trial
court did not violate Whitesed’s due process rights when it proceeded ex parte with the
trial because it provided notice of the trial date to Whitesed when it recorded it on the
docket and notices were sent to her attorney, who informed Whitesed of the hearing
date. We overrule Whitesed’s assignments of error and affirm the trial court’s judgment.
I. FACTS AND PROCEDURAL HISTORY
{¶2} Whitesed and Huddleston are the parents of A.J.W., born in July 2018. In
December 2018, Whitesed filed a complaint for allocation of parental rights and
responsibilities in which she alleged she and Huddleston were the parents of A.J.W. as
determined by a paternity test and she sought an order allocating parental rights and
responsibilities. The complaint contained no allegations of abuse or neglect. Huddleston
answered and admitted the allegations and requested a shared parenting order.
Huddleston’s answer contained no allegations of abuse or neglect. A custody hearing
was set for August 12, 2019. Prior to the hearing, Huddleston filed a notice of his
successful completion of a parenting seminar. The custody hearing was not held on
August 12 and instead, on that date, the court issued a notice of a pretrial hearing on
October 8, 2019. Huddleston was granted permission to attend the October pretrial
hearing via telephone because he is in the U.S. Military and would be in California for
training.
{¶3} In October 2019, the magistrate issued an agreed temporary parenting
time order in which Huddleston was given parenting time when he is on military leave.
Huddleston was also entitled to use a video call conferencing service to communicate
with A.J.W. on specific days and times of the week. Both parties were ordered to set up
Pickaway App. No. 21CA3 3
an Our Family Wizard account to communicate with each other concerning A.J.W.
Each parent was required to provide a relocation notice, if applicable, and was given
equal access to the child’s records, day care, and school activities.
{¶4} On December 20, 2019, the court held a telephonic conference, and the
magistrate issued an order stating that Whitesed had failed to appear for the conference
and had terminated her attorney the day before. The order states that the magistrate
attempted to reach Whitesed and left a voicemail message for her to contact the court
or the conference would proceed without her. Whitesed failed to contact the court so the
conference proceeded and the magistrate issued a holiday parenting schedule based
upon Huddleston’s holiday leave. On that same date, Whitesed’s attorney filed an
application to withdraw as counsel, which was granted, in which he explained that two
days before the telephone conference, Whitesed terminated him and instructed him not
to participate in the telephonic conference on her behalf because she had retained a
new attorney who would be handling the conference for her. However, neither Whitesed
nor a new attorney participated in the December 20, 2019 conference. Whitesed’s new
attorney made a notice of appearance on December 27, 2019 and served it on
Huddleston’s attorney, but the notice of appearance is not on the docket. However, the
record shows that thereafter the clerk’s office began to serve Whitesed’s new attorney
with court filings.
{¶5} In January 2020, Huddleston filed a contempt motion against Whitesed for
violating the October and December 2019 parenting orders. He also sought attorney’s
fees and a psychological examination of Whitesed to assist the court in determining
parental rights and responsibilities. Huddleston’s counsel sought attorney’s fees and
Pickaway App. No. 21CA3 4
reimbursements for medical support Huddleston incurred because Whitesed had not
provided him with A.J.W.’s social security card so that he could enroll the child in his
military medical insurance, in violation of the court order requiring her to do so. In an
affidavit in support of his motions, Huddleston stated that Whitesed refused to allow him
to visit with A.J.W. as outlined in the parenting orders and was imposing additional,
onerous requirements upon him that were not included in the orders. He provided
detailed descriptions of each incident. Huddleston also stated that although he had
enrolled in Our Family Wizard for communications, Whitesed had not, contrary to the
court’s order. Huddleston explained how, during one of his visits, Whitesed called the
Columbus Police Department and asked them to do a wellness check on A.J.W.
because she believed Huddleston had kidnapped A.J.W. and was planning to leave the
state. Included with Huddleston’s affidavit were copies of email communications
between Huddleston and Whitesed’s attorneys and text messages between Whitesed
and Huddleston in which Whitesed, either directly in text messages or through her
attorney, refused to comply with the parenting orders. Although the record includes
hearing date notice for these motions, it does not appear that a hearing was held. We
note that one of the hearing dates was March 16, 2020, which was near the time
government policies addressing the pandemic commenced.
{¶6} In February 2020, Whitesed signed an affidavit in which she responded to
the allegations in Huddleston’s January 2020 motion for contempt. Whitesed stated that
she did not allow A.J.W. to visit Huddleston because the truck that had been sent to
transport A.J.W. did not accommodate the child’s car seat. However, Whitesed’s
Pickaway App. No. 21CA3 5
affidavit was not submitted to the court until late May 2020, in support of Whitesed’s
own contempt motion filed against Huddleston.
{¶7} In late April and early May 2020, Whitesed underwent a psychological
evaluation pursuant to the magistrate’s order. In the psychologist’s report, which was
submitted to the court in July 2020, the psychologist stated that he had been delayed in
submitting it because of the extended period of time Whitesed took to return a
questionnaire and that she returned it only after the psychologist sent repeated emails
and messages to the parties’ attorneys.
{¶8} Also in April and May 2020, Huddleston filed a motion to file an amended
answer and a counterclaim for sole custody of A.J.W.1 and a motion to compel
discovery. Huddleston’s request to amend his pleadings was based on allegations that
Whitesed repeatedly failed to comply with the court’s parenting orders and was
attempting to alienate the child from Huddleston. These proposed amended pleadings
did not contain allegations of abuse or neglect. Huddleston filed a motion to compel
discovery because Whitesed had failed to answer discovery requests, which were due
in April 2020. Emails between the attorneys show that on April 27, 2020, Whitesed’s
attorney stated that the matter of discovery would have to be taken up directly with
Whitesed because the attorney would be asking to withdraw. Whitesed’s attorney’s April
27, 2020 motion to withdraw does not appear in the record. However, it appears that a
copy of the motion was served on Huddleston’s attorney and included in a filing
submitted by Huddleston. In that motion, Whitesed’s attorney stated that he had
informed Whitesed of his intention to withdraw and he had provided her with upcoming
court dates. There is nothing in the record showing any court response to counsel’s
1 The record indicates this motion was not addressed and is deemed denied.
Pickaway App. No. 21CA3 6
April 27, 2020 motion to withdraw. However, at the November 2020 custody hearing,
the magistrate acknowledged that Whitesed’s attorney had made at least three motions
to withdraw, and the court had previously not allowed it.
{¶9} In August 2020 the court set the date for the custody hearing for
November 2 and November 3, 2020. The hearing notice states that copies of it should
be sent directly to Whitesed, Huddleston, and their attorneys. However, a certificate
from the clerk’s office states that the notice was sent to the parties’ attorneys by email
and U.S. regular mail, with no indication that the clerk sent copies directly to Huddleston
and Whitesed.
{¶10} In early September 2020, Huddleston filed a motion for an emergency
temporary order for legal custody of A.J.W. In his affidavit supporting the motion,
Huddleston stated that Whitesed had moved to Union County, Ohio and was living with
two men.2 Whitesed had posted three inappropriate photographs of A.J.W. on a social
media site, one photograph showed the child standing inside a drawer with the room in
disarray, one in which the child appeared to be eating eyeshadow, and one in which the
child appeared to be smeared with a brown substance. Huddleston stated that he did
not know where A.J.W. was residing, who the two men were, or who was taking care of
A.J.W. while Whitesed was at work.
{¶11} The magistrate held an immediate hearing on the motion and issued an
order in which, Huddleston, his attorney, and Whitesed’s attorney participated, but
Whitesed did not. The order stated that Whitesed’s attorney attempted to contact her for
information but at the time of the order the court had no additional information from
2 The record shows that Whitesed has resided at no less than four different addresses during the
pendency of the case: Circleville, Ashville, Tarlton, and Carroll, Ohio.
Pickaway App. No. 21CA3 7
Whitesed. The order set a subsequent video hearing on the emergency motion for
September 9, 2020.3 Both Whitesed and Huddleston attended the video conference
with their attorneys. The magistrate denied the motion but ordered Huddleston to have
companionship time with A.J.W. for five consecutive days in September, ordered
Whitesed to enroll in Our Family Wizard, and ordered Whitesed to answer Huddleston’s
discovery requests on or before September 16, 2020. The order also reminded the
parties that the custody hearing was scheduled for November 2 and 3, 2020. Although
Whitesed’s discovery responses were due in mid-April 2020 and the court ordered her
to respond on or before September 16, 2020, in her affidavit, she states she did not
provide discovery responses to her attorney until October 8, 2020.
{¶12} A third notice about the November final custody hearing was issued in
mid-September and a final pretrial was set for October 16, 2020 via video conference.
This notice was emailed to the parties’ attorneys. In her affidavit, Whitesed
acknowledged that her attorney advised her of the October 16 final pretrial.
{¶13} Whitesed also acknowledged that she was in communication with her
attorney on October 27, 28, and 29, 2020, during which time they discussed the
witnesses to be called at the custody hearing and she stated that she provided him with
a list of witnesses. Whitesed’s attorney filed a list of witnesses, a notice of intent to
introduce evidence at trial, and he caused a subpoena to issue to compel the
attendance of Officer Thomas of the Ashville Police Department to attend the custody
hearing. Whitesed also stated that her attorney informed her on October 28, 2020, that
he would be filing a motion to withdraw. Whitesed’s attorney filed a motion to withdraw
on October 28 and stated that Whitesed failed to provide him with evidence to be used
3 A transcript of the hearing was not made part of the record.
Pickaway App. No. 21CA3 8
at trial and that he had informed Whitesed that he was seeking to withdraw and
informed her of the upcoming court dates.
{¶14} On November 2, 2020, at 9:00 a.m. the morning of the hearing,
Huddleston, his attorneys, and Whitesed’s attorney appeared for the custody hearing,
but Whitesed was not present. The magistrate delayed the hearing and contacted other
courtrooms looking for Whitesed. Whitesed did not appear and at approximately 9:30
a.m. Whitesed’s attorney made an oral motion to withdraw. Whitesed’s attorney stated
that Whitesed had notice of the hearing and he spoke to her about it multiple times. The
magistrate granted Whitesed’s attorney’s motion to withdraw and the hearing proceeded
with Huddleston’s witnesses.
{¶15} The magistrate issued a decision based upon all the evidence presented
at the hearing that it was in the best interest of the child to be placed in the legal
custody of Huddleston and ordered that Huddleston be designated the residential
parent and legal custodian of A.J.W. Whitesed was given companionship time in
accordance with the local rules for long distance. Whitesed filed objections with a
supporting affidavit, and supplemental objections, which the trial court overruled.
{¶16} Relevant to this appeal, Whitesed objected to the magistrate’s granting
her attorney permission to withdraw and allowing the trial to go forward without her. The
trial court found that Whitesed had engaged in multiple instances of delay and disregard
for court orders and overruled her objection:
Plaintiff had notice of Attorney DeBeneditto’s intention to withdraw on
October 28th. Instead of appearing for the November 2 trial and requesting
a continuance to obtain new counsel, she chose to skip the trial
altogether, much like her behavior for the December 20, 2019 hearing.
After reviewing the history of this case, this Court comes to the conclusion
Pickaway App. No. 21CA3 9
that Plaintiff knowingly chose to avoid the trial and knowingly chose not to
oppose her attorney’s withdrawal.
II. ASSIGNMENTS OF ERROR
{¶17} Whitesed presents the following assignments of error:
1. The trial court erred in adopting the magistrate’s decision granting
custody of the minor child to appellee without complying with the
mandatory provision of Ohio Juvenile Rule of Procedure 4(B)(5) requiring
the appointment of a guardian ad litem. (R. 109, Dec. Entry).
2. The trial court erred in adopting the magistrate’s decision granting
leave for appellant’s counsel to withdrawal [sic] the morning of trial. (R.
109, Dec. Entry).
3. The trial court erred in adopting the magistrate’s decision determining
appellant had constitutionally sufficient notice of trial. (R. 109, Dec. Entry).
III. LAW AND ANALYSIS
A. Appointment of Guardian ad Litem
{¶18} Whitesed contends that the trial court erred when it failed to appoint a
guardian ad litem under Juv.R. 4(B)(5). Juv.R. 4(B)(5) states that a “court shall appoint
a guardian ad litem to protect the interest of a child when * * * [a]ny proceeding involves
allegations of abuse, neglect, or dependency, voluntary surrender of permanent
custody, or termination of parental rights as soon as possible after the commencement
of such proceeding * * * .” Whether Juv.R. 4(B)(5) imposes a mandatory duty upon the
court to appoint a guardian ad litem and whether the court failed to discharge that duty
constitute questions of law. We review questions of law de novo. In re A.G.B., 173 Ohio
App.3d 263, 2007-Ohio-4753, 878 N.E.2d 49, ¶ 11 (4th Dist.); In re A.K., 9th Dist.
Summit No. 26291, 2012-Ohio-4430, ¶ 12 (“Generally, this Court reviews a trial court's
action with respect to a magistrate's decision for an abuse of discretion. * * * Here, the
Pickaway App. No. 21CA3 10
assignment of error challenges the trial court's failure to appoint a guardian ad litem
pursuant to the mandatory requirements of R.C. 2151.281 and Juv.R. 4. Therefore, this
issue presents a question of law, which we review de novo, affording no deference to
the conclusion of the trial court.”) However, where Juv.R. 4(B) is clearly applicable to a
proceeding and the question is whether a guardian ad litem should have been
appointed, an appellate court will review it for abuse of discretion. In re Spradlin, 140
Ohio App.3d 402, 407, 747 N.E.2d 877, 880 (2000) (an abuse-of-discretion standard
applies to the trial court's decision whether to appoint a guardian ad litem when a
purported conflict exists between the child and parent).
{¶19} Whitesed filed an action under R.C. 2151.23(F)(1) and R.C. 3109.04 for
an allocation of parental rights and responsibilities between herself, an unmarried
female who gave birth to A.J.W., and Huddleston, the father. Whitesed made no
allegations of abuse, neglect, or dependency in her complaint and Huddleston made
none in his answer or in his proposed supplemental pleadings. Thus, we find that this
case involves neither a “private”4 nor a governmental abuse, neglect, or dependency
proceeding. Juv.R. 4(B)(5) is inapplicable and the requirement to appoint a guardian ad
litem “as soon as possible after the commencement of such proceedings” was never
triggered.
{¶20} Whitesed contends that the allegations of abuse and neglect were made
in various filings throughout the proceeding. She contends that Huddleston requested a
4 But see In re A.G.B., 173 Ohio App.3d 263, 2007-Ohio-4753, 878 N.E.2d 49, ¶ 22 (Abele, J., dissenting,
“It is my belief that R.C. Chapter 2151 does not apply to ‘private’ custody disputes (i.e., custody actions
brought by private parties rather than children services agencies).”); In re Shepard, 4th Dist. Highland No.
99CA04, 1999 WL 809760 (Abele, J., concurring); In re Shepard, 4th Dist. Highland No. 2001-Ohio-2499(Abele, P.J., concurring).
Pickaway App. No. 21CA3 11
psychological evaluation of her out of concerns for the child’s wellbeing and this
concern constituted an allegation of abuse or neglect that triggered the court’s
obligation to appoint a guardian ad litem under Juv.R. 4(B)(5). The “threat to wellbeing”
was in reference to Whitesed’s refusal to follow the court-ordered parenting time, her
manipulative efforts to prevent Huddleston from exercising his parenting time, and the
impact that situation would have on the child’s wellbeing. Nothing in Huddleston’s
motion alleged that the child was suffering abuse or neglect.
{¶21} Whitesed also cites to Huddleston’s motion for emergency custody as
another example of what she argues are allegations of abuse triggering the requirement
for a guardian ad litem appointment. In his motion for emergency custody, Huddleston
stated his concern that he did not know where his child was living, who was caring for
the child while Whitesed was at work, and that Whitesed had posted inappropriate
photographs of the child on a social media site. Again, these were statements of
concern about the possibility of harm that could befall the child – not that actual abuse
or neglect had occurred or was ongoing. The other allegations of abuse Whitesed refers
to are unsubstantiated statements Whitesed made about Huddleston’s alleged
treatment of Whitesed, not his treatment of the child, which the trial court found
meritless. See L.W. v. L.B., 6th Dist. Lucas No. L-09-1309, 2010-Ohio-2796, ¶ 27 (in
custody dispute between two parents “there was no allegation of abuse or neglect within
the contemplation of R.C. 2151.281. As a result, the trial court was under no mandate to
appoint a guardian ad litem”).
{¶22} Whitesed cites no caselaw or statutory provision that requires the trial
court to appoint a guardian ad litem pursuant to Juv.R. 4(B)(5) in a case involving the
Pickaway App. No. 21CA3 12
allocation of parenting rights and responsibilities where there are no allegations of
abuse, neglect or dependency. Her legal authority governs delinquency cases. See In
re Spradlin, 140 Ohio App.3d 402, 2000-Ohio-2003, 747 N.E.2d 877 (4th Dist.) (juvenile
delinquency proceedings under R.C. 2151.281(A)); In re D.A.G., 4th Dist. Ross Nos.
13CA3366, 13CA3367, 2013-Ohio-3414 (juvenile delinquency proceedings under R.C.
2151.281(A)).
{¶23} Here, in a custody case between parents, R.C. 3109.04 applies and R.C.
3109.04(B)(1) and (2) provide that when the court is “making the allocation of the
parental rights and responsibilities for the care of the children * * * the court, in its
discretion, may * * * interview * * * the involved children * * *. If the court interviews any
child * * * [t]he court, in its discretion, may and, upon the motion of either parent, shall
appoint a guardian ad litem for the child.” Here, the trial court did not conduct an
interview of the child and therefore the provisions governing the appointment of a
guardian ad litem under R.C. 3109.04(B) were not triggered. Purvis v. Purvis, 4th Dist.
Adams No. 00CA703, 2002-Ohio-570 (because the trial court did not interview the child,
it was not required to appoint a guardian ad litem under R.C. 3109.04(B)(2)(a)).
{¶24} Whitesed did not request a guardian ad litem and she did not object to the
magistrate’s decision not to appoint a guardian ad litem. “Ordinarily, to preserve a trial
court error for appeal, an objection must be timely raised to the trial court, where the
alleged error may be corrected, or else the objection is waived; it may not be raised for
the first time on appeal. As the Ohio Supreme Court held, ‘the fundamental rule is that
an appellate court will not consider any error which could have been brought to the trial
court's attention, and hence avoided or otherwise corrected.’ ” (Citations omitted.)
Pickaway App. No. 21CA3 13
Wilson v. Wilson, 4th Dist. Lawrence No. 09CA1, 2009-Ohio-4978, ¶ 11. “Appellate
courts may, however, consider a forfeited argument using a plain-error analysis.” In the
Matter of J.M., 4th Dist. Ross No. 18CA3633, 2018-Ohio-5374, ¶27. Before we can
recognize plain error, Whitesed must establish that an error occurred, it was an obvious
defect, and that it affected substantial rights, i.e. it must have affected the outcome of
the trial. Id. at ¶ 28.
{¶25} Whitesed has not invoked the plain-error doctrine on appeal. “We
generally will not craft a plain-error argument for an appellant who fails to do so.” Id. at ¶
66. Because Whitesed failed to present a plain-error argument on
appeal, we will not create one for her. The record contains nothing to suggest that the
trial court made an obvious error, that the outcome of the case would have differed, or
that the case at bar is one of those extremely rare cases that warrants application of
the plain-error doctrine.
{¶26} We overruled Whitesed’s first assignment of error.
B. Attorney’s Withdrawal
{¶27} Whitesed contends that the trial court erred in adopting the magistrate’s
decision granting her attorney’s motion to withdraw the morning of the trial. We review
the trial court’s decision for abuse of discretion.
“An appellate court reviews the trial court's decision to adopt, reject or
modify the Magistrate's decision under an abuse of discretion standard.”
The trial court may adopt, reject, or modify the magistrate's decision.
Civ.R. 53(D)(4)(b). When ruling on objections to the magistrate's decision,
the trial court is “not required to follow or accept the findings or
recommendations of its magistrate.” Instead, the trial court “shall
undertake an independent review as to the objected matters to ascertain
that the magistrate has properly determined the factual issues and
appropriately applied the law.” Civ.R. 53(D)(4)(d). Accordingly, the trial
Pickaway App. No. 21CA3 14
court reviews the magistrate's decision under a de novo standard of
review. (Citations omitted.)
Sheehan v. Sheehan, 3d Dist. Defiance No. 4-19-25, 2020-Ohio-5300, ¶ 11. “Error, if
any, committed by the trial court focuses not on the magistrate's findings or proposed
decision, but rather on the trial court's actions.” Morford v. Morford, 2018-Ohio-3439,
118 N.E.3d 937, ¶ 10 (11th Dist.) (“an abuse of discretion may be found when the trial
court ‘applies the wrong legal standard, misapplies the correct legal standard, or relies
on clearly erroneous findings of fact’ ”). Abuse of discretion means an unreasonable,
arbitrary, or unconscionable use of discretion, or a view or action that no conscientious
judge could honestly have taken. Eichenlaub v. Eichenlaub, 2018-Ohio-4060, 120
N.E.3d 380, ¶ 11 (4th Dist.).
{¶28} First, Whitesed has no right to an attorney in this type of custody
proceeding. T.S. v. A.T., 6th Dist. Lucas No. L-19-1296, 2020-Ohio-6871, ¶ 23.
Therefore, cases concerning a parent’s right to counsel in involuntary termination of
parental rights proceedings are distinguishable. Second, Whitesed’s attorney was
present at trial to represent her – it was Whitesed who did not appear for the trial.
Therefore, cases in which an attorney withdraws within days of the trial are inapplicable.
E.g., Wilson v. Wilson, 154 Ohio App.3d 454, 2003-Ohio-4474, 797 N.E.2d 990 (3d
Dist.) (client contacted magistrate, requested continuance, stated objections to grounds
for her attorney’s withdrawal, and appeared at the final hearing and requested a second
extension). This is the key distinction: Whitesed’s attorney did not leave her without
representation at trial, she left her attorney without a client at trial.
{¶29} Prof.Cond.R. 1.16(b)(6) allows an attorney to withdraw from
representation of a client where the representation “has been rendered unreasonably
Pickaway App. No. 21CA3 15
difficult by the client.” Under subpart (d), a lawyer must take steps “to the extent
reasonably practicable” to protect a client’s interest. Here, the withdrawal occurred
because of Whitesed’s failure to appear for trial and repeated disregard for the court’s
rules and procedures, including her purposeful failure to comply with court parenting
orders. Thus, there were few “reasonably practicable” steps her attorney could take to
protect her interests in a case which, at that point, was pending for nearly two years. In
the meantime, the child had grown from a five-month-old infant to a two-year-old
toddler.
{¶30} The trial court found that the record showed that her attorney stated that
Whitesed was aware of the trial date and that they had spoken multiple times about it.
Whitesed’s own affidavit confirmed that she had spoken to her attorney in the days
immediately prior to the hearing and provided a list of witnesses to be called at the
hearing. The trial court also found that Whitesed’s affidavit was evasive in that she
stated she “did not receive notice of hearing,” yet she did not allege that she was
unaware of the hearing, and she admitted that her attorney told her about the final
pretrial conference. The magistrate delayed the hearing for a half hour while they
searched the courthouse for Whitesed. The trial court noted that the record showed that
Whitesed repeatedly missed hearings, failed to comply with court orders, failed to
respond to discovery for six months, failed to comply with court ordered deadlines,
failed to timely complete a required psychological evaluation, refused to communicate
on Our Family Wizard, and repeatedly interfered with or entirely prevented Huddleston’s
court-ordered parenting time. The trial court found:
In a nutshell, the case history is replete with examples of Plaintiff’s refusal
to cooperate in the adjudication of this Complaint, a Complaint that she
Pickaway App. No. 21CA3 16
had initiated. * * * After reviewing the history of this case, this Court
comes to the conclusion that Plaintiff knowingly chose to avoid the trial
and knowingly chose not to oppose her attorney’s withdrawal.
{¶31} When the plaintiff does not appear for trial, the trial court may dismiss the
action for lack of prosecution under Civ.R. 41(B). Sunshine Ltd. Partnership v.
C.A.S.T.L.E. High School, Inc., 8th Dist. Cuyahoga No. 106245, 2018-Ohio-2298, ¶ 16.
“Where a party's conduct is ‘negligent, irresponsible, contumacious or dilatory,’ it may
provide grounds for a dismissal with prejudice for a failure to prosecute or to obey a
court order.” Ransom v. Aldi, Inc., 2017-Ohio-6993, 95 N.E.3d 699, ¶ 28 (2d Dist.).
Here, as sanctions for her conduct, the trial court could have dismissed her action under
Civ.R. 41(B)(1). However, because Huddleston answered, asserted his own claim for
the allocation of parental rights, and appeared for the trial, the trial court properly
proceeded ex parte with the trial. Sunshine Ltd. Partnership at ¶ 16. “ ‘The Rules of Civil
Procedure apply to custody proceedings in juvenile court except when they are clearly
inapplicable.’ In re H.W., 114 Ohio St.3d 65, 868 N.E.2d 261, 2007–Ohio–2879, at ¶ 11
* * *.” Stevenson v. Kotnik, 11th Dist. Lake No. 2010-L-063, 2011-Ohio-2585, ¶ 58
(applying Civ.R. 41(B) to juvenile custody proceeding); Leonard v. Yenser, 3d Dist. No.
10–2003–01, 2003–Ohio–4251 (applying Civ.R. 41(B) to a juvenile court proceeding).
{¶32} The trial court conducted an independent review of the record and
determined that Whitesed had knowingly chose to avoid the trial and knowingly chose
not to oppose her attorney’s withdrawal. Based upon our review of the record, we find
nothing unreasonable, arbitrary, or unconscionable about the trial court’s adoption of the
magistrate’s decision granting Whitesed’s attorney leave to withdraw. As the magistrate
stated, “if your client is not going to show, I am not going to make you sit there and
Pickaway App. No. 21CA3 17
represent her.” Even if this were an involuntary termination of parental rights case in
which a parent has a right to counsel, under these circumstances, the trial court had a
reasonable basis to find that Whitesed’s dilatory tactics waived any objections to her
attorney’s withdrawal:
Where a parent fails to maintain contact with counsel, fails to appear for
scheduled hearings despite receiving notice of such, and fails to
cooperate with counsel and the court, the court may infer that the parent
has waived his or her right to counsel and may grant counsel's request to
withdraw. To ascertain whether a waiver may be inferred, the court must
take into account the total circumstances of the individual case, including
the background, experience and conduct of the parent.
In re A.S., 8th Dist. Cuyahoga No. 94098, 2010-Ohio-1441, ¶ 27; In re B.M., 10th Dist.
Franklin No. 09AP-60, 2009-Ohio-4846, ¶ 26 (Where a parent fails to appear for
hearings and cooperate with counsel and the court, the court may infer that the parent
has waived his or her right to counsel and may grant counsel's request to withdraw).
{¶33} We overrule Whitesed’s second assignment of error.
C. Notice of the Hearing
{¶34} For her final assignment of error, Whitesed contends that trial court erred
in adopting the magistrate’s decision finding she had constitutionally sufficient notice of
the trial. She argues that the trial court misinterpreted her affidavit and erroneously
concluded that she had notice of the hearing and decided to “skip the trial altogether,
much like her behavior for the December 20, 2019 hearing.”
{¶35} Due process requires both a notice and an opportunity to be heard:
The Due Process Clause of the Fifth Amendment to the United States
Constitution, as applicable to the states through the Fourteenth
Amendment, provides: “No person shall * * * be deprived of life, liberty, or
property, without due process of law.” 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,’
Pickaway App. No. 21CA3 18
a requirement whose meaning can be as opaque as its importance is
lofty.”
Although “due process” lacks a precise definition, courts have long held
that due process requires both notice and an opportunity to be heard. “An
elementary and fundamental requirement of due process in any
proceeding which is to be accorded finality is notice reasonably calculated,
under all the circumstances, to apprise interested parties of the pendency
of the action and afford them an opportunity to present their objections.”
* * *
Generally, notice of new or rescheduled hearings is sent to the parent's
attorney, as prescribed by Juv.R. 20. A parent's attorney's statement to
the court that he or she communicated with the parent, who failed to
appear, proves that the parent had constructive notice of the
permanent custody hearing. (Citations omitted.) (Emphasis added.)
Matter of C.B., 2020-Ohio-5151, 161 N.E.3d 770, ¶ 10-11, 16 (4th Dist.). “Ohio courts
have traditionally held that while some form of notice of a trial date is required to satisfy
due process, an entry of the date of trial on the court's docket constitutes reasonable,
constructive notice of that fact.” Ohio Valley Radiology Assoc., Inc. v. Ohio Valley
Hosp. Assn., 28 Ohio St.3d 118, 124, 502 N.E.2d 599, 604 (1986); Clelland v. Cartman,
11th Dist. Lake No. 2009-L-024, 2009-Ohio-6514, ¶ 27 (“the entry of the trial date upon
the trial court's docket is sufficient to satisfy the requirements of due process because
a party is responsible for keeping track of the status of her case”).
{¶36} The record shows that the final custody hearing was scheduled in August
2020 for a November 2 and 3, 2020 final hearing. Notice of the hearing issued multiple
times in this case to Whitesed’s attorney of record and appeared on the docket. The
order following the September 9, 2020 hearing on Huddleston’s emergency motion
summarizes what occurred at the hearing, which both Whitesed and her attorney
attended. That order was served on her attorney and directed Whitesed to enroll in Our
Pickaway App. No. 21CA3 19
Family Wizard, stated that the matter was set for a final hearing November 2 and 3,
2020, and ordered Whitesed to answer long overdue discovery.
{¶37} According to Whitesed’s affidavit and filings in the court record,
approximately six days prior to the hearing, Whitesed and her attorney discussed
witnesses in preparation for the November 2, 2020 hearing – she provided him the
names of four witnesses she wanted to have him call on her behalf. In her affidavit, she
states that on October 27, 2020, she provided her attorney “with a list of the names and
contact information of all the witnesses I wanted him to subpoena for the final hearing.”
The following day her attorney filed a subpoena for an Ashville police officer to appear
on November 2, 2020 at 9:00 am for the hearing. Whitesed testified in her affidavit that
she was communicating with her attorney on October 27, 28, and 29 prior to the
November 2, 2020 hearing about the hearing, his need for payment of attorney fees,
and his intention to seek to withdraw as her attorney. And, Whitesed stated that her
attorney informed her of and she was available for the final pretrial hearing on October
16, 2020. Despite all of this activity and her knowledge of and participation in hearing
preparation efforts, she claims she “did not receive a notice of hearing regarding the
November 2, 2020 hearing.” (Emphasis added.) See Fendrich v. Fendrich, 8th Dist.
Cuyahoga No. 54840, 1989 WL 21431, *3 (where court’s journal entries provided
constructive notice of trial, affidavit which averred that party did not receive notice does
not establish ground for relief).
{¶38} The day of the hearing, after Whitesed failed to appear and they could not
locate her in the courthouse, the magistrate asked her attorney whether she had notice
of the final hearing:
Pickaway App. No. 21CA3 20
Q. And, this matter was set for hearing today at 9 o’clock, and Mr.
DeBeneditto, did your client have notice of today’s hearing?
A. She did.
Q. And, what notice did she have?
A. Well, I, I knew we spoke about this multiple times. I assume the court
sent her notice as well, but yes, she is certainly aware of this morning’s
hearing.
Q. And she knew to be here today at 9 o’clock.
A. I believe so.
Q. And you had talked to her about having witnesses?
A. Yes.
Q. And she gave you witnesses?
A. That is correct.
Q. And some of those witnesses were her family members?
A. Yes.
Q. And, so they knew to be here also, or they were going to be called for a
hearing?
A. Right.
{¶39} Based on our review of the record we find that the trial court did not act
unreasonably, arbitrary, or unconscionably when it determined that Whitesed had
constitutionally sufficient notice of the hearing and decided not to attend it. The trial
court determined that her contention that she did not “receive a notice” is not the same
as stating that she had no actual knowledge of the hearing date. The record shows that
the clerk served multiple notices of the hearing date on Whitesed’s attorney and he
informed the magistrate that he had informed his client. The magistrate determined,
Pickaway App. No. 21CA3 21
based upon Whitesed’s attorney’s representations, that Whitesed had notice of the
hearing. The trial court conducted an independent review of the evidence as required by
Juv.R. 40, considered Whitesed’s affidavit, and determined that Whitesed was not
credible and was not being completely forthright in her affidavit. The trial court, not the
magistrate, is “the ultimate trier of fact.” State ex rel. Dewine v. Ashworth, 4th Dist.
Lawrence No. 11CA16, 2012-Ohio-5632, ¶ 37; In re A.S., 1st Dist. Hamilton No. C-
180056, 2019-Ohio-2359, ¶ 20.
{¶40} The trial court did not violate Whitesed’s constitutional rights when it
determined that the magistrate properly proceeded ex parte with the custody hearing.
Whitesed had constitutionally sufficient notice of the trial. We overrule the third
assignment of error.
IV. CONCLUSION
{¶41} Having overruled the assignments of error, we affirm the trial court’s
judgment.
JUDGMENT AFFIRMED.
Pickaway App. No. 21CA3 22
JUDGMENT ENTRY
It is ordered that the JUDGMENT IS AFFIRMED and that appellant shall pay the
costs.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the Pickaway
County Common Pleas Court, Juvenile Division, to carry this judgment into execution.
Any stay previously granted by this Court is hereby terminated as of the date of
this entry.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.
Smith, P.J. & Wilkin, J.: Concur in Judgment and Opinion.
For the Court
BY: ________________________________
Michael D. Hess, Judge
NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a final judgment
entry and the time period for further appeal commences from the date of filing
with the clerk.