Cottrell v. Cottrell
| Decision Date | 24 February 2014 |
| Docket Number | No. CA2013–07–065.,CA2013–07–065. |
| Citation | 8 N.E.3d 1003 |
| Parties | Robert W. COTTRELL, Plaintiff–Appellant, v. Kathleen COTTRELL, Defendant–Appellee. |
| Court | Ohio Court of Appeals |
OPINION TEXT STARTS HERE
Dan D. Weiner, Kettering, OH, for plaintiff-appellant.
Kathleen Cottrell, Franklin, OH, pro se.
{¶ 1} Plaintiff-appellant, Robert W. Cottrell (Father), appeals a decision of the Warren County Common Pleas Court, Domestic Relations Division, finding Father's substantive due process rights were not violated by the imposition of Warren County's Basic Parenting Schedule.1 For the reasons set forth below, we affirm the decision of the trial court.
{¶ 2} This case has previously been appealed to this court under Cottrell v. Cottrell, 12th Dist. Warren No. CA2012–10–105, 2013-Ohio-2397, 2013 WL 2635571 ( Cottrell I ). The sole issue pertinent to this appeal is whether Warren County's Basic Parenting Schedule which provides that parenting time for children 16–18 years of age “shall not be limited other than as the child and the non-residential parent choose,” denies Father his fundamental right to the care and custody of his minor child. The following facts are pertinent to this appeal. For additional facts, see our decision in Cottrell I.
{¶ 3} Father and defendant-appellee, Kathleen Cottrell (Mother), were married for several years, having one child together, Alan, born June 19, 1996. Father filed for divorce in March 2010 and, after a contested hearing, the trial court issued a “Decision” regarding the divorce on July 22, 2011. In the Decision, the trial court adopted the parties' proposed shared parenting plan which was requested by Alan during an in camera interview with the trial judge. Although the final decree of divorce and agreed shared parenting plan were not filed until September 9, 2011, the parties began complying with the shared parenting plan in late July or early August 2011.
{¶ 4} The shared parenting plan provided that Father and Mother were to have equal parenting time with Alan on an alternating week-to-week basis. However, near the end of September 2011, Alan indicated he wanted to spend all of his time with Mother and, despite the parenting time provisions of the shared parenting plan, refused parenting time with Father. Therefore, on December 13, 2011, Mother moved to modify the shared parenting plan, seeking full custody of Alan with Father receiving “standard” visitation. Mediation was ordered. The mediator encouraged Father to attempt “baby steps” with Alan to repair rifts in their relationship. Though Father attempted to see Alan weekly on Wednesday evenings, Alan refused to visit with Father approximately half the time.
{¶ 5} Consequently, a magistrate hearing was held on Mother's motion to modify on May 9, 2012, and July 12, 2012. The magistrate conducted an in camera interview with Alan on May 23, 2012. Alan was 16 years old at the time of the interview and was determined by the magistrate to be “sufficiently mature” to have his wishes considered in determining his best interests. During the in camera interview, Alan expressed his “firm” desire to reside with Mother and have no visitation with Father.
{¶ 6} At the hearing and during the in camera interview, evidence was presented that Alan is resentful of Father due to certain arguments and incidents that have undermined their relationship. Those incidents are detailed in Cottrell I. The magistrate specifically found that these incidents resulted in alienating Alan from Father.
{¶ 7} After hearing evidence from Father, Mother, and Alan, the magistrate issued a decision on July 20, 2012, determining that, based upon “the deterioration in the relationship between the parties,” “the relationship between Alan and Father,” and Alan's desires, the week-to-week shared parenting arrangement is “no longer in Alan's best interest.” Therefore, the magistrate designated Mother as sole residential parent and legal custodian of Alan. However, rather than giving effect to Alan's desire not to visit with Father, the magistrate determined it was in Alan's best interest that parenting time between he and Father be in accordance with Warren County's Basic Parenting Schedule for children between 16 and 18 years of age (the “16–18 Schedule”). The 16–18 Schedule provides as follows:
TEENAGERS—AGE 16 UNTIL 18:
Parenting time for children in this age bracket shall be fixed between the child and the non-residential parent. Parenting time shall not be limited other than as the child and the non-residential parent choose.
The magistrate further provided, “Inasmuch as parenting time for a 16 year old child is to be determined between the nonresidential parent and the child,” Father shall attend counseling with Alan and Mother and is required to cooperate in the counseling and take part if necessary.
{¶ 8} Father objected to the magistrate's decision. Father's objections were overruled by the trial court and the magistrate's recommendations were adopted in full on October 1, 2012.
{¶ 9} Father appealed the trial court's ruling on his objections on several grounds, including whether Father's constitutional rights were violated by the imposition of the 16–18 Schedule. We overruled the majority of Father's arguments on appeal. However, finding that the trial court failed to rule upon Father's objection relating to whether parenting time pursuant to the 16–18 Schedule violated Father's substantive due process right to the care, custody and management of his child, we remanded the matter to the trial court on that sole issue. Cottrell I, 2013-Ohio-2397, 2013 WL 2635571, at ¶ 57.
{¶ 10} On remand, the trial court issued a decision finding that the imposition of the 16–18 Schedule does not violate Father's substantive due process rights. In its June 14, 2013 decision, the trial court found that the schedule defines the relationship between the parents and not that between the nonresidential parent and the child. According to the trial court, the “language regarding the nonresidential parent and the child choosing the parentingtime merely delineates that the authority to schedule the parenting time does not belong to the residential parent.” The trial court went on to state:
The child is not the sole decision-maker regarding when and whether parenting time will occur. Should the child refuse to participate in parenting time with the non-residential parent, the parent has three options: (1) the parent may request that the domestic relations court order the residential parent to take the child to counseling with the non-residential parent; (2) the parent may initiate a proceeding in juvenile court to compel the child to participate in parenting time; or (3) the parent may request the Court to establish a definite schedule. Therefore, the Court in no way precludes parents from spending time with their children by ordering the Basic Parenting Schedule for sixteen to eighteen-year-old teenagers, and parents' due process rights to parent their children are not violated.
{¶ 11} From the trial court's decision on remand, Father appeals, raising two assignments of error:
{¶ 12} Assignment of Error No. 1:
{¶ 13} THE TRIAL COURT'S DECISION AND ENTRY UPON REMAND DENIES [FATHER'S] CONSTITIONAL [SIC] DUE PROCESS RIGHTS AND HIS PARENTING RIGHTS UNDER THE 14TH AMENDMENT OF THE U.S. CONSTITUTION AND ARTICLE 1, SECTION 16 OF THE OHIO CONSTITUTION.
{¶ 14} Assignment of Error No. 2:
{¶ 15} THE TRIAL COURTS [SIC] STANDARD PARENTING ORDER REGARDING CHILDREN 16 YEARS OF AGE AND OLDER VIOLATES [FATHER'S] SUBSTANTIVE CONSTITIONAL [SIC] RIGHTS UNDER THE 14TH AMENDMENT OF THE U.S. CONSTUTION [SIC] AND ARTICLE 1, SECTION 16 OF THE OHIO CONSTITUTION.
{¶ 16} In both assignments of error, Father argues his substantive due process rights were violated by the trial court's June 14, 2013 decision and the implementation of the 16–18 Schedule. Specifically, Father contends the trial court's decision and the 16–18 Schedule permit a minor child to determine parenting time with the nonresidential parent and, therefore, violates the nonresidential parent's “constitutionally protected fundamental interest in the care, custody, and management of their children.” In addition, Father asserts for the first time on appeal that the 16–18 Schedule fails to set forth a “specific schedule” of parenting time in violation of R.C. 3109.051(A).
{¶ 17} “The Fourteenth Amendment provides that no State shall ‘deprive any person of life, liberty, or property, without due process of law.’ ” Troxel v. Granville, 530 U.S. 57, 65, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000). The United States Supreme Court has “long recognized that the Amendment's Due Process Clause, like its Fifth Amendment counterpart, ‘guarantees more than fair process.’ ” Id., citing Washington v. Glucksberg, 521 U.S. 702, 719, 117 S.Ct. 2258, 138 L.Ed.2d 772 (1997). “The Clause also includes a substantive component that ‘provides heightened protection against government interference with certain fundamental rights and liberty interests.’ ” Troxel at id., citing Glucksberg at 720, 117 S.Ct. 2258; Reno v. Flores, 507 U.S. 292, 301–302, 113 S.Ct. 1439, 123 L.Ed.2d 1 (1993).
{¶ 18} If a party argues that a government regulation impinges upon a fundamental constitutional right, courts must apply a strict-scrutiny standard of review. Harrold v. Collier, 107 Ohio St.3d 44, 2005-Ohio-5334, 836 N.E.2d 1165, ¶ 39. Under the strict-scrutiny standard, a regulation that infringes on a fundamental right is unconstitutional unless the regulation is narrowly tailored to promote a compelling governmental interest. Id., citing Chavez v. Martinez, 538 U.S. 760, 775, 123 S.Ct. 1994, 155 L.Ed.2d 984 (2003).
{¶ 19} The liberty interest of parents in the care, custody, and management of their children is perhaps the oldest of the fundamental liberty interests recognized by the United States Supreme Court. Troxel at 65, ...
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...her right to raise M. See Harrold v. Collier, 107 Ohio St.3d 44, 2005-Ohio-5334, 836 N.E.2d 1165, ¶ 39 ; see also Cottrell v. Cottrell, 12th Dist., 2014-Ohio-646, 8 N.E.3d 1003, ¶ 20. Applying strict scrutiny, the issue we must decide is whether R.C. 3109.04(F)(1)(f) and (i) are narrowly ta......