Denier v. Carnes-Denier, s. CA2016–02–012

• Decision Date: 30 January 2017
• Docket Number: CA2016–04–022.,Nos. CA2016–02–012,s. CA2016–02–012
• Citation: 2017 Ohio 334,77 N.E.3d 588
• Parties: Charles P. DENIER, Plaintiff–Appellee, v. Carrie D. CARNES–DENIER, Defendant–Appellant.
• Court: Ohio Court of Appeals

77 N.E.3d 588

2017 Ohio 334

Charles P. DENIER, Plaintiff–Appellee,

v.Carrie D. CARNES–DENIER, Defendant–Appellant.

Nos. CA2016–02–012

CA2016–04–022.

Court of Appeals of Ohio, Twelfth District, Warren County.

Jan. 30, 2017.

Mark Webb, Springboro, OH, for plaintiff-appellee.

Rollman, Handorf & Conyers LLC, Jeffrey Rollman, Mason, OH, for defendant-appellant.

AWK Legal, LLC, Tyler Webb, Mason, OH, Guardian Ad Litem.

OPINION

M. POWELL, P.J.

{¶ 1} Defendant-appellant, Carrie D. Carnes–Denier ("Mother"), appeals two judgments of the Warren County Court of Common Pleas, Domestic Relations Division, determining parenting issues concerning her children.

{¶ 2} Mother and Charles Denier ("Father"), were divorced on September 10, 2014. Three children, Co.D., Ch.D. and Ca.D., were born issue of their marriage. The divorce decree designated Mother as the children's residential parent and provided Father no parenting time with Co.D. and Ch.D. pending counselling and gradually increasing parenting time with Ca.D. The decree reflected the parties' goal of gradual reunification between Father and the children.

{¶ 3} Mother and Father have engaged in extensive post-decree litigation related to parenting issues. In early 2015, Father moved for custody of the children. Later, after the children's guardian ad litem (GAL) recommended it, Father moved the court to adopt a shared parenting plan which he submitted to the court.

{¶ 4} In July 2015, a magistrate issued a decision on Father's motions, which adopted Father's shared parenting plan, subject to certain magistrate-recommended modifications. The plan provided Father with gradually increasing parenting time with Ca.D. and video conferences with Co.D. and Ch.D.

{¶ 5} Mother moved the court to stay the decision pending her objections. The court overruled Mother's request and simultaneously issued an interim order giving immediate effect to the July 2015 magistrate's decision for 28 days. The interim order provided that it would automatically renew for additional 28–day increments until the court had ruled on any objections.

{¶ 6} Mother filed objections to the July 2015 magistrate's decision. While Mother's objections were pending, the GAL filed a motion to modify parenting time. Father filed a new motion asking for custody of Ca.D. and a modification to parenting time with Co.D. and Ch.D. All of these motions were premised on Mother's alleged efforts to alienate the children from Father.

{¶ 7} In September 2015, the magistrate issued a decision on these three motions. The magistrate deferred consideration of Father's request for custody until the court ruled on Mother's objections to the July 2015 magistrate's decision. But the magistrate recommended Ca.D. reside primarily with Father and that Father be designated Ca.D.'s residential parent for school purposes. Mother was granted alternating weekend parenting time with Ca.D.

{¶ 8} The court entered an interim order giving effect to the September 2015 magistrate's decision. The interim order provided that it was effective for 28–day increments and would automatically renew for additional 28–day increments. Mother did not file objections to the September 2015 magistrate's decision.

{¶ 9} On October 1, 2015, the magistrate held a hearing to review the status of the parties' parenting issues as scheduled in the July 2015 magistrate's decision. Following the hearing, the magistrate issued a decision that made changes to the current shared parenting arrangement. The magistrate's decision reflected that the changes were by agreement of the parties. The decision scheduled another hearing to review the status of the case on December 2, 2015. Mother did not file objections to this October 2015 magistrate's decision.

{¶ 10} On October 23, 2015, the court overruled Mother's objections to the July 2015 magistrate's decision. Mother appealed that judgment, which was the subject of an earlier appeal decided by this court. See Denier v. Carnes–Denier, 12th Dist. Warren No. CA2015–11–106, 2016-Ohio-4998, 2016 WL 3881112 (hereafter, "Denier I ").

{¶ 11} While Denier I was pending, Mother moved the court to remove the children's GAL, which she premised on the claim that the GAL was not acting impartially.

And one week before the December 2015 review hearing, Mother moved the court for a continuance. Mother explained that she was not able to secure certain subpoenaed documents prior to the hearing.

{¶ 12} The magistrate denied the request for a continuance and the December hearing proceeded as scheduled.¹ On December 8, 2015, the magistrate issued a decision noting that Mother's request for a continuance was denied because Mother had notice of the hearing since early October 2015. Nonetheless, the decision remarked that the hearing had been continued "in progress" to allow mother to obtain the documents she was seeking. The decision denied Mother's motion to remove the children's GAL.

{¶ 13} Mother filed objections to this December 2015 magistrate's decision. In January 2016, the court entered another interim order giving effect to the December 2015 decision for 28 days, with automatic renewal for additional 28–day increments.

{¶ 14} In late January 2016, the court issued its "Final Judgment Entry and Decree of Shared Parenting." This entry contained the final version of Father's shared parenting plan and incorporated elements and concerns from hearings that had occurred and entries that had been journalized in the case since July 2015. This entry is the first of the two that Mother is seeking relief from in this appeal.

{¶ 15} In February 2016, the magistrate issued a decision from the December 2015 review hearing (which continued in progress for two additional days in December 2015 and January 2016). The decision found that no progress had been made in reuniting Father with Co.D. and Ch.D. and recommended "therapeutic intervention" to aid in reunification. Mother filed objections to this magistrate's decision.

{¶ 16} In a February 2016 entry, the trial court overruled Mother's objections to the December 2015 magistrate's decision. In a March 2016 entry, the trial court overruled Mother's objections to the February 2016 magistrate's decision. Mother also appeals from this judgment entry.

{¶ 17} In July 2016, this court issued its decision in Denier I . We affirmed the trial court, concluding that the court's decision to order shared parenting was supported by competent and credible evidence. Id. at ¶ 19.

{¶ 18} Mother assigns one error for our review:

{¶ 19} THE TRIAL COURT ERRED WHEN IT DENIED THE MOTHER DUE PROCESS BEFORE CHANGING THE RESIDENTIAL STATUS OF THE YOUNGEST CHILD AND MODIFYING THE PARENTAL RIGHTS AS TO THE OLDER TWO CHILDREN.

{¶ 20} While Mother's brief contains one assignment of error asserting a violation of due process, Mother presents seven issues for review involving various and overlapping procedural issues. For ease of analysis we address many these issues collectively.

DUE PROCESS

{¶ 21} "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) ; see also the Due Process and Remedies Clauses, Section 16, Article I of the Ohio Constitution. The essential components of due process are notice, hearing and the opportunity to be heard before a competent tribunal. Price v. Nixon, 2d Dist. Clark No. 2010–CA–058, 2011-Ohio-2430, 2011 WL 2089582, ¶ 31. "Essentially, ‘[a]mple opportunity must be afforded the parties in appropriate cases to defend, enforce or protect their rights through presentation of their own evidence, confrontation and cross-examination of adverse witnesses, and oral argument.’ " Id., quoting Bakaitis v. Bakaitis, 2d Dist. Montgomery No. 7997, 1983 WL 2446, *3 (May 23, 1983).

{¶ 22} 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, 120 S.Ct. 2054. Thus "the Due Process Clause of the Fourteenth Amendment protects the fundamental right of parents to make decisions concerning the care, custody, and control of their children." Id. at 66, 120 S.Ct. 2054 ; see also Santosky v. Kramer, 455 U.S. 745, 753, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982) ; In re Bayless, 12th Dist. Warren No. CA90–09–064, 1991 WL 274312, *2 (Dec. 23, 1991).

MODIFICATION OF PARENTAL RIGHTS AFTER JULY 2015

{¶ 23} In the following issues for review, Mother alleges that the court violated her due process rights by various actions it took after she filed objections to the July 2015 magistrate's decision and her subsequent appeal of the entry adopting that decision.

{¶ 24} First, Second, Third, and Seventh Issues for Review:

• When an appeal is pending the trial court is prohibited from hearing the same issues without receiving an order from the Appellate Court permitting the trial court to move forward.

• It is plain error for a trial court to proceed with modifying a decision/temporary order that has not become a final order of the court.

• A trial court should not proceed to modify an order that has not become final and is subject to the Trial Court's review of a Magistrate's Decision.

• The trial court adopted a Share[d] Parent[ing] Plan that was not in conformity with the July 31, 2015 [decision] and while an appeal was pending.

{¶ 25} In all four issues, Mother presents variations of the same argument, i.e., that the trial court violated her due process rights by holding various modification hearings before a shared parenting plan had been adopted by the court and while Denier I was pending. Mother argues that this action violated her due process rights because it caused her "uncertainty" as to the "true issues" at the December review hearing. Mother never raised this argument with the lower court and is therefore limited to civil plain error analysis.

{¶ 26} The plain error...