Foster v. Foster

• Decision Date: 16 April 1974
• Citation: 40 Ohio App.2d 257,319 N.E.2d 395
• Parties: , 69 O.O.2d 250 FOSTER, Appellee, v. FOSTER, Appellant. *
• Court: Ohio Court of Appeals

Page 257

40 Ohio App.2d 257

319 N.E.2d 395, 69 O.O.2d 250

FOSTER, Appellee, v. FOSTER, Appellant. ^*

Court of Appeals of Ohio, Tenth District, Franklin County.

April 16, 1974.

Syllabus by the Court

1. The authority vested in a court by R.C. 3109.05, in extreme Circumstances, includes the authority to give relief through a just modification of an order of support, to a parent continuously or repeatedly prevented from exercising a right to visit a child by the child's refusal to visit with him, but such jurisdiction shuld not be exercised until the court first considers whether to make the child a party pursuant to Civ.R. 75(B)(2).

2. R.C. 3109.05 does not permit an automatic termination of support if visitation privileges are denied without cause, but requires a determination based upon evidence as to what, if any, modification of support is just, which necessarily includes an evaluation of the needs of a child for support against the right of a parent to visit with such child and a balancing of the equities involved.

3. Although the trier of the facts is permitted to disbelieve the testimony of any witness, disbelief of the only evidence upon an issue does not permit a finding that the contrary is true, but rather, disbelief of such testimony leaves the trier of the facts in a position of having no evidence upon the issue.

Robins, Preston & Beckett Co., L. P. A., Columbus, and John A. Sentz, Jr., Columbus, of Counsel, for appellee.

Maugan, Vacca & Braun, Columbus, for appellnt.

WHITESIDE, Judge.

This is an appeal from a judgment of the Franklin County Court of Common Pleas, Division of Domestic Relations, suspending the child support payments to be made by plaintiff for the support of his minor children 'until such time as the plaintiff can exercise his visitation.'

A complaint for divorce was filed by plaintiff on January 22, 1971. Subsequently, defendant filed a cross-complaint. Defendant was granted a divorce upon the cross-complaint by a judgment entry of January 12, 1972, and the decree incorporated a separation agreement requiring plaintiff to pay $325 per month support for the parties' two minor daughters, aged, approximately, 15 and 8.

Thereafter, a motion was filed by defendant for a finding of contempt against plaintiff for failure to pay the child support. After the motion was filed, plaintiff filed a motion for termination of support payments upon the grounds that he had been denied visitation rights. The referee made a recommendation for a partial suspension of support payments until plaintiff is granted visitation rights. At the same time, the referee found plaintiff in contempt for failing to make payments ordered by the court on an arrearage. By its judgment order, entered May 25, 1972, the trial court adopted the recommendation of the referee with respect to finding plaintiff in contempt but rejected the recommendation of the referee with regard to the suspension of child support payments.

On July 18, 1972, plaintiff filed a second motion seeking to suspend child support payments because of the alleged denial of his visitation privileges. Shortly thereafter, another motion for contempt was filed by defendant because of plaintiff's failure to make child support payments, as was a motion for an order to terminate the visitation rights of plaintiff with the parties' children. These matters were again heard by a referee who recommended denial of relief to all parties. Both parties filed objections to the report of the referee. On December 19, 1972, the trial court rendered a decision adopting the report of the referee which was journalized by an order entered on January 31 1973. In the interim, on January 5, 1973, plaintiff filed a third motion seeking the same relief-namely, the suspension or modification of child support payments until he is able to exercise his visiting privileges with the minor children of the parties.

This matter was heard on February 9, 1973, before the same referee who had heard the previous matters, and who again recommended suspension of support payments. Objections to the report were filed, but were overruled by the trial court, and the report of the referee was adopted. (The objections were filed to a report mailed to counsel for defendant on May 31, 1973, but no such report is found in the record. Findings of fact and conclusions of law were entered by the referee on August 22, 1973, the same date that a handwritten decision of the trial court overruling objections to such was entered. We assume this constitutes the report of the referee which was adopted by the trial court.) Defendant appeals and raises assignments of error divided into two basic parts, but consisting of nine branches as follows:

'I. The court erred in overruling the objections of defendant-appellant to the report of the referee of May 31, 1973, and in adopting and approving said report in its entirety for the following reasons, to-wit:

'(1) The findings of fact, approved by the court, are not sustained by the evidence and are against the manifest weight of the evidence and contrary to law.

'(2) The court and the referee erred in admitting and considering incompetent evidence over the objections of this party.

'(3) The finding of the referee, and approved by the court, that the plaintiff-appellee has been continuously and repeatedly prevented from exercising his rights to visitation, established by an order of the court, is contrary to law and contrary to evidence.

'(4) The finding of the referee that the defendant-appellant has been responsible for the interference with the visitation rights of the plaintiff-appellee, and approved by the court, is contrary to the manifest weight of evidence but there is abundant testimony that the defendant-appellant has made every effort to get the children to go with their father, and the defendant-appellant has never denied the plaintiff-appellee his rights of visitation. See page 6 of the record and the entire testimony of the defendant-appellant, appearing on pages 8 through 15, inclusive, and pages 48 through 59, inclusive, of the record.

'(5) The referee and the court erred in visitation with her father, the plaintiff-apdaughter of the defendant-appellant and plaintiff-appellee, appearing on pages 59 through 73 of the transcript of proceedings of February 9, 1973; wherein, she gives her reasons for terminating the rights of visitation with her father, the plaintiff-appellee in this case. The report of the referee should be rejected in its entirety, and the motion of the plaintiff-appellee, to suspend or terminate child support payments, should be overruled.

'(6) The court erred in adopting the report of the referee in incorporating in his findings of fact and conclusions of law, made in his report of May 31, 1973, basing his findings of fact on the transcripts of the proceedings of two previous hearings, which were decided in favor of the defendant-appellant, the tendency of which has the effect of reversing previous orders made in favor of the defendant-appellant, and on the proceedings of February 9, 1973, as the plaintiff-appellee is limited, in the February 9, 1973 hearing, to facts which occurred after August 29, 1972.

'(7) The court erred in adopting the ruling of the referee in not ruling on the motion of the defendant-appellant to make an aorder, ordering plaintiff-appellee and the children to submit to a psychiatric examination to ascertain the nature of the problem between the plaintiff-appellee and his children, contrary to Civil Rule 35.

'II. The court erred in adopting the referee's report, in sustaining the motion of plaintiff-appellee of suspending child support payments until such time as the plaintiff-appellee can exercise his visitation, for the following reasons, to-wit '(1) The court and the referee erred in terminating all child support payments, effective February 9, 1973, until the plaintiff-appellee is affolded regular visitation. Such a sweeping order is oppressive to the defendant-appellant and is not contemplated by Section 3109.05 for the reason that the effect of said order is to make these children public charges and placing them with Welfare when the father is financially able to support said children, and said order constitutes a gross abuse of discretion, on the part of the court, and is not for the welfare of these children.

'(2) The court and the referee erred in applying the provision of Section 3109.05 of the Revised Code of Ohio, for the reason that said section is unconstitutional as it impairs the obligation of the contract made by the parties in the divorce decree, entered on January 12, 1972; wherein, the parties expressly agreed with each other in paragraph 3, subparagraph 1, of the divorce decree respecting custody of the children and child support. Section 3109.05 is also unconstitutional in that it is in direct conflict with Section 3103.03, and the ruling of the referee relieves the husband of his primary responsibility of support and has a tendency of shifting his burden to the tax-payers of Ohio, contrary to the provision of Section 3103.03 of the Revised Code of Ohio.'

The record clearly indicates that the parties' fifteen-year-old daughter did not want to visit her father at any time. The evidence overwhelmingly indicates that the source of the visitation problem was the attitude of this girl towards her father. Both plaintiff and defendant so testified. The girl also so testified on three separate occasions-March 10, 1972, August 29, 1972, and February 9, 1973.

At the conclusion of the March 10, 1972, hearing, the referee stated:

'* * * It appears that if Deborah does not want to visit with her father and Mrs. Foster does not feel that she can force her to visit with her father I frankly see no reason why he should continue to be a meal ticket for that child and simply support her and let her say she is not going to see him, doesn't want to see him, and is denying, in effect,...