Oliver v. Feldner

• Decision Date: 21 June 2002
• Docket Number: No. CA-290.,CA-290.
• Citation: Oliver v. Feldner, 149 Ohio App.3d 114, 776 N.E.2d 499, 2002 Ohio 3209 (Ohio App. 2002)
• Parties: OLIVER et al., Appellees, v. FELDNER, Appellant.
• Court: Ohio Court of Appeals

Page 499

776 N.E.2d 499

149 Ohio App.3d 114

2002 Ohio 3209

OLIVER et al., Appellees, v.FELDNER, Appellant.

No. CA-290.

Court of Appeals of Ohio, Seventh District, Noble County.

Decided June 21, 2002.

Hoffman Law Office and Grace L. Hoffman, Barnesville, for appellees.

Tribbie, Scott, Plummer & Padden and Daniel G. Padden, Cambridge, for appellant.

WAITE, Judge.

{¶ 1} This timely appeal arises from a decision of the Noble County Court of Common Pleas granting visitation rights to appellees, the grandparents of Laken A. Feldner("Laken").Theresa A. Feldner("appellant") argues that the trial court did not give special weight to her wishes that her daughter Laken have no visitation with appellees, as required by Troxel v. Granville(2000), 530 U.S. 57, 120 S.Ct. 2054, 147 L.Ed.2d 49.For the following reasons, the judgment of the trial court is reversed and judgment is entered in favor of appellant.

{¶ 2} This is the second time this case has been before this court.SeeOliver v. Feldner(Jan. 25, 2001), 7th Dist. No. 271, 2001 WL 111769("Oliver I").The prior appeal arose out of a paternity action and a visitation petition.The paternity action was initiated by John T. Oliver.Appellant married John T. Oliver in 1992, but they divorced shortly thereafter.Afterward, the two maintained a relationship, although they never remarried.On May 6, 1998, appellant gave birth to Laken.It was presumed that John T. Oliver was the father.Appellees are the parents of John T. Oliver and the paternal grandparents of Laken.Appellant allowed John T. Oliver to visit and assist in raising Laken until August 1998.Appellant visited appellees' home with Laken approximately 4-5 times during those months.

{¶ 3} On September 16, 1998, John T. Oliver requested that the Noble County Child Support Enforcement Agency("CSEA") determine the paternity of Laken.Appellant and Laken submitted themselves for genetic testing.John T. Oliver was killed in an automobile accident on October 17, 1998, prior to his submission for genetic testing.

{¶ 4}Appellees, along with the decedent's brother, Kenneth Oliver, sent a notarized statement to CSEA requesting that genetic testing be completed.The county coroner took a blood sample from the decedent, which was later used to establish that he was the father of Laken.

{¶ 5} On December 3, 1998, appellees filed a complaint in the Noble County Court of Common Pleas against appellant seeking visitation as paternal grandparents of Laken.After a full hearing, the trial court ruled on July 29, 1999, that it would be in Laken's best interests to have visitation with appellees.Appellant appealed this ruling, which resulted in the Oliver I decision.

{¶ 6} In Oliver I,this court reversed and remanded the visitation decision on two grounds: (1)the trial court did not "articulate specific findings to support its determination that visitation would be in the best interests of the minor child," nor did it indicate which of the best-interests factors found in R.C. 3109.051(D) influenced the court's decision; and (2)the trial court did not "afford due deference to appellant's decision with regards to the issue of visitation," as required by Troxel,supra.Oliver Iat * 6.On January 25, 2001, as a result of this court's Oliver I decision, the case was remanded to the trial court for further proceedings on the visitation issue.

{¶ 7} On May 4, 2001, the trial court, without holding any additional hearings, again ruled that it was in Laken's best interests to have visitation with appellees.The journal entry does not mention this court's Oliver I decision.The trial court noted that it should "give special weight to the decision of a parent," but ultimately rejected appellant's reasons for denying visitation.

{¶ 8}The trial court proceeded to award appellees slightly more visitation rights than they were granted in its original decision.The original decision provided for four hours of visitation per month at either the home of appellees or appellant and allowed appellant to provide transportation and be present during visitation.(July 29, 1999 Journal Entry.)The subsequent decision allowed 4-5 hours of visitation only in appellees' home and placed no restrictions on what persons may be present during visitation.(May 4, 2001 Journal Entry.)

{¶ 9}Appellant filed this timely appeal on June 4, 2001.Although the appeal appears to have been filed thirty-one days after the trial court's judgment, the thirtieth day was a Sunday.Pursuant to App.R. 14(A), the appeal is deemed timely filed.

{¶ 10}Appellant presents three closely related assignments of error, which will be treated together for ease in analysis:

{¶ 11} "The trial court erred and abused its discretion when it failed to fully and adequately review the factors set forth in Ohio Revised Code Section 3109.051(D).

{¶ 12} "The trial court erred and abused its discretion by failing to afford the defendant-appellant's parental decision material or special weight.

{¶ 13}"The trial court erred and abused its discretion under the Fourteenth Amendment's Due Process Clause by granting grandparent visitation rights."

{¶ 14}Appellant cites only one case in her brief: the Troxel case.

{¶ 15}Appellant argues that the trial court once again failed to sufficiently consider the best-interests factors set forth in R.C. 3109.051(D).Appellant particularly points to Laken's asthma, which appellant believes is aggravated by visitation in appellees' home.

{¶ 16}Appellant also points to evidence that appellees blame appellant for their son's death.Appellant does not specify which factor in R.C. 3109.051(D) is implicated by the alleged animosity.

{¶ 17}Appellant further argues that the trial court did not give any special weight to her wishes as required both by Troxel and Oliver I.Appellant quotes extensively from Troxel in an attempt to define the meaning of "special weight":

{¶ 18}"[T]he 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., 530 U.S. 66, 120 S.Ct. 2054, 147 L.Ed.2d 49.

{¶ 19}"Accordingly, so long as a parent adequately cares for his or her children (i.e., is fit), there will normally be no reason for the State to inject itself into the private realm of the family to further question the ability of that parent to make the best decisions concerning the rearing of that parent's children."Id. at 68-69, 120 S.Ct. 2054, 147 L.Ed.2d 49.

{¶ 20}"The decisional framework employed by the Superior Court directly contravened the traditional presumption that a fit parent will act in the best interest of his or her child."Id. at 69, 120 S.Ct. 2054, 147 L.Ed.2d 49.

{¶ 21}"In an ideal world, parents might always seek to cultivate the bonds between grandparents and their grandchildren.Needless to say, however, our world is far from perfect, and in it the decision whether such an intergenerational relationship would be beneficial in any specific case is for the parent to make in the first instance."Id. at 70, 120 S.Ct. 2054, 147 L.Ed.2d 49.

{¶ 22}"[T]he visitation order in this case was an unconstitutional infringement on Granville's fundamental right to make decisions concerning the care, custody, and control of her two daughters."Id. at 72, 120 S.Ct. 2054, 147 L.Ed.2d 49.

{¶ 23}"[T]he Due Process Clause does not permit a State to infringe on the fundamental right of parents to make child rearing decisions simply because a state judge believes a `better' decision could be made."Id. at 72-73, 120 S.Ct. 2054, 147 L.Ed.2d 49.

{¶ 24}Appellant argues that, according to Troxel, the weight to be afforded her desire to prevent her daughter from visiting with appellees should be significant and substantial and that the trial court's mere differing opinion should not overcome her fundamental right to raise her child according to her own decisions as to the child's best interests.

{¶ 25}Appellees argue that the trial court, on remand, reviewed the relevant factors in R.C. 3109.051(D) and stated them in his opinion.Appellees also argue that the arguments appellant raises concerning Laken's asthma and the enmity between the parties were raised prior to the trial court's original judgment and should not be reconsidered in this second appeal.

{¶ 26}Appellees attempt to distinguish Troxel from the case at bar.Appellees argue that Troxel involved an unusually broad statute in which any person could seek visitation rights at any time.Appellees argue that Ohio's visitation statutes apply only after certain disruptive events have occurred, such as divorce or the death of one of the parents, or if the child's mother is unmarried.SeeR.C. 3109.051, 3109.11, 3109.12.

{¶ 27}Appellees also indicate that the trial court specifically stated that it took appellant's wishes into consideration.Appellees argue that the requirents of Troxel were satisfied and that the overall decision of the trial court should be reviewed only for abuse of discretion, citing Booth v. Booth(1989), 44 Ohio St.3d 142, 144, 541 N.E.2d 1028, in support.Based on the history of this matter and the record herein, appellees are unpersuasive.Appellant's argument has merit and the decision of the trial court is hereby reversed.

{¶ 28} Very few Ohio cases have yet dealt with the implications of the Troxel decision on Ohio's visitation statutes.SeeOliver I;Epps v. Epps(Aug. 9, 2001), 5th Dist. No. 01C0A01403, 2001 WL 914132;In re Woodall(June 13, 2001), 9th Dist Nos. C.A. 20346 and C.A. 20436, 2001 WL 651540.The Epps and Woodallcases give only a brief analysis of Troxel.This court, in Oliver I, basically deferred the questions raised by Troxel by remanding the matter so that the trial court could make its findings more specific.

{¶ 29} The nonparental-visitation statutes which are relevant to the case sub judice are found in R.C....