State ex rel. Papp v. James

• Decision Date: 01 June 1994
• Docket Number: No. 93-1626,93-1626
• Citation: 69 Ohio St.3d 373,632 N.E.2d 889
• Parties: The STATE ex rel. PAPP v. JAMES, Judge.
• Court: Ohio Supreme Court

Page 373

69 Ohio St.3d 373

632 N.E.2d 889

The STATE ex rel. PAPP v. JAMES, Judge.

No. 93-1626.

Supreme Court of Ohio.

Submitted March 30, 1994.

Decided June 1, 1994.

Relator, Elizabeth A. Papp, seeks writs of mandamus and prohibition to remedy claimed errors arising from a divorce proceeding filed by her husband, Richard F. Papp. The divorce involved a custody dispute over the couple's four minor children, along with issues of child support, visitation, spousal support and property settlement. Elizabeth was originally awarded permanent custody in 1991.

In August 1992, Richard moved for change of custody. Judge Thomas F. Norton, formerly of the Trumbull County Common Pleas Court, Domestic Relations Division, and the original respondent in this case, heard the matter on January 25 to 28, 1993. On January 26, Richard apparently testified that Elizabeth had struck the children. Elizabeth asked her oldest son, ten-year-old Jacob, to dispute this allegation, and he agreed to testify. Elizabeth anticipated that Judge Norton might decide to interview Jacob in chambers, and on January 27, she moved for appointment of a guardian ad litem and for a stay of proceedings to allow the guardian time to prepare.

Judge Norton did not grant or deny Elizabeth's motions. He instead interviewed Jacob alone in chambers and allegedly pressed him to choose between his parents. Jacob apparently told Judge Norton that he did not want to choose, but ultimately indicated that he preferred to live with his mother.

On January 29, 1993, Judge Norton granted custody of the Papps' two boys to Richard, allowing Elizabeth to retain custody of the two girls. On February 9, he issued the Papps a divorce decree that confirmed the change of custody and set visitation, along with a stipulated support and property distribution. Neither judgment stated the reason for the change of custody, and Elizabeth moved for separate findings of fact and conclusions of law on February 1 and 18, after each judgment. She represents that both motions are still pending.

Elizabeth seeks a writ of mandamus to vacate the custody determination, to appoint a guardian ad litem, and to stay the custody proceedings so that the guardian can prepare for a new hearing. She also requests a writ of prohibition to prevent the denial of her motions for appointment of a guardian and stay. In the alternative, Elizabeth asks for a writ of mandamus to order findings of fact and conclusions of law for the judgments issued on January 29 and February 9, 1993.

Judge Norton was ordered to show cause by September 7, 1993 why the writs should not be granted, and he answered on that date. Thereafter, Elizabeth filed a notice asking that respondent, Judge Richard L. James, who was appointed to succeed Judge Norton upon his resignation, be substituted for him.

Judge James has moved to strike Jacob Papp's statement about his interview with Judge Norton. Elizabeth has moved to strike the deposition of Elizabeth's attorney at trial, Kay Williams Young, with exhibits, and the partial transcript of the hearing held January 27, 1993.

McTigue & Brooks, and Donald J. McTigue, for relator.

Richards & Meola, and Charles L. Richards, for respondent.

PER CURIAM.

This case presents six issues for our review. First, should either party's evidence be stricken? Second, is there a clear legal duty to appoint a guardian ad litem upon a parent's motion before interviewing a child in a custody dispute? Third, is there a clear legal duty in this case to issue findings of fact and conclusions of law upon timely motion? Fourth, does Elizabeth have an adequate remedy at law? Fifth, should a writ of mandamus issue either to vacate the custody decree and to compel appointment of a guardian ad litem and a new hearing, or to order the filing of findings of fact and conclusions of law? Sixth, is there any cause for issuing a writ of prohibition?

For the reasons that follow, we overrule Elizabeth's motion to strike, and grant Judge James's motion to strike in part. Moreover, we hold that (1) where the court interviews a child in a custody proceeding, R.C. 3109.04(B)(2)(a) creates a duty to appoint a guardian ad litem upon either parent's motion, (2) Civ.R. 52 creates a duty to issue findings of fact and conclusions of law for a decree or final order in an action tried to the court, and the January 29 custody ruling was a final order, (3) appeal is not an adequate remedy to obtain compliance with Civ.R. 52, but (4) appeal is an adequate remedy to enforce the R.C. 3109.04(B)(2)(a) duty to appoint a guardian ad litem, and, therefore, (5) a writ of mandamus must issue to compel the filing of findings of fact and conclusions of law for the January 29 custody order. Finally, we hold that Elizabeth has not shown the conditions necessary for a writ of prohibition. Accordingly, we grant a writ of mandamus to compel findings of fact and conclusions of law with respect to the custody order of January 29, 1993, but deny her other requests for extraordinary relief.

Motions to Strike Evidence

In addition to a description of his interview with Judge Norton, Jacob Papp's statement indicates his parental preference. Judge James maintains that we cannot accept the statement without running afoul of R.C. 3109.04(B)(3), which states:

"No person shall obtain or attempt to obtain from a child a written or recorded statement or affidavit setting forth the child's wishes and concerns regarding the allocation of parental rights and responsibilities concerning the child. No court, in determining the child's best interest for purposes of making its allocation of the parental rights and responsibilities for the care of the child or for purposes of resolving any issues related to the making of that allocation, shall accept or consider a written or recorded statement or affidavit that purports to set forth the child's wishes and concerns regarding those matters."

Judge James argues that this action involves "issues related to the making of [the parental rights and responsibilities] allocation." Elizabeth responds that R.C. 3109.04(B)(3) applies only in proceedings instituted to make the parental rights and responsibilities allocation, which this case is not.

Elizabeth's restrictive view is technically correct, but we find the language of R.C. 3109.04(B)(3) and policy underlying it strong enough to justify a broad construction. This statute was obviously intended to protect children from unsupervised demands that they choose between their parents, and the harm such demands may cause is a valid concern in any proceeding. R.C. 3109.04(B)(3), however, does not prohibit all written or recorded statements or affidavits of a child, just those that "purport[ ] to set forth the child's wishes and concerns regarding * * * [the allocation of parental rights]." Thus, we apply this statute here to strike Jacob's expressions of parental preference, but we accept his statement to prove that he was interviewed privately by Judge Norton.

Elizabeth moves to strike Judge James's evidence as having been filed out of rule. S.Ct.Prac.R. VIII(7) requires all evidence to be filed "within twenty-eight (28) days of the time of or for filing a reply," which Elizabeth calculates to have been on November 2, 1993. Judge James filed his evidence on January 31, 1994, along with the merit brief he was granted leave to file.

Judge James was permitted to file his brief late because after his appointment to Judge Norton's seat, Elizabeth served her merit brief on the Trumbull County Prosecuting Attorney--not Judge Norton's attorney, who now represents Judge James. We also consider this confusion over counsel of record sufficient cause for overruling Elizabeth's motion to strike, and for granting Judge James's motion for leave to file his evidence instanter.

Guardian Ad Litem

Judge Norton did not rule on Elizabeth's motion for appointment of a guardian ad litem prior to interviewing Jacob in chambers. R.C. 3109.04(B) provides, in part:

"(1) When making the allocation of the parental rights and responsibilities for the care of the children under this section in an original proceeding or in any proceeding for modification of a prior order of the court making the allocation, the court shall take into account that which would be in the best interest of the children. In determining the child's best interest for purposes of making its allocation of the parental rights and responsibilities for the care of the child and for purposes of resolving any issues related to the making of that allocation, the court, in its discretion, may and, upon the request of either party, shall interview in chambers any or all of the involved children regarding their wishes and concerns with respect to the allocation.

"(2) If the court interviews any child pursuant to division (B)(1) of this section, all of the following apply:

"(a) The court, in its discretion, may and, upon the motion of either parent, shall appoint a guardian ad litem for the child.

" * * *

"(c) The interview shall be conducted in chambers, and no person other than the child, the child's attorney, the judge, any necessary court personnel, and, in the judge's discretion, the attorney of each parent shall be permitted to be present in the chambers during the interview." (Emphasis added.)

This statute plainly requires appointment of a guardian ad litem upon the motion of a parent if the court intends to privately interview a child in a custody dispute. Elizabeth has thus established the first condition for a writ of mandamus--a clear right to the performance of a clear legal duty. State ex rel. The Fairfield Leader v. Ricketts (1990), 56 Ohio St.3d 97, 102, 564 N.E.2d 486, 491.

Findings of Fact and Conclusions of Law

Judge Norton stated his reasons for changing custody of the Papp children from the bench on January 28, but he did not explain his decision in the January 29 order. His February 9 divorce decree also...