State v. Villamor-Goubeaux

• Citation: 72 N.E.3d 1185,2016 Ohio 7420
• Decision Date: 21 October 2016
• Docket Number: No. 2015–CA–29.,2015–CA–29.
• Parties: STATE of Ohio, Plaintiff–Appellee v. Eva O. VILLAMOR–GOUBEAUX, Defendant–Appellant.
• Court: United States Court of Appeals (Ohio)

72 N.E.3d 1185

2016 Ohio 7420

STATE of Ohio, Plaintiff–Appellee

v.Eva O. VILLAMOR–GOUBEAUX, Defendant–Appellant.

No. 2015–CA–29.

Court of Appeals of Ohio, Second District, Miami County.

Oct. 21, 2016.

Ryan C. Spitzer, and Paul M. Watkins, Assistant Prosecuting Attorneys, Troy, OH, for Plaintiff–Appellee.

David P. Williamson, Dayton, OH, for Defendant–Appellant.

OPINION

FROELICH, J.

{¶ 1} Eva O. Villamor–Goubeaux was found guilty after a bench trial in the Miami County Court of Common Pleas of interference with custody in violation of R.C. 2919.23(A)(1), a felony of the fifth degree. She was sentenced to three years of community control and was ordered to pay restitution to her former husband, Michael Goubeaux, in the amount of $1,570.74. Villamor–Goubeaux appeals from her conviction.

{¶ 2} For the following reasons, the judgment of the trial court will be affirmed.

I. Facts and Procedural History

{¶ 3} Villamor–Goubeaux and Goubeaux were married in 2009 and had one child during their marriage, a daughter. They separated in December 2012, and Goubeaux filed for divorce in January 2013. On April 3, 2013, the parties filed a "Magistrate's Order/Agreed Entry" related to their "temporary parenting times and child support." The agreement provided, in pertinent part, that: 1) the child would live at the marital residence in Troy; 2) Goubeaux was entitled to parenting time with the child pursuant to the Miami County Standard Order of Parenting Time, which was attached; 3) Villamor–Goubeaux was granted "exclusive occupancy" of the marital home; and 4) neither party would remove the child from the State of Ohio "except for a period not to exceed 14 days during their scheduled parenting times." The Agreed Entry did not otherwise expressly address the issue of "custody."

{¶ 4} In the fall of 2013, Villamor–Goubeaux left her employment as a nursing instructor in hopes of finding a better-paying job. Soon thereafter, she concluded that her job prospects were better in other states, and she spoke with her attorney about seeking a modification of the provision in the Agreed Entry that prevented either party from removing the child from Ohio for more than 14 days, because she wanted to move out of state. Around Thanksgiving 2013, before a motion for modification of the agreement had been filed or granted and without notice to Goubeaux, Villamor–Goubeaux moved to New Jersey with the child, who was then four years old.

{¶ 5} On December 11, 2013, Villamor–Goubeaux's attorney requested a continuance of a final hearing on the parties' divorce, which was scheduled for December 19, due to personal health issues; he indicated that, if the request were denied, he would "have to resign" from the case. On December 12, the attorney informed Goubeaux's attorney that Villamor–Goubeaux was out of state seeking employment. After Goubeaux was notified of Villamor–Goubeaux's departure from the state,¹ Goubeaux filed a "Motion for Emergency Interim Custody; Motion for Restraining Order; Motion for Exclusive Use [of the marital property]."

{¶ 6} On December 16, the trial court granted temporary interim custody of the child to Goubeaux. The same day, Villamor–Goubeaux's attorney filed a motion to modify the Agreed Entry of April 2013 and requested that the court address the issue at the December 19 hearing (which the attorney had already asked to continue). The court agreed to address the requested modification at the hearing, but it did not rule on the request for a continuance.

{¶ 7} Neither Villamor–Goubeaux nor her attorney appeared at the December 19 hearing, and the trial court denied the attorney's "request to withdraw." The trial court proceeded to hear the issues related to the divorce. Villamor–Goubeaux later claimed that she had been traveling to Ohio from New Jersey for the hearing when she learned from her attorney via voicemail that he had resigned, that the case "shouldn't go ahead," and that she needed to hire a different lawyer. Villamor–Goubeaux, who was then in Youngstown, Ohio, turned around and returned to New Jersey.

{¶ 8} In January 2014, Villamor–Goubeaux hired a new Ohio attorney and accepted a job offer in Nevada. On February 4, 2014, a complaint for interference with custody was filed by the Troy Police Department against Villamor–Goubeaux in the Miami County Municipal Court, and a warrant for her arrest was issued. She was arrested in Nevada on February 27, 2014.

{¶ 9} Villamor–Goubeaux did not communicate with Goubeaux or the court about her whereabouts or attempt to arrange any contact between Goubeaux and their child at any time between Thanksgiving 2013 and February 27, 2014.

{¶ 10} On May 22, 2014, Villamor–Goubeaux was indicted in the Miami County Common Pleas Court for interference with custody, in violation of R.C. 2919.23(A)(1). She pled not guilty and filed a motion to dismiss the indictment, which was denied. The matter was tried to the court in September 2015, and she was found guilty. She was sentenced as described above.

{¶ 11} Villamor–Goubeaux appeals from her conviction, raising three assignments of error.

II. Legal Effect of "Custody "

{¶ 12} The first assignment of error states:

The trial court erred by denying Appellant's motions [sic] to dismiss and failing to find that custody is an essential element of the statute (O.R.C. § 2919.23 ).

{¶ 13} Under this assignment of error, Villamor–Goubeaux argues that, as a matter of law, a custodial parent cannot be found to have interfered with custody. On this basis, she asserts that the trial court should have granted her motion to dismiss or should have acquitted her.

{¶ 14} As a preliminary matter, we observe that the parties' Agreed Entry refers only to the parenting times of each party and the "primary residence" of the child, which was the marital home; the parties also agreed that Villamor–Goubeaux would have "exclusive occupancy" of the marital home until further order of the court. Thus, the child resided primarily with Villamor–Goubeaux at the marital home. The parenting time schedule also gave Villamor–Goubeaux more time with the child. Although both parties testified at the criminal trial using the terminology that Villamor–Goubeaux had "custody" of the child under the April 2013 Agreed Entry, that agreement did not designate Villamor–Goubeaux as the custodial parent or otherwise specify that she had superior rights to Goubeaux in making decisions involving the child.

{¶ 15} In In re: P.T.P., 2d Dist. Greene No. 2005 CA 148, 2006-Ohio-2911, 2006 WL 1575067, involving parties that were never married, the trial court originally granted father's motion for visitation, but never designated either party as residential parent or legal custodian. The court addressed a subsequent motion for custody by father as an original custody determination, and thus did not require a finding of change of circumstances pursuant to R.C. 3109.04(E)(1)(a). We held that although the trial court could have treated the prior order as a "de facto designation of custody," it did not err in finding that its prior order was limited to visitation.

{¶ 16} In re: A.N., 2d Dist. Greene Nos. 2010–CA–83 and 2011–CA–7, 2011-Ohio-2422, 2011 WL 1936030, also dealt with an unmarried couple; the parties filed an agreed entry that did not specifically mention custody or identify mother as the residential parent, but provided that the "father shall have parenting time with minor child in accordance with the Standard Order of Parenting Time." Id. at ¶ 3. The trial court found that this language constituted a de facto designation of mother as the child's residential parent and legal custodian. We affirmed on appeal and commented:

Custody and visitation, or parenting time, are related but distinct legal concepts. State ex rel Mosier v. Fornof, 126 Ohio St.3d 47, 930 N.E.2d 305, 2010-Ohio-2516, ¶ 6, citing Braatz v. Braatz (1999), 85 Ohio St.3d 40, 44, 706 N.E.2d 1218. " ‘Custody’ refers to the right to ultimate legal and physical control over a child, while ‘parenting time rights' grant a parent the power of temporary physical control for the purpose of visitation." Id., quoting Williamson v. Cooke, Franklin App. No. 09AP–222, 2009-Ohio-6842 [2009 WL 5062118], ¶ 22, in turn citing Braatz, supra, at 44, 706 N.E.2d 1218.

Id. at ¶ 14.

{¶ 17} In Villamor–Goubeaux's criminal appeal, the State does not dispute her characterization that she was the "custodial" parent, and both parents seem to have accepted this term. Accordingly, we will assume that Villamor–Goubeaux had "custody" of the child for the purpose of considering Villamor–Goubeaux's argument that a "custodial" parent cannot interfere with custody, without determining whether this characterization is legally correct.

{¶ 18} Villamor–Goubeaux argues that "interference with custody" can only occur if the child in question is taken from a person who has "custody." Villamor–Goubeaux contends that "interference with custody is not the same as interference with the parental interest of visitation." She relies, in part, on the title of R.C. 2919.23, "Interference with Custody." Except with respect to certain sections embodying the Uniform Commercial Code, the "Title, Chapter, and section headings * * * do not constitute any part of the law as contained in the ‘Revised Code’." R.C. 1.01. See also State v. Beener, 54 Ohio App.2d 14, 16, 374 N.E.2d 435 (2d Dist.1977) (holding that resort to a title in interpreting a statute "is unnecessary and improper"); Dade v. Bay Village Bd. of Zoning Appeals, 8th Dist. Cuyahoga No. 87728, 2006-Ohio-6416, 2006 WL 3517997, ¶ 28. The text of a statute, not its title, determines its intent and scope.

{¶ 19} R.C. 2919.23(A)(1) provides:

No person, knowing the person is without privilege to do so or being reckless in that regard, shall entice, take, keep, or harbor a person identified in division (A)(1), (2), or (3) of this section from the parent, guardian, or custodian of the person identified in division (A)(1), (2), or (3) of this section:

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