Yazdani-Isfehani v. Yazdani-Isfehani

• Decision Date: 26 December 2006
• Docket Number: No. 06CA6.,06CA6.
• Parties: YAZDANI-ISFEHANI, Appellee, v. YAZDANI-ISFEHANI, Appellant.
• Court: Ohio Court of Appeals

865 N.E.2d 924

170 Ohio App.3d 1

2006-Ohio-7105

YAZDANI-ISFEHANI, Appellee, v. YAZDANI-ISFEHANI, Appellant.

No. 06CA6.

Court of Appeals of Ohio, Fourth District, Athens County.

Decided December 26, 2006.

Susan Gwinn, for appellant.

K. Robert Toy, Canton, for appellee.

KLINE, Judge.

{¶ 1} Ramin Yazdani-Isfehani ("father") appeals two separate judgments of the Athens County Court of Common Pleas. The first overrules his objections to the magistrate's decision and determines that the court lacked jurisdiction to consider his motion for visitation in the context of Case No. 04DV083, a domestic-violence civil-protection order ("CPO") proceeding. The second overrules the father's objections to the magistrate's decision and denies his motion for an order requiring Elizabeth Yazdani-Isfehani ("mother") and the parties' six minor children to submit to psychological/psychiatric evaluation by the expert of the father's choice in the context of Case No. 05DM008, the parties' divorce proceeding.

{¶ 2} In his first assignment of error, the father contends that the trial court erred in finding that it lacked jurisdiction to modify the CPO it issued to permit the father to exercise visitation. Because we find that R.C. 3113.31 does not grant a court continuing jurisdiction to modify an allocation of parental rights and responsibilities in the context of a CPO proceeding after it issues a final appealable CPO, we agree with the trial court's determination that it lacked jurisdiction to consider the father's request for visitation in the context of the CPO proceeding. However, we conclude that the trial court abused its discretion by failing to sua sponte consolidate the CPO and divorce proceedings to consider the father's motion in the context of the divorce proceeding because (1) a parent has a fundamental liberty interest in the care, custody, and management of his or her child, Santosky v. Kramer (1982), 455 U.S. 745, 753, 102 S.Ct. 1388, 71 L.Ed.2d 599, (2) both the magistrate and trial court erroneously led the father to believe that they would reconsider the issue of visitation in the context of the CPO proceedings, and (3) the father's motion for visitation was pending for nearly one year in the CPO proceeding before the court gave the father any indication that it lacked jurisdiction to consider his request for visitation in that proceeding.

{¶ 3} In his second assignment of error, the father contends that the trial court erred in prohibiting him from having an independent psychological evaluation of the parties and their children. Because we find that the order the father is appealing is not a final appealable order, we find that we lack the requisite jurisdiction to consider the merits of this assignment of error. Accordingly, we reverse the trial court's judgment in part, affirm it in part, and remand this cause for further proceedings consistent with this opinion.

I.

{¶ 4} The parties married on December 20, 1987. They have six children born as issue of the marriage, namely, Isaiah Luke (DOB: 09/26/1988), Loruhamah Hannah (DOB: 09/26/1988), L. Elijah (DOB: 03/29/1990), Josiah David (DOB: 11/29/1991), Abigail E. (DOB: 07/17/1994), and Shiloh I. (DOB: 11/26/1995). During the marriage, the parties resided in Pataskala, Ohio. However, in October 2004, the mother left the marital residence with all six of the children and moved to her mother's home in Albany, Ohio. Thereafter, the mother filed a petition for a CPO in the Athens County Court of Common Pleas, in which she alleged that the father had (1) hit the children with a ruler, plastic hanger, his hands, and other items, leaving marks, (2) kicked her out of the bedroom and terrorized her in front of the children, (3) told her he spent 24 hours a day thinking about how he could get rid of her, and (4) told her he did not beat her because God would not let him, but that he could do whatever he wanted to the children. The mother stated that the father's behavior escalated over a couple of years, and that she was afraid for herself and the children.

{¶ 5} The mother requested that the court issue a CPO to protect her and the children from the father. She also requested that the court temporarily allocate parental rights and responsibilities and order the father to provide financial support for her and the children.

{¶ 6} Pursuant to the mother's petition, the court issued an ex parte CPO protecting the mother and all six of the parties' children and scheduled a full hearing for October 22, 2004. At the hearing, the magistrate heard testimony from the mother, the parties' eldest daughter, Loruhamah, and the father regarding the domestic-violence allegations. However, when the father sought to testify regarding the children's progress or lack of progress in their home schooling, the mother's counsel objected, stating, "This sounds like a divorce proceeding." The magistrate then stated, "Well[,] I'll tell you it is also a request for custody. Your client has requested that she be named the legal custodian of these children. I don't know that we are going to have time today to get into that, so I'm going to ask that we not get into those kinds of questions, and restrict ourselves that if it is going to remain in the Court that would certainly become an issue."

{¶ 7} At the conclusion of the father's testimony, the magistrate inquired as to whether either party intended to file for divorce and indicated a reluctance to conduct further investigation into custody, parenting, and child support issues if one of the parties was going to initiate other proceedings. The mother's counsel indicated that the mother could not file for divorce in Athens County until she had resided in the county for 90 days. The father's counsel indicated that his client opposed divorce on religious grounds. The magistrate stated that she would appoint a guardian ad litem ("GAL"), and recommend that the court maintain the ex parte order suspending the father's visitation, pending the appointment of the GAL and further investigation regarding the children's best interests.

{¶ 8} However, in her proposed decision, the magistrate found that the mother had reason to fear that the father would cause serious physical harm to her or the children. Therefore, the magistrate concluded that the court should grant the mother a five-year CPO. The magistrate recommended that the court issue a CPO (1) protecting the mother and the children from the father, (2) designating the mother as the temporary residential parent and legal custodian of the minor children on the condition that no corporal punishment take place while the children are under the jurisdiction of the court and that each of the children is independently tested through either the Alexander Local School system or SEOVEC to assure that the home schooling program supervised by [the mother] has not resulted in educational neglect, and (3) affording no parenting time to the father "until a Guardian ad Litem has been appointed for the children; an investigation has been completed; a written report from the Guardian has been filed with the Court; and further hearing has been held to address this and other issues related to the children." Neither party filed objections to the magistrate's October 25, 2004 decision.

{¶ 9} After issuing her decision recommending the issuance of a CPO, the magistrate appointed a GAL for the children. The mother then filed a motion for child support order requiring the father to pay guideline child support of $1,874.57 per month plus poundage. On November 23, 2004, the trial court issued a domestic-violence CPO following a full hearing, in conformity with the magistrate's decision. The CPO contains a notice indicating that it is a final appealable order. Additionally, the record contains a certificate of service indicating that the clerk sent a file-stamped copy of the CPO to the father and his counsel, among others, by regular U.S. mail on November 24, 2004.

{¶ 10} After the court issued the CPO, the court issued an additional entry indicating that the parties had reached an agreement regarding the issue of child support. In accordance with that agreement, the entry required the father to pay $1,500 per month plus poundage commencing on December 1, 2004. Additionally, the magistrate and the GAL jointly conducted interviews with each of the minor children. During those interviews, the children discussed their relationships with their parents and incidents of alleged abuse by the father. All of the children expressed that they feared their father and that they did not wish to see him, even under supervised visitation.

{¶ 11} On January 15, 2005, the mother filed a complaint for divorce in the Athens County Court of Common Pleas. On February 17, 2006, the magistrate appointed a GAL to represent the children in the divorce proceedings.¹

{¶ 12} The father answered the divorce complaint on February 22, 2005. Several days later, the magistrate appointed a psychologist to perform a custody evaluation in the divorce case and ordered the parties to schedule interviews for themselves and the children. Despite this appointment, the father, desiring to utilize his own psychologist, moved the court for an order requiring the mother and the children to submit to an additional psychological evaluation. The court overruled this motion.

{¶ 13} The record reveals that the father never moved the court for a visitation order in the divorce case. However, on March 10, 2005, he did make such a request by written motion in the CPO case. The magistrate conducted a hearing on May 6, 2005, relative to the father's motion for visitation and two contempt motions. Although all of the motions at issue had been filed in the CPO case, at the commencement of the hearing, the magistrate noted the existence of the "companion" divorce case. At the hearing, the magistrate heard testimony from the parties and several additional witnesses.

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