[Cite as In re J.M., 2013-Ohio-4179.]


                                       COURT OF APPEALS
                                   MUSKINGUM COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT



IN THE MATTER OF: J.M.                      :       JUDGES:
                                            :       Hon. W. Scott Gwin, P.J.
                                            :       Hon. Sheila G. Farmer, J.
                                            :       Hon. Patricia A. Delaney, J.
                                            :
                                            :
                                            :       Case No. CT2013-0009
                                            :
                                            :       OPINION




CHARACTER OF PROCEEDING:                            Appeal from the Court of Common
                                                    Pleas, Juvenile Division, Case No.
                                                    20830022


JUDGMENT:                                           Affirmed




DATE OF JUDGMENT:                                   September 23, 2013




APPEARANCES:

For Appellant Rebecca McManes                       For Appellee Erin Shrigley

JOHN D. WEAVER                                      HERBERT W. BAKER
542 South Drexel Avenue                             P.O. Box 400
Bexley, OH 43209                                    Zanesville, OH 43702-0400
Muskingum County, Case No. CT2013-0009                                                     2

Farmer, J.

       {¶1}   On May 5, 2011, an agreed entry was filed wherein appellant, Rebecca

McManes, was named legal custodian of J.M. born July 17, 2007. Appellant is the

maternal grandmother of the child. Appellee, Erin Shrigley, the child's paternal aunt,

was granted visitation rights.

       {¶2}   Disputes over visitation arose and the parties filed contempt motions

against each other. On August 15, 2012, appellant filed a motion to modify visitation. A

hearing on all the outstanding motions was held on December 4, 2012. By entry filed

January 7, 2013, the trial court revised the visitation schedule.

       {¶3}   Appellant filed an appeal and this matter is now before this court for

consideration. Assignment of error is as follows:

                                             I

       {¶4}   "THE TRIAL COURT DENIED APPELLANT DUE PROCESS OF LAW BY

DENYING APPELLANT AN OPPORTUNITY TO BE HEARD."

                                             I

       {¶5}   Appellant claims the trial court erred in failing to afford her the opportunity

to present testimony on her motion to modify the visitation schedule. We disagree.

       {¶6}   On December 4, 2012, a hearing was held on appellant's motion to modify

visitation and a contempt motion against appellee, along with contempt motions filed by

appellee against appellant for failure to afford visitation. The trial court proceeded first

with the contempt motions filed by appellee. T. at 4. After the cross-examination of

appellant by appellee's counsel, the trial court permitted direct examination by her

attorney but stated "we can keep that [motion to modify] separate. Let's get these
Muskingum County, Case No. CT2013-0009                                                3


contempt things out of the way." T. at 24. The trial court decided to bifurcate the

contempt motions from the motion to modify. Id. Appellee's attorney clarified that the

trial court desired bifurcation (T. at 25):



               Attorney Baker: All right. Well Your Honor, the reason I am asking

       this my next witness is going to be my client. I won't ask her questions

       about the modification then if that's the way you want to do it. That's the

       reason I am asking the question.

               Judge Gormley: Well yeah, when your client testifies, let's get the

       contempt part of this stuff out of the way and then she can come back and

       testify about the modification.

               Attorney Baker: All right, that's all I wanted to know. Thank you

       Your Honor.



       {¶7}    The testimony following the bifurcation decision was limited to the

contempt motions.       Appellant's defense to appellee's allegation that she was not

affording appellee visitation was that appellee was not exercising visitation rights but

rather her mother was. T. at 46-47. As a result, appellant believed she was justified in

denying visitation. Appellee's defense to appellant's allegation was that her mother

provided transportation, picking up the child for visitation, and she only missed

visitations when she was working or unable to be there. T. at 80-81.
Muskingum County, Case No. CT2013-0009                                                  4


       {¶8}    The testimony presented to the trial court was a litany of observed

visitations, unobserved visitations, failed visitations, and the methods used to attempt

visitations.

       {¶9}    During her direct examination, appellee testified she saw no reason to

modify the visitation schedule because the issues seemed to be resolved during the

summer of 2012, but did suggest some time changes. T. at 108-109. Appellant's

counsel objected because of the bifurcation order and the trial court ruled as follows (T.

at 110):



               Attorney Russo: Your Honor, I am going to object to this line of

       questioning. I think we are getting into modification of the visitation order

       and it was my understanding we were initially addressing...

               Judge Gormley: Well that's what I originally said but we are burning

       up the clock and so if we are going to, if you want to get into modification

       of visitation today we better get started on it because we only got forty five

       minutes left to talk about it.



       {¶10} Appellee saw the only need for change to be a half-hour adjustment on

the weekday visit.      T. at 110-112.    Appellee admitted that Wednesday evening

visitations were not with her, but with some members of her family.             T. at 114.

Appellant's counsel cross-examined appellee on her actual personal visitation with the

child and the fact that she was not picking up the child for visitations. T. at 116-118,

124-126.
Muskingum County, Case No. CT2013-0009                                                  5


       {¶11} At the conclusion of the testimony of both appellant and appellee, the trial

court asked appellant's counsel what she wanted relative to her motion to modify

visitation. T. at 134. Appellant and her counsel enumerated to the trial court appellant's

desires regarding modification. T. at 134-140. The trial court then specifically ordered

appellant's counsel to prepare in writing the specific changes appellant wanted and

appellee's counsel was to respond. T. at 141. The trial court suggested an entire

"rewrite" of the designation of "non-residential" parent to include appellee and her

extended family on the issue of visitation and appellee was to prepare a list of family

members.     T. at 144-145.      Appellant's counsel did not object to the trial court's

suggestion, but requested that the guardian ad litem be involved. T. at 146-147. The

trial court ordered the following (T. at 148):



              Judge Gormley: And for the child. And for the child. Yes. All right,

       that's all we are going to do today this morning on this matter. And you,

       Mr. Russo you submit in writing your proposed, how you would like the

       visitation order modified. Mr. Baker you can respond to that. I think seven

       days would be reasonable enough. You don't need very much time on

       this. Seven days, you respond in seven days. You give me your list in

       seven days and you can respond to that. I mean if there is a person on

       that list that your client for some reason, particularly undesirable, you can

       let me know and I will consider whether that is a reasonable complaint,

       you know?
Muskingum County, Case No. CT2013-0009                                                    6


       {¶12} Appellant's counsel did not objection to this procedure. T. at 148-149.

Both parties complied with the trial court's directives. After the responses were filed, the

trial court modified the visitation schedule, basically adjusted the visitation schedule

according to appellee's wishes.

       {¶13} We note appellant was present at the hearing and testified and was

represented by counsel. Appellant did not request a continuance or proffer or express a

desire to present additional evidence. Appellant was not denied due process. Braden

v. Braden, 8th Dist. Portage No. 2006-P-0028, 2006-Ohio-6878; Yeupell v. Yeupell, 6th

Dist. Williams No. WM-95-021, 1996 WL 302360 (June 7, 1996). Further, after a review

of appellant's motion to modify, it is clear that appellant's position was thoroughly vented

during the hearing and in her proposal to the trial court.

       {¶14} Upon review, we conclude appellant, via her testimony during the hearing

and her proposal for modification of visitation, had a full hearing on her motion to

modify. With the assent by counsel to the trial court's procedures, we find no lack of

due process or a denial of any opportunity to be heard.

       {¶15} The sole assignment of error is denied.
Muskingum County, Case No. CT2013-0009                                        7


      {¶16} The judgment of the Court of Common Pleas of Muskingum County, Ohio,

Juvenile Division is hereby affirmed.

By Farmer, J.

Gwin, P.J. and

Delaney, J. concur.




                                        _______________________________
                                        Hon. Sheila G. Farmer



                                        _______________________________
                                        Hon. W. Scott Gwin



                                        _______________________________
                                        Hon. Patricia A. Delaney


SGF/sg 903
[Cite as In re J.M., 2013-Ohio-4179.]


                IN THE COURT OF APPEALS FOR MUSKINGUM COUNTY, OHIO

                                    FIFTH APPELLATE DISTRICT



IN THE MATTER OF: J.M.                         :
                                               :
                                               :       JUDGMENT ENTRY
                                               :
                                               :
                                               :
                                               :       CASE NO. CT2013-0009




        For the reasons stated in our accompanying Memorandum-Opinion, the

judgment of the Court of Common Pleas of Muskingum County, Ohio, Juvenile Division

is affirmed. Costs to appellant.




                                               _______________________________
                                               Hon. Sheila G. Farmer



                                               _______________________________
                                               Hon. W. Scott Gwin



                                               _______________________________
                                               Hon. Patricia A. Delaney
