[Cite as In re E.J.M., 2011-Ohio-977.]


                                        COURT OF APPEALS
                                       STARK COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT


                                               :   JUDGES:
IN THE MATTER OF:                              :   Julie A. Edwards, P.J.
         E.J.M. (DOB 8/5/05)                   :   W. Scott Gwin, J.
                                               :   William B. Hoffman, J.
BRYAN MCBEATH                                  :
                                               :   Case No. 2010CA00171
                         Plaintiff-Appellee    :
                                               :
-vs-                                           :   OPINION


SARAH APPLEBY

                     Defendant-Appellant




CHARACTER OF PROCEEDING:                            Civil Appeal from Stark County
                                                    Court of Common Pleas, Juvenile
                                                    Division, Case No. 2006JCV1651

JUDGMENT:                                           Reversed & Remanded

DATE OF JUDGMENT ENTRY:                             March 2, 2011

APPEARANCES:

For Plaintiff-Appellee                              For Defendant-Appellant

ROBERT G. ABNEY                                     SUSAN PUCCI
116 Cleveland Ave., N.W.                            4429 Fulton Drive, N.W.
Suite 500                                           Suite 100
Canton, Ohio 44702                                  Canton, Ohio 44718
[Cite as In re E.J.M., 2011-Ohio-977.]


Edwards, P.J.

         {¶1}    Appellant, Sarah Appleby, appeals a judgment of the Stark County

Common Pleas Court, Juvenile Division, modifying a shared parenting agreement to

award custody of her minor child E.J.M. to appellee Bryan McBeath, the natural father

of the child.

                                    STATEMENT OF FACTS AND CASE

         {¶2}    E.J.M. was born on August 5, 2005. Appellant and appellee were not

married at the time of his birth.        On February 23, 2009, the parties filed a shared

parenting plan with the trial court which was approved and adopted by the court the

same day.

         {¶3}    Appellee filed a motion for termination and/or modification of the shared

parenting plan on September 25, 2009. Appellant filed a motion for custody on October

1, 2009.

         {¶4}    A pre-trial hearing was held on the pending motions on November 23,

2009. Following this hearing, the court made a finding that appellant failed to pay the

guardian ad litem as ordered and failed to set up a payment plan. The court ordered

appellant to pay $100 per month or face a contempt filing.

         {¶5}    A final pre-trial was held on March 3, 2010. The court issued the following

order following this hearing:

         {¶6}    “This is a case that has been in continual litigation since 2006 to the

detriment of [E.M.] DOB 8-5-05. On 2-18-10 the Magistrate found that the Parenting

Evaluation should be waived upon review and consultation with counsel, GAL and the

Court.     Today, GAL feels the Evaluation would be helpful.        The GAL also filed a
Stark County App. Case No. 2010CA00171                                                       3


recommendation including his opinion that Shared Parenting is not feasible. He also

has recommended father to have custody and mother Schedule A. The child is enrolled

in preschool but mother has failed to be on time to school regularly.

       {¶7}   “The court has reviewed the GAL report filed 2-17-10 which indicates the

current scheme of shared parenting is not feasible between these parties. The court is

considering a summary change of custody and will do so in the best interest of this child

without a further hearing upon specific recommendation of the GAL or any other

incident involving the parent(s) failure to strictly follow court orders. In the best interests

of this child, psychological evaluations are necessary and parties shall contact Dr. Tully

w/i 7 days for full psychs of themselves and any adult household members at the

mother’s 100% expense. The mother shall make a full deposit with Dr. Tully w/i 7 days

of funds necessary to finalize the evals of the parties and any of their household

members. In light of this order, the trial of April 1, 2010 is not possible. This matter is

reset for ½ day trial on: July 1, 2010 @ 9:00 a.m.” Judgment Entry, March 4, 2010.

       {¶8}   On June 25, 2010, appellee filed a motion for a summary order. In this

motion, appellee asked for a summary change of custody. Appellee argued that hair

follicle tests taken by the parties in response to the March 4, 2010, order showed that

appellant tested positive for marijuana. Appellee further argued that as of June 25,

2010, the psychological evaluation had not been completed because Dr. Tully had not

been paid. Appellee argued that the best interests of the child would be served without

further hearing and asked that a summary change of custody be granted designating

appellee as the sole residential parent of the child.
Stark County App. Case No. 2010CA00171                                                     4


       {¶9}   The case was set for trial on July 1, 2010. The court held a preliminary

hearing prior to the start of trial. At this hearing, appellant argued that she had the right

to an evidentiary hearing as to the best interests of the child, a right to put on her case

and to cross-examine witnesses, including the guardian ad litem. Tr. 7.             Counsel

further represented that appellant had in fact paid Dr. Tully for the psychological

evaluation as ordered by the court, and she had a receipt for such payment. Tr. 7.

Counsel represented that there was a “misunderstanding” as to the drug test and

subsequent tests were negative. Tr. However, the court changed custody summarily

without taking any evidence, finding:

       {¶10} “The mother has continued her failure to comply with court orders and

again the court is unable to proceed for trial in this matter for the same reason as

before. The court has already made findings regarding the detriment to this child due to

mother’s dilatory tactics. The mother’s drug test indicates that she continues use (sic)

marijuana. The GAL again recommends that this litigation should cease in the best

interests of this child. The GAL also indicates that he has met with the school officials

where [E.M.] will attend this fall and everything is in order for him there.” Judgment

Entry, July 1, 2010.

       {¶11} Appellant assigns three errors on appeal:

       {¶12} “I. APPELLANT WAS DENIED HER DUE PROCESS RIGHTS UNDER

THE OHIO CONSTITUTION WHEN THE TRIAL COURT REVOKED HER STATUS AS

RESIDENTIAL PARENT AND GRANTED CUSTODY TO APPELLEE, THEREBY

DISMISSING OR OVERRULING HER MOTION FOR CUSTODY, WITHOUT THE

PRESENTATION OF ANY EVIDENCE.
Stark County App. Case No. 2010CA00171                                                5


      {¶13} “II. THE TRIAL COURT ABUSED ITS DISCRETION IN MODIFYING THE

PARTIES’ SHARED PARENTING PLAN, AWARDING CUSTODY TO APPELLEE, AND

VISITATION TO APPELLANT WITHOUT ANY EVIDENCE OR CONSIDERATION OF

O.R.C. §3109.051.

      {¶14} “III. THE TRIAL COURT ABUSED ITS DISCRETION IN MODIFYING THE

PARTIES’ SHARED PARENTING PLAN AND AWARDING APPELLEE CUSTODY

FOR APPELLANT’S ALLEGED NON-COMPLIANCE WITH THE TRIAL COURT’S

PRIOR ORDERS.”

                                              I,II,III

      {¶15} We address all three assignments of error together, as appellant

addressed assignments two and three together in her brief, and appellee addressed

assignments one and two together in his brief. All raise the issue of whether the court

denied appellant her right to due process and abused its discretion in changing custody

without taking any evidence or giving appellant a right to be heard, as punishment for

her noncompliance with orders of the court.

      {¶16} In addressing a claim of lack of due process in a custody proceeding, this

Court has held:

      {¶17} “Generally, due process requires that “a deprivation of life, liberty, or

property ‘be preceded by notice and opportunity for hearing appropriate to the nature of

the case.”’ Cleveland Bd. of Educ. v. Loudermill (1985), 470 U.S. 532, 542, 105 S.Ct.

1487, 84 L.Ed.2d 494, (citing Mullane v. Central Hanover Bank & Trust Co. (1950), 339

U.S. 306, 313, 70 S.Ct. 652, 94 L.Ed. 865). At a minimum, due process of law requires

notice and opportunity for a hearing, that is, an opportunity to be heard. Mathews v.
Stark County App. Case No. 2010CA00171                                                   6

Eldridge (1976), 424 U.S. 319, 96 S.Ct. 893, 47 L.Ed.2d 18. See also McGeorge v.

McGeorge (May 22, 2001), Franklin App. No. 00AP 1151, 2001 WL 537037.” In Re

Roberson, Stark App. No. 2003CA00393, 2004-Ohio-4996, ¶22.

       {¶18} In the instant case, while appellant had notice that the court was

contemplating a summary change of custody, appellant specifically requested an

opportunity to be heard on the change of custody issue and was denied her right to

present evidence and cross-examine witnesses. The court denied appellant her basic

due process rights in so doing.

       {¶19} The parties agree that the court had jurisdiction over this matter pursuant

to R.C. 2151.23, and that the court’s decision regarding change of custody is guided by

R.C. 3109.04(E), which provides in pertinent part:

       {¶20} “(E)(1)(a) The court shall not modify a prior decree allocating parental

rights and responsibilities for the care of children unless it finds, based on facts that

have arisen since the prior decree or that were unknown to the court at the time of the

prior decree, that a change has occurred in the circumstances of the child, the child's

residential parent, or either of the parents subject to a shared parenting decree, and that

the modification is necessary to serve the best interest of the child. In applying these

standards, the court shall retain the residential parent designated by the prior decree or

the prior shared parenting decree, unless a modification is in the best interest of the

child and one of the following applies:

       {¶21} “(i) The residential parent agrees to a change in the residential parent or

both parents under a shared parenting decree agree to a change in the designation of

residential parent.
Stark County App. Case No. 2010CA00171                                                    7


       {¶22} “(ii) The child, with the consent of the residential parent or of both parents

under a shared parenting decree, has been integrated into the family of the person

seeking to become the residential parent.

       {¶23} “(iii) The harm likely to be caused by a change of environment is

outweighed by the advantages of the change of environment to the child. . .

       {¶24} “(2) In addition to a modification authorized under division (E)(1) of this

section:

       {¶25} “(b) The court may modify the terms of the plan for shared parenting

approved by the court and incorporated by it into the shared parenting decree upon its

own motion at any time if the court determines that the modifications are in the best

interest of the children or upon the request of one or both of the parents under the

decree. Modifications under this division may be made at any time. The court shall not

make any modification to the plan under this division, unless the modification is in the

best interest of the children.

       {¶26} “(c) The court may terminate a prior final shared parenting decree that

includes a shared parenting plan approved under division (D)(1)(a)(i) of this section

upon the request of one or both of the parents or whenever it determines that shared

parenting is not in the best interest of the children. The court may terminate a prior final

shared parenting decree that includes a shared parenting plan approved under division

(D)(1)(a)(ii) or (iii) of this section if it determines, upon its own motion or upon the

request of one or both parents, that shared parenting is not in the best interest of the

children. If modification of the terms of the plan for shared parenting approved by the

court and incorporated by it into the final shared parenting decree is attempted under
Stark County App. Case No. 2010CA00171                                                    8


division (E)(2)(a) of this section and the court rejects the modifications, it may terminate

the final shared parenting decree if it determines that shared parenting is not in the best

interest of the children.

       {¶27} “(F)(1) In determining the best interest of a child pursuant to this section,

whether on an original decree allocating parental rights and responsibilities for the care

of children or a modification of a decree allocating those rights and responsibilities, the

court shall consider all relevant factors, including, but not limited to:

       {¶28} “(a) The wishes of the child's parents regarding the child's care;

       {¶29} “(b) If the court has interviewed the child in chambers pursuant to division

(B) of this section regarding the child's wishes and concerns as to the allocation of

parental rights and responsibilities concerning the child, the wishes and concerns of the

child, as expressed to the court;

       {¶30} “(c) The child's interaction and interrelationship with the child's parents,

siblings, and any other person who may significantly affect the child's best interest;

       {¶31} “(d) The child's adjustment to the child's home, school, and community;

       {¶32} “(e) The mental and physical health of all persons involved in the situation;

       {¶33} “(f) The parent more likely to honor and facilitate court-approved parenting

time rights or visitation and companionship rights;

       {¶34} “(g) Whether either parent has failed to make all child support payments,

including all arrearages, that are required of that parent pursuant to a child support

order under which that parent is an obligor;

       {¶35} “(h) Whether either parent or any member of the household of either

parent previously has been convicted of or pleaded guilty to any criminal offense
Stark County App. Case No. 2010CA00171                                                 9


involving any act that resulted in a child being an abused child or a neglected child;

whether either parent, in a case in which a child has been adjudicated an abused child

or a neglected child, previously has been determined to be the perpetrator of the

abusive or neglectful act that is the basis of an adjudication; whether either parent or

any member of the household of either parent previously has been convicted of or

pleaded guilty to a violation of section 2919.25 of the Revised Code or a sexually

oriented offense involving a victim who at the time of the commission of the offense was

a member of the family or household that is the subject of the current proceeding;

whether either parent or any member of the household of either parent previously has

been convicted of or pleaded guilty to any offense involving a victim who at the time of

the commission of the offense was a member of the family or household that is the

subject of the current proceeding and caused physical harm to the victim in the

commission of the offense; and whether there is reason to believe that either parent has

acted in a manner resulting in a child being an abused child or a neglected child;

       {¶36} “(i) Whether the residential parent or one of the parents subject to a

shared parenting decree has continuously and willfully denied the other parent's right to

parenting time in accordance with an order of the court;

       {¶37} “(j) Whether either parent has established a residence, or is planning to

establish a residence, outside this state.”

       {¶38} In the instant case, the trial court did not take any evidence regarding the

best interest of the child, but made a finding of best interests based primarily on the

recommendation of the guardian ad litem: a recommendation which appellant was not

given the opportunity to challenge with evidence of her own or by way of cross-
Stark County App. Case No. 2010CA00171                                                   10


examination.     The court’s summary order changing custody is in the nature of a

contempt finding, punishing appellant for her noncompliance with prior orders of the

court regarding paying for the guardian ad litem and paying for psychological

evaluations by changing custody without giving her an opportunity to be heard. This

Court has previously held that a change of custody is not to be used as punishment:

         {¶39} “Further, the sua sponte change of custody did not take into account what

was in the best interests of the children. Rather, it appears to have been done to punish

the appellant for some perceived wrongdoing. That is not the function of the family

court. The function of the family court in cases involving children and child custody is to

make decisions giving the utmost consideration to the welfare of the children.”

         {¶40} Myers v. Myers, 170 Ohio App.3d 436, 867 N.E.2d 848, 2007-Ohio-

66,¶39. See also Sheppeard v. Brown, 2008 WL 186670 (Ohio App. 2 Dist.), 2008-

Ohio-203,¶54 (R.C. 3109.04 does not permit a change of custody based upon a finding

of contempt, citing Culberson v. Culberson (1978), 60 Ohio App.2d 304, 397 N.E.2d

1226).

         {¶41} While we understand the trial court’s frustration with the prolonged

litigation in this case and the trial court’s concern that the welfare of the child has been

harmed because of it, we find that the termination of the shared parenting plan and the

granting of custody to one of the parties, without the requested evidentiary hearing,

violates mother’s due process right to the “opportunity for a hearing appropriate to the

nature of the case.” Cleveland Bd. Of Educ. supra.

         {¶42} Assignments of error one, two and three are sustained.
Stark County App. Case No. 2010CA00171                                                11


      {¶43} The judgment of the Stark County Common Pleas Court, Juvenile

Division, is reversed. This cause is remanded to that court for further proceedings

according to law.




By: Edwards, P.J.

Gwin, J. and

Hoffman, J. concur

                                                   ______________________________



                                                   ______________________________



                                                   ______________________________

                                                               JUDGES

JAE/r1214
[Cite as In re E.J.M., 2011-Ohio-977.]


                IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO

                                    FIFTH APPELLATE DISTRICT


IN THE MATTER OF:
         E.J.M. (DOB 8-5-05)

BRYAN MCBEATH                                    :
                                                 :
                            Plaintiff-Appellee   :
                                                 :
                                                 :
-vs-                                             :       JUDGMENT ENTRY
                                                 :
SARAH APPLEBY                                    :
                                                 :
                        Defendant-Appellant      :       CASE NO. 2010CA00171




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

judgment of the Stark County Court of Common Pleas, Juvenile Division, is reversed

and this matter is remanded to the trial court for further proceedings. Costs assessed to

appellee.




                                                     _________________________________


                                                     _________________________________


                                                     _________________________________

                                                                  JUDGES
