[Cite as In re W.M., 2017-Ohio-5639.]


                                   IN THE COURT OF APPEALS

                               ELEVENTH APPELLATE DISTRICT

                                        GEAUGA COUNTY, OHIO


IN THE MATTER OF:                                 :     OPINION
W.M. AND G.M.
                                                  :
                                                        CASE NO. 2016-G-0090
                                                  :



Appeal from the Geauga County Court of Common Pleas, Juvenile Division, Case No.
2012 JF 000158.

Judgment: Affirmed.


Brian L. Bly and Dennis J. Ibold, Petersen & Ibold, 401 South Street, Chardon, OH
44024 (For Appellants – Brittany Maloney and Stephanie Maloney).

Tameiko Starr, pro se, 1701 Dainesway Drive, Valparaiso, IN 46383 (Appellee).



CYNTHIA WESTCOTT RICE, P.J.

        {¶1}    Appellants, Brittany Maloney and Stephanie Maloney, appeal the

judgment of the Geauga County Court of Common Pleas, Juvenile Division, denying

their motion to intervene and for visitation with W.M. and G.M. in this closed

dependency case. At issue is whether the trial court abused its discretion in denying

the motion. For the reasons that follow, we affirm.

        {¶2}    On March 30, 2012, the Geauga County Department of Job and Family

Services filed a complaint, alleging that W.M., then age seven (now age 11), and G.M.,

then age six (now age 10) (“the children”), were dependent. Mother had problems
taking care of herself and father had a history of drug abuse, domestic violence, child

endangerment, and OVI. After the parties litigated the matter for one and one-half

years, on September 25, 2013, the court entered judgment granting temporary custody

to mother and visitation to father. On February 18, 2014, the court ordered that custody

be granted to mother; father’s visitation was suspended until he completed a drug use

evaluation. Father eventually failed to appear and no longer participated in the

proceedings. Thus, on August 20, 2014, the court ordered that this case be closed due

to father’s “unavailability.”

         {¶3}   In or about August 2014, mother and the children moved to Indiana where

they have resided since.

         {¶4}   Two years later, in 2016, appellants filed a complaint for companionship

rights in Case No. 16 CU 000141, which the trial court dismissed for lack of standing.

         {¶5}   Then, on August 1, 2016, appellant, Stephanie Maloney, father’s ex-wife,

who is not biologically related to the children, and appellant, Brittany Maloney, the adult

daughter of Stephanie Maloney, filed a combined motion to intervene and for visitation

of the children. Although appellants assert Brittany Maloney is the half-sister of the

children, the trial court’s entry directly refutes this because the court found that she “is

not biologically related to the children.” Moreover, there is nothing in the record that

supports appellants’ contention. In any event, our conclusion does not turn on this

issue.

         {¶6}   On the following day, August 2, 2016, the trial court issued a

comprehensive, six-page judgment entry denying appellants’ motion. Specifically, the

court found that appellants failed to comply with the statutory requirements of Civ.R. 24




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regarding intervention in that they failed to state any grounds for intervention and failed

to file a pleading setting forth the claim or defense for which intervention was sought.

The court also found that appellants failed to comply with the requirement in Civ.R. 24

that the motion to intervene be “timely” filed.      With respect to “intervention of right”

under Civ.R. 24(A), the court found that appellants failed to identify a statute that

conferred on them an unconditional right to intervene and, alternatively, that appellants

failed to claim an interest in the property or transaction at issue in the litigation. With

respect to “permissive intervention” under Civ.R. 24(B), the court found that no statute

conferred on appellants a conditional right to intervene and, alternatively, that

appellants’ claim did not have a question of law or fact in common with the dependency

proceedings. The court also found that appellants’ reliance on R.C. 3109.051(B) to

confer standing to seek visitation was misplaced because, while they met the

relationship requirement, they did not meet the additional requirement that the

underlying case be a divorce, dissolution, legal separation, or child-support proceeding

as this was a dependency case.

          {¶7}   Appellants appeal, asserting two assignments of error. For the first, they

allege:

          {¶8}   “The trial court erred in immediately denying Appellants’ motion to

intervene due to alleged technical deficiencies.”

          {¶9}   “When reviewing an order which denies a motion to intervene, the issue is

whether the trial court abused its discretion.” In re Goff, 11th Dist. Portage No. 2001-P-

0144, 2003-Ohio-6768, ¶11. “To constitute an abuse of discretion, ‘the result must be

so palpably and grossly violative of fact or logic that it evidences not the exercise of will,




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but the perversity of will, not the exercise of judgment, but the defiance of judgment, not

the exercise of reason but, instead, passion or bias.’” Id., quoting Nakoff v. Fairview

Gen. Hosp., 75 Ohio St.3d 254, 256 (1996).

       {¶10} Appellants argue the trial court’s denial of their motion, sua sponte,

violated the rule set forth in Robinson v. Vanex Tube Corp., 11th Dist. Trumbull No.

2014-T-0087, 2016-Ohio-268, in which this court stated: “A trial court errs when it

dismisses a complaint, sua sponte, without first notifying all parties of its intent.” Id. at

¶20. However, appellants fail to mention the exception to this rule, which this court also

set forth in Robinson, supra, as follows:        “The exception to this rule is where the

complaint is frivolous or the claimant obviously cannot prevail on the facts alleged in the

complaint.” (Emphasis added.) Id., citing State ex rel. Edwards v. Toledo City School

Dist. Bd. Of Edn, 72 Ohio St.3d 106, 108 (1995). This court routinely dismisses cases,

sua sponte, in such circumstances. E.g., State ex rel. Hill v. Logan, 11th Dist. Trumbull

No. 2012-T-0046, 2012-Ohio-3120, ¶3-4.

       {¶11} Here, the trial court implicitly found that appellants obviously could not

prevail on their motion to intervene. In their motion, appellants argued why they had

standing to seek visitation and why the court had jurisdiction, but did not present any

argument why they had a right to intervene.          Contrary to appellants’ argument on

appeal, the trial court did not deny their motion simply because they did not set forth

enough details. Rather, appellants’ motion obviously failed to comply with at least three

mandatory requirements of Civ.R. 24. Civ.R. 24(C) provides, in pertinent part:

       {¶12} A person desiring to intervene shall serve a motion to intervene
             upon the parties as provided in Civ.R. 5. The motion and any
             supporting memorandum shall state the grounds for intervention
             and shall be accompanied by a pleading, as defined in Civ.R. 7(A),



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              setting forth the claim or defense for which intervention is sought.
              (Emphasis added.)

       {¶13} Civ.R. 24(C) thus mandates that the motion to intervene and any

supporting memorandum: (1) state the grounds for intervention, and (2) be

accompanied by a pleading, as defined in Civ.R. 7(A), setting forth the claim or defense

for which intervention is sought.

       {¶14} The Eighth District, in Grove Court Condominium Unit Owners’ Assn. v.

Hartman, 8th Dist. Cuyahoga No. 949910, 2011-Ohio-218, stated:

       {¶15} Civ.R. 24(C) mandates that the motion to intervene “shall be
             accompanied by a pleading, as defined in Civ.R. 7(A), setting forth
             the claim or defense for which intervention is sought.” Civ.R. 7(A)
             defines a pleading as a complaint, an answer, a reply to a
             counterclaim, an answer to a cross-claim, a third-party complaint,
             or a third-party answer. No such pleading accompanied the motion
             to intervene filed by Wells Fargo.

       {¶16} The Ohio Supreme Court has repeatedly held that a motion to
             intervene is properly denied when the “motion is not accompanied
             by a pleading setting forth the claim or defense for which
             intervention is sought” as mandated by Civ.R. 24(C). State ex rel.
             Sawicki v. Court of Common Pleas of Lucas Cty., 121 Ohio St.3d
             507, 2009-Ohio-1523, ¶21; State ex rel. Polo v. Cuyahoga Cty. Bd.
             of Elections, 74 Ohio St.3d 143, 144 (1995). Thus, we do not find
             that the trial court erred in denying the motion on this ground.
             (Emphasis added.) Grove Court, supra, at ¶19-20.

       {¶17} Here, appellants failed to argue in their motion/memorandum whether or

how any of the grounds for intervention in Civ.R. 24(A), “Intervention of right,” or in

Civ.R. 24(B), “Permissive intervention,” as set forth below, supported their motion.

Further, appellants failed to file with their motion a pleading setting forth a claim or

defense.    Significantly, while the trial court denied the motion based in part on

appellants’ failure to file a pleading with their motion, appellants do not argue on appeal

that this requirement does not apply to them or even mention this omission. Due to



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appellants’ violation of these two mandatory requirements alone, the court did not abuse

its discretion in denying appellants’ motion to intervene.

       {¶18} Further, Civ.R. 24 requires that the motion to intervene be timely filed.

Univ. Hosps. of Cleveland, Inc. v. Lynch, 96 Ohio St.3d 118, 2002-Ohio-3748, ¶47.

Civ.R. 24 provides, in pertinent part:

       {¶19} (A) Intervention of right * * * Upon timely application anyone shall
             be permitted to intervene in an action: (1) when a statute of this
             state confers an unconditional right to intervene; or (2) when the
             applicant claims an interest relating to the property or transaction
             that is the subject of the action * * *.

       {¶20} (B) Permissive intervention * * * Upon timely application anyone
             may be permitted to intervene in an action: (1) when a statute of
             this state confers a conditional right to intervene; or (2) when an
             applicant’s claim or defense and the main action have a question of
             law or fact in common. * * * (Emphasis added.)

       {¶21} The Supreme Court of Ohio has stated that “[a] trial court’s decision on the

timeliness of a motion to intervene will not be reversed absent an abuse of discretion.”

State ex rel. First New Shiloh Baptist Church v. Meagher, 82 Ohio St.3d 501, 503

(1998). Thus, the Court held that a trial court’s decision as to the timeliness of a motion

to intervene is reviewed under the abuse of discretion standard.         Id.   Further, the

Supreme Court, in Meagher, supra, stated that whether a Civ.R. 24 motion to intervene

is timely depends on the facts and circumstances of the case. Id. The factors to be

considered in determining the timeliness of a motion to intervene include: (1) the point

to which the suit had progressed; (2) the purpose for which intervention is sought; (3)

the length of time before the application was filed during which the applicant knew or

should have known of the pending suit; (4) the prejudice to the original parties caused




                                             6
by the intervenor’s failure to promptly apply for intervention; and (5) the existence of

unusual circumstances militating against or in favor of intervention. Meagher, supra.

       {¶22} Applying the Meagher factors here, the trial court reasonably found that

appellants’ motion to intervene was untimely for the following reasons:

       {¶23} First, as the trial court found, the dependency action had already

proceeded to judgment in which the custody and visitation issues between the original

parties had been resolved when appellants filed their motion to intervene. “Intervention

after final judgment has been entered is unusual and ordinarily will not be granted.” Id.

       {¶24} Second, appellants, who are both adults, admitted in their motion that

they watched the children for a “few months” in “early 2013,” while the dependency

action was pending, to avoid foster-care placement. The trial court found it “peculiar

that, if intervention is indeed necessary to protect the Movants’ interests, they would

wait three years to attempt to intervene, once the merits of the dependency case had

already been resolved.” Thus, appellants knew or should have known of the pending

dependency proceedings for three years before they filed their motion.

       {¶25} Third, the trial court found that if appellants were permitted to intervene, it

would unduly prejudice the original parties because they would be required “to relitigate

matters involving custody and visitation.” Lynch, supra, is pertinent here. In Lynch, the

Ohio Supreme Court held that the attorney general’s motion to intervene was untimely

where two months had passed since the trial court issued its decision even though the

attorney general acted promptly in filing the motion once she learned about the suit.

The Court held the fact that “the original parties had fully litigated the relevant facts”

supported the trial court’s denial of the motion. Id. at ¶49.




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       {¶26} Fourth, appellants suggest the reason they waited so long to file their

motion was that mother stopped their contact with the children when mother and the

children moved to Indiana. However, mother and the children moved to Indiana when

the case was closed in August 2014, and, thus, mother stopped appellants’ contact with

the children two years before appellants filed their motion to intervene. Thus, the trial

court could properly find that mother’s decision to stop contact with the children did not

explain appellants’ long delay in filing their motion.

       {¶27} Based on the foregoing analysis, the trial court did not abuse its discretion

in finding that appellants’ motion to intervene was untimely.

       {¶28} Further, appellants did not state in their motion for intervention whether

they sought intervention as of right or permissive intervention.          In order to seek

intervention as of right, appellants would have had to allege a statute of this state

conferred on them an unconditional right to intervene or appellants would have had to

allege an interest relating to the property or transaction that is the subject of the action.

Having done neither, they could not have been entitled to intervention as of right.

       {¶29} Further, in order to seek permissive intervention, appellants would have

had to allege a statute of this state conferred on them a conditional right to intervene or

their claim or defense and the main action have a question of law or fact in common.

Again, having done neither, appellants could not have been entitled to permissive

intervention. However, giving appellants the benefit of the doubt, if we were to presume

their motion sought permissive intervention, the standard of review would have been

abuse of discretion.




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      {¶30} “Whether intervention is granted as of right or by permission, the standard

of review is whether the trial court abused its discretion in allowing intervention.” State

ex rel. Merrill v. Ohio Dept. of Natural Resources, 130 Ohio St.3d 30, 2011-Ohio-4612,

¶41. Since the trial court set forth several cogent reasons in support of its judgment

denying appellants’ motion, its decision was not an abuse of discretion.

      {¶31} For this additional reason, the trial court did not abuse its discretion in

denying appellants’ motion to intervene.

      {¶32} Appellants’ first assignment of error is overruled.

      {¶33} For appellants’ second assignment of error, they allege:

      {¶34} “The trial court erred in denying appellants’ motion for reasonable

companionship or visitation rights pursuant to R.C. 2109.051, based on lack of

standing.”

      {¶35} In view of our holding under the first assignment of error, the second

assigned error is denied as moot.

      {¶36} For the reasons stated in the opinion, the assignments of error lack merit

and are overruled. It is the order and judgment of this court that the judgment of the

Geauga County Court of Common Pleas, Juvenile Division, is overruled.



THOMAS R. WRIGHT, J.,

COLLEEN MARY O’TOOLE, J.,

concur in judgment only.




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