[Cite as In re Adoption of D.N.O., 2014-Ohio-3458.]


                                       COURT OF APPEALS
                                      STARK COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT


IN RE: ADOPTION OF D.N.O.                         :   JUDGES:
                                                  :
                                                  :   Hon. W. Scott Gwin, P.J.
                                                  :   Hon. Patricia A. Delaney, J.
                                                  :   Hon. Craig R. Baldwin, J.
                                                  :
                                                  :
                                                  :
                                                  :   Case No. 2014CA00028
                                                  :
                                                  :   OPINION



CHARACTER OF PROCEEDING:                              Appeal from the Stark County Court
                                                      of Common Pleas, Probate Division,
                                                      Case No. 213909



JUDGMENT:                                             Affirmed



DATE OF JUDGMENT:                                     August 4, 2014




APPEARANCES:

For Plaintiff-Appellant                               For Defendant-Appellee

CRAIG T. CONLEY                                       ARNOLD F. GLANTZ
604 Huntington Plaza                                  Glantz Law Offices
220 Market Avenue South                               4883 Dressler Rd. NW
Canton, OH 44702                                      Canton, OH 44718
Stark County, Case No. 2014CA00028                                                      2




Baldwin, J.

      {¶1}     Appellant Chad Ostrowski appeals from the January 31, 2014 Judgment

Entry of the Stark County Probate Court denying his Motion to Vacate.

                            STATEMENT OF THE FACTS AND CASE

      {¶2}     D.N.O. was born out of wedlock in September 2003. The relationship

between the child’s mother and the child’s father, appellee John Turnmire, ended six

months later. The mother married appellee Chad Ostrowski in 2008, and they have lived

together with the child. Appellee was incarcerated in 2005 and served three years in

prison.

      {¶3}     On December 13, 2011, appellee filed a complaint for visitation in the

Juvenile Division of the Stark County Court of Common Pleas.

      {¶4}     On January 26, 2012, appellant filed his Petition for Adoption of Minor,

asserting that appellee's consent is not required because appellee had failed without

justifiable cause to provide more than de minimis contact with the minor for a period of

at least one year immediately preceding the filing of the adoption petition and/or had

failed without justifiable cause to provide for the maintenance and support of the minor

as required by law or judicial decree for at least one year immediately preceding the

filing of the adoption petition.

      {¶5}     Appellee filed a Notice Contesting the Adoption on April 9, 2012, alleging

that his failure to communicate and/or support the child was justified because the child’s

mother had significantly interfered with his ability to communicate with the child.
Stark County, Case No. 2014CA00028                                                          3


      {¶6}    The Probate Court conducted an evidentiary hearing on November 19,

2012 on the issue of whether or not appellee’s consent was required for the adoption of

D.N.O. Pursuant to a Judgment Entry filed on December 19, 2012, the court found that

there was justifiable cause for appellee’s failure to communicate with and support the

minor child and that the consent of appellee was required for the adoption of D.N.O. by

appellant. The trial court, in its ________________, found, in relevant part, as follows:

      {¶7}    “Mother testified unequivocally that she would do whatever she could to

prevent Father from having contact with Dylan because she believed Father would be a

bad influence on the child. She testified that she did not receive the correspondence

upon Father's release from prison and that she did not receive the Facebook messages.

She further testified that if she had received a Facebook message from Father she

would have ignored it. She testified that if Father had come to her door and requested to

see Dylan, she would not have answered the door.

      {¶8}    “Further, Father's action for visitation preceded the filing of the Petition for

Adoption in this case by 45 days. Although Mother was not served with the Complaint

prior to the Petition, the Court finds her testimony that she did not know of Father's

attempts to have visitation with the child prior to the Spring [sic] of 2012 not credible.

Mother and Petitioner both received notices of certified mail in December of 2012 and

both failed to respond. The Guardian ad Litem sent correspondence by regular mail in

either late December or early January which was not returned to him. (Tr. 76–77) The

instant adoption action was not filed until January 26, 2012.”
Stark County, Case No. 2014CA00028                                                       4


      {¶9}     Appellant then appealed. Pursuant to an Opinion filed on February 19,

2013 in In re D.N.O., 5th Dist. Stark No. 2012–CA–00239, 2013 -Ohio- 601, this Court

affirmed the decision of the Probate Court.

      {¶10}    While the appeal was pending, the Juvenile Court, pursuant to a

Judgment Entry filed on February 1, 2013, found that visitation with appellee was not in

the child's best interest “at this time,” and ordered the child’s mother to arrange for the

child to undergo a psychological evaluation and follow all relative recommendations

relative to the child's care.

      {¶11}    On March 4, 2013, the child’s mother filed a motion to vacate the February

1, 2013 judgment entry for lack of personal jurisdiction and motion to dismiss the

complaint for insufficient process. By judgment entry filed on May 3, 2013, the trial court

denied the motions. The child’s mother then appealed. Pursuant to an Opinion filed on

November 18, 2013 in Turnmire v. Ostrowski, 5th Dist. Stark Nos. 2013CA00042,

2013CA00099, 2013 -Ohio- 5154, this Court reversed the judgment of the Juvenile

Court and remanded the matter for an evidentiary hearing on the issues of sufficiency

of process and personal jurisdiction. The Juvenile Court then dismissed appellee’s

complaint for visitation due to failure of service within one year of filing.

      {¶12}    Thereafter, on December 6, 2013, appellant filed a Motion to Vacate in the

Probate Court. Appellant, in his motion, asked that the court vacate its December 19,

2012 Judgment Entry that found that appellee’s consent to the adoption was necessary.

Appellant argued that because the complaint for visitation was dismissed, the Probate

Court “should not have considered either the purported pendency of Father’s de jure

non-existent visitation action or any hearing testimony related thereto.” Appellant noted
Stark County, Case No. 2014CA00028                                                        5


that because the child’s mother had never been served with the summons and

complaint with respect to the action for visitation, the complaint for visitation never de

jure existed and that ___________________.

      {¶13}   As memorialized in a Judgment Entry filed on January 31, 2014, the

Probate Court denied such motion. The Probate Court, in its Judgment Entry, held that

appellant had failed to show that he had a meritorious claim to present if the requested

relief was granted and that appellant had failed to show that he was entitled to relief

under one of the grounds stated in Civ.R. 60(B)(1) through (5).

      {¶14}   Appellant now raises the following assignment of error on appeal:

      {¶15}   THE      TRIAL      COURT        ERRED        IN     ITS     DENIAL       OF

PETITIONER’S/APPELLANT’S MOTION TO VACATE.

                                                I

      {¶16}   Appellant, in his sole assignment of error, argues that the trial court erred

in denying his Motion to Vacate. We disagree.

      {¶17}   The decision whether to grant a motion for relief from judgment under

Civ.R. 60(B) lies within the trial court's sound discretion. Griffey v. Rajan, 33 Ohio St.3d

75, 514 N.E.2d 1122 (1987). In order to find abuse of discretion, we must determine the

trial court's decision was unreasonable, arbitrary, or unconscionable. Blakemore v.

Blakemore, 5 Ohio St.3d 217, 450 N .E.2d 1140 (1983).


      {¶18}   Civil Rule 60(B) provides, “On motion and upon such terms as are just,

the court may relieve a party or his legal representative from a final judgment, order or

proceeding for the following reasons: (1) mistake, inadvertence, surprise or excusable

neglect; (2) newly discovered evidence which by due diligence could not have been
Stark County, Case No. 2014CA00028                                                     6


discovered in time to move for a new trial under Rule 59(B); (3) fraud (whether

heretofore denominated intrinsic or extrinsic), misrepresentation or other misconduct of

an adverse party; (4) the judgment has been satisfied, released or discharged, or a prior

judgment upon which it is based has been reversed or otherwise vacated, or it is no

longer equitable that the judgment should have prospective application; or (5) any other

reason justifying relief from the judgment. The motion shall be made within a reasonable

time, and for reasons (1), (2) and (3) not more than one year after the judgment, order

or proceeding was entered or taken. A party seeking relief from judgment pursuant to

Civ.R. 60(B) must show: “(1) a meritorious defense or claim to present if relief is

granted; (2) entitlement to relief under one of the grounds set forth in Civ.R. 60(B)(1)-

(5); and (3) the motion must be timely filed.” GTE Automatic Electric, Inc. v. ARC

Industries, Inc., 47 Ohio St.2d 146 at paragraph two of syllabus, 351 N.E.2d 113 (1976).

      {¶19}   As noted by this Court in our Opinion filed on February 19, 2013 in In re

D.N.O., 5th Dist. Stark No. 2012–CA–00239, 2013 -Ohio- 601 at paragraphs 7-12, the

following evidence was adduced at the November 19, 2012 hearing:

      {¶20}   “Mother testified that the minor has not received any communications from

Father [appellee]. Mother further testified that Father had no contact with the minor

either by phone or by correspondence during the time that he was incarcerated. Nor has

he been in contact with the child since his release from prison. The minor was eight

years old at the time of the hearing.

      {¶21}   “Father testified that in 2007 an Order of Child Support was issued

requiring him to pay zero dollars in child support for the minor child (Exhibit Q). The

Order provides that health insurance was not available as of the date of the Order but
Stark County, Case No. 2014CA00028                                                          7


that should it become available, Father was required to inform the Child Support

Enforcement Agency. Father testified that he has provided health insurance for the

minor child since January of 2009 through his employer. (Exhibit R).

      {¶22}   “Father testified that upon release from prison he attempted to contact

Mother and requested to see the child. Father produced a copy of correspondence that

he wrote to Mother which he sent to her current Culver Drive address. (Exhibit A) In the

letter Father stated that he tried calling Mother but that the numbers have been

changed. He advised that he wished to establish visits with the child and arrange for

child support. He testified that Mother did not respond to that letter or any subsequent

letters. Father testified that he wrote a letter in the summer of 2011 and attempted to

contact Mother via Facebook. Father provided two printouts of messages that he sent to

Mother, one in November of 2011 and one in December 2012. Both messages

requested visitation with the child, (Exhibits A–1 and A–2). Finally, Father testified that

he filed an action for visitation in the Stark County Family Court on December 13, 2011

in Case Number 2011JCV01658.

      {¶23}   “Ostrowski and Mother both deny any contact with Father in the one-year

preceding the filing of the Petition. Although they admit to having knowledge of the

action for visitation, they testified that they did not know of the action until the spring of

2012. Service of the complaint for visitation was not complete until November 2012.

Certified mail sent to both Ostrowski and Mother was returned as unclaimed. The

Guardian ad Litem in the Family Court case testified that he sent correspondence to

Mother in December of 2011 or January of 2012 that was not returned, however, she

did not pay the deposit or contact the Guardian ad Litem as requested in that letter.
Stark County, Case No. 2014CA00028                                                      8


      {¶24}   “Mother testified that she had no knowledge of the fact that Father was

providing insurance coverage for the child. She testified that she did appear at a hearing

for child support after D.N.O. was born but that Father was not ordered to provide any

support. With regard to the Facebook messages, Mother testified that if she had

received them she would have ignored them. (Tr. 37) Mother further testified that she

did not want Father to be a part of the child's life and that she has done whatever she

could to avoid his involvement. (Tr. 31) She reiterated that she will do whatever it takes

to stop Father from seeing the child (Tr. 40). Mother further testified that if Father had

come to her door in the year preceding the filing of the Petition she would not have let

him in (Tr. 40).

      {¶25}   “Elaine Turnmire, paternal Grandmother, lives with Father. Elaine

Turnmire testified that Father showed her a post that Father had sent to Mother in

November 2011. (Tr. 103) She also testified that Father told her that he sent Mother a

letter in the summer of 2011 but that she did not see the letter. (Tr. 104) Elaine

Turnmire further testified that she tried to have contact with the child on four occasions

while Father was incarcerated but that Mother would not answer the door. Finally,

Elaine Turnmire testified that she filed an action for grandparent visitation, which was

opposed by Mother and eventually was denied.”

      {¶26}   The trial court, in its January 31, 2014 Judgment Entry, stated, in relevant

part, as follows in holding that appellant had failed to meet his burden of showing that

he had a meritorious defense to present if the requested relief was granted:

      {¶27}   Petitioner is correct that as a matter of law, the visitation action was not

properly commenced under the requirements of the Rules of Civil Procedure. However,
Stark County, Case No. 2014CA00028                                                        9


that does not require the Court to conclude that the complaint for visitation was never

actually filed. Nor does it require the Court to disregard testimony regarding the filing of

the complaint, the attempts to serve the complaint, or the various communications by

the Guardian ad Litem.

      {¶28}   Even if the Court were to disregard all testimony relating to the visitation

action, there is ample evidence that Father’s failure to provide more than de minimis

contact with the child was justified. Mother previously testified that any effort by Father

would have been rejected or ignored, and that she would deny all contact between

Father and the child. The Court found that her testimony that she was unaware of

Father’s efforts to have visitation with the child prior to the spring of 2012 was not

credible. The dismissal of the visitation action for lack of service does not affect the

Court’s finding. Therefore, Petitioner has failed to meet his burden of showing that he

has a meritorious claim to present if the relief requested were granted. Thus, the Court

finds that Petitioner has failed to satisfy the first prong of the GTE test.

      {¶29}   Based on the testimony set forth above, we cannot say that the trial court

abused its discretion in denying appellant’s Motion to Vacate. The trial court’s decision

was not arbitrary, unconscionable or unreasonable, but was based on the court’s belief

that the child’s mother was not credible and the child’s mother did everything in her

power to prevent appellee from having contact with the minor child. We note that while

the trial court, in her _____________Judgment Entry, __________ the visitation action

that was dismissed_____________, it was an additional factor that the court relied on

in finding that appellee’s consent to the adoption was necessary, not the sole factor.
Stark County, Case No. 2014CA00028                                                       10


      {¶30}   Because we find that appellant failed to show that he had a meritorious

defense or claim to present if relief was granted, we need not determine whether or not

appellant was entitled to relief under one of the grounds set forth in Civ.R. 60(B)(1)-(5).

      {¶31}   Appellant’s sole assignment of error is, therefore, overruled.

      {¶32}   Accordingly, the judgment of the Stark County Court of Common Pleas,

Probate Division is affirmed.

By: Baldwin, J.

Gwin, P.J. and

Delaney, J. concur.
