[Cite as Ritchey v. Plunkett, 2013-Ohio-3226.]


                                        COURT OF APPEALS
                                       STARK COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT



HEATHER RITCHEY                                  :   JUDGES:
KNA MONTGOMERY                                   :   Hon. William B. Hoffman, P.J.
                                                 :   Hon. Sheila G. Farmer, J.
        Plaintiff-Appellee                       :   Hon. Patricia A. Delaney, J.
                                                 :
-vs-                                             :
                                                 :   Case No. 2013CA00051
ROBERT PLUNKETT                                  :
                                                 :
        Defendant-Appellant                      :   OPINION




CHARACTER OF PROCEEDING:                             Appeal from the Court of Common
                                                     Pleas, Juvenile Division, Case No.
                                                     2009JCV00939


JUDGMENT:                                            Dismissed




DATE OF JUDGMENT:                                    July 22, 2013




APPEARANCES:

For Plaintiff-Appellee                               For Defendant-Appellant

HEATHER RITCHEY MONTGOMERY, Pro Se                   ROBERT PLUNKETT, Pro Se
946 Colina Vista, NW                                 1407 Western Avenue, SW
Massillon, OH 44646                                  Canton, OH 44710
Stark County, Case No. 2013CA00051                                                     2

Farmer, J.

      {¶1}   Appellant,   Robert   Plunkett,   and   appellee,   Heather   Ritchey   nka

Montgomery, had a child together on March 20, 2002. On July 24, 2009, appellee filed

a complaint for the establishment of custody, child support, medical insurance, and tax

exemption.   On August 21, 2009, appellant filed a motion for shared parenting. A

hearing was held on March 9, 2010. By agreed entry filed March 26, 2010, appellee

was named the residential and custodial parent of the child and appellant was granted

unsupervised visitation. The agreed entry was submitted to appellant's counsel but not

approved.

      {¶2}   On June 23, 2010, the guardian ad litem in the case filed a motion for

immediate review due to appellant's noncompliance with the agreed entry. On June 25,

2010, appellee filed a motion to modify the terms of the agreed entry regarding

visitation. On June 28, 2010, appellant filed a motion for change of custody. A hearing

was held on July 1, 2010.       By judgment entry filed July 2, 2010, the trial court

determined the agreed entry was no longer workable, suspended appellant's visitation

rights, and dismissed appellant's motion for change of custody due to appellant's failure

to comply with Loc.R. 16.02.

      {¶3}   On March 9, 2011, appellant filed a motion for companionship/allocation of

parental rights. By judgment entry filed September 14, 2011, the motion was dismissed

due to appellant's failure to abide by the trial court's orders for a psychological

evaluation and the payment of guardian ad litem fees.

      {¶4}   On June 14, 2012, appellant filed a motion for change of custody and a

motion for visitation. By judgment entry filed August 7, 2012, the trial court dismissed
Stark County, Case No. 2013CA00051                                                        3


the motion for change of custody, again due to appellant's failure to comply with Loc.R.

16.02, and granted the motion for supervised visitation.

       {¶5}   A hearing was held on March 4, 2013. By judgment entry filed March 5,

2013, the trial court granted appellant unsupervised visitation.

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

consideration. Assignment of error is as follows:

                                             I

       {¶7}   "COMPLAINT FOR FATHER'S RIGHTS TO BE REINSTATED IN THIS

CUSTODY CASE, TAX EXEMPTION RIGHTS, GUARDIAN AD LITEN (SIC) FEES

REIMBURSEMENT,          JOINT     CUSTODY        OF    LINDSEY      PLUNKETT,       FALSE

STATEMENT ABOUT THE FATHER WHICH HAVE DAMAGED THE FATHER'S

REPUTATION IN THIS SOCIETY.             THE COURT SUSPENDED MY RIGHTS 2010

BECAUSE OF FALSE STATEMENTS THE MOTHER AND THE FIRST GUARDIAN

CAME UP WITH. MR. PLUNKETT WAS NOT AWARE OF THIS UNTIL THE MOTHER

NEVER SHOWED UP FOR THE VISITATION.                    THIS HAS BEEN AN ONGOING

BATTLE TO SEEK JUSTICE IN THIS CUSTODY CASE 2009JCV00939."

                                             I

       {¶8}   Appellant claims he was denied his right to a hearing on the reinstatement

of his parental rights and responsibilities. In order to determine this assignment of error,

it is necessary to conduct a procedural review of this case.

       {¶9}   On June 28, 2010, appellant filed a motion for change of custody.           A

hearing was held on July 1, 2010. By judgment entry filed July 2, 2010, the trial court

dismissed the motion due to appellant's failure to comply with Loc.R. 16.02.
Stark County, Case No. 2013CA00051                                                       4


       {¶10} On March 9, 2011, appellant filed a motion for companionship/allocation of

parental rights. By judgment entry filed September 14, 2011, the motion was dismissed

due to appellant's failure to abide by the trial court's orders for a psychological

evaluation and the payment of guardian ad litem fees.

       {¶11} On June 14, 2012, appellant filed a motion for change of custody. By

judgment entry filed August 7, 2012, the trial court dismissed the motion, again due to

appellant's failure to comply with Loc.R. 16.02.       The trial court specifically noted

appellant failed to include an affidavit in compliance with Loc.R. 16.02 "setting forth

facts sufficient to establish a prima facie case for granting the requested relief." In the

same judgment entry, the trial court granted appellant supervised visitation.

       {¶12} Loc.R. 16.02 of the Court of Common Pleas of Stark County, Family Court

Division, states the following:



              Attached to a motion for modification of allocation of parental rights

       shall be an affidavit of the moving party [appellant herein] reciting facts

       sufficient to establish a prima facie case for granting the requested relief.

       The Court may summarily dismiss the motion or make other appropriate

       orders including investigation, pretrial, interim placement of children,

       visitation, and support pending the hearing on the motion. Such interim

       orders may be made upon statements of counsel, the affidavits supplied,

       and a parental rights investigation, if any.
Stark County, Case No. 2013CA00051                                                        5


       {¶13} A hearing was then held on March 4, 2013. By judgment entry filed March

5, 2013, the trial court granted appellant unsupervised visitation. Up to this hearing

date, appellant never filed another motion for change of custody with the necessary

affidavit. We therefore conclude the trial court was not required to hear any argument

on change of custody.

       {¶14} We note no appeal was timely taken from the August 7, 2012 dismissal

pursuant to App.R. 4(A) which states: "A party shall file the notice of appeal required by

App.R. 3 within thirty days of the later of entry of the judgment or order appealed or, in a

civil case, service of the notice of judgment and its entry if service is not made on the

party within the three day period in Rule 58(B) of the Ohio Rules of Civil Procedure."

       {¶15} Appellant filed his notice of appeal herein on March 12, 2013 regarding

the trial court's March 12, 2013 judgment entry. No judgment entry was filed on said

date. Appellant's docketing statement filed March 19, 2013 identifies and attaches the

judgment entry being appealed as the one dated March 4, 2013, which was actually

filed on March 5, 2013. This judgment entry memorialized an agreed visitation order:



              The father is to receive unsupervised visitation commencing March

       16, 2013 from 10:00 to 12:00. His subsequent visits are to occur biweekly

       on Saturdays with a commencement of 10:00 AM increasing two hours

       each visit until reaching a total of eight hours visitation. Pick up and drop

       off of the child is to occur at Perry Police Department. Father is to provide

       his address and contact phone number as well as the location of visits.
Stark County, Case No. 2013CA00051                                                 6


              Father is to provide a 2012 and 2011 W2s to Attorney Johnson

       within 7 days.     Attorneys are to submit child support modification

       information no later than 14 days thereafter. The court will then issue

       modified child support orders.



       {¶16} The judgment entry indicates it is an agreed entry as the signatures of

both appellant and appellee appear above the disposition language.

       {¶17} The gravamen of appellant's argument is that he was denied a full

evidentiary hearing on the change of custody issue. However, there was no pending

motion for change of custody from the August 7, 2012 dismissal forward, and appellant

failed to file a notice of appeal on the August 7, 2012 dismissal.

       {¶18} Upon review, we conclude there is no justiciable issue for this court to

review.

       {¶19} The appeal is dismissed.

By Farmer, J.

Hoffman, P.J. and

Delaney, J. concur.


                                              _______________________________



                                              _______________________________



                                              _______________________________

SGF/sg 709                                                  JUDGES
[Cite as Ritchey v. Plunkett, 2013-Ohio-3226.]


                     IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO

                                    FIFTH APPELLATE DISTRICT



HEATHER RITCHEY                                  :
NKA MONTGOMERY                                   :
                                                 :
        Plaintiff-Appellee                       :
                                                 :
-vs-                                             :       JUDGMENT ENTRY
                                                 :
ROBERT PLUNKETT                                  :
                                                 :
        Defendant-Appellant                      :       CASE NO. 2013CA00051




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

dismissed. Costs to appellant.




                                                 _______________________________



                                                 _______________________________



                                                 _______________________________

                                                            JUDGES
