[Cite as Lang v. Lang, 2014-Ohio-4124.]


STATE OF OHIO                    )                    IN THE COURT OF APPEALS
                                 )ss:                 NINTH JUDICIAL DISTRICT
COUNTY OF WAYNE                  )

DELMAR R. LANG, et al.                                C.A. No.    13CA0054

        Appellees

        v.                                            APPEAL FROM JUDGMENT
                                                      ENTERED IN THE
MELANIE L. LANG                                       COURT OF COMMON PLEAS
                                                      COUNTY OF WAYNE, OHIO
        Appellant                                     CASE No.   12-DR-0267

                                DECISION AND JOURNAL ENTRY

Dated: September 22, 2014



        BELFANCE, Presiding Judge.

        {¶1}    Appellant, Melanie Lang (“Mother”), appeals from the judgment of the Wayne

County Court of Common Pleas, granting visitation rights to Appellees, Delmar Lang

(“Grandfather”) and Susan Lang (“Grandmother”) (collectively, “Grandparents”). This Court

affirms.

                                                 I.

        {¶2}    Mother and Kyle Lang (“Father”) were married in June 2002 and had four

children during the course of their marriage: I.L., born in June 2003; H.L, born in August 2004;

M.L., born in September 2005; and G.L., born in September 2007. Mother was an optometrist

and Father was a physician and part-time farmer. The two divorced in July 2010, and Mother

was named the children’s primary residential parent and legal custodian.       Mother and the

children moved approximately ten minutes away and Father remained on the farm. In May

2011, Father was killed in a farming accident.
                                                 2


       {¶3}     While Mother and Father were still married, the two lived next door to

Grandparents, Father’s parents, and the four children saw them several times a week. Even after

Mother and Father divorced, the children would see Grandparents often. The children would

visit with Grandparents when they were with Father, and Mother later asked Grandparents to

watch the children two days a week after school. After Father’s death, however, Mother no

longer asked Grandparents to watch the children. Instead, Mother took the children to see

Grandparents about once a week.

       {¶4}     Issues with Father’s estate soon caused the parties’ relationship to suffer.

Additionally, Mother observed that the children were often sad after spending time with

Grandparents. Grandparents had several physical reminders of Father in and around their house,

and Mother believed that Grandparents’ grief and anger over the loss of their son was affecting

the children.    Several incidents that occurred around November 2011 combined with the

children’s reaction to spending time with Grandparents caused Mother to stop all interaction

between the children and Grandparents. Mother served Grandparents with a no trespass letter

and refused to allow them to see the children.

       {¶5}     Subsequently, Grandparents filed a complaint for visitation rights. Mother filed

an answer, and the court appointed a guardian ad litem to protect the interests of the children. A

two-day hearing took place before a magistrate. After the hearing, the magistrate issued a

decision in which he awarded Grandparents visitation. The trial court adopted the magistrate’s

decision and awarded Grandparents one visit per month with the children for four hours. The

judgment provided that the first four visits would take place at Mother’s home in Mother’s

presence. Visits beyond the initial four-month period would take place at Grandparents’ home or

a location of their choosing with Mother’s presence contingent upon their invitation.
                                                  3


       {¶6}    Both parties filed objections to the magistrate’s decision. Subsequently, the court

overruled the objections and entered judgment in accordance with its earlier judgment entry.

The court agreed to stay its judgment for the purpose of allowing Mother to appeal.

       {¶7}    Mother now appeals from the court’s judgment and raises three assignments of

error for our review. For ease of analysis, we consolidate several of the assignments of error.

                                                  II.

                                  ASSIGNMENT OF ERROR I

       THE MAGISTRATE’S PROPOSED DECISION FAILS TO AFFORD SPECIAL
       WEIGHT TO THE WISHES OF THE MOTHER OF THE CHILDREN
       REGARDING FUTURE CONTACT BETWEEN THE CHILDREN AND
       THEIR PATERNAL GRANDPARENTS AND IT VIOLATES MOTHER’S
       CONSTITUTIONAL RIGHTS FOR A FIT PARENT TO RAISE [HER]
       CHILDREN    AS   [SHE]  DEEM[S]   APPROPRIATE    FREE   OF
       GOVERNMENTAL INTERFERENCE AS AFFORDED TO HER UNDER THE
       DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT. THE
       STATE OF OHIO HAS NO COMPELLING, SUBSTANTIAL, OR
       LEGITIMATE INTEREST IN ORDERING GRANDPARENT VISITATION
       OVER A FIT CUSTODIAL PARENT’S OBJECTIONS.

                                 ASSIGNMENT OF ERROR II

       THE MAGISTRATE’S PROPOSED FINDINGS INCLUDE THE FOLLOWING
       STATEMENT: “[T]HE EVIDENCE SHOWED THE BENEFIT THE LANG
       CHILDREN CAN RECEIVE FROM THE RESTORATION OF THE
       GRANDPARENT-GRANDCHILDREN RELATIONSHIP IS SUBSTANTIAL.”
       THIS FINDING BY THE HEARING OFFICER IS WITHOUT SUPPORT AND
       NO EVIDENCE WAS SUBMITTED AT TRIAL TO SUBSTANTIATE THIS
       FINDING. IT IS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.

       {¶8}    In her first and second assignments of error, Mother argues that the magistrate

failed to afford her opinion special weight and incorrectly found that her children would receive

a substantial benefit from a restored relationship with Grandparents. Because claims of trial

court error may not be based upon a magistrate’s findings or proposed decision, we overrule

Mother’s first and second assignments of error.
                                                 4


       {¶9}    Even if a magistrate’s finding is “contrary to the evidence contained in the record,

this Court has previously noted that, ‘[a]ny claim of trial court error must be based on the actions

of the trial court, not on the magistrate’s findings or proposed decision.’” Wallace v. Wallace,

195 Ohio App.3d 314, 2011-Ohio-4487, ¶ 14 (9th Dist.), quoting Knouff v. Walsh-Stewart, 9th

Dist. Wayne No. 09CA0075, 2010-Ohio-4063, ¶ 6. The trial court here did not expressly adopt

the magistrate’s decision or any of his findings. Although Mother specifically objected to the

magistrate’s decision on the bases outlined above, she has not argued that the trial court erred by

overruling her objections. See App.R. 16(A)(7). Nor has she argued that the trial court failed to

(1) undertake an independent review of the record, see Civ.R. 53(D)(4)(d), or (2) comply with

her written request for a ruling with findings of fact and conclusions of law. Her assignments of

error present us with a direct challenge to the magistrate’s findings and proposed decision.

Because a claim of error on appeal cannot be based on a magistrate’s findings or proposed

decision, Wallace at ¶ 14, Mother’s first and second assignments of error are overruled on that

basis. See Knouff at ¶ 6.

                                 ASSIGNMENT OF ERROR III

       THE GRANDPARENTS HEREIN FAILED TO MEET THEIR BURDEN OF
       PROOF TO PROVIDE EVIDENCE IN SUPPORT OF VISITATION BEING
       THE BEST INTERESTS OF THESE CHILDREN AT A LEVEL SUFFICIENT
       TO ABUT THE PRESUMPTION OF THE RIGHT OF A FIT PARENT TO
       MAKE THE DECISION FOR THEIR CHILDREN; HENCE, THE TRIAL
       COURT’S DECISION WAS AN ABUSE OF [ITS] DISCRETIONARY
       POWER.

       {¶10} In her third assignment of error, Mother challenges the trial court’s decision to

award Grandparents visitation. She argues that, because Grandparents failed to show visitation

was in her children’s best interest, the court abused its discretion by awarding them visitation.
                                                5


       {¶11} Generally, “[w]hen reviewing an appeal from the trial court’s ruling on objections

to a magistrate’s decision, this Court must determine whether the trial court abused its discretion

in reaching its decision.” Daniels v. O’Dell, 9th Dist. Summit No. 24873, 2010-Ohio-1341, ¶ 10.

“In so doing, we consider the trial court’s action with reference to the nature of the underlying

matter.” Tabatabai v. Tabatabai, 9th Dist. Medina No. 08CA0049-M, 2009-Ohio-3139, ¶ 18.

“A trial court’s decision regarding visitation rights will not be reversed on appeal except upon a

finding of an abuse of discretion.” Harrold v. Collier, 9th Dist. Wayne No. 06CA0010, 2006-

Ohio-5634, ¶ 6.     An abuse of discretion implies that a trial court’s decision is arbitrary,

unreasonable, or unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219 (1983).

       {¶12} Grandparents moved to have visitation with their four grandchildren under R.C.

3109.11. That statute provides that if

       either the father or mother of an unmarried minor child is deceased, the court of
       common pleas of the county in which the minor child resides may grant * * *
       relatives of the deceased father or mother reasonable companionship or visitation
       rights with respect to the minor child during the child’s minority if the * * *
       relative files a complaint requesting reasonable companionship or visitation rights
       and if the court determines that the granting of the companionship or visitation
       rights is in the best interest of the minor child.

R.C. 3109.11. “[T]he trial court must use the factors set forth in R.C. 3109.051(D) when

determining whether visitation is in the best interests of the child.” Adam v. Kovitch, 9th Dist.

Summit No. 26497, 2013-Ohio-1020, ¶ 8. Those factors are

       (1) The prior interaction and interrelationships of the child with the child’s
       parents, siblings, and other persons related by consanguinity or affinity, and with
       the person who requested companionship or visitation * * *;

       (2) The geographical location of the residence of each parent and the distance
       between those residences, and if the person is not a parent, the geographical
       location of that person’s residence and the distance between that person’s
       residence and the child’s residence;
                                          6


(3) The child’s and parents’ available time, including, but not limited to, each
parent’s employment schedule, the child’s school schedule, and the child’s and
the parents’ holiday and vacation schedule;

(4) The age of the child;

(5) The child’s adjustment to home, school, and community;

(6) If the court has interviewed the child in chambers, * * * regarding the wishes
and concerns of the child as to * * * visitation by the grandparent * * *, the
wishes and concerns of the child, as expressed to the court;

(7) The health and safety of the child;

(8) The amount of time that will be available for the child to spend with siblings;

(9) The mental and physical health of all parties;

(10) Each parent’s willingness to reschedule missed parenting time and to
facilitate the other parent’s parenting time rights, and with respect to a person who
requested companionship or visitation, the willingness of that person to
reschedule missed visitation;

(11) In relation to parenting time, whether either parent previously has been
convicted of or pleaded guilty to any criminal offense 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 the adjudication; 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;

(12) In relation to requested companionship or visitation by a person other than a
parent, whether the person previously has been convicted of or pleaded guilty to
any criminal offense involving any act that resulted in a child being an abused
child or a neglected child; whether the person, 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 the
adjudication; whether either parent previously has been convicted of or pleaded
guilty to a violation of section 2919.25 of the Revised Code 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
previously has been convicted of an 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 the person
                                                  7


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

       (13) 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;

       (14) Whether either parent has established a residence or is planning to establish a
       residence outside this state;

       (15) In relation to requested companionship or visitation by a person other than a
       parent, the wishes and concerns of the child’s parents, as expressed by them to the
       court;

       (16) Any other factor in the best interest of the child.

R.C. 3109.051(D)(1)-(16). “Ohio statutes allow grandparental visitation only if it is in the

grandchild’s best interest.” Estate of Harrold v. Collier, 9th Dist. Wayne No. 03CA0064, 2004-

Ohio-4331, ¶ 13.

       {¶13} Mother’s third assignment of error challenges the court’s ultimate decision to

award Grandparents visitation. Mother does not take issue with the trial court’s failure to

address the individual factors set forth in R.C. 3109.051 in reaching its decision. Instead, Mother

argues that the court’s ultimate decision constitutes an abuse of discretion because Grandparents

failed to demonstrate that visitation would be in the children’s best interest. For purposes of

clarity, we begin by outlining the evidence in the record.

       {¶14} During Mother and Father’s marriage, the two lived on a farm directly adjacent to

Grandparents. Mother testified that Grandmother’s family originally owned the entire property,

but that Grandparents sold the farm to her and Father when they married. In July 2010, Mother

and Father divorced, and Mother was named the children’s primary residential parent and legal

custodian. Father retained the farm, and Mother and the children moved to a new home. Mother

stated that the new home was about a ten-minute drive from the farm.
                                                8


       {¶15} Mother agreed that the children saw Grandparents several times a week before she

and Father separated. After the divorce, the children stayed with Father for two days every other

week and often saw Grandparents on those days. Mother testified that she and Grandparents

maintained a cordial relationship with one another in spite of the divorce. In fact, when her

babysitter moved away in December 2010, Mother asked Grandparents to watch the children two

days a week after school while she worked. Grandparents did so until May 2011, when Father

died unexpectedly.

       {¶16} Mother testified that Grandparents stopped watching the children after Father’s

death, but that she still took them to visit Grandparents about once a week. Over the next several

months, however, Father’s death and issues with his estate began to affect the parties’

relationship. Because Father died intestate, the children inherited all of his property, including

the farm that had been in Grandmother’s family for a substantial period of time. Mother

purchased the farm to manage it for the children, and her doing so caused tension among

Father’s siblings. Additional tension resulted when the probate court honored Mother’s request

to have her sister, Regina Murphy, named as the administrator of Father’s estate rather than

Grandmother. Because Grandparents removed many of Father’s possessions from his home

when he died, Ms. Murphy and Mother had to reclaim the items directly from Grandparents in

marshaling the assets.

       {¶17} As November 2011 approached, Mother testified that she also became concerned

about the children spending time with Grandparents. She testified that Grandparents were sad

and angry after Father’s death and the children were often sad after visiting with them. She

further testified that Grandparents had a lot of pictures of Father on display in the main room of

their house, along with personal items like his stethoscope, coat, and hat.         Additionally,
                                                9


Grandparents had a large, white memorial cross in their yard, which they had strung lights

across.

          {¶18} In November 2011, several events caused the relationship between the parties to

further deteriorate. First, an incident occurred at Grandparents’ house when Mother and Ms.

Murphy stopped there to retrieve certain keys for Father’s property. Mother testified that her

children were not with her at the time, but at least one of Father’s siblings and his children were

there. She testified that, during the brief visit, Father’s brother came out of the house and

screamed and swore at her, regarding the farm.         According to Mother and Ms. Murphy,

Grandparents stood by and did nothing despite the fact that their grandchildren could hear their

son’s outburst. According to Grandparents, they intervened and told their son to walk away and

stop yelling.

          {¶19} Another incident later occurred at Grandparents’ house when Ms. Murphy went

there to retrieve several items of property. Ms. Murphy testified that Grandmother “made some

nasty comments” about Mother, including that Mother had not been a good wife and was not a

good mother. Ms. Murphy also recalled that Grandfather became angry with her when she told

him that her step-father would be arriving with a truck and trailer to pick up Father’s motorcycle.

Ms. Murphy testified that Grandfather swore at her and continued yelling and swearing when her

step-father arrived with his truck. Ms. Murphy testified that H.L., who was seven at the time,

was in the truck while Grandfather screamed at her. During his testimony, Grandfather conceded

that he might have raised his voice “a little bit” during the encounter, but denied having used any

inappropriate language.

          {¶20} A third incident took place the weekend of Thanksgiving. Mother testified that

she took the children to the farm to remove some furniture from the house. She testified that, as
                                                 10


they were moving furniture, Grandfather walked over from his house and began screaming that

she could not have certain items. Mother testified that, as Grandfather yelled, the children “were

all standing there saying * * * Paw-paw, Paw-paw and [Grandfather] just totally ignored them.”

Grandfather eventually left at Mother’s request, but Mother testified that a sheriff arrived about

half an hour later to verify that she was within her right to take the property.

       {¶21} Mother testified that all of the incidents that occurred in November 2011,

combined with her children’s reaction to their visits with Grandparents, caused her to stop all

contact between the children and Grandparents. Mother specified that she did not believe it was

healthy for the children to continue visiting with Grandparents because they needed time to heal

from the death of their son. Mother agreed that it would be important for the children to have a

relationship with Grandparents, but only if the relationship was a healthy one.

       {¶22} Grandparents did not have any contact with the children from November 2011

until December 13, 2012. On that date, the parties began the first of six agreed upon visitations

that concluded in April 2013. Four of the visits took place at restaurants and two of the visits

took place at Grandparents’ house. Mother was present for all six visits and testified that they

were uncomfortable for the children. She testified that, if visitation were to occur, the children

would be most comfortable in their own home with Grandparents coming to visit them.

       {¶23} Grandparents testified that losing their son was difficult for them, but that they

had joined a support group at church and were learning to cope with the loss. They indicated

that maintaining a relationship with the children was important to them and that they were

willing to make changes in order to make the children more comfortable.             For instance,

Grandparents agreed that they would either remove or cover the memorial cross they had outside

if it was a source of discomfort for the children.
                                               11


       {¶24} Michael Senger testified as the children’s guardian ad litem and filed several

reports with the court. Mr. Senger spoke with each of the children and observed one visit that

took place at Grandparents’ home. He testified that each of the children were initially either

ambivalent about visitation with Grandparents or in favor of it, but that, by the time of the

hearing, all of the children wanted their Mother to supervise any visits that occurred.

Nevertheless, Mr. Senger reported that the visit he observed at Grandparents’ home was a

positive one and the three younger children readily involved themselves in the activities that

Grandparents had planned. Mr. Senger specified that the eldest child was “aloof” during the visit

and frequently looked to Mother for guidance. Even so, Mr. Senger noted that Mother was

appropriate at all times during the visit, encouraged the children, and did not interfere with the

visitation. Mr. Senger recommended monthly visitation and indicated that he would support the

idea of alternating between Mother’s house and Grandparents’ house. He opined that visitation

would be in the children’s best interest.

       {¶25} The magistrate also interviewed the three eldest children on the first day of the

visitation hearing. The magistrate indicated that I.L., who was nine at the time of the hearing,

said she did “‘not really’” want to visit with Grandparents because they needed “‘time to heal’”

and were “‘a little bit mean.’” I.L. specified that Grandparents had yelled at Mother after Father

died and had pictures of Father in their house. I.L. stated that, if visitation were ordered, she

would want one visit every two months at her house with Mother present.

       {¶26} The magistrate indicated that H.L., who was eight at the time of the hearing,

stated that he was not in favor of visitation because seeing Grandparents made him think about

losing Father. He stated that, if visitation were ordered, he would only want to see Grandparents

a few times a year at his house with Mother present. Likewise, M.L, who was seven at the time
                                               12


of the hearing, testified that he did not want to have visitation, but that he would want any

visitation that did occur to happen at his house with Mother present. Even so, M.L. stated that he

had a good time when he recently visited his Grandparents at their house and his visits with them

never made him sad.

       {¶27} Having reviewed the record, we cannot conclude that the trial court abused its

discretion when it awarded Grandparents one, four-hour visit with the children each month. The

children had a great deal of contact with Grandparents before Mother and Father divorced and,

even after the divorce, continued to see Grandparents at least twice a week until Father died. See

R.C. 3109.051(D)(1). Mother fully acknowledged that the children had a loving relationship

with Grandparents and enjoyed spending time with them before Father’s death.              See id.

Although several unfortunate incidents occurred after Father’s death, those incidents took place

within a few months of his passing when emotions were running high. Grandparents set forth

evidence that they had reached out for help since that time.          See R.C. 3109.051(D)(9).

Additionally, they testified that they would be willing to make any adjustments that might make

the children more comfortable, such as moving or covering the memorial cross in their yard.

       {¶28} Mother and the children lived within ten minutes of Grandparents, and

Grandparents were retired, such that all the visits could be arranged around the children’s

schedule.   See R.C. 3109.051(D)(2), (3).        Because all four children would visit with

Grandparents at the same time, the visits would not cause the children to lose any time with one

another. See R.C. 3109.051(D)(8). All of the children were in good health, and there was no

evidence that Grandparents suffered from any serious health problems.                  See R.C.

3109.051(D)(7), (9). Additionally, there was no evidence that Grandparents had ever been

involved in the abuse or neglect of a child. See R.C. 3109.051(D)(12). Although Mother
                                                 13


expressed her concern that any visitation with Grandparents was still not healthy for the children,

see R.C. 3109.051(D)(15), there was evidence that Grandparents acted appropriately with the

children at all times during the six visits that took place after these proceedings commenced.

There was testimony that one of the six visits the parties had planned during these proceedings

had to be rescheduled due to illness. The parties were able to communicate and reschedule that

visit without incident. See R.C. 3109.051(D)(10).

       {¶29} Mr. Senger, the guardian ad litem, testified that the three younger children all

appeared to be enjoying themselves during their visit with Grandparents, and that the eldest

child, while aloof for much of the visit, also joined in after some time. By ordering the first four

visits between the children and Grandparents to take place at Mother’s home with Mother

present, the court provided for a transitional period that took the children’s wishes into account.

See R.C. 3109.051(D)(6). Although the court ordered that visits beyond the first four would take

place at Grandparents’ home without Mother being present, the court noted that Grandparents

were free to invite Mother to stay. It is clear from the record that all of the parties genuinely care

for the children. It was not, therefore, unreasonable for the trial court to expect Grandparents to

listen to the children and keep their welfare in mind when deciding whether or not to invite

Mother to stay for future visits. Having reviewed the entire record, we cannot conclude that the

trial court abused its discretion when it awarded Grandparents visitation.            Consequently,

Mother’s third assignment of error is overruled.

                                                 III.

       {¶30} Mother’s assignments of error are overruled. The judgment of the Wayne County

Court of Common Pleas is affirmed.

                                                                                 Judgment affirmed.
                                                14




       There were reasonable grounds for this appeal.

       We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Wayne, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.

       Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

       Costs taxed to Appellant.




                                                     EVE V. BELFANCE
                                                     FOR THE COURT



HENSAL, J.
WHITMORE, J.
CONCUR.


APPEARANCES:

RENEE J. JACKWOOD, Attorney at Law, for Appellant.

R. J. HELMUTH, Attorney at Law, for Appellees.
