[Cite as In re X.L., 2013-Ohio-2421.]


                                        COURT OF APPEALS
                                      LICKING COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT



                                                   JUDGES:
IN THE MATTER OF:                                  Hon. William B. Hoffman, P. J.
                                                   Hon. Sheila G. Farmer, J.
                                                   Hon. John W. Wise, J.

        X.L. and G.L.                              Case No. 13 CA 6


        MINOR CHILDREN                             OPINION




CHARACTER OF PROCEEDING:                       Civil Appeal from the Court of Common
                                               Pleas, Juvenile Division, Case Nos.
                                               C2008-0639 and C2008-0640


JUDGMENT:                                      Reversed and Remanded



DATE OF JUDGMENT ENTRY:                         June 10, 2013



APPEARANCES:

For Appellant Stephanie L.                     For Appellee

ERIC J. HOFFMAN                                 No Appearance
338 South High Street
Columbus, Ohio 43215

ADAM S. ELIOT
155 West Main Street, Suite 100
Columbus, Ohio 43215
Licking County, Case No. 13 CA 6                                                       2

Wise, J.

      {¶1}   Appellant Stephanie Lindenmayer appeals the decision of the Licking

County Court of Common Pleas, Juvenile Division, which denied her motion to modify

child visitation regarding her children, X.L. and G.L. Appellee Vernon Lindenmayer is

appellant's former spouse and the father of these two children. The relevant facts

leading to this appeal are as follows.

      {¶2}   Appellant is the mother of X.L., born in 1999, and G.L., born in 1997. In

August 2008, LCCS filed a complaint alleging the children were dependent under R.C.

2151.04. LCCS thereafter was awarded temporary custody. However, on December

30, 2009, the juvenile court granted legal custody of both children to appellee-father,

and later terminated the agency's involvement. The court has subsequently increased

its restrictions on appellant’s access to the children.

      {¶3}   On March 8, 2011, in a separate action, the parties were granted a final

decree of divorce. The domestic relations court ordered that jurisdiction over the

children would remain with the juvenile court.

      {¶4}   On November 19, 2012, appellant filed in the juvenile court a motion for

“modification of parental rights and responsibilities” seeking in the body of said motion

an award of parenting time, i.e., visitation with X.L. and G.L. On December 5, 2012, the

trial court issued a judgment entry suggesting that appellant’s motion would be denied

for, among other things, failing to allege a change of circumstances; however, the court

allowed the parties time to file memoranda.
Licking County, Case No. 13 CA 6                                                         3


      {¶5}   On December 20, 2012, appellant filed a memorandum of law arguing,

inter alia, that a change of circumstances was not required in order to have the court

review the issue of visitation. Appellant also filed an amended motion for visitation.

      {¶6}   On December 24, 2012, the trial court issued a judgment entry denying

appellant’s November 19, 2012 motion. On January 3, 2013, the trial court issued a

judgment entry denying appellant’s aforesaid amended motion.

      {¶7}   On January 14, 2013, appellant filed a notice of appeal as to both the

judgment entry of December 24, 2012 and the judgment entry of January 3, 2012. She

herein raises the following two Assignments of Error:

      {¶8}   “I. THE TRIAL COURT ERRED AS A MATTER OF LAW BY APPLYING

THE WRONG LEGAL STANDARD AND WRONG STATUTE WHEN IT REQUIRED

APPELLANT TO DEMONSTRATE A CHANGE OF CIRCUMSTANCES.

      {¶9}   “II.   THE TRIAL COURT ABUSED ITS DISCRETION IN DISMISSING

APPELLANT’S MOTION AND AMENDED MOTION WITHOUT CONDUCTING A

HEARING.”

                                                I.

      {¶10} In her First Assignment of Error, appellant contends the trial court erred in

requiring her to demonstrate a change of circumstances as a prerequisite to

considering her motion for parenting time, i.e., visitation. We agree.

      {¶11} As an initial matter, we note appellant concedes that she inappropriately

titled her motion of November 19, 2012 as a request for a modification of “parental

rights and responsibilities” rather than the more accurate term “parenting time.” See

Appellant’s Brief at 5. The Ohio Supreme Court has recognized that the term “parental
Licking County, Case No. 13 CA 6                                                       4


rights and responsibilities” is not defined by statute; however, the Court simultaneously

observed that the General Assembly changed the terms “custody and control” to

“parental rights and responsibilities” when it amended R.C. 3109.04 in 1991. See

Fisher v. Hagenjager, 116 Ohio St.3d 53, 876 N.E.2d 546, 2007-Ohio-5589, ¶ 22.

Thus, the trial court in this instance may well have initially interpreted appellant’s

motion as a motion for custody; however, our review of the motion indicates that the

main purpose of appellant’s said motion indeed was to attempt to modify her visitation

time with X.L. and G.L.

          {¶12} This Court has clearly held that there is generally no need to make a

showing that there has been a change in circumstances in order for a court to modify

visitation rights. See Luther v. Luther, Stark App.No. 2007 CA 00047, 2008-Ohio-1368,

f.n. 1, citing Braatz v. Braatz (1999), 85 Ohio St.3d 40, paragraph two of the syllabus.

Although Braatz stemmed from a divorce case, our research reveals that numerous

Ohio appellate courts have applied its aforesaid rule in appeals from juvenile courts.

See, e.g., In re J.S., Lake App.No. 2011–L–162, 2012-Ohio-4461, ¶ 29 (Eleventh

Dist.); In re Kaiser, Columbiana App.No. 04 CO 9, 2004-Ohio-7208, ¶ 33 (Seventh

Dist.); In re Hinkle Children, Butler App.No. CA2002-12-309, 2003-Ohio-5282, ¶ 9

(Twelfth Dist.); Given v. Sanzone, Summit App.No. 20264, 2001 WL 833396 (Ninth

Dist.).

          {¶13} We therefore find the trial court committed reversible error in denying

appellant’s motion to modify visitation on the basis of a lack of showing of change in

circumstances.

          {¶14} Appellant's First Assignment of Error is sustained.
Licking County, Case No. 13 CA 6                                                           5


                                             II.

      {¶15} In her Second Assignment of Error, appellant maintains the trial court

abused its discretion in not allowing a hearing on her motion and amended motion for

visitation. We agree.

      {¶16} An appellate court’s standard of review on a trial court's decision on a

motion for modification of visitation rights is that of abuse of discretion. Quint v.

Lomakoski, 167 Ohio App.3d 124, 854 N.E.2d 225, 2006-Ohio-3041 ¶ 12. The trial

court’s decision concerning the allowance of an evidentiary hearing on a visitation

motion is reviewed under the same standard. See Id. at ¶ 17.

      {¶17} Under the Civil Rules, motions are addressed in pertinent part in Civ.R.

7(B)(1), which states:

      {¶18} “An application to the court for an order shall be by motion which, unless

made during a hearing or a trial, shall be made in writing. A motion, whether written or

oral, shall state with particularity the grounds therefore, and shall set forth the relief or

order sought. The requirement of writing is fulfilled if the motion is stated in a written

notice of the hearing of the motion.”

      {¶19} In the case sub judice, the trial court also indicated that appellant’s motion

was lacking in that it did not sufficiently allege that a modification would be in the

children’s best interest and did not present any “new matters of relevance” (see

Judgment Entry, December 5, 2012, at 2).            Appellant thereafter claimed, in her

amended motion, that she had a new child with whom she hoped to establish visits

with X.L. and G.L. This Court has reiterated that “[t]he spirit of the Civil Rules is the

resolution of cases upon their merits, not upon pleading deficiencies.” Ingledue v.
Licking County, Case No. 13 CA 6                                                           6

Premier Siding and Roofing, Inc., Delaware App.No. 2005CAE120088, 2006-Ohio-

5977, ¶ 16, quoting Peterson v. Teodosio (1973), 34 Ohio St.2d 161, 175, 297 N.E.2d

113 [63 O.O.2d 262, 269]. Furthermore, we note appellee-father has not filed a brief in

response to this appeal. App.R. 18(C) states in pertinent part: “If an appellee fails to file

the appellee’s brief within the time provided by this rule, or within the time as extended,

the appellee will not be heard at oral argument * * * and in determining the appeal, the

court may accept the appellant'/s statement of the facts and issues as correct and

reverse the judgment if appellant's brief reasonably appears to sustain such action.”

      {¶20} Under the circumstances presented, we hold appellant should have been

afforded a full hearing on her motion for visitation, and the trial court abused its

discretion in denying said motion without such hearing.

      {¶21} Accordingly, appellant's Second Assignment of Error is sustained.

      {¶22} For the reasons stated in the foregoing opinion, the decision of the Court

of Common Pleas, Juvenile Division, Licking County, Ohio, is hereby reversed and

remanded for further proceedings in accordance with law.

By: Wise, J.

Hoffman, P. J., and

Farmer, J., concur.

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                                                                  JUDGES
JWW/d 0524
Licking County, Case No. 13 CA 6                                                7


            IN THE COURT OF APPEALS FOR LICKING COUNTY, OHIO
                        FIFTH APPELLATE DISTRICT




IN THE MATTER OF:                          :
                                           :
      X.L. AND G.L.                        :         JUDGMENT ENTRY
                                           :
      MINOR CHILDREN                       :         Case No. 13 CA 6




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

judgment of the Court of Common Pleas, Juvenile Division, Licking County, Ohio, is

reversed and remanded for further proceedings consistent with this opinion.

      Costs assessed to appellee.




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                                                               JUDGES
