[Cite as Cain v. Cain, 2018-Ohio-3014.]


                                    IN THE COURT OF APPEALS

                                 ELEVENTH APPELLATE DISTRICT

                                      PORTAGE COUNTY, OHIO


 JULIE M. CAIN,                                   :         OPINION

                   Plaintiff-Appellee,            :
                                                            CASE NO. 2017-P-0085
         - vs -                                   :

 JOHN A. CAIN,                                    :

                   Defendant,                     :

 LYNNE BENEK, et al.,                             :

                   Third Party                    :
                   Intervenor-Appellant.


 Appeal from the Portage County Court of Common Pleas, Domestic Relations Division,
 Case No. 2009 DR 000597.

 Judgment: Affirmed.


 Michael A. Noble, Lentz, Noble & Heavner, LLC, 228 West Main Street, Ravenna, OH
 44266 (For Plaintiff-Appellee).

 Lynne L. Benek, pro se, 237 Sobul Avenue, Akron, OH                44305 (For Third Party
 Intervenor-Appellant).



THOMAS R. WRIGHT, P.J.


        {¶1}      Appellant, Lynne Benek, appeals the denial of her motion for custody of her

minor grandchild, E.C. She asserts that appellee, Julie M. Cain, E.C.’s mother is not a

suitable parent, and that it is in E.C.’s best interest for her to have custody. We affirm.
       {¶2}     Appellant is John A. Cain’s mother. John and appellee were marred for

approximately three years and had one child, E.C. Before the birth of their daughter,

John and appellee separated because John was having mental problems and was prone

to abusive behavior. In May 2011, a stipulated final divorce was entered naming appellee

residential parent and legal custodian. John was granted visitation rights with supervision

by appellant.

       {¶3}     Within two years of divorce, John and appellee became embroiled in a

series of disagreements regarding John’s visitation, his treatment of E.C., and the effect

appellee’s boyfriend was having upon E.C.’s welfare. At some point, E.C. accused John

of engaging in sexual behavior with her. Thus, appellee unilaterally stopped John’s

visitation. An investigation was conducted, but no independent evidence was found

corroborating E.C.’s accusation. Appellee did not move to terminate visitation and after

John filed a contempt motion, supervised visitation continued.

       {¶4}     Although appellee initially lived with her parents following the divorce, she

and E.C. later resided with her boyfriend. At some point, appellee and her boyfriend had

a physical altercation resulting in a domestic violence charge against him. Because the

altercation occurred in E.C.’s presence, John moved for a change of custody. The motion

became moot when appellee agreed to not allow any further contact between E.C. and

the boyfriend.

       {¶5}     Approximately six months later, appellee violated the agreement when she

posted photographs on social media showing E.C. with her and her boyfriend. A short

time after that, appellee married her boyfriend and took E.C. to again live with him. This

led appellant, E.C.’s paternal grandmother, to move for emergency temporary legal




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custody, asserting that it was unsafe for E.C. to cohabitate with appellee’s new husband.

Following an evidentiary hearing, appellant’s motion was granted and the child lived with

appellant for nine months.

      {¶6}   As temporary legal custodian, appellant moved to intervene in the divorce

proceeding. After that motion was also granted, she moved for permanent custody,

maintaining that appellee was consistently denying John visitation by asserting false

accusations. Before a separate hearing was held, appellee moved to her parents’ home

because of a second domestic violence altercation with her then husband. Accordingly,

at the outset of the next hearing, she orally moved for custody on the grounds that, since

she planned to bring a separate divorce action against her husband, E.C. would no longer

have contact with him.

      {¶7}   Finding that appellant did not prove appellee to be unfit, the trial court

overruled her motion for permanent custody and ordered legal custody of E.C. to

appellee, so long as appellee continues to reside with her parents. As to John, the court

reaffirmed supervised visitation. Appellant appealed this decision. We affirmed. Cain v.

Cain, 11th Dist. Portage No. 2016-P-0011, 2017-Ohio-708.

      {¶8}   In April 2017, appellant again moved for permanent custody alleging

appellee to be unfit because she refused to show any respect for visitation rights. In

support, appellant referred to a new confrontation between the two families, but otherwise

she relied primarily upon events that the court had already considered in deciding prior

motions.

      {¶9}   Before appellant’s motion was heard, John submitted two motions. First,

he moved for contempt on the grounds that appellee was refusing to comply with the trial




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court’s order relating to summer visitation. Second, he moved for a change of custody,

arguing that a change of circumstances occurred due to appellee’s consistent refusal to

honor his visitation rights. As alternative relief under the second motion, John requested

unsupervised visitation.

       {¶10} An evidentiary hearing on all pending motions was held September 5, 2017,

during which the trial court heard testimony from John, appellee, and appellant. As to

John’s contempt motion, the trial court overruled it on the basis that, even though appellee

had “technically” failed to follow certain visitation orders, her conduct was not willful or

wanton. As to the two motions for change of custody, the court denied both on the basis

that neither John nor appellant proved a change in circumstances. However, John’s

alternative request that future visitation with E.C. be unsupervised was granted. In

addition, the court dismissed appellant as a party to the divorce case.

       {¶11} In bringing this second appeal, appellant assigns the following as error:

       {¶12} “[1.] The trial court committed error in removing Lynne Benek as a third party

intervener in the case.

       {¶13} “[2.] The trial court committed error when not making a change in the

custodian of E.C.”

       {¶14} Appellant’s second assignment will be addressed first. In arguing that she

should be granted legal custody of E.C. because appellee is unfit, appellant asserts that

appellee is constantly engaging in behavior that harms John’s relationship with E.C.

According to her, appellee would not allow John to see E.C. as often as mandated under

the trial court’s visitation orders.

       {¶15} As this court noted in appellant’s first appeal, the standard for determining




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motions to modify custody between the two parents does not apply when the individual

seeking custody is not a parent:

       {¶16} “When a non-parent seeks to replace a parent as the legal custodian of a

minor child, the parent’s fundamental right to raise her own child is invoked. Baker v.

Baker, 113 Ohio App.3d 805, 810, 682 N.E.2d 661 (9th Dist.1996), quoting In re Perales,

52 Ohio St.2d 89, 96, 369 N.E.2d 1047 (1977). As a result, a higher standard must be

satisfied before the non-parent can prevail; i.e., the parent must retain custody unless she

is found to be unsuitable. Ives v. Ives, 9th Dist. Lorain No. 02CA008176, 2003-Ohio-

3505, ¶13. ‘Suitability or lack thereof, essentially measures the harmful effect of the

custody on a child.’ Id.” Cain, 2017-Ohio-708, at ¶32.

       {¶17} In support of her contention that appellee refused to follow visitation orders,

appellant notes that she and John testified as to two specific instances. First, they both

stated that appellee would not allow John to see E.C. one extra day each week under a

September 2016 visitation order. Second, John testified that, after the trial court ordered

standard visitation, appellee refused to give him four weeks of summer visitation.

       {¶18} As to the extra day visitation, appellee testified that John did not contact her

and tell her which day he wanted as the extra day. As to the summer visitation, she

testified that after she and her attorney made an offer concerning when John could have

E.C. during the summer, he did not respond. Thus, visitation was not due to nefarious

acts on her part, but primarily due to John’s failure to communicate.

       {¶19} In relation to the extra day of visitation, appellant testified that she sent a

text to appellee on John’s behalf, specifically asking what day of the week John could

have E.C. and that appellee did not respond. Appellee denied receiving the text, and




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appellant failed to produce evidence verifying that it was sent.

       {¶20} As a separate point regarding appellee’s compliance with visitation,

appellant has attached to her appellate brief an affidavit in which she avers as to

appellee’s refusal to cooperate with visitation. But, that affidavit was not before the trial

court when it rendered its decision and it cannot be considered on appeal. State v.

Ishmail, 54 Ohio St.2d 402, 377 N.E.2d 500 (1978), paragraph one of the syllabus.

       {¶21} Most of appellant’s testimony focused upon a soccer game where appellee

or her father told E.C. not to hug appellant or show her affection. This, however, even

when considered in the context of appellee’s other conduct, does not show appellee to

be unfit. Therefore, as the trial court did not err in denying appellant’s motion to modify

custody, her second assignment lacks merit.

       {¶22} Turning back to appellant’s first assignment, she asserts that her dismissal

from the case as a third-party intervenor was unjustified when her presence could still be

beneficial to E.C. However, with custody decided in appellee’s favor and John having

unsupervised visitation, appellant continuing as a party would serve no purpose.

Appellant’s first assignment also lacks merit.

       {¶23} The judgment of the Portage County Court of Common Pleas, Domestic

Relation’s Division, is affirmed.



TIMOTHY P. CANNON, J., concurs,

DIANE V. GRENDELL, J., concurs in judgment only.




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