[Cite as Tinch v. Seward, 2022-Ohio-3276.]

 

IN THE COURT OF APPEALS

TWELFTH APPELLATE DISTRICT OF OHIO

MADISON COUNTY

SHAWNA TINCH,

Appellee,

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JAMES SEWARD,

Appellant.

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CASE NO. CA2021-12-023

O P I N I O N

9/19/2022

APPEAL FROM MADISON COUNTY COURT OF COMMON PLEAS

JUVENILE DIVISION

Case No. 22140035

Shawna Tinch, pro se.

Law Offices of Mark J. Miller, LLC, and Mark J. Miller, for appellant.

M. POWELL, P.J.

{¶ 1} Appellant, James Seward ("Father"), appeals a decision of the Madison 

County Court of Common Pleas, Juvenile Division, granting legal custody of his minor child 

to the child's mother, appellee, Shawna Tinch ("Mother").

{¶ 2} On May 20, 2021, Mother moved for legal custody of the child and further 

sought an order of ex parte emergency custody. On May 27, 2021, the juvenile court 
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granted emergency custody to Mother and scheduled the matter for a pretrial hearing on 

June 24, 2021. The juvenile court's entry specifically noted that the purposes of a pretrial 

hearing were "(1) to determine if the matter can be settled without a full hearing; (2) to 

determine how much Court time will be required for the full hearing if the matter cannot be 

settled by agreement between the parties (i.e. how many witnesses you will have and what 

documentary and tangible evidence you will submit); and (3) to address any need for 

temporary orders."

{¶ 3} On June 18, 2021, Father's counsel moved the juvenile court for a 

continuance of the pretrial hearing, stating he had recently been retained by Father and had 

a previously scheduled conflict in another county on June 24, 2021. The juvenile court 

granted the motion and rescheduled the pretrial hearing to July 22, 2021. On July 15, 2021, 

the juvenile court sua sponte rescheduled the pretrial hearing to August 3, 2021. On July 

22, 2021, Father's counsel moved the juvenile court for a continuance of the pretrial hearing, 

stating he had a previously scheduled conflict in another county; counsel suggested 

September 14, 2021, as an alternative date to conduct the pretrial hearing. The juvenile 

court did not rule on the motion. 

{¶ 4} On August 3, 2021, the matter proceeded to a pretrial hearing before a 

magistrate. Neither Father nor his counsel attended. The hearing was brief. Upon 

confirming that Mother was the child's natural mother and was unmarried at the time of the 

child's birth, the magistrate granted legal custody of the child to Mother pursuant to R.C. 

3109.042.

1

 On August, 25, 2021, the magistrate's decision was journalized in an entry and 

1. Mother and Father were never married to each other. As a result, Mother is deemed the sole residential 

parent and legal custodian of the child by operation of law pursuant to R.C. 3109.042. Specifically, that statute 

states: "An unmarried female who gives birth to a child is the sole residential parent and legal custodian of 

the child until a court of competent jurisdiction issues an order designating another person as the residential 

parent and legal custodian. A court designating the residential parent and legal custodian of a child described 

in this section shall treat the mother and father as standing upon an equality when making the designation."
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then adopted by the juvenile court as an order of the court in a separate entry. Two days 

later, Father filed a Civ.R. 60(B) motion to set aside the juvenile court's legal custody

judgment. On September 23, 2021, the magistrate summarily denied Father's motion 

without a hearing. 

{¶ 5} Father filed objections to the magistrate's denial of his Civ.R. 60(B) motion, 

which were overruled by the juvenile court on November 23, 2021. In overruling Father's 

objections, the juvenile court stated that (1) Father had notice of the August 3, 2021 pretrial 

hearing, (2) the juvenile court had not ruled upon Father's motion to continue the August 3, 

2021 pretrial hearing, (3) the court "has had continuous issues with attorneys assuming a 

Motion for a Continuance will be automatically granted," (4) consequently, the court "has 

adopted a strict policy on this issue to move forward unless an Order to continue the case 

has been issued," and (5) "[i]t is the responsibility of the parties and their attorneys to appear 

for all hearings unless continued by Court Order."

{¶ 6} Father now appeals, raising two assignments of error.

{¶ 7} Assignment of Error No. 1:

{¶ 8} THE TRIAL COURT ABUSED ITS DISCRETION IN OVERRULING 

APPELLANT'S MOTION FOR A CONTINUANCE OF THE PRETRIAL, AND THEN 

PROCEEDING TO AWARD LEGAL CUSTODY TO APPELLEE AT THE PRETRIAL IN 

THE ABSENCE OF APPELLANT AND HIS COUNSEL.2

{¶ 9} Father argues that the juvenile court abused its discretion in failing to grant

his motion to continue the August 3, 2021 pretrial hearing and in subsequently proceeding 

to grant legal custody of the child to Mother during the pretrial hearing in Father's absence. 

2. Father's first assignment of error states that the juvenile court erred in overruling his motion to continue. 

As stated above, the court never ruled upon the motion. However, it is well established that where a trial court 

fails to rule on a motion, an appellate court will presume that the trial court overruled the motion. Willis v. 

Willis, 149 Ohio App.3d 50, 2002-Ohio-3716, ¶ 68 (12th Dist.).
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Father asserts the following: the case had been pending only for a few months, having been 

filed on May 20, 2021; Mother was awarded temporary legal custody of the child on May 

27, 2021; the July 22, 2021 pretrial hearing was rescheduled sua sponte by the juvenile 

court; Father had a legitimate reason for seeking the continuance as his attorney had a 

previously scheduled conflict in another county; the continuance was sought in a timely 

manner (i.e., only seven days after the juvenile court's sua sponte continuance); and Father 

sought a continuance of only a few weeks (i.e., from August 3, 2021, to September 14, 

2021). Father further asserts that the juvenile court's judgment granting legal custody of 

the child to Mother without notice that such an order may result from the pretrial hearing 

and without affording him an opportunity to be heard on the matter was a denial of 

procedural due process.

{¶ 10} The decision to grant or deny a continuance is within the sound discretion of 

a trial court. Reed v. Triton Servs., Inc., 12th Dist. Clermont No. CA2018-07-049, 2019-

Ohio-1587, ¶ 16. An abuse of discretion implies that the juvenile court's decision was 

unreasonable, arbitrary, or unconscionable. In re E.H., 4th Dist. Hocking No. 21CA6, 2022-

Ohio-2417, ¶ 10. The abuse-of-discretion standard is deferential and does not permit an 

appellate court to simply substitute its judgment for that of the trial court. Id. 

{¶ 11} In ruling upon a motion for a continuance, the trial court balances the court's 

right to control its docket and the public's interest in a prompt and efficient judicial system 

with the possibility of prejudice to the defendant. State v. Unger, 67 Ohio St.2d 65, 67

(1981); In re R.S., 12th Dist. Butler No. CA2011-03-053, 2011-Ohio-4247, ¶ 16. In 

evaluating a motion for a continuance, a court may consider the following: the length of the 

delay requested; whether other continuances have been requested and received; the 

inconvenience to litigants, witnesses, opposing counsel, and the court; whether the 

requested delay is for legitimate reasons or whether it is dilatory, purposeful, or contrived;
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whether the defendant contributed to the circumstance which gives rise to the request for a 

continuance; and other relevant factors, depending on the facts of the case. Unger at 67-

68.

{¶ 12} Considering that the case involves a child custody issue, that courts must act 

expeditiously in child custody determination, and that the pretrial hearing had been 

continued twice previously, we find no abuse of discretion in the juvenile court's failure to 

grant Father's motion to continue the pretrial hearing and its decision to proceed with the 

pretrial hearing on August 3, 2021. However, based upon the facts of this case, we find 

that the juvenile court's judgment granting legal custody of the child to Mother without notice 

that such an order may result from the pretrial hearing and without affording Father an 

opportunity to be heard on the matter was a denial of procedural due process. 

{¶ 13} "It is well recognized that the right to raise a child is an 'essential' and 'basic' 

civil right." In re Hayes, 79 Ohio St.3d 46, 48 (1997). Furthermore, a parent's right to the 

custody of his or her child is "paramount" and one of the oldest fundamental liberty interests 

recognized by American courts. Id.; In re A.N.B., 12th Dist. Preble No. CA2012-12-017, 

2013-Ohio-2055, ¶ 13.

{¶ 14} The cornerstone of procedural due process is the opportunity for a fair hearing 

appropriate to the nature of the case, granted at a meaningful time and in a meaningful 

manner. Boddie v. Connecticut, 401 U.S. 371, 378, 91 S.Ct. 780 (1971). Due process of 

law "implies, in its most comprehensive sense, the right of the person affected thereby to 

be present before the tribunal which pronounces judgment upon a question of life, liberty or 

property, to be heard, by testimony or otherwise, and to have the right of controverting, by 

proof, every material fact which bears on the question of the right involved." Williams v. 

Dollison, 62 Ohio St.2d 297, 299 (1980).

{¶ 15} Mother moved for legal custody of the parties' child in May 2021. On May 27, 
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2021, the juvenile court granted Mother temporary legal custody of the child and scheduled 

the matter for a pretrial hearing. In its entry, the court specifically noted that the purposes 

of the pretrial hearing were three-fold: (1) to determine whether the issue of the child's legal 

custody could be settled without a full hearing, (2) to determine how much time a full hearing 

would require in the event the matter could not be settled by agreement between the parties, 

and (3) to address any need for temporary orders. The pretrial hearing was subsequently 

rescheduled twice, once upon Father's motion for a continuance and once sua sponte by 

the juvenile court. Neither the juvenile court's May 27, 2021 Entry and Notice of Hearing 

nor its subsequent continuance entries notified the parties of the court's "strict policy to 

move forward unless an Order to continue the case has been issued," or that failure to 

attend the pretrial hearing would result in a default judgment. Then, on August 3, 2021, the 

magistrate unilaterally converted the scheduled pretrial hearing into a legal custody hearing, 

thereby granting legal custody of the child to Mother. Notwithstanding the fact Mother was 

the sole residential parent and legal custodian of the child by operation of law pursuant to

R.C. 3109.042, Father's failure to attend the August 3, 2021 pretrial hearing was the basis 

for the magistrate converting the pretrial hearing and proceeding to award legal custody of 

the child to Mother.

{¶ 16} In a case involving a children's services agency's motion for permanent 

custody and a mother's failure to appear at a scheduled pretrial review hearing on the 

motion, we reversed a juvenile court's default judgment against the mother and grant of 

permanent custody to the agency. In re C.M., 12th Dist. Butler No. CA2014-10-204, 2015-

Ohio-1702. In that case, although the mother knew about the pretrial hearing, she had not 

been provided notice that permanent custody would be addressed at the pretrial hearing. 

In reversing the juvenile court's decision, we held that "the juvenile court's decision to 

unilaterally convert the scheduled review hearing into a permanent custody hearing, thereby 
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awarding permanent custody to BCDJFS, violated appellant's due process rights." Id. at ¶ 

11. "The additional burden of following the case schedule and resolving the permanent 

custody matter after providing appellant with notice of the evidentiary hearing is necessary 

in light of the paramount rights involved in a permanent custody case." Id.

{¶ 17} The same reasoning applies here. While the case at bar is a legal custody 

case and not a permanent custody case involving the termination of parental rights, Father 

had a due process right to notice that the juvenile court would consider an award of legal 

custody to Mother at the pretrial hearing if he failed to appear at the hearing. The juvenile 

court's decision to unilaterally convert the scheduled pretrial hearing into a legal custody 

hearing, thereby awarding legal custody of the child to Mother without adequate notice to 

the parties and without affording Father an opportunity to be heard on the matter was a 

denial of procedural due process.

3

 Therefore, based upon the facts of this case, the juvenile 

court erred by awarding Mother legal custody of the child at the August 3, 2021 pretrial 

hearing. 

{¶ 18} We reverse and vacate the juvenile court's August 25, 2021 judgment 

awarding legal custody of the child to Mother and remand the case to the juvenile court to 

consider Mother's legal custody motion according to law and consistent with this opinion.

{¶ 19} Father's first assignment of error is sustained.

{¶ 20} Assignment of Error No. 2:

{¶ 21} THE TRIAL COURT ABUSED ITS DISCRETION IN OVERRULING 

APPELLANT'S TIMELY FILED CIVIL RULE 60(B) MOTION TO SET ASIDE THE TRIAL 

COURT'S JUDGMENT AWARDING LEGAL CUSTODY TO APPELLEE.

3. In so holding, we do not condone Father's failure to appear and participate in the August 3, 2021 pretrial 

hearing. The juvenile court could have sanctioned Father for his failure to appear. However, entering 

judgment in Mother's favor without notice to Father was not a proper sanction.
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{¶ 22} Father argues the juvenile court abused its discretion in denying his Civ.R. 

60(B) motion. The motion asserted that Father's failure to attend the August 3, 2021 pretrial 

hearing was excusable neglect due to his counsel's scheduling conflict. Our ruling on the 

first assignment of error renders this assignment of error moot and it need not be 

considered. App.R. 12(A)(1)(c); In re J.C.B., 12th Dist. Butler No. CA2022-02-019, 2022-

Ohio-3098.

{¶ 23} Judgment vacated and remanded.

PIPER and BYRNE, JJ., concur.