[Cite as Hartman v. Hartman , 2019-Ohio-177.] 

# Court of Appeals of Ohio

EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION No. 107251

TAMAR A. HARTMAN

PLAINTIFF-APPELLEE

vs.

DALE M. HARTMAN

DEFENDANT-APPELLANT

JUDGMENT:

AFFIRMED

Civil Appeal from the Cuyahoga County Court of Common Pleas Domestic Relations Division

Case No. DR-15-360167

BEFORE: E.T. Gallagher, P.J., Laster Mays, J., and Celebrezze, J.

RELEASED AND JOURNALIZED: January 17, 2019FOR APPELLANT Dale M. Hartman, pro se 2195 South Green Road University Heights, Ohio 44121

ATTORNEY FOR APPELLEE Mary Sotera Weston Hurd, L.L.P. The Tower at Erieview 1301 East 9th St., Suite 1901 Cleveland, Ohio 44114

EILEEN T. GALLAGHER, P.J.: {¶1} This cause came to be heard on the acceler ated calendar pursuant to App.R. 11.1 and Loc.R. 11.1. Defendant-appellant, Da le M. Hartman (“a ppellant”), appeals pr o se from the trial court’s modification of the parenting plan he sh ared with plaintiff-appellee, Tamar Hartman. He raises the following assignments of error for review: 1. The trial court erred in issuing a void post decree entry when there was no pending justiciable controversy.

2. The domestic relations court violated appellant’s right to due process. {¶2} After careful review of the record and relevant case law, we affirm the trial court’s judgment. I. Procedural and Factual History {¶3} Appellant and appellee we re married in March 2002. They have two minor children together. In December 2015, appellee f iled a complaint against appellant, seeking a divorce, allocation of parental rights and responsibilities, child support, spousal support, mutual restraining orders, and attorney fees.{¶4} On April 28, 2017, the trial cour t ordered the parties to “p articipate in the court’s case management services and cooperate with the forensic case manager, the children’s mental-health providers, and othe r religious and medical profe ssionals to resolve parenting disputes including, but not limited to, issues of communication and transitions between households.” The order further provided that th e parties’ compliance with the case management services would be administratively review ed by the trial court on December 4, 2017. {¶5} On May 31, 2017, the trial court issued a decree of divorce, which granted the parties a divorce and incorporated the parties’ agreed-upon sepa ration agreement and parenting plan. Relevant to this appeal, the parenting plan set forth a parenting time schedule and required the parties to communicate with each other by us ing a program called “Our Family Wizard.” The plan further required the parties to continue its use of the domestic relations case management services and parenting c oordinator, Dr. Heather Bohn. Finally, the parties were ordered to make

“in kind” contributions for thei r children’s education, uninsured medical expenses, uninsured psychological expenses, and ex tracurricular activity expenses. {¶6} On December 4, 2017, the trial c ourt ordered the parties to appear for administrative review of the case management services as set forth in th e court’s April 28, 2017 order. Following an attorney conference held on Febr uary 21, 2018, the trial court issued a judgment entry, dated May 1, 2018, which requi red the parties to comply with the following modifications to the parenting plan: 1. Both parents shall check [Our Family Wizard] daily and when they receive notifications of new message s. Text messages and phone calls are reserved for emergency. 2. The parenting time schedule should be adhered to with bot h parents sending both children to the other parent at exchanges per the court ordered times. Deviations in the schedule must be di scussed beforehand, including an [OurFamily Wizard] message 48 hours before Shabbos, if the change will occur on Shabbos and 24 hours before the change on weekdays. An exception would be if an emergency occurs or me dical care is required, then the parent should notify as soon as he/she is able.

3. If the children will be absent from school, the parent who is aware of the absence should let the other parent know through [Our Family Wizard] before 12 p.m. on the day of the absence. 4. If there will be a deviation in pick up or drop off, including time or location, let the other parent know immediately when the information is obtained and by at least 24 hours before the change. If the change is due to sickness and school absence, notify the other parent by 12 p.m . of the change when the parent is notified of the child’s absence. 5. If the children will have an extracurricular activity or event during the other parent’s time, please let the other parent know immediately or within 24 hours of the event. 6. If a major change will be made in the children’s school schedule or educational programming, please let the other parent know within 24 hours of being notified about the information.

7. If there is no school or the childre n miss school, the afte r school parent time pick up should occur at 3 p.m. If there will be a deviation in this time, please communicate on [our Family Wizard] immedi ately and with more than 24 hours’ notice. 8. If a doctor’s appointment is made fo r the children, let the other parent know when it is made on [Our Family Wizard ]. Within 24 hours after the doctor’s appointment occurs, update the other pare nt about the outcome and summary of the appointment. An exception would be an emergency medical event that requires one’s attention to the children and immediate notification as soon as a parent is able. 9. Father shall continue to call the children at 8 p.m. Mother shall instruct the children to answer the telephone. If the children do not wish to talk, they can inform their father themselves. Father shall respect the child’s preference. Father should then address th is issue with Dr. Miller. 10. Neither parent shall expose the child ren to [Our Family Wizard] messages. Ensure that the children are not reading the messages. 11. If the children miss parenting time due to one parent’s beha vior, that parent shall offer make up time.12. Treatment with Dr. Mille r shall continue. Both parents should make sure this occurs. 13. Mother shall sign releases to allow Dr. Eilback to communicate with Father. Said communication with Father can be a method chosen by Dr. Eilback. Mother shall request that Dr. Eilback communicate with Father after or during appointments. 14. Cost for Dr. Miller is shared by the parents per the divorce decree, regardless of who attends sessions. Dr. Miller can structure the sessions as he recommends.

15. The children are not to be involved in adult matters or fina ncial issues such as therapy being cancelled. They do not need to know who canceled therapy or why. {¶7} Appellant now appeals from th e trial court’s judgment. II. Law and Analysis

A. Administrative Review of Case Management Services {¶8} In his first assignment of e rror, appellant argues the trial court erred in issuing a void post-decree entry when there was no pending justicia ble controversy. Appella nt contends that at

the time the trial court issued its May 1, 2018 judgment entry, the court lacked continuing jurisdiction to make “substantia l changes regarding parenting time, phone class, healthcare and support.” {¶9} When reviewing the propriety of a trial court’s determination in a domestic relations case, an appellate court generally app lies an abuse of di scretion standard. Booth v. Booth , 44 Ohio St.3d 142, 144, 541 N.E.2d 1028 (1989). An abuse of discretion is evident where the trial court’s judgment is unreasonable, arbitrary, or unconscionable . Blakemore v. Blakemore , 5 Ohio St.3d 217, 450 N.E.2d 1140 (1983). {¶10} On appeal, appellant does not dispute the merits of the specific provisions

contained in the modification or der and concedes that “some portions” of the judgment arefavorable to him. Nevertheless, he maintains that “absent an extraordinary emergency situation,” the trial c ourt lacked jurisdiction to enter the May 31, 2018 judgment entry and, therefore, the entry is voi d and must be reversed. {¶11} R.C. 3109.04(E)(1) sets forth the procedure for modifying a prior decree allocating parental rights and responsibilities for the care of children. R.C. 3109.04 (E)(1)(a) provides, in relevant part: The court shall not modify a prior d ecree allocating parental rights and responsibilities for the care of children unl ess it finds, based on facts that have arisen since the prior decree or that we re unknown to the court at the time of the prior decree, that a change has occurred in the circumstances of the child, the child’s residential parent, or either of the parents subject to a shared parenting decree, and that the modification is necessary to serve the best interest of the child. {¶12} Thus, “when a court modifies a prior decree allocating parental rights and responsibilities, which includes a change in the de signation of the reside ntial parent or legal custodian, the court must find that a change in circumstance has occurred.” Picciano v. Lowers , 4th Dist. Washington No. 08CA38, 2009-Ohio-3780, ¶ 20, citing Fisher v. Hasenjager , 116 Ohio St.3d 53, 2007-Ohio-5589, 876 N.E.2d 546, ¶ 26. If a chan ge of circumstances is demonstrated, the trial court must then determine whether the “modification is necessary to serve the best interest of the child.” R.C. 3109.04(E)(1)(a). {¶13} Conversely, R.C. 3109.04(E)(2) sets forth th e procedure for modifying the terms of a plan for shared parenting. Relevant to this appeal, R.C. 3109.04(E)(2)(b) provides: The court may modify the terms of the plan for shared parenting approved by the court and incorporated by it into the shared parenting decree upon its own motion at any time if the court determines that the modifications are in the best interest of the children or upon the request of one or both of the parents under the decree. Modifications under this division may be made at any time. The court shall not make any modification to the plan under this division, unless the modification is in the best interest of the children.(Emphasis added.) {¶14} “R.C. 3109.04(E)(1)(a) and 3109.04(E)(2)(b) c ontain significantly different

standards for modifications.” Fisher at ¶ 32. “Division (E)(2)(b) does not require that the

threshold determination of a chan ge in circumstances be met.” Gunderman v. Gunderman, 9th Dist. Medina No. 08CA0067-M, 2009-Ohio-3787, ¶ 11. Rather, the trial court need only find that the modification of a term in the shared parenting plan is in the best interest of the child.

Fisher at ¶ 33.

{¶15} In this case, the trial court’s judgment did not modify a prior decree allocating parental rights and responsibilities. See R.C. 3109.04(E)(1). Rather, the trial court’s judgment modified, or expounded upon, certain terms of the parenting plan that were incorporated into the divorce decree. Thus, our review is guided by R.C. 3109.40(E)(2)(b). {¶16} After careful consideration, we find the tr ial court did not abus e its discretion in modifying the terms of the parenting plan. C ontrary to appellant’s arguments on appeal, the domestic relations court had juri sdiction to make the subject m odifications “upon its own motion at any time” pursuant to R.C. 3109.04(E)(2)(b). In th is case, it is apparent from the record that the trial court believed it was in the best interests of the children to modify the terms of the original parenting plan in order to provide the parties with additional, more specific instructions regarding their communications and expectations . The additions, or modifications, to the parenting plan were made in an effort to resolve many of the confrontations that arose before the case management parenting coor dinator following the execution of the divorce decree. The order seeks to promote common decency amongst the parties during the interactions and communications that are inherently necessary when raising children pursuant to a sharedparenting plan. Under these ci rcumstances, we conclude that the trial court did not err in modifying the terms of the parties’ pare nting plan. {¶17} Appellant’s first assignme nt of error is overruled.

B. Due Process {¶18} In his second assignment of e rror, appellant argues the tr ial court violated his right to due process by issuing the May 1, 2018 entry w ithout holding a hearing or providing appellant with the opportunity to be heard. Appellant contends th at although he agreed to case management services, he did not agree to allow the court to use case management services to make orders without notice, without the opportunity to be heard, and without judicial process. {¶19} “The fundamental ‘requirement of due process in any proceeding * * * is notice reasonably calculated, under all the circumstances, to apprise intere sted parties of the pendency of the action and afford them an opport unity to present their objections.’” In re A.G. , 139 Ohio St.3d 572, 2014-Ohio-2597, 13 N.E.3d 1146, ¶ 64, quoting Armstrong v. Manzo , 380 U.S. 545, 550, 85 S.Ct. 1187, 14 L.Ed.2d 62 (1965), and Mullane v. Cent. Hanover Bank & Trust Co. , 339 U.S. 306, 314, 70 S.Ct. 652, 94 L.Ed. 865 (1950). {¶20} Our review of the record re veals that although an evidentiary hearing was not held, appellant was provided w ith notice and an opportunity to be heard and was not deprived of due process in this matter. As previously state d, the divorce decree required the parties to use the court’s case management services and cooperate with the paren ting coordinator in a continued effort to improve communication and transiti ons between the households. On December 5, 2017, the parties each received notice that a h earing for administrative review of their participation in the court’s cas e management services was se t for April 30, 2018. The record reflects, however, that before the scheduled hearing occurred, an attorney conference wasscheduled for February 21, 2018. Following this conference, the modifi cation judgment entry

was issued. While the record does not contain in formation pertaining to the specific arguments posed during the attorney conference, it is evident that appellant’s interests were zealously represented given appellant’s ad mission on appeal that portions of the court’s judgment are

favorable to him. {¶21} Accordingly, appellant’s second a ssignment of error is overruled. {¶22} Judgment affirmed. It is ordered that appellee recove r from appellant costs herein taxed.

The court finds there were reas onable grounds for this appeal. It is ordered that a special mandate be sent to the Cuyahoga County Court of Common Pleas, Domestic Relations Division, to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appella te Procedure.

EILEEN T. GALLAGHER, PRESIDING JUDGE ANITA LASTER MAYS, J., and FRANK D. CELEBREZZE, JR., J., CONCUR