COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 59816 MAUREEN AVOLIO, FKA NEIDES : : : PLAINTIFF-APPELLANT : JOURNAL ENTRY : v. : AND : EDMUND F. AND LINDA C. AVOLIO : OPINION : : NEW PARTY DEFENDANTS- : APPELLEES : DATE OF ANNOUNCEMENT OF DECISION: FEBRUARY 6, 1992 CHARACTER OF PROCEEDING: Civil appeal from Domestic Relations Division, Case No. D-176898. JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-appellant: Carl C. Monastra, Esq., Zashin, Rich, Sutula & Monastra Co., L.P.A., 250 Standard Building, Cleveland, Ohio, 44113. For New Party-Defendant-appellees: Gail E. Sindell, Esq., 1100 Citizens Building, 850 Euclid Avenue, Cleveland, Ohio, 44114. For Defendant Herbert C. Neides: Larry Gordon, Esq., 2121 Illuminating Building, Cleveland, Ohio, 44113. -2- SWEENEY, JAMES D., J.: Plaintiff-appellant Maureen Avolio, fka Neides ("Maureen") appeals from the trial court's determination regarding the award of visitation with the maternal grandparents of the minor child. For the reasons adduced below, we affirm. A review of the record reveals that Maureen was granted a dissolution on April 24, 1987, from her marriage with defendant- appellee Herbert Neides ("Herbert"). There was one minor child born as issue in the marriage, to-wit, Samantha Lauren Neides ("Samantha"), date of birth, September 3, 1984. On April 8, 1989, counsel for Maureen and Herbert entered into an agreed settlement entry dealing with a number of post- decree motions from both parties involving modification of child support and custody. In this agreement, at paragraph number seven, the parties specifically agreed to "submit to a psychological evaluation by Dr. Nancy Huntsman with respect to the issues of custody and visitation, and hereby waive all privileges concerning communications with Dr. Huntsman." Herbert's motions for modification of custody and child support, and for attorney fees related thereto, were continued pending the submission of Dr. Huntsman's report to the court. On July 21, 1989, Maureen motioned the court to appoint Dr. Huntsman as an independent psychological evaluation to assist the court in determining the visitation rights sought by the Avolios. On July 27, 1989, the court granted new-party defendants- appellees Edmund and Linda Avolio's motion, filed on July 7, -3- 1989, to intervene and to establish and fix visitation for themselves as maternal grandparents of Samantha./1\ On September 21, 1989, the visitation motions came on for hearing before a court referee. Counsel for the parties signed a stipulated agreed judgment entry for the court's approval. This entry states in pertinent part: This cause came on for hearing on the following Motions: New-Party Defendants Edmund F. and Linda C. Avolios' Motion to Establish and Fix Visitation (Motion No. 150984), Motion to Consolidate (Motion No. 151804), and Motion to Strike Maureen Neides' Motion for Attorney Fees (Motion No. 151805); Maureen Neides' Motion for Independent Psychological Evaluation (Motion No. 151726), and Motion for Attorney Fees (Motion No. 151727). The Court finds that the parties have entered into an agreement which is fair, just and equitable and is, therefore, adopted as an Interim Order of this Court. Pending the final resolution of this matter, it is therefore ORDERED, ADJUDGED AND DECREED as follows: 1. The question of grandparent visitation shall be referred to Nancy Huntsman, Ph.D., for input and resolution. 2. The parties agree to be bound by Dr. Huntsman's recommendations as to whether or not there shall be grandparent visitation, the conditions, if any, under which there shall be grandparent visitation, and the /1\ This motion by the Avolios, to establish and fix visitation, was dismissed inadvertently by the trial court on November 16, 1989. Pursuant to the motion of the Avolios made under Civ. R. 60(A), the court reinstated the Avolio's motion on February 6, 1990. -4- schedule, if any, of grandparent visitation. 3. The parties agree that Dr. Huntsman's determinations shall be binding upon them and shall be embodied in an Order of this Court enforceable by the sanction of contempt. 4. In the event that a dispute over a material issue of fact precludes Dr. Huntsman from making a recommendation, Dr. Huntsman will refer this matter back to this Court for resolution. 5. Edmund and Linda Avolio will pay the cost of Dr. Huntsman's evaluation in connection with their Motion. Each party will pay his or her own attorney fees. AGREED: JUDGE TIMOTHY M. FLANAGAN Gail E. Sindell /s/ GAIL E. SINDELL Attorney for New-Party Defendants Edmund F. and Linda C. Avolio REFEREE LARRY G. SMITH Kathryn T. Joseph /s/ KATHRYN T. JOSEPH Attorney for Maureen Neides Keith Kraus /s/ KEITH KRAUS Attorney for Herbert Neides On October 9, 1989, Dr. Huntsman issued her report, recommending visitation and overnights with the Avolios. This report was updated on March 16, 1990. On December 6, 1989, the Avolios filed a motion for final judgment pursuant to stipulated judgment. On December 11, 1989, -5- the Avolios filed a motion to compel adoption of stipulated agreement of the parties and entry of final judgment based thereon./2\ The pending visitation matters raised by the Avolios were originally scheduled for hearing on March 19, 1990, with timely notice to the parties. On March 19, Maureen's counsel was unavailable due to his presence before another judge in the courthouse. The matter was rescheduled until March 27, 1990, a date certain having been agreed to by counsel for the parties after a conversation in the confines of the courthouse on March 19. The court issued its customary postcard notice of the new hearing date to the parties. Maureen's counsel allegedly received the postcard notice on March 22. (Transcript I, 10.) Counsel for Avolio also alleged that he telephoned plaintiff's counsel's office on March 19, at plaintiff counsel's request subsequent to speaking with plaintiff's counsel, and confirmed the new hearing date. (Transcript I, 6-8.) Counsel for Avolio also testified that he spoke with plaintiff's counsel on the telephone later in the day on March 19 and in that conversation confirmed the new hearing date of March 27. (Transcript I, 7.) Plaintiff's counsel did not remember this telephone call. (Transcript I, 10.) On March 26, 1990, at 2:50 p.m., Maureen filed a motion to continue the hearing until after her return from vacation on /2\ Other motions were filed by the parties, but are not relevant to the present appeal and its assignments of error. -6- April 16, 1990. Her vacation to California was scheduled to begin with a flight leaving at 9:15 a.m. on March 27, 1990. These allegedly non-refundable airline tickets were purchased by Maureen on January 12 and February 15, 1990, for herself and Samantha. Maureen did, in fact, leave for vacation as planned with the child. At the time of the hearing on March 27, the trial judge was ill and not in court. On March 28, the court notified the parties by telephone that the hearing would go forward on March 29, 1990. On March 29, 1990, prior to taking testimony, the court denied plaintiff's motion for a continuance, and granted Avolio's motion to compel the adoption of the stipulated agreement of the parties. Accordingly, the requirement of the referral to Dr. Huntsman was fulfilled. The court, following opening statements of the parties, heard the testimony of three witnesses. The first witness, on behalf of the Avolios, was Dr. Nancy Huntsman, who testified that she first became involved in this case in the Spring of 1989. Dr. Huntsman stated that she interviewed Maureen, Herbert, Samantha, and the Avolios prior to issuing her report. It was Dr. Huntsman's opinion that Maureen worried excessively, without foundation, that her child's affections were being stolen by the Avolios at the expense of her relationship with Samantha. Dr. Huntsman noted that there was a history of extensive contact between Samantha and the Avolios -7- before and after the dissolution including overnight visits by Samantha at the Avolio residence in Lyndhurst, Ohio. Dr. Huntsman testified that Samantha, a bright and verbal five-year- old girl, needed to discover that her reaching out to persons would not result in a loss or alienation of anybody. For example, she needs contact with her grandparents so that she learns she won't lose her mother and vice-versa. The doctor recommended that visitation with the grandparents continue, including several overnight visits per month as well as a couple of afternoons or evenings per month in the company of the Avolios. It was also the doctor's opinion that: the granting of immediate overnight visitation would not be harmful to Samantha; the cessation of overnight visits and passage of time alone would not help the problem causing anxiety in the child. The second witness for the Avolios was new-party defendant- appellee-movant Mr. Edmund Avolio, the maternal grandfather of the child. Mr. Avolio testified that he and his wife had a warm and pleasant relationship with Samantha./3\ Mr. Avolio recounted the history of extensive contact with Samantha, particularly the period of time between the date of dissolution in April, 1987, and June of 1988, when Maureen was in school full time seeking a college degree. During this period of time, the Avolios babysat Samantha for up to three to four days per week, including /3\ Mrs. Linda Avolio is Edmund Avolio's second wife, having married on April 6, 1974. Linda is the step-mother of Maureen. -8- overnight stays on a number of occasions. The babysitting dropped to two to three days per week after June of 1988. The Avolios would also take care of Samantha, sometimes overnight, when Maureen would be out with her friends or on dates with boyfriends. Mr. Avolio testified that Maureen, after January 20, 1990, successfully obstructed every attempt by the Avolios to visit the child. Mr. Avolio also stated that he and Maureen had a difference of opinion on how they should behave toward Maureen's ex-husband. Mr. Avolio wished to maintain a civil, normal relationship for the benefit of the child, whereas Maureen allegedly wanted her father to vilify Herbert. Maureen, according to Mr. Avolio, thought that her father was not taking her side in the post-dissolution proceedings between Maureen and Herbert. Mr. Avolio also stated that following his own divorce from Maureen's mother in l972, Maureen and her two sisters lived with Maureen's mother. Mr. Avolio claimed that his visitation was very restricted with his daughters, believing that his ex-wife had a problem with the girls enjoying his company. His daughters did come to live with him when they reached their late teenage years./4\ Mr. Avolio also testified that he had seen no reluctance on the part of Samantha to continuing their pattern of contacts. Samantha allegedly asked her grandfather to have a vacation with /4\ Maureen was born on October 29, 1957. Herbert was born on March 4, 1958. They were married on June 5, 1983. -9- her. He also stated that he had offered to help Herbert with his legal fees in visitation/custody problems with Maureen. Mr. Avolio did this because he thought that Maureen was wrong in unilaterally altering Herbert's rights of visitation with Samantha. The third and final witness was Ms. Caroline Burton ("Burton"), who testified on behalf of Maureen. Burton is a psychology assistant and was not a licensed psychologist in the State of Ohio at the time of the hearing. Burton never interviewed Herbert or the Avolios in preparation to making her opinion. She also did not speak to Maureen at length. Burton's review consisted primarily of interacting with Samantha beginning in September of 1989. Burton noted that Samantha appeared somewhat anxious and, although the child wished to continue visiting her grandparents and was bothered by her not seeing them, did not want to hurt anybody's feelings. It was Burton's opinion that Samantha's contact with the grandparents should be maintained, but the frequency and time of these visits should be left to the discretion of Samantha. Burton also testified that she did not profess to be qualified to give an opinion as to which party ought to have custody or visitation of the child. Subsequent to closing arguments, the court issued its ruling. (Transcript 2, 75-79.) The terms of the ruling were -10- memorialized in the court's judgment entry of April 13, 1990, as follows: This cause came on for hearing on New Party Defendants' Edmund F. and Linda C. Avolio's Motion for Final Judgment Pursuant to Stipulated Judgment (No. 158370) and New Party Defendants' Motion to Compel Adoption of Stipulated Agreement of the Parties, and For Entry of Final Judgment Based Thereon (No. 158595). The hearing was held on March 29, 1990. All parties received adequate notice of the hearing date, through counsel. Present in Court were: Eugene S. Bayer, representing Maureen Neides; Keith R. Kraus, representing Herbert C. Neides; Gail E. Sindell and Thomas D. Corrigan, representing Edmund F. and Linda C. Avolio; and Edmund F. and Linda C. Avolio. This Court, having evaluated the findings and recommendations of Nancy J. Huntsman, Ph.D. and Caroline Burton, M.A., and having reviewed other evidence and testimony, finds that New Party Defendants' Motions are well taken and should be granted. This Court finds that, pursuant to the terms of the Interim Order of this Court, the attorneys for the parties had entered into an agreement to be bound by Dr. Huntsman's recommendations as to grandparent visitation. This Court finds Dr. Huntsman's recommendations to be fair, just and equitable, and therefore adopts the following as the judgment of this Court and final resolution of this matter. IT IS, THEREFORE, ORDERED, ADJUDGED AND DECREED AS FOLLOWS: 1. Third Party Defendants Edmund F. and Linda C. Avolio shall and do hereby have the right of visitation with their minor grandchild, Samantha. 2. Edmund F. and Linda C. Avolio shall have, at a minimum, visitation with Samantha according to the following schedule: -11- A. Every other Sunday commencing at 10:00 a.m. and continuing through the day, overnight, and terminating Monday morning. One of these Sundays each month shall be the Sunday which was formerly allocated to the father, Herbert C. Neides. B. The Sunday schedule shall commence as of April 22, 1990. Visitation on that date shall be from 10:00 a.m. until 8:00 p.m. The second visitation shall be on May 6, 1990. The times shall be from 10:00 a.m. until 8:00 p.m. Commencing May 20 and thereafter, the overnight schedule set forth above shall go into effect, the Avolio's having visitation on alternating Sundays (overnight) commencing with May 20. C. Every Thursday, commencing as soon as Samatha (sic) is finished with school, or her dance class (whichever is later) and continuing until 8:00 p.m. The grandparents shall provide all transportation for their scheduled Thursday visitation and shall pick up Samantha from either school or dance class, and shall return Samantha to her mother's home at 8:00 p.m. D. The grandparents shall provide all transportation for their scheduled visitation and shall pick up and drop off the child at her home, or other reasonable location requested by the child's mother. E. Deviation from the schedule set forth hereinabove may be made only by written consent of all parties. F. Visitation shall occur at such other times as the parties may arrange, by agreement between the parties scheduled to have possession and the grandparents. G. (This section removed by the trial court.) 3. The grandparents Edmond F. and Linda C. Avolio shall have the right to talk to Samantha by telephone at the home of her mother or father. -12- 4. The parties are ordered to cooperate with each other with respect to the execution of the visitation schedule and to comply with the schedule, unless alternative agreements are made by written agreement between the parties concerned. Any party who interferes with the execution of the above schedule shall be found in contempt of court and appropriate sanctions shall be imposed. 5. Edmund and Linda Avolio shall pay the cost of Dr. Huntsman's evaluation in connection with their Motions. Each party will pay his or her own attorney fees. 6. New Party Defendants' Motions to Show Cause are continued to a later date. Judge Timothy M. Flanagan /s/ JUDGE TIMOTHY M. FLANAGAN This appeal raises the following assignment of error: IT WAS AN ABUSE OF DISCRETION AND ERROR IN CONTRAVENTION OF R.C. 3109.05(B) FOR THE TRIAL COURT TO HAVE AWARDED EXTENSIVE RIGHTS OF VISITATION CONSISTING OF EVERY OTHER WEEKEND FROM SUNDAY AT 10:00 A.M. UNTIL MONDAY MORNING AND EVERY THURSDAY EVENING OF A FIVE (5) YEAR OLD MINOR CHILD TO GRANDPARENTS; A) WHERE THE TRIAL COURT MADE NO SPECIFIC FINDING THAT SUCH GRANDPARENT VISITATION IS IN THE MINOR CHILD'S BEST INTEREST; B) WHERE THE FATHER OF THE MINOR CHILD HAS RIGHTS OF FREQUENT VISITATION, THE BEST INTERESTS OF THE MINOR CHILD IS SERVED BY THE CHILD FREQUENTLY BEING WITH HER MOTHER, AND THE CHILD IS IN SCHOOL AND EXTRA- CURRICULAR ACTIVITIES; C) AND WHERE THE MOTHER OF THE CHILD WAS DENIED THE RIGHT TO CONVEY HER WISHES CONCERNING SAID VISITATION DUE TO THE TRIAL COURT'S ABUSE OF DISCRETION IN NOT GIVING ADEQUATE NOTICE PURSUANT TO CIVIL RULE 6 (D), LOCAL DOMESTIC RELATIONS RULE 2 (E) (3) AND THE DUE PROCESS CLAUSE OF BOTH THE OHIO AND THE UNITED STATES CONSTITUTIONS. -13- R.C. 3109.05, effective April 19, 1988, and in force at the time of the trial court's decision, provides at paragraph (B): (B) * * *. In the discretion of the court, reasonable companionship or visitation rights may be granted to any other person having an interest in the welfare of the child. * * */5\ In order to obtain a reversal of the trial court's decision, an abuse of discretion by the trial court must be demonstrated; that is, the trial court's decision must have been unreasonable, arbitrary or unconscionable. See Blakemore v. Blakemore (1983), 5 Ohio St. 3d 217, 219; Koegel v. Koegel (1982), 69 Ohio St. 2d 355, 357; Cherry v. Cherry (1981), 66 Ohio St. 2d 348, 355. In determining the child's best interests in a visitation matter, the factors contained in R.C. 3109.04(C), in addition to other relevant factors, are to be weighed by the trial court. In Re Whitaker (1988), 36 Ohio St. 3d 213, paragraph two of the syllabus./6\ The factors contained in R.C. 3109.04(C) include: (1) The wishes of the child's parents regarding his custody; (2) The wishes of the child regarding his custody if he is eleven years of age or older; /5\ A more detailed statute dealing with the court's ability to award visitation to a grandparent, and the factors to be determined thereto, was provided by the General Assembly of this State as codified in R.C. 3109.051, effective May 31, 1990, formerly House Bill 15. It's Senate Bill counterpart, Senate Bill 3, was made effective April 11, 1991. /6\ Although R.C. 3109.04 pertains to matters of custody, the Supreme Court in Whitaker, supra, held those factors set forth in paragraph (C) to be equally applicable in visitation cases. -14- (3) The child's interaction and interrelationship with his parents, siblings, and any other person who may significantly affect the child's best interest; (4) The child's adjustment to his home, school, and community; (5) The mental and physical health of all persons involved in the situation. With regard to factor number one, Maureen's counsel indicated at the hearing that she was not adverse to implementation of grandparent visitation, but wanted the visitation to be implemented gradually over a period of time with no overnight stays. (Transcript I, 63.) Herbert did not oppose grandparent visitation, but did not want that visitation to be detrimental or at the expense of his own visitation rights. (Transcript I, 16-17.) In the present case, factor number two above is clearly inapplicable because Samantha is less than eleven years old. As to factor number three, it is abundantly clear that Samantha had a substantial history of healthy interaction with her grandparents and wishes to maintain this relationship. It is also clear that Samantha maintained an ongoing relationship with her father and mother, her mother having sole custody of the child and her father having periodic visitation, to-wit, every other weekend from after school on Friday through Sunday night in addition to an overnight stay on Tuesdays. With regard to the fourth factor, the evidence indicates that Samantha was a well-adjusted, bright, vivacious young girl -15- who attended school, after-school day care, dance classes after school on Thursdays, and play therapy on Wednesdays in the late afternoon. There is no indication that she was not adjusted to her home, school or community, except for her being bothered by the grandparent visitation proceedings raised herein. The physical health of the parties, as noted in factor five, is not brought into question in the record. The mental health is somewhat a factor due to Dr. Huntsman's observation of Maureen's baseless fears of losing Samantha's affections and her response of restricting access to the child, and Samantha's anxiety due to the litigation. Otherwise, the parties appeared to be normal, healthy adults who functioned well in society. Based on the facts of this case, we find that the court did not abuse its discretion in awarding the visitation to the grandparents in the manner noted. The last issue raised in this assignment deals with the alleged lack of proper notice of the hearing date. The record indicates that the counsel for the parties agreed to continue the hearing to March 27, 1990. This agreement waived the regular notice requirement. See Local Rule 2(E)(3) of the Court of Common Pleas of Cuyahoga County, Domestic Relations Division. Finally, appellant argues that the court abused its discretion in not honoring her motion for a continuance filed on March 26, 1990, relative to the hearing scheduled on March 27, 1990 at 1:30 p.m. Appellant and her counsel were aware of Maureen's travel plans at least as early as March 22, 1990. Yet, no motion to -16- continue was filed by Maureen until less than twenty-four hours prior to the scheduled hearing. We find no abuse of discretion in the court's failure to grant Maureen's continuance where: she and her attorney had knowledge of the planned vacation yet chose to wait until the day before the hearing before formally motioning the court for a continuance; the matter to be heard had been pending for approximately four months; and Maureen had agreed, through counsel, to be bound by the recommendations of Dr. Huntsman. Assignment overruled. Judgment affirmed. -17- It is ordered that appellees recover of appellant their costs herein taxed. The court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this court directing the Domestic Relations Court to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. Exceptions. FRANCIS E. SWEENEY, P.J., and ANN MCMANAMON, J., CONCUR. JAMES D. SWEENEY JUDGE N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announcement of decision (see Rule 26). Ten (10) days from the date hereof this document will be stamped to indicate journalization, at which time it will become the judgment and order of the court and time period for review will begin to run. .