COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 73100 ROBERT R. KOVALAK : JOURNAL ENTRY : AND Plaintiff-appellee : OPINION : -vs- : : DEBORAH S. KOVALAK : : Defendant-appellant : DATE OF ANNOUNCEMENT OF DECISION: AUGUST 6, 1998 CHARACTER OF PROCEEDING: Civil appeal from the Court of Common Pleas Domestic Relations Division Case No. CP-D-186185 JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: RANDALL M. PERLA, ESQ. 19443 Lorain Road Fairview Park, Ohio 44126 THOMAS KONET, ESQ. 530 Leader Building Cleveland, Ohio 44114 SCOTT D. WHITE, ESQ. 19443 Lorain Road Fairview Park, Ohio 44126 For Defendant-Appellant: DEBORAH S. KOVALAK, PRO SE 55 Barrett Road, #334 Berea, Ohio 44017 -2- DYKE, J.: In this pro se appeal, Deborah Kovalak challenges the judgment of the domestic relations court made in connection with various post-dissolution decree motions. For the reasons set forth below, we affirm. Deborah S. Kovalak (hereafter referred to as mother ) and Robert R. Kovalak (hereafter referred to as father ) were married on January 31, 1981. Two children were born of the marriage: Robert R. Kovalak, Jr. (d.o.b. July 16, 1983) and Carrie Ann Kovalak (d.o.b. February 25, 1986). On June 16, 1988, the parties were granted a dissolution. In relevant part, the dissolution decree provided that custody of the children was awarded to the mother, that the father would have reasonable and liberal visitation, and that the father would pay $898.62 per month for the support of the children plus all reasonable and necessary medical expenses. In February 1995, the father filed a motion to show cause and to set and determine visitation rights in which he averred that the mother had consistently refused to allow him to have visitation. On March 17, 1995, the mother filed a motion to show cause and to suspend all visitation in which she averred that the father, according to the allegations of the minor children[,] has physically abused the minor children. The mother also averred that the father had not paid medical bills totaling $1,218.65. On April 13, 1995, the father filed a motion to modify custody and to obtained shared parenting of the children. -3- The record further reflects that on May 18, 1995, the parties signed an interim agreement which was to remain in effect during the pendency of the case. In relevant part, this agreement granted the father visitation on every other weekend, plus alternating holidays and further provided that the father would meet with the children's counselor to discuss their progress. Four weeks later, the father filed an emergency motion to show cause in which he alleged that the mother had again refused to permit visitation. Thereafter, the trial court, on its own motion, joined the children as parties to the action and appointed attorney Thomas J. Konet as their guardian ad litem. On July 31, 1995, the mother filed a motion to modify the interim agreement which she had previously signed. In relevant part, the mother asserted that she did not understand the agreement and that the children's psychologist, Cynthia Prufer, opined that the terms of the interim visitation schedule were contrary to the best interests of the children. According to the mother, Robert Jr. disclosed to Prufer that the father had slapped him and thrown him into a stereo speaker. The trial court subsequently ordered that Thomas W. Hall Ph.D. perform an evaluation of the parties. The father likewise moved to modify the interim agreement and to obtain custody, alleging that he had been denied visitation with the children. In response, the mother filed a motion urging the court to inspect the premises of both parents, and to interview the children regarding their wishes as to custody. -4- The various motions to show cause, to modify custody and visitation, and the related motions were tried to a magistrate in March 1996. The magistrate subsequently found that the mother thwarted the father's visitation with the children. The magistrate recommended, inter alia, that the father have interim visitation with the children and become the custodial parent by the start of the 1996-1997 school year. Problems erupted shortly after the issuance of the magis- trate's decision. The children moved to have the court appoint an attorney to represent them, independent of the guardian ad litem, complaining that the guardian ad litem was not advocating their particular interests. The children also moved for reconsideration of the magistrate's decision in order to preclude their father from having visitation with them and from obtaining custody of them. In addition, the mother and the children filed objections to the deci- sion of the magistrate. Both parents filed numerous motions to show cause in which they accused the other of failing to abide by the court's previous orders. In December 1996, the trial court ruled that the children's objections to the report of the referee were well-taken and it set a separate hearing for issues raised by the children. On the day of the hearing, the parties and their attorneys engaged in extensive negotiations and ultimately reached a written agreement. Pursuant to the terms of this document, the children were to reside with the father and the mother was granted reasonable and liberal visitation. Shortly thereafter, however, formal charges that the -5- children were physically abused and neglected were raised in the Juvenile Court in case numbers 9791455 and 9791456. In light of those charges, the children were placed in temporary foster care. Thereafter, on July 30, 1997, the trial court determined that it no longer had jurisdiction over the children and that it would be a vain act to make any further disposition of any pending custody issue. The court also relinquished jurisdiction over support and visitation issues in the interests of judicial economy. The trial court further determined that the mother's objections to the decision of the magistrate which pertained to the remaining issues in the case were not well-taken; that the mother was in contempt for failure to comply with prior orders of the court pertaining to visitation; and that the guardian ad litem should recover $3,054, $610.80 of which was to be paid by the mother. The mother now appeals pro se and assigns ten errors for our review. The mother's first and second assignments of error are interrelated and state: THE TRIAL COURT ERRED WHEN IT FAILED TO RULE UPON OBJECTIONS TO MAGISTRATE'S DECISION OF MAY 6, 1997, AND JULY 15, 1996, THAT RELATE TO CUSTODY, VISITATION OR SUP- PORT. THE TRIAL COURT ERRED WHEN IT FOUND IT NO LONGER HAD ONGOING JURISDICTION OVER THE DISPOSITION OF PENDING CUS- TODY ISSUES OF THE PARTIES' MINOR CHILDREN, BECAUSE OF THE NEGLECT, ABUSE, AND DEPENDENCY COMPLAINTS FILED IN JUVENILE COURT. Within these assignments of error, the mother complains that the trial court erred when it determined that the proceedings in juvenile court deprived it of jurisdiction over the issue of cus- -6- tody. The mother further complains that the trial court erred when it deferred ruling on the issues of support and visitation in light of the pending juvenile proceedings. Our analysis of these questions begins with R.C. 2151.23. R.C. 2151.23(A)(1) grants the juvenile court exclusive original jurisdiction "concerning any child who on or about the date speci- fied in the complaint is alleged to be an *** abused, neglected, or dependent child." In addition, R.C. 2151.23(A)(2) grants juvenile courts exclusive original jurisdiction "to determine the custody of any child not a ward of another court of this state." In In re Poling (1992), 64 Ohio St.3d 211, 215, the supreme court stated that these statutes vest the juvenile court with jurisdiction to determine the disposition, including custody, of children alleged to be abused, neglected or dependent. This jurisdiction includes children who are the subject of a domestic relations decree granting custody pursuant to R.C. 3109.04. Id., paragraph one of the syllabus. The court explained: While clarifying the jurisdiction of the juvenile court under R.C. 2151.23, we recognize some confusion exists in light of the continuing jurisdiction of the domestic relations court which awards custody in divorce cases under R.C. 3109.04. Particularly, this becomes apparent when considering the case of Loetz v. Loetz (1980), 63 Ohio St.2d 1, 2, 17 O.O.3d 1, 406 N.E.2d 1093, 1094, wherein we reiterated that "[t]he court in which a decree of divorce is [594 N.E.2d 593] originally rendered retains continuing jurisdiction over matters relating to the custody, care, and support of the minor children of the parties. Hoffman v. Hoffman (1864), 15 Ohio St. 427; Addams v. State, ex rel. Hubbell (1922), 104 Ohio St. 475, 135 N.E. 667; Corbett v. Corbett (1930), 123 Ohio St. 76 [9 Ohio Law Abs. 58], 174 N.E. 10; Van Divort v. Van Divort (1956), 165 Ohio St. 141 [59 O.O. 207], 134 N.E.2d 715." -7- Therefore, a court which renders a custody decision in a divorce case has continuing jurisdiction to modify that decision. However, the juvenile court has jurisdic- tion to make custody awards under certain circumstances. Hence, for the purposes of deciding custody where there has been a prior divorce decree, these courts can accu- rately be said to have concurrent jurisdiction. In other words, the juvenile court may entertain and determine custody of children properly subject to its jurisdiction, even though there has been a prior divorce decree grant- ing custody of said children to a parent pursuant to R.C. 3109.04. Both appellant and the guardian ad litem advance judicial economy arguments to buttress their assertion that the juvenile court has jurisdiction to decide the custody issue in this case. They contend the juvenile court is in a position to hear all the relevant evidence concerning the child's environment and needs, and that it is a waste of judicial time and resources to then require additional hearings in the original divorce court to determine custody of the children. We agree. The issues and facts relating to the disposition or custody of these children will have been examined in the juvenile court. In deciding how to best address the needs and interests of the children, the juvenile court would have before it home investigations germane to the case, psychological assessments, special educational or treatment concerns, relevant testimony from the pertinent parties, and the recommendation of both the county children services agency and the guardian ad litem. To now hold that the juvenile court does not have jurisdiction would require the original divorce court to possibly rehear the entire case, at a consider- able cost not only to the judicial system but more importantly to the parties involved. This is especially true with respect to children whose well-being mandates an effective, timely means of resolving their care and custody. However, when a juvenile court seeks to exercise its concurrent jurisdiction in a situation such as before us, i.e., where there is an existing custody decree, the juvenile court must do so in compliance with R.C. 2151.23(F)(1). This statute requires that "[t]he juvenile court shall exercise its jurisdiction in child custody matters in accordance with sections 3109.04, 3109.21 to 3109.36, * * * of the Revised Code." (Emphasis added.) Therefore, when a juvenile court makes a custody determination, it must do so "in accordance with R.C. 3109.04." -8- By application of the foregoing, we note that it is undisputed that formal complaints were lodged in the juvenile court which alleged that Robert and Carrie were neglected, abused and dependent. Accordingly, the juvenile court is vested with original jurisdiction to determine the custody of the children insofar as the juvenile court was charged with resolving these complaints. Further, it is clear that the related issues of support and parental visitation of the children may also be determined by the juvenile court in connection with abuse, neglect, or dependency complaints. See Juv.R 13(B)(2)(c); Juv.R. 13(B)(2)(d). Stanton v. Guerrero(August 31, 1994), Montgomery App. No. 14407, unreported. Therefore, the trial court did not err in yielding its jurisdiction to the juvenile court in the interest of judicial economy and permitting the juvenile court to address these related issues. In accordance with the foregoing, the mother's first and second assignments of error are without merit and are overruled. The mother's third and sixth assignments of error are inter- related and state: THE TRIAL COURT ERRED WHEN IT FOUND APPELLANT IN CONTEMPT FOR FAILURE TO COMPLY WITH PRIOR ORDERS OF THE COURT RELATED TO VISITATION. THE TRIAL COURT ERRED WHEN IT FOUND APPELLANT DENIED APPELLEE VISITATION WHERE DENIAL OF VISITATION IS AGAINST THE MANIFESTATION (SIC) OF THE EVIDENCE AND THE TRIAL COURT MODIFIED CUSTODY FROM APPELLANT TO APPELLEE DUE TO DENIAL OF VISITATION. -9- The mother next complains that the trial court erroneously determined that she was in contempt of court for interfering with the father's visitation with the children. In that the lower court served as trier of fact, we will not disturb its individual findings of fact where they are supported by sufficient evidence, Whiteside, Ohio Appellate Practice (1991) 71, Section 7.02(6), and its judgment will not be reversed where it is supported by some competent credible evidence going to all essential elements of the case, Vogel v. Wells (1991), 57 Ohio St.3d 91, 96; C.E. Morris Co. v. Foley Constr. Co. (1978), 54 Ohio St.2d 279, syllabus. The ultimate issue to be resolved under these assignments of error is whether there was competent, credible evidence adduced below to support a finding that the mother interfered with the father's visitation of the children. Here, the evidence demon- strated that immediately following the parties' dissolution, the parties got along amicably and the father had complete access to the children. (Tr.39) Evidence was also presented which indicated that the mother later terminated her relationship with a male friend and she became angry at the father for continuing to socialize with that friend in the presence of the children. There was also evidence that beginning in January 1995, the mother denied the father access to the children, explaining that reasonable and liberal visitation authorized in the dissolution decree gave her discretion to decide whether visitation would occur. According to the father, the mother only permitted a single -10- two-hour visitation with the children in February 1995. (Tr. 281- 290). By March 1995, or after the father had filed a motion to show cause, relations deteriorated severely. Later that month, the mother refused to permit visitation with Robert, Jr. because she stated that he was being punished. Throughout the month of April 1995, the father tried repeatedly to speak with the mother in order to obtain visitation but his telephone calls to the apartment were either not answered or his messages on the answering machine were not returned. In May 1995, the father spoke to the children by telephone on several occasions, and in mid-May, the parties reached an in-court agreement for visitation. According to the father, however, the mother refused to permit him to visit the children on May 19, 1995, and May 21, 1995. She permitted him to have visitation with the children on Memorial Day weekend, however. The father stated that the mother denied him visitation in June, July and August 1995, claiming that she was protecting the children from him. The father also stated that the mother denied visitation from September 1995 through early November 1995. (Tr. 310-315). The mother moved in November 1995 and the father did not learn of her new address until January 1996. The foregoing testimony constitutes competent, credible evidence supporting the trial court's determination that the mother was in contempt of court for denying the father visitation with the -11- children. Moreover, the mother admitted that on occasions she did refuse to permit visitation. The mother testified that her actions were justified, however, based upon her genuine concern that the father's disciplinary techniques had become abusive. In addition, there was testimony from Dr. Thomas Hall that the father had disciplined Robert in a manner that was rough and inappropriate. Nonetheless, Dr. Hall testified that he would not label the father's behavior as abusive and he would not advocate cutting off the father's contact with the children. In addition, the charges that the discipline had escalated into abuse were followed by in-court agreements whereby the mother agreed in writing to permit the father to visit with the children. In a letter dated October 16, 1995, the mother was in agreement that it was in the best interests of the children to resume visitation with their father. Accordingly, we are unable to find that the trier of fact lost its way in concluding that the mother was in contempt of court and we must therefore reject the third and sixth assignments of error. The mother's fourth assignment of error states: THE TRIAL COURT ERRED WHEN IT AWARDED GUARDIAN AD LITEM, THOMAS KONET, GUARDIAN AD LITEM FEES AS ADDITIONAL SUPPORT. Within this assignment of error, the mother complains that the trial court erred in awarding attorney Thomas Konet guardian ad litem fees because, she contends, he failed to advocate for the best interests of the children, and failed to meet his duties as a -12- guardian ad litem. Specifically, the mother complains that Konet did not interview the children with their parents, and did not contact their schools or medical personnel. In Robbins v. Ginese (1993), 93 Ohio App.3d 370, 372-373, this court stated: "In evaluating an order for compensation to a guardian ad litem,a reviewing court shall consider whether the trial court abused its discretion." Murphy v. Murphy (Oct. 10, 1991), Cuyahoga App. No. 60892, unreported, at 4, 1991 WL 205252, citing Davis v. Davis (1988), 55 Ohio App.3d 196, 200, 563 N.E.2d 320, 325. Civ.R. 75(B)(2) provides for the appointment of a guardian ad litem and legal counsel to a child when it is essential to protect the interests of the child. The appointment is within the sound discretion of the trial court and the court has broad authority to tax as costs the guardian ad litem fees. Pruden-Wilgus v. Wilgus (1988), 46 Ohio App.3d 13, 545 N.E.2d 647 (held: $50 per hour a reasonable rate for guardian ad litem fees). In reviewing the trial court's decision under the abuse of discretion standard, "a presumption of validity attends the trial court's action." Volodkevich v. Volodkevich(1989), 48 Ohio App.3d 313, 549 N.E.2d 1237, at the syllabus. "Abuse of discretion" connotes more than mere error; it implies that the court's action was unreasonable, arbitrary, or unconscionable. E.g., Blakemore v. Blakemore (1983), 5 Ohio St.3d 217, 219, 5 OBR 481, 482, 450 N.E.2d 1140, 1142. Thus, it is the burden of the appellant to demonstrate that the trial court's decision was unreasonable, arbitrary, or uncon- scionable. In considering the mother's complaint that the guardian ad litem did not advocate the position advanced by the children, we note that the Ohio Supreme Court stated in In re Baby Girl Baxter (1985), 17 Ohio St.3d 229, 232: The duty of a lawyer to his client and the duty of a guardian ad litem are not always identical and, in fact, may conflict. The role of guardian ad litem is to investigate the ward's situation and then to ask the court to do what the guardian feels is in the ward's best -13- interest. The role of the attorney is to zealously represent his client within the bounds of the law. Accordingly, the fact that attorney Konet did not advocate in the manner in which the children would have preferred does not demonstrate that he failed to meet his essential duties. We further note that the mother's attorney stipulated at trial that the matter of fees would be handled not by testimony from Konet, but rather, would proceed based upon Konet's affidavit. The mother's attorney additionally stipulated that the hourly log as set forth in Konet's affidavit filed in support of his fee bill was reasonable, that Konet was qualified to practice in the court, and that Konet regularly did so. (Tr. 1086-1087). The trial court's award, moreover, was within the rate of compensation as set forth in Local R. 35 of the Court of Common Pleas of Cuyahoga County, Domestic Relations Division. Accordingly, we are unable to find an abuse of discretion herein. Cf. Loew v. Loew (1996), 114 Ohio App.3d 632, 634. The fourth assignment of error is overruled. The mother's fifth, seventh, eighth, and ninth assignments of error are interrelated and state: THE TRIAL COURT ERRED WHEN IT MODIFIED A POST-DECREE VISITATION ORDER ON MAY 26, 1995, WITHOUT A HEARING TO DETERMINE IF MODIFICATION WAS IN CHILDREN'S BEST INTEREST. THE TRIAL COURT ERRED WHEN IT FAILED TO ACCORD ANY WEIGHT TO THE WISHES AND CONCERNS OF THIRTEEN AND TEN-YEAR-OLD CHILDREN AND MODIFIED A POST-DECREE CUSTODY ORDER. -14- THE TRIAL COURT ERRED WHEN IT FAILED TO ACCORD ANY WEIGHT TO THE EVALUATOR'S RECOMMENDATIONS, PURSUANT TO R.C. 3109.04(C). THE TRIAL COURT ERRED WHEN IT FOUND THAT APPELLANT DID NOTHING TO MITIGATE PROBLEMS; EVALUATOR FOUND APPELLANT `RIGID AND CONTROLLING;' EVALUATOR FOUND APPELLANT TO HAVE PERSONAL PROBLEMS AND NEEDING COUNSELING; WHERE EVALUATOR TESTIFIED TO THE CONTRARY. In light of the fact that the children have been placed in temporary foster care because of the complaints filed in the juvenile court, and because we have determined, supra, that the trial court properly deferred ruling on custody, support and visitation issues, these claims are moot and will not be addressed herein. See App.R. 12(A)(1)(c). The mother's tenth assignment of error states: THE TRIAL COURT ERRED WHEN IT DENIED APPELLANT'S MOTION TO SHOW CAUSE FOR UNREIMBURSED MEDICAL EXPENSES DUE TO INSUFFICIENT EVIDENCE WHERE TRIAL COURT SPECIFICALLY STATED THAT MOTION WOULD NOT BE HEARD AT TRIAL. Within her tenth assignment of error, the mother contends that the trial court erred in denying her motion to show cause why the father should not be held in contempt of court for failing to pay medical expenses totaling $1,218.65. The mother asserts that the denial is erroneous because the trial court premised this ruling on its claim that the mother failed to produce evidence, but, she asserts, the magistrate did not allow her to present evidence. We have reviewed the record in great detail and we note that the mother's attorney, in her redirect examination of Dr. Michael Levien asked whether there was an outstanding balance due from his treatment of Carrie and the magistrate determined that this ques- -15- tioning was beyond the scope of the cross-examination. (Tr. 566- 576). The mother's attorney then briefly questioned the father regarding whether he had received certain medical bills but she did not elicit from him that there were any outstanding balances. (Tr. 594-597). The mother's attorney did elicit from the mother that she had paid $50 to Cynthia Prufer (Tr. 949) but this testimony was disputed by the husband who testified that the balance was unpaid and that Prufer refused to speak with him because this amount was unpaid. Finally, at a later point in the proceedings, the magistrate held a sidebar conference in order to determine from the attorneys whether further evidence would be taken on the issue of medical bills. (Tr. 973-974) The mother's attorney then elicited from the mother that she had paid approximately $1,200 in medical bills which were properly payable by the husband. (Tr. 1055). The mother admitted, however, that she owes the father $4,299. Finally, the record reveals that the parties ultimately agreed to resolve the issue of unreimbursed medical expenses by stipulation. (Tr. 1088). The record does not demonstrate that such stipulations were ever filed with the court, however. In accordance with all of the foregoing, we do not agree that the magistrate precluded the presentation of evidence as to this issue and we cannot conclude that the trial court abused its discretion in failing to award the mother the sums which she requested in her motion to show cause. The tenth assignment of error is overruled. The judgment of the trial court is affirmed. -16- It is ordered that appellee recover of appellant his 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 Common Pleas Court, 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 Appellate Procedure. BLACKMON, A.J., AND O'DONNELL, J., CONCUR. ANN DYKE JUDGE N.B. This entry is an announcement of the court's decision. See App. R. 22(B), 22(D) and 26(A); Loc.App.R. 27. This decision will be journalized and will become the judgment and order of the court pursuant to App. R. 22(E) unless a motion for reconsideration with supporting brief, per App.R. 26(A), is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court's announcement of decision by the -17- .