COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 74373 CAROL PISANI : : Plaintiff-Appellant : : : -vs- : JOURNAL ENTRY : AND GLENN PISANI : OPINION : Defendant-Appellee : DATE OF ANNOUNCEMENT : SEPTEMBER 24, 1998 OF DECISION : CHARACTER OF PROCEEDING : Civil appeal from Common Pleas Court Case No. D-219910 JUDGMENT : Affirmed. DATE OF JOURNALIZATION : APPEARANCES: For plaintiff-appellant: Carol Pisani, pro se 30 Commons Court Chagrin Falls, Ohio 44022 For defendant-appellee: Richard S. Koblentz, Esq. Morice J. Craig, Esq. Koblentz & Koblentz 75 Public Square Suite 1025 Cleveland, Ohio 44113 -2- MICHAEL J. CORRIGAN, J.: P l Pisani, appeals the decision of the Cuyahoga County Court of Common Pleas to deny a number of motions shlaintiff-appellant, Caroe made regarding a motion to modify visitation rights children. Plaintiff-appellant also appeals the denial of her Civ.R. 60(B) motion for relief from judgment. For the following reasons, we affirm the decision of the trial court. In 1994, plaintiff-appellant and defendant-appellee, Glenn Pisani, were granted a divorce. The court awarded custody of their two children to defendant-appellee. Numerous post-decree motions and appeals have been initiated relating to orders concerning property division, child support, child custody and child visitation. This appeal stems from a motion to modify visitation. Originally, plaintiff-appellant was granted unsupervised visitation rights with her children. However, in June of 1993, plaintiff-appellant's unsupervised visits with her children were suspended due to plaintiff-appellant's behavior. Subsequently, in December of 1993, visitation was completely suspended.1 On January 2, 1996, plaintiff-appellant filed a motion to modify and change visitation and custody with a request for a hearing. A number of motions were then filed by the parties which are not relevant to this appeal. On February 11, 1997, the court appointed Dr. Donald Weinstein to perform a custody evaluation on both parents and children and 1The trial court's adoption of the Magistrate's decision to suspend visitation was upheld by this court in Pisani v. Pisani (Jan. 25, 1996), Cuyahoga App. Nos. 67814, 68044, unreported. -3- report his results to assist the court in determining whether the parental rights should be modified. On May 14, 1997, Dr. Weinstein issued an Interim Psychological Report and on June 24, 1997, the Doctor made his final recommendations. These reports were proffered into the record on June 30, 1997. It appears that the trial court held a hearing upon plaintiff- appellant's motion on October 3, 1997. As a result of the hearing, the trial court ordered five (5) supervised visitations between plaintiff-appellant and her two children. The guardian ad litem who supervised the visits was to appear at an in camera hearing before the court on November 7, 1997. Moreover, the court ordered Dr. Weinstein to provide any and/all notes taken during the evaluation sessions. Plaintiff-appellant filed subsequent motions with the court requesting a hearing at which time Dr. Weinstein could testify regarding his belief that the children were suffering from Parental Alienation Syndrome. These requests were denied since the court had already received Dr. Weinstein's reports. On December 19, 1997, plaintiff-appellant voluntarily dismissed/withdrew her motion for change of custody and visitation for personal reasons. Plaintiff stated [I]n the event Plaintiff acquires an attorney or has the time and energy to handle it by herself, she will re-file the motion. On December 26, 1997, plaintiff-appellant filed a Civ.R. 60(B) motion for relief from judgment. Almost immediately thereafter, plaintiff-appellant submitted a number of motions concerning -4- visitation and therapy for the children. Plaintiff-appellant also requested a hearing on several outstanding motions. However, at the hearing set by the trial court (which had been continued at plaintiff-appellant's request) plaintiff-appellant failed to appear. Plaintiff-appellant then sought to disqualify the trial judge from the case. This effort was eventually overruled. On January 12, 1998, plaintiff-appellant filed a motion to compel judge to modify parenting order, visitation, either supervised or unsupervised, emergency motion for therapy of Pisani children with their mother and Glenn Pisani to be included as doctors see fit. Plaintiff-appellant also requested a hearing. On February 4, 1998, plaintiff-appellant filed another motion identical to that filed on January 12, 1998. On March 9, 1998, plaintiff-appellant filed a motion to compel a hearing on all outstanding motions. Plaintiff-appellant also filed the reports of Dr. Weinstein for the record. On March 27, 1998, the trial court ordered that all motions having to do with the care, custody, visitation, and control are declared moot since plaintiff-appellant voluntarily dismissed her claim on December 19, 1997. Plaintiff-appellant again filed a motion for relief from judgment pursuant to Civ.R. 60(B). Then, on April 8, 1998, plaintiff-appellant again filed an amended motion to modify parenting order to not include custody but to be in accordance with R.C. 3109.05(B) for visitation, either supervised or unsupervised, and motion for therapy of Pisani children with their mother and -5- Glenn Pisani to be included as doctors see fit. Again, plaintiff- appellant requested a hearing. On April 17, 1998, the trial court denied all outstanding motions including plaintiff's Civ.R. 60(B) motion for relief from judgment, her motion to dissolve journal entry of December 19, 1997, the motion for emergency hearing, and the amended motion to modify parenting not to include custody but to be in accordance with R.C. 3109.05(B) etc. Plaintiff-appellant timely appeals the trial courts March 27th and April 17th entries. Similar to plaintiff-appellant's pro se appeal, the following assignments of error will be considered simultaneously: I. THE TRIAL COURT COMMITTED A PREJUDICIAL ERROR IN DENYING APPELLANT'S MOTION FOR VISITATION WITHOUT A WRITTEN FINDING OF FACT AND OPINION IN ITS JOURNAL ACCORDING TO OHIO REVISED CODE 3109.04. II. THE TRIAL COURT COMMITTED A PREJUDICIAL ERROR WHEN IT DID NOT RULE ON SEVERAL SUPERVISED VISITATION MOTIONS THROUGHOUT THE PENDENCY OF THIS CASE CAUSING THE CHILDREN TO BE FURTHER ALIENATED. III. THE TRIAL COURT COMMITTED A PREJUDICIAL ERROR IN DENYING APPELLANT AN EMERGENCY HEARING ON VISITATION VIOLATING HER RIGHT TO DUE PROCESS ACCORIDING (SIC) TO THE OHIO AND UNITED STATES CONSTITUTIONS. IV. THE TRIAL COURT COMMITTED A PREJUDICIAL ERROR WHEN IT RULED ON THE VISITATION MOTION WITHOUT A HEARING OR JOURNALIZING ANY FINDING OF FACT WHEN A WRIT OF PROCEDENDO WAS PENDING SINCE MARCH 17, 1998 IN THE COURT OF APPEALS AND HAVING THE COUNSEL FOR THE JUDGE FILE A CONTINUENCE (SIC) ON APRIL 16, 1998 AND THEN MAKING RULINGS ON THE ISSUES IN THE WRIT ON APRIL 17, 1998. V. THE TRIAL COURT COMMITTED A PREJUDICIAL ERROR WHEN IT RULED UPON APPELLANT'S MOTION FOR VISITATION WITHOUT HEARING THE TESTIMONY OF THE COURT-APPOINTED PSYCHOLOGIST, DR. WEINSTEIN. VI. THE TRIAL COURT COMMITTED A PREJUDICIAL ERROR WHEN IT DIDN'T CONSIDER THE WRITTEN REPORT OF THE COURT-APPOINTED -6- PSYCHOLOGIST,DR. WEINSTEIN, AS EVIDENCE AND CONSIDERING IT WHEN MAKING A RULING. VII. THE TRIAL COURT COMMITTED A PREJUDICIAL ERROR WHEN IT DID NOT TAKE THE CHANGE OF CIRCUMSTANCES OF THE CHILDREN INTO ACCOUNT THAT WAS OBVIOUS BY THE DIAGNOSIS OF THE PARENTAL ALIENATION SYNDROME WHEN DENYING APPELLANT'S MOTION FOR VISITATION. VIII. THE TRIAL COURT COMMITTED A PREJUDICIAL ERROR WHEN IT DENIED APPELLANT (SIC) MOTION FOR VISITATION WHEN THE CHILDREN WERE DIAGNOSED BY THE COURT APPOINTED PSYCHOLOGIST WITH PARENTAL ALIENATION SYNDROME. IX. THE TRIAL COURT COMMITTED A PREJUDICIAL ERROR AND ABUSED ITS DISCRETION ON THE JOURNAL ENTRIES FILED IN THIS APPEAL. XI. THE TRIAL COURT COMMITTED A PREJUDICIAL ERROR WHEN IT RULED THAT APPELLANT'S MOTIONS FILED PRIOR TO DECEMBER 19, 1997 IN REGARDS TO CUSTODY AND CARE OF THE CHILDREN WERE MOOT. XII. THE TRIAL COURT COMMITTED A PREJUDICIAL ERROR WHEN IT RULED THAT THE COSTS OF THE CASE WERE TO BE ASSESSED TO APPELLANT WHEN SHE HAD TO WITHDRAW HER MOTION FOR CUSTODY DUE TO ILLNESS AND WHEN SHE FILED A 60(B) MOTION TO REINSTATE HER CUSTODY CASE THAT WOULD REMEDY HER DISMISSAL AND TO PROCEED WITH THE ORIGINAL CASE WITH VERY LITTLE DELAY, IT WAS DENIED. XIII. THE TRIAL COURT COMMITTED A CONSTITUTIONAL AND PREJUDICIAL ERROR WHEN IT REFUSED TO GIVE APPELLANT REASONABLE VISITATION WHEN THE COURT-APPOINTED DOCTOR RECOMMENDED IT AND BY NOT WRITING A FINDING OF FACT AND OPINION AS REQUIRED BY OHIO REVISED CODE. Initially, we note that a notice of voluntary dismissal terminates the case upon filing of the notice and requires no further action by the court. Gardner v. Gleydura (1994), 98 Ohio App.3d 277, 279. Stated differently, when a notice of voluntary dismissal is filed by the plaintiff, the trial court is divested of any authority to issue any further orders because there is no action remaining before the court. See Harper v. Frantz (1989), 61 Ohio App.3d 341. Accordingly, since plaintiff-appellant filed a -7- voluntary dismissal of her motion for modification of custody on December 19, 1997, any and all motions filed prior to that date are moot and need not be addressed by the trial court and/or this court on appeal. With regards to the trial court's order that plaintiff- appellant pay costs up to the December 19, 1997 voluntary dismissal, we turn to Civ.R. 41(A)(1) provides, in part: "*** [A]n action may be dismissed by the plaintiff without order of court (a) by filing a notice of dismissal at any time before the commencement of trial unless a counterclaim which cannot remain pending for independent adjudication by the court has been served by the defendant or (b) by filing a stipulation of dismissal signed by all parties who have appeared in the action. Unless otherwise stated in the notice of dismissal or stipulation, the dismissal is without prejudice, except that a notice of dismissal operates as an adjudication upon the merits when filed by a plaintiff who has once dismissed in any court, an action based on or including the same claim." Under Civ.R. 41(A)(1)(a), a voluntary dismissal will be without prejudice, thus allowing the plaintiff to terminate the action once at any time before trial without prejudice, absent the existence of a counterclaim. An obvious purpose for the rule is to encourage the plaintiff to bring a rapid and complete conclusion to an action, which, for whatever the reason, cannot or should not be tried. The rule does not require the trial court to investigate the plaintiff's motivation for dismissing the action. See Sturm v. Sturm (1992), 63 Ohio St.3d 671. Civ.R. 41(D) provides, in full: "If a plaintiff who has once dismissed an action in any court commences an action based upon or including the same claim against the same defendant, the court may make such order for the payment of costs of the action -8- previously dismissed as it may deem proper and may stay the proceedings in the action until the plaintiff has complied with the order." Although the plaintiff may dismiss once without prejudice, Civ. R. 41(D) indicates that upon re-filing, the plaintiff may nevertheless be subject to the payment of costs of the previously dismissed action.2 In this case, since plaintiff-appellant voluntarily dismissed her motion for modification of custody/visitation and then re-filed several motions renewing her prior cause of action, it was within the discretion of the trial court to award costs. After a review of the record, we find the trial court's award does not constitute an abuse of discretion. As previously stated, subsequent to December 19, 1997, plaintiff-appellant filed nineteen (19) separate motions including a motion for relief from judgment and a renewed motion to modify custody and visitation. At this point, we wish to stress that the control of the docket and consideration of motions by the trial court rests within the sound discretion of that court and in accordance with the rules of civil procedure. Lucas v. Gee (1995), 104 Ohio App.3d 423, 429; Aydin Co. Exchange, Inc. v. Marting Realty (1997), 118 Ohio App.3d 274. From a review of the extensive record in this case and in particular, the conduct of the parties and rulings by the trial court post-December 19, 1997, we cannot find the trial court abused its discretion in the handling of its docket. In fact, many of the 2This generally would not include attorney fees under Civ.R. 41(D). See Muze v. Mayfield (1991), 61 Ohio St.3d 173. -9- alleged errors plaintiff-appellant cites to in her appeal, including the failure to schedule an emergency hearing and the court's alleged failure to rule on several supervised visitation motions, could be attributed, in part, to the nature of plaintiff- appellant's excessive filings. The main issue raised in these assigned errors concerns the trial court's denial of modification of visitation based upon the reports of Dr. Weinstein which conclude the children are suffering from the condition of Parental Alienation Syndrom. 3 It is well established that a trial court has broad discretion in determining matters related to visitation. See Appleby v. Appleby(1986), 24 Ohio St.3d 39. The trial court's discretion must be exercised in a manner which best protects the interest of the child. Bodine v. Bodine (1988), 38 Ohio App.3d 173. Stated differently in Pettry v. Pettry (1984), 20 Ohio App.3d 350: A noncustodial parent's right of visitation with his children is a natural right and should be denied only under extraordinary circumstances, such as unfitness of the noncustodial parent or a showing that visitation with the noncustodial parent would cause harm to the children. The burden of proof in this regard is on the party contesting visitation privileges. In this case, plaintiff-appellant is not appealing the denial of visitation rights, but rather that the trial court erred in modifying visitation. We note that custody and visitation involve different considerations and the court has a broader measure of discretion in setting visitation. See Roudebush v. Roudebush 3Plaintiff-appellant's final amended motion concerning this issue retracted the request for custody. -10- (1984), 20 Ohio App.3d 380. As stated by the Ohio State Supreme Court in Appleby v. Appleby (1986), 24 Ohio St.3d 39: Modification of visitation rights is governed by R.C. 3109.05 and the specific rules for determining when a court may modify a custody decree are not equally applicable to modification of visitation rights. R.C. 3109.04 provides specific guidelines for a trial court to follow in determining whether a prior custody decree should be modified. That section is silent as to rights of visitation. R.C. 3109.05 governs visitation rights. That section provides in pertinent part: "(B) The court may make any just and reasonable order or decree permitting any parent who is deprived of the care, custody, and control of the children to visit them at the time and under the conditions that the court directs. ***" Therefore, parental rights of visitation are within the sound discretion of the trial court. This court has previously recognized that discretion and distinguished it from the trial court's discretion with regard to custody. "*** While custody and visitation are obviously related, a court's discretion regarding visitation is broader. See R.C. 3109.05." State, ex rel. Scordato, v. George (1981), 65 Ohio St.2d 128 [19 O.O.3d 318]... The trial court is to make a "just and reasonable order or decree" concerning visitation rights in accord with R.C. 3109.05. Thus, a trial court is vested with broad discretion in determining the visitation rights of a nonresidential parent. Appleby, supra. Accordingly, while a trial court's orders with respect to visitation must be just, reasonable and consistent with the best interest of the child, an appellate court must review a trial court's decision with respect to visitation with deference and will reverse only if the trial court abused its discretion. King v. King (1992), 78 Ohio App.3d 599. An abuse of discretion connotes more than an error of law or judgment and implies that the -11- court's attitude is unreasonable, arbitrary or unconscionable. Blakemore v. Blakemore (1983), 5 Ohio St.3d 217, 219. In this case, plaintiff-appellant argues the trial court erred in denying her motion for modification of visitation without a hearing and without issuing its findings of facts and conclusions of law. First, the trial court was not required to issue a findings of fact and conclusions of law in accordance with Civ.R. 52 since plaintiff-appellant never filed a written request. See R.C. 3109.051(F)(1). Secondly, there is no requirement that a trial court conduct a hearing with regards to said motion for modification. Rather, R.C. 3109.051(C) permits the trial court, in its discretion, to interview in chambers any/all children involved concerning his/her wishes. In this case, we find there was sufficient evidence in the record from which the trial court could rule upon said motion for modification without the need of a hearing. Therefore, the trial court did not abuse its discretion on ruling upon said motion without a hearing. Finally, plaintiff-appellant argues the trial court committed prejudicial error when it failed to consider the testimony/report of Dr. Weinstein who concluded the children suffered from Parental Alienation Syndrome. We note that [a] presumption of validity attends the trial court's action." Volodkevich v. Volodkevich (1989), 48 Ohio App.3d 313, 314. In our opinion, there is nothing in the record before this court to indicate that the trial court did not fully consider the evidence in the record, including the -12- reports of Dr. Weinstein. In fact, the reports were made part of the record by Dr. Weinstein's recommendations in its March 27, 1998 journal entry. After a review of the extensive record and in consideration of all issues raised by plaintiff-appellant, we cannot hold the trial cplaintiff-appellant and the trial court acknowledgedourt abused its discretion of visitation.4 For all of the above stated reasons, the foregoing assigned errors are not well taken. Plaintiff-appellant states as her tenth assignment of error: X. THE TRIAL COURT COMMITTED A PREJUDICIAL ERROR WHEN IT DID NOT GRANT THE MOTION FOR 60(B) WHEN APPELLANT DISMISS (SIC) HER CUSTODY CASE DUE TO ILLNESS AND WHEN THE JUDGE TOLD HER HIMSELF SHE DID NOT HAVE TO DO THAT AND MADE A MISTAKE AND WHEN SHE FILED THE APPROPRIATE MOTION HE DENIED IT. Civ.R. 60(B) governs motions for relief from judgment and provides in part: On motion and upon such terms as are just, the court may relieve a party or his legal representative from a final judgment, order or proceeding for the following reasons: (1) mistake, inadvertence, surprise or excusable neglect; (2) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59(B); 4We wish to stress that our opinion today does not preclude plaintiff-appellant from making subsequent attempts to modify visitation rights. Yet we feel compelled to note that excessive and/or frivolous filings in this pursuit could be ultimately detrimental to that cause. -13- (3) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation or other misconduct of an adverse party; (4) the judgment has been satisfied, released or discharged, or a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective application; (5) any other reason justifying relief from judgment. The motion shall be made within a reasonable time, and for reasons (1), (2) and (3) not more than one year after the judgment, order or proceeding was entered or taken. Without even addressing the requirements necessary to warrant relief from judgment pursuant to Civ.R. 60(B) under GTE Automatic Electric v. ARC Industries (1976), 47 Ohio St.2d 146, we stress that by the clear and unambiguous language of Civ.R. 60(B), a motion for relief from judgment by definition can only be granted from a final judgment. Since plaintiff-appellant's cause of action was voluntarily dismissed without prejudice, the trial court did not abuse its discretion in denying her subsequent motion for relief from judgment. See Hensley v. Henry (1980), 61 Ohio St.2d 277. Judgment affirmed. -14- 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 Cuyahoga County Common Pleas 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. JAMES M. PORTER, P.J.,CONCUR; JAMES D. SWEENEY, J., CONCURS IN JUDGMENT ONLY. JUDGE MICHAEL J. CORRIGAN 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 clerk per App.R. 22(E). See, also, S.Ct.Prac.R. II, Section 2(A)(1). .