Opinion
Appellate Case No. 2016-CA-27
05-12-2017
MATTHEW T. HELMS Plaintiff-Appellee v. GENEVA L. HELMS (nka BRINKMAN) Defendant-Appellant
MATTHEW T. HELMS, 4357 State Route 559, North Lewisburg, Ohio 43060 Plaintiff-Appellee-Pro Se GENEVA L. BRINKMAN, 6412 County Road 29, West Liberty, Ohio 43357 Defendant-Appellant-Pro Se
Trial Court Case No. 2010-DR-180 (Appeal from Champaign County Family Court)
OPINION
MATTHEW T. HELMS, 4357 State Route 559, North Lewisburg, Ohio 43060 Plaintiff-Appellee-Pro Se GENEVA L. BRINKMAN, 6412 County Road 29, West Liberty, Ohio 43357 Defendant-Appellant-Pro Se TUCKER, J.
{¶ 1} Geneva Helms (now known as Brinkman) appeals pro se from a judgment of the Champaign County Court of Common Pleas Family Court Division granting parenting time to her ex-husband Matthew Helms. She contends that the trial court abused its discretion by denying her request for restricted, supervised visitation. We conclude that the court properly exercised its discretion. Accordingly, the judgment of the trial court is affirmed.
I. Facts and Procedural History
{¶ 2} Helms and Brinkman have one minor child born of their marriage. The parties were divorced in 2011. Brinkman was granted sole custody of the child. Due to a significant period of time in which Helms and the child had no contact, Helms received restricted visitation consisting of six hours of supervised visitation every other Saturday.
{¶ 3} In October 2015, Helms filed a motion to hold Brinkman in contempt with regard to parenting time. During a pretrial held on November 19, 2015, Helms made an oral motion to modify parenting time. At a final pretrial hearing in January 2016, Helms was granted parenting time "as the parties agree." The parenting time was ordered to be supervised by Helms' sister. On August 3, 2016, the parenting time was adjusted to unsupervised visitation for two hours every other Sunday.
{¶ 4} On August 17, 2016, Brinkman filed an emergency ex parte motion to prevent Helms from exercising parenting time. Attached to the motion was a copy of a citation for operating a vehicle while under the influence of alcohol issued to Helms on June 19, 2016. The motion was denied, but the trial court issued an order requiring Helms to refrain from consuming, or being under the influence of, alcohol during his parenting time.
There is no evidence that the child was with Helms at the time he was cited.
{¶ 5} Helms dismissed the motion for contempt. A hearing on the issue of modification of parenting time was conducted on September 20, 2016. Both parties appeared pro se.
{¶ 6} Helms testified that he does not know much about the minor child, but wants more visitation in order to be a part of the child's life. He testified that the visitation with the child was going well. Helms admitted he was convicted of driving under the influence in June. He testified that he had been sober for over a year prior to the conviction, and that he does not drink around the child.
{¶ 7} Helms' father, William Helms, testified that he was present for at least four of the visitations between Helms and the child. He testified that the visits were good and that there were no problems during visitation. He testified that Helms has matured, and that he is now a good father. He testified that it would be good for the child to spend time with Helms and his extended family. He also testified that the child is happy, and that Brinkman has done a good job raising the child.
{¶ 8} Brinkman testified that she believes Helms has mental health issues that have not been addressed. She testified that Helms was violent with her during the course of their marriage, and that Helms informed her that he heard voices in his head. She testified that the child is "wary" and "scared" of his father. Brinkman also testified that the child enjoys visitation with Helms. She testified that Helms' current wife has been referred to childrens' services in connection with her own children. Brinkman testified that the minor child has an anxiety disorder because of the "whole situation." She testified that she is worried about her child's safety with Helms.
Helms testified that he was drunk and joking when he made that statement.
{¶ 9} A Guardian Ad Litem was appointed by the court. The GAL issued an initial report, filed on January 15, 2016, recommending that Helms be permitted, at most, supervised visitation as agreed to by Brinkman. The GAL noted that Helms has a history of, and propensity for, violent behavior and alcohol abuse.
{¶ 10} An updated report was filed in July 2016. In that report, the GAL noted that Helms had been exercising supervised visitation with the child. The GAL also noted that Helms' current wife had been charged with three counts of child endangering with regard to her own children in March of 2016. The GAL reported that the minor child wanted to continue visitations with Helms so long as other people were present.
{¶ 11} Finally, the GAL submitted a second updated report on September 13, 2016. The GAL reported that Helms' home is appropriate, and that the minor has a bed and room for overnight visits. The GAL noted that the case regarding the child endangering charges had been resolved, and that childrens' services were no longer involved with Helms, his wife, or their family. The GAL reported concern regarding the child endangering charges as well as Helms' history of violence and his charge for driving under the influence. However, the GAL noted that the child was old enough to report any problems with visitation, and that no problems had been reported with visitation. The GAL recommended that Helms be awarded unsupervised visits for one full day every other weekend.
{¶ 12} Following the hearing, the trial court entered an order granting Helms unsupervised parenting time in accordance with the Champaign County Family Court Standard Order of Parenting Time. The trial court further ordered Helms to refrain from consuming any alcohol prior to, or during, visitation.
{¶ 13} Brinkman, acting pro se, appeals.
II. Argument on Appeal
{¶ 14} Brinkman's appellate brief does not comport with App.R. 16(A), which requires, among other things, a table of contents, a table of authorities, a statement of the assignments of error, statements of the issues presented for review, and references to the record which support the arguments raised in the brief. "Litigants who choose to proceed pro se are presumed to know the law and correct procedure, and are held to the same standard of other litigants." Yocum v. Means, 2d Dist. Darke No. 1576, 2002-Ohio-3803, ¶ 20. App.R. 12(A)(2) provides that a court of appeals may "disregard an assignment of error presented for review if the party raising it fails to identify in the record the error on which the assignment of error is based or fails to argue the assignment separately in the brief, as required under App. R. 16(A)." "* * * [S]uch ommissions permit the Court to either strike the offending portions of the brief or sua sponte dismiss the appeal, [however, we will] generally still review the merits of appellant's claims in the interests of justice." VanHeulen v. VanHeulen, 2d Dist. Greene No. 2015-CA-29, 2015-Ohio-4792, ¶ 11.
{¶ 15} From our reading of Brinkman's appellate brief, it appears that she intended to assert the argument that the trial court abused its discretion in granting unsupervised parenting time to Helms.
{¶ 16} The determination of parenting time is an issue committed to the discretion of the trial court. Szeliga v. Szeliga, 2d Dist. Greene No. 2011-CA-65, 2012-Ohio-1973, ¶ 12. Absent an abuse of that discretion, a reviewing court will not reverse a trial court's decision on parenting time. Id. The term "abuse of discretion" implies that the trial court's decision is unreasonable, arbitrary or unconscionable. Id.
{¶ 17} R.C. 3109.051 governs modification of a parenting time schedule. Braatz v. Braatz, 85 Ohio St.3d 40, 706 N.E.2d 1218 (1999), paragraph one of the syllabus. When revising a parenting time schedule, a trial court must establish a schedule that is in the best interest of the child, and in doing so, it must consider the factors set forth in R.C. 3109.051. Id. at paragraph two of the syllabus. These factors include: the prior interaction and relationship of the child with the child's parents; the geographical location of the residence of each parent and the distance between those residences; the child's and parents' available time; the age of the child; the child's adjustment to home, school, and community; the health and safety of the child; the mental and physical health of all parties; each parent's willingness to reschedule missed parenting time and to facilitate the other parent's parenting time rights; and any other factor in the best interest of the child. R.C. 3109.051(D).
{¶ 18} In ordering parenting time, the trial court stated: "The court believes [Helms] should have meaningful parenting time with his son, and it is in the son's best interest to have that parenting time. Although the Court understands [Brinkman's] concerns for the child's safety, the recent visits and the GAL Report suggest the child is not in any danger."
{¶ 19} From our review of the record, it is clear that there is a concern with Helms' behavior and actions. However, the record supports a finding that Helms had been exercising unsupervised visitation for a period of time with no reported problems. There is no evidence that Helms has harmed the child or that he drinks when with the child. Significantly, the child wishes to continue visitation with Helms. As noted by the trial court, "the child is 13 years old and able to report any problems." Dkt. p. 69. If any problems arise, Brinkman may file the appropriate motions regarding visitation.
The child is now 14 years of age. --------
{¶ 20} We cannot say that the trial court abused its discretion in its resolution of the parenting time rights. Accordingly, Brinkman's sole assignment of error is overruled.
III. Conclusion
{¶ 21} Brinkman's sole assignment of error is overruled, and the judgment of the trial court is affirmed. DONOVAN, J. and FROELICH, J., concur. Copies mailed to: Matthew T. Helms
Geneva L. Brinkman
Hon. Brett A. Gilbert