text:
    Heather CONDON, Appellant v. Ryan ROCKICH, Appellee
    No. 28479
    Court of Appeals of Ohio, Ninth District, Summit County.
    Dated: January 10, 2018
    CORINNE HOOVER SIX, Attorney at Law, for Appellant.
    MARY E. RANDAZZO, Attorney at Law, for Appellee.
    CHANDRA MUSTER, Attorney at Law, for Children.
    JAMES PHILLIPS, Guardian ad Litem.
    DECISION AND JOURNAL ENTRY
   CARR, Judge.

{¶ 1} Appellee Heather Condon ("Mother") appeals from the judgment of the Summit County Court of Common Pleas, Domestic Relations Division. This Court affirms in part, and reverses in part.

I.

{¶ 2} Mother and Appellee Ryan Rockich ("Father") were married in 1996 and three children were born of the marriage: S.R. (d.o.b. 5-10-00), H.R. (d.o.b. 7-31-01), and E.R. (d.o.b. 5-29-03). The parties divorced in 2006 and a shared parenting plan was made a part of the decree. It provided that Mother was the residential parent of the children at all times, provided parenting time for Father, and ordered Father to pay child support. In 2006, Mother filed notices of intent to relocate the children to New Jersey. Father did not file objections to the notices. Mother relocated to New Jersey with the children, completed nursing school, and subsequently remarried. Mother's husband has a son from a prior relationship whom he has custody of and is close in age to E.R. In 2010, Mother and Mother's husband also had a child together. During the course of the litigation, Father also remarried.

{¶ 3} Mother and Mother's husband began experiencing marital problems and on several occasions separated, sometimes only briefly. Father maintained that Mother separated at least five times from her husband and brought the children back to Ohio on at least three occasions; however, Mother denied that assertion. Mother did acknowledge that in August 2011 she separated from her husband for 18 months. At that point, Mother asked Father to care for the children for the school year. Father enrolled the children in Barberton schools. Mother and Father entered into an agreed entry on March 27, 2012 reflecting that the three children would reside with Father for the 2011-2012 school year. On August 2, 2012, Mother and Father entered into another agreed entry providing that the three children would reside with Father for the 2012-2013 school year and that Father would be relieved of paying child support for that time period. In part, Mother blamed her instability and marital discord on having Graves Disease, which is an autoimmune condition that causes overproduction of a thyroid hormone, which can cause mood swings and irritability. Mother was able to control the condition through medication.

{¶ 4} On December 3, 2012, Father filed a motion seeking the reallocation of parental rights and responsibilities, modification of parenting time, and modification of child support. A magistrate issued a provisional order on February 21, 2013. Therein, the magistrate found that the parties' agreed entry from August 2, 2012, "in essence, designated [Father] as the residential parent of the children[.]" The magistrate ordered that the shared parenting plan would "remain in effect, except as modified" below. The magistrate designated Father as "the temporary residential parent" and the "temporary residential parent * * * for school purposes[.]" Mother was to have parenting time one weekend a month in Ohio and the standard parenting time schedule applied to holidays, days of special meaning, and summer vacation.

{¶ 5} Beginning in 2014, the matter proceeded to trial. However, the litigation was contentious and prolonged. At one point, Mother was limited to supervised visitation. A guardian ad litem ("GAL") was appointed, and the children also received counsel when it was discovered their wishes conflicted with the recommendation of the GAL. Moreover, two custody evaluations were conducted. Multiple hearings and trial dates were held, the last of which was not held until February 5, 2016. Numerous motions were filed in the interim, including motions seeking to hold Mother in contempt for violations of various orders. Ultimately, the GAL and both custody evaluators that testified at trial recommended that the children remain in Father's care.

{¶ 6} In May 2016, the magistrate issued a decision, which the trial court adopted the same day. The magistrate found that it was in the children's best interests to terminate the shared parenting plan and name Father the sole legal custodian and residential parent. Mother was ordered to engage in counseling and Mother and children were to engage in family counseling. Mother was to continue with supervised visitation until unsupervised contact was suggested by her counselor, the family counselor, and the children's counselors. Subsequently, Mother was to have "Regular Parenting Time" as specified in the entry. For the period from December 3, 2012 through December 31, 2014, Mother was ordered to pay $1,214.50 in child support and was ordered to pay $1,346.83 in child support effective January 1, 2015. Additionally, Mother was ordered to pay $20,840 for attorney fees and extraordinary costs due to Mother's violation of the civil rules, frivolous conduct, contempt, and discovery violations.

{¶ 7} Mother filed timely objections to the magistrate's decision and requested transcripts of the hearings. After the transcripts were filed, Mother moved for an extension of time to file supplemental objections, which was granted. Thereafter, Mother filed supplemental objections. On January 4, 2017, the trial court issued an entry addressing the objections. The trial court concluded that shared parenting was not in the children's best interests and that Father should be named the sole residential parent and legal custodian. The trial court listed factors that it found important, including that the parties were unable to communicate in a meaningful way, the children were well adjusted to living with Father, that Father was more likely to honor court ordered visitation, and that the GAL recommended that the children reside with Father. Additionally, the trial court increased the sanctions against Mother to $25,000.

{¶ 8} Mother has appealed, raising five assignments of error for our review.

II.

ASSIGNMENT OF ERROR I

THE DECISION OF THE TRIAL COURT IN ALLOWING TAPE RECORDED CONVERSATIONS BETWEEN MOTHER, THE MINOR CHILDREN, AND MOTHER'S
SPOUSE TO BE USED AS EVIDENCE AT TRIAL WAS A VIOLATION OF THE RULES OF EVIDENCE, PREJUDICIAL AND AN ERROR OF LAW[.]

{¶ 9} Mother argues in her first assignment of error that the trial court erred in allowing the audio tape recordings of Mother's and Mother's husband's conversations with the children to be used as evidence.

{¶ 10} "Generally, this Court reviews a trial court's action with respect to a magistrate's decision for an abuse of discretion." Pflaum v. Summit Cty. Animal Control , 9th Dist. Summit No. 28335, 2017-Ohio-4166, 2017 WL 2467132, ¶ 11, citing Tabatabai v. Tabatabai , 9th Dist. Medina No. 08CA0049-M, 2009-Ohio-3139, 2009 WL 1844353, ¶ 17. An abuse of discretion implies that the trial court's attitude was unreasonable, arbitrary, or unconscionable. Blakemore v. Blakemore , 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983). " 'In so doing, we consider the trial court's action with reference to the nature of the underlying matter.' " Pflaum at ¶ 11, quoting Tabatabai at ¶ 18.

{¶ 11} At the initial trial date in February 2014, Father's counsel asked Mother various questions related to what she discussed with the children when she spoke to them, and what she allowed her husband to discuss with the children, including court proceedings, financial and litigation costs, as well as whether she undermined or spoke negatively about Father. Largely without objection, Father's counsel then played conversations purported to be between Mother (and sometimes Mother's husband) and the children that Father had recorded.

{¶ 12} Those recordings were also discussed at the May 21, 2015 hearing. Therein, Mother acknowledged that at the prior hearing she had admitted to: discussing the case with the children, discussing litigation costs with the children, telling H.R. to tell the magistrate certain things, allowing her husband to talk to the children about court proceedings, and undermining Father's relationship with the children. There were no objections raised to this line of questioning. Mother, without objection, made similar acknowledgements relative to the recordings at the September 28, 2015 hearing.

{¶ 13} Finally, at the November 18, 2015 hearing, several of the recordings were played for Dr. Richard Rynearson, a clinical psychologist who co-authored the second custody evaluation. The report based on the second custody evaluation recommended that Mother receive custody of the children. However, Dr. Rynearson admitted that he had not listened to the audio recordings provided by Father but noted that from his observations any alienation by Mother was not "particularly obvious." Dr. Rynearson acknowledged that if Mother admitted to undermining Father, alienating Father, and discussing the litigation with the children that would be important for him to know and to consider in rendering an evaluation. Several of the audio recordings were then played for Dr. Rynearson without objection. After hearing the recordings, Dr. Rynearson agreed that it was a mistake not to listen to them prior to issuing a recommendation. The GAL then asked, without objection, whether, after hearing the recordings, his recommendation had changed. Dr. Rynearson responded that he would have to think about it. The magistrate then asked, without objection, whether, "based upon all the audio recordings and the statements that if you perceive them to be true * * * would your recommendation you've made to the Court change[?]" Dr. Rynearson indicated it would and that he would recommend that the children continue to live with Father.

{¶ 14} At the final date of the hearing, during the admission of the exhibits, Mother's counsel objected to the admission of the audio recordings as an exhibit. Counsel asserted she was "maintain[ing] [her] earlier objection." Counsel noted she was not representing Mother at the time of the original objection, but from her review, she believed "the objection had to do with whether it was an authentic original production of the recording, and whether that recording had or had the potential to be manipulated." Father's counsel replied that the clips were offered for impeachment and asserted that Mother had authenticated her voice. Father's counsel also noted that all parties were provided with the entire recording. Additionally, Mother objected to the transcript of the audio recording being admitted as an exhibit. The magistrate overruled Mother's counsel's objections.

{¶ 15} Following the issuance of the magistrate's decision, Mother filed objections related to the audio recordings. In her supplemental objections, Mother argued not only that the audio recordings were improperly admitted into evidence, but also objected to the use of the audio recordings at trial. Mother argued that the recordings were not admissible because the record was devoid of any foundational questions related to authentication necessitated by Evid.R. 901(A). Additionally, Mother argued that the use of the recording was impermissible hearsay and that the use of the recordings violated federal law and state law as they were obtained without consent of Mother or Mother's children.

{¶ 16} We conclude that Mother has not properly preserved her arguments for appeal. During trial, Mother only raised a single objection to the playing of one of the recordings, arguing that that particular clip was not being used for impeachment. No other objections to the playing of the recordings were made at the time they were played. Mother also did not object to the questioning at subsequent hearings that related to the playing of the recordings. Instead, at trial, Mother only objected to the admission of the recordings as an exhibit, and only on the basis that she was not sure the recordings were complete and had not been manipulated.

{¶ 17} While Mother included the arguments she raises on appeal in her supplemental objections, this Court has stated that "[t]he filing of a written objection to the decision of a magistrate is not a substitute for the obligation to object to a purported error at the time of its occurrence." In re M.B. , 9th Dist. Lorain Nos. 11CA010060, 2012-Ohio-5428, 2012 WL 5899320, ¶ 11. "Indeed, '[t]he contemporaneous objection rule is fundamental to our jurisprudence.' " Id. , quoting Steward v. Norris Bros. Co., Inc. , 8th Dist. Cuyahoga No. 53540, 1988 WL 32117, *1 (Mar. 17, 1988). "The rule serves the interest of justice because it allows for the correction of many defects while they are readily curable, as well as it encourages the elimination of delay and the unnecessary use of the appellate process." In re M.B. at ¶ 11. "In this case, any purported error could have been very easily corrected had an objection been timely entered." Id.

{¶ 18} Accordingly, Mother has not preserved the vast majority of her current objections to the use of the recordings at trial. See id. To the extent Mother has preserved her single objection to the use of one of the recordings at trial, we conclude that any error in allowing that recording to be played was harmless in light of the use of the other clips to which there was no objection. See Civ.R. 61. To the extent Mother challenges the admission of the exhibit itself, we likewise conclude any error in the admission of the exhibit was harmless in light of use of the recordings at trial to which there was no objection. See id.

{¶ 19} Mother's first assignment of error is overruled.

ASSIGNMENT OF ERROR II

THE DECISION OF THE TRIAL COURT IN TERMINATING MOTHER'S SHARED PARENTING, FINDING MOTHER VIOLATED PRIOR ORDERS OF THE COURT, AND IMPOSING SANCTIONS AGAINST HER, WAS ALL BASED ON AN ERROR AND MISAPPLICATION OF LAW THAT FATHER WAS THE TEMPORARY SOLE CUSTODIAN.

{¶ 20} Mother argues in her second assignment of error that the trial court based some of its decisions (related to terminating the shared parenting plan, and concluding that she violated orders and imposing sanctions) on the incorrect finding that Father was the temporary sole custodian. Mother maintains that the trial court concluded that it previously terminated the parties' shared parenting plan and named Father as the sole residential parent and legal custodian.

{¶ 21} Initially, we note that Mother has not pointed this Court to a place in the magistrate's decision or the trial court's judgment entries wherein the court concluded that it previously terminated the shared parenting plan. See App.R. 16(A)(7). Essentially, Mother asserts that she was punished for taking the children to medical and counseling appointments without the consent of Father. Mother admitted during the trial that during spring break 2014, she took E.R. to a pediatrician and the children to a counselor without informing Father before doing so and without seeking his consent.

{¶ 22} The magistrate's February 21, 2013 order stated that Father was "designated as the temporary residential parent of the minor children" and as "the temporary residential parent of the children for school purposes[.]" However, the order also provided that "[t]he parties' Shared Parenting Plan shall remain in effect, except that it is modified as follows[.]" Thus, Mother maintained that, because the shared parenting plan was not terminated, she was free to take the children to appointments without the consent of Father.

{¶ 23} Unfortunately, the parties' shared parenting plan is not a model of clarity when it comes to addressing medical issues concerning the parties' children. The plan does not specify who can or cannot decide that the children need to see a medical or psychological professional for non-emergency issues, nor does it state that the parents must notify each other of the children's non-emergency medical appointments. It only states that "[a]rrangements and transportation for medical/dental care shall be the responsibility of the parent with whom the children are residing." However, the plan does state that "[b]oth parents agree to communicate with one another either directly, or through a third party if necessary, frequently and in good faith about parenting issues." It also provides that "[t]he parties have undertaken to establish a Parenting Plan which provides for equitable sharing of their parental rights and responsibilities, joint decision-making, and the enjoyment of their children's lives."

{¶ 24} Thus, it is somewhat unclear to this Court who could decide if the children needed non-emergency medical/psychological care and whether that decision had to be approved by the other parent. Naming Father the temporary residential parent does not provide further clarity in light of the provision that the shared parenting plan would remain in place. However, in light of the language of the shared parenting plan favoring communication about parenting issues and joint decision-making, it could be argued that Mother should have at least consulted with Father prior to taking the children to the appointments, even if she did not necessarily need his consent.

{¶ 25} Nonetheless, even assuming there was an error in the lower court concluding that Mother was not free to take the children to medical and psychological appointments without Father's consent, we cannot conclude that that error created the prejudice Mother alleges or formed the primary basis for the magistrate's and trial court's decisions.

{¶ 26} It is true that the magistrate did mention on more than one occasion that Mother took the children to appointments without the consent of Father. One of those instances, however, was in a section of the magistrate's findings detailing Father's testimony. With respect to the termination of the shared parenting plan, the magistrate did mention that "Mother [ ] exhibited throughout the litigation a lack of respect for Father's designation as temporary custodian (i.e. She without authority took children to doctors, counsellors etc.)[.]" However, much more of the magistrate's statements and findings prior to and subsequent to related to a discussion of the testimony of the GAL and custody evaluators who ultimately recommended that the children reside with Father. The magistrate noted that the GAL found Mother's conduct to demonstrate a pattern of alienation and believed that Mother had discussed the litigation and audio recordings with the children despite court orders prohibiting the same. The magistrate also noted that one of the custody evaluators found that Mother and Mother's husband disparaged Father and his spouse and that Mother seemed not to understand her behavior was disruptive to the children's wellbeing. The magistrate further commented that the custody evaluator testified that the children had indicated Mother had discussed the litigation with the children. The magistrate also pointed out that Mother had admitted to discussing the case with the children and to undermining Father's relationship with the children.

{¶ 27} In concluding that the shared parenting plan should be terminated and Father should be named the sole residential parent, the magistrate noted that Mother exhibited a propensity to be "capricious, exercise[d] poor judgment as it concern[ed] her behavior and disclosures with the children, [failed to comply] with court orders and directives, and [failed] to get compliance by herself and her spouse in their interactions with the children which would allow for them to comply with court orders and directives." The magistrate further stated that "the voluntary conduct of Mother ha[d] evolved to the point that the court can no longer consider Mother to be suitable to have custodial responsibilities for the children of any kind." While the magistrate then stated that "[t]he Court believes this to be so as Mother has exhibited throughout the litigation a lack of respect for Father's designation as temporary custodian (i.e. She without authority took children to doctors, counsellors etc.)[,]" the magistrate continued stating, "it is fair to say mother has failed to abide by Court orders and directives; and most importantly the Court finds particularly from the testimony of the trained professionals that Mother fail[ed] to appreciate the stress and adverse effects that her inappropriate conduct and decisions she has made has had upon the children." (Emphasis added.) Finally, the magistrate observed that the parties did not have the ability to communicate to make joint decisions. Thus, considering the entirety of the magistrate's decision, we cannot say that Father was awarded custody of the children because Mother took the children to appointments without Father's consent.

{¶ 28} Moreover, while the trial court adopted the magistrate's decision, in the entry addressing the objections, the trial court found it was in the children's best interests to terminate the shared parenting plan based upon several factors including: the children's relationship with their parents, the fact that they experienced instability while in Mother's care, the fact that the parents were unable to communicate regarding the children's care, that the children were well-adjusted to living with Father, that Mother was in need of counseling to address her behavior issues, that Father was more likely to honor court approved parenting time, and that the GAL recommended that the children reside with Father. The trial court did not mention the fact that Mother took the children to medical or psychological appointments without Father's consent as a basis for terminating the shared parenting plan and naming Father the residential parent.

{¶ 29} With respect to Mother's contention that she was found in violation of court orders and sanctions were issued against her based upon her taking the children to appointments without Father's consent, we likewise cannot conclude that the trial court based its decision to issue sanctions on that behavior.

{¶ 30} In detailing the conduct that the magistrate found frivolous, the magistrate did mention that Mother took the children to doctors and a psychologist without Father's consent. However, read in context of the entire decision, it appears that the magistrate was expressing that such behavior prolonged the litigation and also perhaps allowed Mother to manipulate the children's views and statements. The sentences after the mention of the doctors' visits state that "Mother then requested an in camera interview with the minor children immediately following her parenting time. Mother repeatedly, aggressively, and persistently, instructed the minor children in their actions and statements and further directed the minor children as to their in camera interview with [the] Magistrate[.]" Additionally, the magistrate pointed out that Mother had requested four continuances in the case, requested, then withdrew, and then resubmitted a request for a custody evaluation, had failed to timely pay certain fees, and admitted to violating a discovery order.

{¶ 31} Additionally, the magistrate found Mother in contempt for violating a June 2015 order which limited Mother's contact with the children and for violating the court's order which restrained the parties from discussing court matters and the recordings with the children. Thus, we are unpersuaded that the magistrate's reference to Mother failing to follow court orders refers primarily or solely to Mother's act of taking the children to medical appointments without Father's consent when the magistrate found Mother had violated multiple court orders.

{¶ 32} As Mother has not argued that the decision terminating the shared parenting plan and naming Father the residential parent was not in the children's best interest or was otherwise unsupported by the record, and has not otherwise challenged the amount or legality of the sanctions imposed, those issues are not before us in this appeal. Based on Mother's limited argument, her second assignment of error is overruled.

ASSIGNMENT OF ERROR III

THE TRIAL COURT'S PURPORTED GAG ORDER AND LIMITATIONS ON THE TESTIMONY OF THE CHILDREN WAS A VIOLATION OF MOTHER'S DUE PROCESS RIGHTS, AS IT INHIBITED HER ABILITY TO CROSS EXAMINE EVIDENCE USED AGAINST HER.

{¶ 33} Mother asserts in her third assignment of error that the trial court erred in imposing a gag order that prohibited anyone from discussing the audio recordings with the children because said order was never journalized. Additionally, Mother argues that the order interfered with her children's attorney-client relationship with their attorney. Finally, Mother challenges the limitations the magistrate imposed on questioning S.R. and H.R. at trial.

{¶ 34} The gag order Mother references was ordered at the end of the February 21, 2014 hearing after the magistrate discovered the children did not yet know of the audio recordings of their conversations with Mother and Mother's husband. The magistrate then stated:

The Court's going to issue a gag order to everyone present including the counsel for the children not to discuss the existence of audio recordings or that the children have been recorded by any electronic means * * * and that the Court has listened to some of the audio recordings. Any infraction of that would be a finding of direct contempt of court.
The Court is also going to caution the parties again that if the Court learns of any discussion with the children about any of these court proceedings or further questions of the children about what they told the Court or any information given to the children about what happened in court, or what will be happening in the future about court, will be a finding of direct contempt[.]

{¶ 35} The gag order was not reduced to writing, but was later mentioned in a subsequent order. In March 2015, Father filed a motion for contempt against Mother alleging she had violated the February 21, 2014 gag order as she continued to discuss court matters with the children and as well as the audio recordings. Additionally, Father filed a motion to restrain the children's contact with Mother in light of her efforts at alienating Father. Mother did not respond to the motions. In May 2015, Mother filed a motion for contempt alleging that Father denied Mother visitation. A hearing was held May 21, 2015. While the motion was not immediately ruled upon, it was addressed in the magistrate's decision. In the magistrate's decision, the magistrate found Mother in contempt of the gag order.

{¶ 36} Mother has not argued that she did not violate the gag order; instead, she has only argued that it was not a proper order because it was not journalized. Mother has pointed to no case law holding that the failure of a party to follow a verbal order of the court cannot lead to a finding of contempt. See App.R. 16(A)(7). In fact, other courts have held the opposite. See, e.g., Champaign Cty. Court of Common Pleas v. Fransler , 2d Dist. Champaign No. 2015-CA-4, 58 N.E.3d 397, 2016-Ohio-228, ¶ 17 ("Indeed even disobedience of a verbal order of a court * * * is sufficient to support a criminal contempt."); see also Disciplinary Counsel v. Robinson , 126 Ohio St.3d 371, 2010-Ohio-3829, ¶ 47, 933 N.E.2d 1095 (discussing a case in which respondent's conduct of deliberately disobeying a verbal order of the court and lying about it was determined to be a violation of various professional conduct rules). Given the foregoing, we see no merit to Mother's argument.

{¶ 37} Additionally, Mother maintains that the gag order interfered with her children's attorney-client relationship with their attorney. However, Mother has not explained how this affected her own rights. "An appealing party may complain of an error committed against a nonappealing party when the error is prejudicial to the rights of the appellant." In re Smith , 77 Ohio App.3d 1, 13, 601 N.E.2d 45 (6th Dist.1991), citing State v. Ward , 9th Dist. Summit No. 13462, 1988 WL 99182, *3 (Sept. 21, 1988) ; see also In re M.Z. , 9th Dist. Lorain No. 11CA010104, 2012-Ohio-3194, 2012 WL 2874375, ¶ 34 ; In re Goggins , 9th Dist. Summit No. 18820, 1998 WL 469861, *4-5 (July 29, 1998). As Mother has not explained how she was prejudiced, she lacks standing to raise this issue, and her argument is overruled on that basis. In re Goggins , at *4-5.

{¶ 38} Mother next asserts that the manner in which the magistrate limited the children's testimony violated Mother's due process rights. We note that Mother cites no law in support of her argument. See App.R. 16(A)(7).

{¶ 39} The older children, S.R. and H.R. were subpoenaed by Mother to testify at the September 30, 2015 trial date. The children's attorney and the GAL filed motions to quash the subpoenas. The GAL indicated that the children's counselors and the GAL felt that it was not in the children's best interest to testify. Mother objected to the motion to quash arguing that the children's statements were not being accurately portrayed by the GAL and custody evaluators. The morning of the hearing, September 30, 2015, the magistrate issued an order limiting the testimony of the children and the manner in which the testimony would take place. The magistrate ordered that the questioning was limited to questions that directly related to the purported factual inaccuracies in the reports or testimony of the GAL and custody evaluators. Mother was to submit a written list of the purported factual inaccuracies and to state on the record what each was prior to questioning the children.

{¶ 40} Despite Mother's contention to the contrary, Mother was allowed to finish her examination of Father prior to questioning the children. While Mother's request to continue the questioning of the children to a later date was denied, during the proceedings in the trial court, Mother failed to proffer the testimony she alleges she was prohibited from eliciting. See Evid.R. 103(A)(2). Mother was able to question H.R.; however there was not time to question S.R. that day. Mother acknowledged in a subsequent motion that the questioning of S.R. was continued to a future hearing date. At the end of the September 30, 2015 hearing, the magistrate asked H.R. whether, if there were additional questions, H.R. would be willing to answer them in chambers at a later time, which H.R. agreed to do. Mother has pointed to nothing in the record which suggests that Mother requested that the children be recalled to answer additional questions and that request was denied.

{¶ 41} Mother filed a motion to set aside the September 30, 2015 magistrate's order and also requested to stay the children's testimony pending the ruling on her motion and to proffer the children's testimony. In November 2015, the parties entered into an agreed entry agreeing that the testimony/proffer of the children would be stayed until a ruling by the trial court on the various motions. They also agreed that the court would schedule a further trial date for the testimony and/or proffer of the children's testimony. Ultimately, the trial court denied Mother's motion to set aside the magistrate's September 30, 2015 order but noted in its entry that it was a temporary order and the parties would have time to negotiate the issues prior to the final hearing. The magistrate also granted Mother's motion to proffer. Mother points to nothing in the record indicating that she attempted to recall S.R. or H.R. subject to the limits of the September 30, 2015 order and was denied the same or that she sought to proffer the children's testimony and was denied the same. Under these circumstances, and given Mother's failure to cite to any law on the issue, Mother has failed to demonstrate that her due process rights were violated.

{¶ 42} Mother's third assignment of error is overruled.

ASSIGNMENT OF ERROR IV

THE DECISION OF THE TRIAL COURT IN FINDING MOTHER VIOLATED THE COURT'S JUNE 23, 2015 ORDER BY ATTENDING SPORTING EVENTS OF THE CHILDREN AND "LIKING" THE CHILDREN'S SOCIAL MEDIA POSTS WAS AN ERROR OF LAW AND AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.

{¶ 43} Mother argues in her fourth assignment of error that the trial court erred in concluding that Mother violated the June 23, 2015 order limiting Mother's contact with the children and that such decision is against the manifest weight of the evidence. Specifically, Mother argues that her behavior did not amount to a communication.

{¶ 44} "When an appellant challenges the weight of the evidence in a civil case, this Court 'weighs the evidence and all reasonable inferences, considers the credibility of witnesses and determines whether in resolving conflicts in the evidence, the [finder of fact] clearly lost its way and created such a manifest miscarriage of justice that the [judgment] must be reversed and a new trial ordered.' " Lubanovich v. McGlocklin , 9th Dist. Medina No. 14CA0081-M, 2015-Ohio-4618, 2015 WL 6848496, ¶ 5, quoting Eastley v. Volkman , 132 Ohio St.3d 328, 2012-Ohio-2179, 972 N.E.2d 517, ¶ 20. "In weighing the evidence, however, we are always mindful of the presumption in favor of the trial court's factual findings. [T]he weight to be given the evidence and the credibility of the witnesses are primarily for the trier of the facts." (Internal quotations and citations omitted.) T.S. v. R.S. , 9th Dist., 81 N.E.3d 932, 2017-Ohio-281, ¶ 4.

{¶ 45} In March 2015, Father filed a motion to restrain the children's contact with Mother arguing that her behavior evidenced an effort to alienate Father. Mother did not respond to the motions. A hearing was held on May 21, 2015. On June 23, 2015, the magistrate issued an entry limiting Mother to supervised visitation with her children, which was adopted by the trial court. The order also limited other communication:

[Mother's] texting and phone communication as well as any other forms of communication shall occur only twice a week, on Tuesdays and Thursdays, with only one text provided by [Mother] to each child on each of those days, and one verbal communication to all children collectively (i.e. [Mother] will need to call [Father's] home phone or cell and be put on speakerphone etc. so that all children can participate at once) on each of those days. [Father] is authorized as he may deem appropriate to monitor the phone communication that occurs. The verbal communication via phone/cell phone shall be no longer than 15 minutes in length. The current spouse of [Mother] shall not participate in the phone call, text messages, or any other form of communication that occur with the children.
[ ] Further, [Mother] shall not encourage or request that the children contact her at other times via text/phone or other forms of communication for any purpose(s).
[ ] [Mother is not authorized to respond to the children's text messages, or phone calls that the children may place to her except as provided by this order.

(Emphasis sic.)

{¶ 46} In November 2015, Father moved to hold Mother in contempt for violating the June 2015 order. The matter was submitted to the court on the filed motions and affidavits. In Mother's affidavit, she acknowledged that she attended two of S.R.'s sporting events after the order was issued and that at one of them she and the children hugged but she told them she was not allowed to have contact with them. The children then indicated that they understood and did not try to have further contact with Mother. Mother also admitted to following S.R. and H.R. on Instagram and stated that they also follow her. Mother averred that she has "liked" photos her children have posted and also has, on one occasion, commented on one of H.R.'s photos. As Mother only joined Instagram in September 2015, any actions by Mother on Instagram would have occurred after the order.

{¶ 47} The magistrate found Mother in contempt for violating the June 23, 2015 order stating that "Mother's contact by social media and attendance at sporting events [were] not acceptable and place[d] the children in an untenable position while emboldening Mother to continue her contemptuous behavior. Mother admit[ted] in her affidavit that she ha[d] contact with the minor children by social media and attended sporting events where she had contact with the minor children."

{¶ 48} Mother argues that liking her children's posts and attending sporting events were not communications. However, Mother did more than just like her children's posts and attend sporting events. Mother also commented on a post and hugged her children and briefly spoke to them at a sporting event. The dictionary defines communication, inter alia, as "an act or instance of transmitting[,] * * * a process by which information is exchanged between individuals through a common system of symbols, signs or behavior[,]" and the "exchange of information[.]" Merriam-Webster's Collegiate Dictionary 251 (11th Ed. 2004). Thus, even if this Court were to conclude that the trial court abused its discretion in finding that Mother's social media interactions violated the court's order, the trial court could have reasonably concluded that Mother's behavior of engaging with her children at a sporting event by hugging them and talking to them did violate the order. See SandiCare, LLC v. Wilson , 9th Dist. Summit No. 28306, 2017-Ohio-7596, 2017 WL 4079410, ¶ 8 (noting that an appellate court will not reverse a trial court's decision in a contempt proceeding absent the appellant demonstrating that the trial court abused its discretion).

{¶ 49} Given Mother's argument, her fourth assignment of error is overruled.

ASSIGNMENT OF ERROR V

THE DECISION OF THE TRIAL COURT IN ENACTING A CHILD SUPPORT ORDER THAT FAILED TO GIVE MOTHER CREDIT FOR THE MARGINAL COSTS OF HEALTH INSURANCE SHE WAS ORDERED TO PROVIDE UNDER A PRIOR ORDER OF THE COURT WAS AN ERROR OF LAW.

{¶ 50} Mother argues in her fifth assignment of error that the trial court erred in failing to give Mother credit for her marginal costs of health insurance in its child support calculations. We agree in part.

{¶ 51} "Generally, [w]e review matters involving child support under the abuse-of[-]discretion standard." King v. King , 9th Dist. Medina Nos. 11CA0006-M, 2012-Ohio-5219, 2012 WL 5493374, ¶ 30. (Internal quotations and citations omitted.) This Court has previously held that it is an "error to exclude health insurance payments for children from the child support computation worksheet." Wachter v. Wachter , 9th Dist. Summit No. 23170, 2006-Ohio-6970, 2006 WL 3825207, ¶ 8. However, the trial court necessarily needs evidence of the amounts of those payments in order to properly complete the worksheet.

{¶ 52} On appeal, Mother does not dispute that she failed to submit evidence of her health insurance costs at the hearings. Father notes that Mother, on more than one occasion, notified the court that she intended to present evidence of those costs; however she did not do so. Nonetheless, Mother argues that, because the February 2013 provisional child support order gave Mother credit for her health insurance costs of $2,040 and she was ordered to continue providing health insurance for the children, then that amount must be credited to her from the date of the order through the date of the magistrate's decision.

{¶ 53} We conclude that the trial court did err in adopting the magistrate's child support calculations for the period of December 3, 2012 through December 31, 2014. While Mother did not supply the trial court with information about her health insurance costs for that period, Father did. Father submitted exhibit FF, which the magistrate admitted and noted was a "[s]ummary detailing child support calculation by year." That summary listed Mother's medical and vision costs as $2,040 for the years 2011, 2012, 2013, and 2014. Given that Father apparently agreed that those were Mother's health insurance costs for those years, it would seem unreasonable for the magistrate and trial court to not consider them in computing child support for the years 2012-2014.

{¶ 54} The summary, however, has no information about Mother's 2015 health insurance costs. Accordingly, to the extent the trial court declined to include Mother's health insurance costs in the worksheet for the child support order effective January 1, 2015, we cannot say Mother has demonstrated the trial court abused its discretion. Mother's counsel informed the court that she would be providing testimony evidencing Mother's marginal health insurance costs and then failed to do, despite numerous opportunities to do so and a lengthy period of time in which to do so; the hearing at which Mother's counsel informed the court that she would be providing evidence of the costs took place in September 2015. The last hearing did not take place until February 2016. See Marron v. Marron , 12th Dist. Warren Nos. CA2013-11-109, 2014-Ohio-2121, 2014 WL 2106731, ¶ 27-31 (following this Court's precedent in Wachter , but concluding that there was no abuse of discretion in the court failing to allow husband to reopen his case to present health insurance costs when husband had a full and fair opportunity to present the evidence but failed to do so). To the extent Mother asserts that the trial court should have assumed that her 2015 health insurance costs were the same as what they were at the time of the 2013 order, we reject the argument given Mother's failure to point to any authority that would require the trial court to do so. See App.R. 16(A)(7).

{¶ 55} Mother's fifth assignment of error is sustained in part, and overruled in part. The trial court shall recalculate child support for the years 2012-2014 including Mother's health insurance costs of $2,040 in the worksheets for each of those years.

III.

{¶ 56} Mother's fifth assignment of error is sustained in part, and overruled in part. Mother's remaining assignments of error are overruled. The judgment of the Summit County Court of Common Pleas, Domestic Relations Division, is affirmed in part, reversed in part, and this matter is remanded for proceedings consistent with this opinion.

Judgment affirmed in part, reversed in part, and cause remanded.

HENSAL, P.J.

TEODOSIO, J.

CONCUR.

      Mother's counsel did object to the playing of one of the audio recordings. Mother's counsel noted that Mother had admitted to telling the children that Father has kept the children from her and thus playing the audio recording that evidenced the same was not impeachment.

      Mother was not ordered to pay child support in 2011.


source: Caselaw Access Project

author: MARY EILEEN KILBANE, P.J.:

license: Public Domain

text:
    Zachary HAMMON, Plaintiff-Appellant v. HUNTINGTON NATIONAL BANK, et al., Defendants-Appellees
    No. 105107
    Court of Appeals of Ohio, Eighth District, Cuyahoga County.
    RELEASED AND JOURNALIZED: January 11, 2018
    George J. Argie, Dominic Vitantonio, Argie, D'Amico & Vitantonio, 6449 Wilson Mills Road, Mayfield Village, Ohio 44143, ATTORNEY FOR APPELLANT
    Franklin C. Malemud, Clifford C. Masch, Leon A. Weiss, Katie Lynn Zorc, Reminger Co., L.P.A., 101 W. Prospect Avenue, Suite 1400, Cleveland, Ohio 44115, ATTORNEYS FOR APPELLEE, For Huntington National Bank
    James A. Marx, Brian J. Green, Shapero & Green, L.L.C., 25101 Chagrin Boulevard, Signature Square 11, Suite 220, Beachwood, Ohio 44122, ATTORNEYS FOR APPELLEE, For First Capital Surety & Trust Co.
    Steven S. Kaufman, Ashtyn N. Saltz, Kaufman & Company, L.L.C., 1001 Lakeside Avenue, Suite 1710, Cleveland, Ohio 44114, ATTORNEYS FOR APPELLEE, For Jeffrey P. Consolo
    BEFORE: Kilbane, P.J., S. Gallagher, J., and Laster Mays, J.
    JOURNAL ENTRY AND OPINION
   MARY EILEEN KILBANE, P.J.:

{¶ 1} Plaintiff-appellant, Zachary Hammon ("Hammon"), appeals from the probate court's decision granting the Civ.R. 12(B)(6) motions to dismiss of defendants-appellees, Huntington National Bank ("Huntington"), First Capital Surety & Trust Company ("First Capital"), and Jeffrey P. Consolo ("Consolo"). For the reasons set forth below, we affirm in part and reverse and remand in part.

{¶ 2} On September 25, 2013, Hammon filed a complaint in the General Division of the Cuyahoga County Common Pleas Court against Huntington, First Capital, and Consolo. Hammon's complaint arose out of a monetary settlement of a medical malpractice action that he received as a minor, and the guardianship established to manage those funds in Cuyahoga P.C. No. 1992-GRD-1079707 (the "guardianship"). When Hammon was a minor, the probate court appointed Huntington as guardian of Hammon's estate, and Consolo acted as counsel for Huntington in its capacity as guardian. As we discuss more fully below, Huntington invested the guardianship estate funds in two separate trusts for which First Capital acted as trustee. The general division dismissed Hammon's complaint for lack of subject matter jurisdiction. On February 20, 2014, Hammon refiled his complaint in Cuyahoga P.C. No. 2014-ADV-195963 (the "adversarial proceeding").

{¶ 3} In October 2014, the trial court granted Hammon's motion to amend his complaint in response to motions for a more definite statement filed by Consolo and First Capital. That same month, Hammon filed his second amended complaint that is now the subject of the instant appeal.

{¶ 4} The following is an overview of the allegations contained in Hammon's second amended complaint. Hammon was born in September 1988. He sustained a birth injury that resulted in cerebral palsy and impairment of his motor skills. In September 1992, the probate court appointed National City Bank ("National City") as guardian of Hammon's estate for the purpose of managing the proceeds of his pending medical malpractice case in the common pleas court. In December 1993, the probate court approved the settlement of Hammon's medical malpractice case for $3,200,000.

{¶ 5} In July 1997, Hammon's mother, Rita Berardinelli ("Berardinelli"), through her attorney, Consolo, filed an application to remove National City as guardian of her son's estate and to appoint Huntington as successor guardian. In response to this application, National City agreed to step down as guardian. The probate court appointed Huntington as successor guardian of Hammon's estate. Hammon alleges that soon after the appointment of Huntington as guardian, Consolo ceased representation of Berardinelli and began to represent Huntington in its capacity as guardian, at the expense of the estate. Hammon further alleges that at the time Consolo filed the application to remove National City and appoint Huntington as guardian on behalf of Berardinelli, Huntington was also a client of Consolo and his law firm. He asserts this conflict of interest was never waived.

{¶ 6} In August 1999, Huntington filed an application for authority to purchase a $1 million annuity to generate an income stream over Hammon's lifetime. In December 1999, the probate court held an initial hearing on this application. Present at the hearing were Huntington representatives, Consolo, Berardinelli, and Hammon's father, David Hammon ("David"). David objected to the idea of an annuity and "advocated for an investment that would create an income stream and that would also protect the principal." The amended complaint further states that David obtained a continuance of the hearing to seek legal representation and consult with financial experts.

{¶ 7} At the continued hearing in February 2000, all parties in attendance at the December 1999 hearing were again present in addition to David's counsel, attorney Mark Sullivan ("Sullivan"). The parties met to consider and negotiate investment of guardianship funds so that Hammon would not receive a large sum when he turned 18, but rather to provide him with a stream of income over his lifetime. All parties present at the hearing eventually agreed that $1 million would be invested in a "Settlement Preservation Trust," with a projected income of "approximately $85,000 per year" with the $1 million principal being paid back to Hammon when he turned 35. This agreement was reflected in an agreed entry that was executed by a Huntington representative, Berardinelli, Consolo, David, and Sullivan. The agreed entry states, in relevant part:

The parties agree that the sum of [$1,000,000] should be invested in what is titled a "Settlement Preservation Trust." [Huntington,] as guardian of the estate, will be the grantor of the Trust as Guardian and will also be the beneficiary of the Trust until the time [Hammon] reaches the age of majority. Upon reaching the age of majority, [Hammon] will become the beneficiary of the income from the Trust, which is currently projected to be approximately [$85,000] per year. This income stream will continue until [Hammon] reaches the age of [35] at which time the income will cease and the original principal investment of [$1,000,000] will revert to [Hammon].

{¶ 8} On June 8, 2000, Consolo filed a motion to accept this undated agreed entry. Attached to the agreed entry was an unsigned schedule of payments sheet that lists a "guaranteed payout" of $1,950,745 and "annual benefits" of

$85,815 per year, guaranteed payable for 23 years. First payment is [November 2, 2000]. Last payment is [November 2, 2022]. This is 23 guaranteed annual payments, and then payments stop.

{¶ 9} The payment sheet also notes a "lump sum benefit[ ] payable [November 2, 2023]" of "$1,000,000." The motion to accept this agreed entry was withdrawn by counsel in December 2000.

{¶ 10} In July 2000, Huntington entered into a trust agreement with Morgan Chase Trust Company ("Morgan Chase") entitled the "Zachary Hammon Settlement Preservation Trust" ("SPT 1"). This first trust was funded with $1 million. The "schedule of payment instructions" attached as Schedule C to the SPT 1 document is very similar to the payment schedule attached to the agreed entry. It provides for "$84,815 annually for 23 years. Payments to commence on November 2, 2000" and "$1,000,000 lump sum paid on November 2, 2023." However, unlike the payment schedule attached to the agreed entry that provided for "guaranteed" annual and lump sum payments, the SPT 1 document states:

Grantor [HNB] acknowledges that Trustee [First Capital] and the Trust Service Administrator and the custodian [sic] have not made any guarantee with regard to investment return, investment performance of the Trust nor as to the payments set forth in Schedule C attached hereto.

{¶ 11} In January 2005, Huntington entered into a second trust agreement with Morgan Chase also entitled the "Zachary Hammon Settlement Preservation Trust" ("SPT 2"). SPT 2 was funded with $500,000. Addendum C attached to the SPT 2 document, captioned "Grantor's Request for Payments" provided:

{¶ 12} Periodic Distributions:

$33,307.89 paid annually to the Beneficiary [Hammon] for 18 years. Payments to commence [May 2, 2008] (age 18) and continue to and including [May 2, 2023] (age 35). * * * $500,000.00 lump sum payment paid to [Hammon] on [November 2, 2023] (age 35).

{¶ 13} SPT 2 contains similar "no guarantee" language to that of SPT 1:

The Beneficiary [HNB] further acknowledges that neither the Trustee [First Capital] nor the Custodian have made any guarantee of investment return, investment performance of the Trust, or of the ability of the Trustee to make a future distribution(s) contemplated under the Trust.

{¶ 14} Addendum C states that "[v]ariations in investment returns from those anticipated may cause the schedule of payments shown above to be higher or lower than those shown."

{¶ 15} Hammon turned 18 years old in September 2006. On January 24, 2007, Huntington filed its final account as guardian for the period from October 1, 2003 to September 4, 2006. The account shows assets and receipts totaling $2,080,774.52, disbursements of $369,180.57, and a resulting balance of $1,711,594.000. This accounting lists the following assets: Hammon and Berardinelli's home at a market value of $251,000; SPT 1, with a market value of $509,038.00; and SPT 2, with a market value of $487,127.

{¶ 16} On January 27, 2007, Hammon signed a ward's receipt acknowledging (1) receipt of $1,711,594; (2) approving the Final Account; and (3) "approv[ing] any Guardian or Attorney fees therein, which require [Hammon's] approval." The probate court approved the final account in March 2007 and terminated the guardianship.

{¶ 17} Hammon's second amended complaint explains that his father, David, was in prison from February 2000, "shortly after he and his attorney advocated for a guaranteed investment," until May 2002, and then again from September 2004 until January 2011. His mother, Berardinelli, had issues with drug addiction and died in February 2009. The second amended complaint alleges that despite the termination of the guardianship in March 2007, all defendants continued to act on Hammon's behalf as the bulk of the estate funds were still invested in SPT 1 and SPT 2 after termination of the guardianship.

{¶ 18} Hammon alleges that on May 7, 2009, his attorney at the time sent an email to a First Capital representative seeking confirmation as to whether payments under SPT 1 and SPT 2 were fixed or variable and whether there was any return of the principal. He alleges that First Capital did not respond to this inquiry.

{¶ 19} In November 2009, Huntington sent a letter to Hammon advising him that "the investment products purchased from First Capital (formerly Morgan Chase) had not performed as anticipated" and recommending that Hammon consult with an attorney. Hammon acknowledges that he did consult with two separate attorneys in 2009 and 2010, but alleges that the efforts of these attorneys to investigate the performance of SPT 1 and SPT 2 were thwarted by the defendants. He asserts that he was finally informed in June 2013, by one or more of the defendants, that neither SPT 1 nor SPT 2 guarantee any specific annual income nor the return of the principal.

{¶ 20} Based upon these allegations, Hammon asserted the following claims against Huntington in the second amended complaint: breach of contract (Counts 1 and 8), negligence (Count 2), breach of fiduciary duty (Count 3), fraud (Count 4), civil conspiracy (Count 5), conversion (Count 7), and violations of the Uniform Prudent Investor Act ("UPIA") (Count 9). Hammon also asserted claims of breach of contract, fraud, civil conspiracy, conversion, and violations of the UPIA against First Capital (Counts 4, 5, 6, 8, and 9) and fraud, civil conspiracy, and conversion against Consolo (Counts 4, 5, 6, and 7).

{¶ 21} After the filing of the second amended complaint, this matter proceeded on a parallel track with the inactive guardianship case. The trial court's judgment entry explains that in March 2014, Hammon moved the probate court to vacate its March 2007 order approving the final account. In late 2014, all three defendants in the adversarial proceeding separately moved for dismissal under Civ.R. 12(B)(6) of the second amended complaint. Huntington's motion to dismiss was also styled "in the alternative" as a motion for summary judgment. In December 2015, Hammon moved for the funds of SPT 1 and SPT 2 to be released to him. In September 2015, Hammon filed a suggestion of recusal of the judges of the probate court. Both Cuyahoga County Probate Court judges recused themselves, and a visiting judge was appointed over the inactive guardianship case and the present adversarial proceeding.

{¶ 22} The trial court denied the motion to vacate the order approving the final account of the guardianship estate in February 2016, but granted the motion to release the trust funds to Hammon in March 2016. Hammon moved the trial court to reconsider its denial of his motion to vacate the order approving the final accounting. The trial court denied his motion to reconsider in May 2016.

{¶ 23} In September 2016, the trial court held a hearing on the motions to dismiss, heard oral argument from counsel for all parties, and subsequently issued a judgment entry granting all three motions, dismissing the second amended complaint in its entirety.

{¶ 24} It is from this order that Hammon now appeals, raising the following three assignments of error for our review:

Assignment of Error One

The trial court erred in dismissing [Hammon's] second amended complaint, because (1) it wrongfully and erroneously concluded that his breach of contract claims were tort claims, and (2) it considered evidentiary materials outside of the complaint.

Assignment of Error Two

The trial court erred in dismissing the fraud and breach of trust claims, because even if the trigger dates of January 27, 2007 and May 7, 2009 are lawfully considered trigger dates, then the record still does not support the proposition that Hammon knew or reasonably should have known that [Huntington, First Capital, and Consolo] caused damages to him by their fraudulent conduct.

Assignment of Error Three

The trial court erred in considering numerous materials outside of the complaint, in ruling upon the 12(B)(6) motions that were filed by all defendants.

{¶ 25} For ease of analysis, we consider these assignments of error together.

Claims against Huntington

{¶ 26} In the first and third assignments of error, Hammon argues that the trial court erred in considering the evidentiary materials attached to Huntington's motion to dismiss and improperly granted Huntington's motion. We note that Huntington styled its motion to dismiss "in the alternative" as a motion for summary judgment and put forth res judicata and statute of limitations defenses to Hammon's claims.

{¶ 27} In considering a motion to dismiss a trial court cannot consider facts outside the pleadings, unless the parties are first provided with notice that the motion is being converted into a motion for summary judgment and afforded an opportunity to respond in accordance with Civ.R. 56. Redmond v. Sberna , 8th Dist. Cuyahoga No. 68529, 1996 WL 273764, at *3 (May 23, 1996). Notice is required to give parties a reasonable opportunity to demonstrate whether a genuine issue of fact exists. Id.

{¶ 28} Hammon argues that the trial court never notified the parties that Huntington's motion to dismiss would be converted into a motion for summary judgment and denied him the opportunity to conduct any discovery. He contends "[t]herefore, this is truly a [Civ.R.] 12(B)(6) case, and the court cannot look at any evidentiary materials outside of the complaint."

{¶ 29} In Redmond , this court considered whether notice of conversion is required when a motion to dismiss is also styled as an alternative motion for summary judgment. We held:

[T]here is no conversion of a motion to dismiss when a party moves to dismiss or, in the alternative, for summary judgment. The "in the alternative" styled motion provides all the notice necessary to the non-moving party because, on its face, it constitutes a motion to dismiss and a motion for summary judgment. Therefore, notice is not necessary when a motion to dismiss or, in the alternative, for summary judgment is filed, and the non-moving party acknowledges the dual nature of the motion and responds with countervailing evidentiary materials.

(Internal Citations Omitted.) Id. at *3, citing Applegate v. Fund for Constitutional Govt. , 70 Ohio App.3d 813, 816, 592 N.E.2d 878 (10th Dist.1990).

{¶ 30} Here, Hammon responded to Huntington's motion with countervailing evidentiary materials. To his reply brief, Hammon attached the affidavits of the attorneys who investigated the guardianship account on his behalf in 2009 and 2010. Each affidavit incorporated and referenced attached correspondence from each attorney to representatives of Huntington and First Capital.

{¶ 31} Accordingly, we review Huntington's motion under the summary judgment standard of Civ.R. 56. Our standard of review under Civ.R. 56 is de novo. Grafton v. Ohio Edison Co. , 77 Ohio St.3d 102, 105, 671 N.E.2d 241 (1996). The Ohio Supreme Court stated the appropriate test in Zivich v. Mentor Soccer Club , 82 Ohio St.3d 367, 369-370, 696 N.E.2d 201 (1998) :

Pursuant to Civ.R. 56, summary judgment is appropriate when (1) there is no genuine issue of material fact, (2) the moving party is entitled to judgment as a matter of law, and (3) reasonable minds can come to but one conclusion and that conclusion is adverse to the nonmoving party, said party being entitled to have the evidence construed most strongly in his favor. The party moving for summary judgment bears the burden of showing that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law.

{¶ 32} Once the moving party satisfies its burden, the nonmoving party "may not rest upon the mere allegations or denials of the party's pleadings, but the party's response, by affidavit or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial." Civ. R. 56(D) ; Mootispaw v. Eckstein , 76 Ohio St.3d 383, 385, 667 N.E.2d 1197 (1996). Doubts must be resolved in favor of the nonmoving party. Murphy v. Reynoldsburg , 65 Ohio St.3d 356, 358-359, 604 N.E.2d 138 (1992).

Res Judicata

{¶ 33} The trial court found that the March 2007 order approving the final account in the guardianship case is res judicata as to Huntington's administration of the estate and bars Hammon's breach of contract, negligence, breach of fiduciary duty, fraud, and conversion claims in Counts 1, 2, 3, 4, 7, and 8, because these claims "all arise out of the guardianship." The trial court explained in its entry that it had denied Hammon's motion to vacate the order approving the final account in the guardianship case and had also denied his motion to reconsider that ruling. The trial court also noted that Hammon did not appeal either ruling.

{¶ 34} This court has held that " R.C. 2109.35 * * * provides that an order of Probate Court upon the settlement of a fiduciary's account has the effect of a judgment and may only be vacated as provided in that statute." Ziechmann v. Adomitis , 8th Dist. Cuyahoga No. 50264, 1986 WL 3227, at *3 (Mar. 13, 1986) ; see also In re Skrzyniecki , 118 Ohio App.3d 67, 67, 691 N.E.2d 1105 (6th Dist.1997) (holding that a probate court's approval of the final account is res judicata on the issue of whether the guardian properly administered a ward's estate.).

{¶ 35} Under the doctrine of res judicata, "[a] valid, final judgment rendered upon the merits bars all subsequent actions based upon any claim arising out of the transaction or occurrence that was the subject matter of the previous action." Grava v. Parkman Twp. , 73 Ohio St.3d 379, 382, 653 N.E.2d 226 (1995). Thus, a final judgment on the merits of an action precludes the parties from relitigating issues that were or could have been raised in that action. Strode v. Phillips , 8th Dist. Cuyahoga No. 84838, 2005-Ohio-2827, 2005 WL 1364639, ¶ 11, citing Trojanski v. George , 8th Dist. Cuyahoga No. 83472, 2004-Ohio-2414, 2004 WL 1067923, ¶ 8.

{¶ 36} In the order approving the final accounting of the guardianship, the probate court found:

[T]he fiduciary [Huntington] has fully and lawfully administered the * * * guardianship * * * and has distributed the assets thereof in accordance with the law or the instrument governing distribution and that the final account should be settled and approved and the fiduciary discharged.

{¶ 37} Hammon argues that this order does not act as res judicata to bar his claims premised upon the agreed entry. He asserts that neither he nor his attorney at the time of the winding up of the guardianship knew that "there was a contract for guaranteed investment" and, therefore, his claims premised upon the agreed entry could not have been litigated in the guardianship case. Hammon differentiates between Huntington's administration and accounting of the guardianship and the assurances allegedly made by Huntington representatives to his parents that the terms of SPT 1 would guarantee yearly income and return of the $1 million principal.

{¶ 38} We agree with Hammon that Counts 1 and 4 of his second amended complaint, which he styles as breach of contract and fraud, respectively, do not relate to Huntington's administration of his estate. In both Counts 1 and 4, Hammon alleges that Huntington representatives made assurances to his parents that estate funds would be invested in a manner that guaranteed a return of the principal amount to Hammon when he reached the age of 35. Although Hammon's allegations in Counts 1 and 4 arise out of the guardianship, these alleged assurances were not the subject matter of the guardianship proceeding and are separate and distinct from the probate court's determination that Huntington lawfully administered Hammon's estate. Therefore, we find that Hammon's claims in Counts 1 and 4 are not barred by res judicata.

Applicable Statute of Limitations

{¶ 39} In his first assignment of error, Hammon argues that the trial court erred in concluding that Count 1, which he argues was a "very clearly pled contract claim," sounded in tort. He contends that the trial court improperly applied the four-year statute of limitations under R.C. 2305.09 to this claim rather than the 15-year statute of limitations under former R.C. 2305.06.

{¶ 40} The Ohio Supreme Court has explained that

statutes of limitations serve a gate-keeping function for courts by (1) ensuring fairness to the defendant, (2) encouraging prompt prosecution of causes of action, (3) suppressing stale and fraudulent claims, and (4) avoiding the inconveniences engendered by delay-specifically, the difficulties of proof present in older cases.

Doe v. Archdiocese of Cincinnati , 109 Ohio St.3d 491, 2006-Ohio-2625, 849 N.E.2d 268, ¶ 10. Statutes of limitations are remedial in nature and are to be given a liberal construction to permit cases to be decided upon their merits, after a court indulges every reasonable presumption and resolves all doubts in favor of giving, rather than denying, the plaintiff an opportunity to litigate. Flagstar Bank, F.S.B. v. Airline Union's Mtge. Co. , 128 Ohio St.3d 529, 2011-Ohio-1961, 947 N.E.2d 672, ¶ 7.

{¶ 41} We determine the applicable statute of limitations for a claim from the "gist of the complaint," and not from the label that a party may assign to a set of facts. Dottore v. Vorys, Sater, Seymour & Pease, L.L.P. , 8th Dist. Cuyahoga No. 98861, 2014-Ohio-25, 2014 WL 72538, ¶ 35, citing Hibbett v. Cincinnati , 4 Ohio App.3d 128, 131, 446 N.E.2d 832 (1st Dist.1982). The Ohio Supreme Court has held that when determining which statute of limitations should be applied to a particular cause of action, "courts must look to the actual nature or subject matter of the case, rather than to the form in which the action is pleaded. The grounds for bringing the action are the determinative factors[;] the form is immaterial." Lawyer's Coop. Pub. Co. v. Muething , 65 Ohio St.3d 273, 277-278, 603 N.E.2d 969 (1992), citing Hambleton v. R.G. Barry Corp. , 12 Ohio St.3d 179, 183, 465 N.E.2d 1298 (1984).

{¶ 42} In Count 1, Hammon alleges breach of contract against Huntington on the basis of the agreed entry. We agree with the trial court's determination that this claim sounds in tort and that the four-year statute of limitations for fraud claims under R.C. 2305.09 applies. Hammon specifically alleges that he, through others acting on his behalf, reached an agreement with Huntington that it would take control of $1 million of estate funds and return to him guaranteed yearly payments and a guaranteed return of the principal at the age of 35, as outlined in the agreed entry.

{¶ 43} We note that

[a] contract is generally defined as a promise, or a set of promises, actionable upon breach. Essential elements of a contract include an offer, acceptance, contractual capacity, consideration (the bargained for legal benefit and/or detriment), a manifestation of mutual assent and legality of object and of consideration.

Kostelnik v. Helper , 96 Ohio St.3d 1, 2002-Ohio-2985, 770 N.E.2d 58, ¶ 16, quoting Perlmuter Printing Co. v. Strome, Inc. , 436 F.Supp. 409, 414 (N.D.Ohio 1976).

{¶ 44} We find that the agreed entry cannot be construed as a contract by virtue of Huntington's position as guardian of the estate at the time of the agreed entry. R.C. 2111.14 sets forth the duties of the guardian of the estate. In re Skrzyniecki , 118 Ohio App.3d 67, 71, 691 N.E.2d 1105 (6th Dist.1997). These duties include, among other things, "manag[ing] the estate for the best interest of the ward." R.C. 2111.14(A)(2). The probate court is the "superior guardian," and other guardians "shall obey all orders of the court that concern their wards or guardianships." See In re Guardianship of Spangler , 126 Ohio St.3d 339, 2010-Ohio-2471, 933 N.E.2d 1067, ¶ 52 ; R.C. 2111.50(A)(1). Because the probate court is the superior guardian, the appointed guardian is simply an officer of the court subject to the court's control, direction, and supervision. Id. , citing In Re: Daugherty , 7th Dist. Columbiana Nos. 83-C-24 and 83-C-29, 1984 WL 7676, at *1 (Mar. 9, 1984).

{¶ 45} We note that during the time period Hammon alleges Huntington made assurances of guaranteed investment returns to his parents, Huntington already had control of Hammon's settlement funds by virtue of its position as guardian of his estate. Therefore, the alleged agreement between Hammon and Huntington lacks consideration, an essential element of a contract. See Kostelnik at ¶ 16. Ultimately, Huntington's investment of estate funds was subject to the control of the probate court. Therefore, any assurances made by Huntington representatives to Hammon's parents and their counsel that estate funds were placed in a guaranteed investment when the final trust document provided otherwise would amount to fraud rather than a contract for a guaranteed investment.

{¶ 46} Moreover, Hammon reiterates the factual allegations of Count 1 in his Count 4 fraud claim against all defendants based upon alleged representations made to his mother, father, and Attorney Sullivan. Accordingly, Count 1 of Hammon's complaint is subsumed into his fraud claim in Count 4.

Discovery of Fraud

{¶ 47} In his second assignment of error, Hammon argues that the record does not support that he knew or should have known of his fraud claim against Huntington prior to November 2009, and accordingly, the trial court erred in dismissing his fraud claim on the basis of the statute of limitations. We agree with Hammon that the limited record before us does not support dismissal of his fraud claim against Huntington on the basis of the statute of limitations.

{¶ 48} The Ohio Supreme Court has held that "[a] cause of action for fraud or conversion accrues either when the fraud is discovered, or [when] in the exercise of reasonable diligence, the fraud should have been discovered." Cundall v. U.S. Bank , 122 Ohio St.3d 188, 2009-Ohio-2523, 909 N.E.2d 1244, ¶ 29, citing Investors REIT One v. Jacobs , 46 Ohio St.3d 176, 546 N.E.2d 206 (1989), paragraph 2b of the syllabus; Burr v. Stark Cty. Bd. of Commrs. , 23 Ohio St.3d 69, 76, 491 N.E.2d 1101 (1986). When determining whether the exercise of reasonable diligence should have discovered a case of fraud, the relevant inquiry is whether the facts known " 'would lead a fair and prudent man, using ordinary care and thoughtfulness, to make further inquiry * * *.' " Id. , quoting Hambleton , 12 Ohio St.3d 179, 181, 465 N.E.2d 1298 (1984).

{¶ 49} "This standard does not require the victim of the alleged fraud to possess concrete and detailed knowledge, down to the exact penny of damages, of the alleged fraud; rather, the standard requires only facts sufficient to alert a reasonable person of the possibility of fraud." Id. , quoting Palm Beach Co. v. Dun & Bradstreet , 106 Ohio App.3d 167, 171, 665 N.E.2d 718 (1st Dist.1995). "[C]onstructive knowledge of facts, rather than actual knowledge of their legal significance, is enough to start the statute of limitations running under the discovery rule." (Emphasis sic.) Id. , quoting Flowers v. Walker , 63 Ohio St.3d 546, 549, 589 N.E.2d 1284 (1992).

{¶ 50} In its judgment entry, the trial court found that Hammon's fraud claim was barred by the statute of limitations because he knew or should have known of the basis for this claim in January 2007, when he signed a receipt of the final accounting. The trial court found that at that time, "a reasonably prudent individual knew or should have known that [SPT 1 and SPT 2] had not performed as anticipated." The trial court also found "[a]pparently [Hammon] believed that when he contracted with [a law firm in early 2009] to represent him for potential negligence, conversion, breach of fiduciary duty, unjust enrichment, fraudulent conveyance and other related claims."

{¶ 51} We find that the trial court's discovery rule analysis conflates Hammon's fraud and breach of fiduciary claims against Huntington. As we discussed above, Hammon's fraud claim is premised upon the agreed entry and alleged assurances of guaranteed return of the principal that are separate and distinct from the actual investment performance of the trusts and Huntington's administration of Hammon's estate.

{¶ 52} Hammon alleges that he and his family relied upon representations by Huntington representatives that return of the principal amounts of the SPT 1 and SPT 2 trusts were guaranteed. He contends that he did not discover until June 2013 that neither SPT 1 nor SPT 2 guaranteed any specific annual income nor the return of the principal. Accordingly, the overall values of SPT 1 and SPT 2 in January 2007, at the time of the final accounting of the guardianship, may not have given Hammon, his family, or counsel, reason to believe that he would ultimately not receive the return of the principal amount.

{¶ 53} Hammon admits in his complaint that on May 7, 2009, Christopher Vlasich ("Vlasich"), his attorney at the time, sent an email to a First Capital representative, seeking confirmation as to whether the payments under SPT 1 and SPT 2 were fixed or variable and whether there was any return of the principal, but he contends that First Capital did not respond to this inquiry. To his reply to Huntington's motion, Hammon attached the affidavit Vlasich who represented him in 2009. Vlasich stated that the focus of his firm's investigation related to the distributions made by the court-appointed guardians, National City, and Huntington, primarily as they related to Hammon's mother, Berardinelli. Vlasich further stated that he "reviewed an Agreed Entry attached to a Motion to Accept Agreed Entry * * * and [SPT 1 and SPT 2] in an attempt to determine whether payments made thereunder were fixed or variable and whether there would be any return of principal." He reiterates Hammon's allegation that he emailed a First Capital representative in May 2009 to determine whether Hammon could expect to return of the principal, but he did not receive a response.

{¶ 54} Considering all the evidence in the limited record before us in a light most favorable to Hammon, we cannot conclusively determine that Hammon should have discovered the alleged fraud and the conflicting terms of the agreed entry from SPT 1 and SPT 2 in May 2009. The record does not reflect that Attorney Vlasich was aware that Hammon and his family relied on assurances of guaranteed return of the trust principal as evidenced by the agreed entry, nor does the record reflect, as the trial court states, what "Hammon believed * * * when he contracted with [Vlasich's] law firm in 2009." Moreover, the record is not clear when Hammon was alerted to the inconsistencies between the agreed entry and SPT 1 and SPT 2.

{¶ 55} Based on the foregoing, we find that reasonable minds could come to more than one conclusion as to when Hammon should have discovered the basis of the alleged fraud claim. Accordingly, we find that the trial court erred in dismissing of Hammon's fraud claim against Huntington.

Claims against First Capital and Consolo

{¶ 56} Throughout his brief, Hammon argues that the trial court improperly relied on evidentiary materials outside the complaint and misapplied the discovery rule to his fraud claims against First Capital and Consolo and his breach of trust claim against First Capital. He also argues that the trial court misconstrued his breach of contract claim against First Capital as a breach of trust claim.

{¶ 57} We note that First Capital and Consolo moved under Civ.R. 12(B)(6) only. Therefore, the trial court was confined to Hammon's second amended complaint in considering their motions.

{¶ 58} We review an order dismissing a complaint for failure to state a claim for relief under Civ.R. 12(B)(6) de novo. Schmitz v. NCAA , 2016-Ohio-8041, 67 N.E.3d 852, ¶ 9 (8th Dist.). In order for a court to dismiss a complaint for failure to state a claim upon which relief can be granted under Civ.R. 12(B)(6), it must appear beyond doubt from the complaint that the plaintiff can prove no set of facts entitling him to recovery. O'Brien v. Univ. Community Tenants Union, Inc. , 42 Ohio St.2d 242, 244, 327 N.E.2d 753 (1975), syllabus. In construing a complaint upon a motion to dismiss for failure to state a claim, we must presume that all factual allegations of the complaint are true and make all reasonable inferences in favor of the nonmoving party. Mitchell v. Lawson Milk Co. , 40 Ohio St.3d 190, 192, 532 N.E.2d 753 (1988).

Under these rules, a plaintiff is not required to prove his or her case at the pleading stage. * * * Consequently, as long as there is a set of facts, consistent with the plaintiff's complaint, which would allow the plaintiff to recover, the court may not grant a defendant's motion to dismiss.

Schmitz , ¶ 9, quoting York v. Ohio State Hwy. Patrol , 60 Ohio St.3d 143, 144-145, 573 N.E.2d 1063 (1991).

{¶ 59} Under Ohio's liberal pleading rules, all that is required of a plaintiff bringing suit is "(1) a short and plain statement of the claim showing that the party is entitled to relief, and (2) a demand for judgment for the relief to which the party claims to be entitled." Id. at ¶ 10, quoting Civ.R. 8(A). Unlike other claims, however, fraud claims must be plead with particularity as required under Civ.R. 9(B). Id.

{¶ 60} It is well established that "[a] motion to dismiss based on the bar of the statute of limitations is erroneously granted when the complaint does not conclusively show on its face the action is barred by the statute of limitations." Velotta v. Leo Petronzio Landscaping, Inc. , 69 Ohio St.2d 376, 433 N.E.2d 147 (1982), paragraph three of the syllabus.

{¶ 61} In the first assignment of error, Hammon argues that the trial court erred in finding that Count 8 constituted a breach of trust claim as pled against the trustee, First Capital. Hammon frames Count 8 as a breach of contract claim. In Count 8, Hammon alleges that First Capital breached the terms of the SPT 1 and SPT 2 trust documents by its failure to prudently invest trust assets according to the terms of the trusts and its failure to recalculate annual trust payments so as to preserve the principal.

{¶ 62} We recognize that "[i]t is well settled that every violation by a trustee of a duty which equity lays upon him, whether willful and fraudulent, or done through negligence, or arising through mere oversight or forgetfulness, is a breach of trust." KeyBank Natl. Assoc. v. Thalman , 8th Dist. Cuyahoga No. 102624, 2016-Ohio-2832, 2016 WL 2587143, ¶ 15, quoting Shuster v. N. Am. Mtge. Loan Co. , 139 Ohio St. 315, 343, 40 N.E.2d 130 (1942). The Tenth District has held:

A trustee's duties emanate from the nature of the trust, not from any specific contractual language resulting from a contract-like "meeting of the minds" and imposing legal duties to perform certain acts. A trustee who fails to perform his duties as a trustee is not liable to the beneficiary for breach of contract because the creation of a trust is "a conveyance of the beneficial interest in the trust property rather than a contract."

Cassner v. Bank One Trust Co., N.A. , 10th Dist. Franklin No. 03AP-1114, 2004-Ohio-3484, 2004 WL 1470806, ¶ 26-27, quoting Restatement of the Law 2d, Trusts, Section 197, Comment b (1959).

{¶ 63} Here, Hammon alleges that First Capital breached the terms of the SPT 1 and SPT 2 documents. Based on the foregoing, Count 8 is necessarily a breach of trust claim as pled against First Capital.

{¶ 64} First Capital argues that, under the terms of SPT 1 and SPT 2, South Dakota law should apply to Hammon's breach of trust claim. South Dakota law provides a two-year statute of limitations for breach of trust claims. See S.D.Codified Laws 15-2-36.

{¶ 65} The trial court, however, applied Ohio law in analyzing Hammon's breach of trust claim. Under Ohio law, the relevant statute of limitations for breach of trust claims is R.C. 5810.05, which provides in relevant part:

(A) A beneficiary may not commence a proceeding against a trustee for breach of trust more than two years after the date the beneficiary, a representative of the beneficiary, or a beneficiary surrogate is sent a report that adequately discloses the existence of a potential claim for breach of trust and informs the beneficiary, the representative of the beneficiary, or the beneficiary surrogate of the time allowed for commencing a proceeding against a trustee.
* * *
(C) If division (A) of this section does not apply * * * a judicial proceeding by a beneficiary against a trustee for breach of trust must be commenced within four years after the first of the following to occur:
* * *
(4) The time at which the beneficiary knew or should have known of the breach of trust.

{¶ 66} It is not clear from the face of the complaint whether Hammon, his representative, or surrogate was sent a report disclosing the basis of his breach of trust claim and that R.C. 5810.05(A) applies here. Therefore, we apply the four-year statute of limitations under division (C). We find that the statute of limitations began to run, at the very latest, when Huntington advised Hammon that the trusts "had not performed as anticipated" on November 2, 2009. The savings statute, R.C. 2305.19, specifically states that it does not apply to an action arising under R.C. 5810.05. Therefore, Hammon's filing of his initial complaint in the adversarial proceeding controls, rather than his September 2013 filing in the common pleas court. Hammon filed his initial complaint in the present matter on February 20, 2014, more than four years after November 2, 2009. Therefore, Hammon's breach of trust claim against First Capital is time barred under the laws of both South Dakota and Ohio.

{¶ 67} We note that the trial court stated that it relied on materials outside the complaint in dismissing Hammon's fraud claim against First Capital on the basis of statute of limitations. This error is harmless because Hammon failed to plead his fraud claim against First Capital with sufficient particularity under Civ.R. 9.

{¶ 68} In the second amended complaint, Hammon does not identify anyone from First Capital who was involved in the alleged negotiations that led to the agreed entry, nor does he identify any specific fraudulent statements made by First Capital representatives to his parents or their counsel. Hammon merely alleges that "representatives of [First Capital], flew in a representative to Cleveland to attend the [February 2000] hearing" and includes First Capital in his general allegations against all defendants. Moreover, we note that the agreed entry does not identify First Capital as a party, nor is it signed by any First Capital representative.

{¶ 69} We also note that the trial court dismissed the fraud claim against Consolo for lack of particularity under Civ.R. 9. Hammon does not assign any error to this finding. Accordingly, we find the trial court properly granted the 12(B)(6) motions to dismiss First Capital and Consolo.

{¶ 70} Based on the foregoing, we find that the trial court committed reversible error by dismissing Hammon's fraud claim against Huntington because genuine issues of material fact exist as to Hammon's discovery of the alleged fraud. Although the trial court erroneously relied on the materials outside the complaint in granting the Civ.R. 12(B)(6) motion of First Capital, this error was harmless because Hammon did not plead his fraud claim against First Capital with particularity. Accordingly, Hammon's first, second, and third assignments of error are sustained in part and overruled in part.

{¶ 71} Therefore, we affirm the trial court's grant of the Civ.R. 12(B)(6) motions to dismiss of First Capital and Consolo as well as the trial court's dismissal of Counts 2, 3, 5, 6, 7, 8, and 9 against Huntington. We reverse the trial court's dismissal of Hammon's fraud claim in Counts 1 and 4 against Huntington. This matter is remanded to the probate court for further proceedings.

{¶ 72} Judgment affirmed in part and reversed in part.

SEAN C. GALLAGHER, J., and

ANITA LASTER MAYS, J., CONCUR

      The trial court granted Hammon's motion for leave to file his first amended complaint instanter and the motions of First Capital and Consolo for a more definite statement in the same entry dated October 3, 2014. The trial court ordered Hammon to file a second amended complaint to include a more definite statement in response to the Civ.R. 12(E) motions of First Capital and Consolo.

      Hammon's second amended complaint states that, after the payment of fees and expenses, the net proceeds of the settlement available to National City as the initial guardian of his estate totaled $1,852,720.

      In 2006, Morgan Chase became First Capital.

      First Capital's argument that the trial court could take judicial notice of the guardianship case is misplaced because the guardianship is a seperate proceeding from the present adversarial case. This court has held that a trial court, in considering a Civ.R. 12(B)(6) motion to dismiss, "cannot take judicial notice of prior proceedings in another case" and "may not take judicial notice of prior proceedings in the court even if the same parties and subject matter are involved." NorthPoint Properties v. Petticord , 179 Ohio App.3d 342, 2008-Ohio-5996, 901 N.E.2d 869, ¶ 16 (8th Dist.), quoting Campbell v. Ohio Adult Parole Auth. , 10th Dist. Franklin No. 97APE05-616, 1997 WL 678199, at *2 (Oct. 28, 1997) ; First Michigan Bank & Trust Co. v. P. & S. Bldg., 4th Dist. Meigs No. 413, 1989 WL 11915, at *4 (Feb. 16, 1989).