In Re Murphy, Unpublished Decision (10-24-2005)
In Re Murphy, Unpublished Decision (10-24-2005)
Opinion of the Court
OPINION
{¶ 1} Defendant-appellant Jeanne Murphy appeals the March 31, 2005 Judgment Entry of the Stark County Court of Common Pleas, Juvenile Division, granting plaintiff-appellee Dustin Mosberger's motion to modify the allocation of parental rights, terminating the parties' Shared Parenting Agreement, eliminating appellant's visitation rights and ordering she pay child support to appellee.{¶ 3} On October 26, 2004, the trial court, via an ex parte Judgment Entry, designated appellee the temporary residential parent and legal custodian. On November 29, 2004, the trial court conducted a pretrial and issued interim orders directing appellant's visitation be supervised and she submit to drug testing. Appellant failed to submit to the drug test, and appellee filed a motion for contempt.
{¶ 4} On March 31, 2005, the trial court again conducted a pretrial hearing, and without the presentation of evidence, the court, via Judgment Entry, granted the motion for modification of the allocation of parental rights, terminated the parties' Shared Parenting Agreement, eliminated appellant's visitation and ordered appellant pay child support.
{¶ 5} Appellant now appeals the March 31, 2005 Judgment Entry of the Stark County Court of Common Pleas, Juvenile Division, assigning as error:
{¶ 6} WHETHER APPELLANT WAS DENIED HER DUE PROCESS RIGHTS UNDER THE UNITED STATES CONSITUTION WHEN THE COURT TERMINATED THE SHARED PARENTING PLAN, GRANTED APPELLEE LEGAL CUSTODY OF THE ABOVE-CAPTIONED CHILD, ELIMINATED APPELLANT'S PARENTING TIME, AND ORDERED HER TO PAY CHILD SUPPORT WITHOUT GIVING HER NOTICE AND AN OPPORTUNITY TO BE HEARD?
{¶ 7} WHETHER THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT TERMINATED THE SHARED PARENTING PLAN, GRANTED APPELLEE LEGAL CUSTODY OF THE ABOVE-CAPTIONED CHILD, ELIMINATED APPELLANT'S PARENTING TIME, AND ORDERED HER TO PAY CHILD SUPPORT WITHOUT ANY EVIDENCE BEING PRESENTED NOR THE REQUISITE FINDINGS BEING MADE?
{¶ 9} A parent's right to raise and nurture a child is an "essential" and "basic civil right." In re Murray (1990),
{¶ 10} In the case sub judice, the trial court did not notify appellant of its intent to address the merits of the pending motions at the March 31, 2005 pretrial conference. Further, the trial court did not afford appellant an opportunity to present evidence on her behalf. Upon review, the trial court violated appellant's due process rights by failing to afford her notice and an opportunity to be heard prior to terminating the shared parenting plan, granting appellee legal custody, eliminating appellant's parenting time and ordering her to pay child support.
{¶ 11} Accordingly, we sustain appellant's assignment of error, and reverse and remand this matter to the trial court for further proceedings in accordance with the law and this opinion.
{¶ 13} The March 31, 2005 Judgment Entry of the Stark County Court of Common Pleas, Juvenile Division, is reversed and remanded for further proceedings in accordance with the law and this opinion.
Hoffman, J., Gwin, P.J. and Farmer, J. concur.
Reference
- Full Case Name
- In Re: Alec Murphy, Minor Child.
- Cited By
- 2 cases
- Status
- Unpublished