[Cite as Michel v. Michel,

.] STATE OF OHIO, NOBLE COUNTY

IN THE COURT OF APPEALS

SEVENTH DISTRICT

NICHOLAS S. MICHEL, et al. ) CASE NO. 10 NO 376 ) PLAINTIFFS-APPELLEES ) ) VS. ) OPINION ) STEVE AND SARA MICHEL ) ) APPELLANTS/ ) THIRD-PARTY DEFENDANTS )

CHARACTER OF PROCEEDINGS: Civil Appeal from the Court of Common Pleas of Noble County, Ohio Case No. 204-0031

JUDGMENT: Affirmed.

APPEARANCES:

For Nicholas S. Michel: Atty. Kent D. Biegler Tribbie, Scott, Plummer & Padden 139 West Eighth Street P.O. Box 640 Cambridge, Ohio 43725

For Tandy Gagnon fka Tandy Michel: Atty. Andrew Warhola 110 North 7th Street Cambridge, Ohio 43725

For Steve and Sarah Michel: Atty. Jacqueline Tresl 1500 Cowden Road New Concord, Ohio 43762

JUDGES:

Hon. Cheryl L. Waite Hon. Joseph J. Vukovich Hon. Mary DeGenaro Dated: August 27, 2012 [Cite as Michel v. Michel,

.] WAITE, P.J.

{¶1} This appeal involves a child custody dispute between grandparents and

parents. Appellees Nicholas Michel and Tandy Gagnon (formerly Tandy Michel) are

the parents of the minor child, M.M. They were divorced in 2004 in Noble County,

and the child was subject to a shared parenting agreement as part of the divorce.

Appellants Steve and Sarah Michel are the paternal grandparents of the child. In

July of 2009, Appellants filed a petition to obtain emergency custody of the child.

After two hearings, the court found that there was no emergency. A full hearing on

the change of custody request was scheduled for October 14, 2009. At that hearing,

instead of presenting evidence, Appellants entered into an agreed judgment entry

dismissing the custody petition and giving them visitation rights. The agreement was

journalized on November 3, 2009. None of the foregoing judgment entries were

appealed. Appellants filed a subsequent complaint for custody in December of 2009.

After another hearing on July 8, 2010, the complaint was dismissed. Appellants now

appeal that ruling.

{¶2} Appellants argue that the trial court should not have limited their

presentation of evidence as to the unsuitability of the child’s parents. A court cannot

grant custody of a child to a nonparent without first finding that the natural parents

are unsuitable. See In re Perales,

,

(1977), and In

re Hockstock,

,

(2002). At the July 8, 2010,

hearing the court did not allow the submission of evidence of unsuitability as it related

to events prior to October 14, 2009. This was the date of the prior hearing scheduled

to determine the unsuitability of the parents. The record indicates that Appellants -2-

were notified of the October 14, 2009, hearing, attended the hearing with counsel,

but failed to present any evidence. It was clear from the earlier hearing and the

court's prior rulings that the main purpose of the October 14, 2009, hearing was to

decide whether or not the parents were unsuitable. Appellants had an opportunity to

litigate the issue of unsuitability and failed to do so as of October 14, 2009. There

was no reason for the court to give them a second opportunity to relitigate the matter

at the subsequent hearing. The trial court properly limited the evidence at the July 8,

2010, hearing to events that occurred after October 14, 2009.

{¶3} Appellants also argue that they never withdrew the original petition for

custody, despite the trial court's statement to the contrary as stated in the November

3, 2009, judgment entry. It is not clear what relief Appellants expect at this juncture

in light of the fact that they waived any errors which may have arisen in the

November 3, 2009, judgment entry by failing to file a timely appeal of that final order.

Further, the question as to whether Appellants withdrew their first motion for custody

is moot. Appellants filed a new complaint for custody in December of 2009. Once

Appellants filed this complaint, which was nothing more than a second petition for

custody, the first petition was superseded by the second complaint. Thus, Appellants

effectively withdrew their first petition for custody by filing the second one, regardless

of the trial court’s ruling. We find no reversible error in this case, and the judgment of

the trial court is affirmed.

Background

{¶4} Appellants, the paternal grandparents of the child, filed a petition for

custody in the Noble County Court of Common Pleas, Juvenile Division, on July 28, -3-

2009. The petition was transferred to the Domestic Division of the court due to the

fact that the domestic relations court already had jurisdiction over the child as a result

of the parents' divorce, and because a child custody order had already been issued

as part of the divorce. The petition was treated as an emergency motion for custody

by a nonparent.

{¶5} The court held an emergency hearing on August 19, 2009. The court

then held a hearing on the custody matter on September 4, 2009. Appellants failed

to convince the court at that hearing that there was an emergency, but the court set a

final hearing for October 14, 2009, to deal with custody issues, including whether or

not the parents were unsuitable. At that hearing, the parties indicated that they had

resolved their differences about the division of parental rights and responsibilities and

had agreed to a visitation order. On November 3, 2009, the court ruled that the

parties had agreed to a companionship order and that Appellants had withdrawn their

motion for custody. This judgment entry was not appealed.

{¶6} On December 11, 2009, Appellants filed another complaint for custody.

Trial was held on July 8, 2010. At the hearing, Appellees requested the court to

exclude any evidence relative to events that occurred before October 14, 2009. The

court granted the motion. The judge held that Appellants had the opportunity to

prove unsuitability on October 14, 2009, and failed to do so, and he was not going to

now allow Appellants a second chance to litigate the same question. The court

ordered the parties not to present evidence of unsuitability as this evidence related to

events occurring prior to October 14, 2009. -4-

{¶7} Appellants called six witnesses at the July 10, 2010, hearing. There

was very little testimony from any of the witnesses that could be remotely considered

as evidence relating to the unsuitability of the parents. Witness Kristine Schoeppner,

from Noble County Children's Service, testified that she had garnered no information

since October 14, 2009, and therefore, she had nothing to relate to the court. (7/8/10

Tr., p. 9.) Witness Stacy Denise Moran, who is the stepmother of the minor child’s

brother, testified that she had had one encounter with M.M. that lasted a total of 15

minutes. She stated that the child seemed confused during that encounter, and on

that basis, she concluded that the parents were unfit. (7/8/10 Tr., p. 12.) David

Moran, Stacy's husband, testified that he and Appellee Tandy Gagnon had a child

together. He testified that he had concerns about Tandy's parenting because she

had the minor child with her at the courthouse on a school day, and because she

loudly chastised the child when he would not sit down. (7/8/10 Tr., pp. 16, 20.) He

also testified that he had observed Tandy become angry while on the telephone.

(7/8/10 Tr., p. 18.) He related an incident in which the minor child was in the back

seat of Tandy’s car and she drove off with squealing tires. (7/8/10 Tr., p. 19.)

{¶8} Appellants' counsel called Appellee Tandy Michel to testify. Her

testimony did not reveal any fact, incident or example that related to the topic of

whether she was unsuitable as a parent.

{¶9} Appellant Steve Michel, M.M.'s paternal grandfather, testified that he

had concerns about the minor child staying with Tandy, and that he did not think the

child was living in a safe place. (7/8/10 Tr., p. 29.) The basis for these concerns was -5-

that the child “clams up a little bit” while he is talking on the phone if Tandy walks into

the room. (7/8/10 Tr., p. 29.)

{¶10} Appellant Sarah Michel, the paternal grandmother, testified that she

had concerns about M.M.'s safety with Tandy, and that her belief is that Tandy is not

suitable as a mother. (7/8/10 Tr., pp. 35-36.) The sole reason she gave to support

these conclusions was that she talks to M.M. every Sunday, and that the child gets

quiet during those phone calls when someone walks into the room. (7/8/10 Tr., p.

32.)

{¶11} At the conclusion of the hearing, counsel for Appellees moved the court

to dismiss the complaint for custody because there was no evidence that could be

construed to support a conclusion that the parents were unsuitable. Appellants'

counsel did not respond. The court dismissed the complaint, and the final order was

filed on July 23, 2010. This appeal followed. Appellants have filed a single brief on

appeal. Both the father and the mother of M.M. have filed Appellee's briefs.

{¶12} Appellants' first, third and fourth assignments of error deal with the

question of whether the trial court properly limited the presentation of evidence at the

July 8, 2010, hearing to events that had occurred after October 14, 2009. These

three assignments of error will be treated together. The remaining assignment of

error deals with whether Appellants withdrew their initial petition for custody, and this

will be treated separately.

ASSIGNMENTS OF ERROR NOS. 1, 3 and 4

THE COURT ERRED IN USING THE “COMPANIONSHIP RIGHTS

AGREEMENT” BETWEEN FATHER AND GRANDMOTHER, -6-

JOURNALIZED OCTOBER 14, 2009, AS RES JUDICATA AND AS A

BAR TO PERMIT EVIDENCE OF PARENTS’ UNSUITABILITY FROM

THE CHILD’S BIRTH UNTIL THE FINAL HEARING.

THE COURT ERRED IN PREVENTING CHILDREN’S SERVICES

CASE WORKER FROM TESTIFYING AS TO INVESTIGATION

REGARDING FATHER’S CARE OF CHILD SO AS TO SHOW

FATHER UNSUITABLE.

THE COURT ERRED IN PREVENTING WITNESS FROM

TESTIFYING ABOUT THE BEHAVIORS OF MOTHER-APPELLEE AS

TO OTHER SONS, IN ORDER TO SHOW MOTHER UNSUITABLE.

{¶13} In these three assignments of error, Appellants challenge whether the

trial court had the authority to limit the presentation of evidence at the July 8, 2010,

hearing to events that occurred after October 14, 2009. A trial court's ruling on the

admission or the exclusion of evidence is reviewed for abuse of discretion. Dardinger

v. Anthem Blue Cross & Blue Shield,

,

,

. Abuse of discretion signifies a decision that is arbitrary, unconscionable,

or unreasonable. Blakemore v. Blakemore,

,

(1983).

{¶14} In a child custody proceeding between a parent and nonparent, a court

may not award custody to the nonparent “without first making a finding of parental

unsuitability-that is, without first determining that a preponderance of the evidence

shows that the parent abandoned the child, that the parent contractually relinquished -7-

custody of the child, that the parent has become totally incapable of supporting or

caring for the child, or that an award of custody to the parent would be detrimental to

the child.”

, at syllabus; see also, Hockstock, supra,

,

. Since there is a presumption under

Ohio law that either parent is suitable to care for their own child, it is up to the

nonparent to prove by a preponderance of the evidence that both parents are

unsuitable before deciding whether it is in the best interests of the child for custody to

be awarded to the nonparent.

.

{¶15} The trial court in this case limited the presentation of evidence based on

the doctrine of res judicata. Woodford v. Harrell,

,

(10th Dist. 1992). The doctrine of res judicata prevents parties from

relitigating a point of law or fact that was at issue between the parties and was

passed upon by a court of competent jurisdiction. Vectren Energy Delivery of Ohio,

Inc. v. Pub. Util. Comm.,

,

. If a matter has

been determined to be res judicata, the trial court has the authority to prevent the

relitigation of the same matter at a subsequent hearing. “[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.” (Emphasis added.) Prouse, Dash & Crouch, L.L.P.

v. DiMarco, 8th Dist. No. 96728,

; see also, Stromberg v.

Bratenahl Bd. of Edn.,

,

(1980).

{¶16} The doctrine of res judicata applies even if the matter under dispute is

resolved by an agreed settlement order rather than by a jury trial or judicial decision -8-

in a bench trial. Culkar v. Brooklyn Hts.,

,

,

(8th Dist.)

{¶17} Appellants failed to present any evidence at the final custody hearing

on October 14, 2009. Instead, they decided to settle the matter and obtain visitation

rights. Parties do not generally get a “second bite at the apple” when it comes to

presenting evidence at trial. Dean v. West, 5th Dist. No. 00CA00014,

(Sept. 14, 2000), at *4 (parties cannot use Civ.R. 60(B) as a “second bite at

the apple” to admit new evidence after a trial and final judgment). Once an

evidentiary hearing is held and results in a final order, new evidence cannot be

presented on the matters resolved by the order except as provided by law; for

example, in a reversal on appeal, motion for a new trial, or some other specific rule or

law allowing for the presentation of new evidence. Carlisle v. Carlisle,

,

,

. Appellants had the

opportunity to prove the unsuitability of the parents at the October 14, 2009, hearing,

and they are bound by their decision to enter into an agreed judgment entry as to

visitation rather than establish their right to custody. Appellants’ first, third and fourth

assignments of error are overruled.

ASSIGNMENT OF ERROR NO. 2

THE COURT ERRED IN ITS ENTRY, JOURNALIZED NOVEMBER 3,

2009, WHEN IT STATED THAT SARAH MICHEL HAD WITHDRAWN

HER MOTION FOR CUSTODY.

{¶18} Appellants dispute the trial court's finding on November 3, 2009, that

they had withdrawn their first petition for custody. Any alleged error relating to the -9-

court's finding is either moot or has been waived. First, Appellants filed a second

complaint for custody on December 11, 2009. Assuming we agreed with Appellants

that they had not yet withdrawn their initial complaint, the December 11, 2009,

complaint was, in effect, an amended complaint for change of custody. “An amended

complaint takes the place of the original, which is then totally abandoned.” Harris v.

Ohio Edison Co., 7th Dist. No. 91 C.A. 108,

, *2 (Aug. 3, 1992). The

allegations of the amended complaint supersede those of the original complaint.

Levy v. Univ. of Cincinnati, 1st Dist. No. C-860780,

(Nov. 4, 1987).

Appellants’ amended complaint would render the earlier complaint moot.

{¶19} Further, if Appellants sought to challenge any finding of the trial court in

its November 3, 2009, final order, they were required to file a direct appeal of that

order. “Failure to appeal a final appealable order waives any error that could have

been raised with respect to that order.” In re Mapley, 7th Dist. No. 07 MA 36, 2008-

Ohio-1180, ¶9, citing In re Nice,

,

(7th

Dist. 2001). Appellants did not appeal the earlier final order, and they cannot

challenge that order on appeal of a subsequent final order. Thus, the trial court's

determination that Appellants withdrew their initial petition for custody is now a matter

of record and cannot be collaterally challenged in a subsequent custody proceeding.

{¶20} Finally, the record itself contradicts Appellants’ argument. The

transcript of the hearing on October 14, 2009, confirms that the parties “have by

agreement established a division of the parental rights and responsibilities”.

(10/14/09 Tr., p. 4.) Obviously, if the parties came to an agreement on parental -10-

rights, then the motion for custody was resolved. Appellants’ second assignment of

error is overruled.

Conclusion

{¶21} In conclusion, Appellants have not shown that the trial court abused its

discretion in limiting the presentation of evidence at the July 9, 2010 hearing. The

record reflects that Appellants had the opportunity to prove the unsuitability of the

parents on October 14, 2009, and that they chose not to do so. They were properly

prevented from relitigating the matter of unsuitability as it pertained to events

occurring prior to October 14, 2009. The trial court correctly applied the doctrine of

res judicata and limited the presentation of evidence accordingly. Appellants’

assertion that they never withdrew their initial petition for change of custody is moot

because they filed a superseding complaint for custody on December 11, 2009.

None of Appellants' assignments of error have merit and the judgment of the trial

court is affirmed.

Vukovich, J., concurs.

DeGenaro, J., concurs.