[Cite as Wentz v. Wideman,
2021-Ohio-2257.]
IN THE COURT OF APPEALS OF OHIO
SIXTH APPELLATE DISTRICT
WOOD COUNTY
Gregory Wentz, et al. Court of Appeals No. WD-20-080
Appellee Trial Court No. 2019 JG 0711
v.
Abigail Wideman DECISION AND JUDGMENT
Appellant Decided: June 30, 2021
…
Christopher M. Frasor and Carl C. Ireland, for appellees.
Emmett E. Robinson, for appellant.
…
DUHART, J.
{¶ 1} This case is before the court on appeal by appellant, Abigail Wideman, from
the October 20, 2020 judgment of the Juvenile Division of the Wood County Common
Pleas Court. For the reasons that follow, we affirm the judgment of the trial court.
Assignments of Error
1. The trial court abused its discretion by misapplying the
governing statutory scheme and precedent regarding court-ordered
grandparent visitation.
2. The applicable grandparent-visitation statute – R.C. 3109.11
– is unconstitutional as applied to this case.
Background
{¶ 2} O.H. and J.H. are the biological children of Wideman and Matthew Hudson.
Although Wideman and Hudson participated in a marriage ceremony, they were not
legally married.1 O.H. was born on November 6, 2016, and J.H. was born on January 14,
2020. Hudson died of a drug overdose on June 22, 2019, prior to J.H.’s birth. The
children now reside with Wideman in Perrysburg, Ohio.
{¶ 3} Appellees, Jodi Wentz and Gregory Wentz, are Hudson’s mother and step-
father, and the paternal grandmother and paternal step-grandfather to O.H. and J.H. The
Wentzes live in Mogadore, Ohio, approximately two hours and fifteen minutes from
Perrysburg, Ohio. On October 4, 2019, appellees filed a Complaint to Establish
Grandparents’ Visitation and Companionship Rights requesting “reasonable visitation
and companionship with their grandchildren.”
1
According to Wideman, their marriage license was never filed with the state.
2.
{¶ 4} A hearing was held before a magistrate on July 17, 2020, where the
magistrate heard testimony from the parties, the guardian ad litem (“GAL”), and Susan
Noyes Oliveira, a friend of appellees.
{¶ 5} Much of the testimony presented at the hearing was uncontroverted. The
parties seem to agree that Wideman is a fit parent, with Mrs. Wentz going as far as to call
her “exceptional.” The Wentzes are both employed. They work during the week and
would be able to spend time with the children on the weekend. They do not believe the
distance between their house and Wideman’s is a problem and Wideman believes they
would visit if allowed.
{¶ 6} Prior to July of 2018, the Wentzes were active in O.H.’s life, visiting on a
regular basis and celebrating holidays with Wideman, Hudson and O.H. They also all
took a family vacation together in July of 2018. During this period, the parties generally
were “on good terms,” although Wideman also stated that Mrs. Wentz and her “had an
issue pretty much [her and Hudson’s] whole relationship.” Wideman did not have any
concerns with the Wentzes caring for O.H., as she thought they were “safe and
appropriate.” However, the Wentzes have not had any contact with O.H. since July 2018,
and have never met J.H. Photos and videos of the Wentzes interacting with O.H. were
also admitted into evidence.
{¶ 7} While the parties agree that the Wentzes have not had any contact with the
children since July of 2018, the record is not clear as to the reason for the cessation in
contact. The evidence shows that Hudson struggled with substance abuse issues and that
3.
he and Wideman had a contentious relationship that, at one point, resulted in Hudson’s
arrest for domestic violence. According to Mrs. Wentz, prior to Hudson’s death, she told
Wideman and Hudson that they needed to “get things together for [O.H.].” She also
testified to her belief that it was Hudson’s “responsibility and his role to unite his family
and involve his parents.” For her part, Wideman stated that the conflict began because
she did not like the way Mrs. Wentz treated Hudson and because Mrs. Wentz “wanted
everything to be her way.” The rift was further aggravated by circumstances surrounding
Hudson’s death and funeral. However, both Mr. and Mrs. Wentz testified that they
would like Wideman and the children to be part of their family and Mrs. Wentz pledged
to follow Wideman’s lead as to the treatment of the children. Wideman does not believe
visitation is in the best interest of the children because “there’s no relationship” and the
children do not know the Wentzes.
{¶ 8} The GAL testified to a report he issued in which he opined that it was not in
the best interest of the children for the Wentzes to have visitation. After listening to the
testimony at the hearing, the GAL amended his opinion to state that he does not believe
“personal in contact visitation” is in the children’s best interest, but he suggested that
virtual visits might “furnish the beginning bases to build a relationship between [Mrs.
Wentz] and [Wideman].” Of concern to the GAL was the Wentzes’ lack of contact with
the children.
{¶ 9} The magistrate issued her decision on August 10, 2020. The magistrate
found the Wentzes’ complaint well-taken and recommended the Wentzes be awarded
4.
supervised visitation with the children at the Children’s Rights Collaborative in Lucas
County, Ohio, for up to two hours twice a month. Wideman filed objections to the
magistrate’s decision on August 24, 2020. The Wentzes filed an opposition to
Wideman’s objections on August 31, 2020. Attached to these objections was Mrs.
Wentz’s affidavit. After the transcript was filed with the court, Wideman filed
supplemental objections to the magistrate’s decision, in which she, inter alia, took issue
with the veracity of some of the statements in Mrs. Wentz’s affidavit. Wideman
additionally attached her own affidavit to her supplemental objections providing evidence
countering the statements in Mrs. Wentz’s affidavit. The Wentzes then filed their
supplemental memorandum in opposition to Wideman’s objections.
{¶ 10} Relevant to the instant appeal, the judge found the Wentzes’ complaint
well-taken, in part; however, he modified the magistrate’s decision. He ruled that the
Wentzes could send cards, gifts, and photographs to the children through Wideman, and
could begin twice monthly video chats with the children for not less than 15 minutes
each. The judge also found that the relevant statutes were not unconstitutional. With
respect to Mrs. Wentz’s affidavit, the trial court found that it was not properly before the
court and therefore did not consider it. Wideman timely appealed.
First Assignment of Error
{¶ 11} Wideman contends the trial court misapplied the governing statutes and
precedent.
5.
{¶ 12} We review a juvenile court’s decision regarding visitation rights under an
abuse of discretion standard. In re K.M.-B, T.M., E.M., 2015-Ohio-4626,
48 N.E.3d 998,
¶ 45 (6th Dist.). “An abuse of discretion requires more than an error in judgment; the
trial court's decision must be found to be unreasonable, arbitrary, or unconscionable.”
Id., citing Blakemore v. Blakemore,
5 Ohio St.3d 217, 219,
450 N.E.2d 1140 (1983).
Such a deferential review is warranted in these cases as “oftentimes the crucial evidence
lies in the demeanor and attitude of the parties.”
Id.
{¶ 13} At common law, grandparents did not have any legal right of access to their
grandchildren. In re Whitaker, 36 Ohio St.3d 213, 214,
522 N.E.2d 563 (1988).
Therefore, any right to visitation a grandparent may have must be provided for by statute.
In re Martin,
68 Ohio St.3d 250, 252,
626 N.E.2d 82 (1994).
{¶ 14} The trial court awarded the Wentzes visitation pursuant to R.C. 3109.11,
which reads, in relevant part, as follows.
If either the father or mother of an unmarried minor child is
deceased, the court of common pleas of the county in which the minor child
resides may grant the parents and other relatives of the deceased father or
mother reasonable companionship or visitation rights with respect to the
minor child during the child’s minority if the parent or other relative files a
complaint requesting reasonable companionship or visitation rights and if
the court determines that the granting of the companionship or visitation
rights is in the best interest of the minor child. In determining whether to
6.
grant any person reasonable companionship or visitation rights with respect
to any child, the court shall consider all relevant factors, including, but not
limited to, the factors set forth in division (D) of section 3109.051 of the
Revised Code.
{¶ 15} R.C. 3109.051(D) then sets forth factors that the court must consider.
These factors include: (1) “[t] he prior interaction and interrelationships of the child with
the child’s parents, siblings, and other persons related by consanguinity or affinity”; (2)
the location of the residence of the person seeking visitation and the distance between
that residence and the child’s residence; (3) the time available to the child and parents;
(4) the child’s age; (5) “[t]he child’s adjustment to home, school, and community”; (6)
“the health and safety of the child”; (7) “[t]he amount of time that will be available for
the child to spend with siblings”; (8) “[t]he mental and physical health of all parties”; (9)
the parents’ wishes and concerns; and, (10) any “other factor in the best interest of the
child.”
{¶ 16} Of these factors, a parent’s wishes are entitled to “special weight.”
Harrold v. Collier, 107 Ohio St.3d 44,
2005-Ohio-5334,
836 N.E.2d 1165, paragraph one
of the syllabus. This special weight is granted as it is presumed that a fit parent
determines what is in the best interest of their children. Id. at ¶ 44, citing Troxel v.
Granville,
530 U.S. 57,
120 S.Ct. 2054,
147 L.Ed.2d 49 (2000). However, the parent’s
wishes are not the sole determining factor of what is in the child’s best interest. Id. at ¶
44. Moreover, the law does not require that the parent’s wishes be placed before a child’s
7.
best interest. Id. The Ohio Supreme Court has recognized that a grandparent-grandchild
relationship is important and that “maintenance of this relationship may be in the best
interest of the child.” In re Whitaker at 216–17. The burden of establishing that
visitation would be in the children’s best interest falls upon the grandparents. In re K.M.-
B,
2015-Ohio-4626,
48 N.E.3d 998, at ¶ 43.
{¶ 17} Here, Wideman maintains that the trial court did not give “special weight”
to her wishes. Upon review, the trial court acknowledged that Wideman’s wishes were
entitled to “special weight,” however, the court ultimately determined that some
visitation was in the children’s best interest after “giving great weight to mother’s desires
and also carefully considering the relevant factors as to whether visitation would be in the
best interest of [O.H.] and [J.H.].” We note that the “weight to be given the evidence and
the credibility of the witnesses are primarily for the trier of fact.” Jared S. v. Ashley G.,
6th Dist. Williams No. WM-07-014, 2008-Ohio-1297, ¶ 31, quoting State v. DeHass,
10
Ohio St.2d 230,
227 N.E.2d 212 (1967), paragraph one of the syllabus.
{¶ 18} We find that the trial court appropriately gave “special weight” to
Wideman’s wishes. The trial court’s order of minimal video visits addresses Wideman’s
concerns that the children did not know the Wentzes and her concerns with the facility at
which the magistrate had ordered visitation to take place.
{¶ 19} Wideman also argues that the trial court shifted the burden of proof to her.
In support, she points to the trial court’s judgment entry finding that “[t]here has been a
demonstrated history of the paternal grandparents having a loving relationship with
8.
[O.H.] which – for reasons which neither party could accurately and specifically explain
– has ended.” We do not find this to be evidence that the trial court placed the burden on
Wideman. The trial court acknowledged the lack of contact, and merely stated that the
reason for the lack of contact was not sufficiently explained. The burden placed upon the
Wentzes is the burden of proving that visitation would be in the best interest of the
children. We do not find that the trial court’s statement places this burden on Wideman.
{¶ 20} Wideman next asserts that the trial court abused its discretion because
under Ohio law, grandparents are only entitled to visitation when there is a “disruptive
precipitating event,” and in this case, Hudson’s death did not precipitate the disruption in
the grandparent-grandchild relationship as the Wentzes had ceased contact with the
children over a year prior to Hudson’s death. It is true that the Ohio Supreme Court has
found that grandparents’ rights to visitation “do not vest until the occurrence of a
disruptive precipitating event, such as parental death or divorce.” In re Whitaker, 36
Ohio St.3d at 215,
522 N.E.2d 563. In the absence of such a disruptive precipitating
event, “the common-law view of deferring to parental autonomy in raising the child is
observed despite any moral or social obligations that may encourage contact between
grandparents and grandchildren.”
Id. However, the death of a parent has been defined
as such a disruptive precipitating event.
Id.
{¶ 21} Here, while the Wentzes had ceased interaction with the grandchildren
prior to Hudson’s death, it is not clear that, at some point, the parties might not have
begun interacting again if not for Hudson’s untimely death. Therefore, we find the lack
9.
of contact is not a disqualifying fact, but rather should be, and was, considered as a factor
in determining what is in the children’s best interest.
{¶ 22} Wideman also insists that the trial court abused its discretion by failing to
consider the fact that Mrs. Wentz made multiple false and misleading statements in her
affidavit. In its judgment entry, the trial court considered Wideman’s claim that Mrs.
Wentz’s affidavit was false or misleading, and that such statements should reflect poorly
on the court’s consideration of Mrs. Wentz’s testimony, but ultimately the trial court
found that the affidavit was not properly before it as it did not authorize additional
testimony in the form of formal evidence or affidavits. Wideman contends that this
conclusion misses the point and that the affidavit “throws the credibility of [Mrs.
Wentz’s] testimony as a whole into grave doubt,” a relevant factor that must be
considered by the trial court under R.C. 3109.11. As we have previously stated, the
“weight to be given the evidence and the credibility of the witnesses are primarily for the
trier of fact.” Jared S., 6th Dist. Williams No. WM-07-014, 2008-Ohio-1297, at ¶ 31.
We do not find that the trial court’s decision to not consider the affidavit is an abuse of
discretion.
{¶ 23} After reviewing the evidence and the law, we find that the trial court did
not misapply the governing statutes and precedent and its award of limited visitation was
not an abuse of discretion. Accordingly, we find appellant’s first assignment of error not
well-taken.
10.
Second Assignment of Error
{¶ 24} Wideman argues that R.C. 3109.11 is unconstitutional as it is applied in
this case.
{¶ 25} We start with the premise that a statute is presumed to be constitutional.
Harrold, 107 Ohio St.3d 44,
2005-Ohio-5334,
836 N.E.2d 1165, at ¶ 36. Wideman, as
the party challenging the statute, must prove the statute unconstitutional beyond a
reasonable doubt.
Id.
{¶ 26} “A party may challenge a statute as unconstitutional on its face or as
applied to a particular set of facts.” Id. at ¶ 37. The Ohio Supreme Court has found R.C.
3109.11 constitutional on its face. Id. at ¶ 47. Wideman is challenging R.C. 3109.11 as
applied to the particular facts of this case. As such, she “bears the burden of presenting
clear and convincing evidence of a presently existing set of facts that make the statute[]
unconstitutional and void when applied to those facts.” Id. at ¶ 38, citing Belden v.
Union Central Life Ins. Co., 143 Ohio St. 329,
55 N.E.2d 629 (1944), paragraph six of
the syllabus.
{¶ 27} If the challenged statute impinges upon a fundamental constitutional right,
we review the statute under a strict-scrutiny standard. Id. at ¶ 39. Under this standard, if
a statute infringes on a fundamental right, it is unconstitutional “unless the statute is
narrowly tailored to promote a compelling governmental interest.” Id.
11.
{¶ 28} A parent’s right to make decisions concerning the care, custody, and
control of his or her children is a fundamental right protected by the Due Process Clause
of the Fourteenth Amendment. Id. at ¶ 40, quoting Troxel, 530 U.S. at 66,
120 S.Ct.
2054,
147 L.Ed.2d 49. Therefore, we must find R.C. 3109.11 unconstitutional unless it is
“narrowly tailored to promote a compelling governmental interest.”
{¶ 29} Although Wideman concedes that Ohio courts have found “that facilitating
the grandchild-grandparent relationship through forced visitation can be a compelling
state interest,” she contends that there is no compelling state interest in this case where
the grandparents “abandoned” their relationship with O.H. and never sought to
reestablish a relationship with O.H., or begin one with J.H, by contacting Wideman.
Additionally, she contends that the statute as applied is unconstitutional as the disruptive
event did not cause the breach in the grandparent-grandchild relationship, and the
statutory scheme failed to give Wideman’s wishes the “special weight” to which they are
entitled.
{¶ 30} We have already determined that the trial court appropriately gave
Wideman’s wishes special weight. Furthermore, the Ohio Supreme Court has found R.C.
3109.11, which allows visitation after a “specified predicate event or condition,” such as
the death of a parent, to be constitutional. Harrold, 107 Ohio St.3d 44,
2005-Ohio-5334,
836 N.E.2d 1165, at ¶ 41, 47. We do not find the fact that the Wentzes did not have
contact with O.H. for a period of time before Hudson’s death makes the statute
unconstitutional as applied here.
12.
{¶ 31} With regard to whether there was a compelling state interest in this case,
the Ohio Supreme Court has recognized that maintenance of a grandparent-grandchild
relationship may be in the best interest of the child. In re Whitaker, 36 Ohio St.3d at 216-
217,
522 N.E.2d 563. The Supreme Court has also acknowledged that “[t]he state has a
compelling interest in protecting a child's best interest.” Harrold at ¶ 44, citing In re
T.R.,
52 Ohio St.3d 6, 18,
556 N.E.2d 439 (1990).
{¶ 32} Here, the trial court found that visitation with the Wentzes would be in the
children’s best interest after considering the fact that the Wentzes never first requested
visitation from Wideman. The trial court may have concluded, as Mrs. Wentz testified,
that such a request would have been fruitless. As discussed above, we have found the trial
court’s finding that visitation would be in the children’s best interest was not an abuse of
discretion. Moreover, we find the trial court’s minimal visitation order (twice monthly
video visits for as little as 15 minutes) was narrowly tailored to serve that compelling
interest. Therefore, we do not find R.C. 3109.11 unconstitutional as applied. Wideman’s
second assignment of error is not well-taken.
{¶ 33} The judgment of the Juvenile Division of the Wood County Common Pleas
Court is affirmed. Pursuant to App.R. 24, appellant is hereby ordered to pay the costs
incurred on appeal.
Judgment affirmed.
13.
WD-20-080
Wentz, et al. v. Wideman
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.
Mark L. Pietrykowski, J. _______________________________
JUDGE
Gene A. Zmuda, P.J.
_______________________________
Myron C. Duhart, J. JUDGE
CONCUR.
_______________________________
JUDGE
This decision is subject to further editing by the Supreme Court of
Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
version are advised to visit the Ohio Supreme Court’s web site at:
http://www.supremecourt.ohio.gov/ROD/docs/.
14.
