Father Wins Custody Fight, Despite Mother's Claims | WBNS-10TV,...

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A Scioto County judge on Tuesday awarded custody of a 5-year-old girl to her father, after her mother spent months in jail, for keeping her away from him.
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Appeals Decision

Columbus, OH

#284 Apr 2, 2010
{¶54} On the contrary, we find it more likely that Lewis did not remember The Fired
Attorney’s name and, thus, had no actual knowledge of the potential conflict. It makes
2 On May 8, 2009, The Fired Attorney filed a Motion to Continue because he had a
previously scheduled medical procedure on the hearing date. However, the procedure
was rescheduled, and The Fired Attorney withdrew the motion on May 13, 2009.
Scioto App. No. 09CA3307 14
little sense for Lewis to know of the potential conflict; have The Fired Attorney represent
her throughout the trial court proceedings; have The Fired Attorney continue to
represent her on appeal, even after an adverse outcome at the trial court level; and then
release The Fired Attorney after he obtained a reversal of the trial court’s decision. If
Lewis had known of the conflict, it seems much more likely that she would have
released The Fired Attorney after the trial court designated Rice as the Child’s
residential parent. But instead, Lewis released The Fired Attorney after he had
achieved his greatest success in this case. This seems like an unlikely time for Lewis to
suddenly act upon any hidden knowledge of the potential conflict.
{¶55} Finally, attorneys must disclose conflicts of interest. See Comment 29 to
Rule 1.7 of the Rules of Professional Conduct (“Informed consent requires that each
affected client be aware of the relevant circumstances and of the material and
reasonably foreseeable ways that a conflict could have adverse effects on the interests
of that client.”). Here, The Fired Attorney did not disclose that he had represented Rice
in a previous matter where Rice was accused of sexually molesting a young relative. At
the July 24, 2009 hearing, The Fired Attorney said,“It’s not in my mind a conflict.”
7/24/09 Transcript at 14. Whether or not it created an actual conflict, The Fired
Attorney’s prior representation of Rice created at least the appearance of a potential
conflict of interest. Because The Fired Attorney did not disclose the prior representation
to Lewis, it was reasonable for Lewis to assume that her attorney had no potential
conflicts.
Appeals Decision

Columbus, OH

#285 Apr 2, 2010
{¶56} For the foregoing reasons, we do not believe that Lewis already knew of the
potential conflict. Rather, we find it more likely that Lewis did indeed discover the
Scioto App. No. 09CA3307 15
potential conflict after reviewing the transcripts of the May 15, 2007 hearing. As such,
we do not believe that Lewis contributed to the circumstance that gave rise to her
request for a continuance.
{¶57} Additionally, we believe that a unique, case-specific factor weighs in favor of
granting a continuance. That is, it quickly became apparent that Lewis would be at an
unfair disadvantage during the July 24, 2009 hearing. The trial court addressed several
important matters at that hearing, including motions for contempt and Rice’s Motion for
Compensatory Parenting Time. And before the trial court denied Lewis’s Motion For
Continuance, The Fired Attorney expressed that he did not want to be there. He said,
“she doesn’t want me here, your Honor, and I really don’t want to be here at this point. I
think I’ve been professionally somehow slammed.” 7/24/09 Transcript at 18.
Nevertheless, the trial court judge told The Fired Attorney,“I’m keepin’ you here and
then [Lewis] can use you if she wants you here.” Id. By denying Lewis’s Motion For
Continuance, the trial court forced Lewis into the unenviable position of arguing these
matters either (1) by herself or (2) with the assistance of an attorney she had just fired
for a perceived “inexcusable act.” Letter of Disengagement Attached to Lewis’s July 23,
2009 Affidavit.
{¶58} It soon became apparent that Lewis was unprepared to argue the pending
motions. Lewis’s letter to The Fired Attorney asked for the complete case file. But for
whatever reason, Lewis did not receive the pending motions. After saying that she had
not received them, the trial court judge told Lewis,“Your letter asked for all pending
Motions. So, you listen here and you tell me what the pending Motions are.” Id. at 19.
At this point, Rice’s attorney described Lewis’s pending motions to the court.
Scioto App. No. 09CA3307 16
Appeals Decision

Columbus, OH

#286 Apr 2, 2010
{¶59} The foregoing events transpired before the trial court overruled Lewis’s
Motion For Continuance. Based on these events, Lewis clearly had a fractured
attorney-client relationship and little knowledge of the pending motions. Thus, it should
have been clear that, without a continuance, Lewis would be at an unfair disadvantage
during the July 24, 2009 hearing. Accordingly, we believe this case-specific factor
weighs in favor of granting Lewis’s Motion For Continuance.
{¶60} In total, the following Unger factors weigh in Lewis’s favor:(1) she requested
a continuance for legitimate reasons; (2) she did not receive a continuance after
remand, but Rice did; (3) she requested a reasonable delay of time; (4) she did not
contribute to the circumstances that gave rise to her request for a continuance; and (5)
the unique, case-specific factor related to Lewis’s unfair disadvantage. In our view, the
inconvenience factor does not weigh either for or against granting the continuance.
Rice lives in Florida, so a continuance would have inconvenienced him. However, there
is no evidence that a continuance would have inconvenienced anyone else – especially
because Rice and Lewis were the only witnesses present for the July 24, 2009 hearing.
Further, the trial court itself did not appear inconvenienced by Rice’s May 14, 2009
request for a continuance. Thus, of the six Unger factors, five weigh in favor of granting
the continuance, and one is neutral. Where the Unger factors favor granting a
continuance, other courts have found that a trial court abuses its discretion by failing to
do so. See, e.g., Burton v. Burton (1999), 132 Ohio App.3d 473, 476-77; Griffin v.
Lamberjack (1994), 96 Ohio App.3d 257, 264. At a very minimum, the trial court did not
discuss its reasons for denying Lewis’s Motion For Continuance, and at least one other
trial court has been reversed for failing to conduct a proper analysis. See DeFranco v.
Scioto App. No. 09CA3307 17
DeFranco, Lake App. No. 2000-L-147, 2001-Ohio-4338 (The trial court “failed to
conduct a sufficient inquiry regarding these factors.***[B]y failing to utilize the Unger
analysis, the trial court abused its discretion.”).
Appeals Decision

Columbus, OH

#287 Apr 2, 2010
{¶61} We recognize that a trial court has considerable discretion in deciding
whether to grant a continuance. But in the present case, the prejudice to Lewis
outweighs the trial “court’s right to control its own docket [or] the public’s interest in the
prompt and efficient dispatch of justice.” Unger at 67. The Supreme Court of Ohio has
defined “judicial discretion” as “the option which a judge may exercise between the
doing and not doing of a thing which cannot be demanded as an absolute legal right,
guided by the spirit, principles and analogies of the law, and founded upon the reason
and conscience of the judge, to a just result in the light of the particular circumstances
of the case.” Krupp v. Poor (1970), 24 Ohio St.2d 123, at paragraph two of the syllabus.
Additionally, fairness is one of the basic philosophies of judicial procedure. See
Cunningham v. Jerry Spears Co.(1963), 119 Ohio App. 169, 174. And here, forcing
Lewis to proceed despite the total breakdown in her attorney-client relationship was
neither just nor fair. Guided by the spirit and principles of the law, and based on the
circumstances of this particular case, the trial court should have allowed Lewis the
opportunity to obtain a new attorney. In conclusion, we can see no compelling interest
that outweighs the considerable prejudice done to Lewis. Therefore, we conclude that
the trial court abused its discretion.
Appeals Decision advocate

Columbus, OH

#288 Apr 2, 2010
{¶62} Accordingly, we sustain Lewis’s first assignment of error. Because the trial
court abused its discretion in denying Lewis’s Motion For Continuance, the July 24,
2009 hearing is moot. As such, we vacate all of the orders that resulted from the July
Scioto App. No. 09CA3307 18
24, 2009 hearing. Furthermore, we order the immediate release of Cherish Lewis from
the Scioto County Jail.
III.
{¶63} Our resolution of Lewis’s first assignment of error renders her remaining
assignments of error moot. As such, we decline to address them. See App.R.
12(A)(1)(c).
IV.
{¶64} In conclusion, we reverse the trial court’s judgment and remand this cause to
the trial court for further proceedings consistent with this opinion. Based on our
resolution of Lewis’s first assignment of error, we vacate all of the orders that resulted
from the July 24, 2009 hearing. Further, we order the immediate release of Cherish
Lewis from the Scioto County Jail.
JUDGMENT REVERSED AND
CAUSE REMANDED.
Advocate appeals

Columbus, OH

#289 Apr 2, 2010
Scioto App. No. 09CA3307 19
JUDGMENT ENTRY
It is ordered that the JUDGMENT BE REVERSED and this cause BE
REMANDED to the trial court for further proceedings consistent with this opinion and
Appellee pay the costs herein taxed.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the Scioto
County Common Pleas Court, Domestic Relations Division, to carry this judgment into
execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure. Exceptions.
Abele, J.: Concurs in Judgment and Opinion.
Harsha, J.: Concurs in Judgment Only.
For the Court
BY:
Roger L. Kline, Judge
NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a final judgment
entry and the time period for further appeal commences from the date of filing
with the clerk.
Advocate appeals

Columbus, OH

#290 Apr 2, 2010
Nameless wrote:
<quoted text>
MORE DRAMA DRAMA
Hi Molly please review the appeals court in full before you continue to put your good name and family name attached to the likes of Reginal Kelley. Its all there

www.supremecourt.ohio.gov/rod/docs/pdf/4/2010...
Advocate appeals

Columbus, OH

#291 Apr 2, 2010
crazy people wrote:
Think about this for a minute people if your child accused their own father of sexually abusing them would you not be more than willing to sit in jail for the rest of your life to protect your child from a father like that??? Also why else would cherish sit in jail and not tell where jaelyn is because either way (if he did or did not hurt his daughter) she still wouldn't get to see jaelyn?? I will tell you why because she believed that stephen abused her daughter. If you are a parent you would understand why she would do that...Now I'm not saying who I believe in this whole issue but there is hardly anyone looking at this from the mother's point of view and maybe its just because I'm a mother that I would look at it this way. But I'm starting to wonder if Jaelyn really is safer at home with her dad, I guess we will find out!
If you are still trying to decide on who to side with, houw about the 4th district appeals who sided with Cherish and this form also references Stephen Rices past history of abuse
Advocate appeals

Columbus, OH

#292 Apr 2, 2010
JaelynLuvsRices wrote:
<quoted text>
I never once put their address ANYWHERE nor has Stephen or MOMMY aka Megan. It was other Rice supporters who very well pulled it from the multiple local newspaper articles in your town and posted it. So I advise you get your facts in order before you spread more slander, start more rumors and create more lies. Heck, I just saw it in the Portsmouth Times link. So maybe you guys should start harrassing the journalist Frank Lewis too? Actually, I didn't mean that literally b/c he is as innocent as the Rices. The Rice's have never done anything illegal or violent towards the Lewis' family (can't say the same the other way around!)
Here you go sweetie, please read in its entirety and this is not a cherish website ~ it does reference the past history of sexual abuse as a juvenile ` www.supremecourt.ohio.gov/rod/docs/pdf/4/2010...
Advocate appeals

Columbus, OH

#293 Apr 2, 2010
Advocate appeals

Columbus, OH

#294 Apr 2, 2010
Nameless wrote:
<quoted text>
DRAMA DRAMA
http://www.supremecourt.ohio.g ov/rod/docs/pdf/4/2010/2010-oh io-1077.pdf sorry this one works better
Advocate appeals

Columbus, OH

#296 Apr 2, 2010
tammy wrote:
that is a good question for the lewis family. was there a dna test done? is there record of that?
Hi Tammy, this was the decision from the appeals court in regaurds to what Judge Crow did!! I am sure they did not intend for Crow to hand the child over ~ often appeals court will remand back to the same judge out of respect and give that judge a chance to correct their abuse of discretion but in this case ~~~ Judge Fred Crow ordered Cherish to appear wiht Jaelyn, the law says this was a confernce and Crow should not have sent the child back No one expected him to send Jaelyn back ~~~ please read the appeals court decision for yourself and make your own judgement on what you think they want http://www.supremecourt.ohio.gov/rod/docs/pdf... We will appeal for Cherish and we will win but in the meantime Jaelyn is with this monster
My favorites

Columbus, OH

#297 Apr 2, 2010
http://www.supremecourt.ohio.gov/rod/docs/pdf...

2. On or about July 16, 2009 I discovered information that [The Fired
Attorney had] represented Stephen Rice on a previous matter. I was never informed by
[The Fired Attorney] or anyone else that [The Fired Attorney] had previously
represented Stephen Rice in a criminal matter which is under seal by the juvenile court.
Scioto App. No. 09CA3307 4
The attached transcript will demonstrate that Regina Kelley states under oath that [The
Fired Attorney] previously represented Stephen Rice on sexual abuse allegations
involving a minor child
tammy

Portsmouth, OH

#298 Apr 2, 2010
Advocate appeals wrote:
<quoted text>Hi Tammy, this was the decision from the appeals court in regaurds to what Judge Crow did!! I am sure they did not intend for Crow to hand the child over ~ often appeals court will remand back to the same judge out of respect and give that judge a chance to correct their abuse of discretion but in this case ~~~ Judge Fred Crow ordered Cherish to appear wiht Jaelyn, the law says this was a confernce and Crow should not have sent the child back No one expected him to send Jaelyn back ~~~ please read the appeals court decision for yourself and make your own judgement on what you think they want http://www.supremecourt.ohio.gov/rod/docs/pdf... We will appeal for Cherish and we will win but in the meantime Jaelyn is with this monster
some would find it very hard to believe that a judge could do these kinds of things even after being looked at by a higher court BUT i for one know how corrupt the judicial system can be in scioto county. as for your appeal, how long does this take?
Cols Ohio United

Columbus, OH

#299 Apr 2, 2010
Thank you for providing the facts including the source documents. We will spread the word of this family's tragic saga to anyone who will listen. Together we can impeach Judge Crow and bring Jaelyn back home to her mother.
Advocate appeals wrote:
<quoted text>Hi Tammy, this was the decision from the appeals court in regaurds to what Judge Crow did!! I am sure they did not intend for Crow to hand the child over ~ often appeals court will remand back to the same judge out of respect and give that judge a chance to correct their abuse of discretion but in this case ~~~ Judge Fred Crow ordered Cherish to appear wiht Jaelyn, the law says this was a confernce and Crow should not have sent the child back No one expected him to send Jaelyn back ~~~ please read the appeals court decision for yourself and make your own judgement on what you think they want http://www.supremecourt.ohio.gov/rod/docs/pdf... We will appeal for Cherish and we will win but in the meantime Jaelyn is with this monster
Lady Buckeye

Columbus, OH

#300 Apr 2, 2010
I have heard the story in prayer group. Fellow OSU Alumnas and current members of OSU Women's Studies, it is time to unite and be a source of strenth for this 5 year old little girl. Anyone want to join me in organizing a candle-light vigil? The abuse of judicial power will not be tolerated here & violent crimes against our sisters must end!
Advocate

Columbus, OH

#301 Apr 2, 2010
Lady Buckeye wrote:
I have heard the story in prayer group. Fellow OSU Alumnas and current members of OSU Women's Studies, it is time to unite and be a source of strenth for this 5 year old little girl. Anyone want to join me in organizing a candle-light vigil? The abuse of judicial power will not be tolerated here & violent crimes against our sisters must end!
please contact the justice league of Ohio and set that up!!! There were organizations from across Ohio that showed up for the court hearing and NO ONE could believe it NO ONE He had no right!!
Advocate

Columbus, OH

#302 Apr 2, 2010
tammy wrote:
<quoted text>
some would find it very hard to believe that a judge could do these kinds of things even after being looked at by a higher court BUT i for one know how corrupt the judicial system can be in scioto county. as for your appeal, how long does this take?
It could take months and this means Jaelyn will be with him until then!! We need to have him removed from the bench immediately!!! thank you for your help!! I have just recently met the family and they are good people and these bloggers from California are Stephens wife's family>> His wife Megan has actually seen the abuse and Makes the child call her mommy!! you can see from their thread they are nasty people!
Advocate

Columbus, OH

#303 Apr 2, 2010
I am in tears! we need support and Jaelyn needs interference now!! If Stephen were smart, he would sign over all rights to Cherish and run away as far as he can go. They dont get it, we wont stop until that little girl is home safe with her mommy, not her step mommy dearest and Stephen the abuser... The longer they fight the more details come out about Stephen... When this hits national, the whole world will know what he did!! His juvenile records were ordered over so they too will soon be open to the public!
Advocate

Columbus, OH

#304 Apr 2, 2010
Megan, because of all your blogs stating you took care of Jaelyn, bathed her, potty trained her, did everything for her,,, I foresee you being charged too!! God I hope!!! This isnt over!! we promise you! WE are growing and this will eventually be investigated!!!! Every one of your friends will see what kind of person you are.

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