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Cops and Courts

Judge withdraws warrant in long-running visitation case

  • Eberhardt-jpg

    Lindsey Eberhardt

    PHOTO PROVIDED

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ELYRIA — An arrest warrant for an Avon Lake mother has been withdrawn after the Court of Appeals vacated a judgment by a Lorain County judge.

A warrant for the arrest of Lindsey Eberhardt had been issued Dec. 14 after she failed to appear for a sentencing hearing in Lorain County Common Pleas Court before Domestic Relations Judge Frank Janik.

On Wednesday, Janik withdrew the arrest warrant “in light of the Ninth District Court of Appeal’s decision dated (Dec. 28),” according to court documents.

In September, Eberhardt was found in contempt of court after she refused to follow a 2016 court order to allow Melva and Scott Sherwood visitation with Eberhardt’s two children on the second weekend of each month and permitting the Sherwoods to have makeup visitations for months missed. Melva Sherwood is the paternal grandmother of Eberhardt’s two children; her son, Andrew Weaver, died of a drug overdose in 2012.

On Sept. 21, Eberhardt told Janik she was refusing to follow the order and she was sentenced to 30 days in Lorain County Jail. On Sept. 27, the Ohio Supreme Court, in an order signed by Chief Justice Maureen O’Connor, ordered that Eberhardt be released from jail after Eberhardt’s attorney, Jonathan Rosenbaum, filed a writ of habeas corpus. Eberhardt served six days of her 30-day sentence.

On Nov. 28, the Ohio Supreme Court dismissed the habeas corpus and denied Eberhardt’s motion for bond and request for alternative writs, which allowed Janik once again to sentence Eberhardt to jail for contempt.

On Dec. 28, after Rosenbaum filed for additional relief through the 9th District Court of Appeals, the court vacated a judgment made by Janik on Oct. 14, 2016, because it “is based on an improper exercise of subject matter jurisdiction, and the orders contained therein exceed the authority of the trial court,” the appeals court’s decision said.

This issue predates Janik taking the bench in 2013, the decision said, and instead involves a journal entry made by former Judge David Basinski.

The Court of Appeals found that Basinski “never made a finding or adjudication respecting either the complaint for custody or the motion for visitation.” Instead, prior to the scheduled trial date, the parties reached a settlement agreement, which was signed by the court.

Janik’s judgment made in 2016 was based on the 2011 “court order,” which the Court of Appeals has ruled wasn’t actually a court order.

“Although the trial court’s stated purpose for the hearing was to review Ms. Eberhardt’s motion to modify or discontinue visitation (for the Sherwoods), the trial court did not address its jurisdiction or authority to modify the parties’ agreed journal entry of Nov. 1, 2011,” the Court of Appeals decision said. “Instead, the court summarily concluded that because ‘the prior visitation decree originated with’ the trial court, the court had proper jurisdiction to consider mother’s motion.”

The decision also said Janik found Melva Sherwood’s “conduct to be adverse to the best interest of the children,” but he “went on to find that it is in the best interest of the children to return the Sherwoods’ visitation back to the 2011 visitation order, but also included restrictions on the Sherwoods’ visitation with the children.

Melva Sherwood had been accused of weighing the children without clothes on and not allowing the children to flush to toilet so she could examine their feces due to concerns that Eberhardt was not providing them with proper nutrition, court records said.

The Court of Appeals decision also said Janik’s 2016 judgment “did not directly rule on (Eberhardt’s) motion to modify or discontinue the agreed visitation schedule with the Sherwoods.

“Instead, the trial court discounted Ms. Eberhardt’s motion and stated that ‘although mother filed a motion to terminate the Sherwood’s visitation, she at no time testified that she wants their visitation to be terminated’ and that Ms. Eberhardt did not truly oppose the visitation schedule itself — only Melva Sherwood’s conduct during visitation,” the decision said. “… We conclude that the trial court misconstrued its role in reviewing Ms. Eberhardt’s motion.”

On Wednesday, Rosenbaum filed a motion to recall the arrest warrant issued for Eberhardt and to close the custody case between the Sherwoods and Eberhardt. Janik granted the motion in part, by withdrawing the arrest warrant.

“However, on June 8, 2018, the (Sherwoods) filed a complaint and/or motion for legal custody or, in the alternative, for expanded grandparent visitation,” Janik’s entry filed on Wednesday said. “The court stayed the proceedings on said action due to the pending appeal. On Dec. 28, 2018, the Ninth District Court of Appeals issues its decision on the pending appeal. Therefore, the defendant’s motion to close the case is hereby denied.”

In essence, the decision has reset the entire case back to the way it was in 2010, when the Sherwoods first filed for legal custody of Eberhardt’s two children.

A status hearing on the matter has been scheduled for 1:30 p.m. Jan. 18, according to court documents.

Contact Scott Mahoney at (440) 329-7146 or smahoney@chroniclet.com. Follow him on Twitter @SMahoneyCT.


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