B.S. v. M.M.
2021 Ohio 176
Ohio Ct. App.2021Background
- Father (B.S.) was designated residential parent in the 2011 divorce decree; Mother (M.M. nka L.G.) received scheduled visitation and was ordered to pay child support.
- Mother filed a 2019 motion to reallocate custody of the younger child, M.H.S. (age 13), alleging the child wished to live with Mother and citing behavioral/mental-health incidents; a GAL recommended shared parenting with Mother as residential parent or, failing that, sole custody to Mother.
- The trial court initially denied reallocation in Jan. 2020 for lack of a demonstrated change in circumstances; the appellate court reversed and remanded, instructing the trial court to consider the child’s wishes given her age.
- On remand the trial court (July 14, 2020) found a substantial change in circumstances (Mother’s remarriage, birth of a child, career changes, and M.H.S.’s expressed wishes), concluded modification was in M.H.S.’s best interest, and named Mother sole legal custodian effective at start of 2020 school year.
- The trial court also found Mother in contempt for child-support arrearages and for deviating from visitation; Mother was sentenced to 15 days (suspended) and given purge conditions; court later ordered Father to pay child support.
- Father appealed the July 14, 2020 order but did not file a transcript of the January 7, 2020 hearing; the appellate court considered the record and affirmed.
Issues
| Issue | Plaintiff's Argument (Father) | Defendant's Argument (Mother) | Held |
|---|---|---|---|
| Whether a reallocation of parental rights was an abuse of discretion | Trial court erred in finding modification in child’s best interest and abused discretion in awarding custody to Mother | Modification was justified by change of circumstances and best-interest factors (including child’s wishes) | Court affirmed: no abuse of discretion; change and best-interest findings supported by record |
| Whether the child’s expressed wishes could be considered without in-camera interview | Child’s wishes should not be given weight absent an in-camera interview; trial court erred | Child’s wishes may be shown by GAL testimony and other evidence; in-camera interview not required | Court held GAL testimony and other evidence adequately conveyed child’s wishes; in-camera interview not required |
| Whether incidents (visitation refusal) and Mother’s arrearages (F)(1)(f) & (g) required denying modification | These factors show Mother unlikely to honor parenting-time and her arrears weigh against awarding custody | Although concerning, incidents were isolated and GAL testified parents could cooperate; purge and contempt sanctions addressed arrears | Court found trial court reasonably weighed these factors and did not abuse discretion |
| Impact of absent transcript on appellate review | Missing hearing transcript prevents meaningful review and supports reversal/preservation of error | Appellant failed to supply transcript; appellate review limited and presumption of regularity applies | Court applied Knapp presumption (missing transcript) and, on the record, found no reversible error; affirmed |
Key Cases Cited
- Davis v. Flickinger, 77 Ohio St.3d 415 (Ohio 1997) (guidance on change-in-circumstances and deference in custody modifications)
- Blakemore v. Blakemore, 5 Ohio St.3d 217 (Ohio 1983) (standard for finding abuse of discretion)
- Miller v. Miller, 37 Ohio St.3d 71 (Ohio 1988) (deference to trial court factfinding in custody matters)
- Seasons Coal Co. v. Cleveland, 10 Ohio St.3d 77 (Ohio 1984) (value of observing witness demeanor)
- Knapp v. Edwards Laboratories, 61 Ohio St.2d 197 (Ohio 1980) (absent transcript, appellate court presumes regularity of proceedings)
- Wyss v. Wyss, 3 Ohio App.3d 412 (Ohio Ct. App. 1981) (change in circumstances defined as material and adverse effect on child)
- In re A.G., 139 Ohio St.3d 572 (Ohio 2014) (courts may obtain child’s wishes via GAL, counsel, or in-camera interview)