Berger v. Feng
2012 Ohio 1041
Ohio Ct. App.2012Background
- Berger and Feng married in 1982 with two children; E.B. born 1994; divorce filed 2001; final decree 2004 incorporated an unsigned shared parenting plan giving Berger primary school-based residential parent and final decision-making authority on impasses.
- In 2009 Feng moved to modify custody and sought to have E.B. live with her and attend Cleveland-area schools; Berger enrolled E.B. at Hyde School in Connecticut without Feng’s consent.
- Guardian ad litem Barbara Belovich was appointed; GAL recommended Hyde and to keep E.B. with Berger for school placement, despite E.B.’s desire to live with Feng and attend school in Orange School District.
- Hearing spanned October–December 2009; E.B. was 15; evidence showed prior academic difficulties and peer issues; Hyde was selected for its structure and peer environment.
- Magistrate decision June 17, 2010 adopted by trial court February 9, 2011; court upheld Berger’s enrollment of E.B. at Hyde; Feng appeals challenging the modification and related rulings; Berger cross-appeals on contempt-related issues.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether modifying the plan to enroll at Hyde was in E.B.’s best interest under a substantial change in rights | Feng: modification warranted to place E.B. with her and in Cleveland area | Berger: change supported by E.B.’s best interests and evidence; substantial change in rights | No abuse of discretion; modification not in best interests outweighing change in environment |
| Whether the trial court erred by not removing the GAL despite conflicting recommendations | Feng: GAL biased; recommendation should be reconsidered | Berger: court has broad discretion on GAL appointments/removals | No abuse of discretion; GAL denial upheld |
| Whether the court properly enforced or declined to enforce orders related to visitation, ex parte orders, and deposition | Feng: court should enforce visitation and deposition orders | Berger: court acted within discretion given context of enrollment at Hyde | No reversible error; court did not abuse its discretion on these discovery/visitation issues |
| Whether the court erred in quashing subpoenas to Berger’s mental health professionals | Feng: mental health evidence should be explored in custody decision | Berger: no issue raised by Berger to warrant disclosure | No abuse of discretion; subpoenas properly quashed |
| Whether the trial court properly denied Feng’s request for attorney fees | Feng: entitled to fees due to unsuccessful modification | Berger: fees not warranted as motion not well-taken | Affirmed denial of attorney fees |
Key Cases Cited
- Davis v. Flickinger, 77 Ohio St.3d 415 (1997) (abuse of discretion standard in custody modifications)
- Seasons Coal Co. Inc. v. Cleveland, 10 Ohio St.3d 77 (1984) (weighing credibility and weight of evidence on review)
- Barzingus v. Wilheim, 306 F.3d 17 (10th Cir. 2010) (motion to compel arbitration standard similar to summary judgment)