Brunett v. Brunett
2017 Ohio 307
| Ohio Ct. App. | 2017Background
- Melissa Brunett (mother) and John Brunett (father) divorced in 2008; mother was designated residential parent and legal custodian of the parties’ younger child (pseudonym “Audrey”).
- In December 2014 father filed a motion to modify custody; a magistrate held an evidentiary hearing in April 2015 and awarded custody to father. Mother represented herself at trial, later retained counsel only to file objections, and then appealed pro se.
- Trial court conducted a de novo review of the magistrate’s decision, overruled mother’s objections, and entered an amended custody order (Feb. 11, 2016) designating father residential parent and legal custodian.
- Magistrate and trial court found (collectively) that multiple post-decree changes supported modification: mother living with a boyfriend, child being homeschooled, mother’s frequent moves, mother’s filings accusing father (dismissed), and repeated police calls to mother’s home.
- Mother challenged: (1) lack of change-in-circumstances allegation and notice, (2) admission/authentication/hearsay of police reports, (3) magistrate’s instruction limiting objections to questions only, and (4) sufficiency/weighting of best-interest factors and failure to explicitly address harm from changing the child’s environment.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether father’s failure to plead a change in circumstances barred a custody hearing | Brunett: Father did not allege a change in circumstances; she lacked notice and no hearing was required | Father proceeded and elicited testimony showing post-decree changes; hearing gave mother ample notice | Court: Hearing not prejudicial; although pleading is threshold, court may hold hearing; evidence supported finding of changed circumstances (cumulative facts) |
| Whether the magistrate could rely on police reports (authentication/hearsay/relevance) | Brunett: Reports were unauthenticated hearsay and irrelevant | Father: Reports show incidents serious enough to warrant police response; mother testified police came frequently | Court: Admission discretionary; any error was not prejudicial because mother admitted frequent police involvement and magistrate presumed to consider only proper evidence |
| Whether magistrate’s instruction that mother may only object to questions (not answers) was improper | Brunett: A party may object to inadmissible answers and the instruction curtailed her rights | Father: Magistrate’s instruction was a reasonable response to mother’s frequent interruptions and disagreements | Court: Instruction was not an abuse of discretion; no improper testimony identified that required striking |
| Whether trial court properly weighed best-interest factors and accounted for harm of changing environment | Brunett: Magistrate ignored child’s wishes, relied on improper evidence, and failed to find whether harm of change was outweighed by advantages | Father: Magistrate and trial court considered statutory factors; trial court expressly found advantages outweighed harm | Court: Trial court’s de novo weighing was reasonable; statutory best-interest considerations satisfied and trial court found harm outweighed by advantages |
Key Cases Cited
- AAAA Enterprises, Inc. v. River Place Community Urban Redevelopment Corp., 50 Ohio St.3d 157, 553 N.E.2d 597 (1990) (defines abuse-of-discretion and unreasonable decision standard)
- Miller v. Miller, 37 Ohio St.3d 71, 523 N.E.2d 846 (1988) (trial-court observations of witnesses carry special weight in custody proceedings)
- Davis v. Flickinger, 77 Ohio St.3d 415, 674 N.E.2d 1159 (1997) (new marriage alone usually does not constitute a sufficient change in circumstances)
- Gardini v. Moyer, 61 Ohio St.3d 479, 575 N.E.2d 423 (1991) (home schooling can be relevant to custody if child is harmed by removal from public school)
- Mason v. Swartz, 76 Ohio App.3d 43, 600 N.E.2d 1121 (1991) (admissibility of evidence is within trial court's discretion)