2011 Ohio 5512
Ohio Ct. App.2011Background
- Sep 8, 2008 divorce; Rebecca Hill (fka Butts) and Donald Butts II; Hill named sole residential parent of Em (youngest child) under a shared plan for Em prior to Sept 23, 2009.
- Sept 23, 2009 agreed judgment terminated shared plan and named Hill the sole residential parent and legal custodian of Em.
- Oct 5, 2009 Mr. Butts died; Oct 7, 2009 Michelle Wood (aunt) sought custody of Er and was added as third-party defendant.
- Ex parte order granted Wood temporary custody of Er; Feb 22, 2010 Wood granted temporary legal custody of Em; March 5, 2010 magistrate affirmed and suspended appellant’s parenting time.
- April 14, 2010 hearing; May 25, 2010 magistrate recommended granting Wood’s motions; April 11, 2011 final judgment awarded custody of Er and Em to Wood, with appellant having supervised visitation and a social-security-offset child support arrangement.
- Appeal challenges include child support worksheet omission, ex parte custody order, weight of evidence for custody, and admissibility of pre-2009 evidence; court remanded for a child-support worksheet.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the final judgment lacked a child support worksheet | Hill: worksheet required by RC 3119.022 must be included | Hill/defendant argued as to record error but not contested on other grounds | Yes; remanded to include worksheet |
| Whether the ex parte order changing Em's custody was proper | Hill contends no unsuitability finding | Wood/defendant urges discretion to grant temporary custody | Ex parte order not shown as an abuse of discretion; affirmed denial of vacatur |
| Whether the final custody award to Wood was supported by the weight of the evidence | Hill argues improper standard and lack of support | Wood contends evidence supports best interests and unsuitability findings | Affirmed; evidence supported custody award |
| Whether admission of pre-2009 evidence was improper | Hill asserts improper scope of admissible evidence post-agreement | Wood argues evidence relevant to weight and weight of credibility | No reversible error; admissible for weight/credibility |
Key Cases Cited
- Marker v. Grimm, 65 Ohio St.3d 139 (1992) (child support worksheet required in RC 3119.022 proceedings)
- McClain v. McClain, 87 Ohio App.3d 856 (1993) (worksheet inclusion as reversible error)
- Trickey v. Trickey, 158 Ohio St. 913 (1952) (broad discretion in custody matters)
- Blakemore v. Blakemore, 5 Ohio St.3d 217 (1983) (standard for reviewing custody decisions)
- In re Perales, 52 Ohio St.2d 89 (1977) (parens unsuitability test for nonparent custody award)
- Davis v. Flickinger, 77 Ohio St.3d 415 (1997) (credibility and weight of evidence considerations)