Davis v. Davis
2016 Ohio 7205
| Ohio Ct. App. | 2016Background
- Parents divorced in 2009; father (Eric) was awarded custody of two children (b. 2003, 2007). Mother (Shannon) moved for change of custody in 2015.
- Father lives in Mississippi (moved from North Carolina), remarried, retired from the military; children doing well in school and extracurriculars in Mississippi.
- Mother lives in subsidized housing, works full time, obtained an associate degree, has a boyfriend (Greg Grove) and two other children; receives government benefits and has limited involvement with the children’s school/medical care.
- Magistrate recommended changing custody to mother after a recorded child interview and findings that children felt closer to mother and mother improved her circumstances.
- Trial court independently reviewed the record, sustained father’s objections, found no sufficient change in circumstances and, alternatively, found it was in the children’s best interest to remain with father. Mother appealed.
Issues
| Issue | Plaintiff's Argument (Mother) | Defendant's Argument (Father) | Held |
|---|---|---|---|
| Whether a change in circumstances occurred under R.C. 3109.04(E)(1)(a) | Relocation, father’s remarriage, children’s expressed desire, and father’s disciplinary methods together constitute a material, adverse change. | Move and remarriage alone are not changes; children adjusted and father’s discipline was brief/unsubstantiated by DHS. | No abuse of discretion: trial court reasonably found no material and adverse change in circumstances. |
| Weight to give children’s recorded interview | Children consistently expressed desire to live with mother; magistrate credited interview. | Children appeared coached; statements should be given little weight. | Trial court properly discounted interview as possibly coached and gave it less weight. |
| Best-interest determination if change in circumstances found | Magistrate’s view: mother’s improved stability favors transfer of custody. | Father: children thriving in current school, father’s regimen benefits them, mother minimally involved in school/medical care. | Even assuming a change, competent evidence supports trial court’s conclusion that remaining with father serves children’s best interest. |
| Deference to magistrate’s findings | Magistrate conducted hearings and child interview; her factual findings should carry weight. | Trial court is ultimate factfinder and may independently review and sustain objections to magistrate. | Trial court acted within its discretion to review magistrate’s decision and adopt contrary findings. |
Key Cases Cited
- Miller v. Miller, 37 Ohio St.3d 71, 523 N.E.2d 846 (Ohio 1988) (standard of appellate review in custody matters is abuse of discretion)
- Wyss v. Wyss, 3 Ohio App.3d 412, 445 N.E.2d 1153 (10th Dist. 1982) (change in circumstances means an event with material and adverse effect on the child)
- Davis v. Flickinger, 77 Ohio St.3d 415, 674 N.E.2d 1159 (Ohio 1997) (change must be of substance to avoid endless relitigation)
- Dayton v. Whiting, 110 Ohio App.3d 115, 673 N.E.2d 671 (2d Dist. 1996) (magistrate is initial factfinder; trial court remains ultimate factfinder)
- State v. Caldwell, 79 Ohio App.3d 667, 607 N.E.2d 1096 (4th Dist. 1992) (trial court may believe all, part, or none of a witness’s testimony)