Heath v. Heath
2017 Ohio 5506
| Ohio Ct. App. | 2017Background
- Parents divorced in 2005; Mother was designated residential parent and Father had parenting time. Child is a minor (about 14 at time of latest proceedings).
- Mother moved to Colorado after divorce; Father stayed in Ohio. Mother repeatedly limited Father's parenting time; a Colorado court ordered Mother to deliver the child to Father in June 2012.
- In January 2014 a magistrate found Mother in contempt for denying parenting time, found that constituted a change of circumstances, and transferred legal custody/residential parent status to Father; the trial court adopted that decision in June 2014.
- After a 2015 domestic-violence incident (Father acquitted at criminal trial), Mother filed a motion in Sept. 2015 to modify custody (or for shared parenting/more time), alleging medical neglect, lack of information sharing, poor communication with the child at Father’s home, and harm to the child.
- A June 2016 bifurcated bench hearing addressed only whether a change of circumstances occurred. Mother twice sought to call the child; the court denied both requests and Mother proffered the child’s testimony. The court granted Father’s motion to dismiss (Civ.R. 41(B)(2)), finding Mother failed to show a material, adverse change of circumstances, and denied the custody change. Mother appealed.
Issues
| Issue | Plaintiff's Argument (Mother) | Defendant's Argument (Father) | Held |
|---|---|---|---|
| Whether the trial court violated due process/abused discretion by excluding the child’s live testimony at the change-of-circumstances hearing | Child was a primary, first‑hand witness to home conditions and the domestic‑violence incident; her testimony was necessary to show the negative impact on her and to establish a change of circumstances | Court had presided over related proceedings (including the criminal trial) and could judicially notice prior testimony; exclusion fell within the court’s control of testimony and docket; proffer was inadequate | Court erred in excluding the child as a competent witness but the proffer lacked sufficient detail about the alleged negative impact, so Mother failed to show prejudice; assignments alleging due process/abuse of discretion overruled |
| Whether Mother proved a change of circumstances under R.C. 3109.04(E)(1)(a) justifying custody modification | Domestic‑violence incident, no‑contact order, alleged medical neglect, poor communication, and limited access to records materially and adversely affected the child and constituted a substantial change | These issues had been repeatedly litigated; Father remedied some medical matters; Mother still had access to school information and attended events; evidence did not show a material, adverse change of substance | Trial court did not err: no sufficient evidence of a material, adverse change in circumstances; dismissal under Civ.R. 41(B)(2) was proper |
| Whether the court improperly granted a directed verdict/involuntary dismissal (Civ.R. 41(B)(2)) | The evidence and proffer supported reasonable inferences of harm and justified further proceedings on custody | The court may weigh evidence at a bench involuntary-dismissal and found Mother showed no right to relief given the record and prior proceedings | The court appropriately treated the motion as a Civ.R. 41(B)(2) dismissal, weighed the evidence, and did not err or abuse discretion |
Key Cases Cited
- Moser v. Moser, 72 Ohio App.3d 575 (Ohio Ct. App.) (competent child witnesses may testify in domestic relations matters and exclusion requires showing of prejudice)
- Blakemore v. Blakemore, 5 Ohio St.3d 217 (Ohio 1983) (abuse of discretion standard)
- Fisher v. Hasenjager, 116 Ohio St.3d 53 (Ohio 2007) (statutory standard for modifying custody under R.C. 3109.04: change in circumstances + best interest)
- Davis v. Flickinger, 77 Ohio St.3d 415 (Ohio 1997) (change must be of substance and trial judge afforded wide latitude)
- Miller v. Miller, 37 Ohio St.3d 71 (Ohio 1988) (trial court that has presided over case is better positioned to weigh witness credibility)
- Carter v. Carter, 62 Ohio App.3d 167 (Ohio Ct. App.) (purpose of proffer is to allow appellate review of whether exclusion affected substantial rights)