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 now a teenager (about 14 at the time of the 2016 hearing).
- Mother moved to Colorado after the divorce, repeatedly denied Father ordered parenting time, and a Colorado court ordered Mother to deliver the child to Father in 2012; Mother later relocated to Ohio.
- In 2014 a magistrate found Mother in contempt for denying parenting time, found interference was a change in circumstances, and transferred residential custody to Father; the trial court adopted the magistrate’s decision.
- After a 2015 domestic-violence incident (Mother accused Father; a jury acquitted Father) and a subsequent no-contact order, Mother moved in September 2015 to modify custody, alleging changed circumstances (medical neglect by Father, limited communication/access, and interference with records/access).
- At the June 2016 bench hearing on change of circumstances the trial court refused to let the child testify (Mother proffered the child’s testimony) and granted Father’s motion to dismiss (treated as Civ.R. 41(B)(2) involuntary dismissal), concluding Mother failed to show a material, adverse change in circumstances.
Issues
| Issue | Plaintiff's Argument (Mother) | Defendant's Argument (Father) | Held |
|---|---|---|---|
| Whether the trial court improperly excluded the child’s live testimony | Child was the primary, first-hand witness to home conditions and the domestic incident; exclusion violated due process and was an abuse of discretion | Trial court could control proceedings, found child’s prior criminal-trial testimony and proffer sufficient; protected child from further involvement | Court: Exclusion was erroneous (child competent to testify) but harmless because Mother’s proffer was too vague to show prejudice; no reversible error |
| Whether Mother established a change in circumstances under R.C. 3109.04(E)(1)(a) | Domestic-violence incident, no-contact order, Father’s alleged medical neglect, poor communication, and restricted access to records materially and adversely affected the child | These issues were previously litigated or did not show a substantive, material, adverse change; Father (and court) had addressed medical and school access issues | Court: No change in circumstances proved; trial court did not err in dismissing Mother’s motion |
| Whether the Civ.R. 41(B)(2) dismissal was improper (framed as directed verdict) | Motion to dismiss was erroneous because evidence supported change of circumstances | Even if treated as Civ.R. 50 error, that standard is more rigorous; dismissal appropriate because plaintiff showed no right to relief | Court: Motion properly treated as involuntary dismissal; trial court weighed evidence and did not err or abuse discretion |
| Whether the trial court’s overall decision was against the manifest weight of the evidence | The cumulative facts demonstrated material harm to child warranting custody change | Trial court, having overseen long history, reasonably found issues were repetitive or not of substance | Court: Findings were neither legally erroneous nor against manifest weight; judgment affirmed |
Key Cases Cited
- Moser v. Moser, 72 Ohio App.3d 575 (Ohio Ct. App.) (competent child testimony in domestic relations matters; necessity of proffer when testimony excluded)
- Carter v. Carter, 62 Ohio App.3d 167 (Ohio Ct. App.) (purpose of proffer to show substance of excluded testimony for appellate review)
- Blakemore v. Blakemore, 5 Ohio St.3d 217 (Ohio 1983) (abuse-of-discretion standard)
- Fisher v. Hasenjager, 116 Ohio St.3d 53 (Ohio 2007) (standards for modifying custody under R.C. 3109.04)
- Davis v. Flickinger, 77 Ohio St.3d 415 (Ohio 1997) (requirement that change be substantial and have material adverse effect)
- Miller v. Miller, 37 Ohio St.3d 71 (Ohio) (trial court’s broad latitude in weighing custody evidence)