Hrabovsky v. Axley
2014 Ohio 1168
Ohio Ct. App.2014Background
- Hrabovsky and Axley divorced in 2007 and adopted a shared parenting plan; father was residential parent for school purposes. Two minor children were involved.
- In 2011, A.H. found marijuana and a bong in mother's home; an altercation between parents followed, mother pled no contest to disorderly conduct and a civil protection order issued.
- Mother later cohabited with Matthew Pullem, who had prior OVI and drug-paraphernalia convictions; the magistrate initially restricted Pullem’s contact with the children.
- Father filed a motion in June 2012 to terminate visitation and the shared parenting plan; a GAL was appointed who raised concerns about parental alienation.
- Dr. Milsaps-Linger evaluated the children and opined the children were alienated from mother (attributed principally to father); the magistrate denied termination and recommended counseling.
- The trial court independently reviewed the record, rejected the parental-alienation finding, found changes in circumstances (drug/paraphernalia discovery, assault/conviction, eviction/cohabitation, deterioration of parent-child relationship) and terminated the shared parenting plan, naming father residential parent and legal custodian.
Issues
| Issue | Plaintiff's Argument (Axley) | Defendant's Argument (Hrabovsky) | Held |
|---|---|---|---|
| Whether the trial court abused its discretion by terminating the shared parenting plan | Termination was unwarranted; magistrate and court-appointed evaluator recommended maintaining status quo and counseling | Termination was warranted due to material change in circumstances and best interests favor father as residential parent | Court affirmed termination: change in circumstances existed and change was in children’s best interests |
| Whether the trial court erred in discrediting its own witness (Dr. Milsaps-Linger) | Court should have given weight to the court’s own evaluator who found parental alienation and recommended against termination | Trial court properly considered evaluator’s testimony against other record evidence and rejected the alienation conclusion | Court held trial court did not abuse discretion in weighing witness testimony and rejecting the alienation finding |
Key Cases Cited
- Davis v. Flickinger, 77 Ohio St.3d 415 (Ohio 1997) (abuse-of-discretion standard for custody and change-in-circumstances analysis)
- Blakemore v. Blakemore, 5 Ohio St.3d 217 (Ohio 1983) (definition of abuse of discretion)
- C.E. Morris Co. v. Foley Construction Co., 54 Ohio St.2d 279 (Ohio 1978) (judgment supported by competent, credible evidence will not be reversed on manifest weight)
- Myers v. Garson, 66 Ohio St.3d 610 (Ohio 1993) (appellate court must not substitute its judgment where some competent, credible evidence supports the trial court)
- Fisher v. Hasenjager, 116 Ohio St.3d 53 (Ohio 2007) (standards for terminating a shared parenting decree)