In re C.D.M.
2013 Ohio 3792
Ohio Ct. App.2013Background
- Father (Jeffrey Malone) had legal custody of child C.D.M. from a 2004 Ross County order; mother (Jennifer Malone) later filed to modify custody in Hocking County (2010).
- Mother obtained temporary custody after father was charged with gross sexual imposition; father was released before the preliminary hearing and the criminal case was later dismissed.
- A guardian ad litem (GAL) investigated, filed a report recommending mother be custodian, and later moved ex parte to suspend father’s visitation; the court granted the suspension.
- After limited reinstated visits and an in camera interview of the child, a final modification hearing occurred July 18, 2012; the GAL attended but did not testify and the parties declined to cross-examine her.
- Trial court found a substantial change in circumstances and awarded legal custody to mother, citing the indictment/charges, the child’s temporary placement with mother, improved academics while with mother, and alleged attempts by father to manipulate the child. Father appealed.
Issues
| Issue | Malone (Appellant) Argument | Malone (Appellee) Argument | Held |
|---|---|---|---|
| Whether the trial court relied on unfounded or inaccurate factual findings in finding a change of circumstances | Court relied on erroneous facts (e.g., that father was incarcerated causing temporary placement; that child wanted to live with mother) and thus abused discretion | Court’s factual findings supported by record overall; any minor inaccuracies do not defeat substantial evidence of change | Court affirmed—some specific findings were mistaken, but substantial competent credible evidence nonetheless supported a change in circumstances |
| Whether the indictment/sexual-imposition charges and related consequences constitute a change in circumstances warranting custody modification | Unsubstantiated allegations are insufficient; reliance on indictment alone is improper | The severity of the charges and resulting effects (temporary placement, alleged pressure on child) and other parental deficiencies justify change | Court held the indictment and ancillary effects (temporary placement, alleged pressure on child), plus academic/attendance improvements and other parental issues, suffice as a material change |
| Whether the trial court erred by considering the GAL’s report without the GAL’s testimony | GAL report not admitted as exhibit and GAL did not testify; relying on hearsay violated due process | GAL reports are admissible; court may consider report if parties are given opportunity to cross-examine the GAL | Court held it was proper to consider the GAL report because the GAL was present and parties were offered the chance to cross-examine (they declined) |
Key Cases Cited
- Miller v. Miller, 37 Ohio St.3d 71 (Ohio 1988) (trial court discretion in custody decisions governed by R.C. 3109.04 standards)
- Davis v. Flickinger, 77 Ohio St.3d 415 (Ohio 1997) (appellate review of custody modification requires substantial credible and competent evidence)
- Bechtol v. Bechtol, 49 Ohio St.3d 21 (Ohio 1990) (standard for modification: substantial amount of credible and competent evidence)
- Masters v. Masters, 69 Ohio St.3d 83 (Ohio 1994) (custody decisions afforded broad trial-court discretion)
- State v. Adams, 62 Ohio St.2d 151 (Ohio 1980) (definition of abuse of discretion)
- In re Brayden James, 113 Ohio St.3d 420 (Ohio 2007) (change in circumstances must be substantive and significant to justify modification)
- Stover v. Plumley, 113 Ohio App.3d 839 (Ohio Ct. App. 1996) (unsubstantiated allegations of sexual abuse alone are insufficient to show change of circumstances)