RICHARD SCOTT ATKINS, Plaintiff-Appellee, v. DIANDRA DEE STEVENS, Defendant-Appellant.
CASE NO. CA2012-04-009
IN THE COURT OF APPEALS TWELFTH APPELLATE DISTRICT OF OHIO CLINTON COUNTY
12/28/2012
[Cite as Atkins v. Stevens, 2012-Ohio-6177.]
CIVIL APPEAL FROM CLINTON COUNTY COURT OF COMMON PLEAS DOMESTIC RELATIONS DIVISION Case No. DRK 20030063
Michael J. Davis, 8567 Mason-Montgomery Road, P.O. Box 1025, Mason, Ohio 45040, for defendant-appellant
O P I N I O N
S. POWELL, P.J.
{¶ 1} A mother challenges on appeal a custody change naming the children‘s father residential parent and legal custodian of the couple‘s two minor children. We affirm the judgment, finding the Clinton County Domestic Relations Court did not abuse its discretion in making this difficult custody modification.
{¶ 2} A review of the record reveals that mother, Diandra Dee Stevens, and father,
{¶ 3} In 2007, father moved to modify parental rights, requesting the court name him residential parent and legal custodian. Mother also moved to modify custody, seeking to reduce father‘s parenting time to every other weekend. Both parents alleged a change of circumstances necessitated the modification—namely the mounting issues associated with the significant developmental and behavioral concerns for the two minor children affected by autism.
{¶ 4} An evidentiary hearing on the parents’ respective motions was not held until July 2011. The trial court indicated on the record that, after the motions were filed, it ordered family evaluations and repeatedly continued the case because the court was informed that the parties were engaged in mediation, court-ordered counseling, or settlement negotiations. To the dismay of the trial court – and this court – the lengthy delays resulted in no resolution of the pertinent issues.
{¶ 5} At the evidentiary hearing, the magistrate heard the testimony of or received reports from numerous witnesses. The magistrate found that naming father residential parent and legal custodian was in the children‘s best interests, and granted father‘s motion. The trial court overruled mother‘s objections and adopted the magistrate‘s decision. In its entry, the trial court also reiterated the parenting time schedule that granted mother parenting time every week and every other weekend. Mother now appeals, raising a single assignment of error for our review.
{¶ 6} Assignment of Error:
{¶ 7} THE TRIAL COURT COMMITTED REVERSIBLE ERROR AND ABUSED ITS DISCRETION IN GRANTING FATHER‘S REQUEST TO REALLOCATE PARENTAL
{¶ 8} Mother argues the trial court‘s findings are not supported by the evidence and the court failed to properly consider the harm and negative impact on the children from father assuming custody and enrolling the son in a public school and changing the daughter‘s public school.
{¶ 9} In providing below a brief summation of the general stances of the mother and father, we emphasize that we do not underestimate nor are we indifferent to the many nuances in this complex case. At the evidentiary hearing, mother wanted to continue the home-based services she initiated for the son years previously, with some in-house services for her daughter, who is also attending a Clinton County school. Mother argued that some of the funding for these home-based services would be lost if the son attended public school, and she did not believe a public school could meet the son‘s needs.
{¶ 10} Father claimed he did not have the same sort of difficulties as mother in handing the son‘s behavioral issues and was concerned that the son is in a “rigid” environment at mother‘s home and was not learning socialization skills. Father wanted to send both children to a specific school with autism services in the district where he lives.
{¶ 11} In determining whether a change of custody is warranted, a court must follow
{¶ 12} In applying these standards, the court shall retain the residential parent designated in the prior decree, unless a modification is in the child‘s best interest and, as pertinent here, the harm likely to be caused by the change of environment is outweighed by the advantages of the change.
{¶ 13} This court will not reverse a trial court‘s decision to allocate parental rights and responsibilities where the record contains substantial credible and competent evidence to support the trial court‘s decision. See Davis v. Flickinger, 77 Ohio St.3d 415, 418 (1997).
{¶ 14} Because custody issues are some of the “most difficult and agonizing decisions a trial judge must make[,]” a trial court must have wide latitude in considering all the evidence before it, and its decision must not be reversed absent an abuse of discretion. Valentine at ¶ 5, quoting Flickinger at 418 (discretion trial court enjoys in custody matters should be accorded utmost respect, given the nature of the proceeding and impact court‘s determination has on the lives of the parties concerned); Kenney v. Kenney, 12th Dist. No. CA2003-07-078, 2004-Ohio-3912, ¶ 6. The term abuse of discretion connotes more than an error of law or judgment; it implies that the court‘s attitude is unreasonable, arbitrary or unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219 (1983).
{¶ 15} In the case at bar, the magistrate found a change of circumstances. This finding focused on the diagnosis of autism for both children and the severity of the children‘s conditions, including the daughter‘s behavior of harming herself and the son‘s three hospitalizations for behavioral issues, which reportedly included aggression toward others, and self-harm. It does not appear the change of circumstances determination is contested.
{¶ 16} As previously noted, once a change of circumstances has been established, the trial court can modify custody only if the modification is necessary to serve the best interest of the child. In re R.A.S., 12th Dist. No. CA2011-09-102, 2012-Ohio-2260, ¶ 30.
{¶ 17}
{¶ 18} The magistrate issued a 19-page decision that found a change of circumstances, and found that the harm likely to be caused to the children by the change of environment is outweighed by the advantages of the change. The magistrate specifically outlined the
{¶ 19} We have reviewed the record in this case, including the magistrate‘s decision adopted by the trial court, the trial court‘s separate entry, the lengthy hearing transcript, and the numerous exhibits offered at the hearing. We are mindful that we must defer to the findings of the trial court because it was best able to view the witnesses and observe their demeanor, and use these observations in weighing the credibility of the testimony. Flickinger, 77 Ohio St. 3d at 418-419. An appellate court may not merely substitute its judgment for that of the trial court. Baxter v. Baxter, 27 Ohio St. 2d 168, 172-73 (1971). However, the discretion of the trial court is not unlimited and is subject to reversal upon the basis of a showing of an abuse of discretion. Id.
{¶ 20} The trial court in this case had a difficult, indeed, heartrending decision to make. We find that substantial competent, credible evidence supports the trial court‘s decision, and the trial court did not abuse its discretion in making its determination. Mother‘s single assignment of error is overruled.
{¶ 21} Judgment affirmed.