B.S. v. M.M. NKA L.G.
Case No. 2020 CA 00111
COURT OF APPEALS STARK COUNTY, OHIO FIFTH APPELLATE DISTRICT
January 25, 2021
2021-Ohio-176
Hon. William B. Hoffman, P.J., Hon. Patricia A. Delaney, J., Hon. Craig R. Baldwin, J.
CHARACTER OF PROCEEDING: Appeal from the Stark County Court of Common Pleas, Domestic Relations Division, Case No. 2011DR00330; JUDGMENT: AFFIRMED
For Plaintiff-Appellant:
JEFFREY JAKMIDES 325 East Main Street Alliance, OH 44601
For Defendant-Appellee:
TODD A. MAZZOLA LISA CAREY DEAN 50 South Main Street, 10th Floor Akron, OH 44308
{¶1} Plaintiff-Appellant, B.S. appeals the July 14, 2020 judgment entry of the Stark County Court of Common Pleas, Domestic Relations Division.
FACTS AND PROCEDURAL HISTORY
Divorce and Custody Determination
{¶2} Plaintiff-Appellant, B.S. (“Father“) and Defendant-Appellee, M.M. nka L.G. (“Mother“) are the parents of two children, M.F.S. (born on January 15, 2003) and M.H.S. (born on October 7, 2006). The parties were married on August 30, 2003. On March 17, 2011, Father filed a complaint for divorce against Mother. Pursuant to a Magistrate‘s Order filed on April 6, 2011, Father was designated temporary residential parent of the children and Mother was granted visitation.
{¶3} A trial was held on August 31, 2011 on the issue of custody of the children. Neither party submitted a proposed plan for shared parenting. At the time of the trial, M.F.S. was eight years old and M.H.S. was four years old. The Guardian Ad Litem testified at the trial that she recommended that Father be designated the residential parent for school purposes and that Mother have visitation.
{¶4} Pursuant to a Final Entry Decree of Divorce filed on September 26, 2011, the trial court designated Father as the residential parent and legal custodian of the children and granted Mother parenting time. Mother‘s parenting time with the children was Tuesdays and Thursdays from after school until 7:00 p.m., every other weekend and alternate weeks during the summer school recess. In addition, the trial court ordered parenting time during holidays and two weeks of vacation during summer recess. Mother was ordered to pay child support.
Request for Reallocation of Parental Rights and Responsibilities
{¶6} Father and the children resided in Alliance, Ohio, located in Stark County. They attended school within the Alliance City School District. Father and the children lived in a rental duplex with paternal grandparents.
{¶7} Mother remarried in 2015 and had a child. She resided in a rental home in Bath, Ohio, located in Summit County. Her residence was within the Revere Local School District. She was self-employed as a photographer and her husband was the co-owner of a local insurance agency in Fairlawn, Ohio.
{¶8} On August 14, 2019, Mother filed a motion for reallocation of parental rights and responsibilities regarding M.H.S., who was 13 years old. At the time of the divorce decree, the M.H.S. was four years old. In Mother‘s affidavit attached to her motion to reallocate parental rights and responsibilities, she averred that the child “has consistently expressed her desire to live with me and attend school from my residence since last fall.” She referred to an incident where M.H.S. refused to return to Father‘s home until she was removed by law enforcement, an incident of domestic violence where Father grabbed M.H.S. by her hair, and that M.H.S. had made threats of suicide. Mother contended Father had not addressed the issues or concerns for M.H.S.‘s mental health. Mother stated it
{¶9} The trial court appointed a Guardian ad Litem on September 11, 2019. The GAL filed his 24-page report with the trial court on December 31, 2019. He recommended the parents enter into a shared parenting plan where Mother would be the residential parent of M.H.S. If a shared parenting plan was not an option, the GAL recommended that Mother be named as the sole legal custodian of M.H.S.
{¶10} On October 2, 2019, Father filed a motion to show cause why Mother should not be held in contempt for her failure to comply with the Final Decree of Divorce. Mother was ordered to pay child support in the amount of $297.73 per month. Mother was $18,671.59 in arrears to the Child Support Enforcement Agency and had not made over one-half of the payments due. Father also argued Mother should be held in contempt for her failure to return the children to Father after Mother‘s weekend visitation on August 11, 2019.
{¶11} A hearing was held on the motion for reallocation of parental rights on January 7, 2020. There is no transcript of the hearing in the record for this appeal. On January 16, 2020, the trial court filed its findings of facts, conclusions of law, and decision. The trial court denied the motion for reallocation of parental rights, finding no change in circumstances. The trial court noted in is judgment entry that the testimony at the hearing was consistent that M.H.S. expressed a desire to live with Mother, but neither party requested the trial court to conduct an in-camera interview with M.H.S. (Finding of Fact No. 11). The trial court concluded there was sufficient evidence to cause the court to believe that the child “would prefer to live with her mother and attend school in Revere,
{¶12} Mother appealed the trial court‘s January 16, 2020 judgment entry to this Court in [S. v. M.], 5th Dist. Stark No. 2020 CA 00036, 2020-Ohio-3512. She argued the trial court abused its discretion in declining to consider the child‘s wishes given the child‘s advanced age and the intervening events in the child‘s life in determining no change in circumstances. Id. at ¶ 8. Based upon our analysis of
Consideration of the Child‘s Wishes
{¶13} In accordance with our June 26, 2020 decision remanding the matter to the trial court for consideration of the child‘s wishes, the trial court considered the evidence presented at the January 7, 2020 hearing and issued its findings of fact, conclusions of law, and decision on July 14, 2020. After reconsidering the findings of fact pursuant to our ruling, the trial court concluded there had been a change of circumstances:
As directed by the Court of Appeals, the court finds that a change of cirсumstance has occurred in the mother‘s situation with her remarriage, birth of her son and her career as a photographer.
Given the child‘s wishes and age, the court finds that a substantial change of circumstances exists. The evidence does indicate that [M.H.S.]‘s grades have slipped. The Guardian ad Litem reported that her interim report card came back with two F‘s, three C‘s and two A‘s. However, since [M.H.S.] has been placed on medication for ADHD, her algebra grade has gone up from an F to a B-. The Guardian further wrote that [M.H.S.]‘s counselor found her to be a very intelligent young lady with thе ability to think outside the box, and that she follows the rules at the school and complies with adult direction.
Child Protective Services did not substantiate any allegations of domestic violence or abuse nor did the Guardian.
There is sufficient evidence to cause the court to believe that [M.H.S.] would prefer to live with her mother and attend school in Revere.
(Conclusions of Law No. 2).
{¶14} The trial court then considered the best intertest of [M.H.S.] and found a modification would be in her best interest. (Conclusions of Law Nos. 3-4). The trial court concluded that while shared parenting would be a preferred option, it was not requеsted by the parents. It named Mother as the sole legal custodian of M.H.S. with her parenting time commencing the beginning of the 2020 school year. (Conclusions of Law No. 4).
{¶15} Additionally, the trial court found Mother in contempt for her nonpayment of support as ordered. The trial court further found Mother in contempt for her deviation from the weekend visitation schedule. Based upon Mother‘s contempt of the trial court‘s orders in two instances, the trial court sentenced Mother to 15 days in the Stark County Jail. The jail sentence was suspended on condition that Mother continue to make mоnthly payments towards her arrearages on child support and no further violation of the parenting time order. She could purge the contempt by paying the arrearages within 30 days.
{¶16} The parties submitted proposed child support worksheets and supporting evidence on July 14, 2020. On August 18, 2020, the trial court ordered Father to pay child support in the amount of $247.99 per month.
Appeal
{¶17} On August 10, 2020, Father filed a notice of appeal of the July 14, 2020 judgment entry. In his notice of appeal, he requested the Stark County Clerk of Courts file
ASSIGNMENT OF ERROR
{¶18} Father raises one Assignment of Error:
{¶19} “THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT DETERMINED MOTHER‘S REQUEST FOR MODIFICATION WAS IN [M.H.S.]‘S BEST INTEREST AND THAT ANY HARM POTENTIALLY CAUSED BY MOTHER‘S REQUESTED MODIFICATION IS OUTWEIGHED BY ITS ADVANTAGES.”
ANALYSIS
{¶20} Father contends in his sole Assignment of Error that the trial court abused its discretion when it granted a reallocation of parental rights to Mother. We disagree.
{¶21} A trial court reviews a motion to reallocate parental rights and responsibilities under
(E)(1)(a) The court shall not modify a prior decree allocating parental rights and responsibilities for the care of children unless it finds, based on facts that have arisen since the prior decree or that were unknown to the court at the time of the prior decree, that a change has occurred in the circumstances of the child, the child‘s residential parent, or either of the parents subject to a shared parenting decree, and that the modification is necessary to serve the best interest of the child. In applying these standards, the court shall retain the residential parent designated by the prior decree or the prior shared parenting decree, unless a modification is in the best interest of the child and one of the following applies:
(i) The residential parent agrees to a change in the residential parent or both parents under a shared parenting decree agree to a change in the designation of residential parent.
(ii) The child, with the consent of the residential parent or of both parents under a shared parenting decree, has been integrated into the family of the person seeking to become the residential parent.
(iii) The harm likely to be caused by a change of environment is outweighed by the advantages of the change of environment to the child.
Therefore, in determining whether to make a modification, a trial court must consider (1) whether a change in cirсumstances has occurred, (2) whether a modification is in the child‘s best interest, and (3) whether the benefits that result from the change of environment outweigh any harm.
{¶22} On appeal, our standard of review in assessing the disposition of child custody matters is that of abuse of discretion. Salameh v. Salameh, 5th Dist. Delaware No. 19 CAF 01 0008, 2019-Ohio-5390, ¶ 108 citing Miller v. Miller, 37 Ohio St.3d 71, 523 N.E.2d 846 (1988). In order to find an abuse of discretion, we must determine the trial court‘s decision was unreasonable, arbitrary, or unconscionable and not merely an error of law or judgment. Blakemore v. Blakemore, 5 Ohio St.3d 217, 450 N.E.2d 1140 (1983). Furthermore, as an appellate court reviewing evidence in custody matters, we do not function as fact finders; we neither weigh the evidence nor judge the credibility of witnesses. Our role is to determine whether there is relevant, competent, and credible evidence upon which the fact finder could base his or her judgment. Dinger v. Dinger, 5th
{¶23} The trial court is “best able to view the witnesses and observe their demeanor, gestures, and voice inflections, and use these observations in weighing thе credibility of the proffered testimony.” Seasons Coal Co. v. Cleveland, 10 Ohio St.3d 77, 461 N.E.2d 1273 (1984). Deferential review in a child custody determination is especially crucial “where there may be much evidence by the parties’ demeanor and attitude that does not translate to the record well.” Davis v. Flickinger, 77 Ohio St.3d 415, 674 N.E.2d 1159 (1997). We are mindful that the knowledge a trial court gains through observing the witnesses and the parties in a custody proceeding cannot be conveyed to a reviewing court by a printed record, and the reviewing court should be guided by the presumption that the trial court‘s findings were correct. See, Miller v. Miller, 37 Ohio St.3d 71, 74, 523 N.E.2d 846 (1988).
{¶24} Before we examine Father‘s arguments, we note that a transcript of the January 7, 2020 hearing on the motion for reallocation of parental rights was not submitted with this appeal. Pursuant to App.R. 9(B)(1), “[i]t is the obligation of the appellant to ensure that the proceedings the appellant considers necessary for inclusion in the record, however those proceedings were recorded, are transcribed in a form that meets the specifications of App.R. 9(B)(6).” When portions of the transcript necessary for resolution of assigned errors are omitted from the record, the reviewing court has nothing to pass upon and thus, as to those assigned errors, the court has no choice but to
Change of Circumstances
{¶25} As stated above, the trial court is required to engage in a three-pronged analysis to determine whether to make a modification to the allocation of parental rights. The trial court must first determine whether there has been a change of cirсumstance.
{¶26}
{¶27} “In determining whether a ‘change’ has occurred, a trial judge must have wide latitude in considering all the evidence, and the court‘s decision must not be reversed absent an abuse of discretion.” In re A.P., 2nd Dist. Montgomery No. 28023, 2019-Ohio-139, ¶ 23; Davis, supra. In order to find аn abuse of discretion, we must determine the trial court‘s decision was unreasonable, arbitrary, or unconscionable and not merely an error of law or judgment. Blakemore v. Blakemore, 5 Ohio St.3d 217, 450 N.E.2d 1140 (1983).
Best Interests
{¶29} If a change of circumstances is established, the trial court must weigh the best interest of the child before modifying parental rights.
(F)(1) In determining the best interest of a child pursuant to this section, whether on an original decree allocating parental rights and responsibilities for the care of children or a modification of a decree allocating those rights and responsibilities, the court shall consider all relevant factors, including, but not limited to:
(a) The wishes of the child‘s parents regarding the child‘s care;
(b) If the court has interviewed the child in chambers pursuant to division (B) of this section regarding the child‘s wishes and concerns as to the allocation of parental rights and responsibilities concerning the child, the wishes and concerns of the child, as expressed to the court;
(c) The child‘s interaction and interrelationship with the child‘s parents, siblings, and any other person who may significantly affect the child‘s best interest;
(d) The child‘s adjustment to the child‘s home, school, and community;
(e) The mental and physical health of all persons involved in the situation;
(f) The parent more likely to honor and facilitate court-approved parenting time rights or visitation and companionship rights;
(g) Whether either parent has failed to make all child support payments, including all arrearages, that are required of that parent pursuant to a child support order under which that parent is an obligor;
(h) Whether either parent or any member of the household of either parent previously has been convicted of or pleaded guilty to any criminal offense involving any act that resulted in a child being an abused child or a neglected child; whether either parent, in a case in which a child has been adjudicated an abused child or a neglected сhild, previously has been determined to be the perpetrator of the abusive or neglectful act that is the basis of an adjudication; whether either parent or any member of the household of either parent previously has been convicted of or pleaded guilty to a violation of section 2919.25 of the Revised Code or a sexually
oriented offense involving a victim who at the time of the commission of the offense was a member of the family or household that is the subject of the current proceeding; whether either parent or any member of the household of either parent previously has been convicted of or pleaded guilty to any offense involving a victim who at the time of the commission of the offense was a member of the family or household that is the subject of the current proceeding and caused physical harm to the victim in the commission of the offense; and whether there is reason to believe that either parent has acted in a manner resulting in a child being an abused child or a neglected child;
(i) Whether the residential parent or one of the parents subject to a shared parenting decree has continuously and willfully denied the other parent‘s right to parenting time in accordance with an order of the court;
(j) Whether either parent has established a residence, or is planning to establish a residence, outside this state.
The best interest determination focuses on the child, not the parent. In re C.T., 5th Dist. Licking No. 2020 CA 00014, 2020-Ohio-4965, 2020 WL 6147171, ¶ 57 citing In re N.B., 8th Dist. Cuyahoga No. 101390, 2015-Ohio-314, at ¶ 59.
The Trial Court‘s Consideration of the Factors
{¶30} Father argues that out of the ten factors in
R.C. 3109.04(F)(1)(b)
{¶32}
{¶33}
{¶34} In this case, the trial court heard testimony from the GAL about the child‘s wishes and concerns. The GAL testified that M.H.S. wished to reside primarily with Mother and the GAL‘s recommendation mirrored the child‘s wishes. (Finding of Fact, No. 8). The trial court stated in its judgment that while it did not conduct an in camera interview because neither Father nor Mother requested an interview, “the evidence indicates that [M.H.S.] does wish to live with her mother primarily, change schools and her wishes mirror the recommendations of the Guardian Ad-Litem.” (Findings of Fact, No. 15). The trial court noted that Mother alleged that M.H.S. consistently expressed a desire to live with her and attend school in the Reverе Local School District and testimony in that regard was consistent. (Findings of Fact, No. 11).
{¶35}
R.C. 3109.04(F)(1)(f)
{¶36} Father next contends the trial court erred when it found it was in the best intеrests of the child to be placed with Mother after considering
{¶37} In its findings of fact, the trial court described an incident on August 11, 2019 that took place between Mother and Father. The children were completing parenting time with Mother when Father arrived to take the children home. Before сonveying the children, Mother asked Father to discuss a modification of parental rights and responsibilities. Father indicated he did not want to discuss the issue at that time, but Mother refused to permit the children to go with Father until he agreed to talk. Father called the Bath Township police. M.F.S. willingly went with Father but M.H.S. indicated she did not want to go with Father. The police refused to intervene because it was a civil matter and M.H.S. stayed with Mother that night. The next day, Father spoke with the Bath Township police and presented the Final Decree of Divorce and the custody orders. The police accompanied Father to Mother‘s house and facilitated M.H.S.‘s return to Father‘s care. (Findings of Fact, No. 11).
{¶39} The trial court found there was evidence presented at the hearing that showed the deviation from the weekend visitation schedule was an outlier for the parent‘s cooperation as to parenting time. (Findings of Fact, No. 19). The trial court noted that subsequent to the divorce in 2011, the parties began altering the parent time schedule to fit their circumstances, particularly the distance between them. (Findings of Fact, No. 10). The parents were able to modify the schedule without court assistance by coming to their own agreements. (Id.) The GAL testified that the “police incident was so overkill for these parents.” (Findings of Fact, No. 11). The GAL did not believe the incident represented the ability of Mother and Father to cooperate on a daily basis and did not represent the normal interaction between the parents. (Findings of Fact. Nos. 11, 19.) He found the parents were appropriate for working together under a shared parenting plan. (Findings of Fact, No. 13).
R.C. 3109.04(F)(1)(g)
{¶40} Father argues the trial court‘s consideration of
No Abuse of Discretion
{¶42} No one factor of
{¶43} The trial court was tasked to determine if there had been a change of circumstances, whether a modification is in the child‘s best interest, and whether the benefits that result from the change of environment outweigh any harm. As part of that analysis as directed by this Court, the trial court considered the wishes and concerns of M.H.S. to determine if there had been a change of circumstances. M.H.S., as expressed
{¶44} Based on the record before us and cognizant of the limits of Knapp, supra, we find no abuse of discretion for the trial court reallocate the parental rights of M.H.S to Mother after appropriately considering the expressed wishes and concerns of M.H.S. in relation to the
{¶45} Father‘s sole Assignment of Error is overruled.
{¶46} The judgment of the Stark County Court of Common Pleas, Domestic Relations Division, is affirmed.
By: Delaney, J., Hoffman, P.J. and Baldwin, J., concur.