720 N.E.2d 973 | Ohio Ct. App. | 1998
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *651
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *652 Rhonda Smith Clark appeals the judgment of the Seneca County Court of Common Pleas awarding Todd Smith custody of their two children and ordering her to pay child support.
Rhonda and Todd were married on December 5, 1989. The parties were divorced on May 12, 1994. Two children were born to the parties, Christopher Todd Smith, d.o.b. 9-19-90, and Alesha Elizabeth Smith, d.o.b. 10-4-92. At the time of the divorce, Rhonda was declared to be the residential parent and legal custodian of the two children. Todd was ordered to pay monthly child support in the amount of $454.19, including poundage, and to maintain health insurance for the benefit of the children. Todd was granted visitation pursuant to the trial court's Local Rule 66 for parents who live more than one hundred and fifty miles apart. Rhonda currently resides in Seneca County, Ohio and Todd currently resides in Connecticut.
Todd moved for a change of custody, arguing that the on-going refusal to honor the court ordered visitation and telephone contact constituted a change in circumstances warranting custody modification. The trial court granted custody of Christopher and Alesha to Todd and granted visitation to Rhonda. The trial court also ordered Rhonda to pay child support.
Rhonda now appeals asserting four assignments of error.
Under this assignment of error, Rhonda asserts that the trial court erred in awarding Todd custody of Christopher and Alesha.1
R.C.
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, his 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:
* * *
(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. (Emphasis added.)
When deciding whether a modification of custody is appropriate, the court must determine three things. (1) Has there been a change in circumstances? (2) Is this modification in the best interest of the child? (3) Will the harm that will result from the change be outweighed by the benefits that will result from the change? Thatcher v. Thatcher
(Oct. 6, 1997), Mercer App. No. 10-97-08, unreported, citing In re Kennedy
(1994),
First, we must determine if the trial court abused its discretion in concluding that a change of circumstances existed to modify the custody of Christopher and Alesha. R.C.
In determining whether a change in circumstances has occurred so as to warrant a change in custody, a trial judge, as the trier of fact, must be given wide latitude to consider all issues which support such a change, including a change in circumstances because of the child's age and consequent needs, as well as increased hostility by one parent (and that parent's spouse) which frustrates cooperation between the parties on visitation issues. Davis,
Once the trial court has found that a change in circumstances exists, that finding shall not be disturbed absent an abuse of discretion. Id.
at paragraph one of the syllabus. "An abuse of discretion connotes that the trial court's attitude was unreasonable, arbitrary or unconscionable."Musson, supra, citing Booth v. Booth (1989),
The record in this case demonstrates a lengthy hearing with over seven hundred pages of testimony. The trial court found that Rhonda's interference with visitation constituted a change in circumstances warranting modification of the custody of the two children. "It is a well-settled rule in Ohio that a custodial parent's interference with visitation by a noncustodial parent may be considered as part of a `change in circumstances' which would allow for modification of custody." Holm v. Smilowitz (1992),
Based upon a review of the record, we cannot find that the trial court abused its discretion in determining that Rhonda's repeated interference with Todd's visitation constituted a change in circumstances under R.C.
It is evident that continuous problems existed with visitations between Todd and the children. For example, the court was involved in arranging visitations between Todd and the children on at least five different occasions: Summer 1994, Summer 1995, Summer 1996, Spring 1997, and Christmas 1997. Moreover, Todd's Thanksgiving 1995 and Christmas 1995 visitations did not occur because of conflicts between the parties. In addition, Todd was granted a court ordered visitation in February 1997 which Rhonda refused. We note that Todd did not exercise his Christmas 1994, Spring 1995, or Christmas 1996 visitations.
Rhonda asserts that the main obstacle to Todd's visitation was the travel arrangements. Rhonda also contends that cooperation between the parties is increasing as demonstrated by the success of the Summer 1997 visit. Both parties agree that the Summer 1997 visitation went well without court intervention. While we agree that the Summer 1997 visit went well and hope that the cooperation between the parties will continue, there is credible, competent evidence to support the trial court's determination that Rhonda's obstacles to visitation between Todd and the children constituted a change in circumstances from the time of the divorce decree. Accordingly, we cannot find that trial court abused its discretion.
Second, we must determine if the trial court properly found that the change in circumstances necessitated modification in order to serve the best interests of the children. R.C.
(a) The wishes of the child's parents regarding his 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 his parents, siblings, and any other person who may significantly affect the child's best interest;
(d) The child's adjustment to his 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 visitation and companionship rights approved by the court;
(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 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 child, previously has been determined to be the perpetrator of the abusive or neglectful act that is the basis of an adjudication; whether either parent previously has been convicted of or pleaded guilty to a violation of section
(i) Whether the residential parent or one of the parents subject to a shared parenting decree has continuously and willfully denied the other parent his or her right to visitation 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. *657
The Supreme Court found that "the best interest of a child encompasses not only the home environment, but also the involvement of both parents." Davis,
In today's society that fully admits the need for parenting by both parents, each parent should have full involvement in a child's life, where possible and desired by the parent. When one parent begins to cut out another parent, especially one that has been fully involved in that child's life, the best interest of the child is materially affected. (Emphasis sic.) Id.
The trial court was presented with substantial evidence relevant to its inquiry under R.C.
Our review of the record reveals that the trial court carefully considered the factors in R.C.
Rhonda now contends that Todd's failure to pay child support from October 1994 to October 1996 is indicative that the best interests of Christopher and Alesha are served by allowing Rhonda to retain custody of the children. While we agree that the Todd's lack of child support is negative, the evidence supports that Todd is now paying child support and that he is diligently working on reducing his arrearages. We find more persuasive Rhonda's efforts to cut Todd out of the lives of Christopher and Alesha. Rhonda did not send report cards, pictures, or other information to Todd. Rhonda did not actively seek to keep Todd informed of the progress and development of the children. In addition, when the children were with Rhonda, she repeatedly denied telephone contact between them and Todd. Although we have no doubt that both parents love the two children, we find that the trial court properly considered the appropriate *658 factors and determined that the best interests of Christopher and Alesha warranted a modification in custody.
Third, we must determine if the trial court complied with R.C.
Rhonda now argues that Christopher and Alesha each have their own room in her house and would have to share a room in Todd's condominium. Rhonda also asserts that the guardian adlitem found that the children are thriving while living with Rhonda. Moreover, Rhonda contends that Christopher is enrolled in school and Alesha attends a storyhour regularly and that these events would be disrupted by the change in environment. Although we agree to a certain extent with Rhonda, we find competent, credible evidence to support the trial court's decision.
Further, the trial court clearly felt that Todd was more likely to facilitate visitation and communication than was Rhonda. Although this point is also a factor in the best interest analysis, it is certainly applicable here as well. Upon a review of the record, we cannot find the trial court erred in concluding that the harm likely to be caused by a change of environment was outweighed by the advantages of the change of environment to Christopher and Alesha.
Having reviewed the record, we are unable to say that the trial court committed any error. The record demonstrates that the court considered all factors which would support a change in circumstances. Further, competent and credible evidence was presented to support the trial court's decision that a change in custody was in the best interest of Christopher and Alesha and the harm of a change of environment was outweighed by the benefits of such a change. Accordingly, Rhonda's first assignment of error is overruled.
Rhonda contends that the trial court did not spend time reviewing the record and making its own findings and conclusions.
After the trial court entered a judgment awarding custody to Todd of Christopher and Alesha, Rhonda requested findings of fact and conclusions of law pursuant to Civ. R. 52. The trial court then ordered Rhonda and Todd to submit their own findings of fact and conclusions of law by a date certain. Todd submitted his, but Rhonda failed to do so. The court entered its findings of facts and conclusions of law, which were basically the same as those submitted by Todd.
Rhonda now asserts that the trial court's findings are heavily biased in favor of Todd and cannot be trusted. Rhonda relies on Childs v. Childs (June 9, 1997), Butler App. No. CA96-08-163, unreported, for the proposition that the trial court adopted Todd's findings and those findings are biased and unsupported by the evidence in the record. Rhonda asserts that the trial court erred in finding the following: the wrong date of divorce; the existence of a shared parenting plan; the existence of substantial changes since the divorce; the determination that Todd lives close to extended family; the determination that Todd did not interfere with visitation when the children were in his care; the inherent determination that Todd did not leave Sears to avoid paying child support; the determination that Todd has a secure job; and the determination that the children will be safe and secure at Todd's home, even with the pitbull dog.
A trial court may adopt a party's findings of fact and conclusions of law as long as the trial court judge has reviewed the document thoroughly and ensures that it is accurate. Adkinsv. Adkins (1988)
In the findings of fact, the trial court did mistakenly state the wrong date of divorce. The correct date of divorce was May 12, 1994; however, this mistake was not relevant to the determination of custody of the two children. The findings of fact also include a statement that a shared parenting plan was adopted in the divorce decree. No plan was adopted. However, we find that the trial court was aware that Rhonda was the residential parent and that Todd was granted visitation by the original divorce decree. Thus, although incorrect, we do not find that this mistake was a prejudicial error.
The remaining errors asserted by Rhonda are judgments made by the trial court and are supported by the evidence. We leave factual determinations for the trial court and we will not reverse such determinations absent competent, credible evidence. SeasonsCoal Co., Inc. v. Cleveland (1984),
The trial court found substantial changes since the time of the divorce. The findings of fact stated: "Since the parties'divorce, circumstances in the living arrangements and familial relationship of the minor children have gone through substantial changes." (Emphasis added.) Rhonda and Todd have each had changes in their living situations since the divorce and the evidence supports the finding that there have been changes. For instance, since the divorce Rhonda started cohabitating with Aaron Clark and has now married him. Todd is now cohabitating with Amy Danforth in Connecticut. Moreover, Todd has changed residences.
Rhonda also takes issue with the fact that the trial court found Todd not to have interfered with visitation when the children were in his care. Rhonda references an incident where Amy took the children to Kentucky to see her brother's graduation. Rhonda claims that while the children were away she could not reach them. While this may be true, we find competent, credible evidence to support the trial court's determination that Todd did not interfere with visitation between Rhonda and the children as Todd testified that he attempted to call Rhonda and let her know the children would be out of town.
Rhonda further asserts that the trial court erred by not finding that Todd left his employment at Sears to avoid paying child support, that Todd has a secure job, and that the children will be safe and secure with Todd's pitbull dog. As a reviewing court, we will not reweigh the evidence. Seasons Coal Co., Inc.,
Accordingly, we overrule Rhonda's second assignment of error.
Under this assignment of error, Rhonda asserts that the trial court erred in calculating child support as the trial court used the income amount for Todd that Todd provided on his financial disclosure affidavit.
It is well established a trial court's findings and computations made in compliance with R.C.
At the hearing for modification of custody, the trial court stated the following concerning Todd's testimony of his income:
Just so the record is clear, Mr. Kahler, uh, he [Todd] had indicated on direct-examination he made between — I was gonna mention this before he got off the stand. Made four dollars an hour base, and he made ten to twelve dollars an hour tips based on dealer hours.
If I do the math, that's between fourteen and sixteen and, uh, that adds up to thirty, divided by two is fifteen bucks an hour. Uh, I didn't — I was gonna ask him some other questions about whether that was self-employment, tax, uh, susceptible, and things of that nature but — and I took fifteen dollars an hour times forty hours a week times fifty-two weeks out of the year, thirty-one thousand two hundred dollars. That's what I came up with.
Todd submitted the appropriate affidavit of income, expenses and financial disclosure on February 20, 1998. Todd listed $29,538 as his gross annual income on his financial disclosure affidavit and supported his affidavit with his 1997 W-2 form which stated his income as $29,538. Todd also attached three copies of his most recent paycheck stubs demonstrating weekly earning in the amounts of $613.80, $632.80, and $593.23. Rhonda likewise submitted her affidavit on March 18, 1998. The trial court then used the child support computation worksheet to compute the child support obligations of the parties. The child support computation worksheet was filed with the journal entry ordering Rhonda to pay child support on March 19, 1998.
Rhonda now asserts that the trial court should have used the $31,200 figure as opposed to the $29,538 figure in computing child support. We cannot find that the trial court committed error in determining Todd's income based upon statutory procedures. Todd supported his financial affidavit with appropriate documents. In addition, Todd's documentation is from his present employer and represents his current position with that employer. Todd's paycheck stubs demonstrate that his weekly pay fluctuates and Todd's testimony at trial verifies this fluctuation. Thus, the W-2 form is a good measure of his income. Accordingly, the trial court did not abuse its discretion by using the income amount provided by Todd from his affidavit and his 1997 W-2 form. Rhonda's third assignment of error is overruled. *662
Rhonda contends the trial court erred in imputing income to her.
The Supreme Court of Ohio has held that the issue of "whether a parent is voluntarily (i.e. intentionally) unemployed or voluntarily underemployed" and "the amount of `potential income' to be imputed" are determinations within the trial court's discretion that will be upheld absent an abuse of discretion. Shank v. Shank (1997),
R.C.
"Income" means either of the following:
(a) For a parent who is employed to full capacity, the gross income of the parent;
(b) For a parent who is unemployed or underemployed, the sum of the gross income of the parent, and any potential income of the parent.
R.C.
(A)(5) "Potential income" means both of the following for a parent that the court, or a child support enforcement agency pursuant to sections
(a) Imputed income that the court or agency determines the parent would have earned if fully employed as determined from the parent's employment potential and probable earnings based on the parent's recent work history, the parent's occupational qualifications, and the prevailing job opportunities and salary levels in the community in which the parent resides;
(b) Imputed income from any nonincome-producing assets of a parent, as determined from the local passbook savings rate or another appropriate rate as determined by the court or agency, not to exceed the rate of interest specified in division (A) of section
"Thus, in calculating and awarding child support, a trial court must consider the `potential income' as well as the gross income of a parent the court determines to be voluntarily unemployed or underemployed." Rock,
Rhonda submitted her affidavit of income, expenses and financial disclosure. The form asked the following question: "If you are not working, when did you work last and why are you not working at this time?" To this Rhonda responded: "May 1997 — had surgery, now am expecting a new baby and choose to be a stay at home mom." The trial court imputed income to Rhonda in the amount of minimum wage. This income computed into the Ohio Child Support Guidelines resulted in a $38.83, including poundage, weekly child support obligation.
In its journal entry ordering Rhonda to pay child support the trial court stated the following:
The Court finds Plaintiff is not employed, however, there is no documented evidence that she cannot work outside the home following the birth of her expected child. Therefore, the Court imputes minimum wage to her.
We find that the trial court imputed income to Rhonda based upon what appears to be her voluntary decision to not work and to stay at home with her and her new husband's expectant baby. There was no evidence presented showing that the decision was not entirely voluntarily. There was evidence at the hearing for custody modification of Rhonda's employment history. Rhonda testified that stopped working at the end of July 1997 to be a stay at home mother. Her employment previous to this decision included a factory position, a drive-thru position, a position with a fire crew company, a position with Payless Shoe Company, and a position with Denny's. Rhonda also testified at the hearing that she was "perfectly healthy."
Rhonda made the decision to stay at home with her child, a decision many people would cherish. At the same time, however, it is not proper to force Todd to bear the greater burden of support for the children he and Rhonda are both equally responsible for. See Sancho v. Sancho (1996),
Judgment affirmed. SHAW, P.J., and EVANS, J., concur.
