LESLIE D. COCHRAN v. LEEANNA C. COCHRAN
Case No. 10CA15
IN THE COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT LAWRENCE COUNTY
3-29-11
2011-Ohio-1644
ABELE, J.
CIVIL APPEAL FROM COMMON PLEAS COURT
COUNSEL FOR APPELLANT: Brighаm M. Anderson, 408 Park Avenue, Ironton, Ohio 45638
COUNSEL FOR APPELLEE: Randall L. Lambert, 215 South 4th Street, Ironton, Ohio 45638
ABELE, J.
{¶ 1} This is an appeal from a Lawrence County Common Pleas Court judgment that denied a motion to modify the shared parenting plan entered into between Leanna C. Cochran, defendant below and appellant herein, and Leslie D. Cochran, plaintiff below and appellee herein.
{¶ 2} Appellant raises the following assignments of error for review:
FIRST ASSIGNMENT OF ERROR:
“THE TRIAL COURT‘S DECISION THAT IT WAS NOT IN THE CHILDREN‘S BEST INTEREST TO MODIFY THE SHARED PARENTING PLAN WAS AN ABUSE OF DISCRETION AND AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.”
SECOND ASSIGNMENT OF ERROR:
“THE TRIAL COURT COMMITTED ERROR WHEN IT FOUND ‘NO NEED FOR A GUARDIAN AD LITEM FOR THE CHILDREN.‘”
THIRD ASSIGNMENT OF ERROR:
“THE TRIAL COURT COMMITTED ERROR BY NOT ALLOWING INTO EVIDENCE TESTIMONY OF A PARTY THAT WAS INCONSISTENT WITH PRIOR SWORN TESTIMONY.”
{¶ 3} The parties married in 1995 and subsequеntly had two children (born April 6, 1997 May 16, 2000). In January 2008, the trial court granted the parties a divorce and determined that it would be in the children‘s best interests for the parents to share parenting. The court, however, designated аppellee the residential parent for school purposes.
{¶ 4} On April 14, 2009, appellant filed a motion for a change in custody and alleged that a change in circumstances had occurred.1 Appellant asserted that: (1) she remarried and moved to a new home in Parkersburg, West Virginia; (2) the children desire to live with her; (3) appellee has “intentionally disrupted the parental relationship between the children and
{¶ 5} In October and November 2009, the magistrate conducted an evidentiary hearing. During the hearing, the magistrate also interviewed the children in chаmbers. The children advised the magistrate that appellant has talked to them “a bunch of times” about the proceedings and told them “to do what God wants [them] to.” The children stated that they would like to live with apрellant “[b]ecause she says our prayers with us,” and because she stays with them until they fall asleep. The children stated that they “have a bond with her.”
{¶ 6} On November 19, 2009, the magistrate determined that a change in circumstanсe had not occurred. Thus, although the magistrate observed that the parties presented “a substantial amount of evidence * * * related to the best interest analysis,” because a change in circumstance had not occurred, it was not necessary to engage in a best interest analysis.
{¶ 7} Appellant objected to the magistrate‘s decision and asserted, inter alia, that the children‘s stated desire to live with her constituted a sufficient change in circumstance.
{¶ 8} In March 2010, the trial court held a hearing regarding appellant‘s objections. At the hearing, appellant‘s counsel pointed out that the magistrate‘s deсision addressed only the
{¶ 9} In response to the trial court judge‘s statement that “a joint custody plan” is his “preference,” appellant‘s counsel stated that appellant was requesting joint custody. Counsel asserted that appellant (1) wished to change the parties’ current shared parenting plan so that appellant receives the parenting time аppellee presently shares with the children, and appellee receives the time appellant currently shares with the children and (2) wished to be named the residential parent for school purposes. The trial court judge encouraged the parties to settle the matter and advised them that he would issue a decision in approximately seven days.
{¶ 10} On March 16, 2010, the trial court sustained appellant‘s оbjection to the magistrate‘s decision and found that a change in circumstance had, in fact, occurred. The court also engaged in a detailed best interest analysis and determined that a modification of custody would not serve the children‘s best interests. This appeal followed.
{¶ 11} Because we find appellant‘s second assignment of error dispositive of this appeal, we consider it first. In her second аssignment of error, appellant asserts that the trial court erred
{¶ 12}
{¶ 13} In the case at bar, appellant did not rеquest a guardian ad litem before the magistrate interviewed the children. Instead, appellant requested the court appoint a guardian ad litem at the objections hearing. The trial court, however, understandably expressed its desire to conclude this protracted litigation. Appellant maintained that the purpose of the hearing on the objections was to consider whether a change in circumstances had, in fact, occurred, but not engage in the best interest analysis. Nevertheless, by waiting until the eleventh hour to request a guardian ad litem, appellant arguably waived the right to challenge the court‘s failurе to appoint a guardian ad litem. We may, however, recognize an error under certain circumstances.
{¶ 14} We fully recognize that the plain error doctrine is not favored in civil cases and is apрlied only in circumstances that seriously affect the fairness, integrity, or public reputation of the judicial process. Goldfuss v. Davidson (1997), 79 Ohio St.3d 116, 679 N.E.2d 1099, syllabus. In the case at bar, we note that the children‘s wishes, as expressed to the magistratе,
{¶ 15} Accordingly, based upon the foregoing reasons, we hereby sustain appellant‘s second assignment of error and remand this mattеr so that a guardian ad litem may be appointed for the children and that the court may conduct further proceedings.2 Because our decision requires the trial court to conduct a further hearing to аscertain the children‘s best interests after it appoints a guardian ad litem, we find appellant‘s remaining assignments of error moot and we decline to address them. See App.R. 12(A)(1)(c).
JUDGMENT REVERSED AND CAUSE REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION.
JUDGMENT ENTRY
Appellant shall recover of appellee the costs herein taxed.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the Lawrencе County Common Pleas Court to carry this judgment into execution.
A certified copy of this entry shall constitute that mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
Harsha, P.J. & McFarland, J.: Concur in Judgment & Opinion
For the Court
BY: ____________________________
Peter B. Abele, Judge
NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this doсument constitutes a final judgment entry and the time period for further appeal commences from the date of filing with the clerk.