ANTHONY J. COSTILLA, PLAINTIFF-APPELLANT, v. HEATHER R. WEIMERSKIRCH, DEFENDANT-APPELLEE.
CASE NO. 5-20-12
IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT HANCOCK COUNTY
January 25, 2021
[Cite as Costilla v. Weimerskirch, 2021-Ohio-165.]
PRESTON, J.
Appeal from Hancock County Common Pleas Court Juvenile Division Trial Court No. 20184224 Judgment Affirmed
Kurt A. Dauterman for Appellant
{1} Plaintiff-appellant, Anthony J. Costilla (“Costilla“), appeals the January 31, 2020 judgment of the Hancock County Court of Commons Pleas, Juvenile Division, overruling his objections to the magistrate‘s decision. For the reasons that follow, we affirm.
{2} Costilla and defendant-appellee, Heather R. Weimerskirch (“Weimerskirch“), share one minor son, J.C. (Doc. No. 1). Costilla and Weimerskirch never married. At the time of J.C.‘s birth, Weimerskirch lived in Tiffin, Ohio with her daughter, K.T. While Costilla is not K.T.‘s father, K.T. regards Costilla as her father, and the two share a close relationship. After J.C. was born, Costilla and Weimerskirch “attempted to live together as a couple with [J.C.], but eventually separated * * *.” (Appellant‘s Brief at 3). After their separation, Costilla and Weimerskirch successfully “maintained a joint or shared parenting relationship * * *” (Id.). However, Costilla and Weimerskirch‘s relationship became strained when Weimerskirch relocated to Toledo, Ohio in August 2018. At the time of Weimerskirch‘s relocation, K.T. was enrolled as a student in the Hopewell-Loudon Local School District. Costilla and Weimerskirch agreed that it would be better for K.T. to finish the school year at Hopewell-Loudon rather than to transfer into a Toledo-area school district. As a result, after Weimerskirch moved to Toledo, K.T., as well as J.C., remained with Costilla during “a great majority” of
{3} On November 26, 2018, Costilla filed a complaint for custody, visitation, and support against Weimerskirch. (Doc. No. 1). In his complaint, Costilla requested that he be designated as the residential parent of J.C. and that he be awarded child support retroactive to May 1, 2017.1 (Id.). On November 26, 2018, Costilla filed an amended complaint. (Doc. No. 3). Weimerskirch did not file an answer or any other pleading or motion.
{4} A final hearing was held on October 10, 2019. Weimerskirch appeared for the final hearing without counsel. On October 21, 2019, the magistrate issued his decision recommending that (1) the trial court find that it is in the best interest of J.C. for Weimerskirch to be named residential parent; (2) Costilla be granted unsupervised parenting time as J.C.‘s nonresidential parent; (3) Costilla not be ordered to pay child support to Weimerskirch; and (4) Weimerskirch be entitled to claim J.C. as a tax dependent. (Doc. No. 17).
{6} On February 28, 2020, Costilla filed a notice of appeal. (Doc. No. 27). He raises one assignment of error for our review.
Assignment of Error
Decision was an abuse of discretion and against the manifest weight of the evidence for the father not to be named custodial residential parent given the parties’ prior conduct to protect and serve the best interests of the minor child.
{7} In his assignment of error, Costilla argues that the trial court abused its discretion by overruling his objections to the magistrate‘s decision.
{8} Generally, “[a]n appellate court reviews the trial court‘s decision to adopt, reject or modify the Magistrate‘s decision under an abuse of discretion standard.” Tewalt v. Peacock, 3d Dist. Shelby No. 17-10-18, 2011-Ohio-1726, ¶ 31, citing Figel v. Figel, 3d Dist. Mercer No. 10-08-14, 2009-Ohio-1659, ¶ 9, citing Marchel v. Marchel, 160 Ohio App.3d 240, 2005-Ohio-1499, ¶ 7 (8th Dist.). Moreover, “‘[d]ecisions concerning child custody matters rest within the sound discretion of the trial court.‘” Krill v. Krill, 3d Dist. Defiance No. 4-13-15, 2014-Ohio-2577, ¶ 26, quoting Walker v. Walker, 3d Dist. Marion No. 9-12-15, 2013-Ohio-1496, ¶ 46, citing Wallace v. Willoughby, 3d Dist. Shelby No. 17-10-15, 2011-Ohio-3008, ¶ 22 and Miller v. Miller, 37 Ohio St.3d 71, 74 (1988). “““Where an award of custody is supported by a substantial amount of credible and competent evidence, such an award will not be reversed as being against the weight of the evidence by a reviewing court.““” Id., quoting Walker at ¶ 46, quoting Barto v. Barto, 3d Dist. Hancock No. 5-08-14, 2008-Ohio-5538, ¶ 25 and Bechtol v. Bechtol, 49 Ohio St.3d 21 (1990), syllabus. “Accordingly, an abuse of discretion must be found in order to reverse the trial court‘s award of child custody.” Id., quoting Walker at ¶ 46, citing Barto at ¶ 25 and Masters v. Masters, 69 Ohio St.3d 83, 85 (1994). “An abuse of discretion suggests the trial court‘s decision is unreasonable or unconscionable.” Id., quoting Brammer v. Meachem, 3d Dist. Marion No. 9-10-43, 2011-Ohio-519, ¶ 14, citing Blakemore v. Blakemore, 5 Ohio St.3d 217, 219 (1983).
{9} “When making the allocation of the parental rights and responsibilities for the care of the children under this section in an original proceeding * * *, the court shall take into account that which would be in the best interest of the children.”
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 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 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.
{10} “The trial court ‘has discretion in determining which factors are relevant,’ and ‘each factor may not necessarily carry the same weight or have the same relevance, depending upon the facts before the trial court.‘” Krill at ¶ 29, quoting Brammer v. Brammer, 3d Dist. Marion No. 9-12-57, 2013-Ohio-2843, ¶ 41, citing Hammond v. Harm, 9th Dist. Summit No. 23993, 2008-Ohio-2310, ¶ 51. “Although the trial court must consider all relevant factors, there is no requirement
{11} In its January 31, 2020 judgment overruling Costilla‘s objections to the magistrate‘s decision, the trial court found “upon its independent review * * * that the Magistrate analyzed the best interest factors and appropriately applied the law in all respects.” (Emphasis deleted.) (Doc. No. 25). The trial court did not elaborate further. Therefore, in determining whether the trial court abused its discretion by overruling Costilla‘s objections, we will, by necessity, focus exclusively on the magistrate‘s
{12} First, with regard to
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{14} With regard to
{16} Regarding
{17} In addition, the magistrate noted that J.C. had adjusted to Costilla‘s home “very well” and that “there was also no negative testimony as to [J.C.‘s] adjustment to [Weimerskirch‘s] residence in Toledo.” (Doc. No. 17). The magistrate reiterated that he did not have any safety concerns about the home of either parent and that he did not have any concerns about the other occupants of either home. (Id.). Finally, the magistrate found that “the age of [J.C.] does not lend too much of a community presence.” (Id.). Thus, the magistrate concluded that “the evidence and testimony as to [
{18} With respect to
{19} Next, as to
{20} Concerning
{22} Finally, the magistrate considered
The evidence is clear that both [Costilla] and [Weimerskirch] have provided a lot of love to [J.C.]. As their relationship flourished[,] the child was part of a stable and happy family. When the relationship fell apart, the parents lost their ability to work together to parent their child. Instead of pointing fingers[,] the Magistrate must set forth what is in the best interest of [J.C.]. In making this determination[,] the court would like to emphasize that neither parent is a danger to the child. Both parents love [J.C.] and can satisfactorily raise [him]. With all elements being equal, the key factor in favor of [Weimerskirch] is [K.T.]. Even with the termination of [her relationship with Costilla], [Weimerskirch] was able to put [J.C.‘s] interest ahead of her own. The child was placed with [Costilla] for the balance of the school year[,] with the opinion that [Costilla] is a great father. Now that [Weimerskirch] is settled[,] there is no reason[] she should not raise her child[] in a home that contains his sibling with whom he has lived his entire life.
(Doc. No. 17).
{25} Costilla first claims that the magistrate mischaracterized Weimerskirch‘s move to Toledo and her reasons for relocating. He notes that while the magistrate “state[d] [that] [Weimerskirch] was forced to relocate to Toledo,” that was not the case. (Appellant‘s Brief at 7). According to Costilla, Weimerskirch instead “unilaterally elected to relocate to Toledo, Ohio * * * for work and [to] pursue other male suitors/relationships.” (Id. at 3). He also questions whether Weimerskirch‘s pursuit of greater employment opportunities in Toledo was legitimate given that Weimerskirch works as a restaurant server and “[t]here is no specialized training needed to be a server * * *” (See id. at 7).
{26} While it is true that the magistrate stated that Weimerskirch “was forced to relocate based on [an] increase in rent,” we think that Costilla makes too much of this statement. (Doc. No. 17). Reading this statement in context, we do not believe that it was the magistrate‘s conclusion that Weimerskirch had no choice but to move to Toledo after her apartment building was sold and the new owner increased the rent. Instead, the magistrate merely recognized that her relocation to
{27} Costilla also maintains that the magistrate misconstrued Weimerskirch‘s decision to allow K.T. to remain with him during the week so that K.T. could continue attending school at Hopewell-Loudon. He argues that Weimerskirch allowed K.T. to stay with him so that Weimerskirch could “have free daycare with [him] and his family members * * * Monday through Friday for the majority of 2018 and 2019.” (Appellant‘s Brief at 5). In addition, Costilla faults the magistrate for “believ[ing] [that] [Weimerskirch‘s] willingness to let someone
{28} Furthermore, Costilla contends that the magistrate‘s findings concerning J.C.‘s behavioral issues are not supported by the record. He states that the magistrate “viewed [him] and his witnesses of being narrow in their view and stated the child may have other reasons for behavior due to positive and negative reinforcement by [him] or his family * * *.” (Appellant‘s Brief at 8). He argues that there is no evidence to support the magistrate‘s position and that “[s]uch analysis is purely speculative at best and inappropriate given the lack of evidence to such conjecture.” (Id.).
{29} In the portion of the magistrate‘s decision addressing J.C.‘s behavioral issues, the magistrate wrote:
[J.C.] has had recent instability at the YMCA, where it was revealed that the child has screaming bouts and knocks down the toys of other
children. The witnesses explain that this behavior has gotten worse recently and is blamed on the child being transported back and forth between his parents. Car time can be either a positive endeavor or a negative one depending on the presentation by the parents. The parent can be excited about the time with his child and the child with [sic] accept the happiness with cheer of his own. Likewise, if the parents are angry and not active in the child‘s transport, the child will respond negatively. Singing, reading, talking about the child‘s day are all great activities that parents can do inside or outside of a motor vehicle. This narrow view of the child‘s behavioral changes has limited the veracity of the witnesses presented by [Costilla]. Perhaps the parents and loving family members should look into the parents[‘] break up and caustic relationship when assessing causes of [J.C.‘s] behavior.
(Doc. No. 17).
{30} Admittedly, the magistrate may have said more than he needed to say. The issue before the magistrate was whether J.C.‘s behavioral problems were the result of him being driven back and forth between Toledo and Hancock/Seneca Counties. Neither Costilla nor Weimerskirch argued for or presented evidence to prove an alternative cause for J.C.‘s behavior, and accordingly, it might have been best for the magistrate to refrain from opining on other explanations for J.C.‘s
{31} Other than challenging some of the magistrate‘s findings, Costilla appears to argue that the magistrate erred by giving determinative weight to J.C.‘s relationship with K.T. and by diminishing the importance of other relevant factors. Costilla suggests that more weight should have been given to the fact that he “provided nutrition, care, nurturing, supervision, discipline, and education to both children while in his care a great majority of the time during the week.” (Appellant‘s
{32} We commend Costilla for assuming the role of K.T.‘s father figure and for his commitment to both J.C. and K.T. Costilla has demonstrated beyond question that he is a responsible, loving parent capable of prioritizing the health and wellbeing of his children. Nevertheless, Costilla‘s history of caring for J.C. and K.T. does not necessitate a conclusion that it is in J.C.‘s best interest that Costilla be designated as J.C.‘s residential parent. In determining J.C.‘s best interest, the magistrate and the trial court were required to balance all factors relevant to J.C.‘s best interest, including Costilla‘s and Weimerskirch‘s parenting capabilities. In much the same way that the evidence established Costilla‘s capacity to care for J.C. properly, the record also confirms Weimerskirch‘s parental fitness. Costilla‘s witnesses testified that Weimerskirch loves J.C., that she “instills good manners with him,” and that they are not concerned about her ability to parent J.C. (Oct. 10, 2019 Tr. at 62-63, 78). Accordingly, we cannot say that Costilla‘s history of caring for J.C. clearly tips the balance in his favor. Moreover, with respect to Costilla‘s claim that the magistrate and trial court gave too much weight to J.C.‘s relationship with K.T., we reiterate that it is within the discretion of the magistrate or trial court
{33} Ultimately, to reverse the trial court‘s decision to overrule Costilla‘s objections and adopt the magistrate‘s recommendation that Weimerskirch be designated as J.C.‘s residential parent, we must conclude that the trial court abused its discretion. That is, we must conclude that the trial court‘s decision was unreasonable, arbitrary, or unconscionable. Furthermore, in conducting abuse-of-discretion review, we must be mindful not to substitute our judgment for the judgment of the trial court. Schroer v. Schroer, 3d Dist. Hancock No. 5-19-21, 2020-Ohio-62, ¶ 13 (“When applying the abuse of discretion standard, a reviewing court may not simply substitute its own judgment for that of the trial court.“), citing Pons v. Ohio State Med. Bd., 66 Ohio St.3d 619, 621 (1993). Even in circumstances where we might have reached a different outcome than the one reached by the trial court, we must affirm the trial court‘s decision if it is not unreasonable, arbitrary, or unconscionable. Here, the trial court‘s decision to overrule Costilla‘s objections and designate Weimerskirch as J.C.‘s residential parent is not unreasonable,
{34} Costilla‘s assignment of error is overruled.
{35} Having found no error prejudicial to the appellant herein in the particulars assigned and argued, we affirm the judgment of the trial court.
Judgment Affirmed
WILLAMOWSKI, P.J. and SHAW, J., concur.
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