BRETT ENZ, Plaintiff-Appellee, vs. AMANDA LEWIS nka YATES, Defendant-Appellant.
Case No. 10CA3357
IN THE COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT SCIOTO COUNTY
Released: March 9, 2011
2011-Ohio-1229
DECISION AND JUDGMENT ENTRY
Christen N. Finley, Richard M. Lewis, and Jennifer L. Routte, The Law Firm of Richard M. Lewis, LLC, Jackson, Ohio, for Appellant.
Marcia I. Shedroff, Portsmouth, Ohio, for Appellee.
Per Curiam:
{1} Appellant, Amanda Yates, appeals the decision of the Scioto County Court of Common Pleas, Domestic Relations Division‘s judgment entry overruling her objections to the magistrate‘s order and granting Appellee, Brett Enz‘s, motion to modify parental rights and responsibilities. On appeal, Appellant raises multiple assignments of error, contending that 1) the trial court lacked jurisdiction; 2) the trial court erred in failing to appoint a guardian ad litem; 3) the trial court erred in changing custody when a substantial change of circumstances had not occurred; 4) the trial court erred
{2} In light of our determination that the trial court properly exercised jurisdiction over this matter, Appellant‘s first assignment of error is overruled. Further, in light of our findings that the trial court did not err or abuse its discretion in failing to appoint a guardian ad litem or certify the matter to the juvenile court, Appellant‘s second assignment of error is
FACTS
{3} On May 20, 2008, Plaintiff-Appellee, Brett Enz, filed a complaint in the Scioto County Court of Common Pleas, Domestic Relations Division, to establish a parent-child relationship against Defendant-Appellant, Amanda Lewis nka Yates, with respect to minor child, Elle Enz, born July 8, 2006. On September 16, 2008, an agreed judgment entry was filed whereby the parties confirmed a parent-child relationship between Elle Enz and Appellee, Appellant was designated the residential parent, and Appellee was granted parenting time and was ordered to pay child support. Subsequently, on December 8, 2008, Appellee filed a motion to modify child support and motion to modify parenting time. The memorandum in support of Appellee‘s motion alleged that Appellant had not moved to Chillicothe, as had been the understanding, and was instead living in Scioto County with her new husband.
{4} The record further reflects that on February 9, 2009, Appellee filed another motion in the domestic relations court entitled “Motion for
{5} On February 11, 2009, the domestic court issued an order granting Appellee‘s motion for emergency custody, thereby designating Appellee the residential parent and setting the matter for a probable cause
{6} Discovery ensued and a hearing was held on May 13, 2009; however, the matter was unable to be concluded in one day, and as a result, it was decided the hearing would be concluded on August 20, 2009. In the interim, Appellee served Appellant with his first set of interrogatories, request for admissions and production of documents. In response, Appellant filed a motion for protective order, contending that the discovery requests were inappropriate considering that they were midway into the hearing on the matter. On July 24, 2009, a magistrate‘s order was filed denying Appellant‘s motion for protective order and provided the parties ten days to file a motion to set aside the order. Appellant filed a notice of compliance with discovery, representing that she had complied with discovery as of
{7} The final day of the hearing was held on August 20, 2009, post-trial briefs were submitted for consideration and a magistrate‘s decision was filed on November 10, 2009. In the decision, the magistrate issued findings of fact and conclusions of law and found that “several changes in circumstances have occurred which necessitate re-evaluation of the allocation of parental rights and responsibilities.” As such, the magistrate granted Appellee‘s motion to modify parental rights and responsibilities, and set forth a schedule for Appellant‘s parenting time. The magistrate further ordered Appellant to pay child support to Appellee. Appellant objected to
{8} It is from this judgment entry that Appellant now brings her timely appeal, assigning the following errors for our review.
ASSIGNMENTS OF ERROR
“I. THE TRIAL COURT LACKED JURISDICTION.
II. THE TRIAL COURT ERRED IN FAILING TO APPOINT A GUARDIAN AD LITEM.
III. THE TRIAL COURT ERRED IN CHANGING CUSTODY WHEN A SUBSTANTIAL CHANGE OF CIRCUMSTANCES HAD NOT OCCURRED.
IV. THE TRIAL COUR ERRED IN FAILING TO FIND OR CONCLUDE THAT A CHANGE OF CUSTODY WAS NECESSARY TO SERVE THE CHILD‘S BEST INTERESTS OR HOW THE CHANGE WOULD SERVE THE CHILD‘S BEST INTERESTS.
V. THE TRIAL COURT ERRED IN MAKING FINDINGS OF FACT WHICH WERE AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE TO SUPPORT ITS ORDER REQUIRING A CHANGE IN CUSTODY.
VI. THE TRIAL COURT ERRED IN RELYING ON FACTS WHICH OCCURRED PRIOR TO THE INITIAL CUSTODY ORDER, WHICH WAS FILED ON SEPTEMBER 16, 2008, IN REACHING ITS DECISION TO CHANGE CUSTODY.
VIII. THE TRIAL COURT ERRED IN FAILING TO REQUIRE THE PARTIES AND THEIR MINOR CHILD TO SUBMIT TO MENTAL AND PHYSICAL EVALUATIONS.
IX. THE TRIAL COURT ERRED IN DEEMING APPELLEE‘S REQUEST FOR ADMISSIONS ADMITTED.
X. THE TRIAL COURT ERRED IN FAILING TO STATE WHAT CHANGES OF CIRCUMSTANCES OCCURRED WHICH PROVIDE THE THRESHOLD FOR ITS DECISION TO GRANT APPELLEE‘S MOTION TO MODIFY CUSTODY.
XI. THE TRIAL COURT ERRED IN DETERMINING CHILD SUPPORT.”
ASSIGNMENT OF ERROR I
{9} In her first assignment of error, Appellant contends that the trial court lacked jurisdiction to consider Appellee‘s motion for emergency custody, which she contends set forth allegations of abuse and neglect. Appellant bases her argument on
{10} We initially note that Appellant challenges the domestic court‘s subject matter jurisdiction for the first time on appeal. Subject matter jurisdiction is defined as a court‘s power to hear and decide cases. State ex rel. Tubbs Jones v. Suster, 84 Ohio St.3d 70, 75, 1998-Ohio-275, 701 N.E.2d 1002. Subject matter jurisdiction may be raised at any time and it may be raised sua sponte by the court. State ex rel. Bond v. Velotta Co., 91 Ohio St.3d 418, 419, 2001-Ohio-91, 746 N.E.2d 1071. A motion to dismiss for lack of subject matter jurisdiction raises a question of law, subject to the de novo standard of review. Groza-Vance v. Vance, 162 Ohio App.3d 510, 2005-Ohio-3815, 834 N.E.2d 15, at ¶ 13; see, also, State ex rel. Rothal v. Smith, 151 Ohio App.3d 289, 2002-Ohio-7328, 783 N.E.2d 1001, at ¶ 110.
{11} In Heisler, at issue was whether the Hocking County domestic relations court, which had originally obtained jurisdiction by virtue of a
{13} As such, and in light of the foregoing, we conclude that although the juvenile court may have obtained jurisdiction over the issue of custody upon Appellant‘s alleged filing of a motion for emergency custody
ASSIGNMENT OF ERROR II
{14} In her second assignment of error, Appellant contends that the trial court erred and abused its discretion in failing to appoint a guardian ad litem. Appellant primarily hinges her argument on her assertions in her first assignment of error, that the juvenile court had exclusive, original jurisdiction over this matter, rather than the domestic relations court. As such, Appellant relies upon juvenile court statutes, rather than domestic relations court statutes. Appellant further argues that the domestic relations court erred in failing to certify this matter to the juvenile court in accordance
{15} With respect to Appellant‘s contention that the trial court abused its discretion in failing to appoint a guardian ad litem, we note that
“If the court interviews any child pursuant to division (B)(1) of this section, all of the following apply:
(a) The court, in its discretion, may and, upon the motion of either parent, shall appoint a guardian ad litem for the child.”
{16} Here, a review of the record reflects that the trial court did not interview the child in chambers, nor did the parties request such an interview or request appointment of a guardian ad litem. Thus, the matter being purely within the discretion of the trial court, and absent a request by the parties or an interview of the child, we cannot conclude that the trial court abused its discretion in failing to appoint a guardian ad litem. See, In re Munnings, Geauga App. No. 2005-G-2622, 2006-Ohio-3230 at ¶ 16 (noting that a trial court is generally only required to appoint a guardian if such an appointment is designated by statute or rule); Feltz v. Feltz, Mercer App. No. 10-04-04, 2004-Ohio-4160 at ¶ 5 (finding no requirement for appointment of guardian
{17} With respect to Appellant‘s second contention, that the trial court erred in failing to certify the matter to the juvenile court, we turn our attention to
“may, on its own motion or on motion of any interested party, with the consent of the juvenile court, certify the record in the case or so much of the record and such further information, in narrative form or otherwise, as the court deems necessary or the juvenile court requests, to the juvenile court for further proceedings; upon the certification, the juvenile court shall have exclusive jurisdiction.”
Thus, based upon a plain reading of the above language, certification of a matter over to the juvenile court is discretionary. Here, where we have already determined that the domestic relations court properly exercised jurisdiction over the custody issue herein, and where none of the parties even requested certification, we cannot conclude that the trial court abused its discretion in failing to certify the matter to the juvenile court. Accordingly, we overrule Appellant‘s second assignment of error with regard to the trial court‘s decision not to certify the matter to the juvenile court.
{18} Because Appellant‘s fourth assignment of error is dispositive of the remaining issues, we will address it out of order. In her fourth assignment of error, Appellant contends that the trial court erred in failing to find or conclude that a change of custody was necessary to serve the child‘s best interests or how the change would serve the child‘s best interests. In response, Appellee simply offers that “by virtue of the nature of the change in circumstances in this case, the lower court obviously concluded that the modification was necessary to serve the child‘s best interests.” Appellee further contends that because Appellant did not request findings of fact or conclusions of law, she cannot now challenge “lack of an explicit finding concerning an issue.” For the following reasons, we reject Appellee‘s contentions and sustain Appellant‘s fourth assignment of error.
{19} “Appellate courts typically review trial court decisions regarding the modification of a prior allocation of parental rights and responsibilities with the utmost deference.” Wilson v. Wilson, Lawrence App. No. 09CA1, 2009-Ohio-4978, at ¶ 21, citing Davis v. Flickinger, 77 Ohio St.3d 415, 418, 1997-Ohio-260, 674 N.E.2d 1159; Miller v. Miller (1988), 37 Ohio St.3d 71, 74, 523 N.E.2d 846. See, also, Posey v. Posey, Ross App. No. 07CA2968, 2008-Ohio-536, at ¶ 10; Jones v. Jones,
{20} “In Davis, the court defined the abuse of discretion standard that applies in custody proceedings as follows: ‘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. ‘The reason for this standard of review is that the trial judge has the best opportunity to view the demeanor, attitude, and credibility of each witness, something that does not translate well on the written page. * * * The underlying rationale of giving deference to the findings of the trial court rests with the knowledge that the trial judge is best able to view the witnesses and observe their demeanor, gestures and voice inflections, and use these observations in weighing the credibility of the proffered testimony. * * * A reviewing court should not reverse a decision simply because it holds a different opinion concerning the credibility of the witnesses and evidence submitted before the trial court. A finding of an error in law is a legitimate ground for reversal, but a difference of opinion on credibility of witnesses and evidence is not. The determination of credibility
{21}
{23} Appellant contends that the trial court failed to properly conclude that a change of custody was necessary to serve the child‘s best interest. We agree. Although the trial court did find that since residing with Appellee the minor child “has adjusted well over time,” this statement was not made as part of a best interest analysis. Further, nowhere in the magistrate‘s decision or the trial court‘s final judgment entry adopting the magistrate‘s decision do the words “best interests” appear. Further, although Appellant did not request findings of fact and conclusions of law, the record reveals that the magistrate provided them, Appellant objected to them on this basis, and the trial court overruled Appellant‘s objection. As such, Appellant‘s fourth assignment of error is sustained. Accordingly, the
{24} In light of our disposition of Appellant‘s fourth assignment error, Appellant‘s third, fifth and sixth through eleventh assignments of error have been rendered moot. However, we do note, with regard to Appellant‘s third and tenth assignments of error, which challenge the trial court‘s findings with regard to a change in circumstance, that while the trial court did find a change in circumstance had occurred, and evidence presented arguably supports that finding, the trial court did not delineate what specific change had occurred. Such a clarification would be beneficial upon remand.
JUDGMENT REVERSED AND CAUSE REMANDED.
It is ordered that the JUDGMENT BE REVERSED AND THE CAUSE REMANDED and that the Appellant recover of Appellee 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 Scioto County Court of Common Pleas, Domestic Relations Division, to carry this judgment into execution.
Any stay previously granted by this Court is hereby terminated as of the date of this entry.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
Exceptions.
Abele, J., Kline, J. and McFarland, J.: Concur in Judgment and Opinion.
For the Court,
BY: Peter B. Abele, Judge
BY: Roger L. Kline, Judge
BY: Matthew W. McFarland, Judge
NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a final judgment entry and the time period for further appeal commences from the date of filing with the clerk.