Gossard v. MillerGossard v. Miller
- Reporters:
- Before:
- Cupp, Rogers, Shaw
OPINION
{¶ 1} Plaintiff-appellant, Stacy Lynn Gossard, appeals the October 20, 2004 judgment of the Court of Common Pleas, Juvenile Division, of Wyandot County, Ohio, adopting the decision of the magistrate and designating defendantappellee Brad E. Miller the residential parent of the parties’ son, Chad Miller. By a previous judgment entry on September 23, 2004 the trial court had overruled Stacy‘s objections to the Magistrate‘s decision.
{¶ 2} Brad and Stacy met while working together. They were both married when they mеt, but they entered into an adulterous relationship in 2001. After their relationship had begun, Stacy separated from her husband, Larry Gossard, and moved out of her marital residence in March 2001. Brad later separated with his wife, Teresa Miller, and movеd into Stacy‘s residence in October 2001. Little more than a month later, Brad moved out. After that, Larry and Stacy attempted a reconciliation; Larry moved back in with her in December 2001 although they were finalizing their divorce at the same timе.
{¶ 3} Chad was born on May 18, 2002. Shortly thereafter, Brad and Stacy attempted to reconcile, and Stacy moved out to Nevada with Chad where Brad was then residing. Two months later, Stacy and Larry decided that they could work through their marital difficulties, аnd Stacy moved back to Upper Sandusky, Ohio to live with Larry. Although Stacy and Larry had previously had a son together, Brandon Gossard, the record is unclear as to who had custody of Brandon at this time. However, in June or July 2002, when Stacy moved back to Ohio, it is apparent that she and Larry were living together and had custody of both Brandon and Chad. Additionally, sometime during this period Brad and Teresa reconciled as well, and Brad moved back in with Teresa and their kids in Carey, Ohio.
{¶ 4} On August 30, 2002 the Wyandot Cоunty Child Support Enforcement Agency (CSEA) filed a complaint seeking to establish a parent-child relationship. On November 19, 2002 the parties came to a mutual agreement and filed a consent judgment entry establishing that Brad is Chad‘s biological fаther and designating Stacy as Chad‘s temporary residential parent. On January 28, 2003 the magistrate filed his decision adopting the parties’ stipulated agreement. The magistrate‘s decision designated Stacy as the residential parent, ordered Brad to pay child support, and granted standard visitation rights to Brad. The trial court adopted that decision in its February 2, 2003 judgment entry.
{¶ 5} On December 16, 2003 Brad filed a motion to modify the allocation of parental rights and responsibilities. The court appointed a guardian ad litem (GAL) in response to a motion made by Brad, and the GAL filed a report with the trial court after investigation, recommending that Brad be named residential parent.
{¶ 6} The matter was heard on April 14, 2004 in front of a magistrate, and the magistrate issued a decision on May 27, 2004 designating Brad as the residential parent. Stacy filed objections to the magistrate decision, but the trial court overruled those objections and adopted the decision of thе trial court in its September 23, 2004 judgment entry. Stacy appealed, asserting the following assignment of error:
THE MODIFICATION OF THE RESIDENTIAL PARENT IS CONTRARY TO LAW.
{¶ 7} Stacy contends that the decision modifying the residential parent is contrary to law because the lower court did not make the necessary findings under R.C.
{¶ 8} Decisions concerning child custody matters rest within the sound discretion of the trial court. Miller v. Miller (1988), 37 Ohio St.3d 71. The judge, acting as the trier of fact, is in the best position to observe the witnesses, weigh evidence and evaluate testimony. In re Brown (1994), 98 Ohio App.3d 337. Therеfore, we must not substitute our judgment for that of the trial court‘s absent an abuse of discretion. Miller, 37 Ohio St.3d at 74; Davis v. Flickinger (1997), 77 Ohio St.3d 415, 418. Accordingly, we will not reverse a trial court judgment that is “supported by a substantial amount of credible and competent evidence.” Bechtol v. Bechtol (1990), 49 Ohio St.3d 21, 550 N.E.2d 178, syllabus.
{¶ 9} The issue prеsented in this case is therefore whether the trial court‘s decision to modify the allocation of parenting rights and responsibilities is supported by a substantial amount of competent, credible evidence. Before a court can make such a modification, the trial court must find, “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 (1) a change in circumstances has оccurred, (2) a change in the parental rights and responsibilities is in the best interests of the child, and (3) one of the factors listed in R.C.
{¶ 10} The threshold inquiry is whether a change has occurred in the circumstances of one of the parents or of the child; this issue must be addressed before moving to the final two prongs of the test.
{¶ 11} First, there is evidence in the record that Stacy and Larry were interfеring with Brad‘s visitation rights in various ways. One parent having a relationship with someone “that creates hostility by the residential parent, frustrating attempts at visitation, may be an unforeseen change in circumstances * * *.” Davis, 77 Ohio St.3d at 419. There is ample evidence in the record indicating that the Gossards had frustrated Brad‘s visitation rights: Larry threatened and was hostile towards Brad during exchanges, Stacy refused to make exchanges at a neutral location, and Stacy constantly changed the “procedures” by which exchanges would be made by first prohibiting Brad from approaching the house and then refusing to come out to meet him at the curb. Moreover, Stacy was constantly out of contact with Brad. She frustrated attempts at communication by changing phone numbers without telling him, and then only provided a cell phone number but did not keep her cell phone on. Moreover, Stacy refused to agree to a change in the parenting schedule when Brad‘s work schеdule changed to weekends, preventing him from spending any time with his son.
{¶ 12} Second, the magistrate‘s decision relied on evidence exhibiting a change in Chad‘s behavior. The magistrate found that Chad had started “`banging’ his head on hard surfaces, throwing things, having tеmper `fits,’ and crying.” The record supports this finding — all of Stacy‘s witnesses testified to this behavior. Importantly, while this behavior was sufficient to cause concern to the Gossard‘s babysitter, the Gossards themselves did not seek a medical or psychоlogical evaluation of Chad. While this change in behavior may have coincided with the beginning of visitations with his father‘s family, there is no evidence that this type of behavior occurred in the Miller home.
{¶ 13} Third, most troubling was the evidence presented concerning the circumstances in the Gossard home. Larry has a substantial history of alcohol use/abuse, and there was evidence in the record which indicates he may have given Chad and his own son Brandon alcohol. In one instance, Brad picked up Chad for visitation and there was a wet spot on Chad‘s shirt that smelled like beer. Brad notified the police, and the GAL‘s report indicates that the Sheriff‘s Department agreed that Chad smelled of beer. The GAL report also revealed several instances where Larry had given alcohol to his other children, including wine coolers and beer, which he referred to as “barley pop.” The report also included this entry:
During his visit, GAL asked Brad to get a cаn of soda [out] of the refrigerator. GAL asked Brad if he would offer the can to Chad and refer to it as “barley pop.” When first offered Chad walked away [and] frowned and then when Brad offered it again, Chad pushed it away, turned with an unhappy expression on his face and grabbed hold of and hugged his stepmother Teresa. 3/6/04
This evidence, though circumstantial, causes serious concerns when coupled with the reported instances of Larry giving alcohol to children and the dоcumented report of Chad smelling of beer.
{¶ 14} In addition to this evidence, there were other reported difficulties in the Gossard household. There are several reports of abuse and neglect, including three instances in which Children‘s serviсes opened investigations, two of which were from mandatory reporters, the school and the police. There was also testimony pertaining to a recurring rash on Chad which Stacy failed to have treated.
{¶ 15} Based on the foregoing, we find that there is sufficient evidence in the record to support the trial court‘s conclusion that a change of circumstances had occurred. The evidence was sufficient to establish the first prong of R.C.
{¶ 16} The second рrong of the test requires the trial court to find that the reallocation of parenting rights and responsibilities is in Chad‘s best interests. A non-exhaustive list of factors to be considered in this determination is outlined in R.C.
{¶ 17} Moreover, the evidence in the record supports the conclusion that Brad is “the parent more likely to honor and facilitate court-approved parenting time rights” and that Stacy has “continuously and willfully denied visitation.” R.C.
{¶ 18} Based on the foregoing, we find that there is sufficient evidence in the record supporting the trial court‘s finding that modifying the parenting rights is in Chad‘s best interests. Therefore, the second prong of R.C.
{¶ 19} Finally, although Stacy does not argue this issue in her appeal, the evidence in the record supports the trial court‘s determination that the benefits of reallocating parenting rights and responsibilities outweigh the harm. The documented reports of abuse and neglect in the Gossard, Larry‘s repeated alcoholrelated difficulties and his failure to seek treatment, and the change in Chad‘s behavior that manifests itself only in thе Gossard home all support the conclusion that Chad will strongly benefit from a change in environment. Thus, the third prong of R.C.
{¶ 20} Accordingly, the trial court did not error in reallocating the parental rights and responsibilities by designating Brad as the residential parent. The assignment of error is overruled, and the judgment of the trial court is affirmed.
Judgment Affirmed. Cupp, P.J., and Rogers,