Haskett v. HaskettHaskett v. Haskett
Case Information
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[Cite as
Haskett v. Haskett
,
IN THE COURT OF APPEALS ELEVENTH APPELLATE DISTRICT LAKE COUNTY, OHIO
BARBARA J. HASKETT, : O P I N I O N
Plaintiff-Appellee, :
CASE NO. 2011-L-155 - vs - :
JAMES M. HASKETT, :
Defendant-Appellant. : Civil Appeal from the Lake County Court of Common Pleas, Domestic Relations Division, Case No. 07 DR 000703.
Judgment: Affirmed.
Russell R. Kubyn , The Kubyn Law Firm, 8373 Mentor Avenue, Mentor, OH 44060 (For Plaintiff-Appellee).
Judson J. Hawkins , Parkhill Professional Building, 35104 Euclid Avenue, Suite 101, Willoughby, OH 44094 (For Defendant-Appellant).
MARY JANE TRAPP, J.
Appellant, James M. Haskett, appeals from two judgment entries of the
Lake County Court of Common Pleas, Domestic Relations Division, denying his motions to terminate sрousal support and to modify parental rights and responsibilities. His motions were primarily based on allegations that Mrs. Haskett had entered in a marriage-like relationship with another man. The trial court held a trial on both matters and found that appellee, Barbara Haskett, had not in fact entered into a marriage-like *2 relationship with this other man. The trial court further found that no сhange of circumstances had occurred to warrant a reallocation of parental responsibilities. Because the trial court’s findings are supported by competent, credible evidence, we affirm the decision of the Lake County Court of Common Pleas, Domestic Relations Division.
Substantive Facts and Procedural History
Barbara Haskett filed a complaint for divorce in October 2007. In the interim period between the complaint for divorce and the final decree, the Hasketts lived separately. But, two months before the final decree and a shared parenting plan were filed on October 26, 2010, Mrs. Haskett and her male friend, Terry Lewis, began to live together, joined by the Haskett children. Mrs. Haskett and Mr. Lewis jointly signed a lease and lived together for just over a year. Mrs. Haskett and Mr. Lewis split the rent and shared household expenses, occasionally engaging in sexual activity. Mrs. Hasket described the relationship as one more akin to roommates than spouses. The Hasketts have shared parenting of their two children, but Mrs. Haskett
is the residential parent for school purposes. A mere nine days after the final decree, Mr. Haskett filed motions to
modify parеntal rights and responsibilities and to terminate spousal support. Mr.
Haskett alleged that Mrs. Haskett had entered into a marriage-like relationship with
another man, triggering a termination of the spousal support clause contained in the
divorce decree. The trial court dismissed these motions on April 22, 2011, “due to a
failure of service upon the Plaintiff to invoke the continuing jurisdiction of the Court.” Mr.
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Haskett had incorrectly served Mrs. Haskett pursuant to
pursuant to
reiterated the denial of the motion to reallocate parental rights and responsibilities, and stated that the “Court finds Father failed to sustain his statutory burden of proof to show *4 a сhange in circumstances occurred pursuant to Rev. Code 3109.04(E)(1)(a) set forth hereinabove, as to Father, Mother or the children to warrant modification of the Shared Parenting Plan. * * * The in camera review was held prematurely, and is irrelevant since the consideration of the children’s best interest was not required by statute.”
{¶8} The second judgment entry denied the motion to terminate spоusal support, and stated that the “Court finds Father did not sustain his burden of proof by a preponderance of the evidence that Mother was living in a state akin to marriage with Mr. Lewis from August 15, 2010 to September 3, 2011. Finally, the Court notes Mother’s acquiring a roommate to share expenses began more than two months prior to the decree of divorce even being filed.”
{¶9} Mr. Haskett timely appеaled and now brings the following assignments of error: “[1.] The trial court committed prejudicial error when it ruled that service
pursuant to
Appellee’s admissions that she had еntered into a marriage like relationship as an admission of fact.” “[3.] The trial court committed prejudicial error by limiting the role of the
children’s attorney and Guardian Ad Litem soley to attending the in camera review of the children.”
{¶13} “[4.] The trial court committed prejudicial error when it ruled that the stated desires of the children for a change in custody did not constitute a substantial change in circumstances sufficient to require a determination of the best interests of the children.”
{¶14} “[5.] The trial court abused its discretion by limiting the guardian at litem’s representation of the children solely to attendance of the in camera interview.” Because assignments of error three and five raise the same issues, we will consider them together at the conclusion of our opinion.
Service was Insufficient
In his first assignmеnt of error, Mr. Haskett argues that the trial court erred
in determining that he had improperly served the April 26, 2011 motions on Mrs.
Haskett. Because we find that by the time Mr. Haskett had re-filed the motions on April
26, 2011, the continuing jurisdiction of the trial court had already been invoked, he erred
in serving the motions on Mrs. Haskett on April 26, 2011 pursuant to
Standard of Review
The application of a civil rule is a question of law, which we review de
novo . See Larson v. Larson , 3d Dist. No. 13-11-25,
In domestic relations cases,“[t]he continuing jurisdiction of the court shall
be invoked by motion filed in the original action, notice of which shall be served in the
manner provided for the service of рrocess under
invoked, service must be perfected pursuant to
jurisdiction of the trial court had already been invoked. Pending matters before the
court included Mrs. Haskett’s motions to show cause and for attorney fees in relation to
Mr. Haskett’s failure to pay child support, which had been filed on April 15, 2011. It was
those motions of Mrs. Haskett that invoked the continuing jurisdiction of the court.
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Mrs. Haskett was at thе time represented by counsel, therefore, Mr.
Haskett was required to serve his re-filed motions to Mrs. Haskett’s attorney, pursuant
to
Request for Admissions
In his second assignment of error, Mr. Haskett argues that the trial court
erred in denying his motion to confirm Mrs. Haskett’s admissions. He essentially argues
that because Mrs. Haskett belatedly responded to his request for admissions, they
should be deemed unanswered and thus admitted pursuant to
court’s discretion to allow the withdrawal of admissions in the interest of justice.
proceedings satisfied the requirements of
No Change in Circumstances
In his fourth assignment of error, Mr. Haskett contends that the trial court erred when it ruled that no substantial change in circumstances had taken place to trigger a best interest analysis. Mr. Haskett argues that the stated desire of his children to live with him is sufficient enough to meet the first prong of the analysis when considering a reallocation of parental rights and responsibilities. A review of the evidence presented at trial and the law related to the definition of “change of circumstances” rеveals that the trial court did not err in its determination that Mr. Haskett had not met his burden and thus no further analysis was necessary.
Standard of Review
“In reviewing matters involving the allocation of parental rights and
responsibilities of minor children, a trial court is vested with broad discretion; thus, a trial
court’s decision will be reversed only upon a showing of an abuse of discretion.” Dexter
v. Dexter , 11th Dist. No. 2006-P-0051,
“connoting judgment exercised by a court, which does not comport with reason or the
record.” State v. Underwood , 11th Dist. No. 2008-L-113,
more crucial in a child custody case, where there may be much evident in the parties’ demeanor and attitude that does not translate to the record well.’” (Emphasis sic.) Dexter , supra , at ¶11, quoting Davis at 418.
{¶31} “(i) The residential parent agrees to a change in the residential parent * * *. {¶32} “(ii) The child, with the consent of the residential parent * * * has been integrated into the family of the person seeking to become thе residential parent.
{¶33}
“(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.”
This statute sets forth the procedure for modifying a prior decree allocating
parental rights and responsibilities for the care of children. “In order to modify a prior
decree,
situation which has a material and adverse effect upon a child.” Schiavone v. Antonelli ,
11th Dist. No. 92-T-4794,
motion for reallocation of parental rights and responsibilities out of order (she conducted *12 an in camera review first, and then held a trial), the result was not in error. At trial, Mr. Haskett had the burden of demonstrating a substantial change in circumstances had occurred in order to warrant consideration of the best interests of the children and a possible change in their placement. He failed to demonstrate such a change in circumstances. At trial, Mr. Haskett pointed to the fact that Mrs. Haskett had moved in with
Mr. Lewis. However, this occurred two months before the filing of the final decree and
shared parenting plan, to which Mr. Haskett was a signatory. As the statute makes
clear, any change of circumstances must arise since the prior decree in order to meet
the first prong of the analysis. Furthermore, and as we have repeatedly held, a best
interest detеrmination will not take place unless and until the movant has demonstrated
a change in circumstances. See, e.g., Stevenson v. Kotnik , 11th Dist. No. 2010-L-063,
with him, and that this constitutes a sufficient change in circumstances. The trial record is devoid of evidence on this point. Further, “the wishes of the child are only one factor that the trial court shall consider in determining the best interest of the child,” they are not necessarily a circumstantial trigger. Stevenson at ¶52. Credible and competent evidence exists to support the trial court’s
determination. Mr. Haskett failed to prove a change of circumstances had occurred *13 since the prior decree, therefore the trial court was not obliged to continue on with a best interests analysis. Assignment of error four is without merit.
Appointment of the GAL
In his third and fifth assignments of error, Mr. Haskett argues that the trial
court erred in limiting the role of the GAL to the in camera reviеw portion of the
proceedings. However, Mr. Haskett fails to elucidate how the GAL should have been
involved and in what way the trial court impermissibly limited the GAL’s participation.
He seems to suggest that the GAL was also appointed as counsel for the minor
children, however, there is no evidence in the record of this appointment. “[A]bsent an
express dual appointment, cоurts should not presume a dual appointment when the
appointed guardian ad litem is also an attorney.” In re Janie M.,
not request a GAL be appointed. Mrs. Haskett, two weeks before trial, was the one to
file a motion requesting the GAL’s appointment. The trial court granted the motion, but
limited the appointment to the purpose of being present during the in camera interview.
Regardless of Mr. Haskett’s criticisms regarding the GAL’s role or lack
thereof, the issue is moot. Mr. Haskett was unable to demonstrate that a change of
circumstances had occurred, which is the trigger for a full best interests investigation
under
DIANE V. GRENDELL, J.,
CYNTHIA WESTCOTT RICE, J.,
concur.