IN RE: H.Y.
Appellate Case No. 26082
Trial Court Case No. 2012-1234
IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT MONTGOMERY COUNTY
June 20, 2014
2014-Ohio-2674
WELBAUM, J.
Rendered on the 20th day of June, 2014.
JAMES R. KIRKLAND, Atty. Reg. No. 0009731, 130 West Second Street, Suite 840, Dayton, Ohio 45402 Attorney for Appellant
CHRISTOPHER B. EPLEY, Atty. Reg. No. 0070981, 100 East Third Street, Suite 400, Dayton, Ohio 45402 Attorney for Appellee
{¶ 2} We conclude that the trial court did not abuse its discretion in overruling the motion for new trial.
{¶ 3} Accordingly, the judgment of the trial court will be affirmed.
I. Facts and Course of Proceedings
{¶ 4} The minor child, H.Y., was born in Montana on December 20, 2007. At that time, her parents were not married. Aaron was in the Air Force, and was stationed in Montana, where he had met Brittany, who had lived in Montana all her life. Aaron and Brittany began
{¶ 5} Aaron and Brittany moved to Xenia, Ohio, in April 2009, and then moved into a home that Aaron had purchased in Clayton, Ohio, in April 2010. Aaron had been raised in Springfield, Ohio, and his parents and sister still lived in Springfield at the time of the custody hearing. Brittany had no relatives in the area; her relatives were located in various states, primarily in the West. Prior to the move to Clayton, Aaron and Brittany discussed potential school systems for their daughter, and the excellent Northmont public school system was a factor in their decision to move to Clayton.
{¶ 6} In October 2010, Aaron decided that he did not want to be in a relationship with Brittany anymore. Brittany became hysterical and begged him not to break up with her. When he remained firm that he no longer wished to continue the relationship, Brittany ran into the kitchen, grabbed a knife, and threatened to kill herself. Both parties testified that Brittany was acting irrationally.1 Brittany also admitted that she had depression issues, but stated that she had not been on medication since 2008 or 2009. When Brittany threatened to commit suicide, Aaron did not call 911, because Brittany had threatened to commit suicide so many times previously.
{¶ 7} On New Year‘s Eve, 2010, Aaron and Brittany had been separated about three
{¶ 8} After the parties’ separation in October 2010, Brittany and Aaron exercised equal parenting time with H.Y. Brittany then joined the Air Force, and was sent to Florida and Texas in May 2011 for training. At that time, Aaron was no longer in the Air Force, and was working as a civilian employee at Wright Patterson Air Force Base (WPAFB). During the nine months that Brittany was out of state, from May 2011 through February 2012, Aaron had custody of H.Y., with Brittany‘s agreement. During that time, Brittany called H.Y. only once a week or every ten days, and returned home once, for a week, in December 2011.
{¶ 9} In February 2012, Aaron filed a petition in juvenile court, seeking legal custody of H.Y. From April through September 2012, the parties mostly followed a joint custody agreement, with Aaron having H.Y. at least fifty percent of the time. Aaron testified that when they disagreed, Brittany would threaten him with the standard order of visitation.
{¶ 10} A Guardian ad Litem (GAL) was appointed, and issued a report on November 1, 2012. The GAL visited both homes and interviewed both parents. He was also able to observe the child with all parties. The GAL noted that Aaron had asked Brittany to enter into shared
{¶ 11} After summarizing his observations of the parties and their homes, the GAL recommended that Aaron be designated residential parent and legal custodian. The GAL noted that Aaron had been very involved in H.Y.‘s life since she was born, was sole custodian when Brittany was out of state, and continued to maintain regular contact after Brittany returned. In addition, the GAL noted that Aaron had owned his own home for two and a half years, had maintained stable employment, and was married. In contrast, Brittany had no family in the area and was more likely than Aaron to move from the area. Finally, the GAL stated that he had considered the schools in Aaron‘s district as opposed to those in Brittany‘s district.
{¶ 12} On November 6, 2012, a magistrate held an evidentiary hearing. Following the hearing, the magistrate issued a decision awarding legal custody of H.Y. to Aaron, with parenting time granted to Brittany as agreed by the parties. However, if the parties could not agree, Brittany would exercise parenting time per the standard order of the court. The magistrate also concluded that Brittany should pay child support of $282.11 per month as long as she provided health insurance for H.Y.
{¶ 13} In December 2012, Brittany filed objections to the magistrate‘s decision. She also requested that the magistrate file proposed findings of fact and conclusions of law, and submitted her own proposed findings and conclusions. Aaron filed his proposed findings of fact and conclusions of law, which the magistrate adopted on December 11, 2012.
{¶ 15} A different magistrate was assigned to the case in January 2013. In June 2013, Brittany filed a motion for new trial. The motion was based on the fact that the magistrate who heard the testimony had been removed from the juvenile court bench, and would be unwilling or unable to comply with the court‘s order. In addition, Brittany filed supplemental objections to the magistrate‘s decision. In January 2014, the trial court issued a decision overruling Brittany‘s objections to the magistrate‘s decision. The court also overruled the request for a new trial. Brittany appeals from the judgment overruling her objections and overruling the motion for new trial.
II. Did the Court Err in Denying the Request for a New Trial?
{¶ 16} Brittany‘s First Assignment of Error states that:
The Trial Court Committed Irreversible [sic] Error When It Denied Mother‘s Request for a New Trial Based on the Removal of the Magistrate.
{¶ 17} Under this assignment of error, Brittany contends that she should have been granted a new trial due to irregularities in the proceedings, including the removal of the magistrate who originally heard the case. In this regard, Brittany argues that she cannot ascertain
{¶ 18}
{¶ 19} The magistrate in the case before us was removed from the bench after the custody decision was issued. As noted, Brittany contends that, based on this fact, a new trial should have been granted under
If for any reason the judge before whom an action has been tried is unable to perform the duties to be performed by the court after a verdict is returned or findings of fact and conclusions of law are filed, another judge designated by the administrative judge, or in the case of a single-judge division by the Chief Justice of the Supreme Court, may perform those duties; but if such other judge is satisfied that he cannot perform those duties, he may in his discretion grant a new trial.
{¶ 20} In interpreting this rule, courts have held that “a successor judge could not
{¶ 21} However, ”
{¶ 22} In Hartt, the Supreme Court of Ohio explained that:
[T]he procedural safeguards of
Civ.R. 53 address the concerns that underlieCiv.R. 63 . * * * A replacement judge‘s familiarity with the case is important because the judge‘s rulings finally determine the rights of the parties, subject only to appeal. A referee‘s findings and rulings, however, are advisory only and subject to the independent review and approval of the court.Civ.R. 53(E)(5) . We do not suggest that a referee has no duty to become familiar with a referred case.Civ.R. 53(E)(2) and (6), allowing objections to a referee‘s report, safeguard against referees who fail to become conversant with the factual context of a case.
{¶ 23} Consistent with Hartt, the trial court noted in its decision that under
{¶ 24} In view of the preceding discussion, we find no abuse of discretion on the part of the trial court. As a further matter, we note that the magistrate did, in fact, file findings of fact and conclusions of law in December 2012, shortly after the hearing. As a result, the parties were able to understand the basis of the magistrate‘s decision and to formulate objections.
{¶ 25} Accordingly, the First Assignment of Error is overruled.
III. Did the Trial Court Err in Awarding Custody to the Father?
{¶ 26} Brittany‘s Second Assignment of Error states that:
Appellant Has Been the Primary Care-giver of the Child Since Birth and Should Continue as Sole Custodian. A Decision Contrary Is Arbitrary, Unconscionable, and Unreasonable.
{¶ 27} Under this assignment of error, Brittany contends that the trial court erred in awarding custody to Aaron because she had been H.Y.‘s primary care-giver since birth, and changing the child‘s circumstances was arbitrary, unconscionable, and unreasonable.
{¶ 28} The case before us concerns an initial custody determination involving an unmarried mother.
An unmarried female who gives birth to a child is the sole residential parent and legal custodian of the child until a court of competent jurisdiction issues an order designating another person as the residential parent and legal custodian. A court designating the residential parent and legal custodian of a child
described in this section shall treat the mother and father as standing upon an equality when making the designation.
{¶ 29} As a result, the court was required to treat Brittany and Aaron on an equal basis when designating custody. Brittany was not entitled to preferential treatment as the birth mother. More importantly, Brittany is incorrect in stating that she was the primary care-taker for the child. It is true that Aaron was deployed for four months after the child was born. However, upon his return in April 2008 until Brittany entered the Air Force in May 2011, he and Brittany equally parented H.Y. Aaron then had complete care-taking of the child for nine months, through February 2012. When Brittany returned, the parties resumed co-parenting on a reasonably equal basis. Thus, both parents were primary care-takers, and, on balance, Aaron spent more time with H.Y., given the mother‘s almost total absence for nine months.
{¶ 30}
{¶ 31} In evaluating the objections to the magistrate‘s decision, the trial court carefully reviewed the record and discussed each factor in
{¶ 32} Brittany argues that these acts, her threats of suicide, and depression took place long before the custody case, and that she had not demonstrated further instability. However, the acts in question occurred within a few years of the custody hearing, and Aaron did express some concern at the hearing about H.Y.‘s safety when she was with Brittany. This was based on the fact that he was no longer present to have intimate insight into Brittany‘s moods. The magistrate and trial court were entitled to take these facts into consideration. As we stressed, the trial court was not required to give Brittany preference; the parties stood upon an equal footing.
{¶ 33} Based on the preceding discussion, the Second Assignment of Error is overruled.
IV. Did the Trial Court Improperly Apply the R.C. 3109.04(F)(1) Factors?
{¶ 34} Brittany‘s Third Assignment of Error, states as follows:
The Trial Court found the Magistrate Fully Considered What Was in the Child‘s Best Interest and Did Not Rely too Heavily on Appellant‘s Military Service, Past Mental Health Issues, or the Ohio Department of Education School Ratings, [and the Decision] Is Arbitrary, Unreasonable, and Unconscionable.
{¶ 35} Under this assignment of error, Brittany appears to be contending that the trial
{¶ 36} Under the circumstances, we cannot say that the trial court abused its discretion in awarding custody to Aaron. We also do not find that the trial court or the magistrate placed undue emphasis on Brittany‘s military status. As we have noted previously, ” ‘[i]t would be a considerable insult to those in the military service to suggest that their duty postings would be prima facie detrimental to children who live with them.’ ” In re S.W.-S., 2d Dist. Miami No. 2013 CA 17, 2013-Ohio-4823 ¶ 37, quoting In re S.M.T., 8th Dist. Cuyahoga No. 97181, 2012-Ohio-1745, ¶ 23.
{¶ 37} However, neither the magistrate nor the trial court focused on Brittany‘s military status as a negative. Instead, the trial court simply noted that Brittany had family spread across the country. The GAL also noted this fact in indicating that Brittany would be more likely to leave the area than Aaron would.
{¶ 38} We also note that the testimony at the hearing indicated that Brittany was in the Air Force Reserve, that her status for purposes of deployment was voluntary, and that it was unlikely that her unit would be deployed. Thus, her military status was not really a factor.
{¶ 39} Based on the preceding discussion, the Third Assignment of Error is overruled.
{¶ 40} All of Brittany‘s assignments of error having been overruled, the judgment of the trial court is affirmed.
FAIN and HALL, JJ., concur.
Copies mailed to:
James R. Kirkland
Christopher B. Epley
Hon. Anthony Capizzi