Lead Opinion
¶ 2} The parties were married in 1989. The marriage produced one child, Dillan, born in 1995. In 2002, the marriage was terminated by dissolution. By agreement of the parties, appellant-mother was designated the residential parent.
¶ 3} In 2004, appellee-father filed a motion to modify the allocation of parental rights and responsibilities. Thereafter, appellee filed a motion requesting that the trial court conduct an in camera interview of Dillan. However, appellee later withdrew this motion, and the interview was not conducted.
¶ 4} On November 9, 2004, an evidentiary hearing was held before the magistrate on appellee's motion to modify the allocation of parental rights and responsibilities. Appellee was represented by counsel at the hearing, while appellant proceeded pro se. The evidence from the hearing demonstrated that both parties loved and cared for Dillan. Further, the magistrate found that appellant had facilitated visitation between Dillan and appellеe.
¶ 5} At the hearing, appellee testified he was employed as a deputy sheriff with the Geauga County Sheriff's Office. He has remarried and lives in Parkman Township with his new wife and her children.
¶ 6} At the time of the hearing, appellant was living with her fiancé, Scott Nadock ("Nadock"), in Cleveland Hеights. She and Nadock receive free rent in exchange for working at an apartment complex. She has lived in several locations with Dillan and Nadock following the dissolution of the marriage. Prior to their current residence, appellant and Nadock were evicted from two separate residences for failing to pay rent.
¶ 7} Nadock has a criminal history. He has spent time in prison and been convicted of several crimes, including: attempted felonious assault, escape, and drug charges. In addition, appellant was cоnvicted of obstruction of justice for an event related to Nadock. In that event, Nadock abandoned appellant's vehicle after a single-car accident. When the police investigated the incident, appellant told them an unknown individual was driving the car because she did not want Nadock, who was not permitted to drive, to get in trouble.
¶ 8} On November 10, 2004, the magistrate issued her decision, recommending that appellee be designated the residential parent of Dillan. The magistrate found that a change of circumstances occurred with respect to Dillan and appellant. Appellant filed objections to the magistrate's decision. In addition to arguing that the magistrate failed to properly consider the requisite factors in R.C.
¶ 9} Appellant raises three assignments of error. We will address her assigned errors out of numericаl order. Her third assignment of error is:
¶ 10} "The trial court erred and/or abused its discretion to the detriment of appellant and the minor child by failing to appoint a guardian ad litem to represent the interests of the minor child."
¶ 11} Appellant claims the trial court erred by failing to apрoint a guardian ad litem to represent Dillan's interests.
¶ 12} "(B)(1) When making the allocation of the parental rights and responsibilities for the care of the children under this section in an original proceeding or in any proceeding for modification of a prior order of the court making the allocation, the court shall take into account that which would be in the best interest of the children. In determining the child's best interest for purposes of making its allocation of the parental rights and responsibilities for the care of the child and for purposеs of resolving any issues related to the making of that allocation, the court, in its discretion, may and, upon therequest of either party, shall interview in chambers any or allof the involved children regarding their wishes and concerns withrespect to the allocation. ¶ 13} "(2) If the court interviews any child pursuant to division (B)(1) of this section, all of the following apply:
¶ 14} "(a) The court, in its discretion, may and, upon themotion of either parent, shall appoint a guardian ad litem forthe child.
¶ 15} "[subsections (b) and (c) are inapplicable.]"1
¶ 16} Generally, a trial court is only required to appoint a guardian ad litem if such an appointment is designated by statute or rule.2 In this matter, R.C.
¶ 18} The trial court may conduct an in camera interview of a minor child without eithеr of the parties requesting one.6 However, if one the parties does request an in camera interview of the minor child, the trial court is required to conduct such an interview.7
¶ 19} Appellee requested an in camera interview of the child, but he withdrew this motion. There were no other requests for an in camera interview from either party. Without a request for an in camera interview of the child, the decision to conduct such an interview was within the discretion of the trial court.8
Accordingly, such a decision will not be reversed unless there is a showing of an abuse of discretion.9 "The term `abuse of discretion' connotes more than an error of law or judgment; it implies that the court's attitude is unreasonable, arbitrary or unreasonable."10
¶ 20} The trial court's actions were unfair to appellant. Appellant was acting under the assumption that appellee's motion for an in camera interview was sufficient to ensure that the interview would take place. This belief was supported by statute, in that R.C.
¶ 21} The day after the hearing, appellee filed a motion to withdraw his request for an in camera interview of Dillan. Appellee's motion to withdraw his request was filed at 1:44 p.m. on November 10, 2004. The magistrate issued her final decision in this matter at 3:46 p.m. on November 10, 2004. Appellee's notice of withdrawal of his motion for an in camera interview of Dillan was handwritten on a yellow papеr, torn from a legal pad. Attached to the motion was a handwritten certificate of service indicating that a copy of the pleading was mailed to appellant by regular U.S. Mail. The certificate of service does not contain a date that the document was mailed to appellant. Appellant did not have an opportunity to file her own request for an in camera interview following the withdrawal of appellee's motion. This timeline of events strongly suggests the magistrate acted arbitrarily by issuing her decision only hours after aрpellee filed his withdrawal notice.
¶ 22} At the hearing, everyone was acting under the belief that an in camera interview would occur. However, the very next day, the magistrate issued her decision without conducting an interview. Ultimately, Dillan's wishes and concerns about where he was gоing to live may or may not have affected the trial court's decision. However, the legislature has set forth a specific means for children to express their wishes and has required that trial courts consider the child's wishes.11 Therefore, the trial court acted arbitrarily by determining that an in camera interview was not necessary and not permitting appellant to request that such an interview occur, after appellee withdrew his motion on the eve of the magistrate's decision.
¶ 23} The magistrate abused her discretion by issuing her decision without conducting аn in camera interview of the child or providing appellant the opportunity to request an interview.
¶ 24} Appellant's third assignment of error has merit to the extent indicated.
¶ 25} Her first and second assignments of error are:
¶ 26} "[1.] The trial court erred and/or abused its discretion to the prejudice of appellant by not considеring all relevant factors as mandated under O.R.C. Section
¶ 27} "[2.] The trial court erred and/or abused its discretion to the detriment of appellant in finding that there was a change in circumstаnces which had an impact on the minor child sufficient enough to support a modification of custody."
¶ 28} Both of these assigned errors challenge the trial court's ultimate decision regarding the change of residential parent status. We are remanding this matter to the trial court to allow appellant to file a request for an in camera interview. If such an interview is conducted, the trial court is required to consider Dillan's wishes, pursuant to R.C.
¶ 29} Appellant's first and second assignments of error are moot.
¶ 30} The judgment of the trial court is reversed. This matter is remanded for further proceedings consistent with this opinion.
O'Toole, J., concurs in judgment only,
Grendell, J., dissents with Dissenting Opinion.
Notes
Dissenting Opinion
¶ 31} I respectfully dissent from the decision of the majority.
¶ 32} "The discretion which a trial court enjoys in custody matters should be accorded the utmost respect, given the nature of the proceeding and the impact the court's determination will have on the lives of the parties concerned." Miller v. Miller
(1988),
¶ 33} The majority opinion finds the conduct of the magistrate in issuing her decision the same day that appellee withdrew his motion for an in camera interview to be arbitrary. The magistrate's decision is not arbitrary.
¶ 34} On August 17, 2004, the magistrate set the hearing date on appellant's Motion to Modify Allocation of Parental Rights and Responsibilities for November 9, 2004. During the next two months, neither party thought it necessary to motion the court for an in camera interview of the child, to motion the court to appoint a guardian ad litem for the child, or to motion the court for a psychological evaluation of the child. Less than two wеeks prior to the hearing, on October 28, 2004, appellee filed a motion for an in camera interview of the child.
¶ 35} At the conclusion of the November 9, 2004 hearing, the magistrate announced that she would try to render her decision by the end of the week, "hopefully by tomorrow even," i.e., November 10, 2004. However, appellee's counsel stated that she "thinks" they still wanted an in camera interview of the child. The magistrate attempted to fix a day for the interview with appellant, who had custody of the child. Appellant was unable to provide the magistrate with a date, since she did not have a car and would have to make arrangements with her cousin for transportation. The hearing was adjourned without a date being set for the in camera interview.
¶ 36} The next day, counsel for appellee withdrew appellee's motion for an in camera interview, which allowed the magistrate to render her decision as the magistrate had intended. This was not an arbitrary act, but merely the magistrate doing what she had told the parties she hoped to do.
¶ 37} The majority objects that appellant was deprived of the opportunity of moving for an in camera interview herself. This is not true. Appellant had over two months to move for an in camera interview if she thought it necessary. In her filed objections to the magistrate's decision, appellant argued that not only did the magistrate fail to conduct an in camera interview, but also failed to appoint a guardian ad litem and order a psychological evaluation. Clearly, appellant was not specifically relying on an in camera interview being held any more than she was relying on a guаrdian ad litem or a psychological evaluation. Appellant is only trying to take advantage of the fact that the appellee moved, and then withdrew the motion for an in camera interview so as to be able to raise an issue on appeal.
¶ 38} I find nothing arbitrary or inherently unfair about the magistrate's actions. Accordingly, I dissent.