In re N.M.
Rendered on the 15th day of October, 2010.
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JACK HARRISON, Atty. Reg. No. 0005076, 130 West Second Street, Suite 604, Dayton, Ohio 45402
Attorney for Plaintiff-Appellant
H. CHARLES WAGNER, Atty. Reg. No. 0031050, 424 Patterson Road, Dayton, Ohio 45419
Attorney for Defendant-Appellee
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DONOVAN, P.J.
{¶ 1} This matter is before the Court on the Notice of Appeal of Michael J. McCormick, filed June 16, 2010. On July 28, 2008, McCormick filed, in juvenile court, a Complaint to Establish Paternity, Support, and Allocation of Parental Rights regarding N.M., his son, whose date of birth is December 13, 2005. Lisa Freeman
{¶ 2} On May 15, 2009, Freeman filed a “Motion for Allocation of Parental Rights and Responsibilities; Motion to Terminate Shared Parenting Plan; Motion to Relocate; and Motion to Change Name.” Freeman sought to become the sole custodial parent of N.M. and to relocate to Tennessee.
{¶ 3} A Guardian ad Litem (“GAL“) was appointed, and after meeting with N.M. and Freeman at Freeman’s home, and also with McCormick, the GAL recommended that the motion to terminate the shared parenting plan be denied, that the motion to relocate be granted, and that the shared parenting plan be modified to grant McCormick seven weeks of parenting time in the summer and “every extended 3 day weekend during the school year.”
{¶ 4} At the hearing on Freeman’s motions, the following witnesses testified: Freeman; the GAL; Lora Freeman, Freeman’s mother; Linda McCormick, McCormick’s mother; Rhonda Myers, McCormick’s sister; and McCormick. According to Freeman, the parties agreed in mediation that McCormick was entitled to visitation consistent with the standard order of parenting time, namely every Wednesday and every other weekend. She stated that McCormick did not consistently exercise his rights until “recently.” Freeman asserted that she takes N.M. to his doctor and dentist appointments and has been primarily responsible for
{¶ 5} Freeman’s mother testified that she lived in Columbus, Ohio from 2004 to 2006, and that Freeman moved from San Diego, California to Ohio to be closer to her in 2005. Freeman’s mother next moved to Texas for employment reasons, and she moved again “as soon as she was able to find a job in the Tennessee area.”
{¶ 6} McCormick is a third grade teacher in the Miamisburg school district. He testified that he, too, has a tremendous support system from his family. He stated that while the previous year he also coached varsity football, freshman football, varsity swimming and freshman baseball, he “quit everything. * * * [N.M.] is number one. He will always be number one. And if that’s what it takes, that’s not even an issue at all. Coaching is done.” McCormick admitted that he has not
{¶ 7} The GAL testified that he met with Freeman and N.M. at their home, and with McCormick, and that Freeman and McCormick each indicted that “the other parent is a good parent.” He further stated that in the period of time from the previous allocation of parental rights until the present, “mother has been the major parenting individual in [N.M.’s] life.
{¶ 8} “[N.M.] spends his days and evenings at the mother’s home, other than when visitation occurs with father, which is basic standard order.” While he testified that it would be in N.M.’s best interest for Freeman to have custody, he stated, “if I could, I would have * * * the family stay together and stay close so that they could experience everything together. This is a family that that can’t happen in.”
{¶ 9} Following the hearing, the Magistrate granted legal custody of N.M. to Freeman, finding a “change of circumstances based on the father’s failure to abide by the terms of shared parenting.” The magistrate further found that it was in N.M’s best interest to be in Freeman’s legal custody, citing in particular the factors in
{¶ 10} McCormick filed objections to the Magistrate’s decision on December 16, 2009, along with a motion to restrain Freeman from relocating to Tennessee
{¶ 11} On May 25, 2010, the trial court overruled McCormick’s objections and adopted the decision of the Magistrate, noting that the parties’ inability to agree to shared parenting “represents a change in circumstance no longer in the best interest of” N.M. It was significant to the trial court that Freeman served as N.M.’s primary caretaker.
{¶ 12} McCormick asserts three assignments of error. His first assignment of error is as follows:
{¶ 13} “THE CHILD’S BEST INTEREST WAS NOT EXAMINED OR DETERMINED AT THE NOVEMBER 18, 2009 HEARING.”
{¶ 14} We initially note, when a juvenile court rules on objections to a magistrate’s decision, “the court shall undertake an independent review as to the objected matters to ascertain that the magistrate has properly determined the factual issues and appropriately applied the law.”
{¶ 15} “‘Abuse of discretion’ has been defined as an attitude that is unreasonable, arbitrary or unconscionable. (Internal citation omitted). It is to be expected that most instances of abuse of discretion will result in decisions that are simply unreasonable, rather than decisions that are unconscionable or arbitrary.
{¶ 16} “A decision is unreasonable if there is no sound reasoning process that would support that decision. It is not enough that the reviewing court, were it deciding the issue de novo, would not have found that reasoning process to be persuasive, perhaps in view of countervailing reasoning processes that would support a contrary result.” AAAA Enterprises, Inc. v. River Place Community Redevelopment (1990), 50 Ohio St.3d 157, 161.
{¶ 17}
{¶ 18} ” * * *
{¶ 19} “(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.”
{¶ 20}
{¶ 21}
{¶ 22} Pursuant to
{¶ 23} “When determining the best interest of the child or children in allocating parental rights and responsibilities, in addition to the specific statutory factors in
{¶ 24} We initially note that McCormick’s assertion in his brief, that “the Child’s Maternal Grandmother follows her job around the Country and the Daughter/Mother follows her Mother, from Dallas to San Diego to Columbus and Alabama” is a misrepresentation of the facts adduced herein. Freeman did not follow her mother to Dallas, and her mother lives in Tennessee, not Alabama.
{¶ 25} We further note that
{¶ 26} Having thoroughly reviewed the judgment of the trial court, which repeatedly and specifically cites to the transcript of the hearing herein, it is clear that the court considered all of the relevant factors to determine N.M.’s best interest. The trial court initially noted that both parents sought custody.
{¶ 27} The trial court noted that N.M.’s GAL recommended “a modified shared parenting agreement to maximize parenting time with both parents. However, the court notes that Ms. Freeman and Mr. McCormick could not reach an agreement regarding parental rights and responsibilities.” After considering all relevant factors, the trial court determined in part “that the parties no longer agree to the November 6, 2008 shared parenting agreement. Said divergence represents a change in circumstances no longer in the best interest of said child.
{¶ 28} Finally, we disagree with McCormick’s assertion that “the motive for moving was simply triggered by the custodial parent[’]s selfish desire to be with someone else, a personal desire not related to the child’s best interest,” in reliance upon Duning v. Streck, Warren App. Nos. CA2001-06-061, CA2001-06-062, 2002-Ohio-3167. In Duning, the mother was designated as the child’s residential parent, while the father was awarded parenting time. Upon learning that the mother intended to move to Seattle, Washington, to be with a former boyfriend, the father sought custody. The trial court’s decision denying the father’s motion to modify parental rights was reversed on appeal. It was significant to the Twelfth District that the mother signed an offer of employment in Seattle on the same day the agreed entry regarding parental rights was filed, but that she concealed the
{¶ 29} There being no abuse of discretion in the juvenile court’s allocation of parental rights, McCormick’s first assigned error is overruled.
{¶ 30} McCormick’s second assigned error is as follows:
{¶ 31} “INEFFECTIVE ASSISTANCE OF COUNSEL.”
{¶ 32} “The
{¶ 33} McCormick’s third assigned error is as follows:
{¶ 34} “THE GAL REPORT WHICH FAVORED THE MOTHER WAS GROSSLY FLAWED.”
{¶ 35} According to McCormick, the “GAL admits the move is for the best interest of Mother; he lamely states its [sic] good for the child but pointedly gives no reason * * * . Moreover, the Report indicates no thoroughgoing [sic] probe or inquiry of the Child’s ‘best interest,’ in fact no enquiry at all.
{¶ 36} “Finally, the GAL Report reveals an essential failure in that there was no time taken to evaluate the Father’s home and environment with or without the child.”
{¶ 37} We initially note that the trial court disregarded the GAL’s recommendation to modify the shared parenting plan. While both parties sought full custody of N.M., the GAL’s recommendation that the shared parenting plan be modified, with greater rights to visitation awarded to McCormick, attests to the GAL’s approval of McCormick’s capabilities as a parent.
{¶ 38}
{¶ 39} In his first set of objections, McCormick asserted, without elaboration, that “The GAL’s investigation of the family relationships was woefully inadequate.” His subsequently filed “particularized” objections did not address the GAL’s actions or report, and the trial court did not address his initial, unspecific challenge in its decision overruling McCormick’s objections. We conclude that McCormick did not preserve for appeal the issue of the GAL’s report. Even if we were to find that no waiver occurred, the GAL testified at the hearing regarding his actions and report, and McCormick was able to cross-examine him. The GAL testified that he did not investigate McCormick’s home because neither party “indicated that there were any problems with the residence.” In other words, his residence was not a factor that weighed against McCormick, nor was it a determinative factor in the reallocation of parental rights. McCormick does not assert how further investigation by the GAL would have served a useful purpose. Finally, as discussed above, the evidence in the record demonstrates that terminating the shared parenting plan and awarding custody to Freeman, N.M.’s primary caregiver, is in N.M’s best interest.
{¶ 40} There being no merit to McCormick’s third assigned error, it is overruled.
{¶ 41} The judgment of the trial court is affirmed.
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FAIN, J. and FROELICH, J., concur.
Copies mailed to:
H. Charles Wagner
Hon. Nick Kuntz