657 N.E.2d 580 | Ohio Ct. App. | 1995
Lead Opinion
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *570 Appellant, Dechantel M. Jacobs, n.k.a. Stewart, appeals an order from the Wayne County Court of Common Pleas. The order adopted the report and recommendation of its referee that the visitation schedule, under which appellant and appellee, Gerald G. Jacobs, had conducted visitation of their son since their dissolution, be modified in accordance with the standard visitation order of the court. We reverse and remand for further proceedings.
Appellant and appellee were married on March 3, 1984. One child, Gerad, was born to them on August 13, 1984. On February 5, 1987, when Gerad was two and one-half years old, the parties ended their marriage by dissolution. Pursuant to the separation agreement, which was adopted by the court, appellant assumed custody of Gerad and appellee was granted visitation every other weekend from Friday evening until Sunday evening, every other legal holiday (including Gerad's birthday), and three or more weeks of the summer as agreed by the parties. Over the course of the next seven years, the parties abided by the visitation schedule except that instead of alternating holidays, they agreed to share them. *571
On April 11, 1994, appellee moved the court to modify and extend his visitation rights to accord with Loc.R. 14 of the Court of Common Pleas of Wayne County, which contains the court's standard visitation schedule. In addition to visitation on every other weekend, Loc.R. 14 provides for a Wednesday visitation from 5:30 p.m. until 7:30 p.m. (during the school year) or until 9:00 p.m. (during school vacation periods). The rule provides six weeks of visitation during the summer months, as compared with the three weeks allotted to appellee under the agreed visitation schedule. Whereas the parties shared holidays with Gerad, including his birthday, Loc.R. 14 requires parents to alternate holidays with the child and requires the child to spend his birthdays with the parent in whose home he happens to be on that date.
A hearing on the motion was held and the referee recommended that the standard visitation order be adopted. The trial court overruled objections filed by appellant and adopted the referee's report and recommendation.
Appellant appeals the trial court's order and assigns three errors. The assignments of error are interrelated; accordingly, we address them together.
"[II.] The Trial Court erred as a matter of law in modifying the prior decree regarding parental rights and responsibilities without making any finding pursuant to Section
"[III.] The Trial Court abused its discretion when it ordered a modification in the Appellee's visitation rights despite expert testimony that such a modification would have an adverse effect on the mental and physical health of the parties' minor child."
We must first determine the proper standard to be applied when a court is moved to modify a prior visitation order. Appellant argues that a visitation order cannot be modified unless the court finds, pursuant to R.C.
Our decision rests upon statutory construction because the statutes involved do not expressly address modification of visitation orders. We recognize certain well settled rules that apply to statutory construction. In particular, the polestar of statutory interpretation is legislative intent to be determined from the words employed by the General Assembly as well as the purpose to be accomplished by the statute. State v. Elam (1994),
Appleby was decided in 1986. At that time, R.C.
On May 31, 1990, R.C.
"(A) The court may make any just and reasonable order or decree permitting any parent who is deprived of the care, custody, and control of a child to visit the child at the time and under the conditions that the court directs; however, no such order or decree shall be made if the court determines that it would not be in the best interest of the child to permit that parent to visit the child." Id. at 1965-1966.
The first revision of R.C.
"(A) If a divorce, dissolution, legal separation, or annulment proceeding involves a child * * *, the court * * *, in accordance with division (C) of this section, shall make a just and reasonable order or decree permitting each parent *574 who is not the residential parent to visit the child at the time and under the conditions that the court directs, unless the court determines that it would not be in the best interest of the child * * *. The court shall include in its final decree a specific schedule of visitation for that parent.
* * *
"(C) When determining whether to grant * * * visitation rights to a parent, * * * when establishing a specific visitation schedule, and when determining other visitation matters under this section * * *, the court shall consider all other relevant factors, including, but not limited to, all of the factors listed in division (D) of this section. * * *"
It is our conclusion that R.C.
Subsection (B)(1) of R.C.
The omission does not appear to have been an oversight. At the same time that R.C.
"The court shall not modify a prior decree allocatingparental rights and responsibilities for the care of children unless it finds, 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 a change has occurred in the circumstances of the child [or] his *576 residential parent * * *, and that the modification is necessary to serve the best interest of the child." (Emphasis added.)
By legislative definition, therefore, this subsection applies to the modification of prior orders regarding visitation. Whereas R.C.
Our conclusion is bolstered by other language in R.C.
The General Assembly has also shown that application of particular rules may apply beyond visitation matters decided "under the section," to matters which resolve "any issues related to the making of any determination with respect to visitation rights or the establishment of any specific visitation schedule." R.C.
Finally, application of R.C.
In addition, by imposing this requirement on modification of parental visitation rights, we render uniform the requirements applicable to modification of custody, *577
support and visitation orders — the principal areas of domestic relations law that affect children. Uniformity will hopefully nurture consistency in result. We note, as a practical matter, that some courts have already reached a similar result by imposing a burden of proof on the movant in a modification proceeding to show that the prior visitation order is no longer in the best interest of the child. See, e.g., Bodine v. Bodine
(1988),
Having concluded that R.C.
As appellee asserts, it is well settled that a trial court has considerable discretion to decide domestic relations issues, including visitation. Appleby,
Contrary to appellee's assertion, however, a per se rule is incompatible with statutory dictates. R.C.
The referee in this case found that there was a change in circumstances sufficient to justify modification of the prior visitation schedule. The change in circumstances apparent from the record were the change in Gerad's age, from two and one-half to nine years old, appellee's desire to spend more time with his child, and a de facto modification of the prior holiday visitation schedule. While recognizing that the court had considerable discretion in adopting the referee's report and recommendation, we cannot agree that these facts were sufficient to justify modification of the order.
First, under R.C.
Third, the parties' mutual agreement to change the prior visitation order does not justify imposition of an entirely different schedule. The record shows that the parties agreed to share holidays, including Gerad's birthday, rather than alternate these days. Imposition of the standard visitation order returned the parties to an arrangement, alternating holidays, that had proven unsatisfactory to them at the outset. It also entirely deprived one parent of time with Gerad on his birthday, contrary to the parties' agreement that birthdays be shared. The parties' agreement to modify a prior visitation schedule may be a sufficient change of circumstances to justify a court's modification of the schedule to conform with that agreement, provided it is in the best interest of the child. The agreement, however, should not be used as a change in circumstances that justifies discontinuation of the entire visitation schedule without reference to the parties' mutually demonstrated desires. The referee's decision in this case effectively penalized appellant for deviating from the prior schedule in order to facilitate visitation. We prefer to encourage the amicable resolution of parental disputes in visitation matters rather than penalize those who have made efforts to compromise.
Appellant's first assignment of error is well taken. The court abused its discretion when it modified the prior visitation order and imposed the standard *579
visitation order without evidence that there had been a sufficient change in circumstances as required by R.C.
We further conclude that the court erred by not making a determination that modification was in Gerad's best interest. R.C.
The referee interviewed Gerad, who expressed his opposition to a change in the visitation schedule. The only reason Gerad could verbalize was that he would miss his little sister. The referee was concerned that Gerad was echoing his mother's desires. He asked Gerad a number of questions that were aimed at evoking a response to confirm these concerns; Gerad continued to express the desire that the schedule remain the same regardless of his mother's wishes. R.C.
We are also concerned that the referee adopted the standard order despite an express determination that imposition of Wednesday night visitation per the order was "unfair." The circumstances were such that, if midweek visitation were ordered, Gerad would be required to spend one and one-half hours in the car in order to spend an additional one-half hour of visitation per week with his father at his father's residence. The referee indicated that, if this proved unacceptable, the parties could always seek further modification. We cannot perceive how the availability of further recourse to the courts justifies the initial imposition of an unfair order.
Finally, we find error in the failure of the referee to consider the uncontroverted testimony of Gerad's treating psychologist in regard to his physical and mental health. As noted above, R.C.
"She indicates the child also told her that expanded visitation would mean he would miss his sister. He would also miss his mother. She testified the child told her that the schedule has worked for the past few years and he sees no reason to change it. Again, although [appellant] testified she has not specifically talked to the child regarding her objections, the child seems to be echoing his mother's words with regard to her objections."
At the outset, we note that the psychologist reported that Gerad had stated to her that he did not want changes in summer visitation because "that'd be longer than I ever went" and that he did not like the change in holiday schedules because "it's been the same a lot of years." Gerad did not employ the same words used by his mother. Instead, these statements to the psychologist were consistent with the concerns that Gerad expressed to the referee in his interview in chambers. Significantly, the statements do not contradict the psychologist's conclusions about Gerad's mental health. While we recognize that a court has considerable discretion to reject the recommendation of an expert, we find that the court abused its discretion in this case when it ignored the only evidence submitted on Gerad's mental health, a factor which the court is required, by statute, to consider. Compare Frost v. Frost
(1992),
Appellant's second and third assignments of error are well taken. The trial court erred and abused its discretion in modifying the prior visitation order without making a determination that modification of the prior schedule was necessary to serve Gerad's best interest and without considering expert testimony concerning the child's mental health.
The trial court's judgment is reversed. We are aware that circumstances may have changed since the hearing in this case was conducted approximately ten months ago and since the trial court's judgment was entered eight months ago. Accordingly, we remand this case to the trial court for further proceedings and reconsideration in light of this opinion.
Judgment reversed and cause remanded.
BAIRD, P.J., concurs.
QUILLIN, J., dissents.
Dissenting Opinion
The trial court found that "there has been a change in circumstances to warrant a modification of the visitation schedule." I would defer to the trial court's judgment.
