TRENDA L. KRILL, NKA JEWELL v. CLINT P. KRILL
CASE NO. 4-13-15
IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT DEFIANCE COUNTY
June 16, 2014
[Cite as Krill v. Krill, 2014-Ohio-2577.]
Appeal from Defiance County Common Pleas Court Domestic Relations Division Trial Court No. 06-DR-38057
Judgment Affirmed
Date of Decision: June 16, 2014
APPEARANCES:
Timothy C. Holtsberry for Appellant
James E. Hitchcock for Appellee
{1} Plaintiff-appellant, Trenda L. Krill, now known as Trenda L. Jewell (“Trenda“), appeals the October 7, 2013 and December 10, 2013 judgment entries of the Defiance County Court of Common Pleas naming defendant-appellee, Clint P. Krill (“Clint“), the residential parent and legal custodian of Trenda and Clint‘s three minor children and ordering that Trenda serve 22 days of a suspended jail sentence for contempt of court. For the reasons that follow, we affirm.
{2} Trenda filed her complaint for divorce on September 1, 2006. (Doc. No. 1). On October 2, 2007, the trial court filed the final judgment entry for divorce, which it supplemented with a judgment entry on November 1, 2007. (Doc. Nos. 27, 28). Under the settlement agreement, attached to and incorporated into the trial court‘s October 2, 2007 judgment entry, Trenda and Clint shared parenting. (Doc. No. 27).
{3} On February 7, 2008, Clint filed a motion for contempt, requesting that the trial court find Trenda in contempt for denying him parenting time. (Doc. No. 29).
{4} On July 3, 2008, the trial court filed a consent judgment entry, in which it found Trenda in contempt but allowed her to purge her contempt by allowing Clint to make up 13 days of parenting time. (Doc. No. 34).
{5} On November 2, 2009, Clint filed his “second motion to show cause,” requesting that the trial court find Trenda in contempt for denying him parenting time. (Doc. No. 35).
{6} On December 18, 2009, the trial court filed a judgment entry finding Trenda in contempt “for her failure to abide by the prior orders of this Court” and ordering that she serve 30 days in jail, with 22 days of that suspended. (Doc. No. 43). The trial court also ordered makeup parenting time for Clint. (Id.). On December 24, 2009, Trenda filed a motion to modify or rescind her incarceration order, which the trial court found moot on January 6, 2010, after Trenda served her jail time. (Doc. Nos. 44, 45).
{7} On February 8, 2011, Clint, pro se, filed a motion for contempt, arguing that Trenda failed to pay his attorney fees and court costs as ordered by the trial court. (Doc. No. 46).
{8} On March 17, 2011, Trenda filed a motion for contempt and motion to modify child support, arguing that Clint failed to pay school expenses and other payments and that the parties’ changed financial circumstances warranted a modification of the child-support order. (Doc. No. 48).
{9} On May 4, 2011, Clint filed an amended motion for contempt, followed by a second amended motion for contempt on May 27, 2011. (Doc. Nos. 49, 53). Each amended motion requested that the trial court, among other things,
{10} On September 8, 2011, Clint filed a motion requesting that the trial court reduce his child-support obligation and grant him an extension of time to raise guardian ad litem (“GAL“) fees. (Doc. No. 54).
{11} On September 16, 2011, the magistrate‘s decision and temporary orders were filed. (Doc. No. 55). The magistrate declined to find Clint in contempt, appointed a GAL, and modified Clint‘s child-support obligation. (Id.). The trial court approved the magistrate‘s decision and temporary orders. (Doc. No. 56).
{12} On October 13, 2011, Clint filed a motion for contempt, arguing that Trenda denied him visitation. (Doc. No. 57).
{13} On February 24, 2012, Clint filed a motion for contempt, arguing that Trenda claimed the parties’ children on her tax return contrary to the trial court‘s order. (Doc. No. 58).
{14} On May 10, 2012, Clint filed a motion requesting, among other things, that the trial court find Trenda in contempt for denying him visitation. (Doc. No. 60).
{15} Following a hearing held on three days—August 24, October 12, and November 2, 2012—Trenda filed her memorandum in opposition to the
{16} On April 8, 2013, the magistrate‘s decision was filed. (Doc. No. 76). The magistrate found that there was a change in the circumstances of the children and their parents, that Clint‘s requested custody modification would serve the children‘s best interests, and that any harm caused by the modification was outweighed by its advantages. (Id.). Based on those findings, the magistrate named Clint the residential parent and legal custodian of the parties’ children and granted Trenda visitation every other weekend during the school year. (Id.). In addition, the magistrate found Trenda in contempt for violating the trial court‘s parenting orders and ordered that she serve the suspended jail sentence of 22 days. (Id.).
{17} On April 22, 2013, Trenda filed objections to the magistrate‘s decision. (Doc. No. 78). Trenda argued that there was no change of circumstances, that it was in the children‘s best interests to remain with Trenda, and that there was no “specific evidence” that the advantages of a custody modification would outweigh the harm. (Id.). Trenda did not object to the portion
{18} On May 30, 2013, Trenda filed a motion for contempt, requesting that the trial court order Clint to show cause why he should not be held in contempt for disallowing Trenda holiday companionship time. (Doc. No. 82). On June 7, 2013, Clint moved to dismiss Trenda‘s motion for contempt. (Doc. No. 84).
{19} On July 18, 2013, Clint filed citations to “important testimony.” (Doc. No. 89). On July 22, 2013, Trenda filed citations supporting her objections to the magistrate‘s decision. (Doc. No. 90).
{20} On October 7, 2013, the trial court overruled Trenda‘s objections to the magistrate‘s decision, concluding that the magistrate correctly determined that there was a change in circumstances, that naming Clint the residential parent and legal custodian would be in the children‘s best interests, and that the benefits of naming Clint the residential parent and legal custodian outweighed any potential harm. (Doc. No. 91).
{21} On December 10, 2013, the trial court filed its judgment entry, which, among other things, named Clint the residential parent and legal custodian,
{22} Trenda filed her notice of appeal on December 30, 2013. (Doc. No. 95). She raises four assignments of error for our review. We will first address, together, Trenda‘s second, third, and fourth assignments of error, followed by her first assignment of error.
Assignment of Error No. II
The trial court‘s finding that it was in the children‘s best interest to be placed with their father is contrary to the facts and the weight of evidence.
Assignment of Error No. III
The trail [sic] court did not make a finding that the best interest factors in
R.C. 3109.04 weighed in the father‘s favor as required by that statute.
Assignment of Error No. IV
The trial court‘s finding that the benefit of placing the children with their father outweighed the harm is contrary to the facts and the weight of evidence.
{23} In her second, third, and fourth assignments of error, Trenda challenges the trial court‘s decision to name Clint the residential parent and legal
{24}
The court shall not modify a prior decree allocating parental 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, the child‘s residential parent, or either of the parents subject to a shared parenting decree, and that the modification is necessary to serve the best interest of the child. In applying these standards, the court shall retain the residential parent designated by the prior decree or the prior shared parenting decree, unless a modification is in the best interest of the child and one of the following applies:
* * *
(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.
See Brammer v. Meachem, 3d Dist. Marion No. 9-10-43, 2011-Ohio-519, ¶ 12.
{25} “[W]hether there are changed circumstances is a threshold inquiry that must be determined prior to examining whether a change in parental responsibility would be in the best interests of the child.” Id. at ¶ 13, quoting Fox v. Fox, 3d Dist. Hancock No. 5-03-42, 2004-Ohio-3344, ¶ 38. “Once the trial court has made the threshold finding that there has been a change in circumstances, the court must then make a finding as to the best interest of the child” after considering all relevant factors found in
{26} “Decisions concerning child custody matters rest within the sound discretion of the trial court.” Walker v. Walker, 3d Dist. Marion No. 9-12-15, 2013-Ohio-1496, ¶ 46, citing Wallace v. Willoughby, 3d Dist. Shelby No. 17-10-15, 2011-Ohio-3008, ¶ 22 and Miller v. Miller, 37 Ohio St.3d 71, 74 (1988). “Where an award of custody is supported by a substantial amount of credible and competent evidence, such an award will not be reversed as being against the weight of the evidence by a reviewing court.” Id., quoting Barto v. Barto, 3d Dist. Hancock No. 5-08-14, 2008-Ohio-5538, ¶ 25 and Bechtol v. Bechtol, 49 Ohio St.3d 21 (1990), syllabus. “Accordingly, an abuse of discretion must be found in order to reverse the trial court‘s award of child custody.” Id., citing Barto at ¶ 25 and Masters v. Masters, 69 Ohio St.3d 83, 85 (1994). “An abuse of discretion suggests the trial court‘s decision is unreasonable or unconscionable.” Meachem at ¶ 14, citing Blakemore v. Blakemore, 5 Ohio St.3d 217, 219 (1983).
{27} Here, Trenda does not contest the trial court‘s change-of-circumstances conclusion and its factual findings in support of that conclusion. Rather, Trenda‘s second, third, and fourth assignments of error address the trial court‘s factual findings and legal conclusions concerning whether a change in custody was in the children‘s best interests and whether the harm likely to be caused by a change of environment outweighed the advantages of the change.
{28} In determining the best interest of a child under
(a) The wishes of the child‘s parents regarding the child‘s care;
(b) If the court has interviewed the child in chambers pursuant to division (B) of this section regarding the child‘s wishes and concerns as to the allocation of parental rights and responsibilities concerning the child, the wishes and concerns of the child, as expressed to the court;
(c) The child‘s interaction and interrelationship with the child‘s parents, siblings, and any other person who may significantly affect the child‘s best interest;
(d) The child‘s adjustment to the child‘s home, school, and community;
(e) The mental and physical health of all persons involved in the situation;
(f) The parent more likely to honor and facilitate court-approved parenting time rights or visitation and companionship rights;
(g) Whether either parent has failed to make all child support payments, including all arrearages, that are required of that parent pursuant to a child support order under which that parent is an obligor;
(h) Whether either parent or any member of the household of either parent previously has been convicted of or pleaded guilty to any
criminal offense involving any act that resulted in a child being an abused child or a neglected child; whether either parent, in a case in which a child has been adjudicated an abused child or a neglected child, previously has been determined to be the perpetrator of the abusive or neglectful act that is the basis of an adjudication; whether either parent or any member of the household of either parent previously has been convicted of or pleaded guilty to a violation of section 2919.25 of the Revised Code or a sexually oriented offense involving a victim who at the time of the commission of the offense was a member of the family or household that is the subject of the current proceeding; whether either parent or any member of the household of either parent previously has been convicted of or pleaded guilty to any offense involving a victim who at the time of the commission of the offense was a member of the family or household that is the subject of the current proceeding and caused physical harm to the victim in the commission of the offense; and whether there is reason to believe that either parent has acted in a manner resulting in a child being an abused child or a neglected child;
(i) Whether the residential parent or one of the parents subject to a shared parenting decree has continuously and willfully denied the other parent‘s right to parenting time in accordance with an order of the court;
(j) Whether either parent has established a residence, or is planning to establish a residence, outside this state.
See Rodriguez v. Rodriguez, 3d Dist. Mercer No. 10-13-08, 2013-Ohio-4411, ¶ 15.
{29} The trial court “has discretion in determining which factors are relevant,” and “each factor may not necessarily carry the same weight or have the same relevance, depending upon the facts before the trial court.” Brammer, 2013-Ohio-2843, at ¶ 41, citing Hammond v. Harm, 9th Dist. Summit No. 23993, 2008-Ohio-2310, ¶ 51. Although the trial court must consider all relevant factors, there is no requirement that the trial court set out an analysis for each of the factors in its judgment entry, so long as the judgment entry is supported by some competent, credible evidence. Meachem, 2011-Ohio-519, at ¶ 30, citing Portentoso v. Portentoso, 3d Dist. Seneca No. 13-07-03, 2007-Ohio-5770, ¶ 22. “[A]bsent evidence to the contrary, an appellate court will presume the trial court considered all of the relevant ‘best interest’ factors listed in
{30} In his April 8, 2013 decision, the magistrate specifically mentioned and analyzed the change-of-circumstances, best-interest, and harm-versus-advantages prerequisites required by
{31} In its October 7, 2013 judgment entry overruling Trenda‘s objections to the magistrate‘s decision, the trial court found the magistrate‘s decision “to be factually and legally correct.” (Doc. No. 91 at 5). The trial court agreed with the magistrate‘s best-interest finding, noting that Clint‘s potential parenting deficiencies “pale in comparison to the demonstrated lack of ability on the part of [Trenda] to act as residential parent” and that Trenda‘s “misconduct has been substantially detrimental to the children and, if she is allowed to continue in her capacity as residential parent will undoubtedly cause further harm to these children.” (Id. at 3). Finally, the trial court noted that Trenda‘s “efforts to avoid parenting time, efforts to disrupt [Clint‘s] relationship with the children and her
{32} The trial court‘s October 7, 2013 judgment entry, and the April 8, 2013 magistrate‘s decision it upheld, are supported by a substantial amount of competent, credible evidence and are not against the weight of the evidence.
{33} We first address Trenda‘s argument that the trial court‘s best-interest and harm-versus-advantages findings were contrary to the weight of the evidence. We begin with the children‘s best interests. The trial court was not required to list and analyze one-by-one
{34} The first best-interest factor is: “The wishes of the child‘s parents regarding the child‘s care.”
{35} The next best-interest factor involves “the wishes and concerns of the child, as expressed to the court” in an in-chambers interview.
{36} At the time, the oldest child was nine years old, and the two youngest children, who are twins, were seven. (Nov. 2, 2012 Tr. at 59). The magistrate agreed with the GAL that the children “have been traumatized by the continuous investigations and questioning by the parents, law enforcement and children‘s services about matters which at their young age they do not likely comprehend.” (Doc. No. 76 at 15). The trial court also noted the “significant impact” that the “constant barrage of accusations and investigations and questioning” had on the children. (Doc. No. 91 at 3-4). Therefore, given that the parties did not request interviews of the children, the children‘s ages, and the trauma the children have endured due to frequent interviews, the trial court appropriately applied its discretion in deciding not to interview the children in chambers and in deeming this factor irrelevant.
{37} The third
{38} The magistrate found that over a period of several years, “there were repeated findings” that Trenda‘s child-abuse and other claims against Clint were unsubstantiated, while she was dismissive of any child-abuse claims against her live-in boyfriend, Mark Armstrong (“Mark“). (Id. at 15). The magistrate stated, “A reasonable inference can be made that [Trenda‘s] actions were not so much to protect her children but were retaliatory in nature.” (Id.). As the magistrate observed, several of the abuse allegations were filed shortly after Clint filed reports against Trenda or Mark, or after Clint filed a motion in court. (Id. at 11).
{39} The magistrate also stated, “A reasonable inference can be made that the children upon questioning on the subject matter told their mother things that were not true or exaggerated to please her and/or get her approval.” (Id.). The
{40} The record supports the magistrate‘s findings. Defiance County Deputy Sheriff Gina Waxler testified that she was involved in a total of 24 investigations—6 in 2007, 3 in 2008, 9 in 2009, 3 in 2010, and 3 in 2012—most of which Trenda initiated, concerning alleged child abuse by Clint. (Aug. 24, 2012 Tr. at 50-55). Waxler testified that this number of reports is abnormal and excessive for a resident of Defiance County. (Id. at 77). No charges were filed against Clint as the result of any of the 24 investigations. (Id. at 56). Waxler testified that in one instance, Trenda took the parties’ daughter to the hospital for a rape examination, which came back negative, after the daughter‘s visitation with Clint. (Id. at 66); (Defendant‘s Ex. F). As the magistrate observed, that incident occurred on March 26, 2008—approximately six weeks after Clint filed the first of several motions for contempt against Trenda based on her denying him parenting time. (Doc. No. 76 at 5); (Defendant‘s Ex. F); (Doc. No. 29).
{41} In another incident, the Noble County, Indiana Department of Child Services investigated a March 18, 2010 report from a babysitter that the children told her that Clint sexually molested the parties’ twins. (Defendant‘s Ex. F). After interviewing the children, the case manager and authorities concluded that the allegations were unsubstantiated and that “there was a pattern in the children‘s statements that may indicate that the children are being influenced by individuals.” (Id.). The case manager also sent a letter to the trial court judge informing him that the parties’ children suggested in their interviews that they had unsupervised contact with Mark, in contravention of the trial court‘s order. (Defendant‘s Ex. A).
{42} On March 30, 2010, the Noble County Department of Child Services received allegations that Mark was abusing one of the children by hitting and kicking her. (Defendant‘s Ex. W). When the case manager brought Trenda to the police department to join the interview of the parties’ daughter, and the daughter told Trenda what she told the case manager during her interviews, Trenda
began yelling at [the daughter] saying this is very important stuff and [the daughter] should not lie. [The daughter] began to cry and told her mother she was not lying, Mark does hit her and kick her. [Trenda] still did not believe [the daughter]. [The daughter] looked
at her mother and said “I did not mean Mark, I meant to say daddy hits me.”
(Id.). At that point, the case manager stopped Trenda and told her that the daughter was telling the truth and that Trenda “needed to support her daughter and not call her a liar.” (Id.).
{43} On May 30, 2011, Trenda reported that Clint showered with and kicked the parties’ children. (Defendant‘s Ex. H). The children told the responding officer that Clint kicked them and made them take a shower with him every day they are with him. (Id.). In a follow-up interview less than two weeks later, the children told the officer that Mark told them to make those allegations against Clint. (Id.). They told the officer that they like being at Clint‘s house and that he never showers with them or abuses them. (Id.).
{44} On September 28, 2011, two days after the trial court appointed the GAL, Trenda went to the Defiance County Sheriff‘s Office and reported that one of the children informed her that Clint slapped the child and attempted to hide the resulting injury with makeup. (Id.). The officer who conducted initial interviews of the children about the allegations expressed concerns over the variations in the children‘s versions of the events. (Id.). Four days later, Trenda took the child to the emergency room because she felt the child had a concussion. (Id.). The investigating officer spoke with the doctor, who said that he did not see physical
{45} None of those incidences—of March 26, 2008, March 18, 2010, March 30, 2010, May 30, 2011, or September 28, 2011—resulted in charges against Clint. (See Defendant‘s Exs. F, W, H).
{46} Dan Crites, a sergeant with the Defiance County Sheriff‘s Office, testified that he investigated a June 27, 2012 incident in which Clint‘s babysitter called Trenda, then called the Defiance County Sheriff‘s Office, to report that the children told her that Clint walks around naked in front of them, that he hit his girlfriend, and that he showers with the nine-year-old child. (Aug. 24, 2012 Tr. at 14); (Defendant‘s Ex. C). These allegations were made in the past, investigated, and deemed unfounded by authorities. (Id.); (Id.). Crites testified that Trenda went to the babysitter‘s house and attempted to take the children during Clint‘s visitation, but the children had already gone home with Clint. (Id.); (Id.).
{48} Kight testified that the children have been interviewed by social workers between 15 and 20 times regarding allegations of sexual and physical abuse, which has caused the children to experience trauma. (Oct. 12, 2012 Tr. at 19, 25). It was Kight‘s understanding that Trenda filed 29 complaints against Clint based on allegations of physical and sexual abuse and neglect, and none were substantiated. (Id. at 24).
{49} The magistrate observed that Clint denied that he committed the abusive acts alleged in any of the reports and gave plausible explanations. (Doc. No. 76 at 3-16); (see Defendant‘s Exs. F, W, H). The magistrate observed that on only one occasion—in which Trenda alleged that Clint was cruel to a cat in front of their children—were the allegations substantiated, and even then, the animal-cruelty charge filed against Clint was dismissed. (Oct. 12, 2012 Tr. at 37); (Aug.
{50} According to Kight, Trenda is “petrified that something is going to happen” when the children are with Clint, and she has not “dealt with in any substantial way her feelings of anxiety and what that means to the children, and how she‘s passing that anxiety on to the children.” (Oct. 12, 2012 Tr. at 26). Other evidence in the record suggests Trenda and Mark told the children what to say to investigators or, at a minimum, affected what the children said to investigators through coaching or conditioning. (See Defendant‘s Exs. F, H, V, W); (Oct. 12, 2012 Tr. at 46-47). Kight believed that the children were not well suited for that environment, so she recommended that custody be transferred from
{51} The fourth
{52} The magistrate indicated that the children appear to have an “adequate relationship” with Mark and a “good relationship” with Clint‘s live-in girlfriend. (Doc. No. 76 at 16-17). The magistrate relied on Kight‘s testimony that there were no specific concerns regarding Trenda‘s and Clint‘s live-in significant others, and both homes appear to be adequate. (Id. at 16). Kight testified that she did not observe any indication of drug or alcohol abuse in either home, and there do not appear to be any relationship problems between Mark‘s
{53} The fifth
{54} As noted above, Kight testified concerning her beliefs that the children have been traumatized by the frequent interviews by social workers and
{55} The sixth
{56} As the magistrate observed, Clint and his mother testified that Trenda has on numerous occasions denied him parenting time when he is planning to take the children to a family event. (Oct. 12, 2012 Tr. at 10-11, 59-60). Clint identified Defendant‘s Exhibit BB as Hicksville Police Department reports
{57} Finally, in its July 3, 2008 consent judgment entry, the trial court ordered that Trenda not allow unsupervised contact between the children and Mark. (Doc. No. 34). On the August 24, 2012 and November 2, 2012 hearing dates, Clint‘s counsel asked Trenda whether she allowed her children unsupervised contact with Mark. (Aug. 24, 2012 Tr. at 28); (Nov. 2, 2012 Tr. at 39). On August 24, Trenda responded, “No, I have not.” (Aug. 24, 2012 Tr. at 28). However, on November 2, Trenda testified that she had allowed unsupervised contact between the children and Mark “[b]efore the divorce was finalized and all the rulings were in place.” (Nov. 2, 2012 Tr. at 39).
{59} The eighth
{60} The tenth
{61} After summarizing the evidence presented at hearing, the magistrate noted that, while “[t]here are parenting concerns regarding both parties,” Trenda has “regularly violated the court orders regarding parenting in that she has admittedly denied [Clint] parenting on numerous occasions and has disregarded the court order regarding unsupervised contact with Mark Armstrong.” (Magistrate‘s Decision at 14-15). The magistrate also noted that Trenda continued to violate the trial court‘s orders after serving eight days in jail for contempt. (Id. at 15).
{62} The magistrate concluded that “[t]he current arrangement is harmful to the children and could cause difficulties for them now and in the future” and that “[l]eaving things the way they are does not appear to be appropriate nor [sic] in their best interests as it is almost assured that [Trenda] will continue her pattern of conduct.” (Id. at 18). He also noted that maintaining the current arrangement
{63} We hold that the trial court, by its October 7, 2013 judgment entry upholding the magistrate‘s decision, satisfied its statutory obligations to make the best-interest and harm-versus-advantages findings under
{65} Here, the trial court satisfied these statutory requirements—it concluded that a modification was necessary to serve the children‘s best interests after considering the relevant factors found in
{66} Trenda also argues that the trial court is “tied to the ten best interest factors in 3109.04(F)(1) [sic] and nothing more, so it is an error to add its own factors.” (Appellant‘s Brief at 14). This is contrary to the plain language of the statute.
{67} For the reasons above, we conclude that the trial court made the findings required by
{68} Trenda‘s second, third, and fourth assignments of error are overruled.
Assignment of Error No. I
The trial court‘s finding of contempt is contrary to the facts and the weight of evidence.
{69} In her first assignment of error, Trenda argues that the trial court‘s finding of contempt for denial of visitation is not supported by any testimony in the record. Before addressing Trenda‘s first assignment of error, we must determine whether she preserved this assignment of error for appeal.
{70}
Except for a claim of plain error, a party shall not assign as error on appeal the court‘s adoption of any factual finding or legal conclusion, whether or not specifically designated as a finding of fact or conclusion of law under
Civ.R. 53(D)(3)(a)(ii) , unless the party has objected to that finding or conclusion as required byCiv.R. 53(D)(3)(b) .
{71} Here, Trenda did not object to the magistrate‘s contempt-related factual findings and legal conclusions, and the trial court noted as much in its October 7, 2013 judgment entry overruling her objections to the magistrate‘s decision. (See Doc. No. 91). Therefore, under
{72} Trenda‘s first assignment of error is overruled.
{73} Having found no error prejudicial to the appellant herein in the particulars assigned and argued, we affirm the judgment of the trial court.
Judgment Affirmed
ROGERS and SHAW, J.J., concur.
/jlr