2005 Ohio 2678 | Ohio Ct. App. | 2005
Lead Opinion
{¶ 3} Appellant and appellee entered into a shared parenting plan, which was approved by the juvenile court. This Court subsequently found the shared parenting plan to be void ab initio. Lorence v. Goeller (July 19, 2000), 9th Dist. No. 98CA007193. This Court further restored appellant as the child's sole custodial parent. Id. Notwithstanding the juvenile court's assertion that this Court's pronouncement to that effect was merely dicta, this Court was restating a legal truth. By virtue of the fact that the child was born to Rondi and appellant during the course of their marriage, appellant was the child's custodial parent. Obviously, an order of custody does not need to be given to the married parents. Because no child exists in a custodial void, it is axiomatic that appellant was the child's sole custodial parent after his mother's death until such time as a court of competent jurisdiction ordered otherwise.
{¶ 4} On December 27, 2002, appellee filed a complaint for legal custody of the child pursuant to R.C.
{¶ 5} The matter proceeded to contested custody hearing on May 24 and 25, 2004. The trial court, in reliance on the test set forth in In rePerales (1977),
{¶ 6} Appellant argues that the trial court misapplied the standard inIn re Perales, requiring the trial court to find a natural parent unsuitable before it may award custody of a child to a nonparent. Specifically, appellant argues that the trial court considered whether an award of custody to the natural parent would be devastating to the child, as opposed to detrimental. This Court disagrees.
{¶ 7} The Ohio Supreme Court held that
"[i]n an R.C.
{¶ 8} In this case, the trial court found that appellee had neither abandoned nor contractually relinquished custody of the child, nor had appellee become totally incapable of supporting or caring for the child. The trial court continued:
"Consequently, the Court must award custody of Bryan to Lorence unless it is sufficiently established that the detriment to Bryan caused by such an award would warrant a divestment of Lorence's fundamental parental rights." (Emphasis added.)
{¶ 9} The trial court then cited several cases addressing the issue of parental suitability, including In re Dunn (1992),
{¶ 10} The trial court continued:
"In the present case, Bryan will arguably suffer some detriment if placed in Lorence's custody in that he will have to change both his primary residence and neighborhood, as well as attend a different school. These are certainly stressful and disruptive events, but the Court cannot conclude from the record that their occurrence will have a `devastating' impact on Bryan, or that they will cause him such detriment as to warrant the divestment of Lorence's parental rights. * * *
"* * * However, the holding in In re Porter (1996),
{¶ 11} The trial court then concluded that appellee was a suitable parent.
{¶ 12} Under the circumstances, the trial court clearly considered appellee's suitability as a parent in terms of detriment to the child. This Court cannot say that the trial court modified or otherwise enhanced the standard to require that an award of custody to appellee must be devastating to the child before appellee might be divested of his fundamental right to parent his natural child. Appellant's first assignment of error is overruled.
{¶ 13} Appellant argues that the trial court abused its discretion, when it found appellee to be a suitable parent and awarded legal custody to appellee. This Court disagrees.
{¶ 14} A trial court retains broad discretion in child custody matters, and this Court will only reverse the trial court upon a showing of an abuse of discretion. Booth v. Booth (1989),
{¶ 15} In addition, this Court's role is to ascertain "whether the award of custody is supported by a substantial amount of credible and competent evidence." Poulton v. Poulton (Feb. 7, 2001), 9th Dist. No. 3056-M. This Court, therefore, accords the trial court's decision "the utmost respect as the trial court is better equipped to weigh the evidence due to the knowledge gained through the observation of witnesses throughout the custody proceedings." Ives v. Ives, 9th Dist. No. 02CA008176, 2003-Ohio-3505, at ¶ 18.
{¶ 16} The instant custody dispute was brought pursuant to R.C.
{¶ 17} This Court has stated:
"Although custody proceedings involving disputes between parents are best served by looking solely at the welfare or best interests of the child, `the court's scope of inquiry must, of necessity, be broader in R.C.
{¶ 18} The test that the trial court must apply when determining custody disputes between a parent and a nonparent is set forth in In rePerales, 52 Ohio St.2d at syllabus:
"In an R.C.
{¶ 19} It is important to note that it is not appellant's suitability as a parent that is the threshold issue in this custody dispute between nonparent appellant and natural parent appellee. The evidence may have established that appellant is more than suitable to parent the child. However, the threshold issue which the trial court must have determined before it could award legal custody to nonparent appellant under law is whether or not natural parent appellee is unsuitable. A review of the record indicates that the trial court did not abuse its discretion when it found by a preponderance of the evidence that appellee is suitable to parent the child.
{¶ 20} There is no evidence in the record to indicate that appellee abandoned the child, that appellee contractually relinquished custody of the child, or that appellee had become totally incapable of supporting or caring for the child. The undisputed issue before the trial court was whether an award of custody to appellee would be detrimental to the child.
{¶ 21} There was evidence presented at trial that the child lived with appellant during the first eleven years of the child's life, although appellee began to have visitation with the child when the child was approximately two years old. Over time, appellee enjoyed more expansive visitation with the child, including some overnight visits. When the child was almost four years old, the parties voluntarily entered into a shared parenting plan, which gave appellee possession of the child each week from Thursday after work until Monday morning, when appellee took the child to school. Although this Court ultimately found the shared parenting plan to be void ab initio, appellee continued to have extended visitation with the child after the shared parenting plan was vacated.1
{¶ 22} There was evidence presented at trial that appellee provided adequate care for the child while the child was in his possession. Appellee's home was adequate and the child had his own bedroom there. Appellee disciplined the child by grounding or taking away privileges when necessary. Appellee exposed the child to extended family and facilitated the child's bond with his extended family members.
{¶ 23} In addition, there was evidence presented at trial that appellee is capable of nurturing and providing adequate care for the child. Appellee earns a steady and sufficient income to provide for the child. Appellee has also made arrangements for adequate child care in appellee's absence.
{¶ 24} Although an award of custody would necessitate the child's moving to a new neighborhood and school district, the child was already familiar with the neighborhood because of regular visits with appellee. The trial court found that the child had already experienced significant changes, including the need to adjust to appellant's new wife, so that the stresses associated with a move into appellee's home would not be so detrimental as to make appellee an unsuitable parent. This Court cannot find that the trial court abused its discretion in making such a determination.
{¶ 25} Appellant failed to present sufficient evidence at trial to prove by a preponderance of the evidence that appellee posed a risk of harm to the child or that appellee was otherwise incapable of adequately providing for the needs of the child. This is not the case where an eleven-year old child was wrestled from the only parent he ever knew and thrust into the home of a stranger. The child knew that appellee was his natural father, and he spent significant periods of time in appellee's care and possession over the course of nine years. While this Court takes well the trial court's recognition that appellant's home might present the "better situation" for the child because that would prevent any disruption in the status quo and maintain the child with his "psychological" parent, that does not necessarily mean that an award of custody to appellee would be detrimental to the child. Appellant's suitability as a parent does not equate to appellee's unsuitability. Before the trial court could award custody of the child to a nonparent, the court must necessarily find by a preponderance of the evidence that appellee is unsuitable, not merely that appellant is suitable and possibly a better placement.
{¶ 26} A review of the evidence presented at trial indicates that the trial court could have reasonably found that appellee was a suitable parent. Under those circumstances, the trial court did not abuse its discretion by awarding custody to appellee, the child's natural parent. Appellant's second assignment of error is overruled.
{¶ 27} Appellant, in reliance on R.C.
{¶ 28} R.C.
"If either the father or mother of an unmarried minor child is deceased, the court of common pleas of the county in which the minor child resides may grant the parents and other relatives of the deceased father or mother reasonable companionship or visitation rights with respect to the minor child during the child's minority if the parent or other relative files a complaint requesting reasonable companionship or visitation rights and if the court determines that the granting of the companionship or visitation rights is in the best of the minor child."
{¶ 29} There is no dispute that appellant, as a widower, is a relative of the child's deceased mother. Appellant's assignment of error must fail, however, because appellant failed to file a complaint for visitation or companionship of the minor child. Appellant filed a counterclaim for legal custody of the child, but he did not request visitation or companionship with the child either in his counterclaim or in any motion before the court. With no complaint or motion for visitation before the trial court, the court need not have considered whether or not the granting of visitation or companionship rights would be in the child's best interest. Because appellant failed to comply with the procedural requirements to seek visitation or companionship rights with the child, the trial court did not err when it omitted any such visitation or companionship order in its journal entry disposing of the case. Appellant's third assignment of error is overruled.
{¶ 30} Appellant argues that the trial court erred by failing to consider the in camera interview of the minor child and failing to consider the procedures set forth in R.C.
{¶ 31} R.C.
{¶ 32} This case does not involve the allocation of parental rights and responsibilities pursuant to R.C.
{¶ 33} Appellant argues that the trial court improperly excluded both the expert testimony and expert report of Dr. Michael Leach at trial. Specifically, appellant argues that the trial court erred by refusing to allow Dr. Leach to testify as to the ultimate issue in the case and as to information perceived by Dr. Leach during interviews with the child. This Court disagrees.
{¶ 34} "The decision to admit or to exclude evidence is a matter left within the sound discretion of the trial court and will not be reversed absent an abuse of that discretion." Gamble v. Summit Cty. Dept. of Jobsand Family Servs., 9th Dist. No. 21450, 2004-Ohio-193, at ¶ 12. An abuse of discretion is more than an error of judgment; it means that the trial court was unreasonable, arbitrary, or unconscionable in its ruling.Blakemore,
{¶ 35} Appellant first argues that the trial court erred by refusing to allow Dr. Leach to testify as to the ultimate issue in this case contrary to Evid.R. 704. Evid.R. 704 provides:
"Testimony in the form of an opinion or inference otherwise admissible is not objectionable solely because it embraces an ultimate issue to be decided by the trier of fact."
{¶ 36} This Court has already stated that the ultimate issue to be decided in this case is whether or not appellee, as the natural father of the child, is suitable to parent the child. Inherent in that determination is whether an award of custody to appellee would be detrimental to the child.
{¶ 37} Dr. Leach testified that he did not have the opportunity to interview appellee. Therefore, he could not offer any opinion regarding appellee's suitability to parent. Dr. Leach further informed the court that he did not have the benefit of performing an evaluation as to what would be in the child's best interest regarding custodial placement and that he could not, therefore, render an opinion in that regard. Although Dr. Leach testified that he could speak generally regarding some detriments associated with removing the child from his current placement with appellant, he did not have the basis from which to speak of the relative detriment versus the advantages to the child in regard to such a move.
{¶ 38} Evid.R. 602 provides:
"A witness may not testify to a matter unless evidence is introduced sufficient to support a finding that he has personal knowledge of the matter. Evidence to prove personal knowledge may, but need not, consist of testimony of the witness himself. This rule is subject to the provisions of Rule 703, relating to opinion testimony by expert witnesses."
{¶ 39} Evid.R. 703 provides:
"The facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by him or admitted in evidence at the hearing."
{¶ 40} In this case, Dr. Leach was not present for the presentation of other evidence, so that he could not have based an opinion as to the ultimate issue on other evidence admitted at the hearing.2 In addition, Dr. Leach testified that he had no personal knowledge from which he could formulate an opinion as to the ultimate issue in this case, i.e., whether or not appellee would be a suitable parent. Therefore, the trial court appropriately excluded any testimony by Dr. Leach in that regard.
{¶ 41} Appellant next argues that the trial court erred by excluding Dr. Leach's testimony regarding his interviews with the child. Specifically, appellant argues that the trial court should have admitted Dr. Leach's testimony regarding what he observed during his interviews with the child, as well as what the child told him during the interviews. In addition, appellant argues that the trial court erred by refusing to admit Dr. Leach's expert report into evidence. This Court disagrees.
{¶ 42} The trial court in fact allowed Dr. Leach to testify as to his observations of the child during the interviews. The trial court informed Dr. Leach:
"You may, as you have done, articulate your observations, behavior as polite and intellectual, I would not have a problem if you called him well adjusted, but for you to describe for me apart from observations, I am not going to allow you to do so."
{¶ 43} Dr. Leach testified that he observed the child as one who used language well, who was polite and respectful, and who had no difficulty showing affection and warmth to appellant. Under the circumstances, this Court finds no merit to appellant's argument that the trial court erroneously excluded Dr. Leach's observations of the child.
{¶ 44} This Court further finds that the trial court appropriately excluded statements by the child to Dr. Leach during interviews as hearsay not subject to an exception. Hearsay is defined as "a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." Evid.R. 801(C). While Evid.R. 703 permits an expert to testify as to his opinion based upon the facts or data perceived by him, the rule does not grant blanket admissibility to those underlying facts or data, if they are not otherwise admissible under the Rules of Evidence. Therefore, this Court cannot say that the trial court abused its discretion by excluding hearsay statements made by the child to Dr. Leach notwithstanding Dr. Leach's reliance on those statements in the formulation of his expert opinion.
{¶ 45} Finally, appellant argues that the trial court erred by excluding Dr. Leach's expert report as an exhibit. Based on Dr. Leach's testimony that he was not able to interview or otherwise evaluate appellee and make any determinations regarding appellee's suitability as a parent, the trial court found that Dr. Leach's report could not provide any relevant evidence necessary for a determination of the ultimate issue in this case. In addition, the trial court found that the information in the report upon which Dr. Leach based his expert opinion was hearsay, and that appellee could not effectively cross examine Dr. Leach, as appellee was not privy to the conversation between the child and the witness. Because the court found that Dr. Leach's report consisted of hearsay and did not contain evidence relevant to a determination of the ultimate issue in the case, the trial court appropriately excluded Dr. Leach's export report. Appellant's fifth assignment of error is overruled.
{¶ 46} Appellant argues that the trial court abused its discretion by failing to issue a ruling on appellant's motion for child support refund, which motion was pending before the court and heard at trial.
{¶ 47} "The fact that a court fails to expressly rule on a motion does not constitute an abuse of discretion." Fed. Home Loan Mtge. Corp. v.Owca (Nov. 17, 1999), 9th Dist. No. 2897-M. In general, if the trial court fails to mention or rule on a pending motion, the appellate court presumes that the motion was implicitly overruled. Id., citing Maust v.Palmer (1994),
{¶ 48} In this case, the trial court fully anticipated the presentation of evidence on appellant's motion at trial. Appellant briefed the issue in his trial brief. Further, both appellant and appellee testified in regard to the child support issue at trial. Finally, appellant argued the matter in his post-trial brief. Appellant has failed to point to any evidence in the record that the trial court failed to consider his motion. Consequently, this Court cannot conclude that the trial court failed to consider appellant's motion. Rather, this Court finds that the trial court implicitly overruled appellant's motion for child support refund. See Owca. The implicit, rather than explicit, denial of appellant's motion, however, does not prevent this Court from further addressing whether the trial court erred in denying the motion. See Owca.
{¶ 49} This Court reviews matters concerning child support under an abuse of discretion standard of review. Swank v. Swank (Feb. 19, 2003), 9th Dist. No. 21207. This Court, therefore, cannot reverse the denial of appellant's motion for child support refund absent an abuse of discretion by the trial court. An abuse of discretion is more than an error of judgment; it means that the trial court was unreasonable, arbitrary, or unconscionable in its ruling. Blakemore,
{¶ 50} This Court has previously held that once an obligor's child support obligations have ended, the obligor is entitled to a refund of monies which were deducted from his pay. Krepps v. Krepps (Jan. 10, 1990), 9th Dist. No. 14159.
{¶ 51} In this case, appellant's obligation to pay child support for the child to appellee arose out of the parties' shared parenting plan. This Court subsequently found that the shared parenting plan as between appellant and appellee was void ab initio, because the child is not the minor child of a marriage between them. Lorence v. Goeller (July 19, 2000), 9th Dist. No. 98CA007193. This Court further found that the calculation of child support as between the parties was void ab initio, because it did not comport with the mandatory requirements of R.C.
{¶ 52} Appellant's sixth assignment of error is sustained. The matter is remanded to the trial court for determination of the amount of child support refund to which appellant is entitled.
Judgment affirmed, in part, reversed, in part, and cause remanded.
The Court finds that there were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common Pleas, County of Lorain, State of Ohio, to carry this judgment into execution. A certified copy of this journal entry shall constitute the mandate, pursuant to App.R. 27.
Immediately upon the filing hereof, this document shall constitute the journal entry of judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the period for review shall begin to run. App.R. 22(E). The Clerk of the Court of Appeals is instructed to mail a notice of entry of this judgment to the parties and to make a notation of the mailing in the docket, pursuant to App.R. 30.
Costs taxed to both parties equally.
Exceptions.
Slaby, P.J., Moore, J. Concur.
Concurrence Opinion
{¶ 54} Although I agree with the majority's analysis and conclusions under the law as it stands, I am compelled to write separately to address certain issues.
{¶ 55} This case presents extraordinary circumstances not considered or perhaps anticipated by the Ohio Supreme Court, when it formulated its unsuitability test for the determination of custody disputes between a natural parent and a third-party in In re Perales. I recognize the significance of a natural parent's fundamental right to raise his biological child, but I believe that it is time for the Ohio Supreme Court or the legislature to reevaluate the rigid constraints mandated by the current law.
{¶ 56} Ohio has never before addressed this specific and unique issue regarding custody disputes between a nonparent with the presumption of paternity, who reasonably believed himself to be the biological parent, and a biological parent. The "switched at birth" cases from other jurisdictions are more analogous to the instant appeal, because the nonparents raising the children believed that they were the natural parents of their children, and they had no reason to expect a custody dispute by anyone claiming to be the natural parent.
{¶ 57} The various states subscribe generally to one of two approaches in custody disputes between parents and nonparents: (1) paramount parental rights/natural parent preference and (2) best interest of the child/psychological parent perspective. See, generally, Foote, What's Best for Babies Switched at Birth? The Role of the Court, Rights of Nonbiological Parents, and Mandatory Mediation of the Custodial Agreements (1999), 21 Whittier L.Rev. 315. In the "switched at birth" cases, the courts adopted the psychological parent perspective. In Florida, the court found that, because Mays (the nonbiological custodial parent) was the only father the child knew, it would be detrimental to the child to declare the Twiggs (the biological stranger parents) her natural parents and force contact between the child and the natural parents. Id., citing Twigg v. Mays (Fla.Cir.Ct. 1993), No. 88-4489-CA-01, WL 339624, at *2; see also Mays v. Twigg (Fla.Dist.App. 1989),
{¶ 58} Other courts, even in "paramount parental rights" jurisdictions, have been willing to adopt a best interest of the child test in cases where extraordinary circumstances exist. For example, the Superior Court of New Jersey stated that "where, as a preliminary matter, the third party is able to show that he or she stands in the shoes of a parent to the child and thus in parity with the natural parent, he or she should be accorded the status of a natural parent in determining the standard to be applied to the quest for custody. In such circumstances, the best interests test should apply." Zack v. Fiebert
(1989),
{¶ 59} The Florida Supreme Court addressed a matter involving that state's Department of Health Rehabilitative Services' action against a putative natural father, where the mother was married to another man at the time of the child's birth. The court saw the matter as a case about impugning the legitimacy of a child for the sake of money and impugning the parental rights of the child's present legal father. The court began with the premise that the presumption of legitimacy is based on the policy of protecting the welfare/best interests of the child. "Once children are born legitimate, they have a right to maintain that status both factually and legally if doing so is in their best interests."Dept. of Health and Rehabilitative Servs. v. Privette (Fla. 1993),
{¶ 60} While Ohio has provided the statutory mechanism to rebut the presumption of paternity, I still believe that the legislative intent was not to disrupt the sanctity of the family or impugn the legal father's privacy and parental rights. In fact, I continue to adhere to my analysis set out in my dissent in Lorence v. Goeller (Mar. 6, 2002), 9th Dist. No. 01CA007820 (Carr, concurring in part, and dissenting in part). This issue remains unaddressed by either the Ohio Supreme Court or Ohio legislature.
{¶ 61} The New York intermediate appellate court stated that "[w]hile the presumption of legitimacy is, of course, rebutable, it `will not fail unless common sense and reason are outraged by a holding that it abides.'" H. v. P. (1982),
{¶ 62} I concur in the majority's decision, only because I find that the current state of the law mandates this holding.
