792 N.E.2d 770 | Ohio Ct. App. | 2003
Lead Opinion
{¶ 1} This case presents two separate appeals arising out of a child custody dispute, a shared parenting agreement and an agreed judgment entry of divorce. In Appeal No. 2001 CO 67, Patricia L. Myers ("Mother") asserts that the trial court incorrectly denied her Civ.R. 60(B) motion for relief from an agreed divorce decree. In Appeal No. 2002 CO 35, Mother asserts that there was no change in circumstances sufficient to designate Robert Myers ("Father"), *245 as the sole residential parent of their only child. We affirm in full the trial court judgment in Appeal No. 2002 CO 35, and affirm the result, but not the reasoning, of the trial court in Appeal No. 2001 CO 67.
{¶ 2} The parties were married on August 10, 1996. During the marriage, Mother gave birth to Brooke L. Myers.
{¶ 3} On May 11, 1999, Father filed a Complaint for Divorce in Columbiana County Court of Common Pleas. In the complaint, Father stated that, "one (1) child has been born as issue of said marriage, namely Brooke L. Myers, dob February 25, 1998[.]"
{¶ 4} On May 17, 1999, the court filed temporary orders during the pendency of the divorce. The court granted Mother custody of the child, and ordered Father to pay $50 per month in child support.
{¶ 5} On November 18, 1999, Father filed a Motion for Shared Parenting. The motion declared that one child was born as issue of the marriage.
{¶ 6} On January 25, 2000, both Mother and Father signed a Health Insurance Disclosure Affidavit in which they acknowledged that Brooke was the daughter of Father. On the same day, Mother also signed a child support computation worksheet which calculated that Father owed $247.75 per month in child support.
{¶ 7} On January 27, 2000, the parties entered into an Agreed Judgment Entry of Divorce ("Agreed Divorce Decree"). One of the provisions of this Agreed Divorce Decree was: "2. ONE (1) child has been born as issue of said marriage, namely BROOKE L. MYERS * * *." The Agreed Divorce Decree also required Father to pay child support of $252.71 per month.
{¶ 8} As part of the Agreed Divorce Decree, the parties entered into a Shared Parenting Plan in which both parties were allocated parental rights and responsibilities. Primary parental rights alternated with whichever parent had physical custody of Brooke. (Shared Parenting Plan, p. 2.)
{¶ 9} On November 28, 2000, the parties entered into an agreed modification of the shared parenting agreement. Father was granted seven consecutive days of parenting rights out of every 28 days, corresponding to his work and time off schedule. Except for a few other minor changes, the remainder of the original shared parenting agreement remained intact.
{¶ 10} On May 8, 2001, Father filed a motion to become the sole residential parent of Brooke.
{¶ 11} On May 15, 2001, Mother filed a Civ.R. 60(B) Motion for Relief from Judgment. It is clear from the motion that Mother was seeking relief from the Agreed Divorce Decree. Mother's reason for requesting relief was that she was not represented by counsel at the time she entered into the agreed entry. Specifically, she sought to have overturned the section of the Agreed Divorce Decree which acknowledged *246
that Brooke was born of the marriage. The sole support raised by Mother in seeking relief from judgment was R.C.
{¶ 12} "Notwithstanding the provisions to the contrary in civil rule 60(B) and in accordance with this section, a person may file a motion for relief from a final judgment, court order, or administrative determination or order that determines that the person or a male minor referred to in division (B) of section
{¶ 13} The R.C. §
{¶ 14} On July 19, 2001, the magistrate issued a decision. The magistrate found that Mother was attempting to set aside a paternity decision pursuant to R.C.
{¶ 15} A hearing on the objections took place on November 26, 2001.
{¶ 16} On December 11, 2001, the court ruled on Mother's objections. The court held that the mother of a child does not have standing to seek relief from judgment pursuant to R.C.
{¶ 17} Mother filed an appeal of the judge's decision on December 21, 2001. This appeal was designated as Appeal No. 2001 CO 67.
{¶ 18} On December 27, 2001, the magistrate conducted a hearing on Father's motion to be designated the sole residential parent.
{¶ 19} The magistrate filed its decision on January 14, 2002. The magistrate found that a change of circumstances had occurred subsequent to the most recent modification of the shared parenting agreement. The magistrate found that Mother had voluntarily entered into a master/slave sexual relationship with a man in Cincinnati, and that the relationship had rapidly declined. The court found that Mother was whipped, tied up and left in the dark, and subjected to sexual activity that caused her to scream, cry and beg for help. The magistrate found that Father went to Cincinnati to remove Mother and Brooke from the intolerable situation, and that Father became the primary care provider for Brooke from February 1, 2001, until April 7, 2001. *247
{¶ 20} The court found that Mother changed her residence five times since January 27, 2000, and that, in two of those moves, she refused to give Father her change of address information.
{¶ 21} The court found that Mother had various men residing with her after the divorce. The court found that Mother asked Father to care for Brooke so that she could spend time with a male friend at a local motel. The court found that Mother had a history of using pornography and using internet sex chat rooms.
{¶ 22} The court held that there had been a change in circumstances in the shared parenting agreement, and that it was in the best interest of the child to designate Father as the residential parent. Mother was given standard visitation rights pursuant to Local Rule 9.4. The court vacated the child support order issued on January 27, 2000. The court postponed ruling on all issues involving child support, dependency exemption, health insurance coverage, and uninsured medical expenses.
{¶ 23} Mother filed objections to the magistrate's decision on January 28, 2002. Mother argued that the magistrate's decision was overbroad in that it essentially terminated the parties' shared parenting agreement. Mother argued that the court was required to make specific findings explaining why the shared parenting agreement was terminated, or that the court should have maintained the same companionship schedule that was contained in the shared parenting agreement. Mother also argued that the evidence did not support that a change in circumstances had occurred to justify changing the shared parenting agreement.
{¶ 24} The objections were apparently heard before the court on May 10, 2002, but no transcript of that hearing is in the record.
{¶ 25} The court issued its opinion on May 31, 2002. The court held that the magistrate's decision effectively terminated the shared parenting agreement. The court held that it had the power to terminate the shared parenting agreement even though Father did not expressly seek termination of the agreement in his motion. The court also held that there was a change in circumstances and that the designation of Father as the residential parent was in the child's best interest.
{¶ 26} Mother filed a timely appeal of this second decision on June 27, 2002.
{¶ 27} Mother's first assignment of error involves Appeal No. 2002 CO 35, challenging the May 31, 2002, judgment entry. The assignment of error states:
{¶ 28} "Appellee-father Failed To Meet His Burden Of Showing A `Change In Circumstnaces' [sic] As Required By O.R.C. §
{¶ 29} Mother correctly acknowledges that a trial court decision in a domestic relations case is reviewed for abuse of discretion. Booth v. Booth (1989),
{¶ 30} Mother argues that a shared parenting agreement may not be modified unless the court specifically finds that there has been a change in circumstances as mandated by R.C.
{¶ 31} "(b) The court may modify the terms of the plan for shared parenting approved by the court and incorporated by it into the shared parenting decree upon its own motion at any time if the court determines that the modifications are in the best interest of the children or upon the request of one or both of the parents under the decree. Modifications under this division may be made at any time. The court shall not make any modification to the plan under this division, unless the modification is in the best interest of the children." R.C.
{¶ 32} Mother's premise in her first assignment of error is faulty because the trial court was not required to find a change of circumstances before modifying or terminating the shared parenting decree:
{¶ 33} "[A] court may terminate or modify a prior shared-parenting decree if it determines that termination or modification of the shared-parenting plan is in the best interest of the child. According to the statute, this determination may be made without a preliminary determination into whether there was a change in circumstances of the child, his residential parent, or either of the parents subject to the shared-parenting decree. See R.C.
{¶ 34} Although R.C.
{¶ 35} "(2) In addition to a modification authorized under division (E)(1) of this section:
{¶ 36} "(a) Both parents under a shared parenting decree jointly may modify the terms of the plan for shared parenting approved by the court and incorporated *249 by it into the shared parenting decree. Modifications under this division may be made at any time. The modifications to the plan shall be filed jointly by both parents with the court, and the court shall include them in the plan, unless they are not in the best interest of the children. If the modifications are not in the best interests of the children, the court, in its discretion, may reject the modifications or make modifications to the proposed modifications or the plan that are in the best interest of the children. Modifications jointly submitted by both parents under a shared parenting decree shall be effective, either as originally filed or as modified by the court, upon their inclusion by the court in the plan. Modifications to the plan made by the court shall be effective upon their inclusion by the court in the plan.
{¶ 37} "(b) The court may modify the terms of the plan for shared parenting approved by the court and incorporated by it into the shared parenting decree upon its own motion at any time if the court determines that the modifications are in the best interest of the children or upon the request of one or both of the parents under the decree. Modifications under this division may be made at any time. The court shall not make any modification to the plan under this division, unless the modification is in the best interest of the children.
{¶ 38} "(c) The court may terminate a prior final shared parenting decree that includes a shared parenting plan approved under division (D)(1)(a)(i) of this section upon the request of one or both of the parents or whenever it determines that shared parenting is not in the best interest of the children. The court may terminate a prior final shared parenting decree that includes a shared parenting plan approved under division (D)(1)(a)(ii) or (iii) of this section if it determines, upon its own motion or upon the request of one or both parents, that shared parenting is not in the best interest of the children. If modification of the terms of the plan for shared parenting approved by the court and incorporated by it into the final shared parenting decree is attempted under division (E)(2)(a) of this section and the court rejects the modifications, it may terminate the final shared parenting decree if it determines that shared parenting is not in the best interest of the children.
{¶ 39} "(d) Upon the termination of a prior final shared parenting decree under division (E)(2)(c) of this section, the court shall proceed and issue a modified decree for the allocation of parental rights and responsibilities for the care of the children under the standards applicable under divisions (A), (B), and (C) of this section as if no decree for shared parenting had been granted and as if no request for shared parenting ever had been made."
{¶ 40} It is clear under these provisions that a shared parenting agreement is treated differently than a custody decree arising out of adversarial litigation. The court or either parent may invoke the provisions of R.C.
{¶ 41} Even if the trial court were required to find a change in circumstances, there was overwhelming evidence of a change in circumstances in this case. Davis v. Flickinger (1997),
{¶ 42} Mother's frequent changes of address, her decision to expose her daughter to a sexually charged and possibly dangerous environment, Mother's refusal to let Father know of her whereabouts, and her refusal at times to allow Father to visit or take custody of Brooke, all support the trial court's conclusion that there was a change in circumstances.
{¶ 43} Mother also argues that it was not in Brooke's best interest for Father to become the sole residential parent. In essence, Mother is challenging the trial court's interpretation of the weight of the evidence. A child custody decision that is supported by a substantial amount of competent and credible evidence will not be reversed on appeal absent an abuse of discretion.Bechtol v. Bechtol (1990),
{¶ 44} While a trial court's discretion in a custody proceeding is broad, it is not absolute, and the trial court must follow the procedure described in R.C. §
{¶ 45} "(F)(1) In determining the best interest of a child pursuant to this section, whether on an original decree allocating parental rights and responsibilities for the care of children or a modification of a decree allocating those rights and responsibilities, the court shall consider all relevant factors, including, but not limited to: *251
{¶ 46} "(a) The wishes of the child's parents regarding the child's care;
{¶ 47} "(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;
{¶ 48} "(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;
{¶ 49} "(d) The child's adjustment to the child's home, school, and community;
{¶ 50} "(e) The mental and physical health of all persons involved in the situation;
{¶ 51} "(f) The parent more likely to honor and facilitate court-approved parenting time rights or visitation and companionship rights;
{¶ 52} "(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;
{¶ 53} "(h) Whether 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 previously has been convicted of or pleaded guilty to a violation of section
{¶ 54} "(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;
{¶ 55} "(j) Whether either parent has established a residence, or is planning to establish a residence, outside this state."
{¶ 56} The court noted the following facts in making its decision: Mother's decision to expose Brooke to an abusive master/slave relationship in Cincinnati; *252
Mother's frequent changes of residence; Brooke's ongoing relationship with her half-sister Brittney (who resided with Mother); the good relationship Brooke had with Father; the stable environment that Father provided; Mother's denial of visitation and companionship rights; and the mental health of all the parties. The court made its decision after clearly considering the factors listed in R.C.
{¶ 57} Mother's second assignment of error challenges the trial court's failure to grant the Civ.R. 60(B) motion which would have reopened the paternity issue:
{¶ 58} "The Trial Court Committed Reversible Error In Finding That The mother Lacked Standing To Seek Relief From Judgment Pursuant To O.R.C.
{¶ 59} Mother's original claim for relief from the divorce decree (or more specifically, the provision of the divorce decree in which the parties agreed that Brooke was born of the marriage) arose from R.C.
{¶ 60} "(A) Notwithstanding the provisions to the contrary in Civil Rule 60(B) and in accordance with this section, a person may file amotion for relief from a final judgment, court order, or administrative determination or order that determines that the person or a male minorreferred to in division (B) of section
{¶ 61} The trial court denied relief under this statute because in his reading of the statute, standing to file a Civ.R. 60(B) motion exists only in the person who is determined to be the father, whereas Mother is Brooke's mother.
{¶ 62} A trial court has broad discretion in granting a motion for relief from judgment under Civ.R. 60(B). Griffey v. Rajan (1987),
{¶ 63} The relevant portion of Civ.R. 60(B) states:
{¶ 64} "On motion and upon such terms as are just, the court may relieve a party or his legal representative from a final judgment, order or proceeding for the following reasons: (1) mistake, inadvertence, surprise or excusable neglect; (2) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59(B); (3) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation or other misconduct of an adverse party; (4) the judgment has been satisfied, released or discharged, or a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have *253 prospective application; or (5) any other reason justifying relief from the judgment."
{¶ 65} The Ohio Supreme Court has held that, "[t]o prevail on a motion brought under Civ.R. 60(B), the movant must demonstrate that: (1) [she] has a meritorious defense or claim to present if relief is granted; (2) [she] is entitled to relief under one of the grounds stated in Civ.R. 60(B)(1) through (5); and (3) the motion is made within a reasonable time * * *." GTE Automatic Elec., Inc. v. ARC Industries,Inc. (1976),
{¶ 66} Mother argues that R.C.
{¶ 67} Mother argues that the relief available from R.C.
{¶ 68} Father argues that, even if Mother (i.e., the mother) was allowed to invoke the statute, her motion for relief from judgment must be denied under R.C.
{¶ 69} "(B) A court shall not grant relief from a final judgment, court order, or administrative determination or order that determines that a person or male minor is the father of a child or from a child support order under which a person or male minor is the obligor if thecourt determines, by a preponderance of the evidence, that the person ormale minor knew that he was not the natural father of the child before any of the following:
{¶ 70} "(1) Any act listed in divisions (A)(2)(a) to (d) and (A)(2)(f) of this section occurred.
{¶ 71} "(2) The person or male minor was presumed to be the natural father of the child under any of the circumstances listed in divisions (A)(1) to (3) of section
{¶ 72} "(3) The person or male minor otherwise admitted or acknowledged himself to be the child's father." (Emphasis added.)
{¶ 73} Father contends that he was presumed to be the natural father according to R.C.
{¶ 74} Father's analysis is correct. A reading of this statute on its face reveals that neither parent in this case could have invoked the right to relief contained in R.C.
{¶ 75} "It is undisputed that the Appellee is not the natural father of the minor child BROOKE L. MYERS, DOB: 02/25/98. * * * Both Appellant and Appellee are Caucasian and the minor child is African-American. Despite the obvious lack of paternity by the Appellee, he accepted the child as his own." (Appellant's Brief, p. 3.) There is no doubt that the first required element of R.C.
{¶ 76} The second required element necessary to invoke the exclusions in R.C.
{¶ 77} First, R.C.
{¶ 78} Second, it is also evident that Father was presumed to be the natural father under R.C.
{¶ 79} "(A) A man is presumed to be the natural father of a child under any of the following circumstances: *255
{¶ 80} "(1) The man and the child's mother are or have been married to each other, and the child is born during the marriage or is born within three hundred days after the marriage is terminated by death, annulment, divorce, or dissolution or after the man and the child's mother separate pursuant to a separation agreement."
{¶ 81} The record reveals that Brooke was born while Mother and Father were married. Therefore, a second factor found in R.C.
{¶ 82} Finally, a third factor listed in R.C.
{¶ 83} Mother also seeks to challenge the trial court's application of R.C.
{¶ 84} "Although a constitutional question may be legitimately presented by the record, yet if the record also presents some other and satisfactory ground upon which the Court may rest its judgment, and thereby render the constitutional question immaterial to the case, that course will be adopted, and the question of constitutionality will be left for consideration until a case arises which cannot be adjudicated without considering it and when, [c]onsequently, a decision upon such question would be unavoidable." Defiance v. Nagel (1959),
{¶ 85} Assuming arguendo that Mother has standing to seek relief under R.C.
{¶ 86} We note, without expressing an opinion, that the Tenth District Court of Appeals has recently declared R.C.
{¶ 87} Although our reasons for denying Mother relief under R.C. §
{¶ 88} The trial court did not abuse its discretion in modifying the Shared Parenting Plan or in overruling Mother's request for relief under Civ.R. 60(B) and R.C.
Donofrio, J., concurs.
DeGenaro, J., dissents with dissenting opinion.
Dissenting Opinion
{¶ 89} Because the trial court based its decision to terminate the shared parenting agreement on inadmissible evidence, I must respectfully dissent. In its judgment entry, the trial court acknowledges that it took into account Appellant's sexual history when making its determination. Pursuant to the "direct adverse impact" doctrine, a parent's sexual activity may not be taken into account unless it can be proven that the behavior is actually having a present negative effect on the child. The record in this case does not support such a finding since no testimony was adduced regarding the effects either parent's behavior was having on the minor child. Accordingly, I would reverse and remand this case for further proceedings in which the "direct adverse impact" test should be applied.
{¶ 90} In Inscoe v. Inscoe (1997),
{¶ 91} "'"* * * The direct adverse impact approach to custody * * * is the soundest, provided certain limitations on its application are adopted. Courts *257
should consider only present impact. Before depriving a sexually active parent of custody, courts should demand preponderance proof that the parent's conduct is having or is probably having an effect on the child and that the effect is actually harmful. Without such proof, the fact of nonmarital sexual conduct should not justify a custody denial or change. Moreover, on the issue of harmfulness, the primary focus should be on the child's present physical and psychological welfare and developmental potential. Unless accompanied by clearly adverse collateral consequences, moral impact should be ignored."'" (Emphasis deleted.) Inscoe at 413-414,
{¶ 92} A more appropriate standard for considering the alleged moral impropriety of a parent in a custody dispute has been stated as follows:
{¶ 93} "Concern for a child's well-being or best interests does not * * * provide the court carte blanche to judge the rights and lifestyles of parents by nonstatutory codes of moral or social values. Although a court is not obliged to wear blinders as to a parent's lifestyle and/or morals, including sexual conduct, any state interest in competing lifestyles and accompanying moral values which affect child custody would most equitably be served if limited to a determination of the direct or probable effect of parental conduct on the physical, mental, emotional, and social development of the child * * *." Rowe v. Franklin (1995),
{¶ 94} Here, there was a great deal of proof that the Appellant was not leading the most conventional of lives. Admittedly, Appellant carried on her atypical sexual practices under the same roof as her child. However, the record indicates that any sexual practices which could be considered potentially harmful to the child were kept private. Moreover, the record is devoid of any proof that the minor child was affected in any way by Appellant's behavior. To the contrary, there was evidence that the child was doing well in the custody of Appellant.
{¶ 95} Because there is no way to determine how much weight the trial court actually placed on Appellant's sexual behavior when making its determination to terminate the shared parenting agreement, I would remand this case back to the trial court so that it could make its determination by applying the direct adverse impact test. *258
