MARK L. NOLAN v. PATRICIA D. NOLAN
Case No: 11CA3444
IN THE COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT SCIOTO COUNTY
August 14, 2012
2012-Ohio-3736
Kline, J.
[Cite as Nolan v. Nolan, 2012-Ohio-3736.] Plaintiff-Appellant: MARK L. NOLAN; Defendant-Appellant: PATRICIA D. NOLAN; DECISION AND JUDGMENT ENTRY
Richard E. Wolfson, Portsmouth, Ohio, for Appellant.
Marie Moraleja Hoover, Portsmouth, Ohio, for Appellee.
Kline, J.:
{1} Mark L. Nolan (hereinafter “Mark“) appeals the judgment of the Scioto County Court of Common Pleas, Domestic Relations Division. The trial court (1) terminated a shared-parenting plan and (2) designated Patricia D. Nolan (hereinafter “Patricia“) as the residential parent of Mark and Patricia‘s minor child (hereinafter the “Child“). In his first-and-third assignments of error, Mark raises various arguments about the trial court‘s interim orders. However, because the trial court terminated the interim orders by entering a final judgment, we find that Mark‘s interim-order arguments are moot. Therefore, we decline to address them. Mark also contends that the guardian ad litem‘s testimony and report should have been stricken from the record. We agree. The guardian ad litem‘s investigation fell far short of the minimum standards
I.
{2} Mark and Patricia were divorced in 2009. As part of their divorce, the trial court adopted a shared-parenting plan for the Child.
{3} The Child was born on November 22, 2004, and has been diagnosed with attention deficit hyperactivity disorder (“ADHD“). Additionally, the Child has developed various behavioral issues. Doctors have prescribed medication for the Child, and the use of that medication has been a source of tension between Patricia and Mark. Patricia has favored a more aggressive approach with the medication, but Mark has preferred a more conservative approach.
{4} Patricia met Gabe Winbauer (hereinafter “Winbauer“) over the internet, and the two developed a romantic relationship. Winbauer lives in Oregon, where he owns a furniture-assembly business. Eventually, Patricia decided that she wanted to live with Winbauer in Oregon.
{5} On September 14, 2010, Patricia filed a motion to terminate the shared-parenting plan and have herself designated as the Child‘s residential parent. Patricia had the following intentions: She wanted to move herself, her daughter from a previous relationship, and the Child to Oregon. Once there, the three of them would live with Winbauer, and Patricia would work for Winbauer‘s company.
{6} On October 29, 2010, Mark filed his Memorandum Contra and Motion to Modify Prior Decree. Mark did “not oppose [Patricia] relocating” to Oregon, but he believed that it was “not in the child‘s best interest to go with her.” As a result, Mark requested that he be designated the Child‘s residential parent if Patricia decided to relocate.
{7} Patricia requested the appointment of a guardian ad litem. The trial court granted Patricia‘s request, and Patricia submitted a $600 deposit for the guardian ad litem‘s fee.
{8} Based upon the record before us, the following actions represent the scope of the guardian ad litem‘s investigation. First, the guardian ad litem conducted several interviews with both (1) Patricia and the Child and (2) Mark and the Child. These interviews all took place in the guardian ad litem‘s office. The guardian ad litem interviewed (1) Patricia and the Child two-or-three times and (2) Mark and the Child two-or-three times, with each interview lasting “[s]omewhere between half an hour and an hour each.” Transcript at 23. Additionally, the guardian ad litem received an email from Winbauer. This email “detail[ed] that [Winbauer] had a job . . . [and that Patricia] had a job waiting for her through . . . [Winbauer‘s] company[.]” (Ellipses sic.) Transcript at 31. And finally, the guardian ad litem reviewed some of Patricia‘s trial exhibits.
{9} On March 14, 2011, the guardian ad litem filed his report, which states the following: “The best interests of [the Child] are clearly promoted by granting [Patricia‘s] Multi-Branch Motion and making her residential parent and legal custodian. * * * Even if [Patricia] were not intending to move to Oregon, a designation of [Patricia] as residential parent and legal custodian would still be in the best interest of [the Child].”
{10} On March 21, 2011, the trial court held a hearing before a magistrate. The hearing addressed, in part, the following issues: (1) the Child‘s medical and behavioral issues, (2) Mark‘s method of disciplining the Child, (3) Patricia‘s relationship with Winbauer, (4) the Child‘s familiarity with Winbauer and Oregon, and (5) the scope of the guardian ad litem‘s investigation.
{11} On May 3, 2011, the magistrate issued his decision. The magistrate found that “there have been changes of circumstances * * * and the harm from terminating the shared parenting plan [is] outweighed by the benefits.” May 3, 2011 Magistrate‘s Decision at 7. The magistrate also found “that terminating the shared parenting plan and designating Mother as residential parent is in the best interests of the minor child.” Id. at 6. As a result, the magistrate recommended (1) that Patricia be designated the residential parent and (2) that she “be allowed to relocate to Oregon with the minor child.” Id. at 7.
{12} On May 10, 2011, Mark filed his Objection to Magistrate‘s Decision and Request for Findings of Fact and Conclusions of Law. In this filing, Mark argued, among other things, that “[t]he report of the [guardian ad litem] should be disregarded as deficient at law.” (Patricia also filed objections to the magistrate‘s decision, but her objections are irrelevant to the issues on appeal.)
{13} Also on May 10, 2011, the guardian ad litem filed a motion to release Patricia‘s $600 deposit. The next day, Mark filed his Memorandum Contra Opposing Release of Funds. Mark claimed that the guardian ad litem‘s investigation did not meet the minimum standards established by the Supreme Court of Ohio. As a result, Mark argued that the guardian ad litem should not be paid. Mark also reiterated that the guardian ad litem‘s “testimony and report [should] be stricken as a matter of law[.]” Memorandum Contra Opposing Release of Funds at 1.
{14} On May 18, 2011, the magistrate issued findings of fact and conclusions of law. That same day, the trial court released Patricia‘s $600 deposit to the guardian ad litem as payment for his services.
{15} The trial court entered two interim orders in this case -- one on May 18, 2011, and one on July 1, 2011. Both interim orders designated Patricia as the Child‘s residential parent and allowed her to move to Oregon with the Child. (On May 24, 2011, Mark filed a
{16} On July 26, 2011, the trial court issued its judgment entry, which adopts the magistrate‘s May 3, 2011 decision (with a modification related to Mark‘s parenting time). Significantly, the July 26, 2011 judgment entry does not refer to the magistrate‘s May 18, 2011 findings of fact and conclusions of law. Regardless, the July 26, 2011 judgment entry (1) terminates the shared-parenting plan, (2) designates Patricia as the Child‘s residential parent, (3) allows her to move to Oregon with the Child, and (4) establishes Mark‘s parenting time with the Child.
{17} Mark appeals and asserts the following four assignments of error: I. “The trial court erred in issuing an Interim Order without competent, credible evidence of a
II.
{18} In his first-and-third assignments of error, Mark makes various arguments related to the trial court‘s interim orders. We find, however, that these arguments are moot.
{19} “[A]n issue is moot when it has no practical significance, being instead merely hypothetical or academic.” In re Guardianship of Weller, 2d Dist. No. 24337, 2011-Ohio-5816, ¶ 7. And here, we find that the issues related to the interim orders are moot because “interim order[s] terminate[] upon the court‘s entry of final judgment.” Nemeth v. Nemeth, 11th Dist. No. 2007-G-2791, 2008-Ohio-3263, ¶ 28. On July 26, 2011, the trial court entered a final judgment in this case. Therefore, the trial court‘s
{20} Accordingly, because they are moot, we decline to address Mark‘s first-and-third assignments of error.
III.
{21} We will address Mark‘s fourth assignment of error out of order. In his fourth assignment of error, Mark raises two arguments related to the guardian ad litem. We will address these arguments separately.
A.
{22} Initially, Mark argues that the guardian ad litem‘s testimony and report should have been stricken from the record. We agree.
{23} We review the trial court‘s determination of whether to strike a guardian ad litem‘s testimony and report under an abuse-of-discretion standard. See Barry v. Rolfe, 8th Dist. Nos. 88459, 88460, 88676, 88680, 88681, 88682, 88683, 88684, 88685, 88686, 88908, 88909, 88910, & 88911, 2008-Ohio-3131, ¶ 33. An abuse of discretion connotes more than a mere error of judgment; it implies that the court‘s attitude is arbitrary, unreasonable, or unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983).
{24} Mark argues that the guardian ad litem‘s investigation fell below the minimum standards established in the Rules of Superintendence for the Courts of Ohio.
“The Supreme Court of Ohio recently adopted
A guardian ad litem shall make reasonable efforts to become informed about the facts of the case and to contact all parties. In order to provide the court with relevant information and an informed recommendation as to the child‘s best interest, a guardian ad litem shall, at a minimum, do the following, unless impracticable or inadvisable because of the age of the child or the specific circumstances of a particular case:
(a) Meet with and interview the child and observe the child with each parent, foster parent, guardian or physical custodian and conduct at least one interview with the child where none of these individuals is present;
(b) Visit the child at his or her residence in accordance with any standards established by the court in which the guardian ad litem is appointed;
(c) Ascertain the wishes of the child;
(d) Meet with and interview the parties, foster parents and other significant individuals who may have relevant knowledge regarding the issues of the case;
(e) Review pleadings and other relevant court documents in the case in which the guardian ad litem is appointed;
(f) Review criminal, civil, educational and administrative records pertaining to the child and, if appropriate, to the child‘s family or to other parties in the case;
(g) Interview school personnel, medical and mental health providers, child protective services workers and relevant court personnel and obtain copies of relevant records;
(h) Recommend that the court order psychological evaluations, mental health and/or substance abuse assessments, or other evaluations or tests of the parties as the guardian ad litem deems necessary or helpful to the court; and
(i) Perform any other investigation necessary to make an informed recommendation regarding the best interest of the child.
{25} Here, it is apparent that the guardian ad litem did not meet the minimum standards of
{26} Therefore, the question is: How does
{27} Because
B.
{28} Mark also argues that the trial court erred by releasing funds to the guardian ad litem. We find, however, that Mark lacks standing to appeal this issue. “The doctrine of standing holds that only those parties who * * * have been prejudiced by the decision of the lower court possess the right to appeal.” In re Estate of Jones, 4th Dist. No. 09CA879, 2009-Ohio-4457, ¶ 22. And because Patricia paid for the guardian ad litem‘s services, Mark has not been injuriously affected by the trial court‘s decision to release funds to the guardian ad litem. See Midwest Fireworks Mfg. Co. v. Deerfield Twp. Bd. of Zoning Appeals, 91 Ohio St.3d 174, 177, 743 N.E.2d 894 (2001). Accordingly, we find that Mark lacks standing to appeal the payment issue.
C.
{29} In conclusion, we find that the trial court abused its discretion when it failed to strike the guardian ad litem‘s testimony and report. But we also find that Mark
IV.
{30} In his second assignment of error, Mark contends that the trial court‘s decision is contrary to law and against the manifest weight of the evidence.
{31} “Although a trial court must follow the dictates of
“An appellate court must afford a trial court‘s child custody determinations the utmost respect, ‘given the nature of the proceeding[,] the impact the court‘s determination will have on the lives of the parties concerned[, and the fact that] [t]he knowledge a trial court gains through observing the witnesses and the parties in a custody proceeding cannot be conveyed to a reviewing court by a printed record.‘”
(Alterations sic.) McGraw v. McGraw, 4th Dist. No. 09CA3327, 2010-Ohio-3956, ¶ 13, quoting H.R., 2009-Ohio-1665, at ¶ 13, in turn quoting Pater v. Pater, 63 Ohio St.3d 393, 396, 588 N.E.2d 794 (1992).
{32} The Supreme Court of Ohio has defined the abuse of discretion standard that applies to child-custody cases.
““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. * * *
““The reason for this standard of review is that the trial judge has the best opportunity to view the demeanor, attitude, and credibility of each witness, something that does not translate well on the written page. * * * The underlying rationale of giving deference to the findings of the trial court rests with the knowledge that the trial judge is best able to view the witnesses and observe their demeanor, gestures and voice inflections, and use these observations in weighing the credibility of the proffered testimony. * * * A reviewing court should not reverse a decision simply because it holds a different opinion concerning the credibility of the witnesses and evidence submitted before the trial court. A finding of an error in law is a legitimate ground for reversal, but a difference of opinion on credibility of witnesses and evidence is not. The determination of credibility of testimony and evidence must not be encroached upon by a reviewing tribunal * * *. This is even
more crucial in a child custody case, where there may be much evident in the parties’ demeanor and attitude that does not translate to the record well.“’ (Omissions sic.)
McGraw, 2010-Ohio-3956, at ¶¶ 14-15, quoting Posey v. Posey, 4th Dist. No. 07CA2968, 2008-Ohio-536, ¶ 10, in turn quoting Davis, 77 Ohio St.3d 415, 418-419, 674 N.E.2d 1159.
{33}
{34} Under
[T]he court shall consider all relevant factors, including, but not limited to: (a) The wishes of the child‘s parents regarding the child‘s care; (b) If the court has interviewed the child in chambers * * * 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; * * * (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.
{35} Furthermore,
In determining whether shared parenting is in the best interest of the children, the court shall consider all relevant factors, including, but not limited to, the factors enumerated in [
R.C. 3109.04(F)(1) ], the factors enumerated in [R.C. 3119.23 ], and all of the following factors: (a) The ability of the parents to cooperate and make decisions jointly, with respect to the children; (b) The ability of each parent to encourage the sharing of love, affection, and contact
between the child and the other parent; (c) Any history of, or potential for, child abuse, spouse abuse, other domestic violence, or parental kidnapping by either parent; (d) The geographic proximity of the parents to each other, as the proximity relates to the practical considerations of shared parenting; (e) The recommendation of the guardian ad litem of the child, if the child has a guardian ad litem.
R.C. 3109.04(F)(2) .
A.
{36} Initially, we must address a procedural issue related to the trial court‘s July 26, 2011 judgment entry. Specifically, the trial court‘s July 26, 2011 judgment entry makes no reference to the magistrate‘s May 18, 2011 findings of fact and conclusions of law. Instead, the July 26, 2011 judgment entry references only the magistrate‘s May 3, 2011 decision.1 As a result, the trial court adopted the magistrate‘s May 3, 2011 decision (with a modification related to Mark‘s parenting time), and the magistrate‘s May 18, 2011 findings of fact and conclusions of law are of no effect. See
{37} Thus, as a jurisdictional matter, we note the following: By adopting the magistrate‘s May 3, 2011 decision, the trial court fulfilled its obligation to issue findings
{38} Nevertheless, the trial court‘s July 26, 2011 judgment entry does not fully comply with
{39} Additionally, and perhaps more importantly, the trial court‘s conclusions of law are stated in a general manner. For example, the magistrate‘s May 3, 2011 decision states that “terminating the shared parenting plan and designating Mother as
{40} Based on the foregoing, we must determine whether the trial court substantially complied with
B.
{41} After considering the judgment entry along with the record, we do not have an adequate basis to decide the issues on appeal. See Scarberry v. Lawless, 4th Dist. No. 08CA7, 2009-Ohio-2212, ¶ 11-13. That is, we cannot determine whether the trial court followed the requirements of
{42} “Failure to follow the mandates of
i.
{43} Initially, we cannot determine whether the trial court considered the proper factors when it terminated the shared-parenting plan. The July 26, 2011 judgment entry states the following: “It is the FINDING of the Court that there have been changes of circumstances and the harm from terminating the shared parenting plan [is] outweighed by the benefits.” But this finding is erroneous. “[N]othing in
{44} In deciding whether to terminate the shared-parenting plan, “the trial court should have applied
ii.
{45} Next, we cannot determine whether the trial court considered the proper factors when it designated Patricia as the residential parent.
Upon the termination of a prior final shared parenting decree under division (E)(2)(c) of [
R.C. 3109.04 ], 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 [R.C. 3109.04 ] as if no decree for shared parenting had been granted and as if no request for shared parenting ever had been made.R.C. 3109.04(E)(2)(d) .
Therefore, to determine the Child‘s residential parent, the trial court had to “start from scratch” and consider the factors in
{46} We have held that, absent a request for findings of fact and conclusions of law, a trial court is not obligated to “engage in a specific analysis of the [
{47} First, the trial court‘s July 26, 2011 judgment entry does not reference
{48} Moreover, even if we were to assume that the trial court considered the appropriate factors, we cannot determine how the trial court arrived at its ultimate decision. In other words, we cannot determine how much weight the trial court assigned to each
{49} Certainly, some evidence appears to support the designation of Patricia as the residential parent. But without adequate findings of fact and conclusions of law, we cannot determine whether the trial court considered this evidence under the appropriate
C.
{50} In considering Mark‘s second assignment of error, we find (1) that the trial court‘s judgment entry is deficient and (2) that we do not have an adequate basis to decide the relevant issues on appeal. See Scarberry, 2009-Ohio-2212, at ¶ 11-13.
V.
{51} In conclusion, we find that Mark‘s first-and-third assignments of error are moot. Therefore, we decline to address them. We also sustain, in part, and overrule, in part Mark‘s fourth assignment of error. Here, the guardian ad litem‘s testimony and report should have been stricken from the record, but Mark does not have standing to appeal the release of funds to the guardian ad litem. Finally, because we do not have an adequate basis to decide the issues on appeal, we sustain Mark‘s second assignment of error. Accordingly, we reverse the trial court‘s judgment and remand this cause to the trial court for further proceedings consistent with this opinion.
JUDGMENT AFFIRMED, IN PART, REVERSED, IN PART, AND CAUSE REMANDED.
JUDGMENT ENTRY
It is ordered that the JUDGMENT BE AFFIRMED, IN PART, REVERSED, IN PART, and this CAUSE BE REMANDED to the trial court for further proceedings consistent with this opinion. Appellant and Appellee shall split the costs equally.
The Court finds that there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the Scioto County Common Pleas Court, Domestic Relations Division, to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to
Harsha, J. and McFarland, J.: Concur in Judgment Only.
For the Court
BY: ______________________________
Roger L. Kline, Judge
NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a final judgment entry and the time period for further appeal commences from the date of filing with the clerk.