LISA PHILLIPS v. DONALD PHILLIPS
C.A. No. 13CA010358
IN THE COURT OF APPEALS NINTH JUDICIAL DISTRICT
January 27, 2014
[Cite as Phillips v. Phillips, 2014-Ohio-248.]
MOORE, Presiding Judge.
APPEAL FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF LORAIN, OHIO CASE Nо. 00NU057447
Dated: January 27, 2014
MOORE, Presiding Judge.
{1} Appellant, Lisa Phillips, appeals the order of the Lorain County Court of Common Pleas, Domestic Relations Division, that granted custody of her two minor children to their father, Donald Phillips. This Court affirms in part and reverses in part.
I.
{2} Lisa and Donald Phillips dissolved their marriage in 2000, entering into a shared parenting plan with respect to their two minor children, S.P. and M.P. The shared parenting plan designated Ms. Phillips as the residential parent. Within a few years, Ms. Phillips relocated to Kentucky with the children. Mr. Phillips maintainеd some contact with the children, but the extent of the contact was limited. Ms. Phillips also has another daughter whose father is not Mr. Phillips, and while the family lived in Kentucky, her relationship with Ms. Phillips deteriorated. That daughter, Randi, is now an adult. Although Randi has no ongoing relationship with Ms. Phillips, she has maintained relationships with her younger siblings.
{4} The trial court terminated the shared parenting agreement, designated Mr. Phillips as the residential parent and legal custodian of S.P. and M.P., terminated his child support obligation, and ordered Ms. Phillips to pay child support based on imputed income. The trial court permitted visitation between Ms. Phillips and the children provided that she undergo substance abuse and anger manаgement counseling. Ms. Phillips appealed, and she has asserted four assignments of error.
II.
ASSIGNMENT OF ERROR I
THE TRIAL COURT ABUSED ITS DISCRETION WITH REGARD TO ALLOCATING PARENTAL RIGHTS AND RESPONSIBILITIES BETWEEN THE PARTIES.
{5} Ms. Phillips’ first assignment of error makes two arguments: first, that the trial court‘s journal entry is deficient because it does not explicitly mention that the trial court considered all of the factors set forth in
{6} Ms. Phillips does not argue that the trial court erred in terminating the shared parenting plan. Indeed, she testified at trial that she agreed with Mr. Phillips that shared parenting did not work for their situation. Instead, Ms. Phillips’ arguments relate to the reallocation of parental rights and responsibilities once the shared parenting agreement was terminated.
{7} This Court has recently explained the obligations of a trial court under
After the trial court terminates the prior shared parenting plan, the court shall “issue a modified decree for the allocation of parental rights and responsibilities for the care of the children * * * as if no decree for shared parenting had been granted and as if no request for shared parenting ever had been made.” When allocating parental rights and responsibilities, the court must take into account the best interest of the children.
R.C. 3109.04(B)(1) . “To determine what is in the best interest of the child[ren] for the purpose of determining how to reallocate parental rights, the trial court must consider the factors set forth inR.C. 3109.04(F)(1) .
(Internal citations omitted.) Bentley v. Rojas, 9th Dist. Lorain No. 10CA009776, 2010-Ohio-6243, ¶ 19. Under
{8} Ms. Phillips’ first argument is that the trial court erred by determining this matter without reference to the best interest factors set forth above. Although
{9} In this case, the trial court did not explicitly state that its findings were made pursuаnt to
{11} Ms. Phillips has argued that the trial court‘s decision is tainted by evident bias against her. We have reviewed the record in this matter, including the in camera interviews of the children, which were filed under seal, and we do not agree that the trial court abused its discretion. The record confirms that S.P. and Ms. Phillips have a strained relationship, at best, while S.P. enjoys a good relationship with M.P. as well as Mr. Phillips, his current wife, and her children. As the trial court noted, S.P. has adjusted well to her home, school, and community in Ohio, while M.P. is well-adjusted to his school in Kentucky.
{12} The trial court made numerous findings with respect to Ms. Phillip‘s relationship with her current husband and her eldest daughter that bear, at least indirectly, on questions of mental health and substance abuse. The record supports these findings. More specifically, the evidence established that Ms. Phillips married a man whom she had known only briefly without knowledge of his criminal history; that their relationship was marked by repeated, horrific incidents of domestic violence, during which, on at least one occasion, M.P. was in the home;
{13} Given the trial court‘s findings, which are supported by the evidence in the record, we cannot conclude that it was an abuse of the trial court‘s discretion to designate Mr. Phillips as residential parent and award legal custody to him. While it is clear that Ms. Phillips disagrees with the testimony of her eldest child, the trial court had the advantage of viewing the demeanor of the witnesses and judging their credibility. ““In proceedings involving the custody and welfare of children the power of the trial court to exercise discretion is peculiarly important. The knowledge obtained through contact with and observаtion of the parties and through independent investigation can not be conveyed to a reviewing court by the printed record.“” Bechtol v. Bechtol, 49 Ohio St.3d 21, 23 (1990), quoting Trickey v. Trickey, 158 Ohio St. 9, 13 (1952). There is no indication of bias evident from the record in this case. What Mother references as bias is, in the context of her argument, a complaint that the court chose to credit the testimony of other witnesses who testified contrary to Mother. Of course, such a determination
{14} Ms. Phillips’ first assignment of error is overruled.
ASSIGNMENT OF ERROR II
THE TRIAL COURT‘S ORDER RELATING TO [MS. PHILLIPS‘] VISITATION RIGHTS IS CONTRADICTORY AND REPRESENTS AN ABUSE OF DISCRETION.
{15} Ms. Phillips’ second assignment of error argues that the trial court abused its discretiоn with respect to the terms of her visitation with S.P. and M.P. Because the terms of the trial court‘s order are clear, we disagree.
{16} The trial court‘s order provides:
Mother, Lisa Phillips, shall have companionship with the minor children as follows, conditioned upon Mother engaging and completing substance abuse treatment/counseling and anger management counseling, and providing proof of same to the Court of the commencement date of said services[.]
* * *
If Mother fails to provide verification of the commencement of counseling as previously ordered, then visitation is hereby suspended and will not occur until Mother provides same.
(Emphasis added.) According to the plain terms of the trial court‘s order, the trial court ordered visitation that may be suspended if Ms. Phillips fails to provide verification that she has commenced substance abuse counseling. Ms. Phillips has not argued that the trial court erred by ordering her to participate in counseling. Therefore, because the terms of the ordеr are clear, Ms. Phillips’ assignment of error is overruled.
ASSIGNMENT OF ERROR III
THE TRIAL COURT‘S CHILD SUPPORT AWARD IS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.
{18} “In determining the appropriate level of child support, a trial court must calculate the gross income of the parents. When a parent is unemployed, income includes potential income that may be imputed to the parent by the trial court.” Bajzer v. Bajzer, 9th Dist. Summit No. 25635, 2012-Ohio-252, ¶ 11, citing
{19} The trial court imputed full-time employment at minimum wage to Ms. Phillips, but did not explicitly find that she is voluntarily unemployed or underemployed. Her third assignment of error is sustained on this basis, and her arguments regarding the weight of the evidence supporting her сhild support obligation are premature.
{20} Ms. Phillips’ third assignment of error is sustained.
ASSIGNMENT OF ERROR IV
THE TRIAL COURT COMMITTED REVERSIBLE ERROR WHEN IT FAILED TO APPOINT A GUARDIAN AD LITEM AS REQUIRED BY
{21} Ms. Phillips’ final assignment of error argues that the trial court erred by failing to appoint a guardian ad litem in response to Mr. Phillips’ motion.
{22} Under
{23} Consequently, we have concluded that “[f]ailure to strictly follow the mandates of the statute is reversible error, even where the trial court has made a thoughtful and conscientious decision.” Dolub at ¶ 4, quoting McClanahan v. Willenbrink, 12th Dist. Clermont No. CA99-11-111, 2000 WL 628229, * 4 (May 15, 2000). Nonetheless, the doctrine of forfeiture also applies in this context. See Miracle v. Allen, 9th Dist. Lorain No. 05CA008843, 2006-Ohio-5063, ¶ 6-7. In Miracle, the appellant requested an in camera interview of the child, but did not mention his request again at trial despite the fact that the interview had not been conducted. Id. at ¶ 3, 6. This Court acknowledged the mandatory nature of
{24} We are mindful that it was Mr. Phillips who requested the appointment of a guardian ad litem rather than Ms. Phillips. For purposes of this discussion, we assume without
In appeals of civil cases, the plain error doctrine is not favored and may be applied only in the extremely rare case involving exceptional circumstances where error, to which no оbjection was made at the trial court, seriously affects the basic fairness, integrity, or public reputation of the judicial process, thereby challenging the legitimacy of the underlying judicial process itself.
Id. This is a “very high standard.” Perez v. Falls Financial, Inc., 87 Ohio St.3d 371, 375 (2000).
{25} The trial court interviewed both children in camera and, as reflected in the judgment entry, considered their wishes with respect to custody. The hearing on this matter was extensive, and the trial court afforded considerable latitude to Ms. Phillips, who proceeded pro se. Ms. Phillips cross-еxamined each witness in detail and presented her own testimony, albeit in narrative form. It is evident from the record that the trial court was faced with difficult determinations of credibility, based in part on the thoroughness with which Ms. Phillips presented her case. In this respect, we note that the recommendations of a guardian ad litem are one relevant factor for purposes of the best interest analysis under
{26} Using the plain error standard, we cannot agree that the trial court‘s fаilure to appoint a guardian ad litem at Mr. Phillips’ request impacted the “basic fairness, integrity, or public reputation of the judicial process” in a way that undermined the legitimacy of the judicial
III.
{27} Ms. Phillips’ first, second, and fourth assignments of error are overruled. Her third assignment of error is sustained to the extent that the trial court erred by imputing income without explicitly finding Ms. Phillips to be voluntarily unemployed or underemployed, but the remaining arguments in her third assignments of error are premature. This matter is affirmed in part and reversed in part, and the case is remanded to the trial court for proceedings consistent with our resolution of Ms. Phillips’ third assignment of error.
Judgment affirmed in part, reversed in part, and cause remanded.
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 еxecution. A certified copy of this journal entry shall constitute the mandate, pursuant to
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.
CARLA MOORE
FOR THE COURT
HENSAL, J. CONCURS.
BELFANCE, J. DISSENTING.
{28} I respectfully dissent from the judgment of the majоrity because I would conclude that the trial court committed reversible error in failing to appoint a GAL for the children.
{29}
(B)(1) When making the allocation of the parental rights and responsibilities for the care of the children under this section in an original proceeding or in any proceeding for modification of a prior order of the court making the allocation, the court shall take into account that which would be in the best interest of the children. In determining the child‘s best interest for purposes of making its allocation of the parental rights and responsibilities for the care of the child and for purposes of resolving any issues related to the making of that allocation, the court, in its discretion, may and, upon the request of either party, shall interview in chambers any or all of the involved children regarding their wishes and concerns with respect to the allocation.
(2) If the court interviews any child pursuant to division (B)(1) of this section, all of the following apply:
(a) The сourt, in its discretion, may and, upon the motion of either parent, shall appoint a guardian ad litem for the child.
(Emphasis added.)
{30} Under the plain language of the statute, if the trial court interviews a child in-camera and either parent moves for the appointment of a GAL, the trial court is mandated to appoint a GAL. Custody disputes are frequently contentious and sadly often involve one or both
{31} This Court has not considered this precise issue. In the context of mandamus proceedings, the Ohio Suрreme Court has observed that
{32} This Court has previously examined a trial court‘s failure to conduct an in-camera interview after a request was mаde under
{33} Miracle involved the waiver/forfeiture of the right to an in-camera interview, not the accompanying appointment of a GAL under the statute and so it is distinguishable from this case on that basis alone. See Miracle at ¶ 6. Regardless, I would not apply the reasoning of Miracle to the instant matter given the critical difference in the posture of the proceedings. Dolub and Miracle address the circumstance where the trial court did not take any action under the statute and thus, an in-сamera interview did not influence the decision on the merits. But see Mangan v. Mangan, 2d Dist. Greene No. 07-CA-100, 2008-Ohio-3622, ¶ 24 (disagreeing with
{34} A trial court that must make custody decisions is placed in the unenviable position of making a decision that will indelibly impact the future of a child as well as the parents and extended family members. The lеgislature wisely imposed a mandatory requirement to appoint a GAL under circumstances where the court interviews a child and a party requests the appointment of a GAL.
{35} Finally, once either party files a request for an in-camera interview and the appointment of a GAL, given the trial court‘s responsibility under the statute, there is no need for the other party to file a request for the same. See
{36} As this Court and our sister courts have recognized, there may be cases where the trial court‘s decision on the merits of a custody matter appears on its face to be reasonable notwithstanding its failure to comply with its statutory duties under
APPEARANCES:
JOSEPH P. MCCAFFERTY, Attorney at Law, for Appellant.
JOHN S. HAYNES, Attorney at Law, for Appellee.