SCOTT RICE v. FAITH RICE
Case No. 10 CA F 11 0091
COURT OF APPEALS DELAWARE COUNTY, OHIO FIFTH APPELLATE DISTRICT
June 23, 2011
[Cite as Rice v. Rice, 2011-Ohio-3099.]
Hon. John W. Wise, P. J.; Hon. Julie A. Edwards, J.; Hon. Patricia A. Delaney, J.
CHARACTER OF PROCEEDING: Civil Appeal from the Court of Common Pleas, Domestic Relations Division, Case No. 97 DR A 04097; JUDGMENT: Affirmed
For Plaintiff-Appellant
ROBERT J. MANN
ROBERT J. MANN & ASSOC.
150 East Mound Street, Suite 308
Columbus, Ohio 43215
MARY SPAHIA-CARDUCCI
CARDUCCI & ASSOCIATES
150 East Mound Street, Suite 308
Columbus, Ohio 43215
For Defendant-Appellee
DOUGLAS J. BEHRINGER
c/o FOP/OLC., INC.
222 East Town Street
Columbus, Ohio 43215
JAMES B. HARRIS
HARRIS, MCCLELLAN, BINAU & COX
37 East Broad Street, Suite 950
Columbus, Ohio 43215
{¶1} Plaintiff-Appellant Scott Rice appeals from the decision of the Delaware County Court of Common Pleas, Domestic Relations Division, which dismissed his motion to terminate shared parenting pursuant to
{¶2} On May 8, 1998, appellant and appellee were granted a divorce by the Delaware County Court of Common Pleas, Domestic Relations Division. The divorce decree incorporated a shared parenting plan concerning the parties’ twin sons, C.R. and C.R., born in 1996. The twins are now teenagers and, among other things, are avid hockey players.
{¶3} Pursuant to a modification of the plan on August 3, 2001, Appellee Faith was named residential parent for school purposes.
{¶4} The parties were again before the trial court in 2005 and 2006, resulting in an order on April 4, 2006 incorporating a memorandum of agreement of the parties as to shared parenting.
{¶5} On June 5, 2008, appellant filed a motion for modification of parental rights and responsibilities and modification of child support. He specifically therein requested a termination of shared parenting on the basis of substantial change in circumstances. Appellant averred that, inter alia, appellee was interfering with the boys’ hockey activities and that she failed “to provide for the children to attend middle school in a public or private school district other than the Columbus City Schools.” Affidavit in Support, June 5, 2008, at 1.
{¶7} At the close of appellant‘s case-in-chief, appellee moved for a dismissal under
{¶8} Appellant thereupon filed timely objections to the magistrate‘s decision.
{¶9} On October 25, 2010, the trial court overruled appellant‘s objections and adopted the magistrate‘s decision via judgment entry.
{¶10} On November 19, 2010, appellant filed a notice of appeal. He herein raises the following eleven Assignments of Error:
{¶11} “I. THE LOWER COURT ERRED IN OVERRULING [APPELLANT‘S] OBJECTIONS AND AFFIRMING THE MAGISTRATE‘S DECISION WHERE THE COURT ERRONEOUSLY CREATED A BIFURCATED STANDARD REQUIRING A PARTY TO FIRST SHOW A CHANGE IN CIRCUMSTANCES BEFORE A MINOR CHILD WILL BE INTERVIEWED, WHEN SUCH HOLDING IS CONTRARY TO OHIO LAW.
{¶12} “II. THE LOWER COURT ERRED IN OVERRULING [APPELLANT‘S] OBJECTIONS AND AFFIRMING THE MAGISTRATE‘S DECISION WHERE THE
{¶13} “III. THE LOWER COURT ERRED IN OVERRULING [APPELLANT‘S] OBJECTIONS AND AFFIRMING THE MAGISTRATE‘S DECISION WHERE THE COURT DISREGARDED ITS OWN FEBRUARY 5, 2010 DECISION THAT A CHANGE IN CIRCUMSTANCES IS NOT A CONDITION PRECEDENT TO INTERVIEWING A MINOR CHILD.
{¶14} “IV. THE LOWER COURT ERRED IN OVERRULING [APPELLANT‘S] OBJECTIONS AND AFFIRMING THE MAGISTRATE‘S DECISION WHERE THE COURT FAILED TO APPOINT AN ADVOCATE OR OTHERWISE MAKE APPROPRIATE ORDERS FOR THE MINOR CHILDREN WHEN THE WISHES OF THE CHILDREN CONFLICTED WITH THE RECOMMENDATION OF THE GUARDIAN AD LITEM.
{¶15} “V. THE LOWER COURT ERRED IN OVERRULING [APPELLANT‘S] OBJECTIONS AND AFFIRMING THE MAGISTRATE‘S DECISION WHERE THE COURT FAILED TO CONSIDER THE REPORT AND RECOMMENDATION OF THE GUARDIAN AD LITEM.
{¶16} “VI. THE LOWER COURT ERRED IN OVERRULING [APPELLANT‘S] OBJECTIONS AND AFFIRMING THE MAGISTRATE‘S DECISION WHERE THE COURT WHERE THE COURT FAILED TO ALLOW [APPELLANT] TO SUBMIT SPECIFIED PORTIONS OF THE GUARDIAN AD LITEM‘S REPORT.
{¶17} “VII. THE LOWER COURT ERRED IN OVERRULING [APPELLANT‘S] OBJECTIONS AND AFFIRMING THE MAGISTRATE‘S DECISION WHEN THE
{¶18} “VIII. THE LOWER COURT ERRED IN OVERRULING [APPELLANT‘S] OBJECTIONS AND AFFIRMING THE MAGISTRATE‘S DECISION WHERE THE LOWER COURT ERRONEOUSLY CREATED A BIFURCATED STANDARD HOLDING A CHANGE IN CIRCUMSTANCES MUST BE SHOWN IN ORDER FOR [APPELLANT‘S] MOTION TO BE HEARD WHERE NO SUCH SHOWING IS REQUIRED BEFORE TERMINATING A SHARED PARENTING PLAN.
{¶19} “IX. THE LOWER COURT ERRED IN OVERRULING [APPELLANT‘S] OBJECTIONS AND AFFIRMING THE MAGISTRATE‘S DECISION BASED ON AN ALLEGED FAILURE TO DEMONSTRATE A CHANGE IN CIRCUMSTANCES WHEN SUCH A CHANGE IN CIRCUMSTANCES WAS IN FACT DEMONSTRATED.
{¶20} “X. THE LOWER COURT ERRED IN OVERRULING [APPELLANT‘S] OBJECTIONS AND AFFIRMING THE MAGISTRATE‘S DECISION WHERE THE LOWER COURT IMPROPERLY AND PREMATURELY DISMISSED [APPELLANT‘S] CASE WITHOUT INTERVIEWING THE CHILDREN AND WITHOUT HEARING FROM THE GUARDIAN AD LITEM.
{¶21} “XI. THE TRIAL COURT ERRED IN OVERRULING [APPELLANT‘S] OBJECTIONS AND AFFIRMING THE MAGISTRATE‘S DECISION WHERE THE LOWER COURT‘S DECISION CONTAINS ERRORS OF LAW, IS AGAINST THE
I., II.
{¶22} In his First and Second Assignments of Error, appellant contends the trial court erred in requiring him to demonstrate a change in circumstances before permitting an in camera interview between the court and the children. We disagree.
{¶23}
{¶24} Furthermore,
{¶26} In Oliver v. Arras, Tuscarawas App.No. 2001 AP 11 0105, 2002-Ohio-1590, we held that the “best interest” language of
{¶27} In light of the foregoing precedent, we hold appellant‘s claim that the trial court improperly required a demonstration of a change in circumstances before permitting an in camera interview is without merit. Appellant‘s First and Second Assignments of Error are therefore overruled.
{¶28} In his Third Assignment of Error, appellant contends the trial court erred in declining to permit an in camera interview between the court and the children, despite having issued a preliminary ruling that a change in circumstances would not be a prerequisite to such an interview. We disagree.
{¶29} Appellant points out the following preliminary ruling by the magistrate, which was set forth in the magistrate‘s pre-trial order of February 5, 2010: “A judicial determination of the existence of a change of circumstances is not a condition precedent to the granting of an in camera interview as required by O.R.C. section 3109.04(B)(1).” Id. at 1.
{¶30} We are unpersuaded that this initial determination by the magistrate conflicts with his ultimate decision not to conduct an in camera interview with the children. The magistrate‘s wording simply recognizes that a court may conduct an in camera interview even if the “change of circumstances” question is preliminarily unsettled in a given case. However, as we have previously herein set forth,
{¶31} Appellant‘s Third Assignment of Error is overruled.
V., VI., VII.
{¶32} In his Fifth, Sixth, and Seventh Assignments of Error, which we will jointly address out of sequence, appellant maintains the trial court erred in dismissing appellant‘s shared parenting termination motion (pursuant to
{¶33}
{¶34} “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 division (F)(1) of this section, the factors enumerated in section 3119.23 of the Revised Code, and all of the following factors *** (e) The recommendation of the guardian ad litem of the child, if the child has a guardian ad litem.”
{¶35} In In re Cordell (Apr. 2, 1992), Cuyahoga App. Nos. 60049 and 60050, 1992 WL 67629, the Eighth District Court of Appeals concluded that any claim of error arising from a guardian ad litem‘s failure to file a written report is waived when the argument is not raised in the trial court. In the case sub judice, appellant‘s trial counsel rested his case without requesting admission of the guardian ad litem‘s report or calling him as a witness. See Tr. at 145. The magistrate subsequently told appellant‘s trial counsel that if the report was to be entered as evidence, it would have to be entered in toto and without redactions. Again, appellant‘s trial counsel stated he would not agree to such an admission without the opportunity to cross-examine the guardian ad litem. Tr. at 151-152. This was perhaps a strategic decision by counsel, as the guardian ad litem‘s report, which was proffered for the record, ultimately contains a recommendation that the status quo should remain under the shared parenting plan, with the exception of slight parenting time changes during the school year and vacation times.
{¶37} Accordingly, appellant‘s Fifth, Sixth, and Seventh Assignments of Error are overruled.
IV.
{¶38} In his Fourth Assignment of Error, appellant maintains the trial court erred by failing to take steps on behalf of the children where the guardian ad litem‘s recommendations purportedly conflicted with the children‘s wishes.1 We disagree.
{¶39} Appellant directs us to Superintendence Rule 48(D)(8), which states: “When a guardian ad litem determines that a conflict exists between the child‘s best interest and the child‘s wishes, the guardian ad litem shall, at the earliest practical time, request in writing that the court promptly resolve the conflict by entering appropriate orders.”
{¶40} Because
{¶41} Accordingly, appellant‘s Fourth Assignment of Error is overruled.
VIII.
{¶42} In his Eighth Assignment of Error, appellant maintains the trial court erred in determining that he was required to demonstrate a change in circumstances before the termination of the parties’ shared parenting plan. We disagree.
{¶43} Appellant essentially challenges the trial court‘s reliance on Fisher v. Hasenjager, 116 Ohio St.3d 53, 876 N.E.2d 546, 2007-Ohio-5589, wherein the Ohio Supreme Court held, at the syllabus: “A modification of the designation of residential parent and legal custodian of a child requires a determination that a ‘change in circumstances’ has occurred, as well as a finding that the modification is in the best interest of the child.”
{¶44} Appellant maintains that Fisher is inapplicable to the case sub judice, as appellant herein was seeking a “termination” of shared parenting, as opposed to a “modification.” Nonetheless, as per our analysis of appellant‘s First and Second assigned errors, supra, we find no reversible error in the trial court‘s interpretation of the requirement of change in circumstances.
IX.
{¶46} In his Ninth Assignment of Error, appellant contends the trial court erred in deciding, on the merits, that he had failed to demonstrate a change in circumstances for purposes of shared parenting. We disagree.
{¶47} Our general standard of review in assessing the disposition of child-custody matters is that of abuse of discretion. Miller v. Miller (1988), 37 Ohio St.3d 71, 73-74. Furthermore, as an appellate court reviewing evidence in custody matters, we do not function as fact finders; we neither weigh the evidence nor judge the credibility of witnesses. Our role is to determine whether there is relevant, competent and credible evidence upon which the fact finder could base his or her judgment. See Dinger v. Dinger, Stark App.No. 2001 CA00039, 2001-Ohio-1386. In proceedings involving the custody and welfare of children, the power of the trial court to exercise discretion is peculiarly important. See Thompson v. Thompson (1987), 31 Ohio App.3d 254, 258, 511 N.E.2d 412, citing Trickey v. Trickey (1952), 158 Ohio St. 9, 13, 106 N.E.2d 772.
{¶48}
{¶49} “After the plaintiff, in an action tried by the court without a jury, has completed the presentation of the plaintiff‘s evidence, the defendant, *** may move for a dismissal on the grounds that upon the facts and the law, the plaintiff has shown no right to relief.”
{¶50}
{¶51}
{¶52} Appellant has asserted the following summary of developments as the basis for a finding of change in circumstances: Appellee has been “openly hostile and belligerent” in front of the boys. Appellant‘s Brief at 24. There has been a “marked deterioration in the parties’ communication and cooperation.” Appellant‘s Brief at 25. Appellee refused to allow the boys to play hockey during the 2007-2008 season because appellant would have been their coach that year. Appellee did not cooperate in transporting C.R. and C.R. to hockey games and practices for much of the 2008-
{¶53} However, upon review of the record, we are not inclined to find an abuse of discretion or substitute our judgment for that of the trial court in its rejection of appellant‘s claim of a change in circumstances and the court‘s resultant
{¶54} Accordingly, appellant‘s Ninth Assignment of Error is overruled.
X., XI.
{¶55} In his Tenth and Eleventh Assignments of Error, appellant contends the trial court erred in dismissing appellant‘s shared parenting termination motion without hearing from the guardian ad litem and without interviewing the children, and that the trial court‘s decision was erroneous, against the manifest weight of the evidence, and an abuse of discretion.
{¶56} We find the remaining arguments set forth in appellant‘s brief at this juncture have been previously addressed herein by this Court, particularly in our redress of assigned errors Five, Six, Seven, and Nine.
{¶57} Accordingly, appellant‘s Tenth and Eleventh Assignments of Error are overruled.
By: Wise, P. J.
Edwards, J., and
Delaney, J., concur.
JUDGES
JWW/d 0613
SCOTT RICE Plaintiff-Appellant v. FAITH RICE Defendant-Appellee
JUDGMENT ENTRY
Case No. 10 CA F 11 0091
For the reasons stated in our accompanying Memorandum-Opinion, the judgment of the Court of Common Pleas, Domestic Relations Division, Delaware County, Ohio, is affirmed.
Costs assessed to appellant.
JUDGES