Severns v. FosterSeverns v. Foster
Joel M. Spitzer for Appellant
Rocky Ratliff for Appellee
PRESTON, J.
{¶1} Defendant-appellant, Amber Foster (“Foster“), appeals the May 30, 2018 judgment of the Marion County Court of Common Pleas, Family Division, designating plaintiff-appellee, John Severns (“Severns“), as residential parent and legal custodian of A.S., Foster and Severns‘s minor daughter. For the reasons that follow, we affirm.
{¶2} On November 16, 2015, Foster gave birth to a daughter, A.S. Foster and Severns have never married. In the months immediately following A.S.‘s birth, Foster and Severns tried to work on their relationship while co-parenting A.S. (See Apr. 17, 2018 Tr. at 98-100). However, their efforts proved unsuccessful.
{¶3} On June 10, 2016, Severns filed a complaint requesting “that he be awarded custody of [A.S.] or in the alternative be awarded shared parenting.” (Doc. No. 1). That same day, Severns filed a motion for ex parte temporary orders asking the trial court to designate him as A.S.‘s legal custodian during the pendency of the case. (Doc. No. 2). On June 14, 2016, the trial court denied Severns‘s motion for ex parte temporary orders. (Doc. No. 6).
{¶4} On July 7, 2016, the trial court issued temporary orders granting Severns parenting time with A.S. for a period of four hours on Tuesdays and Thursdays and for a period of four hours every other Saturday and Sunday in accordance with Marion County Family Court Rule 32. (Doc. No. 11).
{¶5} On October 3, 2016, Foster filed a motion to establish child support. (Doc. No. 20). That same day, Foster filed a motion requesting that the trial court appoint a guardian ad litem (“GAL“) to evaluate A.S.‘s best interest. (Doc. No. 23). On October 20, 2016, Severns filed a response to Foster‘s motion to appoint a GAL in which he did not oppose Foster‘s motion. (Doc. No. 24). On November 1, 2016, the trial court granted Foster‘s motion to appoint a GAL and appointed a GAL for A.S. (Doc. No. 32).
{¶6} On October 20, 2016, Severns filed a motion for shared parenting along with a proposed shared parenting plan. (Doc. No. 26).
{¶7} On November 8, 2016, Severns filed a motion and an amended motion for holiday visitation. (Doc. Nos. 34, 37). On November 15, 2016, the trial court issued agreed temporary orders granting Severns parenting time with A.S. “pursuant to Local Rule 32a for the upcoming holidays and/or until this case is resolved.” (Doc. No. 38). In addition, the trial court designated Severns as “the non-residential parent for holiday visitation purposes during the pendency of this matter.” (Id.).
{¶8} On April 27, 2017, Foster filed a motion for leave to file her answer to Severns‘s June 10, 2016 complaint out of rule. (Doc. No. 58). On May 1, 2017, the trial court granted Foster‘s motion to file her answer out of rule. (Doc. No. 59). That same day, Foster filed her answer to Severns‘s complaint as well as a
{¶9} On May 9, 2017, Severns filed a motion to increase parenting time. (Doc. No. 61). On June 29, 2017, Severns filed a motion for new temporary orders. (Doc. No. 67). That same day, Foster filed a narrative affidavit regarding temporary orders. (Doc. No. 69). On August 15, 2017, the trial court issued agreed modified temporary orders granting Severns parenting time with A.S. on Mondays from 8:00 a.m. until 12:00 p.m., Tuesdays from 8:00 a.m. until 5:00 p.m., and on weekends in accordance with Marion County Family Court Rule 32(A). (Doc. No. 74). In addition, the trial court ordered that Foster‘s weekend parenting time with A.S. coincide with her weekend parenting time with A.S.‘s half-sister granted in case number 15-PC-211. (See id.).
{¶10} The GAL filed his final report on April 6, 2018. (Doc. No. 84).
{¶11} A final hearing was held on April 16 and 17, 2018. (See Doc. No. 93); (Apr. 16, 2018 Tr. at 1); (Apr. 17, 2018 Tr. at 1). On May 30, 2018, the trial court filed its judgment designating Severns as the residential parent of A.S. (Doc. No. 93). The trial court granted Foster parenting time with A.S. in accordance with Marion County Family Court Rule 32(A) and ordered that Foster‘s parenting time with A.S. coincide with Foster‘s parenting time with A.S.‘s half-sister. (Id.). In
{¶12} Foster filed a notice of appeal on June 28, 2018. (Doc. No. 94). She raises three assignments of error, which we will address together.
Assignment of Error No. I
In support of the initial determination of parental rights and responisbilities [sic] for the minor child, the trial court erred as a matter of law and abused its discretion by determining there was sufficient evidence the parents could not make decisions jointly pursuant of
Ohio Revised Code 3109.04
Assignment of Error No. II
In support of the initial determination of parental rights and responsibilities for the minor child and pursuant of
Ohio Revised Code 3109.04 , the trial court erred against the weight of the evidence and abused its discretion in determining that the plaintiff-apellee [sic] should be granted cusotdy[sic].
Assignment of Error No. III
In support of initial determination of parental rights and responsibilities for the minor child and pursuant of
Ohio Revised Code 3109.04 , the trial court erred and abused its discretion in determining that the defendant-appellant would not facilitate court ordered visitation.
{¶13} In her first, second, and third assignments of error, Foster argues that the trial court erred by designating Severns as the residential parent and legal custodian of A.S. Although unclear from her appellate brief, Foster appears to advance two arguments in support of her assignments of error. First, Foster argues
{¶14} “‘Decisions concerning child custody matters rest within the sound discretion of the trial court.‘” Krill v. Krill, 3d Dist. Defiance No. 4-13-15, 2014-Ohio-2577, ¶ 26, quoting Walker v. Walker, 3d Dist. Marion No. 9-12-15, 2013-Ohio-1496, ¶ 46, citing Wallace v. Willoughby, 3d Dist. Shelby No. 17-10-15, 2011-Ohio-3008, ¶ 22 and Miller v. Miller, 37 Ohio St.3d 71, 74 (1988). “’ “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.” ’ ” Id., quoting Walker at ¶ 46, quoting Barto v.Barto, 3d Dist. Hancock No. 5-08-14, 2008-Ohio-5538, ¶ 25 and Bechtol v. Bechtol, 49 Ohio St.3d 21 (1990), syllabus. “‘Accordingly, an abuse of discretion must be found in order to reverse the trial court‘s award of child custody.‘” Id., quoting Walker at ¶ 46, citing Barto at ¶ 25 and Masters v. Masters, 69 Ohio St.3d 83, 85 (1994). “‘An abuse of discretion suggests the trial court‘s decision is unreasonable or unconscionable.‘” Id., quoting Brammer v. Meachem, 3d Dist. Marion No. 9-10-43, 2011-Ohio-519, ¶ 14, citing Blakemore v. Blakemore, 5 Ohio St.3d 217, 219 (1983).
{¶15} Here, we observe that throughout her appellate brief, Foster incorrectly characterizes the trial court‘s May 30, 2018 judgment as a “modification” of an existing decree allocating Severns‘s and her parental rights. (E.g., Appellant‘s Brief at 10) (“[T]he trial judge failed to prove that the modification of the parental rights and responsibilities was necessary * * * to serve the best interests of the child[] * * *.“). Rather than being a modification of an existing custody decree, the trial court‘s May 30, 2018 judgment was the product of an original proceeding to determine custody.
{¶16} Because A.S. was born out of wedlock, custody of A.S. was controlled by
An unmarried female who gives birth to a child is the sole residential parent and legal custodian of the child until a court of competent jurisdiction issues an order designating another person as the residential parent and legal custodian.
{¶17} “When making the allocation of the parental rights and responsibilities for the care of the children under this section in an original proceeding * * *, the court shall take into account that which would be in the best interest of the children.”
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: (a) The wishes of the child‘s parents regarding the child‘s care;
(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;
(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;
(h) Whether either parent or any member of the household of 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 or any member of the household of either parent previously has been convicted of or pleaded guilty to a violation of
section 2919.25 of the Revised Code or a sexually oriented offense involving a victim who at the time of the commission of the offense was a member of the family or household that is the subject of the current proceeding; whether either parent or any member of the household of either parent previously has been convicted of or pleaded guilty to any offense involving a victim who at the time of the commission of the offense was a member of the family or household that is the subject of the current proceeding and caused physical harm to the victim in the commission of the offense; and whether there is reason to believe that either parent has acted in a manner resulting in a child being an abused child or a neglected child;(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.
{¶18} “The trial court ‘has discretion in determining which factors are relevant,’ and ‘each factor may not necessarily carry the same weight or have the same relevance, depending upon the facts before the trial court.‘” Krill, 2014-Ohio-2577, at ¶ 29, quoting Brammer v. Brammer, 3d Dist. Marion No. 9-12-57, 2013-Ohio-2843, ¶ 41, citing Hammond v. Harm, 9th Dist. Summit No. 23993, 2008-Ohio-2310, ¶ 51. “Although the trial court must consider all relevant factors, there is no requirement that the trial court set out an analysis for each of the factors in its judgment entry, so long as the judgment entry is supported by some competent, credible evidence.” Id., citing Meachem, 2011-Ohio-519, at ¶ 30, citing Portentoso v. Portentoso, 3d Dist. Seneca No. 13-07-03, 2007-Ohio-5770, ¶ 22.
{¶19} In its May 30, 2018 judgment, the trial court specifically mentioned and analyzed each of the best-interest factors set forth in
{¶20} Nevertheless, Foster contends that the trial court‘s
{¶21} First, with regard to
{¶22} As to
{¶23} With regard to
{¶24} The record also demonstrates that A.S. knows and interacts with both maternal and paternal family members. Regarding A.S.‘s interactions with Foster‘s family, Defendant‘s Exhibit J contains numerous photographs portraying A.S. accompanying Foster to various family functions and interacting happily with her maternal grandparents as well as other members of Foster‘s family. (See Defendant‘s Ex. J). Additionally, Sharon described Foster‘s family as “tight” and testified that A.S. regularly sees Foster‘s family and plays with her cousins and other more-distant relatives. (Apr. 17, 2018 Tr. at 40-42). As to A.S.‘s relationship with Severns‘s family, Barbara Severns (“Barbara“), Severns‘s mother, testified that she helps Severns take care of A.S. on Mondays and Tuesdays. (Apr. 16, 2018 Tr. at 4-5). She testified that she also takes care of A.S.‘s cousins when watching A.S. (Id.). Barbara also said that Severns would occasionally work during his parenting time with A.S. and that she, her husband, or Severns‘s sister would look after A.S. (Id. at 14-15). Furthermore, Lynn Jackson (“Jackson“), Severns‘s sister, testified that A.S. gets along well with her children, A.S.‘s cousins. (Id. at 62-63). She further testified that, if Severns were designated residential parent, she would be able to keep A.S. overnight or babysit her while Severns is at work. (Id. at 96-99). Finally, Severns testified that A.S. frequently interacts with his family and that she is well-
{¶25} Finally, the record establishes that A.S.‘s paternal grandmother, Barbara, often cares for A.S. As discussed above, Barbara testified that she cares for A.S. whenever Severns has to work during his parenting time. (Id. at 4-5, 14-15). In addition, Barbara testified that, if Severns were awarded custody, she would be willing and able to care for A.S. whenever Severns has to work. (Id. at 50-52).
{¶26} Regarding
{¶27} There is also ample evidence in the record supporting the trial court‘s finding that A.S. is adjusted to both Severns‘s and Foster‘s home. A.S. lived
{¶28} With respect to
{¶29} The record demonstrates that A.S. is generally in good health, happy, well-fed, and in a nurturing environment. (See Apr. 16, 2018 Tr. at 21-22, 76, 78-79); (See Apr. 17, 2018 Tr. at 32, 181, 281). However, the record also establishes that A.S. is not current on her vaccinations. (See Apr. 16, 2018 Tr. at 119-120, 139, 177). Foster acknowledged that she was “the one to make the decision not to
{¶30} The record also supports the trial court‘s finding that Foster takes a “holistic” or “organic” approach to medicine. Both Severns and Barbara described Foster‘s approach to medicine as “holistic.” (See Apr. 16, 2018 Tr. at 10-11, 203-204). Likewise, the GAL agreed that Foster takes a more holistic approach to medicine. (Apr. 17, 2018 Tr. at 266). He testified that Foster “is less traditional * * * in her medical views” and that there is “a tendency for more organic, natural, homeopathic, [and] vegetarian” approaches. (Id.). However, he stressed that Foster “does give medicine.” (Id.). Furthermore, when Foster was asked whether she believed in holistic medicine, she responded that she “believe[s] in organic.” (Apr.
{¶31} In addition, the record establishes that while Severns suffered at least one seizure, neurological testing did not reveal any abnormalities. Barbara testified that Severns once suffered a seizure while driving and that she was not certain whether Severns sought treatment. (Apr. 16, 2018 Tr. at 12-13). However, she denied knowledge of any additional seizures suffered by Severns. (Id. at 14). Severns himself testified that he suffered a seizure in 2016. (Id. at 207). He testified that afterward, he went to the doctor where they “did a CT scan.” (Id. at 208). Severns stated that the doctor “said there was nothing they could see” and that he believes that meant that nothing was wrong. (Id.).
{¶32} Finally, the record supports the trial court‘s findings regarding Foster‘s mental health. Foster testified that after the father of A.S.‘s half-sister was designated as the child‘s residential parent, she was very upset. (Apr. 17, 2018 Tr. at 134-136). Severns testified that Foster confided in him that she wanted to commit
{¶33} Because they concern interrelated issues, we address the trial court‘s findings under
{¶34} First, the trial court‘s findings regarding Severns‘s and Foster‘s wishes for parenting time are supported by the record. Although Severns testified at various times that he wanted to be the sole residential parent and legal custodian of A.S., he also stated that he would not object to a more equitable division of parenting time and responsibilities. (See Apr. 16, 2018 Tr. at 314-315). On the other hand, Foster steadfastly insisted on being A.S.‘s sole residential parent and legal custodian. (Apr. 17, 2018 Tr. at 156, 192, 249). However, she did concede that she wanted at least a 50-50 division of parenting time if the trial court did not designate her as sole residential parent. (Id. at 198).
{¶35} The record also supports that although Foster generally complied with the parenting plan set forth in the various temporary orders, she was frequently late for drop-offs and pickups. Foster testified that she always tried to comply with the
{¶36} Finally, evidence in the record supports the trial court‘s finding that Foster did, at times, deny Severns‘s requests for additional parenting time. Foster testified that she never wanted to withhold A.S. from Severns and that she permitted Severns to visit with A.S. even when she was not required to do so by court order. (Apr. 17, 2018 Tr. at 106-107). Furthermore, some of the text messages between Severns and Foster reflect that Foster would ask Severns to watch A.S. on days that
{¶37} Concerning
{¶38} With regards to
{¶39} Finally, regarding
{¶40} Contrary to Foster‘s argument, the fact that the trial court may have relied on Severns‘s “self-testimony” in reaching some of its
{¶42} In addition to attacking the trial court‘s findings under
{¶44} Furthermore, the record supports that Severns and Foster cannot make joint decisions for A.S. The GAL noted that “neither parent can agree on the simplest of things.” (Id.). The record also evidences that Severns and Foster frequently disagreed over what to feed A.S., whether A.S. should go to daycare or stay with family members, who to hire as A.S.‘s babysitter, and when and where A.S. would go for checkups with a pediatrician and other medical treatment. (See Apr. 16, 2018 Tr. at 123-124, 158, 176, 189-190, 199, 204-205, 235, 285, 289-290, 296-297); (See Apr. 17, 2018 Tr. at 161, 188-189, 207-208). Moreover, many of these disagreements are borne out in the text messages between Severns and Foster. Therefore, the record thoroughly supports the trial court‘s findings concerning Severns and Foster‘s inability to communicate and make joint decisions in A.S.‘s best interest.
{¶45} Having concluded that the trial court‘s findings are supported by competent, credible evidence, we next address Foster‘s argument that the trial court incorrectly weighed the best-interest factors in favor of designating Severns as A.S.‘s residential parent and legal custodian. Specifically, Foster argues that the trial court “gave prevailing weight of the measures of the statute essentially to a
{¶46} Foster‘s argument is without merit. First, there is no indication in the trial court‘s May 30, 2018 judgment that it actually viewed any one of the
{¶48} In conclusion, the trial court‘s
{¶49} Foster‘s assignments of error are overruled.
{¶50} Having found no error prejudicial to the appellant herein in the particulars assigned and argued, we affirm the judgment of the trial court.
Judgment Affirmed
ZIMMERMAN, P.J. and SHAW, J., concur.
/jlr