LAWRENCE SUTTON v. CHRISTY L. SUTTON
Appellate Case No. 24108
Trial Court Case No. 2003-DR-1453
IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT MONTGOMERY COUNTY
March 25, 2011
[Cite as Sutton v. Sutton, 2011-Ohio-1439.]
OPINION
Rendered on the 25th day of March, 2011.
ANNE C. HARVEY, Atty. Reg. #0054585, 2310 Far Hills Avenue, Suite 3, Dayton, Ohio 45419
Attorney for Plaintiff-Appellant
TRISHA M. DUFF, Atty. Reg. #0052147, 7501 Paragon Road, Lower Level, Dayton, Ohio 45459
Attorney for Defendant-Appellee
FAIN, J.
{¶ 1} Plaintiff-appellant Lawrence H. Sutton appeals from an order modifying a shared parenting agreement by designating his ex-wife, defendant-appelleе Christy L. Sutton, as the residential parent of the parties’ minor child. Sutton contends that the trial court erred
{¶ 2} We conclude that the trial court did not abuse its discretion in modifying the shared parenting agreement. There is evidence to support a finding that Mr. Sutton had essentially ceded primary care of the child to his parents and that he had purposefully interfered with Ms. Sutton‘s communication with the child. Furthermore, the evidence supports a finding that the modification is in the best interest of the child. Accordingly, the order from which this appeal is taken is Affirmed.
I
{¶ 3} The parties were married in South Carolina in July 2000. The parties had one child who was born in January 2001. The child was born with severe congenital heart disease, which has required several surgeries and procedurеs during the course of her life.
{¶ 4} In April 2001, the parties moved to Ohio in order to be closer to Ms. Sutton‘s family. In October 2003, Mr. Sutton filed a complaint for divorce in the Montgomery County Common Pleas Court, and then he and the child moved to South Carolina. Thе parties were granted a divorce in November 2005. Of relevance to this appeal, the trial court awarded custody of the child to Mr. Sutton.
{¶ 5} Since her birth, the majority of the child‘s surgeries and procedures have been performеd at Cincinnati Children‘s Medical Center. However, while living in South Carolina, the child was followed by doctors at the Medical College of Georgia located in Augusta, Georgia. On July 5, 2007, the child had a heart catheterization performed at
{¶ 6} Eventually, in 2008 the parties filed a Joint Petition for Shared Parenting in whiсh they agreed that they would share custody of the child with Mr. Sutton being designated as “the residential parent for school purposes.”
{¶ 7} On January 21, 2009, Mr. Sutton filed a motion to suspend Ms. Sutton‘s parenting time based upon the allegation that the child had been sexually molested by her step-brother, Ms. Sutton‘s son, during Ms. Sutton‘s period for parenting time/visitation. Two days later Ms. Sutton filed a motion seeking to terminate the shared parenting agreement and for the trial court to award custody of the child to her. The motion alleged that Mr. Sutton had prevented communication between her and the child; that Mr. Sutton had “been arrested for domestic violence” with regard to his current wife; and that the child had been “inappropriately touched” by a thirteen-year-old boy while in the care of Mr. Sutton. It appears from the record that Ms. Sutton‘s allegations were made, and reported to authorities, prior to the allegations raised by Mr. Sutton.
{¶ 8} The child spent most of the summer оf 2009 with the mother in order to make up for parenting time that she had not been provided. In August, Mr. Sutton filed a motion for contempt alleging that Ms. Sutton had failed to return the child at the end of the summer.
{¶ 9} The motions were heard by a magistrate on August 28, 2009. At the hearing,
{¶ 10} Mr. Sutton filed objections to the magistrate‘s decision, which were overruled. The trial court adopted the decision of the magistrate. Mr. Sutton appeals.
II
{¶ 11} Sutton‘s sole assignment of error states as follows:
{¶ 12} “THE TRIAL COURT ERRED WHEN IT ADOPTED THE MAGISTRATE‘S DECISION AS A PERMANENT ORDER.”
{¶ 13} Mr. Sutton contends that the decision to modify the designation of residential parent constitutes an abuse of discretion. In support, he argues that the trial cоurt erred in determining that there was evidence of a change in circumstances sufficient to support a modification. He further argues that the trial court‘s determination regarding the best interest of the child is erroneous.
{¶ 14} In Fisher v. Hasenjager, 116 Ohio St.3d 53, 2007-Ohio-5589, the Supreme Cоurt of Ohio held that a court may not modify the designation of a residential parent and legal custodian of a child in a shared-parenting decree without first determining that a “change in circumstances” has occurred and that the modification is in the best interest of the child. Id. Syllabus. This is so because
{¶ 15} “****
{¶ 16} “(iii) The harm likely to be caused by a change of environment is outweighed by the advantages of the changе of environment to the child.”
{¶ 17} Pursuant to
{¶ 18} Although a trial court must follow the dictates of
{¶ 19} In this case, the trial court determined that there had been a change in сircumstances because Mr. Sutton “had interfered with [Ms. Sutton‘s] parenting time through phone communications and other means,” and because Mr. Sutton‘s parents had begun to act as the “primary caregiver of the minor child when [the child] was living in South Carolina.” We find that the record supports these findings. Mr. Sutton deliberately prevented contact or communication between Ms. Sutton and the child - a fact that he candidly acknowledged. Furthermore, the record supports a finding that Mr. Suttоn‘s mother, rather than Mr. Sutton, acted as the primary caregiver for the child while the child resided with him. Indeed, the child lived with Mr. Sutton‘s parents from October 17, 2008 until November 25, 2008.
{¶ 20} Additionally, it is clear that the majority, if not all, of the child‘s major
{¶ 21} We next turn to the issue of the best interest of the child. When the child was interviewed by the trial court in chambers, she “еxpressed a desire to remain primarily in defendant‘s custody. She stated that she would feel bad if she had to go back to South Carolina and leave [Ms. Sutton].”
{¶ 22} The trial court further had the benefit of a report from the child‘s Guardian Ad Litem (GAL). The GAL stated that he “did not believe that [Mr. Sutton] was primarily responsible for [the child] when she was to be in his care. He believed that the paternal grandmother was the primary caretaker. He further believed that [Mr. Sutton] and the paternal grandmothеr had attempted to influence [the child‘s] statements to him.” The GAL stated that the child voluntarily told him that her father made her tell the GAL that Ms. Sutton “spanks her for no reason and that [she] leaves marks on her.” The GAL stated that Mr. Sutton allowed the child to bе in contact with the person accused of molesting her in violation of court orders. According to the GAL, Ms. Sutton had a viable health care plan for the child as well as a plan for school. Finally, the GAL stated that the child expressed a wish to remain with the mother. Based upon his interviews and investigations, the GAL recommended that
{¶ 23} The record supports a finding that the child has good interaction with both her parents, but that she is more bonded to her mother.
{¶ 24} The evidence supports a finding that Mr. Sutton purposefully denied Ms. Sutton‘s right to have contact with the child, and that Ms. Sutton is more likely to facilitate Mr. Suttоn‘s parenting time.
{¶ 25} Wе conclude that, while this case is close, there is evidence to support the findings of the trial court. We cannot say that the trial court abused its discretion. Therefore, Mr. Sutton‘s sole assignment of error is overruled.
III
GRADY, P.J., and HALL, J., concur.
Copies mailed to:
Anne C. Harvey
Trisha M. Duff
Hon. Timothy D. Wood