DAVID M. THOMPSON, II, Plaintiff-Appellee, v. LEIGH CANNON, Defendant-Appellant.
CASE NO. CA2015-02-003
IN THE COURT OF APPEALS TWELFTH APPELLATE DISTRICT OF OHIO FAYETTE COUNTY
7/20/2015
[Cite as Thompson v. Cannon, 2015-Ohio-2893.]
S. POWELL, J.
APPEAL FROM FAYETTE COUNTY COURT OF COMMON PLEAS DOMESTIC RELATIONS DIVISION Case No. DRA 20120370
Mary E. King, 153 East Court Street, P.O. Box 70, Washington C.H., Ohio 43160, for defendant-appellant
Shirley Hansgen, 1420 West Choctaw Drive, London, Ohio 43140, Guardian Ad Litem
OPINION
S. POWELL, J.
{¶ 1} Defendant-appellant, Leigh Cannon (Mother), appeals a decision of the Fayette County Court of Common Pleas, Domestic Relations Division, terminating shared parenting and placing her son with the child‘s father, plaintiff-appellee, David M. Thompson, II (Father). For the reasons stated below, we affirm the decision of the trial court.
{¶ 3} While the motions were pending, the magistrate conducted an in camera interview of T.T. The magistrate held a hearing regarding the custodial issues on December 17, 2013. After the first hearing, the magistrate granted Mother‘s motion to supplement the record with evidence of an alleged domestic violence incident that occurred on December 20, 2013 between Father and Wife. At the hearing, Father testified that Wife initiated the altercation, he reacted in self-defense, and he and Wife are no longer together. After the presentation of evidence was complete, the magistrate conducted a second in camera interview of T.T. upon Father‘s request.
{¶ 4} On February 6, 2014, the magistrate issued an oral decision from the bench terminating shared parenting and splitting custody of the children between the parties. The magistrate granted Mother custody of L.T. and Father custody of T.T. Thereafter, Mother filed a motion to present new evidence regarding reunification of Father and Wife. The magistrate denied Mother‘s motion.
{¶ 5} On April 25, 2014, the magistrate issued its written decision explaining the
{¶ 6} Mother and Father both objected to the magistrate‘s decision. On January 8, 2015, the trial court overruled the objections and adopted the magistrate‘s decision. The court noted it reviewed and found the in camera interviews of T.T. to be appropriate. The court also found no evidence suggesting reluctance of either parent regarding the exercise of parenting time rights and stated it considered all the alleged incidents of violence. The trial court ordered Father to have a mental health assessment to determine whether he has a propensity for violence or alcohol abuse and comply with the assessment‘s recommendations. Accordingly, the trial court found it was in the best interest of L.T. to be in Mother‘s custody and the best interest of T.T. to be in the custody of Father.
{¶ 7} Mother now appeals, asserting five assignments of error for review.
{¶ 8} Assignment of Error No. 1:
{¶ 9} THE TRIAL (sic) ERRED IN NOT RULING ON DEFENDANT-APPELLANT‘S MOTION FOR FINDINGS OF FACT AND CONCLUSIONS OF LAW.
{¶ 10} In her first assignment of error, Mother argues error occurred when neither the magistrate nor the trial court issued a decision with findings of fact and conclusions of law as required by
{¶ 11}
{¶ 12} Mother did not object to the magistrate‘s alleged failure to make findings of fact and conclusions of law, and therefore, has waived all but plain error on appeal. Hamilton v. Digonno, 12th Dist. Butler No. CA2012-05-108, 2013-Ohio-151, ¶ 18-19. Plain error in a civil case is an error that “seriously affects the basic fairness, integrity, or public reputation of the judicial process, thereby challenging the legitimacy of the underlying judicial process itself.” Goldfuss v. Davidson, 79 Ohio St.3d 116 (1997), syllabus.
{¶ 13} Upon a thorough review of the magistrate‘s decision, we find the decision contained findings of fact and conclusions of law and complied with
{¶ 15} In light of the forgoing, while not captioned as such, it is clear from the magistrate‘s detailed discussion regarding each of the best interest factors and the evidence relating to that factor, the magistrate‘s decision issued findings of fact and conclusions of law. Additionally, we note Mother never requested the trial court to issue a decision stating findings of fact and conclusions of law. Mother‘s motion for findings of fact and conclusions of law specifically requested the magistrate to issue the decision and cited
{¶ 16} Assignment of Error No. 2:
{¶ 17} THE TRIAL COURT ERRED IN ALLOCATING PARENTAL RIGHTS AND RESPONSIBILITIES.
{¶ 19} If the trial court terminates a prior shared parenting plan, the court “shall proceed” and allocate parental rights and responsibilities as if no shared parenting plan had ever been granted.
{¶ 20} Pursuant 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) * * *[W]hether either parent or any member of the household of either parent previously has been convicted of or pleaded guilty to a violation of [
R.C. 2919.25 ] 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 * * *;(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.
{¶ 21} An appellate court employs an abuse of discretion standard when reviewing a domestic relations issue so that the trial court‘s decision will only be reversed if it is unreasonable, arbitrary, or unconscionable. Renner v. Renner, 12th Dist. Clermont No. CA2014-01-004, 2014-Ohio-2237, ¶ 16, citing Blakemore v. Blakemore, 5 Ohio St.3d 217, 219 (1983). Upon review, an appellate court may not substitute its judgment for that of the trial court because the “discretion which a trial court enjoys in custody matters should be accorded the utmost respect, given the nature of the proceeding and the impact the court‘s determination will have on the lives of the parties concerned.” Id., quoting Miller v. Miller, 37 Ohio St.3d 71, 74 (1988).
{¶ 22} After a thorough review of the record, we find the trial court‘s decision granting Father custody of T.T. was not unreasonable, arbitrary or unconscionable. The evidence established Father loves T.T., is an involved parent, and T.T. is very close to his Father. T.T.
{¶ 23} While T.T. has spent his entire life in Washington Court House, a child‘s adjustment to the community is only one factor for the trial court to consider. Father testified he will continue to provide all the driving for parenting time exchanges and extracurricular activities. Further, the trial court ordered T.T. to remain in Washington Court House city schools for the duration of the 2015 school year.
{¶ 24} The magistrate also conducted two in camera interviews with T.T. and the trial court stated it considered T.T.‘s wishes in the custody decision. We disagree with Mother‘s assertion that it was error to conduct a second interview. As this court has stated,
{¶ 25} Assignment of Error No. 3:
{¶ 26} THE TRIAL COURT ERRED IN ALLOWING FATHER TO CHANGE THE CHILD‘S SCHOOL DISTRICT.
{¶ 27} In her third assignment of error, Mother argues the trial court abused its discretion when it permitted Father to enroll T.T. in the school district Father chooses after the current school year. Initially, the magistrate ordered T.T. to remain in Washington Court House city schools. However, on objections to the magistrate‘s decision, the trial court modified the school district requirement and ordered T.T. to remain in Washington Court House city schools throughout the 2015 school year but thereafter allowed Father to enroll T.T. in the school district Father deems appropriate.
{¶ 28} As stated above, we review a trial court‘s decision regarding custody matters for an abuse of discretion. Renner, 2014-Ohio-2237 at ¶ 16. A trial court that terminates a prior shared parenting plan must designate one parent the residential parent and legal custodian of the child.
{¶ 29} We do not find the trial court abused its discretion in permitting Father to choose the school district T.T. will attend. While Father testified at the hearing he would continue to drive T.T. to Washington Court House city schools, Father‘s new residence is
{¶ 30} Assignment of Error No. 4:
{¶ 31} THE TRIAL COURT ERRED IN EXCLUDING EVIDENCE AND NOT REQUIRING ATTORNEY‘S TESTIMONY TO BE SWORN.
{¶ 32} In her fourth assignment of error, Mother challenges several of the trial court‘s evidentiary decisions. The admission or exclusion of relevant evidence rests within the discretion of the trial court. League v. Collins, 12th Dist. Butler No. CA2013-03-041, 2013-Ohio-3857, ¶ 8. An appellate court will not disturb a decision of the trial court to admit or exclude evidence absent a clear and prejudicial abuse of discretion. Cottrell v. Cottrell, 12th Dist. Warren No. CA2012-10-105, 2013-Ohio-2397, ¶ 80.
{¶ 33} Mother argues the trial court erred in excluding Father‘s testimony regarding whether he failed to appear for a hearing concerning a March 23, 2013 domestic violence incident purportedly committed by Wife. Mother contends Father‘s answer is relevant to his ability to protect the children. Mother also asserts the magistrate should have admitted Wife‘s written statement to the Fayette County Sheriff‘s Office where Wife described an act of domestic violence involving Father. Mother maintains the statement was admissible as a prior statement consistent with the declarant‘s testimony and was offered to rebut Father‘s assertion that Wife wrote the statement in response to her pending domestic violence charges.
{¶ 34} “Relevant evidence” is evidence which has any tendency to make the existence
{¶ 35} At the hearing, Father was cross-examined as to a March 23, 2013 incident where Wife reportedly scratched Father and “busted” his nose. Father stated that as a result of this incident, Wife was charged with domestic violence and assault. The following exchange then occurred:
[Mother‘s counsel]: Okay and were those charges later dropped?
[Father]: They were dismissed.
[Mother‘s counsel]: They were dismissed. Did you refuse to pursue the charges?
[Father]: No. The case was dismissed for lack of evidence.
[Mother‘s counsel]: Okay did you not show up for a hearing that you were required to show up for?
[Father‘s counsel]: Objection relevance Your Honor.
[Magistrate]: All right, I‘ll sustain that.
{¶ 36} Later, Wife further testified she sent a letter to the Fayette County Sherriff‘s Office on March 29, 2013. Wife stated the letter described an incident on October 4, 2012 where she sustained four fractures to her collarbone after Father “kneed” her several times. Wife acknowledged she gave the letter to the Sherriff‘s Office shortly after she was charged with domestic violence and she had previously told medical personnel that she sustained the
{¶ 37} We find the trial court did not err in refusing to admit these challenged statements because Mother has not demonstrated the alleged error was prejudicial to her substantial rights as required by
{¶ 38} Mother also maintains the magistrate erred in failing to swear in the GAL and Wife‘s attorney, Attorney Wollschield, before permitting them to testify.
{¶ 40} We find that any error in failing to swear in the GAL and Attorney Wollschield before permitting them to testify was harmless because Mother has not demonstrated that the alleged error was prejudicial to her substantial rights. Mother conducted a thorough direct examination of both the GAL and Attorney Wollschield and presented her case through their testimony. In regards to the GAL, Mother questioned her as to the recommendation of granting Mother custody, the fact that both Mother and Father are good parents, and her concerns with Father‘s alcohol consumption and Father and Wife‘s relationship. Additionally, the GAL‘s testimony was largely redundant to the GAL report which was admitted into evidence.
{¶ 41} Mother was also able to question Attorney Wollschield in regards to her observation of Wife‘s injuries after the physical altercation between Wife and Father on December 20, 2013. Attorney Wollschield‘s testimony as to Wife‘s injuries was also redundant to the photographs of the injuries and the testimony of other witnesses. Further, both the GAL and Attorney Wollschield are attorneys licensed to practice law and have an ongoing ethical duty of candor to the tribunal. Prof.Cond.R. 3.3(a). In light of the forgoing, the failure to swear in the GAL and Attorney Wollschield was harmless as it did not prejudice Mother‘s substantial rights. Accordingly, Mother‘s fourth assignment of error is overruled.
{¶ 42} Assignment of Error No. 5:
{¶ 43} THE TRIAL COURT ERRED IN NOT INDEPENDENTLY RULING ON
{¶ 44} In her fifth assignment of error, Mother challenges the trial court‘s denial of her motion to hear additional evidence and argues the court erred in failing to rule on her motion prior to ruling on objections to the magistrate‘s decision. Before the trial court ruled on Mother‘s objections, Mother filed a motion to admit additional evidence regarding Father‘s reunification with Wife. The magistrate denied Mother‘s motion. Thereafter, in its decision overruling objections to the magistrate‘s decision, the trial court also refused to admit the additional evidence.
{¶ 45}
{¶ 46} We find the trial court did not abuse it discretion in denying Mother‘s motion to hear additional evidence and ruling on the motion in its decision on objections to the magistrate‘s decision. Under
{¶ 47} Judgment affirmed.
PIPER, P.J., and M. POWELL, J., concur.