Vent v. Vent , 2012 Ohio 5946 ( 2012 )

[Cite as Vent v. Vent, 2012-Ohio-5946.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
WYANDOT COUNTY
MICHELLE L. VENT
NKA MICHELLE L. HICKS, CASE NO. 16-12-05
PLAINTIFF-APPELLANT,
v.
WILLIAM J. VENT, OPINION
DEFENDANT-APPELLEE.
Appeal from Wyandot County Common Pleas Court
Domestic Relations Division
Trial Court No. 03-DR-0133
Judgment Affirmed
Date of Decision: December 17, 2012
APPEARANCES:
Kelle M. Saull for Appellant
Agnes A. Pfeifer for Appellee
Case No. 16-12-05
WILLAMOWSKI, J.
{¶1} Plaintiff-Appellant, Michelle Vent, nka Michelle Hicks (hereinafter,
“Mother”), appeals the judgment of the Wyandot County Court of Common Pleas,
Domestic Relations Division, denying her motion for reallocation of parental
rights and responsibilities in which she claimed that it was no longer in the best
interest of the children that they remain in the custody of Defendant-Appellee,
William Vent (“Father”). On appeal, Mother contends that the trial court erred
when it found that there was no change of circumstances warranting a
modification of custody; when it found that it was not in the best interest of the
children to modify custody; and when it did not increase Mother’s parenting time
or allow her the right of first refusal to spend time with the children. For the
reasons set forth below, the judgment is affirmed.
{¶2} The parties were married in 1995, and two sons were born as issue of
their marriage, Wesley in 1999 and Mason in 2002. The parties were divorced on
March 3, 2004, and Mother was named the residential parent of the boys.
{¶3} In 2009, when Wesley and Mason were 10 and 7 years old, Father
filed a motion to modify parental rights and responsibilities, requesting that he be
named the residential parent. The case proceeded to trial but, at its conclusion, the
parties informed the court that they had reached a mutual agreement. A consent
judgment entry was filed on July 21, 2009, agreeing that Father would be the
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residential parent and legal custodian, with Mother having companionship every
other weekend, every Wednesday after school until 7:30 p.m., and alternating
weeks during the summer.
{¶4} Since that modification, Mother claims that the children’s behavior
and their performance in school have “regressed.” On April 1, 2011, Mother filed
a motion to reallocate parental rights and responsibilities, asking that she again be
named the residential parent.
{¶5} Mother claims that both boys’ grades have dropped considerably and
that they do not get appropriate help with their homework from Father. She
contends that they have exhibited numerous behavior problems, resulting in
detentions, visits to the vice principal’s office, and that they are considered
“disruptive” by teachers and the school bus driver. Mother also expresses
concerns about the boys’ health and hygiene, claiming that they are not always
clean and that they have suffered from ringworm, acne, and athlete’s foot while
under their Father’s care.
{¶6} Mother also believes that the children’s schedule contributes to their
problems in that they do not get enough sleep because they get up at 5:30 in the
morning to go to their grandmother’s house to catch the school bus. After school,
the children also go to their grandmother’s home with other cousins. She contends
that they “bounce from family member to family member” and are watched by
aunts or other extended family members. Mother believes that she can better
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provide the stability and educational supervision that the children need because
she is a certified teacher. She only works part-time, as a substitute teacher, so she
claims she has more time and is better able to supervise the children.
{¶7} Father maintains that the boys are happy, healthy and well-cared for.
He claims that they are doing all right in school and that the drop in their grades is
due to a difference between the grading scales used by the different school
systems and because the work has gotten harder now that the boys are in higher
grades. He claims that the behavioral issues complained of by Mother are
exaggerated and blown out of proportion, and that the children are merely typical
boys who are generally well-behaved, well-liked, and demonstrate respect for
others. The boys are active in sports, and Father is the coach of Wesley’s
basketball team. The medical issues were common ailments that were not the
result of any neglect and they were appropriately treated. Father contends that the
boys live a typical lifestyle of children who live on a farm; they have farm animals
that they care for at their grandmother’s home; they are assigned daily chores;
they’re involved in sports and 4-H; and they have a great relationship with their
cousins and many extended family members, who all live nearby.
{¶8} Louanne Hufford, who had served as CASA guardian ad litem
(“GAL”) for these children on two prior occasions, was appointed as GAL. The
trial court also granted Mother’s motion requesting the appointment of Randy
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Hoffman as an attorney guardian ad litem (also, “GAL”). Both GALs submitted
reports to the trial court
{¶9} A three-day trial was held before the court on March 6, 7, and 8, 2012.
The trial court heard testimony from Mother and Father; several of the children’s
grandparents, aunts, and uncles, including Father’s sister-in-law, Laurie Vent, who
was the principal of Mason’s school; the school’s head basketball coach; Mason’s
2nd grade and 4th grade teachers; Wesley’s 7th grade math, reading, and history
teachers; the assistant principal; the school guidance counselor; another counselor
who had been meeting with Mason; the school bus driver; and both GALs.
{¶10} Ms. Hufford’s GAL investigations and report were very extensive
and detailed and concluded that “Wesley and Mason Vent are two well-loved
children by not only their parents but by relatives and friends as well, * * * [and
that the parents] “have raised two very bright, handsome, healthy, well respected
young men.” (Defendant’s Ex. V) Ms. Hufford noted that the children loved and
wanted to spend time with both parents, and that both parents were doing a good
job in raising the boys, even though they had different parenting styles. Ms.
Hufford strongly suggested that the parents try to work together more and improve
their communication so that the children could “have the best of the two worlds.”
In conclusion, she recommended that Father remain the residential parent. (Id.)
{¶11} Mr. Hoffman’s GAL report was more abbreviated, and did not
recommend placement with one parent over the other. His report stated:
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It is unfortunate that two parents as involved in their children’s lives
would be in the position of one “winning” and one “losing.” It is
also unfortunate that two boys are so stressed at being in the middle
of a battle between two parents of different ideals and approaches.
(Plaintiff’s Ex. 30) When questioned at trial, Mr. Hoffman stated that he believed
that, if the trial court found there had been a change in circumstances, it would be
in the best interests of the children to live with Mother, given her teacher training,
part-time work schedule, and the program she was following. (Tr. 612-613)
{¶12} The trial court also interviewed the children in chambers
individually. Wesley and Mason were 13 and 10 years old respectively at the time
of the trial and the court found that both of the boys were competent and could
express a preference as to their residential parent. The trial court reported that:
Each was adamant about remaining in the custody of their father. It
is noted that each boy relayed the same sentiment to each of the
Guardians Ad Litem * * *.
(3/21/12 J.E., p. 2)
{¶13} After considering the extensive amount of testimony and evidence,
the trial court issued its opinion, giving a detailed analysis showing its
consideration of all of the evidence. The trial court found that Mother failed to
show that a change of circumstances of sufficient significance existed to modify
the designation of residential parent and overruled Mother’s motion for a change
of custody. And, although noting that it was not necessary to do so, the trial court
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also found that it would not be in the best interests of the children to modify the
current residential parent status.
The children are well liked, well-loved and happy, but for these
proceedings. They are entrenched in a loving and supportive
extended family. In addition to sports, the children are involved in
4-H and very much enjoy this activity. They have responsibilities
for animals that are kept at their grandmother’s home. At
grandmother’s home they also have the opportunity to meet with
many cousins and engage in activities such as walking trails,
bicycling, camping, and riding in the tractor with dad. They do not
want for food, clothing or attention. Father coaches his sons and
Mother appears at events and cheers for her children. The biggest
negative factor in these children’s lives at this point, is the fact that
their parents refuse to communicate with one another, particularly
when it involves the interest of their children.
(3/21/12 J.E., p. 8)
{¶14} It is from this judgment that Mother now appeals, raising the
following three assignments of error for our review.
First Assignment of Error
The Court’s finding that there was no change of circumstances
was contrary to law and against the manifest weight of evidence.
Second Assignment of Error
The Court’s finding that it was not in the best interest of the
children to reallocate parental rights and responsibilities was
contrary to law and against the manifest weight of evidence.
Third Assignment of Error
The Court erred by not increasing [Mother’s] parenting time
and/or allowing for a first right of refusal and same was
contrary to law and against the manifest weight of evidence.
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{¶15} The modification of parental rights and responsibilities is controlled
by R.C. 3109.04(E). This statute creates a rebuttable presumption in favor of
retaining the residential parent. R.C. 3109.04(E)(1)(a); Rohrbaugh v. Rohrbaugh,
136 Ohio App.3d 599, 604 (7th Dist.2000). Therefore, a court shall not modify a
parenting decree allocating parental rights unless it finds that, based on facts that
have arisen since the decree, there has been a change in circumstances of the child
or the child’s residential parent and modification of the decree is necessary to
serve the child’s best interest. R.C. 3109.04(E)(1)(a). Additionally, the court
must find that one of the factors listed in R.C. 3109.04(E)(1)(a)(i), (ii), and (iii)
applies. R.C. 3109.04(F) provides a non-exclusive list of relevant factors to be
utilized in helping to determine what would be in a child’s best interest.
{¶16} Custody issues are some of the most difficult decisions a trial judge
must make. Therefore, those decisions rest within the sound discretion of the trial
court. Davis v. Flickinger, 77 Ohio St.3d 415, 418, 1997–Ohio–260; Miller v.
Miller, 37 Ohio St.3d 71, 74 (1988). A court’s decision regarding an award of
custody is subject to reversal only upon a showing of an abuse of that discretion.
Id.; Trickey v. Trickey, 158 Ohio St. 9, 13–14 (1952). A trial court will be found
to have abused its discretion when its decision is contrary to law, unreasonable,
not supported by the evidence, or grossly unsound. Bruce v. Bruce, 3d Dist. No.
9–10–57, 2012–Ohio–45, ¶ 13, citing State v. Boles, 187 Ohio App.3d 345, 2010–
Ohio–278, ¶ 17–18 (2d Dist.), citing Black’s Law Dictionary (8 Ed.Rev.2004) 11.
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“A reviewing court will not overturn a custody determination unless the trial court
has acted in a manner that is arbitrary, unreasonable, or capricious.” Pater v.
Pater, 63 Ohio St.3d 393 (1992).
{¶17} The reason for this standard of review is that the trial judge is in the
best position to view the demeanor, attitude, and credibility of each witness and to
weigh the evidence and testimony. Davis, 77 Ohio St.3d at 418. This is especially
true in a child custody case, since there may be much that is evident in the parties’
demeanor and attitude that does not translate well to the record. Id. at 419.
[I]t is inappropriate in most cases for a court of appeals to
independently weigh evidence and grant a change of custody. 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. The knowledge a trial court gains through
observing the witnesses and the parties in a custody proceeding
cannot be conveyed to a reviewing court by a printed record. * * *
(Citations omitted.) Miller, 37 Ohio St.3d at 74.
{¶18} In applying an abuse of discretion standard, a reviewing court is not
free to substitute its judgment for that of the trial court. Hay v. Shafer, 3d Dist. No.
10–10–10, 2010–Ohio-4811, ¶ 14, citing Holcomb v. Holcomb, 44 Ohio St.3d 128,
(1989). When reviewing a change of child custody proceedings, an appellate court
should be guided by the presumption that trial court’s findings were correct.
Miller at 74.
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{¶19} In her first assignment of error, Mother claims that the trial court’s
finding that there was no change of circumstances was contrary to law and against
the manifest weight of evidence. She argues that there was considerable evidence
that there has been a significant change of circumstances concerning the children
in that their grades had deteriorated, they were exhibiting behavioral problems,
and their schedule deprived them of sleep and stability.
{¶20} In order for a trial court to modify a prior allocation of parental rights
and responsibilities, it must make a threshold finding that a change in
circumstances has occurred, and, if so, it must then determine that the
modification is in the best interest of the child. R.C. 3109.04(E)(1)(a); Wooten v.
Schwaderer, 3d Dist. No. 14-08-13, 2008-Ohio-3221, ¶3. The statute’s language
does not require a “substantial” change in order to warrant a change of custody,
but “the change must be a change of substance, not a slight or inconsequential
change.” Davis, 77 Ohio St.3d at 418; LaBute v. LaBute, 179 Ohio App.3d 696,
2008 -Ohio- 6190, ¶ 7 (3d Dist.).
{¶21} The Ohio Supreme Court has consistently affirmed the reasoning and
intent behind this threshold requirement.
The requirement that a parent seeking modification of a prior decree
allocating parental rights and responsibilities show a change of
circumstances is purposeful: “‘The clear intent of [R.C.
3109.04(E)(1)(a)] is to spare children from a constant tug of war
between their parents who would file a motion for change of custody
each time the parent out of custody thought he or she could provide
the child a “better” environment. The statute is an attempt to
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provide some stability to the custodial status of the children, even
though the parent out of custody may be able to prove that he or she
can provide a better environment.’” Davis v. Flickinger (1997), 77
Ohio St.3d 415, 418, 674 N.E.2d 1159, quoting Wyss v. Wyss
(1982), 3 Ohio App.3d 412, 416, 3 OBR 479, 445 N.E.2d 1153.
Fisher v. Hasenjager, 116 Ohio St.3d 53, 2007-Ohio-5589, ¶ 34.
{¶22} Mother’s arguments are a classic example of the situation cited
above wherein she believes that she can provide the children with a “better
environment” by providing more competent help with the children’s homework
and establishing what she considers to be a better schedule and a more structured
environment.
{¶23} On appeal, Mother provided numerous excerpts from the record
indicating that the children’s grades were poor and that the children had
disciplinary problems at school and on the bus. However, all of the examples
cited by Mother were taken out of context, or they were specifically picked to
support her position. Father cited just as many, if not more, examples from the
record where the teachers and others testified that the children were doing well,
that their problems were somewhat typical for boys of their age, and that their
issues were not nearly as problematic as Mother depicted them to be.
{¶24} For example, the assistant principal testified that Wesley had
received a number of disciplinary referrals during the past two years. (Tr. 334)
However, in reviewing each of them, it turns out that many were for relatively
minor infractions, such as chewing gum, tardiness between classes, and staying in
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the restroom too long. (Tr. 335) The assistant principal further testified that
Wesley was a polite child, he was “very respectful,” and that he had chosen
Wesley to be a lunch room helper because Wesley was considered a “quality”
student and was dependable. (Tr. 356-358) The history teacher testified that
Wesley could sometimes be disruptive, but that it was normal for 7th grade boys
to be disruptive at times. (Tr. 176) And, although the school bus driver had
turned in a “conduct report” for Wesley, she stated that “he’s a typical boy and
they all get rambunctious,” and that she hasn’t had any trouble with him since the
report. (Tr. 204)
{¶25} While it is important that the parents emphasize the necessity of
following all of the rules and behaving properly, the record certainly does not
indicate that the children are heading down the path to juvenile delinquency. In
fact, most witnesses testified that the children were usually very good, dependable,
trustworthy, friendly, and respectful. There was no evidence in the record that
Father was doing anything improper or that he failed to appropriately discipline
the boys, even though his parenting style and priorities may be different than
Mother’s.
{¶26} Likewise, Mother’s issues regarding the children’s grades only tell
one side of the situation. While we can understand Mother’s concerns with some
of the poor grades that the boys received in some subjects and their unsatisfactory
homework history, there was also evidence in the record indicating that they had
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demonstrated improvement in some areas and that their academic performance
when they were with Mother may not have been significantly different that when
they were with Father. Although it was problematic that the testimony indicated
that the boys were not always working up to their potential, their school
performance did not rise to a level of major concern to the educators who testified
or to the trial court. See Klein v. Botelho, 2d Dist. No. 24393, 2011-Ohio-4165, ¶
33-34 (finding that the children’s purported behavior problems and poor grades
did not constitute a change of circumstances sufficient to justify a change in
custody). In fact, Mason’s current teacher read from her notes, stating that,
“Mason is a real pleasure to have in class” and that he has really improved in his
reading fluency and in doing his assignments. (Tr. 738)
{¶27} The children’s teachers further testified that the boys came to school
well-groomed, clean and appropriately dressed. And, the record indicated that
Father made sure that the children were receiving necessary medical and dental
care. The trial court found that “Mother, it seems, is the only individual to have
concerns regarding the children’s hygiene and health and has failed to prove that
these concerns provide the necessary ‘change of circumstances’ requiring the
Court to consider a change of residential parent.” (3/21/12 J.E., p. 4)
{¶28} Mother acknowledged that there had not been any changes in the
Father’s circumstances since 2009, and that the only changes in circumstances that
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she was alleging regarded issues concerning Mason and Wesley. (Tr. 510)
Mother testified:
Q. Wouldn’t you agree today that there’s been no change in
circumstances regarding [Father] from 2009 forward?
A. Just him?
Q. Regarding [Father], true.
A. Not that I know of.
Q. So is it your allegation that the only change of circumstances
that we’re dealing with regarding this hearing is issues regarding
both Mason and Wesley?
A. Yes.
***
Q. And, isn’t it true that [Father] has done nothing that you
didn’t anticipate nor were you aware of insofar as his situation as he
sits here today?
A. Yes.
(Tr. 511)
{¶29} We do not find that the trial court abused its discretion when it
determined that there was not sufficient evidence in the record to demonstrate a
change of circumstances that would require the trial court to consider changing the
residential parent. The trial court’s detailed decision was thoroughly documented
with references to the record in support of its position. The trial court has been
involved with these parties, and in making decisions concerning the best interest
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of these children, since 2003. The trial court was in a superior position to evaluate
the weight of the evidence and judge the credibility, demeanor and motivation of
the various witnesses. See Malone v. Malone, 3d Dist. No. 13-10-39, 2011-Ohio-
2096, ¶ 14. It is not our position to weigh the evidence or substitute our judgment
for that of the trial court. See Miller, 37 Ohio St.3d at 74; Daniels v. Daniels, 3d
Dist. No. 11-08-10, 2009-Ohio-784, ¶ 15.
{¶30} We find no abuse of discretion by the trial court. Therefore, the first
assignment of error is overruled.
{¶31} In the second assignment of error, Mother asserts that the trial court’s
statement that it would not be in the best interest of the children to reallocate
parental rights and responsibilities was contrary to law and against the manifest
weight of the evidence. This argument is based on the assumption that there
would be the required preliminary finding of a change of circumstances, as
required by statute. See R.C. 3109.04(E)(1)(a). Having affirmed the trial court’s
threshold decision finding no change in circumstances, there is no need to examine
whether or not a change of custody would be in the children’s best interests.
Mother’s second assignment of error is overruled.
{¶32} In the third assignment of error, Mother submits that the trial court
erred by not increasing her parenting time with the children and/or allowing for a
first right of refusal to enable her to watch the children when Father is not
available. Mother argues that it would be in the children’s best interest to have
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increased parenting time with her, especially when she is available to spend time
with them before and after school, when they are being cared for by other
relatives.
{¶33} Mother correctly stated that it was not necessary for a court to find
that there has been a change of circumstances in order to modify visitation rights,
citing to Braatz v. Braatz, 85 Ohio St.3d 40, 44-45, 1999-Ohio-203. However, as
also stated in Braatz v. Braatz, “‘visitation’ and ‘custody’ are related but distinct
legal concepts.” Id. at 44. Pursuant to Civ.R. 7(B), all motions are to state with
particularity the grounds and the relief sought. Mother never requested a
modification of her visitation or to have the first right of refusal. Her only motion
sought sole custody of the children.
{¶34} Mother claims that many of the factors set forth in R.C. 3109.051 are
applicable to demonstrate that it would be beneficial to the children to have
additional parenting time with her. We do not know what the trial court might
have found concerning R.C. 3109.051 because the issue of modifying visitation
was never before the trial court. However, we do know that the trial court and
both GALs emphatically stated that it would be in the children’s best interest if the
parties would communicate and cooperate more with each other, and if the
children were not repeatedly subjected to contentious court proceedings. Given
the ages of the children, their multiple activities, and their busy schedules, perhaps
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this is an area where the parties can implement the recommendations of the trial
court and the GALs, on behalf of their children.
{¶35} The trial court did not abuse its discretion by not sua sponte
addressing an issue that was never raised. Mother’s third assignment of error is
overruled.
{¶36} 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.
SHAW, P.J. and ROGERS, J, concur.
/hlo
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