B.C. v. S.D. , 2021 Ohio 2963 ( 2021 )

[Cite as B.C. v. S.D., 2021-Ohio-2963.]
COURT OF APPEALS
LICKING COUNTY, OHIO
FIFTH APPELLATE DISTRICT
B.C. : JUDGES:
: Hon. W. Scott Gwin, P.J.
First Petitioner-Appellee : Hon. Patricia A. Delaney, J.
: Hon. Earle E. Wise, Jr., J.
-vs- :
:
S.D. : Case No. 2021-CA-00027
:
Second Petitioner-Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Court of Common
Pleas, Domestic Relations Division,
Case No. 07-DR-01578
JUDGMENT: Affirmed
DATE OF JUDGMENT: August 26, 2021
APPEARANCES:
For First Petitioner-Appellee For Second Petitioner-Appellant
KELLY C. PARKS LANCE R. GROVE
2602 Oakstone Drive 6810 East Main Street
Columbus, OH 43231 Suite 302
Reynoldsburg, OH 43068
Licking County, Case No. 2021-CA-00027 2
Wise, Earle, J.
{¶ 1} Second Petitioner-Appellant, S.D., father, appeals the March 1, 2021
judgment entry of the Court of Common Pleas of Licking County, Ohio, Domestic
Relations Division, granting the motion to reallocate parental rights and responsibilities
filed by First Petitioner-Appellee, B.C., mother.
FACTS AND PROCEDURAL HISTORY
{¶ 2} Appellant-father and appellee-mother have a child together, born May 2007.
Pursuant to an agreed entry filed September 1, 2011, appellant was named the sole
residential parent and legal custodian of the child. Pursuant to a judgment entry filed
November 2, 2016, appellee was granted increased parenting time.
{¶ 3} On July 6, 2020, appellee filed a motion for the reallocation of parental rights
and responsibilities. A hearing before a magistrate was held on November 4, 2020. By
decision filed November 24, 2020, the magistrate granted the motion and named appellee
as the sole residential parent and legal custodian of the child. Appellant filed objections.
By judgment entry filed March 1, 2021, the trial court denied the objections and approved
and adopted the magistrate's decision.
{¶ 4} Appellant filed an appeal and this matter is now before this court for
consideration. Assignments of error are as follows:
I
{¶ 5} "THE TRIAL COURT COMMITTED PREJUDICIAL ERROR TO THE
SECOND PETITIONER-APPELLANT WHEN THE MAGISTRATE COMMITTED AN
ABUSE OF DISCRETION BY FINDING THAT THERE WAS A CHANGE OF
CIRCUMSTANCE AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE."
Licking County, Case No. 2021-CA-00027 3
II
{¶ 6} "THE TRIAL COURT COMMITTED PREJUDICIAL ERROR TO THE
SECOND PETITIONER-APPELLANT, WHEN THE MAGISTRATE CONDUCTED THE
IN-CAMERA INTERVIEW, A BEST INTEREST FACTOR, WHEN THE EVIDENCE DID
NOT FIRST SUPPORT A CHANGE OF CIRCUMSTANCES CONSTITUTING AN
ABUSE OF DISCRETION."
III
{¶ 7} "THE TRIAL COURT COMMITTED A PREJUDICIAL ERROR TO THE
SECOND PETITIONER-APPELLANT WHEN THE MAGISTRATE FOUND THE HARM
LIKELY TO BE CAUSED BY THE CHANGE OF ENVIRONMENT IS OUTWEIGHED BY
THE ADVANTAGES OF THE CHANGE OF ENVIRONMENT TO THE CHILD R.C.
3109.04(E)(1)(a)(iii), CONSTITUTING AN ABUSE OF DISCRETION."
I, II, III
{¶ 8} In his first assignment of error, appellant claims the trial court abused its
discretion in finding a change of circumstances against the manifest weight of the
evidence.
{¶ 9} In his second assignment of error, appellant claims the trial court erred in
conducting an in camera interview of the child without first finding a change of
circumstances.
{¶ 10} In his third assignment of error, appellant claims the trial court abused its
discretion in finding the harm likely to be caused by the change of environment is
outweighed by the advantages of the change in environment to the child.
Licking County, Case No. 2021-CA-00027 4
{¶ 11} We disagree with all of appellant's claims.
{¶ 12} A trial court reviews a motion to reallocate parental rights and
responsibilities under R.C. 3109.04(E)(1)(a) which states as follows:
(E)(1)(a) The court shall not modify a prior decree allocating parental
rights and responsibilities for the care of children unless it finds, based on
facts that have arisen since the prior decree or that were unknown to the
court at the time of the prior decree, that a change has occurred in the
circumstances of the child, the child's residential parent, or either of the
parents subject to a shared parenting decree, and that the modification is
necessary to serve the best interest of the child. In applying these
standards, the court shall retain the residential parent designated by the
prior decree or the prior shared parenting decree, unless a modification is
in the best interest of the child and one of the following applies:
(i) The residential parent agrees to a change in the residential parent
or both parents under a shared parenting decree agree to a change in the
designation of residential parent.
(ii) The child, with the consent of the residential parent or of both
parents under a shared parenting decree, has been integrated into the
family of the person seeking to become the residential parent.
(iii) The harm likely to be caused by a change of environment is
outweighed by the advantages of the change of environment to the child.
Licking County, Case No. 2021-CA-00027 5
{¶ 13} Therefore, in determining whether to make a modification, a trial court must
consider (1) whether a change in circumstances has occurred, (2) whether a modification
is in the child's best interest, and (3) whether the benefits that result from the change of
environment outweigh any harm. As explained by this court in Oyler v. Lancaster, 5th
Dist. Stark No. 2019CA00130, 2020-Ohio-758, ¶ 24:
R.C. 3109.04 does not define the concept of "change in
circumstances." However, Ohio courts have held the phrase is intended to
denote "an event, occurrence, or situation which has a material and adverse
effect upon a child." Wyss v. Wyss, 3 Ohio App.3d 412, 445 N.E.2d 1153(10th Dist.1982). Additionally, the change of circumstances must be "one
of substance, not a slight or inconsequential change." Davis v. Flickinger,
77 Ohio St.3d 415, 674 N.E.2d 1159 (1997).
{¶ 14} "In determining whether a 'change' has occurred, a trial judge must have
wide latitude in considering all the evidence, and the court's decision must not be reversed
absent an abuse of discretion." In re A.P., 2d Dist. Montgomery No. 28023, 2019-Ohio-
139, ¶ 23. In order to find an abuse of discretion, we must determine the trial court's
decision was unreasonable, arbitrary or unconscionable and not merely an error of law or
judgment. Blakemore v. Blakemore, 5 Ohio St.3d 217, 450 N.E.2d 1140 (1983). "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. (Trickey v. Trickey [1952], 158 Ohio St. 9, 47 O.O. 481, 106 N.E.2d
Licking County, Case No. 2021-CA-00027 6
772, approved and followed.)" Bechtol v. Bechtol, 49 Ohio St.3d 21, 550 N.E.2d 178,
syllabus.
{¶ 15} As explained by this court in B.S. v. M.M., 5th Dist. Stark No. 2020 CA
00111, 2021-Ohio-176, ¶ 23:
The trial court is "best able to view the witnesses and observe their
demeanor, gestures, and voice inflections, and use these observations in
weighing the credibility of the proffered testimony." Seasons Coal Co. v.
Cleveland, 10 Ohio St.3d 77, 461 N.E.2d 1273 (1984). Deferential review
in a child custody determination is especially crucial "where there may be
much evidence by the parties' demeanor and attitude that does not translate
to the record well." Davis v. Flickinger, 77 Ohio St.3d 415, 674 N.E.2d 1159(1997). We are mindful that 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, and the reviewing court
should be guided by the presumption that the trial court's findings were
correct. See, Miller v. Miller, 37 Ohio St.3d 71, 74, 523 N.E.2d 846 (1988).
{¶ 16} At the time appellant was named sole residential parent and legal custodian
of the child, the child was four years old. At the time of the hearing, the child was thirteen
years old. Prior to rendering a decision, the magistrate conducted a recorded in camera
interview of the child. In his appellate brief at 15, appellant argues "a change of
circumstances must be met prior to an in-camera interview being conducted."
Licking County, Case No. 2021-CA-00027 7
{¶ 17} In Davis v. Davis, 5th Dist. Tuscarawas No. 2016 AP 05 0031, 2016-Ohio-
7205, ¶ 38, this court stated the following:
A child's desire to live with a particular parent, without more, does
not constitute a change in circumstance. Markley v. Markley, 9th Dist.
Wayne No. 06CA0043, 2007-Ohio-886. The determination of whether the
child's age, coupled with the desire to live with a different parent, constitutes
a change in circumstances is made by the trial court on a case-by-case
basis. Pryor v. Hooks, 9th Dist. Summit No. 25294, 2010-Ohio-6130.
{¶ 18} In Boone v. Kaser, 5th Dist. Tuscarawas No. 2001AP050050, 2001 WL
1011453, *2 (Aug. 28, 2001), this court stated, "we believe the passage of time during a
significant developmental portion of a child's life, combined with other pertinent factors,
such as the child's expressed desires to reside with mother, supports the trial court's
finding of a change of circumstances, requiring further inquiry by a trial court." See also,
Schoolcraft v. Markel, 5th Dist. Stark No. 2020-Ohio-3572, ¶ 18 ("we find the trial court
abused its discretion in misapplying the law to the facts in this case by failing to consider
the child's wishes under its change in circumstances analysis"); Wilson v. Wilson, 4th
Dist. Lawrence No. 09CA1, 2009-Ohio-4978, ¶ 26 ("The record contains other facts, in
addition to the child's maturation, to support a finding of a change in circumstance. The
child stated that he wishes to live with his father"); Khulenberg v. Davis, 12th Dist. Butler
No. CA96-07-143, 1997 WL 527647, *6 (Aug. 25, 1997) ("the combination of facts
including Jason's wishes, Jason's age, and the long history of difficulty between the
Licking County, Case No. 2021-CA-00027 8
parties, is sufficient for a finding of a change of circumstances"); Butland v. Butland, 10th
Dist. Franklin No. 95APF09-1151, 1996 WL 362038, *3 (June 27, 1996) ("Although R.C.
3109.04(F)(1) instructs a court to consider the child's wishes as a factor in determining
the child's best interest, it does not indicate any legislative intent to have the wishes and
concerns of the child examined solely in the context of the best interest determination");
Perz v. Perz, 85 Ohio App.3d 374, 619 N.E.2d 1094, fn. 1 (6th Dist.1993) ("a child's
attainment of 'sufficient reasoning ability' would be a substantial change in a material
circumstance such as would justify a further inquiry into the best interest of the child").
{¶ 19} In order to consider a child's wishes under a change of circumstances
analysis, a trial court may conduct an in camera interview to question the child. We do
not find R.C. 3109.04 limits in camera interviews to best interest analysis only.
{¶ 20} The magistrate held a hearing and heard from appellant and appellee, and
conducted an in camera interview of the child. In its decision filed November 24, 2020,
the magistrate gave "the child's wishes and concerns significant weight," finding the child
was "bright, articulate, and clearly expressed her thoughts and feelings without apparent
influence from either parent." The magistrate noted the child was "very close with her
half-brother who is 11 years old and lives with Mother." The magistrate found the child
"is thirteen, entering puberty, and has a close and connected relationship with the Mother"
and the child's relationship with appellant "is somewhat strained at the present time." The
magistrate also found the child was struggling with appellant's home environment, "was
experiencing a strain in her communications and relationship" with appellant, and "the
child's emotional health and school performance is suffering at the present time." The
magistrate ordered mental health counseling for the child. The magistrate considered the
Licking County, Case No. 2021-CA-00027 9
best interest factors under R.C. 3109.04(F)(1), and concluded a substantial change in
circumstances had occurred, a modification was necessary to serve the best interest of
the child, and the harm likely caused by the change of environment was outweighed by
the advantages of the change.
{¶ 21} In its March 1, 2021 judgment entry denying appellant's objections, the trial
court conducted an independent review and agreed with the magistrate's conclusions.
The trial court found the evidence supports the finding that the child "is having significant
issues in her life which require the Court to take action." The trial court's decision
contained numerous references in the record to support its position, and our review
confirms the trial court's findings. T. at 9-10, 12, 13, 16-17, 19-20, 22-23, 25-26, 28-31,
33-37, 46-48, 52-53, 62, 64, 70-71, 75-76, 84-85, 97-98, 100-101, 106.
{¶ 22} The child has aged from four to thirteen which is a significant developmental
portion of her life, has reached puberty, has clearly articulated her wishes, has bonded
with her half-sibling, and is struggling in her current environment.
{¶ 23} We find the trial court did not abuse its discretion in finding a change of
circumstances.
{¶ 24} In his appellate brief at 17, appellant argues the magistrate merely recited
the words to satisfy the test under R.C. 3109.04(E)(1)(a)(iii) and failed "to show how the
harm likely to be caused by the change of environment is outweighed by the harm caused
by the change of environment to the child when custody is changed."
{¶ 25} We agree "although an expression of the rationale underlying this finding
would benefit a reviewing court, the statute does not require the trial court to express its
analysis." Alessio v. Alessio, 10th Dist. Franklin No. 05AP-988, 2006-Ohio-2447, ¶ 27.
Licking County, Case No. 2021-CA-00027 10
In Reigel v. Bowman, 5th Dist. Delaware No. 17 CAF 01 0006, 2017-Ohio-7388, ¶ 33,
this court explained the following:
We note the magistrate did recite the basic R.C. 3109.04(E)(1)(a)(iii)
finding in her decision. See Magistrate's Decision at 8. We also recognize
that R.C. 3109.04(E)(1)(a)(iii) does not require a trial court "to cast the whole
of its reflection on the case into words." Meyer v. Anderson, 2nd Dist. Miami
No. 96CA32, 1997 WL 189383. Nonetheless, it remains our obligation
herein to determine whether a substantial amount of competent, credible
evidence supports the trial court's finding under R.C. 3109.04(E)(1)(a)(iii).
See, e.g., Alessio v. Alessio, 10th Dist. Franklin No. 05AP-988, 2006-Ohio-
2447, ¶ 27.
{¶ 26} With the citations to the record listed above, we find the trial court's
determination that the advantages to the child of a change of environment outweighed
the harm resulting from that change is supported with a substantial amount of competent,
credible evidence.
{¶ 27} Upon review, we find the trial court did not abuse its discretion in granting
appellee's motion to reallocate parental rights and responsibilities and the decision is
supported by substantial competent, credible evidence.
{¶ 28} Assignments of Error I, II, and III are denied.
Licking County, Case No. 2021-CA-00027 11
{¶ 29} The judgment of the Court of Common Pleas of Licking County, Ohio,
Domestic Relations Division, is hereby affirmed.
By Wise, Earle, J.
Gwin, P.J. and
Delaney, J. concur.
EEW/db