Dodson v. Bullinger , 2010 Ohio 6263 ( 2010 )

[Cite as Dodson v. Bullinger, 2010-Ohio-6263.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
VAN WERT COUNTY
EUGENE D. DODSON,
PLAINTIFF-APPELLEE, CASE NO. 15-10-06
v.
SOMER B. BULLINGER, OPINION
DEFENDANT-APPELLANT.
Appeal from Van Wert County Common Pleas Court,
Juvenile Division
Trial Court No. 202300012
Judgment Affirmed
Date of Decision: December 20, 2010
APPEARANCES:
Joseph A. Benavidez for Appellant
Martin D. Burchfield for Appellee
Case No. 15-10-06
WILLAMOWSKI, P.J.
{¶1} Defendant-appellant, Somer B. Bullinger (“Somer”), appeals the
judgment of the Van Wert County Court of Common Pleas, Juvenile Division,
designating plaintiff-appellee, Eugene D. Dodson (“Eugene”), as the residential
parent of the parties’ child. Somer claims that the trial court erred when it found
that a change in the circumstances had occurred since the issuance of the prior
custody decree, and that it was in their child’s best interest to modify the parties’
existing decree allocating their parental rights and responsibilities.
{¶2} Somer and Eugene are the parents of a son, Chandler, who was born
in October of 2001. At the time Chandler was born, Somer was nineteen years old
and Eugene was still a minor. Somer and Eugene did not have a relationship
during Somer’s pregnancy. Eugene was not listed as Chandler’s father on the
birth certificate.
{¶3} In March of 2002, after he turned eighteen, Eugene filed a paternity
action in the Van Wert County Juvenile Court and established that he was
Chandler’s father. In November of 2002, the parties reached a mutual agreement
regarding the custody arrangements for Chandler and submitted the agreement to
the court. Somer was named Chandler’s primary residential parent, and Eugene
was given visitation on specified days and holidays.
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{¶4} On February 13, 2009, Eugene filed a Motion for Modification of
Residential Placement alleging that Chandler was “not doing well” living with
Somer and that it would be in his best interest for Eugene to be named his
residential parent. On June 9, 2009, a hearing on Eugene’s motion was held
before the magistrate. The magistrate heard the testimony of Somer and Eugene,
along with the testimony of personnel from Chandler’s elementary school and
friends and relatives of each party.
{¶5} Testimony from Chandler’s teacher and the elementary school
principal, Principal Manz, indicated that, although Chandler performed well
academically, he exhibited some disruptive behavioral issues when interacting
with the other students. Principal Manz testified that Chandler had trouble with
impulse control, which required her to intervene on several occasions to discipline
him. Principal Manz further testified that the school had a policy of prohibiting
the bus driver from leaving the younger children at the bus stop if there was not an
adult present to receive the child. Principal Manz stated that on several occasions
the bus driver was required to return Chandler to the school because there was no
one at the bus stop to meet him. Principal Manz’ testimony also confirmed that
Chandler, in second grade at the time of the hearing, was either absent or tardy for
a number of days during the school year, and that he had missed a total of 18 days
in the first grade and 15 days in Kindergarten.
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{¶6} Another issue of concern raised at the hearing was Somer’s refusal
to immunize Chandler. Somer filed an immunization exemption with the school
stating that she was a pagan as the basis for the exemption. On the stand, Somer
explained that she was not actually a pagan, but a “naturalist” who uses natural
remedies for ailments. Somer further explained that she was not comfortable with
inoculating her children with “chemicals.” However, Somer also testified that she
took Chandler for regular wellness appointments with his family doctor.
{¶7} The testimony also revealed that Chandler lived with Somer and his
two siblings from a different father. Somer testified that she became involved
with Emiliana Yunez, aka “Nano,” when she was pregnant with Chandler. Somer
and Nano lived together for five years and had two children together who were
close in age to Chandler. Somer testified that Nano is a father figure to Chandler
and that Chandler referred to Nano as “Brown Daddy” and Eugene as “White
Daddy.” At the time of the hearing, Somer and Nano had been living apart for two
years. Nano had visitation with their two children every other weekend—the
opposite weekend that Eugene had custody of Chandler. Somer confirmed that
when Nano picked up his children, he would also take Chandler for the weekend
resulting in Somer not having Chandler for many of the weekends throughout the
year.
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{¶8} Eugene testified about his concern with Somer’s care of Chandler.
Eugene was especially troubled with Somer’s lack of discipline of Chandler which
he believed resulted in Chandler’s behavioral issues at school. Eugene also
expressed concern with Chandler’s hygiene while in Somer’s care, stating that he
was especially troubled by Chandler’s poor dental health.
{¶9} Eugene also testified that many things had changed regarding his
residential situation since the issuance of the last custody decree. When the parties
first submitted their parenting agreement to the court, Chandler was barely a year
old and Eugene was just eighteen. Now in his mid-twenties, Eugene had secured a
steady job as a customer service representative with Verizon Wireless in the
Toledo area. Eugene testified that Chandler had his own room in his apartment.
and stated that he would be able to ensure that Chandler made it to and from
school without any problems if he were named Chandler’s residential parent.
Eugene also revealed that he contracted the HIV virus when he was nineteen, but
has been on medication which suppresses the virus and allows him to maintain a
healthy white blood cell count. Eugene also revealed that he was extremely
educated about his health condition and understood the necessary precautions to
be taken to prevent the transmission of the virus.
{¶10} June 24, 2009, Eugene filed a Motion For Contempt. As the basis
for the motion, Eugene alleged that after the conclusion of the hearing Somer had
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interfered with Eugene’s visitation with Chandler. Specifically, Eugene alleged
that Somer prohibited him from seeing Chandler during the weekend of June 12,
2009—one of Eugene’s visitation weekends—and only permitted Eugene to see
Chandler for two hours on Father’s Day—also a day scheduled for Eugene’s
visitation. Eugene’s motion also stated that Somer failed to maintain a working
phone number, preventing Eugene from having contact with Chandler. The
magistrate ordered Somer to appear and show cause for her interference with
Eugene’s visitation. After the hearing, the magistrate found Somer to be in
contempt.
{¶11} On August 7, 2009, the magistrate overruled Eugene’s Motion for
Modification of Residential Placement. Specifically, the magistrate found that
“[n]o evidence was adduced to demonstrate that a change in the circumstances of
the child or residential parent of the child had occurred that would otherwise
warrant a reallocation of parental rights and responsibilities.” (Aug. 7, 2009 J.E.,
p. 1). Eugene subsequently filed objections to the magistrate’s decision to the Van
Wert County Juvenile Court, asserting that there was ample evidence to support a
finding that a change in the circumstances had occurred since the prior decree
allocating the parties’ parental rights.
{¶12} The trial court sustained Eugene’s objections and found that the
requisite change in the circumstances had occurred. The court then remanded the
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case to the magistrate to determine whether a change in Chandler’s residential
placement would be in his best interest. On January 19, 2010, a hearing regarding
the best interest determination was held before the magistrate. Somer and Eugene
were the only witnesses to testify. On the same day, Eugene filed a notice with the
court stating that he intended to relocate his residence from Toledo to the
Columbus area due to a job transfer.
{¶13} The magistrate subsequently issued a supplemental decision
regarding the best interest determination. The magistrate found that it was in
Chandler’s best interest to designate Eugene as his residential parent and legal
custodian. The magistrate also found that the harm likely to be caused by a
change in the present environment to Chandler is outweighed by the advantages of
the change in environment. Somer was granted parenting time in accordance with
the local rules.
{¶14} Somer timely filed her objections to the magistrate’s decision,
asserting that the magistrate did not adequately consider the statutory factors in
rendering his decision. The trial court overruled Somer’s objections and on May
25, 2010, entered judgment in accordance with the magistrate’s decision.
{¶15} It is from this judgment that Somer timely appeals, raising the
following assignment of error for our review.
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Assignment of Error
The trial court’s finding that appellee shall be designated the
residential parent and legal custodian of the parties’ minor child
is against the manifest weight of the evidence.
{¶16} In her sole assignment of error, Somer argues that the trial court’s
designation of Eugene as Chandler’s residential parent and legal custodian was
against the manifest weight of the evidence. In rendering a decision on whether to
modify an existing decree allocating parental rights, a trial judge must have wide
latitude in considering all the evidence before the court and such a decision must
not be reversed absent an abuse of discretion. Miller v. Miller (1988), 37 Ohio
St.3d 71, 523 N.E.2d 846. The Supreme Court of Ohio further elaborated on our
standard of review in custody cases in Davis v. Flickinger, 1997-Ohio-260, 77
Ohio St.3d 415, 418, 674 N.E.2d 1159:
The standard for abuse of discretion was laid out in the leading
case of C.E. Morris Co. v. Foley Constr. Co. (1978), 54 Ohio St.2d
279, 8 O.O.3d 261, 376 N.E.2d 578, but applied to custody cases
in Bechtol v. Bechtol (1990), 49 Ohio St.3d 21, 550 N.E.2d 178,
syllabus:
‘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 772, approved and followed.)’
The reason for this standard of review is that the trial judge has
the best opportunity to view the demeanor, attitude, and
credibility of each witness, something that does not translate well
on the written page.
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{¶17} The trial court’s discretion in determining parental rights must
remain within the confines of the relevant statutory provisions. Miller, 37 Ohio
St.3d at 74, 523 N.E.2d 846. Section 3109.04(E)(1) of the Revised Code governs
a court’s authority to modify a prior decree allocating parental rights. This section
sets out in great detail the court’s duties and responsibilities in dealing with these
issues. Badgett v. Badgett (1997), 120 Ohio App.3d 448, 450, 698 N.E.2d 84.
{¶18} Specifically, R.C. 3109.04(E)(1)(a) expressly authorizes a court to
modify an existing decree allocating parental rights and responsibilities. See
Fisher v. Hasenjager, 116 Ohio St.3d 53, 57, 2007-Ohio-5589, ¶ 21, 876 N.E.2d
546 (interpreting the statute). The relevant statutory provision states, in part:
(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:
***
(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.
R.C. 3109.04(E)(1)(a). (Emphasis added).
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{¶19} In the instant case, the trial court, after reviewing Eugene’s
objections to the magistrate’s initial decision, found that a change in the
circumstances had occurred to warrant the modification of the parties’ prior
custody decree. In its Judgment Entry, the trial court cited several factors that it
found pertinent in making its ruling. While, the court found that Chandler, age
nine at the time of the ruling, had significantly matured since the issuance of the
existing custody decree eight years earlier,1 the court was also concerned by
Chandler’s consistently poor attendance record over the last three school years.
The court further found it problematic that on several occasions Somer had failed
to meet or arrange for an adult to meet Chandler at the bus stop, requiring the bus
driver to take Chandler back to the school.
{¶20} Regarding Chandler’s residential placement with Somer, the trial
court was troubled by the fact that Chandler spent almost every weekend away
from Somer. Specifically, on the weekends that Chandler was not with Eugene, he
was typically with Nano, whom Chandler referred to as his “Brown Daddy.” The
court was also concerned that Somer appeared to have “numerous other
paramours” at her residence while the children were there. The trial court also
noted its doubts about Somer’s credibility regarding her belief against immunizing
Chandler because she gave inconsistent testimony on the matter.
1
We note that maturation is a fact which is in contemplation by the court at the time of the prior decree.
Thus, we do not rely upon this fact alone.
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{¶21} In reviewing whether the evidence presented in this case
demonstrated that a change in the circumstances had occurred, we are reminded
that the change must be of substance, not slight or inconsequential. Davis v.
Flickinger (1997), 77 Ohio St.3d 415, 1997-Ohio-260, 674 N.E.2d 1159. In
addition, R.C. 3109.04(E)(1)(a) does not require that the change be “substantial,”
nor does “ the change * * * have to be quantitatively large, but rather, must have a
material effect on the child.” McLaughlin v. McLaughlin-Breznenic, 3rd Dist. No.
8-06-06, ¶ 16, 2007 -Ohio- 1087 citing, Davis, 77 Ohio St.3d at 417-18, 674
N.E.2d 1159. Moreover, we note that the passage of time during a significant
developmental portion of a child’s life, combined with other pertinent factors may
support a trial court’s finding of a change of circumstances, requiring further
inquiry into the best interest of the child by a trial court. See In re Tolbert v.
McDonald, 3rd Dist. No. 1-05-47, 2006-Ohio-2377, ¶ 32; see, also Butler v. Butler
(1995), 107 Ohio App.3d 633, 637 (reasoning that the passage of time during
which a child progresses from infant to school age qualifies as a change in
circumstances when viewed in light of other factors).
{¶22} After reviewing the record before us, the evidence supports the trial
court’s finding that a change in the circumstances had occurred regarding both
Somer and Chandler. Chandler was just a year old and barely had a relationship
with Eugene when the prior decree designating Somer as his residential parent was
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filed with the court. Nearly eight years later, Chandler now had a strong
relationship with Eugene. However, according to the testimony from school
personnel, Chandler clearly struggled with impulse control and acting out when
around the other students. Also at the time the prior decree was issued, Somer was
in a committed relationship with Nano. As discussed by the court, Somer and
Nano have since ended their relationship. Somer also moved her residence
frequently, appearing to be living with less stability in her life with regard to her
income and housing.
{¶23} Moreover, the record before us demonstrates that a change in the
circumstances had occurred regarding not only Somer and Chandler, but Eugene
as well. Eugene was just eighteen when he filed for visitation with Chandler.
Since then he had continued to exercise his visitation with Chandler, allowing the
two to develop a strong relationship. Furthermore, the testimony also revealed
that despite being a young teenager when Chandler was born, over time Eugene
had become a responsible father. Based on these considerations, we conclude the
evidence supports the trial court’s finding that a change in the circumstances
having a material effect on Chandler had occurred.
{¶24} Upon finding that the requisite change in the circumstances had
occurred, the trial court noted that the magistrate failed to make any rulings on
whether the modification of custody was in Chandler’s best interest and whether
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the harm likely to be caused by a change of environment is outweighed by the
advantages of the change of environment to Chandler. The trial court remanded
this case to the magistrate to make these determinations. The magistrate
conducted another hearing regarding these matters where both Somer and Eugene
provided additional testimony. The magistrate incorporated by reference the
evidence adduced from the prior hearing into the record. Eugene’s notice of
relocation from Toledo to Dublin, Ohio, based on a job transfer was also
considered by the magistrate at the hearing.
{¶25} Eugene confirmed that he planned to move from Toledo because his
employer intended to close the call center located there and requested that he
relocate to Dublin to work at the newly built regional call center. Eugene testified
that at the time of the hearing he had already looked at schools in the Dublin area
for Chandler to attend.
{¶26} Eugene further testified that since the prior hearing Somer agreed to
place Chandler on medication for ADHD, despite her “naturalist” convictions, in
order to address his behavioral issues at school. This particularly concerned
Eugene because Somer did not involve him in the decision to begin medicating
Chandler nor did she even mention to Eugene that Chandler was on medication.
As a result, Chandler was not on his medication the weekends that he was with
Eugene.
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{¶27} Eugene also expressed his concern about Somer’s commitment to
making changes in how she cares for Chandler. Specifically, Eugene testified that
Somer addressed some of the issues highlighted in the last hearing in response to
the “pressure” from being scrutinized in the court proceedings. Eugene stated that
“when we filed [for custody] things started improving and then when we got the
Magistrate’s Decision to rule in her favor it started getting worse.” (Hrg. Jan 19,
2010 p. 18).
{¶28} Eugene also revealed that since the previous hearing he had been
charged and convicted with a drug paraphernalia offense, a misdemeanor of the
fourth degree. As a result of his conviction, Eugene was ordered to pay a fine and
was given limited driving privileges for six months which permitted Eugene to
drive to and from work and to pick up Chandler for visitation.
{¶29} Somer testified that her herbal remedies were not sufficient in
helping with Chandler’s behavioral issues at school. Somer testified that she then
enlisted the help of her family physician, and together they decided to put
Chandler on medication for ADHD. Somer confirmed that Chandler did not take
the medication on the weekends and that she did not intend to keep him on the
medication in the summer, stating that the medication was for school only.
{¶30} Somer revealed that nothing had changed with her custody
arrangements with Nano on the weekends. Chandler still went with Nano on most
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weekends that he had custody of his own two children. Somer also testified that
she had moved into a new residence where she lived with her three children and a
male “friend.” Somer denied that this man was anything more than a friend and
explained that although he did not pay rent, he did the “manly” things around the
residence in exchange for living there.
{¶31} After hearing the evidence, the magistrate determined that it was in
Chandler’s best interest to designate Eugene as his residential parent. The
magistrate further concluded that “any harm occasioned by a change in the present
environment of the child is outweighed by those advantages available in the
implementation of this modification.” (Jan. 26, 2010 J.E., p. 3).
{¶32} On appeal, Somer contends that the magistrate failed to adequately
consider the statutory factors when he determined that modifying the custody
decree was in Chandler’s best interest.
{¶33} R.C. 3109.04(F) provides a list of non-exclusive factors for the trial
court to consider in determining the best interest of the child. These factors
include:
(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 * * *, the wishes and concerns of
the child, as expressed to the court;
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(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; * * *
(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.
{¶34} In addressing Somer’s contention, we note that even though R.C.
3109.04(F) provides a list of factors for the trial court to consider in determining
the best interest of the child, there is no requirement that the trial court set out an
analysis of each factor in its judgment entry, so long as the judgment entry is
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supported by a substantial amount of competent, credible evidence that the best
interest of the child was considered. Bunten v. Bunten (1998), 126 Ohio App.3d
443, 447, citing Masitto v. Masitto (1986), 22 Ohio St.3d 63. In determining
whether a modification of the custody decree was in Chandler’s best interest, the
magistrate listed several factors it found pertinent in its consideration of the
matter. Each of these factors was directly supported by the testimony discussed
above.
{¶35} Our review of the record indicates that the findings that a change in
circumstances occurred, that it was in Chandler’s best interest to designate Eugene
as the residential parent, and that the advantages of the change of environment
outweighed any harm likely to be caused by the change in environment are all
supported by a substantial amount of competent, credible evidence. Therefore, we
cannot find that the magistrate abused its discretion in designating Eugene as the
residential parent or that the trial court abused its discretion in affirming the
magistrate’s decision. Accordingly, Somer’s 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
ROGERS, J., concurs in Judgment Only.
PRESTON, J., concurs.
/jlr
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