Steele v. Steele ( 2012 )

[Cite as Steele v. Steele, 2012-Ohio-291.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
MONTGOMERY COUNTY
CHARLES R. STEELE :
: Appellate Case No. 24702
Plaintiff-Appellant :
: Trial Court Case No. 05-DR-864
v. :
:
BOBBIE JO STEELE, nka MALOCU : (Civil Appeal from Common Pleas
: (Court, Domestic Relations)
Defendant-Appellee :
:
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OPINION
Rendered on the 27th day of January, 2012.
...........
H. STEVEN HOBBS, Atty. Reg. #0018453, The Hobbs Law Office, 119 North Commerce
Street, Post Office Box 489, Lewisburg, Ohio 45338
Attorney for Plaintiff-Appellant
BRIAN A. SOMMERS, Atty. Reg. #0072821, 130 West Second Street, Suite 2100, Dayton,
Ohio 45402
Attorney for Defendant-Appellee
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FAIN, J.
{¶ 1} Plaintiff-appellant Charles R. Steele, the divorced father of M., born in April
2004, appeals from an order of the trial court terminating a shared parenting arrangement and
designating defendant-appellee Bobbi Malocu, M.’s mother, as the residential parent and
custodian. Steele acknowledges that it was appropriate to terminate the shared parenting
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arrangement, in view of difficulties that arose in the co-operation of the parents, but contends
that the trial court abused its discretion by failing to designate him to be the residential parent
and custodian.
{¶ 2} From our review of the record, including the transcript of the trial and exhibits
admitted therein, we conclude that the evidence in the record supports the trial court’s finding
that Malocu’s designation as the residential parent and custodian was in M.’s best interests.
Accordingly, the order of the trial court from which this appeal is taken is Affirmed.
I. The Course of Proceedings in the Trial Court.
{¶ 3} M., the daughter of the parties, who were married, was born in April 2004.
Malocu had two daughters by a previous marriage. Steele was employed by the
Transportation Safety Administration, and worked the 4:00 a.m. to 12:30 p.m. shift at the
Dayton Airport. Malocu had been employed by the TSA, but at the time of M.’s birth, and
thereafter, was suffering from a back injury, and did not work. At the time of trial, she had a
Social Security disability claim that had been denied administratively, and was on appeal to
the United States District Court for the Southern District of Ohio. She was a stay-at-home
mom. She testified that during her marriage to Steele, he agreed to her being the
stay-at-home parent.
{¶ 4} The parties were divorced in 2007. They entered into a shared parenting
arrangement with Malocu’s residence being designated M.’s residence for school purposes.
{¶ 5} Malocu married her current husband, Frank Malocu, and moved into his
Vandalia residence in 2008. In 2009, after disagreements arose concerning the manner in
which shared parenting was being handled, both Steele and Malocu filed motions to terminate
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the shared parenting arrangement. Each wished to be designated M.’s residential parent and
custodian.
{¶ 6} Following a hearing at which Steele and Malocu were the sole witnesses, a
magistrate decided that the shared parenting arrangement should be terminated, with Malocu
being designated M.’s residential parent and custodian. Steele objected. On May 26, 2011,
the trial court entered an order overruling Steele’s objections, designating Malocu to be M.’s
residential parent and custodian, and making appropriate provision for parenting time and
child support. From this order, Steele appeals.
II. The Trial Court Did Not Abuse its Discretion.
{¶ 7} Steele’s sole assignment of error is as follows:
{¶ 8} “THE TRIAL COURT ERRED BY DESIGNATING THE APPELLEE THE
MINOR CHILD’S RESIDENTIAL PARENT.”
{¶ 9} Steele does not challenge the trial court’s decision to terminate the shared
parenting arrangement, which both parties requested. His sole objection to the trial court’s
order is that it should have designated him to be the residential parent and custodian. Steele
acknowledges that our review of this issue is governed by the abuse-of-discretion standard of
review. He frames the issue: “Thus, the seminal issue before this Court is whether the
evidence in the record supports the Trial Court’s finding designating the Appellee residential
parent was in the child’s best interest.”
{¶ 10} Steele cites the factors set forth in R.C. 3109.04(F)(1), which the trial court has
directed a trial court to consider in determining the best interest of a child with respect to the
allocation of parental rights and responsibilities.
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{¶ 11} Steele recognizes that R.C. 3109.04(F)(1)(b) – “the wishes and concerns of the
child, as expressed to the court” – does not literally apply, because the trial court did not
interview M. in chambers, a predicate for the application of this factor. But he argues that the
trial court failed to consider that M. had told the guardian ad litem that “she wanted to spend
more time with [Steele].” This seems to refer to the following statement in the guardian ad
litem’s report: “She consistently indicated in both sessions that she still wants to be with both
parents ‘the same’ and acknowledged her desire to continue to spend more time with father.
She also volunteered that she likes the way that things have been recently, getting to spend
more time with father, but she feels as though mother doesn’t want her to go to father’s as
often.”
{¶ 12} M.’s statement cited in the guardian ad litem’s report appears to be more of an
expression of a desire to maintain the status quo, rather than an expression of M.’s desire to
enlarge her time with her father. It is somewhat difficult to evaluate the order of visitation set
forth in the trial court’s order from which this appeal is taken, in relation to the status quo
ante, since the parties’ testimony at trial indicated that the parenting times were,
commendably, frequently changed by agreement of the parties to accommodate one another’s
schedules, and the child’s schedule, without having to go to court to change the parenting
times set forth in the order. But from our review of the testimony, it appears that the actual
parenting times followed by the parties before the order of May 26, 2011, from which this
appeal is taken, are at least roughly the same as, if not exactly the same as, the parenting times
prescribed in the order. It appears from the record, then, that M. got her wish, and that the
time she will spend with her father, Steele, has not been diminished by the May 26, 2011
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order.
{¶ 13} Steele notes that his relationship with his daughter is close. But he
acknowledges that her relationships with Malocu and her step-father, Frank, are also good.
He argues that his daughter is well-adjusted to his home. The evidence reflects that she is
also well-adjusted to the home her mother shares with her step-father.
{¶ 14} M. suffers from a bowel problem that, at the time of trial, had not been
definitively diagnosed. The treating physicians seemed to believe that it might be attributable
to a birth defect, and that with appropriate care, M. might well grow out of it.
{¶ 15} Much of Steele’s argument concerns the fact that Malocu has taken their
daughter to see a chiropractor. He objects to her having done so without prior notice to him.
Malocu had benefitted from treatment by the chiropractor, and thought that their daughter
might, also. She scheduled M. for an initial examination, but not for a treatment, on the same
day that she, Malocu, was going in for a treatment. It appears that she may not have given
Steele prior notice of the initial visit, although she did inform him by e-mail of treatments that
the chiropractor wanted to give M. before a scheduled biopsy of her colon. She also informed
him that M.’s pediatrician and bowel specialist had said she could be treated by the
chiropractor. In fact, the evidence admitted at the trial includes an e-mail from Steele to
Malocu, with respect to the chiropractor treatments that: “Since this visit is not an emergency
you need to schedule both visits after 1 pm. This way I can attend as according to our
agreement.” This e-mail is dated the day after M.’s initial visit to the chiropractor.
{¶ 16} Steele argues that: “Not only did [Malocu] keep [Steele] in the dark concerning
this ‘alternative’ treatment, she kept the child’s medical doctors in the dark[,] too.” The
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evidence in the record would permit the trial court to find that Malocu did not keep either
Steele or the physicians treating M. “in the dark” concerning the fact that Malocu was taking
M. to a chiropractor for treatments.
{¶ 17} M. had a biopsy of her colon. She remained in the hospital overnight. Both
Malocu and Steele stayed with her overnight. The biopsy was on a Wednesday. The next
day, at 9:18 p.m., Malocu sent Steele an e-mail that included the following advisory: “[S]ince
the surgeon told us not to send [M.] to school tomorrow [Friday], [I] will keep her home and
let her rest until you pick her up at 5:30 p.m.” On Friday, Steele showed up at 12:30,
accompanied by a police officer, to pick M. up for his parenting time. Steele was persuaded
to leave M. with her mother and come back at 5:30. When Steele came back at 5:30, Malocu
learned that he intended to take her to a Chick-fil-A fast-food restaurant where there is a play
area for climbing and sliding. Malocu asked him instead to take M. to his home, where she
could lie down and rest. Malocu reminded Steele that the discharge instructions had included
a high-fiber diet. Steele took M. to the Chick-fil-A.
{¶ 18} Steele argues that Malocu should have allowed him to pick M. up at 12:30 p.m.
on the second day after her biopsy, since, as the result of her surgical procedure, which
involved stitching up her colon, she did not have school that Friday. It was their agreement
that on Fridays when M. did not have school, Steele could pick her up at 12:30 p.m. instead of
5:30 p.m., the regular time. Steele cites Malocu’s refusal to have allowed him to pick M. up
at 12:30 p.m. in support of his argument that Malocu interferes with his parenting time. On
the evidence in the record, we find Malocu’s actions on that occasion to have been more
indicative of a concern for M.’s welfare than Steele’s. The evidence in the record
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demonstrates that Malocu has been sensitive, reasonable, and accommodating to Steele’s need
for parenting time.
{¶ 19} Finally, Steele argues that: “The undisputed evidence is [Malocu] is late to
exchanges 85% of the time.” This is based upon his testimony that Malocu would bring M.
to the airport, where Steele works, fifteen to twenty minutes late “on a regular basis,” which
he then estimated as being 80 to 85% of the time. As Malocu notes in her brief, until an
agreed order was filed in January, 2010, Malocu provided all of the transportation of M. back
and forth between the parties. She undoubtedly was late some of the time. But Steele’s
testimony that she was fifteen to twenty minutes late 80 to 85% of the time was not
undisputed. Malocu testified on that subject as follows:
{¶ 20} Q. Okay. Now, he complains on direct and [sic] that you’re late constantly.
{¶ 21} No.
{¶ 22} Q. Do you recall that?
{¶ 23} Yes.
{¶ 24} Q. Were you late?
{¶ 25} No.
{¶ 26} Q. You call him if you’re running a couple minutes late?
{¶ 27} Yes.
{¶ 28} We conclude that the trial court was not required to accept as true Steele’s
testimony that Malocu was fifteen to twenty minutes late 80 to 85% of the time.
{¶ 29} We have reviewed the record, including the entire transcript of the trial. We
find evidence therein that although their parenting styles may differ, both parties are loving,
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caring and responsible parents. Either would make a perfectly acceptable residential parent
and custodian. The guardian ad litem submitted both an assessment and a subsequent update,
after extensive interviews of the parties, M., the step-father, family sessions, telephone
contacts with one of Steele’s proposed childcare providers, the father of another proposed
childcare provider, Malocu’s mother and one of Malocu’s other daughters, the principal at
M.’s school, materials received from both parties, and medical records received from the
digestive specialist treating M. The guardian ad litem recommended that Malocu be the
residential parent and guardian.
{¶ 30} We conclude that the evidence in the record supports the trial court’s finding
that it is in M.’s best interest for Malocu to be her residential parent and custodian, and that
the trial court’s order to that effect is not an abuse of discretion. Steele’s sole assignment of
error is overruled.
III. Conclusion.
{¶ 31} Steele’s sole assignment of error having been overruled, the order of the trial
court from which this appeal is taken is Affirmed.
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FROELICH and HALL, JJ., concur.
Copies mailed to:
H. Steven Hobbs
Brian A. Sommers
Hon. Denise L. Cross