Sassya v. Morgan , 2019 Ohio 1301 ( 2019 )

[Cite as Sassya v. Morgan, 2019-Ohio-1301.]
IN THE COURT OF APPEALS
ELEVENTH APPELLATE DISTRICT
TRUMBULL COUNTY, OHIO
LEBY SASSYA, : OPINION
Plaintiff-Appellee, :
CASE NO. 2018-T-0013
- vs - :
CAROL LYNNE MORGAN (f.k.a. :
SASSYA),
Defendant-Appellant. :
Civil Appeal from the Trumbull County Court of Common Pleas, Domestic Relations
Division, Case No. 2011 DS 00293.
Judgment: Affirmed.
Elise M. Burkey, Burkey, Burkey & Scher Co., L.P.A., 200 Chestnut Avenue, N.E.,
Warren, OH 44483 (For Plaintiff-Appellee).
Carol Lynne Morgan (f.k.a. Sassya), pro se, 878 Indianola Road, Youngstown, OH
44512 (Defendant-Appellant).
MATT LYNCH, J.
{¶1} Defendant-appellant, Carol Lynn Morgan f.k.a. Sassya, appeals the
January 10, 2018 Judgment Order of the Trumbull County Court of Common Pleas,
Domestic Relations Division, overruling her objections to and confirming its adoption of
the August 11, 2017 Magistrate’s Decision which granted plaintiff-appellee, Leby
Sassya’s, motion to modify custody of the parties’ minor children. For the following
reasons, we affirm the decision of the court below.
{¶2} On July 11, 2013, Sassya and Morgan were granted a divorce in the
Trumbull County Court of Common Pleas, Domestic Relations Division. According to
the terms of the Decree of Divorce, Morgan was “designated residential parent of the
children, [H.S.] [and] [Y.S.],” and Sassya was “designated residential parent of the
children, [Sa.S.], [T.S.] and [So.S.].” The parties were ordered “to comply with this
Court’s Parenting and Companionship Guidelines on a reciprocal basis.”
{¶3} In Sassya v. Morgan, 2014-Ohio-3278, 17 N.E.3d 104 (11th Dist.), this
court reversed the Decree of Divorce with respect to the property settlement.
{¶4} On August 22, 2016, Sassya filed a Motion to Show Cause (Contempt)
based, inter alia, on Morgan’s willful denial of Sassya parenting time with the minor
children of whom she was designated residential parent.
{¶5} On September 12, 2016, Attorney Marc C. Cervello was appointed to
represent Morgan. Cervello’s representation of Morgan was limited to defending her
against the Motion to Show Cause.
{¶6} On September 16, 2016, Attorney Charles Draa was appointed as the
Guardian ad Litem “to investigate parenting time problems.”
{¶7} On January 5, 2017, Sassya filed a Motion for Reallocation of Parental
Rights/Motion to Show Cause based on the claim that Morgan “engaged in a pattern of
conduct in which she continuously and willfully denies the Plaintiff parenting time with
the minor children” and “engaged in behaviors to alienate the children from the Plaintiff.”
{¶8} On January 24, 2017, Sassya filed a Motion for Custody Evaluation of the
children.
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{¶9} On March 9, 2017, the domestic relations court granted the Motion for
Custody Evaluation and ordered Dr. Harvey Kayne to be retained for purposes of
conducting the evaluation.
{¶10} On May 10, 2017, Sassya filed another Motion to Show Cause (Contempt)
since Morgan “continued to willfully deny the Plaintiff Father parenting time with the
minor children.”
{¶11} On June 9, 2017, a hearing was to be held on Sassya’s contempt and
custody motions. Although present prior to the start of the hearing, Morgan did not
participate in the hearing. Also prior to the hearing’s commencement, Sassya withdrew
the pending contempt motions and the matter proceeded solely on the Motion for
Reallocation of Parental Rights. On Sassya’s behalf, testimony was presented from Dr.
Harvey Kayne, Julie Rudolph of Mahoning County Children Services Board, H.S., Y.S.,
and Leby Sassya.
{¶12} On June 15, 2017, an In Camera Interview of each of the minor children
(Sa.S., T.S., and So.S.) was conducted.
{¶13} On June 29, 2017, the hearing on the reallocation motion continued.
Morgan was present and testified on her own behalf. The Guardian ad Litem (Attorney
Draa) also testified and Sassya gave rebuttal testimony.
{¶14} On August 11, 2017, a Magistrate’s Decision was issued and was
approved by the domestic relations court. The magistrate concluded that a change of
circumstances of the children and the residential parent has occurred in that Morgan
“has willfully, and without justifiable cause, denied substantial parenting time of the
Plaintiff-Father”; that “a modification is necessary to serve the best interest of the
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children”; and that “the harm likely to be caused by a change of environment for the
minor children is outweighed by the advantages of the change of environment to the
children.”
{¶15} The magistrate made the following relevant findings:
The Plaintiff-Father is requesting that this Court name him as
the residential parent and legal custodian of the parties’ minor
children. The Defendant-Mother is requesting that this Court retain
her as the residential parent and legal custodian.
The Court, in the presence of the Guardian ad Litem, has
interviewed the minor children in chambers regarding their wishes
and concerns as to the allocation of parental rights and
responsibilities. The children’s wishes and concerns as expressed
to this Court are considered in the Court’s analysis, along with the
report of Dr. Harvey Kayne pertaining to the statements made to
him by the minor children, and his evaluation of the children.
The children are very closely bonded to Defendant-Mother.
Conversely, according to Dr. Kayne, the children reportedly saw no
positive virtues in their Father, and thus their relationship with their
Father appears to be severely strained. Dr. Kayne described the
children as “enmeshed” in their mother’s life, and the father as “the
man they learned to fear.” He reported that despite there being no
documented history of physical abuse of the children, the children
believe that they have been abused, and express that they are
afraid of their father. They were, however, unable to give details of
certain allegations, and despite expressing this fear, he found it
clinically significant they did not seem [at] all fearful, anxious or
distressed when telling the stories of their abuse or discussing the
matter of visitation with their father.
Despite the children’s presentation to Dr. Kayne in this
manner, according to the parties’ oldest sons, [H.S.] and [Y.S.],
when the children visited with the Father, they were happy to see
him, interacted well with him, and seemed to enjoy their time
together. The children also seem to have a positive relationship
with their older brothers, and their brothers are very capable of and
willing to play a significant role in assisting the Plaintiff-Father in
caring for them when with the Plaintiff-Father. [H.S.] and [Y.S.]
appear to be very positive influences and role models for their
younger siblings.
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The children are adjusted to their present environment in the
Defendant-Mother’s home. They have been in the Defendant-
Mother’s custody since the parties’ separation. They seem to have
a good relationship with the Defendant-Mother. They do well in
their current school in the Boardman School District, and they have
friends. While they are not involved in any extracurricular activities,
the Defendant-Mother testified that she intends to enroll [T.S.] in
football.
***
Dr. Kayne’s report indicates that there was nothing in his
analysis that would cause him to conclude that either parent was
mentally ill. He noted some significant personality issues that may
rise to the level of a disorder that are clearly present in the
Defendant-Mother, including hypersensitivity, mistrust, and a sense
of victimization and that these issues are negatively impacting her
interpersonal and other functioning. Dr. Kayne testified that these
personality issues are an enduring and lifelong pattern, and that the
Defendant-Mother lacks insight that these matters present a
problem for her.
***
The Plaintiff-Father is the parent more likely to honor and
facilitate court-approved parenting time rights or visitation and
companionship rights. The Defendant-Mother has refused to
comply with this Court’s orders of visitation and companionship.
The Plaintiff-Father has indicated that this has been a substantial
issue over the years since the parties’ divorce. Even when the
visitation has been ordered to be supervised in a public location,
per this Court’s most recent orders entered in this case, the
Defendant-Mother has failed and refused to comply with the court
orders. The result is that the children have been deprived of
significant and important relationships, not only with the Plaintiff-
Father, but also with their oldest siblings, [H.S.] and [Y.S.], who
have been in the Plaintiff-Father’s custody since the parties’
separation and divorce.
Defendant-Mother asserted that the Plaintiff-Father has
deprived her of parenting time with the parties’ oldest sons that
have been in his custody, and stated that she has had “no visits”
with [H.S.] and [Y.S.] in 5 years. However, the evidence presented,
including the testimony of the children, shows that the Defendant-
Mother is false and that she has had visits with the children. The
Plaintiff-Father has encouraged the relationship between the oldest
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sons and the Defendant-Mother. In fact, [H.S.] continues to see the
Defendant-Mother, and comes over to her home and sees his
siblings. It appears, rather, that [H.S.] and [Y.S.]’s relationship with
their mother has declined due to her behaviors. The Plaintiff-Father
continued to take [Y.S.] to visitation exchanges, even when the
Defendant-Mother would not show up with the three youngest
children, in an effort to ensure contact between [Y.S.] and the
Defendant-Mother. However, the Defendant-Mother would fail to
show up or would fail to take [Y.S.] for visits.
The Plaintiff-Father is current in his child support payments.
The Defendant-Mother asserted that there is an existing arrearage
from prior orders. However, she presented no evidence as to the
amount of the purported arrearage and no evidence as to the
nature of or circumstances as to when the arrearage was
accumulated. She admitted that the Plaintiff-Father has been
current in his obligation.
The Defendant-Mother has repeatedly asserted that the
Plaintiff-Father has abused and continues to abuse the minor
children. She further asserts that the Plaintiff-Father has abused
and stalks her. She presented a Civil Protection Order entered by
the Mahoning County Domestic Relations Court in support of her
assertions. It is noted, in fact, that there have been two Civil
Protection Orders entered by the Mahoning County Domestic
Relations Court against the Plaintiff-Father, including one in 2011
and the most recent being 2016. Each of these restricted and
currently restrict the Plaintiff-Father from having contact with the
Defendant-Mother. However, this Court does not find the existence
of these orders alone to be conclusive evidence of abuse of the
children by the Plaintiff-Father. Rather, it is incumbent upon this
Court to hear the evidence and draw its own conclusions based on
the evidence presented to it as to whether or not there is reason to
believe that the Plaintiff-Father has acted in a manner resulting in
any of the children being an abused or neglected child. * * * Thus,
this Court must make a determination as to whether the minor
children are in danger of abuse or neglect while in the care of the
Plaintiff-Father, as asserted by the Defendant-Mother, or whether
the Defendant-Mother has utilized her assertions of abuse and
neglect in order to justify her behaviors in alienating the Plaintiff-
Father from the children. It is the finding of this Court that it is the
latter that is the case, and that there is no reason to believe that the
Plaintiff-Father has acted in a manner resulting in any of the
children being an abused or neglected child. * * *
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{¶16} Accordingly, the magistrate, inter alia, ordered that Sassya be “designated
as the residential parent and legal custodian of the parties’ minor children.”
{¶17} On August 25, 2017, Morgan filed Objections to the Magistrate’s Decision
of August 11, 2017. On December 13, 2017, Morgan filed her Supplement to
Objections to Magistrate’s Decision. On December 15, 2017, Morgan filed a Corrected
Supplement to Objections to Magistrate’s Decision.
{¶18} On January 10, 2018, the domestic relations court overruled all pending
objections to the Magistrate’s Decision.
{¶19} On February 6, 2018, Morgan filed a Notice of Appeal. On appeal, she
raises the following assignments of error:
{¶20} “[1.] The trial court erred, as a matter of law, by overruling appellant’s
objection that the custody trial had been commenced without appellant receiving proper
notice of such, in violation of her rights to due process.”
{¶21} “[2.] The trial court’s decision ordering that some of the parties’ exchanges
of the minor children occur in a specific Giant Eagle parking lot is both an abuse of
discretion and ignores the facts presented.”
{¶22} “[3.] The trial court erred to the prejudice of the appellant and violated her
rights to due process of law by failing and refusing to permit appellant to testify on her
own behalf.”
{¶23} “[4.] The trial court erred to the prejudice of the appellant and violated her
due process rights by failing to permit her to call the child, [Sa.S.], as a fact witness.”
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{¶24} “[5.] The trial court’s finding that appellee should be established as
residential parent of the children due to appellant’s interference with visitation is against
the manifest weight of the evidence.”
{¶25} In custody matters, the trial court enjoys broad, but not unlimited,
discretion. An “appellate court may not merely substitute its judgment for that of the trial
court,” which “is subject to reversal upon the basis of a showing of abuse of discretion.”
Baxter v. Baxter, 27 Ohio St.2d 168, 172-173, 271 N.E.2d 873 (1971).
{¶26} Also important to the resolution of several issues raised in the present
appeal is the proposition, “long recognized” by the Ohio Supreme Court “in civil as well
as criminal cases, that failure to timely advise a trial court of possible error,
by objection or otherwise, results in a waiver of the issue for purposes of appeal.”
Goldfuss v. Davidson, 79 Ohio St.3d 116, 121, 679 N.E.2d 1099 (1997).
{¶27} Under her first assignment of error, Morgan claims the
magistrate/domestic relations court violated her due process rights by proceeding with
the custody hearing on June 9, 2017. Morgan contends that she “strenuously objected”
to the hearing going forward because “she was not aware that a hearing would be
conducted on [the custody] motion on that date and, therefore, was not prepared to go
forward on that motion.” Appellant’s brief at 8.
{¶28} “Due process under the Ohio and United States Constitutions demands
that the right to notice and an opportunity to be heard must be granted at a meaningful
time and in a meaningful manner where the state seeks to infringe a protected liberty or
property interest.” State v. Hochhausler, 76 Ohio St.3d 455, 459, 668 N.E.2d 457(1996); Arbino v. Johnson & Johnson, 116 Ohio St.3d 468, 2007-Ohio-6948, 880 N.E.2d
8420, ¶ 48 (recognizing the “due process of law” provision contained in Section 16,
Article I of the Ohio Constitution “as the equivalent of the ‘due process of law’
protections in the United States Constitution”). “Notice, to comply
with due process requirements, must be given sufficiently in advance of scheduled court
proceedings so that the defendant has reasonable opportunity to prepare for the
specific issues presented.” Morjock v. Morjock, 7th Dist. Mahoning No. 03-MA-146,
2005-Ohio-1768, ¶ 19. “However, the concept of due process is flexible and varies
depending on the importance attached to the interest and the particular circumstances
under which the deprivation may occur.” Hochhausler at 459.
{¶29} A hearing on both the custody and contempt issues was originally
scheduled for June 8, 2017, as reflected in the Magistrate’s Order of March 2, 2017:
“This matter came on for hearing on several pre-trial issues * * * regarding the upcoming
trial on the contempt & custody issues set on 6-8-17.” The magistrate further advised
the parties that “an additional ½ day1 trial either prior to or after the already scheduled
6-8-17 full day trial date” would be set. On May 10, 2017, the court’s docket reflects
that a hearing on the “motion for contempt” was set for June 9, 2017. On May 11 (the
next day), the docket reflects that the “trial to court scheduled for 06/08/2017 * * * has
been rescheduled” for June 29, 2017.
{¶30} At the June 9 hearing, the magistrate indicated that trial would proceed on
the custody motion in light of Sassya’s dismissal of pending contempt motions. Morgan
was in court that day but left the courthouse prior to the start of the hearing. The record
indicates that Morgan became upset because the court was going to hear evidence on
1. The court’s docket for March 2, 2017, provides: “matter set for 2nd full day trial per the 3/2/17 court
hearing.”
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the custody motion and/or because of a proposal to allow Sassya visitation with the
minor children. There was no formal objection on the record to the hearing proceeding
on June 9 nor was an objection raised at the subsequent June 29 hearing. At this time,
the magistrate noted for the record: “Ms. Morgan, that was the hearing that you got very
angry. You left and I continued the hearing for the rest of the day. The Plaintiff or the
Movant-Defendant put on his case, and I listened to his case, and you chose not to be
here.”
{¶31} We find no denial of Morgan’s due process rights. The March 2
Magistrate’s Order fairly indicated that the custody and contempt issues would be heard
jointly over the course of a day and a half or two days. Combining the custody and
contempt issues was also reasonable in light of the fact that the grounds for the
reallocation of parental rights were the same grounds underlying the contempt motions.
Admittedly, there was some confusion as to which motions would be addressed at the
June 9 hearing2, such confusion, however, was not prejudicial to Morgan’s interests. As
just noted, the contempt and custody issues were substantively similar. Morgan
voluntarily refused to participate in the proceedings on June 9, thus depriving herself of
the opportunity to hear and oppose Sassya’s evidence as well as the opportunity to
explain why it would be inequitable to proceed with the hearing on that date.3 At the
second scheduled day of hearings on June 29, Morgan was able to present her
testimony in opposition to the motion for reallocation of custody. In sum, Morgan
2. Whereas Morgan believed that only contempt issues would be addressed, her appointed counsel
believed that only custody issues would be addressed and so did not appear for the hearing.
3. In her Objections to the Magistrate’s Decision, Morgan contended that “she did not leave of her own
free will and not return as written in the Magistrate’s Decision.” The magistrate and Guardian ad Litem
testified contrariwise, and the domestic relations court accepted their testimony inasmuch as Morgan’s
objection was overruled.
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deprived herself of the opportunity to participate at the June 9 hearing (and, so, cross-
examine Sassya’s witnesses), had ample opportunity to present her own evidence at
the June 29 hearing, and never proffered any argument as to how proceeding on June 9
compromised her ability to oppose the custody motion.4 Compare State v. Clinton, 153
Ohio St.3d 422, 2017-Ohio-9423, 108 N.E.3d 1, ¶ 201 (a party’s absence from a
hearing may be harmless error).
{¶32} The first assignment of error is without merit.
{¶33} In her second assignment of error, Morgan argues that the magistrate
erred by ordering the exchange of the minor children at the commencement of Morgan’s
parenting time to occur “in the parking lot of the Giant Eagle Supermarket located at
4700 Belmont Avenue, Youngstown” with the proviso that “neither parent shall exit
his/her vehicle at the time of the exchange.” Morgan contends the order is
unreasonable in light of the Order of Protection issued in Mahoning County requiring
Sassya to “not be present within 500 feet of her.” Morgan maintains that the magistrate
should have ordered exchanges to occur at the Youngstown Police Department.
Appellant’s brief at 10.
{¶34} We find no abuse of discretion. There is no evidence or allegation that
Sassya has threatened or menaced Morgan during prior exchanges of the minor
children. There was an incident which occurred at a Sam’s Club and resulted in Morgan
contacting the police and children’s services. This incident involved the minor children
4. In her Objections to the Magistrate’s Decision, Morgan claimed she was “denied the right to produce
witnesses’ testimony.” On the contrary, she did not have the right to produce witnesses during Sassya’s
presentation of his case in support of the motion and, on June 29, she did have the opportunity to present
witnesses in opposition to the motion. Morgan has never identified the witnesses she would have had
testify on June 9, explained why they were unavailable on June 29, or proffered what their testimony
would have been.
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rather than Morgan and, as found by the magistrate, did not constitute an incident of
abuse or neglect. The order regarding custody exchanges does not provide for any
direct contact between parties and further stipulates that “[a]ny necessary
communication between the parties regarding the minor children shall be through the
parties’ oldest adult son, [H.S.].”5 Nothing in the record before this court suggests that
Morgan has or will be prejudiced by custody exchanges at Giant Eagle.
{¶35} The second assignment of error is without merit.
{¶36} In the third assignment of error, Morgan argues that, “at no point [during
the June 29 hearing] was Appellant permitted to give a narrative of her testimony,”
rather, she “was first cross-examined by the magistrate and then [by] the remaining
parties” and, “whenever [she] would attempt to interject her own version of events, a
multitude of objections were sustained since during those parts of the proceedings
examination of other witnesses was to be occurring.” Accordingly, Morgan was denied
due process.
{¶37} We disagree. Evidence Rule 614(B) (“[t]he court may interrogate
witnesses, in an impartial manner, whether called by itself or by a party”) allows a trial
judge or magistrate to question witnesses “as long as the questions are relevant and do
not suggest a bias for one side or the other.” Patrick v. Patrick, 7th Dist. Carroll No. 17
CA 0913, 2017-Ohio-9380, ¶ 43. The exercise of a judge or magistrate’s discretionary
ability to question witnesses to aid both the court and pro se litigants develop relevant
testimony has been expressly approved by several courts. Rick’s Foreign Exchange
5. The Order of Protection expressly states that it refrains from “making any orders allocating parental
rights and responsibilities” on account of the pendency of the present proceedings. Compare State v.
Price, 118 Ohio St.3d 144, 2008-Ohio-1974, 886 N.E.2d 852, ¶ 20 (“[d]epending upon how a divorce
decree allocates parental rights and responsibilities, it may modify multiple aspects of the CPO beyond
the paragraphs dealing with parental rights and visitation”).
12
Co. v. Greenlee, 2d Dist. Montgomery No. 26096, 2014-Ohio-4505, ¶ 34; Henry v.
Richardson, 193 Ohio App.3d 375, 2011-Ohio-2098, 951 N.E.2d 1123, ¶ 26 (12th Dist.);
Paulding-Putnam Cooperative, Inc. v. Kuhlman, 117 Ohio App.3d 156, 162-163, 690
N.E.2d 52 (3d Dist.1997).
{¶38} In the present case, the magistrate was sensitive to the fact that Morgan
was proceeding pro se and proposed the following procedure to Morgan:
Today is your opportunity to present your case. * * * In order to
help it go smoothly, I will help you the best I can under the law
because I know you cannot do this as easily and as efficiently as a
seasoned lawyer. * * * I take it ma’am, you’re going to testify right?
[Morgan: Yes.] Okay. In order to help you testify, I will ask the
questions. Okay? [Morgan: Thanks.] You answer me. And that will
get you through your testimony. Then at the end I will ask you if you
have anything else you want to add. All right? [Morgan: Yes.] But
when I ask you a question, I’m just not asking you a question for the
heck of it. I’m asking you a question that will either help you and/or
your children. That’s what I’m trying to do here.
Additionally, the magistrate asked for and marked any exhibits Morgan wished to
introduce into evidence.
{¶39} The magistrate proceeded to question Morgan regarding the children’s
living conditions, their education, their relationship with Sassya and their siblings, the
Mahoning County protection orders, issues involving visitation with the children, her own
physical and mental health, and her concerns that Sassya abuses the children. After
questioning Morgan, the magistrate inquired, “what else do you have to tell me?”
Morgan expressed her concern that the children continue to be a part of her life and not
think of her as “the bad person” because she “left dad.” The magistrate again asked,
“are you finished” and Morgan answered affirmatively.
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{¶40} It is evident that it was neither the intent nor the effect of the magistrate’s
questioning of Morgan to deprive her of the opportunity to present her own narrative
testimony. Rather, the magistrate was ensuring a proper record existed on which to
rule. He explained his intent to Morgan and obtained her consent before questioning
her. He gave her ample opportunity to supplement her testimony with her own
narrative.6 At no point during the hearing or at its conclusion did Morgan object that she
had additional testimony that she was not allowed to present. State v. Williams, 11th
Dist. Trumbull No. 97-T-0148, 1998 WL 964576, *8 (“[t]he failure to object [to the court’s
questioning of a witness] generally constitutes a waiver of any error on appeal”); State
v. Davis, 79 Ohio App.3d 450, 455, 607 N.E.2d 543 (1992).
{¶41} Having found no deprivation of due process, the third assignment of error
is without merit.
{¶42} In the fourth assignment of error, Morgan claims the magistrate erred by
prohibiting her from calling the minor child, Sa.S., as a witness. She argues that
“there’s nothing in the law * * * which prohibits a party from calling a child to testify as a
fact witness” and that “there were countless events and incidents described by the
witnesses which Sa.S. has personal knowledge of.” Appellant’s brief at 12. Morgan,
however, failed to proffer testimony in order to preserve the error for the record.
{¶43} Following her own testimony, Morgan advised the court that Sa.S. (age 12
at the time of the hearing) was present and that she wished to ask her daughter some
questions. The magistrate refused, advising that “I do not want to call her.” The
6. Morgan was also allowed some latitude in her cross-examination of Sassya and the Guardian ad
Litem to address additional topics such as the alleged existence of black mold in Sassya’s home and
differences of religion in the two households.
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magistrate continued: “I don’t want to put children through that. This is hard enough for
those children.” Morgan replied, “it is” and “I agree.”
{¶44} We acknowledge that several courts have allowed children to testify as
fact witnesses in divorce proceedings. Buckmaster v. Buckmaster, 4th Dist. Highland
No. 13A13, 2014-Ohio-793, ¶ 18 (“reliance upon an unwritten local rule” and/or
“enforcement of a blanket rule disallowing child testimony in domestic matters * * *
result[s] in a deprivation of due process”); but see Glimcher v. Glimcher, 29 Ohio
App.2d 55, 278 N.E.2d 37 (10th Dist.1971) (“[w]e do not condone the practice of a
parent causing minor children to testify against the other parent in a divorce action”).
Nevertheless, the decision remains discretionary with the trial court.
{¶45} In the present case, Morgan raised no objection to the magistrate’s
decision not to allow Sa.S. to testify and agreed with the magistrate’s reasoning that
such experience would “do more damage than good.” Given the factual circumstances
of the present case, this conclusion is sound. Gramsz v. Gramsz, 8th Dist. Cuyahoga
Nos. 49276 and 49280, 1985 WL 6886, *5 (where “[b]oth boys were questioned
extensively by the referee and the guardian ad litem * * * [t]here was no compelling
need to inject them in the adversarial role of witness for or against one of the parents”).
Moreover, not only did Morgan fail to preserve the issue for review, she made no proffer
regarding what Sa.S. would have testified to. In the absence of such a proffer, it has
been held that a party cannot demonstrate the prejudice necessary to justify reversal.
Moser v. Moser, 72 Ohio App.3d 575, 579-580, 595 N.E.2d 518 (3d Dist.1991).
{¶46} The fourth assignment of error is without merit.
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{¶47} In the fifth and final assignment of error, Morgan asserts that the
magistrate’s finding that she “continuously and willfully denied the Plaintiff-Father’s right
to parenting time in accordance with the Court’s orders” is against the manifest weight
of the evidence. Rather than being intentional, Morgan claims she “was simply seeking
to protect the children of the parties from undue corporal punishment and other acts of
[Sassya] during the time that she was seeking a protection order concerning such in a
different jurisdiction.” Appellant’s brief at 14-15.
{¶48} “Weight of the evidence concerns ‘the inclination of the greater amount of
credible evidence, offered in a trial, to support one side of the issue rather than the
other.’” (Citation omitted.) Eastly v. Volkman, 132 Ohio St.3d 328, 2012-Ohio-2179,
972 N.E.2d 517, ¶ 12. Being “mindful of the presumption in favor of the finder of fact,”
the reviewing court “‘weighs the evidence and all reasonable inferences, considers the
credibility of witnesses and determines whether in resolving conflicts in the evidence,
the [finder of fact] clearly lost its way and created such a manifest miscarriage of justice
that the [judgment] must be reversed and a new trial ordered.’” (Citations omitted.) Id.
at ¶ 21, 20.
{¶49} There is no real question that Morgan denied Sassya visitation with the
minor children; the issue remaining is whether such denial was justified in light of her
fears that he was abusing the children. The magistrate concluded that the denial was
willful and we defer to that determination. We note that the magistrate cited to an
abundance of competent and credible evidence in support of his decision including: the
lack of criminal abuse or neglect charges and/or substantiated allegations of abuse
against Sassya; Dr. Kayne’s opinion that the children’s statements regarding abuse
16
were untrustworthy; the testimony of H.S. and Y.S. that the minor children have not
been abused; a lack of evidence to corroborate Morgan’s allegations; and his own
estimation of the witnesses’ credibility. Seasons Coal Co., Inc. v. Cleveland, 10 Ohio
St.3d 77, 80, 461 N.E.2d 1273 (1984) (“an appellate court should not substitute its
judgment for that of the trial court when there exists * * * competent and credible
evidence supporting the findings of fact and conclusions of law rendered by the trial
judge”).
{¶50} We further note that “[i]t is well-established that interference with the
noncustodial parent’s visitation rights may constitute a change of circumstances
warranting a change of custody.” Jackson v. Herron, 11th Dist. Lake No. 2003-L-145,
2005-Ohio-4046, ¶ 26 (cases cited); Murray v. Murray, 11th Dist. Portage No. 2017-P-
0070, 2018-Ohio-3242, ¶ 38.
{¶51} The fifth assignment of error is without merit.
{¶52} For the foregoing reasons, the judgment of the Trumbull County Court of
Common Pleas, Domestic Relations Division, is affirmed. Costs to be taxed against the
appellant.
THOMAS R. WRIGHT, P.J.,
MARY JANE TRAPP, J.,
concur.
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