Turner v. Turner , 2012 Ohio 2050 ( 2012 )

[Cite as Turner v. Turner, 2012-Ohio-2050.]
STATE OF OHIO, JEFFERSON COUNTY
IN THE COURT OF APPEALS
SEVENTH DISTRICT
MICA TURNER, nka SKATULA, )
)
PLAINTIFF-APPELLANT, )
)
V. ) CASE NO. 11-JE-5
)
TIMOTHY T. TURNER, ) OPINION
)
DEFENDANT-APPELLEE. )
CHARACTER OF PROCEEDINGS: Civil Appeal from Court of Common
Pleas, Domestic Relations Division of
Jefferson County, Ohio
Case No. 04DR19
JUDGMENT: Affirmed
APPEARANCES:
For Plaintiff-Appellant Atty. Francesca T. Carinci
Suite 904-911, Sinclair Building
100 North Fourth Street
Steubenville, Ohio 43952
For Defendant-Appellee Atty. Peter S. Olivito
606-612 Sinclair Building
Steubenville, Ohio 43952
JUDGES:
Hon. Gene Donofrio
Hon. Joseph J. Vukovich
Hon. Mary DeGenaro
Dated: May 1, 2012
[Cite as Turner v. Turner, 2012-Ohio-2050.]
DONOFRIO, J.
{¶1} Appellant, Mica Turner n.k.a. Skatula, appeals from a Jefferson County
Common Pleas Court judgment reallocating parental rights and responsibilities to
name appellee, Timothy Turner, as the residential parent of the parties’ children.
{¶2} After having been married since December 15, 1998, the parties filed a
separation agreement and a petition for dissolution on January 23, 2004. The trial
court granted the parties a dissolution on March 8, 2004. Per the terms of the
separation agreement, appellant was named the residential parent of the parties’ two
children: Kirsten, d.o.b. July 2, 1997; and Kody, d.o.b. June 28, 2000. Appellee was
afforded visitation in accordance with the child visitation guidelines.
{¶3} On July 16, 2010, appellee filed a motion for reallocation of parental
rights and responsibilities asking the court to name him as the children’s residential
parent. He alleged a substantial change in circumstances for many reasons
including no phone by which he could communicate with appellant, unacceptable
living accommodations for the children, behavioral problems, and the failure on
appellant’s part to provide appellee with school information.
{¶4} The motion proceeded to a hearing before a magistrate. Both parties
testified along with several other witnesses. The magistrate found that appellee’s
motion should be granted and appellee should be named the residential parent.
Appellant filed numerous objections to the magistrate’s decision.
{¶5} The trial court held a hearing on appellant’s objections. It overruled the
objections and entered a judgment consistent with the magistrate’s decision
reallocating parental rights and responsibilities to name appellee as the residential
parent.
{¶6} Appellant filed a timely notice of appeal on March 17, 2011.
{¶7} Appellant raises five assignments of error, the first of which states:
THE MAGISTRATE ABUSED HER DISCRETION
BY REFUSING TO ADMIT EVIDENCE OF AN EXCITED
UTTERANCE EVEN THOUGH IT WAS THOROUGHLY
PRESENTED TO THE COURT IN ACCORDANCE WITH
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OHIO RULE OF EVIDENCE 803(2).
{¶8} Appellant contends that the magistrate erred in failing to allow her to
present testimony by Brenda Casey as to statements made by Kirsten, which she
asserts qualified as an excited utterance. Appellant asserts that the custody case
was a startling event that triggered the excited utterance.
{¶9} A trial court has broad discretion in determining whether to admit or
exclude evidence and its decision will not be reversed absent an abuse of discretion.
State v. Mauldin, 7th Dist. No. 08-MA-92, 2010-Ohio-4192; State v. Mays, 108 Ohio
App.3d 598, 617, 671 N.E.2d 553 (1996). An abuse of discretion is more than an
error of law or judgment; it implies that the trial court's judgment was unreasonable,
arbitrary, or unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450
N.E.2d 1140 (1983).
{¶10} Hearsay is an out-of-court statement, offered in court, to prove the truth
of the matter asserted. Evid.R. 801(C). Generally, hearsay is inadmissible. Evid.R.
802. However, there are numerous exceptions to the hearsay rule.
{¶11} One of those exceptions is for “excited utterances.” An excited
utterance is “[a] statement relating to a startling event or condition made while the
declarant was under the stress of excitement caused by the event or condition.”
Evid.R. 803(2). In order for an excited utterance to be admissible, four requirements
must be met: (1) there must be a startling event that produces nervous excitement in
the declarant so that his statement is spontaneous and non-reflective; (2) the
declarant must make the statement while he or she is still under the stress of the
excitement; (3) the statement must relate to the startling event; and (4) the declarant
must have personally observed the startling event. State v. Taylor, 66 Ohio St.3d
295, 300-301, 612 N.E.2d 316 (1993), citing Potter v. Baker, 162 Ohio St. 488, 124
N.E.2d 140 (1955), paragraph two of the syllabus.
{¶12} To determine whether the trial court erred in disallowing Casey’s
testimony regarding Kirsten’s statements, we must examine the testimony that the
court excluded in light of the above requirements.
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{¶13} Brenda Casey is Kirsten’s and Kody’s dance teacher. She testified that
Kirsten confides in her during dance lessons. (Tr. 304-305). In trying to develop the
excited utterance exception, the following exchange took place between appellant’s
counsel and Casey:
Q Okay. * * * [D]escribe her [Kirsten’s] state that you
observed [at dance class].
A She’s depressed and she’s crying and she’s emotional
and she’s more emotional even with my daughter in the warm-
up.”
Q Have you seen that?
A Just heart-broken over what’s going on.
Q Have you seen her?
A Yes.
Q And tell me about what she looks like when she walks in.
A She’s very depressed. Her – she’s down. She – she’s
not happy.
Q Okay. You said she was crying?
A Oh, yes.
Q * * * [W]hen did she start to cry?
A Well, when she starts talking about it.
Q Okay.
A And then I always give her a hug and tell her everything
will be all right, what’s meant to be will be.
Q And did she state anything to you? Did you ask her why
she’s crying?
A Yes and she explained the whole thing to me and she
wants to live with her –
[At this point, the court sustained appellee’s objection.]
Q Did she say why she was upset?
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A She’s upset because of the whole situation now, the fact
that Tim is trying to take the children.
Q Okay.
A She wants to live where she is. (Tr. 310-11).
{¶14} The court once again sustained appellee’s objection and stated that it
would disregard Casey’s statement. (Tr. 311).
{¶15} The trial court did not abuse its discretion in disallowing Casey’s
testimony regarding Kirsten’s statements to her.
{¶16} According to appellant, the custody case was the startling event that
triggered Kirsten’s alleged excited utterance. Appellee filed his motion for a change
in custody on July 6, 2011. There was no testimony as to when Kirsten became
aware of the motion. There was also no testimony as to when she spoke to Casey
about the motion. Thus, appellant failed to establish that filing of the custody case
was a startling event that produced nervous excitement in Kirsten so that her
statement was spontaneous and non-reflective.
{¶17} Instead, Casey’s testimony indicated that since the filing of the motion,
Kirsten had been depressed and sad over the whole situation. Certainly if that was
the case, Kirsten would have had time to reflect on her statement that she wanted to
remain living with appellant. The elements of an excited utterance exception simply
were not met here.
{¶18} Accordingly, appellant’s first assignment of error is without merit.
{¶19} We will address appellant’s remaining assignments of error out of order
for ease of discussion.
{¶20} Appellant’s third and fifth assignments of error deal with finding a
change in circumstances. Appellant’s third assignment of error states:
THE MAGISTRATE DID NOT ESTABLISH THAT A
CHANGE IN CIRCUMSTANCES HAD OCCURRED.
{¶21} Appellant’s fifth assignment of error states:
THE MAGISTRATE ABUSED HER DISCRETION BY USING IN
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HER DECISION AS A BASIS FOR A CHANGE IN CIRCUMSTANCES
THAT THE APPELLANT CONTINUES TO SMOKE.
{¶22} R.C. 3109.04 guides a trial court's discretion in a custody modification
proceeding. Miller v. Miller, 37 Ohio St.3d 71, 74, 523 N.E.2d 846 (1988). A trial
court's decision regarding the custody of a child which is supported by competent
and credible evidence will not be reversed absent an abuse of discretion. Bechtol v.
Bechtol, 49 Ohio St.3d 21, 550 N.E.2d 178 (1990), syllabus; Rohrbaugh v.
Rohrbaugh, 136 Ohio App.3d 599, 603, 737 N.E.2d 551 (2000). A trial court has
broad discretionary powers in child custody proceedings. Reynolds v. Goll, 75 Ohio
St.3d 121, 124, 661 N.E.2d 1008 (1996). This discretion should be accorded the
utmost respect by a reviewing court in light of the gravity of the proceedings and the
impact that a custody determination has on the parties involved. Trickey v. Trickey,
158 Ohio St. 9, 13, 106 N.E.2d 772 (1952).
{¶23} R.C. 3109.04(E)(1)(a) provides:
(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:
**
**
(iii) The harm likely to be caused by a change of environment is
outweighed by the advantages of the change of environment to the
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child.
{¶24} Per R.C. 3109.04, before the court may consider the best interests of
the children, it must first find a change of circumstances. Appellant raises two
arguments regarding the change in circumstances.
{¶25} Appellant first argues that the children had not been integrated into
appellee’s family and the harm that will be caused by changing their residence
cannot be outweighed by any advantages of the change of residence. She asserts
that the record is filled with examples of how much the children love living with her
and their maternal grandparents. Specifically she pointed to Kirsten’s testimony
about how much she loved living on a farm and taking care of her horse.
{¶26} Several factors, when taken together, establish the required change in
circumstances.
{¶27} Remarriage can be a factor that contributes to a change in
circumstances. Wilson v. Wilson, 4th Dist. No. 09CA1, 2009-Ohio-4978, ¶ 26;
Weisgarber v. Weisgarber, 5th Dist. No.2008CA0067, 2009-Ohio-20, ¶ 45; Bracy v.
Bracy, 3d Dist. No. 1-08-15, 2008-Ohio-3888, ¶ 15. Both appellant and appellee
have remarried since the dissolution.
{¶28} Appellant’s recent health issues also contribute to a change in
circumstances. Nancy testified regarding appellant’s health problems that had
developed over the past year and a half. (Tr. 261-62). She stated that appellant
suffers from acid reflux resulting in ulcers, breathing problems, back problems, and
an ankle injury from a horse stepping on her ankle. (Tr. 264-65). Appellant testified
that due to her back pain, she can no longer work. (Tr. 332). She said that she
applied for disability but that her application was still pending. (Tr. 358-59).
{¶29} Moreover, the evidence demonstrated that while the children are in
appellant’s care, it is not appellant, but instead the maternal grandmother who is their
primary caretaker. At best, the children spend half of their time at appellant’s home.
And much of the testimony indicated that they spend significantly more time in their
grandparents’ home and care than in their mother’s home and care. And while the
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grandparents have always played a large role in the children’s lives, the testimony
indicated that since the parties’ dissolution, the grandma has taken over for appellant
as the residential “parent.”
{¶30} By appellee’s own admission, the maternal grandparents, Pete and
Nancy Kale, have always had active roles in the children’s lives. (Tr. 66). During the
parties’ marriage, they lived on the Kales’ farm property. (Tr. 66). And now,
appellant lives on the Kales’ property in a trailer with her new husband. The Kales
live in a house on the property.
{¶31} But since the parties’ dissolution, the Kales have become the children’s
primary caretakers.
{¶32} Kirsten testified that Kody spends most of his time at the Kales’ house.
(Tr. 205). She said that Kody “comes over to [appellant’s] house” to stay about three
times a week. (Tr. 205). Kirsten and Nancy both testified that Nancy was the one
who helps Kody with his homework. (Tr. 205, 247). Kirsten testified that she often
spends the night at her grandparents’ house. (Tr. 212-13). She stated that she likes
to spend time with her grandma. (Tr. 213). Nancy buys her shoes and clothes, takes
her to get her hair cut, and buys her ice cream. (Tr. 213). Kirsten further testified
that when she and Kody sleep at the Kales’ house, they sleep in bed with their
grandparents. (Tr. 221). And when appellee wants to call the children, he calls the
Kales’ house. (Tr. 8).
{¶33} Nancy testified that she pays for Kody’s tutoring. (Tr. 247). And she
stated that she goes to the children’s school to discuss their progress. (Tr. 248).
Additionally, she stated that she is the one who takes the children to their soccer
games. (Tr. 250-60). And the children’s dance instructor testified that Nancy, not
appellant, brings the children to dance lessons and pays for the lessons. (Tr. 302).
Moreover, Nancy is the one who discusses issues about the children with appellee
and writes notes to appellee about the children. (Tr. 260, 368).
{¶34} Furthermore, during their testimony both Nancy and appellant referred
to “we” when making decisions regarding the children. It was as if Nancy and
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appellant were the parents making decisions for the children. (See for example Tr.
273, 281, 371, 373).
{¶35} There was also an incident involving one of Kirsten’s dance recitals that
the parties spent a great deal of time discussing. Kirsten was involved in a dance
number called “Daddy’s Little Girl.” (Tr. 216). During the number, the girls all danced
with their fathers. Kirsten, however, danced with a stand-in. (Tr. 37). Appellee
attended Kirsten’s recital and watched the dance. (Tr. 37). The recital was the first
time he learned of the dance. (Tr. 37). Kirsten and Nancy both testified that the
reason for this was because Nancy paid for the lessons and she did not want
appellee to participate since he did not help to pay for the lessons. (Tr. 217, 272).
Kirsten testified that if it had been up to her, she would have had appellee dance with
her. (Tr. 217).
{¶36} The parties also testified regarding the past winter. Apparently,
appellant and her husband could not afford to pay for heat in their trailer so they went
to live with a friend for the winter. (Tr. 350). The children, however, did not go with
appellant but instead stayed with their grandparents. (Tr. 193-94).
{¶37} In taking all of these factors together, the parties’ remarriages,
appellant’s health changes, and significantly, the grandparents usurping of care of
the children, the court had enough evidence to find a change in circumstances.
{¶38} Second, appellant contends that her smoking was not a change in
circumstances because the testimony indicated that she smoked before, during, and
after the marriage.
{¶39} There is no indication in the magistrate’s findings of fact that she relied
on appellant’s smoking in finding a change in circumstances. The magistrate did
reference appellant’s smoking. In fact, the magistrate noted appellant’s testimony
that she had smoked since she was 12 years old. Thus, the magistrate was well
aware that appellant’s smoking was not a new circumstance.
{¶40} Accordingly, appellant’s third and fifth assignments of error are without
merit.
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{¶41} Appellant’s second and “3A” assignments of error deal with the best
interest factors. Appellant’s second assignment of error states:
THE MAGISTRATE DID NOT TAKE INTO CONSIDERATION
THE WISHES OF THE CHILDREN AS REQUIRED BY OHIO
REVISED CODE 3109.04.
{¶42} Appellant also lists what she terms “assignment of error 3A.” It states:
THE MAGISTRATE FAILED TO TAKE INTO CONSIDERATION,
ALONG WITH THE WISHES OF THE CHILDREN, THE CHILDREN’S
INTERACTION WITH THEIR HALF-SIBLING AND THEIR
RELUCTANCE TO BE SEPARATED FROM HIM.
{¶43} Once a court finds that a change in circumstances has occurred, it must
move on to consider whether a modification is in the children’s best interest. In
determining the children’s best interests, the court shall consider all relevant factors,
including, but not limited to:
The wishes of the child's parents regarding the child's care;
If the court has interviewed the child in chambers * * * regarding
the child's wishes and concerns as to the allocation of parental
rights and responsibilities concerning the child, the wishes and
concerns of the child, as expressed to the court;
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;
The child's adjustment to the child's home, school, and
community;
The mental and physical health of all persons involved in
the situation;
The parent more likely to honor and facilitate court-
approved parenting time rights or visitation and companionship
rights;
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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;
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 [or certain other
offenses involving children or domestic violence];
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;
Whether either parent has established a residence, or is
planning to establish a residence, outside this state. R.C.
3109.04(F)(1).
{¶44} Appellant argues here that the court failed to consider the children’s
wishes to remain with her on the farm.
{¶45} The magistrate interviewed both children in chambers and found:
Upon the request of Respondent, Mica Skatula, the Court
interviewed the minor children, Kody and Kirsten, in chambers.
The children possess sufficient reasoning ability to express his
[sic.] wishes and concerns with respect to the allocation of
parental rights and responsibilities. It is in the children’s best
interest to determine his [sic.] wishes and concerns as related to
parenting time. The children are accustomed to and enjoy their
lifestyle on the farm, and are fearful that they cannot pursue their
interests in the residence of the Petitioner, Timothy Turner. The
children have a strong bond with their grandparents rather than
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Respondent, Mica Skatula, and are apprehensive of a change in
this relationship if Petitioner, Timothy Turner is named the
residential parent. The children do not appreciate the roles of
their parents, and are accustomed to the maternal grandparents
providing for their needs while in the care of Respondent.
{¶46} Hence, contrary to appellant’s contention, the magistrate and the court
did consider the children’s wishes in rendering a decision.
{¶47} Appellant also argues that the magistrate failed to consider the
children’s relationship with their half-brother, who lives with appellant and her current
husband. She points to Kirsten’s testimony that she did not want to be separated
from her half-brother.
{¶48} The magistrate took considerable time explaining her finding regarding
the children’s relationship with their half-brother, Kasey:
Respondent, Mica Skatula, has another child born to
another parent prior to her relationship with her spouse. The
minor children have a close relationship with their half-brother,
who is a toddler. The children who are the subject of this order
are in different stages of development than their half-brother.
The children do not reside with Respondent on a regular basis,
and therefore do not reside with their half-brother on a regular
basis. School and extracurricular activities of the children create
substantial periods of separation for the children. The children
are already on a midweek parenting time and weekend rotation
which cause separation between them and their half-brother.
During the holidays and summer months, the children are
separated. When the Respondent moved out of the trailer for
those winter months, she separated the children. Her son,
Kasey, stayed with her, and the minor children continued to
reside with the maternal grandparents. The proposed change in
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designation affects the daily contact on three days of the week.
{¶49} Thus, contrary to appellant’s assertion, the magistrate gave a great deal
of consideration to the children’s relationship with their half-brother.
{¶50} Accordingly, appellant’s second and 3A assignments of error are
without merit.
{¶51} Appellant’s fourth assignment of error states:
THE MAGISTRATE ABUSED HER DISCRETION BY
COMMENTING ON THE APPELLANT’S WEIGHT, WHICH WAS
NEVER MENTIONED ANYWHERE IN THE RECORD.
{¶52} Here appellant asserts that the magistrate should not have commented
on her weight because there was no evidence that her weight had any bearing on her
ability to parent the children.
{¶53} While it is true that there was no evidence that appellant’s weight had
any bearing on her ability to parent the children, appellant’s physical health was a
factor the magistrate and the court were to consider in determining the children’s best
interests. See R.C. 3109.04(F)(1)(e). The magistrate discussed appellant’s health in
her findings of fact. She noted that appellant has applied for disability due to back
pain but that there was insufficient evidence as to her medical condition. The
magistrate further noted that appellant has a history of an ankle injury, ovarian cysts,
and acid reflux due to ulcers. The magistrate then stated: “She appears to be
overweight.” The magistrate also noted that appellant is a smoker.
{¶54} Given that the magistrate’s comment on appellant’s weight was just one
short sentence included in a discussion of appellant’s overall health, it was not an
abuse of discretion for the magistrate to make this observation. It is a known fact that
weight affects a person’s health. And given appellant’s other health issues, it was
not unreasonable for the magistrate to include appellant’s weight in a discussion of
her health.
{¶55} Accordingly, appellant’s fourth assignment of error is without merit.
{¶56} For the reasons stated above, the trial court’s judgment is hereby
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affirmed.
Vukovich, J., concurs.
DeGenaro, J., concurs.