In re C.D. , 2012 Ohio 4494 ( 2012 )

[Cite as In re C.D., 2012-Ohio-4494.]
STATE OF OHIO, HARRISON COUNTY
IN THE COURT OF APPEALS
SEVENTH DISTRICT
IN THE MATTER OF: )
) CASE NO. 11 HA 5
C.D., MINOR CHILD. )
)
)
DANNIELLE STITT, )
) OPINION
PLAINTIFF-APPELLANT, )
)
- VS - )
)
JAMIE DAUGHERTY, )
)
DEFENDANT-APPELLEE. )
CHARACTER OF PROCEEDINGS: Civil Appeal from Common Pleas
Court, Juvenile Division,
Case No. 04 H 212.
JUDGMENT: Affirmed.
APPEARANCES:
For Plaintiff-Appellant: Attorney David Heier
338 South High Street
Columbus, OH 43215
For Defendant-Appellee: Attorney Mary Corabi
424 Market Street
Steubenville, OH 43952
JUDGES:
Hon. Mary DeGenaro
Hon. Cheryl L. Waite
Hon. Joseph J. Vukovich
Dated: September 20, 2012
[Cite as In re C.D., 2012-Ohio-4494.]
DeGenaro, J.
{¶1} Plaintiff-Appellant, Dannielle Stitt, appeals the decision of the Harrison
County Court of Common Pleas, Juvenile Division, granting a motion for reallocation of
parental rights and responsibilities filed by the minor child's father, Defendant-Appellee,
Jamie Daugherty. On appeal, Stitt first alleges that because Daugherty is unavailable to
care for the minor child during the week, a non-parent, Daugherty's wife, has become the
de facto custodial parent in violation of Stitt's rights. Second, Stitt argues that the trial
court erred by announcing its intention to interview the minor child after the
commencement of the trial, thereby depriving Stitt of a meaningful opportunity to request
a guardian ad litem. Third, Stitt contends the trial court abused its discretion in finding a
change of circumstances. Finally, she argues that the trial court's decision to grant the
change of custody was an abuse of discretion.
{¶2} Stitt's arguments are meritless. The trial court granted custody to
Daugherty, the child's father, and Stitt has not provided any caselaw to support her
argument that the stepmother has become the de facto custodial parent. A review of the
record reveals that Stitt had a sufficient opportunity to request a guardian ad litem, but
she failed to do so. Furthermore, the trial court did not abuse its discretion in finding a
change of circumstances had occurred. Finally, the trial court did not err in reallocating
custody; the trial court's judgment was well-reasoned and supported by competent,
credible evidence. Accordingly, the judgment of the trial court is affirmed.
Facts and Procedural History
{¶3} Stitt and Daugherty were never married, but have one minor daughter
together, C.D., who was born June 12, 2003. On December 8, 2004, the trial court issued
a judgment entry designating Stitt as residential parent of C.D. The court granted
Daugherty parenting time, every weekend and every Wednesday from 9:00 a.m. to 6:00
p.m.
{¶4} On November 4, 2010, Daugherty filed a motion for reallocation of parental
rights and responsibilities, requesting that the court designate him as the residential
parent and legal custodian. He alleged that a change in circumstances had occurred,
asserting that Stitt has had numerous men living in her residence, and that C.D.'s grades
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and C.D.'s personal hygiene had deteriorated. On March 14, 2011, the matter came
before the trial court for a hearing.
{¶5} Daugherty began his case-in-chief with cross-examination of Stitt. Stitt
testified that she is 28 years old, is currently unemployed and attending college online.
She lives with C.D. and C.D.'s half brother, and sometimes her mother lives with them
when she is not residing in Florida. She is dating a 19 year old man named Matthew.
From 2004 through 2008, a boyfriend lived with her and C.D., and then her son's father
lived with them for approximately a year between 2008 and 2009. She also testified that
there had been no problems with visitation. Daugherty's Wednesday visitation stopped
once C.D. started school, but she still allowed C.D. to go to Daugherty's house on some
Wednesdays. She also allowed C.D. to visit her paternal grandmother frequently. Stitt
testified that Daugherty is a "wonderful" father and that his wife, Rhonda, is a good step-
mother.
{¶6} Stitt testified that C.D. was in kindergarten for two years and it was her
decision for C.D. to repeat kindergarten. In her second year of kindergarten, from
September 18, 2009 through March 2, 2010, C.D. was absent from school 20 times and
tardy twice. Stitt does not have a vehicle, but she denied this was the reason C.D. was
late for school and explained that C.D. had missed the bus. Stitt agreed that she relied
on other people to take and pick up C.D. from the bus stop.
{¶7} For the current school year in first grade, C.D.'s grades in Math, Reading,
and Spelling were, respectively: first grading period – F, D, D; second grading period – D,
D, B; third grading period – F, D, D. Stitt testified that she obtained a tutor for C.D. after
the first grading period, but Daugherty did not think there was a need for a tutor. She said
that she discontinued the tutoring when the custody case began but that she was going to
begin the tutoring again that month. Stitt also testified that she helps C.D. with her
homework every night. The school recently had an Intervention Assistance Team (IAT)
meeting, but Stitt did not attend because she was ill and she sent a note to the school in
advance that she could not attend.
{¶8} Stitt confirmed that she has not volunteered at C.D.'s school. C.D. played
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baseball in summer 2010, and Daugherty and Rhonda took C.D. to practices. Stitt
agreed that sometimes Rhonda would also take her to practices or to the games. She
also admitted that sometimes she would call either Rhonda or Daugherty to obtain
medicine for C.D. Stitt testified that C.D. has had head lice on more than one occasion,
including before she started school.
{¶9} Next, Christy Sommers, C.D.'s first grade teacher, testified. She explained
that the school held parent-teacher conferences in November and sent notices to all the
parents. Stitt did not reply to the notice nor did she attend the conference. Stitt came in
later on, and Sommers told Stitt that C.D. had trouble focusing and that she was
concerned C.D. might have ADD. Stitt told her that C.D. had a doctor's appointment the
following week and she would check on the focusing issues. Sommers never heard back
from Stitt regarding the doctor's appointment. Sommers also discussed the focusing
problems with Daugherty and his response was that C.D. needs any help that she can
get.
{¶10} In November 2010, Sommers sent home worksheets to Stitt with a note
explaining that C.D. was having problems staying focused and suggesting extra practice
with the worksheets. Sommers explained that Daugherty came to see her the following
week wondering why C.D. had 17 pages of homework to do over the weekend. Between
September 2010 and March 2011, Sommers sent home 29 notes to Stitt regarding
behavioral issues, including C.D. having trouble focusing. Sommers stated that C.D. is in
danger of failing in school.
{¶11} Regarding the IAT meeting in January, Sommers explained that the purpose
of the IAT process is to assist children who are struggling in school and to determine
whether a special needs placement is necessary. Stitt did not notify Sommers that she
was not going to attend this meeting. Sommers testified that in the past two weeks, Stitt
requested a conference. Stitt brought her boyfriend and a male friend with her to the
conference. The boyfriend took over the conference. When they began discussing the
focusing issues, the boyfriend stated that he attended college and could not do first-grade
math either.
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{¶12} Sommers described C.D.'s appearance as "kind of shabby" on some days.
Sommers also testified that Stitt was assigned to help with a school party, but she did not
do so. Rhonda helped with three school parties. When asked which parent seems more
concerned about C.D., Sommers stated that Daugherty seems very concerned about
what can be done for C.D.
{¶13} On cross, Sommers explained that she does not assign homework over the
weekend. The worksheets she sent home with C.D. were supposed to be reviewed with
the tutor, but Daugherty had worked with C.D. on them. Sommers explained that the
assessment through the school to determine whether C.D. has ADD began after the
conference two weeks ago. If the assessment reveals an ADD diagnosis, the next step is
determined by the parents. The school will request that the child see a pediatrician for
assessment and then usually a medication is prescribed. Sommers stated that Daugherty
and Rhonda have contacted her regarding C.D.'s educational needs and have purchased
study aids for her.
{¶14} The next two witnesses were Summer Campise and Amber Scuken, both
childhood friends with Stitt. For a period of six to seven months that year, Campise had
spent three nights per week at Stitt's residence. Scuken lived with Stitt for three or four
months beginning in November 2009. Both women testified that Stitt's home was dirty.
Further, both testified that there were periods while they lived with Stitt that her home did
not have running water or heat and that she would use a space heater. Campise testified
that men were there all the time. She recalled three different men at the house and said
that two of them spent the night sometimes. On cross, both women admitted that they
were currently subject to civil protection orders to stay at least 500 feet away from Stitt.
{¶15} Next, Bonnie Kutie testified that she has known Daugherty for 30 years.
She described Daugherty and Rhonda's home as very clean. She testified that C.D. is
well-adjusted to their home and they are very good parents. She had also seen C.D.
interact with her paternal grandmother and stated they had a "wonderful" relationship.
{¶16} Carlotta Daugherty, Daugherty's mother, testified next. She described
Daugherty and Rhonda's home as clean. She stated that Daugherty and Rhonda interact
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very well with C.D. and she seems well-adjusted to their home. Carlotta sees C.D.
frequently and some weeks she sees her everyday. She explained that C.D. will get
home from school around 4:10 p.m., and then call her between 5:00 and 6:00 p.m. to
come over to play. Carlotta will pick C.D. up and then take her back home in time to go to
bed.
{¶17} Rhonda testified next for Daugherty. She and Daugherty were married in
September 2007. She works at the Carriage Inn during the week from either 5:00 a.m. to
1:30 p.m. or 9:30 a.m. to 6:00 p.m., and she works every other weekend from 5:30 a.m.
to 1:00 pm. She testified that Daugherty works at Oxford Mining on weekdays from 3:00
p.m. to 2:00 a.m. If the court granted custody to Daugherty, on days she works until 1:30
p.m., she will be there when C.D. comes home from school. When she works until 6:00
p.m., Carlotta can pick C.D. up from school.
{¶18} Rhonda explained that some Wednesdays, C.D. would come to her house
afterschool and she would help C.D. with her homework. Rhonda described her
relationship with C.D. as "pretty good" and explained that they do activities together such
as bowling or going to the movies. She stated that C.D. seems adjusted to her home and
has six or seven friends there.
{¶19} Next, Daugherty testified that if the court grants him custody, he will be able
to get C.D. ready for the bus in the mornings. He has helped her get ready in the
mornings before, after working until 2:00 a.m. He attended the parent-teacher
conference in November and the ITA meeting. He explained that he and Rhonda work
with C.D. on the weekends on her homework. If he becomes residential parent, he hopes
to improve C.D.'s grades and would continue to assist her with homework. C.D. would
continue to attend the same school.
{¶20} Daugherty testified that when he receives visitation with C.D., her clothes
are clean half the time and sometimes her hair is a little dirty. He said that he and C.D.
mow the grass together and play with toys. He and Rhonda have taken C.D. on vacation
to North Carolina and have also taken her to water parks and roller skating. He attended
two of C.D.'s baseball games but was unable to attend the others due to his work
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schedule. His brother and both of his parents have a relationship with C.D. He stated
that C.D. has her own room in his house and seems well-adjusted there. He explained
that he wants custody of C.D. because she would be clean everyday, would get more
rest, and would be more focused at school.
{¶21} On cross, Daugherty testified that he does not know what doctor or dentist
C.D. sees. He has asked Stitt to make dental appointments because C.D. has a
noticeable hole in one of her teeth. He later testified that C.D. has had the hole for
approximately one year. He also testified that he asked Stitt if he could take C.D. to a
dentist in Freeport a year ago, but Stitt did not respond.
{¶22} Daugherty told Stitt that he did not believe C.D. needed a tutor because Stitt
was available five days a week and should be able to assist her with first-grade level
homework. He asked Sommers about the 17 pages of worksheets that were sent home
because he thought it was too much homework for a first grader to do over a weekend.
Daugherty agreed that C.D.'s grades are not improving despite the help she receives at
his house, although he explained that they are only able to help her two days a week.
{¶23} Heather Fulton testified as Daugherty's last witness. She lived with Stitt in
the end of November 2008 through February or March 2009. She explained that the
home was not clean when she moved in and she did most of the cleaning while living
there. C.D.'s room was not clean most of the time. At one point, Stitt ran out of propane
for heat and used space heaters for a week. There was also an issue with a leak in the
water tank and the home did not have running water for a "couple" of weeks. She
thought that C.D. and Stitt interacted well when Stitt was there.
{¶24} Daugherty then rested, and the court admitted his exhibits.
{¶25} Matthew Reppart, Stitt's boyfriend, testified first for Stitt. He is enlisted in
the United States Army and has been in a relationship with Stitt for three months. He
testified that Stitt plays with C.D. and works with her on her homework. He also stated
that Stitt cleans her house. On cross, Reppart testified that he is at Stitt's house almost
every day from early morning until late evening. Counsel asked Reppart if he recently
yelled at C.D.'s bus driver and told him that he was her dad. Reppart denied he said that
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and stated that he asked the bus driver why he told C.D.'s teacher that she was unruly
and needed detention. When asked if Reppart talked to Daugherty about it, he replied,
"Why would I talk to him?"
{¶26} Next, Courtney Gardner testified that she is good friends with Stitt and she
drives C.D. to and from the bus stop. She testified that she stops at Stitt's house a
couple times a week and stated that Stitt interacts very well with C.D. and helps C.D. with
her homework. On cross, Gardner testified that when she picks up C.D. from the bus
stop after school, she usually drops C.D. off and does not go into her home.
{¶27} Stitt testified last. She explained that she obtained civil protection orders
against Campise and Scuken because she received threatening phone calls from them
and they came to her home and threatened her. She refuted the testimony about the
issues with heat or water and explained that she did have a water leak at one point but
that she had it fixed within four days. She was living in her current residence in 2004
when she and Daugherty entered into the visitation agreement. Stitt also testified that
C.D. has a strong relationship with her younger brother.
{¶28} Stitt testified that when she met with Sommers in November, Sommers told
her C.D. might have ADD. She told Sommers that C.D. had a doctor's appointment but
the appointment was not for ADD testing, it was a regular checkup. She then met with
Sommers in late January or early February and they decided to move forward with the
IAT paperwork. When asked if she intended to take C.D. to the doctor for ADD
assessment, Stitt replied that she did not think C.D. has ADD and that any typical seven
year old has problems with focusing. However, she stated that if the school believes C.D.
has ADD, then she would take her to the doctor.
{¶29} Regarding C.D.'s dental issues, Stitt testified that C.D. had a dental
appointment in February because Stitt noticed a hole in her tooth. Stitt explained that
C.D. has "quite a few" cavities caused by all the sugar she consumes. C.D. is on a
waitlist now to see a specialist to have her teeth filled and capped. Stitt denied that
Daugherty asked if he could take C.D. to the dentist. She testified that she takes C.D. to
the dentist for regular checkups.
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{¶30} Stitt testified that she cleans her home everyday and she washes C.D.'s
clothing regularly. She missed the November parent-teacher conference because her
son was sick and she did not have a babysitter. She also explained that when Sommers
sent home behavioral reports, she reviewed them and discussed the notes that were not
repetitive with C.D.
{¶31} On cross, Stitt agreed that Daugherty told her about the hole in C.D.'s tooth
around a year ago and claimed that she took C.D. to the dentist a week or two later. Stitt
explained that the tooth is a baby tooth and the dentist did not do anything about it. Then
when she took C.D. to the appointment in February, the dentist told her that C.D. needed
to see the specialist. She also testified that after Sommers sent home notes on C.D.'s
behavioral problems, she called Sommers numerous times to discuss the notes.
{¶32} The court then admitted Stitt's Exhibit A.
{¶33} On March 23, 2011, the trial court issued a judgment entry finding that there
had been a change of circumstances under R.C. 3109.04(E)(1)(a) based on C.D.'s
health, education, and household composition. The court then proceeded to a best
interest analysis pursuant to R.C. 3109.04(F)(1) and applied R.C. 3109.04(E)(1)(a) to
determine whether the harm likely to be caused by a change of residence is outweighed
by the advantages of such a change. The court found that it is in the best interest of C.D.
to designate Daugherty as residential parent and that the advantages of this change
would outweigh the harm. Thus, the court granted Daugherty's motion for reallocation of
parental rights and designated him as residential parent.
De Facto Award of Custody to a Non-Parent
{¶34} In her first of four assignments of error, Stitt asserts:
{¶35} "The trial court erred by awarding custody to the father who is unavailable to
care for the child thereby granting a de facto award of custody to a non-parent custodian
in violation of mother's parental rights."
{¶36} Stitt argues that because Daugherty would not be able to spend time with
C.D. on weekdays after she got home from school and Rhonda, the stepmother, would
care for C.D. during these times, Rhonda has become the "de facto custodial parent."
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Stitt notes that she is a stay at home mother and studies online, so she is available to
care for C.D. during the week, whereas Daugherty is unavailable due to work.
{¶37} Daugherty did not testify that he was unavailable to care for C.D. except on
the weekends. While he stated that during the school year, either Rhonda or Carlotta
would pick up C.D. after school because he would be working, he would wake up in the
mornings to help C.D. get ready for school. Furthermore, Carlotta testified that C.D.
already spends many evenings after school at her house, and sometimes C.D. is at
Carlotta's house five days per week.
{¶38} Stitt cites to two cases to support her argument that she, the natural parent,
has paramount parenting rights over Rhonda, a non-parent: In re Perales, 52 Ohio St.2d
89, 369 N.E.2d 1047 (1977) and In re Hockstok, 98 Ohio St.3d 238, 2002-Ohio-7208, 781
N.E.2d 971. However, neither case is applicable here. In re Hockstok concerned a
custody action where the maternal grandparents were granted legal custody over the
minor child and the natural mother filed a motion for reallocation of parental rights. Id. at
¶ 8-9. Similarly, In re Perales stemmed from a custody dispute between the natural
mother and a nonparent. Id. at 90.
{¶39} The instant case did not involve a custody proceeding between a parent and
a nonparent. The court granted custody of C.D. to Daugherty, the child's natural father.
Moreover, Stitt cites to no case to support her contention that Rhonda became the de
facto custodial parent because she would care for C.D. in the evenings after school.
Accordingly, this assignment of error is meritless.
Appointment of Guardian Ad Litem
{¶40} In her second assignment of error, Stitt argues:
{¶41} "The trial court erred by announcing to the parties after commencement of
the trial of its intention to interview the child in camera thereby depriving appellant of the
opportunity to request the appointment of a guardian ad litem."
{¶42} Stitt contends that she was denied the opportunity to meaningfully exercise
her right to have a guardian ad litem (GAL) appointed. She argues that because the trial
court announced its decision to interview C.D. during the trial, it failed to give her timely
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notice of its intention to conduct the interview. She correctly contends that the plain error
doctrine applies here, as she did not request the appointment of a GAL before the trial
court nor did she object when the trial court announced its intention to perform an in-
camera interview of C.D. See In re Amber G. & Josie G., 6th Dist. No. L–04–1091, 2004-
Ohio-5665, ¶ 6. Plain error is found in a civil case "only in the extremely rare case
involving exceptional circumstances where error, to which no objection was made at the
trial court seriously affects the basic fairness, integrity, or public reputation of the judicial
process, thereby challenging the legitimacy of the underlying judicial process itself."
Goldfuss v. Davidson, 79 Ohio St.3d 116, 122-123, 679 N.E.2d 1099 (1997).
{¶43} Pursuant to R.C. 3109.04(B):
(1) When making the allocation of the parental rights and responsibilities for
the care of the children * * * in any proceeding for modification of a prior
order of the court making the allocation, the court shall take into account
that which would be in the best interest of the children. In determining the
child's best interest for purposes of making its allocation of the parental
rights and responsibilities for the care of the child and for purposes of
resolving any issues related to the making of that allocation, the court, in its
discretion, may and, upon the request of either party, shall interview in
chambers any or all of the involved children regarding their wishes and
concerns with respect to the allocation.
(2) If the court interviews any child pursuant to division (B)(1) of this section,
all of the following apply:
(a) The court, in its discretion, may and, upon the motion of either parent,
shall appoint a guardian ad litem for the child.
{¶44} Here, the trial court exercised its discretion to perform an in-camera
interview of C.D. It announced its intention to perform this interview at the close of the
first day of trial. After discussing some scheduling issues, the court asked both parties'
counsel if they had any questions or concerns and both responded that they did not.
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Accordingly, Stitt did have an opportunity to request a GAL. When the court asked the
parties if they had any concerns, Stitt's counsel could have made an oral motion for
appointment of a GAL and requested time for the GAL to perform an independent
investigation if necessary. Moreover, despite Stitt's arguments that the trial court did not
give her adequate notice of the interview, R.C. 3109.04(B) does not provide that the court
must give a certain amount of notice to the parties before it interviews the minor child.
{¶45} Stitt had sufficient opportunity to request a GAL be appointed, and the trial
court did not commit plain error. Stitt's arguments regarding the trial court discounting
C.D.'s desire to live with Stitt will be further addressed in the fourth assignment of error.
Accordingly, this assignment of error is meritless.
Change in Circumstances
{¶46} Stitt alleges in her third assignment of error:
{¶47} "The trial court's finding that there was a change in circumstances was an
abuse of discretion and against the manifest weight of the evidence."
{¶48} A trial court has broad discretion in its determination of parental custody
rights. Booth v. Booth, 44 Ohio St.3d 142, 144, 541 N.E.2d 1028 (1989). Because
custody issues are some of the most difficult and agonizing decisions a trial judge must
make, he or she must have wide latitude in considering all the evidence and such a
decision must not be reversed absent an abuse of discretion. Davis v. Flickinger, 77 Ohio
St.3d 415, 418, 674 N.E.2d 1159 (1997). Therefore, a trial court's custody determination
which is supported by competent and credible evidence should not be disturbed unless it
constitutes an abuse of discretion. Bechtol v. Bechtol, 49 Ohio St.3d 21, 23, 550 N.E.2d
178 (1990); Rohrbaugh v. Rohrbaugh, 136 Ohio App.3d 599, 603, 737 N.E.2d 551 (7th
Dist.2000).
{¶49} With respect to this Court's duty of deference to the trial court in custody
determinations, the Ohio Supreme Court instructed:
The discretion which a trial court enjoys in custody matters should be
accorded the utmost respect, given the nature of the proceeding and the
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impact the court's determination will have on the lives of the parties
concerned. The knowledge a trial court gains through observing the
witnesses and the parties in a custody proceeding cannot be conveyed to a
reviewing court by a printed record. In this regard, the reviewing court in
such proceedings should be guided by the presumption that the trial court's
findings were indeed correct. (Citations omitted.) Miller v. Miller, 37 Ohio
St.3d 71, 74, 523 N.E.2d 846 (1988).
{¶50} R.C. 3109.04(E)(1)(a) governs modification of an existing court order
allocating parental rights and responsibilities, and states:
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 * * *, 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."
{¶51} Therefore, there are three steps that must be satisfied before a trial court
can properly modify an existing decree to reallocate residential parental status: "(1) there
must be an initial showing of a change in circumstances, (2) if circumstances have
changed, the modification of custody must be in the children's best interests, and, (3) any
harm to the children from a modification of the plan must be outweighed by the benefits of
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such a modification." In re Dissolution of Marriage of Kelly, 7th Dist. No. 09 CA 863,
2011-Ohio-2642, ¶ 28. "Additionally, R.C. 3109.04(E)(1)(a) creates a rebuttable
presumption that retaining the residential parent designated by the prior decree is in the
child's best interest." Rohrbaugh at 604.
{¶52} This court has previously noted that although R.C. 3109.04 does not set
forth a definition of the phrase "change in circumstances", Ohio courts have generally
held that the phrase is intended to denote "an event occurrence, or situation which has a
material and adverse effect upon a child." Id. at 604-605., citing Wyss v. Wyss, 3 Ohio
App.3d 412, 445 N.E.2d 1153 (10th Dist.1982).
{¶53} The trial court found a change of circumstances based on C.D.'s health,
education, and household composition. First, as to C.D.'s health, the court noted that
there was uncontroverted evidence in the record that C.D.'s dentist referred her to a
dental specialist due to the amount of cavities in her teeth. Due to this prognosis, the trial
court did not believe Stitt's testimony that she took C.D. to regular dental appointments.
The court also noted that the school initially recommended that C.D. be tested for ADD in
November 2010 and Stitt refused to comply until two weeks ago. The court noted that
Stitt initially testified that she did not believe that C.D. had ADD, but later conceded that
because the school believed it was best, she signed the paperwork for the school to begin
testing.
{¶54} Stitt claims that the trial court's finding regarding the dental issues related to
a hole in a baby tooth, which would not have any consequential effect on C.D.'s health.
However, the evidence in the record demonstrates that the dental issues did have a
material effect on C.D. Stitt's own testimony showed that C.D. has had "quite a few
cavities" and that her dentist referred them to a specialist to cap and fill C.D.'s teeth. Stitt
further argues that Daugherty lacked involvement in C.D.'s medical and dental care,
whereas Stitt was the parent who took C.D. to medical and dental appointments.
However, the trial court specifically noted that it did not believe Stitt's testimony. The trial
court had the opportunity to observe Stitt's testimony and demeanor and was in the best
position to make such a credibility determination. Rohrbaugh at 607.
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{¶55} Regarding the school's recommendation that C.D. be tested for ADD, Stitt
focuses on Sommers's testimony that when a child is diagnosed with ADD, the
pediatrician usually prescribes medication. Stitt argues that prescribing such medication
to a young child may be dangerous and parents may feel pressured by school authorities
to administer medicine to their children despite their apprehensions on the safety of the
medicine. However, no medication had been prescribed to C.D. because as of the trial,
Stitt had not taken C.D. to see a pediatrician and the IAT process had only begun two
weeks before. As the trial court found, the school notified Stitt that C.D. might have ADD
in November. Stitt also received many notes regarding C.D.'s issues with focusing in
class. Sommers testified that Stitt did not attend the IAT meeting that was scheduled to
discuss C.D.'s focusing issues and did not notify her or give an explanation of why she
could not attend. Stitt claimed she was ill and that she sent a note to the school.
Furthermore, Sommers testified that Stitt told her she was going to discuss the focusing
issues with C.D.'s doctor, which Stitt did not do. Thus, the record supports the trial court's
findings on C.D.'s health issues as a change in circumstances.
{¶56} Second, as to educational issues, the trial court discussed C.D.'s poor
academic performance. It noted that C.D. repeated kindergarten, was absent 20 times in
her second year of kindergarten, is now failing first grade, and has been written up
multiple times for behavioral issues. The court noted that Stitt has missed two
conferences and has not volunteered with C.D.'s class. Stitt made up the conferences
but brought her boyfriend to the second conference, and Sommers testified that he was
disruptive to the process. The court noted that Stitt hired a tutor for C.D. briefly and that
Daugherty did not approve because he believed Stitt should be able to help C.D. with her
homework. The court found that Stitt's claims that she helps C.D. with her homework all
the time were not credible based upon the amount of time the child spends with her
grandmother after school.
{¶57} The court also discussed Daugherty and Rhonda's involvement with C.D.'s
education. It noted that at least one of them was at every conference and school activity.
It pointed out that Daugherty sought guidance from the teacher on what study aids to use
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with C.D. Daugherty and Rhonda testified that they help C.D. with her homework on the
weekends, and C.D. corroborated this testimony by expressing her displeasure that
Daugherty makes her do her homework.
{¶58} Stitt notes that the trial court cited to Paparodis v. Paparodis, 7th Dist. No.
88 C.A. 119, 1989 WL 27777 (Mar. 23, 1989), to support its finding of a change in
circumstances based on C.D.'s academic problems and Daugherty's ability to provide a
better educational environment. Stitt contends that the evidence does not support this
conclusion, and unlike in Paparodis, both parents have put forth substantial effort in
assisting C.D. with her education.
{¶59} In Paparodis, this court found that there was evidence in the record to
support the trial court's finding that the child's schooling was very poor in their mother's
custody. The testimony showed that the child had missed over half the days of the
school year, should have received all unsatisfactory grades on her report card, and the
mother did not have the child tested for a learning disability until two months after the
father filed a motion for a change of custody. Id. at *2. Here, as the trial court noted, the
record contains similar evidence of C.D.'s educational problems. Furthermore, the record
also supports the conclusion that Daugherty can offer a better educational environment.
The record reveals that Daugherty and Rhonda were involved with C.D.'s schooling by
assisting her with homework, purchasing study aids for her, and volunteering at her
school. While Stitt claims that C.D.'s grades have not improved despite Daugherty's
assistance, Daugherty and Rhonda were usually only able to help C.D. on the weekends.
Moreover, the court did not believe Stitt's testimony that she assisted C.D. with her
homework all the time, and again, the trial court was in the best position to judge Stitt's
credibility. Rohrbaugh at 607. Accordingly, the record supports the trial court's finding of
a change in circumstances based on C.D.'s education.
{¶60} Third, as to household composition, the trial court found that there was
ample testimony that various men and women had moved in and out of Stitt's residence
in the last several years. In response, Stitt contends that the change in circumstances
must relate to facts that have arisen since the prior decree or that were unknown to the
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court at the time of the prior decree. She contends that the evidence shows that this
pattern of roommates has occurred for the last several years and Daugherty, the moving
party, did not demonstrate that this was not the case from the time of the prior court
decree.
{¶61} As the trial court found, the record contains evidence of men and women
moving in and out of Stitt's residence over the last several years. Stitt testified that she
was living in her current residence in 2004 when the trial court issued the prior decree.
She further testified that she had a boyfriend living with her and C.D. in 2004 through
2008. The remainder of the testimony described people living in Stitt's home from 2008
on, which supports the trial court's conclusion that there was a pattern of people moving
in and out over the last several years. Although there was no evidence regarding Stitt's
living situation prior to 2004, at the time of the prior decree, C.D. was only a year and a
half old. The evidence of roommates moving in and out over the last three years coupled
with C.D.'s age supports the trial court's finding of a change of circumstances based on
household composition.
{¶62} The trial court did not abuse its discretion in finding a change in
circumstances had occurred. Accordingly, this assignment of error is meritless.
Reallocation of Custody
{¶63} In her last assignment of error, Stitt argues:
{¶64} "The trial court's decision to grant a change of custody is an abuse of
discretion and against the manifest weight of the evidence."
{¶65} Stitt focuses on the trial court's best interest analysis, and claims error with
regard to several aspects of the trial court's analysis. Each argument will be discussed in
turn.
{¶66} R.C. 3109.04(F)(1) sets forth factors the trial court must consider when
determining who should be the minor child's residential parent:
(F)(1) In determining the best interest of a child pursuant to this section,
whether on an original decree allocating parental rights and responsibilities
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for the care of children or a modification of a decree allocating those rights
and responsibilities, the court shall consider all relevant factors, including,
but not limited to:
(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 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;
(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;
***
{¶67} Initially, Stitt notes that the trial court erroneously considered R.C.
3109.04(F)(2), which sets forth factors for the court to consider when determining whether
shared parenting is in the best interest of the minor child. Shared parenting was not at
issue in this case, so it is unclear why the court cited to this provision. However, in its
analysis, the court discusses the in-camera interview it conducted with C.D. The child's
wishes and concerns expressed during an in-camera interview are a factor for the court to
consider under R.C. 3109.04(F)(1)(b). "[A]n appellate court will not reverse a correct
judgment merely because a lower court assigned erroneous reasons as the basis of the
judgment." Van-Am. Ins. Co. v. Schiappa, 132 Ohio App.3d 325, 333, 724 N.E.2d 1232(7th Dist. 1999). Thus, because the trial court's analysis was proper under R.C.
3109.04(F)(1)(b), this argument is meritless.
{¶68} Stitt further argues that the trial court inappropriately discounted the wishes
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expressed by C.D. during the in-camera interview. The trial court found that C.D. wished
to remain with Stitt and had nothing positive to say about Daugherty. The trial court found
the interview was so "lopsided" that it believed Stitt may have coached C.D. on what to
say. The court noted that C.D. had knowledge of adult matters she should not have
known about. The court also noted that C.D.'s main complaint against Daugherty was
that he had rules at his house; whereas, Stitt did not have any rules for her to follow.
Thus, the court stated it was discounting C.D.'s preference. Because the trial court
determined that C.D.'s answers appeared coached and her wishes based upon whether
she had to follow rules at each parent's house, the trial court did not abuse it's discretion
in not giving weight to C.D.'s preference. See Meaney v. Meaney, 11th Dist. No. 2009-L-
050, 2010-Ohio-1969, ¶ 46.
{¶69} Next. Stitt contends that it was error for the trial court to fail to consider
C.D.'s interaction with Stitt under R.C. 3109.04(F)(1)(c). Stitt cites to In re Jeffreys, 7th
Dist. No. 01-BA-4, 2002-Ohio-703. In In re Jeffreys, this court remanded a custody case
for the trial court to consider the statutory best interest factors where the trial court's
judgment did not mention any of these factors. This court noted that it has "generally
relied on the presumption of correctness that adheres to a trial court's decision, and has
accepted that the trial court considered the relevant factors unless the record clearly
shows otherwise." Id. at 7. However, the record did not show that the trial court in In re
Jeffreys sufficiently considered the factors in R.C. 3109.04(F)(1). Id. at 7-8.
{¶70} Here, the trial court's analysis of the best interest factors was thorough; the
court listed each factor individually and explained its analysis under each. It is true that
the court focused its analysis under R.C. 3109.04(F)(1)(c) on C.D.'s interaction with
Daugherty rather than Stitt; however, when considering the court's analysis as a whole,
the record demonstrates that the trial court sufficiently considered the relevant statutory
factors.
{¶71} Stitt also contends that the trial court's consideration of the interaction
between Daugherty and Stitt's boyfriend was inappropriate. However, R.C.
3109.04(F)(1)(c) instructs the court to consider the child's "interaction and
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interrelationship" with "any other person who may significantly affect the child's best
interest." The court was concerned that the boyfriend's negative view of Daugherty and
his attempts to take on an "exclusive male parental role" would affect C.D.'s relationship
with Daugherty. Thus, the court properly considered the boyfriend's role in C.D.'s life as a
factor that may affect her best interest.
{¶72} Stitt argues that the trial court improperly considered Campise and Scuken's
allegations regarding a lack of adequate housing under R.C. 3109.04(F)(1)(d). Stitt
challenges their credibility by noting that both were subject to civil protection orders to
stay away from Stitt. However, although the existence of the civil protection orders
negatively affects Campise and Scuken's credibility, the trial court decided to consider
these witnesses' testimony. "A reviewing court will not second-guess weight and
credibility determinations made by the trier of fact." In re Jeffreys at 5, citing C. E. Morris
Co. v. Foley Const. Co., 54 Ohio St.2d 279, 376 N.E.2d 578 (1978), at syllabus.
Furthermore, Campise and Scuken's testimony was bolstered by Fulton who testified that
Stitt's home was not clean when she moved in with Stitt in November 2008 and that Stitt
had issues with heat and water.
{¶73} Stitt also objects to the trial court's consideration of C.D.'s dental issues and
potential ADD diagnosis under R.C. 3109.04(F)(1)(e). As discussed above, there is
competent, credible evidence in the record supporting the trial court's findings on these
issues. The trial court also mentioned that C.D. had multiple cases of head lice without
attributing a cause to this problem. The statute directs the trial court to consider the
physical health of all involved parties; thus, it was not error for the trial court to note C.D.'s
cases of head lice.
{¶74} Finally, Stitt argues that the trial court's mention that Stitt does not have a
vehicle but Daugherty and Rhonda own vehicles shows that the trial court impermissibly
gave preference to Daugherty due to his financial status. R.C. 3109.04(F)(3) instructs
that when allocating parental rights, a trial court should not give preference to a parent
due to that parent's financial condition. In its judgment entry, the trial court stated that it
did not take into account the parties' financial status in accordance with the statute. In its
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discussion of the advantages of a change of environment outweighing the harm, the court
stated: "[A]s the Defendant and his wife have vehicles, they can provide for the minor
child's health and academic needs in a timelier manner."
{¶75} While Stitt argues that there was no evidence of transportation issues in the
record and therefore no reason to mention that Daugherty has a vehicle, the record
reveals that C.D. missed many days of school and that she had multiple cavities despite
Stitt's claim that she took C.D. to regular dental appointments. Stitt also admitted that she
was not always able to get C.D. to the bus stop because she does not have a vehicle.
The court's mention of Daugherty and Rhonda's vehicles was in reference to the court's
belief that they would allow Daugherty to better provide for C.D.'s health and academic
needs. This comment was one part of a discussion of Stitt's lack of structure and the
advantages of changing custody to Daugherty due to his ability to provide better structure
and to assist in C.D.'s educational needs. Thus, the trial court did not give preference to
Daugherty based on his financial condition.
{¶76} Considering the court's analysis in whole, the trial court did not err in its
determination of the best interest factors. The trial court's analysis was detailed, its
findings were supported by evidence in the record, and the trial court appropriately judged
the weight and credibility of the evidence. After its analysis of the best interest factors,
the court made a reasoned determination that a modification of custody was in C.D.'s
best interest, and the advantages of a change of residence to Daugherty would outweigh
the likely harm caused by this change.
{¶77} Thus, the trial court did not abuse its discretion in granting the change of
custody and its decision was not against the manifest weight of the evidence.
Accordingly, this assignment of error is meritless.
Conclusion
{¶78} In sum, Stitt's arguments are meritless. The trial court granted custody to
Daugherty, the child's father, and Stitt has not provided any caselaw to support her
argument that the stepmother has become the de facto custodial parent. A review of the
record reveals that Stitt had a sufficient opportunity to request a guardian ad litem, but
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she failed to do so. Furthermore, the trial court did not abuse its discretion in finding a
change of circumstances had occurred. Finally, the trial court did not err in reallocating
custody; the trial court's judgment was well-reasoned and supported by competent,
credible evidence. Accordingly, the judgment of the trial court is affirmed.
Waite, P.J., concurs.
Vukovich, J., concurs.