In re E.R.P. , 2012 Ohio 1053 ( 2012 )

[Cite as In re E.R.P., 2012-Ohio-1053.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 97124
IN RE: E.R.P.
A Minor Child
[Appeal by Mother]
JUDGMENT:
AFFIRMED
Civil Appeal from the
Cuyahoga County Court of Common Pleas
Juvenile Division
Case Nos. CU-4105159 and CU-4105160
BEFORE: Jones, P.J., Cooney, J., and S. Gallagher, J.
RELEASED AND JOURNALIZED: March 15, 2012
ATTORNEY FOR APPELLANT
Betty C. Farley
17316 Dorchester Drive
Cleveland, Ohio 44119
FOR APPELLEE
E.P., Pro se
312 South Main Street
Oberlin, Ohio 44074
LARRY A. JONES, SR., J.:
{¶1} Appellant, “P.Y.” (“Mother” or “the mother”), appeals the trial court’s denial
of her motion to modify custody. For the reasons that follow, we affirm.
{¶2} In 2000, Mother gave birth to a daughter. In 2001, she gave birth to a son.
Appellee, E.P. (“Father” or “the father”), is the father of both children; he and Mother
never married. In 2006, Mother and Father entered into a shared parenting agreement
(“Agreement”) in Cuyahoga County Common Pleas Court, Juvenile Division. The
agreement designated Father as the residential parent but Mother was to receive parenting
time on Wednesday evenings and alternating weekends. The agreement provided for a
shared schedule for holidays and vacation and further outlined requirements for parenting
methods, medical care, education, miscellaneous expenses, and communication. At this
time, Father lived with the children in Bedford.
{¶3} In August 2009, Father filed a “Notice of Intent to Relocate” so he could
move with the children to Oberlin. Mother immediately filed an emergency motion for
custody and a “Motion to Modify Custody and/or Visitation and Designate Mother as
Residential and Custodial Parent for School Purposes and to Terminate and Modify Child
Support.” Mother argued that a change in custody was warranted because she thought
the father was being evicted and had unstable employment. The trial court denied the
emergency motion for custody.
{¶4} After a settlement between the parties could not be reached, the court set the
mother’s motion for trial and heard multiple days of testimony spanning from June 2010
through February 2011. Mother was represented by an attorney; Father proceeded pro
se. The following pertinent evidence was presented at trial.
{¶5} Mother testified that she had been married to N.G. for almost two years and
her children got along well with their stepfather, who was currently employed at a local
tavern. Mother testified she had been diagnosed with major recurring depression with
bipolar features but was taking medication and saw a psychiatrist once a month. She
testified about her daily life with the children and that she was currently in school
studying to be a veterinarian technician.
{¶6} Mother complained that when she picked her children up from their father for
her weekends, they were often wearing dirty clothing and were “filthy.” According to
Mother, Father would not allow their daughter to wear deodorant and threw away the
deodorant the mother bought her, would not allow the children to use shampoo, and had
not bought their daughter a training bra. She further testified that she felt that Father
made the children do chores that she believed improperly reinforced gender stereotypes
and did not allow the children to participate in extracurricular activities. Mother
explained that her son had behavioral problems and she thought she was better equipped
to handle the issues with his school.
{¶7} On cross-examination, Mother admitted that two months after she met N.G.,
he was arrested and jailed for possession of marijuana, but she denied there was any drug
use in the home. Mother also admitted that she had previously claimed her daughter as a
deduction on her taxes, but argued that she did not know she was doing anything wrong.
When asked why she had not provided money for the daughter’s ballet lessons or the
children’s summer camp, the mother testified that Father had not asked her to contribute.
She also admitted to taking her children to two music concerts where, the father argued,
there was rampant drug use.
{¶8} N.G., on the other hand, testified both that they had never taken the children
to those concerts and also that he was currently unemployed. He told the court he had a
good relationship with his stepchildren and his wife was very nurturing toward her
children.
{¶9} N.G. admitted he had been arrested and sent to jail for possessing marijuana,
but denied dealing drugs. N.G. also denied watching violent movies with the children
present or ever physically abusing the son. N.G. admitted the police had once come to
the house to investigate an abuse allegation against him but denied the specifics
surrounding the event.
{¶10} The children’s former elementary school principal testified that the father
had refused to allow his children to wear clothing to school that conformed with the
dress code. The principal testified that when he questioned the father about complying
with the school’s dress code, the father became upset and used profane language in front
of a group of young children. On cross-examination, the principal testified that he
thought the father was very active in the children’s lives.
{¶11} Father testified that he moved from Bedford to Oberlin in 2009 because his
landlord was going to sell the house he had been renting; he denied being evicted.
Father testified that he had previously been self-employed as a commercial trucker but, at
the time of trial, was set to take a job at a local stone manufacturer. Father testified
that he had not graduated from high school and had minimal income, but was able to feed
his children and pay his bills. He further testified that his son had always had severe
emotional problems and was in counseling.
{¶12} According to the father, his children previously confided that N.G. was
physically abusive towards them. He admitted calling the police when his son told him
that N.G. had held him upside down by his ankles over a tub and dunked him in the tub,
causing the son to hit his head on the side of the bathtub.
{¶13} The GAL testified that he thought the children should be placed with their
mother. According to the GAL, the children “blossomed” more when they were with
their mother and the father’s parenting style was “more restrictive, more controlling, a
somewhat more spartan lifestyle * * * more set in his ways [and] the children don’t have
freedom of choice.” He stated the “children have always said to me they’d rather be
with their mother.”
{¶14} In July 2011, the trial court issued an order denying Mother’s motion to
modify custody. In its order, the trial court found that the mother failed to show that a
modification of custody was necessary to serve the best interest of the children and that
the harm likely to be caused by a change of environment was not outweighed by the
advantages of the change of environment to the children.
{¶15} It is from this order that Mother now appeals, raising the following
assignments of error, which will be combined for our review:
I. The trial court applied the incorrect standard of proof of clear and
convincing evidence adduced at the trial herein.
II. The trial court[‘s] decision to deny the mother’s motion to modify
custody and/or visitation and designate mother as residential parent was not
based on a preponderance of the evidence and therefore constitutes an abuse
of discretion.
III. The trial court’s decision to deny appellant’s motion to be residential
parent or custodian of the children was against the manifest weight of the
evidence.
Standard of Review
{¶16} R.C. 3109.04(E)(1)(a) governs the modification of an existing parenting
agreement. The statute provides that a court may not grant a modification of parental
rights unless, based on facts that have arisen since the prior decree or that were unknown
to the court at the time of the prior decree, the court finds: (1) there was a change in
circumstances; (2) a modification is necessary to serve the best interest of the child; and
(3) the harm likely to be caused by a change of environment is outweighed by the
advantages of the change of environment to the child. R.C. 3109.04(E)(1)(a)(iii).
{¶17} A change in circumstances is a threshold requirement intended to provide
some stability to the custodial status of the child. Mansbery v. Bach, 8th Dist. No.
96471, 2011-Ohio-6627, citing In re James, 113 Ohio St.3d 420, 2007-Ohio-2335, 866
N.E.2d 467. To warrant an inquiry into whether the best interest of a child would be
served by a change of parental rights and responsibilities, the court need not find that a
“substantial change has occurred,” but the “change must be a change of substance, not a
slight or inconsequential change.” Id., citing Davis v. Flickinger, 77 Ohio St.3d 415,
418, 1997-Ohio-260, 674 N.E.2d 1159.
{¶18} The clear intent of R.C. 3109.04(E) is to spare children from a constant tug
of war between their parents who would file a motion for change of custody each time the
parent without custody thought he or she could provide the children a “better”
environment; it is an attempt to provide some stability to the custodial status of the
children, even though the noncustodial parent may be able to prove that he or she can
provide a better environment. Wyss v. Wyss, 3 Ohio App.3d 412, 416, 445 N.E.2d 1153(10th Dist.1982).
{¶19} A trial court’s decision that there has been a change in circumstances and
modification of custody is necessary to serve the best interest of the children must be
supported by “competent, credible evidence.” In re B.W., 8th Dist. Nos. 96550 and
96551, 2011-Ohio-4513. “[I]n determining whether a change in circumstances has
occurred so as to warrant a change in custody, a trial judge, as the trier of fact, must be
given wide latitude to consider all issues which support such a change.” Mansbery at ¶
22, citing Wyss at 416-417. Accordingly, the trial court’s determination on such issue
will not be disturbed absent an abuse of discretion. Id.Change In Circumstances
{¶20} In the instant case, Mother argues that there was a change in circumstances
of the children, to-wit: the father moved them to Oberlin, which was an hour’s drive from
the mother’s house, and the father did not provide the children with a safe and stable
environment. Mother further argued that the children’s ages, 9 and 11 at the time of
trial, warranted a change in custody. Specifically, the mother pointed out that the father
refused to afford his daughter privacy in the bathroom; failed to provide any separation
between the children’s bedrooms; and refused to allow the children to wear their school
uniforms or allow the daughter to wear deodorant, both of which resulted in notes being
sent home from school. The mother also pointed out that the father had not obtained his
high school diploma or equivalent, had a sporadic work history, had been confrontational
with school officials, and was not, in her opinion, a credible witness.
{¶21} The mother also relies on the GAL’s testimony that, in his opinion, the
mother was the more suitable parent; the GAL testified that he had visited with the
children two or three times and thought the children would be more “comfortable” in the
mother’s home because she was less “controlling” than the father.
{¶22} In its journal entry denying the mother’s motion, the trial court found that
the only change in circumstances that had occurred was the “pre-adolescence” of the
children, but that change did not warrant modification of the parenting agreement. The
trial court specifically found that the father’s move to Oberlin was not a change of
circumstance as a matter of law and the parents were able to follow the parenting
agreement even after the move.
{¶23} The act of moving with a child does not, by itself, constitute a substantial
change in circumstances to warrant a change of custody. Rodkey v. Rodkey, 8th Dist.
No. 86884, 2006-Ohio-4373. Although father’s move to Oberlin may have made it more
difficult for the mother to see her children or to attend their school conferences and
appointments, the evidence at trial was that the shared parenting time had continued as
outlined in the agreement even after the father moved. Father also submitted evidence
that he had not been evicted but, rather, the owner of the Bedford house decided to sell
the house so he needed to find a new place to live. Father testified he looked at various
areas of Cleveland and decided on Oberlin due to its excellent school system, supportive
community, and the fact he could rent a large single-family home with an attached garage
for the same price he was paying in Bedford.
{¶24} As to the change in circumstances noted by the trial court, pre-adolescence,
the father testified that he washed his kids’ hair with a soap that could also be used as
shampoo, his daughter did not need deodorant, and the children did have separate
sleeping areas at his home.
{¶25} Based on these facts, the trial court did not err or abuse its discretion in
finding that any change in the children’s circumstances did not warrant a change in
custody.
Best Interest of the Children
{¶26} R.C. 3109.04(F)(1) sets forth a non-exhaustive list of factors that a court
may consider in determining the best interest of a child; but, pursuant to R.C. 3109.04, the
court shall consider “all relevant factors.” Here, the trial court considered the following
factors found in R.C. 3109.04(F):
(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;
***
(i) Whether the residential parent or one of the parents subject to a shared
parenting decree has continuously and willfully denied the other parent’s
right to parenting time in accordance with an order of the court.
{¶27} The trial court further indicated that it considered the following as to each
child: (1) the age of the child; (2) that the parents “work in tandem and cooperatively
regarding the health and safety of the child”; (3) the wishes and concerns of both the child
and the parents; (4) “the ability of the parents to cooperate and make decisions jointly”;
(5) “the ability of each parent to encourage the sharing of love, affection, and contact
between the child and the other parent”; and (6) the geographic proximity of the parents
to each other.
{¶28} Mother argues that it is in the best interest of the children to be placed with
her because she better provides for their basic needs, the father withheld medical care,
neglected the children’s education, and did not allow them to eat meat. The evidence
presented at trial, however, showed that the father adequately provided for the children’s
basic needs, was involved in their education and extracurricular activities, and provided a
healthy diet for the children. Although there was testimony that the father neglected his
daughter’s dental needs, there was also testimony that the mother did not take the children
for their scheduled medical appointments even when the court had ordered her to do so.
In addition, there were allegations of abuse by mother’s husband against the son and N.G.
had previously been arrested for marijuana possession and served time in jail for the drug
conviction.
{¶29} Mother argues that the court failed to consider where the children stated
they wanted to live; but the journal entry indicates that the trial court considered the
wishes of the children “as expressed by the GAL to the Court.” There is no evidence in
the record that the mother requested an in camera interview of the children or that the trial
court failed to consider the GAL’s report and testimony.
{¶30} Finally, the trial court’s finding that the harm in modifying the custody
arrangement outweighed any benefit was supported by the evidence. The children had
been placed with their father, pursuant to the parenting agreement, since 2006. Father
was extremely involved in the children’s lives. The daughter was excelling in school
and involved in numerous extracurricular activities, and the son was in counseling to
address his behavioral issues. Although the father’s home was by all accounts more
spartan than the mother’s, there was no evidence that he did not provide for the basic
needs of his children or that his parenting style was harmful to the children.
{¶31} Based on these facts, we do not find that the trial court’s denial of Mother’s
motion to modify custody was against the manifest weight of the evidence or an abuse of
discretion.
{¶32} The assignments of error are overruled.
{¶33} Judgment affirmed.
It is ordered that appellee recover from appellant his costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate be sent to said court to carry this judgment into
execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.
LARRY A. JONES, SR., PRESIDING JUDGE
COLLEEN CONWAY COONEY, J., and
SEAN C. GALLAGHER, J., CONCUR