Ash-Holloway v. Holloway , 2022 Ohio 4248 ( 2022 )

[Cite as Ash-Holloway v. Holloway, 2022-Ohio-4248.]
IN THE COURT OF APPEALS OF OHIO
ELEVENTH APPELLATE DISTRICT
TRUMBULL COUNTY
KAREEM ASH-HOLLOWAY, CASE NO. 2021-T-0031
Plaintiff-Appellee,
Civil Appeal from the
- vs - Court of Common Pleas,
Domestic Relations Division
WAYNE D. HOLLOWAY,
Defendant-Appellant. Trial Court No. 2018 DR 00342
OPINION
Decided: November 28, 2022
Judgment: Affirmed
David L. Engler, Engler Law Firm, 181 Elm Road, N.E., Warren, OH 44483 (For Plaintiff-
Appellee).
Michael A. Partlow, 112 South Water Street, Suite C, Kent, OH 44240 (For Defendant-
Appellant).
Sherman J. Miles, P.O. Box 606, Campbell, OH 44405 (Guardian ad litem) and Bruce
M. Broyles, 1379 Standing Stone Way, Lancaster, OH 43130 (Co-counsel).
CYNTHIA WESTCOTT RICE, J.
{¶1} Appellant, Wayne D. Holloway (“father”), appeals from the decree of
divorce, entered by the Trumbull County Court of Common Pleas, Domestic Relations
Division. There are various issues before the court on appeal, including the trial court’s
custody order, its decision to permit the guardian ad litem (“GAL”) to remain on the case
and its reliance on his testimony; its spousal support award; its purported limitation of
testimony by the attorney appointed for the parties’ child; and its decision permitting
appellee, Kareem Ash-Holloway (“mother”), to remain in the marital residence during the
pendency of its sale. We affirm.
{¶2} On December 6, 2018, mother filed her complaint for divorce, custody, child
support, spousal support, and property rights. Father subsequently filed his answer,
counterclaim for divorce, and motion for temporary orders. A guardian ad litem was
appointed for the parties’ child, W.H. And, later, an attorney was appointed to represent
W.H. During the pendency of the case, father, who was unemployed, had temporary
custody of W.H. and remained in the marital home. Mother, who was employed full-time,
paid the mortgage on the marital home as well as the utilities and medical insurance for
both W.H. and father. The matter proceeded to trial and the trial court issued its divorce
decree. Father now appeals, assigning six errors. His first asserts:
{¶3} “The trial court’s finding that appellee should be established as residential
parent of the child is against the manifest weight of the evidence and constitutes an abuse
of discretion.”
{¶4} Father contends that the trial court erred in naming mother residential
parent. He asserts that because he was the primary caretaker of W.H. during the
pendency of the proceedings, the trial court essentially modified a prior custody order,
and in doing so, failed to engage in the full statutory analysis required for a custody
modification. Appellant’s attempt to analogize the court’s order to a modification of an
existing order is improper.
{¶5} This court has previously addressed the argument appellant advances. In
Williams v. Williams, 11th Dist. Trumbull No. 2002-T-0101, 2004-Ohio-3992, a mother
was granted sole custody of the parties’ child. Later, she moved to relocate to Texas with
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the child. The trial court granted the motion but replaced the former sole-custody order
with a temporary-custody order. Later, after the trial court transferred the case to Texas,
it revised the existing temporary-custody order to a sole-custody order. On appeal, the
father argued, in part, that R.C. 3109.04(E)(1)(a), which sets forth the elements for
modifying an existing parenting plan, controlled a trial court’s analysis. This court
determined that that statute was inapplicable to the case. To wit:
{¶6} Although there was a prior order of custody in this case, it was merely
a temporary order. “When a court makes its permanent custody
order, differences between it and the temporary order are not
modifications pursuant to R.C. 3109.04(B)(1) [the precursor to R.C.
3109.04(E)(1)([a])].” Rowles v. Rowles (Apr. 29, 1988), 11th Dist.
[Lake] No. 12-064, [1988 WL 41553], at 5-6. “It is only after the final
judgment allocating parental rights and responsibilities that the court
must comply with the statutory requirements for modification.” Boling
v. Valecko, 9th Dist. Summit No. 20464, 2002-Ohio-449, ¶11. In
effect, when a court modifies a temporary custody order, a court
need only apply the best interest standard. Id. Williams, supra, at
¶27.
{¶7} Here, as in Williams, the existing custody order which was in effect during
the pendency of the divorce proceeding was temporary. The court issued its final custody
order in the underlying divorce decree. Because there was no modification of a final
custody order, R.C. 3109.04(E)(1)(a) is inapplicable. We must consequently determine
whether the trial court abused its discretion in concluding W.H.’s best interests were
served by granting mother residential-parent status. See R.C. 3109.04(B)(1) (“When
making the allocation of the parental rights and responsibilities for the care of the children
under this section in an original proceeding * * *, the court shall take into account that
which would be in the best interest of the children.”) “‘[T]he best interest standard must
be applied in initial actions to allocate parental rights in cases involving children of
unmarried parents as well as in the context of divorce, dissolution, or
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annulment.’” Loewen v. Newsome, 9th Dist. Summit No. 28107, 2018-Ohio-73, ¶16;
quoting Anthony v. Wolfram, 9th Dist. Lorain No. 98CA007129, 1999 WL 771601, *2
(Sept. 29, 1999).
{¶8} With this in mind, we must consider whether the trial court’s judgment was
in W.H.’s best interest. Initially, father appears to assert this court must review a custody
determination using a manifest-weight-of-the-evidence standard. Father, however, only
cites civil cases (and some criminal cases), unrelated to domestic relations and/or divorce
proceedings, for his position. This court, as well as the Supreme Court of Ohio, has held
that decisions involving the custody of children are within the discretion of the trial court
and accorded great deference on review. Wren v. Tutolo, 11th Dist. Geauga No. 2012-
G-3104, 2013-Ohio-995, ¶8; see, also, Bates–Brown v. Brown, 11th Dist. Trumbull No.
2006-T-0089, 2007-Ohio-5203, ¶18, citing Miller v. Miller, 37 Ohio St.3d 71, 74 (1988).
Thus, any judgment of the trial court involving the allocation of parental rights and
responsibilities will not be disturbed absent a showing of an abuse of discretion. Id.,citing Davis v. Flickinger, 77 Ohio St.3d 415, 418 (1997).
{¶9} The phrase “abuse of discretion” is one of art, connoting judgment exercised
by a court, which does not comport with reason or the record. Gaul v. Gaul, 11th Dist.
Ashtabula No. 2009-A-0011, 2010-Ohio-2156, ¶24. “In determining whether the trial court
has abused its discretion, a reviewing court is not to weigh the evidence, but, rather, must
determine from the record whether there is some competent, credible evidence to sustain
the findings of the trial court.” Lucas v. Byers, 11th Dist. Lake Nos. 2020-L-010, 2020-L-
049, and 2020-L-050, 2021-Ohio-246, ¶6, citing Clyborn v. Clyborn, 93 Ohio App.3d 192,
196 (3d Dist.1994).
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{¶10} Father claims that the trial court gave “absolutely no consideration to how
change of [W.H’s custody] would impact the child. Nor did the trial court even consider
the testimony of its own expert[, Dr. Aimee Thomas] with regard to treatment for the
mother and the impact that the change would have upon the child.” Further, father asserts
the trial court’s reliance upon the GAL’s testimony, which included hearsay testimony from
other mental health professionals, was not only problematic, but plain error. We do not
agree.
{¶11} Initially, mother testified that she has remained employed, full-time,
throughout the marriage. It is undisputed father has been unemployed since 2012 and
functioning, by his testimony, as a stay-at-home dad. In July 2019, however, mother
reported an incident in which she was threatened by father which caused her to contact
police. Although she filed a criminal complaint due to father’s alleged hostile and
physically threatening behavior, she was removed from the marital home. According to
mother, father, in the course of that case, informed the court that: (1) mother did not have
a relationship with W.H. and (2) father had been appointed custodian of W.H. These
points, as well as the full circumstances of mother’s removal from (or her voluntary
decision not to remain in) the marital home are unclear. Regardless, it is uncontroverted
that mother continued to pay the mortgage and utilities for the home. She also paid for
father’s and W.H.’s health care. An order was ultimately entered in August of 2019 which
granted father custody of the child and granted mother standard visitation.
{¶12} Mother testified that she had previously filed for divorce in March 2017.
This filing occurred after a separate incident in which, according to mother, father became
extremely agitated that mother declined to allow him to intern at the mental health clinic
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she supervised. She apparently explained that father would have to obtain various
background clearances, but he disagreed and felt these procedures would be
unnecessary. He became upset and allegedly yelled at mother for some three hours,
frequently with his fists clenched. Mother noticed W.H. was crying due to the commotion.
She ultimately left the home and reported the incident to the Liberty Police Department.
Mother asserted she was concerned about father’s behavior and the status of W.H.
Mother, with police, arrived at the house where she granted police access. When father
became uncooperative and refused to retrieve W.H. to show he was unharmed, police
tased father. After this incident, the couple reconciled; later, however, due to their inability
to coexist effectively, mother filed the instant action.
{¶13} According to mother, once she was removed from/left the marital
residence, W.H. became increasingly irritated with her. He continually claimed she did
not care about him and routinely asserted that mother had father tased. W.H.’s
recalcitrance toward mother culminated in his statement that he never wanted to see or
be around her again. Mother maintained that, prior to the second divorce filing, she and
W.H. had a normal, loving relationship. Mother underscored that W.H.’s framework for
understanding the tasing incident dramatically changed after the second filing. In short,
rather than viewing the incident as a matter which father could have avoided, W.H.
consistently blamed mother for having father tased.
{¶14} Further, according to mother, after the second filing, father failed to
regularly facilitate visitation; and he additionally made allegations that mother physically
abused W.H., either by choking the child or not feeding him. With respect to the latter
point, father called the police. When they arrived, mother allowed the police to view her
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refrigerator, which was fully stocked with food; moreover, father later contacted children’s
services, claiming mother was not feeding W.H. Children’s services found the allegation
unfounded.
{¶15} According to mother, since the second divorce filing, she believes father
has engaged in an aggressive attempt to alienate W.H. from her. Father vehemently
denied this and alleged mother created the circumstances which caused W.H. to adopt a
hostile perspective. Still, mother testified:
{¶16} “[T]he father is just at this point trying to completely manipulate, sabotage.
He’s so enmeshed. He’s just trying to erase me from my son’s life all together. So, * * *
I need my son alone so that I can reclaim that relationship that I always had with him
without the interference of the father because the father is not going to discontinue
interfering. He has constantly interfered and it’s not gonna stop.”
{¶17} When asked what she meant by her use of the term “enmeshed,” she
stated: “Enmesh means that he’s become one with our son. Like, it’s just like they’re tied
at the hip.” Mother feared that if she was not granted status as residential parent, she
would lose her relationship with W.H. She also was concerned that father’s consistent
flouting of her visitation rights showed an open disregard not only to her interests, but the
authority of the court. Mother’s testimony indicated her belief that father’s actions will
eventually have a deleterious effect on W.H.’s growth because it, in effect, inculcates
disrespect and irresponsibility.
{¶18} Dr. Aimee Thomas, a clinical psychologist who assessed the parties’
parenting strategies and mental health testified at the final hearing. With respect to father,
she noted that W.H.’s preferences and interests reflect an allegiance to father. She
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observed that this is not extraordinary because of W.H.’s age. Further, father’s role as
primary caregiver as well as father’s extremely active role in W.H.’s activities and day-to-
day routines also contribute to W.H.’s parental preference. Dr. Thomas observed that
W.H.’s reaction and processing of the tasing incident was a function of his allegiance to
father which also functioned to justify father’s perceived victimization.
{¶19} Dr. Thomas testified that father doted on W.H., raising him to be “a million
dollar man.” She asserted that the relationship between W.H. and father indicated the
latter was attempting to live indirectly through the child, “seeing the boy as an opportunity
for him to relive things that he, perhaps, couldn’t fulfill in his own childhood.” While the
heightened attention may be a sign of affection, the doctor pointed out that inhibits a
child’s ability to become an individual, make his own decisions, and develop interests
independent of the parent. In this respect, she observed that, in her conversations with
W.H., it was clear he did not want to “take the lead” in making personal decisions. She
testified:
{¶20} “Dad identified himself as a person who is a nutritionist, a personal trainer,
the coach, and Dad becomes the end all be all and is kind of put on this pedestal. At a
certain point, I think that bubble is going to burst when [W.H.] is in adolescence or does
go off to college, he’s going to look at things differently. On one hand, it’s great when a
kid looks up to a parent as a good role model, but when there’s problems with
understanding what you want versus what your parent wants and not being able to
separate those two things, that’s where it’s not healthy for a child.”
{¶21} Dr. Thomas reported that, in light of the relationship that father has formed
with W.H., it is possible that the child will rebel against father’s restrictions on diet and
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activities as he evolves and matures. The doctor opined that even though father may
meet W.H.’s needs for love and attention, he may be exploiting the relationship by
focusing on his need to live indirectly through W.H. Dr. Thomas observed that “[w]hen a
child’s goals and desires become intertwined with the goals and desires of the parent, the
child’s identity and emotional development may become stunted.” She asserted that
father lacks insight into this ostensible dysfunction and, during her interviews with him,
father was unable to accept feedback that contradicts his personal narrative. Dr. Thomas
recommended that mother become more involved in W.H.’s life and, in doing so, not treat
his behaviors as defiance, but as emotional problems. She additionally observed that it
is critical that mother be involved in W.H.’s mental health treatment and that treatment
providers become aware of the challenging aspects of father’s personality and the
character of the relationship he has created with the child.
{¶22} In addition to the foregoing, Dr. Thomas pointed out father exhibited signs
of ADHD to the extent, during her interviews, he had difficulty remaining consistent and
coherent in his presentation of information. And she stated that father’s focus is
centralized on himself and his past; to wit: “becoming homecoming king, his GPA, he
spent a lot of time really kind of tallying himself and bragging about his accomplishments.
And it was curious that even when I asked him, what do you like best about his son, he
then went into what he liked best about himself. And so there was almost kind of a
confusion over the separation between himself when [sic] he does and his child. * * * I
think underlying that narcissism is actually a very fragile ego, but it comes across as very,
like a braggart.”
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{¶23} When asked by the court about mother, Dr. Thomas confirmed that she
utilized a more “authoritarian” parenting style. Although this is not inherently problematic,
Dr. Thomas’ testimony indicated that it could undermine attempts to build a relationship
with W.H. The doctor underscored this could be changed with some insight into parenting
methodology, but it is additionally difficult when the child is being influenced, potentially
negatively, by the other parent. Dr. Thomas also pointed out that adjustment can be
difficult where a child, like W.H. feels as though he has been rejected. She asserted
changing, as a parent, takes significant parental self-control. Still, Dr. Thomas testified
that counseling could assist in resolving the relationship disconnects between the child
and mother.
{¶24} Dr. Thomas testified that, in her professional opinion, mother “may be
inclined to have a greater capacity” to accept counseling. Counseling would help afford
her personal insight into building a relationship with W.H. Father, on the other hand,
essentially refused to accept that his parenting strategies and comportment with W.H.
were potentially problematic. Dr. Thomas testified that when she suggested father
consider counseling, he “was like, who, me? There wasn’t a lot of insight that he even
needed any counseling. And without that insight, it’s hard to engage people.”
{¶25} With respect to the GAL’s testimony and recommendations, we first point
out that appellant contends the trial court erroneously permitted the GAL to testify to
hearsay statements of third parties. This court has held, however, that the reports of
court-appointed investigators, including GALs, may be considered as evidence even
though they contain hearsay statements provided that the investigator is available for
cross-examination by the parties and that there is not exclusive reliance on such
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statements. Ruiz v. Musa, 11th Dist. Lake No. 2021-L-088, 2022-Ohio-1720, ¶15, citing
Degrant v. Degrant, 11th Dist. Geauga Nos. 2019-G-0190 and 2019-G-0216, 2020-Ohio-
70, ¶34. The GAL was cross-examined and there is no evidence that the trial court relied
only on hearsay statements. In this respect, the trial court did not err in considering the
GAL’s testimony.
{¶26} That said, the GAL testified, inter alia, regarding information gleaned from
his interviews with former counselors used by the parties, Kim Lydic and James Vincent.
Both counselors advised the GAL that he could no longer see W.H. because they could
not assist the child. Mr. Vincent, according to the GAL, stated this case presented “the
worst case of parental alienation that I have ever seen, and I have been doing this for 20
years.” In light of this, Mr. Vincent emphasized that W.H. required a psychologist who
specializes in parental alienation because such a professional is the only individual who
could “break the parental alienation and allow [W.H.] to have a normal relationship with
his mother.”
{¶27} The GAL testified that father appears to act as a “gatekeeper” who defines
the relationship, if any, between W.H. and mother. The GAL noted that mother strongly
believes father is actively preventing W.H. from having any, let alone a good relationship
with her. The GAL determined that the parties cannot cooperate or communicate
effectively and, accordingly, shared parenting was inappropriate.
{¶28} In his report, the GAL observed:
{¶29} “It is of critical importance, and is in the best interest of the minor child, for
this divorce case to proceed to trial as scheduled * * *. [S]ince the trial was continued * *
*, the minor child acting belligerent and disrespectful toward Mother has accelerated. Also
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* * *, Father has become more brazen in his actions toward Mother, by regularly denying
Mother her parenting time, unilaterally informing Hubbard Middle School that this Court
has awarded Father full custody of the minor child, falsely accusing Mother of deliberately
shutting off the water and electricity for the marital home, and sending Mother long
babbling texts accusing Mother of walking out on her son.
{¶30} “This [GAL] is concerned that Father will attempt to again have the trial
continued * * *. As Father has been using the alleged illnesses of the minor child as an
excuse to deny Mother her parenting time, Father may claim [on the date of trial] that the
minor child is sick, or has a fever, or has frostbite, and the Father cannot come to Court
because he is the only person who has the ability to care for the minor child.
{¶31} “The longer this case goes on, the stronger the parental alienation by Father
of the minor child will become.”
{¶32} Given the statutory best-interest factors, the GAL recommended the
following: “That the mother be named the residential parent for all purposes, including
being the residential parent for school purposes, for extracurricular activities and for
medical decisions. That father’s parenting time should be limited to supervised visitation
at the Solace Center once a week for two hours.
{¶33} In light of the foregoing, the trial court, after considering the best-interest
factors pursuant to R.C. 3109.04(F)(1), made the following findings and conclusions:
{¶34} “[T]he court has heard testimony that can be summed up as the father
having nothing but a manipulative and destructive parenting style that will have lasting
and detrimental effects on the minor child. The child has been through counseling * * *.
The court has also taken into consideration the testimony and the report of Dr. Aimee
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Thomas who conducted psychological evaluations with parenting emphasis as well as
the numerous Guardian Ad Litem reports.
{¶35} “The court finds, based on the weight and preponderance of the evidence,
that it is in the best interest that the allocation of parental rights and responsibilities for
the minor child, [W.H.] be designated to * * * mother and she shall be designated
residential parent and legal custodian of the parties’ minor child. * * * Father will be
granted supervised visitation for one (1) hour every week at the Solace Center.
{¶36} “* * * Father may petition this court for expanded visitation upon showing he
has entered into counseling to alleviate his alienating behavior and improve his ability to
co-parent the parties’ minor child.”
{¶37} This case is not simple. Father and W.H. clearly have a strong bond.
Mother, however, in light of the evidence, has been effectively shut out of the child’s life
by father’s apparent need to control parental influence and parenting dynamics. Even
worse, father’s strategy has made mother an adversary and an object of scorn in the eyes
of the young child. It would appear neither party has “clean hands.” Both parents
contributed to the way in which this case unfolded. Still, the attempt to alienate W.H. was
not mutual; rather, the evidence indicates father, not mother, initiated and succeeded in
turning the child against mother. Moreover, the evidence demonstrated that father, not
mother, was reluctant to and sometimes simply did not facilitate mother’s visitation.
Under the circumstances, we therefore hold, the trial court did not abuse its discretion in
conferring residential-parent status upon mother.
{¶38} Father’s first assignment of error lacks merit.
{¶39} His second assignment of error provides:
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{¶40} “The trial court’s decision to grant weekly supervised visitation between the
child and appellant constituted an abuse of the trial court’s discretion and was against the
manifest weight of the evidence.”
{¶41} Father argues, similar to his previous argument, the trial court erred in
ordering weekly, supervised custody. He maintains the uncontroverted, strong bond he
shares with W.H. demonstrates the order is not in the child’s best interest. Further, father
takes great issue with the trial court’s ostensible reliance on the GAL’s testimony, which
involved hearsay statements made by counselors who had previously been involved in
the case, i.e., Mr. Vincent and Ms. Lydic. He claims Sup. R. 48, governing GALs, never
intended for the hearsay testimony to dictate a trial court’s decision on custody or
visitation.
{¶42} Regarding father’s challenge to the GAL’s testimony, we first note that there
is nothing in the judgment to suggest that the trial court relied solely on the GAL’s hearsay
testimony in reaching its legal conclusions on either the custody or visitation issues. As
quoted above, the court considered the entirety of the evidence, including, but not limited
to the GAL’s testimony and recommendations.
{¶43} Furthermore, as discussed above, the court was permitted to consider the
GAL’s hearsay statements to the extent he was subject to cross-examination and the
court did not exclusively rely on such statements. In this case, the GAL’s final report was
admitted as a “court exhibit” and no specific objections to its admission were advanced
by the parties. Moreover, the GAL’s testimony reflected the information conveyed in the
report and he was subjected to rigorous examination from the parties as well as W.H.’s
attorney. As just noted, the trial court did not rely exclusively on the GAL’s report in
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drawing its legal conclusions. We therefore discern no error in the trial court’s
consideration of the GAL’s report or his testimony.
{¶44} We shall now consider the visitation order. With respect to our standard of
review, “we presume a trial court’s order of visitation is correct and reverse only upon a
showing of an abuse of discretion.” Wren, supra, at ¶8.
{¶45} As discussed above, and notwithstanding the positive relationship father
has with W.H., father’s actions served to negate the positive bond mother claimed she
had with the child before she filed the second divorce action. And the evidence suggested
that if father had unsupervised visitation, he would continue the pattern of conduct that
led to or caused the parental alienation alluded to in the GAL’s testimony. Dr. Thomas’
report and testimony highlighted the need for mother to be much more involved in
activities with W.H. that do not involve father. And, under the circumstances, given
father’s persistent, disparaging behavior toward mother, the custody order, while drastic,
was designed to serve W.H.’s best, long-term interests.
{¶46} It is apparent the trial court’s judgment was gauged to facilitate mending
mother’s and W.H.’s relationship. Moreover, the judgment allowed for father to move the
court for a less restrictive visitation schedule if father submitted to counseling and
demonstrated progress with some of the problematic attitudes and/or parenting strategies
identified by Dr. Thomas as well as the GAL. In light of the evidence, we conclude the
trial court’s judgment is consistent with the weight of the evidence.
{¶47} Father is on notice of the court’s concerns as well as what he could do to
ameliorate them. Father holds the key to unlock the possibility of expanded and more
normalized visitation. He must, however, be willing to acknowledge he needs greater
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insight into his currently one-sided and self-serving view on parenting the parties’ child.
To do this, he must also be willing to work with third parties to help achieve this insight.
If he is able to do so, the trial court left open the possibility to warrant a more open and
flexible visitation order. Given the foregoing, we hold the trial court did not abuse its
discretion in issuing its visitation order.
{¶48} Father’s second assignment of error lacks merit.
{¶49} Father’s third assigned error asserts:
{¶50} “The trial court committed reversible error by permitting the guardian in this
case to remain on the case then relying upon his testimony in making its [decision]
concerning custody and visitation.”
{¶51} Father contends the trial court erred by permitting the GAL to remain on the
case because the GAL “had not seen [father] for nearly two years prior to trial.” Father
alleges the GAL sought an order prohibiting him from directly communicating with father.
Father maintains the GAL’s actions and inactions inhibited the GAL’s abilities to
effectively advise the court and undermined his duties as a matter of law.
{¶52} Ordinarily, a trial court’s decision concerning the appointment or removal of
guardian ad litem as well as their fees is reviewed only for an abuse of discretion. Meyers
v. Hendrich, 11th Dist. Portage No. 2009-P-0032, 2010-Ohio-4433, ¶21. Where,
however, no objection to the GAL’s participation in the case or motion to remove is filed,
a court must review the case for plain error. See Goldfuss v. Davidson, 79 Ohio St.3d
116, 122 (1997); see also Burns v. Burns, 6th Dist. Sandusky No. S-07-019, 2008-Ohio-
2483, ¶15. In the civil realm, the doctrine of plain error is limited to exceptionally rare
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cases in which the error, left unobjected to at the trial court, “rises to the level of
challenging the legitimacy of the underlying judicial process itself.” Goldfuss, supra.
{¶53} In this matter, the record does not reflect father sought the GAL’s removal.
In this respect, it is difficult to see how the trial court committed any error in allowing the
GAL to remain on the case. That is, without a formal motion to remove the GAL, the court
was permitted to presume regularity in the GAL’s execution of his duties, even if it was
aware of certain tensions between father and the GAL. Regardless of this point, we
decline to find plain error.
{¶54} According to the GAL, father had accused the GAL of being biased and
discriminating against him. On November 28, 2019, the GAL testified father sent him an
email indicating that father and W.H. were being treated unfairly and being discriminated
against. Later, on January 27, 2020, father sent the GAL an email stating that the GAL
was biased in favor of mother and was discriminatory towards father.
{¶55} At trial, the GAL testified his last interview with W.H. occurred in the
Hubbard Middle School in February 2020, approximately 10 months prior to the
commencement of trial. The GAL stated that, on February 13, 2020, father sent him an
email stating the GAL “[has] now become a hazard to my son and myself. [The GAL’s]
ethics, professionalism, and morals have become questionable in the safety of my son
and myself.” The GAL testified this was the reason he did not interview the child after
that point.
{¶56} In the same email, the GAL testified the father warned him that “if I see you
or your witness on my property, I’ll have you and your witness arrested for trespassing.”
The witness to whom father is referring is an unknown third party who the GAL sought to
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accompany him during interviews. In effect, it would appear the GAL thought it may be
appropriate for a disinterested third-party to attend interviews with father to be a witness
in the event father made additional allegations against the GAL.
{¶57} Father does not offer any basis for his assertion of bias against the GAL.
And father’s contention that the GAL had no contact with him for two years prior to trial is
not supported by testimony. The GAL testified his last contact with father was on
February 13, 2020 – the date father sent the somewhat hostile email to the GAL.
Regardless, given the nature of father’s posture toward the GAL, it is unclear how
additional communications would have been productive in relation to the GAL’s role in the
case. In light of the available evidence, we do not view this case as presenting error rising
to “the level of challenging the legitimacy of the underlying judicial process.” We therefore
find no plain error.
{¶58} Father’s third assignment of error lacks merit.
{¶59} His fourth assignment of error provides:
{¶60} “The trial court erred and abused its discretion by ordering appellee to pay
appellant the sum of $1,000 per month spousal support, for [a] period of six months.”
{¶61} Father contends that although the trial court considered the statutory factors
relating to spousal support, it unfairly awarded him only $1,000 per month spousal support
for six months. He observes that mother’s actual net income, $76,715 is nearly $60,000
higher than the income the court imputed to him, $18,000.
{¶62} “The trial court has significant discretion in awarding spousal support in a
domestic relations proceeding, provided the award is ‘appropriate and reasonable.’”
Bandish v. Bandish, 11th Dist. Geauga No. 2002-G-2489, 2004-Ohio-3544.
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{¶63} R.C. 3105.18(C)(1) sets forth various factors a trial court must consider in
rendering a decision concerning spousal support. Father does not dispute the trial court
considered the factors. In ordering spousal support, the trial court emphasized that
“[mother] has been paying the marital expenses for the duration of the case and the court
has factored those expenses into its decision. The court has also considered the fact that
[mother] agreed to take on all remaining marital debt.”
{¶64} With these points in mind, it bears pointing out that father, as of the time of
trial, had not worked in nine years. While he asserted his lack of employment was due to
an arm injury during his previous employment driving truck, he is in good physical health
and did not testify he is incapable of working. He was not actively seeking employment
at the time of the final hearing. He maintained, however, his “job” was raising, teaching,
and training W.H. Father testified he has an associates’ degree in accounting and has a
certificate of cosmetology. In light of the foregoing, as well as the fact that the court
granted mother custody of W.H., we conclude, as the trial court concluded, father should
be able to find employment to support himself.
{¶65} While mother’s earnings are much higher than those imputed to father, if
father finds employment that disparity will assuredly change. The trial court’s spousal
support order, while not significant, could be viewed as an impetus for father to be more
active in seeking employment. In light of the facts of the case and that father is clearly
able to obtain employment, we hold the trial court’s spousal support order is appropriate
and reasonable.
{¶66} Father’s fourth assignment of error lacks merit.
{¶67} Father’s fifth assignment of error alleges:
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{¶68} “The trial court committed reversible error by limiting the child’s court-
appointed attorney to ask questions which involved the best interests of the child.”
{¶69} Father argues the trial court committed error by limiting the scope of
questions W.H.’s appointed attorney could ask. He maintains circumscribing W.H.’s
appointed counsel to inquiring into the child’s best interests was error.
{¶70} Initially, custody was the primary issue vis-à-vis W.H. As such, the child’s
best interest was the court’s principal concern. It is unclear how the trial court’s purported
limitation of questioning undermined the proceedings or in any way hamstrung father’s
ability to present his case. Father was represented by counsel and was able to explore
all matters germane to his interests as well as W.H.’s potential interests. Even if, as father
claims, the court somehow erred in limiting counsel for W.H. to inquiries into the child’s
best interest, we fail to see how father was in any way prejudiced.
{¶71} Furthermore, it is not entirely clear that father has standing to assert error
regarding the court’s decision to allegedly limit the scope of questioning of W.H.’s
attorney. There was no objection to the alleged limitation and the court did not limit the
scope of questioning of his counsel. To the extent father has failed to set forth some
stake or interest in the scope of the inquiries of W.H.’s attorney, he has not established a
foundation to challenge the court’s action as it relates to W.H.’s attorney.
{¶72} Father’s fifth assignment of error lacks merit.
{¶73} Father’s final assignment of error provides:
{¶74} “The trial court erred in ordering that appellee receive possession of the
marital residence during the time that it is being sold.”
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{¶75} The trial court ordered that the marital residence be sold and the proceeds
divided evenly. Mother was granted custody of W.H. and, as a result, mother was
permitted to reside in the marital home during the pendency of the sale. Mother notes
that the house has been sold. Father did not file a reply brief disputing this point. In this
respect, the issue raised by father is moot. And, in any event, father fails to argue how
the trial court’s decision on this point prejudiced him. We discern no error.
{¶76} Father’s final assignment of error lacks merit.
{¶77} For the reasons discussed in this opinion, the judgment of the Trumbull
County Court of Common Pleas, Domestic Relations Division, is affirmed.
JOHN J. EKLUND, J., concurs,
MATT LYNCH, J., concurs in part and dissents in part, with a Dissenting Opinion.
_______________________
MATT LYNCH, J., concurs in part and dissents in part, with a Dissenting Opinion.
{¶78} I concur with the majority’s disposition of the first, third, fourth, and fifth
assignments of error given the highly deferential abuse of discretion standard this court
must apply in determining issues of custody and the existence of testimony to support the
lower court’s decision. I dissent, however, from the majority’s disposition of the second
assignment of error in upholding the trial court’s limited visitation order between the father
and W.H. The impact of this decision on the life of the child in this matter cannot be
overstated. As will be more fully discussed below, this outcome takes a young child from
a parent with whom he has had a strong and consistent bond throughout his life and
abruptly all but terminates that relationship. It does so in the absence of abuse to the
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child, where the father consistently acted to further his child’s interests, was fully involved
in his life, and was completely against the child’s wishes. Since the record fails to
demonstrate a reasonable justification for limiting the father’s visitation so drastically, this
court should reverse the visitation order.
{¶79} Pursuant to R.C. 3109.051(A), a trial court must make “a just and
reasonable order” as to visitation/parenting time unless it determines it would not be in
the best interest of the child for the non-residential parent to have parenting time.
“Whenever possible, the order or decree permitting the parenting time shall ensure the
opportunity for both parents to have frequent and continuing contact with the child, unless
frequent and continuing contact by either parent with the child would not be in the best
interest of the child.” (Emphasis added.) Id.{¶80} Given the facts of this case, an award of visitation limited to one supervised
hour per week is not just or reasonable. W.H. and his father have a very strong bond and
father has consistently been supportive of his son in all of his endeavors, from schooling
to sporting activities. Despite difficulties surrounding the divorce proceedings, W.H. has
maintained strong grades and participation in his activities. There are no allegations that
father has been abusive to W.H. or caused him harm. By all accounts, father has taken
his obligation to parent his child very seriously. Significantly, W.H. clearly and
unequivocally expressed his wishes to remain in his father’s custody. Further, W.H.
indicated that he did not get along with his mother and expressed concerns about her
failure to spend time with him.
{¶81} The lower court’s determination to limit father’s custody so drastically is
based upon a belief that the father has interfered with or inhibited W.H. and his mother’s
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relationship. Even presuming that to be the case, this would not justify the decision to
limit father’s visitation so drastically. Prohibiting a child who is clearly attached to his
father from visiting with him alters his life in such a significant manner that it raises real
concerns for his well-being, all but completely cutting off the most important and
significant relationship in his life. The custody arrangement and visitation schedule
results in an outcome that trades W.H.’s relationship with one parent with the other one.
Sweeping changes in W.H.’s day-to-day life should not be imposed in the hope that a
drastic change in custody and visitation will create a stronger bond with one parent. The
goal of encouraging a stronger bond, and allowing the mother to be more involved in
activities without the father as the majority observes is necessary, can be accomplished
while still allowing a reasonable amount of visitation to the father.
{¶82} Courts have been critical of orders limiting parenting time or visitation to this
extent, particularly when it results in a significant change for the child. For example, in
Barker v. Barker, 6th Dist. Lucas No. L-00-1346, 2001 WL 477267 (May 4, 2001), the trial
court limited the father’s parenting time after he had been involved in confrontations and
arguments with the mother in front of their child, limiting visitation until father successfully
completed counseling. Id. at *2. The court of appeals determined that, while “it is clear
that the parties need to resolve the residual issues between them in order to help their
daughter resolve her own issues,” since the child is “emotionally attached to both parents,
has anxiety about losing either of them and is upset by even minor changes, it is
unreasonable to suddenly cut off contact with appellant.” Id. at *5. In In re D.M., 8th Dist.
Cuyahoga No. 87723, 2006-Ohio-6191, the court found a parenting time schedule was
not in the best interest of the child where, among other things, it did not “adequately
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address the prior close interaction of the mother and child,” and “does not adequately
facilitate a relationship between” them. Id. at ¶ 57. Similarly here, a sudden decrease in
contact occurred and a relationship was not adequately facilitated with the father. In
contrast to these circumstances, such restrictive visitation is often utilized where a child
has been abused or is in fear of a parent, factors simply not at issue in the present case.
See Bodine v. Bodine, 38 Ohio App.3d 173, 175-176, 528 N.E.2d 973 (10th Dist.1988)
(father had a violent temper and children were afraid of him); Syslo v. Syslo, 6th Dist.
Lucas No. L-01-1273, 2002-Ohio-5205, ¶ 54 (parent’s behavior was “distressing” to the
child).
{¶83} It bears repeating that visitation orders must be based on the best interests
of the child. R.C. 3109.051(A). A visitation order cannot be based on the mother’s
personal desire to improve her relationship with her son. It should be observed that of
those factors to be considered in ordering visitation under R.C. 3109.051(D), the vast
majority favor a reasonable award of parenting time beyond what was given to this father.
The prior interaction of the child with his father; the geographical location of the parents
and their availability; the age of W.H., his present adjustment to his life, and his wishes;
the parties’ health; and the lack of any abuse toward the child all weigh in favor of
increased visitation.
{¶84} While the child’s wishes are not the sole determining factor of an award of
parenting time, W.H. could not have more clearly conveyed his desire to spend time with
his father and also his desire not to be placed with his mother. If W.H. does not feel a
strong bond or relationship with his mother, the courts should not force such a relationship
on him by all but terminating, for whatever period of time, his relationship with his father.
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When a child is safe, healthy, happy, and excelling in his school and sports activities,
flipping his life upside down is not just or reasonable.
{¶85} As justification for the drastic limits on the father’s visitation, the majority
underlines his “persistent, disparaging behavior toward mother.” Specific instances of
such disparaging behavior, at least in relation to actions taken in the child’s presence,
however, are in short supply. Father’s general demeanor or failure to get along with
mother are not reasons to deprive him of custody. It is accurate that the GAL indicated
that multiple therapists, who did not testify, observed the father was “alienating” the
mother. However, because this was presented only indirectly through the GAL’s
testimony, it is difficult to determine precisely what actions constituted “disparaging”
behavior or alienation, particularly of a significance to justify the extreme limits on
visitation ordered in this case.
{¶86} Comments throughout the record that father wanted his son to perform well
in sports and encouraged him to succeed, even if interpreted as being motivated by
father’s past desire to be successful in his own endeavors, hardly justify denial of
visitation. Differing parenting styles, to the extent that they do not cause harm to the child,
should not be a basis for a disparate order of time with a child. The father, who has
consistently and unquestionably always been present in his son’s life and provided him
with opportunities and support, is now being granted equal or less parenting time than
parents who have had their children removed from the home due to dangers such as drug
use. While the majority contends that the father needs insight into his one-sided view on
parenting, it should be questioned to what extent parenting between two contentious
parties to a divorce can be micromanaged by the courts. While it is ideal that separated
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parents will always work together for the benefit of their children, this is frequently not the
case in a contentious divorce. It should not follow that one parent will lose the right to
have unsupervised and substantial visitation simply because the parents do not get along.
{¶87} Finally, while the majority emphasizes that the father holds the keys to
increased visitation by completing counseling, this does not justify the initial and
continued denial of visitation. It is unknown how long his visitation with his son will be
limited and what change in his behavior will be acceptable to increase this visitation.
Limiting visitation until such time as father conforms to a parenting style approved by
others is not a valid reason to restrict his visitation to one supervised hour per week. The
order is presently unjust, regardless of additional parenting time he may receive in the
future.
{¶88} Given that the trial court’s extreme limitation of the father’s visitation with
W.H. is unjust and unreasonable, it constitutes an abuse of discretion. This matter should
be reversed in part for the court to award parenting time consistent with the wishes and
best interest of the child to avoid the unnecessary deprivation of a relationship with his
father.
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