Manshadi v. Mossayebi , 2011 Ohio 1469 ( 2011 )

[Cite as Manshadi v. Mossayebi, 2011-Ohio-1469.]
STATE OF OHIO, MAHONING COUNTY
IN THE COURT OF APPEALS
SEVENTH DISTRICT
FATEMEH DEHGHAN MANSHADI, )
) CASE NO. 10 MA 2
PLAINTIFF-APPELLANT, )
)
- VS - ) OPINION
)
FARAMARZ MOSSAYEBI, )
)
DEFENDANT-APPELLEE. )
CHARACTER OF PROCEEDINGS: Civil Appeal from Common Pleas Court,
Domestic Relations Division, Case No.
08DR689.
JUDGMENT: Affirmed.
APPEARANCES:
For Plaintiff-Appellant: Attorney Bruce Broyles
164 Griswold Drive
Boardman, Ohio 44512
For Defendant-Appellee: Attorney Matthew Giannini
1040 South Commons Place, Suite 200
Youngstown, Ohio 44514
JUDGES:
Hon. Joseph J. Vukovich
Hon. Gene Donofrio
Hon. Mary DeGenaro
Dated: March 22, 2011
VUKOVICH, J.
¶{1} Fatemeh Dehghan Manshadi (the mother) appeals the decision of the
Mahoning County Domestic Relations Court, which named Faramarz Mossayebi (the
father) as the residential parent of the parties’ two children. The mother contends that
the court erred in failing to rule on her motion for hair follicle testing and for an alcohol
assessment. However, the court was not required to rule on this motion where the
mother failed to obtain a hearing date as required by local rule.
¶{2} The mother then argues that the court erred in failing to appoint a new
psychologist and to exclude the report of the court-appointed psychologist, whom she
claims failed to conduct a full evaluation. We hold that the decision to accept the
report and allow the expert to testify was within the trial court’s sound discretion.
¶{3} The mother lastly urges that the court abused its discretion in naming the
father as the residential parent. However, under the facts and circumstances of this
case, the trial court could rationally find that it was in the children’s best interests to
have their father as their residential parent with their mother exercising extended
parenting time. As such, the judgment of the trial court is affirmed.
STATEMENT OF THE CASE
¶{4} The parties had a child in February of 2007 and another child in February
of 2008, both of whom are citizens of the United States. The parties, however, are
Iranian nationals. The father has lived in the United States since 1976. He has
political asylum here, and he has an application to be a permanent resident pending.
The mother moved from Iran to Canada in 1997. She is now both an Iranian and a
Canadian citizen. The mother came to the United States in 2006 on a work visa,
which was changed to a student visa once she married the father in April of 2006 and
began attending college. The mother’s student visa expired in August of 2009 due to
her failing to register as a student. At the time of the divorce hearing, she had only an
application for a temporary visa pending, intending to only stay in the country long
enough to finish the court proceedings.
¶{5} In December of 2008, the mother filed for divorce and asked to be
named the residential parent. In his answer, the father asked that he be named the
residential parent. He then filed a proposed shared parenting plan with equal
parenting time. The case was tried to the court on September 28, 2009.
¶{6} The father testified that he is fifty years old, has a Ph.D. in engineering,
and is a college professor. He expressed that he wanted to be named the residential
parent if the mother moved to Canada and that he preferred shared parenting if the
mother moved two hours away or stayed local (although, he also voiced that he would
have no real objection to the mother being named residential parent if she stayed
local). (Tr. 38-40, 499-500). He anticipated difficulties crossing international borders
in order to exercise visitation with his children if the mother moved to Canada with
them. (Tr. 46). He stated that he engaged in many caregiving responsibilities for the
children during the marriage. (Tr. 502). He testified that the mother does not drink
and that he consumes one or two glasses of wine or beer with one additional drink on
weekends. (Tr. 510-511, 540).
¶{7} He disclosed that the parties engaged in many physical confrontations
throughout their marriage. (Tr. 53). He alleged that the mother was almost always the
initiator and that he would grab, push, and hold her in order to disengage her. (Tr. 58,
68, 512, 514, 522). He explained that she continually and irrationally accused him of
being unfaithful. He provided examples. Once he entered the car and handed her an
ice cream cone, she accused him of cheating and threw a cone at him, which
ricocheted off his hand and injured her face. (Tr. 62-63). As another example, he
disclosed that she accused him of cheating on her with a server who waited on them
at a restaurant and then jumped on him while hitting him. (Tr. 66). He stated that her
nose may have been injured during this episode but noted that she had a preexisting
injury from her first husband in Canada; the mother’s medical evidence confirmed a
preexisting nose injury. (Tr. 71). The father testified that both parties had been to the
hospital and the police as a result of the fighting.
¶{8} The mother was forty-five years old with a bachelor’s degree, two
master’s degrees, and was partially through another degree. She expressed her intent
to move to Canada with the children, a country she has not visited in four years. (Tr.
138, 330). She claimed that her brother’s friends in Toronto were going to let her
move in with them and support her even though she has not seen them in nearly ten
years. (Tr. 139-151, 331). Her brother, however, lives on the other side of the country
in Vancouver. (Tr. 135). She then stated that if the court requires her to live closer,
she would move to Niagara Falls. (Tr. 142). She refused to stay in Mahoning County.
(Tr. 374). She was recalled later to testify that if the court wished her to remain in the
United States and to stay within two hours, she would move to Pennsylvania or West
Virginia. (Tr. 624-625).
¶{9} The mother, who did not work after having children but who did attend
college, stated that the father only sometimes cared for the children and recognized
that her brother was the primary caregiver for one child for some months while he lived
with them. (Tr. 285, 292, 387, 422). She also acknowledged that the children were in
daycare three to four days per week. (Tr. 289-290).
¶{10} The mother generally alleged that the father used drugs and that he once
put them where a child could access them. (Tr. 165). She alleged that the father beat
her up “every single day,” sometimes merely because she talked too loud and
sometimes merely so he would have an excuse to leave the house. (Tr. 151, 303,
306-308). She said he put a gun to her head and a knife to her throat. She testified
that he once hit her in the back of the head while she was holding a child and that he
tried to push a child down the steps. (Tr. 152, 164, 305). She said the father would
often “twist” her back or squeeze the back of her neck. (Tr. 304). She denied that she
ever hit him. (Tr. 311).
¶{11} Her obstetrician testified that she reported emotional abuse to him and
that there “may have been claims” of physical abuse as well. She insisted that he not
report her allegations as she feared her husband could be deported. (Depo. 12-13).
¶{12} The mother’s immigration attorney opined that the father could obtain a
refugee travel document and that he would not have more problems crossing the
Canadian border than anyone else. (Tr. 96-97). She noted that the children may be
citizens of Iran and that the father could not enter Iran or return from Iran due to his
political asylum here. (Tr. 96, 106). On the topic of visa requests, she acknowledged
that processing was more detailed and took longer on those from Middle Eastern
countries. (Tr. 93).
¶{13} The court-appointed psychologist noted in his report that the parties did
not fit the stereotypes for Iranian culture, noting that they are not Muslim, the mother is
independent, and the father did not act as the voice of the household. The
psychologist testified that most of the mother’s reports bordered on incredulous. For
instance, when the children were sick after a supervised visit, she claimed that the
father infected them. (Tr. 191). She has also claimed that he poisoned them. The
psychologist contrasted how the mother characterized the father as evil while the
father praised her mothering abilities. (Tr. 205, 229). He described how she was
upset that the father took photographs of the children and provided them with copies at
the next visit. (Tr. 205, 226, 229).
¶{14} The psychologist’s report noted that the mother blames any negative
situations involving the children on the father, even though his contact with them has
been limited by her actions. The report also found it odd that she lamented how the
father did not help her or show more interest in the children when it was her actions
that resulted in the father not being able to contact her or see his children outside of
the supervised visitation center. The psychologist believed that the mother was overly
sensitive to drinking alcohol and stated that the father talked freely about his
consumption of alcohol. (Tr. 213). He noted the father characterized the mother as
jealous, suspicious, angry, and paranoid. (Tr. 250). The report found the mother’s
allegations and desires “not only unconventional but frankly bizarre” and her beliefs
“almost delusional.”
¶{15} The psychologist noted the mother’s strong intent to leave the country.
(Tr. 200). He worried that she would deny the father access to the children. (Tr. 204).
The psychologist voiced that there was no reason to disrupt the children’s lives by
moving hours away from their father. (Tr. 207). The psychologist was impressed by
the father’s parenting skills and the children’s bond with him. (Tr. 227). The report
found the father to be cooperative, non-defensive, and lacking in an agenda. An anger
inventory found the father to be well within the low to average range on all scales and
found no indications of invalid responding. Although the psychologist found that the
mother was not inclined to work cooperatively, he recommended shared parenting and
the appointment of a mediator. However, if the mother were to leave the country, he
would recommend that the father be named the residential parent. (Tr. 230-231).
¶{16} The guardian ad litem was also impressed with the father’s caregiving
skills. (Tr. 571-574). For instance, he arrived at a surprise visit at the father’s
apartment to hear a child crying; he eavesdropped outside the door and heard the
father responding to the child in a very gentle manner. (Tr. 571). He described the
father as a calm arbitrator between the children’s disputes over toys. (Tr. 573). He
agreed that the children were loving to him. (Tr. 572). The guardian ad litem
expressed concern over the mother’s mindset toward the father. (Tr. 580). He
recommended that the mother be named the residential parent (with the father having
more than standard visitation) if she lived within two hours of the area but the father be
named the residential parent if the mother moved to Canada. (Tr. 559-560).
¶{17} The mother told the guardian ad litem she was moving to Montreal even
though she told the court she was intending to move to Toronto. (Tr. 579). The
guardian ad litem did not believe the mother would facilitate visitation once she left the
country. (Tr. 566, 580). He noted the benefit to the children of remaining in their
family home, which was the separate property of appellee and would be awarded to
him after the divorce. (Tr. 577).
¶{18} The guardian ad litem’s report opined that shared parenting would not
work due to the mother’s lack of cooperation and her inability to encourage the love,
sharing, and contact between the children and the father. He found that each party
may have been both a perpetrator and a victim of domestic violence. He also found
that the mother was not amenable to mediation as recommended by the psychologist.
¶{19} On December 11, 2009, the court issued a fifty-four-page decision. In it,
the father was named the residential parent. The mother was provided more than
standard parenting time, with two overnights during the week that does not contain her
weekend. The mother filed a timely notice of appeal.
ASSIGNMENT OF ERROR NUMBER ONE
¶{20} Appellant’s first assignment of error provides:
¶{21} “THE TRIAL COURT ERRED IN FAILING TO ORDER THE HAIR
FOLLICLE TESTING AND ALCOHOL ASSESSMENT BASED SOLELY UPON
APPELLANT FAILING TO OBTAIN A HEARING DATE.”
¶{22} On June 24, 2009, the mother filed a motion stating that it may be
necessary to conduct hair follicle testing and an alcohol assessment on the father. Her
counsel withdrew two days later. New counsel entered an appearance two weeks
later.
¶{23} In the December 11, 2009 divorce decree, the court noted that the
mother had filed a request for hair follicle testing and an alcohol assessment. The
court found that the mother did not obtain a hearing date when the motion was filed; in
fact, the standard notice of hearing date language had been crossed out by her
attorney. The court disclosed that it would have addressed the motion had a hearing
date been obtained. The court also stated that this motion is presumed to have been
denied since it was not ruled upon prior to trial. In addition, the court voiced that it was
not convinced that a hair follicle test or alcohol assessment was warranted, finding a
prior assessment administered by the parties’ counselor lacked credibility and noting
that the counselor told the guardian ad litem that the father was not dependent on
alcohol. The court also pointed out that the mother did not specify the extent of the
father’s drinking.
¶{24} On appeal, the mother claims that she provided sufficient information to
justify a hearing on her motion. She also claims that there is a discrepancy in Local
Rules 8.09 and 8.12, which should mean that the court cannot disregard a motion
merely because a hearing date is not obtained.
¶{25} Mah. Cty. Dom. Rel. Loc.R. 8.09 provides in pertinent part: “All motions
shall first be scheduled for hearing by the Assignment Commissioner, then filed with
the Clerk of Court and shall be subject to either affidavit or evidentiary hearing.” Loc.R.
8.12, entitled “Determination of Motions without Oral Hearing,” states the following:
“Pursuant to Civil Rule 7(B), the Court may, to expedite its business, determine
motions without oral hearing upon the submission of brief written statements of
reasons in support and opposition.” See, also, Civ.R. 7(B)(2) (“To expedite its
business, the court may make provision by rule or order for the submission and
determination of motions without oral hearing upon brief written statements of reasons
in support and opposition.”).
¶{26} Contrary to the mother’s assertion here, these rules are not
contradictory. The movant must schedule their motion for a hearing. This does not
necessarily mean an oral hearing. Moreover, even if an oral hearing is scheduled, the
fact that the court can later determine that an oral hearing is unnecessary is not a
contradiction of a rule that requires the movant to obtain a hearing date.
¶{27} Here, the movant consciously failed to ask for a hearing date at the time
the motion was filed (consciously because the notice of hearing date language was
physically crossed out). Notably, counsel had also filed a request for a psychological
evaluation, and a hearing had been requested and held on that matter. New counsel
took over the case two weeks after the motion for hair follicle testing and an alcohol
assessment was filed. New counsel did not attempt to revive this motion by obtaining
a hearing date. Thus, neither attorney felt the matter to be of pressing pretrial
importance.
¶{28} In any event, as the court opined, the court heard testimony at the
divorce hearing about the mother alleging to various individuals that the father had an
alcohol problem and used marijuana. The court concluded that the mother could
provide no specifics as to the father drinking or using drugs; she did not say how often
or how much he drank or what drug he allegedly used. The most testimony on either
matter was “he used drugs -- I remember once he put drugs somewhere that my
oldest son could access.” (Tr. 165). The court heard the father testify as to the
amount of alcohol he consumed. The court found him credible and concluded that his
admitted use was not problematic.
¶{29} The court heard the parties’ counselor’s testimony on an alcohol
assessment he once administered. The court noted that the claimed results were not
credible as the name on the test was not that of the father, parts of the test were
incomplete, some answers were found to be insignificant, and the counselor had
advised the guardian ad litem that the father was not dependent on alcohol. Moreover,
there was no follow-up to discuss each question and answer. Plus, the counselor
works under the assumption that if one spouse is against drinking, then there is a
problem to be addressed.
¶{30} Finally, the court-appointed psychologist was aware of the substance
abuse allegations, questioned the parties thereon, and failed to conclude that further
testing was necessary before recommending that the father receive at least shared
parenting. For all of these reasons, the court did not err in failing to grant the mother’s
motion for a hair follicle test and an alcohol assessment.
ASSIGNMENT OF ERROR NUMBER TWO
¶{31} Appellant’s second assignment of error states:
¶{32} “THE TRIAL COURT ERRED IN DENYING APPELLANT’S MOTION TO
EXCLUDE THE REPORT OF DR. HARVEY KAYNE, APPOINT A DIFFERENT
EXPERT AND ORDER A FULL PSYCHOLOGICAL EVALUATION AS DIRECTED BY
THE MAGISTRATE’S ORDER OF JUNE 29, 2009.
¶{33} The mother filed a motion for a psychological evaluation. The magistrate
held a hearing on the motion. On June 29, 2009, the magistrate appointed a
psychologist and ordered a full psychological assessment and custody evaluation. The
psychologist interviewed each party twice, observed the father during a one-hour
visitation, interviewed a person accompanying the mother to the appointments twice,
spoke to the guardian ad litem, and reviewed court documents and visitation
observation reports. He also reviewed information the mother brought to her
interviews such as hospital and police records and internet articles on border-crossing.
Due to the allegations against the father, the psychologist administered the Novasco
Anger Scale and Provocation Inventory on the father.
¶{34} On September 24, 2009, the mother moved to exclude the psychologist’s
report. In arguing the motion, counsel stated that the psychologist failed to conduct a
full psychological assessment as ordered by the magistrate because the Anger Scale
was not widely recognized, other common tests were not utilized, and he did not
investigate enough claims. (Tr. 4-9). On appeal, the mother states that the evaluation
was not a full psychological assessment because the psychologist failed to conduct
other tests (such as the MMPI), only briefly looked at hospital and police records, did
not institute alcohol or drug testing, and did not investigate whether the father was
abusive to the children.
¶{35} First, the psychologist explained that he did not believe standard tests
such as the MMPI would be appropriate due to the cultural differences. He noted that
the Anger Scale was simple to understand and pointed out that this was the mother’s
main allegation against the father in any event. As for alcohol or drug testing, the
court did not order such. (See prior assignment of error.) Moreover, the psychologist
interviewed the parties and found the father forthcoming on his alcohol use and found
the mother overly sensitive on the father’s use.
¶{36} That his review of the mother’s hospital and police records was brief
does not invalidate his opinion. He reviewed the records provided to him, and he
interviewed her and listened to her claims. As to the mother’s claim of child abuse, the
psychologist reviewed the visitation observation reports and observed the father’s one-
hour visitation with his children. He was impressed with the father’s parenting abilities.
He spoke to the guardian ad litem, who was also impressed with the father’s
parenting. Although she brought herself to the hospital or police to report abuse, she
never brought her children or reported abuse against them. The psychologist
interviewed the mother but found her accusations to be incredulous and to border on
delusional. Her disagreement with his characterizations does not invalidate his report.
¶{37} This expert was appointed by the court. It was within the trial court’s
sound discretion to conclude that the expert conducted a sufficient evaluation. Counsel
pointed out these and other issues with the evaluation at trial. These were credibility
issues that were within the court’s province to determine. Consequently, the trial
court’s decision refusing to exclude the report is upheld. (Credibility issues are
discussed further infra.)
ASSIGNMENT OF ERROR NUMBER THREE
¶{38} Appellant’s final assignment of error argues:
¶{39} “THE TRIAL COURT ABUSED ITS DISCRETION IN DETERMINING
THAT APPELLEE FARAMARZ MOSSAYEBI SHOULD BE THE RESIDENTIAL
PARENT OF THE PARTIES’ TWO MINOR CHILDREN.”
¶{40} A trial court has broad discretion in its allocation of parental rights and
responsibilities. Miller v. Miller (1988), 37 Ohio St.3d 71, 74. Appellate courts must
afford “the utmost respect” to the trial court's exercise of discretion because “[t]he
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.” Id.See, also, Davis v. Flickinger (1997), 77 Ohio St.3d 415, 419 (the prohibition on
reviewing courts substituting their judgment for that of the trial court is even more
important in custody cases). Consequently, a reviewing court may not overturn a trial
court's determination regarding the allocation of parental rights and responsibilities
absent an abuse of discretion. Pater v. Pater (1992), 63 Ohio St.3d 393, 396. An
abuse of discretion implies that the trial court's decision was arbitrary, unreasonable,
or unconscionable. Blakemore v. Blakemore (1983), 5 Ohio St.3d 217, 219.
¶{41} In general, the reviewing court is obliged to presume that the findings of
the trier of fact are correct. State v. Wilson, 113 Ohio St.3d 382, 2007-Ohio-2202, ¶24,
citing Seasons Coal Co., Inc. v. Cleveland (1984), 10 Ohio St.3d 77, 80-81. This
presumption arises in part because the fact-finder occupies the best position to watch
the witnesses and observe their demeanor, gestures, and voice inflections and to
utilize these observations in weighing credibility. Id. “A reviewing court should not
reverse a decision simply because it holds a different opinion concerning the credibility
of the witnesses and evidence submitted before the trial court. A finding of an error in
law is a legitimate ground for reversal, but a difference of opinion on credibility of
witnesses and evidence is not.” Id.¶{42} When making an original allocation of parental rights and responsibilities,
the court shall take into account the child's best interests. R.C. 3109.04(B)(1). In
determining the best interests of a child, the court shall consider all relevant factors,
including, but not limited to: (a) the parents' wishes; (b) the child's wishes if the court
has interviewed the child; (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
interests; (d) the child's adjustment to home, school, and community; (e) the mental
and physical health of all relevant persons; (f) the parent more likely to honor and
facilitate court-approved parenting time rights or companionship rights; (g) whether
either parent has failed to make all child support payments pursuant to a child support
order; (h) whether either parent or any member of the household of either parent
previously has been convicted of or pleaded guilty to certain criminal offenses
involving children; (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 a court order; and (j) whether either parent has
established a residence, or is planning to establish a residence, outside of Ohio. R.C.
3109.04(F)(1)(a)-(j).
¶{43} The mother essentially complains here about the weight the court
afforded to various pieces of evidence. However, as the father responds, the
assignment of weight and the determination of which version of events is more
credible are issues for the fact-finder who heard the parties testify. In fact, the trial
court found the mother to lack credibility and to lack the ability to cooperate and to
facilitate visitation. This conclusion was reached not just from the testimony presented
(including contradictions in her testimony and her evidence) but also from the mother’s
demeanor, gestures, and disrespectful attitude during the course of the trial, which the
court specified in its entry.
¶{44} As the court pointed out, it is the children’s best interests that are
relevant, not the parents’ best interests. The court reviewed all of the factors in great
detail in a comprehensive judgment entry. As for the parties’ wishes, the father was
flexible and willing to compromise if the mother would stay close as opposed to
moving away. See R.C. 3109.04(B)(1)(a). The mother wishes were unstable and
wavering. She voiced that she should be the sole residential parent with the father
exercising only supervised visitation; yet, her proposed findings and conclusions
stated that he should receive standard visitation.
¶{45} The children’s interaction with both parents is positive. See R.C.
3109.04(B)(1)(c). They may have bonded more with the mother; however, they easily
transition to their father’s presence and are happy to see him. The mother admitted
that her brother, who is now in Iran, acted as one of the children’s primary caregivers
during a semester she was busy with school. She claimed that the father did not
engage in much childcare. Yet, the father insisted that he routinely spent time with the
children and that the parties did equal amounts of household chores including bottle
and food preparation.
¶{46} Both parties were found to have good parenting skills. It was noted that
the mother blames every childhood issue on the father, whereas the father does not
criticize the mother’s parenting. The mother had concerns with one child’s speech;
however, she talks 100% Farsi in the house. The father speaks approximately 60%
Farsi to the children in the home and 40% English. Despite the mother’s claims
otherwise, the father was found to be a patient, concerned, and appropriate caregiver
and a good arbitrator between the children.
¶{47} Neither party has relatives nearby, and no testimony was presented on
other significant individuals. If the mother moves to Toronto as she wishes, she will
only know friends of her brother that she claims will support her; she has not spoken to
them in nearly ten years, and they have never met the children. If the mother moved
to Niagara Falls, Pennsylvania, or West Virginia as she later stated, she would know
no one.
¶{48} As for the children’s adjustment to home, school, and community,
although they are young and not yet of school age, the children have been enrolled in
a local daycare/preschool for more than a year. See R.C. 3109.04(B)(1)(d). They
often go to the father’s office at the college where he is a professor. They have gone
to the same pediatrician since birth. They play with the neighborhood children. The
house the children have lived in their entire lives is the father’s separate property. As
such, giving custody to the father would not require the children to transition to a new
residence or neighborhood. The mother absolutely refused to stay local. She
expressed often that she was moving to Canada. She told the guardian ad litem
Montreal and told the court Toronto. At the very end of trial, she finally claimed to
consent to moving within two hours but still insisted it be out of state, even though she
had no information as to why or where she would move.
¶{49} As for the parties’ mental and physical health, the mother testified to
migraine and neck problems. See R.C. 3109.04(B)(1)(e). She was described as
jealous, suspicious, and paranoid. She was viewed as telling incredulous stories, as
being untruthful, or as being almost delusional. For instance, she states that the father
is evil and claimed that the father poisoned the children. There was much concern
that she so strongly and irrationally desires the children to be separated from their
father that this mindset will cause her to deny him visitation.
¶{50} The mother claims that father has anger and substance abuse problems.
Her claims regarding the father’s anger were found to be exaggerated or fabricated.
An anger scale employed by the psychologist found no indication of anger problems.
The mother’s claims regarding appellant beating her on a daily basis need not be
believed. One could rationally believe the father’s claims that almost every physical
altercation was initiated by the mother and that she was only hurt as a result of her
aggressiveness and his need to disengage her. Or, one could rationally believe that
the violence was mutual and that the father’s actions were no worse than the mother’s
actions, resulting in the altercations weighing evenly against both parties.
¶{51} The mother provided no information on or examples of the father’s
drinking and only generally claimed that he did drugs. The father was consistently
candid about the fact that he enjoys two glasses of wine or beer per night, with an
extra glass on the weekend. This was not found to constitute a problem, and it was
suggested that the mother is too sensitive about drinking alcohol. A counselor whose
test indicated that appellant may have an alcohol problem works under the assumption
that a person has a problem if their spouse thinks they do, which may cause a marital
problem but does not mean the one who drinks has an alcohol problem for purposes
of being a parent.
¶{52} The factor concerning which parent is more likely to facilitate visitation
definitely weighs in the father’s favor. See R.C 3109.04(B)(1)(f). As aforementioned,
the father, the guardian ad litem, and the psychologist were all very and justifiably
concerned that the mother would deny the father visitation. Her intent to move to
Canada and her changed intent to move to another state (for no apparent reason)
combined with her ability to move to Iran (a country to which the father cannot travel)
provided other cause for concern. Her mindset is that the father is evil and that the
children need protection from him. This was judged to be unfounded. There is thus
reasonable justification to worry that the mother will either secret her children or at
least interfere with visitation and telephone or postal communication if she were
named residential parent. There is also concern that the mother will purposefully
interfere with paternal bonding.
¶{53} Related to this is whether one parent denied the other parenting time in
accordance with court order. See R.C. 3109.04(B)(1)(i). The father testified that the
mother failed to bring the children to three to four visits as she claimed the children
were sick. As for child support arrearage, it was noted that the father has a $4,000
arrearage from temporary child and spousal support. See R.C. 3109.04(B)(1)(g).
¶{54} The factor concerning whether either parent is planning to establish a
residence out of state weighs heavily against the mother. As aforementioned, the
mother insisted she was moving to Canada with the children, telling the guardian ad
litem Montreal and the court Toronto. Notwithstanding the mother’s immigration
attorney’s opinion that the father would not have much problem re-entering the country
if he had to travel to Canada to visit his children and then return on a refugee
document (which he did not even possess), the court could rationally find this to be a
major issue and a situation that the father should avoid.
¶{55} When it occurred to the mother during trial that she may lose custody
due to her insistence on moving to Canada, she stated that she would try to stay in the
country but she would not live in Ohio. Although she had no support or prospects in
either place, she expressed that she would move to Pennsylvania or West Virginia,
apparently just for the sake of not being in Ohio. The father, however, had no plans to
move from the state or the local area. Rather, he had an intent to remain in the family
home.
¶{56} Finally, the court considered other relevant factors. The court noted that
it was not comfortable conditioning the mother’s custody on an order to remain in a
certain area, stating that this may constitute an unconstitutional restriction on the right
to travel. The court opined that the mother presents an unstable and unpredictable
lifestyle at this point in time. The court pointed out that the mother has not looked at
the cost of living and has not looked for daycare or work in any of the areas where she
talks of moving.
¶{57} The mother worried about being allowed to stay in this country but put no
effort into looking for work here and finding a sponsor to obtain a work visa. She
suggested this was a difficult goal; however, she was on a work visa when she first
came here. Moreover, she has a college degree and two master’s degrees with credit
toward another. Lastly, she could have stayed in the country on a student visa as she
was a college student during the marriage. She mentioned that she could not afford
tuition (at a discounted rate due to the father’s employment) while the divorce was
pending and that she did not know that she could request tuition pending the divorce.
However, she was living in the house for free, she was awarded temporary child
support, and she filed a request to have the father pay for lawn care pending the
divorce.
¶{58} In considering all of the best interest factors, there is no indication that
the trial court acted unreasonably, arbitrarily, or unconscionably in naming the father
the residential parent and providing extended visitation to the mother. The trial court
was in the best position to make credibility determinations and to assign weight to
each piece of evidence. Although the court could have awarded custody to the
mother, the failure to do so was not an abuse of discretion. We shall not substitute our
judgment for that of the trial court, whose reasoning was painstakingly explained in a
lengthy and detailed entry.
¶{59} For the foregoing reasons, the judgment of the trial court is hereby
affirmed.
Donofrio, J., concurs.
DeGenaro, J., concurs.