In re K.M. ( 2023 )

[Cite as In re K.M., 2023-Ohio-4349.]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF WAYNE )
IN RE: K.M. C.A. No. 22AP0047
APPEAL FROM JUDGMENT
ENTERED IN THE
COURT OF COMMON PLEAS
COUNTY OF WAYNE, OHIO
CASE No. 2021 JUV-G 955
DECISION AND JOURNAL ENTRY
Dated: December 4, 2023
SUTTON, Presiding Judge.
{¶1} Appellant-Mother Brittany Patton appeals from the judgment of the Wayne County
Court of Common Pleas, Juvenile Division, granting legal custody to Appellee-Father Jordan
Moser. This Court reverses.
I.
{¶2} Brittany Patton (“Mother”) and Jordan Moser (“Father”) are the biological parents
of K.M., born April 17, 2019. The parties lived together and were in a romantic relationship from
the time of K.M.’s birth until the parties separated in July of 2021.
{¶3} Between July of 2021 and October of 2021, the parties, by all accounts, successfully
co-parented, communicated well, and worked together to come up with their own parenting time
arrangement that allowed both parents to have parenting time with the child. During the week,
Father worked first shift and would drop the child off at a babysitter’s home. Mother, who worked
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third shift, would pick the child up in the late afternoon or early evening and she would spend time
with the child before she went to work. Mother would drop the child off at Father’s home to sleep.
{¶4} In October of 2021, Mother secured a position working first shift at her place of
employment. At the same time, Mother filed a request in October 2021 for child support through
Wayne County Child Support Enforcement Agency. After receiving notice of the request for child
support, Father filed a complaint for the allocation of parental rights and responsibilities that gave
rise to the current action.
{¶5} Both Mother and Father testified at a final hearing on January 28, 2022. Based on
the testimony and evidence presented at that hearing, the magistrate issued a decision on March
10, 2022. The magistrate found that the “record supports a finding of legal custody to Mother
subject to a clear and substantial parenting order for Father would be in the child’s best interest.”
The magistrate also issued a separate entry ordering Father to pay Mother child support in the
amount of $191.15. On March 15, 2022, the trial court issued a judgment entry adopting the
magistrate’s decision as an order of the court.
{¶6} On March 21, 2022, Father filed objections to the magistrate’s decision, and filed
specific objections on April 22, 2022, after the parties received a transcript of the final hearing.
Father’s main argument was that the magistrate incorrectly found that it was in the child’s best
interest for Mother to have sole legal custody. Mother filed a response in opposition to Father’s
objections.
{¶7} On August 9, 2022, the trial court issued a decision sustaining Father’s objections
and giving Father sole legal custody of the child. The trial court issued a parenting time order that
allowed the parents to share equally in time with the child. The trial court also ordered Mother to
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pay Father monthly child support in the amount of $243.09 per month in addition to $17.29 in
monthly cash medical support.
{¶8} It is from that order that Mother appeals, assigning three errors for this Court’s
review.
II.
ASSIGNMENT OF ERROR I
THE TRIAL COURT ABUSED ITS DISCRETION IN OVERTURNING
THE MAGISTRATE’S DECISION AND AWARDING CUSTODY TO
FATHER.
{¶9} In her first assignment of error, Mother argues that the trial court abused its
discretion in declining to adopt the magistrate’s decision. For the reasons that follow, we agree.
Standard of Review
{¶10} “Generally, the decision to adopt, reject, or modify a magistrate's decision lies
within the discretion of the trial court and should not be reversed on appeal absent an abuse of
discretion.” Niederst v. Niederst, 9th Dist. Summit No. 28846, 2018-Ohio-5320, ¶ 10, quoting
Barlow v. Barlow, 9th Dist. Wayne No. 08CA0055, 2009-Ohio-3788, ¶ 5. An abuse of discretion
is more than an error of judgment; it means that the trial court was unreasonable, arbitrary, or
unconscionable in its ruling. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450 (1983). When
applying this standard, a reviewing court is precluded from simply substituting its own judgment
for that of the trial court. Pons v. Ohio State Med. Bd., 66 Ohio St.3d 619, 621 (1993).
{¶11} Here, at the time K.M. was born, Mother and Father were not married. Pursuant to
R.C. 3109.042, “[a]n unmarried female who gives birth to a child is the sole residential parent and
legal custodian of the child until a court of competent jurisdiction issues an order designating
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another person as the residential parent and legal custodian.” Therefore, Mother was the sole
residential parent and legal custodian of K.M. until the trial court issued a decision otherwise.
{¶12} After hearing all of the evidence and weighing the credibility of the witnesses
presented at the final hearing, the magistrate maintained Mother’s legal custody but also awarded
substantial parenting time to Father. In making that determination, the magistrate found:
The record supports a finding that legal custody to Mother subject to a clear and
substantial parenting time order for Father would be in the child’s best interest.
Concerns for Mother’s mental health are not as substantial as those pertaining to
Father’s ability to make consistently reasonable parenting decision and to facilitate
a positive relationship between child and Mother.
In support of this conclusion, the magistrate noted the following testimony from Father regarding
parenting time.
Father accused Mother of threatening to withhold the child from parenting time
and of forcing parenting time changes unilaterally. This claim illustrated an
unrealistic or unreasonable expectation Father has regarding co-parenting of the
child. Father appears to have expected [] to continue providing [care] for the child
every night – as if Mother still worked third shift – and then Mother to then
exercise her time entirely during the day – when she works. This would later be
completely dysfunctional once the child started school, at which point only Father
would have any meaningful parenting time with the child.
Regarding the difficult custody exchange that occurred between Mother and Father on January 5,
2022, the magistrate noted: “Father acknowledged swearing in the incident but testified that
swearing is appropriate around a three-year-old because ‘everyone says bad words.’”
Father’s Objections
{¶13} After the magistrate issued his decision, Father objected to the decision. Father
objected to the Magistrate’s findings that legal custody to Mother would be in the child’s best
interest. Father’s main objections centered around: (1) the magistrate’s concern that the child
does not have her own bedroom at Father’s house and the number of children present in the home
when Father’s girlfriend stays there with her children; (2) the magistrate’s finding that the child
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was comfortable in Mother’s home; (3) the magistrate not giving greater weight to Mother’s
mental health concerns; and (4) the magistrate noting that “the parties had no issues with parenting
time until Mother changed shifts and requested more time[.]”
{¶14} With regard to Father’s objections, Juv.R. 40(D)(4)(d) provides that “the court shall
undertake an independent review as to the objected matters to ascertain that the magistrate has
properly determined the factual issues and appropriately applied the law. Before so ruling, the
court may hear additional evidence[.]” The trial court must decide “‘whether the magistrate has
properly determined the factual issues and appropriately applied the law, and, where the magistrate
has failed to do so, the trial court must substitute its judgment for that of the magistrate.’” In re
M.C.M., 8th Dist. Cuyahoga No. 106040, 2018-Ohio-1307, ¶ 1.
Trial Court’s Decision
{¶15} On appeal, Mother argues that it was unreasonable and arbitrary for the trial court
to overturn the magistrate’s decision because the evidence in the record supported the legal
conclusion reached by the magistrate. The trial court, in overturning the magistrate’s decision and
awarding legal custody to Father, made the following conclusion:
Considering the factors of R.C. 3901.04(F), the factors are nearly evenly divided in
favor of each parent. Mother and Father each provide the child with a loving home
and are capable of tending to her needs and interests. Because the parents decided
not to agree to a shared parenting arrangement, this Court is forced to choose
between the two parents. In reviewing the record thoroughly, this [c]ourt finds that
granting Father primary custody favors the child’s best interest slightly more than
Mother.
While the child has strong relationships with both parents, Father was the primary
caretaker until Mother switched from night to day shift. Regarding child’s
relationship with her brother, the [c]ourt encourages the child to spend time with
him to maintain stability in the sibling relationship and prevent sibling disconnect.
Although the Magistrate raised concern about Father’s lack of awareness of having
the children share a bedroom, this bedroom arrangement is the same as when
Mother lived in the household. At this time, sharing a bedroom is not a concern.
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Obviously Father will need to address the bedroom situation as the children get
older.
While the child may not have genuine ties to a school or community right now,
Father had support persons available to him nearby. There are difficulties in being
a single parent. Father lives a few minutes away from the child’s [grand]parents,
uncles, daycare, and potential elementary school. The child’s paternal grandmother
fills in as daycare when needed. Furthermore, Father’s work schedule would allow
him to pick up the child after school. These factors will provide the child with
additional support and stability.
Furthermore, there is a concern with Mother’s mental health. The text messages
introduced were troubling. Mother testified that she was joking in the text
messages, but there was nothing to support this claim. Furthermore, Father’s
response to the message appears to be a genuine concern for Mother’s mental health
and a desire for her to seek help from a mental health professional.
While Mother is appropriate in having concerns about Father’s behavior during the
January 5th exchange, the [c]ourt cannot find, based on the limited information
before it, that there is a pattern of aggressive behavior. This clearly should not
occur in the future. The [c]ourt also notes that both parents have struggled to
communicate and, at times, flat-out ignored the other parent, particularly on some
of the larger financial issues that the parties are dealing with.
{¶16} Here, we agree with Mother that the trial court’s decision was unreasonable because
it is based on several factual conclusions that are not reflective of the record. The trial court noted
that Father was the primary caretaker until Mother switched from third shift to first shift. However,
the testimony indicates that the child spent most of her day in daycare. While the parties were
living apart and Mother was working third shift, Father would drop the child off at daycare early
in the morning, at about 6:00 am. Mother would then pick the child up around 5:45 pm and spend
a few hours with the child, before dropping the child off at Father’s house. Father would put the
child to bed. Prior to the parties separating, Mother and Father were co-parenting together and
living in the same house. Additionally, Father testified at trial that Mother stayed at home with
the child when the child was first born. It was only from July 2021 until October 2021, after
Mother terminated the romantic relationship, that Mother and Father were living separately while
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Mother worked third shift and Father spent more time with the child. The majority of the time
Father spent with the child during this period was during the late evening hours and overnight
when the child was presumably sleeping.
{¶17} Regarding the sleeping situation at Father’s home, the magistrate found that Father
failed to “demonstrate an understanding that, as children age, they will benefit from separate spaces
and established boundaries that encourage privacy – particularly given the children’s differing
genders.” In addressing this concern expressed by the magistrate, the trial court wrote:
Although the magistrate expressed concern about Father’s lack of awareness of
having the children share a bedroom, this bedroom arrangement is the same as
when Mother lived in the household. At this time, sharing a bedroom is not a
concern. Obviously Father will need to address the bedroom situation as the
children get older.
It was unreasonable for the trial court to state that Father will need to address this issue in the
future, when what the magistrate determined was that Father failed to demonstrate an
understanding that this is even a problematic issue. Further, the trial court’s ruling on the
objections also unreasonably ignores the magistrate’s factual finding, supported by the evidence
in the record, that the sleeping situation at Father’s house is “exacerbated when Father’s paramour
spends the night with her children there, which adds a newborn and a one-year-old to Father’s
room with his paramour and adds a five-year-old, unrelated child to [K.M.]’s bedroom.”
{¶18} In sustaining Father’s objections, the trial court also unreasonably emphasized its
concerns for Mother’s mental health. The trial court noted that while Mother testified she was
joking in the text messages, there “was nothing to support this claim.” The trial court’s conclusion
is unreasonable, however, in that it ignores Mother’s own testimony giving context to the text
messages and explaining why they were a joke. Mother testified that she has never been diagnosed
with depression and testified she was not currently depressed. Further, with regard to Mother’s
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mental health, it was Father’s own testimony that denied any alleged depression on Mother’s part
interfered with her relationship with the child. He also testified that Mother had a strong bond
with the child and was a good mother. With respect to his alleged concerns about Mother’s
depression, Father testified that “[s]he never wanted to leave the house, she never wanted to do
anything.” However, on cross-examination, he admitted that during the time Mother was staying
in bed and sleeping a lot during the day, she was working third shift.
{¶19} In sustaining Father’s objections, the trial court noted that “[w]hile Mother is
appropriate in having concerns about Father’s behavior during the January 5th exchange, the [c]ourt
cannot find, based on the limited information before it, that there is a pattern of aggressive
behavior.” With regard to the January 5, 2022 incident, the trial court’s ruling ignores the
following testimony given by Father at the final hearing:
Q: Do you think it’s appropriate for a 2-year-old child to hear cuss
words?
[FATHER]: Everyone says bad words.
Q: That wasn’t my question, my question is do you feel it is appropriate
to use inappropriate language in front of a 2-year-old?
[FATHER]: Probably not.
Q: But you choose to do it anyway?
[FATHER]: I do.
Here, Father is acknowledging using “cuss words” in front of the child and admits that it is
“probably not” appropriate to use that language in front of the child, but that he chooses to do it
anyway. The use of curse words can be seen as verbally aggressive behavior and Father admitted
that he engages in that behavior in front of the child. Therefore, it was unreasonable for the trial
court to discount that behavior in concluding that Father has not demonstrated a pattern of
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aggressive behavior because that finding is unsupported by Father’s own testimony. See Lykins v.
Lykins, 12th Dist. Clermont Nos. CA2017-06-058, CA2017-06-032, 2018-Ohio-2144, ¶ 27
(Husband’s “unbecoming, aggressive behavior” included cursing at guardian ad litem.); In re:
L.R.B, 2d Dist. Montgomery 28826, 2020-Ohio-6642, ¶ 39, 65 (Mother’s aggressive behavior
towards MCCS staff included cursing.); State v. Corbin, 12th Dist. Fayette No. CA2010-01-001,
2010-Ohio-3819, ¶ 53 (“[A] male * * * was seen exhibiting “very violent behavior, aggressive
behavior” by “yelling, cussing, screaming at a female[.]”).
{¶20} Additionally, the trial court stated that Father has support persons available to him
nearby that “will provide the child with additional support and stability[,]” noting that “[t]here are
difficulties in being a single parent.” However, the trial court unreasonably ignored Mother’s
testimony that she planned to move into her father’s home from her apartment, potentially
providing the same support for Mother.
{¶21} Based on this record, the trial court: (1) incorrectly concluded that Father was the
primary caretaker of the child; (2) ignored the magistrate’s concerns regarding sleeping
arrangements; (3) imputed concerns for Mother’s mental health despite a lack of evidence in the
record that any depression on Mother’s part interfered with her ability to care for, or affected her
relationship with, the child; (4) ignored Father’s own testimony regarding aggressive behavior;
and (5) emphasized Father’s support system without acknowledging Mother’s support system.
Based on the evidence present in this record, “the court’s attitude [was] unreasonable” when it
sustained Father’s objections. (Emphasis added) Blakemore at 219. Therefore, we conclude the
trial court abused its discretion in sustaining Father’s objections when, pursuant to Juv.R. 40(D),
the magistrate properly determined the factual issues and appropriately applied the law.
{¶22} Mother’s first assignment of error is sustained.
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ASSIGNMENT OF ERROR II
THE TRIAL COURT ERRED BY FINDING IT WAS IN K.M.’S BEST
INTEREST FOR FATHER TO BE NAMED HER SOLE LEGAL
CUSTODIAN AND SUCH FINDING WAS AGAINST THE MANIFEST
WEIGHT OF THE EVIDENCE.
ASSIGNMENT OF ERROR III
THE TRIAL COURT ABUSED ITS DISCRETION IN ESTABLISHING
CHILD SUPPORT AND FAILING TO DEVIATE MOTHER’S CHILD
SUPPORT OBLIGATION TO $0.00.
{¶23} Given this Court’s resolution of the first assignment of error, we decline to address
the second assignment of error as it has been rendered moot and we decline to address the third
assignment of error as it is premature.
III.
{¶24} Mother’s first assignment of error is sustained. Her second assignment of error is
moot and her third assignment of error is premature. The judgment of the Wayne County Court
of Common Pleas, Juvenile Division is reversed and the cause is remanded for the court to conduct
an independent review of all of the evidence as required by Juv.R. 40(D)(4)(d).
Judgment reversed
and cause remanded.
There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common
Pleas, County of Wayne, State of Ohio, to carry this judgment into execution. A certified copy of
this journal entry shall constitute the mandate, pursuant to App.R. 27.
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Immediately upon the filing hereof, this document shall constitute the journal entry of
judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the period
for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is instructed to
mail a notice of entry of this judgment to the parties and to make a notation of the mailing in the
docket, pursuant to App.R. 30.
Costs taxed to Appellee.
BETTY SUTTON
FOR THE COURT
FLAGG LANZINGER, J.
CONCURS.
HENSAL, J.
DISSENTING.
{¶25} This is a close case involving the best interests of the child. Under the
circumstances, I believe that the majority opinion misapplies the abuse-of-discretion standard, and
I respectfully dissent.
{¶26} Best-interests determinations under Revised Code Section 3109.04(F) are
committed to the discretion of the trial court, which must consider the factors listed in the statute
and all other relevant factors in reaching its decision. Armbruster v. Armbruster, 9th Dist. Lorain
No. 19CA011531, 2020-Ohio-3833, ¶ 5-6. In Blakemore v. Blakemore, 5 Ohio St.3d 217 (1983),
the Supreme Court of Ohio explained the standard to be used in our review of a decision committed
to the discretion of the trial court. The Supreme Court wrote that an abuse of discretion is
something more than an error of law or in the exercise of judgment, noting that “it implies that the
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court’s attitude is unreasonable, arbitrary or unconscionable.” (Emphasis added.). Id. at 219. A
court of appeals must not substitute its judgment for that of the trial court. Id. Although Blakemore
is often cited as the general standard for reviewing discretionary decisions, the Supreme Court has
provided additional guidance about the nature of an abuse of discretion:
Stated differently, an abuse of discretion involves more than a difference in opinion:
the “‘term discretion itself involves the idea of choice, of an exercise of the will, of
a determination made between competing considerations.’” State v. Jenkins, 15
Ohio St.3d 164, 222 (1984), quoting Spalding v. Spalding, 355 Mich. 382, 384
(1959). For a court of appeals to reach an abuse-of-discretion determination, the
trial court’s judgment must be so profoundly and wholly violative of fact and reason
that “‘it evidences not the exercise of will but perversity of will, not the exercise of
judgment but defiance thereof, not the exercise of reason but rather of passion or
bias.’” Id., quoting Spalding at 384-385.
State v. Weaver, 171 Ohio St.3d 429, 2022-Ohio-4371, ¶ 24. In a close case, therefore, this Court
should be reluctant to find an abuse of discretion even if we disagree with the conclusion reached
by the trial court. See State ex rel. Walker v. Husted, 144 Ohio St.3d 361, 2015-Ohio-3749, ¶ 18.
{¶27} The record in this case established that Mother and Father are both capable and
loving parents. In fact, each testified about the other to that effect. Undoubtedly, Mother and
Father have experienced difficulties in communicating since their romantic relationship ended, but
I cannot agree that the aspects of the trial court’s decision identified by the majority amount to an
abuse of discretion. This is, therefore, a close case in which the trial court exercised its discretion
to allocate parental rights and responsibilities with consideration of the factors in Section
3109.04(F). It is inappropriate for this Court to substitute its judgment for that of the trial court
when our analysis amounts to a difference of opinion regarding the outcome. See Weaver at ¶ 24;
Blakemore at 219. For this reason, I respectfully dissent.
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APPEARANCES:
JESSICA M. TREASE, Attorney at Law, for Appellant.
DANIELLE C. KULIK, Attorney at Law, for Appellee.