Oberlin v. Oberlin , 2011 Ohio 6245 ( 2011 )

[Cite as Oberlin v. Oberlin, 2011-Ohio-6245.]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT )
JESSE R. OBERLIN C.A. No. 25864
Appellant
v. APPEAL FROM JUDGMENT
ENTERED IN THE
ASHLEY M. OBERLIN COURT OF COMMON PLEAS
COUNTY OF SUMMIT, OHIO
Appellee CASE No. 2006 11 3813
DECISION AND JOURNAL ENTRY
Dated: December 7, 2011
WHITMORE, Judge.
{¶1} Plaintiff-Appellant, Jesse Oberlin (“Father”), appeals from the judgment of the
Summit County Court of Common Pleas, Domestic Relations Division, adopting a magistrate’s
decision to grant Defendant-Appellee, Ashley Oberlin aka Ashley Riley’s (“Mother”), motion
for the reallocation of parental rights and responsibilities. This Court affirms.
I
{¶2} Father and Mother were married on January 29, 2004 and had one child during
the marriage: M.O., born May 10, 2004. Mother left the marital residence in 2005 with M.O.
and moved to California. M.O. remained with Mother until January 2006 when Father brought
her to Ohio. Father filed for divorce on November 27, 2006, and the trial court issued a decree
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of divorce on August 28, 2008. Father was named the residential parent and legal custodian of
M.O., and Mother was ordered to pay child support.
{¶3} On December 4, 2008, Mother filed a motion for the reallocation of parental
rights and responsibilities based on a change in circumstances. Father sought to hold Mother in
contempt, citing her failure to pay her court ordered child support payments. A magistrate held a
hearing on both matters on July 14, 2009. Thereafter, the magistrate entered a decision in which
she found that a change of circumstances had occurred and that it was in M.O.’s best interest to
reallocate parental rights and responsibilities to Mother. The magistrate also determined that
Mother was in contempt because she had failed to pay child support. The trial court adopted the
magistrate’s decision the same day.
{¶4} Subsequently, Father filed objections to the magistrate’s decision. The trial court
overruled Father’s objections, and Father appealed. This Court dismissed the appeal, however,
as the trial court never independently entered judgment on the magistrate’s decision. Oberlin v.
Oberlin (Nov. 30, 2010), 9th Dist. No. 25667. The trial court then issued a judgment entry on
March 15, 2011. The court found Mother in contempt for failing to pay child support, but also
determined that a change in circumstances had occurred and it was in M.O.’s best interest to
name Mother her residential parent and legal custodian.
{¶5} Father now appeals from the trial court’s judgment and raises three assignments
of error for our review. Because the assignments of error are interrelated, we consolidate them
for purposes of our analysis.
II
Assignment of Error Number One
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“THE TRIAL COURT ERRED IN FINDING THAT A CHANGE OF
CIRCUMSTANCES OCCURRED WITH THE MINOR CHILD OR THE
RESIDENTIAL PARENT.”
Assignment of Error Number Two
“THE TRIAL COURT ERRED IN FINDING THAT IT WAS IN THE CHILD’S
BEST INTEREST FOR THE CHILD TO BE PLACED IN MOTHER’S
CUSTODY.”
Assignment of Error Number Three
“THE TRIAL COURT ERRED IN CHANGING CUSTODY OF THE CHILD
WHEN THE MOTHER WILLFULLY AND CONTINUOUSLY FAILED TO
PAY HER CHILD SUPPORT.”
{¶6} In his assignments of error, Father argues that the trial court erred by granting
Mother’s motion for the reallocation of parental rights and responsibilities. Specifically, he
argues that the court erred by finding that a change in circumstances occurred and that a
reallocation was in M.O.’s best interest. We disagree.
{¶7} This Court generally reviews a trial court’s action with respect to a magistrate’s
decision for an abuse of discretion. Fields v. Cloyd, 9th Dist. No. 24150, 2008-Ohio-5232, at ¶9.
“In so doing, we consider the trial court’s action with reference to the nature of the underlying
matter.” Tabatabai v. Tabatabai, 9th Dist. No. 08CA0049-M, 2009-Ohio-3139, at ¶18. Trial
courts have broad discretion in their allocation of parental rights and responsibilities. Graves v.
Graves, 9th Dist. No. 3242-M, 2002-Ohio-3740, at ¶31, citing Miller v. Miller (1988), 37 Ohio
St.3d 71, 74. “[A] trial court’s determination in custody matters ‘should be accorded the utmost
respect’ 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.’”
Baxter v. Baxter, 9th Dist. No. 10CA009927, 2011-Ohio-4034, at ¶6, quoting Miller, 37 Ohio
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St.3d at 74. Accordingly, “[c]ustody determinations will not be reversed on appeal absent an
abuse of discretion.” Baxter v. Baxter, 9th Dist. No. 10CA009927, 2011-Ohio-4034, at ¶6. An
abuse of discretion implies that “the court’s attitude is unreasonable, arbitrary or
unconscionable.” Blakemore v. Blakemore (1983), 5 Ohio St. 3d 217, 219. If, however, a litigant
challenges a particular factual finding of the trial court, this Court will review the trial court’s
factual conclusion for competent, credible evidence. Maxwell v. Maxwell, 9th Dist. No.
07CA0047, 2008-Ohio-1324, at ¶6. A determination of “whether a change in circumstances has
occurred so as to warrant a change in custody” is one that must be reviewed under an abuse of
discretion standard. Davis v. Flickinger (1997), 77 Ohio St. 3d 415, paragraphs one and two of
the syllabus.
“[A] court shall not modify a prior decree allocating parental rights and
responsibilities for the care of children unless it finds, based on facts that have
arisen since the prior decree or that were unknown to the court at the time of the
prior decree, that a change has occurred in the circumstances of the child, the
child’s residential parent, or either of the parents subject to a shared parenting
decree, and that the modification is necessary to serve the best interest of the
child.” R.C. 3109.04(E)(1)(a).
As such, “before a modification can be made pursuant to R.C. 3109.04(E)(1)(a), the trial court
must make a threshold determination that a change in circumstances has occurred.” Buttolph v.
Buttolph, 9th Dist. No. 09CA0003, 2009-Ohio-6909, at ¶11. Moreover, the requisite change of
circumstances “must be a change of substance, not a slight or inconsequential change.” Davis,
77 Ohio St. 3d at 418. The statute is intentionally designed to require a significant change in
order “to spare children from a constant tug of war between their parents who would file a
motion for change of custody each time the parent out of custody thought he or she could
provide the child a ‘better’ environment.” Id., quoting Wyss v. Wyss (1982), 3 Ohio App. 3d 412,
416.
5
{¶8} At the time of the parties’ divorce, Father resided in Ohio and Mother resided in
California. Mother left the marital residence in April 2005 and brought M.O. to California with
her. M.O. primarily resided with Mother until January 2006, although Father had periods of
visitation. In January 2006, Father brought M.O. to Ohio, where he lived with his parents. From
that point on, M.O. primarily resided with Father and had limited periods of visitation with
Mother.
{¶9} Father received an OVI in October 2006 and completed a three-day OVI program
while his mother took care of M.O. Father’s license was suspended for a six-month period as a
result of the OVI, but he was able to obtain driving privileges for purposes of caring for M.O.
Nancy Crawford, a Family Court Services Evaluator, prepared a report for the initial custody
determination and ultimately recommended that Father be awarded custody. Yet, the trial court
noted in the divorce decree that Crawford felt the case was “a close call.”
{¶10} Unbeknownst to the trial court or Mother, Father was arrested for a second OVI
on August 25, 2008, three days before the divorce decree issued. Father did not inform anyone
that the arrest occurred. When Mother later became aware of the pending OVI charge, she filed
her motion for reallocation. The trial court determined that Father’s second OVI constituted a
change in circumstances for purposes of R.C. 3109.04(E)(1)(a). Father argues that an OVI
charge, by itself, cannot constitute a change in circumstances. He avers that M.O. was in no way
affected by the charge and there is no evidence that the charge is a result of a larger alcohol
problem.
{¶11} At the hearing on Mother’s motion for reallocation, Crawford testified that she
once again prepared a report and recommendation for the court. Crawford acknowledged that
she recommended Father be awarded custody at the time of the divorce, but testified that her
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initial report included a recommendation that Mother seek custody in the event that Father was
charged with any further alcohol-related offenses. Crawford testified that, because Father
already had one OVI at the time of her initial evaluation and Mother resided a considerable
distance from M.O., she “had to put in some measure of assurances that this would not be a
repeat episode, being indicative of the fact that maybe he wasn’t being as responsible a parent as
he needed to be to be the custodial parent.” Crawford expressed her concern that a second OVI
might be indicative of a “possible pattern” for Father and that Father’s drinking might be a
greater concern than she had initially believed it to be or that he was willing to admit. Crawford
again stated that her recommendation was a “close decision,” but concluded that custody should
be reallocated to Mother in light of Father’s second OVI.
{¶12} Mother testified that she discovered Father had been arrested for another OVI
when M.O. told her over the phone that “Daddy got in trouble again and his car was taken.”
Father denied ever telling M.O. about his OVI. Father testified that M.O. was asleep at home
with her grandparents when he was stopped for speeding and found to be intoxicated. Father
acknowledged that he made a poor decision by choosing to drink and drive again after his first
OVI, but insisted that it was not part of a bigger problem. He further indicated that he planned to
serve the jail sentence associated with his OVI conviction when M.O. was visiting Mother, so
that she would not be present at the time of his incarceration. Father admitted that he did not
inform Mother or the court that he was arrested for a second OVI. Father testified that, while he
would not have lied about the OVI arrest if directly questioned, he did not want to volunteer that
information because he knew Mother would use it against him in the custody proceeding.
{¶13} The trial court determined that Father’s second OVI in a two-year period, which
occurred only three days before the divorce decree issued, constituted a change in circumstances.
7
Based on our review of the record, we cannot conclude that this decision amounted to an abuse
of discretion. See Davis, 77 Ohio St.3d at paragraphs one and two of the syllabus. Although
Father insisted that M.O. was unaware of his OVI, the trial court could have chosen to believe
Mother’s testimony that M.O. knew about it and told Mother, as it is unclear how Mother would
have discovered that information otherwise while residing in California. The court also could
have determined that M.O. was negatively affected by the information, as she told Mother that
Father was “in trouble again.” It is evident that Crawford, the Family Court Services Evaluator,
struggled with her custody recommendations to the court as, both times, she described her
decision as a “close” one. She indicated in her initial report that another alcohol-related charge
would be a triggering event for Mother to seek a change in custody. Moreover, at the
reallocation hearing she emphasized her concern that a second OVI was indicative of a larger
problem. Although Father testified at the hearing that he did not have a problem with alcohol
and would not drink and drive again, the trial court could have determined that Father’s
assertions were disingenuous, given that he purposely kept the fact of his arrest from Mother so
that she could not seek custody on that basis. The court also could have believed that Father did
have a problem with alcohol in light of the fact that he chose to leave his daughter at home and
operate his vehicle in excess of the speed limit, while intoxicated, in the midst of a heated
custody battle. See Holcomb v. Holcomb (Sept. 26, 2001), 9th Dist. No. 01CA007795, at *4-5.
The trial court determined that Father “exhibited poor judgment” and lacked “necessary insight
***, given what was at stake.”
{¶14} In addition to Father’s second OVI charge, there was testimony at the allocation
hearing that Father’s work schedule was set to change. Father testified that, while he worked
from 7:00 p.m. to 7:00 a.m. at the time of the divorce hearing, his new schedule would require
8
him to work from 7:00 a.m. to 7:00 p.m. Accordingly, Father planned to drive M.O. to day care
at approximately 6:30 a.m. and have his mother pick her up at 6:30 p.m., the time when the day
care closed. Father then would have to rely on his mother to take care of M.O. until his shift
ended at 7:00 p.m. M.O. also was about to begin kindergarten, so there would be a greater need
for stability in her schedule. Contrary to Father’s argument, his OVI charge was not the only
evidence of a change in circumstances presented at the reallocation hearing.
{¶15} The court, in exercising its discretion, determined that a change in circumstances
occurred here. Given the nature of the specific facts before us, we do not believe that the court
abused its discretion in reaching that conclusion. See Pryor v. Hooks, 9th Dist. No. 25294, 2010-
Ohio-6130, at ¶10 (noting that a change of circumstances determination must be made “on a case
by case basis, considering all of the surrounding circumstances unique to each case”). See, also,
Kirchhofer v. Kirchhofer, 9th Dist. No. 09CA0061, 2010-Ohio-3797, at ¶11-13. We next
consider whether the trial court abused its discretion by determining that a reallocation of
parental rights and responsibilities was in M.O.’s best interest.
{¶16} R.C. 3109.04(F)(1) governs best interest determinations with regard to the
reallocation of parental rights and responsibilities.
“[In determining what is in the child’s best interest,] the court shall consider all
relevant factors, including, but not limited to:
“(a) The wishes of the child’s parents regarding the child’s care;
“(b) If the court has interviewed the child in chambers ***, the wishes and
concerns of the child, as expressed to the court;
“(c) The child’s interaction and interrelationship with the child’s parents, siblings,
and any other person who may significantly affect the child’s best interest;
“(d) The child’s adjustment to the child’s home, school, and community;
“(e) The mental and physical health of all persons involved in the situation;
9
“(f) The parent more likely to honor and facilitate court-approved parenting time
rights or visitation and companionship rights;
“(g) Whether either parent has failed to make all child support payments,
including all arrearages, that are required of that parent pursuant to a child support
order under which that parent is an obligor;
“(h) Whether either parent or any member of the household of either parent
previously has been convicted of or pleaded guilty to any criminal offense ***;
“(i) Whether the residential parent or one of the parents subject to a shared
parenting decree has continuously and willfully denied the other parent’s right to
parenting time in accordance with an order of the court;
“(j) Whether either parent has established a residence, or is planning to establish a
residence, outside this state.” R.C. 3109.04(F)(1)(a)-(j).
Father does not challenge the weight of the evidence on any particular factor, but argues that the
court abused its discretion in its ultimate determination that a change of custody would be in
M.O.’s best interest.
{¶17} As previously noted, M.O. resided in California with Mother for almost the entire
first two years of her life and primarily resided with Father thereafter. M.O. visited Mother in
California on several occasions, however, and spoke with her regularly on the telephone. Mother
remarried in September 2008 and lived in a house with her new husband, who had shared
custody of his two children from a prior marriage. Mother testified that M.O. got along well
with her new husband and the children, who were several years older than she was. Mother
further testified that M.O. would attend the same school as the other children if M.O. were to
reside in California. See R.C. 3109.04(F)(1)(c).
{¶18} Crawford, the Family Court Services Evaluator, described Mother’s home in
California as “routine and consistent.” She testified that M.O. loved and enjoyed spending time
with both of her parents. Although Mother and Father did not get along well with each other,
there was no great concern that either one would fail to facilitate the companionship rights of the
10
other with regard to M.O. See R.C. 3109.04(F)(1)(f). Crawford acknowledged that M.O.
appeared to be happy, well-adjusted, and generally well-cared for in Father’s custody, but
recommended that Mother be given custody in light of Father’s second OVI. Crawford testified
that Father’s second OVI demonstrated poor judgment as a parent and that she was especially
concerned about it given that both Mother and Father had accused each other of alcohol and drug
abuse during the proceedings.
{¶19} Father continued to reside with his parents at the time of the reallocation hearing
and depended on them to help with M.O. due to his work schedule. Father testified that he did
not have any definitive plans to leave his parents’ residence in the near future. There was
testimony that a significant amount of Father’s family lived in the area, but no indication that
M.O. saw her extended family members at any time other than the holidays. See R.C.
3109.04(F)(1)(c)-(d). There was no testimony that M.O. had any important relationships with
anyone in Ohio outside of Father’s home. Id. Furthermore, because M.O. was just set to begin
kindergarten, she would have to adjust to a new school in either Ohio or California. Id.
{¶20} Father admitted that he made a mistake when he received his second OVI.
According to Father, he tried to be careful about drinking and driving on the night of his OVI
and thought he waited long enough between the time he consumed several beers and the time
that he drove. He acknowledged, however, that he was stopped for speeding and registered a
blood alcohol content of .13. Father insisted that he did not have a drinking problem and that
M.O. would not be affected by his OVI arrest because he did not tell her about it, he would try to
serve his jail sentence when she was with Mother, and he could obtain driving privileges to
transport her where she needed to go. Yet, Mother testified that M.O. was aware of the incident
11
and that she specifically told Mother that Father was “in trouble again.” There was no evidence
that Mother had any criminal record. See R.C. 3109.04(F)(1)(h).
{¶21} The trial court acknowledged that Mother had failed to pay the full amount of her
court-ordered child support payments, despite her ability to do so. See R.C. 3109.04(F)(1)(g). It
appears from Mother’s testimony that her paychecks were not being garnished in the correct
amount and Mother failed to have the error corrected. Yet, Mother continued to pay her portion
of M.O.’s health care at all times. More importantly, while the court described Mother’s failure
to pay her child support obligation in full as a matter of “considerable concern,” the court
determined that Mother’s failure to pay “d[id] not outweigh [F]ather’s misuse of alcohol.”
Taking into consideration all the evidence before it, the magistrate and trial court determined that
a change of custody was in M.O.’s best interest. We do not agree with Father’s assertion that the
court’s determination amounted to an abuse of discretion. See Baxter at ¶6.
{¶22} The trial court did not abuse its discretion by adopting the magistrate’s decision
and determining that: (1) a change of circumstances occurred; and (2) a reallocation of the
parties’ parental rights and responsibilities was in M.O.’s best interest. Father’s assignments of
error are overruled.
III
{¶23} Father’s assignments of error are overruled. The judgment of the Summit County
Court of Common Pleas, Domestic Relations Division, is affirmed.
Judgment affirmed.
There were reasonable grounds for this appeal.
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We order that a special mandate issue out of this Court, directing the Court of Common
Pleas, County of Summit, 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.
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(E). 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 Appellant.
BETH WHITMORE
FOR THE COURT
BELFANCE, P. J.
MOORE, J.
CONCUR
APPEARANCES:
CHANDRA M. MUSTER, Attorney at Law, for Appellant.
JOHN M. DOHNER, Attorney at Law, for Appellee.