Sheridan v. Hagglund , 2014 Ohio 4031 ( 2014 )

[Cite as Sheridan v. Hagglund, 2014-Ohio-4031.]
IN THE COURT OF APPEALS OF OHIO
FOURTH APPELLATE DISTRICT
MEIGS COUNTY
JOY J. SHERIDAN, :
:
Plaintiff-Appellee, : Case No. 13CA6
:
vs. :
: DECISION AND JUDGMENT
NICHOLAS HAGGLUND, : ENTRY
:
Defendant-Appellant. : Released: 09/10/14
APPEARANCES:
K. Robert Toy, Toy Law Office, Athens, Ohio, for Appellant.
Joy J. Sheridan, Appellee1
McFarland, J.
{¶1} Appellant Nicholas Hagglund appeals the trial court’s judgment entry
denying his motion to be designated the residential parent of the minor child we
shall refer to as “I. H.” for purposes of this opinion, and further denying
Appellant’s motion for contempt filed May 1, 2012. Appellant assigns the
following errors for our review:
“THE TRIAL COURT ERRED WHEN IT FAILED TO FIND
APPELLEE IN CONTEMPT WHEN SHE ADMITTED TO
DENYING PHONE VISITATION WITH THE MINOR CHILD
HEREIN FOR THREE MONTHS.
1
Appellee has made no formal appearance in this matter on appeal.
Meigs App. No. 13CA6 2
“THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT
REFUSED TO REALLOCATE PARENTAL RIGHTS”
{¶2} Upon review of the record, we find: (1) the trial court did not err when
it failed to find Appellee in contempt; and, (2) the trial court did not abuse its
discretion when it denied Appellant’s motion to be named the residential parent of
the minor child. Accordingly, both assignments of error are without merit and are
hereby overruled. The judgment of the trial court is affirmed.
FACTS
{¶3} Appellee has not filed a brief in this matter. App.R. 18(C) provides in
pertinent part:
“If an appellee fails to file the appellee’s brief within the time frame
provided by this rule, or within the time as extended, the appellee will
not be heard at oral argument except by permission of the court upon
a showing of good cause submitted in writing prior to argument; and
in determining the appeal, the court may accept the appellant’s
statement of the facts and issues as correct and reverse the judgment if
appellant’s brief reasonably appears to sustain such action.”
{¶4} The parties were divorced in 2009. Appellee was designated
residential parent of the minor child in the final agreed judgment entry filed
September 15, 2009.
{¶5} On January 26, 2010, Appellee notified the court that she intended to
move to South Carolina. Appellant requested a hearing on the issue of Appellee’s
relocation plans. On June 28, 2010, an agreed entry was filed which allowed
Appellee to relocate to South Carolina and remain residential parent of I. H. with
Meigs App. No. 13CA6 3
Appellant’s parenting time conforming to the court’s standard long-distance
parenting time schedule, plus an additional eight weeks in the summer at four week
intervals. The parties would alternate Thanksgiving and Christmas holiday
periods. It also provided that once I. H. was in school, the parties would loosely
follow this plan in conformance with her school schedule and the Thanksgiving
and Christmas holiday periods would be controlled by the calendar of the school
with the Appellant to have each and every spring break in accordance with the
school schedule.
{¶6} The entry also provided that the parent starting his or her parenting
time would be responsible for all travel time to and from the other parent’s home.
The entry also provided for no less than three phone calls per week with her
between 6:00 and 7:00 p.m. Monday, Wednesday, and Friday.
{¶7} In November 2010, Appellant filed a motion to reallocate the status of
residential parent because Appellee had moved to the State of Washington instead
of South Carolina, as contemplated by the parties. Mediation was attempted, but
was not successful and a hearing was held on the issues on October 24, 2011.
{¶8} After the October 24, 2011 hearing, and while awaiting the decision of
the trial court, the parties agreed to a “three month on- three month off” visitation
schedule due to the expense of flying between Ohio and Washington. Appellant
had I. H. from his Christmas vacation until March 2012. Appellee had her from
Meigs App. No. 13CA6 4
March 2012 through June 2012. This arrangement lasted until Christmas vacation
of 2012.
{¶9} At Christmas vacation 2012, the parties again agreed to split the
visitation equally with Appellant getting the first half of the year from his
Christmas vacation visitation until June 20, 2013. This informal agreement was
not ratified by the parties, since the agreement at mediation was not signed by
Appellee. The parties agreed to the “six months on-six months off” schedule, since
they did not know who would be named the residential parent for school purposes.
{¶10} On January 26, 2012, the court issued findings of fact and
conclusions of law. The court denied Appellant’s motion to reallocate the status of
residential parent and the court modified Appellant’s parenting time, in part, as
follows:
A. Defendant have parenting time with the child every year at
Christmas and spring break;
B. Defendant to have the entire school summer break each
year;
C. Each parent would be allowed to visit the child in the other
parent’s home town with 48 hours’ notice. Each parent to have
one phone visit each week on Wednesday at 7:00 p.m. with the
visit to include video communication over the internet.
The issue of child support was not determined. The January 26, 2012 findings of
fact and conclusions of law was couched in terms of specific orders, it was not
titled a judgment entry of the findings of fact and conclusions of law.
Meigs App. No. 13CA6 5
{¶11} On May 1, 2012, Appellant filed a motion in contempt alleging
Appellee had denied Appellant phone contact as required pursuant to court order
and that Appellee took the tax exemption for the year 2011, which was to be
Appellant’s exemption year. On June 12, 2012, the issue was referred to
mediation. Although the parties had reached agreement at mediation, Appellee
refused to sign the document and the court refused to accept it as an agreed entry.
{¶12} On March 25, 2013, Appellant filed a motion to reallocate the status
of residential parent. The court heard the evidence on a motion for contempt on
May 1, 2012 and the motion of reallocation of parental rights was heard on June
19, 2013.
{¶13} To summarize, at the June 19, 2013 hearing, Appellee testified she is
remarried. Her husband is an unemployed student, age 35, working on his
bachelor’s degree. The couple lived in a two-bedroom apartment. Appellee was
pregnant. She was employed by a janitorial service and earned $11.00 an hour.
{¶14} Appellant testified he resides in Parma, Ohio, works as a chemical
engineer, and earns $74,000.00. He is remarried and his new spouse is pregnant.
Appellant introduced pictures of his leased, 4-bedroom home and noted I. H. had
her own bedroom. The home was less than one mile from the school I. H. would
attend. The school system was rated “Excellent” and would have the most
opportunities for I. H.
Meigs App. No. 13CA6 6
{¶15} Appellant also testified Appellee met her new spouse on the internet
and moved to the State of Washington, where there are no other close family
members on Appellee’s side of the family. Appellant knows nothing about the
new step-family. He testified Appellee’s new husband told him in an email he’d
like to “kick his ass,” and has screamed at him over the phone. Appellant testified
he does not like the idea of his child in a school he knows nothing about, in
Washington, over 3,000 miles away.
{¶16} A decision was entered on both motions on June 27, 2013. In that
decision the court did not find Appellee in contempt and did not change the
residential parenting status from Appellee.
{¶17} Appellant has filed a timely appeal.
{¶18} Where relevant, additional facts will be set forth below.
ASSIGNMENT OF ERROR ONE
I. “THE TRIAL COURT ERRED WHEN IT FAILED TO FIND
APPELLEE IN CONTEMPT WHEN SHE ADMITTED TO
DENYING PHONE VISITATION WITH THE MINOR CHILD
HEREIN FOR THREE MONTHS.”
STANDARD OF REVIEW
{¶19} “This court reviews a finding of civil contempt under the abuse of
discretion standard.” Clyburn v. Gregg, 4th Dist. Ross No. 11CA3211, 2011-Ohio-
5239, ¶52, quoting Lindsey v. Lindsey, 4th Dist. Scioto No. 06CA3113, 2007-
Ohio-3803, at ¶18. See, also, State ex rel. Celebrezze v. Gibbs, 60 Ohio St. 3d 69,
Meigs App. No. 13CA6 7
75, 573 N.E.2d 62 (1991); State ex rel. Ventrone v. Birkel, 65 Ohio St. 2d 10, 11,
417 N.E.2d 1249 (1981); McCleese v. Clemons, 4th Dist. Scioto No. 05CA3016,
2006-Ohio-3011, at ¶15.
LEGAL ANALYSIS
{¶20} Contempt may be classified as either civil or criminal depending on
the court’s underlying rationale and the penalty imposed. Clyburn v. Gregg, supra,
at ¶50; Denovchek v. Bd. of Trumbull Cty. Commrs.,36 Ohio St.3d 14, 16, 520
N.E.2d 1362 (1988). Civil contempt orders seek to coerce compliance with the
court’s orders while criminal orders punish the party who offends the court. See,
id.; Brown v. Executive 200, Inc., 64 Ohio St. 2d 250, 253-254, 416 N.E.2d 610
(1980). “A finding of civil contempt does not require proof of purposeful, willing,
or intentional violation of a trial court’s prior order.” Clyburn, supra, quoting
Townsend v. Townsend, 4th Dist. Lawrence No. 08CA9, 2008-Ohio-6701, at ¶27,
citing Pugh v. Pugh, 15 Ohio St. 3d 136, 140, 472 N.E.2d 1085 (1984). “[U]nlike
civil contempt, criminal contempt requires proof of a purposeful, willing, or
intentional violation of a trial court’s order.” Clyburn, supra, quoting Delawder v.
Dodson, 4th Dist. Lawrence No. 02CA27, 2003-Ohio-2092, at ¶10, citing Carroll
v. Detty, 113 Ohio App. 3d 708, 711, 681 N.E.2d 1383 (1996). In addition, the
burdens of proof differ for the two types of contempt. For civil contempt, a trial
court needs to find that an alleged contemnor has violated a court order by clear
Meigs App. No. 13CA6 8
and convincing evidence, but the trial court needs to be convinced beyond a
reasonable doubt to convict a contemnor of criminal contempt. Clyburn, supra;
Delawder at ¶10.
{¶21} In the case sub judice, the January 26, 2012 findings of fact and
conclusions of law permitted Appellant to speak with his child on Wednesday
evenings at 7:00 p.m. every week. The motion for contempt filed on May 1, 2012,
alleged that Appellee had refused Appellant telephone contact with his daughter
for over five weeks in a row. Appellant points to Appellee’s admission, at the
hearing of the contempt matter on June 19, 2012, that she denied Appellant phone
visitation from March 2012 through June 21, 2012. Appellant argues since this
fact was not disputed, this lack of phone visitation violated the court’s findings of
fact and conclusions of law entered January 26, 2012, and provided clear and
convincing evidence to support a finding of contempt.
{¶22} The purpose of a civil contempt motion is to compel compliance with
a court’s order. Alessio v. Alessio, 10th Dist. Franklin No. 05AP-988, 2006-Ohio-
2447, ¶37; Natl. Equity Title Agency, Inc. v. Rivera, 147 Ohio App. 3d 246, 2001-
Ohio-7095, 770 N.E.2d 76, at ¶13. It is not to punish the disobedience. Id.,
Tomasik v. Tomaksik, 9th Dist. Summit No. 17822, 1997 WL 45055, *2. Thus,
when compliance with a court’s order has become moot, the contempt proceeding
is also moot. Alessio, supra; Rivera, supra; State ex rel. Corn v. Russo, 90 Ohio
Meigs App. No. 13CA6 9
St.3d 55, 555, 740 N.E.2d 265, (2001). In Alessio, Mrs. Alessio sought to hold Mr.
Alessio in contempt for a violation of an agreed interim order concerning his
parenting time. Given the temporary nature of the order, the magistrate terminated
it when Mr. Alessio was named the sole residential parent and legal custodian.
Mrs. Alessio did not appeal the termination of the interim order. The appellate
court held because the purpose of a contempt action is to compel compliance with
a court order, and because the interim order was no longer effective, compliance
with the order had become moot. Therefore, Mrs. Alessio’s contempt motion was
also found to be moot. Id., at 38.
{¶23} In Rivera, cited above, the court noted “[W]hen compliance with the
court’s order has become moot, as when the case has been settled, civil contempt
sanctions are no longer appropriate.” Id., at ¶13. In Rivera, a former employer
sought to hold a former employee, competitor, and its officers, shareholders, and
attorneys in contempt for violating orders not to violate the former employee’s
covenant not to compete. The common pleas court held some parties in civil
contempt, but refused to impose criminal contempt. The court of appeals held, in
part, that civil contempt sanctions became inappropriate after competitor ceased
operations and former employee became employed in a different industry. The
appellate court stated: “Under these circumstances, where the appellants were no
Meigs App. No. 13CA6 10
longer capable of further violation of the court’s injunction, civil contempt
sanctions served no further purpose and were inappropriate.” Id., at ¶13.
{¶24} In Huffer v. Huffer, 10th Dist. Franklin No. 09-AP574, 2010-Ohio-
1223, at ¶17, the appellate court observed: “It is well-established that the
settlement of a case that gave rise to a civil contempt sanction renders the contempt
proceeding moot because the case has come to an end.” Corn, 740 N.E.2d 265,
quoting Gompers v. Buck’s Stove & Range Co., 221 U.S. 418, 451-52, 31 S. Ct.
492 (1911). In Huffer, the parties settled their divorce action by executing an
agreed entry, thus rendering moot the question of enforcing a contempt finding.
Id., at ¶17.
{¶25} In Zupan v. Zupan, 5th Dist. Ashland No. 13-COA-006, 2013-Ohio-
2629, the parties were divorced in February 2012. In July 2012, Appellant filed a
motion seeking to hold appellee in contempt of court, in addition to another issue,
for moving and failing to notify Appellant of her address. The case proceeded to
an evidentiary hearing and the magistrate found Appellee was not in contempt and
further, Appellant knew where she lived. On appeal, Appellant argued the court
erred in adopting the magistrate’s decision because Appellee “indisputably” failed
to furnish the current address. The appellate court engaged in analysis regarding
failure to file a transcript of proceedings, and noted the review of the matter was
Meigs App. No. 13CA6 11
whether the trial court abused its discretion. The appellate court overruled the
assignment of error, holding as follows:
“The court found that pursuant to the terms of the decree, Local Rule
20 was attached for purposes of clarifying a parenting schedule should
the parties not be in agreement, not for the purpose of order appellee
to furnish appellant with an address. The court further noted appellant
had appellee’s address, and that he had sent her a text message to
request her address. We find no abuse of discretion in the court’s
decision that appellee was not in contempt of court.”
{¶26} In this case, the trial court’s June 27, 2013 judgment entry referenced
the contempt motion, in pertinent part, as follows:
“On May 1, 2012, the Defendant filed a Motion in Contempt
asserting Plaintiff had denied Defendant phone contact as
required and that Plaintiff took the tax exemption for the year
2011 which was to be Defendant’s year.
On June 12, 2012, the issue was referred to mediation.
Although an Agreed Journal Entry on Mediation was submitted
to the Court for approval, the entry noted that the Plaintiff had
refused to sign it. Accordingly, the Court refused to accept it as
an agreed entry.
***
Similarly, the Defendant asserts Plaintiff has violated the phone
provisions of the June 28, 2010 entry. However, again, as a
result of the October 24, 2011 hearing, the parenting times for
the parties was modified in the orders incorporated in the
January 26, 2010 filing by the Court.
The evidence presented at the hearing appears the parties have
informally deviated from any existing Court orders regarding
parenting times. Although the agreed mediation entry was not
Meigs App. No. 13CA6 12
accepted by the Court, it appears they have been complying
with the mediated agreement.
***
Similarly, the Court finds the Defendant has the burden of
presenting clear and convincing evidence to support a finding
of contempt against the Plaintiff. A review of the evidence
indicates it is insufficient to meet that standard and Defendant’s
Motion for a contempt finding filed May 1, 2012, is DENIED.”
{¶27} Considering the evidence presented, the trial court did not abuse its
discretion when it determined that Appellee was not in contempt based on her
admission. When Appellant was questioned as to whether there were times when
both parties had not called the child due to “certain life aspects,” he responded:
“Have, have there been a couple of times where I’ve had issues with travel and
stuff like that, like I said, yeah-.”2 Appellant was questioned as follows:
Q: * * * Have we had moments during our time, each of us
had had times with our daughter that we have had moments
where the calls have not been consistent; like once a week or
two (2) weeks or three (3) weeks? Have we had time periods of
that?
A: Yeah, because we call. We don’t have a strict I will call
this date and this time. We have an open. Yeah, so sometimes
it fluctuates, yeah.
Q: Okay.
2
Appellant specifically testified he had gone a couple of weeks without seeing his daughter, due to his remarriage,
going out of the country for a honeymoon, and Hurricane Sandy’s affect in the Parma area when they returned. He
testified while he was out of the country, he did not have cell reception and when he returned home, he didn’t have
electricity or functional internet for a time period. He also testified there were times where the plant where he
worked was on shut-down and he did not know when he would be able to call.
Meigs App. No. 13CA6 13
A: We don’t have a set day and time. So, yeah, I guess so.
{¶28} Although Appellee made the admission, when questioned about
“communication problems” at the hearing, Appellant also admitted “For the last
year, we have not had any communication issues.” The above testimony
demonstrates that the issue of the three months’ withheld has become moot. The
purpose of a civil contempt motion is to compel compliance and Appellant has
become compliant. The court’s entry, cited above, also notes the parties appear to
have been compliant with the mediated agreement, subsequent to June 12, 2012.
Appellant is now receiving his phone visitation, albeit pursuant to a flexible
schedule. As such, the trial court did not err in failing to find Appellee in
contempt. Due to the parties’ compliance to a mediated agreement, as well as
Appellee’s compliance, the issue of contempt as to the denied phone visitation for
the three months roughly between March and June 2012 has become moot.
Appellant’s assignment of error is not well-taken and is hereby overruled.
ASSIGNMENT OF ERROR TWO
II. “THE TRIAL COURT ABUSED ITS DISCRETION
WHEN IT REFUSED TO REALLOCATE PARENTAL
RIGHTS.”
STANDARD OF REVIEW
{¶29} We apply the same standard to a trial court’s decision to award a
party legal custody of a child that we apply to all child custody disputes-that is, we
Meigs App. No. 13CA6 14
afford the utmost deference to a trial court’s child custody decision. See In re E.W.,
4th Dist. Nos. 10CA18, 10CA19, 10CA20, 2011-Ohio-2123, ¶18, citing Miller v.
Miller, 37 Ohio St. 3d 71, 74, 523 N.E.2d 846 (1988). Consequently, absent an
abuse of discretion, a reviewing court will not reverse a trial court’s decision
regarding child custody matters. See, e.g. Bechtol v. Bechtol, 49 Ohio St. 3d 21, 550
N.E.2d 178, (1990), syllabus. Thus, when “an award of custody is being supported
by a substantial amount of credible and competent evidence, such an award will
not be reversed as being against the weight of the evidence by a reviewing court.”
Bechtol at syllabus; see also, Davis v. Flickinger, 77 Ohio St. 3d 415, 418, 674
N.E.2d 1159, (1997).
{¶30} In Davis, the court explained the abuse of discretion standard that
applies in custody proceedings:
“The reason for this standard of review is that the trial judge
has the best opportunity to view the demeanor, attitude, and
credibility of each witness, something that does not translate well on
the written page. As we stated in Seasons Coal Co. v. Cleveland,
(1984),10 Ohio St.3d 77, 80-81, 461 N.E.2d 1273, 1276-1277:
‘The underlying rationale of giving deference to the findings
of the trial court rests with the knowledge that the trial judge is best
able to view the witnesses and observe their demeanor, gestures and
voice inflections, and use these observations in weighing the
credibility of the proffered testimony.***
***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
Meigs App. No. 13CA6 15
opinion on credibility of witnesses and evidence is not. The
determination of credibility of testimony and evidence must not be
encroached upon by a reviewing tribunal, especially to the extent
where the appellate court relies on unchallenged, excluded evidence
in order to justify its reversal.’ This is even more crucial in a child
custody case, where there may be much evident in the parties’
demeanor and attitude that does not translate to the record well.”
Id. at 418-419.
{¶31} Thus, reviewing courts should afford great deference to trial court
custody decisions. Pater v. Pater, 63 Ohio St. 3d 393, 396, 588 N.E.2d 794 (1992).
A. LEGAL CUSTODY STANDARD
{¶32} Appellant asserts a change of circumstances between the parties is
something the trial court should have considered when determining who should be
designated the residential parent for school purposes. More specifically, Appellant
argues the minor child is now integrated into the home with Appellant and the
evidence at trial clearly demonstrated Appellant’s home’s home is a more stable
environment. The evidence further demonstrated the modification of residential
parent status was necessary to serve the best interest of the child. Before we
consider Appellant’s arguments, a review of the legal custody standard and the
statutory factors set forth in R.C. 3109.04(F)(1)is in order.
{¶33} In determining which of two parents would better meet a child’s best
interests, a trial court must follow R.C. 3109.04. Under the “best interests of the
child” standard of R.C. 3109.04(E), R.C. 3109.04(F)(1) requires a trial court to
consider all relevant factors, including, but not limited to:
Meigs App. No. 13CA6 16
(a) The wishes of the child’s parents regarding the child’s
care;
(b) If the court has interviewed the child in chambers pursuant
to division (B) of this section regarding the child’s wishes and
concerns as to the allocation of parental rights and responsibilities
concerning the child, 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;
(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 involving any act that resulted in a child being
an abused child or a neglected child; whether either parent, in a case
in which a child has been adjudicated an abused child or a neglected
child, previously has been determined to be the perpetrator of the
abuse or neglectful act that is the basis for the adjudication; whether
either parent or any member of the household of either parent
previously has been convicted or of pleaded guilty to a violation of
section 2919.25 of the Revised Code or a sexually oriented offense
involving a victim who at the time of the commission of the offense
was a member of the family or household that is the subject of the
current proceeding; whether either parent or any member of the
Meigs App. No. 13CA6 17
household of either parent previously has been convicted of or
pleaded guilty to any offense involving a victim who at the time of
the commission of the offense was a member of the family or
household that is the subject of the current proceeding and caused
physical harm to the victim in the commission of the offense; and
whether there is reason to believe that either parent has acted in a
manner resulting in a child being an abused or neglected child;
(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.
{¶34} In making his arguments, Appellant points out the differences
between the home environments the court had to choose between. Appellant
points out: (1) the minor child has become integrated into his home; (2) Appellant
is remarried and has close contacts with the child’s grandparents who live within
two-three hours; Appellant is able to be with the child Monday through Friday,
based upon a work schedule of 7:30 a.m. to 4:30 p.m. Appellant further points out,
by contrast: (1) Appellee’s employment takes her from the home from 5:00 p.m.
until 2:15 a.m. on school days; (2) Appellee was willfully denied phone visitation
for three months; and (3) Appellee’s new husband threatened Appellant.
{¶35} Appellant argues there was a change of circumstances from the
January 26, 2012 findings of fact and conclusions of law. He argues the parties
had entered into an equal time, informal, shared parenting arrangement. Appellant
Meigs App. No. 13CA6 18
had remarried and was living in Parma, Ohio, and the couple was expecting a
child. Appellant testified he worked from 7:30 a.m. to 4:30 p.m., approximately
20-25 minutes from home, and earned $74,000.00 a year as a chemical engineer.
There were relatives of the spouse who lived in the immediate vicinity and
Appellant’s parents lived 2-3 hours from Parma. Appellant provided pictures of
his home and the ranking of the school the child would attend. There was evidence
of a close relationship with the child. Appellant’s new wife testified she was a
stay-at-home mother and would assist in daily care for the I. H. She also has a son
approximately 11 months older than I. H. Appellant concluded this evidence
demonstrated a close relationship with the child and that her best interests would
be served by being in his custody during the school year.
{¶36} By contrast, Appellant argues the testimony presented by Appellee
shows that she moved to the State of Washington after meeting her husband on the
internet. Appellee’s husband is unemployed and working on a degree online,
hoping to become a family therapist. Appellant testified Appellee’s husband
threatened him at the initial meeting.
{¶37} Appellant further argued the testimony showed Appellee works in a
janitorial service and earns $11.00 an hour. Due to her work schedule, she would
be away from the child during crucial daytime hours. Appellee also admitted she
had no contact with close family members since 2011. The closest relative on
Meigs App. No. 13CA6 19
Appellee’s side of the family lived east of the Mississippi River, approximately
1,500 miles away.
{¶38} The trial court’s June 27, 2013 judgment entry states as follows:
“On March 25, 2013, the Defendant filed a Motion to reallocate
the status of residential parent. A hearing was set for June 5,
2013 but was continued to June 19, 2013. Defendant’s affidavit
accompanying the Motion asserts circumstance have changed
since the agreed entry of June 29, 2010; among the, the Plaintiff
moving to Washington.
However, that issue has been previously litigated in the October
24, 2011 hearing….
* * * Similarly, the Defendant asserted that a change of
circumstances existed due to the child entering school in
September, 2013. However, that exact same issue was before
the Court in the October 24, 2011 hearing as noted by the last
statement of the first paragraph three of the filing “Findings of
Fact and Conclusions of Law” which reads:
‘The sole issue now before the Court is, what should happen
regarding the designation of the residential parent after school
commences for the child which is anticipated for September,
2013.’
Based upon the foregoing, the Court finds that the Defendant
has failed to present a change of circumstances to warrant the
Court to designate him as the residential parent of the child.
Defendant’s Motion is DENIED.”
{¶39} We are not convinced that the trial court abused its discretion in
denying Appellant’s motion to designate him as the residential parent. As
referenced in the June 27, 2013 judgment entry, the January 26, 2012 Findings of
Fact and Conclusions of Law, signed by the trial court, indicates some of the same
Meigs App. No. 13CA6 20
issues were raised in the October 24, 2011 hearing. The entry makes note of the
same allegations of Appellee’s moving too often, creating an unstable environment
for the child, and not living in close proximity to her own relatives. The entry also
indicated the evidence demonstrated Appellant had also, in the past, changed
residences, failed to provide addresses, and shown erratic behavior. The points
raised in Appellant’s brief and at the June 19, 2013 hearing are the same issues
which have been previously litigated.
{¶40} We agree with the trial court that the same issues were raised by
Appellant in the October 24, 2011 hearing which was held for the purpose of
addressing the issue of residential parent designation for the commencement of
September 2013. Given that the trial court was in the best position to view the
witnesses, weigh their credibility, and make an obviously difficult decision, we
decline to find that the trial court erred by awarding custody to Appellee.3 We
again recognize that “child custody decisions involve some of the most difficult
and agonizing decisions that trial courts are required to decide, [and that] courts
must have wide latitude to consider all of the evidence….” Seymour v. Hampton,
4th Dist. Pike No. 11CA821, 2012-Ohio-5053, ¶28, quoting, In re E.W., at ¶19.
See, also, Davis,77 Ohio St.3d 418; Bragg v. Hatfield, 152 Ohio App. 3d 174,
2003-Ohio-1441, 787 N.E.2d,44, ¶24; Hinton v. Hinton, 4th Dist. No. 02CA54,
3
Appellant argues Appellee’s new husband has exhibited threatening behavior towards him at times. We do find
this troubling. However, without more evidence on this subject, we defer to the trial court’s observations of the
witnesses and evaluation of the evidence presented.
Meigs App. No. 13CA6 21
2003-Ohio-2785 at ¶9; Ferris v. Ferris, 4th Dist. No. 02CA4, 2003-Ohio-1284 at
¶20. Furthermore,
“We again emphasize the deference that we must accord trial court
decisions involving the custody of children. Choosing between
parents is not an easy task, especially when both are caring and loving
parents, as are both appellant and appellee. Unfortunately, when
parents separate courts must choose one parent and the decision may
rest upon slight differences of opinion regarding the better overall
environment for the child. Appellate courts are not well-suited to
make such decisions based upon a review of a cold record. Instead,
trial courts, where the evidence is heard and witnesses are evaluated,
are more aptly suited to make this determination. Thus, in the instant
case we decline to second-guess the trial court’s decision. Also, due
to the lack of findings of fact and conclusions of law we do not know
exactly how the trial court interpreted the evidence. Rather, because
some evidence exists to support the trial court’s decision, we presume
that it is correct.” Wilson v. Wilson, 4th Dist. Lawrence No.09CA1,
2009-Ohio-4978, ¶27, quoting Crites v. Dingus, 4th Dist. Athens No.
07CA38, 2008-Ohio-7039, at ¶19.4
{¶41} Given that the trial court was in the best position to view the
witnesses, weigh their credibility, and make an obviously difficult decision, we
decline to find that the trial court erred by awarding custody to Appellee.
Therefore, Appellant’s second assignment of error is also overruled.
JUDGMENT AFFIRMED.
4
In Wilson, supra, due to an absence of findings of fact and conclusions of law, this court presumed the regularity of
the trial court proceedings. Id., at ¶ 19. That discrepancy is obviously not an issue in the case sub judice.
Meigs App. No. 13CA6 22
JUDGMENT ENTRY
It is ordered that the JUDGMENT BE AFFIRMED and that costs be
assessed to Appellant.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing Meigs
County Common Pleas Court, Domestic Relations Division, to carry this judgment
into execution.
IF A STAY OF EXECUTION OF SENTENCE AND RELEASE UPON
BAIL HAS BEEN PREVIOUSLY GRANTED BY THE TRIAL COURT OR
THIS COURT, it is temporarily continued for a period not to exceed sixty days
upon the bail previously posted. The purpose of a continued stay is to allow
Appellant to file with the Supreme Court of Ohio an application for a stay during
the pendency of proceedings in that court. If a stay is continued by this entry, it
will terminate at the earlier of the expiration of the sixty day period, or the failure
of the Appellant to file a notice of appeal with the Supreme Court of Ohio in the
forty-five day appeal period pursuant to Rule II, Sec. 2 of the Rules of Practice of
the Supreme Court of Ohio. Additionally, if the Supreme Court of Ohio dismisses
the appeal prior to expiration of sixty days, the stay will terminate as of the date of
such dismissal.
A certified copy of this entry shall constitute the mandate pursuant to Rule
27 of the Rules of Appellate Procedure.
Hoover, J: Concurs in Judgment and Opinion.
Abele, P.J.: Concurs in Judgment and Opinion as to Assignment of Error I;
Dissents as to Assignment of Error II.
For the Court,
BY: ___________________________________
Matthew W. McFarland, Judge
NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a final
judgment entry and the time period for further appeal commences from the
date of filing with the clerk.