Lee v. Starr ( 2020 )

[Cite as Lee v. Starr, 2020-Ohio-1649.]
COURT OF APPEALS
LICKING COUNTY, OHIO
FIFTH APPELLATE DISTRICT
CODY T. LEE JUDGES:
Hon. John W. Wise, P.J.
Appellee Hon. Patricia A. Delaney, J.
Hon. Earle E. Wise, Jr., J.
-vs-
Case No. 2019 CA 00094
LEAH MARIE LEILANI STARR
Appellant OPINION
CHARACTER OF PROCEEDING: Civil Appeal from the Court of Common
Pleas, Domestic Relations Division, Case
No. 17 DR 1251
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: April 22, 2020
APPEARANCES:
For Appellee For Appellant
RANDY L. HAPPENEY COURTNEY A. ZOLLARS
DAGGER, JOHNSTON, MILLER, THE NIGH LAW GROUP, LLC
OGILVIE & HAMPSON 115 West Main Street
144 East Main Street, P. O. Box 667 Suite 300(A)
Lancaster, Ohio 43130 Columbus, Ohio 43215
GUARDIAN AD LITEM
MELINDA SEEDS
195 East Broad Street
Pataskala, Ohio 43062
Licking County, Case No. 2019 CA 00094 2
Wise, John, P. J.
{¶1} Defendant-Appellant Leah Marie Leilani Starr appeals the August 23, 2019,
decision of the Licking County Court of Common Pleas determining parentage and
allocation of parental rights and responsibilities.
{¶2} Plaintiff-Appellee is Cody T. Lee.
STATEMENT OF THE FACTS AND CASE
{¶3} The relevant facts and procedural history are as follows:
{¶4} Appellant Leah Starr and Appellee Cody Lee are the parents of the minor
child Irelynn Marie Starr-Lee (DOB: October 30, 2016). The parties met while they were
both working at the Dr. Pepper Bottling/Distribution plant located in Columbus, Ohio. (T.
at 17-18). Appellee testified that the parties were actually broken up at the time Appellant
disclosed she was pregnant, but Appellee participated in the pregnancy. (T. at 27-29).
Just prior to the birth of the minor child, Appellee moved in with Appellant into an
apartment in which she and her older child, Jacob, had just recently moved. (T. at 28).
{¶5} The child’s birth certificate listed her name as Irelynn Marie Starr-Lee.
However, no Acknowledgement of Paternity was ever completed.
{¶6} Appellee and Appellant resided together from just prior to the birth of the
child until October 31 or November 1, 2017, when Appellee advised Appellant that he
was moving out of the apartment they shared. (T. at 30, 248).
{¶7} On November 7, 2017, Appellee filed a Complaint for Determination of
Parentage and Allocation of Parental Rights and Responsibilities, which was served on
Appellant on November 14, 2017.
Licking County, Case No. 2019 CA 00094 3
{¶8} On November 1, 2018, and November 2, 2018, Plaintiff’s Complaint for
Determination of Parentage and Allocation of Parental Rights and Responsibilities was
heard before a magistrate.
{¶9} At the hearing, the Magistrate heard the following testimony:
{¶10} Appellee testified that when Appellant was pregnant, he attended doctor’s
appointments with her and helped financially by paying for the appointments. (T. at 29).
He and Appellant also visited a couple of hospitals together prior to the child’s birth to
determine which hospital they preferred. Id. He was also present at the child’s birth. Id.
{¶11} Appellee testified that while he and Appellant were living together, Appellant
would not allow him to pick Irelynn up from daycare, take her anywhere, or do anything
with her by himself, without Appellant present. (T. at 32). He testified that the only one-
on-one time he was allowed with his child was playing with her in the apartment, but that
Appellant was also there in the apartment. Id.
{¶12} Appellee testified that he and Appellant attended approximately three or
four counseling sessions in the fall of 2017, not long before he moved out.
{¶13} Appellee testified that unbeknownst to him, upon advising Appellant that he
was moving out, she began making arrangements to move cross-country, to the state of
Washington, to reside with her mother. (T. at 39). She gave her employer two weeks’
notice on November 6, 2017, explaining that she had "another opportunity that is too hard
to pass up ... " (Appellee Ex. 17).
{¶14} Appellant admitted that she asked her employer not to disclose her
resignation because Appellee worked there. (T. at 401). She stated that her lawyer told
Licking County, Case No. 2019 CA 00094 4
her not to tell Appellee. (T. at 340). She testified that she did not notify Chris Boyce, the
father of her older child, Jacob, either. (T. at 339).
{¶15} Appellant in her testimony claimed that Appellee had an alcohol problem,
was a racist, was violent, was a bully, and that he did not know how to provide primary
care for the child because he had never done it. She also claimed that he showed a
photograph of her around work at Dr. Pepper in 2012, which resulted in her being shunned
for 5 years and ultimately caused her to resign her position there.
{¶16} The Magistrate also reviewed the Guardian ad Litem’s (GAL) Final Report
and heard the GAL’s testimony and recommendations.
{¶17} On April 2, 2019, the Magistrate's Decision was filed.
{¶18} The Magistrate found insufficient evidence to support Appellant’s claims
with regard to Appellee’s fitness. The Magistrate further found that Appellant prevented
Appellee from actively parenting the child outside of her direct supervision, and that
Appellee’s testimony with regard to this issue was more credible than Appellant’s
(Magistrate Dec. at 8). The Magistrate also found that Appellant actively took steps to
keep Appellee from learning that she intended to move the child to the state of
Washington. (Magistrate’s Dec. at 8-9).
{¶19} In response to concerns raised by Appellant, the Magistrate found the GAL
appeared to have performed a thorough investigation in this case and that she completed
her duties to an extent sufficient to allow her to make a reasoned and informed
recommendation. (Magistrate’s Dec. at 7). Additionally, the Magistrate found Appellant
failed to comply with the GAL’s requests for her to sign releases to allow her to speak
Licking County, Case No. 2019 CA 00094 5
with various professionals and further failed to send the GAL pictures of her residence as
requested. Id.
{¶20} The Magistrate found that Appellee was the parent most likely to encourage
the sharing of love and affection between the child and the other parent and to cooperate
and communicate with the other parent. (Magistrate’s Dec. at 9).
{¶21} Ultimately, the Magistrate found that it was not in the child’s best interest to
award sole custody to Appellant noting that she does not appear to understand how
important both parents are in a child’s life. Specifically, she does not appear to understand
that Appellee in this case is willing and able to be an active and loving parent and should
be given the opportunity to be one. Id.
{¶22} The Magistrate found that it was appropriate and in the child’s best interest
for Appellee to be named the sole legal custodian and residential parent.
{¶23} By Judgment Entry filed April 2, 2019, the trial court approved and adopted
the Magistrate’s Decision.
{¶24} On April 16, 2019, Appellant filed objections to the Magistrate’s Decision,
raising 16 objections. On the same date, Appellant also filed a Motion for Extension of
Time to Supplement Objection to Magistrate’s Decision once the transcript was
completed, which the court granted on April 17, 2019.
{¶25} On July 3, 2019, Appellant filed her Supplemental Objection to the
Magistrate’s Decision, raising 8 objections.
{¶26} On July 26, 2019, Appellee filed his Response to the Objections to the
Magistrate’s Decision.
Licking County, Case No. 2019 CA 00094 6
{¶27} On August 20, 2019, the trial court denied Appellant’s objections, and the
findings of fact and conclusions of law found within the April 2, 2019, Magistrate's
Decision were adopted by the trial court.
{¶28} By Judgment Entry filed August 23, 2019, the trial court made certain orders
including a parenting time schedule, healthcare, child support, etc. The trial court also
denied Appellee’s Motion for Contempt and approved and allowed the GAL’s bills.
{¶29} Appellant now appeals, raising the following assignments of error for review:
ASSIGNMENTS OF ERROR1
{¶30} “I. THE TRIAL COURT ERRED IN FINDING THAT APPELLANT'S
TESTIMONY WAS NOT CREDIBLE.
{¶31} “II. THE TRIAL COURT ERRED IN FINDING THAT EVIDENCE WAS
LACKING THAT DOMESTIC VIOLENCE OCCURRED BETWEEN THE PARTIES.
{¶32} “III. THE TRIAL COURT ERRED IN FINDING THAT APPELLEE'S
ALCOHOL CONSUMPTION DID NOT HAVE A NEGATIVE IMPACT ON THE MINOR
CHILD.
{¶33} “IV. THE TRIAL COURT ERRED IN FINDING THAT APPELLEE WAS
LIKELY TO HONOR AND FACILITATE VISITATION AND COMPANIONSHIP RIGHTS
OF THE APPELLANT AS THEY RELATE TO THE MINOR CHILD.
{¶34} “V. THE TRIAL COURT ERRED IN FINDING THAT APPELLANT HAD
UNCLEAN HANDS WHEN RAISING THE ISSUE ON OBJECTION THAT THE
1Appellant’s Assignments of Error were labeled a-h in her brief but have been re-
numbered I-VIII for purposes of this Opinion.
Licking County, Case No. 2019 CA 00094 7
GUARDIAN AD LITEM WAS BIASED AND SHOWED FAVORITISM TO THE
APPELLEE.
{¶35} “VI. THE TRIAL COURT ERRED IN FINDING THAT THE GUARDIAN AD
LITEM CONDUCTED A THOROUGH INVESTIGATION.
{¶36} “VII. THE TRIAL COURT ERRED IN FINDING THAT APPELLEE WAS THE
PARENT MOST LIKELY TO ENCOURAGE A LOVING RELATIONSHIP BETWEEN THE
CHILD AND THE PARENTS.
{¶37} “VIII. THE TRIAL COURT ERRED IN FINDING THAT IT WAS IN THE
MINOR CHILD'S BEST INTEREST FOR THE APPELLEE TO BE NAMED THE SOLE
LEGAL CUSTODIAN OF THE MINOR CHILD.”
Standard of Review
{¶38} Our standard of review in assessing the disposition of child custody matters
is that of abuse of discretion. Miller v. Miller, 37 Ohio St. 3d 71, 523 N.E.2d 846 (1988).
Furthermore, as an appellate court reviewing evidence in custody matters, we do not
function as fact finders; we neither weigh the evidence nor judge the credibility of the
witnesses. Our role is to determine whether there is relevant, competent, and credible
evidence upon which the fact finder could base his or her judgment. Dinger v. Dinger, 5th
Dist. Stark No. 2001 CA 00039, 2001-Ohio-1386, 2001 WL 1141268. The trial court 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.” Seasons Coal Co. v. Cleveland, 10 Ohio St. 3d 77, 461 N.E.2d 1273 (1984).
Deferential review in a child custody determination is especially crucial “where there may
Licking County, Case No. 2019 CA 00094 8
be much evidence by the parties' demeanor and attitude that does not translate to the
record well.” Davis v. Flickinger, 77 Ohio St. 3d 415, 674 N.E.2d 1159 (1997).
I., II., III.
{¶39} Appellant’s first three assignments of error all challenge the trial court’s
factual findings. We shall therefore address said assignments together.
{¶40} In assignments of error one, two and three, Appellant argues that the trial
court erred in finding that her testimony was not credible, and that there was a lack of
evidence as to her allegations of domestic violence and alcohol problems on the part of
Appellant. We disagree.
Credibility
{¶41} Appellant herein challenges the trial court’s finding “that the Mother’s
explanations as to why she had no choice but to move states away from the Father after
being served with his Complaint lacked credibility.” (Magistrate’s Dec. at 7).
{¶42} Upon review, we find that Appellant, when questioned stated that her
reasons for moving were financial. (T. at 373). She explained that Appellee was the
“breadwinner” and that after the break-up she was having difficulty paying her bills. (T. at
105, 375).
{¶43} Additionally, the Guardian ad Litem questioned statements or claims made
by Appellant such as a purported stay at a domestic violence shelter, medical issues
concerning the child and her Al-Anon sponsor. (T. at 392-407). Appellant either denied
making the statements or claimed there had been a miscommunication. (T. at 411). The
trial court found that many of these concerns could have been cleared up had Appellant
Licking County, Case No. 2019 CA 00094 9
signed a waiver permitting the GAL to speak with the counselor, the domestic violence
counsel or the Al-Anon counselor, but that she refused to do so. (T. at 411-412).
Domestic Violence
{¶44} Appellant contends that an incident occurred in the summer of 2017 wherein
Appellee allegedly blocked her vehicle by standing in front of it, and then the two of them
struggled over control of the car seat used to transport the child. (T. at 215-217, 357-358).
Appellant admitted that she did not call the police or anyone else for assistance. (T. at
221, 358-359, 361).
{¶45} Appellee denied that he tried to forcibly take the car seat from Appellant,
but admitted that he stood in front of her vehicle in an attempt to stop her from leaving
with the child. (T. at 98).
{¶46} The trial court found that there was conflicting evidence presented at the
hearing and no evidence of injuries or physical violence. (JE at 10).
Alcohol Usage
{¶47} Additionally, Appellant contends that the trial court erred in finding that
Appellee’s alcohol consumption negatively impacts the minor child. In support of her
contention, testimony was presented by two friends of Appellant who stated that they had
observed Appellant drinking alcohol at a Christmas party and at the child’s first birthday
party. (T. at 460, 446, 454). Appellant testified that she occasionally smelled alcohol on
Appellee’s breath. (T. at 212-213). Additionally, Appellant presented photographs
depicting two empty beer cans in the parties’ storage unit. (T. at 245, 247). Appellant
admitted that she did not believe Appellee had an alcohol problem while they were
together but became concerned after their break-up. (T. at 205, 343-344).
Licking County, Case No. 2019 CA 00094 10
{¶48} Appellee testified that he is social drinker and does not have an alcohol
problem. (T. at 49, 89-93). He further denied ever drinking alone. (T. at 93). He stated
that he has never been charged with any alcohol-related offenses and has never had any
alcohol-related issues with his employment. (T. at 48).
{¶49} As noted above, the trial court 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.” Seasons Coal Co. v. Cleveland, 10
Ohio St. 3d 77, 461 N.E.2d 1273 (1984). The credibility of the witnesses and the weight
to be given their testimony is primarily for the trier of fact. State v. DeHass (1967), 10
Ohio St. 2d 231, paragraph one of the syllabus. Our role is to determine whether there is
relevant, competent, and credible evidence upon which the fact finder could base his or
her judgment. Dinger v. Dinger, 5th Dist. Stark No. 2001 CA 00039, 2001-Ohio-1386,
2001 WL 1141268. Thus, we defer to the trial court's interpretation of the evidence as it
observed first-hand witnesses and their demeanor. Wright v. Wright, 5th Dist. Stark No.
2012CA00232, 2013-Ohio-4138, 2013 WL 5406795.
{¶50} Here, the magistrate heard the testimony of Appellant, Appellee and GAL
with regard to Appellant’s allegations and found that there was not sufficient evidence to
support her claims. Upon review, we find that the record supports the trial court’s findings,
and we will not disturb said findings on appeal.
{¶51} Appellant’s first, second and third assignments of error are overruled.
V., VI.
{¶52} In her fifth and sixth assignments of error, Appellant challenges the trial
court’s findings as to the testimony of the Guardian ad Litem.
Licking County, Case No. 2019 CA 00094 11
{¶53} Sup.R. 48(D) sets forth the responsibilities for GALs, and provides, in
pertinent part:
(1) A guardian ad litem shall represent the best interest of the child
for whom the guardian is appointed. Representation of best interest may be
inconsistent with the wishes of the child whose interest the guardian ad litem
represents.
(2) A guardian ad litem shall maintain independence, objectivity and
fairness as well as the appearance of fairness in dealings with parties and
professionals, both in and out of the courtroom and shall have no ex parte
communications with the court regarding the merits of the case.
***
(13) A guardian ad litem shall make reasonable efforts to become
informed about the facts of the case and to contact all parties. In order to
provide the court with relevant information and an informed
recommendation as to the child's best interest, a guardian ad litem shall, at
a minimum, do the following, unless impracticable or inadvisable because
of the age of the child or the specific circumstances of a particular case:
(a) Meet with and interview the child and observe the child with each
parent, foster parent, guardian or physical custodian and conduct at least
one interview with the child where none of these individuals is present;
(b) Visit the child at his or her residence in accordance with any
standards established by the court in which the guardian ad litem is
appointed;
Licking County, Case No. 2019 CA 00094 12
(c) Ascertain the wishes of the child;
(d) Meet with and interview the parties, foster parents and other
significant individuals who may have relevant knowledge regarding the
issues of the case;
(e) Review pleadings and other relevant court documents in the case
in which the guardian ad litem is appointed;
(f) Review criminal, civil, educational and administrative records
pertaining to the child and, if appropriate, to the child's family or to other
parties in the case;
(g) Interview school personnel, medical and mental health providers,
child protective services workers and relevant court personnel and obtain
copies of relevant records;
(h) Recommend that the court order psychological evaluations,
mental health and/or substance abuse assessments, or other evaluations
or tests of the parties as the guardian ad litem deems necessary or helpful
to the court; and
(i) Perform any other investigation necessary to make an informed
recommendation regarding the best interest of the child.
{¶54} Initially, Appellant argues the trial court erred in finding that she had unclean
hands to argue bias on the part of the GAL.
{¶55} Upon review, we find no error in the trial court’s findings that Appellant failed
to raise any concerns about possible bias on the part of the GAL until after the Magistrate
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ruled in this matter, thereby denying the trier of fact the opportunity to address the issue
prior to hearing or a decision being rendered. State v. Peagler, 76 Ohio St. 3d 496, 499.
{¶56} Courts have recognized that the allegation of bias (or prejudice) in a
guardian ad litem is not accurate when it reflects the guardian ad litem fulfilling his or her
duty to his ward. See, e.g., MacFarlane v. MacFarlane, Eighth District, Cuyahoga App.
No. 86835, 2006-0hio-3155 at 137. This Court rejected an assignment of error that the
GAL was biased noting that Appellant raised no objections to the GAL's behavior until the
final recommendation. Globokar v. Globokar, 5th District, Stark App. No. 2009-CA-00138,
2010-0hio-1737.
{¶57} Disagreement with the court's ultimate determination of custody does not
demonstrate bias, prejudice, or improper action on the part of the GAL. See King v. King,
9th Dist. Medina No. 12CA0060–M, 2013-Ohio-3070, 2013 WL 3534242, ¶ 9.
{¶58} We further find no personal bias or prejudice on the part of the GAL based
on details of her own personal history she recounted during her testimony. If the views of
the guardian ad litem interfere with the performance of his or her duties or with the regular
conduct of proceedings, then error will occur. We do not find that to be the case here as
the guardian ad litem satisfied her duty pursuant to statute. We find nothing to show that
the GAL’s personal history affected the basic fairness, integrity, or public reputation of the
judicial process.
{¶59} Secondly, Appellant challenges the trial court’s finding that the GAL
conducted a thorough investigation.
{¶60} The trial court found that the GAL spoke with minor child and inspected the
home of the Appellee, (T. at 477-478). The GAL also spoke with Appellant for a number
Licking County, Case No. 2019 CA 00094 14
of hours by telephone since she was out of state. (T. at 478-482). She also spoke with
the parties’ former counselor, and attempted to speak with Appellant’s Al-Anon sponsor
and domestic violence counselor. (T. at 489, 535, 545). The GAL also spoke with the
father of Appellant’s older child and a former guardian in a different case involving
Appellant. (T. at 482-483, 536, 538-540). She also spoke with Appellant’s former
employer, her friend April Davis, her father as well as Appellee’s parents. (T. at 536, 529,
483, 484, 531-532). She spoke with the child’s pediatricians in Ohio and Washington and
the child’s counselors in Washington and Ohio. (T. at 491-492, 500, 505-509).
Additionally, she observed the parents interact with the minor child. (T. at 492-493, 543-
544, 551-552).
{¶61} Further, Appellant failed to cooperate fully with the GAL by refusing to sign
waivers which would have allowed the GAL to interview additional witnesses in this
matter.
{¶62} Additionally, while the GAL admitted on cross-examination that she failed
to contact two witnesses, Kellee Heldman and Deborah Kemper, whose names were
submitted to her by Appellant, both of these witnesses were present at the hearing and
presented testimony.
{¶63} Based on the foregoing, we find no error in the trial court’s findings that the
GAL in this case conducted a thorough investigation.
{¶64} Moreover, it is important to recognize that a trial court is not bound by the
recommendation of the guardian ad litem. In re M.Z., 9th Dist. Lorain No. 11CA010104,
2012–Ohio–3194, ¶ 35; In re Andrew B., 6th Dist. Lucas No. L01–1440, 2002–Ohio–
3977, at ¶ 64; Roberts v. McGrady, 9th Dist. Summit No. 16986, at *4 (May 10, 1995)
Licking County, Case No. 2019 CA 00094 15
(concluding that because a guardian ad litem's report is not dispositive, but merely
evidence for the court's consideration, any unfair bias was harmless error). The trial court
determines a guardian ad litem's credibility and the weight to be given to his/her report.
The trial judge, as trier of fact, was entitled to believe or disbelieve the guardian ad litem's
testimony and to consider it in the context of all the evidence before the court.
{¶65} Appellant has failed to point to any portion of the trial court’s entry that
demonstrates that the trial judge erroneously relied on the testimony or the report of the
guardian ad litem. Nor does she point to any particular finding that is unreasonable or
otherwise unsupported by the evidence because of improper reliance on the testimony of
the guardian ad litem.
{¶66} Appellant’s fifth and sixth assignments of error are overruled.
IV. VII., VIII.
{¶67} In her fourth, seventh and eight assignments of error, Appellant argues the
trial court erred in designating Appellee residential parent of the minor child.
{¶68} Appellant submits the trial court abused its discretion by failing to base its
decision regarding the allocation of parental rights on the factors set forth in R.C.
3109.04(F)(1).
{¶69} Where an allocation of parental rights and responsibilities is supported by a
“substantial amount of credible and competent evidence” the decision will not be
reversed. See, Davis v. Flickinger (1997), 77 Ohio St. 3d 415, 418, quoting Bechtol v.
Bechtol (1990), 49 Ohio St. 3d 21, syllabus. A trial court's judgment in custody matters
enjoys a presumption of correctness. Butler v. Butler (1995), 107 Ohio App. 3d 633, 638.
Accordingly, a trial court has broad discretion when it decides the allocation of parental
Licking County, Case No. 2019 CA 00094 16
rights and responsibilities. Donovan v. Donovan (1996), 110 Ohio App. 3d 615, 618. We
will not disturb the decision of the trial court on appeal if said decision is supported by
some competent, credible evidence. Seasons Coal Co. v. Cleveland (1984), 10 Ohio
St.3d 77, 80. Absent an abuse of discretion, an appellate court will not reverse the custody
award of the trial court. An appellate court should not substitute its judgment for that of
the trial court. Trickey v. Trickey (1952), 158 Ohio St. 9.
Best Interest
{¶70} R.C. §3109.04(B)(1) governs initial custody awards and provides, in
pertinent part, “when making the allocation of the parental rights and responsibilities for
the care of the children under this section in an original proceeding * * * the court shall
take into account that which would be in the best interest of the children.”
{¶71} Because this action involved an original determination of custody of a child
of an unmarried mother, R.C. 3109.042 confers a default status on Appellant as the
residential parent until an order is issued by the trial court designating the residential
parent and legal guardian. Williams v. Tumblin, 5th Dist. Coshocton No. 2014CA0013,
2014–Ohio–4365. However, when making an initial custody determination of the child of
an unmarried mother, R.C. 3109.042 requires the court to treat each parent as standing
upon equal footing. Id. Under these circumstances, the trial court's custody determination
need only be based on the best interests of the child according to R.C. 3109.04(F). See
In re Cihon, 5th Dist. Guernsey No. 09 CA 00002, 2009–Ohio–5805.
{¶72} R.C. §3109.04(F) sets forth the factors to consider in determining the best
interests of the children in allocating parental rights and responsibilities generally, and
specifically as regarding shared parenting:
Licking County, Case No. 2019 CA 00094 17
(F)(1) In determining the best interest of a child pursuant to this
section, whether on an original decree allocating parental rights and
responsibilities for the care of children or a modification of a decree
allocating those rights and responsibilities, 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 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;
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(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 abusive or neglectful act that is the
basis of an adjudication; whether either parent or any member of the
household of either parent previously has been convicted of or 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 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 child or a 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.
Licking County, Case No. 2019 CA 00094 19
{¶73} Although Appellant provided contrary testimony to several of these factors,
we defer to the trial court's interpretation and weight of the evidence as it observed first-
hand witnesses and their demeanor. Wright v. Wright, 5th Dist. Stark No. 2012CA00232,
2013-Ohio-4138, 2013 WL 5406795.
{¶74} Upon review, we find no abuse of discretion in the trial court's conclusion it
was in the best interest to name Appellee the residential parent and legal custodian. The
trial court found that the magistrate in her decision thoroughly analyzed the factors and
the findings were supported by the record.
Honor and Facilitate Visitation and Companionship
Encourage Loving Relationship Between Child and Parent
{¶75} The magistrate found that while both parents “appear likely to honor and
facilitate visitation and companionship rights so long as the relevant orders are clear and
unambiguous”, she found “the Father is the parent most likely to encourage the sharing
of love and affection between the child and the other parent. (Magistrate’s Dec. at 5, 9).
{¶76} The Magistrate herein based her decision on Appellant’s actions in moving
out of state and failing to disclose to Appellee where she was living, requiring Appellant
to hire a private investigator. The trial court also found that even before she moved away,
Appellant’s actions appeared to discourage contact between Appellee and the child. (T.
at 32-33, 51, 74; Aug. 23, 2019, JE at 16). The trial court further found that Appellant’s
actions resulted in Appellee having no contact with the child for approximately nine
months and that contact only occurred after temporary orders were issued. (T. at 39-40;
Aug. 23, 2019, JE at 16).
Licking County, Case No. 2019 CA 00094 20
{¶77} Upon review, we find no abuse of discretion in the trial court's conclusion
that Appellee was the parent most likely to honor and facilitate visitation and
companionship and to encourage a loving relationship between the child and the other
parent. The trial court's decision thoroughly analyzed the factors, and the findings were
supported by the record.
{¶78} Appellant's fourth, seventh and eighth assignments of error are overruled.
{¶79} Accordingly, the judgment of the Licking County Domestic Relations Court,
Licking County, Ohio, is affirmed.
By: Wise, John, P. J.
Delaney, J., and
Wise, Earle, J., concur.
___________________________________
HON. JOHN W. WISE
___________________________________
HON. PATRICIA A. DELANEY
___________________________________
HON. EARLE E. WISE, JR.
JWW/d 0417
Licking County, Case No. 2019 CA 00094 21
IN THE COURT OF APPEALS FOR LICKING COUNTY, OHIO
FIFTH APPELLATE DISTRICT
CODY T. LEE :
:
Appellee :
:
-vs- : JUDGMENT ENTRY
:
LEAH MARIE LEILANI STARR :
:
Appellant : Case No. 2019 CA 00094
For the reasons stated in our accompanying Memorandum-Opinion, the judgment
of the Court of Common Pleas, Domestic Relations Division, Licking County, Ohio, is
affirmed.
Costs assessed to Appellant.
___________________________________
HON. JOHN W. WISE
___________________________________
HON. PATRICIA A. DELANEY
___________________________________
HON. EARLE E. WISE, JR.