B.S. v. M.M.

[Cite as B.S. v. M.M., 2021-Ohio-176.]
COURT OF APPEALS
STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT
B.S. : JUDGES:
:
: Hon. William B. Hoffman, P.J.
Plaintiff-Appellant : Hon. Patricia A. Delaney, J.
: Hon. Craig R. Baldwin, J.
-vs- :
: Case No. 2020 CA 00111
:
M.M. NKA L.G. :
:
:
Defendant-Appellee : OPINION
CHARACTER OF PROCEEDING: Appeal from the Stark County Court of
Common Pleas, Domestic Relations
Division, Case No. 2011DR00330
JUDGMENT: AFFIRMED
DATE OF JUDGMENT ENTRY: January 25, 2021
APPEARANCES:
For Plaintiff-Appellant: For Defendant-Appellee:
JEFFREY JAKMIDES TODD A. MAZZOLA
325 East Main Street LISA CAREY DEAN
Alliance, OH 44601 50 South Main Street, 10th Floor
Akron, OH 44308
Stark County, Case No. 2020 CA 00111 2
Delaney, J.
{¶1} Plaintiff-Appellant, B.S. appeals the July 14, 2020 judgment entry of the
Stark County Court of Common Pleas, Domestic Relations Division.
FACTS AND PROCEDURAL HISTORY
Divorce and Custody Determination
{¶2} Plaintiff-Appellant, B.S. (“Father”) and Defendant-Appellee, M.M. nka L.G.
(“Mother”) are the parents of two children, M.F.S. (born on January 15, 2003) and M.H.S.
(born on October 7, 2006). The parties were married on August 30, 2003. On March 17,
2011, Father filed a complaint for divorce against Mother. Pursuant to a Magistrate's
Order filed on April 6, 2011, Father was designated temporary residential parent of the
children and Mother was granted visitation.
{¶3} A trial was held on August 31, 2011 on the issue of custody of the children.
Neither party submitted a proposed plan for shared parenting. At the time of the trial,
M.F.S. was eight years old and M.H.S. was four years old. The Guardian Ad Litem
testified at the trial that she recommended that Father be designated the residential
parent for school purposes and that Mother have visitation.
{¶4} Pursuant to a Final Entry Decree of Divorce filed on September 26, 2011,
the trial court designated Father as the residential parent and legal custodian of the
children and granted Mother parenting time. Mother’s parenting time with the children was
Tuesdays and Thursdays from after school until 7:00 p.m., every other weekend and
alternate weeks during the summer school recess. In addition, the trial court ordered
parenting time during holidays and two weeks of vacation during summer recess. Mother
was ordered to pay child support.
Stark County, Case No. 2020 CA 00111 3
{¶5} Mother appealed the Final Entry Decree of Divorce to this Court in [S. v. S],
5th Dist. Stark No. 2011CA00240, 2012-Ohio-4148. She argued the trial court abused its
discretion when it designated Father as the residential parent and legal custodian of the
children. On September 10, 2012, we issued our decision affirming the Final Entry Decree
of Divorce.
Request for Reallocation of Parental Rights and Responsibilities
{¶6} Father and the children resided in Alliance, Ohio, located in Stark County.
They attended school within the Alliance City School District. Father and the children lived
in a rental duplex with paternal grandparents.
{¶7} Mother remarried in 2015 and had a child. She resided in a rental home in
Bath, Ohio, located in Summit County. Her residence was within the Revere Local School
District. She was self-employed as a photographer and her husband was the co-owner of
a local insurance agency in Fairlawn, Ohio.
{¶8} On August 14, 2019, Mother filed a motion for reallocation of parental rights
and responsibilities regarding M.H.S., who was 13 years old. At the time of the divorce
decree, the M.H.S. was four years old. In Mother’s affidavit attached to her motion to
reallocate parental rights and responsibilities, she averred that the child “has consistently
expressed her desire to live with me and attend school from my residence since last fall.”
She referred to an incident where M.H.S. refused to return to Father’s home until she was
removed by law enforcement, an incident of domestic violence where Father grabbed
M.H.S. by her hair, and that M.H.S. had made threats of suicide. Mother contended Father
had not addressed the issues or concerns for M.H.S.’s mental health. Mother stated it
Stark County, Case No. 2020 CA 00111 4
was in the best interest of M.H.S. for Mother to be named the residential parent and legal
custodian so Mother could address the child’s medical and mental health needs.
{¶9} The trial court appointed a Guardian ad Litem on September 11, 2019. The
GAL filed his 24-page report with the trial court on December 31, 2019. He recommended
the parents enter into a shared parenting plan where Mother would be the residential
parent of M.H.S. If a shared parenting plan was not an option, the GAL recommended
that Mother be named as the sole legal custodian of M.H.S.
{¶10} On October 2, 2019, Father filed a motion to show cause why Mother should
not be held in contempt for her failure to comply with the Final Decree of Divorce. Mother
was ordered to pay child support in the amount of $297.73 per month. Mother was
$18,671.59 in arrears to the Child Support Enforcement Agency and had not made over
one-half of the payments due. Father also argued Mother should be held in contempt for
her failure to return the children to Father after Mother’s weekend visitation on August 11,
2019.
{¶11} A hearing was held on the motion for reallocation of parental rights on
January 7, 2020. There is no transcript of the hearing in the record for this appeal. On
January 16, 2020, the trial court filed its findings of facts, conclusions of law, and decision.
The trial court denied the motion for reallocation of parental rights, finding no change in
circumstances. The trial court noted in is judgment entry that the testimony at the hearing
was consistent that M.H.S. expressed a desire to live with Mother, but neither party
requested the trial court to conduct an in-camera interview with M.H.S. (Finding of Fact
No. 11). The trial court concluded there was sufficient evidence to cause the court to
believe that the child “would prefer to live with her mother and attend school in Revere,
Stark County, Case No. 2020 CA 00111 5
however, the child's wishes is a best interest factor that cannot be analyzed until a change
of circumstances is established.” (Conclusion of Law No. 2). The trial court determined
there was no change in the circumstances of the child or the child's residential parent and
therefore it was precluded from considering the motion and the factors surrounding the
child's best interest. (Decision No. 1).
{¶12} Mother appealed the trial court’s January 16, 2020 judgment entry to this
Court in [S. v. M.], 5th Dist. Stark No. 2020 CA 00036, 2020-Ohio-3512. She argued the
trial court abused its discretion in declining to consider the child's wishes given the child's
advanced age and the intervening events in the child's life in determining no change in
circumstances. Id. at ¶ 8. Based upon our analysis of R.C. 3109.04(E)(1)(a) and our prior
decisions, we agreed with Mother that the trial court abused its discretion when it failed
to consider the child’s wishes as a change in circumstances. We acknowledged that a
child’s desire to live with a particular parent, without more, does not constitute a change
of circumstance. [S. v. M.] at ¶ 14 citing Davis v. Davis, 5th Dist. Tuscarawas No. 2016
AP 05 0031, 2016-Ohio-7205, ¶ 38. The analysis requires the trial court to determine
whether the child's age, coupled with the desire to live with a different parent, constitutes
a change in circumstances. Id. In Boone v. Kaser, 5th Dist. Tuscarawas No.
2001AP050050, 2001 WL 1011453, *2 (Aug. 28, 2001), we held “the passage of time
during a significant developmental portion of a child's life, combined with other pertinent
factors, such as the child's expressed desires to reside with mother, supports the trial
court's finding of a change of circumstances, requiring further inquiry by a trial court.” [S.
v. M.] at ¶ 16. With this guidance, we reversed the judgment entry and remanded the
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matter to the trial court to consider the wishes of M.H.S. to determine whether there had
been a change of circumstances. Id. at ¶¶ 17-18.
Consideration of the Child’s Wishes
{¶13} In accordance with our June 26, 2020 decision remanding the matter to the
trial court for consideration of the child’s wishes, the trial court considered the evidence
presented at the January 7, 2020 hearing and issued its findings of fact, conclusions of
law, and decision on July 14, 2020. After reconsidering the findings of fact pursuant to
our ruling, the trial court concluded there had been a change of circumstances:
As directed by the Court of Appeals, the court finds that a change of
circumstance has occurred in the mother’s situation with her remarriage,
birth of her son and her career as a photographer.
Given the child’s wishes and age, the court finds that a substantial
change of circumstances exists. The evidence does indicate that [M.H.S.]’s
grades have slipped. The Guardian ad Litem reported that her interim report
card came back with two F’s, three C’s and two A’s. However, since [M.H.S.]
has been placed on medication for ADHD, her algebra grade has gone up
from an F to a B-. The Guardian further wrote that [M.H.S.]’s counselor
found her to be a very intelligent young lady with the ability to think outside
the box, and that she follows the rules at the school and complies with adult
direction.
Child Protective Services did not substantiate any allegations of
domestic violence or abuse nor did the Guardian.
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There is sufficient evidence to cause the court to believe that [M.H.S.]
would prefer to live with her mother and attend school in Revere.
(Conclusions of Law No. 2).
{¶14} The trial court then considered the best intertest of [M.H.S.] and found a
modification would be in her best interest. (Conclusions of Law Nos. 3-4). The trial court
concluded that while shared parenting would be a preferred option, it was not requested
by the parents. It named Mother as the sole legal custodian of M.H.S. with her parenting
time commencing the beginning of the 2020 school year. (Conclusions of Law No. 4).
{¶15} Additionally, the trial court found Mother in contempt for her nonpayment
of support as ordered. The trial court further found Mother in contempt for her deviation
from the weekend visitation schedule. Based upon Mother’s contempt of the trial court’s
orders in two instances, the trial court sentenced Mother to 15 days in the Stark County
Jail. The jail sentence was suspended on condition that Mother continue to make monthly
payments towards her arrearages on child support and no further violation of the
parenting time order. She could purge the contempt by paying the arrearages within 30
days.
{¶16} The parties submitted proposed child support worksheets and supporting
evidence on July 14, 2020. On August 18, 2020, the trial court ordered Father to pay child
support in the amount of $247.99 per month.
Appeal
{¶17} On August 10, 2020, Father filed a notice of appeal of the July 14, 2020
judgment entry. In his notice of appeal, he requested the Stark County Clerk of Courts file
Stark County, Case No. 2020 CA 00111 8
the “docket and journal entries only, no transcript of the proceedings.” It is from this record
we consider Father’s appeal.
ASSIGNMENT OF ERROR
{¶18} Father raises one Assignment of Error:
{¶19} “THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT DETERMINED
MOTHER’S REQUEST FOR MODIFICATION WAS IN [M.H.S.]’S BEST INTEREST AND
THAT ANY HARM POTENTIALLY CAUSED BY MOTHER’S REQUESTED
MODIFICATION IS OUTWEIGHED BY ITS ADVANTAGES.”
ANALYSIS
{¶20} Father contends in his sole Assignment of Error that the trial court abused
its discretion when it granted a reallocation of parental rights to Mother. We disagree.
{¶21} A trial court reviews a motion to reallocate parental rights and
responsibilities under R.C. 3109.04(E)(1)(a) which states as follows:
(E)(1)(a) The 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. In applying these
standards, the court shall retain the residential parent designated by the
prior decree or the prior shared parenting decree, unless a modification is
in the best interest of the child and one of the following applies:
Stark County, Case No. 2020 CA 00111 9
(i) The residential parent agrees to a change in the residential parent
or both parents under a shared parenting decree agree to a change
in the designation of residential parent.
(ii) The child, with the consent of the residential parent or of both
parents under a shared parenting decree, has been integrated into
the family of the person seeking to become the residential parent.
(iii) The harm likely to be caused by a change of environment is
outweighed by the advantages of the change of environment to the
child.
Therefore, in determining whether to make a modification, a trial court must consider (1)
whether a change in circumstances has occurred, (2) whether a modification is in the
child's best interest, and (3) whether the benefits that result from the change of
environment outweigh any harm.
{¶22} On appeal, our standard of review in assessing the disposition of child
custody matters is that of abuse of discretion. Salameh v. Salameh, 5th Dist. Delaware
No. 19 CAF 01 0008, 2019-Ohio-5390, ¶ 108 citing Miller v. Miller, 37 Ohio St. 3d 71, 523
N.E.2d 846 (1988). In order to find an abuse of discretion, we must determine the trial
court's decision was unreasonable, arbitrary, or unconscionable and not merely an error
of law or judgment. Blakemore v. Blakemore, 5 Ohio St. 3d 217, 450 N.E.2d 1140 (1983).
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
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
Stark County, Case No. 2020 CA 00111 10
Dist. Stark No. 2001CA00039, 2001-Ohio-1386. Because custody issues are some of the
most difficult and agonizing decisions a trial judge must make, he or she must have wide
latitude in considering all the evidence. Davis v. Flickinger, 77 Ohio St. 3d 415, 674 N.E.2d
1159 (1997).
{¶23} 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 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). We are mindful that the 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, and the reviewing court should be guided by the presumption
that the trial court's findings were correct. See, Miller v. Miller, 37 Ohio St. 3d 71, 74, 523
N.E.2d 846 (1988).
{¶24} Before we examine Father’s arguments, we note that a transcript of the
January 7, 2020 hearing on the motion for reallocation of parental rights was not
submitted with this appeal. Pursuant to App.R. 9(B)(1), “[i]t is the obligation of the
appellant to ensure that the proceedings the appellant considers necessary for inclusion
in the record, however those proceedings were recorded, are transcribed in a form that
meets the specifications of App.R. 9(B)(6).” When portions of the transcript necessary for
resolution of assigned errors are omitted from the record, the reviewing court has nothing
to pass upon and thus, as to those assigned errors, the court has no choice but to
Stark County, Case No. 2020 CA 00111 11
presume the validity of the lower court's proceedings, and affirm. Goble v. Grosswiler, 5th
Dist. Richland No. 2018 CA 0102, 2019-Ohio-4443, 2019 WL 5595795, ¶ 35 citing Knapp
v. Edwards Laboratories, 61 Ohio St. 2d 197, 400 N.E.2d 384 (1980). Pursuant to that
standard, we consider Father’s arguments.
Change of Circumstances
{¶25} As stated above, the trial court is required to engage in a three-pronged
analysis to determine whether to make a modification to the allocation of parental rights.
The trial court must first determine whether there has been a change of circumstance.
{¶26} R.C. 3109.04 does not define the concept of “change in circumstances.”
Oyler v. Lancaster, 5th Dist. Stark No. 2019CA00130, 2020-Ohio-758, ¶ 24. However,
Ohio courts have held the phrase is intended to denote “an event, occurrence, or situation
which has a material and adverse effect upon a child.” Wyss v. Wyss, 3 Ohio App. 3d 412,
445 N.E.2d 1153 (10th Dist.1982). Additionally, the change of circumstances must be
“one of substance, not a slight or inconsequential change.” Davis v. Flickinger, 77 Ohio
St.3d 415, 418, 1997-Ohio-260, 674 N.E.2d 1159.
{¶27} “In determining whether a ‘change’ has occurred, a trial judge must have
wide latitude in considering all the evidence, and the court's decision must not be reversed
absent an abuse of discretion.” In re A.P., 2nd Dist. Montgomery No. 28023, 2019-Ohio-
139, ¶ 23; Davis, supra. In order to find an abuse of discretion, we must determine the
trial court's decision was unreasonable, arbitrary, or unconscionable and not merely an
error of law or judgment. Blakemore v. Blakemore, 5 Ohio St. 3d 217, 450 N.E.2d 1140
(1983).
Stark County, Case No. 2020 CA 00111 12
{¶28} In this case, the trial court determined there had been a substantial change
of circumstances based on the child’s wishes to live with her Mother and the child’s age.
The trial court referred to the drop in the child’s grades, but other evidence indicated that
M.H.S. was very intelligent and had the ability to think outside of the box. A review of
Father’s appeal shows that he does not assign as error the trial court’s conclusion there
had been a change of circumstances based on the child’s wishes and age. Father’s
appeal concentrates on the second prong of the analysis, whether a modification is in the
child’s best interests. We recognize however, the best interest analysis does impact the
question of whether there has been an event, occurrence, or situation that has a material
and adverse effect upon a child. Davis v. Flickinger, 77 Ohio St. 3d 415, 421, 1997-Ohio-
260, 674 N.E.2d 1159.
Best Interests
{¶29} If a change of circumstances is established, the trial court must weigh the
best interest of the child before modifying parental rights. R.C. 3109.04(F)(1), which sets
forth a nonexhaustive list of the factors a trial court must consider in determining the best
interest of the child, provides:
(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;
Stark County, Case No. 2020 CA 00111 13
(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 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
Stark County, Case No. 2020 CA 00111 14
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.
The best interest determination focuses on the child, not the parent. In re C.T., 5th Dist.
Licking No. 2020 CA 00014, 2020-Ohio-4965, 2020 WL 6147171, ¶ 57 citing In re N.B.,
8th Dist. Cuyahoga No. 101390, 2015-Ohio-314, at ¶ 59.
The Trial Court’s Consideration of the Factors
{¶30} Father argues that out of the ten factors in R.C. 3109.04(F)(1), the trial
court’s consideration of three of the factors require reversal of the judgment based on
abuse of discretion. He states the trial court’s findings as to the remaining factors did not
weigh in favor of Mother or Father. We first review the trial court’s findings in the July 14,
2020 judgment entry as to the best interest factors not argued by Father.
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{¶31} Both parents wished to be M.H.S.’s residential parent. The trial court found
that M.H.S. interacted and interrelated well with both Mother and Father. M.H.S. was
described as a smart and creative child, whose personality was more reflective of
Mother’s. M.H.S. struggled opening up and talking with Father about her feelings and
interests. At the time of the divorce, Mother was not involved in the children’s school.
Since the divorce, Mother was more involved in the children’s education, especially with
M.H.S. M.H.S.’s grades had dropped and the child was diagnosed with ADHD. M.H.S.
was placed on medication for her ADHD and her grades improved. Mother assumed the
responsibility of addressing medical, dental, and psychological issues for the children
both for treatment and prevention. The trial court found Father was appropriate in dealing
with M.H.S.’s schooling and mental health issues. See R.C. 3109.04(F)(1)(a), (c), (d), and
(e).
R.C. 3109.04(F)(1)(b)
{¶32} R.C. 3109.04(F)(1)(b) states that if the trial court has conducted an in
camera interview with the child regarding her wishes and concerns as to the allocation of
parental rights, the trial court shall consider the wishes and concerns of the child as
expressed to the court. Father contends because the trial court did not conduct an in
camera interview of M.H.S., the trial court cannot consider the wishes and concerns of
the child as weighing in favor of Mother.
{¶33} R.C. 3109.04 provides a child who is the subject of custody litigation with
ample opportunity to be heard on the relevant issues. In addition to the in camera
interview, Ohio trial courts have several potential avenues to receive information about
the child's wishes and concerns. In re A.G., 139 Ohio St. 3d 572, 2014-Ohio-2597, 13
Stark County, Case No. 2020 CA 00111 16
N.E.3d 1146, 2014 WL 2766200, ¶ 71 (2014) citing Saywitz, Camparo & Romanoff,
Interviewing Children in Custody Cases: Implications of Research and Policy for Practice,
28 Behav.Sci.Law 542 (2010) (explaining that typically courts may receive information
about a child's wishes and concerns directly from the child or by information filtered
through a lawyer, a psychologist, or a GAL). We held in DiDonato v. DiDonato, 2016-
Ohio-1511, 63 N.E.3d 660 (5th Dist.) that while the trial court did not interview the children
when determining a reallocation of parental rights, there was competent and credible
evidence to support the trial court’s determination as to the wishes and concerns of the
children because the GAL interviewed the children and provided the trial court with a
recommendation and report. Id. at ¶ 67.
{¶34} In this case, the trial court heard testimony from the GAL about the child’s
wishes and concerns. The GAL testified that M.H.S. wished to reside primarily with
Mother and the GAL’s recommendation mirrored the child’s wishes. (Finding of Fact, No.
8). The trial court stated in its judgment that while it did not conduct an in camera interview
because neither Father nor Mother requested an interview, “the evidence indicates that
[M.H.S.] does wish to live with her mother primarily, change schools and her wishes mirror
the recommendations of the Guardian Ad-Litem.” (Findings of Fact, No. 15). The trial
court noted that Mother alleged that M.H.S. consistently expressed a desire to live with
her and attend school in the Revere Local School District and testimony in that regard
was consistent. (Findings of Fact, No. 11).
{¶35} R.C. 3109.04(F)(1)(b) is merely one factor, in a list of ten factors, that a trial
court must consider in determining the best interests of the child. Clearly, it is not the
controlling factor and should not be the only factor upon which a trial court bases its
Stark County, Case No. 2020 CA 00111 17
decision. See Nusbaumer v. Cherry, 5th Dist. Stark No. 1998CA00243, 1999 WL 254489,
*3 (Apr. 26, 1999). Without the transcript of the hearing, we cannot say the trial court’s
findings and resulting conclusion as to the wishes and concerns of the child were not
adequately conveyed by the GAL or inconsistent with the testimony.
R.C. 3109.04(F)(1)(f)
{¶36} Father next contends the trial court erred when it found it was in the best
interests of the child to be placed with Mother after considering R.C. 3109.04(F)(1)(f).
R.C. 3109.04(F)(1)(f) states the court shall consider “[t]he parent more likely to honor and
facilitate court-approved parenting time rights or visitation and companionship rights.”
Father contends there was evidence in the record that Mother would not cooperate with
parenting time rights or visitation.
{¶37} In its findings of fact, the trial court described an incident on August 11,
2019 that took place between Mother and Father. The children were completing parenting
time with Mother when Father arrived to take the children home. Before conveying the
children, Mother asked Father to discuss a modification of parental rights and
responsibilities. Father indicated he did not want to discuss the issue at that time, but
Mother refused to permit the children to go with Father until he agreed to talk. Father
called the Bath Township police. M.F.S. willingly went with Father but M.H.S. indicated
she did not want to go with Father. The police refused to intervene because it was a civil
matter and M.H.S. stayed with Mother that night. The next day, Father spoke with the
Bath Township police and presented the Final Decree of Divorce and the custody orders.
The police accompanied Father to Mother’s house and facilitated M.H.S.’s return to
Father’s care. (Findings of Fact, No. 11).
Stark County, Case No. 2020 CA 00111 18
{¶38} Based on that incident, the trial court found Mother in contempt for her
deviation from the weekend visitation schedule. As to R.C. 3109.04(F)(1)(f), the trial court
found the incident concerning and perhaps indicative of future problems. (Findings of
Fact, No. 19).
{¶39} The trial court found there was evidence presented at the hearing that
showed the deviation from the weekend visitation schedule was an outlier for the parent’s
cooperation as to parenting time. (Findings of Fact, No. 19). The trial court noted that
subsequent to the divorce in 2011, the parties began altering the parent time schedule to
fit their circumstances, particularly the distance between them. (Findings of Fact, No. 10).
The parents were able to modify the schedule without court assistance by coming to their
own agreements. (Id.) The GAL testified that the “police incident was so overkill for these
parents.” (Findings of Fact, No. 11). The GAL did not believe the incident represented the
ability of Mother and Father to cooperate on a daily basis and did not represent the normal
interaction between the parents. (Findings of Fact. Nos. 11, 19.) He found the parents
were appropriate for working together under a shared parenting plan. (Findings of Fact,
No. 13).
R.C. 3109.04(F)(1)(g)
{¶40} Father argues the trial court’s consideration of R.C. 3109.04(F)(1)(g) should
have weighed allocation of parental rights in favor of Father. R.C. 3109.04(F)(1)(g)
considers 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.” Mother was in arrears on her child support obligation in
the amount of $18,671.59. (Findings of Fact Nos. 12, 20).
Stark County, Case No. 2020 CA 00111 19
{¶41} The trial court found Mother in contempt for her failure to pay child support
and sentenced her to 15 days in the Stark County Jail. The jail sentence was suspended
on condition that Mother continue to make monthly payments towards her arrearages on
child support and she could purge the contempt by paying the arrearages within 30 days.
After the trial court named Mother as the legal custodian of M.H.S., Father was ordered
to pay child support.
No Abuse of Discretion
{¶42} No one factor of R.C. 3109.04(F)(1) is dispositive of the child’s best interest,
and the court has discretion to weigh the factors “as it sees fit.” Leach v. Leach, 12th Dist.
Butler No. CA2019-06-092, 2020-Ohio-1181, 2020 WL 1518597, ¶ 9 citing Carr v. Carr,
12th Dist. Warren Nos. CA2015-02-015 and CA2015-03-020, 2016-Ohio-6986, ¶ 22. In
this case, after considering all of the factors to determine the best interest of the child and
the evidence as a whole, the trial court found that shared parenting would be the preferred
option. The three factors argued by Father as weighing against Mother, when considered
with the remaining factors, were not dispositive to the trial court of the best interest of the
child. The trial court’s finding that shared parenting would be the preferred option
demonstrates the factors weighed almost equally to Mother and Father. Unfortunately,
Mother and Father did not propose shared parenting.
{¶43} The trial court was tasked to determine if there had been a change of
circumstances, whether a modification is in the child's best interest, and whether the
benefits that result from the change of environment outweigh any harm. As part of that
analysis as directed by this Court, the trial court considered the wishes and concerns of
M.H.S. to determine if there had been a change of circumstances. M.H.S., as expressed
Stark County, Case No. 2020 CA 00111 20
through the testimony of Mother and corroborated by the testimony of the GAL, expressed
her desire to live with Mother. A trial court does not abuse its discretion in giving more
weight to the child's wishes than it gave to her adjustment to her home, school, and
community where the child had sufficient reasoning ability to express her wishes and
concerns, and that there were no special concerns that would lead the Court to conclude
that it would not be in the child's best interest to determine her wishes and concerns.
Thompson v. Thompson, 5th Dist. Stark No. 2018CA00074, 2019-Ohio-274, 2019 WL
354859, ¶ 39 citing In re Beekman, 4th Dist. Pike No. 03CA710, 2004-Ohio-1066, ¶ 19;
see also, Tomaszewski v. Tomaszewski, 8th Dist. Cuyahoga No. 86976, 2006-Ohio-
3357.
{¶44} Based on the record before us and cognizant of the limits of Knapp, supra,
we find no abuse of discretion for the trial court reallocate the parental rights of M.H.S to
Mother after appropriately considering the expressed wishes and concerns of M.H.S. in
relation to the R.C. 3109.04(F)(1) best interest factors.
{¶45} Father’s sole Assignment of Error is overruled.
Stark County, Case No. 2020 CA 00111 21
CONCLUSION
{¶46} The judgment of the Stark County Court of Common Pleas, Domestic
Relations Division, is affirmed.
By: Delaney, J.,
Hoffman, P.J. and
Baldwin, J., concur.