In re A.B.M.

[Cite as In re A.B.M., 2019-Ohio-3183.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
IN RE A.B.M. :
: Case No. 107556
A Minor Child :
:
[Appeal by T.M., Father] :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: August 8, 2019
Civil Appeal from the Cuyahoga County Court of Common Pleas
Juvenile Division
Case No. CU16117933
Appearances:
Stafford Law Co., L.P.A., Joseph G. Stafford, and Nicole A.
Cruz, for appellant.
Michael C. O’Malley, Cuyahoga County Prosecuting
Attorney, Daniel A. Starett and Marilyn Weinberg,
Assistant County Prosecutors; and Eric J. Cherry, for
appellee.
ANITA LASTER MAYS, J.:
Appellant T.M., the established father (“Father”) of minor child
A.B.M., appeals the custody determination by the Cuyahoga County Court of
Common Pleas, Juvenile Division. We affirm the judgment of the trial court.
I. Background and Facts
A.B.M. was born to appellee M.R., a single mother (“Mother”), shortly
after Mother’s high school graduation. Father was also a recent high school
graduate. On March 11, 2014, Father was established as the biological father by the
Cuyahoga County Department of Job and Family Services (“CCDJFS”). The parties
never married but lived together sporadically.
After several moves from Florida to Ohio, Father decided to remain
in Ohio. Mother decided to remain in Florida. On December 12, 2016, Father filed
an application to determine custody of A.B.M. and a motion to restrain Mother from
returning to Florida after Mother’s visit to Ohio. Father alleged that Mother: (1) was
unable to provide stable living conditions, (2) had not maintained stable
employment for more than three months in the past two years, and (3) A.B.M., who
was four years of age at the time, had not been in a structured school environment.
The trial court granted the ex parte motion filed by Father on
March 17, 2017, to restrain Mother from returning to Florida where she and A.B.M.
were residing. An interim parenting order was issued governing visitation.
On March 29, 2019, the trial court denied Mother’s motion to dismiss
the complaint for lack of subject matter jurisdiction that claimed Ohio lacked
jurisdiction under the Uniform Child Custody Jurisdiction and Enforcement Act
(“UCCJEA”) because Mother was a Florida resident. The trial court determined that
Mother
failed to demonstrate by clear and convincing, credible evidence that
she has established or otherwise maintained residency in another
[s]tate, and thereby establishing another [s]tate as the home state of
the child. Both parents demonstrated a rather transient lifestyle with
the child prior to the filing of the application.
Journal entry No. 0911060800 (Mar. 29, 2019).
The trial was held on April 25, 2018. Father, Mother, the maternal
grandmother (“Grandmother”) and the GAL testified.
Father stated that he, Mother, and A.B.M. resided together before he
moved in with a friend in Florida in January 2015, and secured employment.
Mother and A.B.M. joined him shortly afterward. Father testified that he paid all of
the expenses and assisted with A.B.M.’s care. Father returned to Ohio in August or
September 2015, without Mother and A.B.M., but gave Mother $400 per month to
support A.B.M. when he obtained employment.
Father visited A.B.M. in Florida during the fall 2015 and during
Mother’s visit to Ohio to see her mother in March 2016. A.B.M. stayed with Father
and his new fiancé in Cleveland for about two months later that year with Mother’s
consent.
Father testified that Mother was pregnant with the child of her fiancé
whom she lived with in Florida and that Father paid for Mother and A.B.M. to come
to Ohio in December 2016. Mother stayed alternately with Father’s sister and her
sister. Father filed the custody application and the trial court ordered interim
visitation. Father requested equal parenting time and designation as the residential
parent if Mother relocated out-of-state.
Father admitted that A.B.M. was four years old at the time the case
was initiated and was not required to attend school. Mother selected A.B.M.’s
current school where she is learning to speak Mandarin and Spanish and A.B.M.
enjoys attending school with her cousins. Father states that he assists A.B.M. with
homework during his visitation time and maintains contact with the school
regarding A.B.M.
Father testified that A.B.M. said that Mother told her not to discuss
Mother’s life and activities with Father. He claimed that Mother did not obtain
stable housing until April 2017, though he admitted that she was in Florida and
subsequently stayed with relatives until she secured a place to live. Father
confirmed that he had also moved and purchased his home in 2017 where he lives
with his fiancé.
Exhibits were also introduced during Father’s testimony indicating
that, at the time the complaint was filed, he had contact with A.B.M., that actions
were in process for A.B.M.’s school enrollment, and that he stopped paying the $400
per month that he indicated he had been paying to Mother. The 2015 W-2 forms
did not support Father’s claim that Mother and Father resided together in 2015.
Mother testified that she and her family moved to Ohio from Florida
during her sophomore year and that she has extended family in Florida. During the
pregnancy and after the birth, Mother lived primarily with Grandmother but
sometimes stayed with Father who frequently “kick[ed] [Mother] out” of the house.
(Tr. 100.) Mother said that she always planned to return to Florida and moved in
with her brother in February 2015. Father resided about 30 minutes away, they were
not dating, and they did not live together at that time.
Mother drove A.B.M. to visit Father but Father did not ask to see
A.B.M. or pick her up. Father’s move to Florida provided an opportunity for her to
return to her family in Florida. In May 2015, Mother secured employment and, in
June, an apartment. Father had returned to Ohio by that time but returned to
Florida to live with Mother on the condition that he obtain employment.
Father worked for about a month and the parties ended the living
arrangement after an argument that involved police presence. Father returned to
Ohio and Mother moved back in with family in Florida. Father talked with A.B.M.
by telephone, video chat, and visited A.B.M. in Florida. Mother ended her
employment because of the one-hour commute and said that she supported herself
with savings, a tax refund, and subsequent employment that allowed her to meet
A.B.M.’s needs.
Mother and her current fiancé began living together about one month
after meeting and they planned to marry in January 2019. The fiancé is the father
of the second child and has a good relationship with A.B.M. Mother returned to
Ohio to help Grandmother move back to Florida but remained due to the custody
case and began taking classes at a local college.
Mother testified that the only violation of the current parenting order
occurred on July 4, 2017. A.B.M. was usually happy to see Father but was cranky
and did not want to go with Father. Father began yelling and A.B.M. was crying and
did not want to leave. Mother denied attempting to hinder the father-child
relationship.
Mother also testified that, in December 2016, when Mother was
residing at Father’s sister’s house, Father attempted to have Mother perform a
sexual act. Mother did not report it. Mother continued to allow visitation pursuant
to the parenting order but had other family members take A.B.M. to meet Father.
Also, in December 2016, A.B.M. told Mother that she observed a gun laying on a
kitchen chair at the Father’s home, but that Father quickly removed it.
Mother testified that, after the gun incident, she allowed A.B.M. to
talk with Father by telephone but she was concerned for A.B.M.’s safety as well as
for her own. Since the interim parenting order was entered, A.B.M. visits Father
and is sometimes excited and other times reluctant to go. Mother also said that
A.B.M. is very close to her younger sister.
During cross-examination, Mother explained the reasons for
changing residences and employment relocations and stressed that she always made
sure that A.B.M.’s needs were met. Though Mother’s family and fiancé are in Florida
and Grandmother was also moving to Florida, Mother declared that she would
remain in Ohio if Father was appointed as the residential parent because she did not
want to be away from A.B.M. Mother testified that her current employer, Cleveland
Clinic, would allow her to continue to work for them in a home-based position if she
relocates to Florida. If forced to remain in Ohio, her relationship with her fiancé
probably would end because he has a special needs child in Florida and is unable to
relocate.
Grandmother testified that Mother and Father had a sporadic and
somewhat contentious relationship that Mother attributed to their youth and the
stress of parenting an infant. Grandmother was diagnosed with fibromyalgia and
was advised by her physician to move to a warmer climate. Mother returned to
Cleveland to assist Grandmother’s move to Florida.
After the order was issued preventing Mother from returning to
Florida, Mother secured an apartment in the complex where Grandmother resides
and Grandmother cares for both children. Grandmother advised that A.B.M. and
her younger sister are very close and that separating them would be devastating.
The GAL was the final witness. The GAL issued a report on
November 29, 2017, that did not contain a parenting recommendation. On
December 7, 2017, only eight days later, she issued a longer report that
recommended naming the Father as the residential parent for school purposes and
for a split-week parenting plan with exchanges at the school. The GAL did not file
an updated or supplemental report prior to the April 2018 trial.
The GAL testified,
I’ve done a number of visits with the child. Both homes are
appropriate. The child is very comfortable with both parents, very
affectionate. She clearly loves her mom and her dad.
She gets along well with father’s fiancé. She clearly adores her little
sister.
She I think wants to spend time with everybody, to love everybody, like
any other six-year-old.
I think the big issue in this case is how we handle the relocation, which
is very, very tricky.
I am hesitant to recommend that and I think that’s clear in my report,
based on mom’s difficulty dealing with dad throughout this case.
I will note that it has improved significantly since I was appointed.
When this case began, mother * * * did not want any interaction with
[Father].
(Tr. 164-165.)
The GAL opined that both parents are competent to care for A.B.M.
However, “[m]y concerns are their ability to work together to facilitate positive
relationships for [A.B.M.] with everyone.” (Tr. 168.) In light of the strained
communication between the parents, the GAL suggested that visitation exchanges
take place through the school to avoid interaction between the parents and that the
parties continue to communicate through the Our Family Wizard database that
facilitates shared parenting communications.
The GAL concluded that spending time with both parents is in
A.B.M.’s best interest, but A.B.M. should not hear negative things from either parent
about the other parent. The GAL suggested that A.B.M. had been coached by Mother
about the gun incident because the child recalled the situation even though she was
only five. The GAL did not think that seeing a gun sitting on a kitchen chair at her
Father’s home would be something that a five-year-old child would remember, but
the GAL admitted that she did not “know for certain.” (Tr. 175.)
The GAL also believed that A.B.M. was hearing negative things about
Father from Mother because the child referred to Father by his first name. “He
wasn’t ‘daddy’ to her. And to me, when I hear words like that out of a child’s mouth,
they’re being repeated.” (Tr. 165.)
Father told the GAL that he did not recall the gun incident but
admitted that he owns a gun. The GAL could not recall exactly where the Father
said that he kept the gun, but said that the Father subsequently purchased a lockbox
to keep the allegedly unloaded weapon in.
The GAL could not recall the name of the Florida city where Mother
planned to move but remembered that Mother was not going to move in with her
fiancé because she wanted A.B.M. to attend a better school system. The GAL also
said that Mother did not inform her that she would have employment in Florida or
that she had located housing for her return to Florida “so it was all very much
theoretical.” (Tr. 170.) After the second report, the GAL did not ask Mother whether
there had been any changes regarding the plan to move to Florida because she
assumed that Mother or her counsel would advise her.
Counsel for Mother asked what transpired during the eight-day
period between reports that resulted in the current recommendation. The GAL
responded that she had not been able to examine Father’s residence because he was
just moving in and she wanted to allow the parents “a little time” to attempt to work
out a parenting plan because parties are more inclined to compromise closer to a
trial date.
The GAL also added in the second report that she did not believe
Mother’s fiancé was “a significant person” in A.B.M.’s life at the time, but confirmed
that A.B.M. and her Mother were living with the fiancé and that A.B.M. referred to
the two children of the fiancé as her brothers. The GAL attributed the familial label
to the Mother’s influence because the GAL thought that she recalled Mother telling
her that A.B.M. was encouraged to consider the fiancé and his children to be family.
Both parties informed the GAL that visitation stopped for six months
in December 2016. Father did not have a reason but Mother said it was due to the
gun incident. The GAL also noted in her second report that she found it odd that
the Mother did not report the alleged attempted sexual assault by Father though she
had reported the prior alleged acts of domestic violence.1
Counsel: Do you have any expertise in dealing with victims of
domestic violence or sexual assault?
GAL: Outside of my dealings as a [GAL] and as an attorney, no.
***
Counsel: So this odd reaction, that’s your own just personal opinion?
GAL: It is based off of mother’s previous reactions to alleged
domestic violence.
Counsel: Do you think domestic violence and sexual assault are the
same things?
GAL: I think they are related.
(Tr. 179-180.)
1 According to the report, the GAL had been provided with Florida police reports
and a domestic violence petition for injunction form.
The GAL also stated that she did not update her report from “A.B.M.,
seems to more or less like her new sister, plus the child is still an infant” to reflect
that a “bond has developed” between A.B.M. and her infant sibling because it was a
minor change that would not alter the GAL’s recommendation. (Tr. 183-184.) The
GAL expressed concern that a rift would grow between the child and Father if
Mother moved to Florida due to the distance and strain in parental communications.
The trial court awarded equal parenting time to Father and Mother,
designated each parent as the legal custodian and residential parent during their
respective parenting times, and designated Mother as residential parent for school
purposes. Father was ordered to pay child support of $214.47 per month and was
also required to provide health insurance. The trial court also set forth parenting
time in the event the Mother chose to move to Florida after filing a notice of intent
to relocate.
Father appeals the trial court’s judgment.
II. Assigned Error, Law, and Discussion
Father assigns a single error for review: the trial court erred as a
matter of law and abused its discretion in its allocation of parental rights and
responsibilities. We do not agree.
Father contends that the trial court failed to consider the best
interests of the child factors under R.C. 3109.04(F)(1) as required by
R.C. 2151.23(F)(1), which provides that the “best interest standard of R.C. 3109.04
applies in initial actions to allocate parental rights cases involving children of
unmarried parents.” (Citations omitted.) In re A.M.S., 8th Dist. Cuyahoga
No. 98384, 2012-Ohio-5078, ¶ 19. R.C. 3109.04(F)(1) contains a nonexhaustive list
of factors that the trial court may consider in reaching a resolution. The “statute
expresses a strong presumption that shared parenting is in the best interest of the
child.” Kong v. Kong, 8th Dist. Cuyahoga No. 93120, 2010-Ohio-3180, ¶ 6, citing
Dietrich v. Dietrich, 8th Dist. Cuyahoga No. 90565, 2008-Ohio-5740.
The discretion of a trial court in a custody determination is broad, but
“it is not absolute, and must be guided by the language set forth in R.C. 3109.04.”
(Citations omitted.) Miller v. Miller, 37 Ohio St. 3d 71, 74, 523 N.E.2d 846 (1988).
We are certainly cognizant that “[c]ustody issues are some of the most difficult
decisions a trial judge must make.” Id. It is for this reason that the trial court’s
decision will not be reversed absent an abuse of discretion. Id. An abuse of
discretion implies that the trial court’s “attitude was unreasonable, arbitrary, or
unconscionable.” Blakemore v. Blakemore, 5 Ohio St. 3d 217, 450 N.E.2d 1140(1983).
R.C. 3109.04 provides in pertinent part:
(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;
(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.
R.C. 3109.04(F)(1).
In addition, the statute provides:
(2) In determining whether shared parenting is in the best interest of
the children, the court shall consider all relevant factors, including, but
not limited to, the factors enumerated in division (F)(1) of this section,
the factors enumerated in section 3119.23 of the Revised Code, and all
of the following factors:
(a) The ability of the parents to cooperate and make decisions
jointly, with respect to the children;
(b) The ability of each parent to encourage the sharing of love,
affection, and contact between the child and the other parent;
(c) Any history of, or potential for, child abuse, spouse abuse,
other domestic violence, or parental kidnapping by either
parent;
(d) The geographic proximity of the parents to each other, as the
proximity relates to the practical considerations of shared
parenting;
(e) The recommendation of the guardian ad litem of the child, if
the child has a guardian ad litem.
(3) When allocating parental rights and responsibilities for the care of
children, the court shall not give preference to a parent because of that
parent’s financial status or condition.
R.C. 3109.04(F)(2)-(3).
Father contends that the trial court failed to set forth any findings of
fact or conclusions of law regarding those factors. The trial court recited a
comprehensive list of factors in the journal entry that were considered in reaching a
determination.
The prior interaction and interrelationships of the child with the child’s
parents, siblings, and other persons related by consanguinity or affinity
of the child;
The geographical location of the residence of each parent and the
distance between those residences;
The child’s and parents’ available time, including, but not limited to,
each parent’s employment schedule, the child’s school schedule, and
the child’s and the parents’ holiday and vacation schedules;
The age of the child;
The child’s adjustment to home, school, and community;
The health and safety of the child;
The amount of time that will be available for the child to spend with
siblings;
The mental and physical health of all parties;
Each parent’s willingness to reschedule missed parenting time and to
facilitate the other parent’s parenting time rights, and
With respect to a person who requested companionship or visitation,
the willingness of that person to reschedule missed visitation;
Whether 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 the adjudication; 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;
Whether either parent has established a residence or is planning to
establish a residence outside this state;
The wishes and concerns of the Child’s parents, as expressed by them
to the Court;
The recommendation of the guardian ad litem for the child;
Other factors relating to the best interest of the child: the parents have
made significant efforts to stabilize their lives and relationship with and
surrounding the child during the pendency of this litigation.
Journal entry No. 0911440943, page 1.
The court concluded that
it is in the best interests of the child that the parents * * * be designated
as the residential parents and legal custodians of A.B.M. during their
respective parenting times. Mother should be designated as residential
parent for school purposes.
Id.
The trial court also cited the factors underlying its determination to
appoint Father as the child-support and health-insurance obligor and that the child-
support-guideline calculation should be reduced based on the parenting time
allocation. These findings were also determined to be in the best interests of the
child.
This court has previously explained that
absent a Civ.R. 52 motion, a trial court need not make specific findings
correlating to R.C. 3109.04(F) in the judgment entry. See Harp v.
Harp, 12th Dist. Clermont Case No. CA89-08-075, 1990 Ohio App.
LEXIS 1458 (Apr. 16, 1990). Further, an appellate court will presume
regularity in the trial. State v. Coombs, 18 Ohio St. 3d 123, 125, 480
N.E.2d 414 (1985). Therefore, generally this court would presume that
the trial court considered the R.C. 3109.04(F) factors, unless there is
reason to believe the trial court did not consider those factors. See
Bird v. Bird, 5th Dist. Stark No. CA-6423, 1985 Ohio App. LEXIS 5761
(Feb. 19, 1985).
Wilk v. Wilk, 8th Dist. Cuyahoga No. 96347, 2011-Ohio-5273, ¶ 10.
In the appellate brief, Father lists the factors that Father deems the
trial court should have relied on and that purportedly support Father’s argument
that the trial court simply got it wrong. The trial judge presided over the trial in this
case. We will not substitute our judgment for that of the trial court. Thus, we
emphasize here that
“‘where there exists competent credible evidence to support an award
of custody, there is no abuse of discretion. * * * Davis [v. Flickinger, 77
Ohio St.3d at 418, 674 N.E.2d 1159 (1997). This highly deferential
standard of review rests on the premise that the trial judge is in the best
position to determine the credibility of witnesses because he or she is
able to observe their demeanor, gestures, and attitude. Seasons Coal
Co. v. Cleveland, 10 Ohio St. 3d 77, 80, 461 N.E.2d 1273 (1984). This is
especially true in a child custody case, since there may be much that is
evident in the parties’ demeanor and attitude that does not translate
well to the record. Davis, 77 Ohio St.3d at 419, 674 N.E.2d 1159.’”
In re A.M.S., 8th Dist. Cuyahoga No. 98384, 2012-Ohio-5078, ¶ 18, quoting In re
L.S., 152 Ohio App. 3d 500, 2003-Ohio-2045, 788 N.E.2d 696 (8th Dist.).
Father also argues that the trial court did not properly consider the
GAL’s testimony and recommendations. In custody proceedings,
“[t]he role of a guardian ad litem in a permanent custody proceeding is
to protect the child’s interest, to ensure that the child’s interests are
represented throughout the proceedings and to assist the trial court in
its determination of what is in the child’s best interest. See, e.g., In re
C.B., 129 Ohio St. 3d 231, 2011-Ohio-2899, 951 N.E.2d 398, ¶ 14, citing
R.C. 2151.281(B) and Sup.R. 48(B)(1). This is accomplished by the
guardian ad litem conducting an investigation of the child’s situation
and then making recommendations to the court as to what the guardian
ad litem believes would be in the child’s best interest. In re J.C., 4th
Dist. Adams No. 07CA833, 2007-Ohio-3781, ¶ 13.”
In re R.B., 8th Dist. Cuyahoga No. 107709, 2019-Ohio-1656, ¶ 14, quoting In re K.Z.,
8th Dist. Cuyahoga No. 107269, 2019-Ohio-707, ¶ 67.
Sup.R. 48(D) lists the duties and responsibilities of a GAL. The rule
does not serve as a checklist of activities in which the GAL must engage but it does
furnish “good guidelines” for a GAL to follow in order to provide the trial court with
a relevant and informed recommendation. In re C.O., 8th Dist. Cuyahoga
Nos. 99334 and 99335, 2013-Ohio-5239, ¶ 14, quoting In re K.G., 9th Dist. Wayne
No. 10CA16, 2010-Ohio-4399, ¶ 12. We also point out that the GAL report is
advisory and “is not considered evidence.” In re T.B.-G., 8th Dist. Cuyahoga
No. 106713, 2018-Ohio-4116, ¶ 15, citing In re Sherman, 3d Dist. Hancock Nos. 05-
04-47, 05-04-48, and 05-04-49, 2005-Ohio-5888, ¶ 29; In re K.W., 2d Dist. Clark
No. 2013-CA-107, 2014-Ohio-4606, ¶ 17.
The GAL submitted two reports dated less than two weeks apart but
did not submit an updated report shortly before the April 25, 2018 trial. At the trial,
the GAL was examined and cross-examined on the basis for her recommendation.
See In re Hoffman, 97 Ohio St. 3d 92, 2002-Ohio-5368, 776 N.E.2d 485, syllabus.
The recommendation of the GAL is only one of the factors the trial judge may
consider under R.C. 3109.04(F)(2)(e).
“It is well settled that a trial court is not bound by the GAL’s
recommendations.” Brown v. Heitman, 3d Dist. Logan No. 8-16-21,
2017-Ohio-4032, ¶ 30. “‘A trial court determines the guardian ad
litem’s credibility and the weight to be given to any report.’” Id.,
quoting Galloway v. Khan, 10th Dist. Franklin No. 06AP-140, 2006-
Ohio-6637, ¶ 70, citing Baker v. Baker, 6th Dist. Lucas No. L-03-1018,
2004-Ohio-469, ¶ 30.
Severns v. Foster, 3d Dist. Marion No. 9-18-21, 2019-Ohio-909, ¶ 47.
Thus, the trial judge was free to accept, modify, or reject the GAL’s
recommendation and was in the “best position to determine the credibility of
witnesses because he or she is able to observe their demeanor, gestures, and
attitude.” In re A.M.S., 8th Dist. Cuyahoga No. 98384, 2012-Ohio-5078, ¶ 18, citing
Seasons Coal Co. v. Cleveland, 10 Ohio St. 3d 77, 80, 461 N.E.2d 1273 (1984).
We also find that it was well within the trial court’s discretion to name
Mother as the residential parent for school purposes. We reiterate that, absent a
Civ.R. 52 request for findings of fact and conclusions of law, “the trial court did not
need to engage in a factor-by-factor analysis of the R.C. 3109.04 best-interest
standards.” Savage v. Savage, 4th Dist. Pike No. 15CA856, 2015-Ohio-5290, ¶ 22.
We “presume that the trial court considered the R.C. 3109.04(F) factors, unless
there is reason to believe the trial court did not consider those factors.” Wilk, 8th
Dist. Cuyahoga No. 96347, 2011-Ohio-5273, ¶ 10.
The record reveals that Mother selected the local charter school that
A.B.M. is attending. A.B.M. is doing well in school, is acquiring foreign language
skills, and enjoys attending with her cousins. Mother and the GAL testified that, if
Mother relocated to Florida with A.B.M., Mother planned to reside in a reputable
school district so that A.B.M. would receive a good education, even though Mother’s
fiancé did not reside in the preferred district.
Finally, Father challenge the trial court’s finding that “[s]hould
mother choose to move to Florida and upon the filing of a notice of intent to relocate,
Father shall have the standard long-distance parenting time.” Journal entry
No. 0911440943, page 2. Father asserts that the trial court failed to determine that
relocating was in the child’s best interest and the court did not consider the costs
associated with the standard long-distance parenting schedule.
“A parent has a constitutional right to live anywhere in the country
that she chooses and to relocate at will.” Valentyne v. Ceccacci, 8th Dist. Cuyahoga
No. 83725, 2004-Ohio-4240, ¶ 47, citing Miller v. Miller, 3d Dist. Henry No. 7-03-
09, 2004-Ohio-2358. The record demonstrates that Mother intended to return to
Florida unless Father was named as A.B.M.’s residential parent. In fact, Mother has
been restrained from returning by the injunction requested by Father asking that
the trial court prevent Mother from returning to Florida with A.B.M. pending
resolution of the case.
Mother is originally from Florida where she has strong family ties.
Grandmother, who has been caring for A.B.M. and her younger sibling, is also
returning to Florida. Mother and Father testified that Father and A.B.M. have
visited and communicated over the years though there were no orders in place
requiring visitation. Mother transported A.B.M. to Father for visits when the parties
were living in Florida. After Father returned to Ohio, Father visited A.B.M. in
Florida and Father and his fiancé were allowed to keep A.B.M. in Cleveland for two
months.
Father testified that he paid for the out-of-town visits and
transportation. Visitation was ongoing until the six-month period in December
2016 when the gun incident reportedly occurred and there was no parenting order
in place. The subsequent parenting order was honored by the parties except for the
single incident explained during the trial.
The trial court’s requirement that Mother file a notice of intent to
relocate does not negate the right of Father to oppose the notice based on
appropriate grounds. See, e.g., In re R.N., 8th Dist. Cuyahoga No. 87027, 2006-
Ohio-4266, ¶ 11 (relocation alone does not constitute changed circumstances
justifying a parenting modification). Based on the evidence before us and the
presumption afforded by the absence of findings of fact, we cannot say that the trial
court abused its discretion in determining that the relocation is in the child’s best
interest.
III. Conclusion
This court finds that there is competent, credible evidence supporting
our determination that the conclusion of the trial court is in the child’s best interest.
In re A.M.S., 8th Dist. Cuyahoga No. 98384, 2012-Ohio-5078, ¶ 18, citing In re L.S.,
152 Ohio App. 3d 500, 2003-Ohio-2045, 788 N.E.2d 696 (8th Dist.). A trial court
is “not required to detail every factor of a best interest analysis if the court’s
judgment is supported by some competent, credible evidence.” In re J.C.P., 8th
Dist. Cuyahoga No. 103133, 2016-Ohio-116, ¶ 53, citing Blakeman v. Blakeman, 4th
Dist. Pike No. 07CA768, 2008-Ohio-2948, ¶ 18. “Because the court’s decision with
respect to the allocation of parental responsibilities is supported in the record, this
court will not disturb it.” Id. at id.
The judgment of the trial court is affirmed.
It is ordered that appellee recover from appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the
common pleas court, juvenile division, to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27
of the Rules of Appellate Procedure.
ANITA LASTER MAYS, JUDGE
MARY EILEEN KILBANE, A.J., and
RAYMOND C. HEADEN, J., CONCUR