Tabler v. Snider

[Cite as Tabler v. Snider, 2010-Ohio-1545.]
STATE OF OHIO, NOBLE COUNTY
IN THE COURT OF APPEALS
SEVENTH DISTRICT
BRIAN TABLER ) CASE NO. 08 NO 357
)
PLAINTIFF-APPELLEE )
)
VS. ) OPINION
)
JULIE MYERS SNIDER )
)
DEFENDANT-APPELLANT )
CHARACTER OF PROCEEDINGS: Civil Appeal from the Court of Common
Pleas of Noble County, Ohio
Case No. 206-4001
JUDGMENT: Affirmed.
APPEARANCES:
For Plaintiff-Appellee: Atty. Jinx Beachler
Beachler & Beachler
8299 McGur Road
Stewart, Ohio 45778
For Defendant-Appellant: Atty. Mark Morrison
Morrison Law Offices
117 N. Main Street
Woodsfield, Ohio 43793
For Third-Party Defendant-Appellee: Atty. Anita L. Newhart
103 Hillside Way
Marietta, Ohio 45750-9541
JUDGES:
Hon. Cheryl L. Waite
Hon. Joseph J. Vukovich
Hon. Mary DeGenaro
Dated: March 30, 2010
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WAITE, J.
{¶1} Appellant, Julie Myers Snider, appeals the decision of the Noble County
Court of Common Pleas, Juvenile Division, to grant custody of her daughter, Victoria
Marie Myers (d.o.b. July 22, 1999), to Appellee, Barbara Tabler, the child’s paternal
grandmother. Appellant contends that the trial court’s conclusion that she is an
unsuitable parent is not supported by credible evidence and that the trial court erred
when it conducted a second evidentiary hearing in this case. For the following
reasons, both of Appellant’s assignments of error are overruled and the judgment of
the trial court is affirmed.
{¶2} Appellant and Victoria’s father, Brian Tabler (Tabler”), were never
married. Appellee was granted temporary custody of Victoria pursuant to a civil
protection order (“CPO”) issued by the Washington County Common Pleas Court in
2001. Pursuant to the same CPO, Appellant and Tabler were each ordered to stay
away from the other due to repeated violent episodes ignited by Tabler’s alcohol
abuse, which were a hallmark of their relationship. The restraining order was
vacated in 2002, however the custody order was continued for a year pursuant to an
agreed judgment entry. In 2003, the custody order was extended to the life of the
CPO, which expired in 2006.
{¶3} Appellant and Tabler had a second child, Alexandria Anne Myers
(d.o.b. 7/10/03), however, Alexandria’s custody had never been determined by an
Ohio court until this case. She has always lived with Appellant. The couple broke up
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after Alexandria’s birth and have since married other people, and each of them has
had another child with their respective spouse.
{¶4} Appellant’s husband died of cancer in 2007. Appellant cared for her
husband at home until she filed for a CPO against him shortly before his death.
Appellant alleged that he had become abusive, however, he was placed in a nursing
home facility shortly after she filed for the CPO.
{¶5} The relationship between Appellant and the Tablers was strained during
the time that Appellee had custody of Victoria due to some typical and some atypical
interpersonal and communication problems. For instance, in the past, Appellant has
accused Appellee’s husband, Victoria’s paternal grandfather, Chester Tabler, of
molesting Victoria, however, no formal charges were ever filed. (2/8/08 Tr., p. 114.)
At some point, Tabler’s wife, Amy, assumed responsibility for delivering and
collecting Alexandria for visitation because she considered Appellant’s behavior
toward Tabler to be inappropriate. (2/8/08 Tr., p. 229.) During the relevant time
frame, Appellant refused to provide her address to the Tablers, so the parties
exchanged the girls at a mutually convenient location. (2/8/08 Tr., p. 107.) In order
to contact Appellant, Appellee had to leave messages with the girlfriend of
Appellant’s father, Shelby Hughes. (11/20/06 Tr., p. 99.) Appellant testified that her
husband did not want the Tablers to have their home phone number because they
harassed her.
{¶6} On March 10, 2006, Tabler filed a complaint for the allocation of
parental rights, companionship, and visitation, as well as a name change with respect
to Alexandria in Noble County. Appellant filed a counterclaim adding Appellee as a
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third-party defendant and requesting that she be designated residential parent of
both Victoria and Alexandria. Tabler subsequently filed an amended complaint
asking that he be named the residential parent of both Victoria and Alexandria.
Then, Appellee filed a motion to be named Victoria’s legal custodian.
{¶7} The trial court conducted a hearing on the complaint and counterclaims
on November 20, 2006. Using the change in circumstances standard, the trial court
determined that no modification was necessary to serve the best interest of the
children. The trial court applied the change in circumstances/best interest of the child
standard because it reasoned that the Washington County Court’s CPO naming
Appellee as Victoria’s legal custodian, and an administrative action regarding support
for Alexandria in 2005, were initial custody determinations.
{¶8} On appeal, the sole issue before us was Victoria’s custody
determination. We concluded that the CPO did not constitute an initial determination
of custody, and, as a consequence, the trial court applied an incorrect standard in
determining this matter. Tabler v. Myers, 173 Ohio App.3d 657, 2007-Ohio-6219,
880 N.E.2d 103. Specifically, we held that a parent is entitled to have a court
determine whether he or she is a suitable parent before legal custody of the child
may be granted to a nonparent. Id., ¶23, citing In re Hockstok, 98 Ohio St.3d 238,
2002-Ohio-7208, 781 N.E.2d 971. The matter was then remanded to the trial court
for a determination as to whether Appellant was a suitable parent for Victoria. We
observed in dicta that, “[p]resumably, the [trial] court has already implicitly determined
that appellant is a suitable parent because it granted custody of Alexandria to
appellant.” Tabler at ¶23, fn.1.
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{¶9} On remand, the trial court conducted a second evidentiary hearing.
Appellant’s trial counsel objected to the second hearing, arguing that the remand
order required that the trial court rely exclusively on the original record. In response
to the objection, the trial court stated:
{¶10} “The Court took the position initially that because of actions that
happened down in Washington County that necessarily there was a decision made
by that court on the issue of custody. Okay? The Court of Appeals didn’t see it that
way and I think since this court treated it as a change of circumstances a modification
of custody [sic], if you will, then necessarily the Court would not have considered
anything that happened prior to the time that the Washington County Court dealt with
this matter. Now, the matter has been remanded back to this Court and this court
has been directed to use a best interest test, treat this as an initial determination of
custody and since there has been no, no Court decisions prior to today with respect
to the division of parental rights and responsibilities as they deal with Victoria I think
everything from the date of birth of Victoria forward is going to be available. And,
since none of that information from the date of birth up until Washington County
Court [sic] dealt with it was a matter before the Court at the time of the initial hearing
here in Noble County I think in order to comply with the requirements out of the Court
of Appeals for this court to treat it as a best interest and deal with the child from its
date of birth, as I would understand I would have to, I think I have to take additional
testimony here today.” (Tr., pp. 4-5.)
{¶11} At the hearing, the trial court granted the unopposed motion to consider
the evidence adduced at the first hearing.
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ASSIGNMENT OF ERROR NUMBER ONE
{¶12} “THE TRIAL COURT COMMITTED PREJUDICIAL ERROR BY ITS
FAILURE TO FOLLOW THE DIRECTIVE OF THIS COURT IN CASE NO. 07-NO-
339, BY HOLDING A DE NOVO TRIAL ON ALL ISSUES RELEVANT TO THE
CUSTODY OF VICTORIA TABLER RATHER THAN DETERMINING SUITABILITY
BASED UPON THE EVIDENCE ALREADY SUBMITTED.”
{¶13} Because the trial court first believed that the CPO constituted an initial
custody determination, the court limited the evidence offered at the first hearing to
events that occurred after the CPO was issued. According to the statement of the
trial court prior to the commencement of the second hearing, it conducted the second
hearing in order to accept testimony regarding any relevant events that occurred from
Victoria’s birth to the issuance of the CPO.
{¶14} Contrary to the trial court’s stated purpose, the testimony at the second
hearing focused on the relationship of the parties during the time that Appellee had
custody of Victoria. Appellant also points out that Tabler was permitted to offer
testimony and cross-examine witnesses, despite the fact that he did not appeal the
trial court’s original order. Oddly, the trial court did reconsider Tabler’s motion for
custody even though it was not part of the remand order. Finally, although Appellant
does not raise the issue, the trial court twice asserted that it would undertake a “best
interest of the child” determination, despite the fact that this Court instructed the trial
court to determine whether Appellant was a suitable parent.
{¶15} Although Appellant alleges prejudicial error, she does not claim that she
suffered any actual prejudice as a result of the trial court’s decision to hold a second
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hearing. In fact, the testimony provided at the second hearing was merely
supplementary in nature and the trial court ultimately did use the correct standard of
law in reaching its decision, despite the misstatement at the beginning of the second
hearing. For these reasons, Appellant’s first assignment of error is overruled. The
remaining assignments of error relate to the trial court’s custody determination, and
will be treated together for the purpose of judicial economy.
ASSIGNMENT OF ERROR NUMBER TWO
{¶16} “THE TRIAL COURT FINDING THAT APPELLANT IS NOT A
SUITABLE PARENT IS CONTRARY TO LAW AND AGAINST THE MANIFEST
WEIGHT OF THE EVIDENCE.”
ASSIGNMENT OF ERROR NUMBER THREE
{¶17} “THE TRIAL COURT FINDING THAT APPELLANT IS NOT A
SUITABLE PARENT IS CONTRARY TO LAW AND CONTRARY TO THE
PREVIOUS DECISION OF THIS COURT IN CASE NO. 07-NO-339.
ASSIGNMENT OF ERROR NUMBER FOUR
{¶18} “THE TRIAL COURT FINDING THAT APPELLANT ABANDONED
VICTORIA AND IS THEREFORE UNSUITABLE AS A CUSTODIAN IS CONTRARY
TO LAW AND AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.”
ASSIGNMENT OF ERROR NUMBER FIVE
{¶19} “THE TRIAL COURT FINDING THAT APPELLANT ‘GENERALLY’
ABANDONED VICTORIA AND [SIC] IS THEREFORE UNSUITABLE AS A
CUSTODIAN IS CONTRARY TO LAW AND AGAINST THE MANIFEST WEIGHT OF
THE EVIDENCE.”
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{¶20} Parents who are suitable have a paramount right to custody of their
minor children. In re Perales (1977), 52 Ohio St.2d 89, 97, 369 N.E.2d 1047. “In a
child custody case arising out of a parentage action between a natural parent of the
child and a nonparent, a trial court must make a parental unsuitability determination
on the record before awarding legal custody of the child to the nonparent.” Hockstok
at syllabus.
{¶21} “It is well recognized that the right to raise a child is an ‘essential’ and
‘basic’ civil right.” In re Hayes (1997), 79 Ohio St.3d 46, 48, citing In re Murray
(1990), 52 Ohio St.3d 155. Moreover, a parent’s right to custody of his child is
paramount. Id., citing Perales at 97. Because a parent has a fundamental liberty
interest in the custody of his or her child, this important legal right is “protected by law
and, thus, comes within the purview of a ‘substantial right’[.]” Murray at 157.
“Therefore, parents ‘must be afforded every procedural and substantive protection
the law allows.’ ” In re Hayes, 79 Ohio St.3d at 48, quoting In re Smith (1991), 77
Ohio App.3d 1.
{¶22} Accordingly, it is well settled that in custody disputes between parents
and nonparents, “a court may not award custody to the nonparent ‘without first
determining that a preponderance of the evidence shows that the parent abandoned
the child; contractually relinquished custody of the child; that the parent has become
totally incapable of supporting or caring for the child; or that an award of custody to
the parent would be detrimental to the child.’ ” Hockstok at ¶17, quoting Perales,
syllabus.
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{¶23} Thus, if the court concludes that the conduct of the parent constitutes
abandonment, the parent may be judged unsuitable and the state may impinge the
fundamental parental liberty interest of child custody. Id. at ¶17. R.C.
2151.011(53)(C) reads, in its entirety, “[f]or the purposes of this chapter, a child shall
be presumed abandoned when the parents of the child have failed to visit or maintain
contact with the child for more than ninety days, regardless of whether the parents
resume contact with the child after that period of ninety days.”
{¶24} “[I]n proceedings involving the custody and welfare of children the
power of the trial court to exercise discretion is peculiarly important.” Reynolds v.
Goll (1996), 75 Ohio St.3d 121, 124, 661 N.E.2d 1008, quoting Trickey v. Trickey
(1952), 158 Ohio St. 9, 13, 106 N.E.2d 772. Consequently, a reviewing court must
uphold the trial court’s decision in such cases absent an abuse of discretion. Masters
v. Masters (1994), 69 Ohio St.3d 83, 85, 630 N.E.2d 665. An abuse of discretion will
only be found where the decision is unreasonable, arbitrary, or unconscionable.
Blakemore v. Blakemore (1983), 5 Ohio St.3d 217, 219, 450 N.E.2d 1140.
{¶25} “ ‘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. * * * 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.’ ” Blaker v.
Wilhelm, 6th Dist. No. WD-04-003, 2005-Ohio-317, ¶10, quoting In re L.S., 8th Dist.
No. 81687, 2003-Ohio2045, ¶12.
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{¶26} As a matter of initial concern, our previous Opinion in this case raised in
a footnote the idea that the trial court may have made an implicit suitability finding
with respect to Victoria, because the trial court awarded custody of Alexandria to
Appellant. Of course, the test for “parent vs. parent” custody determinations, which
was the case when determining Alexandria’s custody, is different than for “parent vs.
non-parent” determinations, the situation we are faced with in Victoria’s case.
Moreover, Appellant could have “abandoned” Victoria, as that term is defined in the
revised code, but still be awarded custody of Alexandria.
{¶27} The trial court relied on two time frames where Appellant allegedly lost
contact with Victoria, although those periods were not specifically identified by the
trial court. From the record, it appears that one of those time frames encompassed
several months when Appellant was pregnant with her youngest child, Caroline.
{¶28} Appellee testified that she brought Victoria to a location chosen by the
parties each week for two or three months starting in May, 2005, but that Appellant
did not appear. (2/8/08 Tr., pp. 180-182.) Appellee testified that she tried to maintain
contact with Appellant via Shelby Hughes, but that Appellant had no contact with
Victoria from May through late November, 2005.
{¶29} Appellant testified that it was Appellee who did not appear as
scheduled, and that Appellee would deny Appellant visitation whenever Appellee was
angry with her. (11/20/06 Tr., pp. 97-98.) Appellant introduced several small
calendars into evidence, which contained notations regarding Appellant’s visitation
schedule with Victoria and Alexandria. From the end of May of 2005, through
November, 2005, there are repeated notes that indicate that Victoria failed to appear
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for visitation. (Plaintiff’s Exh. No. 7.) Shirley Petrone, a friend who often
accompanied Appellant when she went to pick up Victoria, testified that Appellant
bought a birthday cake for Victoria in July, 2005, and that the cake stayed in the
freezer for “probably two months” because Appellee continuously forestalled
Appellant’s visitation. (2/8/08 Tr., pp. 333-335.)
{¶30} It is clear from the judgment entry that the trial court credited Appellee’s
testimony. The trial court plainly states that Appellant failed to appear for exchanges
at the drop off point. (11/3/08 J.E., p. 2.) The trial court also opined that Appellant
was “not a stranger to the court system,” and would have likely involved the courts if
she was being denied visitation. (11/3/08 J.E., pp. 2-3.) The trial court found that
Appellant’s explanation that she was denied access to Victoria during her pregnancy
was not credible. (11/3/08 J.E., p. 3.)
{¶31} In addition to the finding of abandonment, the trial court recounted
Appellant’s history of bad parenting, beginning with her voluntary relinquishment of
custody of Victoria over to Appellee, and culminating in her failure to accompany
Victoria to Columbus, Ohio when she needed surgery to repair a hernia, despite the
fact that Appellee offered to take Appellant to Columbus. (11/3/08 J.E., p. 3.) The
trial court also took a dim view of Appellant’s efforts to get a CPO against her then
dying husband. The trial court considered Appellant’s statement at the hearing that
she had, “changed [her] life style,” and that she was, “ready to be the mother of
[Victoria],” to be an implicit acknowledgment that she had abandoned Victoria in the
past. (11/3/08 J.E., p. 2.)
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{¶32} Tabler, who testified at both the first and second hearings that he had
his alcoholism under control, was arrested for driving under the influence shortly
before the second half of the second hearing. (11/3/08 J.E., p. 3.) The trial court
concluded that both parents had abandoned Victoria and that neither parent was
suitable. In its judgment entry, the trial court also noted that Victoria wants to
continue to live with her grandparents. (11/3/08 J.E., p. 4.)
{¶33} The trial court summarized its view of the case as follows:
{¶34} “There are no outside forces, unforeseen circumstances, or unhappy
twists of fate that caused either parent not to rear Victoria. Of their own volition, the
rearing of Victoria was abdicated to [Appellee] and her husband. When do parents
forfeit their right to custody? Certainly, after five (5) years, as in this case, they
have.” (11/3/08 J.E., p. 4.)
{¶35} Although the trial court appears, in the above-cited quotation, to have
given a broad reading to the term “abandonment,” there is no question that
Appellee’s testimony, if believed, demonstrates “abandonment” as that term has
been defined by the Ohio Revised Code by a preponderance of the evidence.
According to Appellee’s testimony, she had no contact with Appellant from the end of
May 2005 through November of 2005. Consequently, the record reflects that
Appellant, “failed to visit or maintain contact with the child for more than ninety days.”
R.C.. 2151.011(53)(C). Because the trial court is in a unique position to assess the
credibility of the witnesses, we must accept the factual findings of the trial court,
unless the trial court abused its discretion. No such abuse of discretion is apparent
from the record.
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{¶36} Moreover, this case is distinguishable from In re Custody of Lowe, 7th
Dist. No. 00 CO 62, 2002-Ohio-440, where the trial court relied on inappropriate
evidence to conclude that the parent in that case was unsuitable. Here, the trial court
relied on abandonment as the basis of its decision. While the trial court criticized
Appellant’s parenting decisions, this case does not involve a fact pattern like Lowe,
where the trial court’s decision was predicated upon best interest considerations
rather than a suitability determination. Accordingly, Appellant’s four remaining
assignments of error are overruled, and the judgment of the trial court is affirmed.
Vukovich, P.J., concurs.
DeGenaro, J., concurs.