Severns v. Foster

[Cite as Severns v. Foster, 2019-Ohio-909.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
MARION COUNTY
JOHN SEVERNS,
PLAINTIFF-APPELLEE, CASE NO. 9-18-21
v.
AMBER FOSTER, OPINION
DEFENDANT-APPELLANT.
Appeal from Marion County Common Pleas Court
Family Division
Trial Court No. 16 PC 0105
Judgment Affirmed
Date of Decision: March 18, 2019
APPEARANCES:
Joel M. Spitzer for Appellant
Rocky Ratliff for Appellee
Case No. 9-18-21
PRESTON, J.
{¶1} Defendant-appellant, Amber Foster (“Foster”), appeals the May 30,
2018 judgment of the Marion County Court of Common Pleas, Family Division,
designating plaintiff-appellee, John Severns (“Severns”), as residential parent and
legal custodian of A.S., Foster and Severns’s minor daughter. For the reasons that
follow, we affirm.
{¶2} On November 16, 2015, Foster gave birth to a daughter, A.S. Foster
and Severns have never married. In the months immediately following A.S.’s birth,
Foster and Severns tried to work on their relationship while co-parenting A.S. (See
Apr. 17, 2018 Tr. at 98-100). However, their efforts proved unsuccessful.
{¶3} On June 10, 2016, Severns filed a complaint requesting “that he be
awarded custody of [A.S.] or in the alternative be awarded shared parenting.” (Doc.
No. 1). That same day, Severns filed a motion for ex parte temporary orders asking
the trial court to designate him as A.S.’s legal custodian during the pendency of the
case. (Doc. No. 2). On June 14, 2016, the trial court denied Severns’s motion for
ex parte temporary orders. (Doc. No. 6).
{¶4} On July 7, 2016, the trial court issued temporary orders granting
Severns parenting time with A.S. for a period of four hours on Tuesdays and
Thursdays and for a period of four hours every other Saturday and Sunday in
accordance with Marion County Family Court Rule 32. (Doc. No. 11).
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{¶5} On October 3, 2016, Foster filed a motion to establish child support.
(Doc. No. 20). That same day, Foster filed a motion requesting that the trial court
appoint a guardian ad litem (“GAL”) to evaluate A.S.’s best interest. (Doc. No. 23).
On October 20, 2016, Severns filed a response to Foster’s motion to appoint a GAL
in which he did not oppose Foster’s motion. (Doc. No. 24). On November 1, 2016,
the trial court granted Foster’s motion to appoint a GAL and appointed a GAL for
A.S. (Doc. No. 32).
{¶6} On October 20, 2016, Severns filed a motion for shared parenting along
with a proposed shared parenting plan. (Doc. No. 26).
{¶7} On November 8, 2016, Severns filed a motion and an amended motion
for holiday visitation. (Doc. Nos. 34, 37). On November 15, 2016, the trial court
issued agreed temporary orders granting Severns parenting time with A.S. “pursuant
to Local Rule 32a for the upcoming holidays and/or until this case is resolved.”
(Doc. No. 38). In addition, the trial court designated Severns as “the non-residential
parent for holiday visitation purposes during the pendency of this matter.” (Id.).
{¶8} On April 27, 2017, Foster filed a motion for leave to file her answer to
Severns’s June 10, 2016 complaint out of rule. (Doc. No. 58). On May 1, 2017, the
trial court granted Foster’s motion to file her answer out of rule. (Doc. No. 59).
That same day, Foster filed her answer to Severns’s complaint as well as a
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counterclaim requesting that the trial court establish child support, among other
things. (Doc. No. 60).
{¶9} On May 9, 2017, Severns filed a motion to increase parenting time.
(Doc. No. 61). On June 29, 2017, Severns filed a motion for new temporary orders.
(Doc. No. 67). That same day, Foster filed a narrative affidavit regarding temporary
orders. (Doc. No. 69). On August 15, 2017, the trial court issued agreed modified
temporary orders granting Severns parenting time with A.S. on Mondays from 8:00
a.m. until 12:00 p.m., Tuesdays from 8:00 a.m. until 5:00 p.m., and on weekends in
accordance with Marion County Family Court Rule 32(A). (Doc. No. 74). In
addition, the trial court ordered that Foster’s weekend parenting time with A.S.
coincide with her weekend parenting time with A.S.’s half-sister granted in case
number 15-PC-211. (See id.).
{¶10} The GAL filed his final report on April 6, 2018. (Doc. No. 84).
{¶11} A final hearing was held on April 16 and 17, 2018. (See Doc. No. 93);
(Apr. 16, 2018 Tr. at 1); (Apr. 17, 2018 Tr. at 1). On May 30, 2018, the trial court
filed its judgment designating Severns as the residential parent of A.S. (Doc. No.
93). The trial court granted Foster parenting time with A.S. in accordance with
Marion County Family Court Rule 32(A) and ordered that Foster’s parenting time
with A.S. coincide with Foster’s parenting time with A.S.’s half-sister. (Id.). In
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addition, Foster was ordered to pay Severns $231.46 per month in child support.
(Id.).
{¶12} Foster filed a notice of appeal on June 28, 2018. (Doc. No. 94). She
raises three assignments of error, which we will address together.
Assignment of Error No. I
In support of the initial determination of parental rights and
responisbilities [sic] for the minor child, the trial court erred as a
matter of law and abused its discretion by determining there was
sufficient evidence the parents could not make decisions jointly
pursuant of Ohio Revised Code 3109.04
Assignment of Error No. II
In support of the initial determination of parental rights and
responsibilities for the minor child and pursuant of Ohio Revised
Code 3109.04, the trial court erred against the weight of the
evidence and abused its discretion in determining that the
plaintiff-apellee [sic] should be granted cusotdy[sic].
Assignment of Error No. III
In support of initial determination of parental rights and
responsibilities for the minor child and pursuant of Ohio Revised
Code 3109.04, the trial court erred and abused its discretion in
determining that the defendant-appellant would not facilitate
court ordered visitation.
{¶13} In her first, second, and third assignments of error, Foster argues that
the trial court erred by designating Severns as the residential parent and legal
custodian of A.S. Although unclear from her appellate brief, Foster appears to
advance two arguments in support of her assignments of error. First, Foster argues
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that the trial court’s best-interest findings under R.C. 3109.04(F)(1), specifically its
findings that Severns and Foster cannot communicate and that Foster would not
facilitate court-ordered visitation, are “unsubstantiated as they were based solely on
a lack of credible evidence” or suspect because they are based on Severns’s “self-
testimony.” (Appellant’s Brief at 7-8). In addition, Foster argues that rather than
weighing the R.C. 3109.04(F)(1) best-interest factors “as an accumulative whole,
the trial judge imperceptibly and unconscionably gave prevailing weight of the
measures of the statute essentially to a single factor.” (Id. at 7). However, Foster
does not clearly identify this determinative factor. In addition, as part of this
argument, Foster contends that the trial court designated Severns as A.S.’s
residential parent and legal custodian without giving proper weight to the GAL’s
shared-parenting recommendation. (Id. at 10).
{¶14} “‘Decisions concerning child custody matters rest within the sound
discretion of the trial court.’” Krill v. Krill, 3d Dist. Defiance No. 4-13-15, 2014-
Ohio-2577, ¶ 26, quoting Walker v. Walker, 3d Dist. Marion No. 9-12-15, 2013-
Ohio-1496, ¶ 46, citing Wallace v. Willoughby, 3d Dist. Shelby No. 17-10-15, 2011-
Ohio-3008, ¶ 22 and Miller v. Miller, 37 Ohio St.3d 71, 74 (1988). “‘“Where an
award of custody is supported by a substantial amount of credible and competent
evidence, such an award will not be reversed as being against the weight of the
evidence by a reviewing court.”’” Id., quoting Walker at ¶ 46, quoting Barto v.
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Barto, 3d Dist. Hancock No. 5-08-14, 2008-Ohio-5538, ¶ 25 and Bechtol v. Bechtol,
49 Ohio St.3d 21 (1990), syllabus. “‘Accordingly, an abuse of discretion must be
found in order to reverse the trial court’s award of child custody.’” Id., quoting
Walker at ¶ 46, citing Barto at ¶ 25 and Masters v. Masters, 69 Ohio St.3d 83, 85
(1994). “‘An abuse of discretion suggests the trial court’s decision is unreasonable
or unconscionable.’” Id., quoting Brammer v. Meachem, 3d Dist. Marion No. 9-10-
43, 2011-Ohio-519, ¶ 14, citing Blakemore v. Blakemore, 5 Ohio St.3d 217, 219
(1983).
{¶15} Here, we observe that throughout her appellate brief, Foster
incorrectly characterizes the trial court’s May 30, 2018 judgment as a
“modification” of an existing decree allocating Severns’s and her parental rights.
(E.g., Appellant’s Brief at 10) (“[T]he trial judge failed to prove that the
modification of the parental rights and responsibilities was necessary * * * to serve
the best interests of the child[] * * *.”). Rather than being a modification of an
existing custody decree, the trial court’s May 30, 2018 judgment was the product of
an original proceeding to determine custody.
{¶16} Because A.S. was born out of wedlock, custody of A.S. was controlled
by R.C. 3109.042 at the time Severns filed his complaint in June 2016. R.C.
3109.042 provides, in relevant part:
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An unmarried female who gives birth to a child is the sole residential
parent and legal custodian of the child until a court of competent
jurisdiction issues an order designating another person as the
residential parent and legal custodian.
R.C. 3109.042(A). Prior to the trial court’s May 30, 2018 judgment, no court had
issued an initial decree allocating Severns’s and Foster’s parental rights. Thus, until
the May 30, 2018 judgment, Foster served as A.S.’s residential parent and legal
custodian by operation of law. Yet, “even though the unmarried mother is the
residential parent until a court order says otherwise, when the court is first asked to
issue an order, the matter is considered an original custody determination rather than
a ruling on a request for modification of a prior custody determination.” In re J.K.,
7th Dist. Carroll No. 14 CA 899, 2014-Ohio-5502, ¶ 26, citing In re S.S.L.S., 7th
Dist. Columbiana No. 12CO8, 2013-Ohio-3026, ¶ 16, Maine v. Jones, 7th Dist.
Mahoning No. 06MA191, 2007-Ohio-5043, ¶ 55, 57, Francis v. Westfall, 7th Dist.
Jefferson Nos. 03JE20 and 03JE21, 2004-Ohio-4543, ¶ 15, and DeWitt v. Myers, 2d
Dist. Clark No. 08-CA-86, 2009-Ohio-807, ¶ 14-16. Similarly, “‘Ohio law provides
that R.C. 3109.04(E), concerning modification of a prior decree, is inapplicable to
temporary orders with custody pending.’” Id. at ¶ 27, quoting Gomez v. Gomez, 7th
Dist. Noble No. 06 NO 330, 2007-Ohio-1559, ¶ 14, citing State ex rel. Thompson v.
Spon, 83 Ohio St.3d 551, 554-555 (1998). Hence, while Foster acted as A.S.’s
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residential parent since her birth and was identified as A.S.’s residential parent and
legal custodian in various temporary orders throughout the pendency of this case,
the trial court did not effect a “modification” within the meaning of R.C. 3109.04(E)
when it designated Severns as A.S.’s residential parent and legal custodian. Instead,
the trial court’s May 30, 2018 judgment is the product of an original proceeding to
determine custody though it changed the identity of A.S.’s residential parent and
legal custodian.
{¶17} “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.”
R.C. 3109.04(B)(1). “‘[T]he best interest standard must be applied in initial actions
to allocate parental rights in cases involving children of unmarried parents as well
as in the context of divorce, dissolution, or annulment.’” Loewen v. Newsome, 9th
Dist. Summit No. 28107, 2018-Ohio-73, ¶ 16, quoting Anthony v. Wolfram, 9th Dist.
Lorain No. 98CA007129, 1999 WL 771601, *2 (Sept. 29, 1999). R.C.
3109.04(F)(1) provides:
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
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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;
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(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)(a)-(j).
{¶18} “The trial court ‘has discretion in determining which factors are
relevant,’ and ‘each factor may not necessarily carry the same weight or have the
same relevance, depending upon the facts before the trial court.’” Krill, 2014-Ohio-
2577, at ¶ 29, quoting Brammer v. Brammer, 3d Dist. Marion No. 9-12-57, 2013-
Ohio-2843, ¶ 41, citing Hammond v. Harm, 9th Dist. Summit No. 23993, 2008-
Ohio-2310, ¶ 51. “Although the trial court must consider all relevant factors, there
is no requirement that the trial court set out an analysis for each of the factors in its
judgment entry, so long as the judgment entry is supported by some competent,
credible evidence.” Id., citing Meachem, 2011-Ohio-519, at ¶ 30, citing Portentoso
v. Portentoso, 3d Dist. Seneca No. 13-07-03, 2007-Ohio-5770, ¶ 22.
{¶19} In its May 30, 2018 judgment, the trial court specifically mentioned
and analyzed each of the best-interest factors set forth in R.C. 3109.04(F)(1). (Doc.
No. 93). After making findings responsive to each of the R.C. 3109.04(F)(1) best-
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interest factors, the trial court concluded that “it is in the best interest of the child
that [Severns] be named residential parent of [A.S.]” (Id.). Thus, there is little
question that the trial court considered all of the enumerated best-interest factors as
required by R.C. 3109.04(F)(1).
{¶20} Nevertheless, Foster contends that the trial court’s R.C. 3109.04(F)(1)
best-interest findings are not supported by the record. Specifically, she argues that
the “trial court’s findings that the parents could not communicate and that [Foster]
would not facilitate court ordered visitation are unsubstantiated as they were based
solely on a lack of credible evidence.” (Appellant’s Brief at 7). She argues further
that the trial court erred by relying on Severns’s “self-testimony.” (Id. at 8).
However, we conclude that competent, credible evidence supports each of the trial
court’s best-interest findings and that the trial court did not err by crediting
Severns’s testimony. As a result, Foster’s argument is without merit.
{¶21} First, with regard to R.C. 3109.04(F)(1)(a)—the wishes of the child’s
parents regarding the child’s care—the trial court found that Severns filed a motion
for shared parenting “asking to be named residential parent for school, medical and
extracurricular purposes” and that he proposed a “two/two/three shared parenting
plan.” (Doc. No. 93). As to Foster, the trial court found that she “seeks to be named
residential parent and legal custodian of [A.S.]” and that she wanted Severns to have
“parenting time every other weekend and Tuesday during the day.” (Id.). In
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Severns’s motion for shared parenting, he requested that he be named residential
parent and legal custodian of A.S. but proposed a shared-parenting plan in lieu of
being named residential parent of A.S. (Doc. No. 26). Moreover, Severns testified
that he wanted to be residential parent and legal custodian for purposes of medical
and school decisions and extracurricular activities but that he would be willing to
parent A.S. pursuant to a two-two-three shared parenting plan if necessary. (See
Apr. 16, 2018 Tr. at 243, 314-317). On the other hand, Foster maintained that she
wanted to be A.S.’s residential parent and legal custodian with visitation to Severns
on Tuesdays and every other weekend. (Apr. 16, 2018 Tr. at 156); (Apr. 17, 2018
Tr. at 109). She further testified that Severns should “[a]bsolutely not” be
designated as A.S.’s residential parent. (Apr. 17, 2018 Tr. at 249). Thus, the record
supports the trial court’s findings as to R.C. 3109.04(F)(1)(a).
{¶22} As to R.C. 3109.04(F)(1)(b)—the wishes and concerns of the child
regarding the allocation of parental rights as expressed to the trial court in an in-
chambers interview pursuant to R.C. 3109.04(B)—the trial court noted that it did
not interview A.S. (Doc. No. 93). “Absent a request by either party for the trial
court to interview the children in chambers, the trial court was allowed, but not
required, to do so.” Krill, 2014-Ohio-2577, at ¶ 35, citing R.C. 3109.04(B)(1) and
In re Marriage of Munnings, 11th Dist. Geauga No. 2005-G-2622, 2006-Ohio-3230,
¶ 18. Given that A.S. was less than two and a half years old at the time of the
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custody hearing and that the record does not suggest that either party asked the trial
court to interview her, the trial court’s decision not to interview A.S. was
appropriate. See id. at ¶ 36. Accordingly, R.C. 3109.04(F)(1)(b) is inapplicable to
the facts of this case.
{¶23} With regard to R.C. 3109.04(F)(1)(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—the trial court found that A.S. “has a
half-sister she is able to visit on [Foster’s] parenting time.” (Doc. No. 93). The trial
court further found that A.S. “knows and interacts with both maternal and paternal
family members” and that A.S.’s “[p]aternal grandmother provides child care for
[A.S.]” (Id.). The record supports each of the trial court’s R.C. 3109.04(F)(1)(c)
findings. First, the record establishes that A.S. interacts regularly with her half-
sister and that the two have a good relationship. In addition to Foster’s extensive
testimony documenting the close relationship between A.S. and her half-sister,
Foster’s mother, Sharon Foster (“Sharon”), testified that A.S. and her half-sister are
“very close.” (Apr. 17, 2018 Tr. at 36). Sharon further testified, “An older child
mothers the younger child. So * * * [A.S. and her half-sister are] very, very close.”
(Id.). In addition, Foster produced numerous photographs depicting, for example,
A.S. playing with her half-sister and A.S.’s half-sister reading to A.S. (See
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Defendant’s Ex. J). Therefore, the record thoroughly supports that A.S. has a close,
loving relationship with her half-sister.
{¶24} The record also demonstrates that A.S. knows and interacts with both
maternal and paternal family members. Regarding A.S.’s interactions with Foster’s
family, Defendant’s Exhibit J contains numerous photographs portraying A.S.
accompanying Foster to various family functions and interacting happily with her
maternal grandparents as well as other members of Foster’s family. (See
Defendant’s Ex. J). Additionally, Sharon described Foster’s family as “tight” and
testified that A.S. regularly sees Foster’s family and plays with her cousins and other
more-distant relatives. (Apr. 17, 2018 Tr. at 40-42). As to A.S.’s relationship with
Severns’s family, Barbara Severns (“Barbara”), Severns’s mother, testified that she
helps Severns take care of A.S. on Mondays and Tuesdays. (Apr. 16, 2018 Tr. at 4-
5). She testified that she also takes care of A.S.’s cousins when watching A.S. (Id.).
Barbara also said that Severns would occasionally work during his parenting time
with A.S. and that she, her husband, or Severns’s sister would look after A.S. (Id.
at 14-15). Furthermore, Lynn Jackson (“Jackson”), Severns’s sister, testified that
A.S. gets along well with her children, A.S.’s cousins. (Id. at 62-63). She further
testified that, if Severns were designated residential parent, she would be able to
keep A.S. overnight or babysit her while Severns is at work. (Id. at 96-99). Finally,
Severns testified that A.S. frequently interacts with his family and that she is well-
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bonded with her grandparents, aunt, and cousins. (Id. at 197). Thus, the record
supports that A.S. knows and interacts with both maternal and paternal family
members.
{¶25} Finally, the record establishes that A.S.’s paternal grandmother,
Barbara, often cares for A.S. As discussed above, Barbara testified that she cares
for A.S. whenever Severns has to work during his parenting time. (Id. at 4-5, 14-
15). In addition, Barbara testified that, if Severns were awarded custody, she would
be willing and able to care for A.S. whenever Severns has to work. (Id. at 50-52).
{¶26} Regarding R.C. 3109.04(F)(1)(d)—the child’s adjustment to the
child’s home, school, and community—the trial court found that A.S. “appears to
be adjusted to both parties’ homes.” (Doc. No. 93). The trial court further found
that A.S. is not yet of school age and that she “has the opportunity to see her half
sibling * * * on a regular basis.” (Id.). The record supports the trial court’s R.C.
3109.04(F)(1)(d) findings. First, as discussed in detail above, the record clearly
establishes that A.S. has a close relationship with her half-sister and that she and her
half-sister have regular visits in Foster’s home. In addition, because A.S. was less
than three years old at the time of the hearing, it is uncontested that she is not yet of
school age.
{¶27} There is also ample evidence in the record supporting the trial court’s
finding that A.S. is adjusted to both Severns’s and Foster’s home. A.S. lived
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primarily with Foster from birth, and multiple witnesses testified that A.S. is happy
and well-adjusted in Foster’s home and that Foster provides good structure and care
for A.S. (See Apr. 17, 2018 Tr. at 33-36, 42-45, 249, 281). Moreover, the GAL
reported that Foster’s “home is always clean and appropriate” and that Foster “is
very successful in providing a warm and loving environment which allows [A.S.
and her half-sister] to thrive.” (Doc. No. 84). Regarding A.S.’s adjustment to
Severns’s home, Foster expressed some concerns about the cleanliness of Severns’s
prior residences. (See Apr. 17, 2018 Tr. at 126-127). However, the GAL reported
that in “all of [his] home visits, [Severns’s] house has been clean and appropriate.”
(Doc. No. 84). In addition, the GAL reported that during a home visit, Severns was
“very appropriate” with A.S. and that A.S. “was very happy to be with her father.”
(Id.). Finally, the record reflects that Severns has established a residence with which
A.S. is familiar. Although Severns moved multiple times during the first two years
of A.S.’s life, two weeks prior to the final custody hearing, he signed a one-year
lease for the residence he had been living in since early 2017 with a roommate, Ben
Caldwell (“Caldwell”). (Plaintiff’s Ex. 2). (See Doc. No. 46). While Foster
expressed some concern about Caldwell due to his prior criminal convictions for
drug abuse and possession and allegations that he used marijuana around A.S., the
record reflects that, as of April 2018, Caldwell is no longer residing in the residence
with Severns and only Severns and A.S. use the premises as their residence. (See
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Apr. 16, 2018 Tr. at 184, 258); (See Apr. 17, 2018 Tr. at 138); (See Plaintiff’s Ex.
2); (See Defendant’s Ex. A). Altogether, the record supports the trial court’s R.C.
3109.04(F)(1)(d) findings.
{¶28} With respect to R.C. 3109.04(F)(1)(e)—the mental and physical health
of all persons involved in the situation—the trial court found that while A.S. appears
to be in good health overall, she has not received all of her childhood vaccinations.
(Doc. No. 93). The trial court found that Foster “practices a holistic medicine
approach” and that despite her testimony that she would have A.S.’s vaccines
completed, she had yet to do so. (Id.). In addition, the trial court made findings
concerning Severns’s and Foster’s physical and mental health. As to Severns, the
trial court found that he recently suffered a seizure. (Id.). However, the trial court
also found that Severns underwent a CAT scan and “there were no adverse
neurological findings.” (Id.). With respect to Foster, the trial court found that she
once “became depressed and expressed ideations of self-harm.” (Id.). The trial
court noted that it appears that Foster did not actually cause herself harm. (Id.).
{¶29} The record demonstrates that A.S. is generally in good health, happy,
well-fed, and in a nurturing environment. (See Apr. 16, 2018 Tr. at 21-22, 76, 78-
79); (See Apr. 17, 2018 Tr. at 32, 181, 281). However, the record also establishes
that A.S. is not current on her vaccinations. (See Apr. 16, 2018 Tr. at 119-120, 139,
177). Foster acknowledged that she was “the one to make the decision not to
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vaccinate” A.S. (Id. at 124). Foster testified that although A.S. has received some
vaccinations and that she is not “100%” opposed to vaccination, A.S. has not been
administered vaccinations in accordance with standard immunization schedules.
(See Apr. 17, 2018 Tr. at 181-182); (See Plaintiff’s Ex. 3). She testified that she
does intend to continue vaccinating A.S. but that she wishes to do so by means of a
“slow process of introducing” them to A.S. (Apr. 17, 2018 Tr. at 182). She
acknowledged that she would vaccinate A.S. if ordered to do so by the court but that
she “would like to do one once a month” and that her nurse practitioner did not
disapprove of this plan. (Id. at 182-183). Severns expressed concerns about A.S.’s
vaccinations, noting that A.S. is not current on vaccines and that he would “like her
to be current on vaccines she can get now.” (Apr. 16, 2018 Tr. at 198).
{¶30} The record also supports the trial court’s finding that Foster takes a
“holistic” or “organic” approach to medicine. Both Severns and Barbara described
Foster’s approach to medicine as “holistic.” (See Apr. 16, 2018 Tr. at 10-11, 203-
204). Likewise, the GAL agreed that Foster takes a more holistic approach to
medicine. (Apr. 17, 2018 Tr. at 266). He testified that Foster “is less traditional *
* * in her medical views” and that there is “a tendency for more organic, natural,
homeopathic, [and] vegetarian” approaches. (Id.). However, he stressed that Foster
“does give medicine.” (Id.). Furthermore, when Foster was asked whether she
believed in holistic medicine, she responded that she “believe[s] in organic.” (Apr.
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16, 2018 Tr. at 176). She testified that she does not “give medicine unless it’s
necessary.” (Id. at 177). However, she emphasized that she does take A.S. to the
doctor and administers medicine when necessary and that she would absolutely take
A.S. to the hospital to treat a life-threatening illness. (Id. at 138); (Apr. 17, 2018
Tr. at 180-181). Thus, although the record demonstrates that Foster does not
entirely reject traditional medicine, it also supports that she does take a “holistic” or
“organic” approach to treatment when possible.
{¶31} In addition, the record establishes that while Severns suffered at least
one seizure, neurological testing did not reveal any abnormalities. Barbara testified
that Severns once suffered a seizure while driving and that she was not certain
whether Severns sought treatment. (Apr. 16, 2018 Tr. at 12-13). However, she
denied knowledge of any additional seizures suffered by Severns. (Id. at 14).
Severns himself testified that he suffered a seizure in 2016. (Id. at 207). He testified
that afterward, he went to the doctor where they “did a CT scan.” (Id. at 208).
Severns stated that the doctor “said there was nothing they could see” and that he
believes that meant that nothing was wrong. (Id.).
{¶32} Finally, the record supports the trial court’s findings regarding
Foster’s mental health. Foster testified that after the father of A.S.’s half-sister was
designated as the child’s residential parent, she was very upset. (Apr. 17, 2018 Tr.
at 134-136). Severns testified that Foster confided in him that she wanted to commit
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suicide or run away. (Apr. 16, 2018 Tr. at 217-218). He stated that he was
concerned for her safety. (Id. at 218). Foster conceded that she once stated to
Severns that she wished she could die and that she might have mentioned wanting
to run away, but she insisted that she was just venting her frustrations to Severns.
(Apr. 17, 2018 Tr. at 227, 246, 259-260). Foster flatly denied that she was actually
suicidal. (Id. at 260). In addition, Sharon testified that she did not interpret Foster’s
behavior after A.S.’s half-sister’s father was named residential parent as stemming
from mental illness but rather as an expression of grief over the change in custody.
(Id. at 38-39). Sharon further testified that she did not believe that Foster’s behavior
indicated that she wanted to harm herself. (Id. at 39). Indeed, the record contains
no evidence that Foster harmed herself or that her emotional issues persisted to the
day of the final hearing. In sum, the record supports each of the trial court’s findings
under R.C. 3109.04(F)(1)(e).
{¶33} Because they concern interrelated issues, we address the trial court’s
findings under R.C. 3109.04(F)(1)(f) and (i) together. As to R.C.
3109.04(F)(1)(f)—the parent more likely to honor and facilitate court-approved
parenting time rights or visitation and companionship rights—the trial court noted
that the “primary issue in this case is parenting time.” (Doc. No. 93). It found that
Severns “has been willing to share parenting responsibilities with” Foster whereas
Foster “desires to be named residential parent and legal custodian of the child.”
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(Id.). With respect to R.C. 3109.04(F)(1)(i)—whether the residential parent has
continuously and willfully denied the other parent’s right to parenting time in
accordance with an order of the court—the trial court found that the “parties have
been operating under a Shared Parenting Order with [Foster] as residential parent
and [Severns] having parenting time on a two/two/three day basis.” (Id.). Although
the trial court found that “there has been compliance with the plan,” it also found
that Foster is “frequently late for drop off and pick up.” (Id.). Finally, the trial court
found that Foster had denied Severns’s requests for additional time with A.S. (Id.).
{¶34} First, the trial court’s findings regarding Severns’s and Foster’s wishes
for parenting time are supported by the record. Although Severns testified at various
times that he wanted to be the sole residential parent and legal custodian of A.S., he
also stated that he would not object to a more equitable division of parenting time
and responsibilities. (See Apr. 16, 2018 Tr. at 314-315). On the other hand, Foster
steadfastly insisted on being A.S.’s sole residential parent and legal custodian. (Apr.
17, 2018 Tr. at 156, 192, 249). However, she did concede that she wanted at least
a 50-50 division of parenting time if the trial court did not designate her as sole
residential parent. (Id. at 198).
{¶35} The record also supports that although Foster generally complied with
the parenting plan set forth in the various temporary orders, she was frequently late
for drop-offs and pickups. Foster testified that she always tried to comply with the
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court’s visitation orders and that she never wanted to withhold A.S. from Severns.
(Id. at 142-143). However, she admitted that she was frequently late in dropping
off A.S. with Severns for visitation and often tardy in picking A.S. up from
visitations. (Id. at 159, 218-221). Similarly, Severns testified that Foster does not
drop A.S. off on time and she does not always tell him that she is going to be late.
(Apr. 16, 2018 Tr. at 189). Severns testified that when Foster is late, he tries to
make up time with A.S. by keeping her later on the day Foster is late or on a different
day, and Foster allows him to do so. (Id. at 225); (Apr. 17, 2018 Tr. at 159). In
addition, Barbara testified that Foster dropped off A.S. on time on only a handful of
occasions and that she was usually an hour or more late. (Apr. 16, 2018 Tr. at 6).
Finally, multiple text message exchanges between Severns and Foster were
introduced wherein the two discuss the times at which Foster dropped off A.S.,
Foster’s tardiness, or Severns’s intentions to make up lost time with A.S. (E.g.,
Plaintiff’s Ex. 39, Defendant’s Ex. D).
{¶36} Finally, evidence in the record supports the trial court’s finding that
Foster did, at times, deny Severns’s requests for additional parenting time. Foster
testified that she never wanted to withhold A.S. from Severns and that she permitted
Severns to visit with A.S. even when she was not required to do so by court order.
(Apr. 17, 2018 Tr. at 106-107). Furthermore, some of the text messages between
Severns and Foster reflect that Foster would ask Severns to watch A.S. on days that
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were not designated as his parenting days. (E.g., Plaintiff’s Ex. 9). However, the
record also reflects that Foster would occasionally reject Severns’s requests for
more parenting time. (See, e.g., Plaintiff’s Exs. 11, 12, 30). In some of these
exchanges, Foster denied Severns’s claims for additional time by saying that she
was “[s]ticking to court orders.” (Plaintiff’s Ex. 12).
{¶37} Concerning R.C. 3109.04(F)(1)(g)—whether either of the parents has
failed to make child support payments as required by a child support order—the trial
court found that “[t]here is no child support exchanged at this time.” (Doc. No. 93).
The record supports the trial court’s findings. Although Foster had previously
moved the trial court to enter an order directing Severns to pay child support, the
trial court had not granted her motion. (See Doc. Nos. 20, 60). Thus, R.C.
3109.04(F)(1)(g) is inapplicable to the facts of this case.
{¶38} With regards to R.C. 3109.04(F)(1)(h)—whether either parent has
been convicted of or pleaded guilty to domestic violence or another criminal offense
involving any act that resulted in the child being an abused or neglected child and
whether there is reason to believe that either parent has acted in a manner resulting
in a child being an abused child or neglected child—the trial court found that
“[t]here has been no criminal convictions that resulted in a child being an abused or
neglected child, nor has there been any criminal [sic] toward the child.” (Doc. No.
93). The record supports the trial court’s findings in this respect. First, there is no
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evidence in the record suggesting that Severns or Foster, or any member of
Severns’s or Foster’s household, had previously been convicted of or pleaded guilty
to any criminal offense that resulted in a child being an abused or neglected child,
previously been determined to be the perpetrator of an act resulting in the abuse or
neglect of a child, been convicted of domestic violence or a sexually oriented
offense, or committed a crime against A.S. Although the record establishes that
Severns had been thrice convicted of operating a vehicle under the influence, the
last such conviction occurred in 2012, well before A.S.’s birth. (See Apr. 16, 2018
Tr. at 23-29, 141-142, 209, 260). Furthermore, there is no evidence that either
Severns or Foster have committed any other crimes during A.S.’s lifetime. Both
Severns and Foster admitted to prior drug use. (See Apr. 16, 2018 Tr. at 141-142,
209-211); (See Apr. 17, 2018 Tr. at 225). However, while Foster accused Severns
of using marijuana and cocaine during A.S.’s lifetime, there is no other evidence in
the record substantiating any of Foster’s claims. (See Apr. 17, 2018 Tr. at 117-118).
In addition, there is no evidence that Foster used drugs during A.S.’s lifetime, and
she denied abusing drugs or alcohol. (Id. at 167). Finally, there is little, if any,
evidence that Severns and Foster were violent or abusive with A.S. or each other.
Chief Brian Zerman (“Chief Zerman”) of the Village of Mount Gilead Police
Department testified that he responded to a report from Foster accusing Severns of
harassing her during an exchange and grabbing her arm in front of A.S. (Apr. 17,
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2018 Tr. at 25-26). However, Chief Zerman testified that he could not recall
whether Foster said she had suffered bruising, that no charges were filed in relation
to the alleged incident, and that he had no knowledge of any further complaints
lodged by Foster against Severns. (Id. at 29-31). Thus, the record supports the trial
court’s R.C. 3109.04(F)(1)(h) findings.
{¶39} Finally, regarding R.C. 3109.04(F)(1)(j)—whether either parent has
established a residence, or is planning to establish a residence, outside of Ohio—the
trial court found that “[n]either parent has established a residence or is planning to
establish a residence outside the State of Ohio.” (Doc. No. 93). The record supports
the trial court’s findings in this respect. The record does not contain any evidence
suggesting that either Severns or Foster have relocated outside of Ohio or that either
of them intend to move out of Ohio. In fact, as reflected by Severns’s and Foster’s
statements that they want A.S. to go to the same Ohio school district and Severns’s
statement that he does not plan on moving out of that school district, the record
affirmatively indicates that both Severns and Foster intend to stay in Ohio. (Apr.
16, 2018 Tr. at 110, 207, 317). Therefore, the record supports the trial court’s R.C.
3109.04(F)(1)(j) findings.
{¶40} Contrary to Foster’s argument, the fact that the trial court may have
relied on Severns’s “self-testimony” in reaching some of its R.C. 3109.04(F)(1)(a)-
(j) findings does not render these findings against the weight of the evidence. The
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trier of fact is in a better position to observe the demeanor of the witnesses, examine
the evidence, and weigh the credibility of the testimony and evidence. Seasons Coal
Co., Inc. v. Cleveland, 10 Ohio St.3d 77, 80 (1984). A witness’s self-interest in the
outcome of the proceedings is but one factor for the trier of fact to consider in
assessing the credibility of the witness. See In re Adoption of Stamps, 1st Dist.
Hamilton No. C-840190, 1984 WL 7069, *4 (Nov. 21, 1984), quoting In re Smith,
12th Dist. Preble No. CA 287, 1981 WL 5107, *3 (Apr. 22, 1981). See also R.C.
2923.03(D) (setting forth a jury instruction in criminal trials advising the jury that
“[t]he testimony of an accomplice does not become inadmissible because of his * *
* self-interest, but the admitted or claimed complicity * * * may affect his credibility
* * * and require that it be weighed with great caution”). In this case, to the extent
that the trial court relied on Severns’s testimony in rendering its findings, it did so
with the knowledge that Severns had an interest in the outcome of the custody
hearing and that, as a result, he possessed a motivation to portray himself in the best
possible light. The trial court was in the best position to evaluate Severns’s
credibility in light of his self-interest, and we find nothing in the record suggesting
that the trial court erred by crediting Severns’s testimony. Therefore, Foster’s
argument is without merit.
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{¶41} Thus, in light of the foregoing, we conclude that the trial court’s best-
interest findings under R.C. 3109.04(F)(1)(a)-(j) are supported by competent,
credible evidence.
{¶42} In addition to attacking the trial court’s findings under R.C.
3109.04(F)(1)(a)-(j), Foster also argues that the trial court erred by finding that she
and Severns cannot communicate effectively and make joint decisions with respect
to A.S. Here, Foster seems to confuse some of the trial court’s findings in its May
30, 2018 judgment. The trial court did, in fact, find that Severns and Foster “do not
have the ability to cooperate and make joint decisions with respect to [A.S.]” (Doc.
No. 93). However, the trial court made this finding under R.C. 3109.04(F)(2)(a) in
support of its conclusion that a shared-parenting arrangement is not in A.S.’s best
interest—a conclusion that Foster does not contest on appeal. While R.C.
3109.04(F)(1) enables a trial court to consider “all relevant factors” in determining
a child’s best interest, it is unclear whether the trial court considered its findings
under R.C. 3109.04(F)(2)(a) as an additional factor relevant to determining A.S.’s
best interest for purposes of designating a residential parent. Nonetheless, to the
extent that the trial court did consider Foster and Severns’s inability to communicate
and cooperate as relevant to A.S.’s best interest, the trial court’s findings in this
respect are supported by the record.
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{¶43} The record is replete with examples of Severns and Foster’s inability
to effectively communicate with one another and make joint decisions regarding
A.S. First, as documented by a number of their exhibits, Severns and Foster are
often incapable of communicating in a civil fashion. Plaintiff’s Exhibit 20 is
illustrative. In Plaintiff’s Exhibit 20, Severns asks Foster the same question on
October 29 and 30, 2016: “How is [A.S.] today?” (Plaintiff’s Ex. 20). Foster does
not respond to Severns until October 31, 2016, after he texted her yet again asking
about A.S. (Id.). At that point, the conversation deteriorates almost immediately
with Foster telling Severns that he “shouldn’t have been doing drugs” and Severns
asking in response whether Foster was on drugs. (Id.). Severns then accuses Foster
of being a liar and calls her “spiteful” and “mean.” (Id.). Many of Severns and
Foster’s text message exchanges document a pattern of tense, unproductive
communication. (E.g., Plaintiff’s Exs. 6, 17, 38, 39); (E.g., Defendant’s Exs. F, O,
S). In addition, the GAL’s report supports the trial court’s findings about how
poorly Severns and Foster communicate. As to Severns, the GAL stated that
Severns “does allow himself to become very upset” with Foster, and he “does appear
to belittle [Foster] and treat her in a very negative way.” (Doc. No. 84). The GAL
stressed that Severns “must * * * learn to act in a manner that is less combative and
belittling toward others.” (Id.). Regarding Foster, the GAL noted that she
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“communicates in a way in which she appears pedantic, inflexible, bossy, and at
times just plain stubborn.” (Id.).
{¶44} Furthermore, the record supports that Severns and Foster cannot make
joint decisions for A.S. The GAL noted that “neither parent can agree on the
simplest of things.” (Id.). The record also evidences that Severns and Foster
frequently disagreed over what to feed A.S., whether A.S. should go to daycare or
stay with family members, who to hire as A.S.’s babysitter, and when and where
A.S. would go for checkups with a pediatrician and other medical treatment. (See
Apr. 16, 2018 Tr. at 123-124, 158, 176, 189-190, 199, 204-205, 235, 285, 289-290,
296-297); (See Apr. 17, 2018 Tr. at 161, 188-189, 207-208). Moreover, many of
these disagreements are borne out in the text messages between Severns and Foster.
Therefore, the record thoroughly supports the trial court’s findings concerning
Severns and Foster’s inability to communicate and make joint decisions in A.S.’s
best interest.
{¶45} Having concluded that the trial court’s findings are supported by
competent, credible evidence, we next address Foster’s argument that the trial court
incorrectly weighed the best-interest factors in favor of designating Severns as
A.S.’s residential parent and legal custodian. Specifically, Foster argues that the
trial court “gave prevailing weight of the measures of the statute essentially to a
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single factor,” which Foster does not identify, instead of weighing the factors “as an
accumulative whole.” (Appellant’s Brief at 7).
{¶46} Foster’s argument is without merit. First, there is no indication in the
trial court’s May 30, 2018 judgment that it actually viewed any one of the R.C.
3109.04(F)(1) factors as more important than any of the others or that its decision
to designate Severns as A.S.’s residential parent was based on just one of its R.C.
3109.04(F)(1)(a)-(j) findings. To the contrary, the trial court’s May 30, 2018
judgment reflects that the trial court considered each of the R.C. 3109.04(F)(1) best-
interest factors before designating Severns as A.S.’s residential parent. More
importantly, even if the trial court clearly gave more weight to one of the R.C.
3109.04(F)(1) best-interest factors than it did to any of the others, the trial court
would not have necessarily abused its discretion. As discussed above, “[t]he trial
court ‘has discretion in determining which factors are relevant,’ and ‘each factor
may not necessarily carry the same weight or have the same relevance, depending
upon the facts before the trial court.’” Krill, 2014-Ohio-2577, at ¶ 29, quoting
Brammer, 2013-Ohio-2843, at ¶ 41, citing Hammond, 2008-Ohio-2310, at ¶ 51.
Thus, so long as the trial court considered each of the factors as required by R.C.
3109.04(F)(1), the trial court had the discretion to give prevailing weight to one
factor if it deemed that doing so was required by the facts of the case.
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{¶47} Finally, the trial court’s decision to disregard the GAL’s shared-
parenting recommendation does not demand a conclusion that the trial court abused
its discretion by designating Severns as A.S.’s sole residential parent. “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. Here, the trial court found that the GAL “supports the shared parenting
despite the [GAL’s] acknowledgement that neither parent can agree on the ‘smallest
of things’ and assigns fault equally between the parties.” (Doc. No. 93). The trial
court also noted that the “hallmark of a shared parenting plan is the ability of the
parties to communicate effectively without rancor regarding their child” and that
Severns and Foster “are unable to work together without conflict.” (Id.). Thus, the
trial court observed that the GAL’s recommendation was inconsistent with the
purposes of shared parenting and that, in some ways, the recommendation was
incompatible with aspects of the GAL’s report.
{¶48} In conclusion, the trial court’s R.C. 3109.04(F)(1) best-interest
findings are supported by a substantial amount of competent, credible evidence in
the record. Furthermore, in light of these findings, the trial court’s decision to
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designate Severns as A.S.’s residential parent and legal custodian was not arbitrary,
unreasonable, or unconscionable. Thus, the trial court did not abuse its discretion
by naming Severns as A.S.’s residential parent.
{¶49} Foster’s assignments of error are overruled.
{¶50} Having found no error prejudicial to the appellant herein in the
particulars assigned and argued, we affirm the judgment of the trial court.
Judgment Affirmed
ZIMMERMAN, P.J. and SHAW, J., concur.
/jlr
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