Castanien v. Castanien

[Cite as Castanien v. Castanien, 2013-Ohio-1393.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
WYANDOT COUNTY
ERIN CASTANIEN, ET AL.,
PLAINTIFFS-APPELLANTS, CASE N0. 16-12-08
v.
S. MICHAEL CASTANIEN, OPINION
DEFENDANT-APPELLEE.
Appeal from Wyandot County Common Pleas Court
Domestic Relations Division
Trial Court No. 08-DR-0113
Judgment Affirmed
Date of Decision: April 8, 2013
APPEARANCES:
Gary S. Wellbaum for Appellants
Kevin P. Collins for Appellee
Case No. 16-12-08
SHAW, J.
{¶1} Plaintiffs-appellants Erin Castanien, Tim Aller, and Jean Aller
(collectively “appellants”), appeal the April 19, 2012, judgment of the Wyandot
County Court of Common Pleas, Domestic Relations Division, granting Erin’s ex-
husband, Michael Castanien, custody of Erin and Michael’s three children. For
the reasons that follow, we affirm the judgment of the trial court.
{¶2} Erin and Michael were married April 22, 2003. They had three
children together: Cole, born in April of 2004, and Macy and Drew, twins, born in
October of 2006. On November 3, 2008, Erin filed a complaint for divorce. The
divorce proceedings resulted in numerous hearings which concluded on January
12, 2010.1 On February 10, 2010, the Magistrate presiding over the divorce filed a
decision that, inter alia, granted custody of the parties’ three children to Erin.
(Doc. 64). Michael was granted parenting time according to the local rule. (Id.)
On February 25, 2010, the trial court filed an entry stating that it had
independently reviewed the Magistrate’s decision and that the court adopted and
approved the Magistrate’s decision. (Doc. 65). The trial court ordered Erin’s
attorney to prepare an entry consistent with its holding for the court to review.2
(Id.)
1
Other hearings occurred May 4, 2009, August 19, 2009, November 10, 2009.
2
That entry was prepared and filed on April 5, 2010. (Doc. 71).
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{¶3} Subsequently, on March 5, 2010, a Friday evening, Erin attempted to
commit suicide. Erin would later state that she made the decision to attempt
suicide on the very day of her attempt while her children were napping, though she
did not actually make the attempt until later Friday evening after Michael had
retrieved the children from Erin’s home for his weekend visitation around 6:00
P.M.
{¶4} On the night of the suicide attempt, when the children left Erin’s
residence with Michael, Erin wrote a suicide note, took some pills, and then went
to lie down. In her attempt, Erin had to take additional pills more than one time.
Erin was found by her mother the next day and was life-flighted and hospitalized.
Erin does not recall any event from Friday evening until Sunday when she woke
briefly and then went back to sleep.
{¶5} On March 11, 2010, Michael filed an “Exparte Motion for Emergency
Custody” of the parties’ three children arguing that Erin was hospitalized from her
suicide attempt.3 (Doc. 66). That same day, the motion was granted. (Doc. 69).
{¶6} While Erin was in the hospital recovering from her suicide attempt,
cellulitis developed in her leg and she was treated for that. Erin remained in the
hospital for two weeks, and then moved into the home of her parents where she
has since resided. Prior to the suicide attempt, Erin had been living independently.
3
The motion does not actually use the term “suicide,” rather at this point the attempted suicide was referred
to as an “overdose.”
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{¶7} On April 23, 2010, Michael filed a motion to reallocate parental rights
and responsibilities, requesting that he be designated the legal and residential
parent of the parties’ three children. (Doc. 72).
{¶8} On June 9, 2010, a judgment entry was filed regarding temporary
orders that continued Michael’s temporary custody, but also gave Erin supervised
visitation of the parties’ children. (Doc. 86).
{¶9} On June 17, 2010, Erin requested the appointment of Mary Snyder as
Guardian ad Litem (“GAL”), a private GAL on the court’s approved appointment
list. (Doc. 87). On June 18, 2010, that motion was granted and Mary Snyder was
officially appointed. (Doc. 89); (Doc. 93).
{¶10} On June 22, 2010, Tim and Jean Aller, Erin’s parents who she was
residing with, filed a motion to intervene to request companionship or visitation
rights with the parties’ children. (Doc. 91). On July 12, 2010, that motion was
granted. (Doc. 92).
{¶11} On August 24, 2010, Erin filed a “Motion for Reallocation of
Parental Rights and Responsibilities.”4 (Doc. 97).
{¶12} On August 24, 2010, Tim and Jean Aller filed a “Motion for
Grandparent companionship or visitation rights and/or temporary and/or
permanent parenting time.” (Doc. 98).
4
This motion actually mischaracterizes Erin as Defendant in this matter, then later refers to her as the
Plaintiff. (Doc. 97).
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{¶13} On August 23, 2010, Mary Snyder filed a notice of filing of GAL
report. (Doc. 96). The GAL’s report stated, “[a]t this time, the undersigned
cannot advise the Court as to which parent would make a better residential parent,
as neither currently seems appropriate for the task. The undersigned suggests that
the matter be continued for a period of three months and that during that time the
children be placed in the temporary custody of Tim and Jean Aller.” (Emphasis
sic) (Plaintiff’s Ex. 28). The GAL further recommended frequent unsupervised
parenting time for both parents, and that Erin should move out of the Aller’s home
and establish her own residence. (Plaintiff’s Ex. 28).
{¶14} A full evidentiary hearing on the post-decree change of custody
motions pending before the court was conducted before the Magistrate on multiple
dates: October 12, 2010, December 21, 2010, and February 16, 2011. The
Magistrate heard testimony from the parties, Cole’s kindergarten teacher, a speech
therapist that evaluated Drew, an outpatient mental health therapist that worked
with Erin, Erin’s sister, the GAL, and the mother of each party. In addition, trial
depositions were taken of medical doctors that worked with the children and Erin.
Following the hearing on February 16, 2011, the parties were invited to file
written closing arguments.
{¶15} On February 9, 2011, just before the last evidentiary hearing, the
GAL filed a notice of filing a supplemental report. (Doc. 144). In this report, the
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GAL argued that no change of circumstances had occurred and thus custody
should revert back to Erin. (Plaintiff’s Ex. 29). The report did not explicitly
address the best interests of the children.
{¶16} On February 24, 2011, Michael filed his closing argument. (Doc.
151). On February 25, 2011, appellants filed their closing argument. (Doc. 152).
{¶17} On April 5, 2011, the Magistrate filed a 43 page decision granting
Michael’s motion for change of custody. (Doc. 153). In the decision, the
Magistrate made extensive findings of fact based on the testimony and the record.
The Magistrate then summarized the “change of circumstances” as follows:
In order to begin an analysis it must first be shown that a change
in circumstance to the residential parent or the children ha[s]
occurred. This is uncontroverted by the testimony, although
Plaintiff fails to recognize the change. Plaintiff tried to kill
herself. The children had to leave their home and live with
Defendant. They had to change schools, adjust to a new
environment, make new friends, and have a new schedule. All
without any notice. Plaintiff was hospitalized for weeks. She
now lives with her parents. She is not independent. Plaintiff is
being supported financially and emotionally by her parents.
There has been a change of circumstances.
{¶18} The Magistrate then went on to discuss whether the benefit of the
change outweighed the harm, specifically addressing each relevant best interest
factor in R.C. 3109.04(F)(1). Some things the Magistrate found persuasive were
health and behavioral improvements of the children while in the custody of
Michael, Erin’s mental health condition (which according to the Magistrate’s
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decision from the divorce, was not mentioned as an issue when originally
determining custody), and Michael being more likely to facilitate parenting time.
The Magistrate went on to discuss how her ultimate conclusion that it was in the
children’s best interest that Michael be granted custody differed from the GAL and
why the Magistrate felt that determination was appropriate despite the GAL’s
recommendation.
{¶19} On April 19, 2011, appellants filed initial objections to the
Magistrate’s decision. (Doc. 154). On July 12, 2011, appellants filed
supplemental objections to the Magistrate’s decision. (Doc. 169). In total, there
were over 100 objections to the Magistrate’s decision. On July 27, 2011, Michael
filed a memorandum opposing the objections. (Doc. 174).
{¶20} On December 1, 2011, the trial court filed a 33 page judgment entry
after conducting its independent review and analysis of the decision in light of the
objections.5 (Doc. 177). In its entry, the court specifically addressed each
objection, and then the court found that “the findings of fact set forth in the
magistrate’s decision, and as modified herein by the prior rulings on the
objections, are supported by the evidence, and the court therefore adopts them in
their entirety[.]”6 (Id.) The court then adopted the Magistrate’s award of custody
5
The pages were not numbered and were hand counted.
6
The entry not only dealt with appellants’ objections, but the GAL’s objections as well. In addition, the
court addressed claims that the Magistrate was biased finding them without support.
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of the parties’ three children to Michael. The court did, however, remand the
matter back to the Magistrate for further consideration of child support. (Id.)
{¶21} The court’s judgment entry was appealed, but that appeal was
ultimately dismissed for lack of a final appealable order as the Magistrate still had
to address the child support issues upon remand. (Doc. 182).
{¶22} On February 1, 2012, the Magistrate held a hearing on the remanded
child support issues. On February 27, 2012, a Magistrate’s Decision was filed
dealing with the remanded child support issues. (Doc. 183). On April 19, 2012, a
final judgment entry was filed adopting the Magistrate’s Decision, designating
Michael legal custodian and residential parent of the parties’ three children, and
addressing the child support issues that had been remanded. (Doc. 186).
{¶23} It is from this judgment that appellants appeal, asserting the
following assignment of error for our review.
ASSIGNMENT OF ERROR
THE TRIAL COURT ABUSED ITS DISCRETION AND
ERRED AS A MATTER OF LAW BY DISREGARDING,
WITHOUT ANY VALID BASIS OR JUSTIFIABLE CAUSE,
THE GUARDIAN AD LITEM’S REPORTS,
RECOMMENDATIONS, AND TESTIMONY HEREIN
THEREBY EFFECTIVELY LEAVING THE BEST
INTERESTS OF THE CHILDREN HEREIN
UNREPRESENTED IN THE TRIAL COURT PROCEEDINGS.
{¶24} In their assignment of error, appellants argue that the trial court
disregarded the GAL’s reports, recommendations, and testimony and thereby
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effectively dismissed the GAL. Specifically, appellants argue that four assertions
by the Magistrate in the Magistrate’s Decision were unfounded and were
tantamount to dismissal of the GAL. Appellants argue that under the Rules of
Superintendence, the Magistrate should have appointed another GAL to represent
the best interests of the children.
{¶25} At the outset, we would begin by addressing the fact that in their
brief and reply brief to this court, appellants cite no case law or statutory authority
supporting their argument. Appellants loosely refer to Rule 48 of the Rules of
Superintendence as guidelines supporting their argument.7 However, we have
previously held that “[t]he Rules of Superintendence ‘do not have the same force
as a statute or case law, but are rather purely internal housekeeping rules which do
not create substantive rights in individuals or procedural law.’” Heilman v.
Heilman, 3d Dist. No. 6-12-08, 2012-Ohio-5133, ¶ 33, quoting Elson v. Plokhooy,
3d Dist. No. 17-10-24, 2011-Ohio-3009, ¶ 40. Thus, appellants’ reliance on the
Rules of Superintendence under our own case law is misplaced as the rules do not
create rights. In Heilman and Elson, this court has overruled assignments of error
for solely relying on the Rules of Superintendence for support. Based upon our
prior holdings, appellants cannot maintain their argument.
7
This is the only “authority” appellants cite in their Table of Authorities in their brief.
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{¶26} However, as appellants’ argument is also without merit, we will also
address it on its factual basis. In their brief, appellants direct us to look at four
assertions in the Magistrate’s decision that they say were unfounded. The
particular assertions in the Magistrate’s Decision that appellants refer to are taken
from a portion where the Magistrate is discussing the GAL. The portion reads as
follows:
[1] Given her frequent communication with Plaintiff, [2] her
association with Plaintiff apart from her Guardian ad Litem
duties, [3] making a criminal complaint against Defendant, and
[4] her posture as an advocate for Plaintiff the Guardian ad
Litem has lost her objectivity and this effects [sic] this
Magistrate’s acceptance of her report and her testimony.
(Doc. 153).8
{¶27} Appellants argue that this segment illustrates that the Magistrate
disregarded and effectively dismissed the GAL and that the assertions by the
Magistrate are not supported by the record. Appellants do concede in their brief
that the Magistrate is free to disagree with the GAL. Appellants are instead
arguing that that this segment cited shows the Magistrate effectively dismissed the
GAL and therefore left the best interests of the children unrepresented.
{¶28} Despite appellants’ arguments, it is clear from the record that the
GAL’s testimony and recommendation were thoroughly analyzed and considered
by the Magistrate and that the GAL was not “effectively dismissed.” By the
8
Numbers were added for ease of understanding of the four separate assertions appellants argue were
unfounded.
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language of the segment cited above, the Magistrate only stated that the
considerations affected the acceptance of the GAL’s report and testimony, not that
they caused the Magistrate to completely disregard the GAL’s opinions.
{¶29} In fact, the Magistrate’s initial discussion of the GAL covers five
pages of the Magistrate’s Decision and details areas where the Magistrate
disagreed with the GAL’s conclusions. The segment appellants cite as improper is
in the ninth paragraph of eleven consecutive paragraphs of the Magistrate’s
Decision addressing the GAL’s testimony, reports, and recommendation. The
following excerpts illustrate some other portions of the Magistrate’s analysis
through those pages:
The Guardian ad Litem found Plaintiff to be a prolific
communicator and the Guardian ad Litem did not find anything
Plaintiff told her to be untrue. The undersigned found
differently, as Plaintiff was often inconsistent in her testimony
and with the testimony of others.
***
The Guardian ad Litem believes if Plaintiff was mentally unable
to deal with being custodial parent, that she would show signs in
other areas, such as being disheveled, not being able to hold
down a job, fighting with her parents. However, Plaintiff
showed none of these signs prior to her suicide attempt.
***
The Guardian ad Litem believes everything Plaintiff told her,
and did not believe things Defendant told her. Plaintiff told the
Guardian ad Litem that certain clothing items came to her from
Defendant in a certain way, and without any verification the
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Guardian ad Litem believed Plaintiff. The Guardian ad Litem
did find Defendant’s house to be immaculate and that Cole
attends school clean. The Guardian ad Litem was surprised at
how clean Defendant keeps his house, as she expected something
consistent with pictures Plaintiff provided her.
(Doc. 153).
{¶30} Later in the Magistrate’s decision, as the Magistrate is addressing
best interests of the children, the Magistrate again discusses the GAL’s testimony,
reports, and recommendation over four paragraphs spanning another four pages
further illustrating why the Magistrate disagreed with the GAL. The following is
an excerpt of that discussion:
The initial Guardian ad Litem report indicated that the children
should reside with Third Party Defendant, Allers. The
Guardian ad Litem also outlined several concerns she felt
needed addressed. These concerns included Drew’s speech issue
and his medical issues regarding constipation. Defendant has
addressed Drew’s speech issues and they no longer are present.
There was no testimony, outside Plaintiff, that Defendant is
inappropriately managing Drew’s functional constipation issues.
Drew has the same issues with Defendant he had with Plaintiff
and the doctor is not overly concerned with those issues at this
point. The Guardian ad Litem also has concerns regarding the
parties ability to effectively communicate. This is a concern for
the undersigned as well. * * * However, the Third Party
Defendant that the Guardian ad Litem recommends the children
live with have such a dislike for Defendant that Jean Aller can
say NOTHING positive or nice about Defendant. Further
Plaintiff lives with the Allers, so that recommendation essentially
places the children with Plaintiff whom the Guardian ad Litem
initially stated cannot care for them. That is not in the
children’s best interests.
(Emphasis sic). (Doc. 153).
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{¶31} Based on the discussion, there is nothing to suggest that the
Magistrate wholly disregarded and “effectively dismissed” the GAL as the
Magistrate went to great lengths to analyze the GAL’s testimony and
recommendations. The discussion shows that the Magistrate generally disagreed
with the GAL rather than dismissed the GAL’s conclusions altogether.
{¶32} Furthermore, we would note that the Magistrate’s criticisms of the
GAL, which appellants claim are inappropriate in a specific segment and
tantamount to dismissal of the GAL, could be considered legitimate. In the
segment appellants cite, the Magistrate points to the frequency of contact between
Erin and the GAL. It is true from the record that far less contact occurred between
Michael and the GAL. Also in her decision the Magistrate points out that the
GAL knew more about the children in this case because her child was in the same
class as one of the children in this case. The record also illustrates that the GAL
and her child also happened to be at a birthday party wherein Erin and her child
were attending. Moreover, it is undisputed that the GAL filed a criminal
complaint against Michael and contacted children’s services on behalf of Macy.
No charges were ultimately brought and the children’s services investigation
found that any alleged wrongdoing on behalf of Michael was unsubstantiated.
Finally, the trial court addressed the “bias” claim in its review of appellants’
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objections, and found the Magistrate’s interpretation to be reasonable. The trial
court found that,
A review of both the initial and supplemental reports show that
the GAL focuses on the change of circumstances issue, which is
not appropriate in a GAL report and is strong evidence of bias
towards a party rather than a focus on the best interests of the
children. * * * The magistrate is free to accept or reject the
GAL’s recommendation, and to test the GAL’s credibility.
{¶33} Thus all of the Magistrate’s findings that were cited as inappropriate
were supported by the record and therefore could be considered to be legitimate
criticisms made by the Magistrate.
{¶34} However, even if the criticisms were unfounded, and even if the
Magistrate had somehow improperly disregarded the GAL’s testimony, there was
still significant evidence cited in the lengthy decision of the Magistrate supporting
granting Michael custody. Therefore even if we found the assertions by the
Magistrate regarding the GAL to be inappropriate and struck the portion of the
Magistrate’s decision containing them, the record still supports the ultimate
outcome.
{¶35} For all of the foregoing reasons, appellants’ assignment of error is
overruled and the judgment of the Wyandot County Court of Common Pleas,
Domestic Relations Division, is affirmed.
Judgment Affirmed
PRESTON, P.J. and WILLAMOWSKI, J., concur.
/jlr
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