In re C.D.M.

[Cite as In re C.D.M., 2013-Ohio-3792.]
IN THE COURT OF APPEALS OF OHIO
FOURTH APPELLATE DISTRICT
HOCKING COUNTY
IN THE MATTER OF: :
C.D.M. :
Case No. 13CA1
:
DECISION AND
: JUDGMENT ENTRY
: RELEASED 08/28/2013
APPEARANCES:
Timothy P. Gleeson, Gleeson Law Office, Logan, Ohio, for Appellant.
Jason M. Donnell, Pickerington, Ohio, for Appellee.
Hoover, J.
{¶ 1} Jeffrey Malone, appellant and father of C.D.M., appeals from the decision of the
Hocking County Common Pleas Court, Juvenile Division, which awarded custody of C.D.M. to
Jennifer Malone, appellee and mother of C.D.M. This case arises from appellee’s motion to
modify a previous custody order that had granted legal custody to appellant. Appellant argues
that the trial court committed reversible error when it relied upon “unfounded, unsupported, and
inaccurate factual findings” in determining that a change in circumstance had occurred
warranting modification of the previous custody decree. Appellant further contends that the trial
court erred by relying upon the contents of the guardian ad litem’s report as substantive evidence
in its best interest determination, where the guardian ad litem did not testify at the modification
hearing and where the report was not admitted as an exhibit at the modification hearing.
Because a substantial amount of competent and credible evidence supports the trial court’s
Hocking App. No. 13CA1 2
finding that there has been a significant change in circumstances since the original custody
decree and that a change in custody would be in the best interest of C.D.M., we hold that the trial
court did not abuse its discretion in modifying custody. Moreover, because the trial court
afforded the appellant the opportunity to cross-examine the guardian ad litem concerning her
report and recommendation, it was proper for the trial court to consider the report in making its
best interests determination.
{¶ 2} Accordingly, we affirm the judgment of the trial court.
I
FACTS
{¶ 3} Appellant and appellee are the natural parents of C.D.M. In March 2004, the Ross
County Common Pleas Court, Juvenile Division, entered an order awarding legal custody of
C.D.M. to appellant. On October 5, 2010, appellee filed a pro se motion for custody in Hocking
County, alleging that appellant was in jail on multiple charges of gross sexual imposition against
a minor child, not C.D.M. Appellant was released from jail on October 8, 2010, and was never
convicted of any of the charges. The criminal case was eventually dismissed.
{¶ 4} On October 27, 2010, the trial court conducted a preliminary hearing on appellee’s
motion. Both appellant and appellee appeared pro se. Two days later, the trial court ordered that
appellee have temporary custody of C.D.M., that appellant have supervised visitation rights, and
that a guardian ad litem be appointed to represent the interests of C.D.M.
{¶ 5} A Report of the Guardian Ad Litem was filed with the trial court in December
2010. The guardian ad litem recommended that appellee be named C.D.M.’s residential parent
Hocking App. No. 13CA1 3
and legal custodian. Thereafter, the proceedings were stayed pending outcome of appellant’s
criminal case.
{¶ 6} Then on November 7, 2011, the guardian ad litem filed an ex-parte Motion of
Guardian Ad Litem to Temporarily Suspend Visitation. The motion alleged that the supervised
visitation between C.D.M. and appellant was no longer in the best interest of C.D.M. because she
was, among other allegations, “being bombarded by negative information [regarding appellee]
while seeing her father.” On that same day the trial court granted the motion and barred
appellant from contacting or visiting C.D.M.
{¶ 7} In April 2012, attorney Timothy P. Gleeson entered his appearance on behalf of
appellant. Shortly thereafter, appellant filed a Motion to Establish Parental Companionship with
a request for hearing.
{¶ 8} On June 12, 2012, the trial court conducted an in camera interview of C.D.M. As
a result of the interview, the trial court granted appellant three visits with C.D.M.
{¶ 9} The final modification hearing was held on July 18, 2012. Appellee appeared pro
se and testified as a witness. Appellee also called her sister to testify as a witness. Appellant
was present along with counsel and testified. The guardian ad litem was also present and
participated in the hearing. The guardian ad litem did not testify; but at the conclusion of the
hearing the trial court asked the parties if they wished to question the guardian ad litem
concerning her report. Neither party chose to question the guardian ad litem.
{¶ 10} On December 18, 2012, the trial court issued its decision granting legal custody
of C.D.M. to appellee. The entry stated in pertinent part:
Hocking App. No. 13CA1 4
The Court conducted a final hearing on July 18, 2012, and finds that there
has been a substantial change of circumstances since March 9, 2004, when
the Ross County Juvenile Court granted custody of the child to Father.
Specifically, Father was charged with gross sexual imposition, was
incarcerated and it was necessary for the Court to place the child with the
Mother pending the disposition and ultimate dismissal of gross sexual
imposition charges against the Father. During the intervening two year
period the child (now 13 years old, DOB 11/04/1998) has noticeably
improved her academic school performance and has expressed a desire to
live with her mother.
The guardian ad litem recommended that Mother’s motion be granted and
identified numerous actions by the Father that were contrary to the child’s
best interests: Father attempted to manipulate the child’s testimony and to
make negative comments to the child about the mother.
Wherefore the Court finds that it is in the best interests of the child to
grant Mother’s motion for custody.
Appellant timely filed his notice of appeal.
II
ASSIGNMENTS OF ERROR
{¶ 11} Appellant assigns three errors for our review:
First Assignment of Error:
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THE TRIAL COURT COMMITTED REVERSIBLE ERROR WHEN IT MADE
AND RELIED UPON UNFOUNDED, UNSUPPORTED, AND INACCURATE
FACTUAL FINDINGS.
Second Assignment of Error:
THE TRIAL COURT COMMITTED REVERSIBLE ERROR FINDING A
CHANGE OF CIRCUMSTANCE OCCURRED ABSENT SUPPORT OF A
SUBSTANTIAL AMOUNT OF CREDIBLE AND COMPETENT EVIDENCE.
Third Assignment of Error:
THE TRIAL COURT COMMITED REVERSIBLE ERROR BY
CONSIDERING AND RELYING UPON CONTENTS OF THE GUARDIAN
AD LITEM’S REPORT AS SUBSTANTIVE EVIDENCE.
III
STANDARD OF REVIEW
{¶ 12} In his first two assignments of error, appellant contends that the trial court abused
its discretion by relying upon “unfounded, unsupported, and inaccurate” factual findings in
making its determination that a change of circumstance warranted modification of the custody
decree. Similarly, in his third assignment of error appellant contends that the trial court abused
its discretion by relying upon the guardian ad litem’s report in making its best interest
determination. Generally, “[d]ecisions concerning child custody matters rest within the sound
discretion of the trial court.” Eatherton v. Behringer, 3rd Dist. Seneca No. 13-11-12, 2012-Ohio-
1584, ¶ 13, citing Miller v. Miller, 37 Ohio St.3d 71, 74, 523 N.E.2d 846 (1988). “Custody
determinations are some of the most difficult and agonizing decisions a trial judge must make,
and, therefore, appellate courts must grant wide latitude to their consideration of the evidence.”
Id., citing Davis v. Flickinger, 77 Ohio St.3d 415, 418, 674 N.E.2d 1159 (1997). Ordinarily, “a
reviewing court will not reverse a trial court’s decision regarding child custody absent an abuse
of discretion.” Id., citing Masters v. Masters, 69 Ohio St.3d 83, 85, 630 N.E.2d 665 (1994). The
Hocking App. No. 13CA1 6
phrase “abuse of discretion” connotes an attitude on the part of the court that is unreasonable,
unconscionable, or arbitrary. State v. Adams, 62 Ohio St.2d 151, 157, 404 N.E.2d 144 (1980).
As this court has previously explained:
An abuse of discretion involves far more than a difference in opinion. The term
discretion itself involves the idea of choice, of an exercise of the will, of a
determination made between competing considerations. In order to have an
“abuse” in reaching such determination, the result must be so palpably and
grossly violative of fact and logic that it evidences not the exercise of will but
perversity of will, not the exercise of judgment but defiance thereof, not the
exercise of reason but rather of passion or bias.
Jones v. Jones, 4th Dist. Highland No. 06CA25, 2007-Ohio-4255, ¶ 32. According to the
Supreme Court of Ohio, a trial court does not abuse its discretion in this context if its judgment is
supported by “ ‘a substantial amount of credible and competent evidence.’ ” Davis at 418,
quoting Bechtol v. Bechtol, 49 Ohio St.3d 21, 550 N.E.2d 178 (1990), syllabus.
{¶ 13} “While a trial court’s discretion in a custody modification proceeding is broad, it
is not absolute, and must be guided by the language set forth in R.C. 3109.04.” Miller at 74.
R.C. 3109.04(E)(1)(a) provides:
The court shall not modify a prior decree allocating parental rights and
responsibilities for the care of children unless it finds, based on facts that have
arisen since the prior decree or that were unknown to the court at the time of the
prior decree, that a change has occurred in the circumstances of the child, the
child’s residential parent, or either of the parents subject to a shared parenting
decree, and that the modification is necessary to serve the best interest of the
Hocking App. No. 13CA1 7
child. In applying these standards, the court shall retain the residential parent
designated by the prior decree or the prior shared parenting decree, unless a
modification is in the best interest of the child and one of the following applies:
(i) The residential parent agrees to a change in the residential parent or both
parents under a shared parenting decree agree to a change in the designation of
residential parent.
(ii) The child, with the consent of the residential parent or of both parents under a
shared parenting decree, has been integrated into the family of the person seeking
to become the residential parent.
(iii) The harm likely to be caused by a change of environment is outweighed by
the advantages of the change of environment to the child.
IV
ANALYSIS
A. Changed Circumstances Determination
{¶ 14} Appellant’s first and second assignments of error challenge the trial court’s
determination that there was a change in circumstances sufficient to warrant modification of the
previous custody order. Specifically, appellant contends that the trial court’s changed
circumstances determination was based on conclusions that were not supported by the evidence
adduced at the modification hearing or in camera interview of C.D.M. Because assignments of
error one and two are interrelated, we will consider them together for purposes of this appeal.
{¶ 15} The trial court determined that there had been a substantial change of
circumstances warranting modification of the Ross County custody order because: (1) appellant
Hocking App. No. 13CA1 8
was charged with gross sexual imposition, (2) was incarcerated, and thus temporary custody of
C.D.M. by appellee was necessary pending the disposition of the criminal case; (3) during the
two year period in which C.D.M. was in the temporary custody of appellee, there was a
noticeable improvement in her academic performance; and (4) C.D.M. expressed a desire to live
with the appellee. While we acknowledge that two of the findings of fact relied upon by the trial
court are inaccurate, we nonetheless conclude that the trial court made sufficient findings of fact
to support its decision to modify custody and that the record is replete with competent credible
evidence to support the same.
{¶ 16} “ ‘The purpose of requiring a change in circumstance is to prevent a constant
relitigation of the issues raised and considered when the trial court issued its prior custody
order.’ ” Price v. Price, 4th Dist. Highland No. 99CA12, 2000 WL 426188, *2 (Apr. 13, 2000).
“ ‘The statute is an attempt to provide some stability to the custodial status of the children, even
though the parent out of custody may be able to prove that he or she can provide a better
environment.’ ” Davis, 77 Ohio St.3d at 418, 674 N.E.2d 1159, quoting Wyss v. Wyss, 3 Ohio
App.3d 412, 416, 445 N.E.2d 1153 (10th Dist.1982). Thus, a change in circumstance is a
threshold requirement intended to provide some stability to the custodial status of the child. In
re Brayden James, 113 Ohio St.3d 420, 2007-Ohio-2335, 866 N.E.2d 467, ¶ 15; Davis at 418,
citing Wyss at 416. Because of this need for stability in the child’s life, any change in
circumstances must be substantive and significant. See Jones, 2007-Ohio-4255 at ¶ 36 (“But, a
trial court is limited to the extent that a change in circumstances cannot be based on a slight or
inconsequential change; it must be one of substance.”); Bragg v. Hatfield, 152 Ohio App.3d 174,
2003-Ohio-1441, 787 N.E.2d 44, ¶ 23 (4th Dist.) (“The change [of circumstances] must be
significant – something more than a slight or inconsequential change.”) Ohio courts have
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generally interpreted the phrase change of circumstances to mean “ ‘an event, occurrence, or
situation which has a material and adverse effect upon a child.’ ” In re D.M., 8th Dist. Cuyahoga
No. 87723, 2006-Ohio-6191, ¶ 35, quoting Rohrbaugh v. Rohrbaugh, 136 Ohio App.3d 599,
604-05, 737 N.E.2d 551 (7th Dist.2000); Lindman v. Geissler, 171 Ohio App.3d 650, 2007-
Ohio-2003, 872 N.E.2d 356, ¶ 33 (5th Dist.); Pedraza v. Collier, 3rd Dist. Henry No. 7-06-03,
2007-Ohio-3835, ¶ 18.
{¶ 17} We begin by noting that the record does not support the trial court’s conclusion
that the charges brought against appellant caused him to be incarcerated, in turn requiring
appellee to take temporary custody of C.D.M. The appellant testified at the modification hearing
that he was incarcerated until October 8, 2010. The preliminary hearing in which appellee was
awarded temporary custody did not occur until October 27, 2010; after the appellant had been
released from jail. The entry of October 29, 2010, indicates that the appellant was present at the
preliminary hearing; and the entry awarded supervised visitation to appellant. To the extent that
the trial court, in its changed circumstances determination, relied upon its flawed finding that
appellant was incarcerated, it erred.
{¶ 18} The record also does not support the trial court’s conclusion that C.D.M.
expressed a desire to live with appellee. In fact, the record is quite clear that C.D.M. strongly
desired to live with appellant. During the in camera interview C.D.M stated: “There is really
nothing I would change, but I would like to stay with my dad[,]” and later, “I feel strongly about
living with my father like I want to strongly.” Simply said, the trial court’s conclusion
concerning the wishes of C.D.M. directly contradicts the testimony of C.D.M., and other record
evidence does not support the conclusion.
Hocking App. No. 13CA1 10
{¶ 19} Having determined that the trial court erred in basing its change in circumstance
finding on the mistaken conclusions that appellant was incarcerated and that C.D.M. expressed a
desire to live with appellee; we are left to decide whether appellant’s indictment on charges of
gross sexual imposition, C.D.M.’s scholastic improvement while in the temporary custody of
appellee, and other record evidence is sufficient to support a change in circumstance finding.
{¶ 20} This court has previously held that unsubstantiated allegations of sexual abuse, in
and of itself, is insufficient to constitute a change of circumstance justifying the modification of a
custody decree. See Stover v. Plumley, 113 Ohio App.3d 839, 843, 682 N.E.2d 683 (4th
Dist.1996) (“[T]he unsubstantiated allegations of sexual abuse are only one factor that a court
may consider when determining whether a change in circumstances has occurred.”). We have
also held, however, that the arrest of the residential parent may constitute a change in
circumstance warranting modification of custody. See Bauer v. Bauer, 4th Dist. Gallia No.
06CA2, 2006-Ohio-7096 (finding that residential parent’s arrest for felony possession of a
controlled substance with intent to deliver constituted a change in circumstance under R.C.
3109.04(E)(1)(a)).
{¶ 21} In the case sub judice, we find that appellant’s indictment on charges of gross
sexual imposition, coupled with the ancillary effects of the charges, was a sufficient change in
circumstance to support the subsequent modification of custody. Despite the ultimate outcome
of the criminal case against appellant, the severe nature of the charges1 required temporary
placement of C.D.M. with appellee to ensure her safety and well-being. We cannot ignore
C.D.M.’s temporary placement with appellee. Perhaps even more troubling were the reports that
1The record reveals that the charges stemmed from alleged conduct between appellant and a
seven year old and three year old child.
Hocking App. No. 13CA1 11
appellant had intended to make C.D.M. his star defense witness, going so far as allegedly
recording her statements concerning his relationships with children. Placing such immense
pressure on C.D.M. would have a material, adverse effect on her well-being.
{¶ 22} We also recognize that, apart from the trial court’s stated reasons, the record
amply supports a finding of a substantial change in circumstances. Not only has C.D.M.’s grades
improved under the temporary care of appellee, but her attendance has also greatly improved.
There was also evidence that appellant had recently been suffering from depression, was unable
or unwilling to procure employment, and was delinquent on child support payments. Even
though the trial court failed to discuss these changes in its decision, they support a modification
of custody.
{¶ 23} Based on the foregoing, we conclude that substantial competent and credible
evidence supports the trial court’s finding that a change in circumstances has occurred
warranting modification of custody. Accordingly, appellant’s first and second assignments of
error are overruled.
B. Consideration of the Guardian Ad Litem’s Report
{¶ 24} In his third assignment of error, appellant contends that the trial court erred
because it relied upon the guardian ad litem’s report in making its best interest determination.
Appellant argues that because the report was not offered as evidence at the modification hearing,
and because the guardian ad litem did not testify at the hearing, the report could not be relied
upon as substantive evidence. Moreover, appellant contends that the report contains
inadmissible hearsay statements.
Hocking App. No. 13CA1 12
{¶ 25} In any action pertaining to the allocation of parental rights and responsibilities,
the duties of the guardian ad litem include investigating the background of the parents and
delivering a report and recommendation to the court regarding the child’s best interests. Webb v.
Lane, 4th Dist. Athens No. 99CA12, 2000 WL 290383, *2 (Mar. 15, 2000), citing In re Baby
Girl Baxter, 17 Ohio St.3d 229, 232, 479 N.E.2d 257 (1985), and In re Pryor, 86 Ohio App.3d
327, 339, 620 N.E.2d 973 (4th Dist.1993). The trial court may consider the report of the
guardian ad litem without the oral testimony of the investigator and despite the hearsay inherent
in the report. Id. at *3, citing Eitel v. Eitel, 4th Dist. Pickaway No. 95CA11, 1996 WL 482703(Aug. 23, 1996), and Corrigan v. Corrigan, 4th Dist. Ross No. 1300, 1986 WL 15205 (Dec. 30,
1986). However, if the trial court chooses to consider the report of the guardian ad litem as
evidence, it must afford the parties “sufficient due process protection by making the [guardian ad
litem] available for cross-examination.” Id. Put another way, “in order to consider a guardian ad
litem’s report without violating the parties’ due process rights, [the court] must afford all parties
the opportunity to cross-examine the guardian ad litem regarding his or her report.” Id.{¶ 26} In this case, it is undisputed that the trial court considered the guardian ad litem’s
report which was filed well in advance of the final modification hearing. While the guardian ad
litem did not testify regarding the report, she was present at the final modification hearing. At
the conclusion of the hearing the following colloquy took place:
THE COURT: So, Jennifer, do you – does the Guardian ad Litem have any
independent [sic] other than what you presented in your written report?
GAL: No, but I would testify if anybody wanted me to regarding my report.
Hocking App. No. 13CA1 13
THE COURT: Okay. Does any party wish to have the Guardian ad Litem
testify?
MR. GLEESON: No, thank you.
Based on the record, it is clear that the trial court afforded appellant the opportunity to cross-
examine the guardian ad litem concerning her report. Accordingly, it was not error for the trial
court to consider the report in making its best interests determination and appellant’s third
assignment of error is overruled.
V
CONCLUSION
{¶ 27} The trial court reasonably concluded on the record before us that there had been a
material change in circumstances adversely affecting the welfare of C.D.M. and that it would be
in the best interest of C.D.M. to modify the previous custody order. Accordingly, we conclude
that the trial court did not abuse its discretion in modifying the prior custody decree to grant
appellee legal custody of C.D.M. Moreover, the trial court was permitted to consider the
guardian ad litem’s report and recommendation because it made the guardian ad litem available
to the appellant for cross-examination.
{¶ 28} The judgment of the trial court is affirmed.
JUDGMENT AFFIRMED.
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JUDGMENT ENTRY
It is ordered that the JUDGMENT IS AFFIRMED. Appellant shall pay the costs herein
taxed.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the Hocking County
Common Pleas Court, Juvenile Division, to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the
Rules of Appellate Procedure.
Harsha, J. and Abele, J.: Concur in Judgment and Opinion.
For the Court
By:
Marie Hoover, Judge
NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a final judgment entry and the
time period for further appeal commences from the date of filing with the clerk.