In re Robinson v. Rehfus

[Cite as In re Robinson v. Rehfus, 2022-Ohio-4679.]
IN THE COURT OF APPEALS OF OHIO
SEVENTH APPELLATE DISTRICT
CARROLL COUNTY
IN THE MATTER OF:
R.R.
WILLIAM E. ROBINSON III,
Plaintiff-Appellee,
v.
KIMBERLY REHFUS,
Defendant-Appellant.
OPINION AND JUDGMENT ENTRY
Case No. 22 CA 0958
BEFORE:
Carol Ann Robb, Gene Donofrio, Cheryl L. Waite, Judges.
JUDGMENT:
Affirmed.
No Brief Filed by Plaintiff-Appellee and
Kimberly K. Rehfus, pro se, 335 N Cline Street, Magnolia, Ohio 44643 Defendant-
Appellant.
Dated: December 22, 2022
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Robb, J.
{¶1} Appellant Kimberly Rehfus (the mother) appeals the decision of the Carroll
County Common Pleas Court, Juvenile Division. She contends the court erred in denying
her motion to modify parental rights and her motion to hold Appellee William E. Robinson
III (the father) in contempt. For the following reasons, the trial court’s judgment is
affirmed.
STATEMENT OF THE CASE
{¶2} Pending various motions on the child’s custody, the trial court granted the
father temporary sole custody of the parties’ four-year-old child and provided the mother
standard visitation. (9/22/14 J.E.). Subsequently, the court memorialized an agreement
whereby the father was named the residential and custodial parent. The mother was
provided companionship on alternating weekends (Friday at 6:00 p.m. until Monday at
8:00 p.m.) and Wednesday evenings. (7/22/15 J.E.).
{¶3} In March 2020, the mother filed a pro se motion seeking to modify her
companionship schedule, including a later start time on Fridays, an earlier end time on
Mondays during the school year, and an elimination of Wednesdays. She also wished to
alter the school break schedule. In June 2020, she amended her motion, indicating she
wanted custody. A guardian ad litem was appointed upon request. The mother fired her
attorney on the eve of trial.
{¶4} On May 7, 2021, the mother filed a pro se motion to modify parental rights
seeking sole custody and a motion asking to hold the father in contempt. She withdrew
her prior modification motion. (5/17/21 J.E.). On July 1, 2021, the mother’s new attorney
filed an amended motion for modification of parental rights, which organized the general
legal arguments and attached a notarized affidavit incorporating the factual allegations
she listed in an exhibit.
{¶5} In October 2021, the trial court conducted an in camera interview of the child
and commenced trial on the mother’s custody and contempt motions. While the matter
was continued for a further hearing date, the mother filed a second contempt motion
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against the father on January 27, 2022. After a further hearing on February 1, 2022, the
mother voluntarily dismissed her second contempt motion. (3/1/22 Dismissal).
{¶6} On March 2, 2022, the trial court issued a decision denying the mother’s
May 7, 2021 motions for custody and contempt. Although the court opined a change in
circumstances occurred, the court did not find a modification of custody would be in the
eleven-year-old child’s best interest. The court made changes to the companionship
schedule, providing the mother with alternating weekends from Friday after school
through Sunday at 8:00 p.m. and Wednesdays from after school until 8:00 p.m. with
alternating weeks during summer break.
{¶7} The mother filed a timely notice of appeal. She filed motions in the trial
court and in this court asking for a transcript at state expense. The trial court denied the
request and a reconsideration request, pointing out this was a private custody matter and
not a permanent custody proceeding involving the termination of parental rights. (6/1/22
J.E. & 6/15/22 J.E.). This court likewise denied the request. (7/14/22 J.E.). The mother’s
brief was filed without obtaining a transcript. The father did not submit a response brief.
BRIEFING ISSUES
{¶8} The initial pages in the mother’s pro se brief list four assignments of error
and four issues presented for review, each corresponding to an assignment of error. Her
argument section sets forth a general assignment of error without analyzing the four
assignments of error listed at the beginning of her brief. The general assignment of error
and accompanying argument section contest the weight of the evidence and cite the due
process right of a parent to raise a child. Before addressing the mother’s arguments, we
review some important general principles guiding our review.
{¶9} “According to App.R. 12(A)(2), the appellate court may disregard an
assignment of error presented for review if the party raising it fails to identify in the record
the error on which the assignment of error is based or fails to argue the assignment
separately in the brief, as required under App.R. 16(A).” In the Matter of M.L.S., 7th Dist.
Harrison No. 21 HA 0010, 2022-Ohio-2195, ¶ 27, quoting State v. Jones, 7th Dist.
Mahoning No. 06 MA 109, 2008-Ohio-1541, ¶ 61. App.R. 16 requires a statement of the
assignments of error, a statement of the corresponding issues presented for review, and
thereafter an “argument containing the contentions of the appellant with respect to each
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assignment of error presented for review and the reasons in support of the contentions,
with citations to the authorities, statutes, and parts of the record on which appellant relies.”
App.R. 16(A)(3),(4),(7).
{¶10} In order to cite to the record and point to various contested events from the
trial, a transcript or a valid substitute is required. App.R. 9(B)-(D). It was Appellant’s
obligation to order the transcript and ensure the proceedings necessary for inclusion in
the record were properly transcribed. App.R. 9(B)(1),(3). Various arguments about what
occurred at trial are barred without a transcript. For instance, “If the appellant intends to
present an assignment of error on appeal that a finding or conclusion is unsupported by
the evidence or is contrary to the weight of the evidence, the appellant shall include in the
record a transcript of proceedings that includes all evidence relevant to the findings or
conclusion.” App.R. 9(B)(4). Allegations in a party’s motion are not evidence merely
because they are in the form of an affidavit and file-stamped.
{¶11} The appendix to the mother’s brief contains some non-objectionable
documents, such as the judgment entry on appeal, two state laws, and the court’s
standard companionship schedule (which the court attached to its September 22, 2014
temporary custody order). See App.R. 16(E). Other items appended to the mother’s brief
are part of the record but have commentary added (such as parts of the docket and her
second contempt motion). We note the appendix is not the proper place for introducing
arguments on appeal. A few of the items in the appendix may have been trial exhibits.
However, trial exhibits are to be submitted on appeal as part of a properly filed transcript,
which memorializes their introduction and admission into evidence. App.R. 9(B)(6)(f)-(g).
Without the transcript, the context and related testimony are lacking. Moreover, the
appendix contains additional documents that were not exhibits at trial, including a text
message about Christmas Day companionship, communications to and from attorneys, a
discharge summary, and a police report.
{¶12} “A reviewing court cannot add matter to the record before it, which was not
a part of the trial court's proceedings, and then decide the appeal on the basis of the new
matter.” State v. Ishmail, 54 Ohio St.2d 402, 377 N.E.2d 500 (1978), paragraph one of
the syllabus. Accordingly, a party cannot add material to the record on appeal or claim
attached items were presented at trial without obtaining a transcript or an App.R. 9
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alternative. See, e.g., In the Matter of M.L.S., 7th Dist. Harrison No. 21 HA 0010, 2022-
Ohio-2195, ¶ 30 (evidentiary documents in appendix attached to pro se appellant’s brief
cannot be utilized on appeal unless the record shows they were admitted as evidence).
ASSIGNMENT OF ERROR ONE
{¶13} Appellant’s first assignment of error contends:
“The trial court erred when it did not consider the wishes of the child when the child
stated on 2 separate interviews with the GAL and an in-camera interview he would like
equal time with each parent.”
{¶14} The mother emphasizes the child told the court he would like to spend equal
time with each parent while in chambers on October 14, 2021. The mother points out the
child was over 11 years of age at the time of the court’s in camera interview. She notes
the child made similar statements to the guardian ad litem. The mother also makes
factual allegations about the father’s reaction to the child’s request; however, these are
claims that must be supported by a transcript and rest within the trial court’s province as
the fact-finder.
{¶15} In evaluating a request to modify parental rights and responsibilities, one of
the best interest factors the trial court shall consider is the child's wishes and concerns
on the allocation of parental rights and responsibilities as expressed to the court in
camera. R.C. 3109.04(F)(1)(b). In the March 2, 2022 judgment entry, the court
specifically quoted this subdivision, listed the date of the in camera interview, and recited
the child’s statement about desiring equal time.
{¶16} Accordingly and contrary to the mother’s contention, the trial court did
consider the wishes of the child. In fact, the court then observed the following: “However,
upon further questioning, it became apparent that [the child] is very happy with the way
things are working now. He enjoys the time he has with his Father and also enjoys the
time he has with his Mother ‘as it is now.’ He feels very much caught in the middle * * *
It was obvious that the situation causes [the child] some very much unneeded stress and
anxiety.” (3/2/22 J.E.). This demonstrates the child’s initial statement was then tempered
by the child’s further disclosures to the court.
{¶17} Moreover, the best interest factor relating to the child’s wishes is merely one
of the statutory factors, and the statute’s list is not exclusive. R.C. 3109.04(F)(1)(b) (“all
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relevant factors, including, but not limited to” the ones listed). The court’s analysis of the
factors is addressed in our final section reviewing the mother’s general assignment of
error on the weight of the evidence in denying her motion to modify custody. This
assignment of error is overruled.
ASSIGNMENT OF ERROR TWO
{¶18} The mother’s second assignment of error alleges:
“The trial court erred when it did [not] enforce or follow Exhibit A Standard Child
Companionship Schedule that is adopted in their court and was given to mother by her
attorney in 2015.”
{¶19} The mother argues the trial court should have held the father in contempt
for denying her companionship time. Her May 7, 2021 contempt motion was heard at the
same time as her modification motion. (3/2/22 J.E.). In this contempt motion, she alleged
interference with companionship time ordered by the court in 2015 (presumably referring
to the July 21, 2015 judgment naming the father residential parent). She alleged the
father: caused the child to be late for visits with her; denied the mother companionship
time, such as for Spring or Christmas break; failed to take the child for medical or dental
visits; omitted the mother’s information in the child’s medical records; failed to notify the
mother when the child went to counseling; and alienated the child from the mother, such
as by allowing the child to call the step-mother “mom.”
{¶20} In overruling this contempt motion, the court recognized the parties had
disagreements on who would drive the child or what time visitation would occur. The
court also explained many of the mother’s contempt allegations were not based on
specific orders in the July 21, 2015 judgment. As the court pointed out, this judgment
specified the father was the residential parent who was solely responsible for all school
and medical decisions and did not require the father to notify the mother of counseling. It
was also observed the July 21, 2015 judgment did not provide extra time during Christmas
break or Spring break (besides the holidays listed).
{¶21} The 2015 judgment listed the days of special meaning, which it defined as
those listed in the standard order, but the court then allocated each specific holiday (and
summer break). The court then allocated alternating years for New Year’s Day and gave
Christmas Eve to the mother and Christmas Day to the father. The standard order was
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not incorporated into or attached to the July 21, 2015 judgment as it had been for the
temporary custody order of September 22, 2014. Notably, the 2015 judgment provided
the mother with a longer weekend than standard companionship.
{¶22} The movant's burden of proof upon a civil contempt motion is clear and
convincing evidence. Facemyer v. Facemyer, 7th Dist. Mahoning No. 2019 MA 109,
2021-Ohio-48, ¶ 1, citing Ferguson v. Boron, 7th Dist. Columbiana No. 15 CO 0030, 2018-
Ohio-69, ¶ 14. “Clear and convincing evidence is that measure or degree of proof which
will produce in the mind of the trier of facts a firm belief or conviction as to the allegations
sought to be established.” Cross v. Ledford, 161 Ohio St. 469, 477, 120 N.E.2d 118(1954). The burden is “more than a mere preponderance” of the evidence. Id
{¶23} “[S]ince the primary interest involved in a contempt proceeding is the
authority and proper functioning of the court, great reliance should be placed upon the
discretion of the trial judge.” Denovchek v. Board of Trumbull Cty. Commrs., 36 Ohio
St.3d 14, 16, 520 N.E.2d 1362 (1988). “The court that issued the order sought to be
enforced is in the best position to determine if that order has been disobeyed.” State ex
rel. Bitter v. Missig, 72 Ohio St.3d 249, 252, 648 N.E.2d 1355 (1995).
{¶24} A court is not required to hold a person in contempt for an alleged violation
of an order if there is a concern a prior entry was unclear. Schneider v. Schneider, 11th
Dist. Ashtabula No. 2020-A-0007, 2021-Ohio-1058, ¶ 56 (“if the text of an order is unclear,
a contempt finding for failure to comply is improper”), citing Cain v. Cain, 11th Dist.
Portage No. 2017-P-0084, 2019-Ohio-184, ¶ 20-21 (explaining the court order must have
clearly and unambiguously addressed the specific acts alleged to be contempt). Notably,
the mother took no issue with Christmas break or spring break in the years after the 2015
entry. In fact, her March 2020 pro se motion asking to modify companionship time
acknowledged the 2015 court order did not split those breaks, as she asked the court to
change the order to provide her with such time.
{¶25} Moreover, the trial court observed: “While Father has failed to
accommodate the Mother’s numerous requests relative to visitation, he has not willfully
denied her parenting time.” Generally, the weighing of the evidence and the assignment
of credibility to the witnesses are matters best left to the factfinder. State v. DeHass, 10
Ohio St.2d 230, 231, 227 N.E.2d 212 (1967). A weight of the evidence review requires
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the court to review the entire record before determining the fact-finder clearly lost its way
and created a manifest miscarriage of justice. State v. Thompkins, 78 Ohio St.3d 380,
387, 678 N.E.2d 541 (1997). And again, we have no transcript and cannot review the
weight of the evidence as to the court’s factual decisions. See App.R. 9(B)(4). There is
no indication the court abused its discretion or otherwise erred in declining to hold the
father in contempt.
{¶26} In case the mother is also attempting to make general arguments related to
her second motion for contempt, we lastly note she voluntarily dismissed her January 27,
2022 contempt motion on March 1, 2022. Her appendix contains a copy of her second
contempt motion but with a post-filing notation typed on it claiming she did not want to
dismiss the motion after the hearing. As noted in the Briefing Issues section supra, writing
on documents in an appendix is not an available briefing method for raising an argument.
See App.R. 16. We additionally note a related document in her appendix, which she
believes supports her position, actually reveals there was an agreement to dismiss the
second contempt motion made in the court’s presence at trial. Regardless, this document
is not part of the record, and the circumstances of her voluntary dismissal decision are
not in the record before this court.
{¶27} This assignment of error is overruled
ASSIGNMENT OF ERROR THREE
{¶28} The mother’s third assignment of error in part claims the guardian ad litem
violated the law “in a deliberate attempt to mislead the court with false statements against
mother that were proven false by another witness that was subpoenaed and testified to
the contrary.” The corresponding issue presented for review does not shed any light on
this portion of the assignment of error. As previously mentioned, the listed assignments
of error are not addressed in the argument section of her brief.
{¶29} We note the mother’s statement of facts complains the guardian ad litem
testified the mother did not exercise all of her companionship time without proof of this
allegation made by the father. The mother also says the guardian ad litem testified the
mother was confrontational at the office of the child’s counselor while a person from the
counselor’s office (who was not the counselor) testified the mother was not
confrontational. The trial court heard the witnesses testify and was in the best position to
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judge the credibility of the witnesses and weigh the evidence. Davis v. Flickinger, 77
Ohio St.3d 415, 418-419, 674 N.E.2d 1159 (1997). Again, we have no transcript from
which to review the content or credibility of testimony or the weight of the evidence.
{¶30} Within the third assignment of error, the mother also takes issue with the
summer companionship schedule set forth in the March 2, 2022 judgment, complaining
the court: granted the father the week of the county fair every year; eliminated weekend
visitation in the summer; and defined her summer week as only six days in each
alternating cycle. However, there is no apparent abuse of discretion in the decision to
eliminate alternating weekends for the summer when the summer schedule was granting
the mother alternating weeks. Moreover, each of the mother’s summer weeks starts on
a Sunday at 10:00 a.m. and ends on a Saturday at 8:00 p.m., which is more time than six
days. In addition, the father was being maintained as the residential parent and
custodian, and there was no requirement to give each party equal summer time. Notably,
the summer schedule represented an increase in the mother’s summer companionship
time. Finally, without a transcript we cannot review the testimony of the witnesses and
any requests by the parties relevant to companionship, including the rationale behind the
decision regarding the week of the county fair. This assignment of error is overruled.
ASSIGNMENT OF ERROR FOUR
{¶31} The mother’s fourth assignment of error claims:
“The trial court erred granting father full custody of child denying mother due
process of law. Mother was threatened, intimidated and coerced under duress to agree
to something against her will. Opposing part[y’s] counsel also misled the judge claiming
the mother was diagnosed with a mental illness which has now affected determinations
relating to virtually every proceeding.”
{¶32} The issue presented for review, which corresponds to this assignment of
error, suggests the mother may be protesting the July 2015 entry designating the father
as the residential parent. She states the court failed to give her an opportunity to be heard
when it “took custody of the child from mother” after she reported a concern she had with
a relative of the father. However, the July 21, 2015 judgment entry was said to be the
product of an agreement occurring at the June 30, 2015 trial. There is no indication the
mother raised issues with the agreement to the trial court at that time or thereafter. She
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did not appeal the judgment designating the father as the residential parent. She did not
mention this issue with the 2015 judgment in her four modification motions filed in 2020
and 2021. We do not have any relevant transcripts. There is thus no indication she raised
an issue regarding the prior judgment at the hearings on her request to modify the
allocation of parental rights. The propriety of the 2015 judgment naming the father
residential parent is not before this court.
{¶33} As to the mother’s argument that the father’s attorney “misled the judge
claiming the mother was diagnosed with a mental illness,” the court’s final judgment found
a recent psychological evaluation did not raise concerns with the mother’s mental health,
regardless of any prior concern. A related document in the mother’s appendix (showing
a lack of diagnosis in a 2014 evaluation) is not part of the record before this court and
cannot be considered (as discussed in the Briefing Issues section of this Opinion supra).
If there was a concern that the father’s counsel made a misleading statement at trial as
to a prior diagnosis (as opposed to expressing a concern), then this document could have
been presented at trial. Or, an objection could have been raised and testimony could
have been presented (and very well may have been presented); a transcript is necessary
to illuminate this issue on appeal.
{¶34} On the topic of opposing counsel, the mother’s statement of the case
attempts to set forth an additional complaint. She notes she was ordered to complete
and pay for a psychological evaluation even though she was not diagnosed with a mental
illness during the prior custody proceedings. (The guardian ad litem’s report says the
evaluation was the product of an agreement at a hearing.) The mother’s statement of the
case then states even though she was obligated to pay this expense, the costs for the
guardian ad litem were not assessed equally or according to income because the father’s
attorney “scribbled on the court document appointing the GAL making mother responsible
for both part[ies’] deposits to the GAL, totaling $1500.00.” The conclusion section of her
brief suggests she is accusing opposing counsel of fraud.
{¶35} The mother fails to satisfy her obligation to cite to the portions of the record
relevant to her argument. She does not even specify the date of the document she is
discussing. In any event, this assignment of error and the corresponding issue presented
for review do not indicate they relate to this allegation. Rather, the allegation against
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opposing counsel here involves an alleged agreement and counsel’s alleged reference
to mental illness (and the four-sentence argument section of the brief generally protests
the final decision on custody). The purpose of the statement of the case is to “briefly
describ[e] the nature of the case, the course of proceedings, and the disposition in the
court below.” App.R. 16(A)(5). An entire argument cannot be presented in the statement
of the case without a supporting argument section specifically addressing the allegations
set forth in the recitation of facts and citing law on the particular subject. See App.R.
16(A)(3)-(5),(7).
{¶36} Although we need not proceed in the face of such briefing failure and we
are not required to scour the record for a party, we note an August 20, 2020 entry states
a hearing was held on August 5, 2020 and the parties requested the appointment of a
guardian ad litem. Thus, contrary to Appellant’s contention the court appointed the
guardian ad litem sua sponte, the appointment was based on a request.
{¶37} The entry shows it was originally typed to say the parties shall each deposit
$750 with the guardian ad litem, but this was changed in handwriting to say the mother
shall deposit $1,500. Contrary to the mother’s allegation, there is no indication the father’s
attorney was the source of the handwritten change in the entry; the ink appears to match
that used by the trial judge to sign the entry. As can be seen by a file-stamped invoice
(wherein the guardian ad litem sought court permission to deduct from the deposit), the
mother paid the deposit in 2020. There is no indication the mother raised an issue with
this deposit allocation to the trial court before or after paying it. We are to presume the
regularity of the proceedings (i.e., the handwriting on the entry occurred prior to the entry’s
filing and was truly part of the original entry). Regardless, the trial court subsequently
confirmed the allocation in its February 10, 2021 judgment, wherein the court said any
guardian ad litem fees over the initial $1,500 deposit paid by the mother were to be shared
equally by the mother and the father.
{¶38} Lastly, a reasoning error in allocating the deposit is not apparent on the
record. In general, a trial court has discretion in allocating a guardian ad litem’s fees.
Kane v. Hardin, 1st Dist. Hamilton No. C-180525, 2019-Ohio-4362, ¶ 23; Karales v.
Karales, 10th Dist. Franklin No. 05AP-856, 2006-Ohio-2963, ¶ 21. Allocation of a
guardian ad litem’s fees involves a consideration of economic status, a party’s success,
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a party’s conduct causing the incurring of fees, and other relevant considerations. See
id.; Sup.R. 48(H)(3).
{¶39} Here, the appointment of the guardian ad litem was the product of the
mother’s June 20, 2020 motion to modify custody. The appointment was discussed at a
hearing before the order was issued. The mother paid the deposit soon after the August
5, 2020 appointment order allocating the deposit to her. A February 10, 2021 judgment
reiterated the decision as to allocation of the deposit. The mother subsequently
dismissed her modification motion after firing her attorney on the night before the May
2021 trial. She filed a new motion and amended it in July 2021, which was the motion
resulting in the judgment on appeal. The existence or content of any argument
concerning the deposit allocation is unknown, as no transcript or valid substitute was filed
in the appeal.
{¶40} Under the circumstances before this court, any argument the trial court
abused its discretion in allocating the deposit for the fees of the guardian ad litem is
unsupported. In any event, the mother does not specifically argue the court erred in the
allocation. Rather, she accuses opposing counsel of modifying a judgment to change the
allocation (as addressed supra). Just as the latter argument was not properly briefed,
any argument on the court’s discretionary decision was not properly briefed. This
assignment of error is overruled.
GENERAL ASSIGNMENT OF ERROR
{¶41} Lastly, Appellant generally sets forth an assignment of error regarding the
denial of custody, referring to a parent’s fundamental due process right to have custody
and control of their child. She asks this court to weigh the evidence and the credibility of
the witnesses and conclude the trial court clearly lost its way and created a manifest
miscarriage of justice in maintaining the father as the residential parent. (These are the
sole arguments in the argument section of her brief.)
{¶42} A trial court's custody modification decision is reviewed for an abuse of
discretion, and a modification decision will not be reversed as being against the weight of
the evidence if it is supported by a substantial amount of credible and competent
evidence. Davis, 77 Ohio St.3d at 416, 421. An abuse of discretion connotes more than
an error in judgment but implies the trial court's attitude was unreasonable, arbitrary, or
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unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140(1983). “[W]hen applying this standard, an appellate court is not free to substitute its
judgment for that of the trial judge.” Berk v. Matthews, 53 Ohio St.3d 161, 169, 559 N.E.2d
1301 (1990).
{¶43} “The juvenile court shall exercise its jurisdiction in child custody matters in
accordance with [R.C] 3109.04 * * *.” R.C. 2151.23(F)(1). Pursuant to R.C. 3109.04, the
court shall not modify a prior decree allocating parental rights and responsibilities for the
care of children unless it finds a sufficient change in circumstances has occurred and the
modification is necessary to serve the best interest of the child. R.C. 3109.04(E)(1)(a)
(and the residential parent shall be maintained unless the parties agree there has been
familial integration with consent, or the harm likely to be caused by a change of
environment is outweighed by the advantages of the change of environment to the child).
{¶44} The trial court indicated a change in custody would not be in the child’s best
interest and made findings under each statutory best interest factor, as hereafter
reviewed. Each parent wished to be named the residential parent and custodian. See
R.C. 3109.04(F)(1)(a) (parents' wishes). As we discussed in the first assignment of error,
the court addressed the child’s in camera statements about his wishes and concerns.
See R.C. 3109.04(F)(1)(b) (the wishes and concerns of the child if the court interviewed
the child in chambers). The child said he would like equal time with his parents. However,
both parents were seeking sole custody. And, as the trial court disclosed, the child further
revealed that he was “very happy with the way things are working now” and enjoys the
time he has with his mother “as it is now.”
{¶45} The court acknowledged the child was “very bonded” with both parents and
adjusted to both parents’ homes while doing well in his school district. See R.C.
3109.04(F)(1)(c) (the child's interaction and interrelationship with parents, siblings, and
any other person who may significantly affect the child's best interest), (d) (the child's
adjustment to home, school, and community). Because we do not have the transcript,
we cannot consider the child’s relationship with other household members, including the
child’s step-mother, who was discussed in the mother’s brief. As the trial court noted,
there was no indication of physical health issues, and the mother’s evaluation did not
indicate a mental health issue. See R.C. 3109.04(F)(1)(e).
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{¶46} The trial court opined neither party was “more likely to honor and facilitate
court-approved parenting time rights or visitation and companionship rights.” See R.C.
3109.04(F)(1)(f). In evaluating whether the residential parent continuously and willfully
denied court-ordered parenting time, the court found: “While Father has failed to
accommodate the Mother’s numerous requests relative to visitation, he has not willfully
denied her parenting time. Mother regularly exercises her visitation.” See R.C.
3109.04(F)(1)(i). It was also noted the mother had a child support arrearage of less than
$1,000. See R.C. 3109.04(F)(1)(g). The factor applicable to certain convictions was
found to be inapplicable. See R.C. 3109.04(F)(1)(h). Lastly, neither party planned to
establish a residence outside of the state. See R.C. 3109.04(F)(1)(j).
{¶47} The mother believes a change of custody would be in the child’s best
interest. In the statement of facts and the statement of the case sections of the mother’s
brief, she sets forth factual allegations in support of her request for custody and claims
the testimony failed to prove certain allegations. However, such contentions must be
supported by a transcript.
{¶48} We also emphasize the following principle: “Credibility is a question for the
trier of fact who occupies the best position from which to judge demeanor, voice inflection,
gestures, eye movements, nervousness, and other signs of untruthfulness as a witness
is testifying.” In re L.G., 7th Dist. Belmont No. 20 BE 0006, 2020-Ohio-6831, ¶ 48. These
indicators do not transfer well onto the written page but are crucial in a custody case,
where there may be much in a party's attitude and demeanor that will not be evident in
the written record. Davis, 77 Ohio St.3d at 418-419. “[C]ustody issues are some of the
most difficult and agonizing decisions a trial judge must make. Therefore, a trial judge
must have wide latitude in considering all the evidence before him or her * * *.” Id. at 418.
{¶49} The trial court conducted an in camera interview with the child. The trial
court heard and saw the parties as they spoke and judged their credibility, sincerity, and
attitude, which is the trial court's primary function and prerogative. Id. at 418-419. The
judges on an appellate panel cannot grant custody to an appellant merely because they
would have decided a custody motion differently; we do not substitute our judgment for
that of the trial court in considering the weight to assign the evidence on the statutory best
interest factors when modifying custody. Id. at 417. In any event, the mother failed to
Case No. 22 CA 0958
– 15 –
ensure the filing of a transcript from which this court could have conducted a weight of
the evidence review. As we cannot conclude the trial court abused its discretion in naming
the father residential parent, this assignment of error is overruled.
{¶50} For the foregoing reasons, the trial court’s judgment is affirmed.
Donofrio, P. J., concurs.
Waite, J., concurs.
Case No. 22 CA 0958
[Cite as In re Robinson v. Rehfus, 2022-Ohio-4679.]
For the reasons stated in the Opinion rendered herein, the assignments of error
are overruled and it is the final judgment and order of this Court that the judgment of the
Court of Common Pleas, Juvenile Division of Carroll County, Ohio, is affirmed. Costs to
be taxed against the Appellant.
A certified copy of this opinion and judgment entry shall constitute the mandate in
this case pursuant to Rule 27 of the Rules of Appellate Procedure. It is ordered that a
certified copy be sent by the clerk to the trial court to carry this judgment into execution.
NOTICE TO COUNSEL
This document constitutes a final judgment entry.