Krill v. Krill

[Cite as Krill v. Krill, 2014-Ohio-2577.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
DEFIANCE COUNTY
TRENDA L. KRILL, NKA JEWELL,
PLAINTIFF-APPELLANT, CASE NO. 4-13-15
v.
CLINT P. KRILL, OPINION
DEFENDANT-APPELLEE.
Appeal from Defiance County Common Pleas Court
Domestic Relations Division
Trial Court No. 06-DR-38057
Judgment Affirmed
Date of Decision: June 16, 2014
APPEARANCES:
Timothy C. Holtsberry for Appellant
James E. Hitchcock for Appellee
Case No. 4-13-15
PRESTON, J.
{¶1} Plaintiff-appellant, Trenda L. Krill, now known as Trenda L. Jewell
(“Trenda”), appeals the October 7, 2013 and December 10, 2013 judgment entries
of the Defiance County Court of Common Pleas naming defendant-appellee, Clint
P. Krill (“Clint”), the residential parent and legal custodian of Trenda and Clint’s
three minor children and ordering that Trenda serve 22 days of a suspended jail
sentence for contempt of court. For the reasons that follow, we affirm.
{¶2} Trenda filed her complaint for divorce on September 1, 2006. (Doc.
No. 1). On October 2, 2007, the trial court filed the final judgment entry for
divorce, which it supplemented with a judgment entry on November 1, 2007.
(Doc. Nos. 27, 28). Under the settlement agreement, attached to and incorporated
into the trial court’s October 2, 2007 judgment entry, Trenda and Clint shared
parenting. (Doc. No. 27).
{¶3} On February 7, 2008, Clint filed a motion for contempt, requesting
that the trial court find Trenda in contempt for denying him parenting time. (Doc.
No. 29).
{¶4} On July 3, 2008, the trial court filed a consent judgment entry, in
which it found Trenda in contempt but allowed her to purge her contempt by
allowing Clint to make up 13 days of parenting time. (Doc. No. 34).
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{¶5} On November 2, 2009, Clint filed his “second motion to show cause,”
requesting that the trial court find Trenda in contempt for denying him parenting
time. (Doc. No. 35).
{¶6} On December 18, 2009, the trial court filed a judgment entry finding
Trenda in contempt “for her failure to abide by the prior orders of this Court” and
ordering that she serve 30 days in jail, with 22 days of that suspended. (Doc. No.
43). The trial court also ordered makeup parenting time for Clint. (Id.). On
December 24, 2009, Trenda filed a motion to modify or rescind her incarceration
order, which the trial court found moot on January 6, 2010, after Trenda served
her jail time. (Doc. Nos. 44, 45).
{¶7} On February 8, 2011, Clint, pro se, filed a motion for contempt,
arguing that Trenda failed to pay his attorney fees and court costs as ordered by
the trial court. (Doc. No. 46).
{¶8} On March 17, 2011, Trenda filed a motion for contempt and motion to
modify child support, arguing that Clint failed to pay school expenses and other
payments and that the parties’ changed financial circumstances warranted a
modification of the child-support order. (Doc. No. 48).
{¶9} On May 4, 2011, Clint filed an amended motion for contempt,
followed by a second amended motion for contempt on May 27, 2011. (Doc. Nos.
49, 53). Each amended motion requested that the trial court, among other things,
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find Trenda in contempt on a number of grounds and name Clint the residential
parent and legal custodian of the parties’ children. (See id.).
{¶10} On September 8, 2011, Clint filed a motion requesting that the trial
court reduce his child-support obligation and grant him an extension of time to
raise guardian ad litem (“GAL”) fees. (Doc. No. 54).
{¶11} On September 16, 2011, the magistrate’s decision and temporary
orders were filed. (Doc. No. 55). The magistrate declined to find Clint in
contempt, appointed a GAL, and modified Clint’s child-support obligation. (Id.).
The trial court approved the magistrate’s decision and temporary orders. (Doc.
No. 56).
{¶12} On October 13, 2011, Clint filed a motion for contempt, arguing that
Trenda denied him visitation. (Doc. No. 57).
{¶13} On February 24, 2012, Clint filed a motion for contempt, arguing
that Trenda claimed the parties’ children on her tax return contrary to the trial
court’s order. (Doc. No. 58).
{¶14} On May 10, 2012, Clint filed a motion requesting, among other
things, that the trial court find Trenda in contempt for denying him visitation.
(Doc. No. 60).
{¶15} Following a hearing held on three days—August 24, October 12, and
November 2, 2012—Trenda filed her memorandum in opposition to the
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modification of child custody on November 21, 2012. (Doc. No. 71). On
November 29, 2012, Clint filed his memorandum in support of the reallocation of
parental rights and responsibilities. (Doc. No. 72). On December 5, 2012, Trenda
filed her reply to Clint’s memorandum. (Doc. No. 73). Clint filed a response to
Trenda’s reply on December 11, 2012. (Doc. No. 74).
{¶16} On April 8, 2013, the magistrate’s decision was filed. (Doc. No. 76).
The magistrate found that there was a change in the circumstances of the children
and their parents, that Clint’s requested custody modification would serve the
children’s best interests, and that any harm caused by the modification was
outweighed by its advantages. (Id.). Based on those findings, the magistrate
named Clint the residential parent and legal custodian of the parties’ children and
granted Trenda visitation every other weekend during the school year. (Id.). In
addition, the magistrate found Trenda in contempt for violating the trial court’s
parenting orders and ordered that she serve the suspended jail sentence of 22 days.
(Id.).
{¶17} On April 22, 2013, Trenda filed objections to the magistrate’s
decision. (Doc. No. 78). Trenda argued that there was no change of
circumstances, that it was in the children’s best interests to remain with Trenda,
and that there was no “specific evidence” that the advantages of a custody
modification would outweigh the harm. (Id.). Trenda did not object to the portion
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of the magistrate’s decision finding her in contempt and ordering that she serve
her suspended jail sentence. (See id.). On May 1, 2013, Clint filed his response to
Trenda’s objections, arguing that the trial court should overrule Trenda’s
objections. (Doc. No. 79).
{¶18} On May 30, 2013, Trenda filed a motion for contempt, requesting
that the trial court order Clint to show cause why he should not be held in
contempt for disallowing Trenda holiday companionship time. (Doc. No. 82). On
June 7, 2013, Clint moved to dismiss Trenda’s motion for contempt. (Doc. No.
84).
{¶19} On July 18, 2013, Clint filed citations to “important testimony.”
(Doc. No. 89). On July 22, 2013, Trenda filed citations supporting her objections
to the magistrate’s decision. (Doc. No. 90).
{¶20} On October 7, 2013, the trial court overruled Trenda’s objections to
the magistrate’s decision, concluding that the magistrate correctly determined that
there was a change in circumstances, that naming Clint the residential parent and
legal custodian would be in the children’s best interests, and that the benefits of
naming Clint the residential parent and legal custodian outweighed any potential
harm. (Doc. No. 91).
{¶21} On December 10, 2013, the trial court filed its judgment entry,
which, among other things, named Clint the residential parent and legal custodian,
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granted Trenda visitation every other weekend during the school year, and ordered
that Trenda report to jail to serve her suspended 22-day sentence. (Doc. No. 93).
On December 18, 2013, the trial court filed a judgment entry nunc pro tunc
correctly identifying Trenda’s counsel, who was misidentified in the December 10,
2013 judgment entry. (Doc. No. 94).
{¶22} Trenda filed her notice of appeal on December 30, 2013. (Doc. No.
95). She raises four assignments of error for our review. We will first address,
together, Trenda’s second, third, and fourth assignments of error, followed by her
first assignment of error.
Assignment of Error No. II
The trial court’s finding that it was in the children’s best interest
to be placed with their father is contrary to the facts and the
weight of evidence.
Assignment of Error No. III
The trail [sic] court did not make a finding that the best interest
factors in R.C. 3109.04 weighed in the father’s favor as required
by that statute.
Assignment of Error No. IV
The trial court’s finding that the benefit of placing the children
with their father outweighed the harm is contrary to the facts
and the weight of evidence.
{¶23} In her second, third, and fourth assignments of error, Trenda
challenges the trial court’s decision to name Clint the residential parent and legal
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custodian of the parties’ children. Specifically, Trenda argues in her second and
fourth assignments of error that the facts and the weight of the evidence did not
support the trial court’s findings that placing the children with Clint was in their
best interests and that the benefits of placing the children with Clint outweighed
any harm. In her third assignment of error, Trenda argues that the trial court did
not properly apply the best-interest factors found in R.C. 3109.04(F)(1).
{¶24} R.C. 3109.04(E)(1)(a) governs the trial court’s authority to modify
an existing decree allocating parental rights and responsibilities and provides, in
relevant part:
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 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:
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***
(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.
See Brammer v. Meachem, 3d Dist. Marion No. 9-10-43, 2011-Ohio-519, ¶ 12.
{¶25} “‘[W]hether there are changed circumstances is a threshold inquiry
that must be determined prior to examining whether a change in parental
responsibility would be in the best interests of the child.’” Id. at ¶ 13, quoting Fox
v. Fox, 3d Dist. Hancock No. 5-03-42, 2004-Ohio-3344, ¶ 38. “Once the trial
court has made the threshold finding that there has been a change in
circumstances, the court must then make a finding as to the best interest of the
child” after considering all relevant factors found in R.C. 3109.04(F)(1)(a)-(j). Id.
at ¶ 29. Finally, the trial court must determine whether the harm that will result
from the change of environment will be outweighed by the advantages that will
result from the change. Brammer v. Brammer, 3d Dist. Marion No. 9-12-57,
2013-Ohio-2843, ¶ 32, citing Clark v. Smith, 130 Ohio App.3d 648, 653 (3d
Dist.1998).
{¶26} “Decisions concerning child custody matters rest within the sound
discretion of the trial court.” Walker v. Walker, 3d Dist. Marion No. 9-12-15,
2013-Ohio-1496, ¶ 46, citing Wallace v. Willoughby, 3d Dist. Shelby No. 17-10-
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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 Barto v. 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., 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.” Meachem
at ¶ 14, citing Blakemore v. Blakemore, 5 Ohio St.3d 217, 219 (1983).
{¶27} Here, Trenda does not contest the trial court’s change-of-
circumstances conclusion and its factual findings in support of that conclusion.
Rather, Trenda’s second, third, and fourth assignments of error address the trial
court’s factual findings and legal conclusions concerning whether a change in
custody was in the children’s best interests and whether the harm likely to be
caused by a change of environment outweighed the advantages of the change.
{¶28} In determining the best interest of a child under R.C.
3109.04(E)(1)(a), a trial court must consider all relevant factors found in
R.C. 3109.04(F)(1)’s nonexclusive set of factors:
(a) The wishes of the child’s parents regarding the child’s care;
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(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;
(h) Whether either parent or any member of the household of either
parent previously has been convicted of or pleaded guilty to any
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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.
See Rodriguez v. Rodriguez, 3d Dist. Mercer No. 10-13-08, 2013-Ohio-4411, ¶ 15.
{¶29} 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.” Brammer,
2013-Ohio-2843, at ¶ 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. Meachem, 2011-Ohio-519, at ¶ 30, citing
Portentoso v. Portentoso, 3d Dist. Seneca No. 13-07-03, 2007-Ohio-5770, ¶ 22.
“[A]bsent evidence to the contrary, an appellate court will presume the trial court
considered all of the relevant ‘best interest’ factors listed in R.C. 3109.04(F)(1).”
Meachem at ¶ 32, citing Goodman v. Goodman, 3d Dist. Marion No. 9-04-37,
2005-Ohio-1091, ¶ 18.
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{¶30} In his April 8, 2013 decision, the magistrate specifically mentioned
and analyzed the change-of-circumstances, best-interest, and harm-versus-
advantages prerequisites required by R.C. 3109.04(E)(1)(a) to modify parental
rights and responsibilities. (Doc. No. 76 at 17-19). He also stated that he
considered “all of the evidence and the factors listed in [R.C.] 3109.04 (F).” (Id.
at 19). Relevant to this appeal, the magistrate found, after a lengthy analysis, “that
it is in the best interests of the children to designate [Clint] as their legal custodian
and residential parent” and that “it is reasonable to find that the harm likely to be
caused by a change in environment from their mother to their father is outweighed
by the advantages of the change in environment to the children.” (Id.).
{¶31} In its October 7, 2013 judgment entry overruling Trenda’s objections
to the magistrate’s decision, the trial court found the magistrate’s decision “to be
factually and legally correct.” (Doc. No. 91 at 5). The trial court agreed with the
magistrate’s best-interest finding, noting that Clint’s potential parenting
deficiencies “pale in comparison to the demonstrated lack of ability on the part of
[Trenda] to act as residential parent” and that Trenda’s “misconduct has been
substantially detrimental to the children and, if she is allowed to continue in her
capacity as residential parent will undoubtedly cause further harm to these
children.” (Id. at 3). Finally, the trial court noted that Trenda’s “efforts to avoid
parenting time, efforts to disrupt [Clint’s] relationship with the children and her
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on-going efforts to manipulate the children, clearly demonstrate that the benefit of
a change of a residential status out-weigh any potential harm of such change.” (Id.
at 4).
{¶32} The trial court’s October 7, 2013 judgment entry, and the April 8,
2013 magistrate’s decision it upheld, are supported by a substantial amount of
competent, credible evidence and are not against the weight of the evidence.
{¶33} We first address Trenda’s argument that the trial court’s best-interest
and harm-versus-advantages findings were contrary to the weight of the evidence.
We begin with the children’s best interests. The trial court was not required to list
and analyze one-by-one R.C. 3109.04(F)(1)’s best-interest factors. Meachem,
2011-Ohio-519, at ¶ 30. Rather, it was required only to consider the relevant
factors. Id. It is clear from the record that the trial court considered the factors
that it determined were relevant, and the magistrate’s decision and trial court’s
judgment entry are supported by competent, credible evidence.
{¶34} The first best-interest factor is: “The wishes of the child’s parents
regarding the child’s care.” R.C. 3109.04(F)(1)(a). The magistrate noted that
Clint felt that it was in the children’s best interests that he be named the residential
parent and legal custodian. (Doc. No. 76 at 2). Trenda felt that it would be in the
children’s best interests for the trial court to maintain the existing parenting
arrangement. (Id.).
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{¶35} The next best-interest factor involves “the wishes and concerns of the
child, as expressed to the court” in an in-chambers interview. R.C.
3109.04(F)(1)(b). The magistrate noted that “[t]he court was not asked to
interview the children.” (Doc. No. 76 at 13). 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. See R.C. 3109.04(B)(1); In re Marriage of Munnings,
11th Dist. Geauga No. 2005-G-2622, 2006-Ohio-3230, ¶ 18.
{¶36} At the time, the oldest child was nine years old, and the two youngest
children, who are twins, were seven. (Nov. 2, 2012 Tr. at 59). The magistrate
agreed with the GAL that the children “have been traumatized by the continuous
investigations and questioning by the parents, law enforcement and children’s
services about matters which at their young age they do not likely comprehend.”
(Doc. No. 76 at 15). The trial court also noted the “significant impact” that the
“constant barrage of accusations and investigations and questioning” had on the
children. (Doc. No. 91 at 3-4). Therefore, given that the parties did not request
interviews of the children, the children’s ages, and the trauma the children have
endured due to frequent interviews, the trial court appropriately applied its
discretion in deciding not to interview the children in chambers and in deeming
this factor irrelevant.
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{¶37} The third R.C. 3109.04(F)(1) factor is: “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.” R.C. 3109.04(F)(1)(c). The
magistrate devoted many pages of his analysis to this factor, summarizing
numerous incidents between the parties involving allegations of child abuse,
domestic violence, and animal cruelty. (See Doc. No. 76 at 3-14). Most often,
these incidents involved allegations of abuse leveled by Trenda against Clint. (See
id.). As the magistrate noted, several investigation reports and sheriff’s incident
reports were admitted as exhibits at the hearing. (See id. at 2).
{¶38} The magistrate found that over a period of several years, “there were
repeated findings” that Trenda’s child-abuse and other claims against Clint were
unsubstantiated, while she was dismissive of any child-abuse claims against her
live-in boyfriend, Mark Armstrong (“Mark”). (Id. at 15). The magistrate stated,
“A reasonable inference can be made that [Trenda’s] actions were not so much to
protect her children but were retaliatory in nature.” (Id.). As the magistrate
observed, several of the abuse allegations were filed shortly after Clint filed
reports against Trenda or Mark, or after Clint filed a motion in court. (Id. at 11).
{¶39} The magistrate also stated, “A reasonable inference can be made that
the children upon questioning on the subject matter told their mother things that
were not true or exaggerated to please her and/or get her approval.” (Id.). The
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magistrate found that the evidence suggested that the children “had been ‘coached’
or conditioned to make these statements to get approval from their parent or other
significant persons.” (Id.). As we noted above, the magistrate cited the traumatic
effect of “continuous” questioning and investigations. (Id. at 15). The magistrate
observed that, because the children are now older, they “may even be more
vulnerable to the stress created by the situation and since the divorce have had to
undergo counseling.” (Id. at 17).
{¶40} The record supports the magistrate’s findings. Defiance County
Deputy Sheriff Gina Waxler testified that she was involved in a total of 24
investigations—6 in 2007, 3 in 2008, 9 in 2009, 3 in 2010, and 3 in 2012—most of
which Trenda initiated, concerning alleged child abuse by Clint. (Aug. 24, 2012
Tr. at 50-55). Waxler testified that this number of reports is abnormal and
excessive for a resident of Defiance County. (Id. at 77). No charges were filed
against Clint as the result of any of the 24 investigations. (Id. at 56). Waxler
testified that in one instance, Trenda took the parties’ daughter to the hospital for a
rape examination, which came back negative, after the daughter’s visitation with
Clint. (Id. at 66); (Defendant’s Ex. F). As the magistrate observed, that incident
occurred on March 26, 2008—approximately six weeks after Clint filed the first of
several motions for contempt against Trenda based on her denying him parenting
time. (Doc. No. 76 at 5); (Defendant’s Ex. F); (Doc. No. 29).
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{¶41} In another incident, the Noble County, Indiana Department of Child
Services investigated a March 18, 2010 report from a babysitter that the children
told her that Clint sexually molested the parties’ twins. (Defendant’s Ex. F).
After interviewing the children, the case manager and authorities concluded that
the allegations were unsubstantiated and that “there was a pattern in the children’s
statements that may indicate that the children are being influenced by individuals.”
(Id.). The case manager also sent a letter to the trial court judge informing him
that the parties’ children suggested in their interviews that they had unsupervised
contact with Mark, in contravention of the trial court’s order. (Defendant’s Ex.
A).
{¶42} On March 30, 2010, the Noble County Department of Child Services
received allegations that Mark was abusing one of the children by hitting and
kicking her. (Defendant’s Ex. W). When the case manager brought Trenda to the
police department to join the interview of the parties’ daughter, and the daughter
told Trenda what she told the case manager during her interviews, Trenda
began yelling at [the daughter] saying this is very important stuff and
[the daughter] should not lie. [The daughter] began to cry and told
her mother she was not lying, Mark does hit her and kick her.
[Trenda] still did not believe [the daughter]. [The daughter] looked
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at her mother and said “I did not mean Mark, I meant to say daddy
hits me.”
(Id.). At that point, the case manager stopped Trenda and told her that the
daughter was telling the truth and that Trenda “needed to support her daughter and
not call her a liar.” (Id.).
{¶43} On May 30, 2011, Trenda reported that Clint showered with and
kicked the parties’ children. (Defendant’s Ex. H). The children told the
responding officer that Clint kicked them and made them take a shower with him
every day they are with him. (Id.). In a follow-up interview less than two weeks
later, the children told the officer that Mark told them to make those allegations
against Clint. (Id.). They told the officer that they like being at Clint’s house and
that he never showers with them or abuses them. (Id.).
{¶44} On September 28, 2011, two days after the trial court appointed the
GAL, Trenda went to the Defiance County Sheriff’s Office and reported that one
of the children informed her that Clint slapped the child and attempted to hide the
resulting injury with makeup. (Id.). The officer who conducted initial interviews
of the children about the allegations expressed concerns over the variations in the
children’s versions of the events. (Id.). Four days later, Trenda took the child to
the emergency room because she felt the child had a concussion. (Id.). The
investigating officer spoke with the doctor, who said that he did not see physical
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evidence of any trauma but diagnosed a concussion based on the symptoms
Trenda reported. (Id.). The officer told the doctor that the child stated that Clint
struck both sides of her face at the same time, and the doctor stated that the child
would not have suffered a concussion-causing injury in that case. (Id.). When the
officer told Trenda about his conversation with the doctor, Trenda “was upset” and
told the officer to speak with the child’s school guidance counselor who “would
confirm everything.” (Id.). To the contrary, the guidance counselor “didn’t feel
there was any injury to the child,” and she questioned Trenda’s truthfulness. (Id.).
{¶45} None of those incidences—of March 26, 2008, March 18, 2010,
March 30, 2010, May 30, 2011, or September 28, 2011—resulted in charges
against Clint. (See Defendant’s Exs. F, W, H).
{¶46} Dan Crites, a sergeant with the Defiance County Sheriff’s Office,
testified that he investigated a June 27, 2012 incident in which Clint’s babysitter
called Trenda, then called the Defiance County Sheriff’s Office, to report that the
children told her that Clint walks around naked in front of them, that he hit his
girlfriend, and that he showers with the nine-year-old child. (Aug. 24, 2012 Tr. at
14); (Defendant’s Ex. C). These allegations were made in the past, investigated,
and deemed unfounded by authorities. (Id.); (Id.). Crites testified that Trenda
went to the babysitter’s house and attempted to take the children during Clint’s
visitation, but the children had already gone home with Clint. (Id.); (Id.).
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{¶47} The GAL, Katrina Kight, testified that Clint’s live-in girlfriend does
not have any criminal record, but Mark has a history of substance abuse issues
with methamphetamines. (Oct. 12, 2012 Tr. at 23). She testified that Mark has
three children of his own and is prevented by court order from having
unsupervised contact with them; however, he has an informal visitation
arrangement with the children’s mother. (Id. at 20-21). Mark testified that he has
not taken methamphetamines since October 8, 2005, and he has been arrested one
time for public intoxication in 2003. (Nov. 2, 2012 at 71-72).
{¶48} Kight testified that the children have been interviewed by social
workers between 15 and 20 times regarding allegations of sexual and physical
abuse, which has caused the children to experience trauma. (Oct. 12, 2012 Tr. at
19, 25). It was Kight’s understanding that Trenda filed 29 complaints against
Clint based on allegations of physical and sexual abuse and neglect, and none were
substantiated. (Id. at 24).
{¶49} The magistrate observed that Clint denied that he committed the
abusive acts alleged in any of the reports and gave plausible explanations. (Doc.
No. 76 at 3-16); (see Defendant’s Exs. F, W, H). The magistrate observed that on
only one occasion—in which Trenda alleged that Clint was cruel to a cat in front
of their children—were the allegations substantiated, and even then, the animal-
cruelty charge filed against Clint was dismissed. (Oct. 12, 2012 Tr. at 37); (Aug.
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24, 2012 Tr. at 31, 92). Trenda admitted during cross-examination that she made
“several” allegations of abuse against Clint, but only the animal-cruelty incident
led to a charge, which was dismissed. (Aug. 24, 2012 Tr. at 30-31). The
magistrate questioned Trenda’s credibility based on her accusing Clint of
“numerous bad acts toward her as far back as 2001.” (Doc. No. 76 at 11). The
magistrate also noted that Mark testified that when the children return to him and
Trenda at the police station following a visitation with Clint, Mark and Trenda
typically ask the children before leaving the station “if there’s anything [Mark and
Trenda] need to know that happened” at Clint’s. (Nov. 2, 2012 Tr. at 80-82).
Mark and Trenda do not wait for the children to volunteer information about their
time with Clint. (Id.).
{¶50} According to Kight, Trenda is “petrified that something is going to
happen” when the children are with Clint, and she has not “dealt with in any
substantial way her feelings of anxiety and what that means to the children, and
how she’s passing that anxiety on to the children.” (Oct. 12, 2012 Tr. at 26).
Other evidence in the record suggests Trenda and Mark told the children what to
say to investigators or, at a minimum, affected what the children said to
investigators through coaching or conditioning. (See Defendant’s Exs. F, H, V,
W); (Oct. 12, 2012 Tr. at 46-47). Kight believed that the children were not well
suited for that environment, so she recommended that custody be transferred from
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Trenda to Clint, on condition that Clint complete a parenting program and that the
children receive therapy from a child psychologist. (Oct. 12, 2012 Tr. at 25).
{¶51} The fourth R.C. 3109.04(F)(1) factor is: “The child’s adjustment to
the child’s home, school, and community.” R.C. 3109.04(F)(1)(d). The
magistrate examined the children’s home, school, and community circumstances,
and the record supports the magistrate’s observations. He stated that there was
some evidence of the children’s performance in school, but not of their
relationship with other students and teachers. (Doc. No. 76 at 16). The children
do relatively well in school. (Nov. 2, 2012 Tr. at 73). The magistrate noted that
the children would have to change schools if the trial court named Clint the
residential parent and legal custodian. (Doc. No. 76 at 16). Trenda lives in
Kendallville, Indiana. (Aug. 24, 2012 Tr. at 24). Clint lives in Sherwood, Ohio.
(Id. at 86).
{¶52} The magistrate indicated that the children appear to have an
“adequate relationship” with Mark and a “good relationship” with Clint’s live-in
girlfriend. (Doc. No. 76 at 16-17). The magistrate relied on Kight’s testimony
that there were no specific concerns regarding Trenda’s and Clint’s live-in
significant others, and both homes appear to be adequate. (Id. at 16). Kight
testified that she did not observe any indication of drug or alcohol abuse in either
home, and there do not appear to be any relationship problems between Mark’s
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children and the Krill children. (Oct. 12, 2012 Tr. at 21, 23). The magistrate
noted that the children “will continue to have adequate access to other family
members in the area.” (Doc. No. 76 at 17). Kight testified that Clint and Trenda
take the children to see their extended family members. (Oct. 12, 2012 Tr. at 22).
Finally, the magistrate observed that evidence concerning the children’s
“neighborhood environment for both parents was generally lacking.” (Doc. No.
76 at 17).
{¶53} The fifth R.C. 3109.04(F)(1) factor is: “The mental and physical
health of all persons involved in the situation.” R.C. 3109.04(F)(1)(e). The
magistrate and trial court cited the trauma to which the children have been
subjected under the current parenting arrangement. The record reveals troubling
ways in which this trauma has manifested itself. For example, on cross-
examination, Trenda expressed her belief that as long as Mark is protecting her, it
is okay for him to provoke fights with Clint during exchanges of the children.
(Nov. 2, 2012 Tr. at 37). It is no wonder, then, as Trenda testified, that during
these exchanges, the children run to Clint’s car “[b]ecause they want to hurry up
and get in his vehicle before anything happens.” (Id. at 36). The oldest child
“doesn’t want anything started.” (Id. at 37).
{¶54} As noted above, Kight testified concerning her beliefs that the
children have been traumatized by the frequent interviews by social workers and
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authorities and that the children should receive therapy from a child psychologist
trained in sexual-abuse cases. (Oct. 12, 2012 Tr. at 25-26). Following through
with high-level, professional therapy, Kight said, “would be vital to the children’s
stability and emotional state.” (Id. at 26). In addition, Kight recommended that
Clint complete a parenting program, as noted above, and that Trenda receive
counseling and also complete a parenting program. (Id. at 25-26).
{¶55} The sixth R.C. 3109.04(F)(1) factor is: “The parent more likely to
honor and facilitate court-approved parenting time rights or visitation and
companionship rights.” R.C. 3109.04(F)(1)(f). Related to our analysis of the sixth
factor is the ninth factor, which is: “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.”
R.C. 3109.04(F)(1)(i). The magistrate found that Trenda “has shown indifference
and lack of respect by basically ignoring the court orders” and “is much less likely
than [Clint] to honor and facilitate” the trial court’s parenting-time and other
orders. (Doc. No. 76 at 17). The record supports the magistrate’s findings.
{¶56} As the magistrate observed, Clint and his mother testified that Trenda
has on numerous occasions denied him parenting time when he is planning to take
the children to a family event. (Oct. 12, 2012 Tr. at 10-11, 59-60). Clint
identified Defendant’s Exhibit BB as Hicksville Police Department reports
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documenting the instances when Trenda failed to exchange the children. (Id. at
50-51); (Defendant’s Ex. BB). The magistrate also noted that Trenda admitted
denying Clint parenting time on multiple occasions, including after she served
eight days in jail for contempt, but she asserted that she denied him parenting time
based on the abuse claims and advice from others, such as the Noble County
Department of Child Services. (Aug. 24, 2012 Tr. at 32); (Nov. 2, 2012 Tr. at 33-
35). Trenda admitted that she was sentenced to eight days in jail “because [she]
stopped visitation on [her] own.” (Nov. 2, 2012 Tr. at 33). In her brief, Trenda
dismissively refers to these incidents as “hiccups with some of the visitations.”
(Appellant’s Brief at 13).
{¶57} Finally, in its July 3, 2008 consent judgment entry, the trial court
ordered that Trenda not allow unsupervised contact between the children and
Mark. (Doc. No. 34). On the August 24, 2012 and November 2, 2012 hearing
dates, Clint’s counsel asked Trenda whether she allowed her children
unsupervised contact with Mark. (Aug. 24, 2012 Tr. at 28); (Nov. 2, 2012 Tr. at
39). On August 24, Trenda responded, “No, I have not.” (Aug. 24, 2012 Tr. at
28). However, on November 2, Trenda testified that she had allowed
unsupervised contact between the children and Mark “[b]efore the divorce was
finalized and all the rulings were in place.” (Nov. 2, 2012 Tr. at 39).
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{¶58} The seventh R.C. 3109.04(F)(1) factor is: “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.” R.C. 3109.04(F)(1)(g). Clint testified that for a “month or two
period” while he was receiving unemployment benefits, he fell behind in his child-
support payments. (Aug. 24, 2012 Tr. at 114). However, Trenda testified that she
received all of the child-support payments owed to her. (Id. at 36). The
magistrate noted that the child-support issues were resolved in the magistrate’s
September 16, 2011 decision. (Doc. No. 76 at 21, citing Doc. No. 55).
{¶59} The eighth R.C. 3109.04(F)(1) factor “requires consideration of
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.’” Scarberry v. Scarberry, 2d Dist. Clark No. 10-CA-0091,
2011-Ohio-2829, ¶ 19, quoting R.C. 3109.04(F)(1)(h). The record suggests that
neither parent and neither of the parents’ current significant others has been
convicted of, or pleaded guilty to, an offense encompassed by R.C.
3109.04(F)(1)(h). As the trial court noted, the Indiana charges against Clint for
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animal cruelty were dismissed, and Kight observed no indication of drug or
alcohol abuse in either home. (Aug. 24, 2012 Tr. at 31); (Oct. 12, 2012 Tr. at 23).
{¶60} The tenth R.C. 3109.04(F)(1) factor is: “Whether either parent has
established a residence, or is planning to establish a residence, outside this state.”
R.C. 3109.04(F)(1)(g). As we noted above, and as the magistrate noted, Clint
lives in Ohio, but Trenda has established an out-of-state residence in Kendallville,
Indiana. (Doc. No. 76 at 4); (Aug. 24, 2012 Tr. at 24, 86).
{¶61} After summarizing the evidence presented at hearing, the magistrate
noted that, while “[t]here are parenting concerns regarding both parties,” Trenda
has “regularly violated the court orders regarding parenting in that she has
admittedly denied [Clint] parenting on numerous occasions and has disregarded
the court order regarding unsupervised contact with Mark Armstrong.”
(Magistrate’s Decision at 14-15). The magistrate also noted that Trenda continued
to violate the trial court’s orders after serving eight days in jail for contempt. (Id.
at 15).
{¶62} The magistrate concluded that “[t]he current arrangement is harmful
to the children and could cause difficulties for them now and in the future” and
that “[l]eaving things the way they are does not appear to be appropriate nor [sic]
in their best interests as it is almost assured that [Trenda] will continue her pattern
of conduct.” (Id. at 18). He also noted that maintaining the current arrangement
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would continue to be traumatic for the children and continue to erode their
relationship with Clint. (Id. at 18-19). The magistrate relied on the GAL’s
recommendation to modify the parenting rights and responsibilities and indicated
that the children “would be less harmed by a change than by leaving the parenting
situation as it is now.” (Id. at 19). The trial court agreed with the magistrate.
(Doc. No. 91).
{¶63} We hold that the trial court, by its October 7, 2013 judgment entry
upholding the magistrate’s decision, satisfied its statutory obligations to make the
best-interest and harm-versus-advantages findings under R.C. 3109.04(E)(1)(a)
and to consider the relevant factors found in R.C. 3109.04(F)(1). The trial court’s
findings are supported by a substantial amount of credible and competent evidence
and are not against the manifest weight of the evidence. While the trial court
clearly placed greater emphasis on certain R.C. 3109.04(F)(1) factors—namely the
factors relating to the denial of parenting time and the parent most likely to honor
parenting-time and visitation rights—it was allowed to do so. Brammer,
2013-Ohio-2843, at ¶ 41. Moreover, to the extent it did so, the trial court acted
well within its discretion by affording greater weight to Clint’s testimony over
Trenda’s. Logan v. Holcomb, 3d Dist. Marion No. 9-12-61, 2013-Ohio-2047,
¶ 39, citing Sellers v. Sellers, 4th Dist. Washington No. 09CA45, 2010-Ohio-3712,
¶ 17.
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{¶64} Trenda argues in her third assignment of error that R.C. 3109.04
requires the trial court to “make a finding that the best interest factors in R.C.
3109.04 weighed in [Clint’s] favor.” (Appellant’s Brief at 10). As we explained
above, R.C. 3109.04(E)(1)(a) requires that before modifying a prior decree
allocating parental rights and responsibilities, the trial court must find that a
“modification is necessary to serve the best interest of the child.” R.C.
3109.04(E)(1)(a). In making that determination, the trial court “shall consider all
relevant factors” listed in R.C. 3109.04(F)(1). R.C. 3109.04(F)(1).
{¶65} Here, the trial court satisfied these statutory requirements—it
concluded that a modification was necessary to serve the children’s best interests
after considering the relevant factors found in R.C. 3109.04(F)(1). There is no
additional requirement that the trial court find that the R.C. 3109.04(F)(1) factors
weigh in favor of one party or the other. The trial court is required only to
“consider all relevant factors.” (Emphasis added.) Id.{¶66} Trenda also argues that the trial court is “tied to the ten best interest
factors in 3109.04(F)(1) [sic] and nothing more, so it is an error to add its own
factors.” (Appellant’s Brief at 14). This is contrary to the plain language of the
statute. R.C. 3109.04(F)(1) states that “the court shall consider all relevant
factors, including, but not limited to,” those listed. (Emphasis added.) R.C.
3109.04(F)(1). In other words, “[a] trial court is not limited to the listed factors in
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R.C. 3109.04(F), but may consider any other relevant factors in making a
determination of child custody.” Brammer, 2013-Ohio-2843, at ¶ 41, citing
Shaffer v. Shaffer, 3d Dist. Paulding No. 11-04-22, 2005-Ohio-3884, ¶ 20.
Because the trial court was free to consider any relevant factors beyond those
listed in R.C. 3109.04(F), we reject Trenda’s argument.
{¶67} For the reasons above, we conclude that the trial court made the
findings required by R.C. 3109.04 and that those findings are supported by a
substantial amount of competent, credible evidence. Therefore, the trial court did
not abuse its discretion by naming Clint the residential parent and legal custodian
of the parties’ children.
{¶68} Trenda’s second, third, and fourth assignments of error are overruled.
Assignment of Error No. I
The trial court’s finding of contempt is contrary to the facts and
the weight of evidence.
{¶69} In her first assignment of error, Trenda argues that the trial court’s
finding of contempt for denial of visitation is not supported by any testimony in
the record. Before addressing Trenda’s first assignment of error, we must
determine whether she preserved this assignment of error for appeal.
{¶70} Civ.R. 53(D)(3)(b) governs objections to a magistrate’s decision.
Specifically, Civ.R. 53(D)(3)(b)(iv) provides:
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Except for a claim of plain error, a party shall not assign as error on
appeal the court’s adoption of any factual finding or legal
conclusion, whether or not specifically designated as a finding of
fact or conclusion of law under Civ.R. 53(D)(3)(a)(ii), unless the
party has objected to that finding or conclusion as required by Civ.R.
53(D)(3)(b).
When a party fails to object to a factual finding or legal conclusion as required by
Civ.R. 53(D)(3)(b) and assigns as error on appeal anything other than plain error,
the appellate court need not address that assigned error. McMaster v. Akron
Health Dept., Housing Div., 189 Ohio App.3d 222, 2010-Ohio-3851, ¶ 20 (9th
Dist.); In re M.W.R., 12th Dist. Butler Nos. CA2007-04-105 and CA2007-04-106,
2007-Ohio-6169, ¶ 15-16. See also McCombs v. Blackert, 3d Dist. Crawford No.
3-11-03, 2011-Ohio-5079, ¶ 14 (applying the similarly worded Juv.R.
40(D)(3)(b)(iv) and declining to address appellant’s assignment of error because
appellant failed to argue plain error on appeal). “[T]his court will not sua sponte
undertake a plain-error analysis if [an appellant] fails to do so.” McMaster at ¶ 21.
{¶71} Here, Trenda did not object to the magistrate’s contempt-related
factual findings and legal conclusions, and the trial court noted as much in its
October 7, 2013 judgment entry overruling her objections to the magistrate’s
decision. (See Doc. No. 91). Therefore, under Civ.R. 53(D)(3)(b)(iv), except for
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a claim of plain error, Trenda cannot assign as error on appeal the trial court’s
adoption of the magistrate’s contempt-related factual findings and legal
conclusions. Trenda does not argue plain error on appeal. Rather, she assigns as
error the trial court’s contempt-related factual findings, and she erroneously
suggests that we should review her first assignment of error under an abuse-of-
discretion standard. Therefore, because Trenda fails to assign or argue plain error
on appeal, we need not and do not address further her first assignment of error.
{¶72} Trenda’s first assignment of error is overruled.
{¶73} 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
ROGERS and SHAW, J.J., concur.
/jlr
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