Cook v. Kramer

[Cite as Cook v. Kramer, 2022-Ohio-3422.]
IN THE COURT OF APPEALS OF OHIO
SEVENTH APPELLATE DISTRICT
JEFFERSON COUNTY
ROBERT COOK,
Plaintiff-Appellee,
v.
JULIA KRAMER fka COOK,
Defendant-Appellant.
OPINION AND JUDGMENT ENTRY
Case No. 21 JE 0026
Civil Appeal from the
Court of Common Pleas of Jefferson County, Ohio
Case No. 18 DR 348
BEFORE:
Cheryl L. Waite, Gene Donofrio, David A. D’Apolito, Judges.
JUDGMENT:
Reversed.
Judgment Entered in favor of Appellant.
Atty. Francesca T. Carinci, Carinci Law Office, 100 North Fourth Street, Suite 904-911,
Sinclair Building, Steubenville, Ohio 43952, for Plaintiff-Appellee
Atty. Elgine Heceta McArdle, McArdle Law Office, 2139 Market Street, Wheeling, West
Virginia 26003, for Defendant-Appellant.
Dated: September 20, 2022
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WAITE, J.
{¶1} Appellant Julia Kramer (formally known as Julia Cook) appeals a
September 20, 2021 judgment entry of the Jefferson County Court of Common Pleas
granting Appellee Robert Cook’s motion for reallocation of parental rights. Appellant
argues that each of the professional witnesses at the hearing opined that the custody
arrangement should not change based on the sole incident at issue. Appellant also
argues that the court improperly relied on outside knowledge when rendering its decision
in this matter. For the reasons provided, Appellant’s arguments have merit and the
judgment of the trial court is reversed and judgment is entered in favor of Appellant.
Factual and Procedural History
{¶2} The parties divorced after approximately two years of marriage. The
marriage produced one child (“the Child”) who was born on July 18, 2018 and at the time
of the instant proceedings was approximately twenty months old. Appellee announced
his intent to seek a divorce when the Child was approximately thirteen weeks old.
Because the divorce itself is not at issue, it will not be addressed at length. At issue is
the trial court’s change as to the residential parent of the Child. Certain aspects of the
divorce relevant to only this issue will be briefly addressed.
{¶3} During the divorce proceedings, both parties sought to become named as
the Child’s residential parent. At one point, Appellee sought sole custody, however, he
abandoned his attempts and later allowed Appellant to serve as residential parent.
{¶4} On March 19, 2020, Appellee filed a motion for contempt/motion for
reallocation of parental rights/motion and an ex parte order to resume parenting time.
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Appellee also filed a motion seeking reimbursement of medical costs. At the time these
motions were filed, the divorce decree designating Appellant as residential parent had not
yet been signed due to certain issues outside of the control of the parties. The decree
was not formally entered until four days later, on March 23, 2020.
{¶5} The ex parte motion was based on Appellant temporarily withholding
parenting time from Appellee after an incident where the Child received injuries while in
the care of Appellee and his family, as later discussed. Appellant made the decision to
temporarily withhold parenting time based on counsel’s advice. The court granted the ex
parte motion to resume parenting time.
{¶6} Appellee filed numerous additional motions in this matter which were all
voluntarily dismissed at different stages. It does not appear that any of these were
custody related motions. After Appellee dismissed his various motions, the sole
remaining issue before the trial court was his motion for reallocation of parental rights.
The court held a three-day hearing on this motion where the following witnesses testified:
Appellant, Appellee, Appellee’s mother and father, Sgt. Wes Crawford (Steubenville
Police Department), Chief Deputy Susan Bell (Jefferson County Sheriff’s Department),
Glenda Jones (Jefferson County Children’s Services), Michelle Santin (Jefferson County
Children’s Services), JoAnne Mulrooney, Guardian Ad Litem Craig Allen, Dr. Philip
Nawrocki, and Dr. Edward Baker.
{¶7} While both parties presented evidence regarding their numerous
disagreements and grievances, Appellee’s motion was based on one specific incident.
That incident occurred on March 16, 2020 when Appellee’s father was to return the Child
to Appellant following visitation. Appellee’s father brought the Child to the parking lot of
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a Bob Evans Restaurant located in Steubenville where Appellant was waiting to pick up
the Child. When Appellant placed the Child in his car seat, she noticed a long, dark red
line across the Child’s upper neck. Appellee’s father had already left the parking lot, but
Appellant was concerned about this injury and sent a text message to Appellee asking
what had happened to the Child’s neck. Appellee immediately responded to her text but
did not acknowledge or attempt to answer her question. Instead, he asked Appellant if
he would get the Child the next day, which was not his scheduled day according to the
custody agreement.
{¶8} Receiving no explanation and concerned about a possible neck injury,
Appellant called emergency services but could not remember if she called 911 or the
police department. (Trial Tr., p. 614.) Sgt. Crawford arrived at the parking lot and
examined the Child. Sgt. Crawford did not believe that the injury was serious but told
Appellant that it would “not be a bad idea” to get him checked medically. He told Appellant
that she could follow up with Det. Jarvis of the juvenile division.
{¶9} According to Appellant’s testimony, she followed Sgt. Crawford’s advice
and sought medical services. She first took the Child to a medical clinic called
“MedExpress.” The Child was examined by Chad Bauman (also called Bowman in the
record) who opined that the Child should be taken to an emergency room. Appellant
testified that she did not want to overreact, so she took the Child to her friend, JoAnne
Mulrooney. Mulrooney was described by both parties as a highly respected local nurse
who had recently retired.
{¶10} Mulrooney testified that she noticed the neck injury before Appellant even
began talking and was immediately concerned that the injury, which she described as
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similar to a “ligature mark,” could pose harm to the Child either immediately or in the
future. (Trial Tr., p. 87.) Mulrooney was also concerned because there was a significant
amount of dried mucus in the Child’s nose and on his cheeks and a significant amount of
dog hair matted in the mucus and sticking out of the Child’s pacifier. Mulrooney also
believed the Child should be seen at an emergency room and called her friend, Dr. John
Columbus, to ask his opinion. Dr. Columbus, who is an attending physician at Trinity
Hospital, recommended that Appellant bring the Child to the emergency room.
{¶11} Based on Dr. Columbus’ advice, Appellant took the Child to Trinity Hospital
Emergency Room. While at Trinity, Dr. Columbus did not examine or interact with the
Child. Instead, a resident named Dr. Lee Gillespie and a supervising physician named
Dr. Nawrocki conducted the examination. There is no evidence that Dr. Columbus spoke
to either attending physician at any point and there is no evidence that Appellant
previously knew either emergency room physician.
{¶12} Dr. Nawrocki testified that he and Dr. Gillespie made the decision to transfer
the Child to the University of Pittsburgh Medical Center (“UPMC”) “due to concern for
possible blunt vasculature.” (Trial Tr., p. 433.) Dr. Nawrocki specifically denied that
Appellant influenced his decision in any way and insisted that his decision was based on
the “potential for serious injury, given the injury pattern, that was the reason they were
referred.” (Trial Tr., p. 442.) He further expressed his concern that “that’s just not an
injury -- an accidental injury pattern that I have ever seen or that I’ve heard of in a one-
year-old.” (Trial Tr., p. 447.)
{¶13} At the direction of Dr. Nawrocki, the Child was taken by ambulance to
UPMC. Appellant had asked to take the Child herself, but was informed that he needed
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to be transported by ambulance due to concerns that the injury may affect his airway.
Appellant also was not permitted to accompany the Child in the ambulance and had to
follow behind in her vehicle.
{¶14} None of the medical providers from UPMC testified, however, these medical
records were admitted into evidence. A UPMC report provided the diagnosis which was
a “superficial linear abrasion across anterior neck.” (Plaintiff’s Exh. 10.) A medical
document from UPMC noted that the abrasion measured between 6-8 cm (2.382 inches-
3.15 inches). The report also noted that the depth of the “punctate” was 1mm. The report
noted there were two smaller red abrasions underneath the main abrasion and abrasions
to the Child’s knuckles.
{¶15} These reports make reference to claims of prior domestic abuse involving
Appellant and Appellee. The record is somewhat unclear as to this reference, but
Appellant testified at the hearing that she clarified to UPMC that the alleged domestic
abuse was “not physical.” (Trial Tr., p. 675.)
{¶16} UPMC did not release the Child until the early hours of the next morning, so
Appellant did not arrive back home until approximately 6:00 a.m. (Trial Tr., pp. 675-676.)
As a result, Appellee did not get visitation with the Child on that day as he had wished.
The record contains evidence that the parties texted back and forth. Appellee did not
inform Appellant whether he knew the cause of the injury but downplayed its seriousness,
referring to the injury as mere “scratches.” Appellant then informed Appellee that he
would not see the Child until some explanation for the cause of the injury was provided,
based on advice from her attorney. The record reflects that UPMC reported the Child’s
injury to authorities for investigation based on the potential for child abuse.
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{¶17} Appellant’s counsel sent Appellee’s counsel a letter stating: “When my
client picked [the Child] up from visitation with his father on March 16 th, 2020, she
discovered injuries that were not there when she dropped him off. She has attempted to
get an explanation from [Appellee] but he has refused to explain how the injuries occurred.
Please obtain an explanation from your client as this would greatly assist in decisions
made going forward.” (Def. Exh. 2.) Appellee’s counsel did not respond to this letter,
opting instead to file a motion for reallocation of parental rights and seeking an ex parte
order restoring parenting time.
{¶18} On September 20, 2021, the trial court issued a judgment entry granting
Appellee’s motion for reallocation. It is from this entry that Appellant timely appeals.
ASSIGNMENT OF ERROR NO. 1
The evidence presented at trial was insufficient to warrant a modification of
custody.
ASSIGNMENT OF ERROR NO. 2
The court improperly substituted its own personal knowledge, outside of the
evidence presented at trial, to issue a ruling on the merits of the case.
{¶19} In Appellant’s first assignment of error, she argues that the evidence
presented at the hearing did not warrant a change in the designation of residential parent.
Appellant argues that she withheld parenting time for only a limited period while awaiting
a response from Appellee’s counsel. Appellant points out that Appellee himself
acknowledged that she had never withheld parenting time on any other occasion and had
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never made an allegation of abuse against him. Appellant urges that each medical facility
believed the Child should receive further medical attention based on the injury pattern
and the lack of explanation regarding the cause and that she merely followed the medical
advice given to her throughout the process. Appellant explains that it was UPMC that
reported an incident of potential abuse to Children’s Services.
{¶20} In her second assignment of error, Appellant contends that the court
improperly considered its personal knowledge of her former employment as a local news
reporter and construed this as evidence that Appellant somehow knew that her actions
would cause a child abuse investigation to be instituted against Appellee and that she
used this knowledge to actually and improperly cause such an investigation.
{¶21} In response to the first assignment of error, Appellee focuses his argument
on the deference afforded to a trial court. As to the second assignment of error, Appellee
asserts that the record demonstrates Appellant was formally a local news reporter and it
is “generally known what reporters do for a living.” (Appellee’s Brf., p. 14.)
{¶22} If a trial court's decision regarding the custody of a child is supported by
competent and credible evidence, it will not be reversed absent an abuse of discretion.
Bechtol v. Bechtol, 49 Ohio St.3d 21, 550 N.E.2d 178 (1990), syllabus; Rohrbaugh v.
Rohrbaugh, 136 Ohio App.3d 599, 603, 737 N.E.2d 551 (7th Dist. 2000).
{¶23} A trial court has broad discretionary powers in child custody proceedings,
and a reviewing court should give the trial court’s decision a great deal of respect in light
of the gravity of the proceedings and the impact that a custody determination has on the
parties involved. Reynolds v. Goll, 75 Ohio St.3d 121, 124, 661 N.E.2d 1008 (1996);
Trickey v. Trickey, 158 Ohio St. 9, 13, 106 N.E.2d 772 (1952). R.C. 3109.04 provides a
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guide to a trial court's use of discretion during a custody modification proceeding. Miller
v. Miller, 37 Ohio St.3d 71, 74, 523 N.E.2d 846 (1988).
{¶24} Pursuant to R.C. 3109.04(E)(1)(a):
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:
***
(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.
{¶25} When determining a child's best interest, the court shall consider all relevant
factors, including:
(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 [ever been convicted of certain offenses or had a child
adjudicated abused or neglected];
(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;
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(j) Whether either parent has established a residence, or is planning to
establish a residence, outside this state.
R.C. 3109.04(F).
{¶26} Again, the sole incident relevant to this proceeding involves the injury to the
Child’s neck. While Appellee argues that this action also involved issues he raised in a
contempt motion, those claims were voluntarily dismissed, thus any allegations raised in
that motion may not be considered. We note that both parties introduced evidence of
various altercations, arguments, and disagreements between them, most of which are not
new to the parties. The record shows that these parties have a long and contentious
history, with instances of name-calling and bad behavior on the part of both Appellee and
Appellant. Regardless, this evidence is also not relevant, as the motion for reallocation
of parental rights was limited to the incident beginning with the injury to the Child’s neck.
In any event, this extraneous evidence reveals what is abundantly obvious: the parties
do not have an amicable relationship and do not effectively communicate.
{¶27} Our analysis is driven solely by the following question: were Appellant’s
actions as they relate to the incident involving the Child’s injury sufficient to demonstrate
a change in circumstances? This record reflects no such change in circumstances.
{¶28} The timeline of the events regarding the incident is critical to this analysis.
The incident began when Appellee’s father delivered the Child to Appellant following
Appellee’s visitation. Appellee’s father claimed at the hearing that the Child was clean
and had no visible signs of injury on his body at the time of the exchange. However, a
photograph of the Child that Appellant texted to Appellee only moments after this
exchange reveals a dark red abrasion across more than half the length of the Child’s
Case No. 21 JE 0026
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upper neck, with smaller abrasions branching off of it. This photograph was admitted into
evidence.
{¶29} Contrary to Appellee’s assertion at oral argument, the photograph also
depicts a significant amount of dried mucus, which almost completely plugged the Child’s
nose, underneath his nose, and on his cheeks. Small hairs that appear to be dog hair
were matted in the mucus and were also sticking out of the Child’s pacifier, which was
inside his mouth. Apparently, Appellee has a K9 dog and trains other dogs as a side
business.
{¶30} Despite Appellee’s father’s testimony, based on the time the Child was
returned to Appellant and the time of her photo and text, these injuries could not have
been suffered in the moments between the exchange and Appellant’s text message to
Appellee. The Child is not in any apparent distress in the photograph, as would be
expected with a Child who had just received an abrasion across his neck. Further, the
mucus was dried and the dog hair was matted within the mucus, making it impossible for
Appellant to have caused this state. Whether Appellee’s father knew of the abrasion or
had seen it before returning the Child to Appellant, the record reveals the Child was
returned to Appellant with an obvious injury and unclean.
{¶31} The photograph depicts what a reasonable person would describe as an
injury to a delicate area of the body, and troubling conditions are seen on the mouth and
nose area of the Child. The parties agree the Child suffers from asthma. While the trial
court’s judgment entry states that it is unclear whether the Child has asthma, both parties
clearly testified that he has been diagnosed with asthma, receives breathing treatments,
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and has an inhaler at both residences. This fact was also established during the
underlying divorce proceedings.
{¶32} Appellant texted Appellee and requested an explanation of the cause of the
injury. Appellee testified he refused to respond to Appellant’s request because he
claimed that any response by him would have triggered an argument. It is clear that
Appellant was concerned by the injury and her concerns are validated by the photo. While
Appellant could have been more cordial in her text, she requested that Appellee explain
the origin or at least tell her that he did not know how the injury occurred. Instead, he
ignored Appellant’s request and responded by asking if he would get visitation with the
Child the next day, a day that he was apparently expected but not scheduled.
{¶33} Receiving no answer, Appellant then called emergency services. Although
the trial court’s judgment entry specified that Appellant called 911, she testified that she
could not remember if she called 911 or the Sheriff’s Department. (Trial Tr., p. 614.)
Regardless, Sgt. Wes Crawford arrived and examined the Child. Sgt. Crawford, who is
not a medical provider, determined that the Child’s injury did not appear serious to him
but advised Appellant that she might want to have the Child medically examined.
{¶34} Appellant testified that she sought the least invasive treatment possible, so
she took the Child to a local clinic called “MedExpress.” Chad Bauman (aka Chad
Bowman) advised Appellant to take the Child to the emergency room. This
recommendation came from a medical provider and constituted medical advice.
Inexplicably, the trial court’s judgment entry refers to Bauman as a friend of Appellant and
states that the two used to be co-workers. Neither of these assertions are supported by
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the record. There is nothing within this record to suggest that Appellant and Bauman
were even acquainted prior to this incident.
{¶35} There is also nothing within the record to suggest that Appellant accused
Appellee of child abuse or that she even uttered that phrase to Bauman. The record
shows that she informed Bauman she had texted Appellee to ask what had happened
and he refused to respond. Again, the Child’s main injury was an abrasion on his neck
between two and one-half to three inches long. It is not unreasonable for a medical
provider to ask a parent how the Child received such an injury. Appellant’s assertion that
Appellee failed to respond to her is factually correct, as Appellee admits. Appellant cannot
be faulted for honestly providing information related to medical treatment, particularly as
it appears Appellee may have avoided this specific situation by simply explaining the
cause of the injury.
{¶36} Appellant testified that in an effort not to overreact, she took the Child to
Mulrooney’s house instead of directly to the emergency room. Again, Mulrooney is
described by both parties as a well-respected former nurse. Mulrooney testified that the
abrasion caught her attention immediately, even before Appellant mentioned it. She
described her observations, stating the Child “had a red mark from -- around the base on
his neck (indicating). It was a red line around the base of his neck she was concerned –
and I think I at the time, I was concerned – about. I knew he had asthma.” (Trial Tr., p.
81.) She continued, “[a]nd I was worried about what was going on here (indicating). I
didn’t know about what happened around his neck.” (Trial Tr., pp. 81-82.) Mulrooney
continued “I don’t know what could have caused that. It almost looks like a ligature mark,
but it’s a red mark around his neck.” (Trial Tr., p. 87.) She stated on cross, “I was
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concerned about his asthma, not knowing what all this was, and did that trigger an asthma
attack that would trigger something a little more desperate down the line.” (Trial Tr., p.
86.)
{¶37} Because of her concerns and Appellant’s reluctance to take the Child to the
emergency room, Mulrooney called her friend, Dr. Columbus. Again, Dr. Columbus is an
emergency room physician at Trinity Hospital. Dr. Columbus opined that the Child should
be transported to the emergency room. Hence, Appellant took the Child to emergency
based on medical advice.
{¶38} At Trinity, resident Dr. Gillespie and supervising physician Dr. Nawrocki
examined the Child. Dr. Nawrocki testified that it was he who made the decision to
transfer the Child by ambulance to UPMC “due to concern for possible blunt vasculature.”
(Trial Tr., p. 433.) Dr. Nawrocki specifically denied that Appellant influenced his decision
in any way and insisted that his decision was based on the “potential for serious injury,
given the injury pattern, that was the reason they were referred.” (Trial Tr., p. 442.) He
further expressed his concern that “that’s just not an injury -- an accidental injury pattern
that I have ever seen or that I’ve heard of in a one-year-old.” (Trial Tr., p. 447.) In its
judgment entry, the trial court dismissed Dr. Nawrocki’s testimony as not credible. While
this determination is certainly within the purview of the trial court, the court apparently
makes the leap that Appellant should not have relied on the doctor’s medical advice, even
though the record is absent an indication that Appellant had reason to be aware she
should not rely on the advice of this medical professional.
{¶39} At Dr. Nawrocki’s direction, the Child was taken by ambulance to UPMC.
She was also not permitted to take the Child herself and was not permitted to accompany
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the Child in the ambulance. While the trial court also criticized Appellant for allowing the
Child to be transported by ambulance, Appellee himself admitted that Appellant was
merely following medical advice. His counsel stated the following at the hearing:
[Appellee’s counsel]: I will tell you, too -- I have to say, based on the
evidence, I don’t think that the medical bills are unreasonable. Because I
think that quack from Trinity caused it to be, so I don’t think the ambulance
-- after hearing him, I don’t think it was her fault about the ambulance. So I
think the medical bills are reasonable.
Like he’ll -- he’s saying he even agrees with me. (Emphasis added.)
(Trial Tr., pp. 482-483.)
{¶40} Again, none of the medical providers from UPMC testified. The medical
records were admitted into evidence. These contain a diagnosis of “superficial linear
abrasion across anterior neck.” (Plaintiff’s Exh. 10.) The abrasion was roughly two to
three inches in length and 1mm deep. The Child also had two smaller red abrasions
underneath the main abrasion and abrasions to the knuckles.
{¶41} UPMC made the decision to alert Jefferson County Children’s Services
(“Children’s Services”). Appellant testified that she called Children’s Services the next
morning after being informed by UPMC staff that their report would be submitted
overnight. UPMC documents indicate that a message had been left at the agency, which
was closed at that hour, concerning UPMC’s report. Appellant testified that she called
the agency to check the status because she was informed that she may be required to
call them.
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{¶42} Dr. Baker, who performed psychological examinations of both parties,
testified regarding Appellant’s call to Children’s Services and opined that “[i]t’s certainly
the normal process that once the medical evaluation is done, and then if there’s some
conclusion that there’s some uncertainty about the nature or the cause of the
investigation, that that typically happens in that order.” (Trial Tr., p. 581.)
{¶43} Although the trial court clearly holds Appellant responsible for the
investigation into possible abuse, the UPMC documents clearly state that “[s]ocial work
filed childline in Ohio based on injuries without explanation.” (Emphasis added.)
(Plaintiff’s Exh. 10.) Thus, it was not Appellant who triggered the child abuse
investigation. Rather, the decision to report the abuse to Children’s Services was
prompted by concern from the Child’s medical providers as a result of the unusual
appearance of the abrasion and lack of an explanation of the cause of this injury. The
trial court clearly faults Appellant for following the advice of the medical providers and
suggests she “manipulated” the entire situation in order to cause an investigation into
possible child abuse. This record does not support such a conclusion, however.
{¶44} In addition to dismissing the opinion of the attending physician as incredible,
the court also dismissed the testimony and opinions of Dr. Baker, the physician who
undertook psychological examinations of both Appellee and Appellant. Dr. Baker testified
that he did not see any benefit to changing the residential parent and stated his belief that
“I don’t think a specific custody arrangement would resolve that, even if -- unless one
parent had no custody whatsoever and didn’t see the child, which I don’t think would be
appropriate in this case. So even if a parent had every-other weekend or some
modification such as that, there’s still ample opportunity for that conflict to occur.” (Trial
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Tr., pp. 534-535.) Dr. Baker emphasized his belief that the parties equally contributed to
the communication issues and animosity.
{¶45} As to the specific incident at issue, Dr. Baker opined that Appellee’s
deliberate lack of communication caused an overreaction by Appellant. Dr. Baker
provided testimony that, in hindsight, it appears that the injury was not serious and that it
was possible mother engaged in “overexaggeration.” (Trial Tr., p. 546.) However, he
clearly asserted that this opinion was based on the benefit of hindsight. He testified that
a medical evaluation of the Child “seemed like a reasonable thing to do if there was some
concern about, you know, further injury.” (Trial Tr., p. 578.) He also testified that the
multiple evaluations by various providers to whom Appellant was directed were not an
overreaction based on the circumstances and “[i]f she didn’t do it, that would be seen as
being irresponsible based on the doctor’s recommendation.” (Trial Tr., p. 579.)
{¶46} Dr. Baker further opined that the parties’ conflict is centered on their differing
opinions regarding how best to raise the Child and that the parties do not necessarily hate
one other. He stated that both parties are guarded and provide limited information to one
another, but are equally capable of parenting the Child. He opined that Appellant is “just
tired of the constant legal battle.” (Trial Tr., p. 587.)
{¶47} The court discounted Dr. Baker’s testimony, finding:
[H]is conclusions were less than helpful given the entirety of the evidence
in this matter. Although the Court appreciates that there are worse co-
parenting relationships than the Parties here, it is not convinced of the [sic]
Dr. Baker’s conclusions regarding custody. This Court, having more than
just an hour contact with both Parties believes that the insidious, escalating
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manipulative behavior by [Appellant] has a negative effect on the
development of the healthy relationship of the child with both parents.
Parental alienation does not occur in an all or nothing environment. The
psychological manipulation and indoctrination of a child against the other
parent may begin ever so subtly and increasingly permeate the relationship
of the target parent.
(9/20/21 J.E., ¶ 32.)
{¶48} This record reflects that the court’s decision is at odds with not only Dr.
Baker’s recommendation based on his psychological exams, but also that of the guardian
ad litem. The guardian ad litem likewise testified that the medical process continued to
escalate because of doctor’s orders rather than Appellant’s actions, and that Appellee’s
refusal to explain the injury “served to heighten the animosity” between the parties. (Trial
Tr., p. 154.) He opined that Appellant did not take the Child to the hospital with ill intent
towards Appellee. However, because Appellee and his family refused to explain an
“innocent” cause of the injury, this failure “served to heighten the animosity between
[Appellee] and [Appellant] and his family.” (1/25/21 Guardian Ad Litem Report, p. 3.)
{¶49} The guardian ad litem noted that neither party trusts the other, and that the
significant amount of legal filings contribute to this distrust. He opined that both parties
were equally at fault in causing this environment of distrust and a change in custody would
not be productive. (1/25/21 Guardian Ad Litem Report.) He believed that both sides
would continue in their questionable behavior to one another regardless of who is named
the residential parent. He testified that his observations were similar to the previous
guardian ad litem, who was apparently appointed in the divorce proceedings. The fact
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that the recommendation of maintaining the status quo was made by both of the
professional witnesses, Dr. Baker and the guardian ad litem, is significant, but completely
rejected by the trial court.
{¶50} Appellee attempts to argue that he missed three days of parental visitation
with the Child due to Appellant’s actions. It is important to review the timeline of events
when considering this argument. The abrasion was discovered by Appellant on Monday,
March 16, 2020. The Child’s medical treatment continued until the morning of Tuesday,
March 17, 2020 when UPMC released the Child.
{¶51} Appellee claims he was entitled to visitation on Tuesday, March 17, 2020.
Appellee conceded that he does not ordinarily receive the Child on Tuesdays but
assumed he would this particular Tuesday because the daycare was closed and
Appellant was scheduled to work. Again, this was not Appellee’s scheduled day and
Appellant was not obligated to give him the Child. Also, Appellant testified at length that
UPMC did not release the Child until the early hours of Tuesday morning. Due to
exhaustion, Appellant chose to stay home with the Child that day. At some point that
morning, Appellant and Appellee texted and she informed him that he would not get the
Child that day due to the hour of the Child’s release and the lack of sleep. She chose to
stay home from work that day, so the fact that the daycare was closed is irrelevant.
{¶52} It appears that Appellee was scheduled to visit with the Child on
Wednesday, March 18, 2020 but did not. Hence, he missed one day of visitation. The
record is unclear whether the custody agreement provided that Thursday, March 19, 2020
was Appellee’s day with the Child. However, he testified “and then Thursday was an
agreement between her and I that I was getting him on those Thursdays.” (Trial Tr., p.
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171.) It appears there was only an informal agreement between the parties and this was
not Appellee’s scheduled day with the Child pursuant to the custody agreement. On that
day, Appellee filed his ex parte motion and he received parenting time with the Child the
next day. Thus, while Appellant certainly did not intend to allow parenting time by
Appellee on advice of counsel until she received his explanation, she immediately
complied with the court’s order. (Trial Tr., p. 639.) The record supports that Appellee lost
only one of his scheduled days as provided by the court approved custody agreement.
{¶53} Appellee makes much of the fact that he was subjected to an investigation
into possible child abuse by his peers which angered and embarrassed him. First and
foremost, we must emphasize that Appellant did not file any kind of child abuse complaint.
She did call the police once Appellee failed to answer her question about the cause of
the Child’s injury, but there is no evidence that she accused Appellee of abuse during this
encounter. Sgt. Crawford testified that he instructed Appellant to follow up with Det.
Jarvis. Children’s Services had explained she could call the Sheriff’s Department with
any questions, and it appears she did call the Department with a question. However,
there is no evidence that Appellant took any further actions with law enforcement and
there is no evidence that she even mentioned the possibility of abuse. Additionally, as
already discussed, it was UPMC who filed the report with Children’s Services, not
Appellant.
{¶54} At oral argument, Appellee complained that Appellant’s actions also caused
him to be investigated by the Ohio Attorney General’s Office. However, the record reveals
that the matter was referred to the attorney general’s office only after the Jefferson County
Prosecutor’s Office deemed a potential conflict of interest existed and they decided to
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contact the attorney general. Appellant was not involved in any way with this decision.
Contrary to Appellee’s argument, the fact that the child abuse investigation reached the
level of the attorney general’s office does not constitute a changed circumstance.
{¶55} Despite the fact that this incident of March 16, 2020 comprised the sole
basis for Appellee’s motion for a change in custody, the court relied on several other
incidents not relevant to this motion in reaching its decision. Additionally, it appears that
the trial court misremembered several facts that are in the record on which it heavily relied
in entering its judgment.
{¶56} In paragraph eight of the trial court’s findings, the court noted Appellee’s
testimony that Appellant’s older child no longer speaks to his father due to Appellant’s
alleged alienation and expresses concern this will happen with Appellee’s child. First,
Appellee’s step-child’s relationship with his father is clearly irrelevant, here. And while
Appellant admitted that there were initially communication issues with her first husband,
her unrebutted testimony was that those issues have been resolved and they currently
co-parent the older child without issue. Any conflicting testimony from Appellee would
clearly be outside of his personal knowledge, as he provided no information leading to
the conclusion that he knew of the current status of the relationship between Appellant
and her first husband or of the relationship the first husband has with the former step-
child. We also note UPMC’s records revealed Appellant’s older child was with his father
in accordance with their custody agreement at the time of the hospital visit.
{¶57} In paragraph ten, the court found Sgt. Crawford to be “quite credible” but
then inaccurately described his testimony. According to the court, Sgt. Crawford “testified
that he does not know [Appellee] well as they are on different schedules.” (9/20/21 J.E.,
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¶ 10.) Sgt. Crawford testified, however, “I would consider him a friend, as far as we’re
coworkers that get along. But outside of work, I don’t believe we’ve ever socialized.”
(Trial Tr., p. 13.) He also confirmed that he interacts with Appellee at work. While Sgt.
Crawford testified that he does not think he has socialized with Appellee, the description
provided by Sgt. Crawford in no way supports the court’s conclusion that the two men do
not know each other well or that they work different schedules. Sgt. Crawford did not
claim that he was on a different schedule than Appellee. In fact, the record demonstrates
that Appellee and Sgt. Crawford were both on shift on the day of the incident.
{¶58} In paragraph eleven, the court stated that Appellant “knew [Chad] Bowman
personally and from her employment at Trinity. Mr. Bowman did not examine the child.”
(9/20/21 J.E., ¶ 11.) The record is completely devoid of any evidence to support any of
those conclusions.
{¶59} In paragraph thirteen, the trial court stated that Appellant presented
“misleading information” and implied to various health care personnel that Appellee was
abusive to the Child. (9/20/21 J.E., ¶ 13.) This also is unsupported by the record. All of
the evidence supports that when Appellant arrived at each medical center, she informed
personnel that she did not know what caused the Child’s injury and that Appellee did not
respond to her text asking about the cause. While there is a note in UPMC’s records that
Appellant may have mentioned possible “strangulation,” this is not odd considering she
had earlier been advised that the marks resembled “ligature marks.” (Trial Tr., p. 87.)
There is nothing misleading about this statement and it accurately described Appellant’s
knowledge regarding a question certain to be asked by medical providers. The sole
evidence at trial on the issue of child abuse was that Appellant did state she believed
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Appellee was abusive to her during their marriage, but only in response to a specific
question asked by only one of the medical providers. She testified that she clarified this
abuse was not physical.
{¶60} In paragraph thirty of the judgment entry, the court relied on an incident
where Appellee was upset that Appellant posted a photograph of the Child and her older
son in the bathtub covered with bubbles. The court stated that Appellee “told her to pull
it off the site, [and] she minimized his concerns. At hearing [Appellee] explained his
concerns as to how such pictures can be used by others for nefarious purposes. Instead
of acknowledging that maybe she just had not thought of that, she maligned [Appellee].”
(9/20/21 J.E., ¶ 30.)
{¶61} Again, this incident is completely irrelevant to the issue in this case. Even
so, contrary to the court’s description of the event, Appellee testified at the hearing that
he did not discuss the bathtub photograph with Appellant. It is obvious that he could not
have asked her to delete it from her social media. He did not make such a request at the
hearing. In testimony as to this matter at the custody hearing, when asked if he
communicated his concerns to Appellant he testified that he did not because he believed
that it would only spur an argument. Appellant’s counsel addressed Appellee’s failure to
raise the issue with her:
Q Okay. If you are not concerned enough to report [the photograph to
Appellant], what was the purpose of bringing it to the Court’s attention
today?
A To show that it’s questionable behavior.
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(Trial Tr., p. 344.) It is clear from this testimony Appellee was attempting in some fashion
to bolster his claim of a change in circumstance. It is equally clear this attempt should
have failed, since the event was irrelevant and certainly did not support any change in
circumstance.
{¶62} In addition, the court considered its personal knowledge of Appellant’s
former employment as a news reporter and current employment at a hospital, construing
this to decide that her employment history provided Appellant with the knowledge and
connections to orchestrate false abuse claims against Appellee. “A judicially noticed fact
must be one not subject to reasonable dispute in that it is either (1) generally known within
the territorial jurisdiction of the trial court or (2) capable of accurate and ready
determination by resort to sources whose accuracy cannot reasonably be questioned.”
Evid.R. 201(B). “A judge may not take judicial notice of facts just because the judge has
personal knowledge of a fact.” Staffrey v. Smith, 7th Dist. Mahoning No. 09-MA-107,
2010-Ohio-1296, ¶ 38.
{¶63} Reviewing this record, the discussion of Appellant’s employment history is
irrelevant and speculative. There is nothing within the record to suggest that Appellant
specifically covered abuse cases in her work as a news reporter. Even if she had, it is a
stretch to assume that this somehow provided her the knowledge or ability to orchestrate
a false abuse claim. We must note that this is particularly true when considering the court
properly ignored the fact that Appellee’s current employment as a police officer could also
be said to raise certain speculation in this matter.
{¶64} In addition, the trial court considered Appellant’s employment in a hospital
setting. However, Appellant works in human relations and there is nothing within the
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record to suggest that she has any interaction in the medical treatment aspect of a
hospital. Any suggestion that she gleaned certain specific knowledge to cause her to
falsely imply abuse is complete speculation. Regardless, there is no evidence to suggest
that Appellant did anything other than follow medical advice in seeking treatment for the
Child.
{¶65} We again state the obvious: the parties do not get along. While many,
many instances of disagreement between the parties were raised and discussed at
hearing in this matter, almost all of this testimony is irrelevant to the sole issue regarding
whether the incident that occurred on March 16, 2020 amounted to a change in
circumstance. Clearly the animosity which exists is not any kind of change in
circumstance in this case.
{¶66} In reviewing only the relevant evidence as to whether the incident beginning
March 16, 2020 constituted a change in circumstance for child custody purposes, this
record reflects that it did not. The Child was returned to Appellant from Appellee’s family
with a visible injury and in an unclean state. No explanation for the unusual appearance
of the marks on this very young child was given, though it was sought. It was completely
consistent with the parties’ past dealings that they failed to communicate and cooperate.
On review of the evidence, particularly the photograph of the Child’s injury and condition,
the record reflects it was more than reasonable for a parent to seek medical treatment
where the cause of that injury is unknown. While Appellee downplayed the injury as a
“mere scratch,” the photographs admitted as evidence could suggest otherwise.
Following examination, it became known that the injury was not serious, but there was no
way for Appellant to know this at the time she sought medical treatment. Each of
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Appellant’s actions regarding the injury and the accompanying medical treatment appears
to be reasonable and based on medical advice, on which she reasonably relied and
followed. Unfortunately, because the parties do not cooperate the situation became more
complicated than necessary and ultimately involved an investigation by child welfare
authorities. While the trial court clearly believed this was Appellant’s goal, there is no
evidence that this was Appellant’s plan or intent, despite the conjecture in the record on
which the trial court relied. Even if the trial court found one of the treating doctor’s
testimony incredible, there is no evidence of record that Appellant should not have relied
on his advice. Most importantly, nothing in regard to the evidence surrounding this
incident reveals any change in the circumstances of these parties or their dealings with
one another regarding parenting. And again, this incident provided the sole basis for
Appellee’s motion seeking reallocation of parental rights.
{¶67} We reiterate that the consensus opinion of all professional testimony is that
the current arrangement of the parties having essentially equal parenting time should
remain. Appellant should remain as the custodial parent absent a change in
circumstance, which has not occurred. Hence, there is no need to address the best
interests of the Child. However, we remind the parties that at the heart of every custody
case is a consideration of a child’s best interests. While we understand and appreciate
how difficult matters involving parenting issues may be, continued contentious behavior
never serves any child’s best interests.
{¶68} Based on the foregoing, Appellant’s first and second assignments of error
have merit and are sustained.
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Conclusion
{¶69} Appellant argues that each of the professional witnesses at the hearing
opined that the custody arrangement should not change based on the sole incident at
issue. Appellant also argues that the court improperly relied on outside knowledge that
was not presented at trial when rendering its decision in this matter. For the reasons
provided, Appellant’s arguments have merit and the judgment of the trial court is reversed
and judgment is entered in favor of Appellant.
Donofrio, P.J., concurs.
D’Apolito, J., concurs.
Case No. 21 JE 0026
[Cite as Cook v. Kramer, 2022-Ohio-3422.]
For the reasons stated in the Opinion rendered herein, the assignments of error
are sustained and it is the final judgment and order of this Court that the judgment of the
Court of Common Pleas of Jefferson County, Ohio, is reversed. Judgment is hereby
entered in favor of Appellant. Costs to be taxed against the Appellee.
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.