Wiram v. Wiram

FROELICH, J.

T.C. NO. 12-DR-392 (Civil Appeal from Common Pleas Court, Domestic Relations) OPINION JON A. DOUGHTY, Atty. Reg. No. 0024869 and JOSEPH M. JUERGENS, Atty. Reg. No. 0024912, 20 N. Limestone Street, Springfield, Ohio 45502 Attorney for Plaintiff-Appellee JENNIFER J. JOSEPH, Atty. Reg. No. 0055991 and DEBORAH L. McNINCH, Atty. Reg. No. 0055450 and COURTNEY L. HANNA, Atty. Reg. No. 0081359 and S. KYLE DODDERER, Atty. Reg. No. 0092192, 155 W. Main Street, Suite 200, Columbus, Ohio 43215 Attorneys for Defendant-Appellant FROELICH, J.

{¶ 1} Mother appeals from a judgment of the Clark County Court of Common Pleas, Domestic Relations Division, which reallocated parental rights and responsibilities with respect to her children and named Father the residential and custodial parent. For the following reasons, the judgment of the trial court will be affirmed.

{¶ 2} Father and Mother have been married to each other and divorced two times, and they have two children, a daughter and a son. Their most recent divorce was in January 2014, and Mother was named the residential and custodial parent of the couple's children at that time; Father was awarded parenting time according to the standard order.

{¶ 3} On March 30, 2016, Father sought and was granted ex parte temporary custody of the children, based on affidavits alleging that Mother had not been acting as the primary caregiver for the children for the preceding eight months. Father also filed a motion for reallocation of parental rights, such that he would be the residential and custodial parent of the children. A hearing on Father's motion was held on January 31, February 8, and February 21, 2017. The daughter was age 11 and the son was age 8 at the time of the hearing. On March 2, 2017, the trial court granted Father's motion for a reallocation of parental rights, named Father the residential and custodial parent, and awarded Mother parenting time according to the standard order.

{¶ 4} Mother appeals, raising two assignments of error. Both assignments relate to the manner in which the trial court weighed the evidence presented and its findings with respect to the appropriateness of a change in custody. Specifically, the assignments challenge the trial court's conclusions that there had been a change in circumstances since the divorce and that a modification was in the best interest of the children because the harm caused by a change in custody was outweighed by its advantages. We will address the assignments together.

{¶ 5} Concerning custody modification, R.C. 3109.04(E)(1)(a) provides, in pertinent 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.

"A change in circumstances must be one of substance, not slight or inconsequential, to justify modifying a prior custody order." Davis v. Flickinger, 77 Ohio St.3d 415, 418, 674 N.E.2d 1159 (1997).

{¶ 6} We review a trial court's ruling on a motion for reallocation of parental rights for an abuse of discretion. Chaney v. Chaney, 2d Dist. Montgomery No. 24880, 2012-Ohio-626, ¶ 9, citing Musgrove v. Musgrove, 2d Dist. Montgomery No. 24640, 2011-Ohio-4460, ¶ 7. Abuse of discretion is a term used to indicate that a trial court's decision is unreasonable, arbitrary or unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983). In most instances, an abuse of discretion will result in a decision that is simply unreasonable, rather than unconscionable or arbitrary. Chaney at ¶ 9. " 'A decision is unreasonable if there is no sound reasoning process that would support that decision. It is not enough that the reviewing court, were it deciding the issue de novo, would not have found that reasoning process to be persuasive, perhaps in view of countervailing reasoning processes that would support a contrary result.' " Musgrove at ¶ 8, quoting AAAA Enterprises, Inc. v. River Place Community Redevelopment, 50 Ohio St.3d 157, 161, 553 N.E.2d 597 (1990).

{¶ 7} In determining the best interest of a child, the court must consider all relevant factors, including, but not limited to: the wishes of the child's parents regarding the child's care; if the court has interviewed the child in chambers, the wishes and concerns of the child as expressed to the court; 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; the child's adjustment to the child's home, school, and community; the mental and physical health of all persons involved in the situation; and the parent more likely to honor and facilitate court-approved parenting time or visitation and companionship rights. R.C. 3109.04(F)(1).

{¶ 8} The evidence presented at the hearing was as follows:

{¶ 9} Mother dated Michael C. for many months in 2015 and 2016, and she lived with Michael in a duplex; Michael's mother, Tammie, lived in the other side of the duplex. According to Tammie's testimony, she (Tammie) was the primary caregiver for the Wiram children from approximately July 2015 through March of 2016. The arrangement started as one for child care while Mother was at work, but Tammie was never paid as they had agreed, and she ended up having the children on her side of the duplex almost all the time. Tammie also cared for Michael's daughter from another relationship. Tammie testified that the Wiram children were at her home for meals, sleep, homework, laundry, and watching television, even if Mother was not at work, except when they were visiting their father. She also testified that she (Tammie) and Michael provided for the children financially.

{¶ 10} Tammie stated that Mother was "not much" involved with the children during this period, and that Mother's visits "had dwindled quite a bit" as time passed. Tammie became very attached to and loved the Wiram children, but she was concerned about their relationship with Mother. Tammie testified that Mother maintained that her daughter was autistic, although the child showed no signs of such a condition, and that Mother showed clear favoritism for her daughter over her son. Mother also encouraged habits that Tammie thought were unhealthy, such as poor eating and regular use of laxatives. Mother also "coached" the children in unhealthy ways, seeming to want them to get upset and stressed, and she did not allow the children to talk about the time they spent with their father. Tammie believed that Mother was "mentally unstable," lied a lot, and was mentally abusive to the children. Because of her concerns about the children, Tammie reached out to Father in March 2016 to inform him of her concerns about Mother and of the children's living arrangements during the previous months.

{¶ 11} Father testified that the children were doing well in his home since he obtained custody in March 2016. He did not think that the children were stressed about the change. Both children were involved in school activities and were generally doing well in school, although his daughter had one "little rough patch." The children had no disciplinary problems in school.

{¶ 12} Father testified that, since the parties' second divorce, Mother had moved six or seven times, and he did not always have the children's address. (The children were usually exchanged for visits at a neutral location.) Father did not think that Mother kept him well-informed of the children's activities.

{¶ 13} Father said that he had some concerns about Mother's mental health after she attempted suicide by taking pills in January 2014. But Father testified that, when he talked with Children Services at that time, the agency workers told him that, because the children had been left in a safe place (with Father) at the time of the suicide attempt, he had to return the children to Mother, in accordance with the custody arrangement, if she wanted them back. Father stated that he did not have the financial resources to pursue custody at that time other than through Children Services, but that he sought custody of the children after he learned from Tammie that Mother was not caring for them herself.

{¶ 14} Father testified that he did not think that the children were in danger when they were in Mother's care, but he did express concern about Mother's excessive use of health care services and laxatives for the children. According to Father, Mother regularly took the children to Children's Hospital emergency room, when such care did not seem warranted. The hospital visits often seemed to be for stomach problems or "constipation," but when he would ask the children about these visits, they seemed unsure why they had been taken to the hospital. Mother wanted the children to take laxatives every day, but Father testified that the children had no problems with regular bowel movements when they were in his care, and he did not think the regular use of laxatives was a good idea. Therefore, he stopped giving the laxatives.

{¶ 15} Mother testified that she had "always been the primary caregiver" for the children, notwithstanding Tammie's statements to the contrary. Mother testified that she had been very involved in the care of her children and had provided for them financially; the only time the children stayed with Tammie was when Mother's work schedule required an early start, approximately 2-3 days per week.

{¶ 16} Mother testified that she started having problems with Tammie around Thanksgiving 2015. Mother described the problems as "a lot of confusion on my part and jealousy on hers"; Mother believed that Tammie was threatened by Mother's relationship with Michael. Mother testified that Tammie also accused Mother of favoritism toward her daughter over her son around this time. Mother testified that her children were experiencing "lots of anxiety" since their move to Father's house and were "afraid to leave [her]" when they were together. She also testified that she had moved four times since the parties' most recent divorce, but that the children had not been required to change schools any of those times.

{¶ 17} With respect to the medical conditions and treatment of the children, Mother testified that the children always had a diagnosis and prescriptions following a hospital visit. When asked why she took the children to the hospital for constipation, Mother stated that the children had been experiencing "extreme pain"; she could not explain why the hospital charts did not reflect that the children expressed experiencing pain or other symptoms of constipation.

{¶ 18} When Mother was asked about her suicide attempt in January 2014, she described it as an "isolated incident" in which she took 5-10 over-the-counter Tylenol and, after a short time in the emergency room, she admitted herself to the behavioral health unit for 48 hours. This occurred during a weekend when the children were with Father, and she picked the children up from school again on Monday. When presented with hospital records stating that she had reported taking "2 norco, 4 tylenol cold and flu (325 acetaminophen, 5 mg phenylephrine, 25 mg diphenhydramine HCI)" with a shot of tequila, Mother repeatedly stated that she did not know why she would have said that to hospital personnel. She stated that she did not even know what Norco is and never had a prescription for it. She also denied taking an opioid painkiller on the day she went to the hospital, and could not explain why she had tested positive for an opiate.

{¶ 19} The guardian ad litem did not testify at the hearing, but filed a report with the court. The guardian ad litem found that both parents had the ability to properly care for the children and that the children could thrive in either environment. He stated that the children were experiencing some anxiety and stress since the change in custody to their father, in part because "they know how badly their mother wants them back." The guardian ad litem expressed concern about Mother's attempt at suicide, and found this concern to be more worrisome than Tammie's allegations about being the primary caregiver for the children. Nonetheless, the guardian ad litem recommended that the parties "return to the previous schedule," i.e., that the children return to Mother's custody, because the children considered that to be their "normal" routine. The guardian ad litem's report did not mention the children's trips to the hospital or Father's concerns about excessive medical intervention.

{¶ 20} The trial court conducted in camera interviews with both of the children, but found that they did not possess sufficient maturity to effectively articulate their wishes and concerns regarding the parenting arrangement.

{¶ 21} Following the hearing, the trial court found that a modification of parental rights was appropriate. The trial court found that a change of circumstances had occurred which had or was likely to result in an adverse effect on the children. Specifically, the court found several factors leading to the conclusion that a change of circumstances had occurred: 1) Mother's significant mental health issues, resulting in hospitalization for suicidal ideations; 2) Mother's numerous moves (at least six since the parties' most recent divorce); 3) Mother's allowing the children to reside primarily with Tammie for an extended period; 4) Mother's failure to assist Tammie with the costs of feeding or caring for the children, notwithstanding that Mother received food stamps during that period; and 5) Mother subjected the children to "unnecessary stressful situations" while they were in her care. (The trial court did not specifically identify these "unnecessary stressful situations.")

{¶ 22} Regarding the best interest of the children, the trial court found that Father provided them with a safe and stable home, and that the children had a very close and loving relationship with their father, his partner, and the other children in their household. The court also found that the children had a close and loving relationship with Mother, but that Mother did not "always prioritize her children's needs" when she was the primary caregiver. The court concluded that Father was better suited to address the day-to-day needs of the children.

{¶ 23} The court found that Mother served as the children's primary caregiver from the time of the divorce (January 2013) until July 2015, but that she "did a less than adequate job serving in this capacity." Further, the court credited Tammie's testimony that she (Tammie) served as the primary caregiver from July 2015 until March 2016, with little help from Mother, and concluded that Father had done "a very good job" as the primary caregiver since March 2016. The court found that the children had "the greater opportunity to continue to develop positive relationships with friends, relatives and others" by continuing to reside with Father, and that he was more likely to tend to their educational needs. The court did not believe that either of the parties or either child had "unresolved mental or physical health issues" that would weigh heavily in its decision.

{¶ 24} With respect to credibility, the court found that, for the most part, Father's testimony was credible and Mother's testimony was not credible. The court acknowledged the guardian ad litem's recommendation that Mother remain the residential and custodial parent, but observed that the guardian ad litem did not appear to have all of the relevant facts and had not heard the hearing testimony.

{¶ 25} The court concluded that, based on the totality of the circumstances, there had been a change of circumstances, it was in the best interest of the children to name Father the residential and custodial parent, and that the harm likely to be caused by a change in custody was outweighed by its advantages.

{¶ 26} Based on all of these factors, the trial court designated Father as the residential and custodial parent of the two children, and awarded Mother parenting time pursuant to the standard order.

{¶ 27} Mother contends that the trial court abused its discretion in finding that the change of circumstances was "one of substance" and in finding that the likely harm from a change of custody was outweighed by its advantages. However, the trial court credited Tammie's testimony that she had cared for the children for several months with little help from Mother. This factor, standing alone, could support a finding of a change of circumstances. Other factors, such as Mother's attempted suicide and her overuse of medical care and medication for the children, provide further support for the trial court's conclusion that Mother's household had become a less healthy and appropriate environment for the children. The trial court's finding that Mother had not exercised her responsibility for the children over a period of several months also supported its conclusion that the benefits of the change outweighed any harm it might cause.

{¶ 28} A domestic relations court has discretion in weighing the statutory factors, but can rarely impose a resolution that is acceptable to all the parties. An appellate court's role is limited to determining if such discretion was abused, because the appellate court does not hear the parties, the children, or other witnesses, and is constrained to reviewing a cold record months after the trial court's decision has been made. Under the facts of this case, we cannot conclude that the trial court abused its discretion in reaching the conclusion it did.

{¶ 29} The assignments of error are overruled.

{¶ 30} The judgment of the trial court will be affirmed. HALL, P.J. and TUCKER, J., concur. Copies mailed to: Jon A. Doughty
Joseph M. Juergens
Jennifer J. Joseph
Deborah L. McNinch
Courtney L. Hanna
S. Kyle Dodderer
Hon. Thomas J. Capper