Crow v. Baughman

2011 Ohio 1170

• Court: Ohio Court of Appeals
• Decided: March 14, 2011
• Docket: 5-10-28
• Status: Published

Opinion

[Cite as Crow v. Baughman, 2011-Ohio-1170.]

IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT HANCOCK COUNTY

BRANDON CROW,

PLAINTIFF-APPELLEE, CASE NO. 5-10-28

v.

BRANDI BAUGHMAN, OPINION

DEFENDANT-APPELLANT.

Appeal from Hancock County Common Pleas Court, Juvenile Division Trial Court No. 20940224

Judgment Affirmed

Date of Decision: March 14, 2011

APPEARANCES:

Howard A. Elliott for Appellant

Donald J. Rasmussen for Appellee Case No. 5-10-28

SHAW, J.

{¶1} Defendant-Appellant, Brandi Baughman (“Brandi”), appeals the judgment of

the Hancock County Court of Common Pleas, Juvenile Division, overruling her

objections to the magistrate’s decision designating Plaintiff-Appellee, Brandon Crow

(“Brandon”), the residential parent and legal custodian of their child, establishing

visitation for Brandi, and ordering her to pay child support. The trial court subsequently

adopted and incorporated the magistrate’s decision in its August 30, 2010 Judgment

Entry.

{¶2} The parties’ child, Liberty, was born in May of 2009. On June 23, 2009,

Brandon filed a complaint requesting to be designated residential parent or, in the

alternative, to establish a shared parenting plan and to resolve other support matters. On

July 7, 2009, Brandon filed a motion requesting the trial court to establish temporary

visitation and companionship rights. In his motion, Brandon alleged that Brandi refused

to allow him to exercise their agreed upon visitation and companionship, which they had

established prior to the filing of his complaint. On September 1, 2009, the magistrate

granted Brandon’s motion for temporary visitation and established a temporary visitation

schedule. The schedule gave Brandon visitation with Liberty on Tuesdays and Thursdays

during the day and on alternating weekends. The magistrate also ordered a Court

Appointed Special Advocate to be appointed to serve as the Guardian Ad Litem (“GAL”)

for Liberty throughout the pendency of the custody case.

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{¶3} On October 30, 2009, Brandon filed a motion for contempt of court alleging

that Brandi denied him visitation with Liberty on a weekend allocated to him by the

temporary orders. On November 19, 2009, the trial court appointed CASA Stephanie

Stephan as the GAL in the case. On November 24, 2009, the parties appeared before the

magistrate along with the GAL. The magistrate ordered that Brandi furnish Liberty’s

social security number to Brandon so that he could obtain medical insurance for her

through his employment. The magistrate also established a temporary holiday schedule

for Thanksgiving and Christmas.

{¶4} On February 17, 2010, the parties and the GAL appeared before the

magistrate for a pre-trial hearing. The magistrate found that the GAL had concerns

regarding the “rearing of this child.” (Order, Feb. 17, 2010). Based on the GAL’s

temporary recommendation, the magistrate ordered Brandon’s visitation to be expanded

to include overnight visits every Thursday, and that Brandon shall keep Liberty until 7:00

p.m. on Sundays during his scheduled weekends. The magistrate also ordered Brandon to

have extended visitation with Liberty over Easter.

{¶5} On March 30, 2010, the GAL filed her report and final recommendations

with the court. In the report, the GAL recommended that Brandon be named the

residential parent and legal custodian of Liberty and that Brandi be given visitation. On

April 8, 2010, the parties appeared before the magistrate for the final hearing. Brandon

appeared with counsel and Brandi appeared pro se. The GAL Stephanie Stephan was

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also present. At the hearing, Brandon withdrew both his motion for shared parenting and

his motion to find Brandi guilty of contempt. Both parties and the GAL testified, as well

as family members and friends of each party. On April 12, 2010, the magistrate issued

her decision finding that it is in their child’s best interest to designate Brandon the

residential parent and legal custodian. The magistrate noted that she considered each of

the “best interest” factors listed in R.C. 3109.04(F)(1). The magistrate specifically stated

the following in her decision:

As stated above, each parent appears to be equally qualified to care for Liberty with one exception. Specifically, the Court must consider R.C. 3109.04(F)(1)(f) which states: In determining the best interests of a child, the court shall consider the parent more likely to honor and facilitate court-approved parenting time rights or visitation and companionship rights. Several witnesses testified as to [Brandi’s] unwillingness to openly cooperate with visitation. In reaching this decision, the Magistrate relied on the testimony and report of the GAL and her independent investigation revealing that visitation was hampered greatly by the actions of [Brandi]. Moreover, the testimony and investigation revealed that [Brandon] did not have such issues and would be willing to permit and facilitate [Brandi’s] visitation with the child. Based upon the foregoing, the Magistrate concludes that if this child is to have a normal, healthy relationship with both of her parents, then placement with her father is in her best interests.

(Decision, Apr. 12, 2010).

{¶6} In accordance with the magistrate’s decision, Brandon was named residential

parent and Brandi was given visitation. The order also provided for a more liberal

visitation schedule as the parties agree. However, in the event that the parties could not

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reach an understanding on visitation, Brandi would be given visitation in accordance with

the local rules. Brandi was also ordered to pay child support.

{¶7} Brandi retained counsel and subsequently filed objections to the magistrate’s

decision, which were overruled by the trial court. On August 30, 2010, the trial court

adopted and incorporated the magistrate’s April 12, 2010 Decision and journalized the

decision as an order in its Judgment Entry. It is from this Judgment Entry that Brandi

now appeals, asserting the following assignment of error.

ASSIGNMENT OF ERROR

IN ALLOCATING PARENTAL RIGHTS AND RESPONSIBILITIES AND NAMING APPELLEE-FATHER OF THE MINOR CHILD AS THE RESIDENTIAL PARENT, THE TRIAL COURT ABUSED IT’S [SIC] DISCRETION IN THAT IT FAILED TO CONSIDER ALL RELEVANT FACTORS AS MANDATED BY ORC § 3109.04(F), AND ACCORDINGLY, THE DECISION OF THE TRIAL COURT MUST BE REVERSED.

{¶8} In her sole assignment of error, Brandi argues that the trial court erred in

adopting the magistrate’s decision because the magistrate failed to consider all the

statutory factors when she concluded that naming Brandon the residential parent would

be in their child’s best interest. Specifically, Brandi maintains that the magistrate only

focused on one of these statutory factors and based her decision exclusively on that

factor.

{¶9} Custody determinations are some of the most difficult and agonizing

decisions a trial court must make, therefore, a trial court must have wide latitude in its

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consideration of the evidence. Davis v. Flickinger, 77 Ohio St.3d 415, 418, 1997-Ohio-

260, 674 N.E.2d 1159. When reviewing a ruling pertaining to the allocation of parental

rights, the trial court is to be afforded great deference. Id. Thus, we will not reverse a

child custody decision that is supported by a substantial amount of competent, credible

evidence absent an abuse of discretion. Bechtol v. Bechtol (1990), 49 Ohio St.3d 21,

syllabus, 550 N.E.2d 178. The reason for this standard of review is that the trial judge

has the best opportunity to view the demeanor, attitude, and credibility of each witness,

something that does not translate well on the written page. Davis, 77 Ohio St.3d at 418.

{¶10} Initially, we note that there is no presumption that either the mother or the

father should become the residential parent; the parents stand on equal footing regarding

the final allocation of parental rights and responsibilities. R.C. 3109.03; Bechtol, supra,

at 24, 550 N.E.2d 178. In allocating custody, the trial court must determine what is in the

“best interest” of the child. See R.C. 3109.04(B). To make this determination, the trial

court must consider all relevant factors, including, but not limited to the statutory factors

listed in R.C. 3109.04(F)(1), which provide as follows:

(a) The wishes of the child’s parents regarding the child’s care;

(b) If the court has interviewed the child in chambers .*.*.* regarding the 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;

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(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 criminal offense involving any act that resulted in a child being an abused child or a neglected child * * *;

(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.

R.C. 3109.04(F)(1).

{¶11} We acknowledge that Brandi’s primary contention with the magistrate’s

decision is that the magistrate specifically focused on only one factor in deciding to name

Brandon the residential parent and legal custodian of their child. However, we note that

even though R.C. 3109.04(F) provides a list of factors for the trial court to consider in

determining the best interest of the child, there is no requirement that the trial court set

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out an analysis of each factor in its judgment entry, so long as the judgment entry is

supported by a substantial amount of competent, credible evidence that the best interest

of the child was considered. Bunten v. Bunten (1998), 126 Ohio App.3d 443, 447, citing

Masitto v. Masitto (1986), 22 Ohio St.3d 63.

{¶12} Contrary to Brandi’s contention on appeal, the magistrate specifically stated

that she “reviewed the ‘best interest’ factors specified in R.C. 3109.04 for a determination

of residential parent.” (Decision, Apr. 12, 2010, p.3). The factor specifically discussed

in the magistrate’s decision pertained to the consideration of the parent more likely to

honor and facilitate court-approved parenting time or visitation rights. R.C.

3109.04(F)(1)(f). In focusing on this particular factor, the magistrate acknowledged that

“each party is a competent, attentive and capable parent to Liberty. Both parents have

suitable homes, are capable of providing food and genuinely care and love their child.”

(Decision, Apr. 12, 2010, p.2) However, based on the evidence adduced from the

testimony at the final hearing, it became evident to the magistrate that Brandon would be

the parent more likely to honor and facilitate court-approved parenting time and

visitation.

{¶13} Our review of the record reveals several instances which support the

magistrate’s conclusion on this point. Shortly after Liberty was born, Brandon initiated

these proceedings to be named residential parent, or in the alternative, to establish a

shared parenting plan. Within the matter of weeks, Brandon filed a motion to establish

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temporary visitation alleging that Brandi was preventing him from having visitation with

their child as the parties previously agreed. Testimony at the hearing revealed that

Brandi was cooperative with facilitating Brandon’s visitation so long as she was in

control when it took place. However, after court proceedings were initiated, Brandi was

less inclined to cooperate with Brandon.

{¶14} In addition, after temporary visitation orders were in place, Brandi violated

the temporary orders when she took Liberty out of town on Brandon’s scheduled

weekend and denied him visitation. Several months later, Brandi eventually agreed to

permit Brandon to make-up that weekend. However, there was testimony suggesting that

Brandi only did so because she was under scrutiny as a result of these proceedings. To

the contrary, Brandon had never denied Brandi visitation and testified that he would

facilitate Brandi’s visitation in the future.

{¶15} It is evident from the testimony that both Brandon and Brandi are good,

loving parents, who are both capable of adequately caring for Liberty. However, every

witness at the final hearing testified to the substantial amount of tension that remained

between the parties, which strained their ability to communicate effectively with one

another.

{¶16} In particular, the GAL testified that Brandi was very resistant to

communicating with Brandon and letting him be involved in making decisions about

Liberty’s medical care. Specifically, the testimony revealed that despite being court-

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ordered, Brandi refused to give Brandon access to Liberty’s medical records, which were

password-protected. The GAL testified that she spoke with Brandi and explained that she

needed to provide Brandon access to those records. After that conversation, Brandi

removed the password restraint. However, Brandi arranged for the doctor’s office to call

her immediately anytime Brandon schedules an appointment for their child.

{¶17} The GAL stated that she explained to both parties on numerous occasions

that they needed to put their differences aside and communicate with one another because

it is in the best interest of their child. According to the testimony at the hearing, Brandon

made several attempts to establish communication with Brandi. The GAL noted that in

several meetings with the parties, Brandi refused to make eye-contact with Brandon, and

was resistant to any type of communication with Brandon. The record demonstrates that

eventually Brandi would only communicate with Brandon by writing him notes, which

were delivered at the custody exchanges. It is based on these observations that the GAL

recommended that Brandon be named the residential parent.

{¶18} On appeal, Brandi argues that the magistrate failed to consider other

important best interest factors such as the fact that Liberty has been living in Brandi’s

household with her two other children from a prior relationship, and that Brandi has been

the primary caretaker of Liberty for since her birth in May of 2009. As noted above, the

magistrate’s decision indicated that she considered these factors and gave weight to them.

The magistrate noted that both parties were equally qualified to care for Liberty with the

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exception of one factor. It was Brandi’s blatant unwillingness to cooperate and

communicate with Brandon that tipped the scales in Brandon’s favor. Brandi’s resistance

to facilitating Brandon’s visitation with Liberty was not only attested to by many

witnesses, but the GAL also documented several instances throughout the proceedings

where Brandi repeatedly demonstrated her obstinance in allowing Brandon to have equal

access to their child. The magistrate explicitly stated she “relied on the testimony and

report of the GAL and her independent investigation revealing that [Brandon’s] visitation

was hampered greatly” by Brandi’s actions. (Decision Apr. 12, 2010, p.3).

{¶19} Accordingly, after reviewing the record before us, we find that the

magistrate’s determination that it is in Liberty’s best interest to designate Brandon as the

residential parent and legal custodian was supported by a substantial amount of

competent, credible evidence. Therefore, we cannot find that the trial court abused its

discretion in affirming the magistrate’s decision.

{¶20} Brandi’s sole assignment of error is overruled.

{¶21} Based on the foregoing, the judgment of the Hancock County Juvenile

Court is affirmed.

ROGERS, P.J. and PRESTON, J., concur.

/jlr

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