Hayes v. Hayes

7 Ohio App. Unrep. 40
CourtOhio Court of Appeals
DecidedOctober 24, 1990
DocketCase No. 1266
StatusPublished

This text of 7 Ohio App. Unrep. 40 (Hayes v. Hayes) is published on Counsel Stack Legal Research, covering Ohio Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Hayes v. Hayes, 7 Ohio App. Unrep. 40 (Ohio Ct. App. 1990).

Opinion

GRADY, J.

In this appeal we are asked to determine whether the trial court erred in granting temporary and permanent change of custody of two twelve year old children upon their election to live with their father, Appellee Arthur Hayes, Jr., rather than their mother, Appellant Sandra Lee Hayes, nka Guide, the custodial parent since the divorce of the partiea The court ordered a change of custody pursuant to R.C. 3109.04(A), finding the election to be proper and the modification to be in the best interests of the children. For reasons explained below, we shall affirm the judgment of the trial court.

The marriage of Arthur E. Hayes, Jr., and Sandra Lee Hayes, nka Guide terminated in divorce on September 14, 1982. Two of the parties' five minor children were placed in the custody of Arthur. The three remaining children were placed in the custody of Sandra. Joseph and Jennifer, the children who are the subject of this appeal, were placed in the custody of Sandra. Both children are now twelve years old.

Shortly after the Final Decree of Divorce was issued, Sandra married John Guide and moved to Glendale, Arizona. As part of the Final Decree of Divorce, Joseph and Jennifer, were to spend two weeks of each summer vacation with Arthur in Greenville, Ohio. During their visit in the summer of 1989, Joseph and Jennifer expressed a desire to remain with Arthur on a permanent basis.

On August 14, 1989, Arthur filed a motion for change of custody, supported by affidavits from the children. Arthur requested a temporary order of custody on August 15, 1989. Testimony [41]*41was then presented in which Joseph and Jennifer expressed their desire to live with Arthur. The hearing on the temporary order was continued for three days, during which time Sandra was allowed to retain custody of the two children. The court stated that if at the end of the three days the children wanted to stay with Arthur, the temporary order would be granted. At the August 18, 1989 hearing both children again stated their desire to remain with Arthur. The court issued the temporary order, granting Arthur temporary custody.

Sandra filed a motion to stay execution of the court's temporary order. The trial court overruled the motion, which became the subject of a prior appeal to this court. On September 3, 1989, we dismissed Sandra's appeal citing a lack of jurisdiction as the temporary order was not a final appealable order.

A hearing on Arthur's motion took place on November 14, 1989. Two experts testified regarding the best interests of the children. Michael B. Palmer, a psychologist, testified by deposition that it was not in the best interest of the children to have a choice as to which parent to live with. Phyllis Kuehnl, also a psychologist, testified that Sandra should have custody of the children. However, she noted that the children were sincere in their expressed desire to reside with Arthur. Further testimony was presented by the principal and assistant principal of the junior high school both children are attending in Greenville. They testified that the children's academic performance has not equalled their past performance while in Arizona.

At the conclusion of the evidence, the trial judge conducted a private interview in the courtroom with Joseph and Jennifer. All principal parties to the action were excluded from this interview, leaving only the trial court judge, court personnel, and the two children. Both children again stated their desire to remain in Ohio with Arthur.

Although the trial court expressed some reservations about the children’s choice, it found that they were sincere in their election and that custody should be changed in favor of Arthur. Sandra filed a timely notice of appeal setting out four assignments of error.

I

Sandra's first and fourth assignments of error raise similar issues. Accordingly, we will consider these assignments together. Sandra states:

I. THE TRIAL COURT ABUSED ITS DISCRETION BY ORDERING A CHANGE OF CUSTODY WHEN THE EVIDENCE SHOWED THAT THERE HAD BEEN NO CHANGE OF CIRCUMSTANCES WITH RESPECT TO THE CHILDREN OR THE CUSTODIAL PARENT.

IV. THE TRIAL COURT APPLIED AN INCORRECT TEST FOR APPROVAL OF THE ELECTION OF THE MINOR CHILDREN, AND ABUSED ITS DISCRETION IN ORDERING A CHANGE OF CUSTODY WHEN THE EVIDENCE INDICATED THAT SUCH A CHANGE WOULD NOT BE IN THE BEST INTERESTS OF THE MINOR CHILDREN.

Decisions concerning child custody and visitation issues are peculiarly within the broad discretion of the trial court. Trickey v. Trickey (1952), 158 Ohio St. 9, 14. Abuse of discretion connotes more than just an error of law. Rather, abuse of discretion is present when the court's attitude is manifestly unreasonable, arbitrary, or unconscionable Worthington v. Worthington (1986), 21 Ohio St. 3d, 73; Blakemore v. Blakemore (1983), 5 Ohio St. 3d 217. Although the trial court's discretion is not unlimited, see, e.g. Cherry v. Cherry (1981), 66 Ohio St. 2d 348, Blakemore, supra, Leighner v. Leighner (1986), 33 Ohio App. 3d 214, we are nevertheless required to give its decision great deference. As stated in Holcomb v. Holcomb (1989), 44 Ohio St. 3d 128, 131;

"A reviewing court should not substitute its judgment for that of the trier of fact unless, considering the totality of the circumstance^ it finds that the court abused its discretion." Therefore, absent such a showing of abuse of discretion, this court will not disturb the underlying judgment. Blakemore, supra.

After reviewing the record before us, we conclude that the trial court's decision to grant Arthur's motion for change of permanent custody was not unreasonable, arbitrary, or unconscionable.

The record establishes that the trial court employed the correct test in reaching its decision. Contrary to Appellant's contention that R.C. 3109.04(B) (1) should be the determining test for election, the proper test is contained in R.C. 3109.04(A), which states in pertinent part:

"The court may allow any child who is twelve years of age or older to choose, in an original proceeding on custody and in a proceeding for modification of a prior custody order of [42]*42the court, the parent with whom the child is to live, unless the court finds that the parent so selected is unfit to take charge or unless the court finds, with respect to a child who is twelve years of age or older, that it would not be in the best interest of the child." (Emphasis added).

The court was not presented with any evidence that either party was unfit. Absent such evidence, the trial court was only obligated to determine the best interest of the child, making the election. In assessing whether the election was in the child's best interest, the trial court had to consider the factors contained in R.C. 3109.04(C). This section provides:

"(C) In determining the best interest of a child pursuant to this section, whether on an original award of custody or modification of custody, the court shall consider all relevant factors, including;

"(1) The wishes of the child's parents regarding his custody;

"(2) The wishes of the child regarding his custody if he is eleven years of age or older;

"(3) The child's interaction and interrelationship with his parents, siblings, and any other person who may significantly affect the child's best interest;

"(4) The child's adjustment to his home, school, and community;

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Bluebook (online)
7 Ohio App. Unrep. 40, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hayes-v-hayes-ohioctapp-1990.