[Cite as Hill v. French, 2021-Ohio-24.]
COURT OF APPEALS OF OHIO
SIXTH APPELLATE DISTRICT COUNTY OF LUCAS
JASON HILL, :
Plaintiff-Appellee/ : Cross-Appellant, No. L-20-1077 : v. : JANICE FRENCH, : Defendant-Appellant/ Cross-Appellee. :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED IN PART, REVERSED IN PART AND REMANDED RELEASED AND JOURNALIZED: January 8, 2021
Civil Appeal from the Lucas County Court of Common Pleas Domestic Relations Division Case No. DR-12-0193
Appearances:
Jason Hill, pro se, appellee/cross-appellant.
John V. Heutsche Co., and John V. Heutsche, for appellant/ cross-appellee.
PATRICIA ANN BLACKMON, J.:
Defendant-appellant/cross-appellee Janice French (“French”)
appeals from the judgment of the trial court that granted plaintiff-appellee/cross- appellant Jason Hill’s (“Hill”) motion to terminate the parties’ shared parenting
plan, designated him the residential parent of two of the parties’ three children, and
awarded him attorney fees. Hill submits a cross-assignment of error, to be
considered in the event that the trial court’s judgment is reversed, in which he
challenges the trial court’s denial of his motion for recovery of guardian ad litem
(“GAL”) and expert fees.1
Having reviewed the record and the controlling law, we affirm the
order designating Hill the residential parent of the two children. We also affirm the
awarding of attorney fees to Hill, but we remand for further proceedings as to the
amount. Additionally, we find the issue raised in Hill’s cross-assignment of error to
be moot.
The parties were married and had three children: K.H. (d.o.b.
February 20, 2008), R.H. (d.o.b. November 23, 2009), and F.H. (d.o.b. May 20,
2011). Their 2014 divorce decree incorporated a shared parenting plan under which
Hill had companionship with the children on alternating weekends and
Wednesdays. The agreement also required the parties to “make certain” that
parenting time took place and to refrain from disparaging the other parent.
Following the divorce, French and the children moved into the home
of the maternal grandparents. However, the parties remained at odds. By late 2017,
K.H. and F.H. were refusing to visit with Hill. French moved to be designated the
1 See R.C. 2505.22. residential parent and legal custodian of the children. Hill also moved to be
designated the residential parent and legal custodian and for an order for French to
show cause why she should not be held in contempt for interfering with his
parenting time.
The court appointed Margaret Beck to serve as guardian ad litem
(“GAL Beck”) and also appointed psychologist Mark Babula (“Dr. Babula”) to
evaluate the parties. In July 2018, French filed a motion for an in camera interview
of the children. The court granted the motion, and a magistrate held the in camera
interview in August 2018. Several months later, the Lucas County Department of
Children and Family Services (“LCDCFS”) received a complaint that Hill abused the
children. By December 2018, the LCDCFS’s investigation was completed, and the
abuse claim was not substantiated. Also, in late 2018, French filed a petition for a
civil protection order against Hill on behalf of the children. She withdrew this
petition, but then filed a motion seeking to require Hill to have supervised visitation.
This motion was denied.
In July 2019, following the recusal of the trial judge and magistrate,
the matter was assigned to a visiting judge. In October 2019, French filed a motion
for a second in camera interview. The court determined that it would review the
prior interview in order to determine whether a second in camera interview was
necessary and held the motion in abeyance. The matter proceeded to trial in
December 2019. Testifying as an independent expert, Dr. Babula stated that he
interviewed the parents and the children and performed psychological assessments.
He stated that the children have a positive relationship with French and her parents,
but the relationship tends to support alignment with French and against Hill, and it
is inflexible regarding what is right in a given circumstance. French does not enforce
Hill’s right to parenting time and does not seek solutions to visitation issues. Dr.
Babula stated that K.H. pressures the other children not to go to visitation with Hill,
and R.H. receives negative treatment from the family after attending visitation. Dr.
Babula also stated that Hill is defensive and reacts in ways that aggravate the
situation.
Dr. Babula recommended that Hill complete counselling to address
anger and irritability and to improve his communication skills to better address the
children’s emotional concerns. He recommended that and that French participate
in therapy with parenting education. Dr. Babula stated that both parties have
responsibilities regarding visitation and that French needs to ensure that the
children understand the need to follow the court’s established rules of visitation. He
also recommended that Hill have increased weekday visitation with the children and
alternating weekends. The goal is to build Hill’s interactions with his children for
more successful parenting time. Then, given Hill’s increasing visitation, “the family
[would] have an approximately three-month adjustment period to adopt * * * [the]
recommendations.” After that, if these issues persist and if Hill is still not having at
least 80 per cent of his parenting time, then Dr. Babula recommended that the court designate Hill’s home as the children’s primary residence. This would break the
rigidity and imbalance that has occurred. Dr. Babula acknowledged that this would
be stressful, but he stated that generally children adapt to the new living
arrangement. He had “no specific concerns for [the girls’ to] self-harm” if a change
of custody occurred.
GAL Beck testified that French and the children are well-adjusted in
French’s home, but the maternal parents are negative toward Hill. She testified that
Hill is appropriate with the children, but he has difficulty engaging with K.H. GAL
Beck noted that R.H. and F.H. appeared to be integrated into Hill’s home, but K.H.
does not want them to go to visitation. R.H. receives negative treatment after
visiting him.
GAL Beck further testified that French and the maternal
grandparents essentially exclude Hill from the children’s lives while maintaining
that they cannot force the children to visit Hill. French does not facilitate or honor
Hill’s parenting time and also schedules the children in activities that interfere with
Hill’s visitation. GAL Beck noted that French contacted one of the children’s
teachers seeking to prevent Hill from volunteering at the children’s school. She
opined that the behavior of French and the maternal grandparents toward Hill is
concerning and promotes alienating the children from him.
GAL Beck initially recommended that the shared parenting plan
continue but be modified to provide Hill with significantly more time with the
children, including a continuous four-week period (excluding weekends). In a supplemental report, GAL Beck recommended that the shared parenting plan be
terminated, and French be the residential parent of the children. She recommended
that Hill and French share equal parenting time over R.H. and F.H., whereas K.H.
would visit Hill twice a week and alternating weekends with no overnight visitation.
However, GAL Beck advised the court to permit Hill to petition the court for an
immediate change of custody if French disrupted Hill’s parenting time in the future.
Counsellor Jean Cook (“Cook”) testified that she counselled the
children every other week for eighteen months but was no longer seeing K.H. K.H.
has adjustment disorder with anger issues. She is currently on a “break” from
counselling. F.H. has anxiety issues and is treated for dealing with fear of
abandonment while visiting Hill. R.H. has anger, depression, and anxiety. Cook
testified that the children have communicated their concerns about being with Hill.
They are working on feeling safe with Hill, and voicing their concerns while with
him. Cook stated that she once saw bruising on R.H.’s neck and had a possible risk
of self-harm, and she also stated that increasing Hill’s parenting time would affect
the children’s emotional and mental health.
Britney Cannon (“Cannon”), a social worker with LCDCFS testified
that in November 2018, LCDCFS received a report that Hill abused R.H. and F.H.
The abuse claim was not substantiated, however. Cannon testified that she spoke to
the children who denied Hill had harmed them and “did laugh when the referral was
reported to them.” K.H. told Cannon that she wished Hill had social skills, but to
Cannon, K.H. “almost appeared coached.” Cannon also stated that insofar as anyone claimed in March 2019 that there were pending abuse allegations against
Hill, this claim is not true.
Sylvania Township Police Detective Randall Mull (“Det. Mull”)
testified that following a request from French, he performed a safety check on Hill’s
home regarding allegations that Hill hit R.H. in the face with a shoe. Det. Mull saw
no visible injury or evidence of intentional violence.
Hill’s aunts and uncle testified to the children’s prior positive
interactions with Hill’s extended family. They stated that Hill is loving and
appropriate toward the children. Hill’s aunts testified that K.H. is initially
standoffish with Hill’s family but eventually enjoys herself, but overall, her joy is
gone. One aunt stated that as a result of false accusations leveled against him, Hill
has had to install cameras at his home. She opined that French has used the children
“as pawns” to hurt Hill and has influenced K.H. and F.H. against him.
Hill testified he visits with R.H. regularly but has not visited with F.H.
since early June 2019 and has not visited with K.H. since June or July 2017. He
stated that the basis of his motion to terminate is French’s ongoing failure to follow
the shared parenting order and stated that the children are living in a negative and
anti-father environment. He stated that he had been denied visitation well over one
hundred times. He stated that French videotapes him when he arrives to pick up
the children, and K.H. and F.H. refuse to go to visitation, stating that “the law says
we do not have to go.” He further testified that French does not promote visitation or implement any consequences. He stated that French and maternal grandmother
penalize R.H. for attending visitation with him.
Addressing the claims that he left the children unattended, he stated
that he once ran to get the car for them while it was raining. On another occasion,
he left two of the children at the bottom of an escalator in order to get the third child
who did not get on the escalator with him and the other two children. He also went
into a fast food restaurant to get the group’s food while the children were within his
sight in the nearby car.
Hill testified that he participated in reunification counselling with the
children. He also participated in counselling to deal with anger management,
communication skills, and improvement of his relationship with his daughters and
to improve his parenting. He stated that if he were designated residential parent, he
would abide by all orders for French’s visitation, and he would abide by GAL Beck’s
recommendation that the children have one activity in order to avoid
overscheduling. He would also alleviate any additional stress through
videoconferencing with French.
French testified that she has safety concerns for the children after
they reported fears of abandonment. She stated that Hill has become aggressive in
attempting to enforce visitation, and he yells at the children. She maintained that
the children are afraid and had scratches and marks after returning from visitation.
On the times she went to visitation, K.H. was very angry when she returned, and
R.H. “act[s] out” after visitation. French admitted that she records Hill during the times that he picks up the children. French also indicated in an emergency motion
filed April 2019 that there was a pending LCDCFS investigation pending against
Hill, but no investigation was pending at this time. She acknowledged that the
children attended visitation during the pendency of the interim order and that she
transported them, but currently, only R.H. is currently visiting with Hill. French
maintained that Hill does not understand the children’s fears of abandonment while
in his care, and she stated that he had left the unattended.
Maternal grandmother testified that she and French get the children
ready to visit with Hill but K.H. and F.H. refuse to go. R.H. goes on the visitation
but, she claimed, has ensuing behavior issues for two days afterward. Maternal
grandmother admitted that she once had R.H. take a cold shower for this behavior.
Maternal grandmother also testified that that she and French requested a police
“safety check” of Hill’s home for reportedly hitting R.H. with a shoe. She also
claimed that “fleas have come into the house” after visitation. Maternal
grandmother maintained that Hill seems to be on the “periphery” when he is with
the children, and that he has become aggressive in attempting to enforce visitation.
She admitted that children should have a relationship with their father, and she
claimed that she encouraged the children to do so. She acknowledged sending
correspondence to the Chief Legal Counsel of the Ohio Supreme Court seeking an
“intervention” against GAL Beck.
The trial court determined that French has engaged in a pattern of
behavior that further alienates the children from Hill and failed to honor the court- ordered visitation schedule. It found her in contempt of court for denial of parenting
time, imposed a 30-day jail sentence with purge conditions, and ordered her to pay
Hill’s attorney fees.
The court also concluded that it is in the best interest of the children
to terminate the 2014 shared parenting order, and it granted both parties’ motions
to terminate. The court next determined that it is in the best interest of the children
to designate Hill the residential parent and legal custodian of R.H. and F.H., and
designed French the residential parent and legal custodian of K.H. The court stated
that it reviewed the 2018 in camera interview of the children, but found, as a special
circumstance, that the “minor children have been negatively influenced by [French]
and [maternal grandmother] and * * * [French] engaged in ongoing behavior to
influence the children negatively affecting the children’s relationship with [Hill].”
The court also found that French “has exerted such an influence over the children
that [they] appear coached in their responses.” The court found that French and
maternal grandmother’s “behavior alienate[s] the children from [Hill] and has
influenced their wishes * * *.” The court concluded that a second in camera
interview would not be helpful or in the children’s best interests. The court observed
that K.H. has refused to visit with Hill, F.H. is now also refusing to visit Hill, and
R.H. is “experiencing difficulties at [French’s] home for visiting with [Hill].” The
court expressed concern that if these “circumstances and the children’s environment
do not change, * * * the children will continue to be alienated from [Hill].”
Specifically, the court was concerned that F.H. would also engage in behavior exhibited by K.H. resulting in the loss of a relationship with Hill, and that R.H. will
“experience pressure to discontinue what is now a positive relationship with her
father.”
Additionally, the court also ordered the parties to participate in
counselling to address their ongoing issues and ordered that any extracurricular
activities be agreed upon by both parents. Finally, the court ordered the parties not
to disparage one another and to ensure that the children maintain a relationship
with both parents and participate in court-ordered visitation.
FRENCH’S APPEAL
French assigns the following errors for our review:
I. The trial court erred as a matter of law and to [French’s] prejudice by modifying the prior shared parenting plan and allocating the children to different parents against the recommendation of the [GAL] and the court appointed psychologist.
II. The trial court erred as a matter of law and to [French’s] prejudice by failing to conduct the requested in camera interview.
III. The trial court erred as a matter of law and to [French’s] prejudice by an excessive award of attorney fees and expenses.
Residential Parent / Legal Custodian Determination
In her first assigned error, French argues that the trial court erred in
terminating the prior shared parenting plan and determining that Hill should be
residential parent and legal guardian of R.H. and F.H. She argues that the court did
not determine that there had been a change in circumstances, the award is against the recommendation of the GAL and the court-appointed psychologist, and it is
erroneous to order a split award.
Custody determinations “are some of the most difficult and
agonizing decisions a trial judge must make.” Davis v. Flickinger, 77 Ohio St.3d 415,
418, 674 N.E.2d 1159 (1997). Therefore, “trial courts must have wide latitude” in
their consideration of the evidence. Id. Decisions concerning child custody matters
rest within the sound discretion of the trial court. Miller v. Miller, 37 Ohio St.3d 71,
74 (1988). A trial court’s allocation of parental rights and responsibilities rests
within the sound discretion of the trial court. In re A.P.D., 8th Dist. Cuyahoga No.
100504, 2014-Ohio-1632, ¶ 10. Specifically, the trial court’s determination of what
is in the best interest of the child will not be disturbed absent an abuse of discretion.
Id., citing Drees v. Drees, 3d Dist. Mercer No. 10-13-04, 2013-Ohio-5197, ¶ 20. A
reviewing court will not reverse a trial court’s decision regarding child custody
absent an abuse of discretion. Masters v. Masters, 69 Ohio St.3d 83, 85, 630 N.E.2d
665 (1994). An “abuse of discretion” connotes more than an error of law or
judgment; it implies that the court’s attitude is unreasonable, arbitrary or
unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140
(1983).
In applying abuse of discretion review here, we are mindful that
“[w]hile a trial court’s discretion in a custody modification proceeding is broad, it is
not absolute, and must be guided by the language set forth in R.C. 3109.04.” Miller
at 74. Where an award of custody is supported by a substantial amount of credible and competent evidence, such an award will not be reversed as being against the
weight of the evidence by a reviewing court. Bechtol v. Bechtol, 49 Ohio St.3d 21,
550 N.E.2d 178 (1990), syllabus.
Turning to French’s argument that the trial court erred in failing to
determine that there had been a change in circumstances before it terminated the
shared parenting order, we note that the trial court did specifically find that French
and maternal grandparents manifested negative attitudes about Hill and did not
facilitate a positive relationship with him. The court also found that French engaged
in behavior that rewarded the children for not visiting with Hill. In essence, the trial
court concluded that the children had been alienated from Hill, and that a change of
circumstances had occurred.
In any event, the Ohio Supreme Court recently held in Bruns v.
Green, Slip Opinion Nos. 2019-1028 and 2019-1178, 2020-Ohio-4787, that the
procedures for terminating a shared parenting plan are distinct from the procedures
for modifying a shared parenting plan, and do not require the trial court to also find
a change in circumstances before changing the designation of residential parent and
legal custodian. Id. at ¶ 21. The Bruns Court held that in order to terminate a shared
parenting plan, the court must follow the framework of R.C. 3109.04(E)(2)(c). This
statute provides the procedures for terminating a shared-parenting decree that
includes a shared-parenting plan and states:
The court may terminate a prior final shared parenting decree that includes a shared parenting plan * * * upon the request of one or both of the parents or whenever it determines that shared parenting is not in the best interest of the children.
Then, if the court terminates a shared-parenting decree, R.C.
3109.04(E)(2)(d) provides:
Upon the termination of a prior final shared parenting decree under division (E)(2)(c) of this section, the court shall proceed and issue a modified decree for the allocation of parental rights and responsibilities for the care of the children under the standards applicable under divisions (A), (B), and (C) of this section as if no decree for shared parenting had been granted and as if no request for shared parenting ever had been made.
R.C. 3109.04(F) sets forth the relevant factors that are to be
considered in determining the best interests of a child in relation to the modification
of shared parenting plans and provides:
(a) The wishes of the child’s parents regarding the child’s care;
(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) * * *;
(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.
The record demonstrates that the trial court expressly considered the
factors listed in R.C. 3109.04(F)(2). In addition, the trial court concluded that:
26. [Hill] has missed court ordered visitation with [K.H. and F.H.] and this Court finds that [French] and maternal grandparents influence the children’s refusal to visit with [Hill] and positively reinforce this behavior with their actions. [French] has not assisted for required [K.H. and F.H.] to visit with [Hill] and they have missed regularly scheduled weekday and weekend visitation with [Hill] as well as Holiday visitation. * * *
28. [GAL Beck] provided credible testimony that she has observed the children with [Hill in his home and he] was appropriate. * * * [He] bought a Nintendo Switch to get [K.H.] out of her bedroom and engaged with [him] and her sisters. * * * [t]his did work and led to [K.H.] playing with her sisters and then with neighbors and sisters in outside activities.
29. [GAL Beck] provided credible testimony that [K.H.] would not eat or drink at [Hill’s] house and brought her own food[.] [GAL Beck] testified that she has concerns should [K.H.] be forced to spend overnights at [Hill’s] at continue to engage in behavior that would harm her health.
30. [GAL Beck] provided credible testimony that she observed [R.H. and F.H.] to be integrated into [Hill’s] home and there are no issues concerning [them].
31. [GAL Beck] provided credible testimony and stated in her report that [French’s] and grandparents’ behavior toward [Hill] is concerning and that it promotes alienating the children from [him]. 32. [French] testified that [R.H.] currently goes for visitation with [Hill], but [K.H. and F.H.] do not. [French] further testified that the children did go to visits when she transported them * * * under an interim order, but that she did not continue to transport after the interim order was discontinued. * * * The Court finds that [French] did have the means and opportunity to facilitate visits between [Hill] and the children by dropping them off* * *, and that [French] has not done all she can to facilitate visits.
*** 44. The Court is concerned that if circumstances and the children’s environment do not change that the children will continue to be alienated from [Hill]. Specifically, that [FH,] will engage in behavior now being exhibited by [K.H.] an, resulting in [F.H.] having no relationship with [Hill] and that [R.H.] will experience pressure to discontinue what is now a positive relationship with [Hill].
45. * * * [French] has engaged in a pattern of behavior that further alienates the children from [Hill]. [French] has failed to honor the current court ordered visitation schedule and based upon her behavior, the Court finds that she is less likely to honor court ordered visitation in the minor in the future. * * *
Ohio Revised Code Section 3109.04 states that in determining the allocation of parental rights and responsibilities or in modifying a prior court order allocating parental rights and responsibilities that the court shall not modify a prior court order unless it finds that a change of circumstances has occurred and that the modification is in the best interests of the minor children. In determining “best interests” the court shall consider [the factors set forth in R.C. 3109.04(F)].
After review of the aforementioned findings and Ohio law, a change of circumstances has occurred in this case which warrants modification of the shared parenting plan and it is in the best interests of the minor children that the current shared parenting plan of the parties be terminated. Further, any potential harm to the minor children as a result of the termination is outweighed by the benefit of the termination and modification of the visitation schedule.
The trial court also observed that once the interim visitation order
ended, French stopped bringing the children to visitation, and she maintained that she had no power to enforce it. On this record, the trial court properly considered
and applied the correct legal standard. Having reviewed the record, we find
competent and credible evidence to support the court’s order. Green v. Richards,
6th Dist. Lucas No. L-11-1099, 2012-Ohio-614. Moreover, being mindful of our
standard of review, we cannot say that the trial court’s decision to terminate the
revised shared-parenting plan was unreasonable, arbitrary, or unconscionable or
that the court abused its discretion.
French next complains that the trial court’s order does not comport
with the recommendations made by Dr. Babula and GAL Beck. The record indicates
that Dr. Babula recommended that the children remain with French during a three-
month “adjustment period” during which Hill would have increased visitation.
However, Dr. Babula advised that “if [French] is unable to make them follow the
rules, they need to be with [Hill]. Similarly, GAL Beck opined that the children
should remain with French but if French continued to thwart visitation, then Hill
should be permitted to immediately petition the court for a change of custody. Both
of these witnesses expressed concern that French would continue to fail to promote
or encourage visitation and/or alienate the children and from Hill and both
witnesses asked the court to revisit the issue of residential parent/ legal custodian
in that event. Here, the court found that French engaged in “a pattern of behavior
that alienates the children from [Hill].” The court also concluded that French has
failed to honor the visitation schedule and is unlikely to honor it in the future, and
that she and the maternal grandmother alienated the children from Hill through negativity towards him. The court also expressed concern that if the “circumstances
of the children’s environment do not change [they] will continue to be alienated
from [Hill]. Specifically, [F.H.] will engage in behavior now being exhibited by
[K.H.] * * * and [R.H.] will experience pressure to discontinue what is now a positive
relationship” with Hill. The court determined that in light of the increasing
antagonism and parental alienation, the best interest required that Hill to be
deemed residential parent and legal custodian of F.H. and R.H. On this record, and
given the court’s findings, its decision is compatible with the views manifested by
Dr. Babula and GAL Beck.
Finally, French asserts that the trial court erred in ordering a split
parenting decision that renders her the residential parent and legal custodian of
K.H., and renders Hill the residential parent and legal custodian of F.H. and R.H.
However, we note that such “split parental rights” orders are not impermissible
under Ohio law. See Pauly v. Pauly, 80 Ohio St.3d 386, 388, 686 N.E.2d 1108
(1997); Beckley v. Beckley, 90 Ohio App.3d 202, 628 N.E.2d 135 (2d Dist.1993);
Vanest v. Vanest, 9th Dist. Summit No. 28498, 2017-Ohio-9302, ¶ 5.
Here, the trial court determined that GAL Beck “provided credible
testimony that she observed [R.H. and F.H.] to be integrated into [Hill’s] home and
there are no issues concerning [them].” The court also determined that K.H. “now
pressures the other two younger children not to go with [Hill] for parenting time and
further testimony indicates that [R.H. has received negative treatment upon
returning from visits with [Hill].” The court found that Hill has missed court ordered visitation after French and the maternal grandparents “influence[d] the
children’s refusal to visit with [Hill] and positively reinforce this behavior with their
actions.” We find no abuse of discretion as to this issue.
The first assigned error is without merit.
No Second In Camera Interview
French next argues that the trial court erred in refusing to conduct a
second in camera interview of the children.
The denial of a successive request for an in camera interview will be
reviewed for an abuse of discretion. Caldwell v. Caldwell, 12th Dist. Clermont Nos.
CA2008-03-021 and CA2008-02-019, 2009-Ohio-2201, ¶ 17.
An in camera interview is governed by R.C. 3109.04(B), which
provides in relevant part as follows:
In determining the child’s best interest for purposes of making its allocation of the parental rights and responsibilities for the care of the child and for purposes of resolving any issues related to the making of that allocation, the court, in its discretion, may and, upon the request of either party, shall interview in chambers any or all of the involved children regarding their wishes and concerns with respect to the allocation. * * *
(b) The court shall first determine the reasoning ability of the child. If the court determines that the child has sufficient reasoning ability to express the child’s wishes or concerns with respect to the allocation, it then shall determine whether, because of special circumstances, it would not be in the best interest of the child to determine the child’s wishes and concerns with respect to the allocation. If the court determines that, because of special circumstances, it would not be in the best interest of the child to determine the child’s wishes and concerns with respect to the allocation, it shall not determine the child’s wishes and concerns with respect to the allocation and shall enter its written findings of fact and opinion in the journal. If the court determines that it would be in the best interests of the child to determine the child’s wishes and concerns with respect to the allocation, it shall proceed to make that determination.
(c) The interview shall be conducted in chambers, and no person other than the child, the child’s attorney, the judge, any necessary court personnel, and, in the judge’s discretion, the attorney of each parent shall be permitted to be present in the chambers during the interview.
In Saleh v. Yassen, 8th Dist. Cuyahoga No. 108689 2020-Ohio-2719,
this court noted that a trial court is statutorily mandated to conduct an in camera
interview when requested to do so by a party. Multiple interviews of a child are not
prohibited. Thompson v. Cannon, 12th Dist. Butler No. CA2015-02-003, 2015-
Ohio-2893, ¶ 24; Caldwell v. Caldwell, 12th Dist. Clermont Nos. CA2008-03-021
and CA2008-02-019, 2009-Ohio-2201.
However, a second in camera interview is not mandated when
requested by a party. See Hammond v. Hammond, 1st Dist. Hamilton No. 180292,
2019-Ohio-1219, ¶ 22. Rather, the statute does not impose an unlimited duty on the
trial court to perform successive interviews of the same child in a single proceeding
for modification of a custody degree, even if requested by a party. Id.
In Pettry v. Pettry, 20 Ohio App.3d 350, 486 N.E.2d 213 (8th
Dist.1984), this court concluded that “if the child’s unwillingness to visit the
noncustodial parent is the result of influence by the custodial parent, a mere
parroting of the custodial parent’s wishes, or a result of lack of knowledge or
understanding due to the child’s age or not having known the noncustodial parent,
the child’s wishes and fears will be strongly discounted.” Id. at 352-353. In this matter, the trial court advised the parties that it would review
the August 2018 in camera interview that was recorded. The court also advised the
parties that “normally, the court would not require children to come back and talk
to the court again,” and that the in camera interview does not generally allow the
“asking children specific factual situations because that is not what happens in an
in-camera.” GAL Beck noted that the court could review the earlier in camera
interview and stated that she would “hate to put the children through anymore.” (Tr.
12.) After that, the court informed the parties that if the evidentiary hearing
produced additional information that caused the court to believe that a second in
camera interview would be helpful, then it would address the issue again at that
time.
Later, following the hearing, the court found as follows:
43. The Court has reviewed the in camera [interview] conducted with the children [in August 2018] and the wishes of the children as required by [R.C. 3109.04(B)(1) and (2)]. However, based upon the testimony presented to the Court, the Court finds that special circumstances exist and that should be considered in determining the best interests of the minor children as the minor children have been negatively influenced by [French] and grandmother regarding [Hill] and their relationship with [him. French] has engaged in ongoing behavior to influence the children negatively affecting the children’s relationship with [Hill. French’s] and grandmother’s behavior alienate the children from [Hill] and has influenced the children’s wishes regarding their relationship with [Hill. K.H.] is currently alienated from [Hill] and [F.H.] is engaging in behavior that will lead to alienation from [him]. The Court finds that [French] has exerted such an influence over the children that the children appear coached in their responses. The Court does not find that a second [in camera interview] of the children would be helpful to the Court in the best interests of the children. In accordance with the foregoing, the trial court determined that a
second in camera interview was not warranted because the court and GAL Beck and
the court determined that coaching had occurred. We find no abuse of discretion.
Within the sound exercise of its discretion, the court did not err in finding that an
additional in camera interview would not be helpful. The court reviewed the
children’s statements from the first interview but after its hearing, it determined that
the children’s statements were the result of the parental alienation and the negativity
toward Hill coming from French’s home. Moreover, the abuse claims raised after
the first in camera were not substantiated and social worker Cannon stated that the
children “laughed” when the referral was reported to them. Applying our standard
of review, we find no abuse of discretion.
French insists that an abuse of discretion occurred herein, and she
cites to Schottenstein v. Schottenstein, 10th Dist. Franklin No. 00AP-1088, 2001-
Ohio-3987. In that case, the reviewing court noted that two interviews had already
occurred, but it determined that the magistrate’s interview was not sufficient and
that the court should have spoken with the children regarding their wishes in
relation to a contempt finding against the mother. We find Schottenstein
inapplicable here. Insofar as there were intervening events between the August
2018 in camera interview and the 2019 request for a second interview, we note that
the abuse claim lodged with LCDCFS was unsubstantiated, French’s request that the
police conduct a wellness check for a claim of injury to one of the children did not
yield evidence of abuse, and French ultimately dismissed her petition for a civil protection order. Further, the trial court here conducted a full trial and heard
testimony regarding negativity toward and exclusion of Hill. The court also learned
that K.H. was influencing the younger children not to visit, and that R.H. was
experiencing negative consequences after visiting with Hill. The court also found
that the children appeared “coached in their responses,” so a second in camera
interview “would not be helpful to the Court or in the best interests of the children.”
The record presented in this particular matter fully supports the trial court’s
decision to forgo an additional in camera interview. Bearing in mind our standard
of review, we find no abuse of discretion in this matter.
Finally, French maintains the trial court abused its discretion in
delaying its ruling on this issue because that impacted her trial strategy. However,
the court informed the parties at the start of trial that it was taking the matter under
advisement, presumably so they could plan for either outcome. At this time, the
parties also heard from GAL Beck who did not endorse a second in camera interview.
Moreover, by presenting testimony from Cook, French, and the maternal
grandmother, French’s trial counsel elicited testimony regarding the wishes and
concerns of the children, perhaps in anticipation of an adverse ruling. In any event,
R.C. 3105.04 plainly requires the court’s analysis to focus upon the best interests of
the children. The trial court took a measured approach and properly analyzed the
issue with regard to whether it is in the best interest of the child to determine the
child’s wishes and concerns as set forth in R.C. 3109.04.
This assigned error is without merit. Attorney Fees
French next argues that the trial court erred in awarding Hill $18,145
for attorney fees in this matter. She maintains that the court failed to consider her
ability to pay and failed to consider that Hill caused the majority of the debt to be
incurred. She also argues that the court erred insofar as it awarded attorney fees for
the contempt motion yet granted him his entire fee bill. She also disputes individual
items on the bill.
We note that the trial court ruled that Hill “has incurred attorney fees
in the amount of $18,145 to pursue his motions in contempt.”
In Sagan v. Tobin, 8th Dist. Cuyahoga No. 86792, 2006-Ohio-2602,
this court noted:
It is well-settled under Ohio law that a minor’s custodial parent must affirmatively compel, not merely encourage, visitation with a parent. Newhouse [v. Toler (Nov. 20, 1997), Cuyahoga App. No. 71834, 1997 Ohio App. LEXIS 5192]; Montgomery v. Montgomery, Scioto App. No. 03CA2925, 2004-Ohio-6926; Caldwell v. Caldwell, Galia App. No. 02CA17, 2003 Ohio 1752; Ware v. Ware, Warren App. No. CA 2001- 10-089, 2002-Ohio-871.
Id. at ¶ 37.
The Sagan Court also observed that the award of attorney fees is
within the discretion of the court. Id. at ¶ 45. The court retains discretion “to include
reasonable attorney fees as part of the costs taxable to a party, whom the court has
found guilty of civil contempt.” Badertscher v. Badertscher, 9th Dist. Wayne No.
14AP0019, 2015-Ohio-2189, ¶ 20, quoting Willett v. Willett, 9th Dist. Summit No. 22167, 2005-Ohio-342, ¶ 12, citing White v. White, 9th Dist. Wayne No. 2525, 1990
Ohio App. LEXIS 899, 1990 WL 27172, ¶ 3 (Mar. 7, 1990).
In Villa v. Villa, 8th Dist. Cuyahoga No. 72709, 1998 Ohio App.
LEXIS 2171 (May 14, 1998), this court also observed:
Neither the common law nor R.C. 3105.18(G) require that the Wife’s ability to pay be considered. * * * The attorney fees are not additional support, but a cost incurred in the contempt action. It would be unfair to require appellee to expend her own funds to enforce [a court order] when appellant willfully failed to comply.
Similarly, in Bakhtiar v. Saghafi (In re Saghafi), 8th Dist. Cuyahoga
No. 107173, 2019-Ohio-1363 this court also observed that:
“Evidence of the parties’ ability to pay, however, is not required when awarding attorney’s fees incurred for bringing a contempt motion.” Sagan v. Tobin, 8th Dist. Cuyahoga No. 86792, 2006-Ohio-2602, ¶ 52, citing Villa v. Villa, 8th Dist. Cuyahoga No. 72709, 1998 Ohio App. LEXIS 2171 (May 14, 1998).
Id. at ¶ 13. Accord Sagan v. Tobin, 8th Dist. Cuyahoga No. 86792, 2006-Ohio-2602, ¶ 52.
In this matter, we find no abuse of discretion in awarding attorney
fees to Hill. The record demonstrates that, apart from the time of the interim order,
Hill was unable to visit with K.H., and his visitation with F.H. was also diminishing.
Both girls told him that according to the law, they did not have to visit. French did
not facilitate visitation after the termination of the interim order. Additionally, R.H.
experienced negative reactions after from complying with visitation. The court
found considerable evidence of parental alienation and negativity directed at Hill by
French and her family. The record also indicates that Hill’s attorney charged $200
per hour which the court found to be reasonable. On this record, we cannot say that the hourly rate is unreasonable or that an award of attorney fees to Hill was an abuse
of discretion.
As to French’s claim that the court did not consider her ability to pay,
we find no error under Sagan. With regard to her claim that the majority of the fees
were the result of Hill’s conduct, the trial court determined that his claims were
meritorious.
This portion of French’s assigned error is without merit.
Turning to the issue of the total amount of the fee award, the court
determined that Hill “incurred attorney fees in the amount of $18,145.00 to pursue
his motions in contempt.” French complains that this amount is erroneous because
it encompasses Hill’s total attorney fee expenditure, and not simply matters related
to contempt. French also complains that the award amount reflects duplicative
billing items and includes items referencing matters before April 2019. Hill
maintains that recovery of the entire fee award is appropriate because the contempt
motion and the motion to terminate the shared parenting plan share common core
facts. Hill also argues that French waived the issue of the reasonableness of the fees
because her trial counsel did not cross-examine attorney Hutchinson. However, Hill
acknowledges that a remand may be necessary with regard to a potentially
duplicative bill or further clarification of the court’s order.
“[I]n appeals of civil cases, the plain error doctrine is not favored and
may be applied only in the extremely rare case involving exceptional circumstances
where error, to which no objection was made at the trial court, seriously affects the basic fairness, integrity, or public reputation of the judicial process, thereby
challenging the legitimacy of the judicial process itself.” Goldfuss v. Davidson, 79
Ohio St.3d 116, 122-123, 679 N.E.2d 1099 (1997). See also Bawab v. Bawab, 8th
Dist. Cuyahoga No. 96217, 2011-Ohio-5256, ¶ 29.
Applying this doctrine, we recognize that the court awarded Hill
attorney fees for his contempt motion, yet it granted him recovery of his entire fee
bill. Hill defends the award on the basis that the contempt motion and motion to
terminate the shared parenting plan share common core facts and that the award is
proper under R.C. 3105.73(B). Nonetheless, Hill concedes that a remand may be
necessary in order for the trial court to clarify its ruling. Having reviewed the journal
entry, we note that the court referenced French’s contempt in awarding attorney fees
and did not reference R.C. 3105.73(B). Additionally, it lacks sufficient detail to
support Hill’s interpretation. Accordingly, the provision regarding the attorney fee
total is reversed and remanded for further proceedings. French’s specific objections
to the award are therefore moot.
This portion of the assigned error is well-taken.
HILL’S CROSS-ASSIGNMENT OF ERROR
For his conditional assignment of error, Hill asserts the following
cross-assignment of error:
The trial court abused its discretion in not awarding [him] the GAL fees and court appointed psychologist fees which he incurred.
R.C. 3105.73(B) states: In any post-decree motion or proceeding that arises out of an action for divorce, dissolution, legal separation, or annulment of marriage or an appeal of that motion or proceeding, the court may award all or part of reasonable attorney’s fees and litigation expenses to either party if the court finds the award equitable. In determining whether an award is equitable, the court may consider the parties' income, the conduct of the parties, and any other relevant factors the court deems appropriate, but it may not consider the parties’ assets.
In O’Malley v. O’Malley, 8th Dist. Cuyahoga No. 98708, 2013-Ohio-
5238, this court recognized that “[g]uardian ad litem fees, expert fees, and attorney
fees are ‘litigation expenses’ under R.C. 3105.73.” Id. at ¶ 87.
Inasmuch as this court is remanding on the issue of Hill’s attorney fee
total, we likewise find this issue to be moot, as the trial court will revisit the issue of
attorney fees and litigation expenses.
Judgment is affirmed in part, reversed in part, and remanded for
further proceedings consistent with this opinion.
For the forgoing reasons, we find that substantial justice has not been
done the complaining party as to the amount of the attorney fees awarded, but the
matter is otherwise affirmed and remanded.
It is ordered that appellee and appellant share the costs herein taxed. A certified copy of this entry shall constitute the mandate pursuant to App.R.
27. See also 6th Dist.Loc.App.R. 4.
MARY J. BOYLE, A.J. ______________________ Administrative Judge
PATRICIA ANN BLACKMON, J., ______________________ Judge
EILEEN A. GALLAGHER, J., ______________________ CONCUR Judge
(Sitting By Assignment: Mary J. Boyle, A.J., Patricia Ann Blackmon, J., Eileen A. Gallagher, J., of the 8th District Court of Appeals) KEYWORDS
R.C. 3109.04; termination of shared parenting plan; in camera interview; contempt; attorney fees.
Trial court did not abuse its discretion in terminating shared parenting plan and designating father residential parent and custodial guardian of two of parties’ three children; trial court did not abuse its discretion in declining to conduct a second in camera interview before terminating shared parenting plan; trial court did not err in awarding father attorney fees for mother’s contempt, but matter was remanded where contempt attorney fee award reflected total fee bill.