[Cite as Hutchinson v. Hutchinson, 2014-Ohio-4604.]
IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT MONTGOMERY COUNTY
KYLE HUTCHINSON
Plaintiff-Appellee
v.
VIRGINIA HUTCHINSON
Defendant-Appellant
Appellate Case No. 26221
Trial Court Case No. 2012-DR-510
(Appeal from Domestic Relations Court) ...........
OPINION
Rendered on the 17th day of October, 2014.
...........
DAVID M. MCNAMEE, Atty. Reg. No. 0068582, 2625 Commons Boulevard, Suite A, Beavercreek, Ohio 45431 Attorney for Plaintiff-Appellee
ELIZABETH J. HENLEY, Atty. Reg. No. 0034207, 131 North Ludlow Street, Suite 1205, Dayton, Ohio 45402 Attorney for Defendant-Appellant
.............
WELBAUM, J. 2
{¶ 1} Defendant-Appellant, Virginia Hutchinson, appeals from a divorce judgment
designating Plaintiff-Appellee, Kyle Hutchinson, residential parent and legal custodian of the
parties’ minor child, K.H.1 In support of her appeal, Virginia contends that the trial court denied
her due process by not affording her an opportunity to cross-examine the guardian ad litem.
Virginia further contends that the trial court abused its discretion by failing to consider the
relevant statutory factors in R.C. 3109.04(F)(1).
{¶ 2} In addition, Virginia contends that the trial court abused its discretion by failing
to interview the minor child, and by failing to consider that Virginia was the child’s primary
caretaker. Finally, Virginia contends that the trial court erred in relying on an out-of-date
investigator’s report that was biased.
{¶ 3} We conclude that Virginia was not denied due process, as she chose not to
subpoena the family investigator for the trial. The trial court also did not abuse its discretion in
failing to interview the minor child, as the child was quite young at the time of the divorce
hearing. In addition, the trial court properly considered the factors in R.C. 3109.04(F)(1)
regarding the best interests of the parties’ minor child.
{¶ 4} We further conclude that the trial court was not required to give presumptive
weight to any party’s status as a primary caregiver. Kyle had served as a primary caregiver for
K.H. in the past, and the trial court granted him equal parenting time with the child eight months
before the final divorce hearing. However, Virginia interfered with his parenting time. Finally,
the trial court did not improperly rely on an investigator’s report, but instead heard evidence at
the hearing, which indicated that Virginia’s life was even more unstable than when the
1 For purposes of convenience, we will refer to the parties by their first names. 3
investigator prepared her report. Accordingly, the judgment of the trial court will be affirmed.
I. Facts and Course of Proceedings
{¶ 5} The subject of this custody dispute, K.H., was born in February 2009. Between
then and February 2012, the parties lived in the Dayton area, together with Virginia’s older child,
A.G. In 2011, Kyle quit his employment with Fortis College in order to stay home with the
children while Virginia completed her nursing degree. After finishing her degree, Virginia
moved with the children to Manassas Fork, Virginia, in mid-February 2012. After she arrived,
Virginia was residing with a family friend, or cousin. Ostensibly, the plan was for the family to
relocate, but when Kyle arrived a few weeks later, he stayed only a week before Virginia kicked
him out. Since Kyle had nowhere else to go, he returned to Ohio and filed for divorce in May
2012.2
{¶ 6} In August 2012, temporary custody was given to Virginia, and Kyle was granted
standard visitation. Kyle attempted to enforce the visitation order by offering to drive to
Virginia and stay in a hotel. His offer was accepted once, in early October 2012, and he was
able to see K.H. At a court hearing in September 2012, Virginia agreed to two- week-long
visitations for K.H. and Kyle in late October 2012, mid-November 2012, late December 2012,
early January 2013, and early February 2013. However, when Kyle flew to Reagan International
Airport on October 27, 2013, after having purchased tickets for himself and K.H., Virginia did
not show up at the airport. She also did not answer his phone calls until he had flown home
2 As with a number of facts, there was some dispute. Virginia claimed the person she lived with was a cousin; Kyle claimed the person was a family friend. Kyle also claimed that Virginia misled him into letting her move to Virginia, when she actually intended to end the marriage. Virginia testified at trial that the couple was going to move to Virginia to work on their marriage. 4
after waiting at the airport for five hours. According to Kyle, Virginia’s explanation was that
she had child-care issues and she said something about her car. However, the report of the
family investigator indicates that Virginia felt that Kyle should pick up K.H. at a park near her
house, rather than her driving the child to the airport.
{¶ 7} The November 2012 visitation also did not occur, because Virginia again
refused to drive the child to the Reagan Airport. In addition, the December 2012 visitation did
not occur as scheduled. In January 2013, Kyle filed a motion for contempt with respect to the
October visitation. Ultimately a magistrate heard the matter and issued a decision in May 2013.
The magistrate did not find Virginia in contempt because the method of transportation had not
been addressed in the initial order, and because she provided additional visitation in January
2013. The magistrate then ordered that the parties would have alternating two-week visitation
periods beginning on May 13, 2013, and that each party would be responsible for the costs
involved in returning the child to the other parent. Additionally, the magistrate ordered that the
parties could either drive the child back to the other parent or fly the child back by way of Dulles
Airport.
{¶ 8} In the meantime, the court had referred the case to the Family Relations
Department (FRD) for an investigation. Between December 2012 and January 2013, the
investigator met with both parents, and observed the child with each parent. After investigating,
the report recommended that Kyle should be designated the residential parent and sole custodian
of K.H., and that Virginia should have one-week of parenting time per month prior to the time
the child started Kindergarten. After that time, Virginia should have one weekend of parenting
time per month in the Dayton area, except for holiday weekends. Finally, summer parenting
should be pursuant to the court’s standard order. 5
{¶ 9} The recommendation was based on Virginia’s actions over the past year, which
demonstrated a lack of stability, including: living in three different residences; holding at least
three different jobs; taking a leave of absence from her job in January 2013 and moving the
children temporarily to Dayton, Ohio, where she stayed with a friend, and moving back to
Virginia after a month; and interfering with Kyle’s visitation. The investigator also noted
certain credibility concerns, including Virginia’s cancellation of a scheduled appointment one
hour before the appointment, by claiming that there were blizzard warnings in the area where she
lived, when there was actually only a light dusting of snow. This also interfered with Kyle’s
scheduled visitation in December 2013. 3 In addition, Virginia denied being involved in a
relationship in Virginia, even though she admitted that her male childcare provider, C.C., had
words with Kyle in a park during a parenting time exchange.4
{¶ 10} In June 2013, Kyle filed a second motion for contempt, contending that he was
denied his parenting time when Virginia refused to return the child on June 10, 2013. Service of
the motion was sent to Virginia at the address she had disclosed to the court, but was unclaimed.
In July 2013, new counsel entered an appearance for Virginia. Service by regular mail was
attempted at Virginia’s address in July 2013, but failed.
{¶ 11} Subsequently, in September 2013, Kyle filed a motion to modify parenting time
to the FRD recommendation, based on Virginia’s continued denial of visitation. When this
motion was sent to the address Virginia had listed, it was returned with a notification that
3 The area in question was Virginia’s residence in the D.C. area, which means that Virginia had no intention of attending the appointment in Dayton, Ohio, regardless of weather, since she called only one hour before the appointment to cancel. 4 At trial, Kyle testified that C.C. was Virginia’s boyfriend and was the father of Virginia’s child, who was born in December 2013. The child also has the same first name as C.C. 6
Virginia had not lived there since July 2013. However, Virginia did not provide a current
address either to the court or to Kyle until the time of the final divorce hearing, which occurred in
late January 2014.
{¶ 12} At a hearing held in November 2013 on the modification motion, the magistrate
noted that Kyle did not have his parenting time as arranged in July 2013, and last saw the child
after he returned the child during his most recent parenting time, in July/ August 2013. The
magistrate further noted that Kyle had attempted contact via phone calls and text messages,
which had not been returned. The magistrate then ruled that parenting time should occur on
alternating months, with Kyle having K.H. for the month of December 2013. In addition, the
magistrate ordered that Kyle would be responsible for picking up the child at Virginia’s
residence, and that she would be responsible for picking up K.H. to return to her residence.
{¶ 13} Virginia was not present at the November 2013 hearing, but she was represented
by counsel. In mid-December 2013, Virginia’s counsel asked for permission to withdraw as
counsel, due to multiple issues communicating with Virginia, and the request was granted.
Virginia then appeared pro se for the final divorce hearing, which had been previously scheduled
for January 28, 2014. Virginia did not request time then to obtain new counsel, nor had she
previously requested additional time.
{¶ 14} At trial, both parties testified, and the trial court issued a decision designating
Kyle as the residential parent and legal custodian. The court granted Virginia ten days of
consecutive parenting time per month until K.H. started school. After that time, Virginia would
have the standard order of visitation, with the exception that parenting time would be in the
Dayton area, and all holiday and summer visitation would occur in Virginia. The court also
ordered Virginia to pay child support. 7
{¶ 15} Virginia appeals from the final judgment and decree, which was filed on May 2,
2014.
II. Was Virginia Denied Due Process?
{¶ 16} Virginia’s First Assignment of Error states that:
The Trial Court Committed Reversible Error and Denied the Appellant's
Right to Due Process of Law by Not Affording Her an Opportunity to
Cross-Examine the Guardian Ad Litem.
{¶ 17} Under this assignment of error, Virginia contends that the trial court violated
R.C. 3109.04(C) and her right to due process of law by failing to make the court-appointed
investigator available in court for cross-examination.
{¶ 18} Before addressing this point, we should note that “ ‘[l]itigants who choose to
proceed pro se are presumed to know the law and correct procedure, and are held to the same
standards as other litigants.’ ” Preston v. Shutway, 2013-Ohio-185, 986 N.E.2d 584, ¶ 12 (2d
Dist.), quoting Yocum v. Means, 2d Dist. Darke No. 1576, 2002-Ohio-3803, ¶ 20. (Other
citations omitted.) Because Virginia chose to proceed pro se, she is not afforded special
treatment, but is treated like any other litigant. Id.
{¶ 19} As a preliminary matter, we note that Virginia failed to raise any issues
pertaining to the FRD investigator at trial. Therefore, we review this issue under the plain error
doctrine, which “ ‘provides for the correction of errors clearly apparent on their face and
prejudicial to the complaining party even though the complaining party failed to object to the
error at trial.’ ” Corey v. Corey, 2d Dist. Greene No. 2013-CA-73, 2014-Ohio-3258, ¶ 8,
quoting O'Brien v. O'Brien, 5th Dist. Delaware No. 2003-CA-F12069, 2004-Ohio-5881, ¶ 19.
(Other citation omitted.) Furthermore, “ ‘[t]he plain error doctrine may be utilized in civil 8
cases only with the utmost caution, under exceptional circumstances and only to prevent a
manifest miscarriage of justice.’ ” Id., citing O’Brien at ¶ 19. (Other citation omitted.)
{¶ 20} With respect to investigations, R.C. 3109.04(C) provides that:
Prior to trial, the court may cause an investigation to be made as to the
character, family relations, past conduct, earning ability, and financial worth of
each parent and may order the parents and their minor children to submit to
medical, psychological, and psychiatric examinations. The report of the
investigation and examinations shall be made available to either parent or the
parent's counsel of record not less than five days before trial, upon written request.
The report shall be signed by the investigator, and the investigator shall be
subject to cross-examination by either parent concerning the contents of the
report. The court may tax as costs all or any part of the expenses for each
investigation.
{¶ 21} We have previously held that “the language of both R.C. 3109.04(A) [now (C)]
and Civ.R. 75(D) implicitly confers upon the trial court the authority to admit
custody-investigation reports into evidence.” Roach v. Roach, 79 Ohio App.3d 194, 200, 607
N.E.2d 35 (2d Dist.1992). In addition, “even if inadmissible hearsay is included in the report,
when a trial judge acts as the finder of fact, he or she is presumed capable of disregarding
improper testimony.” (Citations omitted.) In re A.L., 6th Dist. Lucas No. L-10-1355,
2011-Ohio-2569, ¶ 35.
{¶ 22} The Domestic Relations Division of the Montgomery County Court of Common
Pleas has also provided as follows in its local rules of court:
The written report of the guardian ad litem or Family Investigator shall be 9
submitted to the assigned judge or magistrate, with copies to both attorneys, no
less than seven (7) days before the scheduled hearing unless otherwise ordered.
The report shall not be submitted to the Clerk of Courts for filing.
The report shall be accepted into evidence as the guardian ad litem's direct
testimony. He or she may be subject to cross-examination by either party. A
party desiring to cross-examine the guardian ad litem shall arrange for their
appearance by filing a subpoena and is responsible for any additional fee for that
appearance.
Loc.R. 4.29 of the Court of Common Pleas of Montgomery County, Domestic Relations
Division.
{¶ 23} The requirements in the local rule exceed those in R.C. 3109.04(C), and were
satisfied in the case before us. Attachments to the report indicate that it was sent to the parties’
attorneys on February 5, 2013. See Court Exhibit I (containing letters to attorneys for both
parties, attaching the Family Investigation Report). Consistent with Loc.R. 4.29, the report was
not filed with the Clerk of Courts. The report was provided to the parties nearly one year in
advance of the trial, which was held on January 28, 2014. Virginia and her counsel, therefore,
had ample notice of the content of the report. They also had ample notice of the trial date, which
was previously set on September 6, 2013. As a result, Virginia could have subpoenaed the
investigator to testify, but failed to do so.
{¶ 24} In support of her contention that she should have been entitled to cross-examine
the investigator, Virginia relies on the case of In re Hoffman, 97 Ohio St.3d 92, 2002-Ohio-5368,
776 N.E.2d 485, in which the Supreme Court of Ohio held that “[i]n a permanent custody
proceeding in which the guardian ad litem's report will be a factor in the trial court's decision, 10
parties to the proceeding have the right to cross-examine the guardian ad litem concerning the
contents of the report and the basis for a custody recommendation.” Id. at syllabus.
{¶ 25} Hoffman could be distinguished on the basis that it involved termination of
parental rights, which the court described as the “ ‘the family law equivalent of the death penalty
in a criminal case.’ ” Id. at ¶ 14, quoting In re Hayes, 79 Ohio St.3d 46, 48, 679 N.E.2d 680
(1997). Unlike Hoffman, the case before us does not involve termination of parental rights – it
involves a decision as to which parent will have legal custody of a child – a situation that is
always subject to future change based on a change in circumstances. See R.C. 3109.04(E).
Furthermore, unlike the parties in Hoffman, Virginia was not denied the right to cross-examine
the investigator. Hoffman at 93. Other courts have found Hoffman inapplicable on these
grounds. See, e.g., Jackson v. Herron, 11th Dist. Lake No.2003-L-145, 2005-Ohio-4046, ¶ 20.
{¶ 26} Even if this were otherwise, the point being made in Hoffman is that due process
encompasses “ ‘ “fundamental fairness,” a requirement whose meaning can be as opaque as its
importance is lofty.’ ” Hoffman at ¶ 17, quoting Lassiter v. Dept. of Social Serv. of Durham
Cty., North Carolina, 452 U.S. 18, 24-25, 101 S.Ct. 2153, 68 L.Ed.2d 640 (1981). “Our courts
have long recognized that due process requires both notice and an opportunity to be heard.”
(Citations omitted.) In re Thompkins, 115 Ohio St.3d 409, 2007-Ohio-5238, 875 N.E.2d 582,
¶ 13.
{¶ 27} Consistent with these requirements, the procedure outlined in Loc. R. 4.29
provides for notice and an opportunity to be heard. Parties must receive a copy of the report at
least seven days before trial, and they are permitted to subpoena the pertinent witness for
cross-examination. As a result, the trial court offered Virginia all process that was due. The
fact that Virginia chose not to subpoena the witness does not mean that she was deprived of due 11
process of law. Compare Wilburn v. Wilburn, 169 Ohio App.3d 415, 2006-Ohio-5820, 863
N.E.2d 204, ¶ 33 (9th Dist.) (holding that a mother had abandoned her right to a guardian ad
litem’s report, based on her failure to provide a written request for the report or to request a
recess at trial to review the report).
{¶ 28} Accordingly, Virginia’s First Assignment of Error is overruled.
III. Did the Trial Court Fail to Consider the Relevant Statutory Factors?
{¶ 29} Under this assignment of error, Virginia contends that the trial court abused its
discretion by failing to consider the relevant statutory factors in R.C. 3109.04(F)(1). In
particular, Virginia points to the fact that the court failed to consider K.H.’s adjustment to her
community in Virginia or the relationship between K.H. and her siblings.
{¶ 30} Although trial courts must be guided by the language in R.C. 3109.04, they also
enjoy broad discretion in allocating parental rights and responsibilities. Miller v. Miller, 37
Ohio St.3d 71, 74, 523 N.E.2d 846 (1988). Moreover, the Supreme Court of Ohio has stressed
that “[t]he discretion which a trial court enjoys in custody matters should be accorded the utmost
respect, given the nature of the proceeding and the impact the court's determination will have on
the lives of the parties concerned. The knowledge a trial court gains through observing the
witnesses and the parties in a custody proceeding cannot be conveyed to a reviewing court by a
printed record.” (Citation omitted.) Id.
{¶ 31} We review a trial court’s custody decisions for abuse of discretion, which means
that the trial court must not have acted unreasonably, arbitrarily, or unconscionably. Edwards v.
Edwards, 2d Dist. Montgomery No. 25309, 2013-Ohio-117, ¶ 32-33. We noted in Edwards
that: 12
R.C. 3109.04(F)(1)(a)-(j) provide a set of factors that the court uses to
decide the best interests of the child. These factors include: (a) the parents' wishes;
(b) the child's wishes, if the court has interviewed the child; (c) the child's
interaction with parents, siblings, and others who may significantly affect the
child's best interests; (d) adjustment of the child to home, school, and community;
(e) the mental and physical health of all involved persons; (f) which parent is
more likely to honor parenting time rights; (g) any failure to make child support
payments, including arrearages; (h) any prior convictions involving abuse,
neglect, or sexually oriented offenses involving family members: (i) conscious
and willful denial of the other parent's right to court-ordered parenting time; and
(j) whether either parent has established a residence or plans to establish a
residence outside the state.
Id. at ¶ 26.
{¶ 32} We have previously held that “[a]lthough the court is instructed by R.C.
3109.04(F)(1) to ‘consider’ the factors enumerated therein, the court's alleged failure to give the
required consideration will not be found by an appellate court to be against the manifest weight
of the evidence so long as the court's judgment is supported by some competent, credible
evidence.” Feldmiller v. Feldmiller, 2d Dist. Montgomery No. 24989, 2012-Ohio-4621, ¶ 32,
citing Bunten v. Bunten, 126 Ohio App.3d 443, 710 N.E.2d 757 (3d Dist.1998). In Bunten, the
court stressed that “it is not necessary for the court to set forth its analysis as to each factor in its
judgment entry, so long as the judgment entry is supported by some competent, credible
evidence.” Bunten at 447, citing Masitto v. Masitto, 22 Ohio St.3d 63, 66, 488 N.E.2d 857
(1986). 13
{¶ 33} In the case before us, the trial court indicated that it had considered the statutory
factors in R.C. 3109.04, but it did not specifically discuss each factor. The court did observe
that it found Kyle’s testimony credible with respect to Virginia’s attempts to undermine Kyle’s
ability to exercise parenting time with K.H. Thus, while Virginia had been the primary caretaker
after she moved to Virginia with the child, Kyle’s failure to be a current primary caretaker was a
result of Virginia’s interference with his parenting rights.
{¶ 34} Virginia did testify at the hearing that K.H. loved being with her siblings. This
would not be unusual in a child of that age (four). However, more important is the fact that the
court expressed concern about the instability in Virginia’s life, i.e., that she had lived in
numerous residences since she moved to Virginia, and had changed jobs several times. In
addition, the court was concerned about the fact that Virginia left her three children in daycare
overnight due to her work schedule, and had acknowledged that often when she worked, she was
so tired that she slept at the daycare facility when she was finished working. The children,
therefore, were being left in daycare for extended periods of time beyond Virginia’s work hours.
{¶ 35} The trial court did say that it attached great significance to the recommendation
of the family investigator that Kyle should be the residential parent. However, the court also
made its own findings, as noted above. The trial court further found that Kyle had a more stable
environment in which to raise the child, that Virginia had attempted to undermine Kyle’s
parenting time, and that Kyle was much more likely to facilitate a positive relationship with the
non-custodial parent. These observations are supported by competent, credible evidence in the
record. Feldmiller at ¶ 32.
{¶ 36} Accordingly, we find no basis upon which to conclude that the trial court’s
decision was arbitrary, unreasonable, or unconscionable. The Second Assignment of Error, 14
therefore, is overruled.
IV. Should the Trial Court Have Interviewed the Minor Child?
{¶ 37} Virginia’s Third Assignment of Error states that:
The Court Abused Its Discretion by Not Interviewing the Minor Child.
{¶ 38} Under this assignment of error, Virginia contends that the trial court abused its
discretion by failing to interview the minor child. In this regard, R.C. 3109.04(B)(1) provides
that:
When making the allocation of the parental rights and responsibilities for
the care of the children under this section in an original proceeding or in any
proceeding for modification of a prior order of the court making the allocation, the
court shall take into account that which would be in the best interest of the
children. 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.
{¶ 39} We have held that where a party requests an interview of a child, the trial court
must comply. However, where an interview is not requested, the court has discretion over the
decision. Mangan v. Mangan, 2d Dist. Greene No. 07-CA-100, 2008-Ohio-3622, ¶ 21. Again,
we review the court’s discretionary acts for abuse of discretion. Edwards, 2d Dist. Montgomery
No. 25309, 2013-Ohio-117, at ¶ 32. 15
{¶ 40} Because neither party asked the trial court to interview K.H., the issue is
whether the trial court acted arbitrarily, unreasonably, or unconscionably in failing to do so.
Edwards at ¶ 33. After considering the record, we cannot find that the court abused its
discretion. The child was less than five years old at the time of the hearing. The family
investigator also declined to interview K.H. because of her young age, although she did observe
K.H. interacting with each parent.
{¶ 41} Virginia contends that the child could have provided the trial court with
information about her siblings and community. However, Virginia could, and did, inform the
trial court as to these matters.
{¶ 42} Based on the preceding discussion, the Third Assignment of Error is without
merit and is overruled.
V. Consideration of Virginia’s Status as Primary Caretaker
{¶ 43} Virginia’s Fourth Assignment of Error is as follows:
The Court Abused Its Discretion by Giving No Consideration to the Fact
that Virginia Was the Primary Caretaker.
{¶ 44} Under this assignment of error, Virginia contends that the trial court abused its
discretion by failing to consider that she was the primary caretaker. We have previously
indicated that:
To be sure, “[t]he primary caregiver of a child is an important factor to be
considered in the initial allocation of parental rights.” Chelman v. Chelman, 2d.
Dist. Greene App. No.2007 CA 79, 2008-Ohio-4634, ¶ 43, citing [In re] Maxwell
[, 8 Ohio App.3d 302, 456 N.E.2d 1218 (2d Dist. 1982)]. “However, a party's 16
role as the primary caregiver is not given presumptive weight over other relevant
factors.” [Chelman] at ¶ 43, 456 N.E.2d 1218. Where, as in the present case,
both parents have served as primary caregiver at different times, a trial court has
discretion to designate the father as legal custodian and residential parent if other
evidence preponderates in his favor regarding the best interest of the children.
Williams-Booker v. Booker, 2d Dist. Montgomery App. Nos. 21752, 21767,
2007-Ohio-4717, ¶ 13-16.
Davis v. Davis, 2d Dist. Clark No. 2011-CA-71, 2012-Ohio-418, ¶ 8.
{¶ 45} In the case before us, Kyle quit his job in 2011 and was a primary care-giver for
K.H. and his step-son until Virginia removed K.H. from the state. When Kyle traveled to
Virginia to be with his family, Virginia kicked him out after a week, and according to Kyle,
prevented him from taking K.H. with him.5 According to Kyle’s testimony, which the trial court
credited, Virginia thereafter interfered with Kyle’s parenting time by concealing her addresses
from him, by not answering his phone calls and texts, and by failing to produce the child when
she was scheduled to do so. In May 2013, the trial court granted Kyle equal parenting time, and
he would have been a primary caretaker between that time and the trial, but for Virginia’s
interference with his parenting time.
{¶ 46} The trial court concluded that it was in the best interests of K.H. for Kyle to be
designated residential parent, and the record contains competent, credible evidence to support the
court’s conclusion. “When a custodial parent so obstructs the visits between the child and the
noncustodial parent, then the best interest of the child is no longer being served.” In re S.M.T.,
5 Virginia did not either dispute or discuss this in her testimony. 17
8th Dist. Cuyahoga No. 97181, 2012-Ohio-1745, ¶ 7. Furthermore, other factors that the trial
court considered, including the relative stability of the parties’ situations, weighed in favor of
Kyle’s designation as residential parent. The trial court was entitled to place weight on these
factors.
{¶ 47} Accordingly, the Fourth Assignment of Error is overruled.
VI. Issues Pertaining to the Investigator’s Report
{¶ 48} Virginia’s Fifth Assignment of Error states that:
The Trial Court Erred in Granting the Father Sole Custody Which Was
Based Upon an Investigator's Report That Was Biased, Out-of-date, and Meant to
Punish the Mother for Her Perceived Bad Behavior.
{¶ 49} Under this assignment of error, Virginia contends that the trial court improperly
relied on the investigator’s report, which was outdated and was biased against her. We disagree.
The trial court mentioned the Investigator’s Report, but the court also heard testimony from the
parties, and made credibility decisions based on its observations of the parties.
{¶ 50} As an initial matter, Virginia cites authority indicating that a trial court does not
have authority to change custody based on failure to implement parenting time. See Culberson
v. Culberson, 60 Ohio App.2d 304, 397 N.E.2d 1226 (1st Dist.1978). We have also cited
Culberson for the proposition that “R.C. 3109.04 does not permit a modification of custody
based upon a finding of contempt.” Sheppeard v. Brown, 2d Dist. Clark No. 2007 CA 43,
2008-Ohio-203, ¶ 54. However, both of these cases involve modification of prior permanent
custody orders, not an initial custody order like the one involved in the case before us. See
Culberson at 305; Sheppeard at ¶ 1. The fact that a party has been given temporary custody 18
during a divorce proceeding does not mean that he or she is necessarily entitled to custody after
the final hearing. “The opposing parties in R. C. 3109.04 custody disputes are usually the child's
parents, who may have nearly equal emotional, financial and educational advantages to offer the
child and who are on an equal footing before the law.” (Footnote omitted.) In re Perales, 52
Ohio St.2d 89, 96, 369 N.E.2d 1047 (1977), citing R.C. 3109.03.
{¶ 51} Nonetheless, both the initial permanent custody orders and modification of
those orders are governed by R.C. 3109.04 and the factors contained in R.C. 3109.04(F) – which
we have already concluded were properly applied in this case.
{¶ 52} Contrary to Virginia’s contention, the trial court did not base its decision solely
on the fact that visitation had been denied. Instead, as was noted above, the court found that
Kyle’s situation offered K.H. more stability.
{¶ 53} Virginia also argues that the family investigator’s report and recommendations
were calculated to punish Virginia for what the investigator perceived as poor behavior. As an
example, Virginia points to the investigator’s interpretation of Virginia’s actions in rescheduling
an appointment in late December 2012. The investigator noted that Virginia had called to cancel
the appointment due to blizzard warnings, when weather reports showed only a light dusting in
the area where Virginia lived. Virginia contends that weather is changeable and that one cannot
telephone days in advance to cancel appointments due to the weather. Virginia also contends
that the investigator should have checked the weather for the entire 500-mile distance between
the Washington D.C. area and Dayton if the weather report were deemed that important.
{¶ 54} Virginia’s arguments miss the point. The significant issue was that Virginia
called one hour before her scheduled appointment to cancel, claiming that the weather prevented
her from attending. In view of the fact that the distance between Dayton and the Washington 19
D.C. area is 500 miles, there is no way that Virginia could have made the appointment regardless
of the weather. She was also scheduled to deliver K.H. to her father for visitation at the same
time. The late notice and the excuse given made it clear that Virginia had no intention of
complying with either the visitation schedule or her scheduled appointment. These matters bear
on her credibility and on her willingness to facilitate K.H.’s relationship with Kyle. Notably,
Virginia does not deny that the incident happened, and the fact that the investigator mentioned it
does not demonstrate punitive intent.
{¶ 55} According to Virginia, the investigator (and later the court, relying on the
investigator), improperly concluded that her life was unstable, due to several changes in her job
and residence. We have already discussed these matters, and the record supports the trial court’s
conclusions about instability in Virginia’s life. This conclusion was, in fact, based on Virginia’s
testimony at the hearing, which showed even less stability than when Virginia was interviewed
by the family investigator in January 2013.
{¶ 56} Specifically, when Virginia talked to the family investigator, she lived in a
three-bedroom house in Manassas Park, Virginia, and had been working at Burke Health and
Rehab Center since November 2012, on a schedule where she worked either 7:00 a.m. to 3:00
p.m. or from 3:00 p.m. until midnight. At the time, her daycare provider was a private family
that she had known since high school. She also denied having any significant other since she
had lived in Virginia. See Court Ex. I, pp. 1-2.
{¶ 57} By the time of the final divorce hearing, one year later, Virginia had delivered
another child, who was born on December 1, 2013. She also had a different employer and a
different address – a two-bedroom apartment, which would be less appropriate for three children
than her prior three-bedroom residence. Virginia was also working a different schedule, from 20
7:00 p.m. until 7:00 a.m., which required her to leave her children with her daycare provider (a
church) overnight. As was previously noted, Virginia testified that she often slept at the daycare
after she got off work, meaning that the children were there for an extended period of time
beyond the time she was working. In contrast, Kyle was living in a two-bedroom home by
himself, and there was no indication that his living situation or employment was unstable.
{¶ 58} We also note that Virginia did not ask for an updated report from the
investigator. However, even if she had, her circumstances had become more unstable, not less,
since the last report.
{¶ 59} Based on the preceding discussion, the Fifth Assignment of Error is overruled.
VII. Conclusion
{¶ 60} All of Virginia’s assignments of error having been overruled, the judgment of
the trial court is affirmed.
FROELICH, P.J. and DONOVAN, J., concur.
Copies mailed to:
David M. McNamee Elizabeth J. Henley Hon. Timothy D. Wood