Lowery v. Ridgeway

2015 Ohio 5051

• Court: Ohio Court of Appeals
• Decided: December 7, 2015
• Docket: 5-15-20
• Status: Published

Opinion

[Cite as Lowery v. Ridgeway, 2015-Ohio-5051.]

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

THERESA LOWERY FKA THERESA RIDGEWAY, CASE NO. 5-15-20

PLAINTIFF-APPELLANT,

v. OPINION JAMES RIDGEWAY,

DEFENDANT-APPELLEE.

Appeal from Hancock County Common Pleas Court Domestic Relations Division Trial Court No. 2010-DR-200

Judgment Affirmed

Date of Decision: December 7, 2015

APPEARANCES:

John C. Filkins for Appellant

Garth W. Brown for Appellee Case No. 5-15-20

WILLAMOWSKI, J.

{¶1} Plaintiff-appellant, Theresa Lowery, f.k.a. Theresa Ridgeway

(“Theresa”), brings this appeal from the judgment of the Common Pleas Court of

Hancock County, Ohio, Domestic Relations Division, which adopted the

magistrate’s recommendations, naming Defendant-appellee, James Ridgeway

(“James”), as the residential parent of the parties’ children, ordering Theresa to

pay child support, finding her in contempt, approving guardian ad litem fees, and

ordering Theresa to pay court costs incurred in the proceedings. For the reasons

that follow, we affirm the trial court’s judgment.

Factual and Procedural Background

{¶2} Theresa and James are the parents of three minor children, J.R., L.R.,

and A.R. Theresa initiated divorce proceedings in in Hardin County in June 2007.

At the time, J.R. was four years old; L.R. was two years old; and A.R. was not yet

born. During the initial divorce proceedings, Theresa limited James’s parenting

time until a shared parenting plan was entered and approved by the magistrate of

the Hardin County Court of Common Pleas, Domestic Relations Division, on

October 7, 2008. The parties were granted a divorce in December 2008. James

“only had regular parenting time between October 2008 and April 2009” and after

April 2009, he was unable to exercise his parenting time with the children. (R. at

232, Magistrate’s Decision, May 31, 2012, at 19.)

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{¶3} In May 2010, the case was transferred to Hancock County and on June

18, 2010, Theresa filed a motion to terminate the shared parenting plan and to

designate her as the residential parent while terminating or limiting James’s

parental rights. (R. at 6.) Before the matter came up for a hearing, the parties had

filed multiple other motions. We will only discuss the filings that are of relevance

to this appeal.

{¶4} In September 2010, Theresa filed a Motion for Emergency Order

Suspending Defendant’s Parenting Time until Court Determination of Residential

Parent Status. (R. at 30.) In November 2010, James filed a motion to show cause

against Theresa for her failure to comply with the shared parenting plan by

withholding the children from him. (R. at 38.) James also requested immediate

temporary orders for parenting time based on Theresa’s refusal to comply with the

shared parenting plan. (R. at 39.) In January 2011, James filed a motion for

reallocation of parental rights and responsibilities to him. (R. at 69.) Later the

same month, Theresa filed a motion for magistrate’s order prohibiting James from

claiming any of the minor children as dependents for the 2010 tax year. (R. at 71.)

That motion was denied. (R. at 110.) In February 2011, Theresa filed a motion

for magistrate’s order prohibiting James “from going to the children’s school

and/or the childcare provider’s residence to pick up the children.” (R. at 88.)

Later the same month, James filed a motion for parenting time through Harmony

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House in order to “re-establish his relationship with his children.” (R. at 91.) That

motion was granted. (R. at 93.) In May 2011 James filed another motion to show

cause against Theresa, alleging that Theresa had claimed the children on her 2010

taxes and had not taken any action to amend the return to reflect the magistrate’s

order. (R. at 116.) In September 2011, Theresa filed a motion for an ex parte

order prohibiting James from visiting the minor children at school. (R. at 180.)

That motion was denied. (R. at 181.)

{¶5} In March 2011, the trial court appointed a guardian ad litem for the

children. (R. at 103.) Following the guardian ad litem’s report, which

recommended that James be named the residential parent, Theresa moved for an

appointment of attorney to represent the interests of the children. In her motion

Theresa contended that the guardian ad litem’s position is “in contravention of the

expressed desires of the children.” (R. at 132.) The trial court denied the motion

finding no evidence “to establish that an attorney for the children is either

necessary or essential to protect the interest of the children.” (R. at 144; see also

Tr. at 30.) The trial court did, however, conduct an in camera interview with the

two older children. (See R. at 154.)

{¶6} The parties presented their evidence on all pending issues on seven

different dates, between July 2011 and February 2012. The central issue at the

hearing was the matter of custody and visitation rights with the children. It was

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James’s claim that Theresa had restricted his ability to see the children, effectively

alienating him from the children. Theresa argued that James had failed to make an

effort to see the children and that he had been violent with them in the past. Based

on the testimony and evidence presented at the hearing, the magistrate of the trial

court issued its thirty-four-page-long Decision on May 31, 2012. We summarize

the relevant parts of the magistrate’s factual findings below.

Magistrate’s Findings

The Children

{¶7} The parties have three children. At the time of the hearing, J.R. was in

a primary school in Findlay. (R. at 232, at 5.) The magistrate noted J.R.’s speech

problems and ADHD. J.R. participated in speech intervention through the school.

(Id.) He also received speech therapy and treatment for ADHD. (Id.) J.R. did

“reasonably well in school” and participated in enrichment clusters. (Id.) J.R. did

not have behavior problems but was “very emotional” and displayed anxiety at

school, which was “not unique.” (Id.) The magistrate noted “extreme anxiety in

situations where Mother may be contacted.” (Id.) J.R. was involved in multiple

extracurricular activities, including cub scouts, sign language, choir, volleyball,

“just say no,” spring soccer, and wrestling.

{¶8} L.R. was a first grader. (Id.) The magistrate noted that L.R. had “very

poor vision” and hearing problems, which were addressed through an IEP at

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school. (Id.) The school was also providing speech therapy. (Id.) L.R.

participated in cub scouts, soccer, and wrestling. (Id.)

{¶9} A.R. was in pre-school during school year 2010-2011. The magistrate

noted that A.R. had “serious hearing problems and has Apraxia of speech. Her

speech problems are very significant. Only a few people can understand A.R.’s

speech.” (Id. at 5-6.) A.R. had an IEP and was receiving speech therapy through

the school. (Id. at 6.) The magistrate noted that A.R. “is in Gold Medal

gymnastics, but has trouble interacting with the other children.” (Id.)

{¶10} The magistrate met with J.R. and L.R. for in camera interviews. At

the time, J.R. was eight years old and L.R. was six years old. A.R. was three years

old and chose not to participate. (Id. at 4.) The magistrate concluded that the

children were “of tender age and limited understanding.” (Id. at 5.) The

magistrate noted that the children were anxious and had difficulty maintaining

focus during the interview. Although both boys expressed that they did not want

to see their father, they could not articulate the reasons. (Id. at 5.) Of note, the

magistrate commented that L.R.’s statements were “primarily based on other

peoples’ stories,” and J.R.’s statements “did not appear to be based on his personal

recollections.” (Id.) The magistrate concluded that neither boy had “sufficient

reasoning ability to express their wishes and concerns with respect to the

allocation of parental rights and responsibilities.” (Id.)

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The Parties

{¶11} The magistrate made the following observations about the parties.

After divorcing James, Theresa married Steven Lowery (“Steven”), and they live

together in Findlay, Ohio. (Id. at 6.) As of the time of the magistrate’s decision,

Steven had known the children for over four years and had a very positive

relationship with them. (Id.) The magistrate found that Steven was involved in

the children’s extracurricular activities and had taken the children to doctor’s

appointments. (Id.) Theresa and Steven attended church with the children. (Id.)

The children referred to Steven as Dad. (Id.) The magistrate noted that “[a]t some

point” after the hearing in this case commenced and concerns over children calling

Steven “Dad” were raised, Theresa and Steven attempted to correct the children.

Theresa testified that they “have tried everything to correct it.” (Id.) The

magistrate did not find this statement credible. (Id.) Theresa did not submit any

evidence of her income at the hearing, but after the hearing she submitted “a tax

return for 2010 showing income of $15,049.00, and a W2 form for 2011 showing

unemployment compensation of $7,281.00.” (Id.)

{¶12} The magistrate found that Theresa had been the primary caretaker for

the children and she was responsible for scheduling and taking the children to

medical appointments, as well as contacting the school. (Id. at 6.) Theresa’s

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family had a history of speech and hearing problems and therefore, Theresa had

“experience and training in meeting the special needs of the children.” (Id. at 6.)

{¶13} At the time of the hearing, James lived near Dunkirk, Ohio. He

worked at Kuss Corporation a.k.a. Cummins Filtration, and at IOP Filter in

Findlay, earning $39,755.55 a year. (Id. at 7.) James maintained health insurance

and dental insurance for the children. (Id.) In spite of Theresa’s allegations of

physical and sexual abuse, the magistrate found no evidence that James had “ever

sexually or physically abused the children, or permitted abuse.” (Id. at 9.) James

was in a long-term relationship with Naomi Corwin (“Naomi”), whose children

were ages 16, 12, and 6. Naomi had an old criminal record, which did not include

abuse or neglect of children, and which “may just be a disorderly conduct

conviction.” (Id. at 7.)

{¶14} James did not participate in school meetings or conferences. (Id. at

6.) He had not been in touch with the children’s doctors or counselors since

October 2010. (Id. at 13.) Although James was “not perfectly current” in his child

support payments, the magistrate found him “substantially compliant with the

child support orders.” (Id. at 13.)

Relationship between the Parties

{¶15} The magistrate commented that throughout the divorce proceedings

in Hardin County, “the parties did not cooperate with each other.” (Id. at 7.)

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Theresa apparently “withheld the children” from James and made

“unsubstantiated” allegations to children’s protective services of physical and

sexual abuse by James. (Id. at 7; see also R. at 259, at 2.) The magistrate

commented that the parties’ shared parenting plan, approved in October 2008,

“established a rather complicated schedule that provided Father with parenting

time with the children each week, during summer vacations, and on holidays.” (R.

at 232, at 4.)

{¶16} Between October 2008 and April 2009, James had “most of his

scheduled parenting time.” (Id. at 7.) On April 8, 2009, the parties got into a

heated argument in front of the children during a visitation exchange. As a result,

Theresa left without exchanging the children for James’s scheduled parenting

time. James followed in his vehicle. (Id. at 8.) The police were called to “a

domestic dispute in progress” and Detective David Gonzales (“Detective

Gonzales”) of the Findlay Police Department was flagged down by James. (Id. at

8.) James talked about the situation to Detective Gonzales. His demeanor was

described as “appropriate”; he was “cooperative and did not appear to be a threat.”

(Id.) Yet, Theresa filed a Petition for a Civil Stalking or Sexually Oriented

Offense Protection Order based on the April 8 incident. James had “essentially

not seen the children” since that time. (Id. at 8.)

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{¶17} Theresa’s petition for a protection order was pending for over a year

and was eventually resolved in May 2010, when the parties entered into a consent

agreement. According to the consent agreement, James was allowed to contact

Theresa in writing on issues relating to children. The magistrate described

James’s attempts to contact Theresa, as follows.

Since April 2009, Defendant attempted to contact Plaintiff by telephone once. In 2011, he called the last number he had for Plaintiff and left a message about Christmas visitation. Plaintiff received the message. Plaintiff did not return the call. On or about June 10, 2010, Defendant sent a letter to Plaintiff by certified mail. (Plaintiff’s Exhibit 20). This written communication was sent less than two weeks after the Civil Stalking Protection Order Consent Agreement was issued which permitted written communication from Defendant to Plaintiff. On June 23, 2010, he received the letter back marked unclaimed. On July 3, 2010, Defendant sent a letter dated July 1, 2010 to Plaintiff by certified mail. After July 28, 2010, he received the letter back marked unclaimed. (Plaintiff’s Exhibits 21, 23, and 25). On July 20, 2010, Defendant sent a letter to Plaintiff by certified mail. (Plaintiff’s Exhibit 22). He received the letter back marked unclaimed. On September 24, 2010, Defendant sent a letter to Plaintiff by certified mail. Mr. Lowery signed for the letter on September 25, 2010. (Plaintiffs Exhibit 24). Plaintiff did not respond to the letter. Defendant sent other letters but did not submit written evidence at hearing.

(Id. at 8-9.)

{¶18} The magistrate noted that Theresa “has made no effort to contact

Defendant since before April 8, 2009,” and further described Theresa’s actions as

follows.

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Since April 2009, Plaintiff has provided no written notices to Defendant. Plaintiff has not provided Defendant notice of parent- teacher conferences, Boy Scouts, or any of the children’s activities.

The children were in counseling with Barbara Stickle at the Family Resource Center during the divorce. Services started on January 4, 2008. At some point, the counselor initiated a joint counseling session with [J.R.] and his father. The joint session went well and progress was made. After this joint session with father and child, Mother terminated counseling with Ms Stickle. Mother terminated the counseling without consultation with Father. Plaintiff says that after this session, she tried to schedule more counseling sessions, but it just would not fit into the schedule. She also indicated that [J.R.] was no longer comfortable counseling with Ms Stickle. Mother’s statements of why she terminated counseling with Ms Stickle are not credible.

(Id. at 9.)

{¶19} Theresa wanted James to consent to a step-parent adoption believing

it would be in the children’s best interest to terminate James’s parental rights. (Id.

at 13.) Conversely, the guardian ad litem recommended that James be named as

the residential parent. (Id. at 21.)

James’s Visits with the Children

{¶20} The magistrate recognized that “[t]hroughout the pendency of this

case, Defendant has not been receiving his regular scheduled parenting time.” (Id.

at 9-10.) After James’s request for supervised visitations at Harmony House was

granted, the following “pattern developed in the conduct of the visits.” (Id. at 10.)

Mother would bring the children to the Harmony House. Father would come to the Harmony House and would go to the assigned room. Mother and Harmony House staff would encourage the

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children to participate in the visits. The children would refuse to enter the visitation room. Harmony House staff would tell Father of the problem. Mother and the children would leave. After they left, Father would leave.

(Id. at 10-11.) Although “there were some variations in this pattern, * * * this case

presented the longest period of time that children have gone without the children

visiting the parent.” (Id. at 10-11.) The magistrate commented that throughout

this process the children have been told by Harmony House staff, mother, and

Steve that they did not need to visit if they did not want to and that the visitation

was the children’s decision. (Id. at 10.)

{¶21} The magistrate next described James’s attempts to visit the older

children at school. In 2011, Father contacted the principal at the older children’s

school asking if he could visit J.R. and L.R. at school and indicating that he did

not want to disturb the boys or the school. The visit did not occur. Subsequently,

the Principal talked to Theresa, who told him that “Father was not to have contact

with the boys. Mother was very adamant that Father was not to contact the

children and that the school was to contact her if Father attempted to have

contact.” (Id. at 11.) Theresa repeatedly instructed the school not to let James

have contact with the children. (Id.) Furthermore, she filed the February 2011

motion for an order prohibiting James from contacting the children at school, in

which she alleged that James visited the school and “insisted that the principal

release the children to him.” (Id.; R. at 88.) Based on the principal’s testimony,

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the magistrate found that the claims were unfounded as James “did not insist that

the principal release the children, and made no effort to remove the children from

school,” but behaved cordially, appropriately, and tried not to cause any

disturbance in the school schedule. (R. at 232, at 11.)

{¶22} Another situation occurred when James wanted to visit J.R. a day

after his birthday in 2011. (Id. at 11.) James called the school, then met with J.R.

in the school office and gave him a birthday present. (Id.) Although the visit went

well and J.R. did not display ill effects from the visit while at school after the visit,

Theresa reported that “[J.R.] was upset when he got home”; he was crying, had an

upset stomach, and was throwing up. (Id.) The magistrate further commented that

“in the days after the Father’s visit and after Mother’s call, [J.R.] reported stomach

aches and vomiting in the school bathroom, and displayed some anxiety.” (Id. at

11-12.)

{¶23} On L.R.’s birthday James attempted to visit him at school. “The

school guidance counselor encouraged [L.R.] to go into the office to see his

father,” but “[L.R.] cried, did not go into the room, and said he had to call his

mother.” (Id. at 12.) The magistrate further found that

Father did not force the visit, apologized to the staff, and left the school. Father left a birthday present for [L.R.]. [L.R.] had no problems for the rest of the school day. At the end of the school day, [L.R.] went to the counselor and asked for the gift. The counselor called Mother after the visit. Mother expressed her concern and left the counselor with the feeling that Mother did not want visits to

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happen. Mother went to the school after the phone call, and talked with [L.R.]’s teacher. Mother testified that [L.R.] came home and went straight to his room. Mother said that after Father’s appearance at school, [L.R.] was withdrawn and no longer wanted to participate in extracurricular activities.

(Id. at 11-12.) Due to the fact that A.R. “does not really know” James, he did not

attempt to visit her at school. (Id. at 12.) The magistrate found that James’s

“actions and communications were consistent with the behaviors and actions of

the parent who is supposed to be sharing in the parenting of children.” (Id. at 22.)

{¶24} J.R. was in counseling during some of the time at issue. The

magistrate noted that “[a]t the commencement of counseling, Mother repeated the

allegations of physical and sexual abuse of [J.R.] by Father.” (Id. at 12.) J.R. was

afraid of his father, noting two incidents, “one involving a ball bat and another

involving a poke in the chest.” (Id. at 12.) He did not have insight into his

reasons for not wanting to visit with James. (Id.) Although the counselor

generally did not see indications that J.R. was being coached, a manner in which

J.R. reported an incident of bed wetting “raised concerns that the child was

prompted or coached.” (Id. at 12.) The counselor was unable to determine

whether J.R.’s reported problems with his father were real or imagined. (Id. at

12.) She was concerned, however, about forcing J.R. into visitations with James

due to J.R.’s expressed fear of the situation. (Id. at 13.)

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{¶25} Theresa and Steven had apparently talked with the children about

James’s visitations but indicated that the visitations were the children’s decision

and they did not intend to force them. (Id. at 12.)

{¶26} The magistrate commented that it was “not surprising that the

children are reluctant to see Father,” as J.R. and L.R. “were of very tender years

when their parents separated,” and A.R. was not yet born, so she had “no

memories of life during her parent’s marriage.” (Id. at 21.) The magistrate

referenced “repeated investigations of repeated unfounded allegations,” limited

contact with the father, and lack of encouragement from the mother that have

contributed to the children’s reluctance. (Id.) The magistrate concluded that the

children “have been denied contact with their Father” and they “have been taught

to be afraid of their Father.” (Id. at 28.)

2010 Tax Return

{¶27} As a result of the prior court orders, James was entitled to claim J.R.

and A.R. as his dependents for 2010 tax year. In spite of this, Theresa filed her

2010 tax return claiming all three children as her dependents. Theresa later

explained that it was caused by her tax preparer’s mistake. The magistrate found

this claim “deceptive” because “[a]t the time the tax preparer was supposedly

making a mistake,” Theresa’s motion asking that the court prohibit James from

claiming the children as dependents was pending. (Id. at 16-17.) She further

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failed to amend her tax return for two months after the magistrate’s order denying

her motion. (Id. at 17.)

Theresa’s Credibility

{¶28} After observing Theresa’s demeanor at the hearings, the magistrate

concluded that Theresa’s credibility was “[a] significant problem in this case.”

(Id. at 13.) The magistrate recognized that Theresa’s testimony was “rife with

inconsistencies, and either fabrications or serious misinterpretations.” (Id.) It was

“at odds with the testimony of the school administrators,” the police officers, and

other witnesses. (Id.) Therefore, the magistrate did not consider credible

Theresa’s statements that were “not supported by independent testimony or

evidence.” (Id.)

Magistrate’s Recommendations

{¶29} The magistrate found that it was in the children’s best interest to

have frequent and continuing contact with both parents. (R. at 232, at 24-25.)

Based on the history of Theresa denying James parenting time and her refusal to

cooperate and make decisions jointly, shared parenting was no longer in the

children’s best interest. (Id. at 20-22.) Therefore, the magistrate recommended

that the shared parenting plan be terminated and James be designated as the

residential parent of the children, as that was “the only way to create an

opportunity for Father to have contact with the children.” (Id. at 23.) The

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magistrate recommended that Theresa should have “substantial parenting time,”

from Sunday evening until Friday afternoon during school weeks, and that the

children remain in Findlay City Schools. (Id. at 4, 32.) The magistrate

recommended that Theresa pay child support to James to cover expenses resulting

from being the residential parent, but allowed for a deviation from the basic child

support schedule. (Id. at 27.) Therefore, Theresa was to pay $89.35 per month in

child support. (Id. at 28.)

{¶30} Further, the magistrate recommended that Theresa should be found

in contempt of court for denying parenting time to James. (Id. at 16.) The

magistrate also recommended that Theresa be found in contempt for failure “to

amend her 2010 tax return in a timely manner in blatant disregard of the

Magistrate’s Order issued on March 23, 2011.” (Id. at 17.) The magistrate gave

Theresa opportunities to purge and recommended that she pay $500.00 to James as

reimbursement for attorney fees in contempt actions. (Id. at 17-18.)

{¶31} The magistrate also recommended approval of the guardian ad

litem’s fees and found that Theresa should be responsible for payment of the fees

for six out of seven days of hearing, which were consumed by the presentation of

her case. (Id. at 29-30.) Additionally, the magistrate recommended that Theresa

pay all court costs based on the following findings:

Plaintiff is in contempt of Court, and should pay all Court costs relating to Defendant’s Motions to Show Cause.

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Plaintiff initiated these proceedings by seeking transfer from Hardin County, where Defendant still lived, to Hancock County. Plaintiff filed motions requesting extreme relief, including Plaintiff’s Motion to Terminate Shared Parenting Plan and to Designate Plaintiff as the Residential Parent and to Terminate or Limit Defendant’s Parental Rights, and Plaintiff’s Motion for Emergency Order Suspending Defendant’s Parenting Time until Court Determination of Residential Parent Status and Request for Hearing. On February 16, 2011, Plaintiff filed a motion based on a falsehood: Plaintiff’s Motion for Magistrate’s Order to prohibit Defendant from picking up the children from school or child care. Plaintiff filed a Motion for Magistrate’s Order relating to tax dependency exemptions while proceeding to violate the prior court orders allocating those tax dependency exemptions. Plaintiff’s conduct in this case has prolonged and complicated these proceedings. Plaintiff should pay the Court costs.

(Id. at 30-31.)

Subsequent Proceedings

{¶32} After an extension of time, Theresa filed objections to magistrate’s

decision on October 29, 2012. (R. at 238.) Responses were filed and in December

2012, the matter was submitted to the trial court for a ruling on the objections.

Rather than ruling on the objections, however, the trial court scheduled additional

conferences with the parties on April 17, 2013, June 5, 2013, and July 31, 2013.

On July 31, 2013, the trial court filed conference minutes and an order in which it

stated that objections to the magistrate’s decision remain pending. (R. at 256.) No

further procedural events are documented in the record until May 2015, when the

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trial court issued its fifteen-page decision and order overruling Theresa’s

objections. (R. at 259.)

{¶33} Three days later, Theresa filed a motion for reconsideration and

evidentiary hearing, requesting that the court review additional evidence and

testimony regarding the time that has passed since the last court hearing on

January 6, 2012 until May 2015. (R. at 260.) She also filed a motion to maintain

her as the residential parent and for an evidentiary hearing prior to issuance of

final order. (R. at 265.) The trial court issued its final judgment entry on May 27,

2015, adopting the magistrate’s recommendations. (R. at 270.) Theresa filed this

timely appeal alleging eight assignments of error, as quoted below.

Assignments of Error

ASSIGNMENT OF ERROR I

The Trial Court’s award of custody to Appellee was against the manifest weight of evidence and not in the best interest of the minor children.

ASSIGNMENT OF ERROR II

The Trial Court erred in ordering the Appellant to pay child support to the Appellee when the children primarily reside with the Appellant and the Appellant has the primary responsibility for the care, sustenance and support of the minor children.

ASSIGNMENT OF ERROR Ill

The Trial Court erred in finding the Appellant in contempt for a denial of parenting time to Appellee.

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ASSIGNMENT OF ERROR IV

The Trial Court erred in finding the Appellant in contempt for claiming one of the minor children as a dependent when the Appellant contacted her tax preparer, notified her tax preparer, and filed an amended return.

ASSIGNMENT OF ERROR V

The Trial Court erred in approving Guardian Ad Litem fees for no evidence or testimony was presented to establish that the fees were fair and reasonable. In addition, the Trial Court erred in ordering a disproportionate division of the fees between the parties.

ASSIGNMENT OF ERROR VI

The Trial Court erred as a result of its failure to appoint an attorney to represent the interests of the minor children when the wishes of the children were at odds with the recommendations of the Guardian Ad Litem.

ASSIGNMENT OF ERROR VII

The Trial Court erred as a result of its failure to issue a ruling upon objections for a period of more than three years from the filing of the magistrate’s decision. Further, the Trial Court erred in not scheduling an evidentiary hearing upon the issue of changes in circumstances that had occurred during the three year period of time that followed the magistrate’s decision.

ASSIGNMENT OF ERROR VIII

The Trial Court erred as a result of its ordering that the Appellant pay all court costs incurred in the proceedings.

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Analysis

First Assignment of Error—Allocation of Parental Rights and Responsibilities

{¶34} Theresa complains about the trial court’s designation of James as the

residential parent of the children upon terminating the parties’ shared parenting

plan. She asserts that the decision was against the manifest weight of the evidence

and not in the best interest of the minor children.

{¶35} When terminating a shared parenting plan and issuing a new decree

for allocation of parental rights and responsibilities, the trial court must consider

the best interest of the children under the factors outlined in R.C. 3109.04(F)(1).

These factors include:

(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;

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(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; whether either parent, in a case in which a child has been adjudicated an abused child or a neglected child, previously has been determined to be the perpetrator of the abusive or neglectful act that is the basis of an adjudication; whether either parent or any member of the household of either parent previously has been convicted of or pleaded guilty to a violation of section 2919.25 of the Revised Code or a sexually oriented offense involving a victim who at the time of the commission of the offense was a member of the family or household that is the subject of the current proceeding; whether either parent or any member of the household of either parent previously has been convicted of or pleaded guilty to any offense involving a victim who at the time of the commission of the offense was a member of the family or household that is the subject of the current proceeding and caused physical harm to the victim in the commission of the offense; and whether there is reason to believe that either parent has acted in a manner resulting 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). The court is required to consider all other relevant

circumstances in making its determination. See R.C. 3109.04(F)(1).

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{¶36} The trial court’s determination of what is in the best interest of the

child will not be reversed absent an abuse of discretion. Errington v. Errington,

3d Dist. Wyandot No. 16-01-17, 2002-Ohio-1419, *2. This standard requires that

the trial court’s reasoning not be disturbed unless it was “unreasonable, arbitrary

or unconscionable,” because the trial judge is best equipped to determine and

weigh the credibility of the proffered testimony. Davis v. Flickinger, 77 Ohio St.

3d 415, 416, 418, 674 N.E.2d 1159 (1997); Blakemore v. Blakemore, 5 Ohio St. 3d

217, 219, 450 N.E.2d 1140 (1983).

{¶37} In the case at issue, the magistrate and the trial court reviewed the

factors of R.C. 3109.04(F)(1) listed above and specifically noted the following.

Each parent wanted to be named the residential parent—factor (a); the children did

not have sufficient reasoning ability to express their wishes—factor (b); the

children had strong ties to Theresa and Steven and did not have strong ties to

James and Naomi—factor (c); the children had strong historical and family ties to

Northwest Ohio and did well in Findlay City Schools, benefiting from special

school programs that have been tailored to their needs—factor (d); no mental or

physical issues of the parents were noted, but the children’s special needs were

recognized—factor (e); James was more likely to honor and facilitate court-

approved parenting time—factor (f); “child support arrearages” were not

significant as James “substantially complied” with his child support obligations—

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factor (g); neither parent had a history of neglect or abuse of a child, contrary to

Theresa’s unsubstantiated allegations against James—factor (h); Theresa had “a

long history of keeping the children from Father”—factor (i); neither parent has

established or planned to establish a residence outside the state—factor (j). (R. at

232, at 5, 13, 19-21.) The magistrate and the trial court recognized that the

guardian ad litem recommended father to be named as residential parent. (See id.

at 21.)

{¶38} Relying on applicable case law, the magistrate found factors (f) and

(i) particularly relevant to the determination of the children’s best interest. The

magistrate cited a case from the Twelfth District Court of Appeals, which reversed

the trial court’s designation of mother as the residential parent based on her

interference with father’s visitation time. (Id. at 24, citing In re D.M., 196 Ohio

App.3d 50, 2011-Ohio-3918, 962 N.E.2d 334, ¶ 37 (12th Dist.).) That court held:

We find that it was arbitrary for the juvenile court to grant custody of D.M. to the mother, a parent (1) who has repeatedly denied the father his parenting time, (2) who was twice found in contempt by the juvenile court for denying the father’s parenting time on ten occasions in the span of a year (July 2009 to July 2010), (3) who is determined to interfere with the father’s parenting time as noted by the GAL in her second report, (4) who has in fact interfered with the father’s parenting time and whose interference has caused great distress to the child, as reported by the GAL in her second report, and (5) who, in the juvenile court’s own words, “has demonstrated repeatedly her unwillingness to not only cooperate with the father concerning his relationship and parenting time with the child, but her unwillingness to cooperate with this Court’s Orders.”

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In re D.M. at ¶ 35. In its reasoning the Twelfth District Court of Appeals

recognized that “the mother has been the primary caregiver of the child since he

was born,” but refused to give this factor “ ‘presumptive weight over other

relevant factors.’ ” Id. at ¶ 29, quoting Terry L. v. Eva E., 12th Dist. Madison No.

CA2006-05-019, 2007-Ohio-916, ¶ 17. Instead, that court relied on the children’s

right to “love each parent” and the “need for parenting by both parents.” Id. at ¶

30, 34, quoting Davis v. Flickinger, 77 Ohio St.3d 415, 419, 1997-Ohio-260, 674

N.E.2d 1159 (1997), and In re Custody of Harris, 168 Ohio App.3d 1, 2006-Ohio-

3649, 857 N.E.2d 1235, ¶ 11 (2d Dist.). Similarly, the Ohio Supreme Court held

that “[w]hen one parent begins to cut out another parent, especially one that has

been fully involved in that child’s life, the best interest of the child is materially

affected.” (Emphasis sic.) Davis at 419.

{¶39} Theresa argues that the trial court’s findings regarding her

interference with parenting time are against the manifest weight of the evidence.

The manifest weight of the evidence “refers to a greater amount of credible

evidence and relates to persuasion.” Eastley v. Volkman, 132 Ohio St.3d 328,

2012-Ohio-2179, 972 N.E.2d 517, ¶ 19 (2012). Under this standard, the reviewing

court “does not reweigh the evidence,” but it applies the presumption that the

findings of the trier of fact are correct. Southeast Land Dev., Ltd. v. Primrose

Mgt. L.L.C., 193 Ohio App.3d 465, 2011-Ohio-2341, 952 N.E.2d 563, ¶ 7 (3d

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Dist.); Drummer v. Drummer, 3d Dist. Putnam No. 12-11-10, 2012-Ohio-3064, ¶

7. “Mere disagreement over the credibility of witnesses or evidence is not

sufficient reason to reverse a judgment.” Drummer at ¶ 7; citing State v. Wilson,

113 Ohio St.3d 382, 865 N.E.2d 1264, 2007-Ohio-2202, ¶ 40. Therefore, “a

judgment supported by some competent and credible evidence will not be reversed

by a reviewing court as being against the manifest weight of the evidence.”

Lambert v. Merrick, Inc., 3d Dist. Hancock No. 5-92-11, 1992 WL 209298, *2

(Aug. 31, 1992).

{¶40} In the instant case, the record supports the magistrate and the trial

court’s finding that Theresa defied the court’s orders, denied James parenting

time, and engaged in deceptive tactics to prevent him from having any contact

with his children. In addition to the examples noted by the magistrate in his

findings of fact, the record is replete with examples of Theresa’s actions and

statements that impeded James’s ability to engage in meaningful contact with his

children. (See, e.g., Tr. at 96, 102-103, 113, 1284 (making repeated unsupported

allegations to counselors and staff at Harmony House about sexual abuse or

emotional abuse of the children); 382, 384, 385 (repeatedly instructing the school

principal that James was not to have any contact with the children at school); Tr. at

905, Ex. W (indicating that Theresa listed Steve in children’s school papers, while

excluding James and stating that she had sole custody of the child); Tr. at 1284,

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1327 (indicating “constantly” to the counselor that she did not want James to be

around the children).) Her actions of filing motions to prevent James from picking

up children from school and to terminate his parenting rights, are in contravention

to her assertions that she did not prevent James from seeing the children and that

she encouraged the children’s relationship with him. Theresa effectively blocked

James from the children’s lives, estranging them from him to the point where A.R.

did not believe he was her father; J.R. told the school’s principal that he “would

not be allowed” to have lunch with James; and the children called Steve “Dad.”

(See, e.g., Ex. 9 at 7; Tr. at 120-121; 367.) Because the findings of the court

below regarding Theresa’s wrongdoing and lack of credibility are well-supported

by the record, we reject her contentions that the trial court’s decision was against

the manifest weight of the evidence.

{¶41} Theresa points to the fact that “the children are bound” with her and

Steven, while James “is not, and has not been, actively involved in any aspect of

the children’s lives since at least the year 2009.” (App’t Br. at 17.) Based on the

magistrate’s findings, approved by the trial court and supported by the record, the

fact that the children are bound with Theresa and Steven and have no relationship

with James is due to Theresa’s wrongdoing. The trial court’s decision aims to

correct that wrongdoing and afford the children a frequent and continuing contact

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with both parents, which according to the law and the record before us, is in the

children’s best interest.

{¶42} The findings of the magistrate and the trial court are not against the

manifest weight of the evidence and support the decision that award of custody to

James is in the children’s best interest. Therefore, Theresa’s first assignment of

error is overruled.

Assignments of Error II, III, IV, V, and VIII—Lack of Support

{¶43} The second, third, fourth, fifth, and eighth assignments of error are

addressed together due to the same standard that guides their resolution. App.R.

16(A)(7) requires that an appellant include in his or her brief: “An argument

containing the contentions of the appellant with respect to each assignment of

error presented for review and the reasons in support of the contentions, with

citations to the authorities, statutes, and parts of the record on which appellant

relies.” (Emphasis added.) “It is not the duty of an appellate court to search the

record for evidence to support an appellant’s argument as to any alleged error.”

Rodriguez v. Rodriguez, 8th Dist. Cuyahoga No. 91412, 2009-Ohio-3456, ¶ 7.

Rather, “an appellate court may disregard an assignment of error pursuant to

App.R. 12(A)(2): ‘if the party raising it fails to identify in the record the error on

which the assignment of error is based or fails to argue the assignment separately

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in the brief, as required under App.R. 16(A).’ ” Id. at ¶ 4, quoting App.R.

12(A)(2).

{¶44} In the second assignment of error Theresa complains about the award

of child support to James and submits a one-paragraph “argument” that lacks any

legal support or references to the record. Similarly, assignments of error three and

four, which challenge the trial court’s findings of contempt, lack proper support

and consist of restating Theresa’s claims that were found not credible in the trial

court. The fifth assignment of error includes a complaint about the amount of

guardian ad litem’s fees and a “disproportionate division” of the fees between the

parties. No support is offered for Theresa’s claims that the fees were unreasonable

or that they should have been divided equally between the parties. In the eighth

assignment of error Theresa claims that “[t]here exists no basis within the Trial

Court’s Decision as to why the appellant is required to bear the entire court costs

of these proceedings.” (App’t Br. at 24.) This claim is contradicted by the

quoted-above reasoning of the magistrate, as approved by the trial court, detailing

the reasons for imposing costs on Theresa. (See R. at 232, at 30-31.)

Additionally, Theresa fails to support her three-sentence “argument” in this

assignment of error with any authorities or citations to the record.

{¶45} We thus decline to find an error on the part of the trial court, as

alleged in the second, third, fourth, fifth, and eighth assignments of error, when

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these errors are not properly argued on appeal. See Rodriguez at ¶ 7 (“ ‘An

appellate court is not a performing bear, required to dance to each and every tune

played on an appeal.’ ”), quoting State v. Watson, 126 Ohio App.3d 316, 321, 710

N.E.2d 340 (12th Dist.1998).

{¶46} We note, however, that no errors prejudicial to Theresa are apparent

from the record. The trial court is vested with discretion in determining matters of

child support, allocation of court costs, finding of contempt, and approving and

dividing guardian ad litem’s fees. See August v. August, 3d Dist. Hancock No. 5-

13-26, 2014-Ohio-3986, ¶ 20 (award of child support); Walker v. Walker, 3d Dist.

Marion No. 9-12-15, 2013-Ohio-1496, ¶ 38 (contempt); Strauss v. Strauss, 8th

Dist. Cuyahoga No. 95377, 2011-Ohio-3831, ¶ 76 (guardian ad litem’s fees);

Nithiananthan v. Toirac, 12th Dist. Warren Nos. CA2014-02-021, CA2014-02-

028, CA2014-08-114, 2015-Ohio-1416, ¶ 89 (allocation of court costs).

Therefore, we will not reverse the trial court’s decision in these matters unless we

find it contrary to law, unreasonable, not supported by the evidence, or grossly

unsound. Muckensturm v. Muckensturm, 3d Dist. Hancock No. 5-11-38, 2012-

Ohio-3062, ¶ 16; Bruce v. Bruce, 3d Dist. Marion No. 9-10-57, 2012-Ohio-45, ¶

13. The record sufficiently supports the magistrate and the trial court’s findings

on the issue of child support, contempt, and allocation of fees and costs.

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{¶47} Therefore, Theresa’s contentions in the second, third, fourth, fifth,

and eighth assignments of error are not well taken and these assignments of error

are overruled.

Sixth Assignment of Error—Request for Separate Counsel for the Children

{¶48} In the sixth assignment of error Theresa cites an Ohio Supreme Court

opinion for a proposition that the magistrate was required to appoint an attorney to

represent the interests of the minor children because the children’s wishes “were at

odds with the recommendations of the Guardian Ad Litem.” (App’t Br. at 23,

citing In re Williams, 101 Ohio St.3d 398, 2004-Ohio-1500, 805 N.E.2d 1110. In

Williams, the Ohio Supreme Court was asked to determine “when a juvenile court

must appoint counsel for a child who is the subject of a proceeding to terminate

parental rights.” (Emphasis added.) Id. at ¶ 1. The Williams court focused its

inquiry around R.C. 2151.352, which provides for a right to counsel “at all stages

of the proceedings under this chapter or Chapter 2152. of the Revised Code.” Id.

at ¶ 13, quoting R.C. 2151.352. Unlike Williams, this case does not involve

termination of parental rights or Chapters 2152 and 2151 of the Revised Code.

Thus, the reasoning used by the Ohio Supreme Court in Williams does not apply

here. See also Jennings-Harder v. Yarmesch, 8th Dist. Cuyahoga No. 83984,

2004-Ohio-3960, ¶ 19 (holding that the parties’ reliance on Williams in a

proceeding to modify parental rights was “somewhat misguided” because the Ohio

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Supreme Court “did not decide that a child is always entitled to independent

counsel”).

{¶49} Civ.R. 75(B)(2), which governs “Divorce, annulment, and legal

separation actions,” states that “[w]hen it is essential to protect the interests of a

child, the court may join the child of the parties as a party defendant and appoint a

guardian ad litem and legal counsel, if necessary, for the child and tax the costs.”

(Emphasis added.) This rule “does not require the court to appoint counsel for the

children in every case where there is conflict between the children’s wishes and

the guardian ad litem’s assessment of their best interest.” O’Malley v. O’Malley,

8t Dist. Cuyahoga No. 98708, 2013-Ohio-5238, ¶ 51. Rather, it is up to the trial

court’s discretion whether to appoint counsel for children. Id. at ¶ 50.

{¶50} We find no abuse of discretion in the denial of Theresa’s motion for

separate counsel for the children where nothing indicates that the guardian ad

litem failed to protect the children’s interests. See id. at ¶ 51 (finding that there

was no need to appoint separate counsel for the children were “the children’s

interests were sufficiently protected by the guardian ad litem”). The guardian ad

litem submitted thorough reports, in which she disclosed that the children wished

to stay with their mother. Further, after talking with the children, the magistrate

determined that they did not have independent reasoning ability to express their

wishes with respect to the allocation of parental rights and responsibilities.

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{¶51} For all of the foregoing reasons, we overrule the sixth assignment of

error.

Seventh Assignment of Error—Delay in Ruling on Objections

{¶52} In this assignment of error, Theresa complains about the three-year

delay in ruling on her objections to the magistrate’s decision and the trial court’s

failure to hold a new evidentiary hearing due to the alleged change in

circumstances that had occurred during these three years. Once again Theresa

fails to support her claim with any legal argument or citations to the record.

{¶53} Several of our sister appellate districts have been presented with

similar arguments. For example, the Second District Court of Appeals called a

two-year delay between the magistrate’s decision and the trial court’s judgment

adopting the decision “considerable.” Hall v. Hall, 2d Dist. No. 2013 CA 15,

2013-Ohio-3758, ¶ 34. It refused, however, to reverse the trial court’s decision on

this basis because the defendant “failed to establish that he was prejudiced in any

way.” Id. The court further noted that the defendant “could have filed a writ with

this Court asking us to compel the trial court to rule on the objections.” Id. His

failure to avail himself of such a remedy undermined his claim of prejudice. Id.;

see also Toliver v. Duwel, 2d Dist. Montgomery No. 24768, 2012-Ohio-846, ¶ 96

(refusing to reverse the trial court’s decision based on a delay where the appellant

failed to point to any prejudice and failed to avail herself of the remedy of a writ

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of procedendo). Likewise, the Ninth District Court of Appeals recognized that a

delay of more than fifteen months was “uncommonly lengthy under the

circumstances.” Friess v. Hague, 9th Dist. Lorain No. 96CA006518, 1997 WL

460163, *2 (Aug. 6, 1997). It refused, however, to reverse the trial court’s

judgment absent a showing of prejudice by the appellant. Id. Due to the

appellant’s failure to move the trial court to rule upon his objections, the court

found that he acquiesced in the delay, which supported the “conclusion he was not

prejudiced by it.” Id. See also State ex rel. Scioto Cty. Child Support

Enforcement Agency v. Adams, 4th Dist. Scioto No. 98CA2617, 1999 WL 597257,

*9 (July 23, 1999) (rejecting an argument that a sixteen-month delay before the

magistrate issued its decision constituted a violation of due process where there

was no prejudice to the appellant resulting from the delay and the appellant failed

to file “a petition for a writ of procedendo to remedy the magistrate’s failure to

timely reach a decision”).

{¶54} This case is similar to Hall, Toliver, Friess, and Adams. Theresa

fails to show prejudice from the delay, and her failure to file a writ of procedendo

shows her acquiescence to the delay, which undermines her claim of prejudice. In

fact, we recognize that the delay in this case was beneficial to Theresa’s interests,

as it delayed an implementation of the judgment that was unfavorable to her.

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Theresa fails to point to any law or evidence in the record that would require a

reversal based on the trial court’s failure to conduct an additional hearing.1

{¶55} While we do not approve of a three-year delay in rendering a

judgment by the trial court, we refuse to find error prejudicial to Theresa and we

overrule the seventh assignment of error.

Conclusion

{¶56} Having reviewed the arguments, the briefs, and the record in this

case, we find no error prejudicial to Appellant in the particulars assigned and

argued. The judgment of the Common Pleas Court of Hancock County, Ohio,

Domestic Relations Division is therefore affirmed.

SHAW and PRESTON, J.J., concur.

/hlo

1 Nothing in this decision precludes Theresa from filing a motion for modification based on a change in circumstances under R.C. 3109.04, and supporting it by new evidence in the trial court.

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