[Cite as Reese v. Whitsett, 2017-Ohio-2798.]
IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT LOGAN COUNTY
SEAN P. REESE,
PLAINTIFF-APPELLEE, CASE NO. 8-16-16
v.
KAITLYN JO WHITSETT, OPINION
DEFENDANT-APPELLANT.
Appeal from Logan County Common Pleas Court Juvenile Division Trial Court No. 14-AD-85
Judgment Affirmed
Date of Decision: May 15, 2017
APPEARANCES:
Douglas B. Dougherty for Appellant
Jeffrey A. Merklin for Appellee Case No. 8-16-16
SHAW, J.
{¶1} Defendant-appellant, Kaitlyn Jo Whitsett nka Overmyer (“Kaitlyn”),
appeals the October 19, 2016 judgment of the Logan County Court of Common
Pleas, Juvenile Division, naming plaintiff-appellee, Sean P. Reese (“Sean”), the
residential parent and legal custodian of the parties’ minor child. On appeal, Kaitlyn
argues that the trial court improperly considered certain factors relating to her
lifestyle in making its determination that it is in their child’s best interest to
designate Sean the residential parent.
Procedural History
{¶2} On November 5, 2014, Sean filed a Complaint to Allocate Parental
Rights and Responsibilities of the parties’ child, H.R., who was born in 2013. Sean
requested that the trial court designate him as the residential parent and legal
custodian, or in the alternative, order a shared parenting plan be put into place. Sean
also filed a motion for a temporary orders requesting that the trial court award him
temporary custody of the child, or in the alternative, order shared parenting. Sean
further sought the trial court to incorporate a temporary order “precluding [Kaitlyn]
from taking the minor child out of the State of Ohio without a Court Order or
Father’s consent. Father has reason to believe Mother may be dating a person who
lives in Ft. Wayne, Indiana.” (Doc. No. 2). Kaitlyn filed an answer and
-2- Case No. 8-16-16
counterclaim requesting that the trial court name her the “sole custodial and
residential parent” of the parties’ child and also requested temporary orders
consistent with her counterclaim.
{¶3} The matter was set for a hearing on temporary orders for February 9,
2015.
{¶4} On January 21, 2015, Sean filed a Motion for Emergency Order of
Temporary Custody requesting the trial court grant him immediate temporary
custody of the parties’ child. The motion stated that the “reason for this request is
that Father has been told by Mother that she plans on permanently removing the
child from the State of Ohio to Ashley, Indiana, presumably to live with her
boyfriend as identified in his Motion for Temporary Orders, that she has obtained
new employment in Indiana, and that if Father wanted to see his son he would have
to drive to Van Wert, Ohio for pick up/delivery of the child. The effective date
given to Father is January 26, 2015.” (Doc. No. 20).
{¶5} Kaitlyn filed a memorandum in opposition to Sean’s Motion for
Emergency Order of Temporary Custody claiming that she had been the primary
caretaker of the child since his birth and that she was the sole provider for the child.
She explained that she had obtained a better paying job in Indiana using her
bachelor’s degree which would give her and the parties’ child more financial
security. She further explained that she planned to give Sean visitation consistent
-3- Case No. 8-16-16
with the local court rule. Therefore, Kaitlyn asked the trial court to deny Sean’s
Motion for Emergency Order of Temporary Custody.
{¶6} On January 29, 2015, the trial court’s magistrate conducted a hearing
on Sean’s Motion for Emergency Order of Temporary Custody. Both parties were
present with counsel. The magistrate heard testimony from Sean and his parents
and Kaitlyn and her mother.1 The magistrate made the following factual
determinations from the evidence presented at the hearing:
The parties are the parents of one minor child, namely [H.R.], born [September 2013]. Father filed the motion because Mother advised that she was planning to move to Ashley, Indiana with the parties’ child. Mother in fact moved on January 23, 2015. She lives with her fiancé, whom she met approximately six months ago. Her fiancé has a daughter who is 3½ years old; he is the child’s primary custodian. Mother moved to Ashley due to new employment in the area. She had been employed with the Logan County Sheriff’s Office, but wanted to put her bachelor’s degree in psychology to use. She had sought employment in central Ohio, without success. She secured a position as a transitional care coach in Indiana; Mother will be making approximately $3.00 more per hour in this job.
Father has had consistent, though limited, involvement in the child’s life. Long work hours have, at times, limited Plaintiff’s opportunities to be with the child. Currently, Father works a first shift, 40 hour per week job. Mother claims that Father has anger management issues.
Travel time between the parents’ current residences is approximately two hours.
1 For reasons not apparent from the record, the transcript of this hearing, which the record indicates was extensive, was not provided on appeal.
-4- Case No. 8-16-16
(Doc. No. 27).
{¶7} The magistrate issued temporary orders on February 25, 2015,
designating Kaitlyn the residential parent and legal custodian of the parties’ child
and affording Sean visitation as the parties agree, or in the event an agreement could
not be reached, three of every four weekends from Friday 6:00 p.m. to Sunday 6:00
p.m. Custody exchanges were ordered to take place in Van Wert, Ohio, at a
mutually agreeable location. Sean was ordered to pay child support.
{¶8} On March 6, 2015, less than two weeks after the temporary orders were
issued, Kaitlyn filed a motion to modify the temporary orders requesting the trial
court to modify Sean’s parenting time to every other weekend from Friday 6:00 p.m.
to Monday 6:00 p.m. Kaitlyn claimed that the frequent travel required by the
parenting time schedule in the court’s temporary orders placed a “substantial
amount of stress on the child.” (Doc. No. 28). Sean filed a response “strenuously”
opposing Kaitlyn’s motion claiming that the proposed modification would deprive
him of the opportunity to develop a strong father-son relationship with H.R.
{¶9} On March 17, 2015, the magistrate issued an order overruling Kaitlyn’s
motion to modify Sean’s parenting time stating that “the undersigned ordered that
Plaintiff receive three out of four weekends with the parties’ minor child in an
attempt to approximate the amount of time he had spent with the child prior to
Defendant’s move. The undersigned believes that such a schedule is necessary to
-5- Case No. 8-16-16
facilitate the child’s relationship with his father, which is in the best interest of the
child.” (Doc. No. 30).
Evidence Presented at the Final Hearing
{¶10} On September 2, 2015, the case proceeded to a final hearing before
the magistrate. The following was revealed from the testimony of the witnesses
presented at the final hearing.2
Summary of Events Prior to the Hearing
{¶11} Kaitlyn met Chris Overmyer, who lived in Indiana, on Tinder, an
online dating website in September of 2014. Approximately a month later the two
met in person and developed a romance. On or about January 24, 2015, Kaitlyn
moved the parties’ child to Indiana. The record indicates that she represented to the
magistrate that her decision to move was primarily because she had secured a new
position as a transitional care coach in Indiana and earned a higher salary. In early
May 2015, Kaitlyn purchased the home where she lived with the parties’ child along
with Mr. Overmyer and his four-year-old child. According to Mr. Overmyer, they
could not get a mortgage in both of their names due to his credit history. Therefore,
Kaitlyn obtained the mortgage alone based upon her salary as a transitional care
coach.
2 It should be noted that the evidence at the final hearing was not meant to be duplicative of that taken at the hearing on temporary orders held eight months earlier. Accordingly, the testimony largely focused on developments since the prior hearing.
-6- Case No. 8-16-16
{¶12} On June 25, 2015, Kaitlyn married Mr. Overmyer. Shortly thereafter
they discovered Kaitlyn was pregnant. In mid-August 2015, Kaitlyn voluntarily
quit her job as a transitional care coach based upon her concerns that the position
could expose her unborn child to illnesses. Consequentially, Kaitlyn intended to
stay at home with H.R. and Overmyer’s daughter, which alleviated the cost of
having to provide for daycare. However, she stated that she had been accepted to
attend a local community college and had plans to begin nursing classes online once
her child in utero reached a year old.
Sean’s Position
{¶13} Sean testified that he bought his home in Lakeview, Ohio, in Logan
County when he was 19 years old. At the time of the hearing Sean was 24. H.R.
has his own room in the home. Since 2014, Sean has been employed at Fire Safety
Services in the neighboring town of Huntsville. He generally worked first shift
during the week, 8:00 a.m. to 5:00 p.m. with some overtime, and did not work on
the weekends. He explained that this job has provided him with more stable hours
and since the trial court’s temporary orders were issued he has been able spend three
out of every four weekends with H.R and had extended parenting time with H.R. in
the summer. Sean testified that he is current on his child support; specifically, that
it is withheld from his paycheck.
-7- Case No. 8-16-16
{¶14} Most of Sean’s family lives in close proximity to him. Sean’s parents
live three to four miles from Sean’s home. Sean’s sister and her two sons ages 4
and 7 also live with Sean’s parents for the time being. Sean’s mother, father, and
sister presented testimony at the final hearing indicating that Sean and H.R. have a
great father-son relationship and that H.R. is well bonded with them and his sister’s
children, H.R.’s cousins. Sean explained that he has a great family support system
in Logan County and that if the trial court designated him residential parent and
legal custodian of H.R. he would have the help and support of various family
members who live nearby.
{¶15} Sean further stated that many members of Kaitlyn’s family also reside
in Logan County. Specifically, Kaitlyn’s parents live approximately fifteen miles
from Sean and her sister lives eight miles from him. Sean stated that since the
temporary orders were issued, Kaitlyn had returned to Ohio to visit her family,
which also enabled him to exercise his parenting time. Sean expressed that it is in
H.R.’s best interest for him to be designated residential parent because of the strong
family ties to Logan County, on both H.R.’s maternal and paternal sides, and the
lack of family in Indiana, where Kaitlyn now resides.
Kaitlyn’s Position
{¶16} Kaitlyn testified that since H.R.’s birth she had been his primary
caretaker. She recalled that she and Sean lived together immediately after H.R.’s
-8- Case No. 8-16-16
birth in September 2013, but that the relationship fell apart and she moved in with
her parents at the end of 2013. After their relationship ended, she and Sean arranged
for Sean to see H.R. on a regular basis, which Sean consistently exercised. Prior to
moving to Indiana, she worked as a correction’s officer with the Logan County
Sheriff’s Office. She admitted that her decision to move to Indiana was partially
influenced by the fact that her new paramour lived there. However, she maintained
that she also moved to Indiana to pursue a higher paying position, which she
admitted to voluntarily leaving seven months later.
{¶17} Kaitlyn explained that she and Mr. Overmyer discussed the financial
impact of her leaving her new employment on the family budget and concluded that
it was economically feasible for her to stay home with the children and for Mr.
Overmyer to be the sole income provider. Kaitlyn also revealed that her former
employer offered to reduce her hours to part-time, but that she declined because she
wanted to spend more time with H.R. and prepare for the arrival of her new child.
{¶18} Kaitlyn acknowledged that she did not have any family living within
a 100-mile radius of her in Indiana. However, she explained that in the short amount
of time of her living in her new home in Indiana she had formed friendships with
some of her neighbors and former co-workers and had developed a close
relationship with her mother-in-law, who lives nearby. Kaitlyn’s mother also
provided testimony that she frequently visited Kaitlyn and H.R. and that she brought
-9- Case No. 8-16-16
the young children of whom Kaitlyn’s mother and her husband have custody
through the state foster care system. Kaitlyn’s mother explained that H.R. had a
good relationship with these children.
{¶19} Kaitlyn described the area near Ft. Wayne, Indiana where she lived
with H.R., Overmyer, and his daughter as having many resources for children, good
public schools, and more opportunity for her to advance in her career than in Logan
County. She also noted that she frequently returned to Logan County to visit family.
Kaitlyn claimed that it is in H.R.’s best interest for her to be named his residential
parent and legal custodian because she had always been his primary caretaker and
he had bonded well with Overmyer and his daughter. Kaitlyn further stated that
“it’s very hard for [H.R.] to adjust to the constant change” and suggested that
modifying Sean’s parenting time to every other weekend would be better for H.R.
(Doc. No. 74 at 119).
{¶20} On September 30, 2015, the magistrate issued a decision analyzing the
evidence presented at the final hearing. The magistrate considered the factors in
R.C. 3109.04(F)(1) and recommended that it is in H.R.’s best interest for Sean to be
designated his residential parent and legal custodian and Kaitlyn be named non-
residential parent and provide child support.
{¶21} On March 11, 2016, Kaitlyn filed objections to the magistrate’s
decision asserting that his decision to designate Sean the residential parent is against
-10- Case No. 8-16-16
the manifest weight of the evidence and contending that the magistrate improperly
considered her financial situation as a factor in determining the child’s best interest.
Sean filed a response to Kaitlyn’s objections revealing that Kaitlyn had since moved
back to Logan County, secured new employment locally, and was “now involved in
active domestic litigation in Indiana and the custody of her second child is in
doubt.”3 (Doc. No. 52).
{¶22} On September 21, 2016, the trial court overruled Kaitlyn’s objections
to the magistrate’s decision and adopted the magistrate’s findings and
recommendations.
{¶23} On October 19, 2016, the trial court issued a judgment entry naming
Sean H.R.’s residential parent and legal custodian, setting forth Kaitlyn’s parenting
time as non-residential parent, and establishing Kaitlyn’s child support obligation.
{¶24} Kaitlyn filed this appeal, asserting the following assignments of error.
ASSIGNMENT OF ERROR NO. 1
IN DETERMINING THE BEST INTEREST OF THE CHILD, THE TRIAL COURT ERRED WHEN IT IMPROPERLY CONSIDERED IRRELEVANT LIFESTYLE CHOICES MADE BY THE MOTHER.
3 We note that any information in this case regarding pending domestic relations litigation involving Kaitlyn and Mr. Overmyer in Indiana arose after the issuance of the magistrate’s decision on the allocation of the parties’ parental rights and responsibilities and therefore did not factor into the trial court’s decision on the matter. Accordingly, we also will not consider any information in the record pertaining to this unrelated matter on appeal.
-11- Case No. 8-16-16
ASSIGNMENT OF ERROR NO. 2
IN DETERMINING THE BEST INTEREST OF THE CHILD, THE TRIAL COURT ERRED WHEN IT INFERRED, FROM THE MOTHER’S LIFESTYLE CHOICES, THAT THE MOTHER MADE BAD DECISIONS REGARDING THE CHILD IN THE PAST.
ASSIGNMENT OF ERROR NO. 3
IN DETERMINING THE BEST INTEREST OF THE CHILD, THE TRIAL COURT ERRED WHEN IT CONSIDERED THAT IT WAS POSSIBLE THAT MOTHER WOULD MAKE BAD DECISIONS REGARDING THE CHILD IN THE FUTURE.
ASSIGNMENT OF ERROR NO. 4
IN DETERMINING THE BEST INTEREST OF THE CHILD, THE TRIAL COURT ERRED WHEN IT CONCLUDED THAT THE FATHER WAS THE MORE STABLE PARENT.
{¶25} We elect to address Kaitlyn’s assignments of error together due to the
fact that they each challenge the trial court’s determination that it is in H.R.’s best
interest to designate Sean as his residential parent and legal custodian.
{¶26} The juvenile court’s determination of what is in the best interest of a
child will not be reversed absent an abuse of discretion. Sayre v. Furgeson, 3d Dist.
Shelby No. 17-15-16, 2016-Ohio-3500, ¶ 38. An abuse of discretion implies that
the court’s attitude was unreasonable, arbitrary, or unconscionable. Blakemore v.
Blakemore, 5 Ohio St .3d 217, 219 (1983). “A decision is unreasonable if there is
no sound reasoning process that would support that decision.” AAAA Enterprises,
Inc. v. River Place Community Urban Redevelopment Corp., 50 Ohio St.3d 157,
-12- Case No. 8-16-16
161 (1990). “This highly deferential standard of review rests on the premise that
the trial judge is in the best position to determine the credibility of witnesses because
he or she is able to observe their demeanor, gestures, and attitude.” Rarden v.
Rarden, 12th Dist. Warren No. CA2013-06-054, 2013-Ohio-4985, ¶ 10.
{¶27} At the outset we note Kaitlyn does not argue that the trial court failed
to consider the statutory factors contained in R.C. 3109.04(F)(1) in determining the
child’s best interests and allocating the parties’ parental rights and responsibilities.
Indeed, the magistrate’s decision, which was incorporated into the trial court’s
judgment entry, reflects that each relevant statutory factor was considered as part of
the determination to designate Sean the residential parent.
{¶28} Rather, on appeal Kaitlyn claims that the trial court also improperly
considered several non-statutory factors in determining H.R.’s best interest. She
contends that the trial court repeatedly called into question her decision making and
judgment by pointing out the number of crucial life decisions she made in a very
short period of time. She also highlights the trial court’s finding that Sean is the
more stable parent when it came to housing, employment, and relationships. Thus,
Kaitlyn asserts that the trial court improperly considered her financial condition and
lifestyle decisions when determining what is in H.R.’s best interest. She further
argues that the trial court failed to address how these factors have had a direct
adverse impact on H.R.
-13- Case No. 8-16-16
{¶29} In this case, the record demonstrates that the trial court did not simply
focus on Kaitlyn’s lifestyle choices. The record reflects that the trial court did
consider the accelerated timeframe in which Kaitlyn chose to uproot H.R. from not
only Sean and his family, but also from her own family, to begin a life with someone
whom she had just met, and just two months after Sean initiated this case. However,
the record demonstrates that the trial court gave considerably more weight to the
representations that Kaitlyn made to the magistrate, which appeared to form the
foundation of his decision to name her H.R.’s residential parent in the temporary
orders. In particular, this included Kaitlyn’s representation to the magistrate that
while she may be moving from a close-knit extended family, she would thereby be
able to provide increased financial stability to support H.R. due to new employment
secured as a result of the move all of which would not have been available had she
stayed in Logan County.
{¶30} In his decision issued after the final hearing, eight months later, the
magistrate expressed concern with Kaitlyn’s subsequent lack of commitment to
follow through with those plans despite her prior assurances at the hearing on
temporary orders, which ultimately placed her, and H.R., in a less certain financial
position and now with significantly less family support. Specifically, the magistrate
stated in his decision “[t]he undersigned felt at the time that the temporary orders
best served the child because they maintained Mother as primary caregiver while
-14- Case No. 8-16-16
still affording Father approximately the same amount of time he previously had with
[H.R.], albeit in more condensed periods. In short, the hope was to afford Mother
the benefit of any doubt in an attempt to maintain something akin to the status quo.
* * * However, Mother’s actions since that time have proven the undersigned
wrong. Mother quit her job after just seven months. Thus, one of the undersigned’s
main reasons for giving Mother the benefit of the doubt is gone.” (Doc. No. 139 at
7-8).
{¶31} Even though the trial court may have expressed concern that Kaitlyn’s
“rash decisions raise a number of questions about her judgment and the potential
impact on [H.R.],” the record indicates that it was Kaitlyn’s conduct demonstrating
a lack of commitment to the career and financial plans, which she previously assured
the magistrate were the primary reasons for her removing H.R. from his extended
family, that undermined the magistrate’s confidence in not only her judgment, but
also in her ability to be candid and straightforward with the court moving forward.
(Doc. No. 139 at 8). Moreover, the record reveals that the trial court did not simply
base its decision on Kaitlyn’s decision making and judgment. Rather, the trial court
and magistrate cited many other statutory factors in reaching a decision, which are
supported by the evidence in the record, including the significant ties H.R. has with
his extended family in Logan County and the support they provide both parents in
raising H.R.
-15- Case No. 8-16-16
{¶32} We also conclude that the magistrate and the trial court had the
discretion to find that Sean would provide the parties’ child with greater stability
than Kaitlyn. “Assessing the relative stability of the parties is a matter particularly
well suited to resolution by the trier of fact.” Caron v. Caron, 2d Dist. Greene No.
2016-CA-27, 2017-Ohio-1070, ¶ 14. It is clear from the record that both parties
have their respective strengths and weaknesses, and that both parties have been good
parents, a fact recognized by the magistrate. Nevertheless, the magistrate and the
trial court examined the evidence and assessed the parties’ relative situations and
location of family support and concluded that, between the two of them, Sean was
best suited to provide a stable environment for their child.
{¶33} In sum, even though the trial court considered aspects of Kaitlyn’s
decision making and judgment, the record establishes that this was just one of a
multitude of factors that it considered and was not the sole basis of the trial court’s
decision. Moreover, despite Kaitlyn’s characterizations on appeal, her arguments
simply pertain to credibility determinations of the magistrate and trial court with
regard to Kaitlyn, and not any specific errors of law. As evidenced by the
magistrate’s decision and its judgment entry overruling Kaitlyn’s objections, the
trial court considered the relevant statutory best interest factors in addition to other
factors it found significant in granting Sean’s motion to be designated residential
parent and, as we noted above, the trial court is in the best position to observe
-16- Case No. 8-16-16
witnesses, weigh evidence, and evaluate testimony, and this Court will not reverse
a trial court’s decision based upon a difference of opinion on the credibility of
witnesses or evidence.
{¶34} Accordingly, Kaitlyn’s first, second, third, and fourth assignments of
error are overruled.
{¶35} For all these reasons the assignments of error are overruled and the
judgment is affirmed.
WILLAMOWSKI and ZIMMERMAN, J.J., concur.
/jlr
-17-