Renner v. Renner

2014 Ohio 2237

• Court: Ohio Court of Appeals
• Decided: May 27, 2014
• Docket: CA2014-01-004
• Status: Published

Opinion

[Cite as Renner v. Renner, 2014-Ohio-2237.]

IN THE COURT OF APPEALS

TWELFTH APPELLATE DISTRICT OF OHIO

CLERMONT COUNTY

AMANDA L. RENNER n.k.a. Fultz, :

Plaintiff-Appellant, : CASE NO. CA2014-01-004

: OPINION - vs - 5/27/2014 :

JEFFREY W. RENNER, :

Defendant-Appellee. :

APPEAL FROM CLERMONT COUNTY COURT OF COMMON PLEAS DOMESTIC RELATIONS DIVISION Case No. 06 DRA 01678

Barbara J. Howard Co., L.P.A., Barbara J. Howard, Sarah C. Sanderson, 120 East Fourth Street, Suite 960, Cincinnati, Ohio 45202, for plaintiff-appellant

Rollman & Handorf, LLC, Jeffrey M. Rollman, 5740 Gateway Blvd., Suite 202, Mason, Ohio 45040, for defendant-appellee

PIPER, J.

{¶ 1} Plaintiff-appellant, Amanda Renner (n.k.a. Amanda Fultz) (Mother), appeals a

decision of the Clermont County Court of Common Pleas, Domestic Relations Division,

granting custody of the parties' child to defendant-appellee, Jeffrey Renner (Father).1

1. Pursuant to Loc.R. 6(A) we sua sponte remove this case from the accelerated calendar for the purpose of issuing this opinion. Clermont CA2014-01-004

{¶ 2} The parties were married in 2004, and had one child born issue of the marriage.

The parties divorced in 2008, and entered into a shared parenting plan, which was

incorporated into the parties' divorce decree. Part of the shared parenting plan provided that

the child would remain in Mother's school district, Forest Hills, until the eighth grade and that

the parties would not relocate their respective residences without first informing the other

party.

{¶ 3} In May 2012, Mother filed a notice of intent to relocate because the home she

shared with her new husband and six children had been foreclosed upon.2 Mother and her

new husband relocated to a home located within the Cincinnati Public School District despite

a temporary order from the magistrate prohibiting Mother from enrolling the child in that

school district. Upon learning of Mother's intent to relocate, Father filed a contempt motion

against Mother, and enrolled the child in the Milford Public School District. A magistrate held

a hearing, and found it in the child's best interest to attend the Milford schools. Neither party

objected to the magistrate's decision, and Father's contempt motion was left unresolved at

the time.

{¶ 4} In August 2012, Mother filed a motion requesting, among other things, that the

magistrate order the child to attend individual therapy. Both parties agree that their child is

gifted, and Mother has taken an active role in pursuing the child's participation in programs

for gifted children. Mother also contends that the child's gifted nature causes behavioral

issues, including the child having "meltdowns," hitting other people, defecating and urinating

on himself, and having extreme anxiety. Mother moved the court to order individual therapy

for the child to combat these issues.

{¶ 5} The magistrate held a hearing on Mother's motion for therapy as well as on

2. The six children include the parties' child, Mother's other child from a previous relationship, Mother's child with her new husband, as well as her new husband's three children from a previous relationship. -2- Clermont CA2014-01-004

Father's still-pending contempt motion. The magistrate found Mother in contempt for her

attempt to enroll the child in the Cincinnati Public School District, and also denied Mother's

motion for counseling. Mother filed objections to the magistrate's decision and the trial court

overruled Mother's objections and adopted the magistrate's decision. Mother then appealed

the trial court's decision to this court, and we affirmed. Renner n.k.a. Fultz v. Renner, 12th

Dist. Clermont No. CA2013-06-042, 2013-Ohio-4644.

{¶ 6} In 2013, when the child was eight years old, Father filed several motions,

including a motion to terminate or modify the parties' shared parenting plan. The magistrate

scheduled a hearing on Father's motions. Before the hearing occurred, Mother identified an

expert witness she planned to call regarding the needs of "gifted" children, as well as the

specific need of the parties' own child based upon testing performed by her expert. The

magistrate determined that Mother had failed to share evidence of her expert's testing of the

child within the given discovery deadline, rendering such results inadmissible at the hearing.

However, the magistrate permitted Mother's expert to testify generally about gifted children.

Mother was also permitted to proffer her expert's anticipated testimony, specific to the parties'

child and his needs.

{¶ 7} Also before the hearing occurred, the magistrate re-appointed a guardian ad

litem (GAL) and ordered an updated report. The GAL, who had been involved in the case for

several years, met with and interacted with Mother, Father, the parties' child, and several

other witnesses. The GAL filed her updated report with the magistrate, and each party had

access to the report. The GAL's report was favorable to Father having custody, and

suggested that Mother had parenting issues that needed to be addressed.

{¶ 8} After the hearing, the magistrate issued a decision, ordering that Father have

custody of the child and setting standard parenting time for Mother. Mother objected to the

magistrate's decision for multiple reasons, including that the magistrate failed to consider her -3- Clermont CA2014-01-004

expert's full testimony. Mother also objected to the magistrate's decision granting Father

custody. The trial court addressed Mother's objection regarding the magistrate not

considering her expert's full testimony. The trial court stated that it would consider the

expert's testimony as proffered, and the trial court's written decision reflects consideration of

the expert testimony. However, the trial court overruled Mother's objections to the

magistrate's custody determination, and adopted the magistrate's decision, with a

modification for more visitation time for Mother. Mother now appeals the trial court's

decision, raising two assignments of error. We will address both assignments of error

together for ease of discussion since they are interrelated.

{¶ 9} Assignment of Error No. 1:

{¶ 10} THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT ORIGINALLY

EXCLUDED THE EXPERT'S TESTIMONY CONCERNING [THE CHILD] AND WHEN IT

GAVE IT LITTLE OR NO WEIGHT.

{¶ 11} Assignment of Error No. 2:

{¶ 12} THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT FAILED TO

AWARD MOTHER CUSTODY OF THE PARTIES' MINOR CHILD, AND INSTEAD

AWARDED CUSTODY TO FATHER.

{¶ 13} Mother argues in her assignments of error that the trial court erred by not giving

her expert's testimony enough weight and by granting Father custody of the parties' child.

{¶ 14} According to R.C. 3109.04(E)(2)(c), "the court may terminate a prior final

shared parenting decree that includes a shared parenting plan approved under division

(D)(1)(a)(i) of this section upon the request of one or both of the parents or whenever it

determines that shared parenting is not in the best interest of the children * * *." If the trial

court terminates a prior shared parenting plan, the court "shall proceed" and allocate parental

rights and responsibilities as if no shared parenting plan had ever been granted. R.C. -4- Clermont CA2014-01-004

3109.04(E)(2)(d). The court is obligated to designate one parent the residential parent and

legal custodian of the child "in a manner consistent with the best interest of the" child. R.C.

3109.04(A)(1).

{¶ 15} Pursuant to R.C. 3109.04(F)(1), a court is required to consider all relevant

factors when making a determination as to what is in a child's best interest. Those 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;

(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; * * *

(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;

-5- Clermont CA2014-01-004

(j) Whether either parent has established a residence, or is planning to establish a residence, outside this state.

{¶ 16} An appellate court employs an abuse of discretion standard when reviewing a

domestic relations issue so that the trial court's decision will only be reversed if it is

unreasonable, arbitrary, or unconscionable. Smith v. Smith, 12th Dist. Butler No. CA2005-04-

091, 2006-Ohio-2136, citing Blakemore v. Blakemore, 5 Ohio St.3d 217, 219 (1983). Upon

review, an appellate court may not substitute its judgment for that of the trial court because

the "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." Caldwell v. Caldwell, 12th Dist. Clermont Nos.

CA2008-02-019, CA2008-03-021, 2009-Ohio-2201, ¶ 15, quoting Miller v. Miller, 37 Ohio

St.3d 71, 74 (1988).

{¶ 17} Although a review of the trial court's detailed written opinion demonstrates that

the trial court clearly considered each of the statutory factors, Mother claims that the trial

court did not give sufficient weight to her expert's testimony, and gave too much weight to the

GAL's report. However, we find neither to be the case.

{¶ 18} The trial court accepted a report from the GAL, which detailed the GAL's

multiple interactions with the child, Mother, Father, and other witnesses. The trial court made

several references to the GAL's report when it balanced the best interest factors, but did not

place too much weight on any one statement or suggestion contained in the GAL's report.

Instead, the trial court considered each best interest factor based upon all of the evidence

and testimony presented at the hearings, rather than any over-reliance on the GAL's report.

{¶ 19} The record also indicates that the trial court expressly stated that Mother's

expert was properly identified prior to the discovery cutoff date, and that the court would

consider the expert's proffered testimony "in a review of the factors considered in allocating

-6- Clermont CA2014-01-004

parental rights and responsibilities." The trial court also noted within several of Mother's

objections that it had considered her expert's testimony when determining the merits of the

objections, as well as when balancing the best interest factors. Therefore, the record

indicates that the trial court gave proper weight to the testimony of Mother's expert, and her

assignment of error regarding that issue is overruled.

{¶ 20} Despite Mother's contention that the trial court placed an improper emphasis on

the GAL's report and not enough emphasis on her expert's testimony, the record

demonstrates that the trial court properly considered and balanced the statutory factors

before determining that it was in the child's best interest to be in Father's custody.

{¶ 21} Regarding the wishes of the child's parents regarding the child's care, the

record demonstrates that both parties wanted to end the shared parenting agreement, and

that both parties wanted custody of the child. The court did not interview the child regarding

his wishes.

{¶ 22} The court considered 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.

The trial court noted that no one else lives with Father, while Mother has remarried and her

blended family now includes her husband and five other children.

{¶ 23} A large portion of the testimony elicited at the hearing was specific to the child's

adjustment to his home, school, and community. During the time the shared parenting plan

was in effect, the parties had equal time with the child. The court heard evidence that when

the child is in Mother's care, he has difficulty doing "routine things", including dressing himself

and preparing for school. Mother reported that the child falls off his chair, seems unaware of

his environment, and walks into people or objects. Mother also reported that the child shows

signs of anxiety while in her home, including clapping his hands in a repetitive manner,

chewing his fingers, demeaning himself when doing homework, refusing to go to the -7- Clermont CA2014-01-004

bathroom by himself, and defecating and urinating on himself.

{¶ 24} At Mother's home, the child tends to grow weary of playing with neighborhood

children, and associates more with Mother and his half and step siblings. Mother permits the

child to play on the computer and IPad in an attempt to limit or lessen the intensity of

"meltdowns" that he has, especially on days that he transitions from Father's care back into

her home. The child also exhibits "self-control issues," when in Mother's care, including

picking his nose and then touching people, running through the grocery store and parking

lots, interrupting people, hitting Mother, and crying easily. Given his behavior, Mother has

expressed her belief that the child has Asperger's Syndrome.

{¶ 25} Conversely, the trial court heard testimony that the child does not exhibit any of

the behavioral issues when he is with Father. Father testified that the child is not reluctant to

use the restroom while in his care, but that the child does use pull ups at night because of

bed wetting. However, Father testified that he too suffered from bed-wetting as a child, as

did his father before him. Father also testified that he has consulted the child's pediatrician

about the bed-wetting and that given the family's history, there is no concern that the child will

not outgrow the condition. The court also heard evidence that while the child is in Father's

care, he does not hit or act violently toward anyone, he is not disruptive or withdrawn, and

that there are no concerns regarding the child's social skills. Father testified that the child

has many friends at school and in the neighborhood where Father lives. The child is involved

with extra-curricular activities while in Father's care, including participating in the school play,

Tae Kwon Do and Cub Scouts. The court also heard evidence that the child is not

disoriented or unfocused while in Father's care, and that he does not cry easily or exhibit

inappropriate behavior. Nor does the child exhibit the behaviors he does at Mother's home

when he is in school or at other social activities.

{¶ 26} The court also considered extensive evidence regarding the mental and -8- Clermont CA2014-01-004

physical health of all persons involved in the situation. Mother testified that she has

Asperger's Syndrome, and her symptoms include the need to tell the truth in every situation,

an aversion to being touched, sensitivity to loud noises, and the need for "down time" when

she returns home from work. Mother repeatedly has subjected the child to various testing,

including intelligence testing, Autism screening, cognitive evaluations, and testing to

determine whether the child would qualify for an academic program designed for gifted

students. Mother's expert testified to the mental state that most gifted children exhibit,

including having a good memory, being intense, and having some social problems because

they are different from nongifted children. The trial court also heard evidence that the child

has suffered from constipation in the past, and has been given medication as a result. The

court did not hear any evidence that Father has any physical or mental concerns.

{¶ 27} The trial court also considered evidence regarding which parent was more likely

to honor and facilitate court-approved parenting time rights or visitation and companionship

rights. The court noted that while neither party had directly interfered with the other party's

parenting time, Mother often does not permit the child to attend and participate in activities

during her parenting time. For example, Mother did not permit the child to attend an annual

Cub Scout banquet, will not permit the child to attend Cub Scout camp unless such camp

falls during Father's summer vacation visitation, and sometimes does not take the child to his

Tae Kwon Do lessons.

{¶ 28} The court also heard evidence that Mother had disobeyed court orders in the

past by taking the child to be tested when the court's orders gave Father responsibility for any

testing of the child, and also talked to the child about attending a school for gifted children

even though the court had ordered a specific placement in Father's school district. Mother

also moved the child from her school district without first informing Father, as was required by

the shared parenting plan.

-9- Clermont CA2014-01-004

{¶ 29} Regarding whether either parent had failed to make all required child support

payments, the court noted that Father was under an obligation to pay support, and had done

so without any delinquencies. No evidence was presented to establish that either parent or

household member had been convicted of or pled guilty to a criminal offense resulting in the

child being an abused child or a neglected child. Nor was any evidence submitted that either

party had or intended to establish a residence outside of Ohio.

{¶ 30} Regarding any other factor, the court noted that the parties have a contentious

relationship. Mother will not speak to Father in public, instead choosing to stare off into

space if he speaks to her. Neither Father nor his mother (the child's paternal grandmother)

are permitted to come to Mother's home, and Mother testified that when she answers

Father's questions, she only tells him what she thinks he needs to know. Mother also

testified that she does not answer Father's phone calls, and does not believe that it is her

responsibility to provide Father with results of the child's testing.

{¶ 31} The court also noted that Mother's testimony was not credible in many aspects,

including the reasons she pursued the child's testing, why she wanted him to have therapy,

as well as Mother's description of the child's "bizarre behavior."

{¶ 32} After reviewing the record, we find that the trial court did not abuse its discretion

in finding that the child's best interests would be served by Father having custody. As such,

Mother's second assignment of error is overruled.

{¶ 33} Judgment affirmed.

HENDRICKSON, P.J., and M. POWELL, J., concur.

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