[Cite as Rice v. Rice, 2011-Ohio-3099.]
COURT OF APPEALS DELAWARE COUNTY, OHIO FIFTH APPELLATE DISTRICT
SCOTT RICE JUDGES: Hon. John W. Wise, P. J. Plaintiff-Appellant Hon. Julie A. Edwards, J. Hon. Patricia A. Delaney, J. -vs- Case No. 10 CA F 11 0091 FAITH RICE
Defendant-Appellee OPINION
CHARACTER OF PROCEEDING: Civil Appeal from the Court of Common Pleas, Domestic Relations Division, Case No. 97 DR A 04097
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: June 23, 2011
APPEARANCES:
For Plaintiff-Appellant For Defendant-Appellee
ROBERT J. MANN DOUGLAS J. BEHRINGER ROBERT J. MANN & ASSOC. c/o FOP/OLC., INC. 150 East Mound Street, Suite 308 222 East Town Street Columbus, Ohio 43215 Columbus, Ohio 43215
MARY SPAHIA-CARDUCCI JAMES B. HARRIS CARDUCCI & ASSOCIATES HARRIS, MCCLELLAN, BINAU & COX 150 East Mound Street, Suite 308 37 East Broad Street, Suite 950 Columbus, Ohio 43215 Columbus, Ohio 43215 Delaware County, Case No. 10 CA F 11 0091 2
Wise, P. J.
{¶1} Plaintiff-Appellant Scott Rice appeals from the decision of the Delaware
County Court of Common Pleas, Domestic Relations Division, which dismissed his
motion to terminate shared parenting pursuant to Civ.R. 41(B)(2). Defendant-Appellee
Faith Rice nka Behringer is appellant’s former spouse. The relevant facts leading to
this appeal are as follows.
{¶2} On May 8, 1998, appellant and appellee were granted a divorce by the
Delaware County Court of Common Pleas, Domestic Relations Division. The divorce
decree incorporated a shared parenting plan concerning the parties’ twin sons, C.R.
and C.R., born in 1996. The twins are now teenagers and, among other things, are
avid hockey players.
{¶3} Pursuant to a modification of the plan on August 3, 2001, Appellee Faith
was named residential parent for school purposes.
{¶4} The parties were again before the trial court in 2005 and 2006, resulting in
an order on April 4, 2006 incorporating a memorandum of agreement of the parties as
to shared parenting.
{¶5} On June 5, 2008, appellant filed a motion for modification of parental
rights and responsibilities and modification of child support. He specifically therein
requested a termination of shared parenting on the basis of substantial change in
circumstances. Appellant averred that, inter alia, appellee was interfering with the boys’
hockey activities and that she failed “to provide for the children to attend middle school
in a public or private school district other than the Columbus City Schools.” Affidavit in
Support, June 5, 2008, at 1. Delaware County, Case No. 10 CA F 11 0091 3
{¶6} The case proceeded to an evidentiary hearing before a magistrate on
February 10, 2010. As further discussed infra, the children were not interviewed in
camera during the proceedings, nor did the guardian ad litem testify, although his
report was proffered, but not admitted or considered by the magistrate.
{¶7} At the close of appellant’s case-in-chief, appellee moved for a dismissal
under Civ.R. 41(B)(2), contending appellant had failed to show a change in
circumstances warranting any modification of the shared parenting arrangement. The
magistrate granted the motion to dismiss via a ten-page written decision issued March
18, 2010.
{¶8} Appellant thereupon filed timely objections to the magistrate’s decision.
{¶9} On October 25, 2010, the trial court overruled appellant’s objections and
adopted the magistrate’s decision via judgment entry.
{¶10} On November 19, 2010, appellant filed a notice of appeal. He herein
raises the following eleven Assignments of Error:
{¶11} “I. THE LOWER COURT ERRED IN OVERRULING [APPELLANT’S]
OBJECTIONS AND AFFIRMING THE MAGISTRATE’S DECISION WHERE THE
COURT ERRONEOUSLY CREATED A BIFURCATED STANDARD REQUIRING A
PARTY TO FIRST SHOW A CHANGE IN CIRCUMSTANCES BEFORE A MINOR
CHILD WILL BE INTERVIEWED, WHEN SUCH HOLDING IS CONTRARY TO OHIO
LAW.
{¶12} “II. THE LOWER COURT ERRED IN OVERRULING [APPELLANT’S]
OBJECTIONS AND AFFIRMING THE MAGISTRATE’S DECISION WHERE THE Delaware County, Case No. 10 CA F 11 0091 4
COURT FAILED TO INTERVIEW THE MINOR CHILDREN AFTER A PROPER AND
TIMELY REQUEST HAD BEEN MADE.
{¶13} “III. THE LOWER COURT ERRED IN OVERRULING [APPELLANT’S]
COURT DISREGARDED ITS OWN FEBRUARY 5, 2010 DECISION THAT A CHANGE
IN CIRCUMSTANCES IS NOT A CONDITION PRECEDENT TO INTERVIEWING A
MINOR CHILD.
{¶14} “IV. THE LOWER COURT ERRED IN OVERRULING [APPELLANT’S]
COURT FAILED TO APPOINT AN ADVOCATE OR OTHERWISE MAKE
APPROPRIATE ORDERS FOR THE MINOR CHILDREN WHEN THE WISHES OF
THE CHILDREN CONFLICTED WITH THE RECOMMENDATION OF THE
GUARDIAN AD LITEM.
{¶15} “V. THE LOWER COURT ERRED IN OVERRULING [APPELLANT’S]
COURT FAILED TO CONSIDER THE REPORT AND RECOMMENDATION OF THE
{¶16} “VI. THE LOWER COURT ERRED IN OVERRULING [APPELLANT’S]
COURT WHERE THE COURT FAILED TO ALLOW [APPELLANT] TO SUBMIT
SPECIFIED PORTIONS OF THE GUARDIAN AD LITEM’S REPORT.
{¶17} “VII. THE LOWER COURT ERRED IN OVERRULING [APPELLANT’S]
OBJECTIONS AND AFFIRMING THE MAGISTRATE’S DECISION WHEN THE Delaware County, Case No. 10 CA F 11 0091 5
COURT RULED THAT THE GUARDIAN AD LITEM WOULD TESTIFY AND GIVE HIS
REPORT AFTER THE PRESENTATION OF ALL EVIDENCE, BUT THE COURT
THEN TERMINATED THE HEARING ON ORAL MOTION WITHOUT EVER HEARING
FROM THE GUARDIAN AD LITEM OR RECEIVING HIS REPORT.
{¶18} “VIII. THE LOWER COURT ERRED IN OVERRULING [APPELLANT’S]
LOWER COURT ERRONEOUSLY CREATED A BIFURCATED STANDARD
HOLDING A CHANGE IN CIRCUMSTANCES MUST BE SHOWN IN ORDER FOR
[APPELLANT’S] MOTION TO BE HEARD WHERE NO SUCH SHOWING IS
REQUIRED BEFORE TERMINATING A SHARED PARENTING PLAN.
{¶19} “IX. THE LOWER COURT ERRED IN OVERRULING [APPELLANT’S]
OBJECTIONS AND AFFIRMING THE MAGISTRATE’S DECISION BASED ON AN
ALLEGED FAILURE TO DEMONSTRATE A CHANGE IN CIRCUMSTANCES WHEN
SUCH A CHANGE IN CIRCUMSTANCES WAS IN FACT DEMONSTRATED.
{¶20} “X. THE LOWER COURT ERRED IN OVERRULING [APPELLANT’S]
LOWER COURT IMPROPERLY AND PREMATURELY DISMISSED [APPELLANT’S]
CASE WITHOUT INTERVIEWING THE CHILDREN AND WITHOUT HEARING FROM
THE GUARDIAN AD LITEM.
{¶21} “XI. THE TRIAL COURT ERRED IN OVERRULING [APPELLANT’S]
LOWER COURT’S DECISION CONTAINS ERRORS OF LAW, IS AGAINST THE Delaware County, Case No. 10 CA F 11 0091 6
MANIFEST WEIGHT OF THE EVIDENCE, AND CONSTITUTES AN ABUSE OF
DISCRETION.”
I., II.
{¶22} In his First and Second Assignments of Error, appellant contends the trial
court erred in requiring him to demonstrate a change in circumstances before
permitting an in camera interview between the court and the children. We disagree.
{¶23} R.C. 3109.04(B)(1) states as follows: “(B)(1) When making the allocation
of the parental rights and responsibilities for the care of the children under this section
in an original proceeding or in any proceeding for modification of a prior order of the
court making the allocation, the court shall take into account that which would be in the
best interest of the children. In determining the child's best interest for purposes of
making its allocation of the parental rights and responsibilities for the care of the child
and for purposes of resolving any issues related to the making of that allocation, the
court, in its discretion, may and, upon the request of either party, shall interview in
chambers any or all of the involved children regarding their wishes and concerns with
respect to the allocation.” (Emphases added).
{¶24} Furthermore, R.C. 3109.04(E)(1)(a) states in pertinent part: “The court
shall not modify a prior decree allocating parental rights and responsibilities for the
care of children unless it finds, based on facts that have arisen since the prior decree
or that were unknown to the court at the time of the prior decree, that a change has
occurred in the circumstances of the child, the child's residential parent, or either of the
parents subject to a shared parenting decree, and that the modification is necessary to
serve the best interest of the child. ***.” Delaware County, Case No. 10 CA F 11 0091 7
{¶25} In addition, R.C. 3109.04(E)(2)(c) states in pertinent part: “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. ***.”
{¶26} In Oliver v. Arras, Tuscarawas App.No. 2001 AP 11 0105, 2002-Ohio-
1590, we held that the “best interest” language of R.C. 3109.04(E)(2)(c) is subordinate
to the general “change of circumstances” provision of R.C. 3109.04(E)(1)(a). Recently,
in Brocklehurst v. Duncan, Muskingum App.No. CT10-0026, 2010-Ohio-5978, we
upheld our holding in Oliver, indicating that change of circumstances is a “threshold
question” in deciding a shared parenting termination issue. Id. at ¶ 19. Also, in Cossin
v. Holley, Morrow App.No. 2006CA0014, 2007-Ohio-5258, we recognized: “The initial
determination to be made by the trial court [regarding a motion to terminate shared
parenting] is whether there has been a change of circumstances of the child or the
residential parent since the prior court order. *** This finding should be made prior to
weighing the child's best interest.” Id. at ¶ 34, citing Wyss v. Wyss (1982), 3 Ohio
App.3d 412, 414, 445 N.E.2d 1153 and Green v. Green (Mar. 31, 1998), Lake App. No.
96-L-145. See, also, Handy v. Handy, Tuscarawas App.No. 2006AP110064, 2007-
Ohio-4423, ¶ 16-¶ 17.
{¶27} In light of the foregoing precedent, we hold appellant’s claim that the trial
court improperly required a demonstration of a change in circumstances before
permitting an in camera interview is without merit. Appellant’s First and Second
Assignments of Error are therefore overruled. Delaware County, Case No. 10 CA F 11 0091 8
III.
{¶28} In his Third Assignment of Error, appellant contends the trial court erred in
declining to permit an in camera interview between the court and the children, despite
having issued a preliminary ruling that a change in circumstances would not be a
prerequisite to such an interview. We disagree.
{¶29} Appellant points out the following preliminary ruling by the magistrate,
which was set forth in the magistrate’s pre-trial order of February 5, 2010: “A judicial
determination of the existence of a change of circumstances is not a condition
precedent to the granting of an in camera interview as required by O.R.C. section
3109.04(B)(1).” Id. at 1.
{¶30} We are unpersuaded that this initial determination by the magistrate
conflicts with his ultimate decision not to conduct an in camera interview with the
children. The magistrate’s wording simply recognizes that a court may conduct an in
camera interview even if the “change of circumstances” question is preliminarily
unsettled in a given case. However, as we have previously herein set forth, R.C.
3109.04 does not mandate such an interview where there has been no demonstration
of a change of circumstances and the matter of best interests will not be reached.
{¶31} Appellant’s Third Assignment of Error is overruled.
V., VI., VII.
{¶32} In his Fifth, Sixth, and Seventh Assignments of Error, which we will jointly
address out of sequence, appellant maintains the trial court erred in dismissing
appellant’s shared parenting termination motion (pursuant to Civ.R. 41(B)(2)) without Delaware County, Case No. 10 CA F 11 0091 9
hearing from the guardian ad litem or receiving his report into evidence, and without
allowing appellant to submit portions of said report. We disagree.
{¶33} R.C. 3109.04(F)(2) states in pertinent part as follows:
{¶34} “In determining whether shared parenting is in the best interest of the
children, the court shall consider all relevant factors, including, but not limited to, the
factors enumerated in division (F)(1) of this section, the factors enumerated in section
3119.23 of the Revised Code, and all of the following factors *** (e) The
recommendation of the guardian ad litem of the child, if the child has a guardian ad
litem.”
{¶35} In In re Cordell (Apr. 2, 1992), Cuyahoga App. Nos. 60049 and 60050,
1992 WL 67629, the Eighth District Court of Appeals concluded that any claim of error
arising from a guardian ad litem's failure to file a written report is waived when the
argument is not raised in the trial court. In the case sub judice, appellant’s trial counsel
rested his case without requesting admission of the guardian ad litem’s report or calling
him as a witness. See Tr. at 145. The magistrate subsequently told appellant’s trial
counsel that if the report was to be entered as evidence, it would have to be entered in
toto and without redactions. Again, appellant’s trial counsel stated he would not agree
to such an admission without the opportunity to cross-examine the guardian ad litem.
Tr. at 151-152. This was perhaps a strategic decision by counsel, as the guardian ad
litem’s report, which was proffered for the record, ultimately contains a
recommendation that the status quo should remain under the shared parenting plan,
with the exception of slight parenting time changes during the school year and vacation
times. Delaware County, Case No. 10 CA F 11 0091 10
{¶36} Furthermore, Ohio's statutory scheme for modifying parental rights and
responsibilities requires a two-part determination: whether a change in circumstances
has occurred and, if so, whether a modification is in the best interest of the child. See
Neighbor v. Jones, Summit App.No. 24032, 2008-Ohio-3637, ¶ 6. Because the trial
court went no further than the change of circumstances threshold in this instance, we
hold the court did not commit reversible error in its handling of the guardian ad litem’s
participation under the facts and circumstances of this case.
{¶37} Accordingly, appellant's Fifth, Sixth, and Seventh Assignments of Error are
overruled.
IV.
{¶38} In his Fourth Assignment of Error, appellant maintains the trial court erred
by failing to take steps on behalf of the children where the guardian ad litem’s
recommendations purportedly conflicted with the children’s wishes.1 We disagree.
{¶39} Appellant directs us to Superintendence Rule 48(D)(8), which states:
“When a guardian ad litem determines that a conflict exists between the child's best
interest and the child's wishes, the guardian ad litem shall, at the earliest practical time,
request in writing that the court promptly resolve the conflict by entering appropriate
orders.”
{¶40} Because Sup.R. 48 is a general guideline that does not have the force of
statutory law, an appellant does not have any substantive right to enforce it. In re E.W.,
Washington App.Nos. 10CA18, 10CA19, 10CA20. 2011-Ohio-2123, ¶ 15. Moreover,
1 Appellant’s present wife, Sandra, testified that the boys have indicated to her that they wish to reside in appellant’s household. Tr. at 30. Delaware County, Case No. 10 CA F 11 0091 11
the record does not reflect that either appellant or the guardian ad litem reported to the
court this alleged conflict between the children’s best interests and the children’s
wishes. The Ohio Supreme Court has long recognized: “In the great majority of cases,
a complaining party must timely object to the error he feels is being committed, and
must, upon review, demonstrate that he has been prejudiced by its commission.” State
v. Williams (1974), 39 Ohio St.2d 20, 313 N.E.2d 859, at paragraph one of the
syllabus.
{¶41} Accordingly, appellant's Fourth Assignment of Error is overruled.
VIII.
{¶42} In his Eighth Assignment of Error, appellant maintains the trial court erred
in determining that he was required to demonstrate a change in circumstances before
the termination of the parties’ shared parenting plan. We disagree.
{¶43} Appellant essentially challenges the trial court’s reliance on Fisher v.
Hasenjager, 116 Ohio St.3d 53, 876 N.E.2d 546, 2007-Ohio-5589, wherein the Ohio
Supreme Court held, at the syllabus: “A modification of the designation of residential
parent and legal custodian of a child requires a determination that a ‘change in
circumstances’ has occurred, as well as a finding that the modification is in the best
interest of the child.”
{¶44} Appellant maintains that Fisher is inapplicable to the case sub judice, as
appellant herein was seeking a “termination” of shared parenting, as opposed to a
“modification.” Nonetheless, as per our analysis of appellant’s First and Second
assigned errors, supra, we find no reversible error in the trial court’s interpretation of
the requirement of change in circumstances. Delaware County, Case No. 10 CA F 11 0091 12
{¶45} Accordingly, appellant's Eighth Assignment of Error is overruled.
IX.
{¶46} In his Ninth Assignment of Error, appellant contends the trial court erred in
deciding, on the merits, that he had failed to demonstrate a change in circumstances
for purposes of shared parenting. We disagree.
{¶47} Our general standard of review in assessing the disposition of child-
custody matters is that of abuse of discretion. Miller v. Miller (1988), 37 Ohio St.3d 71,
73-74. Furthermore, as an appellate court reviewing evidence in custody matters, we
do not function as fact finders; we neither weigh the evidence nor judge the credibility
of witnesses. Our role is to determine whether there is relevant, competent and
credible evidence upon which the fact finder could base his or her judgment. See
Dinger v. Dinger, Stark App.No. 2001 CA00039, 2001-Ohio-1386. In proceedings
involving the custody and welfare of children, the power of the trial court to exercise
discretion is peculiarly important. See Thompson v. Thompson (1987), 31 Ohio App.3d
254, 258, 511 N.E.2d 412, citing Trickey v. Trickey (1952), 158 Ohio St. 9, 13, 106
N.E.2d 772.
{¶48} Civ. R. 41(B)(2) provides, in pertinent part:
{¶49} “After the plaintiff, in an action tried by the court without a jury, has
completed the presentation of the plaintiff's evidence, the defendant, * * * may move for
a dismissal on the grounds that upon the facts and the law, the plaintiff has shown no
right to relief.”
{¶50} Civ.R. 41(B)(2) thus permits a defendant in a nonjury action to move for
dismissal of the action after the close of the plaintiff's case. Civ.R. 41(B)(2) specifically Delaware County, Case No. 10 CA F 11 0091 13
provides the trial court may consider both the law and the facts. Therefore, under the
rule, the trial judge, as the trier of fact, does not view the evidence in a light most
favorable to the plaintiff, but instead actually determines whether the plaintiff has
proven the necessary facts by the appropriate evidentiary standard. See L.W.
Shoemaker, M.D., Inc. v. Connor (1992), 81 Ohio App.3d 748, 612 N.E.2d 369; Harris
v. Cincinnati (1992), 79 Ohio App.3d 163, 607 N.E.2d 15. Where the plaintiff's evidence
is insufficient to sustain plaintiff's burden in the matter, the trial court may dismiss the
case. Levine v. Beckman (1988), 48 Ohio App.3d 24, 27, 548 N.E.2d 267, (citations
and emphasis omitted). A trial court's ruling on a Civ.R. 41(B)(2) motion will be set
aside on appeal only if it is erroneous as a matter of law or against the manifest weight
of the evidence. Ogan v. Ogan (1997), 122 Ohio App.3d 580, 583, 702 N.E.2d 472,
(citation omitted).
{¶51} R.C. 3109.04 does not define “change in circumstances.” Ohio courts
have held that the phrase is intended to denote “an event, occurrence, or situation
which has a material and adverse effect upon a child.” Rohrbaugh v. Rohrbaugh
(2000), 136 Ohio App.3d 599, 604-605, 737 N.E.2d 551, citing Wyss, supra, at 416.
{¶52} Appellant has asserted the following summary of developments as the
basis for a finding of change in circumstances: Appellee has been “openly hostile and
belligerent” in front of the boys. Appellant’s Brief at 24. There has been a “marked
deterioration in the parties’ communication and cooperation.” Appellant’s Brief at 25.
Appellee refused to allow the boys to play hockey during the 2007-2008 season
because appellant would have been their coach that year. Appellee did not cooperate
in transporting C.R. and C.R. to hockey games and practices for much of the 2008- Delaware County, Case No. 10 CA F 11 0091 14
2009 season. Appellee has blocked cell phones so that appellant cannot reach the
boys via that means of communication. The boys have matured into their teenage
years and have more understanding of the realities of living with one parent versus the
other. Finally, appellant contends the evidence shows the boys have not had adequate
supervision.
{¶53} However, upon review of the record, we are not inclined to find an abuse
of discretion or substitute our judgment for that of the trial court in its rejection of
appellant's claim of a change in circumstances and the court’s resultant Civ.R. 41(B)(2)
dismissal.
{¶54} Accordingly, appellant's Ninth Assignment of Error is overruled.
X., XI.
{¶55} In his Tenth and Eleventh Assignments of Error, appellant contends the
trial court erred in dismissing appellant’s shared parenting termination motion without
hearing from the guardian ad litem and without interviewing the children, and that the
trial court’s decision was erroneous, against the manifest weight of the evidence, and
an abuse of discretion.
{¶56} We find the remaining arguments set forth in appellant’s brief at this
juncture have been previously addressed herein by this Court, particularly in our
redress of assigned errors Five, Six, Seven, and Nine.
{¶57} Accordingly, appellant's Tenth and Eleventh Assignments of Error are
overruled. Delaware County, Case No. 10 CA F 11 0091 15
{¶58} For the reasons stated in the foregoing opinion, the judgment of the Court
of Common Pleas, Domestic Relations Division, Delaware County, Ohio, is affirmed.
By: Wise, P. J.
Edwards, J., and
Delaney, J., concur.
___________________________________
JUDGES JWW/d 0613 Delaware County, Case No. 10 CA F 11 0091 16
IN THE COURT OF APPEALS FOR DELAWARE COUNTY, OHIO FIFTH APPELLATE DISTRICT
SCOTT RICE : : Plaintiff-Appellant : : -vs- : JUDGMENT ENTRY : FAITH RICE : : Defendant-Appellee : Case No. 10 CA F 11 0091
For the reasons stated in our accompanying Memorandum-Opinion, the
judgment of the Court of Common Pleas, Domestic Relations Division, Delaware
County, Ohio, is affirmed.
Costs assessed to appellant.
JUDGES