[Cite as S.S. v. F.M., 2020-Ohio-3827.]
IN THE COURT OF APPEALS OF OHIO SIXTH APPELLATE DISTRICT LUCAS COUNTY
S.S. Court of Appeals No. L-19-1216
Appellant Trial Court No. JC 16254109
v.
F.M. DECISION AND JUDGMENT
Appellee Decided: July 24, 2020
*****
Angelina Wagner, for appellant.
Rebecca E. Shope, for appellee.
ZMUDA, P.J.
I. Introduction
{¶ 1} Appellant, S.S., appeals the judgment of the Lucas County Court of
Common Pleas, Juvenile Division, vacating the magistrate’s decision issued in this child
custody matter after finding well-taken the objections to the magistrate’s decision that
were filed by appellee, F.M. Finding no error in the trial court’s determination that a change of circumstances has not occurred in this case, and thus a modification of the
preexisting custody arrangement is unwarranted, we affirm.
A. Facts and Procedural Background
{¶ 2} This matter originated on March 14, 2016, when appellant filed his
complaint seeking the allocation of parental rights and responsibilities over his son, C.S.
After the parties reached an agreement as to the issues raised in appellant’s complaint, the
court issued its November 15, 2016 judgment entry approving the parties’ agreement and
setting forth the parental rights and responsibilities embodied therein. Under the court’s
entry, appellee remained C.S.’s primary residential parent and legal custodian, and
appellant was awarded parenting time according to the Court Schedule that was attached
to the court’s entry as an exhibit.
{¶ 3} On May 25, 2018, appellant filed a motion to modify the court’s prior award
of custody of his son, C.S. In his motion, appellant sought custody of C.S., based upon a
substantial change in circumstances since the court issued its November 15, 2016
judgment entry, namely that appellee was homeless, unemployed, abusing drugs, and
neglecting C.S. Four days later, on May 29, 2018, appellee also filed a motion to modify
the court’s prior custody award. In her motion, appellee asserted that appellant had
“taken custody of the child, * * * and will not let me see or talk to him.”
{¶ 4} After the parties filed their respective motions, the juvenile court set the
matter for an emergency hearing. On May 30, 2018, the hearing was conducted,
2. culminating in the court’s order continuing the matter for an expedited hearing and
naming appellant the residential parent with visitation of C.S. awarded to appellee.
{¶ 5} On June 4, 2018, the parties appeared before the juvenile court for an
expedited hearing on their motions. At the hearing, the parties agreed as to interim
orders, and the court found that C.S.’s best interests were served by an award of
temporary custody to appellant with supervised visitation awarded to appellee. At a
subsequent hearing on August 30, 2018, the court modified its order, granting appellee
unsupervised parenting time.
{¶ 6} On January 10, 2019, appellee filed a motion for contempt, in which she
asserted that appellant had violated the court’s orders concerning her visitation rights
with C.S. by denying her access to C.S. “on multiple dates in December 2018 and
January 2019 during [her] scheduled parenting time and during the minor child’s winter
break.” In order to make up for her lost visitation time due to appellant’s alleged
interference, appellee requested additional visitation time with C.S. A decision on
appellee’s motion for contempt is not discernable from the record.
{¶ 7} On April 22, 2019, this matter proceeded to trial before a magistrate. At the
trial, appellant testified that the concerns that prompted his motion were resolved “in
moderation.” Appellant went on to voice concerns regarding appellee. Specifically,
appellant testified that, to his knowledge, appellee was unemployed and thus would be
unable to support C.S. Appellant acknowledged that appellee could provide safe housing
for C.S. However, appellant took issue with the school that C.S. would attend were he to
3. live with appellee, Ottawa River Elementary, because he believes C.S.’s cousins, who
also attend Ottawa River Elementary, would be a distraction to C.S.
{¶ 8} As to the custody arrangement set forth in the juvenile court’s November 15,
2016 entry, appellant testified that C.S. was not doing well with splitting his time
between appellant and appellee throughout the week. According to appellant, C.S. “gets
so worked up, and it’s so hard to get him unworked up” when transferring him from one
parent to another parent. Appellant went on to explain that C.S. usually calms down as
soon as appellee walks away from the exchange.
{¶ 9} On cross-examination, appellant explained that his indication of appellee’s
alleged homelessness was due to the fact that he was unaware of appellee’s living
arrangements at the time he filed his motion. Appellant acknowledged that appellee was
currently living with her parents at the time of trial, and thus was not homeless.
{¶ 10} In response to appellant’s claim that appellee was abusing drugs, appellee’s
counsel asked appellant about the results of drug screens that he submitted during the
pendency of these proceedings. Appellant admitted that he tested positive for marijuana.
Further, appellant acknowledged that he had never observed appellee using drugs in front
of C.S.
{¶ 11} After appellant finished testifying, he called his wife, K.S., to the stand.
During her testimony, K.S. stated her belief that appellant should be granted custody of
C.S. K.S.’s position was based upon the fact that appellant was employed, had his own
home, and lived in a school district that was “more beneficial to [C.S.] at this point.” On
4. cross-examination, K.S. acknowledged that she was not involved with C.S.’s prior
schooling and therefore could not fairly compare C.S.’s performance in appellee’s school
district to his performance in appellant’s school district.
{¶ 12} Following K.S.’s testimony, appellant called N.P. to the stand. N.P. is the
father of appellee’s children, with the exception of C.S. Like appellant, N.P. filed a
motion seeking an award of custody of his children in May 2018. Ultimately, appellee
and N.P. reached an agreement that left appellee’s custody of the children intact and
increased N.P.’s visitation time, thereby resolving the issues that gave rise to N.P.’s filing
of his motion. Despite the agreement, N.P. testified that he was not permitted to see his
children due to a molestation complaint that was filed with children’s services.
{¶ 13} For his fourth and final witness, appellant called his mother, K.H. K.H.
testified that there was a one-year period of time during which appellee did not permit her
to see C.S., having revoked such permission after K.H. took C.S. to see appellant prior to
appellant undergoing surgery. According to K.H., she helped appellant file his request
for visitation so that she could continue to see C.S.
{¶ 14} At the conclusion of K.H.’s testimony, appellant rested. Thereafter,
appellee took the stand. Appellee testified as to the allegations raised by appellant
concerning her alleged homelessness, drug abuse, and lack of employment.
{¶ 15} As to housing, appellee insisted that she has never been homeless, and she
stated that she and C.S. currently reside at her parents’ home. In terms of the schooling
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[Cite as S.S. v. F.M., 2020-Ohio-3827.]
IN THE COURT OF APPEALS OF OHIO SIXTH APPELLATE DISTRICT LUCAS COUNTY
S.S. Court of Appeals No. L-19-1216
Appellant Trial Court No. JC 16254109
v.
F.M. DECISION AND JUDGMENT
Appellee Decided: July 24, 2020
*****
Angelina Wagner, for appellant.
Rebecca E. Shope, for appellee.
ZMUDA, P.J.
I. Introduction
{¶ 1} Appellant, S.S., appeals the judgment of the Lucas County Court of
Common Pleas, Juvenile Division, vacating the magistrate’s decision issued in this child
custody matter after finding well-taken the objections to the magistrate’s decision that
were filed by appellee, F.M. Finding no error in the trial court’s determination that a change of circumstances has not occurred in this case, and thus a modification of the
preexisting custody arrangement is unwarranted, we affirm.
A. Facts and Procedural Background
{¶ 2} This matter originated on March 14, 2016, when appellant filed his
complaint seeking the allocation of parental rights and responsibilities over his son, C.S.
After the parties reached an agreement as to the issues raised in appellant’s complaint, the
court issued its November 15, 2016 judgment entry approving the parties’ agreement and
setting forth the parental rights and responsibilities embodied therein. Under the court’s
entry, appellee remained C.S.’s primary residential parent and legal custodian, and
appellant was awarded parenting time according to the Court Schedule that was attached
to the court’s entry as an exhibit.
{¶ 3} On May 25, 2018, appellant filed a motion to modify the court’s prior award
of custody of his son, C.S. In his motion, appellant sought custody of C.S., based upon a
substantial change in circumstances since the court issued its November 15, 2016
judgment entry, namely that appellee was homeless, unemployed, abusing drugs, and
neglecting C.S. Four days later, on May 29, 2018, appellee also filed a motion to modify
the court’s prior custody award. In her motion, appellee asserted that appellant had
“taken custody of the child, * * * and will not let me see or talk to him.”
{¶ 4} After the parties filed their respective motions, the juvenile court set the
matter for an emergency hearing. On May 30, 2018, the hearing was conducted,
2. culminating in the court’s order continuing the matter for an expedited hearing and
naming appellant the residential parent with visitation of C.S. awarded to appellee.
{¶ 5} On June 4, 2018, the parties appeared before the juvenile court for an
expedited hearing on their motions. At the hearing, the parties agreed as to interim
orders, and the court found that C.S.’s best interests were served by an award of
temporary custody to appellant with supervised visitation awarded to appellee. At a
subsequent hearing on August 30, 2018, the court modified its order, granting appellee
unsupervised parenting time.
{¶ 6} On January 10, 2019, appellee filed a motion for contempt, in which she
asserted that appellant had violated the court’s orders concerning her visitation rights
with C.S. by denying her access to C.S. “on multiple dates in December 2018 and
January 2019 during [her] scheduled parenting time and during the minor child’s winter
break.” In order to make up for her lost visitation time due to appellant’s alleged
interference, appellee requested additional visitation time with C.S. A decision on
appellee’s motion for contempt is not discernable from the record.
{¶ 7} On April 22, 2019, this matter proceeded to trial before a magistrate. At the
trial, appellant testified that the concerns that prompted his motion were resolved “in
moderation.” Appellant went on to voice concerns regarding appellee. Specifically,
appellant testified that, to his knowledge, appellee was unemployed and thus would be
unable to support C.S. Appellant acknowledged that appellee could provide safe housing
for C.S. However, appellant took issue with the school that C.S. would attend were he to
3. live with appellee, Ottawa River Elementary, because he believes C.S.’s cousins, who
also attend Ottawa River Elementary, would be a distraction to C.S.
{¶ 8} As to the custody arrangement set forth in the juvenile court’s November 15,
2016 entry, appellant testified that C.S. was not doing well with splitting his time
between appellant and appellee throughout the week. According to appellant, C.S. “gets
so worked up, and it’s so hard to get him unworked up” when transferring him from one
parent to another parent. Appellant went on to explain that C.S. usually calms down as
soon as appellee walks away from the exchange.
{¶ 9} On cross-examination, appellant explained that his indication of appellee’s
alleged homelessness was due to the fact that he was unaware of appellee’s living
arrangements at the time he filed his motion. Appellant acknowledged that appellee was
currently living with her parents at the time of trial, and thus was not homeless.
{¶ 10} In response to appellant’s claim that appellee was abusing drugs, appellee’s
counsel asked appellant about the results of drug screens that he submitted during the
pendency of these proceedings. Appellant admitted that he tested positive for marijuana.
Further, appellant acknowledged that he had never observed appellee using drugs in front
of C.S.
{¶ 11} After appellant finished testifying, he called his wife, K.S., to the stand.
During her testimony, K.S. stated her belief that appellant should be granted custody of
C.S. K.S.’s position was based upon the fact that appellant was employed, had his own
home, and lived in a school district that was “more beneficial to [C.S.] at this point.” On
4. cross-examination, K.S. acknowledged that she was not involved with C.S.’s prior
schooling and therefore could not fairly compare C.S.’s performance in appellee’s school
district to his performance in appellant’s school district.
{¶ 12} Following K.S.’s testimony, appellant called N.P. to the stand. N.P. is the
father of appellee’s children, with the exception of C.S. Like appellant, N.P. filed a
motion seeking an award of custody of his children in May 2018. Ultimately, appellee
and N.P. reached an agreement that left appellee’s custody of the children intact and
increased N.P.’s visitation time, thereby resolving the issues that gave rise to N.P.’s filing
of his motion. Despite the agreement, N.P. testified that he was not permitted to see his
children due to a molestation complaint that was filed with children’s services.
{¶ 13} For his fourth and final witness, appellant called his mother, K.H. K.H.
testified that there was a one-year period of time during which appellee did not permit her
to see C.S., having revoked such permission after K.H. took C.S. to see appellant prior to
appellant undergoing surgery. According to K.H., she helped appellant file his request
for visitation so that she could continue to see C.S.
{¶ 14} At the conclusion of K.H.’s testimony, appellant rested. Thereafter,
appellee took the stand. Appellee testified as to the allegations raised by appellant
concerning her alleged homelessness, drug abuse, and lack of employment.
{¶ 15} As to housing, appellee insisted that she has never been homeless, and she
stated that she and C.S. currently reside at her parents’ home. In terms of the schooling
issue appellant raised in his testimony regarding C.S.’s attendance at Ottawa River
5. Elementary, appellee stated that C.S. was “thriving” and C.S.’s teacher reported that
C.S.’s cousins had a positive impact on his educational development.
{¶ 16} Turning to appellant’s allegation of drug abuse, appellee testified that she
has never used drugs in front of C.S. Appellee acknowledged that she submitted two
diluted drug screens during the pendency of this case, but noted that her most recent drug
screen was negative while appellant’s most recent drug screen was positive for
marijuana. Appellee further committed to remaining drug-free moving forward.
{¶ 17} Later on in appellee’s testimony, she admitted that she was presently
unemployed. Nonetheless, appellee stated that her unemployment would not impact her
ability to care for C.S.
{¶ 18} Following appellee’s testimony, C.S.’s guardian ad litem, Michael Bryant,
was called to the stand. In his report submitted to the trial court in this case, Bryant
suggested that the court designate appellee the residential parent and award appellant
parenting time according to the court’s local schedule.
{¶ 19} At trial, Bryant testified as to the concerns raised by appellant in his
motion. Bryant discussed the concerns with appellant, and learned that appellant was
primarily troubled that appellee was not spending as much time with C.S. as she
suggested. Bryant stated that appellant “made it clear that he didn’t think that [appellee]
was a bad mom, that * * * she never did anything * * * to neglect [C.S.] or * * * harm
him or anything like that.” Bryant also testified as to his discussions with C.S., noting
that C.S. “made it clear that he * * * wanted to spend more time with mom. He loves
6. dad, wants to be with dad, * * * but he enjoys being with mom. Mom makes him feel
more comfortable, he’s more comfortable at mom’s house.”
{¶ 20} As her final witness, appellee called her mother, M.M., who corroborated
appellee’s testimony that she has never been homeless. According to M.M., appellee has
been living with her since moving out of N.P.’s home in May 2018. M.M. further stated
that she has never observed appellee using drugs.
{¶ 21} At the conclusion of M.M.’s testimony, the magistrate took the matter
under advisement. Ultimately, the magistrate determined that a change of circumstances
had taken place, justifying the modification of the preexisting custodial arrangement. In
a decision journalized on May 7, 2019, the magistrate named appellant the residential
parent of C.S., and granted appellee visitation “on an alternating week basis.”
{¶ 22} On May 21, 2019, appellee filed objections to the magistrate’s decision,
arguing that the magistrate erred by ignoring the guardian ad litem’s recommendation
that she remain C.S.’s residential parent.
{¶ 23} On September 12, 2019, the juvenile court issued its decision on appellee’s
objections. In its decision, the court found that “the issues giving rise to the instant action
(i.e., [appellant] alleging [appellee] is homeless, unemployed, abuses drugs and neglects
the minor child; and, [appellee] alleging [appellant] is refusing visits with minor child)
now appear to be resolved.” Consequently, the court went on to state that “there has not
been a change of circumstances in the life of the custodian or the minor child that
7. would warrant a modification of custody at this time,” and found appellee’s objections
well-taken. The result of the trial court’s decision was a dismissal of the parties’ motions
to modify the allocation of parental rights and responsibilities, and a reversion “to the
November 15, 2016 Judgement Entry, wherein the parties agreed [appellee] would be
named residential parent and legal custodian.”
{¶ 24} Following the trial court’s decision reversing the magistrate’s decision,
appellant filed his timely notice of appeal.
B. Assignments of Error
{¶ 25} On appeal, appellant assigns the following assignments of error for our
review:
1. The Court’s determination that there was not a change in
circumstances as required under R.C. 3109.04 to support a grant of Legal
Custody to the Father was against the manifest weight of the evidence.
2. The Court’s reversal of the Magistrate’s decision was an abuse of
discretion.
Because appellant’s assignments of error are interrelated, we will address them
simultaneously.
II. Analysis
{¶ 26} In appellant’s assignments of error, he contends that the trial court erred in
reversing the magistrate’s decision and retaining appellee’s status as residential parent of
C.S.
8. {¶ 27} To justify a change of custody pursuant to R.C. 3109.04(E), the court must
find that there has been a change of circumstances for the child, the child’s parent or
parents, and that modification of parental rights and responsibilities is in the child’s best
interests. Davis v. Flickinger, 77 Ohio St.3d 415, 417, 674 N.E.2d 1159 (1997). In
determining whether such a change is sufficient to warrant a custody change, the court
must be afforded wide latitude. Id. at paragraphs one and two of the syllabus.
{¶ 28} “A finding of a change of circumstances should not be disturbed absent an
abuse of discretion.” L.W. v. L.B., 6th Dist. Lucas No. L-09-1309, 2010-Ohio-2796, ¶ 52.
Moreover, we review the juvenile court’s decision reversing the magistrate’s decision for
an abuse of discretion. See In re L.M.L., 11th Dist. Portage No. 2016-P-0069, 2017-
Ohio-7451, ¶ 20, quoting In re Wiley, 11th Dist. Portage No. 2008-P-0062, 2009-Ohio-
290, ¶ 20 (“‘In reviewing a trial court’s decision to adopt or reject a magistrate’s
decision, an appellate court looks for abuse of discretion.’”). An abuse of discretion
connotes that the court’s attitude was arbitrary, unreasonable or unconscionable.
Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983).
{¶ 29} In its September 12, 2019 judgment entry, the trial court found that
appellee had resolved the issues that prompted appellant to seek custody of C.S., namely
that appellee was homeless, unemployed, abusing drugs, and neglecting C.S.
Consequently, the trial court found that there was not a change of circumstances
warranting a change in the custodial arrangement set forth in the court’s November 15,
2016 entry.
9. {¶ 30} Our review of the record in this case supports the trial court’s finding of a
lack of a change of circumstances. Indeed, by the time of trial, appellant acknowledged
that his concerns were mostly resolved. Although appellee was unemployed, she
insisted, and appellant admitted, that she could provide safe housing for C.S. Further,
appellee had recently submitted a clean drug screen and M.M. testified that she had never
observed appellee abusing drugs. Appellant voiced concerns with C.S.’s education, but
there was substantial testimony presented by appellee to establish that C.S. was
progressing well at Ottawa River Elementary. As to appellant’s allegation that appellee
was neglectful in her parenting of C.S., appellant admitted to Bryant that appellee “never
did anything * * * to neglect [C.S.].”
{¶ 31} Given the record before us, we find that the trial court did not abuse its
discretion when it found that appellant failed to establish a change of circumstances that
would justify a modification of custody in this case. Absent a change of circumstances,
the trial court properly reversed the magistrate’s decision modifying the preexisting
custodial arrangement between the parties.
{¶ 32} Accordingly, we find appellant’s assignments of error not well-taken.
III. Conclusion
{¶ 33} For the foregoing reasons, the judgment of the Lucas County Court of
Common Pleas, Juvenile Division, is affirmed. Appellant is ordered to pay the costs of
this appeal pursuant to App.R. 24.
Judgment affirmed.
10. S.S. v. F.M. C.A. No. L-19-1216
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27. See also 6th Dist.Loc.App.R. 4.
Thomas J. Osowik, J. _______________________________ JUDGE Christine E. Mayle, J. _______________________________ Gene A. Zmuda, P.J. JUDGE CONCUR. _______________________________ JUDGE
This decision is subject to further editing by the Supreme Court of Ohio’s Reporter of Decisions. Parties interested in viewing the final reported version are advised to visit the Ohio Supreme Court’s web site at: http://www.supremecourt.ohio.gov/ROD/docs/.
11.