Steele v. Steele

2012 Ohio 291

Opinion

[Cite as Steele v. Steele, 2012-Ohio-291.]

IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT MONTGOMERY COUNTY

CHARLES R. STEELE : : Appellate Case No. 24702 Plaintiff-Appellant : : Trial Court Case No. 05-DR-864 v. : : BOBBIE JO STEELE, nka MALOCU : (Civil Appeal from Common Pleas : (Court, Domestic Relations) Defendant-Appellee : : ...........

OPINION

Rendered on the 27th day of January, 2012.

...........

H. STEVEN HOBBS, Atty. Reg. #0018453, The Hobbs Law Office, 119 North Commerce Street, Post Office Box 489, Lewisburg, Ohio 45338 Attorney for Plaintiff-Appellant

BRIAN A. SOMMERS, Atty. Reg. #0072821, 130 West Second Street, Suite 2100, Dayton, Ohio 45402 Attorney for Defendant-Appellee

.............

FAIN, J.

{¶ 1} Plaintiff-appellant Charles R. Steele, the divorced father of M., born in April

2004, appeals from an order of the trial court terminating a shared parenting arrangement and

designating defendant-appellee Bobbi Malocu, M.’s mother, as the residential parent and

custodian. Steele acknowledges that it was appropriate to terminate the shared parenting 2

arrangement, in view of difficulties that arose in the co-operation of the parents, but contends

that the trial court abused its discretion by failing to designate him to be the residential parent

and custodian.

{¶ 2} From our review of the record, including the transcript of the trial and exhibits

admitted therein, we conclude that the evidence in the record supports the trial court’s finding

that Malocu’s designation as the residential parent and custodian was in M.’s best interests.

Accordingly, the order of the trial court from which this appeal is taken is Affirmed.

I. The Course of Proceedings in the Trial Court.

{¶ 3} M., the daughter of the parties, who were married, was born in April 2004.

Malocu had two daughters by a previous marriage. Steele was employed by the

Transportation Safety Administration, and worked the 4:00 a.m. to 12:30 p.m. shift at the

Dayton Airport. Malocu had been employed by the TSA, but at the time of M.’s birth, and

thereafter, was suffering from a back injury, and did not work. At the time of trial, she had a

Social Security disability claim that had been denied administratively, and was on appeal to

the United States District Court for the Southern District of Ohio. She was a stay-at-home

mom. She testified that during her marriage to Steele, he agreed to her being the

stay-at-home parent.

{¶ 4} The parties were divorced in 2007. They entered into a shared parenting

arrangement with Malocu’s residence being designated M.’s residence for school purposes.

{¶ 5} Malocu married her current husband, Frank Malocu, and moved into his

Vandalia residence in 2008. In 2009, after disagreements arose concerning the manner in

which shared parenting was being handled, both Steele and Malocu filed motions to terminate 3

the shared parenting arrangement. Each wished to be designated M.’s residential parent and

custodian.

{¶ 6} Following a hearing at which Steele and Malocu were the sole witnesses, a

magistrate decided that the shared parenting arrangement should be terminated, with Malocu

being designated M.’s residential parent and custodian. Steele objected. On May 26, 2011,

the trial court entered an order overruling Steele’s objections, designating Malocu to be M.’s

residential parent and custodian, and making appropriate provision for parenting time and

child support. From this order, Steele appeals.

II. The Trial Court Did Not Abuse its Discretion.

{¶ 7} Steele’s sole assignment of error is as follows:

{¶ 8} “THE TRIAL COURT ERRED BY DESIGNATING THE APPELLEE THE

MINOR CHILD’S RESIDENTIAL PARENT.”

{¶ 9} Steele does not challenge the trial court’s decision to terminate the shared

parenting arrangement, which both parties requested. His sole objection to the trial court’s

order is that it should have designated him to be the residential parent and custodian. Steele

acknowledges that our review of this issue is governed by the abuse-of-discretion standard of

review. He frames the issue: “Thus, the seminal issue before this Court is whether the

evidence in the record supports the Trial Court’s finding designating the Appellee residential

parent was in the child’s best interest.”

{¶ 10} Steele cites the factors set forth in R.C. 3109.04(F)(1), which the trial court has

directed a trial court to consider in determining the best interest of a child with respect to the

allocation of parental rights and responsibilities. 4

{¶ 11} Steele recognizes that R.C. 3109.04(F)(1)(b) – “the wishes and concerns of the

child, as expressed to the court” – does not literally apply, because the trial court did not

interview M. in chambers, a predicate for the application of this factor. But he argues that the

trial court failed to consider that M. had told the guardian ad litem that “she wanted to spend

more time with [Steele].” This seems to refer to the following statement in the guardian ad

litem’s report: “She consistently indicated in both sessions that she still wants to be with both

parents ‘the same’ and acknowledged her desire to continue to spend more time with father.

She also volunteered that she likes the way that things have been recently, getting to spend

more time with father, but she feels as though mother doesn’t want her to go to father’s as

often.”

{¶ 12} M.’s statement cited in the guardian ad litem’s report appears to be more of an

expression of a desire to maintain the status quo, rather than an expression of M.’s desire to

enlarge her time with her father. It is somewhat difficult to evaluate the order of visitation set

forth in the trial court’s order from which this appeal is taken, in relation to the status quo

ante, since the parties’ testimony at trial indicated that the parenting times were,

commendably, frequently changed by agreement of the parties to accommodate one another’s

schedules, and the child’s schedule, without having to go to court to change the parenting

times set forth in the order. But from our review of the testimony, it appears that the actual

parenting times followed by the parties before the order of May 26, 2011, from which this

appeal is taken, are at least roughly the same as, if not exactly the same as, the parenting times

prescribed in the order. It appears from the record, then, that M. got her wish, and that the

time she will spend with her father, Steele, has not been diminished by the May 26, 2011 5

order.

{¶ 13} Steele notes that his relationship with his daughter is close. But he

acknowledges that her relationships with Malocu and her step-father, Frank, are also good.

He argues that his daughter is well-adjusted to his home. The evidence reflects that she is

also well-adjusted to the home her mother shares with her step-father.

{¶ 14} M. suffers from a bowel problem that, at the time of trial, had not been

definitively diagnosed. The treating physicians seemed to believe that it might be attributable

to a birth defect, and that with appropriate care, M. might well grow out of it.

{¶ 15} Much of Steele’s argument concerns the fact that Malocu has taken their

daughter to see a chiropractor. He objects to her having done so without prior notice to him.

Malocu had benefitted from treatment by the chiropractor, and thought that their daughter

might, also. She scheduled M. for an initial examination, but not for a treatment, on the same

day that she, Malocu, was going in for a treatment. It appears that she may not have given

Steele prior notice of the initial visit, although she did inform him by e-mail of treatments that

the chiropractor wanted to give M. before a scheduled biopsy of her colon. She also informed

him that M.’s pediatrician and bowel specialist had said she could be treated by the

chiropractor. In fact, the evidence admitted at the trial includes an e-mail from Steele to

Malocu, with respect to the chiropractor treatments that: “Since this visit is not an emergency

you need to schedule both visits after 1 pm. This way I can attend as according to our

agreement.” This e-mail is dated the day after M.’s initial visit to the chiropractor.

{¶ 16} Steele argues that: “Not only did [Malocu] keep [Steele] in the dark concerning

this ‘alternative’ treatment, she kept the child’s medical doctors in the dark[,] too.” The 6

evidence in the record would permit the trial court to find that Malocu did not keep either

Steele or the physicians treating M. “in the dark” concerning the fact that Malocu was taking

M. to a chiropractor for treatments.

{¶ 17} M. had a biopsy of her colon. She remained in the hospital overnight. Both

Malocu and Steele stayed with her overnight. The biopsy was on a Wednesday. The next

day, at 9:18 p.m., Malocu sent Steele an e-mail that included the following advisory: “[S]ince

the surgeon told us not to send [M.] to school tomorrow [Friday], [I] will keep her home and

let her rest until you pick her up at 5:30 p.m.” On Friday, Steele showed up at 12:30,

accompanied by a police officer, to pick M. up for his parenting time. Steele was persuaded

to leave M. with her mother and come back at 5:30. When Steele came back at 5:30, Malocu

learned that he intended to take her to a Chick-fil-A fast-food restaurant where there is a play

area for climbing and sliding. Malocu asked him instead to take M. to his home, where she

could lie down and rest. Malocu reminded Steele that the discharge instructions had included

a high-fiber diet. Steele took M. to the Chick-fil-A.

{¶ 18} Steele argues that Malocu should have allowed him to pick M. up at 12:30 p.m.

on the second day after her biopsy, since, as the result of her surgical procedure, which

involved stitching up her colon, she did not have school that Friday. It was their agreement

that on Fridays when M. did not have school, Steele could pick her up at 12:30 p.m. instead of

5:30 p.m., the regular time. Steele cites Malocu’s refusal to have allowed him to pick M. up

at 12:30 p.m. in support of his argument that Malocu interferes with his parenting time. On

the evidence in the record, we find Malocu’s actions on that occasion to have been more

indicative of a concern for M.’s welfare than Steele’s. The evidence in the record 7

demonstrates that Malocu has been sensitive, reasonable, and accommodating to Steele’s need

for parenting time.

{¶ 19} Finally, Steele argues that: “The undisputed evidence is [Malocu] is late to

exchanges 85% of the time.” This is based upon his testimony that Malocu would bring M.

to the airport, where Steele works, fifteen to twenty minutes late “on a regular basis,” which

he then estimated as being 80 to 85% of the time. As Malocu notes in her brief, until an

agreed order was filed in January, 2010, Malocu provided all of the transportation of M. back

and forth between the parties. She undoubtedly was late some of the time. But Steele’s

testimony that she was fifteen to twenty minutes late 80 to 85% of the time was not

undisputed. Malocu testified on that subject as follows:

{¶ 20} Q. Okay. Now, he complains on direct and [sic] that you’re late constantly.

{¶ 21} No.

{¶ 22} Q. Do you recall that?

{¶ 23} Yes.

{¶ 24} Q. Were you late?

{¶ 25} No.

{¶ 26} Q. You call him if you’re running a couple minutes late?

{¶ 27} Yes.

{¶ 28} We conclude that the trial court was not required to accept as true Steele’s

testimony that Malocu was fifteen to twenty minutes late 80 to 85% of the time.

{¶ 29} We have reviewed the record, including the entire transcript of the trial. We

find evidence therein that although their parenting styles may differ, both parties are loving, 8

caring and responsible parents. Either would make a perfectly acceptable residential parent

and custodian. The guardian ad litem submitted both an assessment and a subsequent update,

after extensive interviews of the parties, M., the step-father, family sessions, telephone

contacts with one of Steele’s proposed childcare providers, the father of another proposed

childcare provider, Malocu’s mother and one of Malocu’s other daughters, the principal at

M.’s school, materials received from both parties, and medical records received from the

digestive specialist treating M. The guardian ad litem recommended that Malocu be the

residential parent and guardian.

{¶ 30} We conclude that the evidence in the record supports the trial court’s finding

that it is in M.’s best interest for Malocu to be her residential parent and custodian, and that

the trial court’s order to that effect is not an abuse of discretion. Steele’s sole assignment of

error is overruled.

III. Conclusion.

{¶ 31} Steele’s sole assignment of error having been overruled, the order of the trial

court from which this appeal is taken is Affirmed.

FROELICH and HALL, JJ., concur.

Copies mailed to:

H. Steven Hobbs Brian A. Sommers Hon. Denise L. Cross