Ford v. Ford

SUPREME COURT CASES

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Ford v. Ford

State: Ohio

Court: Ohio Southern District Court

Docket No: 2012-Ohio-5454

Case Date: 11/26/2012

Plaintiff: Ford

Defendant: Ford

Preview:[Cite as Ford v. Ford, 2012-Ohio-5454.]
COURT OF APPEALS
TUSCARAWAS COUNTY, OHIO
FIFTH APPELLATE DISTRICT
CHRISTINA A. FORD, nka STROPE             JUDGES:
                                          Hon. Patricia A. Delaney, P. J.
Plaintiff-Appellant                       Hon. John W. Wise, J.
                                          Hon. Julie A. Edwards, J.
-vs-
                                          Case No. 2012 AP 03 0025
JAMES J. FORD
Defendant-Appellee                        O P I N I O N
CHARACTER OF PROCEEDING:                  Civil Appeal from the Court of Common
                                          Pleas, Case No.   2002 TC 110530
JUDGMENT:                                 Affirmed
DATE OF JUDGMENT ENTRY:                   November 26, 2012
APPEARANCES:
For Plaintiff-Appellant                   For Defendant-Appellee
RICHARD J. FOX                            JOSEPH I. TRIPODI
122 South Wooster Avenue                  114 East High Street
Strasburg, Ohio   44680                   New Philadelphia, Ohio   44663

Tuscarawas County, Case No. 2012 AP 03 0025                                                  2
Wise, J.
{¶1}   Appellant Christina A. Ford nka Strope appeals the decision of the Court
of Common Pleas, Tuscarawas County.   The relevant facts leading to this appeal are as
follows.
{¶2}   Appellant-mother and appellee-father, the parents of L.F., born in 1998,
were divorced in Tuscarawas County in June 2003. The 2003 divorce decree originally
granted shared parenting as to L.F. However, pursuant to a post-decree judgment entry
filed October  17,  2005, shared parenting was terminated and appellant-mother was
named the residential parent of L.F.
{¶3}   In  2006, appellant married Kenneth Strope. However, on July  7,  2010,
appellant and Strope were divorced.
{¶4}   On December 29, 2010, Appellee James Ford filed a post-decree motion
for reallocation of parental rights and responsibilities, seeking a change of custody of
L.F. The matter proceeded to an evidentiary hearing before a magistrate on October 6,
2011.
{¶5}   On November 14, 2011, the magistrate issued a decision recommending,
inter  alia,  that  appellant-mother  should  maintain  custody  of  L.F.,  with  expanded
companionship time for appellee-father.
{¶6}   On November 22, 2011, appellee filed an objection to the decision of the
magistrate.  On  December  28,  2011,  appellee  filed  a  supplement  to  his  objection.
Appellant filed a response to the objection and supplement on January 9, 2012.
{¶7}   Following a non-oral consideration, the trial court issued a judgment entry
on March 2, 2012 adopting in part and modifying in part the decision of the magistrate.

Tuscarawas County, Case No.   2012 AP 03 0025                                                3
Most importantly, the trial court rejected the magistrate’s decision as to custody of the
child, and ordered that residential parent status and custody be granted to appellee-
father.   On March 23, 2012, modified support orders were issued.
{¶8}   On March 30, 2012, appellant filed a notice of appeal. She herein raises
the following sole Assignment of Error:
{¶9}                                                                                         “I.   THE TRIAL COURT ABUSED ITS DISCRETION BY MODIFYING THE
PRIOR CUSTODY DECREE WHEN THERE WAS INSUFFICIENT EVIDENCE OF A
‘CHANGE   OF   CIRCUMSTANCES’   REQUIRED   BY   STATUTE;   INSUFFICIENT
EVIDENCE THAT THE CHANGE OF CUSTODY WAS NECESSARY TO SERVE THE
BEST INTERESTS OF THE MINOR CHILD; AND INSUFFICIENT EVIDENCE THAT
THE  HARM  LIKELY  TO  BE  CAUSED  BY  A  CHANGE  OF  ENVIRONMENT  WAS
OUTWEIGHED BY THE ADVANTAGES OF THE CHANGE OF ENVIRONMENT TO
THE CHILD. THEREFORE THE FINDINGS OF THE TRIAL COURT WERE AGAINST
THE MANIFEST WEIGHT OF THE EVIDENCE AS THEY WERE NOT SUPPORTED
BY COMPETENT AND CREDIBLE EVIDENCE.”
I.
{¶10}  In her sole Assignment of Error, appellant argues the trial court abused its
discretion in modifying its prior orders as to custody of L.F. We disagree.
Standard of Review
{¶11}  We generally review a trial court's decision allocating parental rights and
responsibilities under a standard of review of abuse of discretion. See Miller v. Miller
(1988), 37 Ohio St.3d 71, 74, 523 N.E.2d 846. An abuse of discretion occurs when the
trial  court's  judgment  is  unreasonable,  arbitrary  or  unconscionable.  Blakemore  v.

Tuscarawas County, Case No.   2012 AP 03 0025                                                     4
Blakemore  (1983),  5  Ohio  St.3d  217,  219,  450  N.E.2d  1140.  Furthermore,  as  an
appellate court, we are not the trier of fact. Lehman v. Lehman, Fairfield App.No. 11 CA
43, 2012-Ohio-2082, ¶ 17 (additional citations omitted).
{¶12}  In the case sub judice, appellant emphasizes that the present custody
issues  were  heard  by  a  magistrate,  whose  recommendation  to  maintain  L.F.  in
appellant’s custody was overruled by the trial court judge, following appellee’s Civ.R. 53
objection, without the trial court taking additional evidence.1 Appellant thus suggests
that greater deference should be afforded to the magistrate under such circumstances.
See Appellant’s Brief at 15. However, we have generally recognized that a trial court
enjoys broad discretion in determining whether to sustain or overrule an objection to a
magistrate's decision. See, e.g., Rader v. Rader, Licking App.No. 07 CA 5, 2007-Ohio-
4288, ¶ 19, citing Remner v. Peshek (Sept. 30, 1999), Mahoning App.No. 97-CA-98,
1999 WL  803441. Moreover, magistrates are arms of their appointing courts,  “which
remain  responsible  to  critically  review  and  verify  the  work  of  the  magistrates  they
appoint.” Quick v. Kwiatkowski  (Aug.  3,  2001), Montgomery App. No.  18620, citing
Normandy Place Associates v. Beyer (1982), 2 Ohio St.3d 102. While the magistrate is
the "initial fact finder and issue resolver,” the trial court remains the "ultimate fact finder
and issue resolver.” See Dayton v. Whiting  (1996),  110 Ohio App.3d  115,  118,  673
1     The trial court noted as follows in regard to the parameters of its review:
“The Court has read the Transcript of 245 pages taken at the hearing held on October
6, 2011. *** The Court has also read the depositions of James J. Ford, Jr., Christina A.
Strope, and Tina Durant filed with the Court on October 4, 2011. The Court listened to
the child interview of May  9,  2011. The Court has also reviewed all of the exhibits
admitted into evidence at the hearing before the Magistrate on October 6, 2011.”
Judgment Entry, March 2, 2012, at 2.

Tuscarawas County, Case No.   2012 AP 03 0025                                                  5
N.E.2d 671 (interpreting former Civ.R. 53 referee function). Thus, we find our essential
role in determining whether there is relevant, competent, and credible evidence upon
which the factfinder could base her judgment (see Tennant v. Martin-Auer, 188 Ohio
App.3d 768, 936 N.E.2d 1013, 2010-Ohio-3489, ¶ 16, citing Cross Truck v. Jeffries
(Feb. 10, 1982), Stark App. No. CA-5758, 1982 WL 2911) is not herein altered simply
because the trial court overruled the magistrate’s custody decision.
Analysis
{¶13}  R.C. 3109.04(E)(1)(a) reads in pertinent part as follows: “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. In applying these standards, the court shall retain the
residential parent designated by the prior decree or the prior shared parenting decree,
unless a modification is in the best interest of the child and one of the following applies:
{¶14}  “(i) The residential parent agrees to a change in the residential parent or
both parents under a shared parenting decree agree to a change in the designation of
residential parent.
{¶15}  “(ii) The child, with the consent of the residential parent or of both parents
under a shared parenting decree, has been integrated into the family of the person
seeking to become the residential parent.

Tuscarawas County, Case No.   2012 AP 03 0025                                                 6
{¶16}  “(iii)  The  harm  likely  to  be  caused  by  a  change  of  environment  is
outweighed by the advantages of the change of environment to the child.”
Change in Circumstances
{¶17}  Appellant first contends there was an insufficient showing of a change in
circumstances to warrant a child custody change.
{¶18}  As an initial matter, we note appellee argues in his response brief that
appellant did not raise the issue of “change in circumstances” via an objection to the
decision of the magistrate.
{¶19}  Certainly, Civ.R. 53(D)(3)(b)(iv) provides that “a party shall not assign as
error on appeal the court's adoption of any factual findings or legal conclusion  *  *  *
unless the party has objected to that finding or conclusion  *  * *.” See, e.g., Sano v.
Sano, Stark App.No. 2010CA00252, 2011-Ohio-2110, ¶ 16. However, in the case sub
judice, the magistrate initially ruled in appellant’s favor by recommending that L.F. stay
in appellant’s custody; it was thus appellee who thereupon filed a Civ.R. 53 objection.
{¶20}  Ordinarily, under such circumstances, we would not be inclined to apply
the waiver rule of Civ.R. 53(D)(3)(b)(iv) against an appellant who had not initiated the
objection proceedings before the trial court. However, in the case sub judice, appellant
filed a response to appellee’s objection, stating that “ *** although [appellant] continues
to believe that the change of circumstances required for a change of custody has not
occurred,  the  magistrate  made  that  finding  and                                          [appellant]  is  not  attacking  the
magistrate’s finding.” Plaintiff’s Response to Objections, January  9,  2012, at  9. We
therefore find appellant waived the issue of  “change in circumstances” in the within
appeal.

Tuscarawas County, Case No.   2012 AP 03 0025                                                      7
{¶21}  Nonetheless, we have recognized that an appellant's failure to object to a
magistrate's  decision  does  not  bar  appellate  review  of                                      “plain  error.”  See,  e.g.,
Tormaschy v. Weiss  (July  6,  2000), Richland App  .No.  00 CA  01, citing R.G. Real
Estate Holding, Inc. v. Wagner (April 24, 1998), Montgomery App. No. 16737. In the
case sub judice, the trial court, as the basis for its “change in circumstances” finding,
essentially relied on the fact that appellant-mother had remarried and had then been
divorced from Kenneth Strope, as well as the fact that L.F. had expressed a desire to
live  with  appellee-father.  Upon  review,  we  find  no  plain  error  in  the  trial  court's
conclusion that a change had occurred in the circumstances of the child for purposes of
a custody review.
Best Interest of the Child
{¶22}  Appellant next maintains that the trial court abused its discretion in finding
that a change of custody was in the best interest of L.F.
{¶23}  R.C. 3109.04(F)(1) states as follows:
{¶24}  “In  determining  the  best  interest  of  a  child  pursuant  to  this  section,
whether on an original decree allocating parental rights and responsibilities for the care
of children or a modification of a decree allocating those rights and responsibilities, the
court shall consider all relevant factors, including, but not limited to:
{¶25}  “(a) The wishes of the child's parents regarding the child's care;
{¶26}  “(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;

Tuscarawas County, Case No.   2012 AP 03 0025                                                    8
{¶27}  “(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;
{¶28}  “(d) The child's adjustment to the child's home, school, and community;
{¶29}  “(e) The mental and physical health of all persons involved in the situation;
{¶30}  “(f) The parent more likely to honor and facilitate court-approved parenting
time rights or visitation and companionship rights;
{¶31}  “(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;
{¶32}  “(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;
whether either parent, in a case in which a child has been adjudicated an abused child
or  a  neglected  child,  previously  has  been  determined  to  be  the  perpetrator  of  the
abusive or neglectful act that is the basis of an adjudication; whether either parent or
any member of the household of either parent previously has been convicted of or
pleaded guilty to a violation of section  2919.25 of the Revised Code or a sexually
oriented offense involving a victim who at the time of the commission of the offense was
a member of the family or household that is the subject of the current proceeding;
whether either parent or any member of the household of either parent previously has
been convicted of or pleaded guilty to any offense involving a victim who at the time of
the commission of the offense was a member of the family or household that is the
subject  of  the  current  proceeding  and  caused  physical  harm  to  the  victim  in  the

Tuscarawas County, Case No.   2012 AP 03 0025                                                  9
commission of the offense; and whether there is reason to believe that either parent has
acted in a manner resulting in a child being an abused child or a neglected child;
{¶33}  “(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;
{¶34}  “(j) Whether either parent has established a residence, or is planning to
establish a residence, outside this state.”
{¶35}  Because  custody  issues  are  some  of  the most  difficult  and  agonizing
decisions a trial judge must make, he or she must have wide latitude in considering all
the evidence. Davis v. Flickinger (1997), 77 Ohio St.3d 415, 418, 674 N.E.2d 1159. We
note  that  there  is  no requirement  that a  trial court  separately  address  each factor
enumerated in R.C. 3109.04. In re Henthorn, Belmont App. No. 00-BA-37, 2001-Ohio-
3459. Absent evidence to the contrary, an appellate court will presume the trial court
considered all of the relevant  “best interest” factors listed in R.C.  3109.04(F)(1). Id.,
citing Evans v. Evans (1995), 106 Ohio App.3d 673, 677.
{¶36}  The record in the case sub judice reveals that after appellant remarried
after the parties’ 2003 divorce, her new husband, Kenneth Strope, developed a positive
relationship with L.F. and clearly took on a stepfather role. However, appellant and
Kenneth divorced in July 2010, with negative ramifications for L.F. For example, due to
appellant’s work schedule, L.F. was forced to spend more time alone at home during
the evenings and overnight periods; furthermore, after the divorce, L.F. was marked
tardy at school five times and received two in-school suspensions. In its judgment entry,
the trial court reviewed the aforesaid statutory factors and found that both parents want

Tuscarawas County, Case No.   2012 AP 03 0025                                                   10
to be residential parents of L.F. and both have remained involved in the child’s life (R.C.
3109.04(F)(1)(a)  and                                                                           (c)),  that  L.F.  wants  to  live  with  appellee-father   (R.C.
3109.04(F)(1)(b)), that L.F.   has friends in the Copley area (appellant’s city of residence)
and is well-adjusted to school there  (R.C.  3109.04(F)(1)(d)), but that appellant has
taken steps to limit communication between appellee and L.F. (R.C. 3109.04(F)(1)(f)).
The record also indicates that appellee has a house and yard, as opposed to appellant’s
apartment  residence,  and  that  appellee  has  maintained  ties  with  L.F.’s  extended
relatives, while appellant has limited contact with her mother and brother. Evidence was
also brought out that appellant once inadvertently sent inappropriate photographs via
cell phone to one of L.F.’s coaches. On the other hand, evidence was adduced that
appellee permitted L.F. to obtain a Facebook account at just 11 years of age, and that
appellee  also  assisted  L.F.  in  obtaining  a  watercraft  operator’s  license  without
appellant’s permission.
{¶37}  Ohio courts have recognized that the maintenance of ties with extended
family members is an important factor in the consideration of a child's best interest. See,
e.g., In re Marriage of Shore (1999), 135 Ohio App.3d 374. Moreover, 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. Under the present circumstances, upon review, we find the trial court duly
considered the statutory “best interest” factors, and its decision in this regard did not
constitute an abuse of discretion.

Tuscarawas County, Case No.   2012 AP 03 0025                                                   11
Harm/Advantage Weighing
{¶38}  Appellant  lastly  contends  the  trial  court  abused  its  discretion  in
determining the harm likely to be caused to L.F. by a change of environment would be
outweighed by the advantages of such a change.
{¶39}  In addition to the issues of  “change in circumstances” and whether a
custody modification is in the best interest of the child, in determining whether the
modification is appropriate, a trial court must also find that the harm that will result from
the  change  will  be  outweighed  by  the  resultant  benefits,  pursuant  to  R.C.
3109.04(E)(1)(a)(iii). See Oliver v. Arras, Tuscarawas App.No. 2001 AP 11 0105, 2002-
Ohio-1590. However, the statute does not require that the trial court make express
findings concerning this determination. See Cameron v. Cameron, Medina App.No.
10CA0064-M,  2011-Ohio-3884,  ¶  11. The trial court in the case sub judice made a
basic  finding  that  any  harm  likely  to  be  caused  by  the  change  of  environment  is
outweighed by the advantage to L.F. of such change. Judgment Entry, March 2, 2012,
at 6. Our review of the record in the matter sub judice does not indicate that appellate
reversal under the facts and circumstances presented would be warranted against the
trial court’s finding under R.C. 3109.04(E)(1)(a)(iii).

Tuscarawas County, Case No.   2012 AP 03 0025                                                      12
Conclusion
{¶40}  We therefore hold the trial court's decision reallocating parental rights and
responsibilities  for  L.F.  did  not  constitute  an  abuse  of  discretion.  Appellant's  sole
Assignment of Error is overruled.
{¶41}  For  the  reasons  stated  in  the  foregoing,  the  decision  of  the  Court  of
Common Pleas, Tuscarawas County, Ohio, is hereby affirmed.
By: Wise, J.
Delaney, P. J., and
Edwards, J., concur.
JUDGES
JWW/d 1025

Tuscarawas County, Case No. 2012 AP 03 0025                                      13
IN THE COURT OF APPEALS FOR TUSCARAWAS COUNTY, OHIO
FIFTH APPELLATE DISTRICT
CHRISTINA A. FORD, nka STROPE                                                    :
:
Plaintiff-Appellant                                                              :
:
-vs-                                                                             :    JUDGMENT ENTRY
:
JAMES J. FORD                                                                    :
:
Defendant-Appellee                                                               :    Case No. 2012 AP 03 0025
For  the  reasons  stated  in  our  accompanying  Memorandum-Opinion,  the
judgment of the Court of Common Pleas of Tuscarawas County, Ohio, is affirmed.
Costs assessed to Appellant.
JUDGES

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