Eatherton v. Behringer

[Cite as Eatherton v. Behringer, 2012-Ohio-5229.]

IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
SENECA COUNTY

DEE ANN EATHERTON,

PLAINTIFF-APPELLANT, CASE NO. 13-12-23

v.

JOEL DEAN BEHRINGER, OPINION

DEFENDANT-APPELLEE.

Appeal from Seneca County Common Pleas Court
Juvenile Division
Trial Court No. 20470086

Judgment Affirmed

Date of Decision: November 13, 2012

APPEARANCES:

Bret A. Spaeth for Appellant

Karen Behm for Appellee
Case No. 13-12-23

SHAW, P.J.

{¶1} Plaintiff-appellant, Dee Ann Eatherton (“Ann”), appeals the April 11,

2012 judgment of the Seneca County Court of Common Pleas, Juvenile Division,

designating defendant-appellee, Joel Dean Behringer (“Joel”), as residential parent

of their child.

{¶2} In July of 2003, the parties, who never married, had a child together

named Adam Andrew Eatherton-Behringer.

{¶3} On July 9, 2004, Ann filed a complaint requesting the trial court issue

an order legally establishing a parent-child relationship between Joel and Adam,

and also requesting that Ann be designated as Adam’s residential parent. Joel

subsequently filed an answer.

{¶4} On March 9, 2005, Joel filed a “Motion to be Named Residential and

Custodial Parent,” requesting the trial court to designate him as Adam’s residential

parent.

{¶5} On August 26, 2005, the trial court issued a consent judgment entry

journalizing the parties’ agreement that Ann will be designated as Adam’s

residential parent; that Joel shall have visitation with Adam on Tuesday evenings

each week from 6:00 p.m. to 9:00 p.m. (hereinafter “midweek visitation”), and

that his visitation schedule shall follow the local rules, which included every other

weekend and three weeks in the summer. The parties also agreed that if Ann does

-2-
Case No. 13-12-23

not permit Joel to exercise his visitation with Adam, Joel shall be allowed to

choose the date to makeup his visitation.

{¶6} On October 10, 2006, Joel filed a “Motion for Pick-up and Drop-off

for Visitation,” requesting the trial court to order the parties to utilize PatchWorks

House as a neutral site for visitation exchanges.

{¶7} On January 11, 2007, the trial court issued a consent judgment entry

journalizing the parties’ agreement that Joel shall pick-up Adam from daycare

after work between 5:30 p.m. and 6:00 p.m. for his midweek visitation, and that

the exchange point for his other court-ordered visitations shall be PatchWorks

House. The parties also agreed to abide by the hours of PatchWorks House and

modify the exchange times to allow PatchWorks House to facilitate the custody

exchange.

{¶8} On January 8, 2008, Joel filed a motion for contempt alleging that

Ann denied him visitation with Adam on two of his scheduled days, one of those

days being Christmas Eve, by refusing to deliver Adam to PatchWorks House to

effectuate the custody exchange.

{¶9} On March 4, 2008, Joel filed a second motion for contempt claiming

that Ann had impeded and restricted his communication with Adam in violation of

the court’s previous order by disconnecting her telephone and refusing to give Joel

her new telephone number so that he could communicate with Adam.

-3-
Case No. 13-12-23

{¶10} On May 22, 2008, Ann filed a motion to modify custody requesting a

modification of her parenting time during the summer. The same day Ann also

filed a motion for contempt alleging that on December 16, 2007, Joel interfered

with her parenting time by: failing to deliver Adam to the exchange location until

the next morning;1 restricting her communication with Adam; criticizing her in

front of Adam; and failing to comply with other provisions in the prior court order.

{¶11} On June 20, 2008, Joel filed a third and a fourth motion for contempt

alleging Ann interfered with Joel picking-up Adam from daycare after work at

5:30 p.m. as stated in the court order. Specifically, Joel alleged that Ann

consistently picked-up Adam from daycare at 5:00 p.m. and then refused to release

Adam to Joel until her watch indicated that it was exactly 5:30 p.m. and not a

minute sooner. In addition, Joel also claimed that when he arrived at the daycare

on June 10, 2008, Ann had already picked-up Adam and the daycare supervisor

was waiting to speak with Joel. The daycare supervisor explained to Joel that Ann

arranged for herself to be the only parent of record at the daycare and

consequently Joel was not authorized to pick-up Adam from daycare or able to

view Adam’s file. Joel alleged that Ann also registered Adam at daycare as Adam

Eatherton and not under his name as it appears on his birth certificate and the court
1
It was later revealed at an evidentiary hearing that on the date in question Seneca County experienced a
level three snow emergency which required PatchWorks House to close thereby preventing Joel from
delivering Adam to the exchange point until the next morning. Ann claimed that Joel should have
delivered Adam to the Fostoria Police Department that night when the level three emergency was lifted.
During this time, Ann made seventeen phone calls to Joel between the evening of December 16, 2007 and
the early morning hours of December 17, 2007.

-4-
Case No. 13-12-23

order, Adam Eatherton-Behringer. Joel also claimed that on this day Ann was

waiting outside the daycare with Adam and proceeded to follow him to his car

while harassing him and recording the conversation with a tape recorder.

{¶12} On July 15, 2008, Ann filed a second motion for contempt claiming

Joel violated the court order by keeping Adam past the July 4th holiday because

PatchWorks House was closed and unable to facilitate the exchange until July 6th.

On the same day, Ann also filed several other motions requesting the trial court to

prohibit Joel from interfering with her telephone calls to Adam; to modify

parenting time—specifically requesting the neutral point of custodial exchange be

moved to the Fostoria Police Department, and alleging that Joel’s midweek

visitations with Adam are no longer in Adam’s best interest; to modify child

support; and to require Joel to make certain administrative changes to Adam’s

health care plan.

{¶13} On November 19, 2008, after two evidentiary hearings, the

magistrate ruled in a forty-three-page decision on the eleven pending motions

between the parties. In this decision, the magistrate overruled both of Ann’s

motions for contempt finding that Ann failed to present evidence to substantiate

her claims that Joel violated the court order. The magistrate admonished both

parties for failing to abide by court order requiring each parent not to restrict or

impede the other’s communication with Adam. The magistrate granted Ann’s

-5-
Case No. 13-12-23

request to modify her summer parenting time to allow her to have one particular

week of vacation time with Adam, and denied her motion to modify child support.

The magistrate further noted that “all motions made by [Ann] regarding parenting

time between [Joel] and the child are to limit or take time away from [Joel]. Her

actions show that she wants to keep limiting [Joel’s] time.” (Dec. Nov. 19, 2008

at 32).

{¶14} In addition, the magistrate granted Joel’s first, second, and third

motions for contempt, finding the evidence demonstrated that Ann had “willfully”

interfered with his visitation on each occasion alleged in the motions. The

magistrate also granted Joel’s fourth motion for contempt in part, finding that Ann

interfered with Joel’s visitation as alleged, but also overruled the motion in part,

finding Joel’s allegations of Ann’s harassment were unsupported by the evidence.

The magistrate sentenced Ann to ten days in jail for each finding of contempt to be

served consecutively, but suspended the sentence provided that Ann adhere to

specific conditions which remedied her past instances of interference with Joel’s

parenting time. Ann was also given the opportunity to purge the contempt by

paying a fine of $500.00 for each finding of contempt.

{¶15} Other than modifying Ann’s summer vacation time with Adam, no

significant changes were made to the prior custody decree. However, the

magistrate ordered Ann to leave the daycare parking lot by 5:15 p.m. on the days

-6-
Case No. 13-12-23

of Joel’s midweek visitation to avoid interfering with Joel’s parenting time. The

magistrate also found that “both parents need to grow up, learn to communicate

civilly to each other about their child, to put his well being before their needs and

wants. But the undersigned finds that neither has shown enough maturity for this

to happen therefore, exchanges should continue at PatchWorks House, all

communication shall be in writing through PatchWorks House and that each will

have to continue to flex the parenting schedule to accommodate the availability of

PatchWorks House.” (Dec. Nov. 19, 2008 at 35).

{¶16} On December 15, 2008, after an independent review, the trial court

adopted and approved the magistrate’s decision without objections from the

parties.

{¶17} In January and February of 2009, the trial court issued judgment

entries journalizing that Ann had purged herself of all four findings of contempt.

{¶18} On March 31, 2009, Joel filed two more motions for contempt

alleging that Ann continuously impeded and restricted his ability to communicate

with Adam by refusing to answer the telephone when he called and by not

allowing Adam to speak to Joel for any significant period of time. Joel also

alleged that Ann denied him visitation with Adam during his scheduled parenting

time pursuant to the prior custody decree. The same day, Joel also filed a “Motion

for Reallocation of Parental Rights and Responsibilities,” requesting the trial court

-7-
Case No. 13-12-23

designate him as Adam’s residential parent and a motion to appoint a Guardian ad

Litem (hereinafter “GAL”).

{¶19} On April 1, 2009, the trial court granted Joel’s motion to appoint a

GAL to represent Adam’s interests in the case.

{¶20} On June 18, 2009, the trial court issued a consent judgment entry

journalizing the parties’ agreement to participate in a full custody evaluation with

Dr. Thomas Hustak and further ordering that “[e]ach party shall comply with any

and all requests of Dr. Hustak.” (JE June 18, 2009 at 1).

{¶21} On September 25, 2009, after an evidentiary hearing, the magistrate

issued a decision stating the evidence supported finding Ann in contempt for

preventing Joel from exercising his scheduled visitation without justification, and

for not permitting Joel to make-up his missed parenting time as required by the

prior custody decree. The magistrate sentenced Ann to fifteen days in jail on each

finding of contempt but suspended the sentence provided that she abide by certain

conditions which included following the court orders requiring the parties to

facilitate telephone communication between Adam and the other parent, and

permitting Joel to make-up the parenting time he missed as a result of Ann’s

interference. The magistrate also gave Ann an opportunity to purge the contempt

by paying a fine of $750.00 for each finding of contempt. The trial court

subsequently approved and adopted the magistrate’s decision.

-8-
Case No. 13-12-23

{¶22} On December 4, 2009, the trial court issued a judgment entry

journalizing that Ann purged the contempt.

{¶23} On December 7, 2009, Dr. Hustak filed his custody evaluation report

with the court.

{¶24} On March 9, 2010, Ann filed a motion for shared parenting and a

proposed shared parenting plan.

{¶25} On March 11, 2010, the GAL filed her report and recommendations

with the trial court. In her report, the GAL observed on one of the home visits six-

year-old Adam stating in a sing-song voice, “my dad is mean; my dad is mean.”

The GAL also recounted an incident at the daycare in which the children were

drawing pictures of their families and Adam stated, “my dad is evil; my dad is the

devil.” The GAL further discussed her conversation with Ann’s ex-husband, the

father of her two adult children, who claimed that Ann refused to allow him to see

his children, returned the gifts he left for them, and eventually changed their last

name to her maiden name, Eatherton. Based on her observations, the GAL

recommended “Adam Andrew be placed in the residential custody of father, Joel,

because Adam needs a positive role model as opposed to mother’s negative role

model.” (GAL’s Report and Recommendations at 7).

{¶26} On March 18 and 19, 2010, the magistrate held a hearing on Joel’s

motion for reallocation of parental rights and responsibilities filed on March 31,

-9-
Case No. 13-12-23

2009, and Ann’s motion for shared parenting filed on March 9, 2010. The hearing

was continued to June 10, 2010, because the two days scheduled for the hearing

were insufficient to address the voluminous amount of evidence the parties

intended on introducing. In the interim, the magistrate issued temporary orders,

which included an order requiring Ann to “immediately enroll in counseling and

psychotherapy to address her negative shaping behaviors that could contribute to

parental alienation syndrome as recommended by the child custody evaluation

submitted to the Court.” (Dec. Mar. 23, 2010 at 2).

{¶27} On June 3, 2010, the GAL filed a supplemental report in which she

recommended the parties follow a shared parenting plan designating both parties

as the residential parent when exercising his or her parenting time, and that Joel be

named residential parent for school placement purposes.

{¶28} On July 19, 2010, the magistrate issued her decision, recommending

that the trial court designate Joel as Adam’s residential parent and that Ann be

given visitation. Later that month, Ann filed her objections to the magistrate’s

decision.

{¶29} On February 4, 2011, after granting the parties several extensions of

time to brief the issues raised in Ann’s objections, the trial court filed a judgment

entry overruling each of Ann’s objections. Ann appealed the judgment entry to

-10-
Case No. 13-12-23

this Court, which remanded the matter to the trial court with instructions to issue a

judgment entry in compliance with Civ.R. 53(D)(3)(e).

{¶30} On March 22, 2011, the trial court, pursuant to this Court’s ruling,

filed its judgment entry, comporting with the requirements set forth in Civ.R.

53(D)(3)(e). The same day the trial court issued a separate judgment entry

granting Joel’s motion for a temporary restraining order against Ann preventing

her from attempting to or threatening to remove Adam from “his school, daycare

or [Joel’s home] or from calling the school or police to do so.” (JE, March 22,

2011 at 1). The trial court also ordered that Joel shall be named Adam’s custodial

parent as set forth in the July 19, 2010 Magistrate’s Decision and February 4, 2011

Judgment Entry.

{¶31} Ann appealed the March 22, 2011 judgment entry granting Joel’s

motion to designate him as Adam’s residential parent. The appeal was

subsequently stayed by Ann filing a petition for bankruptcy. On February 22,

2012, the bankruptcy automatic stay was lifted.

{¶32} On April 10, 2012, this Court reversed the decision of the trial court,

which adopted the magistrate’s decision, concluding that the magistrate failed to

independently determine whether there had been a change in circumstances as

required by R.C. 3109.04(E)(a)(1). See Eatherton v. Behringer I, 3rd Dist. No.

13-11-12, 2012-Ohio-1584, ¶ 15.

-11-
Case No. 13-12-23

{¶33} On April 11, 2012, the trial court issued a “Journal Entry on

Remand,” independently finding that a change in circumstances had occurred

since the prior custody decree and adopting and incorporating the conclusions in

magistrate’s decision regarding the remaining considerations under R.C.

3109.04(E)(1)(a).

{¶34} It is from this judgment Ann appeals, presenting the following

assignments of error for our review.

ASSIGNMENT OF ERROR NO. I

THE TRIAL COURT ERRED AND ABUSED ITS
DISCRETION IN FINDING THERE TO BE A CHANGE IN
CIRCUMSTANCES.

ASSIGNMENT OF ERROR NO. II

THE TRIAL COURT ERRED IN FINDING THAT A
MODIFICATION IS NECESSARY TO SERVE THE BEST
INTEREST OF THE PARTIES’ MINOR CHILD, AND THAT
THE HARM LIKELY TO BE CAUSED BY A CHANGE OF
ENVIRONMENT IS OUTWEIGHED BY THE ADVANTAGES
OF THE CHANGE OF ENVIRONMENT TO THE CHILD.

ASSIGNMENT OF ERROR NO. III

THE TRIAL ERRED IN FINDING THAT
MOTHER/APPELLANT HAS INTERFERED WITH
FATHER/APPELLEE’S PARENTING TIME.

ASSIGNMENT OF ERROR NO. IV

THE TRIAL COURT ERRED BY CONSIDERING
EVIDENCE OUTSIDE THE RECORD, SPECIFICALLY,

-12-
Case No. 13-12-23

EVIDENCE OF MOTHER/APPELLANT’S PHONE CALL
MESSAGES PRESENTED AT A PRIOR HEARING.

ASSIGNMENT OF ERROR NO. V

THE TRIAL COURT ERRED IN CONSIDERING MOTHER’S
STRAINED RELATIONSHIP WITH HER OWN FATHER AS
EVIDENCE.

ASSIGNMENT OF ERROR NO. VI

THE TRIAL COURT ERRED BY FINDING THAT
MOTHER/APPELLANT FAILED TO COMPLETE HER
COUNSELING PROGRAM.

ASSIGNMENT OF ERROR NO. VII

THE TRIAL COURT ERRED BY FAILING TO FOLLOW
DR. HUSTAK’S RECOMMENDATION FOR SHARED
PARENTING.

{¶35} Due to the nature of the assignments of error, we elect to

address some of them together and out of order.

First Assignment of Error

{¶36} In her first assignment of error, Ann contends that the trial court

erred in finding that a change in circumstances had occurred since the prior

custody decree, which warranted the consideration of whether a modification of

that decree is in Adam’s best interest.

{¶37} Initially, we observe that child custody determinations are some of

the most difficult and agonizing decisions a trial court must make. Therefore, a

trial court must have wide latitude in its consideration of the evidence. Davis v.

-13-
Case No. 13-12-23

Flickinger, 77 Ohio St.3d 415 (1997). Generally, when reviewing a ruling

pertaining to the allocation of parental rights, the trial court is to be afforded great

deference. Miller v. Miller, 37 Ohio St.3d 71 (1988). Thus, we will not reverse a

child custody decision that is supported by a substantial amount of competent,

credible evidence absent an abuse of discretion. Bechtol v. Bechtol, 49 Ohio St.3d

21, syllabus (1990). The term “abuse of discretion” connotes more than an error

of judgment; it implies that the trial court’s attitude is unreasonable, arbitrary, or

unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219 (1983).

{¶38} At the outset, we note that Ann also claims the trial court failed to

conduct a de novo review of the magistrate’s decision regarding its change in

circumstance determination. However, we conclude the record supports finding

that the trial court conducted the appropriate review and thus we find no error on

this basis.

{¶39} Section 3109.04(E)(1)(a) of the Revised Code authorizes a trial court

to modify or terminate a prior decree allocating parental rights and responsibilities.

The statute outlines the elements that the trial court must consider in its

determination of whether a modification of the prior decree is warranted.

Specifically, R.C. 3109.04(E)(1)(a) states the following regarding a modification

of a prior custody decree:

The court shall not modify a prior decree allocating parental
rights and responsibilities for the care of children unless it finds,

-14-
Case No. 13-12-23

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:

(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.

(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.

(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.

R.C. 3109.04(E)(1)(a). When a court is asked to modify a custody decree, the

initial determination to be made by the trial court is whether there has been a

change in circumstances of the child or the residential parent since the prior court

order. Wyss v. Wyss, 3 Ohio App.3d 412, 414 (1982). This finding should be

made prior to weighing the child’s best interest. The purpose of requiring a

finding of a change in circumstances is to prevent a constant relitigation of issues

that have already been determined by the trial court. Clyborn v. Clyborn, 93 Ohio

App.3d 192, 196 (1994).

-15-
Case No. 13-12-23

{¶40} In reviewing whether the evidence presented in this case

demonstrates that a change in circumstances occurred, we are reminded that the

change must be of substance, not slight or inconsequential. Flickinger, 77 Ohio

St.3d at 415. In addition, R.C. 3109.04(E)(1)(a) does not require that the change

be “substantial,” nor does “the change * * * have to be quantitatively large, but

rather, must have a material effect on the child.” McLaughlin v. McLaughlin–

Breznenick, 3d Dist. No. 8–06–06, 2007-Ohio-1087, ¶ 16, citing Tolbert v.

McDonald, 3d Dist. No. 1–05–47, 2006-Ohio-2377, ¶ 31.

{¶41} Here, the trial court identified the change in circumstances as Ann’s

failure to facilitate Joel’s parenting time as required by the prior custody decree.

Specifically, the trial court noted that “testimony was presented concerning at least

six contempt proceedings since the last Judgment Entry to support the claim that

the residential parent [Ann] was not fostering the parent-child relationship of the

non-residential parent [Joel].” (JE, April 11, 2012 at 3). As previously discussed,

the record demonstrates that Ann was found in contempt based on six separate

instances in which her actions interfered with and hindered Joel’s parenting time

with Adam in violation of the prior custody decree.

{¶42} This Court has previously held that a custodial parent’s interference

with visitation by a noncustodial parent may be considered a ‘change of

circumstances’ which would allow for a modification of custody. Long v. Long, 3d

-16-
Case No. 13-12-23

Dist. No. 14-10-01, 2010-Ohio-4817, ¶ 30; see, also Bland v. Bland, 9th Dist. No.

21228, 2003-Ohio-828, ¶ 65 (finding that the mother’s continuous interruption

with the father’s visitation and companionship with the children was a change in

circumstances); Headley v. Headley, 11th Dist. No. 99-A-0049, *5 (Sept. 29,

2000) (holding that the requisite change was demonstrated by the mother’s hostile

and controlling behavior that interfered with the father’s visitation rights).

{¶43} In addition, a change in circumstances can also include a breakdown

in communication between the parents and their inability to communicate and

cooperate. See, e.g., Milner v. Milner, 10th Dist. No. 99AP-13, *3 (Dec. 14, 1999)

* 3 (affirming trial court’s finding of a sufficient change of substance based on

“the parties’ behavior and unwillingness to comply with the terms and spirit of the

shared parenting plan[.]”); Gomez v. Gomez, 7th Dist. No. 08 NO 356, 2009-Ohio-

4809, ¶ 21–34 (citing refusal of mother to communicate with father and extreme

volatility requiring police intervention as a change in circumstances). The record

is replete with instances demonstrating Ann and Joel’s perpetual inability to

communicate and cooperate with each other in order to comply with the directives

of the trial court’s prior custody decree. Accordingly, we conclude the trial court

did not err in finding a change in circumstances had occurred since the prior

custody decree, which warranted the trial court’s consideration of whether a

-17-
Case No. 13-12-23

modification of the custody decree is in Adam’s best interest. Therefore, Ann’s

first assignment of error is overruled.

Second and Seventh Assignments of Error

{¶44} In her second assignment of error, Ann contends that the trial court

erred in determining that it is in Adam’s best interest to modify the prior custody

decree to designate Joel as Adam’s residential parent. As the basis for her

argument in her second assignment of error, Ann claims the trial court erred by not

following the recommendation of shared parenting in the custody evaluation report

submitted by Dr. Hustak. In her seventh assignment of error, Ann alleges that the

trial court erred by not adopting and incorporating this recommendation into the

custody decree. Since this argument is similar to the one asserted in Ann’s second

assignment of error, we will address the contentions raised in both assignments of

error together.

{¶45} On appeal, Ann only generally assigns error to the trial court’s

finding that a modification of the prior custody decree is in Adam’s best interest

without specifying any particular basis for contending that the trial court erred.

However, our review of the record reveals that the magistrate and the trial court

considered the appropriate statutory factors in light of the evidence presented, and

furthermore the record supports the finding that it is in Adam’s best interest to

modify the prior custody decree to designate Joel as Adam’s residential parent.

-18-
Case No. 13-12-23

{¶46} The only arguments articulated by Ann under her second assignment

of error pertain to the trial court’s conclusion that the harm likely to be caused by a

change of environment is outweighed by the advantages of the change of

environment to the child, which is the final determination under the analysis set

forth in R.C. 3109.04(E). In support of her argument, Ann claims the evidence in

the record does not support the trial court’s conclusion in this regard because, in

his custody evaluation report, Dr. Hustak recommended a shared parenting plan

that maximizes time with both parents is in Adam’s best interest.

{¶47} Ann appears to mischaracterize Dr. Hustak’s recommendation by

isolating his recommendation of shared parenting without discussing it in context.

The following is an excerpt from Dr. Hustak’s report fully outlining his qualified

recommendation of shared parenting.

It has been stated earlier that the ultimate decision-making in
custody cases is obviously up to the trier of fact, and the
information contained in this report is an effort to offer scientific
statements to assist the trier of fact in assigning weights [sic] to
certain types of evidence. An evaluator may offer opinions
under the Federal Rules of Evidence 701, which are not based on
reasoning or theory, but rationally based on perception.
Therefore, the following opinion having to do with options is not
based on scientific theory. The court can weigh this opinion at
this point forward simply as that, an opinion that derives from
every-day experience and is not the direct result of any tests of
data which points the court one way or the other in making their
determination.

With this limitation in mind, it is my opinion, based upon the
conclusions reached in this case, that it is best for Adam

-19-
Case No. 13-12-23

Eatherton Behringer to have access to both parents in a shared
parenting plan that maximizes time with each parent. It would
appear that removing Adam from his present home and school
environment would be detrimental to his adjustment, and,
despite the problems with Ann Eatherton, she is certainly not
considered an inadequate mother based upon voluminous
amounts of material reviewed in this case. Ann Eatherton’s
biggest limitation has to do with her caustic comments about
Joel Behringer, which at some point, may be adversely affecting
Adam now or in the future.

In view of these statements, both parents need to participate in
recognizing what Adam needs, and that is specifically a shared
parenting plan. To accomplish this, it would be my strong
recommendation that Ann Eatherton be mandated to participate
in immediately seeking out her own personal counseling and
psychotherapy. The express goal would be to learn how to
eliminate negative shaping behaviors that could contribute to
parental alienation syndrome in Adam. She needs to recognize
that what she is doing is harmful and that failing to stop saying
or doing these negative things threatens not only her
relationship with Adam but also her propriety as a shared
custodial parent. She needs to be told very bluntly and clearly
what she can do differently to cease and desist from generating
conflict. If she cannot do this within a reasonable amount of
time (four months or less), then it would be my opinion that
Adam Behringer’s best interest would be advanced by having
Joel Behringer assigned as the sole custodian, with Ann
Eatherton limited to visitation.

(Id. at 77-78). At the March 18, 2010 hearing on the change of custody

determination, Ann admitted that she had not completed personal counseling and

psychotherapy despite Dr. Hustak’s “strong recommendation” that she be

“mandated” to do so. This hearing occurred approximately four months after Dr.

Hustak filed his report—which is the amount of time Dr. Hustak considered

-20-
Case No. 13-12-23

reasonable for Ann to comply with this directive. The record indicates that Ann

eventually completed a preliminary diagnostic evaluation after being specifically

ordered by the court to do so. However, there is no evidence Ann completed the

counseling or psychotherapy in the manner Dr. Hustak prescribed.

{¶48} In addition, we note that when a party files a motion with the trial

court seeking modification of parental rights and responsibilities, the trial court

may “cause an investigation to be made as to the character, family relations, past

conduct * * * of each parent and may order the parents and their minor children to

submit to medical, psychological, and psychiatric examinations.” R.C.

3109.04(C). While R.C. 3109.04 gives trial courts the ability to order

investigations of the parents and child, it does not require the trial court to follow

the recommendations contained within the resulting report. Rather, an evaluation

ordered pursuant to R.C. 3109.04(C) and its contents, is merely one of the many

things the trial court may consider in awarding parental rights and responsibilities,

See Eitutis v. Eitutis, 11th Dist. No. 2009-L-121, 2011-Ohio-2838, ¶ 85 (a trial

court is not required to adopt the recommendations of a psychologist, in full or in

part).

{¶49} Thus, even assuming arguendo that Dr. Hustak made an unqualified

recommendation of shared parenting as Ann appears to contend, the trial court was

not obligated to adopt his recommendation in its final custody determination.

-21-
Case No. 13-12-23

Accordingly, we do not find that the trial court erred in concluding that the harm

likely to be caused by a change of environment is outweighed by the advantages of

the change of environment to Adam on this basis. We further conclude that the

trial court’s determination in this regard was supported by a substantial amount of

competent, credible evidence and therefore its decision does not constitute an

abuse of discretion. For all these reasons Ann’s second and seventh assignments

of error are overruled.

Third Assignment of Error

{¶50} In her third assignment of error, Ann contends that the trial court

erred when it found that she interfered with Joel’s parenting time.

{¶51} The record demonstrates that Ann was found to be in contempt of

court on six separate occasions for interfering with Joel’s parenting time. Each

contempt finding was based upon evidence submitted at a hearing in which Ann

was given a full and fair opportunity to put on evidence in her defense. The trier

of fact found that Joel met his burden in proving Ann’s interference with his

parenting time on each occasion, and that her actions violated the custody decree.

Even though Ann eventually purged herself of the contempt findings by paying the

court-ordered fines, the fact that she continually interfered with Joel’s parenting

time, despite being ordered by the court not to do so, is the precise conduct the

trial court is required to considered when determining whether to modify a decree

-22-
Case No. 13-12-23

allocating parental rights and responsibilities. See R.C. 3109.04(F)(1)(outlining

the factors for the court to consider in custody modification including: (f)“The

parent more likely to honor and facilitate court-approved parenting time rights or

visitation and companionship rights;” and (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”).

{¶52} In addition, the change of custody hearing, which occurred several

months after the contempt proceedings, included the testimony of twenty

witnesses as well as numerous exhibits filed by both parties and the GAL. This

evidence provided a sufficient basis for the court to conclude that Ann interfered

with Joel’s parenting time notwithstanding the previous six contempt findings on

the same basis. Accordingly, we find no error in the trial court’s conclusion that

Ann interfered with Joel’s parenting time. Therefore, Ann’s third assignment of

error is overruled.

Sixth Assignment of Error

{¶53} In her sixth assignment of error, Ann contends that the trial court

erred when it found that she failed to complete her counseling program as directed

by Dr. Hustak. Notably, Ann does not articulate on appeal how this finding

constitutes reversible error.

-23-
Case No. 13-12-23

{¶54} Nevertheless, the record reveals that, prior to the release of Dr.

Hustak’s written evaluation, the trial court ordered both parties comply with any

and all of Dr. Hustak’s requests. As previously discussed, at the March 18, 2010

change of custody hearing, Ann admitted to not complying with Dr. Hustak’s

recommendation that she be mandated to immediately participate in counseling

and psychotherapy. The transcript of this hearing reveals some proclaimed

confusion on Ann’s part regarding whether she was actually ordered to complete

counseling and psychotherapy. As a result, the magistrate subsequently filed an

order explicitly instructing Ann to comply with the following directives:

Plaintiff, Dee Ann Eatherton, shall immediately enroll in
counseling and psychotherapy to address her negative shaping
behaviors that could contribute to parental alienation syndrome
as recommended by the child custody evaluation submitted to
the Court.

Plaintiff, Dee Ann Eatherton, shall provide notice to the Court
on or before March 26, 2010 the name of the counseling facility
and the time and date of her appointment to address the
counseling and psychotherapy needs. She shall provide notice to
the Court of the name of the counselor once a counselor has been
assigned.

Plaintiff, Dee Ann Eatherton, shall execute any and all necessary
releases to the Court to said facility and counselor. Said facility
and Counsel shall forward to Magistrate Hanson written
progress reports and compliance with the program and any
recommended treatment in compliance with the child custody
evaluation dated December 1, 2009.

(Order Mar. 23, 2010 at 2).

-24-
Case No. 13-12-23

{¶55} The record indicates that the magistrate received a letter dated April

8, 2010 from Century Health informing the court that Ann had completed a

diagnostic assessment on April 6, 2010 and that a provisional diagnosis had been

made. However, the record also indicates that Century Health further stated in this

letter that it would be unable to meet the court’s requirements and referred Ann to

a local agency specializing in child and family issues. No other documentation

was submitted to the magistrate regarding Ann’s compliance with the March 23,

2010 order. Accordingly, we find that the trial court did not err in finding that

Ann failed to complete her counseling program. Ann’s sixth assignment of error

is overruled.

Fourth Assignment of Error

{¶56} In her fourth assignment of error, Ann contends that the trial court

erred in considering the recordings of telephone messages presented during an

earlier hearing held on September 11, 2008. Ann argues that since the messages

were not presented during the March and June 2010 hearings, the messages are

outside the record and could not be considered by the trial court.

{¶57} A trial court may take notice of evidence admitted during prior

hearings that occur within the same or immediate case. See In re Callahan, 3d

Dist. No. 9-01-39 (Dec. 24, 2001), citing Diversified Mortgage Investors Inc. v.

Athens County Board of Revision, 7 Ohio App.3d 157, 159 (4th Dist. 1982); see

-25-
Case No. 13-12-23

also Fischer v. Fischer, 9th Dist. No. 2144 (July 30, 1986). Our review of the

record reveals that the September 11, 2008 hearing, where the messages were

presented as evidence, occurred during the prior proceedings of the immediate

case (Juv. Case No. 20470086). Even assuming arguendo that the messages were

not properly admitted as evidence in the immediate case, we find that Ann was not

prejudiced by the trial court’s consideration of messages since she had an

opportunity to challenge the introduction of the messages and explain their

contents during the September 11, 2008 hearing. Therefore, we find no error with

the trial court’s consideration of this evidence. Ann’s fourth assignment of error is

overruled.

Fifth Assignment of Error

{¶58} In her fifth assignment of error, Ann contends that the trial court

erred in considering her strained relationship with her father. However, on appeal,

Ann fails to articulate any argument identifying the trial court’s consideration of

this evidence as reversible error.

{¶59} Nevertheless, R.C. 3109.04(F) directs the trial court to consider,

among other things, “[t]he child’s interaction and interrelationship with the child’s

parents, siblings, and any other person who may significantly affect the child’s

best interest[.]” (Emphasis added.) R.C. 3109.04(F)(1)(c). Thus, it is reasonable

for a trial court to consider the relationship the mother or father has with their

-26-
Case No. 13-12-23

parents (i.e. the child’s grandparents). Such an inquiry may reveal relevant

information concerning a parent’s ability or willingness to foster a relationship

between the child and grandparent(s), a relationship which, in many cases, may

significantly affect the child’s best interest. Consequently, we find no error in the

trial court’s consideration of this evidence. Ann’s fifth assignment of error is

overruled.

{¶60} For all these reasons, the judgment of the Seneca County Juvenile

Court is affirmed.

Judgment Affirmed

ROGERS, J., concurs.
WILLAMOWSKI, J., concurs in judgment only.

/jlr

-27-