Carr v. Kaiser

[Cite as Carr v. Kaiser, 2012-Ohio-2688.]

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

LISA M. CARR (FKA KAISER),

PLAINTIFF-APPELLANT, CASE NO. 4-11-11

v.

JODY L. KAISER, OPINION

DEFENDANT-APPELLEE.

Appeal from Defiance County Common Pleas Court
Domestic Relations Division
Trial Court No. 01-DR-35048

Judgment Affirmed

Date of Decision: June 18, 2012

APPEARANCES:

Jennifer N. Brown for Appellant

Jody Kaiser, Appellee
Case No. 4-11-11

SHAW, P.J.

{¶1} Plaintiff-appellant Lisa M. Carr (“Lisa”) appeals the July 28, 2011

judgment of the Common Pleas Court of Defiance County, Ohio designating Jody

Kaiser (“Jody”), her former husband, residential parent and legal custodian of two

of the parties’ four minor children, Brooke Kaiser and Jesse Kaiser.

{¶2} Lisa and Jody’s divorce was finalized on April 23, 2003. As part of

that divorce, a shared parenting plan (“SPP”) was instituted. Pursuant to the SPP,

Jody and Lisa alternated two week periods of custody of their four children:

Brooke, born 2-15-95, Jesse, born 2-14-96, Emily, born 12-1-98, and Kiera, born

9-15-00.

{¶3} On April 29, 2004, Lisa filed a motion to terminate the SPP and

designate her as sole legal custodian. On February 14, 2005, after a hearing on the

matter, the Magistrate issued a decision granting sole custody of the four children

to Lisa. On February 28, 2005, Jody filed objections to the Magistrate’s decision.

On May 12, 2005, Jody’s objections were overruled as he failed to file a transcript.

{¶4} On August 26, 2008, Jody filed a “motion for emergency temporary

custody,” a motion for a psychological evaluation of Lisa and a motion for a drug

and alcohol evaluation of Lisa.

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{¶5} On September 12, 2008, Lisa filed a motion for a psychological

evaluation of Jody, a motion for suspension of Jody’s companionship time, and a

motion for contempt for failure to pay child support.

{¶6} On September 23, 2008, Lisa also filed a motion to require pre-

payment of emergency room bills by Jody, a motion to require Jody to transport

their children to activities during his parenting time, a motion to move exchanges

to the Bryan City Police Department, a motion for contempt for failure to pay his

share of out-of-pocket expenses, and a motion that Jody exercise companionship

time during the first half of the summer.

{¶7} On September 25, 2008, at a pre-trial hearing, the Magistrate granted

the cross motions for psychological evaluations subject to each party depositing

the money for the evaluations, and granted the motion to move the location

exchanging the children to the Bryan City Police Department. Neither party ever

deposited the money required for the psychological evaluations so they were not

undertaken.

{¶8} On December 1, 2008, Lisa filed a motion to appoint a Guardian Ad

Litem (“GAL”). On March 3, 2009, Lisa moved for dismissal as Jody did not pay

the GAL fees, or, in the alternative, to appoint a GAL for the limited purpose of

interviewing the children so they did not have to keep being subpoenaed for

hearings. On March 15, 2009, the motion to appoint a GAL for limited purpose of

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interviewing the children was granted. Katrina Kight was subsequently appointed

as GAL.

{¶9} On March 24, 2009, Jody filed a motion for continuance on the final

hearing. That motion was denied the very same day.

{¶10} On April 17, 2009, a hearing on all pending motions was held. At

the hearing, Lisa was represented by counsel and Jody proceeded pro se. In

support of his “motion for emergency temporary custody,” Jody testified and

called 10 witnesses, one of which was the GAL speaking on behalf of the parties’

four children. The GAL testified as to her interviews with the children and her

perceptions. The GAL testified that mostly the children’s complaints about living

with their mother centered on Jeff Carr, Lisa’s one-time husband now boyfriend.

Based on her limited appointment and investigation, the GAL was unwilling to

make a concrete recommendation as to what was best for the children.

{¶11} However, the GAL did say that while she usually thinks it is in the

best interests of the children to keep them all together, she was not so sure in this

case.

{¶12} The GAL felt that Brooke had made it “her life’s work” to try to get

her father awarded custody of the children and the GAL was not sure that Brooke

could be re-directed in those efforts. (Tr. at 71). The GAL thought that Brooke

was mature enough to make her own decision and that Brooke was upset she could

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not appear in court to express how strong her desire was to live with her father.

(Tr. at 61). But, the GAL did say that Brooke did not wish the children to be split

up as Brooke felt it was her responsibility to look after the others. (Tr. at 65). As

part of those attempts, Brooke encouraged the other children to write down

anything negative that happened in Lisa’s household, especially related to Jeff

Carr, and reminded the other children of the alleged incidents.

{¶13} The GAL said that if Brooke went to live with her father “then there

is an argument that perhaps some of this could come to an end and the children –

the other three children might not be put in a position of having to be reminded of

all the things that are either taking place or allegedly taking place at step-dad’s

behest so it could be a good thing.” (Tr. at 119). The GAL reported that all four

children expressed the desire to live with their father, but stated her opinion that

only Brooke was mature enough to make such a decision though she stated that

Jesse was closer than the young girls but not yet there. (Tr. 60).

{¶14} Of the other witnesses that Jody subpoenaed to the final hearing,

many had little personal knowledge of the relationship between the parties and

their children. Jody attempted several times to bring in evidence of conversations

that had been recorded by Jody or Brooke, unbeknownst to those witnesses being

recorded, that Jody or Brooke felt would be beneficial to his custody case. Lisa’s

counsel vigorously objected to the use of audio tapes each and every time Jody

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attempted to use them stating that they could have been altered and lacked

foundation. She also objected to the hearsay nature of the tapes. Due to the

objections and Jody’s lack of knowledge of courtroom procedure, Jody was

unsuccessful in his attempts to bring in the audio tapes.

{¶15} After largely failing to elicit information from witnesses that he

subpoenaed, Jody took the stand and testified as to why he felt the children should

be in his care, stating that the situation had reached a boiling point, he feared for

their safety and that the children were with him over half the time anyway.1

{¶16} After Jody testified, he called his last witness, Jeff Carr, Lisa’s one-

time husband now live-in boyfriend. While on the stand, Carr denied cursing at

the children and standing them in corners for excessive amounts of time but

impliedly admitted to standing them in corners. Jody then produced a letter which

Carr identified as a letter Lisa had written to him. The letter read, in part:

calling them names & cussing at them the way you do isn’t
right—they’re not adults. I’ve told you over & over to watch
your mouth, to not call them names, but it didn’t do any good. *
* * like all you feel towards the kids is pure hatred. * * * I think
alot (sic) of the kids attitudes are coming from the way they’re
being talked to.

(Def.’s Ex. E).

1
Jody claimed that the kids were with him 54-57 percent of the time already. As Lisa had sole custody, it
is unclear when or where Jody received all his extra time, but the numbers that he used were not
specifically disputed on cross examination.

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{¶17} Jody attempted to further impeach Carr by playing an audio tape

Brooke recorded that allegedly depicted Carr yelling at the children. When the

tape was played, Carr said he could not make out the voice on the tape. Jody

attempted to play the audio louder but Carr said he still could not make out the

voice on the tape. Lisa’s counsel then objected to the admission of the tape for

lack of foundation as Jody admitted that Brooke had made the tape, not Jody, and

Carr had not identified his voice. As the GAL had spoken already on behalf of

Brooke, the Magistrate found that the audio tapes lacked foundation and did not

admit the tapes into evidence.

{¶18} At the conclusion of Carr’s testimony, Jody rested his case and

requested that the Magistrate interview Brooke and Jesse. Lisa, through her

counsel, elected not to put on any evidence in support of her motions or against

Jody’s and did not testify at the hearing. Lisa then moved to admit her exhibits

into evidence and rested her case. The matter was thus submitted for decision by

the Magistrate.

{¶19} On July 29, 2009, the Magistrate filed notice of his intention to

interview the two oldest children, Brooke and Jesse. On August 7, 2009, the

Magistrate interviewed Brooke and Jesse.

{¶20} On August 14, 2009, the Magistrate issued his decision on the

pending motions awarding temporary residential parent status and temporary legal

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custody of Brooke and Jesse to Jody.2 Under the Magistrate’s decision, custody of

the two youngest children remained with Lisa.

{¶21} On August 27, 2009, Jody filed objections to the Magistrate’s

decision. On August 28, 2009, Lisa filed objections to the Magistrate’s decision

and a motion for findings of fact and conclusions of law. On September 4, 2009,

the Magistrate issued a decision asserting that there already were findings of fact

and conclusions of law in his previous fourteen page opinion.

{¶22} On September 14, 2009, Lisa filed proposed findings of fact and

conclusions of law. On October 5, 2009, pursuant to a motion by Lisa, the

Magistrate issued a stay on his decision pending the outcome of the objections.

On December 7, 2009, the common pleas court held a hearing on the objections to

the Magistrate’s decision.

{¶23} On March 30, 2011, over fifteen months after the December 7, 2009

hearing, the court issued its decision on the objections to the Magistrate’s decision.

Noting that the case had been pending for an inordinate amount of time, the trial

court stated that it had extensively examined the case in an attempt to analyze the

case from all angles while conducting its independent review and analysis.

Ultimately the trial court agreed with the Magistrate. On July 28, 2011, the court

2
The designation of “temporary” custody by the Magistrate appears to be directed solely in recognition of
the fact that the Magistrate’s decision was subject to the independent review and approval of the common
pleas court.

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filed a judgment entry denying all objections and adopting the Magistrate’s

decision.

{¶24} This appeal followed and Lisa asserts four assignments of error for

our review.

ASSIGNMENT OF ERROR I.

THE TRIAL COURT COMMITTED PREJUDICIAL ERROR
IN GRANTING APPELLEE CUSTODY OF THE OLDEST
TWO CHILDREN WITHOUT A MOTION PENDING FOR
CHANGE IN CUSTODY AS THE COURT WAS WITHOUT
JURISDICTION TO MAKE SAID CHANGE AND SAID
CHANGE VIOLATED APPELLANT’S DUE PROCESS
RIGHTS.

ASSIGNMENT OF ERROR II.

IT WAS ERROR FOR THE TRIAL COURT TO MODIFY
CUSTODY OF THE TWO OLDEST CHILDREN WITHOUT
A SHOWING OF A CHANGE IN CIRCUMSTANCE.

ASSIGNMENT OF ERROR III.

PRESUMING ADEQUATE CHANGE IN CIRCUMSTANCE,
THE TRIAL COURT ABUSED ITS DISCRETION IN
AWARDING CUSTODY OF THE TWO OLDEST CHILDREN
TO THE APPELLEE BECAUSE A CHANGE IN CUSTODY
WAS NOT IN THE BEST INTEREST OF THE MINOR
CHILDREN.

ASSIGNMENT OF ERROR IV.

IT WAS ERROR FOR THE TRIAL COURT TO REFER IN
ITS DECISION TO EVIDENCE THAT WAS NOT
PROPERLY ADMISSIBLE BEFORE THE TRIAL COURT IN
ITS DECISION.

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Standard of Review

{¶25} 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.

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

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

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

applying the abuse of discretion standard, a reviewing court may not simply

substitute its judgment for that of the trial court. Id.

First Assignment of Error

{¶26} In Lisa’s first assignment of error, she makes two arguments that the

court was without jurisdiction to change custody of the two oldest children: (1)

that there was no motion for change in custody pending before the court and (2)

that because Jody testified that there was no reason he could recall as to why he

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filed the “emergency” motion for custody in August of 2008, the motion should

have been dismissed.

{¶27} The statute governing this case is R.C. 3109.04. In pertinent part, it

reads,

(A) In any divorce, legal separation, or annulment proceeding
and in any proceeding pertaining to the allocation of parental
rights and responsibilities for the care of a child, upon hearing
the testimony of either or both parents and considering any
mediation report filed pursuant to section 3109.052 of the
Revised Code and in accordance with sections 3127.01 to 3127.53
of the Revised Code, the court shall allocate the parental rights
and responsibilities for the care of the minor children of the
marriage. Subject to division (D)(2) of this section, the court may
allocate the parental rights and responsibilities for the care of
the children in either of the following ways:

(1) If neither parent files a pleading or motion in accordance
with division (G) of this section, if at least one parent files a
pleading or motion under that division but no parent who filed a
pleading or motion under that division also files a plan for
shared parenting, or if at least one parent files both a pleading
or motion and a shared parenting plan under that division but
no plan for shared parenting is in the best interest of the
children, the court, in a manner consistent with the best interest
of the children, shall allocate the parental rights and
responsibilities for the care of the children primarily to one of
the parents, designate that parent as the residential parent and
the legal custodian of the child, and divide between the parents
the other rights and responsibilities for the care of the children,
including, but not limited to, the responsibility to provide
support for the children and the right of the parent who is not
the residential parent to have continuing contact with the
children.

(R.C. 3109.04(A)(1)).

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{¶28} We begin by addressing Lisa’s argument that there was no “motion

for change in custody” of the children filed in this case or pending at the time

Jody’s “emergency” motion was filed. At the outset we note that the above

portions of R.C. 3109.04(A)(1) specify only the filing of a “pleading” or “motion.”

The statute does not require a motion for change of custody to contain any

particular designation, title or caption in order to invoke the jurisdiction of the

court to determine the allocation of parental rights.

{¶29} In the case sub judice, Jody, acting pro se, had filed for “emergency

temporary custody” claiming that the children were being physically and mentally

abused and that there was alcohol abuse in the home. (Doc. 119). Lisa, through

counsel, filed, inter alia, a motion for suspension of Jody’s companionship time

and a motion to amend summer companionship time. (Docs. 128, 133). Thus

there were several “motions” before the court pertaining to custody of the

children. Lisa has provided no authority in her brief as to how these motions fail

to qualify under the statute or how these motions would prevent the court, after a

full hearing was held, from allocating parental rights under the statute. In fact, at

least one other District Court of Appeals has expressed no difficulty reallocating

custody rights after a full hearing following a motion for emergency temporary

custody. See Delly v. Delly, 11th Dist. No. 2011-L-018, 2011-Ohio-6004 (ex-

parte emergency temporary custody motion filed to prevent a mother from moving

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away with a child, followed by a full hearing to determine custody surrounding the

child).

{¶30} Moreover, throughout this case the parties both proceeded in

contemplation of a full change of custody.3 At the final hearing both the parties

and the Magistrate asked questions that demonstrated a full apprisal that custody

modification was at issue. For example, when asked to make an opening

statement detailing why he was there, Jody states quite plainly that he wanted

custody of the parties’ four children. (Tr. at 12). And at the beginning of the

hearing Lisa’s counsel refers to Jody’s pending motions as “his custody motions.”

(Tr. at 13). She then proceeds to make sure that nothing prior to the last custody

hearing (pre-2005) is brought up at the hearing. And, later, while cross examining

Jody, Lisa asks, “[s]o you want the Court to award you custody because you can

afford the kids, but you can’t afford to pay their medical bills?” (218).

{¶31} In addition, while the GAL was on the stand, Lisa’s counsel

rigorously cross-examined the GAL by asking questions consistent with a full

recognition that custody was at stake. The following questions are taken from

Lisa’s counsel’s cross-examination of the GAL.

3
Notably some issues were resolved at the earlier hearings. A Judgment Entry dated September 26, 2008
granted the cross-motions for psychological evaluations subject to deposit and the motion to move the
location of exchange. (Doc. 136). Another Judgment Entry appointing a GAL was filed after a subsequent
hearing December 03, 2008. (Doc. 140). Both Entries set the matter for further hearing. Eventually the
Final Hearing on all remaining pending motions was set for April 19, 2009.

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Do you believe that Brooke, based on your contact that you’ve
had, seems overly involved in this custody battle currently filed
by her father?

***

Would you agree that for the purposes of these children having
an extended period where the parties are in Court fighting for
custody, the longer that goes on the more harm that’s doing to
these kids because they’re in the middle of this custody fight?

***

Knowing what you do of the kids, and I understand you may not
have enough, but I’m just going to ask you, do you believe with
children in general that if possible, the children should be kept
together?

***

In this particular case do you believe it would be best, whatever
the Court decides, to keep all four of the children together?

***

Would you agree that if the Court were to temporarily or
permanently switch custody to Mr. Kaiser that there would be a
change in the children’s school?

(Emphasis added.) (Tr. at 48, 55, 61, 62, 63).

{¶32} Not only did the parties act throughout the hearing as though a

change in custody was contemplated, but the Magistrate also consistently treated

the hearing as though a change in custody was at stake without addressing it in any

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other manner. The following are examples of questions asked by the Magistrate

throughout the hearing:

[To GAL] If Brooke were to move in with Jody on Monday
would that be a good idea or a bad idea?

***

[To Jody] Why don’t you start out by telling us why you want
custody of all four children?

***

[To Jody] Okay why do you think the kids would be better off
with you than where they are at this point?

***

[To Jody] Do you have anything else you want to state as to why
you should – why the court should change custody from Lisa to
you?

***

(Tr. at 118, 156, 159, 166).

{¶33} In sum, both parties and the Magistrate clearly conducted the hearing

as a hearing on change of custody. Moreover, Lisa’s counsel did not once object

at the hearing on the basis of being unprepared to address the issue of permanent

custody. We also note that Lisa declined to call any witnesses or testify herself at

the final hearing. At the conclusion of Jody’s case she merely entered her exhibits

and rested perhaps thinking, as the Magistrate characterizes it in his decision, that

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Jody had failed to meet his burden. Nevertheless, Lisa was certainly not precluded

from putting on testimony. Nor did she ever argue or proffer any testimony that

she claimed she would have presented had she known full custody was being

litigated. She knew about the hearing months in advance, was represented by

counsel, and had her counsel vigorously cross-examine witnesses where

appropriate.

{¶34} Lisa next argues that the Magistrate should have dismissed the case

when Jody stated while testifying that he did not really have an emergency reason

for filing the motion for emergency temporary custody in August of 2008. Lisa

bases her argument on the fact that the Magistrate could have properly dismissed

the case, which the Magistrate acknowledged in his decision. However, inasmuch

as the parties seemed to be fully apprised of the issues, and the court was at that

point in the process of conducting a full custody hearing, we find it was within the

Magistrate’s discretion to proceed to allocate parental rights under these

circumstances pursuant to R.C. 3109.04(A).4

{¶35} For these reasons, Lisa’s first assignment of error is overruled.

4
On appeal at oral argument Lisa’s counsel argued that no jurisdictional affidavit was filed to comply with
R.C. 3127.23. No objection was ever made before the Magistrate on this issue, this issue was not raised in
Lisa’s objections to the Magistrate’s decision and this issue was not raised as an assignment of error in the
brief before this court.

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Second Assignment of Error

{¶36} In her second assignment of error, Lisa claims that the court erred in

modifying custody without showing an adequate change in circumstances. R.C.

3109.04(E)(1)(a) authorizes a trial court to modify or terminate a prior decree

allocating parental rights and responsibilities. The statute outlines what a court

must consider in its determination of whether a modification of a prior custody

decree is warranted. Specifically, R.C. 3109.04(E)(1)(a) states the following

regarding a modification of prior custody decree:

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:

(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.

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(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.

{¶37} 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, 3 OBR 479 (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 constant relitigation of issues

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

App.3d 192, 196 (1994). Therefore, the modification must be based upon some

fact that has arisen since the prior order or was unknown at the time of the prior

order. R.C. 3109.04(E)(1)(a).

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

demonstrated that a change in circumstances has occurred, we are reminded that

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

Ohio St.3d 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.

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{¶39} In the fourteen page decision filed by the Magistrate in this case, the

Magistrate found that there was a change of circumstance. In doing so he stated,

In determining whether a change of custody is warranted, the
Court has considered all of the evidence presented and the entire
interviews of the children, not just the facts summarized in this
decision. The Court has review (sic) the prior decisions and
Guardian reports. The court has also taken into account all
relevant statutory factors.

The Court finds that a sufficient change of circumstances has
occurred for Jesse and Brooke in that they are mature enough
and have sufficient reasoning ability now to tell the court which
parent they want to live with. All other circumstances in this
case, however, seem surprisingly similar to the circumstances of
four years ago.

{¶40} Lisa argues that the only change of circumstance cited by the

Magistrate is the passage of time and that passage of time alone is not enough to

constitute change of circumstances. See Butler v. Butler, 107 Ohio App.3d 633

(3d Dist. 1995).

{¶41} However, from the above passage it is clear that the Magistrate found

that not only had several years passed, but also that both Brooke and Jesse had

reached an age of sufficient reasoning ability, constituting a change in

circumstances. A child crossing a developmental age in his or her life has been

found to be enough, along with the passage of time, to constitute a change in

circumstances. Perz v. Perz, 85 Ohio App.3d 374, 377 (1993).

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{¶42} In Perz v. Perz, the Sixth District Court of Appeals found that the

passage of time in a child’s life from infancy to early adolescence is sufficient to

warrant determining whether a change was in the best interests of the child. Id.

The court in Perz noted an Ohio Supreme Court case, Dailey v. Dailey, 146 Ohio

St. 93 (1945), which held that there is an “adequate change of circumstances when

a child reaches the age where, under the law in effect at that time, the child could

choose the custodial parent.” Id. at 376 fn. 1, citing Dailey. The Sixth District

continued by noting that R.C. 3109.04(B) does not provide such an age, but does

state that a child with sufficient reasoning ability to express his wishes is a

substantial factor. Id. Ultimately, the Perz court reasoned that, “[i]n applying the

reasoning of Dailey to the statute in effect at the time of the hearing, we conclude

that a child’s attainment of ‘sufficient reasoning ability’ would be a substantial

change in material circumstance such as would justify a further inquiry into the

best interest of the child.” Id.

{¶43} In this case, Brooke and Jesse were nine and eight years old

respectively as of the last custody hearing.5 At the time of the final hearing in this

appeal, they were 14 and 13. The Magistrate notes that the GAL felt that “Brooke

was mature enough and had sufficient reasoning ability to express her wishes as to

her choice of parent.” (Doc. 156). The GAL testified that in her opinion Jesse

5
They were, however, 10 and 9 at the time the decision was filed awarding sole custody to Lisa.

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was closer than the younger girls but perhaps not there yet. Jody Kaiser testified

that he felt Brooke and Jesse were both mature enough to make a decision. The

Magistrate interviewed Jesse and Brooke after the hearing and determined from

that interview that they both were mature enough and had sufficient reasoning

ability to make their own decision regarding where they wanted to live.

{¶44} Brooke and Jesse expressed repeatedly to the GAL and the

Magistrate that they wanted to live with their father. The GAL testified that

Brooke was upset she could not come to court to convey just how strongly her

desire was to have Jody granted custody. Lisa argues that incidents such as

Brooke distributing a flyer at school calling Lisa a bad mother and asking for

financial and/or legal assistance to help get Jody custody are hardly indicative of

any type of maturity that may have been possessed by Brooke and that the GAL

stated Jesse was not quite mature enough to make a decision yet. However, giving

due deference to the Magistrate who personally interviewed Jesse and Brooke, we

find no abuse of discretion with the decision finding there was a change in

circumstance based upon Brooke and Jesse’s attainment of sufficient reasoning

ability. Both the GAL and the Magistrate agreed on Brooke’s reasoning ability.

Though the GAL thought that Jesse was not quite there yet, the Magistrate acting

as fact-finder disagreed and determined from his interview that Jesse did have

sufficient reasoning ability.

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{¶45} For the foregoing reasons, Lisa’s second assignment of error is

overruled.

Third Assignment of Error

{¶46} In her third assignment of error, Lisa argues that even presuming

there was an adequate change in circumstances, it was not in Brooke and Jesse’s

best interest for Jody to be granted custody. R.C. 3109.04(F)(1) provides a list of

nonexclusive factors for the trial court to consider in determining the best interests

of the children. These factors include:

(a) The wishes of the child's parents regarding the child's care;

(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;

(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;

(d) The child's adjustment to the child's home, school, and
community;

(e) The mental and physical health of all persons involved in
the situation;

(f) The parent more likely to honor and facilitate court-
approved parenting time rights or visitation and companionship
rights;

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(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;

(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; * * *

(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;

(j) Whether either parent has established a residence, or is
planning to establish a residence, outside this state.

{¶47} In the Magistrate’s decision, he thoroughly reviewed the unique and

difficult nature of this case, ultimately finding that it was in Brooke and Jesse’s

best interest to live with Jody. The decision, in pertinent part, reads:

[u]nder the special circumstances of this case the Court sees little
point in not honoring Brook’s (sic) wishes to live with her father
and it would be better for all concerned. The Court finds that it
is in her best interest that she live with her father at this time. It
is further believed that due to his age and maturity, it would be
in Jesse’s best interest that his wishes be accepted and that he
lived with his dad. In both cases, that unchallenged testimony
suggests that both he and Brooke are staying with their dad
more than half of the time anyway and the benefit already
exceeds the harm of the change.

(Doc. 156).

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{¶48} Though not specifically listing each factor of R.C. 3109.04(F)(1) in

his decision, the Magistrate did address the issues contemplated by the factors.

The Magistrate interviewed Brooke and Jesse after the hearing and found,

consistent with the GAL’s interviews, that Brooke and Jesse strongly desired to

live with their father. In making his decision, the Magistrate also factored in the

uncontroverted testimony at the hearing that the children were already staying

with their father over half of the time already, “and the benefit already exceeds the

harm of a change.” The GAL testified that Brooke informed her that the

adjustment in changing custody would be minor as she already had friends in the

area where her father lived.

{¶49} The Magistrate also considered the interrelationship of Brooke and

Jesse to their siblings, the children’s relationship with their parents, and the

psychological and emotional effects of those relationships. In doing so, the

Magistrate noted Brooke’s emotional involvement in the custody case and

Brooke’s extreme measures undertaken to get her father custody.

{¶50} Early on Brooke took a letter Lisa had written to Carr and gave it to

Jody in hopes that it would help Jody with the custody battle. Later Brooke

regularly made audio recordings around Lisa’s household in an attempt to

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illustrate her living conditions.6 She made a flyer that essentially called Lisa a bad

parent and asked for financial and/or legal assistance to get Jody custody and

distributed that flyer at her school. She also made videos and posted them to

YouTube calling Lisa a bad parent, among other things. At Lisa’s house Brooke

encouraged the other children to write down anything bad that happened so that

the younger children would remember and so that the incidents could be used in

the custody battle. She and the other children even wrote letters to the court

regarding the custody battle. Brooke had become what the GAL described as a

“torch bearer” for her father in the custody dispute.

{¶51} Based on this, the Magistrate was concerned with Brooke’s influence

on the younger children. Further, he was concerned that because of Brooke’s

pressure on the younger children to record household incidents, especially those

regarding Carr, the younger children were potentially not thinking independently.

The record indicates the Magistrate’s concern that keeping these kids together

would result in Brooke’s continued efforts to get her father custody, jeopardizing

the relationship of the youngest children with their mother. Supporting the

Magistrate’s reasoning in his decision, the GAL testified that although typically it

is better for children to be kept together, she was not so sure in this case.

6
This resulted in Jody having a total of 62 audio recordings at the hearing, nearly all of which were not
played due to the lack of foundation and Jody’s lack of knowledge of courtroom procedure.

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{¶52} As pointed out by the Magistrate, the children all complained about

their relationship with Lisa’s boyfriend, Jeff Carr. The GAL testified that the

children all told her that Carr yelled and cussed at them. The children also told the

GAL of alleged incidents where they were forced to stand in corners facing walls

for excessive periods of time—one incident in which the youngest child

supposedly passed out.

{¶53} The children informed the GAL that they all enjoyed staying with

Jody. Conversely, Brooke clearly had issues with staying with Lisa. Jesse took no

similar extreme position against Lisa, saying he merely desired to live with his

father. The younger children, whom Jody was not awarded custody of, expressed

dislike for the chores they had to do in Lisa’s home and further dislike for Carr,

but the Magistrate and the GAL noted that some of their dislike seemed to mirror

Brooke’s and could have been the result of her influence. In sum, the Magistrate

factored into his decision the children’s relationship with each other and with their

parents as well as the psychological and emotional state of all those involved,

including the children that he permitted to remain with Lisa.

{¶54} Furthermore, it is clear that the Magistrate considered factors of R.C.

3109.04(F)(1) that were not favorable to granting Jody custody. The Magistrate

noted that there was “concern based on the testimony, the demeanor of the parties

and the history of the case that if [Jody] gets custody of all the kids, he will be

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Case No. 4-11-11

much less flexible with parenting time than [Lisa].” (Doc. 156). The Magistrate

continued, “the evidence both now and as reviewed in past decisions suggest that

[Jody] will not encourage or cooperate in facilitating parenting time.” Id. Further

weighing against Jody was the fact that he owed Lisa money for uncovered

medical expenses and past child support.

{¶55} After careful consideration of the above evidence, the Magistrate

decided that the benefit of granting Jody custody of Brooke and Jesse exceeded

the harm of the change. The Magistrate’s decision reflects clear consideration of

the factors listed above both weighing for and against the ultimate outcome. With

competent credible evidence to support that finding, we find no abuse of discretion

in the Magistrate’s decision.

{¶56} After the Magistrate made his decision, both sides filed objections.

The trial court then undertook an independent review and analysis of the record.

The trial court noted in undertaking its independent review and analysis that the

decision was pending for “an inordinate period of time” because

“[t]he disturbing circumstances presented before the Magistrate
* * * caused the court to review and re-review on multiple
occasions the evidence presented in an effort to try to arrive at a
workable solution for the benefit of the children.

***

[T]he court has considered every possible alternative resolution
of which the court could conceive, none of these appear

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Case No. 4-11-11

practicable or more likely to serve the best interests of the
children in the result arrived at by the Magistrate.

{¶57} As part of the Trial Court’s independent review and analysis, the

court stated that it even considered that neither parent was

appropriate to designate at (sic) residential parent and legal
custodian, which would result in either relative placement or
transfer to the Juvenile Division. While having a certain appeal,
this resolution, the court must conclude, would not ultimately
serve the best interests of the children. It should be noted that
“best” calls for a comparison of realistic alternatives.

Ultimately the trial court held that the Magistrate’s decision correctly reflected the

best available resolution of a difficult situation. From the record it is apparent that

the trial court thoroughly and independently reviewed the record and came to the

same conclusion as the Magistrate. As there is substantial competent credible

evidence to support the decision made by both the Magistrate and the trial court

we find no abuse of discretion.

{¶58} Accordingly, Lisa’s third assignment of error is overruled.

Fourth Assignment of Error

{¶59} In her fourth assignment of error, Lisa argues that it was error for the

trial court to refer in its decision to evidence that was not properly admissible

before the court. Specifically, Lisa claims that the Magistrate improperly referred

to a letter that she claims lacked foundation for introduction, and she claims that

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the Magistrate improperly referred to an alleged partial tape recording of Jeff Carr

that was played in court which Carr did not identify.

{¶60} Lisa’s first argument is that the trial court erred in referring to a

partial letter that she says lacked foundation for admission. The letter being

referenced is one that Lisa allegedly wrote to Jeff Carr. Contained in the letter

were statements by Lisa to Carr saying, inter alia, that Carr should not yell and

cuss at the children as though they were adults.

{¶61} At the final hearing the GAL mentioned the letter, saying that

Brooke informed her that after Brooke had taken the letter from Lisa’s home, Carr

regularly searched all the children’s backpacks to make sure they were not taking

anything out of the house that could be used in the custody dispute. Later, when

Carr was on the stand, Jody produced the letter that Brooke had taken and asked

Carr if he recognized it. Carr said he did. Jody proceeded to ask,

Q: What is it?

A: A letter that Lisa wrote me.

Q: A letter that Lisa wrote you?

A: Yeah.

Q: Okay. Do you remember what all it said in that letter or

anything about it?

A: Vaguely.

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(Tr. at 224). Lisa’s counsel objected to the admissibility of the letter when Jody

attempted to move the letter into evidence. The Magistrate stated, “I think he has

sufficient – Mr. Carr has identified it as a letter to him from his – from Lisa.

Okay, these are the three Exhibits [that] will be admitted.” (Tr. at 236).

{¶62} A piece of writing may be authenticated under Evid.R. 901(B)(1) by

testimony of a witness with knowledge that a matter is what it is claimed to be.

Evid.R. 901(B)(1); see also Bross v. Smith, 80 Ohio App.3d 246, 251 (12th Dist.

1992). Given the broad discretion afforded trial courts in deciding the

admissibility of evidence, we find no abuse of discretion in the Magistrate relying

on this piece of evidence in his decision as it was properly authenticated and

introduced into evidence by Carr’s identification that the letter shown to him was

the letter that was written to him by Lisa. See Rigby v. Lake Cty., 58 Ohio St.3d

269, 271 (1991) (holding “a trial court is vested with broad discretion in

determining the admissibility of evidence in any particular case, so long as such

discretion is exercised in line with the rules of procedure and evidence.”).

Therefore, we find Lisa’s first argument without merit.

{¶63} Lisa next argues that the Magistrate improperly relied in his decision

on information gleaned from an audio tape that was inadmissible. The specific

tape in question is allegedly of Carr yelling at the children. While Jody had Carr

on the stand, Carr denied that he punished the kids excessively or cussed at them

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and threw things around. (Tr. 223-224). In an attempt to impeach Carr, Jody

played an audio recording that was made by Brooke, which would allegedly show

that Carr was lying on the stand. Jody tried several times to play the recording,

asking Carr if he recognized the voice on the tape. Carr said he could not make

out the audio despite Jody’s attempts to play it louder. When Carr could not

identify the tape, the Magistrate found the tape lacked foundation and did not

admit the tape into evidence.

{¶64} However, in his written decision, the Magistrate stated that the voice

on the tape “seemed relatively clear to the undersigned and resembled Mr. Carr’s

voice as spoken in the Court room.” (Dec. at 9). The Magistrate also stated that

“[t]he brief portion of the tape heard for identification purposes demonstrated that

there was a definite problem. Jeff Carr’s action in screaming at [Brooke] and

using the ‘F’ word were clearly inappropriate even if she was a troublesome

teenager.” (Doc. 156). As the trier of fact, the Magistrate is entitled to make such

deductions that the denial or equivocation by Carr was disingenuous, or otherwise

not credible and draw his own conclusion on the matter.

{¶65} Furthermore, the Magistrate also interviewed Brooke and asked her

about the audio tape. Brooke stated that she had indeed made the tape and it was a

tape of Carr yelling at her. Lisa argues that it was improper for the Magistrate “to

lay the foundation for the admissibility of the tape” through the interview with

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Brooke. However, as part of the interview process, the Magistrate is legitimately

entitled to ask Brooke her reasons as to why she wants to live with Jody. As part

of that reasoning, we believe Brooke can refer to incidents such as the one where

she was being yelled at and also refer to the tape as a corroboration of her

complaints. The decision does not state that the tape was again played in the

interview, only that Brooke was asked about it. For these reasons, we find that it

was not improper for the Magistrate to refer to the tape in his written decision.

{¶66} However, even if the Magistrate improperly referred to the audio

tape in his decision, we find no prejudice to Lisa as the tape was merely

cumulative to other evidence presented. The GAL had already given testimony

from all four children saying how harshly Jeff Carr punished them at times. The

letter from Lisa to Carr showed that even Lisa was concerned with the way Carr

talked to the children. As such, any information taken from the brief tape excerpt

was only cumulative to other evidence. Accordingly, Lisa’s fourth assignment of

error is hereby overruled and the judgment of the trial court is affirmed.

{¶67} For the foregoing reasons, Lisa’s assignments of error are hereby

overruled.

Judgment Affirmed

PRESTON and WILLAMOWSKI, J.J., concur.

/jlr

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