Wallace v. Willoughby

[Cite as Wallace v. Willoughby, 2011-Ohio-3008.]

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

WILLIAM WALLACE, IV,

PLAINTIFF-APPELLEE, CASE NO. 17-10-15

v.

AMBER WILLOUGHBY, OPINION
NKA HERRON,

DEFENDANT-APPELLANT.

Appeal from Shelby County Common Pleas Court
Juvenile Division
Trial Court No. 2002-PAT-0002

Judgment Affirmed

Date of Decision: June 20, 2011

APPEARANCES:

Kimberly S. Kislig for Appellant

Roberta S. Roberts for Appellee
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ROGERS, P.J.

{¶1} Defendant-Appellant, Amber Willoughby, appeals the judgment of the

Court of Common Pleas of Shelby County, Juvenile Division, granting Plaintiff-

Appellee, William Wallace, IV, residential parent status of their two children,

William Wallace, V, (“William”) and Seth Wallace (“Seth”). On appeal,

Willoughby argues that the trial court erred when it refused to consider additional

evidence; that the trial court erred in finding that a change in circumstances had

occurred; that the trial court’s decision was not in the best interests of the children;

and, that the trial court did not properly weigh the advantages and disadvantages

of changing the residential parent. Based upon the following, we affirm the

judgment of the trial court.

{¶2} Willoughby and Wallace, who never married, had two children

together, William and Seth.1 In February 2002, Willoughby and Wallace filed a

joint motion for shared parenting. In March 2002, the trial court issued a shared

parenting decree.

{¶3} In March 2003, Willoughby filed a motion requesting termination of

the shared parenting plan and for designation as residential parent. In November

2003, the trial court issued a judgment entry modifying the parental rights and

responsibilities, naming Willoughby as the residential parent and legal custodian

1
In March 2002, the trial court found that Wallace was the natural father of William and Seth.

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of William and Seth. Subsequently, Willoughby married Fred Herron.

Willoughby and Herron have two children together, Levi, age 3, and Roslyn, age

2.

{¶4} In January 2010, Wallace filed a “Motion to Reallocate Parental

Rights and Responsibilities, or in the Alternative, Shared Parenting.” Specifically,

Wallace requested the trial court to designate him as the sole custodian of William

and Seth, or in the alternative, order a shared parenting plan designating him as the

residential parent. Wallace’s motion stemmed from Willoughby’s upcoming

move from Sidney to Ansonia, Ohio, and the effects such move would have on

William and Seth.

{¶5} In February 2010, the magistrate conducted an in camera interview of

William and Seth, independently of each other. During the magistrate’s interview

with Seth, who was eleven at the time, Seth expressed a great desire to reside with

Wallace, whereas William, who was twelve at the time, did not have an opinion on

the matter. Later that month, Wallace filed a proposed shared parenting plan, to

which Willoughby objected.

{¶6} In March 2010, the matter proceeded to a final hearing, at which the

following pertinent facts were adduced. Seth and William, until their recent move

to Ansonia, had lived their entire life in Sidney, where much of Wallace’s and

Willoughby’s family reside. Wallace currently resides in Sidney. After becoming

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the residential parent in 2003, till her move to Ansonia in February 2010,

Willoughby lived in six different residences in Sidney. During most of that time

the children attended Christian Academy School (“Christian”) in Sidney. After

the 2008-2009 school year William and Seth were enrolled at Northwood

elementary school, a public school in Sidney. Halfway through the 2009-2010

school year Willoughby and Herron moved to Ansonia, where William and Seth

were enrolled in one of Ansonia’s public schools.

{¶7} Testimony was heard concerning William’s and Seth’s history of

tardiness and absences from school. Throughout their schooling at Christian and

Northwood, William and Seth were often tardy and absent. In the 2006-2007

school year William was absent for nine and a half days and tardy thirty-eight

days, while Seth was absent ten days and tardy thirty-one days. In the 2007-2008

school year William was absent for nine and a half days and tardy sixty-three

days, while Seth was absent eight and a half days and tardy fifty-two days.

Willoughby testified that the high incidents of tardiness and absences were due to

William’s and Seth’s medical issues, and that the high numbers may also be the

result of a computer glitch. Denae Perkins, Wallace’s sister, testified that her

children would often carpool with Willoughby to school, but that she discontinued

the arrangement because Willoughby would, at times, not drop the children off at

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school on time. Wallace testified that when he learned of the attendance problems

he offered to take the boys to school and did so on several occasions.

{¶8} Testimony was also heard about the parents’ involvement with

William’s and Seth’s education. Both Wallace and Willoughby have attended

parent-teacher conferences. Both testified that they assist the children with their

homework. Despite this testimony Willoughby testified that Wallace has not

played an active role in William’s and Seth’s education. Wallace testified that

while he did not go out of his way to introduce himself to the faculty at Christian,

he has played an active role in William’s and Seth’s education. In support,

Wallace testified that in May 2009 Willoughby took the children out of school to

visit her father in Missouri, who had injured his ankle. Wallace offered to take the

children during that time period so they could attend school, but Willoughby

declined the offer. When they returned from Missouri Seth was behind in his

schoolwork. Willoughby testified that Seth was behind due to his teacher’s failure

to send his schoolwork. Wallace testified that upon returning home he and his

fiancé, Alicia Francis, helped Seth finish his overdue schoolwork. To support this

fact, Wallace introduced several emails between him and Seth’s third grade

teacher, in which Seth’s teacher thanks Wallace for helping Seth finish his

overdue schoolwork.

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{¶9} Testimony was also heard concerning the parents’ involvement in

their children’s athletics. Wallace testified that he consistently encourages his

children to take part in sports, and that he never forces his children to be involved

in sports. Willoughby testified that she and Herron are less interested in the

children’s athletics. Perkins testified that her son plays on the same teams as

William and Seth, and that Wallace attends all of the children’s games, whereas

she has seen Willoughby at only three of the children’s games.

{¶10} Testimony was also heard concerning Seth’s immunizations.

Evidence was presented that Seth had not received his fourth DTAP booster shot.

Wallace produced evidence that Willoughby had received notices in 2005, 2007,

and 2008 about Seth’s failure to receive his fourth DTAP booster shot. In

November 2009, Willoughby signed an immunization exemption form, stating that

she believed it was too late for Seth to receive the shot. Willoughby also testified

that she believed Seth’s immunization records may have been misplaced as a

result of one of her moves, and that she believes Seth is current on all of his

immunizations.

{¶11} Testimony was also heard concerning Wallace’s alleged short temper

and violent nature. Willoughby testified about two incidents, which she claimed

exemplify Wallace’s short temper and violent nature. The first incident occurred

in September 2005, when William came home from Wallace’s residence with a

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laceration on his finger. Eight days later Willoughby took William to the hospital,

where William was diagnosed with a broken finger. The incident was reported to

Children Services. A Children Services report stated that Wallace admitted to

spanking William, and that William, in an effort to shield the spanking, placed his

hand between himself and Wallace’s hand causing Wallace to strike William’s

hand. Ultimately, Children Services terminated the case as “unsubstantiated.”2

The second incident occurred in 2009. Herron was out of town when Wallace

received a call from Willoughby. Willoughby was having difficulty controlling

Seth and asked Wallace to come over and support her. The difficulty stemmed

from an argument between Seth and Willoughby pertaining to Seth’s desire to

reside with Wallace. Wallace testified that he spanked Seth once. Willoughby

testified that she had to restrain Wallace’s hand to prevent a second spank.

Wallace further testified that Seth visited him the next day with no visible injury.

The incident was never reported to the police or Children Services. In addition to

these incidents Janice Bertsch, Wallace’s ex-fiancé and girlfriend of five-years,

testified that Wallace had once thrown a dish out of anger, that he often spoke

negatively of Willoughby in the children’s presence, and that he used a belt to

spank the children. Francis testified that she moved in with Wallace in 2008, and

2
A Children Services case terminated as “unsubstantiated” means the investigation resulted in a
determination that child abuse could not be proven.

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that she has not been the victim of or witnessed any violent behavior from Wallace

towards her or the children.

{¶12} Lastly, testimony was heard concerning the effect of separating

William and Seth. Every witness that was questioned on the matter testified that

William and Seth should not be separated.

{¶13} Upon considering the testimony and evidence proffered during the

final hearing, as well as the in camera interviews with William and Seth, the

magistrate recommended that Wallace be designated as the residential parent of

the children.

{¶14} In April 2010, Willoughby timely objected to the magistrate’s

decision. Willoughby’s objection reads, in pertinent part:

Pursuant to Civil Rule 53(D), Defendant, Amber Willoughby
nka Herron (“Mother”), by and through counsel, hereby objects
to the Magistrate’s Decision issued March 23, 2010 * * *.
Specifically, the Mother objects to the Magistrate’s findings of
fact; conclusions of law; discussion; and decision regarding the
allocation of the residential parent of the minor children of the
parties * * *. The Mother states that the findings of fact;
conclusions of law; discussion; and decision regarding the
allocation of the residential parent of the Minor Children are not
supported by the record of the case and law.

{¶15} Prior to the trial court filing its judgment entry, but subsequent to her

objections, Willoughby filed several motions requesting the trial court to consider

additional evidence, to wit: a request for a guardian ad litem report, an updated

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psychological evaluation of Wallace, a second in camera interview with the

children, and Wallace’s return to work. The trial court denied all motions.

{¶16} In July 2010, the trial court, in overruling Willoughby’s objection to

the magistrate’s decisions, found as follows:

Addressing the Magistrate’s recommendations that a “change in
circumstance” has occurred in this matter by virtue of: 1) the
Defendant’s relocation (from Sidney) to Ansonia, Ohio; 2) the
wishes of Seth to reside with his father; and 3) the enrollment of
the children in three different schools in a 8-9 month period, this
Court finds that competent and credible evidence exists in the
record to make such findings. The above facts were not in
dispute throughout the custodial proceedings. Hence, proof of a
change in circumstances exists in the record to make the finding
(regarding a change in circumstances) concerning Seth.

In analyzing whether or not a change of circumstances exists
regarding (young) William, the Court has examined the record
and finds that every witness testifying as to “splitting up”
William and Seth agreed that the two boys should remain
together. Compliment this evidence with the above change of
circumstances evidence set forth (regarding Seth) above, the
Court finds a change of circumstances exists relative to William.

***

The Court’s independent review of the evidence is in concert
with the Magistrate’s decision relative to the finding of a change
in circumstances regarding William and Seth. The Magistrate’s
Decision fulfills the due diligence for a trial court to develop
facts, analyze evidence and apply the law in arriving at a
recommendation in regard to a change of circumstance.
Accordingly, the Court finds through its independent review of
this matter that the plaintiff has met the burden of proving that
a change has occurred in the circumstances of William and Seth.

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[Trial Court sets forth the best interest factors of R.C.
3109.04(F)(1)]

Applying the above factors to the evidence in this case,
specifically the in-camera interview of William and Seth as it
relates to factors (b) and (c) above, the Court finds that Seth is
adamant about living with his fatter (sic), that Amber talked
with Seth the night prior to the in-camera interview in hopes of
“changing” Seth’s mind, and that Seth’s relationship with Levi
and Roslyn is not as represented by Defendant.

Relative to factors (sic) (d) above, William and Seth’s schooling
is a concern to the Court in relation to their conduct, absences,
tardies and school stability. The evidence from both parties
paints a picture that academics are not a strong priority. Also
relevant to this factor is both boys adjustment to their
community. Both have been active in sports year round and
both enjoying friendships among peers in Sidney.

Regarding factor (e) above, the Defendant has not been diligent
in providing Seth with necessary and timely immunizations.

The evidence is unrevealing as to factor (f). But as to the factor
(g), the evidence is clear that the Plaintiff is current in his
support obligation, including any past arrearages, for William
and Seth. Further, the Plaintiff has neither been convicted of a
violation of R.C. 2919.25 nor been found to be the perpetrator of
an abusive or neglectful act toward William, IV (sic) or Seth
under factor (h) above. The Court disagrees with the posturing
of Defendant (i.e. pleadings and memoranda) referring to
Plaintiff as a child abuser and a person convicted of domestic
violence. These insidious harangues are unwarranted.

Summarizing the “best interests” factors, the Court’s
independent review and analysis of the evidence finds factors
(b), (c), (d), (e), and (h) of R.C. 3109.04(F)(1), pivotal in deciding
the best interests of William and Seth. The Court agrees with
the Magistrate that the credibility of the Defendant is a concern,
through her evasive and non-responsive testimony as well as less

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than credible pleadings. Based upon the foregoing, the Court
concludes that it is in the best interests of William, V. (sic) and
Seth to reside with the Plaintiff effective forthwith.

{¶17} It is from this judgment that Willoughby appeals, presenting the

following assignments of error for our review.

Assignment of Error No. I

THE TRIAL COURT ERRED WHEN IT REFUSED TO
CONSIDER, AS ADDITIONAL EVIDENCE FOR
DEFENDANT-APPELLANT’S OBJECTION: 1) HER
REQUEST FOR A GUARDIAN AD LITEM REPORT; 2) HER
REQUEST FOR AN UPDATED PYSCHOLOGICAL
EVALUATION; 3) HER REQUEST FOR A SECOND IN-
CAMERA INTERVIEW; AND/OR 4) HER NOTICE THAT
THE PLAINTIFF-APPELLEE HAD RETURNED TO WORK,
WHEN HE WAS UNEMPLOYED AT THE TIME OF THE
ORIGINAL MAGISTRATE’S DECISION, WHEN SUCH
ADDITIONAL EVIDENCE WAS NECESSARY TO MAKE
THE MOST APPROPRIATE DECISION FOR THE PARTIES’
MINOR CHILDREN.

Assignment of Error No. II

THE TRIAL COURT ERRED WHEN IT FOUND THAT A
SUBSTANTIAL CHANGE IN CIRCUMSTANCES HAD
OCCURRED WHEN THE ONLY MAJOR CHANGE THAT
OCCURRED, WHICH WAS A POSITIVE CHANGE, WAS
THAT THE DEFENDANT–APPELLANT MOVED TWENTY-
NINE (29) MILES AWAY BECAUSE HER HUSBAND WAS
TRANSFERRED.

Assignment of Error No. III

THE TRIAL COURT ERRED WHEN IT HELD THAT IT
WAS IN THE BEST INTERESTS OF THE PARTIES’ MINOR
CHILDREN FOR THE PLAINTIFF-APPELLEE TO BE

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NAMED THE RESIDENTIAL PARENT BECAUSE THE
FACTS USED TO SUBSTANTIATE SUCH HOLDING WERE
SLANTED TOWARD THE PLAINTIFF-APPELLEE – USING
UNBIASED FACTS WOULD LEAD TO A HOLDING THAT
IT IS IN THE BEST INTERESTS OF THE PARTIES’ MINOR
CHILDREN THAT DEFENDANT-APPELLANT REMAIN AS
RESIDENTIAL PARENT.

Assignment of Error No. IV

THE TRIAL COURT ERRED WHEN IT DID NOT
CONSIDER WHETHER THE HARM LIKELY TO BE
CAUSED BY A CHANGE IN THE ENVIRONMENT BY A
CHANGE IN THE RESIDENTIAL PARENT WAS
OUTWEIGHED BY THE ADVANTAGE OF THE CHANGE
OF THE ENVIRONMENT FOR THE PARTIES’ MINOR
CHILDREN.

{¶18} Due to the nature of Willoughby’s assignments of error, we elect to

address her second, third, and fourth assignments of error together and first.

Assignments of Error Nos. II, III & IV

{¶19} In her second, third, and fourth assignments of error, Willoughby

contends that the trial court erred in designating Wallace as the residential parent.

Specifically, Willoughby contends that the trial court erred in finding that a

substantial change occurred as a result of her moving twenty-nine (29) miles

away; that designating Wallace as the residential parent is not in the best interests

of the children; and, that the trial court did not properly weigh the advantages and

disadvantages of designating Wallace as the residential parent. We disagree.

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{¶20} As a preliminary matter we note that Willoughby’s objections to the

magistrate’s decision do not meet the specificity requirement set forth in Civ.R.

53(D)(3)(b)(ii). Civ.R. 53(D)(3)(b)(ii) provides that “an objection to a

magistrate’s decision shall be specific and state with particularity all the grounds

for objection.” “[U]nder Civ.R. 53[D](3)(b)[ii], objections must be more than

‘indirectly addressed’: they must be specific.” Young v. Young, 9th Dist. No.

22891, 2006-Ohio-2274, ¶5, quoting Ayer v. Ayer (2000), 1st Dist. No. C-990712,

2000 WL 864459, at 3. When an objecting party fails to state an objection with

particularity as required under Civ.R. 53(D)(3)(b)(ii), the trial court may affirm the

magistrate’s decision without considering the merits of the objection. Triozzi-

Hartman v. Hartman, 11th Dist. No. 2006-G-2701, 2007-Ohio-5781, ¶15, citing

Waddle v. Waddle, 11th Dist. No. 2000-A-0016, 2001 WL 314659. “Except for a

claim of plain error, a party shall not assign as error on appeal the court’s

adoption of any factual finding or legal conclusion * * * unless the party has

objected to that finding or conclusion as required by Civ.R. 53(D)(3)(b).” Civ.R.

53(D)(3)(b)(iv) [Emphasis Added.]

{¶21} Reviewing Willoughby’s objections we find that they do not meet

the specificity requirement set forth in Civ.R. 53(D)(3)(b)(ii), as they baldly assert

an objection to the magistrate’s findings of fact and conclusions of law.

Consequently, Willoughby is precluded from assigning the trial court’s disposition

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of her objections as error on appeal. Civ.R. (D)(3)(b)(iv). Nevertheless, the trial

court determined that Willoughby’s objections were ripe for consideration, and

proceeded to consider her objections, albeit it with some difficulty.3 Therefore, in

the interest of justice we will address the merits of Willoughby’s objections.

{¶22} Decisions concerning child custody matters rest within the sound

discretion of the trial court. Miller v. Miller (1988), 37 Ohio St.3d 71, 74.

Custody determinations are some of the most difficult and agonizing decisions a

trial judge must make, and, therefore, appellate courts must grant wide latitude to

their consideration of the evidence. Davis v. Flickinger (1997), 77 Ohio St.3d

415, 418, 1997-Ohio-260. Therefore, a reviewing court will not reverse a trial

court’s decision regarding child custody absent an abuse of discretion. Masters v.

Masters (1994), 69 Ohio St.3d 83, 85, 1994-Ohio-483.

{¶23} A trial court will be found to have abused its discretion when its

decision is contrary to law, unreasonable, not supported by the evidence, or

grossly unsound. See State v. Boles, 2d Dist. No. 23037, 2010-Ohio-278, ¶¶17-18,

citing Black’s Law Dictionary (8 Ed.Rev.2004) 11. When applying the abuse of

3
Although the trial court addressed the merits of Willoughby’s objections, the trial court noted that it had
difficulty in understanding her objections, stating “Defendant’s argument disputing a change in
circumstances for either William or Seth is unclear. It seems to concede the issue, yet rehashes evidence
from the parties’ custody trial of 2003, which is not relevant in this case. Further, Defendant’s argument is
difficult to follow as it contains excessive asides, editorial comments and innuendo’s (sic) which are merely
opinions and attitudes of counsel.” July 2010, Judgment Entry, pp. 6-7.

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discretion standard, a reviewing court may not simply substitute its judgment for

that of the trial court. Blakemore v. Blakemore (1983), 5 Ohio St.3d 217, 219.

{¶24} R.C. 3109.04(E) governs modification of prior court orders

allocating parental rights and responsibilities and provides as follows:

(E)(1)(a) 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:

***

(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.

Thus, in order for a trial court to modify a prior allocation of parental rights and

responsibilities, it must make a threshold finding that a change in circumstances

has occurred, and, if so, it must then determine that the modification is in the best

interests of the children. Wooten v. Schwaderer, 3d Dist. No. 14-08-13, 2008-

Ohio-3221, ¶3; Fox v. Fox, 3d Dist. No. 5-03-42, 2004-Ohio-3344, ¶38, citing

Clark v. Smith (1998), 130 Ohio App.3d 648, 653.

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A. Change in Circumstances

{¶25} In determining whether a change in circumstances has occurred, the

change must be “a change of substance, not a slight or inconsequential change.”

Davis, 77 Ohio St.3d at 418. “[T]he changed conditions * * * must be

substantiated, continuing, and have a materially adverse effect upon the

child[ren].” Id. at 417, quoting Wyss v. Wyss (1982), 3 Ohio App.3d 412, 416.

The latter is the paramount issue. Id. However, 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 children.

McLaughlin v. McLaughlin–Breznenick, 3d Dist. No. 8-06-06, 2007-Ohio-1087,

¶16, citing In re Tolbert v. McDonald, 3d Dist. No. 1-05-47, 2006-Ohio-2377,

¶31, citing Green v. Green, 3d Dist. No. 14-03-29, 2004-Ohio-185, ¶7.

{¶26} Willoughby contends, in piecemeal form, that that trial court did not

find that her move to Ansonia had a materially adverse effect upon William and

Seth, that Seth’s desire as to custody should not be considered as it is already

considered in the best interest analysis, and that Wallace failed to provide

evidence that attending school in Ansonia would have a materially adverse effect

upon William and Seth. We disagree.

{¶27} We first note that Willoughby appears to contend that the trial court

must find that each basis tending to demonstrate a change in circumstances must

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have a materially adverse effect on the child. Such an approach distorts reality.

The proper approach is to consider the total effect of the facts alleged to have

resulted in a change in circumstances. For instance, it is well settled that

relocation of the residential parent, in and of itself, does not constitute a change in

circumstances. See Rohrbaugh v. Rohrbaugh (2000), 136 Ohio App.3d 599, 604.

However, it is equally settled that a court may consider any attendant

circumstances surrounding a residential parent’s relocation that affects the child’s

welfare in determining whether a change in circumstances has occurred. See

Hanley v. Hanley, 4th Dist. No. 47CA35, 1998 WL 372685, citing Green v. Green,

11th Dist. No. 96-L-145, 1998 WL 258434. Accordingly, we must determine

whether the trial court, in considering the evidence in its entirety, abused its

discretion in finding that a change in circumstances occurred.

{¶28} Turning to the facts of the case, we find that the trial court did not

abuse its discretion in finding that a change in circumstances occurred. From 2003

to 2008 the children, with Willoughby as the residential parent, experienced a

relatively stable existence. However, the record reveals a shift in 2008, beginning

with Seth’s desire to reside with Wallace. Seth’s desire was so strong that

Willoughby permitted Seth to stay with Wallace for three months. Further

evidence of Seth’s desire to reside with Wallace appears when Willoughby, unable

to reason with Seth about living with Wallace, called Wallace over to her

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residence to reason with and control Seth. In addition to viewing this event in

terms of Seth’s desire to live with Wallace, the event can also be viewed as

demonstrating Willoughby’s inability to control Seth. Also during this time

William and Seth were enrolled in three different schools within a span of nine

months. Changing schools for any child can be difficult, but attending three

different schools in a span of nine months can severely tax a child’s ability to

perform at school, make friends, and be materially involved in extracurricular

activities. In fact, in their short time at Northwood, William and Seth had made

friends and were involved in extracurricular activities such as basketball and

student council. However, as a result of their relocation to Ansonia, the children

were not afforded much time to develop those relationships and experiences.

Although Ansonia is roughly thirty miles west of Sidney, it is an unfamiliar town

to William and Seth, who have lived their entire lives in Sidney. In addition,

much of Wallace’s and Willoughby’s family, with whom William and Seth are

close, reside in Sidney. Taken together, we find that the trial court did not abuse

its discretion in finding that a change in circumstances had occurred, as it was not

unreasonable to find that the cumulative effect of these changes had a material

effect on the children.

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B. The Children’s Best Interests

{¶29} Next, we turn to Willoughby’s contention that designating Wallace

as the residential parent was not in the children’s best interests.

{¶30} In determining the best interests of the children pursuant to R.C.

3109.04(B)(1), trial courts are directed to consider all relevant factors, including

those specifically enumerated under R.C. 3109.04(F)(1):

(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;

(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;

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(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[;]* * *

(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.

{¶31} With respect to factors (a), (f), (i), and (j) above, the trial court found

these factors to either be unavailing in determining the children’s best interests or

inapplicable. We agree, and thus we decline to consider these factors.

{¶32} First, with respect to factor (b), Willoughby contends that Seth’s

interest in living with her is on par with his interest in living with Wallace, and

that Seth’s desire to live with Wallace is driven by his belief that he would have a

better time. The magistrate’s interview with a child is confidential, thus we are

reluctant to discuss specifics from Seth’s interview. See Willis v. Willis (2002),

149 Ohio App.3d 50, 2002-Ohio-3716, ¶26, and Patton v. Patton 5th Dist. No. 94

CA 40, 1995 WL 42497. However, we have reviewed the transcript of Seth’s

interview and find that the trial court’s conclusion that this factor favored Wallace

was supported by competent, credible evidence.

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{¶33} Next, with respect to factor (c), Willoughby contends that

designating Wallace as the residential parent will detrimentally affect Seth’s and

William’s relationship with their younger siblings, Levi and Roslyn, and their

step-father, Herron. While designating Wallace as the residential parent will

undoubtedly affect William’s and Seth’s relationship with Levi, Roslyn, and

Herron, the same is true with respect to William’s and Seth’s relationship with

their family in Sidney if they continue to live in Ansonia. William and Seth have

lived in Sidney their entire lives and much of Wallace’s and Willoughby’s family

reside in and around Sidney. Testimony reveals that the boys are close to both

sides of their family in Sidney and interact with them routinely. Comparatively,

William and Seth have only known Levi and Roslyn for a couple years.

Moreover, the difference in age between the children is such that William and Seth

likely do not have a mature relationship with Levi and Roslyn, as they seemingly

do with their family in Sidney. Consequently, we find that there was competent,

credible evidence to support the trial court’s finding that this factor favored

Wallace.

{¶34} Next, with respect to factor (d), Willoughby baldly contends that the

children have adjusted to their new school and community in Ansonia. Review of

the record reveals otherwise. William’s and Seth’s lives are deeply rooted in

Sidney. Much of their mother’s and father’s family reside in Sidney. All of their

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schooling has occurred in Sidney. All of their friends live in Sidney. Both are

active in Sidney athletics, and desire to remain active in Sidney athletics.

Consequently, it would appear that William and Seth are well adjusted to their

lives in Sidney. Conversely, there is little evidence that William and Seth have

had the opportunity to adjust to life in Ansonia. The little evidence there is

concerning William’s and Seth’s adjustment to Ansonia tends to demonstrate that

the children are not adjusting to the community. For instance, the record reveals

that William and Seth would like to remain involved in Sidney athletics, beyond

the seasons they started while they resided in Sidney. These are not the wishes of

children who are adjusted to life in Ansonia. There is also evidence that the

children are having difficulty adjusting to their new school. While this is not

unexpected, it is nonetheless relevant in considering whether the children are

adjusting to life in Ansonia. In addition, testimony was heard about William’s and

Seth’s high incidents of tardiness and absences from school. When the children

lived in Sidney they had a familial network which could transport them to school

when Willoughby was running behind. In fact, Wallace testified that on several

occasions Willoughby asked him to take the children to school because she was

running late. Now that Willoughby and the children are removed from that

support network there is no guarantee that someone will be able to transport the

children to school on time when Willoughby runs late. Ultimately, this will affect

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the children’s ability to adjust to their new school. In light of the foregoing, we

find that there was competent, credible evidence to support the trial court’s finding

that this factor favored Wallace.

{¶35} Next, with respect to factor (e), Willoughby contends that Wallace

has mental health issues and a history of domestic violence. Upon review of the

record, we find that both of these contentions are unsupported. Testimony did

reveal two incidents involving Wallace spanking the children, which is not, per se,

domestic violence. Although one of the incidents was reported to Children

Services, it was determined to be unsubstantiated. In addition, Bertsch, Wallace’s

ex-fiancé, testified that Wallace had thrown a plate out of anger and spanked the

children with a belt. Francis, Wallace’s current fiancé, however, testified that after

living with Wallace for nearly two years she has neither been the victim of or

witness to Wallace’s allegedly violent nature. In considering this conflicting

testimony the trial court apparently found Francis’ testimony more credible. Since

the trial court is in the best position to weigh the credibility of witnesses’

testimony, we will not disturb the trial court’s judgment. See Seasons Coal Co.,

Inc. v. Cleveland (1984), 10 Ohio St.3d 77. Consequently, the record does not

support Willoughby’s contention that the children’s mental and physical health

will be in jeopardy if they reside with Wallace. Conversely, there was evidence

that Willoughby had failed to take Seth to get his fourth DTAP immunization

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booster shot. The record reflects that Willoughby was notified of Seth’s failure to

receive the shot several times within a span of three years. Willoughby, however,

never took Seth to receive the shot. Instead, Willoughby filed an immunization

waiver form stating that Seth was too old to receive the shot. While it may seem

inconsequential that Seth missed the fourth DTAP booster shot, the event is telling

of Willoughby’s interest in her children’s health. Accordingly, we find that there

was competent, credible evidence to support the trial court’s finding that this

factor favored Wallace.

{¶36} Next, with respect to factor (g), Willoughby contends that Wallace

has, on occasion, failed to stay current in his child support. Although the trial

court found otherwise, the record does reveal that in 2004 Wallace was found in

contempt for not staying current in his child support payments. Since then

Wallace has apparently made up any arrearages and has remained current in his

child support payments.

{¶37} Last, with respect to factor (h), Willoughby contends that Wallace

abused her, and that the 2008 and 2009 spanking incidents are indicative of

Wallace’s abusive nature. Willoughby’s contentions lose sight of what this factor

seeks to determine. In considering this factor the court must determine whether a

“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.” R.C.

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3109.04(F)(1)(h). The record contains no evidence that Wallace was previously

convicted of or pled guilty to a criminal offense involving child abuse.

Accordingly, this factor is unavailing.

{¶38} Having explored the foregoing factors in light of the evidence before

the trial court, we find that the trial court did not abuse its discretion in finding that

it was in William’s and Seth’s best interest to designate Wallace as the residential

parent.

{¶39} Lastly, in response to Willoughby’s fourth assignment of error, we

find that reading the trial court’s judgment entry in its entirety, it is apparent that

the trial court considered that the harm likely to be caused by a change of

environment is outweighed by the advantages of the change to the minor children.

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

{¶40} Accordingly, Willoughby’s second, third, and fourth assignments of

error are overruled.

Assignment of Error No. I

{¶41} In her first assignment of error, Willoughby contends that the trial

court erred when it refused to consider additional evidence. Specifically,

Willoughby contends that the trial court erred when it refused to consider her

request for a guardian ad litem report, an updated psychological evaluation of

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Wallace, a second in camera interview with the children, and Wallace’s return to

work. We disagree.

{¶42} Civ.R. 53(D)(4)(d) governs what the trial court may consider when

conducting an independent review of a magistrate’s decision. The foregoing

provision reads in pertinent part:

* * * Before so ruling, the court may hear additional evidence
but may refuse to do so unless the objecting party demonstrates
that the party could not, with reasonable diligence, have
produced that evidence for consideration by the magistrate.

Civ.R. 53(D)(4)(d). Accordingly, the trial court’s decision to not review

additional evidence is a matter of discretion, and one this Court will not disturb

absent an abuse of discretion. The only exception is when the objecting party

demonstrates that it could not, with reasonable diligence, have produced the

evidence for consideration by the magistrate.

{¶43} Turning to Willoughby’s contention, we find that the trial court did

not abuse its discretion when it refused to consider the additional evidence

presented by Willoughby. As to Willoughby’s request for a guardian ad litem

report, an updated psychological evaluation of Wallace, and a second in camera

interview with the children, she failed to demonstrate that the she could not have

produced such evidence for consideration by the magistrate. The magistrate had

conducted an in camera review with William and Seth. Willoughby had plenty of

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time to request a guardian ad litem report and an updated psychological evaluation

of Wallace prior to the final hearing before the magistrate, or at the very least

request a continuance to file such requests, but did not. In light of these

opportunities, as well as the trial court’s discretion in considering additional

evidence, we find that the trial court did not abuse its discretion when it denied

Willoughby’s request for a guardian ad litem report, an updated psychological

evaluation of Wallace, and a second in camera interview with the children.

{¶44} In addition to the foregoing requests, Willoughby also requested the

trial court to consider evidence that Wallace had returned to work since the

magistrate filed its decision. There is not, however, any requirement that trial

courts hear evidence about matters which occur subsequent to a trial. Such a

requirement could result in a never ending trial and defeat any possibility of

finality. Further, considering the magistrate’s findings and the grounds upon

which the trial court adopted the magistrate’s decision, we find that Willoughby

was not prejudiced by the trial court’s refusal to consider Wallace’s recent

employment. We therefore conclude that the trial court did not abuse its discretion

when it declined consideration of Wallace’s recent employment.

{¶45} Accordingly, we overrule Willoughby’s first assignment of error.

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{¶46} Having found no error prejudicial to Willoughby herein, in the

particulars assigned and argued, we affirm the judgment of the trial court.

Judgment Affirmed

SHAW and WILLAMOWSKI, J.J., concur.

/jlr

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