[Cite as Hrabovsky v. Axley, 2014-Ohio-1168.]
COURT OF APPEALS
STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT
MICHAEL HRABOVSKY : JUDGES:
:
: Hon. John W. Wise, P.J.
Plaintiff-Appellee : Hon. Patricia A. Delaney, J.
: Hon. Craig R. Baldwin, J.
-vs- :
: Case No. 2013CA00156
:
KIMBERLY AXLEY :
:
:
Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Stark County Court of
Common Pleas, Domestic Relations
Division, Case No. 2006DR01211
JUDGMENT: AFFIRMED
DATE OF JUDGMENT ENTRY: March 17, 2014
APPEARANCES:
For Plaintiff-Appellee: For Defendant-Appellant:
ADAM W. WILGUS AARON KOVALCHIK
401 Tuscarawas St. W. 116 Cleveland Ave. NW
Suite 200 Suite 808
Canton, OH 44702 Canton, OH 44702
Stark County, Case No. 2013CA00156 2
Delaney, J.
{¶1} Defendant-Appellant Kimberly Axley appeals the July 8, 2013 judgment
entry of the Stark County Court of Common Pleas, Domestic Relations Division.
FACTS AND PROCEDURAL HISTORY
{¶2} Plaintiff-Appellee Michael Hrabovsky and Defendant-Appellant Kimberly
Axley were married in September of 1995. Two children were born as issue of the
marriage: A.H., born December 24, 1996 and P.H., born August 8, 2000. Mother and
Father obtained a divorce on January 31, 2007. In the divorce, Mother and Father
agreed to a Shared Parenting Plan. Mother and Father divided parenting time
somewhat equally and Father was named the residential parent for school purposes.
{¶3} Following the divorce, Father remained in the marital residence located in
Lake Cable, Ohio. Mother resided in a leased home in North Canton, Ohio.
{¶4} On June 28, 2012, Father filed an ex parte motion to terminate visitation
and a motion to terminate the Shared Parenting Plan. Father alleged two incidents as
the basis for his motions. On May 31, 2011, A.H. was at Mother’s home when A.H.
discovered marijuana and a bong in the kitchen cabinet. A.H. called Father and told him
what she found; then A.H. told her Mother. Mother denied the items were hers and
removed them from her home. Mother returned the children to Father’s home that
evening. When the children were inside the home, Father went to Mother’s car to
confront Mother about the drugs in her home. Mother tried to enter Father’s home to
speak with the children. Father blocked the entrance and Mother punched him the in the
face. Mother was charged with domestic violence and pleaded no contest to disorderly
conduct in September 2011. A civil protection order was also issued.
Stark County, Case No. 2013CA00156 3
{¶5} Mother was evicted from her home in North Canton. She leased a
residence in Canton, Ohio. Mother leased the Canton residence with her paramour,
Matthew Pullem. Pullem has a criminal record. In December 2011, Pullem was cited for
driving under the influence. He was convicted of OVI and possession of drug
paraphernalia for a marijuana pipe found in his possession when he was arrested.
Pullem was placed in the court diversion Chance program, which he successfully
completed.
{¶6} The magistrate granted the ex parte motion to terminate visitation on June
28, 2012.
{¶7} On July 17, 2012, the magistrate appointed a Guardian ad Litem for the
minor children.
{¶8} Mother filed a motion for immediate review. On August 7, 2012, the
magistrate vacated the order terminating visitation with Mother but ordered the minor
children have no contact with Matthew Pullem. The magistrate’s order noted the GAL
had concerns of “parental alienation” and he requested a psychological evaluation to
determine the same. The magistrate ordered the minor children to be evaluated through
Northeast Ohio Behavioral Care or Dr. Patti Milsaps-Linger and follow all
recommendations. The matter was set for a pretrial hearing on August 27, 2012.
{¶9} The GAL filed his report on August 21, 2012. He concluded, based on his
interviews and observations, the children were highly alienated from Mother. He did not
give a basis for the alleged alienation but rather deferred to the opinion of Dr. Milsaps-
Linger.
Stark County, Case No. 2013CA00156 4
{¶10} The GAL filed an updated report on December 13, 2012. Dr. Milsaps-
Linger submitted her report to the GAL based on her interviews with the family and her
review of the children’s counseling records with Trillium Family Solutions. Dr. Milsaps-
Linger concluded the children were alienated against Mother by Father. Dr. Milsaps-
Linger recommended that parenting time should remain at the status quo and the family
receive counseling to repair the familial relationships.
{¶11} On February 7, 2012, the magistrate modified the no contact order with
Pullem to prohibit access to the minor children during overnight visits.
{¶12} The motion to terminate the Shared Parenting Plan came on for hearing
on February 21, 2013 and April 19, 2013. At the hearing, Dr. Milsaps-Linger testified as
to her report. The parties stipulated to Dr. Milsaps-Linger’s professional qualifications
but the magistrate did not designate Dr. Milsaps-Linger an expert. Dr. Milsaps-Linger
stated the children exhibited signs of alienation of Mother, contributed to by Father. She
based her diagnosis on different factors. First, when the children met with Dr. Milsaps-
Linger, the children were clear as to their negative feelings about Mother. They gave
almost identical information as to why they did not want to spend time with Mother. The
children could not provide any positive information about Mother but were able to
provide positive thoughts of Father. Second, Father entered the children into counseling
immediately after the divorce but based on the records from Trillium Family Solutions,
Mother was not included in the therapy. Dr. Milsaps-Linger did not contact Trillium
Family Solutions directly and was not aware whether Mother was given the opportunity
to be involved in the counseling. The children reported Mother knew about the
counseling, Mother stated she did not know about the counseling, and Father indicated
Stark County, Case No. 2013CA00156 5
he invited Mother to participate in the counseling. A third factor was certain behaviors by
Father, such as driving the children by Mother’s home in Canton. The children told Dr.
Milsaps-Linger they determined Mother’s home was in an unsafe neighborhood and
dangerous. A fourth factor suggesting alienation was Father’s use of the court system to
address the issues with Mother rather than solving the problems with Mother directly.
{¶13} The magistrate conducted an in camera interview of the children on
February 26, 2013.1 As stated in the April 24, 2013 magistrate’s decision, the children
wanted limited contact with Mother.
{¶14} On April 24, 2013, the magistrate issued his decision denying Father’s
motion to terminate the Shared Parenting Plan. Father filed objections to the
magistrate’s decision. In his objections, he argued the record failed to support Dr.
Milsaps-Linger’s conclusion of parental alienation.
{¶15} On July 8, 2013, the trial court issued its judgment entry. The judgment
entry stated it conducted an independent analysis of the law and facts, and based the
trial court’s review, it sustained Father’s objections and terminated the Shared Parenting
Plan. The trial court found the conclusions of Dr. Milsaps-Linger as to parental
alienation by Father were not supported by the record. It determined that a change of
circumstances occurred by virtue of the children’s estrangement from Mother, Mother’s
cohabitation with Pullem, Mother’s disorderly conduct conviction, the civil protection
order, and Mother’s possession of drugs and drug paraphernalia in her home. The trial
court then found it was in the best interests of the children that Father be named the
residential parent and legal custodian of the children.
{¶16} It is from this judgment Mother now appeals.
1
A transcript of the in camera interview was not filed with the appeal.
Stark County, Case No. 2013CA00156 6
ASSIGNMENTS OF ERROR
{¶17} Mother raises two Assignments of Error:
{¶18} “I. THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT
SUSTAINED THE OBJECTION TO THE MAGISTRATE’S DECISION AND
TERMINATED THE SHARED PARENTING PLAN.
{¶19} “II. THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT
DISCREDITED ITS OWN WITNESS.”
ANALYSIS
I. TERMINATION OF SHARED PARENTING PLAN
{¶20} Mother argues in her first Assignment of Error that the trial court abused
its discretion when it terminated the Shared Parenting Plan and made Father the
residential parent and legal custodian of A.H. and P.H..
{¶21} A trial court enjoys broad discretion in custody proceedings. Cossin v.
Holley, 5th Dist. Morrow No.2006 CA 0014, 2007–Ohio–5258, ¶ 28 citing Davis v.
Flickinger, 77 Ohio St.3d 415, 674 N.E.2d 1159 (1997), paragraph one of the syllabus.
A trial court's decision to terminate a shared parenting plan is reviewed under an abuse
of discretion standard. In re J.L.R., 4th Dist. Washington No. 08CA17, 2009–Ohio–
5812. In order to find an abuse of discretion, we must determine the trial court's decision
was unreasonable, arbitrary or unconscionable and not merely an error of law or
judgment. Blakemore v. Blakemore, 5 Ohio St.3d 217, 450 N.E.2d 1140 (1983). A
judgment supported by some competent, credible evidence will not be reversed by a
reviewing court as against the manifest weight of the evidence. C.E. Morris Co. v. Foley
Construction Co., 54 Ohio St.2d 279, 376 N.E.2d 578 (1978). A reviewing court must
Stark County, Case No. 2013CA00156 7
not substitute its judgment for that of the trial court where there exists some competent
and credible evidence supporting the judgment rendered by the trial court. Myers v.
Garson, 66 Ohio St.3d 610, 614 N.E.2d 742, 1993–Ohio–9.
{¶22} R.C. 3109.04 governs modification of parental rights and responsibilities in
a shared-parenting decree. Fisher v. Hasenjager, 116 Ohio St.3d 53, 2007–Ohio–5589,
876 N.E.2d 546, ¶ 11. Subsections (E)(2)(c) and (d) state:
(c) The court may terminate a prior final shared parenting decree that
includes a shared parenting plan approved under division (D)(1)(a)(i) of
this section upon the request of one or both of the parents or whenever it
determines that shared parenting is not in the best interest of the children.
The court may terminate a prior final shared parenting decree that
includes a shared parenting plan approved under division (D)(1)(a)(ii) or
(iii) of this section if it determines, upon its own motion or upon the request
of one or both parents, that shared parenting is not in the best interest of
the children. If modification of the terms of the plan for shared parenting
approved by the court and incorporated by it into the final shared
parenting decree is attempted under division (E)(2)(a) of this section and
the court rejects the modifications, it may terminate the final shared
parenting decree if it determines that shared parenting is not in the best
interest of the children.
(d) Upon the termination of a prior final shared parenting decree under
division (E)(2)(c) of this section, the court shall proceed and issue a
modified decree for the allocation of parental rights and responsibilities for
Stark County, Case No. 2013CA00156 8
the care of the children under the standards applicable under divisions
(A), (B), and (C) of this section as if no decree for shared parenting had
been granted and as if no request for shared parenting ever had been
made.
{¶23} We held in Wright v. Wright, 5th Dist. Stark No.2011 CA00129, 2012–
Ohio–1560, ¶ 25 that pursuant to Fisher v. Hasenjager, 116 Ohio St.3d 53, 2007–Ohio–
5589, 876 N.E.2d 546, if there is a change in designation of residential parent and legal
custodian of a child, the trial court is required to make a determination that a change in
circumstances has occurred, as well as finding that a modification is in the best interest
of the child, pursuant to R.C. 3109.04(E)(1)(a).
Change in Circumstances
{¶24} Based on its independent review of the record, the trial court determined
the evidence indicated five changes in circumstances since the original parenting order.
First, A.H. discovered marijuana and drug paraphernalia in Mother’s kitchen cabinet.
Second, after Father confronted Mother with A.H.’s discovery of drugs in her home,
Mother assaulted Father resulting in a disorderly conduct conviction and civil protection
order. Third, Mother testified she was evicted from her North Canton home based on
the financial aspects of the criminal proceedings. Fourth, the children did not have a
good relationship with Mother’s boyfriend, Matthew Pullem. Finally, the trial court noted
the children’s relationship with Mother severely deteriorated since the filing of the
Shared Parenting Plan.
{¶25} The original parenting order was entered in 2007. Father’s motion to
terminate the Shared Parenting Plan was filed in June 2012. Mother argues the
Stark County, Case No. 2013CA00156 9
incidents referred to by the trial court as changes in circumstances occurred in 2011.
Mother contends if Father considered the events as changes in circumstances
warranting the termination of the Shared Parenting Plan, Father should have filed his
motion to terminate in 2011 when the incidents occurred. At the hearing, Father testified
one of the reasons for filing the motion to terminate was on behalf of the children and
their desire to limit their time with Mother. (T. 21).
{¶26} “Although R.C. 3109.04 does not provide a definition of the phrase
‘change in circumstances,’ Ohio courts have held that the phrase is intended to denote
‘an event, occurrence, or situation which has a material and adverse effect upon a
child.” ’ Wright v. Wright, 5th Dist. Stark No. 2012CA00232, 2013-Ohio-4138, ¶ 22
quoting Lewis v. Lewis, 12th Dist. Butler No. CA2001–09–209, 2002 WL 517991 (April
8, 2002), citing Rohrbaugh v. Rohrbaugh, 136 Ohio App.3d 599, 604–05, 737 N.E.2d
551 (7th Dist.2000). In order to warrant the abrupt disruption of the child's home life, the
change in circumstances must be one “of substance, not a slight or inconsequential
change.” Davis v. Flickinger, 77 Ohio St.3d 415, 418, 674 N.E.2d 1159 (1997). “The
purpose of requiring a finding of a change in circumstances is to prevent a constant re-
litigation of issues that have already been determined by the trial court. * * * 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.” Brammer v. Brammer, 194 Ohio App.3d
240, 955 N.E.2d 453, 2011–Ohio–2610, ¶ 17 (3rd Dist.), citing R.C. 3109.04(E)(1)(a).
{¶27} A change of circumstances is an event or occurrence that has a material
effect on a child. The change of circumstance standard does not include a time
requirement for when the event or occurrence has taken place in relation to the filing of
Stark County, Case No. 2013CA00156 10
the motion to terminate the Shared Parenting Plan. 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. In the present case, the prior order was issued in 2007. The events referred
to as changes in circumstances took place in 2011, therefore arising after the prior
order.
{¶28} The magistrate conducted an evidentiary hearing and denied Father’s
motion to terminate the Shared Parenting Plan. Upon Father’s objections to the
magistrate’s decision, the trial court conducted an independent analysis of the facts and
law based on the record and sustained Father’s objections to the magistrate’s decision.
Mother argues the trial court’s decision should not be given greater weight because the
trial court did not have the opportunity to hear the witnesses or take additional evidence.
We have generally recognized that a trial court enjoys broad discretion in determining
whether to sustain or overrule an objection to a magistrate's decision. Ford v. Ford, 5th
Dist. Tuscarawas No. 2012 AP 03 0025, 2012-Ohio-5454, ¶ 12 citing Rader v. Rader,
5th Dist. Licking No. 07 CA 5, 2007–Ohio–4288, ¶ 19, citing Remner v. Peshek, 7th
Dist. Mahoning No. 97–CA–98, 1999 WL 803441 (Sept. 30, 1999). Moreover,
magistrates are arms of their appointing courts, “which remain responsible to critically
review and verify the work of the magistrates they appoint.” Quick v. Kwiatkowski, 2nd
Dist. Montgomery No. 18620, 2001 WL 871406 (Aug. 3, 2001), citing Normandy Place
Associates v. Beyer, 2 Ohio St.3d 102, 443 N.E.2d 161 (1982). While the magistrate is
the “initial fact finder and issue resolver,” the trial court remains the “ultimate fact finder
and issue resolver.” See Dayton v. Whiting, 110 Ohio App.3d 115, 118, 673 N.E.2d 671
(2nd Dist.1996) (interpreting former Civ.R. 53 referee function). Thus, we find our
Stark County, Case No. 2013CA00156 11
essential role in determining whether there is relevant, competent, and credible
evidence upon which the fact finder could base his judgment [see Tennant v. Martin–
Auer, 188 Ohio App.3d 768, 2010–Ohio–3489, 936 N.E.2d 1013, ¶ 16 (5th Dist.), citing
Cross Truck v. Jeffries, 5th Dist. Stark. No. CA–5758, 1982 WL 2911 (Feb. 10, 1982)] is
not herein altered simply because the trial court overruled the magistrate's custody
decision.
{¶29} We determine the evidence in this case supports the trial court’s
conclusion there were changes in circumstances since the implementation of the
original Shared Parenting Plan. These substantial events could have a material effect
on the children. A.H., a teenager at the time of the evidentiary hearing, discovered
illegal drugs at Mother’s home. The children witnessed Mother assault Father. The
children’s relationship with Mother deteriorated since the original parenting order. We
find no abuse of discretion for the trial court to determine there were changes in
circumstances.
Best Interests of the Children
{¶30} Mother next argues the termination of the Shared Parenting Plan was not
in the best interests of the children. R.C. 3109.04(F)(1) and (2) state the factors the trial
court is to consider to determine whether a modification is in the best interests of the
child:
(F)(1) In determining the best interest of a child pursuant to this section,
whether on an original decree allocating parental rights and
responsibilities for the care of children or a modification of a decree
Stark County, Case No. 2013CA00156 12
allocating those rights and responsibilities, the court shall consider all
relevant factors, including, but not limited to:
(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;
(h) Whether either parent or any member of the household of either
parent previously has been convicted of or pleaded guilty to any
Stark County, Case No. 2013CA00156 13
criminal offense involving any act that resulted in a child being an
abused child or a neglected child; whether either parent, in a case
in which a child has been adjudicated an abused child or a
neglected child, previously has been determined to be the
perpetrator of the abusive or neglectful act that is the basis of an
adjudication; whether either parent or any member of the
household of either parent previously has been convicted of or
pleaded guilty to a violation of section 2919.25 of the Revised Code
or a sexually oriented offense involving a victim who at the time of
the commission of the offense was a member of the family or
household that is the subject of the current proceeding; whether
either parent or any member of the household of either parent
previously has been convicted of or pleaded guilty to any offense
involving a victim who at the time of the commission of the offense
was a member of the family or household that is the subject of the
current proceeding and caused physical harm to the victim in the
commission of the offense; and whether there is reason to believe
that either parent has acted in a manner resulting in a child being
an abused child or a neglected child;
(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;
Stark County, Case No. 2013CA00156 14
(j) Whether either parent has established a residence, or is
planning to establish a residence, outside this state.
(2) In determining whether shared parenting is in the best interest of the
children, the court shall consider all relevant factors, including, but not
limited to, the factors enumerated in division (F)(1) of this section, the
factors enumerated in section 3119.23 of the Revised Code, and all of the
following factors:
(a) The ability of the parents to cooperate and make decisions
jointly, with respect to the children;
(b) The ability of each parent to encourage the sharing of love,
affection, and contact between the child and the other parent;
(c) Any history of, or potential for, child abuse, spouse abuse, other
domestic violence, or parental kidnapping by either parent;
(d) The geographic proximity of the parents to each other, as the
proximity relates to the practical considerations of shared parenting;
(e) The recommendation of the guardian ad litem of the child, if the
child has a guardian ad litem.
{¶31} The trial court considered the best interest factors in the findings of fact.
The magistrate conducted an in camera interview with the children and the children
expressed they wanted limited contact with Mother and no contact with Matthew Pullem.
The GAL reported the children’s interaction with Father was appropriate, their
interaction with Mother was highly strained, and their interaction with each other was
appropriate.
Stark County, Case No. 2013CA00156 15
{¶32} The GAL and Dr. Milsaps-Linger recommended it was not in the best
interests of the children to terminate the Shared Parenting Plan because the children
were alienated from Mother, resulting from a pattern of conduct by Father. The majority
of the testimony and evidence in the case centered on the cause of the dysfunctional
relationship between the children and Mother. The GAL and Dr. Milsaps-Linger
recommended that the family maintain the status quo and engage in counseling to
repair the relationship. The trial court reviewed the evidence presented and rejected the
finding that the children were alienated from Mother because of Father’s conduct. The
trial court saw no evidence presented to support the opinion that Father’s conduct
contributed to the children’s difficult relationship with Mother, but rather the evidence
supported the children’s conclusion that Mother’s conduct was the basis for their
strained relationship.
{¶33} The trial court is the ultimate fact finder and issue resolver. It is well
established that the trial court, as the fact finder, is free to believe all, part, or none of
the testimony of each witness. State v. Caldwell, 79 Ohio App.3d 667, 679, 607 N.E.2d
1096 (4th Dist. 1992). We have reviewed the record and find no abuse of discretion for
the trial court to determine it was in the best interests of the children to terminate the
Shared Parenting Plan. It was the opinion of the GAL and Dr. Milsaps-Linger that the
children suffered from parental alienation from Mother. Dr. Milsaps-Linger testified that
parental alienation could be caused by that parent’s own conduct. (T. 9). In this case,
the evidence presented demonstrated Mother’s conduct could be a source of the
children’s strained relationship with Mother, as opposed to Father’s conduct as the sole
reason for the children to feel negatively about Mother.
Stark County, Case No. 2013CA00156 16
{¶34} Based on our review, we find no abuse of discretion for the trial court to
terminate the Shared Parenting Plan based on a change in circumstances and the best
interests of the children.
{¶35} Mother’s first Assignment of Error is overruled.
II. WEIGHT OF WITNESS TESTIMONY
{¶36} Mother argues in her second Assignment of Error that it was an abuse of
discretion for the trial court to reject the conclusion of Dr. Milsaps-Linger as to parental
alienation for the children.
{¶37} Based on the GAL’s concern of parental alienation of Mother, the
magistrate ordered the children be evaluated through Northeast Ohio Behavioral Health
or Dr. Milsaps-Linger. Dr. Milsaps-Linger evaluated the children. At the evidentiary
hearing, Dr. Milsaps-Linger was called to testify as the court’s witness. (T. 3). Dr.
Milsaps-Linger testified it was her opinion that the children were alienated from Mother
and it was not in the best interests of the children to terminate the Shared Parenting
Plan. The magistrate denied the motion to terminate. Father objected to the decision,
arguing in part that Dr. Milsaps-Linger’s conclusion as to parental alienation was not
supported by the record. In the trial court’s July 8, 2013 judgment entry, the trial court
sustained Father’s objections to the magistrate’s decision. The majority of the judgment
entry centered on the trial court’s disagreement with the finding of parental alienation
because parental alienation was not supported by the record. Mother argues on appeal
it was error for the trial court to reject the recommendations of Dr. Milsaps-Linger
because she was the court’s witness.
Stark County, Case No. 2013CA00156 17
{¶38} The trial court is the ultimate fact finder and issue resolver. It is well
established that the trial court, as the fact finder, is free to believe all, part, or none of
the testimony of each witness. State v. Caldwell, 79 Ohio App.3d 667, 679, 607 N.E.2d
1096 (4th Dist. 1992). The trial court did not reject the testimony of Dr. Milsaps-Linger in
a vacuum, but rather considered her findings in relation to the evidence presented at the
hearing. The trial court, as fact finder, did not follow Dr. Milsaps-Linger’s conclusion
because it found the determination of parental alienation was not supported by the
evidence. We cannot say a trial court’s consideration of a witness’s testimony in such a
manner is error.
{¶39} Mother’s second Assignment of Error is overruled.
CONCLUSION
{¶40} The judgment of the Stark County Court of Common Pleas, Domestic
Relations Division is affirmed.
By: Delaney, J.,
Wise, P.J. and
Baldwin, J., concur.
Hrabovsky v. Axley
Combined Opinion