DiDonato v. DiDonato

[Cite as DiDonato v. DiDonato, 2016-Ohio-1511.]

COURT OF APPEALS
TUSCARAWAS COUNTY, OHIO
FIFTH APPELLATE DISTRICT

JUDGES:
STEPHEN J. DIDONATO : Hon. W. Scott Gwin, P.J.
: Hon. John W. Wise, J.
Plaintiff-Appellee : Hon. Patricia A. Delaney, J.
:
-vs- :
: Case No. 2015 AP 07 0042
CHRISTINA HUTH DIDONATO : 2015 AP 09 0051
:
Defendant-Appellant : OPINION

CHARACTER OF PROCEEDING: Civil appeal from the Tuscarawas County
Court of Common Pleas, Case No. 2013
TC 07 0288

JUDGMENT: Affirmed

DATE OF JUDGMENT ENTRY: April 11, 2016

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant

DEBORAH GREENHAM MICHELA HUTH
P.O. Box 711 257 Canal Street
New Philadelphia, OH 44663 Box 17
Bolivar, OH 44612
[Cite as DiDonato v. DiDonato, 2016-Ohio-1511.]

Gwin, J.

{¶1} Appellant appeals the judgment entries of the Tuscarawas County Court of

Common Pleas.

Facts & Procedural History

{¶2} Appellant Christina Huth DiDonato is biological mother of two minor

children, D.D., born November 22, 2004, and P.D., born May 5, 2007. Appellee Stephen

DiDonato is the biological father of the children. On July 2, 2013, appellee filed a

complaint for divorce. On April 8, 2014, the parties entered an agreed judgment entry of

divorce. The parties agreed appellant would be the sole residential and legal custodian

of the children, subject to visitation and parenting rights of appellee. Further, the agreed

entry specifically provided as follows, “the parties agree that they will discuss and

cooperate on matters relating to the children’s welfare, health and education, and each

party will encourage the child to respect, honor, and love the other party.”

{¶3} On May 7, 2014, appellee filed a motion to modify parental rights and

responsibilities, requesting that he be named the residential and legal custodian based

upon a change in circumstances. On May 23, 2014, the magistrate issued an interim

order ordering no texting between the parents and ordering any non-emergency contact

be done through the court’s Family Wizard Program.

{¶4} The parties then filed numerous motions, including: appellee’s motion for

designation of public place for exchange of children, appellant’s motion for right of first

refusal to watch children, and appellee’s motion for immediate oral hearing on motion that

appellant not be permitted to contact appellee’s childcare provider and motion for

designation of public place for exchange. The magistrate set the motions for a hearing
Tuscarawas County, Case No. 2015 AP070042 & 2015AP090051 3

on July 17, 2014. On July 17, 2014, appellant filed a motion to continue the hearing due

to the death of her significant other’s sister. However, both of the parties’ attorneys

appeared in front of the magistrate on July 17, 2014.

{¶5} On July 18, 2014, the magistrate entered an interim order stating that both

parties may not contact the other party’s childcare provider unless there is an emergency

and finding there is no right of first refusal for child care. Appellant filed a motion to set

aside the July 18th magistrate’s order. The magistrate issued an order on August 15,

2014 ordering the exchange of the children between the parties at the Marathon Station

in Strasburg and ordering appellant to deliver the children to Burger King for football

practice or games. The magistrate further ordered appellee to give appellant, through the

Family Wizard, the name and number of the childcare providers and stated appellant was

not to contact them except in an emergency. Finally, the magistrate ordered that neither

party should make any doctor’s appointments that would occur during the other party’s

possession of the children.

{¶6} On August 19, 2014, appellee filed an ex parte, emergency motion

regarding school for the children. Appellee sought an emergency order for the children

to remain in New Philadelphia schools rather than transfer to Tusky Valley schools. The

motion indicated appellee was notified of this intended transfer of schools by appellant on

Friday, August 15, 2014, and was an emergency because school started on Wednesday,

August 20, 2014. After conducting a phone conference with the attorneys of both parties

and the guardian ad litem of the children, the magistrate issued an order on August 19,

2014 ordering the children to remain in New Philadelphia School System. The magistrate

further set the motion for a full hearing on August 25, 2014.
Tuscarawas County, Case No. 2015 AP070042 & 2015AP090051 4

{¶7} Appellant filed an emergency motion for stay and objection to the ex parte

decision on August 22, 2014. Appellant argued the court order effectuated a modification

of parental rights without a notice and opportunity to be heard. The magistrate denied

appellant’s motion for emergency stay on August 25, 2014. The magistrate conducted a

full hearing on August 25, 26, 27, and September 4 of 2014.

{¶8} The magistrate issued an order on September 17, 2014. The magistrate

found appellant admitted she unilaterally made the decision to transfer schools, in

violation of the agreed judgment entry which required the parties to “discuss” and

“cooperate” about the children’s education. Further, the magistrate found the guardian

ad litem “emphatically” recommended the children continue in the New Philadelphia

School System. The magistrate noted P.D. has an individualized education program

(“IEP”). The magistrate found the disruption that would be caused by the change of

school district, combined with the IEP, would not be in the best interest of the children.

The magistrate further found since the matter was set on a motion to modify parental

rights in October, it would be in the best interest of the children to stay in the same school

system until the court ruled on the motion to modify parental rights. The magistrate thus

ordered the children to remain in the New Philadelphia School System pending the

resolution of the motion to modify parental rights. Appellant filed a motion to set aside

the September 17, 2014 order; however, she withdrew the motion on October 14, 2014.

{¶9} Beginning in October of 2014, the magistrate held a hearing on appellee’s

motion to modify parental rights. The hearing continued to several dates in November

and concluded on December 9, 2014.
Tuscarawas County, Case No. 2015 AP070042 & 2015AP090051 5

{¶10} Christine Stewart (“Stewart”), the babysitter appellee hired to watch the

children during his parenting time, testified she obtained a CPO against appellant.

Stewart testified that, prior to her baby-sitting, appellant was concerned and told Stewart

no one but family watches the children. On Stewart’s first day watching the children,

appellant called her several times and, in one call, screamed at Stewart and told her she

was calling the police and taking Stewart to court. Stewart stated that, even after the

children left, appellant continued to text her. Stewart stated the next time she watched

the children, appellant called her six times in three hours and texted her multiple times.

Stewart testified that when she took P.D. to a track meet, appellant, while the children

were around, told Stewart she was an unfit caregiver, yelled at her, and cussed her out.

Stewart stated she never hit the children or left them unattended. Stewart testified D.P.’s

behavior changed from well-behaved to agitated and arguing when appellant called.

{¶11} John Frank (“Frank”), the guardian ad litem appointed for the children,

testified he believes there has been a fundamental change from the time of the agreed

judgment entry, including the relocation of appellant and the potential change of school

district. Frank testified any skepticism or rebuttable presumption about the timing of

appellee’s motion has been overcome.

{¶12} Frank testified the conflict between appellant and appellee is ripping the

children up and taking a huge toll on them. Further, the children love both their parents,

but, if this conflict does not subside, the children are not going to love either parent. Frank

testified the children are well-aware of the conflict between the parents. Frank stated the

children never mentioned any abuse to him, and they are not afraid of either parent. Frank

testified there is nothing to suggest the children are traumatized. The children’s’
Tuscarawas County, Case No. 2015 AP070042 & 2015AP090051 6

interactions with each parent is loving, natural, and comfortable. Frank stated the parties’

communication on the Family Wizard court program perpetuates the conflict.

{¶13} Frank testified the difficulties appellee has with appellant are not carrying

over to his other relationships; however, some behavior appellant exhibits toward

appellee she exhibits with others as well, as evidenced by the CPO and work documents.

Frank is concerned her behavior is more pervasive than just the custody situation. Frank

testified appellant is fixated on the idea that she is the custodial parent. Frank stated

appellant’s inconsistencies of saying one thing and then saying the opposite, presents

challenges in this custody situation. Frank saw more behavior at appellant’s home that

leads him to believe there is spillover from her negative emotions towards appellee than

with appellee at appellee’s home. Frank testified appellant calls appellee “Mr. DiDonato”

in front of the children and the children pick up on this. Frank described the relationship

between appellant and appellee as win-loss and one side versus the other, even with

extended family.

{¶14} Frank recommended the parties have shared parenting. However, Frank

testified if he had to decide which parent has a somewhat better chance of honoring and

respecting the other parent’s role, it would be appellee because appellant’s impairment

to honor and facilitate the other parent’s role is more significant than appellee’s

impairment. Frank recommended the children remain in the New Philadelphia School

System. Frank stated appellant’s sleeping arrangement with the children is unhealthy

because P.D. sleeps in her bed.

{¶15} Frank testified the pattern of medical appointments made by appellant for

the children is driven by animosity and acrimony of litigation and now rises to the level of
Tuscarawas County, Case No. 2015 AP070042 & 2015AP090051 7

actually harming the children. Frank again stated the conflict between the parties is

“absolutely” detrimental to the children. Frank recommended appellant not be the sole

medical-decision making authority for the children.

{¶16} On cross-examination, Frank testified the following had a bad impact on the

children: fighting, conflict, acrimony, and the parties’ arguing over everything. Frank

stated post-decree conflict between the parties goes on and on. Frank testified he spoke

with the children and the conflict is highly distressing to them. Frank could tell this from

the children’s words and manner of speaking. Frank testified appellant called appellee

“Mr. DiDonato” during Frank’s home visit and it was her routine to call him that.

{¶17} Anita Exley (“Exley”), a psychologist at Chrysalis Counseling Center, did a

psychological evaluation of appellant and appellee. Exley testified appellant may become

easily overwhelmed by complex situations and goes for the quick solution rather than

tolerating distress to see through multiple solutions to problems. Exley stated appellant

has an inflated sense of self-worth, shows self-satisfying and self-dramatizing behavior,

is emotionally reactive, and it is difficult for her to reason through things. Exley testified

appellant relies so heavily on her family enmeshment that it appears to reinforce her

skewed belief system. Exley found it odd when appellant said she was abused, but could

not definitively answer what she meant by abuse and domestic violence. Due to

appellant’s poor eye contact and failure to provide full responses, Exley did not feel like

appellant was being upfront and honest with her.

{¶18} Exley testified the general effect of enmeshment on children is that they are

raised in an environment closed to outside influences. Further, it would be difficult for

appellant to co-parent and work collaboratively. Exley stated if appellant referred to
Tuscarawas County, Case No. 2015 AP070042 & 2015AP090051 8

appellee as “Mr. DiDonato,” or “the perpetrator,” she would have concerns about her

doing this in front of the children. Exley testified appellant was barely able to hold herself

together emotionally and if someone has difficulty managing her own emotions, it is hard

to be able to address a child’s needs. Further, Exley stated it will be difficult for appellant

to see things other than the way she currently sees things and dealing with the challenges

of parenting would be difficult as she is likely to become angry and frustrated.

{¶19} Exley testified it is not healthy for parents to engage in verbal altercations

in front of the children, as this could emotionally affect them.

{¶20} Exley stated appellee seems rushed and gets caught up in minutia. Further,

he may have ADHD and is passive-aggressive and overly reactive. Exley testified

appellee has borderline personality features with negativistic features. However, he is

aware of his health issues and is attempting to improve them via counseling.

{¶21} Exley testified appellant’s strengths are intelligence and the ability to

research. Appellee’s strengths are genuineness and sincerity.

{¶22} Wendy Roberts (“Roberts”), a counselor, testified she became involved with

the children in July or August of 2014 for behavioral problems such as anger

management, frustration, and disrespect. Roberts stated the children did not make as

much progress as she would have liked because they still have problems with anger and

acting up. Roberts felt the children have adjustment disorder due to the divorce and

witnessing the conflict between the parents.

{¶23} The majority of the remainder of the testimony at the hearing was the

testimony of appellant and appellee. Each testified extensively. Much of the testimony

included various incidents between the parties, with each having a different and contrary
Tuscarawas County, Case No. 2015 AP070042 & 2015AP090051 9

view on how these events were caused, how they unfolded, their result, and their impact.

This Court need not restate that voluminous testimony of each of those events. The

balance of the parties’ testimony can be summarized as follows:

{¶24} Appellee stated that, at the time of the divorce decree, he believed they

could agree and cooperate regarding the kids’ health, welfare, and education. He did not

expect things to get worse or expect the CPO against Stewart. Appellee testified he is

seeing a counselor and intends to continue with counseling. After the divorce, appellee

stated appellant texted him 30-40 times per day. He was getting calls from the children,

hysterical, wanting him to come and get them. Appellee testified he cannot get a straight

answer from appellant. Further, that she calls him “Mr. DiDonato” in front of the children.

Appellee testified that, since the divorce, D.P. has become more defiant, it is hard to get

him to focus, and is now getting into fights.

{¶25} Appellant testified P.D. sleeps in a queen bed with her because she will not

force him to sleep in his own bed. Appellant stated she made the decision to send the

children to Tusky Valley on her own. Appellant denies the allegations in Stewart’s CPO.

Appellant testified the children are aware of the CPO as she told D.P. she could not come

to his games because she cannot be within five hundred feet of Stewart’s home.

Appellant stated the issues with the children appeared before the divorce decree.

Appellant testified she is seeing a counselor, but has not gotten to any issues involving

parenting and improving her parenting skills as she is seeing the counselor due to

domestic violence. Appellant denies calling appellee “Mr. DiDonato” in front of the

children.
Tuscarawas County, Case No. 2015 AP070042 & 2015AP090051 10

{¶26} Appellant testified she cannot communicate with appellee and appellee

cannot communicate with her; otherwise, it escalates. When asked on cross-examination

why there are frequent conversations from her requesting appellee meet her someplace

other than the Burger King or the Marathon Station as ordered by the trial court, appellant

stated “for certain situations, why not?” Appellant admitted counselors have told her the

children’s issues are not due to domestic violence.

{¶27} The magistrate issued an order on February 13, 2015. The magistrate

issued forty-one (41) findings of fact. The magistrate found a change of circumstances

due to: appellant moving out of the children’s school district to a studio cottage; a CPO

issued against appellant to protect one of appellee’s childcare providers; and the

significant escalation of the animosity between the parties.

{¶28} The magistrate also detailed each factor contained in R.C. 3109.04(F) as to

best interests of the children. Both parents want custody of the children and neither

supports the parenting skills of the other. The magistrate did not interview the children,

but the guardian ad litem did interview the children and reports the children are very

disturbed by the constant volatility between the parents, but otherwise are well-adjusted

and found no evidence of the “trauma” suggested by appellant. The magistrate found

credible evidence showed the children are reluctant to talk to a parent in public when out

with the other parent or the other parent’s family. D.D. was suspended for fighting with

another child. P.D. has an IEP in school and D.D. is taking Zoloft. The children’s

counselor states the children do not have post-traumatic stress disorder, despite

appellant’s contention that they do. The magistrate found both parties have issues that

need addressed with counseling. The magistrate further found appellee was more likely
Tuscarawas County, Case No. 2015 AP070042 & 2015AP090051 11

to honor court visitation. The magistrate found there was not a denial of companionship

time; however, appellant insisted on the “Family Wizard” that appellee pick up the children

at places other than the court-ordered meeting place.

{¶29} The magistrate determined that, while both parties engaged in behavior that

is not in the best interest of the children in the past, appellee has decreased the frequency

of those behaviors and appellant has increased the frequency of those inappropriate

behaviors. The magistrate found the children are well integrated into both homes and

any change in the amount of time with appellee will have benefits for the children which

outweigh any harm from a change of environment.

{¶30} In the “conclusions of law” section of the magistrate’s order, the magistrate

stated appellee’s home should be the residential home for school purposes and he should

make all educational decisions for the children. Further, appellant should not be the sole

decision-maker regarding the children’s medical care.

{¶31} The magistrate issued a clarification of her February 13th decision on

February 19, 2015. The magistrate stated each parent shall be the residential parent for

the week the children are with them; appellee is the custodial parent for school purposes;

and appellant is not the custodial parent for medical purposes.

{¶32} Appellant filed objections to the magistrate’s decision on February 27, 2015.

Appellee filed objections to the magistrate’s decision, arguing the order does not say who

has custody. On March 12, 2015, appellee filed a motion for contempt regarding the

public exchange of the children and the doctor’s appointments of the children. On July

10, 2015, appellant filed supplemental objections to the following magistrate’s decisions:

February 13, 2015, August 19, 2014, and September 17, 2014.
Tuscarawas County, Case No. 2015 AP070042 & 2015AP090051 12

{¶33} The trial court issued a decision on the parties’ objections on July 22, 2015.

The trial court vacated the magistrate’s February 19, 2015 order. The trial court also

found: appellant’s objections to the August 19, 2014 and September 17, 2014

magistrate’s orders were untimely; appellant’s constitutional rights were not violated; and

the evidence appellant argues is hearsay was supported by the testimony of several

witnesses. The trial court modified several of the magistrate’s findings of fact, including

the fact that the guardian ad litem’s recommendation regarding shared parenting is not

realistic based upon the parties’ inability to cooperate or communicate with each other.

{¶34} The trial court also modified the magistrate’s conclusions of law, adding the

law for change of circumstances and best interest of the child. Based upon the findings

of fact and conclusions of law, the trial court granted appellee’s motion to modify and

found appellee shall be named the residential parent and legal custodian of the children.

The trial court further found appellee should make all educational and medical decisions

for the children.

{¶35} On August 17, 2015, appellee filed a motion for clarification of the July 22,

2015 judgment entry regarding sports, activities, and right of first refusal. Appellee

requested the trial court provide the parties with more clarification regarding the sports

and activities of the minor children, specifically, whether appellant can refuse to permit

the children to participate in sports and other activities during her companionship time, to

clarify how the children will be transported to these activities, and to clarify whether there

is a right of first refusal if a parent is working.

{¶36} Appellant opposed the motion and argued the trial court did not have

jurisdiction to consider the motion while the appeal of the July 22, 2015 judgment entry
Tuscarawas County, Case No. 2015 AP070042 & 2015AP090051 13

was pending before this Court. The trial court ruled on the motion and found the matters

contained in appellee’s motion for clarification were not directly involved in or essential to

the resolution of the issues raised in appellant’s appeal of the July 22, 2015 judgment

entry.

{¶37} In the September 2, 2015 judgment entry, the trial court found appellant

should make arraignments for the children to attend their practices and games during her

companionship time and has the option of changing her mid-week visitation to Tuesdays

during football season with notice to appellee via the Family Wizard. The trial court further

ordered the parties do not have a right of first refusal to care for the children when the

other parent is working.

{¶38} Appellant appeals the judgment entries of the Tuscarawas County Court of

Common Pleas and assigns the following as error:

{¶39} “I. THE COURT OF COMMON PLEAS COMMITTED REVERSIBLE

ERROR AND PLAIN ERROR WHEN IT FOUND THAT APPELLANT’S OBJECTIONS TO

THE MAGISTRATE’S ORDER DATED AUGUST 19, 2014 AND SEPTEMBER 17, 2014

WERE UNTIMELY.

{¶40} “II. THE COURT OF COMMON PLEAS COMMITTED REVERSIBLE

ERROR AND ABUSED ITS DISCRETION WHEN IT FOUND CHANGE OF

CIRCUMSTANCES PURSUANT TO R.C. 3109.04(E).

{¶41} “III. THE COURT OF COMMON PLEAS COMMITTED REVERSIBLE

ERROR AND ABUSED ITS DISCRETION WHEN IT ADOPTED FINDINGS OF FACTS

AND WHEN IT ADOPTED THE MAGISTRATE’S 3109.04(F) FINDINGS, WHICH WERE
Tuscarawas County, Case No. 2015 AP070042 & 2015AP090051 14

NOT SUPPORTED BY THE FACTUAL RECORD AND WERE AGAINST THE

MANIFEST WEIGHT OF THE EVIDENCE.

{¶42} “IV. THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION IN

RULING ON, AND GRANTING APPELLEE’S MOTION FOR CLARIFICATION OF

07/22/2015 JUDGMENT ENTRY RE: SPORTS AND ACTIVITIES AND RIGHT OF FIRST

REFUSAL DURING THE PENDENCY OF APPEAL CASE NO. 2015 AP 07 0042 IN THE

COURT OF APPEALS OF OHIO, FIFTH APPELLATE DISTRICT.

{¶43} “V. THE COURT OF COMMON PLEAS COMMITTED REVERSIBLE

ERROR AND ABUSED ITS DISCRETION WHEN IT ADOPTED THE FEBRUARY 13,

2015 MAGISTRATE’S DECISION WHICH RELIED UPON HEARSAY CONTAINED IN

THE REPORT OF THE GUARDIAN AD LITEM.”

Standard of Review

{¶44} Our standard of review in assessing the disposition of child custody matters

is that of abuse of discretion. Miller v. Miller, 37 Ohio St.3d 71, 523 N.E.2d 846 (1988).

Furthermore, as an appellate court reviewing evidence in custody matters, we do not

function as fact finders; we neither weigh the evidence nor judge the credibility of the

witnesses. Our role is to determine whether there is relevant, competent, and credible

evidence upon which the fact finder could base his or her judgment. Dinger v. Dinger,

5th Dist. Stark No. 2001 CA 00039, 2001-Ohio-1386. The trial court is “best able to view

the witnesses and observe their demeanor, gestures, and voice inflections, and use these

observations in weighing the credibility of the proffered testimony.” Seasons Coal Co. v.

Cleveland, 10 Ohio St.3d 77, 461 N.E.2d 1273 (1984). Deferential review in a child

custody determination is especially crucial “where there may be much evidence by the
Tuscarawas County, Case No. 2015 AP070042 & 2015AP090051 15

parties’ demeanor and attitude that does not translate to the record well.” Davis v.

Flickinger, 77 Ohio St.3d 415, 674 N.E.2d 1159 (1997).

I.

{¶45} In her first assignment of error, appellant argues the trial court committed

reversible and plain error when it found appellant’s objections to the magistrate’s order

dated August 19, 2014 and September 17, 2014 were untimely. Specifically, appellant

contends it was plain error for the trial court to: order the children to attend school in a

certain district because that changed the allocation of parental rights and responsibilities;

remove custody without following the mandates of R.C. 3109.04; and due process was

lacking when the children were ordered to attend New Philadelphia Schools.

{¶46} In this case, the magistrate issued orders on August 19, 2014 and

September 17, 2014. While appellant’s counsel filed a motion to vacate the September

17, 2014 magistrate’s order, this motion to vacate and request for transcripts was

subsequently withdrawn on October 14, 2014.

{¶47} On July 10, 2015, appellant filed “supplemental objections” to the February

13, 2015 magistrate’s decision. Also in these supplemental objections filed on July 10,

2015, appellant filed objections to the August 19, 2014 and September 17, 2014

magistrate’s orders. Civil Rule 53(D)(3)(b)(i) provides that “a party may file written

objections to a magistrate’s decision within fourteen days of the filing of the decision * *

*.” The magistrate’s orders in this case are dated August 19, 2014 and September 17,

2014. Appellant’s filing of objections on July 10, 2015 is not within the fourteen day time

limitation provided by Civil Rule 53(D)(3)(b)(i). Accordingly, we find the trial court did not

err in finding the objections untimely.
Tuscarawas County, Case No. 2015 AP070042 & 2015AP090051 16

{¶48} Since appellant did not file objections in a timely manner under Civ.R.

53(D)(3)(b)(i), she has therefore waived the right to appeal the issues pursuant to Civil R.

53(D)(3)(b)(iv), except for plain error. Waites v. Waites, 5th Dist. Fairfield No. 15-CA-1,

2015-Ohio-2916. However, in appeals of civil cases, the plain error doctrine is not favored

and may be applied only in the extremely rare case involving exceptional circumstances

where the error seriously affects the basic fairness, integrity, or public reputation of the

judicial process, thereby challenging the legitimacy of the underlying judicial process

itself. Kell v. Russo, 5th Dist. Stark No. 2011 CA 0082, 2012-Ohio-1286, citing Goldfuss

v. Davidson, 79 Ohio St.3d 116, 679 N.E.2d 1099 (1997). The doctrine should only be

applied in extremely unusual circumstances where the error complained of, if left

uncorrected, would have a material adverse effect on the character and public confidence

in the judicial proceeding. Id.

{¶49} Appellant contends it was plain error for the magistrate to order the children

to attend school in New Philadelphia because it was the equivalent of modifying parental

rights without following the mandates of R.C. 3109.04 and it was plain error for the

magistrate to order the children to attend school in New Philadelphia without giving her

due process.

{¶50} Upon review, we find this case does not present exceptional circumstances

that rise to the level of plain error. The magistrate’s order did not modify the allocation of

parental rights. Rather, it was an interim order that ordered the status quo with regards

to school for the children pending the resolution of appellee’s motion to modify parental

rights and was a determination as to whether appellant complied with the agreed entry
Tuscarawas County, Case No. 2015 AP070042 & 2015AP090051 17

which required the parties to “discuss and cooperate on matters relating to the children’s

* * * education * * *.”

{¶51} With regards to due process, the nature of an “ex parte” order is that it is an

act done without notice to an adversely interested party. See Keller v. Keller, 4th Dist.

Jackson No. 02CA19, 2003-Ohio-6462. Here, prior to ruling on the motion, the magistrate

conducted a phone conference that included participation by appellant’s counsel.

Further, appellant waited until several days before the start of the school year to notify

appellee she unilaterally determined the children were going to change schools. As this

Court has previously recognized, “ex parte orders are frequently necessary in family court

proceedings.” Reed v. Reed, 5th Dist. Stark No. 2007 CA 00321, 2008-Ohio-4349.

Further, any prejudice “which may inherently result from an ex parte order can be cured

by a full hearing with appropriate notice on the issue submitted for the court’s review.” Id.

Here, the magistrate set the matter for hearing on August 25, 2014 and conducted a full

hearing on August 25, 26, 27, and September 4, 2014.

{¶52} Finally, because we affirm, infra, the trial court’s decision to grant appellee’s

motion to reallocate parental rights, the children will necessarily be attending school in

New Philadelphia. Accordingly, any argument relating to the orders at issue are therefore

moot. Furbee v. Bittner, 11th Dist. Lake No. 2014-L-077, 2015-Ohio-4425.

{¶53} Upon review, we find no error that seriously affects the basic fairness,

integrity, or public reputation of the judicial process or that challenges the legitimacy of

the underlying judicial process itself. Appellant’s first assignment of error is overruled.
Tuscarawas County, Case No. 2015 AP070042 & 2015AP090051 18

II.

{¶54} In her second assignment of error, appellant contends the trial court erred

in finding a change in circumstances pursuant to R.C. 3109.04(E). Appellant argues the

issues found to be changes in circumstances were known at the time of the divorce

decree and further contends there was no showing the circumstances had a material

effect on the children.

{¶55} Three elements must exist in order for a trial court to modify a prior decree

allocating parental rights and responsibilities: (1) there must be an initial threshold

showing a change in circumstances; (2) if circumstances have changed, the modification

of custody must be in the children’s best interests; and (3) any harm to the children from

a modification of the plan must be outweighed by the advantages of such modification.

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

{¶56} R.C. 3109.04(E)(1)(a) provides as follows:

The court shall not modify a prior decree allocating parental rights and

responsibilities for the care of children unless it finds, based on facts that

have arisen since the prior decree or that were unknown to the court at the

time of the prior decree, that a change has occurred in the circumstances

of the child, the child’s residential parent * * * 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 * * *, 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
Tuscarawas County, Case No. 2015 AP070042 & 2015AP090051 19

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

environment to the child.

{¶57} R.C. 3109.04 does not define the concept of “change in circumstances.”

However, Ohio courts have held the phrase is intended to denote “an event, occurrence,

or situation which has a material and adverse effect upon a child.” Wyss v. Wyss, 3 Ohio

App.3d 412, 445 N.E.2d 1153 (10th Dist. 1982). A trial court “must carefully consider the

nature, circumstances, and effects of each purported change, such as growth and

improvement (excepting some mistakes along the way) should be fostered rather than

blindly chilled or penalized in the name of stability.” Murphy v. Murphy, 5th Dist.

Tuscarawas No. 2014 AP 01 0002, 2014-Ohio-4020.

{¶58} Additionally, the change of circumstances must be “one of substance, not a

slight or inconsequential change.” Davis v. Flickinger, 77 Ohio St.3d 415, 674 N.E.2d

1159 (1997). This prevents a constant re-litigation of the issues that have already been

determined by a trial court. Id. The change in circumstances “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, 2011-Ohio-2610, 955 N.E.2d 453 (3rd Dist.).

Relocation alone is not sufficient to constitute a change in circumstances, but may be a

factor in such determination. Thompson v. Thompson, 5th Dist. Stark No. 2012CA00176,

2013-Ohio-2587.

{¶59} In this case, the trial court set forth three bases to support its finding a

change of circumstances occurred following the agreed judgment entry: appellant moving

out of the children’s school district to a studio cottage; a CPO issued to protect one of
Tuscarawas County, Case No. 2015 AP070042 & 2015AP090051 20

appellee’s childcare providers; and the significant escalation of the animosity between the

parties.

{¶60} Upon review, we find the trial court did not abuse its discretion in finding a

change in circumstances. As noted above, the trial court is “best able to view the

witnesses and observe their demeanor, gestures, and voice inflections, and use these

observations in weighing the credibility of the proffered testimony.” Seasons Coal Co. v.

Cleveland, 10 Ohio St.3d 77, 461 N.E.2d 1273 (1984). Our role is to determine whether

there is relevant, competent, and credible evidence upon which the fact finder could base

his or her judgment. Dinger v. Dinger, 5th Dist. Stark No. 2001 CA 00039, 2001-Ohio-

1386. Thus, we defer to the trial court’s interpretation of the evidence as it observed first-

hand witnesses and their demeanor. Wright v. Wright, 5th Dist. Stark No. 2012CA00232,

2013-Ohio-4138.

{¶61} We find there is competent and credible evidence upon which the fact finder

could base her judgment as to a change in circumstances. Stewart testified to the

circumstances surrounding the CPO, including multiple phone calls and texts by

appellant, along with an incident where appellant yelled at Stewart and cussed her out at

a track meet in front of the children. Frank testified there has been a fundamental change

from the time of the agreed judgment entry as to appellant’s relocation from the children’s

previous school district to a studio cottage. Frank stated it is “patently unhealthy” for P.D.

to be sleeping in the same bed as appellant. Appellant testified that while P.D. has his

own trundle bed, she does not, and will not, make him sleep in it. Appellee testified that,

at the time of the agreed judgment entry, he thought they could agree and discuss on
Tuscarawas County, Case No. 2015 AP070042 & 2015AP090051 21

issues relating to the children, but the conflict between him and appellant increased after

the agreed judgment entry.

{¶62} As to the increased conflict between appellant and appellee, a review of the

record and the voluminous testimony makes it clear the parties cannot agree on anything.

Further, there is competent and credible evidence to support the conclusion that this

hostility increased from the time of the agreed entry and, though some communication

issues may have existed at the time of the decree, it appears these communication issues

have escalated and the parties’ willingness to jointly work out their communication

problems has changed since the agreed judgment entry. See Murphy v. Murphy, 5th

Dist. Tuscarawas No. 2014 AP 01 002, 2014-Ohio-4020.

{¶63} With regards to the materially adverse effect upon the children, we find there

is competent and credible evidence to support this determination. Appellant testified the

children are aware of the CPO against her. Stewart stated D.D.’s behavior changed from

well-behaved to agitated and arguing when appellant called on the phone. Frank testified

that while there is no evidence the children are traumatized, the conflict between appellant

and appellee is ripping the children up and is taking a huge toll on them. Frank stated

the children are well-aware of the conflict between the parties and the conflict is

“absolutely” detrimental to the children and is highly distressing to them. When Frank

was asked on cross-examination what kind of behavior is having a negative impact on

the children, Frank listed fighting, conflict, acrimony, and arguing over everything as the

type of behavior that is having a negative effect on the children. Exley testified it is not

healthy for children to witness conflict between parents because it could emotionally affect
Tuscarawas County, Case No. 2015 AP070042 & 2015AP090051 22

them. Appellee stated that, since the divorce, D.P. has become more defiant, it is hard

to get him to focus, and he is now getting into fights.

{¶64} Taking into consideration the various circumstances since the agreed entry,

including the CPO against appellant, the relocation of appellant to a studio cottage, and

the increased hostility between the parties, we find there is no abuse of discretion in the

trial court’s determination of a change in circumstances. Further, the record in this case

supports the trial court’s conclusion that substantial events have occurred that have or

may have an adverse effect on D.D. and P.D. See Wright v. Wright, 5th Dist. Stark No.

2012CA00232, 2013-Ohio-4138. Appellant’s second assignment of error is overruled.

III.

{¶65} In her third assignment of error, appellant contends the trial court erred and

abused its discretion in weighing the best interest factors contained in R.C. 3109.04(F).

{¶66} If a change of circumstances is established, the trial court must weigh the

best interest of the children before modifying a residential-parent designation. R.C

3109.04(F), which sets forth the factors a trial court must consider in determining the best

interest of the child, provides:

In determining the best interest of a child pursuant to this section, whether

on an original decree allocating parental rights and responsibilities for the

care of children or a modification of a decree allocating those rights and

responsibilities, the court shall consider all relevant factors, including, but

not limited to:

(a) The wishes of the child’s parents regarding the child’s care;
Tuscarawas County, Case No. 2015 AP070042 & 2015AP090051 23

(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 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.
Tuscarawas County, Case No. 2015 AP070042 & 2015AP090051 24

{¶67} In this case, the magistrate set forth each factor contained in R.C

3109.04(F) and analyzed each of the factors with regards to the evidence and testimony

provided in the case. Though appellant argues factors (b), (c), (e), (f), and (i) are

unsupported by the evidence, upon review of the record in this case, we find there is

competent and credible evidence to support the magistrate’s conclusions with regard to

these factors. While the trial court did not interview the children, the guardian ad litem

did interview the children and provided the trial court with a recommendation and report.

{¶68} Appellee’s testimony supports the magistrate’s conclusion as to factor (c).

Dr. Exley testified to the mental health of the parties as indicated in factor (e). As to factor

(f), Frank testified appellee has a better chance of honoring, respecting, and facilitating

the other parent’s role. Appellee testified he is in counseling and intends to remain in

counseling to deal with the communication issues between the parties. While appellant

is in counseling, she testified she has not addressed any communication issues related

to parenting. The magistrate determined that, pursuant to factor (i), there was not a denial

of parenting time, but appellant insisted appellee pick up the children at places other than

the court-ordered meeting place. Appellee testified appellant frequently asked him to

change meeting places. Appellant, when asked why she frequently asked to change

meeting places, she stated, “why not?” Frank and appellee testified to appellant’s

referring to appellee as “Mr. DiDonato” in front of the children.

{¶69} Though appellant provided contrary testimony to several of these factors,

we defer to the trial court’s interpretation and weight of the evidence as it observed first-

hand witnesses and their demeanor. Wright v. Wright, 5th Dist. Stark No. 2012CA00232,

2013-Ohio-4138.
Tuscarawas County, Case No. 2015 AP070042 & 2015AP090051 25

{¶70} We find no abuse of discretion in the trial court’s conclusion it was in the

best interest to name appellee the residential parent and legal custodian. The

magistrate’s decision thoroughly analyzed the factors and the findings were supported by

the record. Appellant’s third assignment of error is overruled.

IV.

{¶71} In her fourth assignment of error, appellant argues the trial court abused its

discretion when it ruled on the motion for clarification of the July 22, 2015 judgment entry

regarding sports and activities during the pendency of this appeal.

{¶72} It is a well-recognized principle that once an appeal has been perfected, the

trial court loses jurisdiction over the matter, pending the outcome of the appeal. Ritchey

v. Plunkett, 5th Dist. Stark No. 2013 CA 00105, 2013-Ohio-5695. However, a notice of

appeal only divests the trial court of jurisdiction over that part of the final order, judgment,

or decree which is sought to be reviewed. Cramer v. Fairfield Med. Ctr., 5th Dist. Fairfield

No. 2007 CA 62, 2008-Ohio-6706. The trial court continues to have jurisdiction during

the pendency of an appeal so long as the exercise of that judgment does not interfere

with the power of this Court to review the appealed judgment. In re: Cletus P. McCauley

& Mary McCauley Irrevocable Trust, 5th Dist. Stark No. 2013 CA 00237, 2014-Ohio-3489.

{¶73} In this case, the appeal of the judgment entry divested the trial court of

jurisdiction over the issue being appealed in this case, the granting of appellee’s motion

for reallocation of parental rights. The trial court retained jurisdiction to continue to hear

matters not in conflict with this appeal of the motion for change of custody. See Id. We

find the judgment entry on September 2, 2015, clarifying the July 22, 2015 judgment entry

does not conflict with the issue appealed in this case.
Tuscarawas County, Case No. 2015 AP070042 & 2015AP090051 26

{¶74} Accordingly, we find the trial court did not abuse its discretion in ruling on

appellee’s motion for clarification of the July 22, 2015 judgment entry regarding sports

and activities. Appellant’s fourth assignment of error is overruled.

V.

{¶75} In appellant’s fifth assignment of error, she contends the trial court abused

its discretion when it adopted the magistrate’s decision which relied upon hearsay

contained the report of the guardian ad litem.

{¶76} We first note that while appellant included this assignment of error on the

“Table of Contents” page of her appellate brief, her appellate brief is devoid of any

argument as to this assignment of error and it is not on the “Assignments of Error” page

(page iv) or on the “Statement of Issues Presented” page (page v). However, it appears

appellant attempts to make her argument regarding this assignment of error in her reply

brief.

{¶77} A reply brief is not the place for briefing new arguments that were not

included in appellant’s merit brief. See App.R. 16(C); See also State ex rel. Colvin v.

Brunner, 120 Ohio St.3d 110, 2008-Ohio-5041, 896 N.E.2d 979. Appellate Rule 16

provides that assignments of error shall be argued in the brief of appellant and a reply

brief is to “reply to the brief of the appellee.” Further, Appellate Rule 12(A)(2) states, the

“court may disregard an assignment of error presented for review if the party raising it * *

* fails to argue the assignment separately in the brief, as required under App.R. 16(A).”

Here, by placing her assignment of error in the reply brief, appellee is denied the

opportunity to respond to this assignment of error. Accordingly, we may properly decline
Tuscarawas County, Case No. 2015 AP070042 & 2015AP090051 27

to address the argument raised for the first time in the reply brief. CSAHA/UHHS-Canton,

Inc. v. Aultman Health Found., 5th Dist. Stark No. 2010CA00303, 2012-Ohio-897.

{¶78} However, even if we were to consider appellant’s fifth assignment of error,

we find the trial court did not abuse its discretion in adopting the magistrate’s decision. A

trial court possesses broad discretion with respect to the admission of evidence and an

appellate court will not disturb evidentiary rulings absent an abuse of discretion. State v.

Roberts, 156 Ohio App.3d 352, 2004-Ohio-962, 805 N.E.2d 594 (9th Dist.). The role of

a guardian ad litem is to advocate for the child’s best interests and he or she is not aligned

with any party on the legal issues presented. In re Seitz, 11th Dist. Trumbull No. 2002-

T-0097, 2003-Ohio-5218.

{¶79} Frank testified concerning his reports that he authored throughout the

pendency of the case. His conclusions were based upon his investigation over the course

of the case, including talking with the children, the parents, family members, and other

professionals. “Given the guardian’s role and the requirements that she explain her

investigation and the basis for her recommendation, her report and testimony may

necessarily include information about what other people told her.” Sypherd v. Sypherd,

9th Dist. Summit No. 25815, 2012-Ohio-2615; Geary v. Geary, 5th Dist. Delaware No.

14CAF050033, 2015-Ohio-259. These “out-of-court statements do not become

inadmissible ‘hearsay’ however, unless they are offered in evidence to prove the truth of

the matter asserted * * * an out-of-court statement offered simply to prove that the

statement was made is not hearsay. Id.

{¶80} Upon review of Frank’s testimony in this case, his statements were offered

to prove that the statements were made and his conclusion was relevant to his
Tuscarawas County, Case No. 2015 AP070042 & 2015AP090051 28

recommendations and findings. Further, any findings of fact or testimony by Frank that

was offered to prove the truth of the matter asserted was also supported by the testimony

of other witnesses. Accordingly, the trial court did not abuse its discretion in considering

Frank’s testimony.

{¶81} Appellant’s fifth assignment of error is overruled.

{¶82} Based upon the foregoing, we overrule appellant’s assignments of error.

The judgment entries of the Tuscarawas County Court of Common Pleas are affirmed.

By Gwin, P.J.,

Wise, J., and

Delaney, J., concur