[Cite as Lykins v. Lykins, 2020-Ohio-2769.]
IN THE COURT OF APPEALS
TWELFTH APPELLATE DISTRICT OF OHIO
CLERMONT COUNTY
SUSANA E. LYKINS, :
Appellee, : CASE NO. CA2019-07-060
: OPINION
- vs - 5/4/2020
:
DONALD H. LYKINS, :
Appellant. :
APPEAL FROM CLERMONT COUNTY COURT OF COMMON PLEAS
DOMESTIC RELATIONS DIVISION
Case No. 2015DRA621
Heyman Law, LLC, D. Andrew Heyman, 1212 Sycamore Street, Suite 32, Cincinnati, Ohio
45202, for appellee
Donald H. Lykins, 8415 Reading Road, Reading, Ohio 45215, pro se
PIPER, J.
{¶ 1} Donald Lykins ("Father") appeals from the decision of the Clermont County
Common Pleas Court, Domestic Relations Division, which denied his motion for shared
parenting. For the reasons discussed below, this court affirms the decision.
{¶ 2} Father and Susana Lykins ("Mother") married in 1996. They had two
daughters during the marriage. Mother filed for divorce in 2015. As detailed in this court's
Clermont CA2019-07-060
opinion published two years ago, the divorce was highly contentious. Lykins v. Lykins, 12th
Dist. Clermont Nos. CA2017-06-028 and CA2017-06-032, 2018-Ohio-2144. The domestic
relations court determined that a shared parenting plan was not in the children's best
interest given the extensive conflict between Father and Mother, as well as Father's
demeanor throughout the lengthy divorce proceedings. Id. at ¶ 5. Accordingly, the
domestic relations court designated Mother as the sole residential parent and granted
Father limited parenting time. Id. at ¶ 4. This court affirmed that decision. Id. at ¶ 29.
{¶ 3} In 2019, Father, appearing pro se, moved for shared parenting. He noted that
his daughters, then ages 12 and 14, were being "underserved" while under the primary care
of Mother. He indicated that the younger daughter was showing "significant" behavioral
issues and that both children had low self-esteem. Father criticized Mother's parenting,
arguing that she was not sufficiently involved with the children and had not taught them
various skills or actively coached them in sports. Father indicated that if the court ordered
a shared parenting plan – with Father receiving equal parenting time – then Father could
use that time to teach the children skills, coach them and their teams, and tutor them in
school subjects. Father basically argued that the children's best interest would be served
by granting him additional parenting time.
{¶ 4} The matter proceeded to a hearing where Father appeared pro se. Father
called Mother as a witness. The evidence revealed that Mother had arranged counseling
sessions for the youngest daughter to address concerns with angry outbursts, self-esteem
issues, and social anxiety. Mother did not believe that the issues were that serious, but she
wanted advice from a neutral professional. Mother testified that the counselor was the
same counselor the youngest daughter had seen during the divorce proceedings. Overall,
Mother felt that both daughters were doing well, that nothing significant had changed since
the decree was entered and that the children were primarily experiencing some
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physiological changes associated with growing up.
{¶ 5} Father testified. Most of his testimony was non-factual. Instead, he presented
argument as to why he felt the children would be better served by spending more time with
him. Father submitted several emails into evidence that showed he and Mother discussing
the younger daughter's counseling sessions as well as emails from Mother notifying Father
of her decision to exercise the extended parenting time provided to her by the divorce
decree.
{¶ 6} After Father rested his case, Mother moved to dismiss, arguing that Father
had failed to meet his burden to present a change of circumstances. The domestic relations
court agreed, finding that Father had alleged that his daughters were suffering serious
mental health issues but that the only evidence presented was that one daughter was
seeing a counselor whom she had seen before and after the decree and that the other
daughter was shy. The court found that Father's evidence did not show a change of
circumstances of substance that was sufficient to justify any modification to the custody
order.
{¶ 7} Father appeals, raising one assignment of error.
{¶ 8} Assignment of Error No. 1:
{¶ 9} THE TRIAL COURT ERRED AS A MATTER OF LAW IN DENYING
DEFENDANT'S REQUEST FOR SHARED PARENTING AS IT WAS NOT IN THE BEST
INTEREST OF THE CHILDREN TO IGNORE THE SUBSTANTIVE CHANGE IN
CIRCUMSTANCES EVIDENCE.
{¶ 10} Father contends that the trial court ignored evidence indicating a significant
change of circumstances. He argues that the court ignored evidence of serious issues with
his daughters' mental health. He also contends the court ignored evidence of increased
collaboration between him and Mother. Finally, he argues the court ignored evidence that
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Mother was withholding the children during his parenting time.
{¶ 11} Trial courts have broad discretion in custody proceedings. Pierson v. Gorrell,
12th Dist. Butler No. CA2011-11-216, 2012-Ohio-3878, ¶10, citing Davis v. Flickinger, 77
Ohio St.3d 415 (1997), paragraph one of the syllabus. "As 'custody issues are some of the
most difficult and agonizing decisions a trial judge must make,' the judge must be given
'wide latitude in considering all the evidence' and the decision must not be reversed absent
an abuse of discretion." Id. quoting Flickinger at 418. The term "abuse of discretion" implies
that the court's attitude is unreasonable, arbitrary or unconscionable. Blakemore v.
Blakemore, 5 Ohio St.3d 217, 219 (1983).
{¶ 12} This court presumes that the trial court's findings are correct because 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, 80 (1984). "Therefore,
deferential review in a child custody determination is especially crucial 'where there may be
much evident in the parties' demeanor and attitude that does not translate to the record
well.'" Pierson at ¶ 11, quoting Flickinger at 419.
{¶ 13} A trial court asked to redesignate parental rights and responsibilities is
required to first find that a change in circumstances occurred to warrant a change in
custodianship. Id. at ¶ 12, citing Fisher v. Hasenjager, 116 Ohio St.3d 53, 2007-Ohio-5589.
R.C. 3109.04(E)(1)(a), provides, in pertinent part:
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.
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R.C. 3109.04 does not further define what constitutes a "change * * * in the circumstances*
* *." Lewis v. Lewis, 12th Dist. Butler No. CA2001-09-209, 2002 Ohio App. LEXIS 1557, *4
(April 8, 2002), citing Rohrbaugh v. Rohrbaugh, 136 Ohio App.3d 599 (7th Dist.2000).
However, Ohio courts have held that the phrase is intended to mean "'an event, occurrence,
or situation which has a material and adverse effect upon a child.'" Id. quoting Rohrbaugh
at 604-605. 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."
Flickinger at 418.
{¶ 14} The evidence presented as to a mental health issue with the older daughter
focused on her apparent shyness in public settings. This court does not find the domestic
relations court abused its discretion in concluding that Father did not present evidence of a
significant change of circumstances concerning the older daughter.
{¶ 15} The record regarding the younger daughter's mental health indicated the she
was seeing a counselor for issues seemingly commonplace in adolescents, including some
occasional behavior issues, issues with her self-esteem, socializing with peers, and anxiety.
Mother testified that these issues were not serious or dangerous, but she nonetheless
wanted the advice and assistance of a neutral professional. The evidence presented
concerning the younger daughter does not establish any serious mental health issue.
Moreover, the evidence presented indicated that the daughter had seen the same counselor
before and after the decree, thus the evidence did not indicate a change of circumstances.
{¶ 16} Notably, the record indicates that Mother provided Father with detailed
information concerning the younger daughter's counseling. Mother further provided Father
with the dates of upcoming counseling sessions and invited him to participate. Yet Mother
testified that Father failed to attend any counseling session. It is simply disingenuous for
Father to claim that he is concerned that his daughter is suffering serious mental health
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issues but is also unwilling to participate in her counseling sessions. The domestic relations
court did not abuse its discretion by finding that Father failed to demonstrate a significant
change of circumstances based on the younger daughter's mental health.
{¶ 17} Next, Father argues that the court ignored evidence of a change of
circumstances in that he claimed there was a substantial improvement in parenting
collaboration between him and Mother. The evidence presented on this subject was
Father's testimony that collaboration had improved and his reference to supporting exhibits,
some of which he failed to introduce into evidence. The limited evidence presented on this
issue was not compelling and did not constitute persuasive evidence of a significant change.
Without a change of substance there would not be justification for modifying the prior
custody order. Moreover, Father's claim that he has sufficiently improved collaboration with
Mother is belied by the next issue he raises.
{¶ 18} Father contends that the trial court ignored evidence of a change in
circumstance in that he had presented evidence that Mother repeatedly withheld the
children from his scheduled parenting time, claiming the children had sporting events. The
evidence showed that the younger daughter had her final lacrosse game of the season at
9:00 am on a Saturday morning, which coincided with Father's parenting time. Father
informed Mother that he had decided he would not bring the daughter to her sporting event
because he intended to spend the weekend with the daughters at his lake home,
approximately one- and one-half hours driving distance away. He told Mother, "my
parenting time trumps sports so she will not be participating in that game, I will pick them
up at 6:00 p.m. [on Friday]." Mother offered that Father could pick up the elder daughter on
Friday and that she would drive the younger daughter to Father's lake home after her
sporting event. Father responded, "no, I'm picking them up Friday at 6:00 p.m."
{¶ 19} It appears that this kind of inflexible behavior was typical of Father because
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the divorce decree contained a provision requiring Father to transport the children to their
sporting events that occurred during his parenting time. And the decree provided that if
Father did not desire to take them to their sporting events, he was to inform Mother of this
decision in advance and he would forfeit his parenting time. His parenting time would then
begin one hour after the sporting event ended. Mother informed Father of this provision in
the decree and stated that the children would be available to him at 11:00 am on Saturday.
{¶ 20} Instead of acknowledging the decree, Father appeared at Mother's home on
Friday at 6:00 p.m. He arrived with multiple police officers. He left without the children. He
then did not pick up the children at 11:00 am on Saturday and missed the entire weekend
with the children.
{¶ 21} The other alleged incidents of Mother withholding the children from Father's
parenting time occurred when Mother exercised her right under the divorce decree to
extended parenting time. Thus, Father presented no evidence that Mother withheld the
children from him in violation of the decree.
{¶ 22} Upon review of the entire record, this court finds nothing that would establish
any abuse of discretion by the domestic relations court. To the contrary, the record fully
supports the court's determination that Father failed to submit evidence of a material or
adverse change of circumstances that would justify altering the custody arrangement. Most
of Father's arguments during the hearing focused on himself and how he could be a superior
parent to the children if he were allowed more parenting time.1 However, this kind of
argument is not appropriate in the context of moving to alter an existing order allocating
1. Father testified that he was "proactive" whereas Mother was "reactive," that he had many skills that he
could teach his daughters, including learning how to serve in volleyball, and that the children's issues with
social anxiety would be relieved by spending more time with him because they could observe how he is a
"social butterfly." It appears that Father's issues with narcissism have not been resolved since the divorce
decree. "Although the record indicates that the children are smart, well-adjusted children, the trial court noted
that Father had exhibited narcissistic tendencies given his testimony that he was the only person who could
'fix' the children." Lykins, 2018-Ohio-2144 at ¶ 5, fn. 4.
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parental rights. "'The clear intent of [R.C. 3109.04] is to spare children from a constant tug
of war between their parents who would file a motion for change of custody each time the
parent out of custody thought he or she could provide the children a "better" environment.
The statute is an attempt to provide some stability to the custodial status of the children * *
*.'" Flickinger at 418, quoting Wyss v. Wyss, 3 Ohio App.3d 412, 416 (10th Dist.1982). For
the foregoing reasons, this court overrules Father's assignment of error.
{¶ 23} Judgment affirmed.
M. POWELL, P.J., and S. POWELL, J., concur.
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