Hughey v. Hughey

[Cite as Hughey v. Hughey, 2022-Ohio-3791.]

IN THE COURT OF APPEALS OF OHIO
FOURTH APPELLATE DISTRICT
PICKAWAY COUNTY

JEREMY HUGHEY, :

Plaintiff-Appellee, : CASE NO. 21CA13

v. :

CRYSTAL HUGHEY, : DECISION AND JUDGMENT ENTRY

Defendant-Appellant. :

________________________________________________________________
APPEARANCES:

James R. Kingsley, Circleville, Ohio, for Appellant.

James K. Hill, Circleville, Ohio, for Appellee.
_______________________________________________________________
CIVIL CASE FROM COMMON PLEAS COURT
DATE JOURNALIZED:10-19-22
ABELE, J.

{¶1} This is an appeal from a Pickaway County Common Pleas

Court judgment that designated Jeremy Hughey, plaintiff below

and appellee herein, the residential parent and legal custodian

of the parties’ children. Crystal Hughey, defendant below and

appellant herein, appeals that judgment and assigns the

following errors for review:

FIRST ASSIGNMENT OF ERROR:

“THE TRIAL COURT COMMITTED PREJUDICIAL ERROR
WHEN IT DID NOT ADOPT A SHARED PARENTING
PLAN.”
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SECOND ASSIGNMENT OF ERROR:

“THE TRIAL COURT COMMITTED PREJUDICIAL ERROR
WHEN IT DID NOT GRANT CUSTODY/NOMINATE
APPELLANT RESIDENTIAL PARENT/LEGAL CUSTODIAN
OF THE MINOR CHILDREN.”

{¶2} In 2010, the parties met in North Carolina, then

married in 2011. Two children are the issue of the marriage,

Kayden (DOB April 11, 2011) and Hunter (DOB November 21, 2012).

The parties separated in 2013 or 2014, and, on February 13,

2019, appellee filed a complaint for divorce. Subsequently,

appellant also filed for divorce, but later voluntarily

dismissed her complaint.

{¶3} The parties’ parental rights formed the central issue

before the trial court. During the course of the evidentiary

hearing, both parties adduced evidence to support their version

of facts that portrayed them as most suited to serve as their

children’s residential parent. Initially, we observe that the

evidence revealed that, although both parties have had very

challenging lives, both have improved their respective

situations and demonstrate love and care for their children.

{¶4} After hearing the evidence, the magistrate recommended

that appellee be awarded custody of the children and appellant

be granted visitation. However, after the trial court’s review

of objections, the court remanded the matter to the magistrate
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to address additional issues and to set forth a more thorough

discussion of applicable facts and law. On remand, the

magistrate did include additional material in the

recommendation, but reached the same result. After a second

review, the trial court accepted the magistrate’s recommendation

and awarded appellee custody of the children and granted

appellant visitation. This appeal followed.

I.

{¶5} In her first assignment of error, appellant asserts

that, although the trial court did consider, and reject, her

shared parenting request, it appears that the court did not

consider appellee’s shared parenting request. Instead, the

court designated appellee the children’s residential parent.

Appellant now argues that the trial court had an affirmative

duty to consider both requests for shared parenting. See R.C.

3109.04(D).

{¶6} After the parties briefed this matter, and on the

morning of oral argument, appellant raised the issue of

appellee’s request for shared parenting and the absence of any

trial court determination with respect to that request. At that

juncture, appellee (1) conceded that the trial court may not

have fully considered, or been aware of, appellee’s shared

parenting request, and (2) agreed that the trial court should
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have the opportunity to review and consider appellee’s proposed

shared parenting plan prior to final judgment. This court very

much appreciates appellee’s candor in this matter and we

certainly understand how matters can be overlooked, especially

during the course of contentious and lengthy custody

proceedings.

{¶7} Consequently, for this reason alone we sustain

appellant’s assignment of error, reverse the trial court’s

custody determination and remand the matter to allow the court

to consider both shared parenting requests. We hasten to add,

however, that our disposition should not be considered in any

manner whatsoever as a comment on the merits of the parties’

arguments and the trial court’s final determination.

II.

{¶8} In her second assignment of error, appellant asserts

that the trial court’s custody determination constitutes an

abuse of discretion because the court did not “properly assess

and give weight to all relevant factors.” In particular,

appellant argues that the court failed to take into account

certain allegations raised during the contested hearing,

including, inter alia, false accusation of sexual abuse, prior

criminal convictions, abduction of the children, spousal abuse

syndrome, the failure to facilitate visitation and appellant’s
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role as the primary caregiver. Appellee, however, sets forth a

vastly different view of the evidence adduced at the hearing and

points to the many conflicts in the evidence that the trial

court had to resolve.

{¶9} At the outset, we recognize that the case sub judice

involves a contentious relationship between appellant and

appellee, who both appear to genuinely love and care about their

minor children’s well-being. After the trial court heard the

evidence, the court attempted to grapple with the difficult

issue of parental custodial rights, with the children’s best

interest serving as the court’s paramount consideration. We

also recognize and emphasize that decisions in child custody

matters are among “the most difficult and agonizing decisions a

trial judge must make.” Davis v. Flickinger, 77 Ohio St.3d 415,

418, 674 N.E.2d 1159 (1997). Again, this is especially true in

situations when two loving, caring parents are sincere in their

effort to act in their children’s best interest.

{¶10} Consequently, trial judges must have wide latitude to

consider all the evidence and a custody determination must not

be reversed absent an abuse of discretion. Id., citing Miller

v. Miller, 37 Ohio St.3d 71, 523 N.E.2d 846 (1988). The Supreme

Court of Ohio has explained:
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The reason for this standard of review is that the trial
judge has the best opportunity to view the demeanor,
attitude, and credibility of each witness, something
that does not translate well on the written page.

* * *

This is even more crucial in a child custody case, where
there may be much evident in the parties' demeanor and
attitude that does not translate to the record well.

Davis, 77 Ohio St.3d 415, at 418-419.

{¶11} Thus, in determining custody matters, a trial court is

vested with broad discretion and will be reversed only upon

a showing of an abuse of that discretion. Pater v. Pater

(1992) 63 Ohio St.3d 393, 396, 588 N.E.2d 794. An abuse of

discretion implies that a court's attitude is unreasonable,

arbitrary or unconscionable. Blakemore v. Blakemore, 5 Ohio

St.3d 217, 219, 450 N.E.2d 1140 (1983).

{¶12} When making a custody determination, a trial court's

primary concern must be the child's best interest. R.C.

3109.04(B)(1); In the Matter of J.S., 4th Dist. Meigs No.

18CA24, 2019-Ohio-4959, ¶ 12, In the Matter of A.B., 2019-Ohio-

90, 128 N.E.3d 694, ¶ 39 (4th Dist.). A court must consider all

relevant factors related to the child's best interest,

including, but not limited to, those factors specified in R.C.

3109.04(F)(1).1 To determine if a court has abused its

1
R.C. 3109.04(F)(1) provides the framework for
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PICKAWAY, 21CA13

analysis and states that to determine a child’s
best interest, a court must “consider all
relevant factors, including, but not limited
to,” the following:

(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 criminal offense involving any act
that resulted in a child being an abused child or a
neglected child; whether either parent 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
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discretion, an appellate court must examine the facts and

applicable law and determine whether the court’s decision is

unreasonable, arbitrary or unconscionable. Blakemore. When a

substantial amount of credible and competent evidence supports a

custody award, a reviewing court will not reverse the trial

court’s determination. Bechtol v. Bechtol, 49 Ohio St.3d 21,

550 N.E.2d 178 (1990), syllabus.

{¶13} In the case sub judice, the parties presented, and the

trial court considered, all relevant factors from the evidence

adduced at the hearing in its attempt to determine the relative

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;

(j) Whether either parent has established a residence,
or is planning to establish a residence, outside this
state.
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stability of each household and the children’s best interest.

Once again, we emphasize that, in general, and especially in

contested child custody matters, a trial court is in the best

position to weigh evidence. Hammond v. Harm, 9th Dist. Summit

No. 23993, 2008-Ohio-2310, ¶ 51; Blausey v. Blausey, 6th Dist.

Ottawa No. OT-18-039, 2019-Ohio-4506, ¶ 14. Further, a trial

court has discretion to determine which factors are relevant,

and each factor may not necessarily carry the same weight or

have the same relevance, depending on the facts presented to the

trial court. Krill v. Krill, 3d Dist. Defiance No. 4-13-15,

2014-Ohio-2577, ¶ 29, citing Brammer v. Brammer, 3d Dist. Marion

No. 9-12-57, 2013-Ohio-2843, ¶ 41; Hammond at ¶ 51. It is also

important to recognize that, although appellant argues that in

the case at bar the consideration of certain factors in

isolation may suggest a certain result, trial courts must

instead consider all relevant factors and determine what, on the

whole, is in the best interest of a child. Terwilleger v. Cole-

Robinson (Feb. 4, 2000), Paulding App. No. 11-99-10. Here, the

trial court considered all of the relevant factors.

Furthermore, it is important to again emphasize that, when a

court makes a child custody determination, a child’s best

interest is the primary consideration, not a particular parent’s

best interest.
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{¶14} Therefore, in the case sub judice, and after our

review of the record, we do not believe that the trial court

abused its discretion when it designated appellee the children’s

residential parent and awarded appellant visitation. Thus, we

overrule appellant’s second assignment of error. However, in

light of the disposition of appellant’s first assignment of

error, we remand this matter for further proceedings consistent

with this opinion.

JUDGMENT AFFIRMED IN PART,
REVERSED IN PART, AND CAUSE
REMANDED FOR FURTHER
PROCEEDINGS CONSISTENT WITH
THIS OPINION.

JUDGMENT ENTRY

It is ordered that the judgment is affirmed in part,

reversed in part, and cause remanded for further proceedings
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consistent with this opinion. Appellant and appellee shall

equally divide the costs herein taxed.

The Court finds there were reasonable grounds for this

appeal.

It is ordered that a special mandate issue out of this

Court directing the Pickaway County Common Pleas Court to carry

this judgment into execution.

A certified copy of this entry shall constitute that

mandate pursuant to Rule 27 of the Rules of Appellate Procedure.

Smith, P.J. & Hess, J.: Concur in Judgment & Opinion

For the Court

BY:__________________________
Peter B. Abele, Judge

NOTICE TO COUNSEL

Pursuant to Local Rule No. 14, this document constitutes a
final judgment entry and the time period for further appeal
commences from the date of filing with the clerk.