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Brammer v. Brammer

Court of Appeals of Ohio, Third District

July 1, 2013

VANCE BRAMMER, PLAINTIFF-APPELLANT,
v.
SHANNON BRAMMER, DEFENDANT-APPELLEE.

Appeal from Marion County Common Pleas Court Family Court Trial Court No. 06 DR 0119

Ted Coulter for Appellant.

Kevin P. Collins for Appellee.

OPINION

WILLAMOWSKI, J

{¶1} Plaintiff-Appellant, Vance Brammer ("Vance" or "Father"), appeals the judgment of the Marion County Court of Common Pleas, Family Division, terminating the parties' shared parenting plan and naming Defendant-Appellee, Shannon Brammer, nka Rappe ("Shannon" or "Mother") as the residential parent of the parties' two sons. On appeal, Father contends that the trial court erred when it found that there was a change of circumstances warranting the termination of the shared parenting plan and when it named Mother as the residential parent. Father also claims the trial court erred in its admission of certain evidentiary exhibits and in its reliance upon the family service investigator's report. For the reasons set forth below, the judgment is affirmed.

{¶2} The parties were married on August 28, 1998, and had two children together: Hayden, born in October 2000, and Keegan, born in June 2003. They divorced in 2006, and the parties entered into a mutually developed shared-parenting plan. The parties lived in close proximity to each other and the plan called for them to exercise equal parenting time. Pursuant to the shared-parenting plan, each parent was designated the residential and custodial parent of the children during their individual periods of parenting time. The shared-parenting plan also specified that the children attend school in the River Valley School District in Marion County, Ohio, unless the parties agreed to change school districts by mutual consent.

{¶3} In January of 2010, Shannon filed a motion to modify the parties' shared parenting plan because she had received a promotion and intended to relocate to Tennessee, where her fiancé resided.[1] She requested that she be named the residential parent for school purposes, and the children would reside with Vance in Ohio during the summer. Vance opposed this modification and he also filed a motion to modify, asserting that it was in the best interests of the children to remain in Ohio. Both parents wished to be named their children's residential parent for school purposes, and each parent expressed significant concerns with having the children reside with the other for the school year.

{¶4} Shannon believed that the Tennessee schools would be better able to deal with the special educational needs of their younger son, who had been diagnosed with Tourette's syndrome, ADHD. She also believed that she was more qualified to handle this son's medical needs, since she was a registered nurse. Vance worried that moving the children to Tennessee would cause their father-son relationships to suffer. There was also considerable evidence that the children were doing well in Ohio and were very close to many family and friends who lived nearby. The family services coordinator assigned to the case recommended that it was in the children's best interest to remain in Marion and to designate Vance as the children's residential parent for school purposes.

{¶5} The trial court granted Mother's motion and named her the residential parent for the school year. Vance appealed and requested a stay of the trial court's judgment pending the appeal. His motion for a stay was denied and the children resided with Mother and attended school in Tennessee during the August 2010-May 2011 school year.

{¶6} On May 31, 2011, this Court reversed the trial court's decision. See Brammer v. Brammer, 194 Ohio App.3d 240, 2011-Ohio-2610 (3d Dist.) (hereinafter, "Brammer I "). We found that "the majority of the evidence * * * support[ed] keeping the children in Marion and naming Vance the residential parent for school purposes." Id. at ¶ 54. "[T]here was no evidence presented, aside from Shannon's mere conjectures, to substantiate that the school in Tennessee would better serve her children than the school in Marion." Id. at ¶ 26. We further stated that "we cannot find evidence in the record that supports uprooting the children from an environment where they are surrounded by family and friends simply to place them in a new state where the only people known to them are their mother, her fiancé, and his children, with whom they have had only intermittent contact during the past two years." Id. at ¶ 60. Although a court of appeals must defer to a trial court's discretion in determining these issues, we held that the trial court's decision was an abuse of discretion because the determination was not supported by a substantial amount of competent, credible evidence. Id. at ¶ 61.

{¶7} Upon remand, the trial court rendered a new judgment entry, modifying the shared parenting plan and naming Vance the residential parent for school purposes pursuant to this Court's decision in Brammer I. Shannon was ordered to release custody of the children to Vance on August 20, 2011, so that the children could return to Ohio for the 2011-2012 school year.

{¶8} Shortly after this Court's decision in Brammer I, Shannon filed a motion to modify parental rights and responsibilities, alleging that there had been a change in circumstances. She later filed an amended motion to modify parental rights and responsibilities and to terminate the shared parenting plan, pursuant to R.C. 3109.04(E)(2)(c), on November 14, 2011. Vance filed motions in opposition.[2]

{¶9} A three-day hearing was held on April 4 and 5, 2012, and June 5, 2012. The trial court heard testimony from: Shannon and Vance; Jennifer Yanka, the Family Services Coordinator ("Ms. Yanka" or "the FSC"); Shannon's new husband (stepfather); Vance's girlfriend; Vance's brother; a psychiatrist and psychologist who have worked with the children; an intervention specialist from the Marion schools; a principal from Heritage School in the River Valley School District; a principal from Benjamin Harris School in the Marion School District; three of the children's teachers (from 3rd grade and 5th grade); and a special education expert witness. More than one hundred exhibits were admitted into evidence, including the children's school records, numerous emails between the parties, depositions, and the FSC's report.

{¶10} After hearing all of the evidence, the trial court found that there had been a significant breakdown in communications between the parties, and that this was a change in circumstances that had resulted in an adverse impact on the children. Specifically, the trial court stated that:

[C]ommunication has become ineffective and often times vitriolic. Evidence shows that the children have become the messengers of information that should be relayed between the parties. The evidence also shows that the children no longer have the benefit of both parents making decisions about their education and healthcare. The children have been adversely impacted as a result.

(Sept. 12, 2012 J.E., p. 10) The trial court then found that it was in the children's best interest that the shared parenting decree be terminated and that "the harm likely to be caused by the maintenances of the shared parenting plan is outweighed by the termination of the shared parenting decree to the children." (Id.)

{¶11} The trial court proceeded to analyze the factors with respect to the best interests of the children set forth in R.C. 3109.04(F)(1) in order to allocate parental rights and responsibilities. After considering all of the relevant factors, the trial court designated Shannon as the residential parent and legal custodian of the children and Vance was to have parenting time during most of the summer break and during other designated school breaks and holidays.

{¶12} It is from this judgment that Vance now appeals, raising the following four assignments of error for our review.

First Assignment of Error
The trial court erred as a matter of law, abused its discretion and erred against the weight of the evidence by admitting and relying on the family service investigator's erroneous/prejudicial report as substantive facts and determinative reasons to change custody rather than weigh all factual evidence and testimony.
Second Assignment of Error
The trial court erred as a matter of law, abused its discretion and erred against the weight of the evidence by determining that there was a substantiated and sufficient change in circumstances pursuant to Ohio Revised Code 3109.04(E)(1)(A).
Third Assignment of Error
The trial court erred as a matter of law, abused its discretion and erred against the weight of the evidence by determining that terminating the prior decree and naming [Shannon] as the custodial parent was in and necessary to serve the best interest of the children [sic] pursuant to ORC 3109.04(E)(1)(A), ORC 3109.04(E)(2)(C), ORC 3109.04(F)(1), and ORC 3109.04(F)(2) when failing to substantiate through findings the requisite threshold in ORC 3109.04(E)(1)(A)(iii).
Fourth Assignment of Error
The trial court erred in admitting [Shannon's] Exhibits 41-46, letters between counsel, and erred in not admitting [Vance's] Exhibits 109 and 110, compilations of texts between the parties.

Standard of Review

{¶13} Custody issues are some of the most difficult decisions a trial judge must make. Therefore, those decisions rest within the sound discretion of the trial court. Davis v. Flickinger, 77 Ohio St.3d 415, 418, 1997–Ohio–260; Miller v. Miller, 37 Ohio St.3d 71, 74 (1988). A court's decision regarding an award of custody is subject to reversal only upon a showing of an abuse of that discretion. Id.; Trickey v. Trickey, 158 Ohio St. 9, 13–14 (1952). A trial court will be found to have abused its discretion when its decision is contrary to law, unreasonable, not supported by the evidence, or grossly unsound. Bruce v. Bruce, 3d Dist. No. 9–10–57, 2012–Ohio–45, ¶ 13, citing State v. Boles, 187 Ohio App.3d 345, 2010– Ohio–278, ¶ 17–18 (2d Dist.), citing Black's Law Dictionary (8 Ed.Rev.2004) 11. "A reviewing court will not overturn a custody determination unless the trial court has acted in a manner that is arbitrary, unreasonable, or capricious." Pater v. Pater, 63 Ohio St.3d 393 (1992).

{¶14} The reason for this standard of review is that the trial judge is in the best position to view the demeanor, attitude, and credibility of each witness and to weigh the evidence and testimony. Davis, 77 Ohio St.3d at 418. This is especially true in a child custody case, since there may be much that is evident in the parties' demeanor and attitude that does not translate well to the record. Id. at 419.

[I]t is inappropriate in most cases for a court of appeals to independently weigh evidence and grant a change of custody. The discretion which a trial court enjoys in custody matters should be accorded the utmost respect, given the nature of the proceeding and the impact the court's determination will have on the lives of the parties concerned. The knowledge a trial court gains through observing the witnesses and the parties in a custody proceeding cannot be conveyed to a reviewing court by a printed record. * * *

(Citations omitted.) Miller, 37 Ohio St.3d at 74.

{¶15} In applying an abuse of discretion standard, a reviewing court is not free to substitute its judgment for that of the trial court. Hay v. Shafer, 3d Dist. No. 10-10-10, 2010-Ohio-4811, ¶ 14, citing Holcomb v. Holcomb, 44 Ohio St.3d 128, (1989). When reviewing a change of child custody proceedings, an appellate court should be guided by the presumption that trial court's findings were correct. Miller at 74.

First Assignment of Error - Reliance on FSC's Report

{¶16} In his first assignment of error, Vance contends that the FSC erroneously acted as a guardian ad litem ("GAL") when she did not meet the Marion Family Courts requirements to be a GAL, and that she failed to follow the applicable rules of court and guidelines pursuant to Loc.R22 and Sup.R.48 (pertaining to GALs). Vance argues that the trial court "prejudicially relied on the flawed reports" of the FSC rather than weighing all of the evidence and testimony. (Appellant's Br. 18) He further finds fault in the manner in which ...


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