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Bingham v. Elliott

Court of Appeals of Ohio, Twelfth District

July 29, 2013

AUTUMN BINGHAM, Plaintiff-Appellant,
v.
CHRISTOPHER ELLIOTT, Defendant-Appellee.

APPEAL FROM CLERMONT COUNTY COURT OF COMMON PLEAS JUVENILE DIVISION Case No. 2000 JH 9195

Susan Mineer, for plaintiff-appellant

Christopher Elliott, defendant-appellee, pro se

OPINION

M. POWELL, J.

{¶ 1} Plaintiff-appellant, Autumn Bingham ("Mother"), appeals a decision of the Butler County Common Pleas Court, Juvenile Division, dismissing her motion to modify custody. For the reasons outlined below, we affirm the decision of the trial court.

{¶ 2} Mother and Christopher Elliott ("Father") are the parents of a minor son, Avery, born June 9, 2000. In June 2001, after a complaint for support, Mother was designated residential parent of Avery with Father receiving visitation. Though the couple's relationship was already contentious, this arrangement proceeded for the next seven years until February 2008, when Father moved to modify the couple's shared parenting plan, hold Mother in contempt, and modify visitation. In April 2009, the trial court designated Father as the residential parent and awarded Mother standard visitation of Wednesdays and every other weekend.

{¶ 3} Throughout 2010 and 2011, the contentious relationship between Mother and Father continued, with harsh words and foul language being used in a variety of text messages generally relating to parenting time and visitation. Consequently, on January 26, 2012, Mother sought to modify custody and again become residential parent of Avery. Mother alleged that a change in circumstances had occurred based upon the "increasing hostility between" Mother and Father as well as Father's failure to comply with court orders including (1) being flexible with Mother's pickup time of Avery; (2); requiring Avery call Mother at 8:00 p.m. every night; (3) sending Avery's prescription medications on visitation trips in the proper prescription bottles; and (4) notifying Mother of the names of Avery's school, teachers, and doctors.

{¶ 4} A change in circumstances hearing was held on April 23, 2012 and June 28, 2012 before a magistrate. At the hearing, Mother presented a series of text messages between herself, Father, and Father's wife, Kathryn ("Stepmother"). The text messages related to several days beginning in 2011 when Mother requested to alter her "pick up time" of Avery to allow her to also pick up her daughter from a different relationship. Mother would often make these requests on the day of the scheduled visitation without providing additional notice. Father and Stepmother would initially deny Mother's requests and the text messages often resulted in arguments where all parties involved hurled insults and threats at each other. Oftentimes, however, Mother would receive the altered pickup time or a time close to what she had requested.

{¶ 5} Mother then introduced text messages between herself and Father wherein Mother requested Avery call her every evening at 8:00 p.m. per a 2011 court order. Specifically, the court order read that "each parent shall have the child call the other parent at 8:00 p.m. unless otherwise unavailable. If that time is not convenient the parents shall have the child call at a time that is convenient." Father responded to Mother's text message by stating that Avery did not want to call her and that he was not going to force Avery to make the call. Father further stated that his family was very busy and they did not have time for Avery to call Mother.

{¶ 6} Mother also testified regarding Avery's medications. According to previous court orders, Father was to provide Mother enough of Avery's medication for the duration of his visits with Mother. This medication was to be provided in the original prescription bottles. Yet, Mother testified that Father repeatedly provided the medication in plastic baggies instead of the prescription bottles and sometimes failed to provide the necessary amount of medication for the visitation period. Father later testified that he put the medication in plastic baggies because Mother would throw away the prescription bottles, making it difficult for Father to refill the prescriptions.

{¶ 7} Mother also stated that, although she had received the names of Avery's school, teachers, and doctors prior to the change in circumstances hearing, it had taken Father months to comply with the 2011 court order which required Father to turn over this information.

{¶ 8} Finally, Mother testified about her contentious relationship with Father dating back to 2000. She stated that the hostility between the couple had recently escalated to violence and, during one incident in January 2012, Father had "slammed a door in [Mother's] face" and shoved her and that Stepmother had slapped Mother in the face during this same altercation. Mother further stated that Avery's relationship with Stepmother had also deteriorated, leading to two incidents wherein Avery struck Stepmother. One such incident occurred between the first change in circumstances hearing on April 23, 2012 and the second hearing on June 28, 2012.

{¶ 9} On July 2, 2012, the magistrate denied Mother's motion, making several factual determinations, including:

(1) [Father] permits phone calls between [Mother] and Avery only if [Father] is present. At present Avery rarely calls either parent ...

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