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Polhamus v. Robinson

Court of Appeals of Ohio, Third District, Logan

January 9, 2017

EMILY POLHAMUS, PETITIONER-APPELLEE,
v.
VIOLET M. ROBINSON, RESPONDENT-APPELLEE, and OLIVER M. GUTIERREZ, RESPONDENT-APPELLANT.

         Appeal from Logan County Common Pleas Court Family Court - Juvenile Division Trial Court No. 10 AD 109

         Judgment Affirmed

          Miranda A. Warren for Appellant

          Natalie J. Bahan for Appellee, Emily Polhamus

          OPINION

          PRESTON, P.J.

         {¶1} Respondent-appellant, Oliver M. Gutierrez ("Oliver"), appeals the May 11, 2016 decision of the Logan County Court of Common Pleas, Family Court-Juvenile Division, denying his motion requesting the trial court to award him legal and residential custody of his daughter, M.G. For the reasons that follow, we affirm.

         {¶2} This case stems from a shared-custody agreement executed between Oliver, respondent-appellee, Violet M. Robinson ("Violet"), M.G.'s mother, and petitioner-appellee, Emily Polhamus ("Emily"), M.G.'s maternal aunt, in which they agreed to share legal custody of M.G. with Emily having residential custody of M.G. M.G. was born in 2004 to Oliver and Violet during their marriage. (Doc. No. 1). In 2007, Violet, who had previously separated from Oliver, was diagnosed with Crohn's disease. (June 5, 2015 Tr. at 7). Because of Violet's illness and financial instability, Emily offered to care for M.G. (Id. at 8). Violet and Emily could not initially locate Oliver but eventually found him living and working under an assumed alias. (Id. at 83, 89, 127). Emily consulted an attorney who advised her that the parties could privately execute a shared-custody agreement to reflect the parties' agreement regarding the care and custody of M.G. (Id. at 83-84, 126). The parties executed a shared-custody agreement (the "shared-custody agreement") reflecting that Oliver, Violet, and Emily would share legal custody of M.G. With Emily having residential custody of M.G.[1] (See id. at 10, 17, 83); (Feb. 24, 2015 Tr. at 9-10).

         {¶3} Emily filed with the Russell County, Virginia Juvenile and Domestic Relations Court the out-of-court-shared-custody agreement executed by the parties, and that court issued on March 2, 2007 an agreed order reflecting the shared-custody agreement of the parties. (See Doc. Nos. 1, 3). (See also June 5, 2015 Tr. at 83).

         {¶4} On June 15, 2010, Emily filed with the Logan County Court of Common Pleas, Family Court-Juvenile Division, a "Petition to Register Foreign Custody Decree." (Doc. No. 1). On November 15, 2010, the trial court granted Emily's petition and registered the foreign custody decree. (Doc. No. 12).

         {¶5} On June 20, 2011, Oliver filed a "Notice of Submission of Order" and submitted to the trial court a September 7, 2010 order of the Russell County court modifying the March 2, 2007 order regarding Violet's visitation time. (Doc. No. 14).

         {¶6} On July 13, 2011, Oliver filed a motion to modify Violet's visitation time with M.G. (Doc. No. 15). In that motion, Oliver did "not seek to modify the rights of [Emily] and believe[d] she is a stable and positive influence on [M.G.]" (Id.). Violet filed on August 11, 2011 an "Objection" to Oliver's motion. (Doc. No. 27).

         {¶7} On August 22, 2012, the parties entered an "Agreed Judgment Entry" (the "agreed-custody entry") in which, in part, they agreed to continue to share legal custody of M.G. with Emily continuing to have residential custody of M.G. (Doc. No. 62).

         {¶8} On January 27, 2014, Oliver filed a "Motion for Reallocation of Parental Rights and Responsibilities" asking that the trial court grant him legal and residential custody of M.G. (Doc. No. 65). On February 21, 2014, Emily filed a memorandum in opposition to Oliver's motion. (Doc. No. 79). On February 27, 2014, Violet filed an "Answer and Objection" to Oliver's motion. (Doc. No. 81).

         {¶9} On June 4, 2014, the trial court appointed a guardian ad litem ("GAL") for M.G. (Doc. No. 109). The GAL filed his report on February 12, 2015. (Doc. No. 126).

         {¶10} On July 31, 2014, Oliver filed an addendum to his motion, clarifying that he was "requesting that custody of [M.G.] be allocated, not reallocated." (Doc. No. 113).

         {¶11} After hearings on February 24, 2015 and June 5, 2015, the magistrate issued his decision on December 17, 2015, concluding that Oliver and Violet forfeited their paramount right to custody of M.G; that no change of circumstances occurred; and that it is in M.G.'s best interest that Emily be M.G.'s "primary caretaker" if Emily can legally fill that role. (Doc. Nos. 137, 142).

         {¶12} On March 21, 2016, Oliver filed his objections to the magistrate's decision. (Doc. No. 143). On May 11, 2016, the trial court overruled Oliver's objections to the magistrate's decision and adopted the magistrate's decision- namely, that Oliver and Violet forfeited their paramount right to custody of M.G. and that no change in circumstances occurred necessitating a modification of the agreed-custody entry. (Doc. No. 144).

         {¶13} Oliver filed his notice of appeal on June 6, 2016. (Doc. No. 145). He raises three assignments of error for our review. For ease of our discussion, we first address together Oliver's first and second assignments of error, then his third assignment error.

Assignment of Error No. I
It was an Abuse of Discretion and Against the Manifest Weight of the Evidence When the Trial Court Found that the Appellant Forfeited His Paramount Right of Custody of Their [sic] Child by Contract (Physical Custody) and by Abandonment (Legal Custody).
Assignment of Error No. II
It was an Abuse of Discretion and Against the Manifest Weight of the Evidence When the Trial Court Failed to Apply All Criteria of In Re Perales and Denied Custody ...

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