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Loewen v. Newsome

Court of Appeals of Ohio, Ninth District, Summit

January 10, 2018



          KENNETH J. LEWIS, Attorney at Law, for Appellant.

          LESLIE A. WEISS and WILLIAM S. HALBERG, Attorneys at Law, for Appellee.


          LYNNE S. CALLAHAN, Judge.

         {¶1} Patricia Newsome ("Mother") appeals from a judgment of the Summit County Common Pleas Court, Domestic Relations Division. This Court affirms in part and reverses in part.


         {¶2} Mother and Eduard Loewen ("Father") are the parents of a minor child ("Son"), who was born September 9, 2004. Mother and Father were never married to each other. Father was a German citizen at the time of Son's birth. This matter has a long procedural history.

         {¶3} In 2005, Father filed an action seeking to establish his parental rights and responsibilities. According to Father, an anonymous call resulted in him being removed from the United States during the pendency of that action. Consequently, he voluntarily dismissed the action.

         {¶4} In 2008, Father returned to the United States as a permanent resident. He then filed the action that is the subject of this appeal, again seeking to establish his parental rights and responsibilities. Ultimately, Father became a United States citizen and established a residence in Florida.

         {¶5} A two day hearing was held in 2009, which resulted in Father being designated the residential parent and legal custodian of Son. Mother appealed and this Court reversed and remanded the matter for a new hearing due to "the trial court's unfair allocation of time between the parties at the custody hearing, which deprived Mother of an opportunity to provide her own direct testimony or to cross-examine Father." Loewen v. Newsome, 9th Dist. Summit Nos. 25559 and 25579, 2012-Ohio-566, ¶ 22.

         {¶6} On remand, the trial court issued an interim order providing that, pending further hearing, Father would be the residential parent and legal custodian of Son. The court further appointed a guardian ad litem and ordered the parties to split the associated costs. In September 2012, the trial court denied Mother's oral motion to replace the guardian and to have her psychological evaluation done by a different psychologist than previously ordered. As of early March 2013, the parties had not paid the guardian's travel expenses or scheduled times for the guardian to meet with each parent and Son. The court then informed the parties that it would release the guardian if she was unable to complete her report in time for the custody hearing, which was scheduled for March 25, 2013. The court subsequently released the guardian, proceeded with the custody hearing, and designated Father the residential parent and legal custodian of Son.

         {¶7} Mother appealed, and this Court affirmed in part and reversed in part. Loewen v. Newsome, 9th Dist. Summit No. 26960, 2014-Ohio-5786, ¶ 1. This Court found that the trial court had abused its discretion in releasing the guardian ad litem. Id. at ¶ 31. This Court reasoned that, because Mother and Father are unable to communicate effectively, they needed more specific direction from the trial court. Id. at ¶ 30. In particular, the trial court

never ordered the parties to deposit any specific sum for the guardian's travel expenses, never gave the parties a deadline by which the evaluations had to be completed, and never gave the parties notice of what, if any, consequences they might face if they failed to pay either their portions of the expenses or schedule their evaluations in a timely manner.

Id. Consequently, this matter was again remanded to the trial court. Id. at ¶ 33.

         {¶8} On remand, the court appointed a new guardian ad litem ("GAL"). By order dated May 6, 2015, the court specified when the GAL would travel to Florida and when Son would travel to Ohio. The order further specified, "All interviews with [Son] in Summit County shall occur at the Common Ground Center in Tallmadge, Ohio." In addition, it set deadlines for the parties to pay the GAL's fees and travel costs, and a deadline for the GAL's report. Finally, the order stated, "The prior orders of this [c]ourt with respect to [Mother] having a psychological evaluation by Robin Tener, Ph.D., remain in full force and effect."

         {¶9} The final hearing in this matter was held in October 2015. Although it was initially scheduled for two days, the trial court allowed the parties an additional day to fully present their witnesses and evidence. The court entered a judgment entry on January 7, 2016 designating Father the residential parent and legal custodian of Son, ordering Mother to pay $50 per month in child support, and granting Father the tax dependency exemption for Son.

         {¶10} Mother timely appealed. On appeal, Mother filed numerous motions, including multiple motions to extend the time for filing the record and her appellate brief. Father's counsel also requested additional time to respond to Mother's motions and to file his brief. Mother raises three assignments of error.




         {¶11} In her first assignment of error, Mother argues that the trial court erred in finding that she was not credible and in awarding custody of Son to Father.[1] This Court disagrees.

         {¶12} As an initial matter, this Court notes that, within her argument, Mother purports to challenge two provisions in the trial court's order. She quotes the trial court's determination that "Father shall be the residential parent and legal custodian of [Son]." She also quotes the trial court's determination that

Based on Mother's refusal to obtain a psychological evaluation and her unusual behavior throughout this case, parenting time with [Son] would not be in [Son's] best interest. R.C. [] 3109.051(A). Mother shall have telephone contact with [Son] every Sunday at 7:00 p.m. Father shall place the call to Mother. [Son] shall decide the length of the call.

         She argues that the trial court abused its discretion when it "reached the EXTREME conclusion to grant full residential custody to [Father] and deny any possession time with [Mother]." (Emphasis sic.)

         {¶13} Mother's captioned assignment of error pertains only to custody, not parenting time. This Court has repeatedly stated that "[a]n appellant's captioned assignment of error 'provides this Court with a roadmap on appeal and directs this Court's analysis.'" State v. Pleban, 9th Dist. Lorain No. 10CA009789, 2011-Ohio-3254, ¶ 41, quoting State v. Marzolf, 9th Dist. Summit No. 24459, 2009-Ohio-3001, ¶ 16. In addition, an appellant is required to support her arguments with citations to legal authority. App.R. 16(A)(7). The allocation of parental rights and responsibilities, i.e. custody, is governed by R.C. 3109.04; parenting time or visitation is governed by R.C. 3109.051. Mother's only citation to R.C. 3109.051 is her quote of the trial court's decision. Mother does not identify the factors contained in R.C. 3109.051, nor does she cite any legal authority applying that statute. This Court will not create an argument on her behalf. See Cardone v. Cardone, 9th Dist. Summit Nos. 18349, 18673, 1998 Ohio App. LEXIS 2028, *22 (May 6, 1998).

         {¶14} Turning to Mother's argument regarding custody, "the discretion which a trial court enjoys in custody matters should be accorded the utmost respect." Miller v. Miller, 37 Ohio St.3d 71, 74 (1988). A trial court's custody decision will not be overturned unless it abuses that discretion. Stahl v. Stahl, 9th Dist. Summit No. 27876, 2017-Ohio-4170, ¶ 4. An abuse of discretion indicates that the trial court acted in a manner that was unreasonable, arbitrary, or unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219 (1983). This Court may not simply substitute its judgment for that of the trial court. Pons v. Ohio State Med. Bd., 66 Ohio St.3d 619, 621 (1993).

         {¶15} When, as here, a parent also challenges the trial court's factual findings, this Court reviews those findings under a manifest weight of the evidence standard. See Myers v. Myers, 189 Ohio App.3d 723, 2010-Ohio-3852, ¶ 17 (9th Dist.). A manifest weight challenge addresses whether the greater amount of credible evidence supports one side over the other. State v. Thompkins, 78 Ohio St.3d 380, 387 (1997). When reviewing a manifest weight challenge,

an appellate court must review the entire record, weigh the evidence and all reasonable inferences, consider the credibility of witnesses and determine whether, in resolving conflicts in the evidence, the trier of fact clearly lost its way and created such a manifest miscarriage of justice that the [judgment] must be reversed and a new [hearing] ordered.

State v. Otten, 33 Ohio App.3d 339, 340 (9th Dist.1986). When conducting this review, an appellate court "must always be mindful of the presumption in favor of the finder of fact." Eastley v. Volkman, 132 Ohio St.3d 328, 2012-Ohio-2179, ¶ 21.

         {¶16} When allocating parental rights and responsibilities, a trial court must consider the best interest of the child. R.C. 3109.04(B)(1). "[T]he best interest standard must be applied in initial actions to allocate parental rights in cases involving children of unmarried parents as well as in the context of divorce, dissolution, or annulment." Anthony v. Wolfram, 9th Dist. Lorain No. 98CA007129, 1999 Ohio App. LEXIS 4520, *5 (Sept. 29, 1999). The change in circumstances standard of R.C. 3109.04(E)(1)(a) is not applied simply because a child has resided with one parent; rather, there must be an actual prior decree awarding custody to that parent. Id. R.C. 3109.04(F)(1) contains the following non-exhaustive list of best-interest factors a court must consider:

(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 ...

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