FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF
SUMMIT, OHIO CASE No. DR-2008-11-3540
KENNETH J. LEWIS, Attorney at Law, for Appellant.
A. WEISS and WILLIAM S. HALBERG, Attorneys at Law, for
DECISION AND JOURNAL ENTRY
S. CALLAHAN, Judge.
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.
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.
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.
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.
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.
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.
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
Id. Consequently, this matter was again remanded to
the trial court. Id. at ¶ 33.
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
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.
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.
OF ERROR NO. 1
TRIAL COURT'S DECISION GRANTING [FATHER] PERMANENT LEGAL
CUSTODY WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE[, ]
CONTRARY TO LAW, AND/OR AN ABUSE OF DISCRETION, AND WAS NOT
IN THE MINOR CHILD'S BEST INTEREST. THE TRIAL COURT ALSO
ERRED IN FINDING [MOTHER] NOT CREDIBLE.
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. This Court disagrees.
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
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.)
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,
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).
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.
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
(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
(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