Court of Appeals of Ohio, Twelfth District, Warren
FROM BUTLER COUNTY COURT OF COMMON PLEAS JUVENILE DIVISION
Case No. 12-S004359
Law Office of Joshua G. Burns, LLC, Joshua G. Burns, for
Alexander, Wagner & Kinman, Christopher M. Alexander, for
1} Appellant, R.F. ("Mother"), appeals
from the decision of the Warren County Court of Common Pleas,
Juvenile Division, designating appellee, J.F.
("Father"), the residential parent and sole
custodian of the parties' minor children, and finding
Mother in contempt. For the reasons outlined below, we
2} Mother and Father are the unmarried parents of
G.F., who was born in 2010, and M.F., who was born in 2012.
The parties began dating in high school and primarily lived
together in Father's parents' home from 2008 to 2012.
Shortly after M.F. was born, the parties separated, and
Mother moved into an apartment nearby. At the time of the
separation, the children remained with Mother while Father
assisted by giving Mother weekly cash payments. Shortly
thereafter, Father stopped making the weekly payments, and
Mother filed for child support in September 2012.
3} Six months after Mother moved out, Father began
visiting with the children. The parties agreed that due to
his work schedule, Father would have the children on the
weekends, however, there were times where the schedule could
fluctuate. As time continued, Mother began deviating from the
agreed upon schedule, and would occasionally leave the
children with Father during the weekdays and would oftentimes
not inform Father when she would return for the children.
Conversely, Mother would sometimes withhold Father's
parenting time if she was displeased with Father's
behavior or his choice in companions. Due to the irregular
nature of his parenting time, Father became increasingly
concerned with Mother's fitness as the children's
4} In May 2016, Father filed a complaint for custody
of the children. In his complaint, Father indicated he was in
a better position to care for the children and would be the
better parent in facilitating parenting time for Mother.
Mother was served with Father's complaint for custody in
June 2016. Thereafter, in July 2016, Mother accused Father of
injuring M.F., and sought a domestic violence civil
protection order ("DCVPO") against him. An ex parte
DCVPO was then issued, which ordered that Father not have any
contact with the children, but that Mother could allow
visitation with Father if it was supervised by his parents.
5} Stemming from Mother's July 2016 allegations,
Father was also charged with one count of domestic violence
and one count of endangering children, both misdemeanors of
the first degree. As a result, a no contact order was issued
which prohibited Father from initiating any contact with the
children until the termination of the pending criminal cases.
After a bench trial, Father was found not guilty of the
charges and the no contact order was terminated in 2017. At
that time, Father's parenting time did not resume because
the ex parte DCVPO remained in effect until July 2017.
6} In September 2017, after the protection order
lapsed, the juvenile court granted Father supervised
visitation with the children every Sunday. This was
Father's first parenting time with the children since
7} In November 2017, Mother, without notice to
Father or the juvenile court, moved with the children to
Arizona. On November 29, 2017, after Mother and the children
had already moved, Mother filed with the juvenile court a
notice of intent to relocate to Arizona. In response, Father
filed an emergency motion for temporary custody and requested
the return of the children to Ohio. Father also filed two
motions for contempt, asking the court to find Mother in
contempt of court for violating the September 2017 parenting
order and for violating the juvenile court's local rules
by failing to timely file a notice of intent to relocate.
8} A hearing on Father's motions took place over
three separate days. On August 14, 2018, the juvenile court
issued a decision and entry awarding Father custody of the
children. Specifically, when considering the best interest
factors set forth in R.C. 3109.04(F)(1)(a)-(j), the juvenile
court found that while both parents wanted custody of the
children, Mother as a residential parent continuously and
willfully denied Father's right to parenting time.
Accordingly, the juvenile court concluded it was in the best
interests of the children to designate Father their
residential parent, and for the children to return to Ohio.
The juvenile court further found Mother in contempt as
alleged in Father's contempt motions and noted that child
support and attorney fees would be calculated after an
9} On October 19, 2018, a hearing was held regarding
attorney fees, parenting time, and child support. The
juvenile court then issued a judgment entry establishing
Mother's parenting time with the children and her child
support obligation. The juvenile court also ordered Mother to
pay $1, 200 toward Father's attorney fees incurred in the
10} Mother now appeals, raising four assignments of
error for our review.
11} Assignment of Error No. 1:
12} THE TRIAL COURT ABUSED ITS DISCRETION IN
GRANTING [FATHER] SOLE CUSTODY OF THE MINOR CHILDREN FOR
REASONS THAT ARE AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE
13} Mother initially argues that the juvenile court
abused its discretion in designating Father the legal
custodian and residential parent, as its decision was against
the manifest weight of the evidence. Specifically, Mother
claims the juvenile court did not properly consider all of
the factors set forth in R.C. 3109.04(F)(1) but, instead,
relied exclusively on the fact that Mother continuously and
willfully denied Father's right to parenting time.
14} Before we consider the specific assignment of
error, we acknowledge "the power of the trial court to
exercise discretion is peculiarly important in proceedings
involving the custody and welfare of children."
Kenney v. Kenney, 12th Dist. Warren No.
CA2003-07-078, 2004-Ohio-3912, ¶ 6. "The discretion
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 has on the lives of
the parties concerned." Id; Davis v.
Flickinger, 77 Ohio St.3d 415, 418 (1997). Therefore, an
appellate court's standard of review in custody matters
is abuse of discretion. Miller v. Miller, 37 Ohio
St.3d 71, 74 (1988). An abuse of discretion is more than an
error of law or judgment; it implies the trial court acted
unreasonably, arbitrarily, or unconscionably. Blakemore
v. Blakemore, 5 Ohio St.3d 217, 219 (1983).
15} A manifest weight of the evidence challenge
concerns "'the inclination of the greater amount of
credible evidence, offered in a trial, to support one side of
the issue rather than the other.'" Eastley v.
Volkman,132 Ohio St.3d 328, 2012-Ohio-2179, ¶ 12,
quoting State v. Thompkins,78 Ohio St.3d 380, 387
(1997). In a manifest weight challenge a "reviewing
court weighs the evidence and all reasonable inferences,
considers the credibility of witnesses and determines
whether, in resolving conflicts in the evidence, the finder
of fact clearly lost its way and created such a manifest
miscarriage of justice that the judgment must be reversed and
a new trial ordered." Schneble v. Stark, 12th
Dist. Warren Nos. CA2011-06-063 and CA2011-06-064,
2012-Ohio-3130, ¶ 67. "[E]very reasonable
presumption must be made in favor of the judgment and the
finding of facts." Eastley ...