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In re G.R.F.

Court of Appeals of Ohio, Twelfth District, Warren

August 19, 2019

IN RE: G.R.F., et al.

          APPEAL FROM BUTLER COUNTY COURT OF COMMON PLEAS JUVENILE DIVISION Case No. 12-S004359

          The Law Office of Joshua G. Burns, LLC, Joshua G. Burns, for appellee

          Alexander, Wagner & Kinman, Christopher M. Alexander, for appellant

          OPINION

          M. POWELL, J.

         {¶ 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 affirm.

         {¶ 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 residential parent.

         {¶ 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 July 2016.

         {¶ 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 additional hearing.

         {¶ 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 matter.

         {¶ 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 ...


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