[Cite as Brumfield v. Brumfield, 2018-Ohio-901.]




                      IN THE COURT OF APPEALS OF OHIO
                          THIRD APPELLATE DISTRICT
                              MARION COUNTY




STEVEN BRUMFIELD,

        PLAINTIFF-APPELLEE,                                 CASE NO. 9-17-35

        v.

MANDI BRUMFIELD,                                            OPINION

        DEFENDANT-APPELLANT.




                 Appeal from Marion County Common Pleas Court
                                  Family Division
                           Trial Court No. 2014 DR 0308

                                     Judgment Affirmed

                           Date of Decision:       March 12, 2018




APPEARANCES:

        Robert C. Nemo for Appellant
Case No. 9-17-35


SHAW, J.

       {¶1} Defendant-appellant, Mandi Brumfield (“Mandi”), brings this appeal

from the August 10, 2017, judgment of the Marion County Common Pleas Court,

Family Division, altering the parties’ custody arrangement by designating father-

appellee, Steven Brumfield (“Steven”), residential parent of the parties’ three

children for school purposes, though Mandi remained as residential parent in all

other respects. On appeal, Mandi argues that the trial court erred by failing to find

a change in circumstances before altering the parenting arrangement, by failing to

conduct an in camera interview with the parties’ oldest child even though it was

requested by Mandi, by finding Mandi in contempt with no motion pending, by

lifting the temporary order that Steven’s parenting time be supervised, and by

ordering Justin Carley, Mandi’s boyfriend, to have no contact with the children.

                      Relevant Facts and Procedural History

       {¶2} Steven and Mandi were married on May 21, 2005. They had two

children together: D.B., born in September of 2006 and C.B. born in December of

2008. Mandi also had one biological daughter that was born outside the marriage

in October of 2003. That daughter, M.B., was adopted by Steven. Thus altogether

the parties had three children.

       {¶3} On December 16, 2014, Steven filed for divorce. On December 31,

2014, Mandi filed an answer and counterclaim also seeking a divorce. Although


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there was fairly extensive litigation related to the divorce, the parties ultimately

settled all of their disputed issues resulting in a final decree of divorce and a shared

parenting plan, which was filed August 26, 2015.

        {¶4} Shortly after the final decree and shared parenting plan was filed,

Steven filed a “Motion for Reallocation of Parental Rights and Responsibilities,”

requesting that he be named residential parent and legal custodian of the parties’

three children. (Doc. No. 158). A full hearing was held on the motion wherein

fourteen witnesses provided testimony, including Steven and Mandi.1

        {¶5} At the hearing both parties indicated that they wanted the shared

parenting plan terminated and both parties desired to be named residential parent of

the three children. In sum, the testimony indicated that since the final decree had

been filed, there had been a complete breakdown of communication between the

parties. Essentially the parties were not speaking to each other at all. Additionally,

according to testimony provided, the parties’ oldest child, M.B., had not been sent

on visitation with Steven since an incident in early September of 2015 wherein

Steven purportedly “jerked” M.B. out of her dance class. At the conclusion of the

hearing, the matter was submitted to the trial court for a decision.

        {¶6} On April 4, 2016, the trial court issued its judgment on the motion to

reallocate parental rights and responsibilities. After stating that it had considered


1
 Our prior opinion summarized the testimony provided at that hearing. See Brumfield v. Brumfield, 3d Dist.
Marion No. 9-16-26, 2016-Ohio-8395.

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the evidence presented and the credibility of the witnesses who testified, the trial

court determined that that the parties were “unable to cooperate and communicate

with each other in order for them to participate in a shared parenting relationship.”

(Doc. No. 179). Further, the trial court stated that the parties had “no regard for

how their behaviors are effecting the children,” and that their “behavior * * * has

been totally inappropriate and contrary to the best interest of their minor children.”

(Id.).

           {¶7} Ultimately the trial court terminated the shared parenting plan, stating

that it was in the best interests of the children. The trial court then named Mandi

the residential parent for the children, including for school placement purposes, and

gave Steven parenting time according to the local rule, with some modifications.2

The trial court also placed a notable restriction on Mandi’s boyfriend, Justin Carley,

restricting him from being present when the children were in Mandi’s care due to a

“toxic” atmosphere that had been created as a result of his involvement with the

parties. In addition, the trial court restricted the parties’ children from using social

media due to some issues that had arisen because of it, some of which were with

regard to Justin Carley.




2
    The trial court also found both parties in contempt of the divorce decree for various reasons.

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           {¶8} Steven appealed the trial court’s decision to designate Mandi as

residential parent of the parties’ children to this Court and we affirmed in Brumfield

v. Brumfield, 3d Dist. Marion No. 9-16-26, 2016-Ohio-8395.

           {¶9} While his appeal was pending in this Court, Steven filed multiple

“Motion[s] to Show Cause,” seeking to have Mandi found in contempt for violating

the trial court’s entry by continuing to have the parties’ children in the presence of

Justin Carley, and by permitting the children, specifically M.B., to use social media.

           {¶10} On July 26, 2016, Steven filed a “Motion for Reallocation of Parental

Rights and Responsibilities” due to, what he termed, Mandi’s “continued and willful

disregard” of the trial court’s orders, particularly those related to Justin Carley.

(Doc. No. 212).

           {¶11} On July 27, 2016, Mandi filed a “Motion for Contempt” against

Steven, arguing that he had failed to, inter alia, pay his court-ordered spousal

support.3

           {¶12} On October 24, 2016, the trial court appointed a guardian ad litem

(“GAL”) for the children.

           {¶13} On November 22, 2016, Mandi filed a “Motion Requesting Removal

of Restriction Regarding Justin Carley.” (Doc. 226).




3
    This motion was later amended.

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         {¶14} On   December     1,   2016,    the   GAL    filed   a   “Motion   for

Psychological/Custody Evaluation” of both parties. That motion was promptly

granted.

         {¶15} On December 23, 2016, the trial court filed an “Agreed Entry

Resolving Pending Contempt Motions.” In the entry the parties indicated that they

had resolved the pending contempt issues through the date of November 16, 2016.

As part of this agreement, Mandi admitted that she permitted contact between Justin

Carley and the parties’ children in contravention of the trial court’s orders. Steven

also admitted that he failed to fulfill his financial obligations ordered by the trial

court.

         {¶16} On December 27, 2016, Mandi filed a “Notice of Intent to Relocate”

with the children to Edison, Ohio, just outside of Marion, due to the martial

residence being sold. (Doc. No. 237).

         {¶17} On March 24, 2017, Mandi filed another motion to eliminate the

restriction regarding contact between the parties’ children and Justin Carley, who

was termed in the motion as Mandi’s “fiancé.” (Doc. No. 241).

         {¶18} On May 16, 2017, the psychological evaluation of Mandi and Steven

that had been requested by the GAL was filed. It was performed by psychologist

David Lowenstein, Ph.D. After reviewing his interviews with the parties and others,




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and detailing various tests he administered, Dr. Lowenstein stated as follows in his

report.

          [I]t is clear that neither party can adequately parent their
          children alone. Mandi has used [Justin] to ‘fight’ with Steve
          about parenting matters and as a result even Justin has become
          part of this custody battle even though he has no biological
          relationship with the children. Mandi allowed her daughter to
          change her name on Facebook to her boyfriend’s name and did
          not reprimand her for doing so. Mandi also seems to have allowed
          things to happen that she was told to not allow such as continued
          contact between Justin and the boys. * * *

                Steve is clearly angry at Mandi and displays this anger
          whenever he seems to have any visual or verbal contact with her.
          Emails have been received where he is angry at what she is doing,
          how she is behaving and what she is preventing. This anger seems
          to justify his actions and then he seems to regret that it takes a toll
          on him and his relationship with the children. He also has done
          some things that have alienated his relationship with [M.B.],
          unfortunately. * * * I hope that * * * some semblance of a
          relationship can still be developed, but Steve needs to trust the
          expertise of the professionals that [M.B.] is working with and wait
          until they feel it is appropriate for him to be involved. Waiting
          for stability is not a strength that Steve has presently.

          ***

          The [trial court] has tried to make some things stable by limiting
          the contact that the parents have with each other and allowing for
          only limited contact between Justin and the children.
          Unfortunately, even with these limitations things have not
          stabilized and it seems clear that this may never stabilize no
          matter what the costs are. As a result, this examiner recommends
          that the present arrangement for residential status remain in
          effect and that both parents share the parenting of the children in
          all decision-making.



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       {¶19} Dr. Lowenstein then recommended that a parenting coach be involved

and that the parties attend counseling. Dr. Lowenstein indicated that Steven should

seek out someone who dealt with anger issues as Dr. Lowenstein felt that Steven’s

anger was interfering with his parenting and co-parenting. Dr. Lowenstein also

recommended that Justin “step back and remove himself from this parenting

arrangement” because he had clearly “overstepped his boundaries.” Dr. Lowenstein

stated that if Mandi continued to “allow this to occur then at that time there is no

other option but for custody to change to Steve[.]”

       {¶20} In May of 2017, allegations were made that Steven had struck one of

the children in the throat while pressing the child about lying, specifically about

having contact with Justin Carley. After the allegation, on May 24, 2017, the trial

court filed a temporary order requiring Steven’s parenting time to be supervised by

his mother, Mary, who lived in the same residence. (Doc. No. 249). Though Steven

seemingly admitted to slapping his son on the arm, he denied striking his son in the

throat. Testimony in the record indicates that an investigation later determined that

the allegations against Steven were unsubstantiated; however, Steven’s parenting

time continued to be supervised for the remainder of the proceedings.

       {¶21} On May 30, 2017, Mandi filed another motion to relocate, indicating

that she would be moving to Franklin County for more lucrative employment

opportunities. (Doc. No. 250).


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       {¶22} On June 12, 2017, Steven filed an “Ex Parte Motion for Restraining

Order” in an attempt to prevent Mandi from moving the children out of the school

district where they had been attending school in Marion. (Doc. No. 255).

       {¶23} On June 16, 2017, Mandi filed a notice of intent to relocate specifically

to Hilliard, which would alter the children’s school. (Doc. No. 256).

       {¶24} On June 22, 2017, Steven filed an objection to Mandi’s attempted

relocation as the trial court was not having a hearing on the matter until the

following month and Mandi indicated she would move in late June, before the trial

court’s hearing. Prior to any ruling being made, Mandi moved to Hilliard with the

children.

       {¶25} On June 26, 2017, Steven filed a proposed shared parenting plan.

       {¶26} On July 21, 2017, the GAL filed her report. The GAL’s report detailed

her extensive involvement in this case including a number of interviews with the

parties, their children, and various other individuals. The GAL seemed particularly

concerned with the allegation of Steven striking one of the children, as she found

the child credible in his story.

       {¶27} After detailing both parents’ failings, the GAL recommended that

Mandi should remain residential parent of the children, that the children should

attend school in Hilliard, where Mandi now lived, and that Steven’s parenting time




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should continue to be supervised by his mother until he completed individual

counseling.

       {¶28} On July 26-27, 2017, a final hearing was held on pending matters.

Steven called a number of witnesses on his behalf, beginning with a psychologist

he had seen after he was instructed by Dr. Lowenstein to get an evaluation for anger-

related issues. Dr. Charles Gerlach testified that he evaluated Steven and he found

Steven to be a psychologically healthy person. Dr. Gerlach also testified that Steven

was not a danger to the children, and that he did not exhibit dangerous anger; rather,

merely anger typical of someone in a custody battle.

       {¶29} Dr. Gerlach’s report, which was introduced as an exhibit at the final

hearing, stated that he found no evidence of an anger problem with Steven. Dr.

Gerlach indicated that he had reviewed Dr. Lowenstein’s report several times noting

“the various and often contradictory evaluations of Steven’s personality

characteristics[.]” (Plaintiff’s Ex. 36). Dr. Gerlach found it puzzling that Dr.

Lowenstein concluded that each parent was fit for parenting yet in need of

assistance. Dr. Gerlach also testified that the GAL became upset with him during a

phone call when Dr. Gerlach disagreed with her regarding Steven. Dr. Gerlach did

acknowledge that he had only evaluated Steven and that he had not interviewed

other individuals as Dr. Lowenstein had because it was not what he was asked to

do.


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           {¶30} Steven also called Vicky Johnson who had been the GAL for Justin

Carley’s custody case. Johnson testified that after the trial court’s last order in this

case it was her understanding that Justin still had contact with at least M.B. There

was also a reference to Johnson’s concerns regarding a purported incident of Justin

Carley and M.B. sleeping in the same bed.4

           {¶31} Steven called his mother, Mary Brumfield, to testify, who had been

supervising visits between Steven and the two children who were coming for

visitation. Mary testified that Steven had lived with her since his divorce with

Mandi. Mary testified that she did not want to keep supervising visitation between

Steven and the children and that she felt it was unnecessary. Mary also testified that

she had problems getting the children for visitation since Mandi moved to Hilliard.

Mary noted that in her own observations she felt that the children often exaggerated

their stories.

           {¶32} Steven also testified on his own behalf. As to the May incident of

alleged physical abuse of one of the children, Steven testified that he smacked one

child in the arm after the child was lying and withholding information. Steven

indicated that the child’s own hand might have hit his throat but Steven testified he

did not strike the child in his throat.




4
    Although this was summarily raised as a red flag there was essentially no other testimony about this issue.

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        {¶33} Steven also detailed an incident wherein the parties’ oldest child was

investigated and reprimanded for sending inappropriate pictures of herself to other

students via social media. Steven testified that he did not learn of the incident

through Mandi and that Mandi was not forthcoming with what was happening.

        {¶34} In addition, Steven testified regarding various other difficulties he had

with Mandi since the trial court’s prior judgment.5 He also indicated that he did not

want the children’s school changed to a school in Hilliard where Mandi lived, and

that if the children changed their school his relationship with them would be further

strained because of the distance. Steven also indicated he would be unable to coach

the children’s sports teams.

        {¶35} In her case-in-chief, Mandi called Deborah Merold, who had

counseled M.B. Merold testified that M.B. had an adjustment disorder. Merold

testified that she was not made aware by Mandi or M.B. that M.B. had gotten into

trouble for sending nude pictures of herself to another boy on social media, and that

it was an issue that she definitely would have addressed with M.B. had she known.

Merold’s testimony indicated that M.B. was not ready to resume visitation with

Steven.




5
  For example, Steven testified to an incident wherein one of the children was having trouble with his hands
chafing. Steven purchased an ointment and sent it home with the child for his hands but Mandi threw it out
the car window. Mary Brumfield also testified regarding this incident, indicating that Mandi threw the
medicine in the yard and drove away.

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        {¶36} Mandi also called Jessica Rhodes, who was Steven’s ex-girlfriend.

Jessica testified that she had known Mandi for a long time and that Steven would

say negative things about Mandi to her while they were together, including

threatening to kill Mandi and Justin.

        {¶37} Mandi testified on her own behalf, indicating that the children had

been in contact with Justin despite the order, and that Justin had actually signed as

M.B.’s father so that she could get her ears pierced. Mandi testified that she moved

to Hilliard for a better job opportunity, and that she knew Steven was opposed but

she moved anyway. She testified that she had not told the children about changing

schools.    Mandi testified that she thought Steven’s visitation should remain

supervised, and that she thought the restriction regarding the children being around

Justin should be lifted as Steven had no restrictions on who he dated. Mandi also

testified regarding various issues in dealing with Steven during the pendency of this

case.

        {¶38} The GAL called Mandi’s mother to testify and the GAL also testified

herself. The GAL testified that she was convinced that Mandi was not being totally

truthful with her, and that she did not think Justin was a good influence. She testified

that Justin’s presence had led to alienation of the children. The GAL testified that

Steven was still a long way from any type of reunion with M.B. to resume visitation

with her.


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       {¶39} The GAL noted that although the allegation against Steven was found

to be unsubstantiated, it still greatly concerned her. The GAL also stated that Mandi

should have waited before she moved. Essentially though, the GAL reiterated her

position in her report, stating that she felt the children should stay with Mandi, that

they should be enrolled in Hilliard schools, and that Steven’s parenting time should

continue to be supervised.      Following the GAL’s testimony, the matter was

submitted to the trial court.

       {¶40} On August 2, 2017, after the final hearing had concluded, Mandi filed

a “Motion for In Camera Interview” of M.B. (Doc. No. 271).

       {¶41} On August 8, 2017, the trial court denied Mandi’s motion for an in

camera interview, finding that the final hearing was held and concluded on July 27,

2017, thus all the evidence had been taken and her motion was untimely.

       {¶42} On August 10, 2017, the trial court filed its judgment entry on the

matter. The trial court’s entry began by noting that since its original judgment in

April of 2016 the relationship between the parties had continued to deteriorate to

the detriment of the children. The trial court went so far as to say that it had

“considered removing all three children from both parents, based upon the negative

environment created by the harmful and inappropriate behaviors of each parent

while the children are in their respective care.” (Doc. No. 274). The trial court

indicated that it “refrained from their removal only because of the additional trauma


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this would cause, beyond that which they have already experienced.” (Id.). The

trial court also stated that the parties “continue to place their anger and animosity

for each other, ahead of the best interests of their children, since their [divorce]. It

is clear these parents are unable to cooperate and communicate with each other, in

any fashion, which would facilitate a shared parenting relationship, without

counseling, parenting coordination and strict Orders requiring compliance.” (Id.)

       {¶43} The trial court then denied Steven’s proposed shared parenting plan,

ordered the parties and the minor children to attend counseling, and adjusted child

support based on the parties’ current income. In addition, the trial court found that

it was in the best interests of the children to modify the prior parenting order to the

extent that Steven should be designated residential parent for school placement

purposes of the parties’ children, and that the children should continue to attend

River Valley Schools in Marion, where they had been attending school. The trial

court terminated the temporary order requiring supervised visitation for Steven.

Mandi remained residential parent of the children in all other respects.

       {¶44} The trial court noted that it was aware of Mandi’s relocation to

Hilliard, but emphasized that it was done prior to the court’s consideration of the

issue. The trial court ordered that Mandi continue to refrain from having contact

with Justin Carley while the children were in her care, and that Justin was not to be

present at the children’s home, social, or school events. Finally, the trial court also


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found Mandi in contempt of its April 4, 2016, entry for continuing to allow contact

between Justin Carley and the children.

         {¶45} It is from this judgment that Mandi appeals, asserting the following

assignments of error for our review.6

                             Assignment of Error No. 1
         The trial court erred by modifying its prior order and designating
         appellee as the residential parent for school purposes.

                             Assignment of Error No. 2
         The trial court erred by denying appellant’s motion to conduct an
         in camera interview of the parties’ thirteen-year-old daughter.

                             Assignment of Error No. 3
         The trial court erred in finding appellant in contempt for allowing
         the children to have contact with Justin Carley when there was no
         motion pending.

                             Assignment of Error No. 4
         The trial court erred in ordering that appellant remain prohibited
         from contact with Justin Carley at all times the children are in
         her care and ordering Justin Carley not be in appellant’s home or
         at social, school events or extra-curricular activities when the
         children are present.

                           Assignment of Error No. 5
         The trial court erred in lifting its restriction that appellee’s
         companionship time be supervised.

                                         Standard of Review

         {¶46} “Custody issues are some of the most difficult decisions a trial judge

must make.” Vent v. Vent, 3d Dist. Wyandot No. 16-12-05, 2012-Ohio-5946, ¶ 16.


6
 On September 6, 2017, Mandi filed a motion to stay the trial court’s order pending appeal, but it was denied
by the trial court.

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Therefore, those decisions rest within the sound discretion of the trial court. Davis

v. Flickinger, 77 Ohio St.3d 415, 418, 1997-Ohio-260; Miller v. Miller, 37 Ohio

St.3d 71, 74 (1988). A trial court’s decision regarding custody matters is subject to

reversal only upon a showing of an abuse of discretion. Flickinger at syllabus. A

trial court will be found to have abused its discretion where its decision is contrary

to law, unreasonable, or grossly unsound. Blakemore v. Blakemore, 5 Ohio St.3d

217, 219, (1983); Bruce v. Bruce, 3d Dist. Marion No. 9-10-57, 2012-Ohio-45, ¶

13.

       {¶47} Trial courts are afforded such deference in these matters because “the

trial judge is in the best position to view the demeanor, attitude, and credibility of

each witness and to weigh the evidence and testimony.” Berry v. Berry, 3d Dist.

Hancock No. 5-14-06, 2014-Ohio-4874, ¶ 20, citing Flickinger, 77 Ohio St.3d at

418. This is especially true in a child custody case, since there may be much that is

evident in the parties’ demeanor and attitude that does not translate well to the

record. Flickinger. at 419.

                              First Assignment of Error

       {¶48} In Mandi’s first assignment of error, she argues that the trial court

erred by modifying its prior order and designating Steven as residential parent for

school purposes of the parties’ children. Specifically, Mandi argues that the trial

court did not explicitly find a change in circumstances pursuant to R.C.


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3109.04(E)(1)(a), and that it did not adequately address each of the best interest

factors in this case.

                              Change in Circumstances

       {¶49} Under R.C. 3109.04(E)(1)(a), before a trial court can modify a prior

decree allocating parental rights and responsibilities it must find that a change in

circumstances occurred, and then it must find that the modification of the order is

necessary to serve the best interest of the children. While a trial court does not have

to use the explicit language “change in circumstances” it must be clear from the

record that the trial court applied the appropriate factors. See Nigro v. Nigro, 9th

Dist. Lorain No. 04CA008461, 2004-Ohio-6270, ¶ 6. A change “must be a change

of substance, not a slight or inconsequential change;” however, the statute does not

require a “substantial” change. Davis v. Flickinger, 77 Ohio St.3d 415, 418, 1997-

Ohio-260.

       {¶50} In its entry in this case, the trial court did not use the explicit words

“change in circumstances.” However, the trial court noted a number of things

indicating that a change had occurred since its prior decree. First, the trial court

found that “the relationship between these parties has continued to deteriorate to the

determinant of the minor children.” (Doc. No. 274). Second, Mandi moved to

Hilliard, prior to the court’s consideration of the issue, which the trial court noted

in its entry. The move, according to testimony and the GAL’s report, would require


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the children to attend a different school. Third, and finally, Mandi had continuously

allowed contact between Justin Carley and the children despite the trial court’s order

to the contrary. Even according to Dr. Lowenstein’s evaluation, if Mandi continued

to permit contact between Justin Carley and the children the trial court would have

no choice but to award custody to Steven. Here, the trial court did not go so far as

that, but it did alter the residential parent for school purposes to Steven.

       {¶51} While it certainly would be a better practice for the trial court to

explicitly state what it found to be a change in circumstances, we cannot find that

the trial court erred here given the statements that were made in its entry and given

the evidence contained in the record.

                                    Best Interests

       {¶52} In its entry on the matter, the trial court determined that it was “in the

best interests of the minor children to modify” its prior order by designating Steven

as residential parent of the children for school purposes. On appeal, Mandi argues

that the trial court’s best interest finding was an abuse of discretion because it was

contrary to the GAL’s recommendation and because the trial court failed to

adequately address the best interest factors.

       {¶53} At the outset we note that the trial court did agree with the GAL in

some respects. The GAL recommended that Mandi remain residential parent and

the trial court agreed. The trial court did, however, disagree with the GAL’s


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recommendation that Mandi should remain residential parent for school purposes

and the GAL’s recommendation that the children should attend a new school in

Hilliard.

       {¶54} Notably, a trial court is not required to follow the recommendation of

a GAL. Koller v. Koller, 2d Dist. Montgomery No. 22328, 2008-Ohio-758, ¶ 24.

Moreover, there is testimony to support the trial court’s finding, given that Steven

presented some evidence that the Hilliard schools may have graded more poorly in

certain areas than the children’s current school and that the move to a new school

would only further strain the children’s relationship with Steven. While there was

contrary testimony as well, we certainly could not find that the trial court’s

determination was arbitrary or capricious such that it amounted to an abuse of

discretion.

       {¶55} As to Mandi’s argument that the trial court failed to adequately address

the best interest factors of R.C. 3109.04(F), the trial court did explicitly make a best

interest finding and it was supported by the record. Therefore, Mandi’s first

assignment of error is overruled.

                             Second Assignment of Error

       {¶56} In Mandi’s second assignment of error, she argues that the trial court

erred by denying her motion for an in camera interview of M.B., which was made

after the final hearing concluded.          Specifically, Mandi argues that R.C.


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3109.04(B)(1) requires a trial court to conduct an in camera interview if one is

requested.

         {¶57} Revised Code 3109.04(B)(1), which is at issue here, reads in pertinent

part, “upon the request of either party [a trial court] * * * shall interview in chambers

any or all of the involved children regarding their wishes and concerns with respect

to the allocation.” Mandi contends that because the statute says that a trial court

“shall” interview a child if an interview is requested, and because the statute has no

timing component, the trial court erred in denying her motion even though it was

made after the evidence had been presented.

         {¶58} In support of her argument, Mandi cites Scassa v. Scassa, 7th Dist.

Carroll No. 688, 1998 WL 404209,7 wherein the Seventh District reversed a trial

court that declined to grant a motion for an in camera interview of a child after the

interview had been repeatedly requested by a party.                                   Scassa is readily

distinguishable from this case as it involved a situation where requests for the

interview were made multiple times and before the final hearing was conducted.

Here the request was not made at all until after the final hearing concluded.

         {¶59} Here, Mandi had ample time during the pendency of this case to raise

the issue or request an in camera interview of M.B. We find that this case is actually



7
  In her brief Mandi actually incorrectly cites a later Scassa case, Scassa v. Scassa, 7th Dist. Carroll No. 03-
CA-788, 2004-Ohio-1536. We will presume she meant to cite the older Scassa case listed in the text because
it deals with the relevant issue.

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more similar to Schmitt v. Ward, 9th Dist. Summit No. 27805, 2016-Ohio-5693,

wherein it was determined that even when a parent had filed a motion for an in

camera interview under 3109.04(B)(1), the parent effectively waived the issue

where the parent did not renew the request at any point during the final hearing. See

also Miracle v. Allen, 9th Dist. Lorain No. 05CA008843, 2006-Ohio-5063, ¶ 6. Had

Mandi made a timely filing in this case before the close of evidence her assignment

of error might be more compelling. Moreover, there can be little impact in the trial

court’s failure to interview M.B. in this case as M.B.’s interests were already

represented by the GAL. Thus for all of these reasons Mandi’s second assignment

of error is overruled.

                             Third Assignment of Error

       {¶60} In Mandi’s third assignment of error, she argues that the trial court

erred by “finding her in contempt” in its final judgment entry. Specifically, Mandi

argues that the following provision of the trial court’s entry was erroneous.

       9. This Court finds Defendant/Mother has failed to prohibit
       contact by Justin Carley with the minor children as Ordered in
       the April 4, 2016, Judgment Entry, and she is found in Contempt
       of same. Defendant/Mother shall be provided an opportunity to
       purge this Contempt finding by no further contact with the
       children by Justin Carley. Failure to comply will result in
       consideration by this Court, upon proper Motion by
       Plaintiff/Father,    for   appropriate      sanctions    against
       Defendant/Mother for non-compliance with this Finding of
       Contempt.



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Mandi contends that the trial court erred in this finding because there was no

contempt motion pending against her as it was resolved by a prior judgment entry.

       {¶61} Contrary to Mandi’s arguments, a continued reading of the trial court’s

entry also shows that the trial court found Steven in contempt for failing to provide

support as previously ordered. Similar to Mandi’s contempt regarding Justin

Carley, these issues were both already settled through the agreed judgment entry

filed months prior. Thus the trial court’s statements appear to be nothing more than

reiterations of what already occurred.

       {¶62} Nevertheless, even if the trial court’s statement regarding Mandi was

a “new” contempt finding, there is no sanction provided and the finding actually

requires Steven to file another motion to be enforced. Thus we fail to see what

remedy could even be provided here.             For all these reasons, Mandi’s third

assignment of error is overruled.

                            Fourth Assignment of Error

       {¶63} In Mandi’s fourth assignment of error, she argues that the trial court

erred by ordering that she remain prohibited from contact with Justin Carley at all

times the children are in her care and in ordering Justin Carley not to be present at

social or school events when the children were present.

       {¶64} Notably, even the GAL in this case recommended that Mandi refrain

from having Justin Carley around the children. In a prior assignment of error Mandi


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argued for the trial court to use one of the recommendations of the GAL, and now

she argues against one of the GAL’s recommendations.

       {¶65} Here, however, the GAL’s recommendation was supported by the

history between the parties and Dr. Lowenstein’s report, which indicated that Justin

Carley needed to remove himself from the parenting issues between these parties

because he was causing alienation and animosity. Mandi may feel that the children

get along well with Justin but the fact remains that essentially everyone else

involved with these parties feels that he is “toxic” to any type of normal parenting

relationship between Mandi and Steven. The children feel the need to lie about

seeing Justin and Mandi continues to bring him around the children in repeated

violation of the court orders. Given the history of this case we cannot find that the

trial court abused its discretion with regard to its orders related to Justin Carley.

Therefore, Mandi’s fourth assignment of error is overruled.

                             Fifth Assignment of Error

       {¶66} In Mandi’s fifth assignment of error, she argues that the trial court

erred by lifting its restriction that Steven’s parenting time be supervised. In support

Mandi cites the testimony of Steven’s ex-girlfriend who indicated that Steven had

said he wanted to kill Mandi and Justin, and Dr. Lowenstein’s report that indicated

Steven’s anger issues interfered with his ability to parent and co-parent.




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       {¶67} Contrary to Mandi’s arguments, the trial court was presented with

testimony that Steven did not have an anger problem from Dr. Gerlach; rather,

Steven merely had anger indicative of someone going through a turbulent custody

battle. In addition, the trial court was presented with testimony that the incident that

led to Steven’s parenting time being supervised in the first place was found to be

“unsubstantiated.” The trial court also heard Steven directly testify about the

incident and was free to judge his credibility. Given the evidence presented in the

record, we cannot find that the trial court abused its discretion, therefore, Mandi’s

fifth assignment of error is overruled.

                                     Conclusion

       {¶68} For the foregoing reasons Mandi’s assignments of error are overruled

and the judgment of the Marion County Common Pleas Court, Family Division, is

affirmed.

                                                                  Judgment Affirmed

ZIMMERMAN and PRESTON, J.J., concur.

/jlr




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