[Cite as Bromberg v. Carter, 2016-Ohio-2966.]


                                       COURT OF APPEALS
                                    FAIRFIELD COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT

                                                        JUDGES:
JOSHUA BROMBERG                                 :       Hon. Sheila G. Farmer, P.J.
                                                :       Hon. W. Scott Gwin, J.
                         Plaintiff-Appellee     :       Hon. John W. Wise, J.
                                                :
-vs-                                            :
                                                :       Case No. 15-CA-61
ALLIE K. CARTER                                 :
                                                :
                    Defendant-Appellant         :       OPINION




CHARACTER OF PROCEEDING:                            Civil appeal from the Fairfield County Court
                                                    of Common Pleas, Domestic Relations
                                                    Division, Case No. 2015PA265

JUDGMENT:                                           Affirmed

DATE OF JUDGMENT ENTRY:                             May 12, 2016



APPEARANCES:

For Plaintiff-Appellee                              For Defendant-Appellant

JOSHUA BROMBERG PRO SE                              JASON DONNELL
15 Red Bud Land                                     118 S. Pearl Street
Lancaster, OH                                       Lancaster, OH 43130
Fairfield County, Case No. 15-CA-61                                                      2

Gwin, J.,

       {¶1}   Appellant appeals the November 24, 2015 judgment entry of the Fairfield

County Court of Common Pleas, Domestic Relations Division, granting temporary

custody of the minor child to appellee.

                                   Facts & Procedural History

       {¶2}   Appellee Joshua Bromberg is the biological father of B.B., born July 13,

2012. Appellant Allie Carter is the biological mother of B.B. Appellant and appellee were

never married. Appellant lives in Avilla, Indiana and appellee lives in Lancaster, Ohio. In

August or September of 2013, appellant left B.B. in the care of appellee. On August 22,

2015, while B.B. was at a visit appellee permitted with his maternal grandmother,

appellant removed B.B. from appellee’s custody. Appellant was able to obtain physical

custody because there was no court order in place regarding custody.

       {¶3}   On November 10, 2015, appellee filed a complaint for custody of B.B. and

included a motion for emergency custody of B.B. The trial court granted an ex parte order

of temporary custody to appellee and found irreparable harm would occur without the ex

parte order. The trial court also ordered appellant have no contact with B.B. until further

order of the court.

       {¶4}   The trial court held a full hearing on the emergency motion for custody on

November 23, 2015. Appellee testified B.B. has lived with him since September of 2013.

Appellee stated appellant signed custody of B.B. over to appellee; however, the signed

custody agreement was not entered into evidence at the hearing. Appellee testified

appellant has seen B.B. twice in two years. When appellant saw B.B. on Christmas of
Fairfield County, Case No. 15-CA-61                                                      3


2013, she was supposed to keep him all week-end, but after twelve hours called appellee

to come and get B.B. because he was screaming and crying.

       {¶5}    Appellee stated on August 22, 2015, appellant came from Indiana when

B.B. was at a week-end visitation with his maternal grandmother. Appellee permitted B.B.

to visit his maternal grandmother approximately once per month. Appellant called the

police and the police released the child to appellant, who immediately took him to Indiana.

Appellee testified appellant took B.B. away from the only friends, family, and home he

has known. Appellee had B.B. registered for the Early Head Start program. Appellee

believed B.B. was in immediate danger and irreparable harm would occur if temporary

custody was not granted to him.

       {¶6}    On cross-examination, appellee testified it was his understanding that

appellant has been diagnosed as bipolar and schizophrenic.          However, he has no

documentation of such diagnoses. Appellee was charged with menacing in 2006 and the

charge was reduced to disorderly conduct.         In 2013, appellee pled to attempted

aggravated menacing and testified appellant was breaking into his house to steal

furniture.    Appellee was placed on probation and subsequently complied with and

completed probation. Appellee has a driver’s license through the State of Indiana as he

lived there from 2008 to 2010 and he still claims residence there at his father’s house.

Appellee obtained a lease on a house in Ohio on October 1, 2015.

       {¶7}    Appellant testified she was diagnosed with depression several years ago

and saw a counselor.      Appellant stated she has not been diagnosed as bipolar or

schizophrenic. With regards to an incident appellee was concerned about when she took
Fairfield County, Case No. 15-CA-61                                                       4


B.B. to Indiana, appellant testified she went bird hunting and a gun accidentally went off

when a dog stepped on the trigger. B.B. was at home with the babysitter.

       {¶8}   Appellant testified she met with appellee and B.B. at the mall three times

and met appellee with B.B. at McDonald’s once in 2014. Appellant submitted an exhibit

with a list of times she saw B.B. during the two years he was with appellee. Appellant

also stated she talked to B.B. when her mother had him for visitation. Appellant testified

she has a good relationship with B.B. When she took B.B. to Indiana, she thought

appellee lived in a shelter. Appellant lives in Indiana with her fiancée. Appellant’s aunt

had guardianship of appellant’s daughter.

       {¶9}   The trial court issued a judgment entry on November 24, 2015 on the motion

for emergency custody. The trial court found appellant saw B.B. nine times between

August of 2013 and August 22, 2015.         The trial court determined that because of

appellant’s lack of contact with B.B. and the distance between the residences of appellant

and appellee, irreparable harm would occur if the trial court did not take immediate action.

The trial court stated appellant removed B.B. from appellee’s physical custody with little

or no regard to the emotional and/or psychological needs of the child. The trial court thus

granted temporary custody of B.B. to appellee.

       {¶10} Appellant appeals the November 24, 2015 judgment entry of the Fairfield

County Court of Common Pleas, Domestic Relations Division, and assigns the following

as error:

       {¶11} “I. THE TRIAL COURT ABUSED ITS DISCRETION IN FINDING THAT THE

MINOR CHILD WAS IN IMMEDIATE DANGER OR THAT IRREPARABLE HARM
Fairfield County, Case No. 15-CA-61                                                        5


WOULD OCCUR IF JOSHUA BROMBERG WAS NOT GRANTED EMERGENCY

CUSTODY.”

                                                 I.

       {¶12} In this case, there was no prior judicial decree allocating parental rights and

responsibilities and the parties were never married. The standard of review in custody

cases is whether the trial court abused its discretion. Davis v. Flickinger, 77 Ohio St.3d

415, 1997-Ohio-260, 674 N.E.2d 1159. An abuse of discretion implies that the court’s

attitude was unreasonable, arbitrary, or unconscionable. Blakemore v. Blakemore, 5

Ohio St.3d 217, 450 N.E.2d 1140 (1983).

       {¶13} Given the nature and impact of custody disputes, the trial court’s discretion

will be accorded paramount deference because the trial court is best suited to determine

the credibility of testimony and integrity of evidence. Mitchell v. Manders, 5th Dist. Morrow

No. 14CA0011, 2015-Ohio-1529. Specifically, “the knowledge a trial court gains through

observing witnesses and the parties in a custody proceeding cannot be conveyed to a

reviewing court by a printed record.” Miller v. Miller, 37 Ohio St.3d 71, 523 N.E.2d 846

(1988). Therefore, giving the trial court due deference, a reviewing court will not reverse

the findings of a trial court when the award of custody is supported by a substantial

amount of credible and competent evidence.            Davis v. Flickinger, 77 Ohio St.3d 415,

1997-Ohio-260, 674 N.E.2d 1159.

       {¶14} The Ohio Revised Code provides for a court to issue an emergency

temporary custody order during the pendency of the case. See R.C. 3109.043.

       {¶15} Appellant argues the trial court abused its discretion in finding that B.B. was

in immediate danger or that irreparable harm would occur if appellee was not granted
Fairfield County, Case No. 15-CA-61                                                       6


emergency custody. Fairfield County Common Pleas Court, Domestic Relations Division,

Local Rule 8.6 provides that ex parte orders are discouraged, but may be entered when

it is shown irreparable harm to a child will occur unless immediate action is taken.

       {¶16} We first note that, while the November 10, 2015 judgment entry was an ex

parte order, the judgment entry at issue in the instant case, issued on November 24, 2015,

was entered after a hearing. Appellant makes several arguments regarding the trial

court’s granting of the ex parte motion on November 10, 2015. We find the issue

regarding the granting of the November 10th ex parte order has been resolved by the trial

court’s hearing and final decision regarding the motion for emergency custody and

therefore is moot as it pertains to this appeal. See Bentley v. Bentley, 5th Dist. Fairfield

No. 07CA49, 2008-Ohio-3279.

       {¶17} Upon review of the record, we find the trial court did not abuse its discretion

in granting appellee’s motion for emergency custody and finding irreparable harm would

occur if the motion were not granted. “Irreparable harm” is defined as an injury “for the

redress of which, after its occurrence, there could be no plain, adequate and complete

remedy at law, and for which restitution in specie (money) would be impossible, difficult,

or incomplete. Cleveland v. Cleveland Electric Illuminating Co., 115 Ohio App.3d 1, 684

N.E.2d 343 (8th Dist. 1996). It is within the trial court’s discretion to make a reasonable

determination whether an adequate remedy at law is available or whether irreparable

injury will result to the movant. Dayton Metro. Housing Auth. v. Dayton Human Relations

Council, 81 Ohio App.3d 436, 611 N.E.2d 384 (2nd Dist. 1992).

       {¶18} Though appellant argues appellee had to submit expert testimony by a

doctor or psychologist for there to be substantial and competent evidence of irreparable
Fairfield County, Case No. 15-CA-61                                                          7


injury to B.B., she cites no law in support of the proposition that such expert testimony is

required. Further, neither the definition of “irreparable injury” nor the case law interpreting

the definition indicate such expert testimony is required.

       {¶19} In this case, appellant voluntarily left B.B. with appellee in August or

September of 2013. Appellant did not consult appellee about taking B.B. back to Indiana

with her even though B.B. had lived with appellee for two years. Instead, appellant

removed B.B. from appellee’s custody during a visit appellee allowed between B.B. and

his maternal grandmother. Appellant saw B.B. nine times in two years, with four of those

visits occurring with appellee and B.B. at the mall. Appellant lives in Avilla, Indiana and

appellee lives in Lancaster, Ohio. Appellee testified when appellant took B.B. to Indiana,

he was taken from the only home he knew. Further, appellee testified B.B. would suffer

irreparable harm if his motion was not granted. While appellant testified B.B. would not

suffer irreparable harm and B.B. was happy in Indiana, 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. Davis v. Flickinger, 77 Ohio St.3d 415, 1997-Ohio-260, 674 N.E.2d 1159.

This is especially true in a custody case, since there may be much that is evidence in the

parties’ demeanor and attitude that does not translate well to the record. Davis v.

Flickinger, 77 Ohio St.3d 415, 1997-Ohio-260, 674 N.E.2d 1159.

       {¶20} Based on the lack of contact appellant had with B.B. in the two years prior

to her taking him to Indiana, the distance between the parties’ homes, and the testimony

of appellee, we find the trial court did not abuse its discretion in determining there was

substantial, competent, and credible evidence of irreparable harm if temporary custody

was not granted to appellee.
Fairfield County, Case No. 15-CA-61                                               8


       {¶21} Accordingly, appellant’s assignment of error is overruled. The November

25, 2015 judgment entry of the Fairfield County Court of Common Pleas, Domestic

Relations Division, is affirmed.



By Gwin, J.,

Farmer, P.J., and

Wise, J., concur
