[Cite as Gillum v. Gillum, 2011-Ohio-2558.]




        IN THE COURT OF APPEALS FOR MONTGOMERY COUNTY, OHIO

DONA J. GILLUM (DAVIES)                                   :

        Plaintiff-Appellee                                : C.A. CASE NO.         24401

v.                                                        : T.C. NO.     02DR248

MICHAEL J. GILLUM                                         :    (Civil appeal from Common
                                                               Pleas Court, Domestic Relations)
        Defendant-Appellant                    :

                                                          :

                                              ..........

                                              OPINION

                         Rendered on the           27th       day of      May        , 2011.

                                              ..........

H. CHARLES WAGNER, Atty. Reg. No. 0031050, 424 Patterson Road, Dayton, Ohio 45419
      Attorney for Plaintiff-Appellee

JAMES R. KIRKLAND, Atty. Reg. No. 0009731, 130 W. Second Street, Suite 840, Dayton,
Ohio 45402
      Attorney for Defendant-Appellant

                                              ..........

FROELICH, J.

        {¶ 1} Michael J. Gillum appeals from a judgment of the Montgomery County Court

of Common Pleas, Domestic Relations Division, which denied his motion for a change of

custody and found him in contempt for failure to pay his children’s medical expenses. For

the following reasons, the judgment of the trial court will be affirmed.
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                                                   I

       {¶ 2} In 2002, Gillum and Dona Gillum Davies were divorced and entered into a

shared parenting agreement for their three minor daughters. Davies was designated as the

residential parent, and Gillum visited with the children pursuant to the court’s standard order.

 In 2006, Davies moved to Georgia with the children, an Agreed Order was entered, and

Gillum’s visitation was modified to provide for substantial visitation during the summer and

other breaks from school.

       {¶ 3} In April 2009, Gillum filed a Motion for Change of Residential Parent Rights

due to Davies’ alleged marijuana use and inadequate supervision of the children. Davies

subsequently filed motions to terminate the shared parenting plan and to show cause why

Gillum should not be held in contempt for failure to pay the children’s medical expenses, as

ordered in the decree of divorce. Davies sought sole custody. A guardian ad litem was

appointed, and he filed a report and recommendation with the court.

       {¶ 4} The magistrate held a two-day hearing in September 2010.1 The magistrate

overruled Gillum’s motion that he be designated as the residential parent and decided to

grant Davies’ motion to terminate the shared parenting plan, naming Davies as the residential

and sole custodial parent.     The visitation schedule remained the same.          Further, the

magistrate decided that Gillum was in contempt for failure to pay medical expenses and

should be sentenced to three days in jail, with the sentence suspended on the condition that he

pay the amount owed, $396, within 30 days.             The magistrate also ordered Gillum to

cooperate in executing a contract with the children’s orthodontist for necessary services, that


          1
           At the time of the hearing, the children were ages 15, 13, and 11.
                                                                                            3

the parties communicate directly (not through the children), that they notify each other in

writing of vacation plans, that Davies successfully complete drug abuse counseling and

submit to random urinalysis twice per year, and that Davies use a primary care or “treating

physician” for the children’s medical needs whenever possible.

       {¶ 5} Gillum filed objections to the magistrate’s order, contesting the magistrate’s

denial of his motion for change of residential parent’s rights, the finding that it was in the

children’s best interest to continue to live with Davies, and the finding of contempt. The

trial court overruled the objections and adopted the magistrate’s decision.

       {¶ 6} Gillum raises five assignments of error on appeal. As with his objections to

the magistrate’s order, Gillum’s arguments challenge only the trial court’s decision that

Davies remain the residential parent and its finding of contempt; he did not object to the

court’s granting Davies’ motion to terminate shared parenting, and he has not appealed that

decision.

                                                  II

       {¶ 7} Gillum’s first four assignments of error assert that the trial court erred in

placing too much or not enough weight on various factors relevant to the children’s best

interest. These factors are: Davies’ use of marijuana, Davies’ use of social networking sites

on the Internet and her supervision of the children’s use of such sites; the length of time the

children have been in Davies’ custody, and Davies’ interference with Gillum’s parenting

time. We will address these arguments together because, individually and collectively, they

challenge the trial court’s conclusion that no change of custody was warranted.

       {¶ 8} A court may not modify the designation of a residential parent and legal
                                                                                               4

custodian of a child in a shared-parenting decree without first determining that a “change in

circumstances” has occurred and that the modification is in the best interest of the child.

Fisher v. Hasenjager, 116 Ohio St.3d 53, 2007-Ohio-5589, ¶33; Sutton v. Sutton,

Montgomery App. No. 24108, 2011-Ohio-1439, ¶14.            Such findings are compelled by R.C.

3109.04(E)(1)(a), which provides:

       {¶ 9} “The court shall not modify a prior decree allocating parental rights and

responsibilities for the care of children unless it finds, based on facts that have arisen since

the prior decree or that were unknown to the court at the time of the prior decree, that a

change has occurred in the circumstances of the child, the child’s residential parent, or either

of the parents subject to a shared parenting decree, and that the modification is necessary to

serve the best interest of the child. In applying these standards, the court shall retain the

residential parent designated by the prior decree or the prior shared parenting decree, unless a

modification is in the best interest of the child and one of the following applies:

       {¶ 10} “* * *

       {¶ 11} “(iii) The harm likely to be caused by a change of environment is outweighed

by the advantages of the change of environment to the child.”

       {¶ 12} In determining the best interest of a child, the court shall consider all relevant

factors, including, but not limited to: the wishes of the child’s parents regarding the child’s

care; if the court has interviewed the child in chambers, the wishes and concerns of the child

as expressed to the court; 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; the

child’s adjustment to the child’s home, school, and community; the mental and physical
                                                                                               5

health of all persons involved in the situation; the parent more likely to honor and facilitate

court-approved parenting time or visitation and companionship rights; whether either parent

has failed to make all child support payments, including all arrearages, that are required of

that parent pursuant to a child support order under which that parent is an obligor; whether

either parent previously has been convicted of or pleaded guilty to any criminal offense

involving any act that resulted in a child being an abused child or a neglected child; whether

the residential parent or one of the parents subject to a shared parenting decree has

continuously and willfully denied the other parent’s right to parenting time in accordance

with an order of the court; and whether either parent has established a residence, or is

planning to establish a residence, outside this state. R.C. 3109.04(F)(1).

       {¶ 13} Although a trial court must follow the dictates of R .C. 3109.04 in deciding

child-custody matters, it enjoys broad discretion when determining the appropriate allocation

of parental rights and responsibilities.    Miller v. Miller (1988), 37 Ohio St.3d 71, 74.

Absent an abuse of that discretion, a reviewing court will affirm the custody determination of

the trial court. “Abuse of discretion” is a term used to indicate that a trial court’s decision is

unreasonable, arbitrary or unconscionable. Blakemore v. Blakemore (1983) 5 Ohio St.3d

217, 219.

                                         Davies’ marijuana use

       {¶ 14} Gillum contends that the trial court acted unreasonably in failing to protect the

children from the potential harm posed by Davies’ illegal drug use and in “fail[ing] to define”

more specifically what would constitute the “drug treatment” required by its order.

       {¶ 15} At the hearing, Davies admitted to occasional recreational use of marijuana in
                                                                                             6

her home, outside the presence of her children. The children also reported this marijuana

use to the guardian ad litem, who included it in his report.   Davies testified that she thought

her children had been unaware of her marijuana usage because she had not used it in their

presence. She also testified that she had used marijuana recreationally for fourteen years,

including during her marriage to Gillum. She acknowledged that marijuana use was illegal

in Georgia. Davies also admitted that she had permitted her older son from a previous

relationship to use marijuana in her home in 2009. Davies testified that she recognized her

marijuana use as a problem which set a poor example for her children and that she had

stopped using it two and one-half months earlier, when she realized that her children were

aware of it. She also testified that she had sought help for her drug use through a program at

her church called Freedom from Addiction.

        {¶ 16} Although Gillum denied any recent marijuana usage, he testified that he had

used marijuana “all the time” for many years, including during his marriage to Davies while

the children were in the house. He also testified that he had used marijuana with Davies’

older son when the son was nineteen or younger. Gillum stated that he had quit a couple of

years earlier.

        {¶ 17} Thus, it was undisputed that both parties had used marijuana – often while the

children were at home – for many years. Gillum stopped earlier than Davies but, at the time

of the hearing, both parties claimed to no longer use marijuana.

        {¶ 18} Gillum asserted that Davies’ more recent marijuana use – and the children’s

awareness of it – made it impossible for her to set a good example for the children or to

properly supervise them. But it was the trial court’s responsibility to weigh the credibility of
                                                                                                7

Davies’ claims that she had been unaware of her children’s knowledge of her drug use and

the sincerity of her resolution to stop using the drug.         Moreover, in light of Gillum’s

admitted past use of marijuana with his teenage step-son and while his own children were in

the home and the very contentious nature of the parties’ relationship, the trial court could

have reasonably questioned the sincerity of his concern over the issue. The court was

required to balance its concern over Davies’ drug use against other factors relevant to the

children’s best interest. Davies’ past marijuana use, in itself, did not compel the conclusion

that a change of residential parent was in the children’s best interest. In its decision, the trial

court ordered Davies to participate in and successfully complete drug abuse counseling and to

submit to random urinanalyses at Gillum’s request two times per year. The trial court did

not abuse its discretion in addressing Davies’ drug use in this manner, and it was not required

to be more specific about the drug abuse counseling; the court had jurisdiction to impose a

more specific requirement in the future if the counseling sought by Davies were not

satisfactory.

                                     Use of social networking sites

        {¶ 19} Gillum contends that Davies’ inability or unwillingness to adequately

supervise the children is demonstrated by the children’s postings on the social networking

site myspace.com. He also claims that Davies showed disrespect toward him and set a bad

example for the children by posting derogatory comments about him and his new wife on her

own (Davies’) myspace page, where they could be viewed by the children.

        {¶ 20} Gillum testified that he thought several pictures posted on his daughters’

myspace pages were inappropriate. The images to which Gillum objected included pictures
                                                                                                8

of the thirteen-year-old daughter kissing one of her girlfriends on the cheek and pictures of

the fifteen-year-old wearing a bikini and cowboy hat at the beach.           The pictures of the

younger daughter and her friend included the daughter’s captions such as “sexii” and

“kisses;” the pictures of the older daughter included her captions such as “one sexii cowgirl”

and “im the hottest cowgirl you’ve ever seen.” Gillum contends that Davies’ failure to

object to the girls’ posting of such pictures or her ignorance of this fact shows that she was

not adequately supervising the children’s Internet usage and that she was “in denial that child

predators exist.”

       {¶ 21} Davies testified that there was “nothing wrong” with the pictures of the girls,

that the pictures were not harmful, and that she did not consider the pictures “sexy poses.”

She also noted that the pictures of the older daughter on the beach were taken during a family

vacation and that Davies herself was in some of the pictures with her daughter.

       {¶ 22} Gillum also presented evidence regarding comments made on Davies’ own

myspace page and in emails to her children. The myspace entries included comments such

as, “cannot wait to officially ‘bury’ the past trash” and “if I wanted to look like u, I’d stand in

the road and b hit by a truck.” Davies denied that these comments were directed at Gillum

or his wife. Davies admitted that, in other myspace posings, she had directed comments

toward Gillum and his wife such as, “ur fat, he’s ugly, so keep it,” “dust off ur own Bible,

find out what scriptures fit u the best.... besides anything about ‘GLUTTONY’ cause we all

know ur sinners in that area,” and “I hope ur ready for an awakening teehee.” Davies

acknowledged that her daughters could have seen these pages, although there was no direct

evidence that they had. Davies testified that she thought it “was okay to talk about [Gillum]
                                                                                               9

in that manner” on her myspace page because she felt that she “needed to let them [the

children] know that [she] was going to do whatever [she] could to protect them from his

badgering” about scripture and their behavior.

       {¶ 23} Gillum also presented messages Davies sent to the children through her

myspace page while the children were visiting him over the summer. These messages

referenced “the ‘talks’” the girls “had to have” (with Gillum, allegedly about the Bible) and

encouraged the girls to “stay strong, and stay in the truth;” the messages also stated that

Davies was “worried about the stuff that is being put into ur ears” and that she wouldn’t be

surprised if Gillum sent messages to her under the girls’ names to create trouble. At the

hearing, Davies explained that she had been concerned about Gillum’s talking badly about

her to the children; she denied trying to influence what they would say when they were

interviewed by the guardian ad litem.

       {¶ 24} Gillum argues that the “sexually exploitive” photos posted on his daughters’

myspace pages and the derogatory comments posted on Davies’ page were inappropriate and

that, based on this evidence, the trial court should have changed custody of the children.

       {¶ 25} As we noted above, the trial court is charged with weighing many relevant

factors in determining whether a change of custody is in a child’s best interest.            R.C.

3109.04(F)(1). The magistrate and judge apparently determined that the use of myspace by

the children and by Davies in this case was not so serious or offensive, in itself, as to compel

the court to change the custodial parent. Evidence was presented that Davies required the

children to follow rules, closely supervised their activities, and insisted on meeting any

friends (and their parents) with whom the children spent time.           Gillum admitted, on
                                                                                              10

cross-examination, that the children were safe with Davies. Moreover, other evidence raised

questions about Gillum’s own supervision of the children when they were with him over the

summer, including admitted instances in which the fifteen-year-old was attacked with rocks

and spent a significant period of time on public streets in her bikini because she could not get

a ride home from the pool.     Although the wisdom of allowing Internet posts of a bikini-clad

girl or of young girls kissing is certainly problematic, Gillum’s characterization of the

photographs as “sexually exploitive” is also debatable. The magistrate and trial court, as is

unfortunately often the situation, had to weigh this and other conflicting evidence. Viewing

the evidence as a whole, the trial court did not abuse its discretion in finding (implicitly) that

the danger posed by such postings and Davies’ knowledge of or failure to prevent such

postings did not demonstrate that a change of custody was in the children’s best interest.

                                   Length of time in Davies’ custody

       {¶ 26} Gillum claims that the trial court erred in relying on the magistrate’s

recommendation “that the children not be forced to change primary residence which would

include a change of households, states, school friends, and all of their activities.” He

contends that the magistrate’s and court’s concern over this issue ignored the fact that the

children had lived in Ohio and spent summers here in the past. In other words, Gillum

suggests that a change in the custodial arrangement would not have placed the girls in a “new

atmosphere” or presented difficulties for them and, thus, should not have been viewed as a

factor weighing against a change of custody.

       {¶ 27} Gillum’s focus on how familiar the children are with Ohio and how easily the

children might adjust to a change of custody is misdirected. A court must find that a
                                                                                          11

“change in circumstances” has occurred and that the modification of the children’s custody

arrangement is in the children’s best interest. R.C. 3109.04(E)(1)(a); Fisher, 116 Ohio

St.3d 53, at ¶33. The children’s familiarity with an alternate placement does not establish

either of these factors. Without evidence to support a change of custody based on the best

interest of the children, the trial court did not err in concluding that the harm likely to be

caused by a change of environment was outweighed by the advantages of the change, if any.

                                    Interference with parenting time

       {¶ 28} Finally, Gillum claims that the trial court did not give sufficient weight to

evidence that Davies interfered with his parenting time by taking the children on vacation

during his parenting time. He criticizes the trial court for not “chastising” Davies and for

commenting that “these are the kind of conflicts that the court expects the parties to discuss

and work out because they may well occur an equal number of times for each parent.”

       {¶ 29} Davies testified that the trip in question, at the beginning of the summer in

2008, involved her parents’ invitation for Davies and the children to go to Florida with them

for a relative’s graduation. She testified that the trip delayed the start of Gillum’s summer

visitation by three days, but that she offered to add three days at the end of the summer.

Because of the nature of the event, Davies could not change the timing, and she testified that

she believed Gillum had consented to the schedule adjustment.

       {¶ 30} We agree with the trial court that schedule flexibility is to be expected and

encouraged. The slight change in the visitation dates and the reasons for it were heard by the

court and factored into its decision.

       {¶ 31} The trial court did not abuse its discretion in concluding that there had not
                                                                                              12

been a change of circumstances warranting a change in the custodial parent and that such a

change was not in the best interest of the children.

       {¶ 32} Gullim’s first, second, third, and fourth assignments of error are overruled.

                                                   III

       {¶ 33} In his fifth assignment of error, Gillum contends that the trial court erred in

finding him in contempt for failure to pay medical expenses related to the children. He

claims that he did not receive the bills for some services and that Davies over-utilized

expensive emergency care rather than taking the children to a “regular doctor.”

       {¶ 34} At the hearing, Gillum expressed concern that Davies over-utilized urgent care

services, but he also testified that he refused to pay some medical expenses because he was

“blown away” when he saw a picture on the Internet of Davies’ son in her house with

marijuana. Gillum also admitted that he had not contacted the children’s orthodontist to

arrange a payment plan, as he had been asked to do. He did not present specific evidence to

substantiate his claim that urgent care services had been used in situations where a routine

doctor’s visit might have sufficed.

       {¶ 35} There was evidence that Gillum’s refusal to pay was motivated by more than a

failure to realize that monies were owed.         Moreover, in her order finding Gillum in

contempt, the magistrate noted that there was no court order preventing Davies from using

urgent care, so Gillum did not have a basis for refusing to pay his share of these expenses.

The magistrate did incorporate into the order, however, a recommendation that, in the future,

Davies use a treating physician unless there was an emergency.

       {¶ 36} An appellate court may only reverse a trial court’s finding of contempt when
                                                                                        13

there has been an abuse of discretion. Ahmed v. Ahmed, Montgomery App. No. 23740,

2010-Ohio-5635, ¶31. The trial court did not abuse its discretion in finding Gillum in

contempt, especially considering that it gave Gillum 30 days to purge the contempt by paying

the amount owed.

       {¶ 37} The fifth assignment of error is overruled.

                                                 IV

       {¶ 38} The judgment of the trial court will be affirmed.

                                        ..........

FAIN, J. and HALL, J., concur.

Copies mailed to:

H. Charles Wagner
James R. Kirkland
Hon. Timothy D. Wood
