[Cite as Oyler v. Lancaster, 2020-Ohio-758.]


                                        COURT OF APPEALS
                                       STARK COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT

                                                       JUDGES:
MICHAEL J. OYLER                               :       Hon. William B. Hoffman, P.J.
                                               :       Hon. W. Scott Gwin, J..
                         Plaintiff-Appellee    :       Hon. Earle E. Wise, J.
                                               :
-vs-                                           :
                                               :       Case No. 2019CA00130
HEIDI K. LANCASTER, FNA OYLER                  :
                                               :
                     Defendant-Appellant       :       OPINION




CHARACTER OF PROCEEDING:                           Civil appeal from the Stark County Court of
                                                   Common Pleas, Domestic Relations
                                                   Division, Case No. 2009DR00463


JUDGMENT:                                          Affirmed



DATE OF JUDGMENT ENTRY:                            March 2, 2020



APPEARANCES:

For Plaintiff-Appellee                             For Defendant-Appellant

RICHARD PINHARD                                    HEIDI K. LANCASTER PRO SE
116 Cleveland Avenue N.W.                          1421 East Valentine Circle N.W.
Suite 625                                          Canton, OH 44708
Canton, OH 44702
[Cite as Oyler v. Lancaster, 2020-Ohio-758.]


Gwin, J.

        {¶1}     Appellant Heidi Oyler Lancaster appeals the July 22, 2019, and August 12,

2019 judgment entries of the Stark County Court of Common Pleas, Domestic Relations

Division.

                                           Facts & Procedural History

        {¶2}     Appellant (“Mother”) and appellee Michael Oyler (“Father”) were married in

1995. In 2009, Father filed a complaint for divorce. The parties had three children, who

were all minors at the time of the divorce decree. However, one of the children is now

emancipated. The parties currently have two minor children, A.O., born on October 10,

2004, and J.O., born on February 17, 2006. Father also adopted Mother’s two children

from a prior marriage, but these children are emancipated.

        {¶3}     The trial court granted a divorce to Mother and Father and allocated

parental rights and responsibilities between the parties. Mother appealed, and this Court

affirmed in part, vacated in part, and remanded the matter to the trial court. Oyler v. Oyler,

5th Dist. Stark No. 2011-CA-00065, 2011-Ohio-4390. This Court remanded the case to:

restore Mother to her maiden name; interview the eldest minor child; and journalize a final

decision regarding which parent should be the residential parent after the trial court had

interviewed the parties’ child in camera. After the trial court interviewed the child in

camera, the court again designated Father the residential parent and legal custodian of

the parties’ minor children. Mother received Schedule A parenting time. No appeal was

taken from the trial court’s decision.

        {¶4}     In 2013, Mother filed a motion for ex parte orders, a motion for in camera

interview of the children, a motion requesting a new guardian ad litem, and a motion to
Stark County, Case No. 2019CA00130                                                      3


grant temporary custody to Mother. The magistrate dismissed Mother’s motions for

failure to prosecute after she failed to make the deposit for the guardian ad litem fees.

The magistrate also awarded Father $1,000 in attorney fees. The trial court overruled

Mother’s objections to the magistrate’s decision. Mother filed an appeal to this Court. In

Oyler v. Oyler, 5th Dist. Stark No. 2014CA00015, 2014-Ohio-3468, we overruled Mother’s

assignments of error and affirmed the decision of the trial court.

       {¶5}   On June 4, 2018, Mother filed a motion for change of parental rights. Mother

listed the changed circumstances as emotional child abuse with parental alienation.

Mother also filed a motion for an in camera interview of the children. The trial court

permitted Mother time to refile her motion because the original motion was lacking an

affidavit in support of the motion. On July 27, 2018, Mother again filed a motion for

change of parental rights and listed the changed circumstances as emotional child abuse

with parental alienation. Mother attached an affidavit in support of her motion. In her

motion and affidavit, Mother requested a guardian ad litem be appointed for the children.

On August 24, 2018, the trial court appointed Melissa Pitinii as guardian ad litem (“GAL”)

for the children.

       {¶6}   On October 2, 2018, Father filed a motion for contempt against Mother for

the failure to pay $1,000 in attorney fees pursuant to the court’s November 26, 2013 order

and for the failure to pay child support in the amount of $2,036. On October 12, 2018,

the trial court appointed counsel for Mother on the contempt motion only. On January 24,

2019, Father filed a second motion for contempt for Mother’s alleged failure to pay child

support, for the total amount due and owing of $2,539.22.
Stark County, Case No. 2019CA00130                                                       4


       {¶7}   The magistrate conducted a hearing on Mother’s motions on April 4th and

May 6th of 2019. The magistrate also conducted an in camera interview of the children

on May 14, 2019. The magistrate issued a decision on June 14, 2019. The magistrate

noted that, at the conclusion of the trial, Mother made an oral motion to consider awarding

her expanded parenting time, as an alternative to her original motion. The magistrate

made extensive findings of fact in her decision.

       {¶8}   As to the GAL’s investigation, the magistrate issued the following findings

of fact: she fully complied with all GAL standards and rules; she provided a snapshot of

each party’s family dynamic; she determined both homes are appropriate for the children;

the children have a tight bond with their half-sister, Mother’s daughter; the children each

reported they would like to spend additional time with Mother; the children know the adults

in their lives do not like each other; and, based upon her investigation, she recommended

that Father remain the legal custodian and Mother’s parenting time be increased. The

magistrate issued detailed findings of fact as to Mother’s testimony and Father’s

testimony, including Mother’s belief that her visits with the children are sabotaged by

Father and/or Stepmother, and her strong belief that she should be granted legal custody

of the children. The magistrate’s findings of fact as to Father’s testimony provide that

neither he nor his wife interfere with Mother’s parenting time or her relationship with the

children, they never sabotaged Mother’s plans with the children, and he has never denied

Mother parenting time. Finally, the magistrate made detailed findings of fact with regards

to her in camera interview with the children.

       {¶9}   The magistrate then set forth the applicable statutes with regard to the

modification of parenting rights and responsibilities. The magistrate found no change of
Stark County, Case No. 2019CA00130                                                          5


circumstances had occurred, as the fact that Father remarried and Mother does not like

Stepmother’s relationship with the children or how it affects Mother’s relationship with the

children is not sufficient to trigger a modification of parental rights. The magistrate also

was not convinced that Mother’s allegations of emotional abuse are true, given the fact

that during the in camera interview, both boys talked positively about their lives in both

parents’ homes. Similarly, the magistrate found Mother’s allegation of parental alienation

unconvincing, based upon the testimony at the hearing. As to Mother’s motion for

expanded parenting time, the magistrate granted her motion, and adopted the GAL’s

expanded schedule.

         {¶10} With regards to Father’s motion for contempt as to attorney fees and child

support, the magistrate found Mother in contempt for failing to follow court orders. The

magistrate set an imposition hearing on the contempt for August 12th in front of the trial

judge.

         {¶11} Mother filed an objection to the magistrate’s decision on June 28, 2019,

stating the magistrate’s decision concerning custody was against the manifest weight of

the evidence, contrary to law, and an abuse of the magistrate’s discretion. Mother argued

the evidence produced at trial did not support the magistrate’s decision to deny her

custody of her children. Father filed a motion to dismiss the objections to the magistrate’s

decision on July 2, 2019, because the objections to the magistrate’s decision were not

specific and did not state with particularity the grounds for the objection. The trial court

held a hearing on Mother’s objections and Father’s motion to dismiss on July 22, 2019.

Subsequent to the hearing, the trial court granted Father’s motion, stating Mother failed

to pay for and file a transcript of the hearing before the magistrate and thus the trial court
Stark County, Case No. 2019CA00130                                                           6


could only determine that based upon the thorough, well-reasoned, and well-supported

magistrate’s decision, the decision is supported by the evidence. The trial court noted

Mother has requested and filed six other transcripts since the final divorce, so it was no

surprise that she needed to pay for the transcript.

       {¶12} The trial court set an imposition hearing for August 12, 2019. Counsel for

Father argued in support of the imposition of a jail sentence. Counsel for Mother stated

Mother honestly believed she had paid the child support and thus the contempt motion

should be dismissed, the contempt should be considered purged, and Mother should not

go to jail since she paid the attorney fees due and all child support arrearages.

       {¶13} The trial court found that Mother paid the attorney fees, paid child support

arrears in full, and paid for the transcript that was previously ordered. The trial court noted

that while Mother waited until the last minute to pay the court-ordered amounts, it was not

in the children’s best interest for Mother to be jailed. The trial court suspended the jail

sentence and stated as follows in the judgment entry, “based upon the payments that

have been made, this contempt is purged.”

       {¶14} Mother filed an appeal of the trial court’s judgment entries. Mother filed a

motion to supplement the record with transcripts from April 4, 2019, May 6, 2019, July 22,

2019, and August 12, 2019. This Court denied her motion in part and granted her motion

in part. We noted that Mother’s objection pertained to the magistrate’s factual findings

and because Mother failed to include the April 4th and May 6th transcripts as part of her

objection to the magistrate’s decision, this Court could not consider those two transcripts

on appeal. However, we granted Mother’s motion to supplement the record with the July

22nd and August 12th transcripts.
Stark County, Case No. 2019CA00130                                                   7


       {¶15} Mother appeals the July 22, 2019 and August 12, 2019, judgment entries of

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

following as error:

       {¶16} “I. THE COURT ERRED IN ITS DECISION CONCERNING CUSTODY AS

IT WAS AGAINST THE MANIFEST WEIGHT AND SUFFICIENCY OF THE EVIDENCE,

CONTRARY TO LAW AND AN ABUSE OF HER DISCRETION.                         THERE WAS

OVERWHELMING EVIDENCE OF EMOTIONAL CHILD ABUSE WITH PARENTAL

ALIENATION BY PLAINTIFF, MICHAEL J. OYLER AND HIS NEW WIFE, RACHELLE

MORRIS-OYLER TO THE PARTIES MINOR CHILDREN. EVIDENCE PRODUCED AT

TRIAL DID NOT SUPPORT THE COURT’S DECISION TO DENY MOTHER CUSTODY

OF HER CHILDREN.              THUS, THE COURT’S ULTIMATE ERR IS IN NOT

SAFEGUARDING THESE CHILDREN BY DENYING AND DISMISSING MOTHER’S

MOTION TO CHANGE PARENTAL RIGHTS AND RESPONSIBILITIES.

       {¶17} “II. THE COURT ERRED BY NOT CONSIDERING THE CHANGE IN

CIRCUMSTANCE          EVIDENCE    PROVIDED      TO   GAL,    MELISSA     PITINII,   OF

DEFENDANT,       HEIDI   K.    LANCASTER,    HAVING     A   NEW    PSYCHOLOGICAL

EVALUATION CONDUCTED BY ONE OF PROBATE COURT’S APPROVED

PSYCHOLOGISTS, DR. ROBERT DEVIES. IN HIS FINDINGS AND EVALUATION,

THERE WERE NO CONCERNS WHICH WOULD PREVENT CUSTODY BEING

GRANTED TO THE MOTHER OF THE PARTIES’ MINOR CHILDREN.

       {¶18} “III. THE COURT ERRED BY GRANTING FATHER’S MOTION TO SHOW

CAUSE AND MOTHER BEING FOUND GUILTY OF CONTEMPT. MOTHER WAS

SENTENCED TO 30 DAYS AT THE STARK COUNTY JAIL. EVIDENCE WAS SHOWN
Stark County, Case No. 2019CA00130                                                         8


AT THE PRETIAL HEARING THAT DEFENDANT WAS NOT IN CONTEMPT BUT IT

WAS A MISTAKE ON THE COURT’S BEHALF, NEEDING A CORRECTION OF THE

RECORD BY THE COURT.

       {¶19} “IV. THE COURT ERRED IN ADOPTING THE RECOMMENDATIONS OF

THE GAL, ATTORNEY MELISSA PITINII, AFTER BEING MADE AWARE THAT THE

GAL NEVER ASKED CHILDREN ANY SPECIFICS OR DISCUSSED ANY CONCERNS

OR ALLEGATIONS MADE BY CHILDREN AND/OR MOTHER. GAL REFUSED AND

NEGLECTED THE INVESTIGATION OF THIS CASE TO WHICH SHE WAS ASSIGNED

BY THE COURT.”

                                                    I.

       {¶20} In her first assignment of error, Mother contends the trial court abused its

discretion in denying her motion for change of custody, as the weight of the evidence

supported awarding her sole custody.

       {¶21} Mother filed objections to the magistrate’s findings with regards to custody,

but did not file a transcript of the magistrate’s hearing for the trial court’s review. Civil

Rule 53(D)(3)(b)(iii) states, in pertinent, part:

              An objection to a factual finding, whether or not specifically

       designated as a finding of fact under Civ.R. 53(D)(3)(a)(ii), shall be

       supported by a transcript of all the evidence submitted to the magistrate

       relevant to that finding or an affidavit of that evidence if a transcript is not

       available. * * * The objecting party shall file the transcript or affidavit with

       the court within thirty days after filing objections unless the court extends

       the time in writing for preparation of the transcript or other good cause. If a
Stark County, Case No. 2019CA00130                                                          9


        party files timely objections prior to the date on which a transcript is

        prepared, the party may seek leave of court to supplement the objections.

        {¶22} This Court has held, “where an appellant fails to provide a transcript of the

original hearing before the magistrate for the trial court’s review, the magistrate’s findings

of fact are considered established and may not be attacked on appeal.” J.S. v. T.S., 5th

Dist. Knox No. 16CA18, 2017-Ohio-1042, citing Murray v. Murray, 5th Dist. Richland No.

15CA02, 2015-Ohio-3726.        Without a transcript, the trial court is free to adopt the

magistrate’s decision, unless it determines there is an “error of law or other defect

evidence on the face of the magistrate’s decision.” Civ.R. 53(D)(4)(c).

        {¶23} Accordingly, we review Mother’s first assignment of error only to analyze

whether the trial court abused its discretion in reaching specific legal conclusions based

upon the established facts. He v. Zeng, 5th Dist. Licking No. 2009-CA-0060, 2010-Ohio-

2095.

        {¶24} In this case, Mother filed a motion for reallocation of parental rights. Three

elements must exist in order for a trial court to modify a prior decree allocating parental

rights and responsibilities: (1) there must be an initial threshold showing of a change in

circumstances; (2) if circumstances have changed, the modification of custody must be

in the child’s best interest; and (3) any harm to the child from a modification of the plan

must be outweighed by the advantages of such modification. R.C. 3109.04(E)(1)(a). R.C.

3109.04 does not define the concept of “change in circumstances.” However, Ohio courts

have held the phrase is intended to denote “an event, occurrence, or situation which has

a material and adverse effect upon a child.” Wyss v. Wyss, 3 Ohio App.3d 412, 445

N.E.2d 1153 (10th Dist. 1982). Additionally, the change of circumstances must be “one
Stark County, Case No. 2019CA00130                                                        10


of substance, not a slight or inconsequential change.” Davis v. Flickinger, 77 Ohio St.3d

415, 674 N.E.2d 1159 (1997). This prevents a constant re-litigation of the issues that

have already been determined by a trial court. Id.

       {¶25} In this case, we find the trial court did not abuse its discretion in concluding

there was no change of circumstances, based upon the established facts that were issued

by the magistrate. In her findings of fact, the magistrate detailed the testimony of Father,

Mother, and the children, and found the fact that Father remarried and Mother does not

like Stepmother’s relationship with the children or how it affects Mother’s relationship with

the children is not sufficient to trigger a change of circumstances. Based upon these

established facts, we find the trial court did not abuse its discretion in concluding that

Mother’s dislike of Stepmother’s relationship with the children or how it affects Mother’s

relationship with the children is not sufficient to demonstrate a change in circumstances.

       {¶26} The magistrate also was not convinced Mother’s allegations of emotional

abuse were true, given the childrens’ testimony during the in camera interview. The

magistrate further found Mother’s allegation of parental alienation unconvincing, based

upon the testimony at the hearing. Issues relating to the credibility of the witnesses and

the weight to be given to the evidence are primarily for the trier of fact. Seasons Coal v.

Cleveland, 10 Ohio St.3d 77, 461 N.E.2d 1273 (1984). Deferring to the trial court on

matters of credibility is “crucial in a child custody case, where there may be much

evidence in the parties’ demeanor and attitude that does not translate to the record well.”

Davis v. Flickinger, 77 Ohio St.3d 415, 674 N.E.2d 1159 (1997).

       {¶27} Mother’s first assignment of error is overruled.
Stark County, Case No. 2019CA00130                                                        11


                                              II. & IV.

       {¶28} In her second assignment of error, Mother argues the trial court and the

GAL erred by not considering the psychological evaluation that Dr. Devies conducted on

Mother. In her fourth assignment of error, Mother contends the trial court erred in

adopting the recommendations of the GAL because the GAL neglected to conduct an

appropriate investigation in this case. Both assignments of error deal with the GAL’s

investigation in this case.

       {¶29} As discussed above, Mother did not file a transcript of the hearing before

the magistrate for the trial court’s review. Accordingly, we review Mother’s second and

fourth assignments of error only to analyze whether the trial court abused its discretion in

reaching specific legal conclusions based upon the established facts. He v. Zeng, 5th

Dist. Licking No. 2009-CA-0060, 2010-Ohio-2095.

       {¶30} The role of the GAL is to investigate the child’s situation and then ask the

court to do what the guardian feels is in the child’s best interests. In re Baby Girl Baxter,

17 Ohio St.3d 229, 479 N.E.2d 257 (1985).

       {¶31} As to the GAL’s investigation, the magistrate issued the following findings

of fact: she fully complied with all GAL standards and rules; she provided a snapshot of

each party’s family dynamic; she determined both homes are appropriate for the children;

the children have a tight bond with their half-sister, Mother’s daughter; the children each

reported they would like to spend additional time with Mother; the children know the adults

in their lives do not like each other; and, based upon her investigation, she recommended

that Father remain the legal custodian and that Mother’s parenting time be increased.
Stark County, Case No. 2019CA00130                                                       12


       {¶32} Based upon these established facts, we find the trial court did not abuse its

discretion in finding the GAL investigated each child’s situation and acted in accordance

with each child’s best interest. Mother’s second and fourth assignment of error are

overruled.

                                                III.

       {¶33} In her third assignment of error, Mother contends the trial court erred in

finding her in contempt. Mother argues the evidence in the record shows she was not in

contempt.

       {¶34} An appeal from a finding of contempt becomes moot when an offender

either purges himself of the contempt or serves the sentence. Dotts v. Schaefer, 5th Dist.

Tuscarawas No. 2014 AP 06 0022, 2015-Ohio-782; Wesley v. Wesley, 10th Dist. Franklin

No. 07AP-206, 2007-Ohio-7006; Grilliot-Saddler v. Saddler, 12th Dist. Warren No.

CA2017-09-134, 2018-Ohio-1689.

       {¶35} In this case, the record reveals that Mother purged herself of the contempt

charge. In its judgment entry, the trial court specifically states, “based upon the payments

that have been made, this contempt is purged.” Accordingly, because Mother purged

herself of the contempt charge, we find this assignment of error has been rendered moot.

       {¶36} Based on the foregoing, Mother’s first, second, and fourth assignments of

error are overruled. Mother’s third assignment of error is moot.
Stark County, Case No. 2019CA00130                                           13


      {¶37} The July 22, 2019, and August 12, 2019 judgment entries of the Stark

County Court of Common Pleas, Domestic Relations Division, are affirmed.



By Gwin, J.,

Hoffman, P.J., and

Wise, Earle, J., concur
