[Cite as Wright v. Wright, 2013-Ohio-4138.]


                                       COURT OF APPEALS
                                      STARK COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT


LEESA LLOYD WRIGHT                            :   JUDGES:
                                              :
                                              :   Hon. William B. Hoffman, P.J.
       Plaintiff-Appellant                    :   Hon. Sheila G. Farmer, J.
                                              :   Hon. Patricia A. Delaney, J.
-vs-                                          :
                                              :   Case No. 2012CA00232
                                              :
STEVEN WRIGHT                                 :
                                              :
                                              :
       Defendant-Appellee                     :   OPINION


CHARACTER OF PROCEEDING:                          Appeal from the Stark County Court of
                                                  Common Pleas, Domestic Relations
                                                  Division, Case No. 2004DR01383



JUDGMENT:                                         AFFIRMED




DATE OF JUDGMENT ENTRY:                           September 9, 2013




APPEARANCES:

For Plaintiff-Appellant:                          For Defendant-Appellee:

PAMELLA A. LAMMON                                 JENNIFER LOWRY-JUERGENSEN
103 N. Union St., Suite D                         116 Cleveland Ave. SW, Suite 800
Delaware, OH 43015                                Canton, OH 44702
Stark County, Case No. 2012CA00232                                                  2

Delaney, J.

       {¶1} Plaintiff-Appellant Leesa Lloyd Wright appeals the November 14, 2012

judgment entry of the Stark County Court of Common Pleas, Domestic Relations

Division.

                        FACTS AND PROCEDURAL HISTORY

       {¶2} On June 22, 2005, Plaintiff-Appellant Leesa Lloyd Wright (“Mother”) and

Defendant-Appellee Steven Wright (“Father”) were granted a divorce. The final decree

incorporated the parties’ separation agreement wherein the parties agreed to a shared

parenting plan regarding their child, E.W., born as issue of the marriage on July 31,

2002. Mother was designated the residential parent and legal custodian.

       {¶3} On January 8, 2009, the parties entered into another shared parenting

agreement wherein Father was designated the residential parent for school placement

purposes and medical decisions.

       {¶4} In September 2009, Mother and Father filed separate motions for the

reallocation of parental rights and responsibilities.   Hearings were held before the

magistrate. By decision filed August 3, 2010, the magistrate terminated the shared

parenting plan, designated Father as the residential parent and legal custodian, and

ordered Mother to pay child support in the amount of $50.00 per month. Mother filed

objections. A hearing was held on March 30, 2011. By judgment entry filed April 18,

2011, the trial court ordered a limited remand to address the issues of child support,

health care, and the allocation of the dependency exemption. After a hearing, the

magistrate issued a decision on those issues on May 5, 2011. The trial court overruled

Mother’s objections, approved, and adopted the magistrate’s decision on May 9, 2011.
Stark County, Case No. 2012CA00232                                                       3


The trial court filed findings of fact and conclusions of law and issued a final order on

May 16, 2011.

       {¶5} Mother filed an appeal of the May 16, 2011 judgment entry with this Court.

Mother filed a motion to stay judgment, which the trial court denied on June 13, 2011.

In Wright v. Wright, 5th Dist. Stark No. 2011CA00129, 2012-Ohio-1560 (“Wright I”), we

reversed the decision of the trial court and remanded the matter for further

consideration.   We found the trial court was precluded from terminating a shared

parenting plan and designating Father as the residential parent and legal custodian

without first making a determination that a change in circumstances had occurred, as

well as a finding that a modification was in the best interest of the child.

       {¶6} Upon remand, the trial court reappointed the Guardian ad Litem to update

his report because of the passage of time. The Guardian ad Litem recommended the

trial court terminate the shared parenting plan and award custody to Father. The trial

court held a limited evidentiary hearing on October 11, 2012. The trial court held an in

camera interview with E.W.

       {¶7} On November 4, 2012, the trial court issued its Findings of Fact and

Conclusions of Law and judgment entry.          The trial court based its decision on the

evidence adduced at the first trial and second trial. The trial court found five changes in

circumstances had occurred since January 2009: (1) the parents acknowledged the

shared parenting plan was not working; (2) Mother stopped using the computer

program, “Our Family Wizard,” to communicate with Father as to E.W.; (3) When E.W.

entered first grade in August 2009, Mother created conflict with the school that could

negatively impact E.W.’s education; (4) Mother failed to comply with the parenting time
Stark County, Case No. 2012CA00232                                                     4


provisions of the shared parenting plan; and (5) Mother changed E.W.’s name in

Summit County Probate Court without the Father’s knowledge. The trial court next

found it was within the child’s best interest that it terminate the shared parenting plan

and name Father as the residential parent and legal custodian.

      {¶8} It is from this decision Mother now appeals.

                             ASSIGNMENTS OF ERROR

      {¶9} Mother raises five Assignments of Error:

      {¶10} “I. THE TRIAL COURTS [SIC] DETERMINATION THAT A ‘CHANGE IN

CIRCUMSTANCES’ HAS OCCURRED SINCE THE PARTIES WERE LAST IN COURT,

AS WELL AS FINDING THAT THE MODIFICATION IS IN THE BEST INTEREST OF

THE CHILD, PURSUANT TO R.C. 3109.04(E)(1)(a) WAS AN ABUSE OF DISCRETION

AND AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE. THE TRIAL COURTS’

[SIC] DECISION IS NOT REFLECTED IN THE TRANSCRIPT.

      {¶11} “II. THE TRIAL COURT ABUSED ITS’ [SIC] DISCRETION WHEN IT

PROCEEDED WITHOUT REMOVING AND REPLACING THE GUARDIAN AD LITEM,

IF THE GUARDIAN AD LITEM DID NOT COMPLY WITH THE MINIMUM STANDARDS

OF   PRACTICE,      AS    SET    FORTH     IN   RULE     48   OF    THE    RULES     OF

SUPERINTENDENCE.         MUST THE GUARDIAN AD LITEM INFORM THE COURT

WHEN THERE IS A CONFLICT OF INTEREST BETWEEN WHAT A COMPETENT

CHILD DESIRES AND THE GUARDIAN AD LITEM’S RECOMMENDATION?                           THE

TRIAL COURT’S DECISION IS NOT REFLECTED IN THE TRANSCRIPT.

      {¶12} “III. THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT

DISREGARDED THE CHILD’S DESIRE TO LIVE WITH HIS MOTHER AND FAILED
Stark County, Case No. 2012CA00232                                                    5


TO APPOINT SEPARATE COUNSEL FOR THE CHILD, WHEN THE CHILD’S

WISHES      ARE     IN   CONFLICT       WITH      THE    GUARDIAN       AD     LITEM’S

RECOMMENDATION. THE TRIAL COURT’S DECISION IS NOT REFLECTED IN THE

TRANSCRIPT.

      {¶13} “IV. THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT

AFFIRMED THE MAGISTRATE’S DECISION OF 8/3/2010, WHICH WAS BASED

LARGELY UPON THE GUARDIAN AD LITEM’S REPORT OF 1/13/2010, WHICH WAS

IN TURN LARGELY BASED UPON INADMISSIBLE HEARSAY FROM A 2006

PSYCHOLOGICAL REPORT BY DR. TULLY.                JUDGE JAMES INDICATES IN HIS

11/4/2012 JUDGMENT ENTRY THAT THIS REPORT SHOULD BE DISREGARD [SIC],

HOWEVER IT IS CLEAR THAT THIS REPORT FORMED THE BASIS OF BOTH THE

GUARDIAN AD LITEM’S MULTIPLE REPORTS OVER THE YEARS OF THIS CASE

AND THE MAGISTRATE’S DECISION OF 8/3/2010. THE TRIAL COURT’S DECISION

IS NOT REFLECTED IN THE TRANSCRIPT.

      {¶14} “V. THE TRIAL COURT’S DECISION WAS AGAINST THE MANIFEST

WEIGHT OF THE EVIDENCE WHEN IT TERMINATED THE SHARED PARENTING

PLAN AND DESIGNATED THE DEFENDANT/APPELLEE THE RESIDENTIAL

PARENT AND LEGAL CUSTODIAN OF THE PARTIES’ MINOR CHILD. THE TRIAL

COURT’S DECISION IS NOT REFLECTED IN THE TRANSCRIPT.”

                                      ANALYSIS

                                         I., V.

      {¶15} Mother argues in her first Assignment of Error the trial court abused its

discretion in finding that a change of circumstances had occurred and it was in the best
Stark County, Case No. 2012CA00232                                                      6


interests of the child to modify the custody arrangement. Mother argues in the fifth

Assignment of Error the decision to terminate the shared parenting plan and name

Father as the residential parent and legal custodian was against the manifest weight of

the evidence. We consider the first and fifth Assignments of Error together because

they are interrelated.

    Standard of Review: Modification of Designation of Residential Parent and Legal
                                      Custodian

        {¶16} A trial court enjoys broad discretion in custody proceedings. Cossin v.

Holley, 5th Dist. Morrow No. 2006 CA 0014, 2007–Ohio–5258, ¶ 28 citing Davis v.

Flickinger, 77 Ohio St.3d 415, 674 N.E.2d 1159 (1997), paragraph one of the syllabus.

A trial court's decision to terminate a shared parenting plan is reviewed under an abuse

of discretion standard. In re J.L.R., 4th Dist. Washington No. 08CA17, 2009–Ohio–

5812.    In order to find an abuse of discretion, we must determine the trial court's

decision was unreasonable, arbitrary or unconscionable and not merely an error of law

or judgment. Blakemore v. Blakemore, 5 Ohio St.3d 217, 450 N.E.2d 1140 (1983). A

judgment supported by some competent, credible evidence will not be reversed by a

reviewing court as against the manifest weight of the evidence. C.E. Morris Co. v. Foley

Construction Co., 54 Ohio St.2d 279, 376 N.E.2d 578 (1978). A reviewing court must

not substitute its judgment for that of the trial court where there exists some competent

and credible evidence supporting the judgment rendered by the trial court. Myers v.

Garson, 66 Ohio St.3d 610, 614 N.E.2d 742, 1993–Ohio–9.

        {¶17} R.C. 3109.04 governs modification of parental rights and responsibilities in

a shared-parenting decree. Fisher v. Hasenjager, 116 Ohio St.3d 53, 2007–Ohio–5589,

876 N.E.2d 546, ¶ 11. Subsections (E)(2)(c) and (d) state:
Stark County, Case No. 2012CA00232                                                      7


      (c) The court may terminate a prior final shared parenting decree that

      includes a shared parenting plan approved under division (D)(1)(a)(i) of

      this section upon the request of one or both of the parents or whenever it

      determines that shared parenting is not in the best interest of the children.

      The court may terminate a prior final shared parenting decree that

      includes a shared parenting plan approved under division (D)(1)(a)(ii) or

      (iii) of this section if it determines, upon its own motion or upon the request

      of one or both parents, that shared parenting is not in the best interest of

      the children. If modification of the terms of the plan for shared parenting

      approved by the court and incorporated by it into the final shared

      parenting decree is attempted under division (E)(2)(a) of this section and

      the court rejects the modifications, it may terminate the final shared

      parenting decree if it determines that shared parenting is not in the best

      interest of the children.

      (d) Upon the termination of a prior final shared parenting decree under

      division (E)(2)(c) of this section, the court shall proceed and issue a

      modified decree for the allocation of parental rights and responsibilities for

      the care of the children under the standards applicable under divisions

      (A), (B), and (C) of this section as if no decree for shared parenting had

      been granted and as if no request for shared parenting ever had been

      made.

      {¶18} We held in Wright I that pursuant to Fisher v. Hasenjager, 116 Ohio St.3d

53, 2007-Ohio-5589, 876 N.E.2d 546, if there is a change in designation of residential
Stark County, Case No. 2012CA00232                                                       8


parent and legal custodian of a child, the trial court is required to make a determination

that a change in circumstances has occurred, as well as finding that a modification is in

the best interest of the child, pursuant to R.C. 3109.05(E)(1)(a). Wright I, at ¶ 25 citing

Fisher, at ¶ 37.

                                Change in Circumstances

       {¶19} R.C. 3109.04(E)(1)(a) controls when a court modifies an order designating

the residential parent and legal custodian. The statute requires a court to find a change

in circumstances of the child, the child’s residential parent, or either of the parents

subject to a shared parenting decree before modifying a decree allocating parental

rights and responsibilities.

       {¶20} The trial court is “best able to view the witnesses and observe their

demeanor, gestures and voice inflections, and use these observations in weighing the

credibility of the proffered testimony.” Seasons Coal Co. v. Cleveland, 10 Ohio St.3d

77, 80, 461 N.E.2d 1273 (1984).        Therefore, deferential review in a child custody

determination is especially crucial “where there may be much evident in the parties'

demeanor and attitude that does not translate to the record well.” Davis v. Flickinger,

77 Ohio St.3d 415, 419, 1997–Ohio–260, 674 N.E.2d 1159.

       {¶21} R.C. 3109.04(E)(1)(a), provides, in pertinent part,

       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, [or] his residential parent, or either of the
Stark County, Case No. 2012CA00232                                                        9


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

       necessary to serve the best interest of the child. * * *

       {¶22} “Although R.C. 3109.04 does not provide a definition of the phrase

‘change in circumstances,’ Ohio courts have held that the phrase is intended to denote

‘an event, occurrence, or situation which has a material and adverse effect upon a

child.’“ Lewis v. Lewis, 12th Dist. Butler No. CA2001–09–209, 2002 WL 517991 (April

8, 2002), citing Rohrbaugh v. Rohrbaugh, 136 Ohio App.3d 599, 604–05, 737 N.E.2d

551 (7th Dist.2000). In order to warrant the abrupt disruption of the child's home life, the

change in circumstances must be one “of substance, not a slight or inconsequential

change.” Flickinger, 77 Ohio St.3d at 418, 674 N.E.2d 1159. “The purpose of requiring

a finding of a change in circumstances is to prevent a constant re-litigation of issues that

have already been determined by the trial court. * * * Therefore, the modification must

be based upon some fact that has arisen since the prior order or was unknown at the

time of the prior order.” Brammer v. Brammer, 194 Ohio App.3d 240, 955 N.E.2d 453,

2011–Ohio–2610, ¶ 17 (3rd Dist.), citing R.C. 3109.04(E)(1)(a).

       {¶23} Moreover, and as stated by the Ohio Supreme Court, “a trial judge must

have wide latitude in considering all the evidence” when making a determination of

change of circumstances. Flickinger, 77 Ohio St.3d at 418, 674 N.E.2d 1159. If a court

could not consider events as they continued to unfold once a custody motion is filed, the

trial court would be perpetually re-addressing new filings alleging a change in

circumstances due to the inevitable passage of time between the filing of the original

custody motion and the date of the hearing on the motion. This barrier is meant to

operate as the “domestic relations version of the doctrine of res judicata,” and is meant
Stark County, Case No. 2012CA00232                                                     10


to prevent the “constant relitigation of the same issues” adjudicated in prior custody

orders. Perz v. Perz, 85 Ohio App.3d 374, 376, 619 N.E.2d 1094 (1993).

       {¶24} The original shared parenting plan adopted in January 2009 named

Father as the residential parent for school purposes. It provided a rotating schedule

aligned with Father’s work schedule and a right of first refusal. By September 2009,

Mother and Father had filed separate motions for reallocation of parental rights and

responsibilities. In 2011, the trial court terminated the shared parenting plan. Father

was named the residential parent and legal custodian.          The parenting time was

delineated by a Schedule A.       The trial court denied a motion to stay while the

termination of the shared parenting plan was appealed to this Court, so that the parties

have been managing the custody arrangement pursuant to the trial court’s order, rather

than the shared parenting plan.

       {¶25} Upon remand pursuant to Wright I, the trial court held a limited evidentiary

hearing and reviewed the evidence from the previous hearing.             The trial court

determined the evidence showed five changes of circumstances.            First, since the

shared parenting plan was adopted in 2009, the parents both acknowledged the plan

was unworkable. The trial court, Guardian ad Litem, and counsel have all described

this case as a “high conflict case.” In an attempt to reduce the conflict, the trial court

ordered the parties to use the computer program, “Our Family Wizard,” to aid in

communication regarding E.W.       The trial court found the evidence showed Mother

stopped using the Family Wizard in February 2012, a second change in circumstances.

A third change in circumstance was the contentious relationship between Mother and

E.W.’s elementary school regarding the school’s communication with Mother, which the
Stark County, Case No. 2012CA00232                                                  11


trial court held had the potential to negatively impact E.W.’s education. The school

created a communication policy for students with custodial arrangements to

accommodate the communication difficulties with Mother.        The fourth change in

circumstance involved the division of parenting time for Father and Mother over the

Christmas holiday in 2009. Mother did not relinquish physical custody of E.W. to allow

Father to have his scheduled time with E.W. The trial court found Mother’s failure to

comply with the parenting time provisions of the shared parenting plan to be a change

of circumstance.   Finally, it was determined that during the pendency of the case,

Mother changed E.W.’s last name in the Summit County Probate Court without Father’s

knowledge. The order was reversed by the Summit County Probate Court upon the

Father’s motion.

       {¶26} A review of the record and the Guardian ad Litem’s reports shows this

case is indeed a “high conflict case.” Mother argues that while these events may have

occurred, these events do not constitute changes in circumstances because they were

not events, occurrences, or situations that have had a material and adverse effect upon

E.W. Mother argues the evidence upon remand showed that E.W. was a happy and

well-adjusted child. We note the shared parenting plan was terminated in 2011. Since

2011, the parties have been conducting their custodial arrangements with Father as the

residential parent and legal custodian. The Guardian ad Litem’s August 27, 2012 report

noted the conflict he observed in 2011 had been resolved due to the trial court’s

previous orders and restrictions.

       {¶27} Mother argues on appeal the trial court erred in finding there were

changes of circumstances warranting a termination of the shared parenting plan.
Stark County, Case No. 2012CA00232                                                       12


Mother, however, originally filed a motion for reallocation of parental rights and

responsibilities arguing change in circumstances. The record in this case supports the

trial court’s conclusion that substantial events have occurred that have or may have an

adverse effect on E.W. We defer to the trial court’s interpretation of the evidence as it

observed first-hand the witnesses and their demeanor.

                                Best Interest of the Children

       {¶28} If a change of circumstances is established, the trial court must weigh the

best interest of the children before modifying a residential-parent designation. R.C.

3109.04(F) sets forth the factors a trial court must consider in determining the best

interest of the child:

       R.C. 3109.04(F)(1) requires the trial court consider all relevant factors. These

       factors include, but are not limited to:

       (a) The wishes of the child's parents regarding the child's care;

       (b) If the court has interviewed the child in chambers pursuant to division (B) of

       this section regarding the child's wishes and concerns as to the allocation of

       parental rights and responsibilities concerning the child, the wishes and concerns

       of the child, as expressed to the court;

       (c) 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;

       (d) The child's adjustment to the child's home, school, and community;

       (e) The mental and physical health of all persons involved in the situation;

       (f) The parent more likely to honor and facilitate court-approved parenting time

       rights or visitation and companionship rights;
Stark County, Case No. 2012CA00232                                                    13


       (g) 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;

       (h) Whether either parent or any member of the household of 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 * * *;

       (i) 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;

       (j) Whether either parent has established a residence, or is planning to establish

       a residence, outside this state.

R.C. 3109.04(F)(1)(a)-(j). Furthermore, in determining whether shared parenting is in

the best interest of the child, the trial court shall also consider additional factors

including, but not limited to:

       (a) The ability of the parents to cooperate and make decisions jointly, with

       respect to the [child];

       (b) The ability of each parent to encourage the sharing of love, affection, and

       contact between the child and the other parent;

       (c) Any history of, or potential for, child abuse, spouse abuse, other domestic

       violence, or parental kidnapping by either parent;

       (d) The geographic proximity of the parents to each other, as the proximity

       relates to the practical considerations of shared parenting;
Stark County, Case No. 2012CA00232                                                       14


      (e) The recommendation of the guardian ad litem of the child, if the child has a

      guardian ad litem.

R.C. 3109.04(F)(2).

      {¶29} The magistrate’s original decision on August 3, 2010 considered the best

interests of E.W. It weighed the factors and found it was in the best interests of E.W.

that the shared parenting plan be terminated and Father named the residential parent

and legal custodian. Upon remand, the trial court reviewed the original decision and

modified it based on the passage of time. The trial court stated it would not consider as

evidence a psychological evaluation performed six years ago. The trial court conducted

an in camera interview with E.W., wherein the child stated he wished to reside with

Mother and visit Father. The trial court found E.W. did not articulate a reason for his

wishes.   The Guardian ad Litem in this case repeatedly recommended through his

reports and testimony that the shared parenting plan be terminated and custody be

awarded to Father.

      {¶30} We find no abuse of discretion in the trial court’s conclusion that it is in the

best interests of E.W. that Father is named the residential parent and legal custodian.

The magistrate decision thoroughly analyzed the factors and the findings were

supported by the record. The most significant factor in this case was the parents’

inability to cooperate or make joint decisions for the benefit of E.W. The inability to

make joint decisions ranged from E.W.’s education to E.W.’s health care. Further, the

record supports the decision that Father would more likely facilitate the parenting time

schedule, based on Mother’s previous denial of Father’s parenting time.

                                    Manifest Weight
Stark County, Case No. 2012CA00232                                                              15


         {¶31} Mother argues the decision was against the manifest weight of the

evidence. A judgment supported by some competent, credible evidence will not be

reversed by a reviewing court as against the manifest weight of the evidence. C.E.

Morris Co. v. Foley Construction Co., 54 Ohio St.2d 279, 376 N.E.2d 578 (1978). A

reviewing court must not substitute its judgment for that of the trial court where there

exists some competent and credible evidence supporting the judgment rendered by the

trial court. Myers v. Garson, 66 Ohio St.3d 610, 1993–Ohio–9,614 N.E.2d 742.

         {¶32} We have reviewed the record and based on our findings above, we find

the decision to terminate the shared parenting plan was supported by competent and

credible evidence.

         {¶33} Mother’s first and fifth Assignments of Error are overruled.

                                               II.

         {¶34} Mother argues in her second Assignment of Error the trial court abused its

discretion when it failed to remove the Guardian ad Litem for E.W. based on the GAL’s

failure to comply with Sup.R. 48. We disagree.

         {¶35} Sup.R. 48 governs guardian ad litem standards in Ohio and sets statewide

standards     regarding   the   appointment,         responsibilities,   training   and   reporting

requirements of guardians ad litem. Mother argues the GAL failed to meet the minimum

standards set forth by Sup.R. 48 and his evidence should not be considered by the trial

court.

         {¶36} The GAL was originally appointed on November 11, 2004. The trial court

reappointed the GAL on September 30, 2008, September 23, 2009, and May 8, 2012.

The GAL filed reports on March 28, 2005, January 5, 2009, January 11, 2010, May 3,
Stark County, Case No. 2012CA00232                                                        16


2012, and August 27, 2012. The reports outline the individuals the GAL interviewed

including Mother, Father, E.W., and school employees and the records the GAL

reviewed such as the school records, medical records, police records, Summit County

Probate Court records, emails, Family Wizard, and tape recordings.            Based on his

investigation, the GAL repeatedly concluded the shared parenting plan should be

terminated.

       {¶37} The record shows the GAL complied with the requirements of Sup.R. 48

during the pendency of this case. We find no abuse of discretion for the trial court to

deny the motion to remove the GAL.

       {¶38} Mother’s second Assignment of Error is overruled.

                                             III.

       {¶39} Mother argues in her third Assignment of Error the trial court erred in

failing to appoint a separate attorney for E.W. because the child expressed different

wishes for his custodial arrangement than that recommended by the Guardian ad Litem.

       {¶40} On August 28, 2012, Mother filed a motion for separate legal counsel to

be appointed for E.W. She argued pursuant to Sup.R. 48 and Civ.R. 75, the trial court

should appoint separate legal counsel for the child when the child’s wishes conflict with

the GAL’s recommendation for custody.               The trial court denied the motion on

September 19, 2012.

       {¶41} Sup.48(D)(8) states: “When a guardian ad litem determines that a conflict

exists between the child's best interest and the child's wishes, the guardian ad litem

shall, at the earliest practical time, request in writing that the court promptly resolve the

conflict by entering appropriate orders.” The GAL reported in his August 27, 2012
Stark County, Case No. 2012CA00232                                                    17


updated GAL report that E.W. stated a preference for spending more time with Mother.

He said he was bored at Father’s home and enjoyed seeing his older sister (who lives

with Mother). At the time of the GAL interview, E.W. was 10 years old. At the October

11, 2012 trial, the GAL testified:

       Q. [E.W.] has expressed to you that…his desires are contrary to what your

       report recommends, has he not?

       A. He has expressed inconsistent desires to me.

       Q. (Agreeing). His most recent desire expressed to you, since the time

       the trial ended, is inconsistent with your report, is it not?

       A. He has expressed …

       Q. The answer is yes or no.

       A. Inconsistent preferences. So, no matter what I recommend, he would

       have some expression of opinion or preference that would be inconsistent.

       It would be impossible to have a recommendation to the Court, that would

       be consistent with the opinion [E.W.] expressed to me.

       Q. So, you don’t, do you believe there’s a conflict with, between um…what

       you recommend and what [E.W.] wants?

       A. No, I don’t.

(October 11, 2012 Hearing, T. 35-36).

       {¶42} The trial court conducted an in camera interview with E.W.            In its

November 14, 2012 judgment entry, the trial court found: “The Court has also

considered the wishes of the child as expressed in the in-camera interview and found
Stark County, Case No. 2012CA00232                                                      18


him to be competent to express his wishes. [E.W.] expressed a desire to reside with his

mother and visit his father. [E.W.] was unable to articulate the reasons for his wishes.”

       {¶43} Courts should make a determination, on a case-by-case basis, whether

the child actually needs independent counsel, taking into account the maturity of the

child and the possibility of the child's guardian ad litem being appointed to represent the

child. In re Williams, 101 Ohio St.3d 398, 2004–Ohio–1500, 805 N.E., 2d 1110. In this

case, the GAL did not feel there was a conflict between what E.W. desired and the GAL

recommended. The GAL had been with E.W. since 2004 and was knowledgeable of

the history of the case. The trial court confirmed the GAL’s recommendation with his

separate in camera interview with E.W. Considering the age of E.W. at the time he

stated his preference and the history of this case, we find no abuse of discretion in

denying the motion for appointment of separate counsel.

       {¶44} Mother’s third Assignment of Error is overruled.

                                            IV.

       {¶45} Mother asserts in her fourth Assignment of Error that the trial court

erroneously considered the 2006 psychological evaluation of the family by Dr. Tully

when making its decision to terminate the shared parenting plan. We disagree.

       {¶46} The trial court’s November 14, 2012 judgment entry stated:

       The findings of fact issued in the Magistrate’s Decision are approved,

       adopted and incorporated herein with two exceptions. The court finds that

       any reference or reliance upon Dr. Tully’s psychological evaluation

       performed six years ago should be disregarded in that it is not in evidence

       at this time. * * *
Stark County, Case No. 2012CA00232                                                     19


       {¶47} The trial court was required not only to consider the best interests of the

child in making its decision to terminate the shared parenting plan, but also whether

there was a change in circumstances.          The change in circumstances evidence

presented to the trial court occurred after the 2006 psychological examination. This

Court has recently held in Nicely v. Weaver, 5th Dist. Stark No. 2012 CA 00134, 2013-

Ohio-1621, ¶ 22, “* * * in a bench trial, a trial court judge is presumed to know the

applicable   law    and    apply   it   accordingly.   Walczak     v.   Walczak,    Stark

App.No.2003CA00298, 2004–Ohio–3370, ¶ 22, citing State v. Eley (1996), 77 Ohio

St.3d 174, 180–181, 672 N.E.2d 640. In this instance, the trial court is thus afforded the

presumption that it was capable of distinguishing the pre–2007 foundational information

from the main body of evidence in reaching its decision.”

       {¶48} We likewise afford the trial court the presumption that it did not consider

the 2006 psychological examination in making its decision.

       {¶49} Mother’s fourth Assignment of Error is overruled.
Stark County, Case No. 2012CA00232                                                20


                                   CONCLUSION

       {¶50} Based on the above findings, the five Assignments of Error of Plaintiff-

Appellant Leesa Lloyd Wright are overruled.

       {¶51} The judgment of the Stark County Court of Common Pleas, Domestic

Relations Division is affirmed.

By: Delaney, J.,

Hoffman, P.J. and

Farmer, J., concur.



                                       HON. PATRICIA A. DELANEY




                                       HON. WILLIAM B. HOFFMAN



                                       HON. SHEILA G. FARMER
