[Cite as Haskett v. Haskett, 2013-Ohio-145.]


                                    IN THE COURT OF APPEALS

                                ELEVENTH APPELLATE DISTRICT

                                         LAKE COUNTY, OHIO


BARBARA J. HASKETT,                               :      OPINION

                 Plaintiff-Appellee,              :
                                                         CASE NO. 2011-L-155
        - vs -                                    :

JAMES M. HASKETT,                                 :

                 Defendant-Appellant.             :


Civil Appeal from the Lake County Court of Common Pleas, Domestic Relations
Division, Case No. 07 DR 000703.

Judgment: Affirmed.


Russell R. Kubyn, The Kubyn Law Firm, 8373 Mentor Avenue, Mentor, OH 44060 (For
Plaintiff-Appellee).

Judson J. Hawkins, Parkhill Professional Building, 35104 Euclid Avenue, Suite 101,
Willoughby, OH 44094 (For Defendant-Appellant).



MARY JANE TRAPP, J.

        {¶1}     Appellant, James M. Haskett, appeals from two judgment entries of the

Lake County Court of Common Pleas, Domestic Relations Division, denying his motions

to terminate spousal support and to modify parental rights and responsibilities. His

motions were primarily based on allegations that Mrs. Haskett had entered in a

marriage-like relationship with another man. The trial court held a trial on both matters

and found that appellee, Barbara Haskett, had not in fact entered into a marriage-like
relationship with this other man.      The trial court further found that no change of

circumstances had occurred to warrant a reallocation of parental responsibilities.

Because the trial court’s findings are supported by competent, credible evidence, we

affirm the decision of the Lake County Court of Common Pleas, Domestic Relations

Division.

       Substantive Facts and Procedural History

       {¶2}   Barbara Haskett filed a complaint for divorce in October 2007. In the

interim period between the complaint for divorce and the final decree, the Hasketts lived

separately. But, two months before the final decree and a shared parenting plan were

filed on October 26, 2010, Mrs. Haskett and her male friend, Terry Lewis, began to live

together, joined by the Haskett children. Mrs. Haskett and Mr. Lewis jointly signed a

lease and lived together for just over a year. Mrs. Haskett and Mr. Lewis split the rent

and shared household expenses, occasionally engaging in sexual activity. Mrs. Hasket

described the relationship as one more akin to roommates than spouses.

       {¶3}   The Hasketts have shared parenting of their two children, but Mrs. Haskett

is the residential parent for school purposes.

       {¶4}   A mere nine days after the final decree, Mr. Haskett filed motions to

modify parental rights and responsibilities and to terminate spousal support.             Mr.

Haskett alleged that Mrs. Haskett had entered into a marriage-like relationship with

another man, triggering a termination of the spousal support clause contained in the

divorce decree. The trial court dismissed these motions on April 22, 2011, “due to a

failure of service upon the Plaintiff to invoke the continuing jurisdiction of the Court.” Mr.




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Haskett had incorrectly served Mrs. Haskett pursuant to Civ.R. 5, instead Civ.R. 4, as

required by Civ.R. 75(J).

       {¶5}   On April 26, 2011, Mr. Haskett re-filed his motions, serving Mrs. Haskett

pursuant to Civ.R. 4, instead of Civ.R. 5.        One month later, Mr. Haskett served

discovery upon Mrs. Haskett pursuant to Civ.R. 4.        Mr. Haskett did not serve Mrs.

Haskett’s attorney until July 8, 2011, as indicated by his notice of service filed that day.

Mrs. Haskett filed her discovery responses on July 6, 2011. Believing that Mrs. Haskett

had failed to timely respond to his discovery requests, Mr. Haskett filed motions to

confirm admissions and for an in camera interview of the minor children. In response

to the request for in camera interview, Mrs. Hasket filed a motion for appointment of a

Guardian ad Litem (“GAL”), 14 days prior to trial. The trial court granted Mrs. Haskett’s

motion, appointing a GAL for the limited purpose of being present during the interview.

       {¶6}   On September 12, 2011, the trial court held both an in camera interview

with the children and a trial, at which both Mr. and Mrs. Haskett testified.         At the

completion of trial, Mrs. Haskett moved the trial court to dismiss both motions. The trial

court immediately dismissed the motion to reallocate parental rights and responsibilities,

stating that Mrs. Haskett “believes a change has not occurred in the circumstances of

the children, the child’s residential parent or either parent, which is required by statute

and the evidence overwhelmingly supports [the] motion [to dismiss].” The trial court did

not issue a ruling on the motion to terminate spousal support that day.

       {¶7}   Subsequently, the trial court issued two judgment entries. The first

reiterated the denial of the motion to reallocate parental rights and responsibilities, and

stated that the “Court finds Father failed to sustain his statutory burden of proof to show




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a change in circumstances occurred pursuant to Rev. Code 3109.04(E)(1)(a) set forth

hereinabove, as to Father, Mother or the children to warrant modification of the Shared

Parenting Plan. * * * The in camera review was held prematurely, and is irrelevant since

the consideration of the children’s best interest was not required by statute.”

         {¶8}    The second judgment entry denied the motion to terminate spousal

support, and stated that the “Court finds Father did not sustain his burden of proof by a

preponderance of the evidence that Mother was living in a state akin to marriage with

Mr. Lewis from August 15, 2010 to September 3, 2011.              Finally, the Court notes

Mother’s acquiring a roommate to share expenses began more than two months prior to

the decree of divorce even being filed.”

         {¶9}    Mr. Haskett timely appealed and now brings the following assignments of

error:

         {¶10} “[1.] The trial court committed prejudicial error when it ruled that service

pursuant to Civ.R. 75(J) and Civ.R. 4 was insufficient to obtain personal jurisdiction over

Appellee for motions to terminate spousal support and to modify parental rights and

responsibilities.”

         {¶11} “[2.] The trial court committed prejudicial err [sic] by refusing to consider

Appellee’s admissions that she had entered into a marriage like relationship as an

admission of fact.”

         {¶12} “[3.] The trial court committed prejudicial error by limiting the role of the

children’s attorney and Guardian Ad Litem soley to attending the in camera review of

the children.”




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        {¶13} “[4.] The trial court committed prejudicial error when it ruled that the stated

desires of the children for a change in custody did not constitute a substantial change in

circumstances sufficient to require a determination of the best interests of the children.”

        {¶14} “[5.] The trial court abused its discretion by limiting the guardian at litem’s

representation of the children solely to attendance of the in camera interview.”

        {¶15} Because assignments of error three and five raise the same issues, we

will consider them together at the conclusion of our opinion.

        Service was Insufficient

        {¶16} In his first assignment of error, Mr. Haskett argues that the trial court erred

in determining that he had improperly served the April 26, 2011 motions on Mrs.

Haskett. Because we find that by the time Mr. Haskett had re-filed the motions on April

26, 2011, the continuing jurisdiction of the trial court had already been invoked, he erred

in serving the motions on Mrs. Haskett on April 26, 2011 pursuant to Civ.R. 4; he was

required to perfect service pursuant to Civ.R. 5. Therefore, the trial court did not err in

its determination that service was insufficient.

        Standard of Review

        {¶17} The application of a civil rule is a question of law, which we review de

novo.    See Larson v. Larson, 3d Dist. No. 13-11-25, 2011-Ohio-6013, ¶8, citing

Wedermeyer v. U.S.S. F.D.R. (CV-42) Reunion Assoc., 3d Dist. No. 1-09-57, 2010-

Ohio-1502. See also Gumins v. Ohio Dept. of Rehab. & Corr., 10th Dist. No. 10AP-941,

2011-Ohio-3314, ¶11.




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       Civ.R. 4 versus Civ.R. 5

       {¶18} In domestic relations cases,“[t]he continuing jurisdiction of the court shall

be invoked by motion filed in the original action, notice of which shall be served in the

manner provided for the service of process under Civ. R. 4 to 4.6. When the continuing

jurisdiction of the court is invoked pursuant to this division, the discovery procedures set

forth in Civ. R. 26 to 37 shall apply.”      Civ.R. 75(J).   Civ.R. 4 mandates that the

defendant or non-moving party himself be served, not his attorney. If a moving party

serves notice of a post-decree motion on the non-moving party’s attorney but not on the

party himself, continuing jurisdiction of the court has not been properly invoked. See

Borland v. Borland, 11th Dist. No. 89-T-4211, 1990 Ohio App. LEXIS 935, *3 (Mar. 16,

1990), citing Hansen v. Hansen, 21 Ohio App.3d 216 (3d Dist.1985).                See also

Szymczak v. Szymczak, 136 Ohio App.3d 706 (8th Dist.2000).

       {¶19} Once an action has been initiated, or the continuing jurisdiction of a court

invoked, service must be perfected pursuant to Civ.R. 5, which governs “Service and

Filing of Pleadings and Other Papers Subsequent to the Original Complaint.” “If a party

is represented by an attorney, service under this rule must be made on the attorney

unless the court orders service on the party.” Civ.R. 5(B)(1)

       {¶20} When Mr. Haskett re-filed his motions on April 26, 2011, the continuing

jurisdiction of the trial court had already been invoked. Pending matters before the

court included Mrs. Haskett’s motions to show cause and for attorney fees in relation to

Mr. Haskett’s failure to pay child support, which had been filed on April 15, 2011. It was

those motions of Mrs. Haskett that invoked the continuing jurisdiction of the court.




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       {¶21} Mrs. Haskett was at the time represented by counsel, therefore, Mr.

Haskett was required to serve his re-filed motions to Mrs. Haskett’s attorney, pursuant

to Civ.R. 5. Instead, he served Mrs. Haskett herself, according to Civ.R. 4. While it is

true that a party must serve the opposing party pursuant to Civ.R. 4 in order to invoke

the continuing jurisdiction of the court for purposes of child support modification, if

continuing jurisdiction has already been invoked, Civ.R. 5 delineates the required

service process. See Stokes v. Meimaris, 11th Dist. No. 91-T-4606, 1993 Ohio App.

LEXIS 6077, *5 (Dec. 17, 1993), and In re Seitz, 11th Dist. No. 2002-T-0097, 2003-

Ohio-5218, ¶17. Service was not perfected on Mrs. Haskett’s attorney, as Civ.R. 5

requires, until July 8, 2011. Therefore, the trial court did not err in determining that Mr.

Haskett had failed to properly serve Mrs. Haskett until July 8, 2011.             The first

assignment of error is without merit.

       Request for Admissions

       {¶22} In his second assignment of error, Mr. Haskett argues that the trial court

erred in denying his motion to confirm Mrs. Haskett’s admissions. He essentially argues

that because Mrs. Haskett belatedly responded to his request for admissions, they

should be deemed unanswered and thus admitted pursuant to Civ.R. 36(A)(1).

       {¶23} Because we find the trial court did not err in finding that Mr. Haskett had

failed to properly perfect service of the motions on Mrs. Haskett, via her attorney, until

July 8, 2011, Mrs. Haskett was not, in fact, delayed in providing responses to Mr.

Haskett’s discovery requests. We agree with the trial court when it stated that “[d]ue to

Father’s failure to comply with the Rules of Civil Procedure for service of his motions,

Father’s interrogatories and request for admissions filed May 26, 2011 shall not be




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considered. Said discovery was served by Father’s counsel to Mother’s attorney who

had not yet been served with the underlying April 26 motions. See the Eleventh District

Court of Appeals case of J.P. Morgan Chase & Co. v. Industrial Power Generation,

LTD, [11th Dist. No. 2007-T-0026,] 2007 Ohio App LEXIS 5293 [(Nov. 9, 2007)].”

Therefore, the trial court did not err in refusing to consider “silent admissions” as

admissions in fact for purpose of the trial, and the second assignment of error is without

merit.

         {¶24} We note that even if they were deemed admitted, it is well within the trial

court’s discretion to allow the withdrawal of admissions in the interest of justice. Civ.R.

36(B) states, in relevant part, that: “Any matter admitted under this rule is conclusively

established unless the court on motion permits withdrawal or amendment of the

admission. Subject to the provisions of Civ.R. 16 governing modification of a pretrial

order, the court may permit withdrawal or amendment when the presentation of the

merits of the action will be subserved thereby and the party who obtained the admission

fails to satisfy the court that withdrawal or amendment will prejudice the party in

maintaining his action or defense on the merits.”

         {¶25} Mrs. Haskett’s challenge to the truth of such admissions during the trial

proceedings satisfied the requirements of Civ.R. 36(B) for withdrawal of admissions,

and it was well within the court’s discretion to permit such withdrawal, if indeed they had

been admitted in the first place. See Balson v. Dodds, 62 Ohio St.2d 287, 291, fn. 2

(1980) (“Civ. R. 36(B) does not require that a written motion be filed, nor does it specify

when such motion must be filed. Thus, the rule leaves such matters to the discretion of

the trial court. Herein, the trial court could reasonably find that, by contesting the truth of




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the Civ.R. 36(A) admissions for the purposes of summary judgment, appellee satisfied

the requirement of Civ.R. 36(B) that she move the trial court to withdraw or amend

these admissions”).

       No Change in Circumstances

       {¶26} In his fourth assignment of error, Mr. Haskett contends that the trial court

erred when it ruled that no substantial change in circumstances had taken place to

trigger a best interest analysis. Mr. Haskett argues that the stated desire of his children

to live with him is sufficient enough to meet the first prong of the analysis when

considering a reallocation of parental rights and responsibilities.          A review of the

evidence presented at trial and the law related to the definition of “change of

circumstances” reveals that the trial court did not err in its determination that Mr.

Haskett had not met his burden and thus no further analysis was necessary.

       Standard of Review

       {¶27} “In reviewing matters involving the allocation of parental rights and

responsibilities of minor children, a trial court is vested with broad discretion; thus, a trial

court’s decision will be reversed only upon a showing of an abuse of discretion.” Dexter

v. Dexter, 11th Dist. No. 2006-P-0051, 2007-Ohio-2568, ¶11, citing Miller v. Miller, 37

Ohio St.3d 71, 74 (1988); Davis v. Flickinger, 77 Ohio St.3d 415, 418 (1997).

       {¶28} As this court recently stated, the term “abuse of discretion” is one of art,

“connoting judgment exercised by a court, which does not comport with reason or the

record.” State v. Underwood, 11th Dist. No. 2008-L-113, 2009-Ohio-2089, ¶30, citing

State v. Ferranto, 112 Ohio St. 667, 676-678 (1925). The Second Appellate District

also recently adopted a similar definition of the abuse-of-discretion standard: an abuse




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of discretion is the trial court’s “failure to exercise sound, reasonable, and legal

decision-making.” State v. Beechler, 2d Dist. No. 09-CA-54, 2010-Ohio-1900, ¶62,

quoting Black's Law Dictionary (8 Ed.Rev.2004) 11.            When an appellate court is

reviewing a pure issue of law, “the mere fact that the reviewing court would decide the

issue differently is enough to find error (of course, not all errors are reversible. Some

are harmless; others are not preserved for appellate review). By contrast, where the

issue on review has been confined to the discretion of the trial court, the mere fact that

the reviewing court would have reached a different result is not enough, without more,

to find error.” Id. at ¶67.

       {¶29} Furthermore, “[d]eference to the trial court on matters of credibility ‘is even

more crucial in a child custody case, where there may be much evident in the parties’

demeanor and attitude that does not translate to the record well.’” (Emphasis sic.)

Dexter, supra, at ¶11, quoting Davis at 418.

       R.C. 3109.04

       {¶30} R.C. 3109.04(E)(1)(a), which governs the modification of a prior order

allocating parental rights and responsibilities, provides, in 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, the child's residential parent, or either of the parents * * *

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




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decree * * * unless a modification is in the best interest of the child and one of the

following applies:

       {¶31} “(i) The residential parent agrees to a change in the residential parent * * *.

       {¶32} “(ii) The child, with the consent of the residential parent * * * has been

integrated into the family of the person seeking to become the residential parent.

       {¶33} “(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.”

       {¶34} This statute sets forth the procedure for modifying a prior decree allocating

parental rights and responsibilities for the care of children. “In order to modify a prior

decree, R.C. 3109.04(E)(1)(a) mandates a finding (1) of a change in circumstances; (2)

that the modification is necessary to serve the best interest of the child; and (3) that the

harm resulting from the change will outweigh the benefits of not changing.” Makuch v.

Bunce, 11th Dist. No. 2007-L-016, 2007-Ohio-6242, ¶11.

       {¶35} A change of circumstances “is intended to denote an event, occurrence, or

situation which has a material and adverse effect upon a child.” Schiavone v. Antonelli,

11th Dist. No. 92-T-4794, 1993 Ohio App. LEXIS 5891, *9 (Dec. 10, 1993), citing Wyss

v. Wyss, 3 Ohio App.3d 412 (10th Dist.1982).         Furthermore, “there is a rebuttable

presumption that retaining the residential parent designated in the prior decree is in the

child’s best interest.” Foxhall v. Lauderdale, 11th Dist. No. 2011-P-0006, 2011-Ohio-

6213, ¶31, citing Elam v. Elam, 12th Dist. No. CA2011-02-028, 2011 Ohio App. LEXIS

5472, *4 (Dec. 10, 2001).

       {¶36} Although the trial judge conducted the proceedings in connection with the

motion for reallocation of parental rights and responsibilities out of order (she conducted




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an in camera review first, and then held a trial), the result was not in error. At trial, Mr.

Haskett had the burden of demonstrating a substantial change in circumstances had

occurred in order to warrant consideration of the best interests of the children and a

possible change in their placement.        He failed to demonstrate such a change in

circumstances.

       {¶37} At trial, Mr. Haskett pointed to the fact that Mrs. Haskett had moved in with

Mr. Lewis. However, this occurred two months before the filing of the final decree and

shared parenting plan, to which Mr. Haskett was a signatory. As the statute makes

clear, any change of circumstances must arise since the prior decree in order to meet

the first prong of the analysis. Furthermore, and as we have repeatedly held, a best

interest determination will not take place unless and until the movant has demonstrated

a change in circumstances. See, e.g., Stevenson v. Kotnik, 11th Dist. No. 2010-L-063,

2011-Ohio-2585. Because Mrs. Haskett’s living arrangement with Mr. Lewis began well

before the prior decree declaring her the residential parent, no change in circumstances

has arisen since the prior decree.

       {¶38} Mr. Haskett suggests that the children have expressed a preference to live

with him, and that this constitutes a sufficient change in circumstances. The trial record

is devoid of evidence on this point. Further, “the wishes of the child are only one factor

that the trial court shall consider in determining the best interest of the child,” they are

not necessarily a circumstantial trigger. Stevenson at ¶52.

       {¶39} Credible and competent evidence exists to support the trial court’s

determination. Mr. Haskett failed to prove a change of circumstances had occurred




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since the prior decree, therefore the trial court was not obliged to continue on with a

best interests analysis. Assignment of error four is without merit.

       Appointment of the GAL

       {¶40} In his third and fifth assignments of error, Mr. Haskett argues that the trial

court erred in limiting the role of the GAL to the in camera review portion of the

proceedings. However, Mr. Haskett fails to elucidate how the GAL should have been

involved and in what way the trial court impermissibly limited the GAL’s participation.

He seems to suggest that the GAL was also appointed as counsel for the minor

children, however, there is no evidence in the record of this appointment. “[A]bsent an

express dual appointment, courts should not presume a dual appointment when the

appointed guardian ad litem is also an attorney.” In re Janie M., 131 Ohio App.3d 637,

639 (6th Dist.1999), citing In re Duncan/Walker Children, 109 Ohio App.3d 841, 844-

845 (1996), and In re Kenneth R., 6th Dist. No. L-97-1435, 1998 Ohio App. LEXIS 5669

(Dec. 4, 1998).

       {¶41} Mr. Haskett filed a motion for in camera interview of the children, but did

not request a GAL be appointed. Mrs. Haskett, two weeks before trial, was the one to

file a motion requesting the GAL’s appointment. The trial court granted the motion, but

limited the appointment to the purpose of being present during the in camera interview.

       {¶42} Regardless of Mr. Haskett’s criticisms regarding the GAL’s role or lack

thereof, the issue is moot. Mr. Haskett was unable to demonstrate that a change of

circumstances had occurred, which is the trigger for a full best interests investigation

under R.C. 3109.04. The trial court noted in its judgment entry that the “in camera

interview was held prematurely, and is irrelevant since a consideration of the children’s




                                            13
best interests was not required by statute.” We agree, and therefore, are unable to see

any error in limiting the GAL’s role, given the limited nature of the inquiry to begin with.

Assignments of error three and five are without merit, and the judgments of the Lake

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



DIANE V. GRENDELL, J.,

CYNTHIA WESTCOTT RICE, J.,

concur.




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