[Cite as Cure v. Cure, 2012-Ohio-2966.]




               IN THE COURT OF APPEALS FOR CLARK COUNTY, OHIO

ANDREW V. CURE                                     :

        Plaintiff-Appellee                         : C.A. CASE NO.        2011 CA 73

v.                                                 : T.C. NO.      06DR890

MARY M. CURE                                       :     (Civil appeal from Common
                                                         Pleas Court, Domestic Relations)
        Defendant-Appellant                        :

                                                   :

                                           ..........

                                           OPINION

                         Rendered on the    29th       day of      June     , 2012.

                                           ..........

TERRI L. PARMLEY, Atty. Reg. No. 0040653, 333 N. Limestone Street, Suite 205,
Springfield, Ohio 45503
       Attorney for Plaintiff-Appellee

L. ANTHONY LUSH, Atty. Reg. No. 0046565, 2160 Kettering Tower, Dayton, Ohio
45423
      Attorney for Defendant-Appellant

                                           ..........

FROELICH, J.

                {¶ 1} Mary M. Cure appeals from a judgment of the Common Pleas Court
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of Clark County, Domestic Relations Division, which granted Andrew Cure’s motion for a

reallocation of parental rights of their minor son, named Mr. Cure as the residential parent,

found Ms. Cure in contempt of court, and imposed a suspended sentence on the condition

that Ms. Cure comply with the court’s orders in the future.

       {¶ 2}     For the reasons discussed below, we conclude that the trial court did not

abuse its discretion in modifying the Cures’ parental rights or in finding Ms. Cure in

contempt.

                                Facts & Procedural History

       {¶ 3}     The Cures were married for less than three years and were separated

multiple times before their divorce in 2008. They had one son, who was born prior to

their marriage and was five years old at the time of the divorce. Pursuant to the divorce

decree, Ms. Cure was named as the residential parent, and Mr. Cure was awarded

visitation. After the divorce, the parties lived near one another in Clark County. Ms.

Cure was also the residential parent of another child, a daughter from a previous marriage;

the daughter’s father also had visitation and lived nearby.

       {¶ 4}     In June 2011, Ms. Cure moved to a home she had recently purchased in

Lebanon, Ohio. She lived there with her boyfriend, John Haynes, who was a Hamilton

County Sheriff’s Deputy and was required to live within 30 miles of the Hamilton County

Justice Center. At the time of Ms. Cure’s move, Mr. Haynes was married to Stacy

Haynes, and no complaint for divorce had been filed. Ms. Cure’s residence in Lebanon

was more than an hour away from Mr. Cure’s residence, which made it difficult for him to

exercise his mid-week visitation with their son, who was 8 years old.
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        {¶ 5}     Mr. Cure filed motions for reallocation of parental rights and to show

cause why Ms. Cure should not be held in contempt. The motion for reallocation of

parental rights focused on the instability created by Ms. Cure’s dating habits and Mr.

Cure’s concern about his son’s exposure to Mr. Haynes; while the motion was pending,

the court ordered that Mr. Haynes should not spend any unsupervised time alone with the

child. The motion for a finding of contempt initially focused on Ms. Cure’s failure to

inform Mr. Cure of the move, but, as the case unfolded, the court also considered Mr.

Cure’s claim that Ms. Cure was in contempt for allowing their son to be alone with Mr.

Haynes, contrary to the court’s interim order. Brian Gartin, the father of Ms. Cure’s

daughter, also filed a motion for reallocation of parental rights (Case No. 02-DS-0077).

By agreement of the parties, the motions of Mr. Cure and Mr. Gartin were heard together

by the trial court.

        {¶ 6}     The court held a hearing on August 2, 4, 16 and 18, 2011. The trial court

granted Mr. Cure’s motion for reallocation of parental rights, named Mr. Cure the

residential parent, set visitation for Ms. Cure, and ordered Ms. Cure to pay child support.

 It also found Ms. Cure in contempt of court for permitting the Cures’ son to be in the

presence of Mr. Haynes, unsupervised. The court imposed a 30-day jail sentence for the

contempt, but suspended the sentence on the condition that Ms. Cure comply with the

court’s continuing order that the child not be left alone with Mr. Haynes. Mr. Gartin’s

motions for reallocation of parental rights and for a finding of contempt were also granted,

but those judgments are not relevant to this appeal.

        {¶ 7}     Ms. Cure appeals, raising three assignments of error.      The first two
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assignments relate to separate prongs of the standard for reallocation of parental rights; as

such, we will address them together.

                              Reallocation of Parental Rights

       {¶ 8}      Ms. Cure’s first and second assignments of error state:

                The trial court abused its discretion in finding that there was a

       substantive change of circumstances.

                The trial court next abused its discretion in finding that there

       was a substantial change of circumstances and it would be in the best

       interest of the child to reallocate custody.

         {¶ 9} Ms. Cure argues that the trial court did not properly find a change of

  circumstances or that it would be in the best interest of the child to change custody, as

  required to reallocate parental rights.

         A. Standard of Review

         {¶ 10}          In order to prevail on a motion for reallocation of parental rights,

  the movant must demonstrate that (1) there has been a change in the circumstances of

  the child or the residential parent, (2) modification of the existing custody decree is

  necessary to serve the child’s best interest, and (3) the harm likely to be caused to the

  child by a change of environment is outweighed by the advantages of the change of

  environment. R.C. 3109.04(E)(1)(a); Chaney v. Chaney, 2d Dist. Montgomery No.

  24880, 2012-Ohio-626, ¶ 10.

       {¶ 11}     A change in circumstances must be one of substance, not slight or

inconsequential, to justify modifying a prior custody order. Davis v. Flickinger, 77 Ohio
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St.3d 415, 418, 674 N.E.2d 1159 (1997).           “In determining whether a change in

circumstances has occurred so as to warrant a change in custody, a trial judge, as the trier

of fact, must be given wide latitude to consider all issues which support such a change.”

Id. at paragraph two of the syllabus. We review a trial court’s ruling on a motion for

reallocation of parental rights for an abuse of discretion. Chaney at ¶ 9; Musgrove v.

Musgrove, 2d Dist. Montgomery No. 24640, 2011-Ohio-4460, ¶ 7.

       B. Evidence Presented at the Hearing

       {¶ 12}    Ms. Cure’s testimony at the hearing established that she had been

romantically involved and had lived with several men during her son’s life other than his

father, that she had lived with her son at five different residences, and that her son had

attended three different schools between kindergarten and third grade.    She claimed that

she and Mr. Haynes were engaged to be married and that he was the “man of her dreams.”

She also expressed her belief that her move to Lebanon was good for her son because

Lebanon’s school district was better than their previous school district. She believed,

without reservation, that she was “the better parent” and the “most stable parent” for her

son.

       {¶ 13}    Ms. Cure’s boyfriend, Mr. Haynes, testified about his close relationship

with Ms. Cure, his belief that they would stay together long-term, and the close

relationship that he and Ms. Cure have with one another’s children.           However, he

contradicted Ms. Cure’s claim that they were engaged, pointing out that he was still

married; he also claimed that he did not want to marry Ms. Cure until he could afford to

pay for the wedding and a ring himself, because she had paid for her previous wedding.
                                                                                               6

       {¶ 14}    Mr. Haynes also testified about his employment with the Hamilton

County Sheriff’s Department, which requires him to live within 30 miles of the Hamilton

County Justice Center in downtown Cincinnati. (Ms. Cure’s house in Lebanon is within

this distance, but her residence in Clark County was not.) Mr. Haynes testified that he

works on the bomb squad and that his skills were not easily transferrable to other sheriffs’

or police departments, because most departments do not maintain their own bomb squad.

When asked about disciplinary and legal issues related to his employment, Mr. Haynes

admitted involvement in an incident for which he was disciplined and was being sued; the

incident involved the excessive use of force against a motorist who was tazed and

forcefully removed from a car while having a diabetic seizure, resulting in injury to the

motorist.   Mr. Haynes denied that there were other disciplinary issues related to his

employment and that other deputies were reluctant to work with him because of the

likelihood of a lawsuit arising from his behavior.

       {¶ 15}    Mr. Haynes’s wife, Stacy, also testified; at the time of the hearing, the

Hayneses were in the process of divorcing after 18 years of marriage. Mr. and Mrs.

Haynes testified at length about events that occurred during the months preceding their

separation, and their testimony was often in conflict. For example, Mr. Haynes claimed

that he had moved into the basement and that he and his wife had been living “separately”

beginning in early 2010; thereafter, he had an affair with a fellow police officer, and then

began his relationship with Ms. Cure in the spring of 2010. Mrs. Haynes testified,

however, that Mr. Haynes never moved into their basement, that she was unaware of

problems in their marriage until May 2010, around Mother’s Day, when the officer
                                                                                              7

involved with Mr. Haynes came to their home, and that, although they were separated, she

(Mrs. Haynes) and Mr. Haynes continued to work on reconciling throughout the summer

of 2010. By this time, however, Ms. Cure had purchased the house in Lebanon, and Mr.

Haynes was living there. Also, in the summer of 2010, Mr. Haynes paid $1,800 toward

the mortgage and utilities at Ms. Cure’s new home in Lebanon, while he was in arrears on

his spousal support and child support payments to Mrs. Haynes. Mrs. Haynes had two

young children and was not employed outside the home, and the Hayneses’ house ended

up in foreclosure; notwithstanding the court-ordered support, Mr. Haynes believed that

Mrs. Haynes should have gotten a job to help with the house payments and her other

expenses.

       {¶ 16}    According to Mrs. Haynes, Mr. Haynes masturbated while looking at

pornography on their home computer with their young children nearby; he did not think

this behavior was problematic, because he did not think the children were capable of

understanding it. Mr. Haynes stored pornographic pictures on the computer, including,

Mrs. Haynes eventually discovered, pictures of himself engaged in sexual activities with

other women; in one of these pictures, he was wearing a blue wristband issued to Mr. and

Mrs. Haynes while she was in the hospital when their twins were born. Mr. Haynes

denied that he was the man in any of the pornographic pictures on the computer. Mr.

Haynes admitted that he had had sexual relations with one of his girlfriends, the police

officer, at the marital home before he was separated from Mrs. Haynes.

       {¶ 17}    Mr. Haynes claimed that his frequent visits to pornographic websites and,

particularly, websites of escort services, were related to his employment, through which he
                                                                                                8

was responsible for identifying and arresting prostitutes; although some of the escort

services operated outside of his jurisdiction, he claimed that they bordered on his

jurisdiction. He also claimed that his practice of masturbating to pornography was related

to his wife’s infertility treatments, for which he was required to collect semen, but Mrs.

Haynes testified that the infertility treatments did not require Mr. Haynes to collect semen

at home. At one point in his testimony, Mr. Haynes admitted to having had one to ten

affairs during his marriage, although his testimony established at least two affairs – with a

fellow officer and Ms. Cure – toward the end of his marriage; at another point, he stated

that he told Ms. Cure of five affairs during his marriage and that, in his deposition, he

“guess[ed] it could have been” 200. Mr. Haynes also admitted that he had been alone

with Ms. Cure’s son and daughter in recent months, notwithstanding the court’s order that

any time he spent with them should be supervised. He believed that, because Ms. Cure

had been close-by, his conduct had not violated the order.

       {¶ 18}    Mrs. Haynes described Mr. Haynes as exhibiting unreasonable or

irrational behavior and stated that, although he could be “wonderful” 95% of the time, the

other 5% was “so bad that it invaded [her] whole existence.” She testified that he used

profanity toward their children (twins, who were age three at the time of the hearing), and

that he had in the past forced food into the children’s mouths that was either too hot or too

large or thick for them to safely eat. She did not believe, however, that he was a danger to

her own children or to Ms. Cure’s children.

       {¶ 19}    Mr. Cure testified that he had resided with his fiancee, Mirandia McCoy,

for four years, and that he had never cheated on her or separated from her during that time.
                                                                                                9

 He described being active in his son’s sports, school conferences, and doctor’s

appointments, stated that his son has good friends in the neighborhood, and that his son

was well-adjusted.

        {¶ 20}   Mr. Cure testified that Ms. Cure’s move to Lebanon made it very difficult

for him to exercise his mid-week visitation, because the length of the drive (one hour and

15 minutes each way) and the son’s need to be at school early the next day made it very

tiring for his son to come to his house on a weeknight. For this reason, Mr. Cure had not

been taking his son to his Clark County home for mid-week visitation since Ms. Cure’s

move.

        {¶ 21}   With respect to Ms. Cure, Mr. Cure expressed concern about the “lack of

continuity” in his son’s life while living with Ms. Cure, because his son had experienced

four moves and three schools in a four-year period. He also expressed his belief that this

pattern would continue and that the “volatility * * * is going to blow up on” his son. He

claimed that both Ms. Cure and Mr. Haynes had volatile personalities, and he expressed

displeasure that Ms. Cure introduces their son to the men she is dating within weeks of the

start of the relationship, and even moves in with them. Mr. Cure testified that his son is

“leery” and “afraid” of his mom sometimes, because of her yelling and his fear of getting

in trouble.   Mr. Cure also stated that Ms. Cure is not forthcoming with him about

information regarding their son, such as health issues, and that she does not promote a

positive relationship between father and son.

        {¶ 22}   Mr. Cure admitted that, on one occasion when Ms. Cure’s older daughter

was at their home, he held the girl by the face to get her attention, which apparently scared
                                                                                            10

the child and was a memorable event for her. Mr. Cure stated that he felt badly that the

incident had scared the girl, but he had seen Ms. Cure do the same thing and believed it

was a way to get the child to listen to him.

       {¶ 23}    Ms. Cure denied that Mr. Cure was active in their son’s life, and claimed

that he only visited with their son 70-80% of the time that he was entitled to do so. She

also testified to her belief that Mr. Cure frequently leaves their son with Mr. Cure’s mother

(the son’s grandmother) during his visitation.

       {¶ 24}    The trial court also considered the report of the guardian ad litem, but the

guardian ad litem did not testify at the hearing. In his report, the guardian ad litem

recognized that Ms. Cure’s choices in relationships “have not always been good” and that

it would have been more reasonable for her to proceed more slowly in her relationship

with Mr. Haynes. He also stated that Ms. Cure “see[s] the existence of the children’s

fathers as a nuisance,” whereas the guardian ad litem believed that the fathers were

“primarily motivated by genuine concerns” for the children. The guardian ad litem did

not believe that Mr. Haynes posed a danger to the Cures’ son. The guardian ad litem

concluded that Ms. Cure’s move to Lebanon had not “created a change of circumstances of

substance” and that she should remain the residential parent.

       C. The Trial Court’s Decision

       {¶ 25}    The trial court found that a change of circumstances had occurred when

Ms. Cure moved to Lebanon, began living with John Haynes, and required the child to

attend a new school; it further found that these changes were not in the child’s best

interest. Generally, the trial court found (and expressly stated) that the evidence presented
                                                                                           11

by Mr. Cure and Mr. Gartin was credible, and Ms. Cure’s and Mr. Haynes’s testimony

lacked credibility.

       {¶ 26}    Specifically, the trial court found that Ms. Cure had unresolved anger

management and relationship issues and lacked maturity. The court expressed “genuine

and immediate concern about [the son’s] health and safety” while the son was with Ms.

Cure and Mr. Haynes, and observed that Ms. Cure “subordinated her children’s interest in

favor of her desire to establish a long-term relationship” with Mr. Haynes, which was not

in her son’s best interest. The court noted that Ms. Cure had had “a multitude of failed

relationships with men,” had introduced many men into her children’s lives, and had

“subjected her children to environments involving disharmony * * * and subsequent failed

relationships.” The court also noted that the move to Lebanon had made it more difficult

for the Cures’ son to maintain close relationships with his extended family in Clark

County. The court found that Ms. Cure “comes across as arrogant and close-minded

[sic],” and it concluded that she was attentive to her son’s needs only when those needs

did not “conflict with her personal agendas, such as the establishment of relationships with

different men.” The court concluded that the primary motive for the move was for the

convenience of Mr. Haynes and “had nothing to do with what was best for this child.”

The court also observed that Ms. Cure had not complied with the court’s order that her son

should not be left alone with Mr. Haynes, that she had purposely “segregated” her children

from their fathers, and that she “had no intention to communicate or cooperate in the

future with Mr. Cure for [their son’s] benefit.”

       {¶ 27}    With regard to Mr. Haynes, the trial court found that he lacked character
                                                                                            12

and had numerous unresolved issues, including anger management issues, anxiety,

depression, trouble sleeping, post-traumatic stress, dishonesty, and overall behavioral

issues. The court expressed skepticism about the future of Ms. Cure’s relationship with

Mr. Haynes, noting that he was still married to someone else.

       {¶ 28}    The trial court found that Mr. Cure had been an active part of his son’s

life, that his motives in pursuing custody were “well intentioned,” and that the Cures’ son

“has a greater opportunity to develop health[y] relationships with friends, relatives, and

others while residing with his father, all of which will assist him in his future

development.” Although the court noted that Mr. Cure had been married and divorced

three times, it concluded that “credible evidence * * * suggests that his relationship to his

current fiancé who he had resided with for approximately four years is stable and

consistent.” The court also noted that Mr. Cure had “made significant efforts in life to

better himself and to serve as an appropriate role model” for his son, such as earning his

GED and earning a college degree by attending school part-time.

       {¶ 29}    The trial court did not abuse its discretion in concluding, based on the

evidence presented, that a change of circumstances had occurred that warranted a change

in custody.     Ms. Cure chose a lifestyle wherein she moved from relationship to

relationship and residence to residence frequently, without any apparent regard for the

effect that this transient lifestyle had on her son’s ability to feel secure and to form

relationships of his own. Although Ms. Cure believed that she had found “the man of her

dreams” in Mr. Haynes, the trial court had ample reason to be skeptical that the

relationship would last, based on Ms. Cure’s and Mr. Haynes’s relationship histories, the
                                                                                             13

fact that he was not yet divorced from his previous wife, and Mr. Haynes’s inability, in

particular, to maintain a monogamous relationship.

       {¶ 30}     The trial court also did not abuse its discretion in concluding that the

son's best interest would be served by a change of custody and that the benefits of such a

change outweighed any harm that would be caused by the change. Ms. Cure’s tendency to

jump from one relationship to another made it very difficult for her son to maintain his

own friendships at home or at school, and her move to Lebanon, in particular, created

hardship in his visitation with his father and weakened his relationships with extended

family on both sides in Clark County. Even more troubling than the moves themselves,

however, was Ms. Cure’s complete failure to recognize the adverse effects of her moves

and relationship choices on her son.

       {¶ 31}     Although the trial court discussed the relationships involving the parties

and others, the court’s approval or disapproval of these relationships did not factor into its

decision; rather, as we have stated, the trial court was concerned with whether there had

been a change of circumstances, the best interest of the child, and weighing any harm that

likely would be caused by a change in the allocation of parental rights.           Mr. Cure

demonstrated all of the factors necessary to support a reallocation of parental rights, and

the trial court did not err in granting his motion.

       {¶ 32}     The first and second assignments of error are overruled.

                                  The Finding of Contempt

       {¶ 33}     Ms. Cure’s third assignment of error states:

       The trial court erred by finding appellant in contempt of court.
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        {¶ 34}    Ms. Cure argues that the trial court erred in finding her in contempt of its

order that the Cures' son should not be left with Mr. Haynes unsupervised, because she did

not violate the court’s order “in spirit.”

        {¶ 35}    An appellate court will not reverse a finding of contempt unless the trial

court has abused its discretion. Ahmed v. Ahmed, 2d Dist. Montgomery No. 23740,

2010-Ohio-5635, ¶ 36.

        {¶ 36}    Evidence was presented at the hearing about several specific instances in

which Ms. Cure allowed either her son or her daughter to be alone with Mr. Haynes; two

incidents related to the daughter, and two related to the son. (The court had also imposed a

restriction on Ms. Cure’s daughter being with Mr. Haynes unsupervised, and Mr. Gartin

also filed a motion for contempt.) With respect to the Cures’ son, the first instance

occurred when Mr. Haynes sat in a car outside a doctor’s office with the Cures’ son while

Ms. Cure, Mr. Gartin, and their daughter attended a therapy session inside the building.

Mr. Haynes and Ms. Cure did not believe that this incident violated the court’s order

because Ms. Cure was nearby. The second incident occurred the morning of one of the

hearing dates. The Cures’ son had been hit in the mouth with a bat the night before and

needed to go to the dentist; Ms. Cure claimed that she was unable to take him to the dentist

herself because of the hearing, that she was unable to get in touch with Mr. Cure, and that

no one else was available, so Mr. Haynes took the child to the dentist. Mr. Cure denied

that Ms. Cure had made a genuine effort to contact him and that Mr. Haynes had been the

only available option.

        {¶ 37}    Ms. Cure did not deny that there had been instances in which Mr. Haynes
                                                                                             15

was alone with her son after the court had prohibited such conduct; in her opinion, the

conduct had either been necessary (the dentist appointment) or had technically complied

with the court's order because she had been close-by (the therapist appointment). It was

for the trial court to determine whether, in fact, either of these violations of its order had

been justified by the surrounding circumstances. We cannot conclude that the trial court

abused its discretion in concluding that they had not.

       {¶ 38}    The third assignment of error is overruled.

                                        Conclusion

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

                                        ..........

FAIN, J. and CANNON, J., concur.

(Hon. Timothy P. Cannon, Eleventh District Court of Appeals, sitting by assignment of the
Chief Justice of the Supreme Court of Ohio).

Copies mailed to:

Terri L. Parmley
L. Anthony Lush
Hon. Thomas J. Capper
