[Cite as Miller v. Miller, 2018-Ohio-4018.]




             IN THE COURT OF APPEALS OF OHIO
                              SEVENTH APPELLATE DISTRICT
                                  JEFFERSON COUNTY

                                        TIFFANY D. MILLER,

                                              Plaintiff-Appellant,

                                                       v.

                                         COREY E. MILLER,

                                         Defendant-Appellee.


                        OPINION AND JUDGMENT ENTRY
                                          Case No. 18 JE 0007.


                               Domestic Relations Appeal from the
                        Court of Common Pleas of Jefferson County, Ohio
                                    Case No. 15-DR-159.

                                         BEFORE:
                  Gene Donofrio, Carol Ann Robb, Kathleen Bartlett, Judges.


                                                 JUDGMENT:
                                                   Affirmed


Atty. Rebecca Bench, Bench Law Firm, 23 Driggs Lane, Bridgeport, Ohio 43912, for
Plaintiff-Appellant, and

Atty. Mary Corabi, Corabi Law Firm, 424 Market Street, Steubenville, Ohio 43952, for
Defendant-Appellee.
                                       Dated:
                                 September 28, 2018
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Donofrio, J.

       {¶1}    Plaintiff-appellant, Tiffany Miller, appeals a Jefferson County Common
Pleas Court judgment granting defendant-appellee’s, Corey Miller’s, motion to reallocate
parental rights and responsibilities of minor children.
       {¶2}    On June 15, 2015, appellant filed a complaint for divorce against appellee
along with a motion for temporary orders. The motion for temporary orders sought a
ruling on parental rights and responsibilities of the parties’ two minor children: A.M.,
d.o.b. 4/14/2010, and S.M., d.o.b. 7/10/2014. After a hearing, appellant was designated
as the temporary custodial parent.
       {¶3}    After a full hearing on the divorce action, the magistrate issued a decision.
Relevant to this appeal, the magistrate designated appellant as the residential parent
and granted appellee extended parenting time.
       {¶4}    Appellee filed numerous objections to the magistrate’s decision. But the
trial court affirmed the magistrate’s decision and issued a final decree of divorce on
January 6, 2017. This decree named appellant the residential parent.
       {¶5}    On May 31, 2017, appellee filed a petition for a civil protection order which
sought custody of the children. The basis of this petition was that appellant’s live-in
boyfriend was allegedly physically abusing the children. Appellee was given temporary
custody of the children but the petition was dismissed on June 19, 2017.
       {¶6}    On June 26, 2017, appellee filed a motion for reallocation of parental
rights and responsibilities. The basis of this motion was that the boyfriend physically
abused the children on three separate occasions: in December of 2016, April of 2017,
and May of 2017. The motion also alleged that appellant made numerous disparaging
and public remarks concerning appellee and appellee’s girlfriend.
       {¶7}    On September 13, 2017, a hearing was held on appellee’s motion for
reallocation of parental rights. At this hearing, appellee testified as to injuries he
witnessed on S.M. In December of 2016, appellee witnessed welts on S.M. while he
was bathing her. In April of 2017, S.M. told appellee that the boyfriend “slammed her.”
In May of 2017, S.M. had a cut and bruised eye which resulted in appellee taking S.M.



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to the emergency room. Appellant did not give appellee a reason as to any of these
injuries.
       {¶8}   Two investigators who interviewed the children also testified at this
hearing. Appellee called Lisa Muselli, an interview specialist and therapist from
Harmony House Children’s Advocacy Center. Muselli testified that, during her forensic
interview with A.M., A.M. indicated that she saw the boyfriend hit S.M. on at least one
occasion. Appellant called Donna White, a supervisor with Children Protective Services
in West Virginia. White testified that A.M. said S.M. lied to Muselli about being abused
because appellee told her to lie.
       {¶9}   The guardian ad litem for the children also filed a report regarding
custody. The guardian recommended that appellee be named the residential parent and
appellant the non-residential parent. The guardian also recommended that the boyfriend
not be in the presence of the children or be able to communicate with the children under
any circumstances.
       {¶10} In a decision dated November 6, 2017, the magistrate decided that
appellee be named residential parent and appellant be named the non-residential
parent. Appellant filed an objection to the magistrate’s decision on numerous bases
including: the allegations of abuse were found to be unsubstantiated by Children’s
Protective Services, the magistrate considered evidence of events that happened prior
to the divorce decree, and the magistrate considered facts that were already considered
in the original divorce hearing.
       {¶11} In a judgment entry dated April 12, 2018, the trial court adopted the
magistrate’s decision and awarded appellee full permanent custody of the children.
Appellant timely filed this appeal on April 25, 2018. Appellant now raises one
assignment of error.
       {¶12} Appellant’s sole assignment of error states:

              THE TRIAL COURT’S DECISION TO AWARD FULL AND
       PERMANENT CUSTODY OF THE MINOR CHILDREN TO APPELLEE IS
       AGAINST        THE    MANIFEST     WEIGHT       OF    THE     EVIDENCE,
       CONSTITUTES AN ABUSE OF DISCRETION AND IS CONTRARY TO
       THE MANDATES SET FORTH IN OHIO REVISED CODE § 3109.04.


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      {¶13} Appellant argues that the trial court inappropriately relied on events and
circumstances that happened prior to the divorce decree, which originally allocated
parental rights, when ruling on appellee’s motion to reallocate parental rights. Appellant
argues that if the prior events are excluded, the trial court’s judgment is against the
manifest weight of the evidence.
      {¶14} R.C. 3109.04 guides a trial court's discretion in a custody modification
proceeding. Miller v. Miller, 37 Ohio St.3d 71, 74, 523 N.E.2d 846 (1988). A trial court's
decision regarding the custody of a child which is supported by competent and credible
evidence will not be reversed absent an abuse of discretion. Bechtol v. Bechtol, 49 Ohio
St.3d 21, 550 N.E.2d 178 (1990), syllabus; Rohrbaugh v. Rohrbaugh, 136 Ohio App.3d
599, 603, 737 N.E.2d 551 (7th Dist. 2000). A trial court has broad discretionary powers
in child custody proceedings. Reynolds v. Goll, 75 Ohio St.3d 121, 124, 661 N.E.2d
1008 (1996). This discretion should be accorded the utmost respect by a reviewing
court in light of the gravity of the proceedings and the impact that a custody
determination has on the parties involved. Trickey v. Trickey, 158 Ohio St. 9, 13, 106
N.E.2d 772 (1952).
      {¶15} R.C. 3109.04(E)(1)(a) provides:

      The court shall not modify a prior decree allocating parental rights and
      responsibilities for the care of children unless it finds, based on facts that
      have arisen since the prior decree or that were unknown to the court at the
      time of the prior decree, that a change has occurred in the circumstances
      of the child, the child's residential parent, or either of the parents subject to
      a shared parenting decree, and that the modification is necessary to serve
      the best interest of the child. In applying these standards, the court shall
      retain the residential parent designated by the prior decree or the prior
      shared parenting decree, unless a modification is in the best interest of the
      child and one of the following applies:

      ***

      (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.


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       {¶16} Pursuant to the statute, in order for a court to reallocate parental rights
and responsibilities and change the residential parent, the court is required to find (1)
that a change in circumstances has occurred since the prior custody order; (2) that the
change in custody is in the child's best interests; and (3) that the benefits of the change
in custody outweigh the harm caused by the change. Vella v. Vella, 7th Dist. No. 10-JE-
7, 2011-Ohio-1182, ¶ 23.
       {¶17} In granting the motion to reallocate parental rights, the trial court primarily
relied on allegations of abuse. The trial court noted that the alleged acts occurred in
December of 2016, April of 2017, and May of 2017.
       {¶18} Appellant argues that the trial court’s ruling on the alleged abuse by the
girls was against the manifest weight of the evidence. Appellant argues that both White
and Muselli testified that the allegations of abuse were unsubstantiated.
       {¶19} Analyzing Muselli’s testimony, Muselli testified that in May of 2017, A.M.
saw S.M. with a black eye. (9/13/2017 Tr. 17). S.M. told A.M. that she was hurt.
(9/13/17 Tr. 17). A.M. told appellant about S.M.’s black eye and appellant responded
“[d]on’t worry about it.” (9/13/17 Tr. 17-18). Muselli testified about the December 2016
incident. In that incident, A.M. saw the boyfriend hit S.M. and the hit left a handprint on
S.M.’s back. (9/13/17 Tr. 18). A.M. told appellant about this hit and appellant “started to
text.” (9/13/17 Tr. 18). Muselli testified that A.M. had witnessed appellant and the
boyfriend physically fight with each other. (9/13/17 Tr. 18). Muselli testified that, based
on several reliability factors, she “did not have a reason to not believe” A.M. (9/13/17 Tr.
21). Muselli also interviewed S.M. but determined that her interview was inconclusive
because she had just turned three years old and was not consistent during the
interview. (9/13/17 Tr. 20).
       {¶20} Analyzing White’s testimony, White testified that she reviewed the video
from Muselli’s interview and then contacted appellant to set up her own interview of the
children. (9/13/17 Tr. 35-37). White then interviewed the children in appellant’s home.
(9/13/17 Tr. 37). White Interviewed A.M. first and concluded that her interview with A.M.
was not consistent with Muselli’s interview with A.M. (9/13/17 Tr. 38-39). White testified
that A.M. said she liked living with appellant and her boyfriend. (9/13/17 Tr. 39). White
testified that A.M. said “I lied when I talked to that other lady.” (9/13/17 Tr. 39). When



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White asked A.M. why she lied, A.M. said “[m]y dad told me to lie.” (9/13/17 Tr. 40).
White asked A.M. to clarify what exactly she lied about to which A.M. responded she
lied about her boyfriend hitting S.M. (9/13/17 Tr. 40).
       {¶21} During White’s interview with S.M., White testified that S.M. did not make
“any disclosures.” (9/13/17 Tr. 43). But White testified that S.M. said “Mom threw a toy
puppy and hit me in the eye.” (9/13/17 Tr. 43). White’s understanding of S.M.’s interview
was that appellant was “cleaning up the toys in the room, threw the toy in the toy box
and it bounced up and hit [S.M.] in the eye.” (9/13/17 Tr. 44). White also met with the
boyfriend and did not have any concerns after talking with him. (9/13/17 Tr. 47).
       {¶22} On cross-examination, White testified that another worker, Doug Platt,
started the abuse investigation into A.M. and S.M. (9/13/17 Tr. 50). White’s investigation
also took longer than Children Protective Services’ approved timeframe of 45 days. (Tr.
9/13/17 Tr. 52-54). White also testified that it was “not typical” to interview children in an
abuse investigation in the home where the alleged abuse occurred. (9/13/17 Tr. 58).
       {¶23} Appellee also testified at this hearing. Appellee testified that, in December
of 2016, S.M. had welts on her back. (9/13/17 Tr. 139). When asked how she got the
welts, S.M. responded that the boyfriend had hit her and hurt her. (9/13/17 Tr. 140). In
April 2017, appellee noticed that S.M. had bruises on her lower spine. (9/13/17 Tr. 142).
When asked how she got those bruises, S.M. responded that the boyfriend slammed
her. (9/13/17 Tr. 142). In May 2017, appellee went to pick up the children when he
noticed that S.M. had a black eye and a cut on the same eye. (9/13/17 Tr. 144).
Appellee immediately took S.M. to the emergency room (9/13/17 Tr. 145). When
appellee asked appellant how S.M. got a black eye, appellant did not comment on the
injury and responded “You cannot withhold the girls again and keep alleging abuse.”
(9/13/17 Tr. 146).
       {¶24} The GAL also testified regarding this motion. The GAL testified that A.M.
saw the boyfriend hit S.M. and saw redness on S.M.’s backside. (11/3/17 Tr. 11). The
GAL recommended that the children remain in appellee’s custody. (11/3/17 Tr. 18).
       {¶25} The original divorce decree was issued on January 6, 2017. The first
allegation of abuse occurred in December of 2016. While this allegation occurred prior
to the divorce decree, it was still appropriate for the trial court to consider when ruling on



Case No. 18 JE 0007
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the motion for reallocation because it was unknown by the trial court. Prior to the
divorce decree, there is no mention of this allegation in any transcript nor does any filing
by either party mention this allegation. Therefore, because it was unknown to the trial
court prior to issuing the divorce decree, it was appropriate for the trial court to consider
pursuant to R.C. 3109.04(E)(1)(a).
       {¶26} Additionally, the other two allegations of abuse, April of 2017 and May of
2017, happened at least three months after the divorce decree was issued. These
allegations were also appropriate for the trial court to consider.
       {¶27} The trial court’s ruling on the abuse allegations was based on competent
and credible evidence. There was sufficient evidence in the record to support a ruling
that the children experienced a change in circumstances, that the change in custody
was in the best interests of the children, and that the benefits of the change in custody
outweigh the harm caused by the change. Appellant essentially argues that White’s
testimony should have greater weight than Muselli’s testimony. But, as White testified,
there were numerous procedural errors with White’s investigation into the allegations of
abuse. It is essentially an issue of witness credibility which the trier of fact is in the best
position to determine. PNL Industries Co. v. Am. Painting Co., Inc., 7th Dist. No. 12-MA-
17, 2013-Ohio-1432, ¶ 34.
       {¶28} Appellant also contends that numerous other facts relied on in the
magistrate’s decision and the trial court’s ruling violate R.C. 3109.04(E)(1)(a) because
they occurred prior to the divorce decree and were already known by the trial court
during the divorce proceedings. The specific events appellant takes issue with are:

       1) Appellant’s relocation to West Virginia without giving notice to
          appellee;
       2) Appellant having a master’s degree in education but, at the time of the
          motion to reallocate parental rights and responsibilities hearing, not
          taking any licensing test to become a teacher;
       3) An incident in October of 2016 where appellant did not timely pick up
          glasses for [A.M.] after a doctor determined that [A.M.] needed glasses
          and appellee ended up retrieving the glasses;




Case No. 18 JE 0007
                                                                                        –8–


       4) An issue with dental care where appellee alleged appellant neglected
          the children’s teeth due to one of the children needing to have two
          teeth extracted; and
       5) Testimony from appellee that appellant was interfering with appellee’s
          visitation with the children.

Brief of appellant 8-11.
       {¶29} Regarding appellant’s move to West Virginia, the trial court’s judgment
entry notes that appellant moved her residence several times, including out of state,
without notifying appellee. At the original divorce hearing appellant testified that she had
moved from Ohio to West Virginia during the original divorce proceedings. (11/10/15 Tr.
18). At the motion to reallocate hearing, appellant testified that she lived with her
grandmother prior to moving in with the boyfriend in the summer of 2016. (9/13/17 Tr.
93).
       {¶30} But appellant also testified about a hearing before the trial court on August
22, 2016. At this hearing, it was noted that the trial court found that appellant was “living
in a cabin in the woods at her boyfriend’s house”. (9/13/17 Tr. 63-64). Appellee’s
counsel noted that the August 22, 2016 hearing was the first time appellee was aware
that appellant had moved into boyfriend’s home. (9/13/17 Tr. 64).
       {¶31} It was not proper for the trial court to consider appellant’s move into
boyfriend’s home. Testimony at the motion to reallocate hearing indicates that the trial
court was previously aware of appellant’s move into this home without notifying
appellee. But this error on the trial court’s part is harmless. Reviewing courts are
required to disregard any error or defect in the pleadings or proceedings that do not
affect the substantial rights of the adverse party. R.C. 2309.59. The allegations of abuse
are sufficient to justify the trial court granting appellee’s motion to reallocate parental
rights and responsibilities.
       {¶32} Regarding appellant not taking a licensure test to become a teacher, the
divorce decree contains the following passage:

       Both parties have a Master[‘]s Degree in education. * * * [Appellant]
       however has not passed her licensure tests. When questioned by the



Case No. 18 JE 0007
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      Court she advised that she did not have the money to take the tests. It is
      strongly recommended that [appellant] complete her licensure so that she
      can get a job consistent with her education level.

      {¶33} This passage indicates that the trial court was aware during the initial
divorce proceedings that appellant had not completed her teaching licensure procedure.
At the motion to reallocate hearing, appellee testified that she took two of her needed
tests but she had to redo one other. (9/13/17 Tr. 65). The last time she took the test was
in June of 2016. (9/13/17 Tr. 65). The test she needed to redo was one that she took
and passed approximately six years prior but she still had to redo the test. (9/13/17 Tr.
65-66). But appellee managed to obtain a “teaching position” in the spring of 2017
where she worked Monday through Friday. (9/13/17 Tr. 66).
      {¶34} The trial court’s reliance on appellee’s teacher licensing tests in its April
12, 2018 judgment entry was also error pursuant to R.C. 3109.04(E)(1)(a). Appellant
had since become employed as a teacher. Moreover, appellant had passed two
necessary licensure exams. This does not qualify as a change in circumstances. But for
reasons previously stated, this is also a harmless error to be disregarded pursuant to
R.C. 2309.59.
      {¶35} Regarding appellee’s failure to pick up A.M.’s glasses, the trial court’s
April 12, 2018 judgment entry found that appellant did not pick up the glasses for two
months. It also noted that appellee picked up the glasses and paid the balance for the
glasses even though he had insurance and was current in his child support. But the
judgment entry notes that this incident occurred around October of 2016.
      {¶36} This event was unknown to the trial court prior to the divorce decree.
There is no transcript in the record, prior to the divorce decree being issued, that makes
a reference to this event. There are also no court filings that make reference to this
event. And the divorce decree itself makes no reference to this event. Because this
event was unknown to the trial court, it was appropriate for the trial court to consider
pursuant to R.C. 3109.04(E)(1)(a).
      {¶37} Regarding appellant’s inability to provide adequate dental care to the
children, the trial court’s April 12 2018 judgment entry found that appellant “had
neglected the children’s dental care.”


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       {¶38} At the motion to reallocate hearing, appellant testified about an event
where A.M. had to see a pediatric dentist in order to have two teeth extracted. (9/13/17
Tr. 77). There is no specific reference as to when this event took place but appellant did
testify that there was some discussion with the pediatric dentist about how much the
insurance company would cover for the procedure that took place in “February of this
year * * *.” (9/13/17 Tr. 78). This was also proper for the trial court to consider. Based on
the context of the testimony, the extraction procedure was performed or at least
discussed in February of 2017, which is after the date the divorce decree was issued.
       {¶39} Regarding appellant’s interference with appellee’s visitation, the GAL’s
report indicated that appellant was publicly making disparaging remarks concerning
appellee and his parenting skills. The trial court’s April 12, 2018 judgment entry also
references incidents where appellant would call the children multiple times when they
were with appellee, sent gifts to the children at appellee’s home, and sent a photo
album of herself and her children to appellee’s home.
       {¶40} Appellant argues that these events were addressed at a hearing in 2016.
But there is no transcript of a hearing in 2016 that is part of the record. There is also no
filing in 2016 that references appellant interfering with appellee’s visitation with the
children. This is also an unknown circumstance that is appropriate for the trial court to
consider pursuant to R.C. 3109.04(E)(1)(a).
       {¶41} Appellant argues that this Court’s decision in Burnip v. Nickerson, 7th Dist.
No. 07-CO-42, 2008-Ohio-5052 bars the trial court’s consideration of the previously
mentioned five events. In Burnip, this Court held that many of the arguments Nickerson
made in support of her motion for reallocation were events that happened prior to the
dissolution between the parties. Id. at ¶ 40.
       {¶42} Burnip is factually distinguishable from the case at bar. While some of the
events that were testified to at the motion to reallocate hearing occurred prior to the
divorce decree being issued, many of those events were previously unknown to the trial
court. Unknown circumstances that occur prior to a decree assigning parental rights are
proper for a trial court to consider pursuant to R.C. 3109.04(E)(1)(a).




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       {¶43} In conclusion, after a review of the record, the trial court’s judgment
granting appellee’s motion for reallocation of parental rights and responsibilities is
supported by competent and credible evidence.
       {¶44} Accordingly, appellant’s sole assignment of error lacks merit and is
overruled.
       {¶45} For the reasons stated above, the trial court’s judgment is hereby affirmed.




Robb, P. J., concurs
Bartlett, J., concurs




Case No. 18 JE 0007
[Cite as Miller v. Miller, 2018-Ohio-4018.]




        For the reasons stated in the Opinion rendered herein, the assignment of error is
overruled and it is the final judgment and order of this Court that the judgment of the
Court of Domestic Relations of Jefferson County, Ohio, is affirmed. Costs to be taxed
against the Appellant.


        A certified copy of this opinion and judgment entry shall constitute the mandate in
this case pursuant to Rule 27 of the Rules of Appellate Procedure. It is ordered that a
certified copy be sent by the clerk to the trial court to carry this judgment into execution.




                                         NOTICE TO COUNSEL

        This document constitutes a final judgment entry.
