[Cite as Heath v. Heath, 2017-Ohio-5506.]



                                    IN THE COURT OF APPEALS

                           TWELFTH APPELLATE DISTRICT OF OHIO

                                            FAYETTE COUNTY




ROBERT G. HEATH,                                  :
                                                         CASE NO. CA2016-08-011
        Plaintiff-Appellee,                       :
                                                               OPINION
                                                  :             6/26/2017
   - vs -
                                                  :

TRUDY A. HEATH n.k.a. BRAHOSKY,                   :

        Defendant-Appellant.                      :



             APPEAL FROM FAYETTE COUNTY COURT OF COMMON PLEAS
                        DOMESTIC RELATIONS DIVISION
                             Case No. 04DRA0027



Isaac, Wiles, Burkholder & Teetor, LLC, Joanne S. Beasy, Two Miranova Place, Suite 700,
Columbus, Ohio 43215, for plaintiff-appellee

Kristina M. Oesterle, P.O. Box 314, Washington C.H., Ohio 43160, for defendant-appellant



        M. POWELL, J.

        {¶ 1} Defendant-appellant, Trudy Heath n.k.a. Brahorsky ("Mother"), appeals a

decision of the Fayette County Court of Common Pleas, Domestic Relations Division,

denying her motion for change of custody of the parties' child.

        {¶ 2} Mother and plaintiff-appellee, Robert Heath ("Father"), are the parents of a 14-

year-old daughter. Following the parties' divorce in 2005, Mother was designated as the
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child's residential parent and Father was granted parenting time. Both parties are remarried.

       {¶ 3} After the divorce, Mother and the child moved to Colorado; Father remained in

Ohio. Over the next several years, Mother repeatedly failed to provide Father with the

parenting time he was entitled to pursuant to the divorce decree. The child remained in

Colorado until June 2012 when a Colorado court ordered Mother to deliver the child to

Father. Mother has since relocated to Ohio.

       {¶ 4} In 2012, both parties filed several motions for contempt. Father also moved for

change of custody and requested to be named the child's residential parent and legal

custodian. Mother's motions were dismissed with prejudice pursuant to an agreed entry. A

hearing on Father's motions was held before a magistrate over nine separate days between

July 2012 and June 2013.

       {¶ 5} In a decision filed on January 19, 2014, the magistrate found Mother in

contempt for repeatedly decreasing or "flat-out den[ying]" Father's parenting time with the

child in violation of the parties' numerous agreed entries. The magistrate further found that

Mother's substantial interference with Father's parenting time constituted a change in

circumstances, a change of custody was in the child's best interest, and the harm likely to be

caused by a change of custody was outweighed by the advantages of the change.

Consequently, the magistrate granted Father's motion for change of custody, designated

Father as the residential parent and legal custodian of the child, and granted Mother

parenting time. On June 20, 2014, the trial court adopted the magistrate's decision but

awarded Mother increased parenting time for the summer.

       {¶ 6} A month later, Mother moved to modify her parenting time. By agreed entry

filed on April 16, 2015, the trial court awarded Mother increased parenting time. The agreed

entry further stated, "All other provisions of the Court's June 20, 2014 Judgement Entry

Adopting [the] Magistrate's [January 9, 2014] Decision shall remain in full force and effect."
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       {¶ 7} In the interim, Mother filed a criminal complaint against Father alleging that on

March 15, 2015, Father committed felony domestic violence when he struck Mother's

backside with a belt in the child's presence during a custody exchange in Father's home.

The child testified as a state's witness in Father's criminal trial. A jury found Father not guilty

of the charge. As a result of the domestic violence incident, a no contact order was put in

place between the parties.

       {¶ 8} On September 10, 2015, Mother moved to modify custody of the child, or in the

alternative for either shared parenting or more parenting time. Mother alleged that Father's

failure to timely provide medical care to the child, his withholding information regarding the

child's education, medical appointments, and extracurricular activities, and Mother's difficulty

in communicating with the child when the child is at Father's home constituted a change of

circumstances warranting a change in custody.

       {¶ 9} On June 27, 2016, the trial court conducted a bifurcated hearing, which dealt

solely with the issue of whether there had been a change of circumstances. The police

officer who had investigated the domestic violence incident and Mother both testified at the

hearing. Mother twice sought to call the child as a witness, but the trial court denied Mother's

request each time. Consequently, Mother proffered the child's testimony. Father then

moved for a directed verdict. The trial court granted the motion on the record, finding that

Mother had failed to establish a change of circumstances and that the issues raised by

Mother "are issues that have all been churned before the Magistrate ad nauseam over the

years."

       {¶ 10} In an entry filed on July 6, 2016, the trial court treated Father's motion as one

for a directed verdict, found that Mother had failed to establish a change of circumstances as

required under R.C. 3109.04(E)(1)(a), granted Father's motion, and denied Mother's motion

for change of custody.
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       {¶ 11} Mother now appeals, raising three assignments of error. The second and third

assignments of error will be addressed first and together.

       {¶ 12} Assignment of Error No. 2:

       {¶ 13} THE TRIAL COURT VIOLATED APPELLANT'S DUE PROCESS RIGHTS BY

LIMITING THE EVIDENCE THAT SHE COULD PRESENT.

       {¶ 14} Assignment of Error No. 3:

       {¶ 15} THE TRIAL COURT ABUSED ITS DISCRETION BY LIMITING THE

EVIDENCE THAT APPELLANT COULD PRESENT.

       {¶ 16} In both assignments of error, Mother argues the trial court abused its discretion

and violated her due process rights when it did not allow the child to testify at the change-of-

circumstances hearing. Mother asserts that because the child was a witness to the domestic

violence incident and lived with Father, the child was the primary witness to many of the

issues raised in Mother's motion for change of custody and was the only one who could

testify as to the negative impact the domestic violence incident and Father's alleged failings

had upon her.

       {¶ 17} The record shows that during the change-of-circumstances hearing, Mother first

sought to call the child as a witness following the police officer's limited testimony. The trial

court did not allow the child to testify, stating: "let me listen to * * * other testimony and then

I'll decide if we're going to hear from her." Subsequently, Mother testified and expressed

concerns that Father does not properly and timely tend to the child's medical needs.

Specifically, Mother complained that Father failed to have the child's thumb injury treated, did

not make sure the child always has an inhaler for her asthma which resulted in the child

using a friend's inhaler when the child had an asthma attack during basketball practice, and

did not properly tend to the child's allergies.

       {¶ 18} Mother claimed she has difficulty communicating with the child when the child is
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at Father's home, and that Father was not home very much due to a change in his work

schedule since the last custody order. Mother complained Father does not provide her

information regarding the child's extracurricular activities, sports events, and medical

treatment and appointments.             Mother noted she was not listed at all on the

registration/emergency medical form for the child's school, and that she was only listed as

"other" on the school's student contacts summary form alongside an annotation stating, "Do

not contact her for any reason."

           {¶ 19} After Mother completed her testimony, she once again sought to call the child

as witness. Once again, the trial court did not allow the child to testify, stating: "I have

incorporated her testimony at the [domestic violence] trial. I'll permit you to proffer what she's

going to say on the record here[.] But with the history of this case and in the absence of any

Guardian Ad Litem at this junction I'm not, simply not going to ask her to testify. I'm not going

to permit her to testify." Mother then proffered the child's testimony.

           {¶ 20} According to the proffer, the child would have testified about Father's absence

from home as a result of his work schedule, the fact the child isolates herself at Father's

home due to her poor relationship with her stepmother, the verbal abuse she endures from

her stepmother, Father's anger issues, Father's failure to tend to her medical needs, her

difficulty in communicating with Mother when she lives with Father, her desire to stay with

Mother when Father is not home, and her difficulty in seeing Mother's relatives when she

lives with Father. Upon questioning by the trial court, Mother's counsel stated that unlike

Mother's testimony, the child's testimony would have been first-hand, and that the change of

circumstances consisted of Father's absence from home, the resulting increased time the

child is spending with her stepmother, "and how that's having a negative impact on [the

child]."

           {¶ 21} At the time of the hearing, the child was almost 14 years old. She was
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therefore competent to testify pursuant to Evid.R. 601(A) and R.C. 2317.01. Both provisions

generally provide that every person is competent to be a witness except children under the

age of ten. In addition, courts have traditionally allowed children of the parties to testify in

domestic relations matters. Moser v. Moser, 72 Ohio App.3d 575, 579 (3d Dist.1991).

"Public policy and private views of propriety do not justify a refusal to listen to competent

testimony of young children where there is a need for such testimony." Id. "A blanket rule

disallowing children of any age to testify in domestic relations matter is inconsistent with

Evid.R. 601." Buckmaster v. Buckmaster, 4th Dist. Highland No. 13CA13, 2014-Ohio-793, ¶

13.

       {¶ 22} The child's testimony, as set forth in the proffer, would have related to topics

other than the domestic violence incident, would have focused on the child's life at Father's

home and Father's alleged failings as witnessed and experienced firsthand by the child, and

would have included how the various issues have affected her. This was not a situation

involving a child of tender years. We therefore conclude the trial court erred in not allowing

the child to testify as a witness at Mother's request. Moser at 579. This, however, does not

end our analysis.

       {¶ 23} "[I]n order for a reviewing court to reverse an evidentiary ruling of the trial court,

an appellant must affirmatively demonstrate through the record on appeal not only that error

was committed, in the technical sense, but also that such error was prejudicial to appellant,

except in rare circumstances where the error is so substantial that prejudice will be

presumed." Moser, 72 Ohio App.3d at 579-580; Buckmaster, 2014-Ohio-793 at ¶ 19.

       {¶ 24} We begin by noting that it is well-established that the admission or exclusion of

relevant evidence rests within the trial court's sound discretion. Fox v. Fox, 12th Dist.

Clermont No. CA2013-08-066, 2014-Ohio-1887, ¶ 13. An abuse of discretion implies that the

court's attitude was unreasonable, arbitrary, or unconscionable. Blakemore v. Blakemore, 5
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Ohio St.3d 217, 219 (1983).

       {¶ 25} Evid.R. 611(A) provides that a trial court "shall exercise reasonable control over

the mode and order of interrogating witnesses and presenting evidence so as to (1) make the

interrogation and presentation effective for the ascertainment of the truth, (2) avoid needless

consumption of time, and (3) protect witnesses from harassment or undue embarrassment."

"Trial courts are given great deference in controlling their dockets[.]"         Mathewson v.

Mathewson, 2d Dist. Greene No. 05-CA-035, 2007-Ohio-574, ¶ 26. The trial court exercised

its discretion to control the proceedings before it by not allowing the child to testify.

       {¶ 26} "Where a trial court excludes evidence sought to be presented in a party's

case-in-chief, that party is required to make an offer of proof." Moser, 72 Ohio App.3d at

580. Specifically, Evid.R. 103(A)(2) provides that error may not be predicated upon a ruling

excluding evidence unless a substantial right of the party is thereby affected and the

substance of the excluded evidence was made known to the court by proffer or was apparent

from the context within which questions were asked.

       {¶ 27} A proffer generally consists of two elements. "First, the offering party must

inform the trial court as to the legal theory upon which admissibility is proposed. Second, an

offering party must show what a witness was expected to testify to and what that evidence

would have proven or tended to have proven." Moser at 580. "While the proffer of the

expected testimony need not be as specific as the testimony itself would have been[,] it must

nonetheless be sufficient to enable the reviewing court to determine roughly what, if any,

impact the testimony may have had upon the final disposition of the case." Id.

       {¶ 28} The purpose of a proffer is to assist the reviewing court in determining whether

the trial court's exclusion of certain evidence affected a substantial right of the complaining

party. Carter v. Carter, 62 Ohio App.3d 167, 171 (12th Dist.1989). Upon reviewing the

proffer of the child's testimony, we find it to be insufficient to allow us to determine whether
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the trial court's exclusion of the testimony affected Mother's substantial right. While the

proffer sufficiently described what the child's testimony would have been regarding her life at

Father's home and Father's alleged failings, it was too general and thus insufficient as to the

negative impact home life with Father and the stepmother had on the child, a crucial issue.1

        {¶ 29} As stated above, Mother's counsel ended the proffer by stating that the child's

testimony would show how Father's absence from home and the child's increased time with

the stepmother was "having a negative impact on [the child]." However, no further details

were provided as to the alleged "negative impact." No explanation was provided as to how

the negative impact on the child manifested itself, such as whether it made the child sad or

angry, made her physically sick, resulted in counseling, or affected her at school. A proffer

describing specific incidents and events means nothing without any evidence or explanation

of the negative impact on the child.

        {¶ 30} Because the proffer was lacking regarding the alleged negative impact on the

child, we cannot determine whether the trial court's exclusion of the child's testimony was

prejudicial to Mother's substantial right. Moser, 72 Ohio App.3d at 580-581. Mother's second

and third assignments of error are accordingly overruled.

        {¶ 31} Assignment of Error No. 1:

        {¶ 32} THE TRIAL COURT WAS IN ERROR BY GRANTING A DIRECTED VERDICT

IN THIS MATTER.

        {¶ 33} Mother argues the trial court erred in granting Father's motion for a directed

verdict and denying her motion for change of custody. Mother asserts that the domestic

violence incident, the resulting no contact order, Father's pattern of neglecting the child's



1. As more fully explained under Mother's first assignment of error, a trial court may modify a prior custody
decree if it finds a change in the circumstances of either the child or the child's residential parent, and the change
of circumstances has a material and adverse effect upon the child. See R.C. 3109.04(E)(1)(a); Preece v. Stern,
12th Dist. Madison No. CA2009-09-019, 2010-Ohio-857, ¶ 10.
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medical issues, Mother's difficulty in communicating with the child when the child is at

Father's home, and Mother's limited access to the child's educational, athletic, and medical

records had a direct and adverse impact on the child and established a change of

circumstances warranting a change in custody.

       {¶ 34} Initially, we note that the change-of-circumstances hearing was held to the

bench. Consequently, although Father moved for a "directed verdict" during the hearing and

the trial court treated the motion as such, the motion was actually one for involuntary

dismissal under Civ.R. 41(B)(2), and not for directed verdict under Civ.R. 50. Aztec Internatl.

Foods, Inc. v. Duenas, 12th Dist. Clermont No. CA2012-01-002, 2013-Ohio-450, ¶ 14, fn. 6.

That is because a motion for directed verdict under Civ.R. 50 is "only appropriate when a

matter is being tried to a jury." Lopez v. Thomas, 9th Dist. Summit No. 27115, 2014-Ohio-

2513, ¶ 17. We will therefore construe Father's motion as one for dismissal under Civ.R.

41(B)(2).   We note, however, that a "moving party is not prejudiced if the trial court

erroneously applies the Civ.R. 50(A) standard for a directed verdict because it is much more

rigorous than the standard for a dismissal under Civ.R. 41(B)(2). Satisfaction of the Civ.R.

50(A) standard implies satisfaction of the Civ.R. 41(B)(2) standard." Duenas at ¶ 14, fn. 6.

       {¶ 35} In ruling on an involuntary dismissal under Civ.R. 41(B)(2), a trial court is not

required to view the evidence in a light most favorable to the non-moving party. Lopez at ¶

17. Rather, the court weighs the evidence, resolves any conflict, and may render judgment in

favor of the defendant if the plaintiff has shown no right to relief. Id. The trial court's

conclusions will not be set aside unless they are erroneous as a matter of law or against the

manifest weight of the evidence. Stepka v. McCormack, 9th Dist. Lorain No. 14CA010611,

2016-Ohio-3103, ¶ 58.

       {¶ 36} R.C. 3109.04(E)(1)(a) allows a trial court to modify a prior decree allocating

parental rights and responsibilities only if it finds, based on facts that have arisen since the
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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 the child’s residential parent, and that the

modification is in the best interest of the child. Fisher v. Hasenjager, 116 Ohio St.3d 53,

2007-Ohio-5589, ¶ 21. The statute requires the court to "retain the residential parent

designated by the prior decree" unless the modification is in the best interest of the child and

one of three additional factors applies. Id.

       {¶ 37} While R.C. 3109.04 does not define "change in circumstances," courts have

generally held the phrase to note "an event, occurrence, or situation which has a material

and adverse effect upon a child." Preece v. Stern, 12th Dist. Madison No. CA2009-09-019,

2010-Ohio-857, ¶ 10. In order to warrant a change of custody, the change in circumstances

must be one "of substance, not a slight or inconsequential change." Davis v. Flickinger, 77

Ohio St.3d 415, 418 (1997). "In determining whether a 'change' has occurred * * * a trial

judge must have wide latitude in considering all the evidence before him * * * and such a

decision must not be reversed absent an abuse of discretion." Id.

       {¶ 38} In support of her argument that a change in circumstances has occurred since

the trial court's prior custody order, Mother cites the domestic violence incident, Father's

pattern of neglecting the child's medical issues, Mother's difficulty in communicating with the

child when the child is at Father's home, and Mother's limited access to the child's

educational, athletic, and medical records. At the change-of-circumstances hearing, the trial

court, having presided over Father's domestic violence trial, notified the parties it would take

judicial notice of the testimony given at the criminal trial, including the child's testimony.

       {¶ 39} The child's testimony in that case was abbreviated and concerned the activities

of her siblings, Mother, Father, and herself on the day of the domestic violence incident, how

Mother and Father reacted to it, and the identification of a statement she made to the police

regarding the incident. The child's testimony did not concern how the child was affected, if at
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all, by the domestic violence incident. At the hearing, Mother acknowledged that the parties'

agreed entry filed on April 16, 2015, was approved by her attorney three days after the

domestic violence incident, and that with the exception of an added weekday overnight and

increased summer parenting time, the parenting time schedule previously granted by the trial

court remained unchanged following the domestic violence incident.

       {¶ 40} The magistrate's January 2014 decision granting Father's motion for change of

custody shows that at the time, the child was already suffering from allergies and had had a

couple of health issues over the course of the previous years.             At the change-of-

circumstances hearing, Mother admitted that Father's pattern of neglecting the child's

medical issues had been "a big concern of [hers]. Absolutely 100%" over the last several

years. With regard to the child's medication, Mother acknowledged that the child was

eventually provided an inhaler by Father and was "put back on the allergy prescription."

Mother admitted she did not know whether Father had previously chosen to give the child

over the counter allergy medication rather than an allergy prescription.

       {¶ 41} Mother explained she had difficulty communicating with the child in the

evenings due to a rule that "phones are put up at a certain time" at Father's home, and due

to the fact that Father's home phone is in and out of service until 6:00 p.m. Mother remedied

the problem by giving the child a second cellphone. Mother acknowledged that she has not

spoken to Father since September 2015 and that a civil protection order put in place between

the parties has interfered with her communication ability.

       {¶ 42} Mother admitted that although Father provides limited information regarding the

child's educational and athletic records, Mother is able to access the child's grades on the

school website and has attended open houses and parent-teacher conferences at the child's

school. Mother further stated that when her husband is in town, he attends the child's

extracurricular activities and sports events.
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       {¶ 43} We find that the trial court did not err in finding that a change in circumstances

did not occur. In granting Father's motion "for directed verdict" on the record during the

change-of-circumstances hearing, the trial court specifically noted that the issues raised by

Mother "are issues that have all been churned before the Magistrate ad nauseam over the

years." The trial court, having presided over the issue of the child's custody since its

inception, was in a position to better examine and weigh the evidence and arguments of the

parties. See Miller v. Miller, 37 Ohio St.3d 71 (1988). Mother failed to demonstrate that the

domestic violence incident, Father's pattern of neglecting the child's medical issues, Mother's

difficulty in communicating with the child when the child is at Father's home, and Mother's

limited access to the child's educational, athletic, and medical records were an "event,

occurrence, or situation" which materially and adversely affected the child, or that the

changes in circumstances were "of substance" and not a "slight or inconsequential change."

       {¶ 44} We further find that the trial court's conclusions are neither erroneous as a

matter of law nor against the manifest weight of the evidence. The record reveals that the

trial court properly considered all the evidence. We therefore find that the trial court did not

abuse its discretion in determining that a change in circumstances did not occur and did not

err in granting Father's Civ.R. 41(B)(2) motion to dismiss Mother's motion for change of

custody. Flickinger, 77 Ohio St.3d at 418; Stevenson v. Kotnik, 11th Dist. Lake No. 2010-L-

063, 2011-Ohio-2585, ¶ 66.

       {¶ 45} Mother's first assignment of error is overruled.

       {¶ 46} Judgment affirmed.


       S. POWELL, P.J., and PIPER, J., concur.




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