[Cite as S.S. v. F.M., 2020-Ohio-3827.]




                             IN THE COURT OF APPEALS OF OHIO
                                 SIXTH APPELLATE DISTRICT
                                      LUCAS COUNTY


S.S.                                                Court of Appeals No. L-19-1216

        Appellant                                   Trial Court No. JC 16254109

v.

F.M.                                                DECISION AND JUDGMENT

        Appellee                                    Decided: July 24, 2020

                                             *****

        Angelina Wagner, for appellant.

        Rebecca E. Shope, for appellee.

                                             *****

        ZMUDA, P.J.

                                          I. Introduction

        {¶ 1} Appellant, S.S., appeals the judgment of the Lucas County Court of

Common Pleas, Juvenile Division, vacating the magistrate’s decision issued in this child

custody matter after finding well-taken the objections to the magistrate’s decision that

were filed by appellee, F.M. Finding no error in the trial court’s determination that a
change of circumstances has not occurred in this case, and thus a modification of the

preexisting custody arrangement is unwarranted, we affirm.

                          A. Facts and Procedural Background

       {¶ 2} This matter originated on March 14, 2016, when appellant filed his

complaint seeking the allocation of parental rights and responsibilities over his son, C.S.

After the parties reached an agreement as to the issues raised in appellant’s complaint, the

court issued its November 15, 2016 judgment entry approving the parties’ agreement and

setting forth the parental rights and responsibilities embodied therein. Under the court’s

entry, appellee remained C.S.’s primary residential parent and legal custodian, and

appellant was awarded parenting time according to the Court Schedule that was attached

to the court’s entry as an exhibit.

       {¶ 3} On May 25, 2018, appellant filed a motion to modify the court’s prior award

of custody of his son, C.S. In his motion, appellant sought custody of C.S., based upon a

substantial change in circumstances since the court issued its November 15, 2016

judgment entry, namely that appellee was homeless, unemployed, abusing drugs, and

neglecting C.S. Four days later, on May 29, 2018, appellee also filed a motion to modify

the court’s prior custody award. In her motion, appellee asserted that appellant had

“taken custody of the child, * * * and will not let me see or talk to him.”

       {¶ 4} After the parties filed their respective motions, the juvenile court set the

matter for an emergency hearing. On May 30, 2018, the hearing was conducted,




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culminating in the court’s order continuing the matter for an expedited hearing and

naming appellant the residential parent with visitation of C.S. awarded to appellee.

       {¶ 5} On June 4, 2018, the parties appeared before the juvenile court for an

expedited hearing on their motions. At the hearing, the parties agreed as to interim

orders, and the court found that C.S.’s best interests were served by an award of

temporary custody to appellant with supervised visitation awarded to appellee. At a

subsequent hearing on August 30, 2018, the court modified its order, granting appellee

unsupervised parenting time.

       {¶ 6} On January 10, 2019, appellee filed a motion for contempt, in which she

asserted that appellant had violated the court’s orders concerning her visitation rights

with C.S. by denying her access to C.S. “on multiple dates in December 2018 and

January 2019 during [her] scheduled parenting time and during the minor child’s winter

break.” In order to make up for her lost visitation time due to appellant’s alleged

interference, appellee requested additional visitation time with C.S. A decision on

appellee’s motion for contempt is not discernable from the record.

       {¶ 7} On April 22, 2019, this matter proceeded to trial before a magistrate. At the

trial, appellant testified that the concerns that prompted his motion were resolved “in

moderation.” Appellant went on to voice concerns regarding appellee. Specifically,

appellant testified that, to his knowledge, appellee was unemployed and thus would be

unable to support C.S. Appellant acknowledged that appellee could provide safe housing

for C.S. However, appellant took issue with the school that C.S. would attend were he to




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live with appellee, Ottawa River Elementary, because he believes C.S.’s cousins, who

also attend Ottawa River Elementary, would be a distraction to C.S.

       {¶ 8} As to the custody arrangement set forth in the juvenile court’s November 15,

2016 entry, appellant testified that C.S. was not doing well with splitting his time

between appellant and appellee throughout the week. According to appellant, C.S. “gets

so worked up, and it’s so hard to get him unworked up” when transferring him from one

parent to another parent. Appellant went on to explain that C.S. usually calms down as

soon as appellee walks away from the exchange.

       {¶ 9} On cross-examination, appellant explained that his indication of appellee’s

alleged homelessness was due to the fact that he was unaware of appellee’s living

arrangements at the time he filed his motion. Appellant acknowledged that appellee was

currently living with her parents at the time of trial, and thus was not homeless.

       {¶ 10} In response to appellant’s claim that appellee was abusing drugs, appellee’s

counsel asked appellant about the results of drug screens that he submitted during the

pendency of these proceedings. Appellant admitted that he tested positive for marijuana.

Further, appellant acknowledged that he had never observed appellee using drugs in front

of C.S.

       {¶ 11} After appellant finished testifying, he called his wife, K.S., to the stand.

During her testimony, K.S. stated her belief that appellant should be granted custody of

C.S. K.S.’s position was based upon the fact that appellant was employed, had his own

home, and lived in a school district that was “more beneficial to [C.S.] at this point.” On




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cross-examination, K.S. acknowledged that she was not involved with C.S.’s prior

schooling and therefore could not fairly compare C.S.’s performance in appellee’s school

district to his performance in appellant’s school district.

       {¶ 12} Following K.S.’s testimony, appellant called N.P. to the stand. N.P. is the

father of appellee’s children, with the exception of C.S. Like appellant, N.P. filed a

motion seeking an award of custody of his children in May 2018. Ultimately, appellee

and N.P. reached an agreement that left appellee’s custody of the children intact and

increased N.P.’s visitation time, thereby resolving the issues that gave rise to N.P.’s filing

of his motion. Despite the agreement, N.P. testified that he was not permitted to see his

children due to a molestation complaint that was filed with children’s services.

       {¶ 13} For his fourth and final witness, appellant called his mother, K.H. K.H.

testified that there was a one-year period of time during which appellee did not permit her

to see C.S., having revoked such permission after K.H. took C.S. to see appellant prior to

appellant undergoing surgery. According to K.H., she helped appellant file his request

for visitation so that she could continue to see C.S.

       {¶ 14} At the conclusion of K.H.’s testimony, appellant rested. Thereafter,

appellee took the stand. Appellee testified as to the allegations raised by appellant

concerning her alleged homelessness, drug abuse, and lack of employment.

       {¶ 15} As to housing, appellee insisted that she has never been homeless, and she

stated that she and C.S. currently reside at her parents’ home. In terms of the schooling

issue appellant raised in his testimony regarding C.S.’s attendance at Ottawa River




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Elementary, appellee stated that C.S. was “thriving” and C.S.’s teacher reported that

C.S.’s cousins had a positive impact on his educational development.

       {¶ 16} Turning to appellant’s allegation of drug abuse, appellee testified that she

has never used drugs in front of C.S. Appellee acknowledged that she submitted two

diluted drug screens during the pendency of this case, but noted that her most recent drug

screen was negative while appellant’s most recent drug screen was positive for

marijuana. Appellee further committed to remaining drug-free moving forward.

       {¶ 17} Later on in appellee’s testimony, she admitted that she was presently

unemployed. Nonetheless, appellee stated that her unemployment would not impact her

ability to care for C.S.

       {¶ 18} Following appellee’s testimony, C.S.’s guardian ad litem, Michael Bryant,

was called to the stand. In his report submitted to the trial court in this case, Bryant

suggested that the court designate appellee the residential parent and award appellant

parenting time according to the court’s local schedule.

       {¶ 19} At trial, Bryant testified as to the concerns raised by appellant in his

motion. Bryant discussed the concerns with appellant, and learned that appellant was

primarily troubled that appellee was not spending as much time with C.S. as she

suggested. Bryant stated that appellant “made it clear that he didn’t think that [appellee]

was a bad mom, that * * * she never did anything * * * to neglect [C.S.] or * * * harm

him or anything like that.” Bryant also testified as to his discussions with C.S., noting

that C.S. “made it clear that he * * * wanted to spend more time with mom. He loves




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dad, wants to be with dad, * * * but he enjoys being with mom. Mom makes him feel

more comfortable, he’s more comfortable at mom’s house.”

       {¶ 20} As her final witness, appellee called her mother, M.M., who corroborated

appellee’s testimony that she has never been homeless. According to M.M., appellee has

been living with her since moving out of N.P.’s home in May 2018. M.M. further stated

that she has never observed appellee using drugs.

       {¶ 21} At the conclusion of M.M.’s testimony, the magistrate took the matter

under advisement. Ultimately, the magistrate determined that a change of circumstances

had taken place, justifying the modification of the preexisting custodial arrangement. In

a decision journalized on May 7, 2019, the magistrate named appellant the residential

parent of C.S., and granted appellee visitation “on an alternating week basis.”

       {¶ 22} On May 21, 2019, appellee filed objections to the magistrate’s decision,

arguing that the magistrate erred by ignoring the guardian ad litem’s recommendation

that she remain C.S.’s residential parent.

       {¶ 23} On September 12, 2019, the juvenile court issued its decision on appellee’s

objections. In its decision, the court found that “the issues giving rise to the instant action

(i.e., [appellant] alleging [appellee] is homeless, unemployed, abuses drugs and neglects

the minor child; and, [appellee] alleging [appellant] is refusing visits with minor child)

now appear to be resolved.” Consequently, the court went on to state that “there has not

been a change of circumstances in the life of the custodian or the minor child that




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would warrant a modification of custody at this time,” and found appellee’s objections

well-taken. The result of the trial court’s decision was a dismissal of the parties’ motions

to modify the allocation of parental rights and responsibilities, and a reversion “to the

November 15, 2016 Judgement Entry, wherein the parties agreed [appellee] would be

named residential parent and legal custodian.”

       {¶ 24} Following the trial court’s decision reversing the magistrate’s decision,

appellant filed his timely notice of appeal.

                                 B. Assignments of Error

       {¶ 25} On appeal, appellant assigns the following assignments of error for our

review:

              1. The Court’s determination that there was not a change in

       circumstances as required under R.C. 3109.04 to support a grant of Legal

       Custody to the Father was against the manifest weight of the evidence.

              2. The Court’s reversal of the Magistrate’s decision was an abuse of

       discretion.

Because appellant’s assignments of error are interrelated, we will address them

simultaneously.

                                        II. Analysis

       {¶ 26} In appellant’s assignments of error, he contends that the trial court erred in

reversing the magistrate’s decision and retaining appellee’s status as residential parent of

C.S.




8.
       {¶ 27} To justify a change of custody pursuant to R.C. 3109.04(E), the court must

find that there has been a change of circumstances for the child, the child’s parent or

parents, and that modification of parental rights and responsibilities is in the child’s best

interests. Davis v. Flickinger, 77 Ohio St.3d 415, 417, 674 N.E.2d 1159 (1997). In

determining whether such a change is sufficient to warrant a custody change, the court

must be afforded wide latitude. Id. at paragraphs one and two of the syllabus.

       {¶ 28} “A finding of a change of circumstances should not be disturbed absent an

abuse of discretion.” L.W. v. L.B., 6th Dist. Lucas No. L-09-1309, 2010-Ohio-2796, ¶ 52.

Moreover, we review the juvenile court’s decision reversing the magistrate’s decision for

an abuse of discretion. See In re L.M.L., 11th Dist. Portage No. 2016-P-0069, 2017-

Ohio-7451, ¶ 20, quoting In re Wiley, 11th Dist. Portage No. 2008-P-0062, 2009-Ohio-

290, ¶ 20 (“‘In reviewing a trial court’s decision to adopt or reject a magistrate’s

decision, an appellate court looks for abuse of discretion.’”). An abuse of discretion

connotes that the court’s attitude was arbitrary, unreasonable or unconscionable.

Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983).

       {¶ 29} In its September 12, 2019 judgment entry, the trial court found that

appellee had resolved the issues that prompted appellant to seek custody of C.S., namely

that appellee was homeless, unemployed, abusing drugs, and neglecting C.S.

Consequently, the trial court found that there was not a change of circumstances

warranting a change in the custodial arrangement set forth in the court’s November 15,

2016 entry.




9.
       {¶ 30} Our review of the record in this case supports the trial court’s finding of a

lack of a change of circumstances. Indeed, by the time of trial, appellant acknowledged

that his concerns were mostly resolved. Although appellee was unemployed, she

insisted, and appellant admitted, that she could provide safe housing for C.S. Further,

appellee had recently submitted a clean drug screen and M.M. testified that she had never

observed appellee abusing drugs. Appellant voiced concerns with C.S.’s education, but

there was substantial testimony presented by appellee to establish that C.S. was

progressing well at Ottawa River Elementary. As to appellant’s allegation that appellee

was neglectful in her parenting of C.S., appellant admitted to Bryant that appellee “never

did anything * * * to neglect [C.S.].”

       {¶ 31} Given the record before us, we find that the trial court did not abuse its

discretion when it found that appellant failed to establish a change of circumstances that

would justify a modification of custody in this case. Absent a change of circumstances,

the trial court properly reversed the magistrate’s decision modifying the preexisting

custodial arrangement between the parties.

       {¶ 32} Accordingly, we find appellant’s assignments of error not well-taken.

                                     III. Conclusion

       {¶ 33} For the foregoing reasons, the judgment of the Lucas County Court of

Common Pleas, Juvenile Division, is affirmed. Appellant is ordered to pay the costs of

this appeal pursuant to App.R. 24.

                                                                        Judgment affirmed.




10.
                                                                      S.S. v. F.M.
                                                                      C.A. No. L-19-1216




       A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.




Thomas J. Osowik, J.                           _______________________________
                                                           JUDGE
Christine E. Mayle, J.
                                               _______________________________
Gene A. Zmuda, P.J.                                        JUDGE
CONCUR.
                                               _______________________________
                                                           JUDGE


           This decision is subject to further editing by the Supreme Court of
      Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
           version are advised to visit the Ohio Supreme Court’s web site at:
                    http://www.supremecourt.ohio.gov/ROD/docs/.




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