[Cite as In re F.M.B., 2011-Ohio-5368.]


                      IN THE COURT OF APPEALS OF OHIO
                         FOURTH APPELLATE DISTRICT
                            WASHINGTON COUNTY

IN THE MATTER OF:              :
                               : Case No. 10CA28
F.M.B.                         :
                               : RELEASED: September 30, 2011
A MINOR CHILD.                 :
                               : DECISION AND JUDGMENT
                               : ENTRY
_____________________________________________________________
                       APPEARANCES:

Joseph H. Brockwell, Marietta, Ohio, for Appellant.

Nancy E. Brum, Marietta, Ohio, for Appellee.
_____________________________________________________________

McFarland, J.:

        {¶1} Appellant-Mother, F. S., appeals the decision of the Juvenile

Division of the Washington County Court of Common Pleas modifying the

allocation of parental rights and responsibilities and designating Appellee-

Father, R. B., residential parent of the parties’ minor child, F.M.B. On

appeal, Appellant contends that 1) the juvenile court abused its discretion

when it affirmed the decision of the magistrate when the magistrate used

against her facts from a prior contempt proceeding in which she was found

not guilty of contempt; and 2) the juvenile court abused its discretion, and its

judgment was against the manifest weight of the evidence, when it affirmed

the decision of the magistrate.
Washington App. No. 10CA28                                                        2


      {¶2} As the trial court conducted a de novo review of the record

before affirming the magistrate’s decision, and in light of our conclusion that

the trial court’s determinations regarding a change in circumstances and the

best interest of the child were supported by competent, credible evidence, we

cannot conclude that the trial court’s decision was an abuse of discretion or

was against the manifest weight of the evidence. As such, Appellant’s first

and second assignments of error are overruled. Accordingly, we affirm the

decision of the trial court.

                                    FACTS

      {¶3} Appellant and Appellee were never married but have one child,

F.M.B., born on November 18, 2005. On May 30, 2006, Appellee filed a

complaint for visitation in the general division of the Washington County

Court of Common Pleas, which was granted on April 24, 2007, and later

modified on December 24, 2007. On June 5, 2008, Appellee filed a verified

motion to modify allocation of parental rights and responsibilities in the

juvenile division of the Washington County Court of Common Pleas. The

general division visitation case was then transferred to the juvenile division.

      {¶4} Multiple motions were filed throughout the course of the

proceedings, including a June 6, 2008, motion to show cause filed by

Appellee alleging Appellant interfered with Appellee’s 2008 spring break
Washington App. No. 10CA28                                                                     3


visitation by failing to have the child at the airport on time and causing the

child to miss the scheduled flight. The magistrate ultimately found no

willful violation on Appellant’s part; however, the magistrate stated that

Appellant’s incompetence, lack of diligence and apparent inability to

facilitate the Appellee’s court ordered visitation and communication would

be considered in the pending motion to modify custody. On December 29,

2008, Appellee filed another motion to show cause alleging Appellant

refused Appellee visitation with the child from August 30, 2008 to

September 3, 2008, in violation of the visitation order.

           {¶5} A hearing on Appellee’s motion for modification, as well as the

pending contempt motion was held on January 20, 2009. On March 24,

2009, a magistrate’s decision on contempt and modification of custody and

corresponding judgment entry were issued. In the decision, the magistrate

found a willful violation on Appellant’s part with respect to the August 2008

visitation and as such Appellant was found in civil indirect contempt.1

Further, the magistrate’s decision, which included findings of fact and

conclusions of law, granted Appellee’s motion to modify allocation of

parental rights and responsibilities and designated Appellee residential




1
    This finding was later affirmed by the trial court in an entry dated September 10, 2010.
Washington App. No. 10CA28                                                    4


parent of F.M.B, based, in part, on its determination that a change in

circumstances had occurred related to Appellant’s denial of visitation.

      {¶6} Pertinent to this appeal, in finding Appellant in contempt

regarding the August 2008 visitation, the magistrate also stated that it should

have found Appellant in contempt with respect to the spring 2008 visitation.

Additionally, in light of the testimony presented regarding Appellant’s

conduct during visitation exchanges with F.M.B. and another one of her

children, the magistrate questioned Appellant’s mental condition. On April

6, 2009, Appellant filed objections to the magistrate’s decision. Appellant

filed additional objections on April 7, 2009. On May 11, 2009, the trial

court issued a judgment entry on modification of custody adopting the

magistrate’s decision, but which contained no final, appealable order

language.

      {¶7} On June 29, 2009, Appellant filed a supplemental memorandum

to her previously filed objections to the magistrate’s decision. In that

memorandum, Appellant argued that there was no willful or continuous

denial of visitation and that the magistrate improperly relied on the prior

spring break 2008 allegation of contempt, which was resolved in her favor.

Finally, on September 13, 2010, the trial court issued a decision and entry on

objections filed by Appellant to the magistrate’s decision on modification of
Washington App. No. 10CA28                                                     5


custody. In the entry, the trial court affirmed the magistrate’s decision

granting Appellee’s motion to modify allocation of parental rights and

responsibilities and designating Appellee residential parent of F.M.B. It is

from this judgment entry that Appellant now brings her timely appeal,

assigning the following errors for our review.

                        ASSIGNMENTS OF ERROR

“I.   THE JUVENILE COURT ABUSED ITS DISCRETION WHEN IT
      AFFIRMED THE DECISION OF THE MAGISTRATE WHEN THE
      MAGISTRATE USED AGAINST THE APPELLANT FACTS
      FROM A PRIOR CONTEMPT PROCEEDING IN WHICH THE
      APPELLANT WAS FOUND NOT GUILTY OF CONTEMPT.

II.   THE JUVENILE COURT ABUSED ITS DISCRETION, AND ITS
      JUDGMENT WAS AGAINST THE MANIFEST WEIGHT OF THE
      EVIDENCE, WHEN IT AFFIRMED THE DECISION OF THE
      MAGISTRATE.”

                    ASSIGNMENT OF ERROR I and II

      {¶8} In her first assignment of error, Appellant contends that the

juvenile court erred and abused its discretion in affirming the decision of the

magistrate when the magistrate relied upon facts from a prior contempt

motion in which Appellant was found not guilty. Appellant’s second

assignment of error alleges that the juvenile court’s affirmance of the

magistrate’s decision was against the manifest weight of the evidence and

was an abuse of discretion. As Appellant’s arguments are interrelated, we

will address them in conjunction with one another.
Washington App. No. 10CA28                                                          6


      {¶9} However, we initially address Appellant’s suggestion, implicit in

the wording of her assignments of error, that the trial court erred in adopting

or affirming the decision of the magistrate. Once a party objects to a

magistrate's decision in accordance with Juv.R. 40, the trial court must

“undertake an independent review as to the objected matters to ascertain that

the magistrate has properly determined the factual issues and appropriately

applied the law.” Juv.R. 40(D)(4)(d). “This rule, like Civ.R. 53(D)(4)(d),

‘contemplates a de novo review of any issue of fact or law that a magistrate

has determined when an appropriate objection is timely filed. The trial court

may not properly defer to the magistrate in the exercise of the trial court's de

novo review. The magistrate is a subordinate officer of the trial court, not an

independent officer performing a separate function.’ ” McCarty v. Hayner,

Jackson App. No. 08CA8, 2009-Ohio-4540 at ¶ 17; citing, Knauer v. Keener

(2001), 143 Ohio App.3d 789, 793, 758 N.E.2d 1234. As such, a trial court

may not “merely rubber-stamp” a magistrate's decision. McCarty at ¶ 17;

citing Roach v. Roach, (1992), 79 Ohio App.3d 194, 207, 607 N.E.2d 35.

Accordingly, “ ‘[t]he trial court should not adopt challenged [magistrate's]

findings of fact unless the trial court fully agrees with them-that is, the trial

court, in weighing the evidence itself and fully substituting its judgment for

that of the [magistrate], independently reaches the same conclusion.’ ”
Washington App. No. 10CA28                                                      7


McCarty at ¶ 17; citing DeSantis v. Soller (1990), 70 Ohio App.3d 226, 233,

590 N.E.2d 886.

      {¶10} In Hartt v. Munobe (1993), 67 Ohio St.3d 3, 5-6, 1993-Ohio-

177, 615 N.E.2d 617, the Supreme Court of Ohio discussed the relationship

between a referee, or in this case a magistrate, and a trial court:

“ * * * Civ.R. 53 places upon the court the ultimate authority and
responsibility over the referee's findings and rulings. The court must
undertake an independent review of the referee's report to determine any
errors. [Former] Civ.R. 53(E)(5); Normandy Place Assoc. v. Beyer (1982), 2
Ohio St.3d 102, 2 OBR 653, 443 N.E.2d 161, paragraph two of the syllabus.
Civ.R. 53(E)(5) allows a party to object to a referee's report, but the filing of
a particular objection is not a prerequisite to a trial or appellate court's
finding of error in the report. Id., paragraph one of the syllabus. The findings
of fact, conclusions of law, and other rulings of a referee before and during
trial are all subject to the independent review of the trial judge. Thus, a
referee's oversight of an issue or issues, even an entire trial, is not a
substitute for the judicial functions but only an aid to them. A trial judge
who fails to undertake a thorough independent review of the referee's report
violates the letter and spirit of Civ.R. 53, and we caution against the practice
of adopting referee's reports as a matter of course, especially where a referee
has presided over an entire trial .”

      {¶11} Ordinarily, a reviewing court will presume that the trial court

performed an independent analysis in reviewing the magistrate's decision.

See Hartt v. Munobe at 7. Thus, the party asserting error bears the burden of

affirmatively demonstrating the trial court's failure to perform its duty of

independent analysis. Arnold v. Arnold, Athens App. No. 04CA36, 2005-

Ohio-5272, at ¶ 31; Mahlerwein v. Mahlerwein, 160 Ohio App.3d 564,

2005-Ohio-1835, 828 N.E.2d 153, at ¶ 47. Further, simply because a trial
Washington App. No. 10CA28                                                        8


court adopted the magistrate's decision does not mean that the court failed to

exercise independent judgment. State ex rel. Scioto County Child Support

Enforcement Agency v. Adams (July 23, 1999), Scioto App. No. 98CA2617,

1999 WL 597257. Juv.R. 40(D)(4) allows the trial court to adopt the

magistrate's decision if the court fully agrees with it. Id., citing In re Dunn

(1995), 101 Ohio App.3d 1, 8, 654 N.E.2d 1303.

      {¶12} In her first assignment of error, Appellant contends that the trial

court erred and abused its discretion when it affirmed the magistrate’s

decision, claiming that magistrate’s decision relied on a prior contempt

proceeding of which Appellant was found not guilty. Appellant contends

that she was found not guilty of the contempt motion filed with respect to

the 2008 spring break visitation but that the magistrate nevertheless relied

upon the facts that formed the basis of the contempt motion in determining

to reallocate parental rights.

      {¶13} The trial court’s September 13, 2010, decision and entry on

objections filed by Appellant to the magistrate’s decision on modification of

custody was twenty-four pages long and included findings of fact and

conclusions of law. Further, the trial court indicated that it had reviewed the

332 page transcript and had listened to parts of the recorded hearing.

Pertinent on appeal, the trial court issued findings and conclusions different
Washington App. No. 10CA28                                                       9


from the magistrate on two key issues, one of which related to the spring

break visitation contempt motion. Specifically with respect to that contempt

motion, the trial court stated as follows:

“The mother also caused the father not have his spring break visitation with
the child on March 20, 2008. This failure to facilitate visitation was the
subject of a contempt hearing held in this Court on July 18, 2008. After the
conclusion of the evidence this Magistrate declined to find the mother in
willful violation of the visitation orders since the mother did in fact attempt
to get the child to the Columbus, Ohio airport where she was to be picked up
by the Paternal grandmother and fly back to Louisiana with her. The mother
poorly planned for the drive to Columbus and did not allow sufficient time
to get there. She was unable to get there before the grandmother’s return
flight to Louisiana had to leave. While the mother’s behavior was found not
be contemptuous, it certainly shows a lack of concern on her part in
facilitating visitation with the father. She is intelligent enough to figure out
how much time to allow to get to the airport and to get through the security
process, especially since she drove to the same airport for an exchange the
year before.”

      {¶14} Thus, although the magistrate seemed to suggest in its decision

that in hindsight it should have held Appellant in contempt for the visitation

problem during spring break 2008, the trial court’s affirmance of the

magistrate’s decision clarifies that Appellant was not found in contempt on

that occasion. The trial court’s decision also properly noted that even

though Appellant’s conduct was not willful, it demonstrated a lack of

concern in facilitating visitation. In light of the foregoing, we do not believe

that Appellant has pointed to any circumstances present in the record to

show that the trial court failed to independently review the magistrate's
Washington App. No. 10CA28                                                      10


decision. Thus, there is no indication that the trial court merely “rubber-

stamped” the magistrate's decision. Accordingly, Appellant’s first

assignment of error is overruled.

      {¶15} We next address Appellant’s second assignment of error, which

essentially challenges the trial court’s decision to modify the allocation of

parental rights and responsibilities. “ ‘Appellate courts typically review

trial court decisions regarding the modification of a prior allocation of

parental rights and responsibilities with the utmost deference.’ ” Enz v.

Lewis, Scioto App. No. 10CA3357, 2011-Ohio-1229 at ¶ 19; see also,

Wilson v. Wilson, Lawrence App. No. 09CA1, 2009-Ohio-4978, at ¶ 21,

citing Davis v. Flickinger, 77 Ohio St.3d 415, 418, 1997-Ohio-260, 674

N.E.2d 1159; Miller v. Miller (1988), 37 Ohio St.3d 71, 74, 523 N.E.2d 846.

See, also, Posey v. Posey, Ross App. No. 07CA2968, 2008-Ohio-536, at ¶

10; Jones v. Jones, Highland App. No. 06CA25, 2007-Ohio-4255, at ¶ 33.

Consequently, we apply an abuse-of-discretion standard when reviewing a

trial court's decision regarding the modification of parental rights and

responsibilities. See Enz at ¶ 19; Wilson at ¶ 21; Jones at ¶ 33; Posey at ¶ 10.

      {¶16} In Davis, the court defined the applicable abuse of discretion

standard in custody proceedings as follows:

“Where an award of custody is supported by a substantial amount of credible
and competent evidence, such an award will not be reversed as being against
Washington App. No. 10CA28                                                       11


the weight of the evidence by a reviewing court. ‘The reason for this
standard of review is that the trial judge has the best opportunity to view the
demeanor, attitude, and credibility of each witness, something that does not
translate well on the written page. * * * The underlying rationale of giving
deference to the findings of the trial court rests with the knowledge that the
trial judge is best able to view the witnesses and observe their demeanor,
gestures and voice inflections, and use these observations in weighing the
credibility of the proffered testimony. * * * A reviewing court should not
reverse a decision simply because it holds a different opinion concerning the
credibility of the witnesses and evidence submitted before the trial court. A
finding of an error in law is a legitimate ground for reversal, but a difference
of opinion on credibility of witnesses and evidence is not. The determination
of credibility of testimony and evidence must not be encroached upon by a
reviewing tribunal, especially to the extent where the appellate court relies
on unchallenged, excluded evidence in order to justify its reversal. * * * This
is even more crucial in a child custody case, where there may be much
evident in the parties' demeanor and attitude that does not translate to the
record well.’ ” Posey at ¶ 10, quoting Davis at 418-19, 674 N.E.2d 1159
(other internal quotations omitted). See, also, Wilson at ¶ 21; Jones at ¶ 33.

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

prior decree allocating parental rights, 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
Washington App. No. 10CA28                                                       12


modification is in the best interest of the child and one of the following

applies: * * *.”

      {¶18} “ ‘Only R.C. 3109.04(E)(1)(a) expressly authorizes a court to

modify a prior decree allocating parental rights and responsibilities.’ ”Posey

at ¶ 11, quoting Fisher v. Hasenjager, 116 Ohio St.3d 53, 2007-Ohio-5589,

876 N.E.2d 546 at ¶ 21. “Thus, a trial court may modify an allocation of

parental rights and responsibilities only if the court finds (1) that a change in

circumstances has occurred since the last decree, (2) that modification is

necessary to serve the best interest of the child, and (3) that the advantages

of modification outweigh the potential harm.” Jones at ¶ 35, citing Beaver v.

Beaver, 143 Ohio App.3d 1, 9, 2001-Ohio-2399, 757 N.E.2d 41.

      {¶19} In her second assignment of error, Appellant contends that the

trial court erred and abused its discretion in affirming the magistrate’s

decision and that the decision of the trial court was against the manifest

weight of the evidence. Appellant argues that if the facts surrounding the

2008 visitation are taken out of the equation, the magistrate’s finding that

Appellant continuously and willfully denied visitation cannot be supported.

Appellant further contends that once this factor is removed, the remaining

R.C. 3109.04(F)(1) factors balance in her favor. Appellant also contends
Washington App. No. 10CA28                                                     13


that the magistrate’s questioning of her mental health was unfounded, as

there was no evidence of any mental health problem introduced.

      {¶20} In response, Appellee contends that the magistrate did not rely

solely upon the facts related to the 2008 spring break visitation. For

instance, Appellee points to other evidence in the record demonstrating that

Appellant also caused a problem with the 2008 summer visitation, failed to

facilitate telephone communication between the child and Appellee and

frequently involved the police during visitation exchanges. With respect to

Appellant’s mental health, Appellee contends that testimony introduced

regarding Appellant’s bizarre behavior, false sexual abuse accusations and

erratic driving incident that occurred during the visitation exchange with her

other child’s father, demonstrated emotional harm to the children.

      {¶21} As set forth above, the trial court’s September 13, 2010,

decision and entry on objections filed by Appellant to the magistrate’s

decision on modification of custody indicated that the trial court had

reviewed the 332 page transcript as well as parts of the recorded hearing.

Further, as set forth above, the trial court’s findings clearly acknowledged

that Appellant was not found in contempt related to the 2008 spring break

visitation. However, the trial court did find that although Appellant’s

actions were not willful, Appellee was nevertheless denied his visitation
Washington App. No. 10CA28                                                      14


with the child as a result Appellant’s lack of concern in facilitating

visitation.

       {¶22} Further, as argued by Appellee, the trial court cited to other

instances that demonstrated Appellant’s failure to facilitate visitation with

the child, which the trial court determined constituted a change in

circumstances. These instances included making an allegation that F.M.B

had a fever and Lyme disease apparently in an effort to disrupt Appellee’s

2008 summer visitation, denying Appellant visitation in August 2008,

generally creating conflicts during visitation exchanges, and continually

failing to facilitate telephone communication between Appellee and F.M.B.

Based upon a review of the record, the trial court’s determination that a

change in circumstances had occurred, due to Appellant’s continued refusal

to abide by the visitation order, was based upon substantial, competent and

credible evidence. As such, the trial court’s determination was not against

the manifest weight of the evidence or an abuse of discretion.

       {¶23} The trial court then performed a best interest analysis,

discussing and weighing each factor under R.C. 3109.04(F)(1). Appellant

contends that by taking the spring break 2008 alleged contempt out of the

equation, there was no continuous and willful denial under R.C.

3109(F)(1)(i), and thus, the best interest analysis should have been resolved
Washington App. No. 10CA28                                                     15


in her favor. However, in our view, the trial court properly concluded that

even though Appellant’s actions may not have been willful during spring

break 2008, they certainly demonstrated a lack of concern in facilitating

visitation. Further, Appellant’s other actions, as described above,

demonstrate Appellant’s unwillingness to facilitate visitation, which the trial

court properly considered under R.C. 3109.04(F)(1)(f). As such, we reject

Appellant’s contention that the trial court could not have determined a

change in custody was in the best interest of the child in the absence of

mistakenly relying on the spring break 2008 allegation of contempt.

       {¶24} Appellant also contends that the trial court erroneously relied

upon the magistrate’s “questioning” of Appellant’s mental status in

affirming the magistrate’s decision. However, as we noted above, the trial

court’s decision differed from the magistrate’s decision in two key areas.

The first dealt with contempt, as discussed above. The second key issue that

the trial court differed from the magistrate on was the issue of Appellant’s

mental health. Specifically, with respect to Appellant’s mental health, the

trial court stated as follows when weighing the R.C. 3109.04(F)(1) best

interest of the child factors:

“There was no evidence of any relevant mental health disorders involving
either parent. This factor balances out.”
Washington App. No. 10CA28                                                        16


      {¶25} Thus, although the magistrate appeared to “question”

Appellant’s mental heath status, the trial court clearly determined that there

had been no evidence of mental health disorders introduced and that this

factor balanced out of the best interest analysis. As such, we find that in

affirming the magistrate’s decision, the trial court conducted a de novo

review of the evidence, and did not rely on those particular findings of the

magistrate in affirming the magistrate’s ultimate decision.

      {¶26} After determining that a change in circumstances had occurred

and that it was in the best interest of the child to reallocate parental rights

and responsibilities, the trial court further found, as required under R.C.

3109.04(E)(1)(a)(iii) that the harm likely to be caused by a change in

environment was outweighed by the advantages. We conclude, after a

thorough review of the record, that the trial court could have rationally

concluded that F.M.B.’s best interests would be better served by designating

R.B. as the residential parent. Further, as the trial court’s determinations

were supported by substantial, competent and credible evidence, we cannot

conclude that the trial court’s decision was an abuse of discretion or against

the manifest weight of the evidence. Thus, Appellant’s second assignment

of error is overruled.
Washington App. No. 10CA28                                              17


      {¶27} Having overruled both of Appellant’s assignments of error, we

affirm the decision of the trial court.

                                           JUDGMENT AFFIRMED.
Washington App. No. 10CA28                                                    18


                             JUDGMENT ENTRY

     It is ordered that the JUDGMENT BE AFFIRMED and that the
Appellee recover of Appellant costs herein taxed.

      The Court finds there were reasonable grounds for this appeal.

     It is ordered that a special mandate issue out of this Court directing
the Washington County Common Pleas Court, Juvenile Court to carry this
judgment into execution.

       Any stay previously granted by this Court is hereby terminated as of
the date of this entry.

      A certified copy of this entry shall constitute the mandate pursuant to
Rule 27 of the Rules of Appellate Procedure.
Exceptions.


Harsha, P.J. and Abele, J.: Concur in Judgment and Opinion.




                                For the Court,

                                BY: _________________________
                                    Matthew W. McFarland, Judge


                         NOTICE TO COUNSEL

      Pursuant to Local Rule No. 14, this document constitutes a final
judgment entry and the time period for further appeal commences from
the date of filing with the clerk.
