[Cite as Beard v. Bloomfield, 2012-Ohio-2133.]




                      IN THE COURT OF APPEALS OF OHIO
                          THIRD APPELLATE DISTRICT
                              WYANDOT COUNTY



DAMIAN BEARD,

        PLAINTIFF-APPELLEE,

        v.                                               CASE NO. 16-11-09

BRENDA BLOOMFIELD,

        DEFENDANT-APPELLANT,
        -and-
                                                         OPINION
WYANDOT COUNTY JOB AND
FAMILY SERVICES, ET AL.,

        DEFENDANTS-APPELLEES.



                Appeal from Wyandot County Common Pleas Court
                                Juvenile Division
                            Trial Court No. I 2103032

                                     Judgment Affirmed

                             Date of Decision: May 14, 2012




APPEARANCES:

        John C. Filkins for Appellant

        Dennis E. Pfiefer for Appellee, Damian Beard
Case No. 16-11-09


WILLAMOWSKI, J.

       {¶1} Defendant-Appellant, Brenda Bloomfield (“Brenda” or “the Mother”),

appeals the judgment of the Wyandot County Court of Common Pleas, Juvenile

Division, designating Plaintiff-Appellee, Damian Beard (“Damian” or “the

Father”) as the residential parent of the unmarried couple’s young daughter, and

assigning other parental rights and responsibilities. On appeal, Brenda contends

that the trial court erred: in admitting a supplemental guardian ad litem report into

evidence after the conclusion of the hearing; in awarding custody to the Father; in

not providing the Mother with additional parenting time; and, when the judge did

not recuse herself due to an alleged conflict. For the reasons set forth below, the

judgment is affirmed.

       {¶2} Damian and Brenda are the parents of a young daughter, Riley, who

was born in January of 2009. The parties were never married, although they were

in a relationship and resided together in a home they both owned in Carey, Ohio,

along with Riley and Brenda’s two children from a previous marriage. Paternity

was not in dispute, and both parties acknowledged Damian was the father of Riley.

The parties’ relationship was very tumultuous, and Damian vacated the home in

March of 2010, while Riley remained in the parties’ home with Brenda.

       {¶3} On July 30, 2010, Damian filed a complaint requesting that he be

named the residential parent and legal custodian of Riley. Brenda filed an answer


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Case No. 16-11-09


wherein she requested that she be named residential parent and legal custodian. A

CASA Guardian Ad Litem (“GAL”), June Hess, was appointed for Riley. A

hearing for temporary orders was held, and on September 23, 2010, Brenda, who

had been caring for Riley since the separation, was named the temporary

residential parent and legal custodian.       Damian was afforded the standard

parenting time.

       {¶4} The conflicts between the parties continued after the separation, with

allegations that Damian tried to kick in the doors to the home, and that Brenda

might be suicidal and was not in touch with reality. Both parties raised concerns

about Riley’s care and well-being when with the other parent.           During the

pendency of the case, both parties alleged domestic violence and filed petitions for

civil protection orders.

       {¶5} A final hearing was held before a magistrate on December 14, 2010

and February 9, 2011. At the hearing, the trial court heard testimony from Brenda,

Damian, Damian’s father and mother, Brenda’s father, Brenda’s boyfriend,

Kimberly (a friend/roommate of Brenda), a police sergeant who had been called to

Brenda’s residence, and the GAL.

       {¶6} The GAL filed her report on December 5, 2010, and both parties had

the opportunity to review it before the hearing. The GAL testified at the final

hearing on February 9, 2011, and both parties cross-examined her. The GAL’s


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Case No. 16-11-09


report was detailed and involved numerous interviews with relatives, friends, and

various professionals, along with a review of correspondence, and psychological

reports and evaluations. The GAL’s conclusions were:

      In the GAL’s opinion, Riley will be in a better environment with her
      father, Damian Beard. Damian is very attentive to Riley’s every
      need engaging her in outside activities, fresh air, and age-appropriate
      play. The GAL witnessed where Riley likes to be held and read to in
      a rocking chair in Damian’s living room. Although the ‘farm’ house
      is not updated, all necessities are available on the first floor of the
      residence. Damian has a more positive, stable outlook in the GAL’s
      opinion. Brenda is very “emotionally charged” and has shown
      instability in choosing male companions and frequent moving.
      Brenda does not acknowledge any of her faults in relationships with
      male companions or others, but rather blames her life’s happenings
      on someone else.

(GAL 12/7/10 Report.) The report recommended that Damian be named the

residential parent and legal custodian. It recommended that Brenda have the

standard parenting visitation time with Riley, but that she also engage in

counseling until successfully released by the counselor. (Id.) The GAL again

stated this recommendation at the hearing, and also testified that she found Brenda

to be uncooperative, untruthful and unstable. (Trans. Vol. 2, pp. 52-55)

      {¶7} The parties stipulated that the GAL report be placed “under seal” and

submitted to the trial court for review and consideration along with documents

provided by Wyandot County Job and Family Services. The trial court received

results of the psychological testing that had been ordered and these documents

were placed in the trial court’s “Social File” and were not subject to public

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Case No. 16-11-09


inspection. Brenda objected to the trial court using the results of the MMPI

psychological testing done on her. (Mag. Dec., p. 2) Both parties submitted

various exhibits, but these were objected to and none of the exhibits were admitted

into evidence.

      {¶8} Subsequent to the hearing, the GAL submitted a “Supplemental

Report” on March 16, 2011, stating that she “must amend my previously

submitted report and take out the information about Mother’s current residence.

At minimum, I must supplement the report to indicate that I have NO knowledge

as to Mother or Riley’s current living environment. My previous recommendation

remains the same, only stronger.” (3/16/11 GAL Suppl. Rpt.) Attached was an

affidavit stating that on March 7, 2011, she had received information that Brenda

had vacated her residence; that she was unable to locate a new address for Brenda;

and that on March 15, 2011, she went to the residence and observed that it had

been vacated, with all of the furniture, toys, clothes and food removed. (Id.) She

further attested that “I do not know where or with whom Riley is residing except

when she is with Mr. Beard.” (Id.)

      {¶9} On March 22, 2011, the magistrate filed a lengthy and detailed report

containing findings of fact and conclusions of law along with her

recommendations. The magistrate concluded that it would be in Riley’s best

interest that Damian should be designated the residential parent and legal


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Case No. 16-11-09


custodian. The magistrate recommended that Brenda have standard parenting time

with Riley.

           {¶10} On March 30, 2011, the trial court filed an Interim Order, approving

and adopting the magistrate’s decision in its entirety and ordering that its terms

and conditions take effect. Extensions of time were granted for the filing of

objections, pending receipt and review of the transcript of proceedings.1 The

Interim Orders were extended several times before the final judgment entry.

           {¶11} On May 6, 2011, Damian requested that the trial court modify

companionship, asking that Brenda’s companionship with Riley be supervised

through Patchworks House. Damian alleged that on March 16, 2011, Brenda

pointed a loaded 357 Magnum at him (and at law enforcement officers who had

responded) while she was holding Riley. Thereafter, on April 26, 2011, Damian

was granted a 5-year Domestic Violence Civil Protection Order (“CPO”) by Judge

Kelbley in Wyandot County Domestic Relations Case 11-DR-0026. Riley was

also named a protected person under this CPO. Damian further requested that the

trial court interview the GAL relative to this matter. Brenda filed a motion in

opposition.

           {¶12} On May 10, 2011, the trial court filed a judgment entry in response to

these motions, stating that a hearing on the motions should be scheduled at the



1
    Brenda’s original attorney withdrew subsequent to the final hearing, and Brenda obtained new counsel.

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Case No. 16-11-09


earliest possible time because: (1) the CPO contained contradictions within it,

namely, it granted Brenda visitation with Riley pursuant to the magistrate’s

decision and yet, it also stated that Brenda was not to be within 500 feet of the

protected persons, which included Riley; and, (2) if the GAL has information that

is pertinent to the motion, then “due process demands that she be called as a

witness and subject to cross examination.” (May, 10, 2011 J.E.) A full-day

hearing was set for July 12, 2011 before the magistrate.

        {¶13} On August 2, 2011, after receiving and reviewing all of Brenda’s

numerous objections, and Damian’s response, the trial court overruled almost all

of the objections.2 The trial court adopted the magistrate’s decision and made it an

order of the court.

        {¶14} The trial court filed its final judgment entry on August 17, 2011.3

This judgment designated Damian as the residential parent and legal custodian of

Riley. Brenda was awarded standard parenting time consistent with the local

rules, and was ordered to pay child support.




2
  The trial court noted that the few objections that were sustained were inconsequential in nature and did
not affect the court’s determination of the appropriateness of the magistrate’s decision.
3
  The magistrate’s decision on the motion to modify parenting time was also filed on August 17, 2011,
reporting the magistrate’s findings of fact, conclusions of law, and recommendations as a result of the July
12, 2011 hearing on Damian’s motion to modify parenting time. The magistrate recommended that
Brenda’s parenting time with Riley be at Patchworks House, under Level 2 supervision. (See Aug. 17,
2011 Mag. Dec.) No objections were filed, and this decision was later adopted and made an order of the
court. (See Sept. 7, 2011 Judgment Entry)

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Case No. 16-11-09


      {¶15} It is from the trial court’s August 17, 2011, final judgment entry that

Brenda brings this appeal, raising the following four assignments of error for our

review.

                           First Assignment of Error

      The trial court erred in admitting into evidence, and relying
      upon, the supplemental guardian ad litem report that was filed
      after the final hearing because the report did not comply with
      Superintendence Rule 48 and the report violated [the Mother’s]
      due process rights.

                          Second Assignment of Error

      The trial court’s award of custody to [the Father] was against
      the manifest weight of the evidence and not in the best interest of
      the minor child.

                          Third Assignment of Error

      The trial court’s award of standard parenting time to [the
      Mother] was against the manifest weight of evidence and not in
      the best interest of the minor child.

                          Fourth Assignment of Error

      The trial court erred as a result of Judge Kathleen A. Aubry’s
      failure to recuse herself in the present case after she already
      recused herself from a companion case between the same two
      parties upon the basis that a conflict existed.

             First Assignment of Error – Supplemental GAL Report

      {¶16} In the first assignment of error, Brenda complains that the

supplemental GAL report contained new facts and evidence that were not testified

to at the hearing in this case, and yet they were mentioned and relied upon in the

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Case No. 16-11-09


magistrate’s decision. She cites several cases wherein it was considered reversible

error when the parties did not have the opportunity to cross-examine a GAL about

information submitted in a report.

       {¶17} A GAL is appointed to investigate the child’s situation in order to

make a recommendation to the court regarding the child's best interest. R.C.

3109.04(C); Ferrell v. Ferrell, 7th Dist. No. 01AP0763, 2002-Ohio-3019, at ¶ 43,

citing In re Baby Girl Baxter, 17 Ohio St.3d 229, 232 (1985). However, the

ultimate decision is for the trial judge and not a representative of the children.

Warnecke v. Warnecke, 3rd Dist. No. 12-2000-10, 2001-Ohio-2135.                     The

magistrate, as the trier of fact, is presumed to be capable of both weighing the

credibility of the GAL and disregarding any inadmissible findings in the report.

Brunip v. Nickerson, 7th Dist. No. 07 CO-42, 2008-Ohio-5052, ¶ 65. The court's

consideration of a GAL's report does not violate any party's due process rights as

long as the party had an opportunity to cross-examine the GAL on issues raised in

the report. In re Hoffman, 97 Ohio St.3d 92, 2002-Ohio-5368, at ¶ 25.

       {¶18} Brenda relies upon the Ohio Supreme Court’s holding in the case of

In re Hoffman and its progeny in support of her position. In Hoffman, the Ohio

Supreme Court held that, “[i]n a permanent custody proceeding in which the

guardian ad litem's report will be a factor in the trial court's decision, parties to the

proceeding have the right to cross-examine the guardian ad litem concerning the


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Case No. 16-11-09


contents of the report and the basis for a custody recommendation.” Id. at the

syllabus.4 The Court further held that “without these safeguards, there are no

measures to ensure the accuracy of the information provided and the credibility of

those who made the statements.” Id. at ¶ 25.

        {¶19} However, Hoffman is distinguishable in at least two important

aspects: (1) the parties in Hoffman were denied any opportunity to question or

cross-examine the GAL; and, (2) the case involved a permanent custody

proceeding and the termination of parental rights. All of the other cases cited by

Brenda in support of her opinion also involved permanent custody proceedings.

        {¶20} In a case involving a change of custody between the two parents,

similar to the case before us today, the Eleventh District Court of Appeals found

that Hoffman was distinguishable and not applicable. See Jackson v. Herron, 11th

Dist. No. 2003-L-145, 2005-Ohio-4046. In Jackson, the court of appeals found

that: “Hoffman was a permanent custody proceeding, i.e. a proceeding to

permanently terminate a parent's fundamental right to the care and custody of their

children. Such proceedings have infamously been referred to as ‘the family law

equivalent of the death penalty.’ In re Hayes, 79 Ohio St.3d 46, 48, (1997)

(citation omitted).” Jackson at ¶ 20. The procedural protections are not as critical

in a proceeding concerning the determination of which parent will be the child’s


4
 The Supreme Court was resolving a certified question concerning the application of R.C. 2151.414(C),
pertinent to permanent custody proceedings.

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Case No. 16-11-09


“residential parent and legal custodian,” as “custody orders are ‘of temporary

nature * * * and never final,’” and the other parent will still enjoy visitation with

the child and will bear the responsibility of participating in the child’s upbringing.

Id. But see, Allen v. Allen, 11th Dist. No. 1009-T-0070, 2010-Ohio-475, ¶¶ 34-40

(finding support for the application of Hoffman outside of permanent custody

proceedings, in addition to discussing cases which have found Hoffman to be

factually distinguishable and not applicable.)

       {¶21} While the better procedure would have been to either ignore the

supplemental report or to have allowed for a renewed cross-examination of the

GAL concerning the amended information, we do not find that the submission of

the supplemental report in this case was in any way prejudicial or that it affected

the outcome of the proceedings for the following reasons.           The information

provided was merely an informative, factual statement updating information

concerning the address/location of the Mother and child, and did not change the

GAL’s recommendation. The original report had already stated that the Mother

had a history of moving frequently and recommended that the Father be appointed

the residential parent. The parties had ample opportunity to question the GAL as

to her findings and recommendations at the hearing during direct, cross, redirect

and re-cross examinations. (Tr. Vol. II, pp. 42-158) And, the trial court indicated

that it was fully aware of its duty to protect the parties’ rights, when it refused to


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have any communication with the GAL, or consider any significant new facts or

modification of her position, without giving the parties the opportunity for a

hearing and cross-examination. (See May 10, 2011 J.E.).

           {¶22} Furthermore, a follow-up hearing was held on July 12, 2012.

Although it originally appeared as if the GAL would testify at this hearing, only

the two parents were witnesses. The magistrate’s decision sets forth the following

findings concerning the testimony at this hearing, which was held before the final

judgment entry:

           At the time of the last hearing, [Brenda] indicated she resided at the
           address of 5796 Township Highway 103, Carey, Ohio. [Damian]
           believed [Brenda] had vacated that residence. That property is in
           [Damian] and [Brenda’s] name jointly. [Brenda] did not notify
           [Damian] of a change in address. [Damian] believed [Brenda]
           vacated the premises as there was no heat on in the premises and it
           appeared “ransacked” with clothing strewn about and rooms stripped
           of furniture. Also, there were kitchen appliances missing. [Brenda]
           admitted to not staying at that residence and described her living
           arrangements on March 16, 2011 as “in the process of moving to
           Bluffton.”

(Emphasis added.) (Aug. 17, 2011 Mag. Dec., p. 2) After this hearing, Brenda did

file an “Intent to Relocate” on August, 3, 2011, stating that she was moving from

the Carey, Ohio address to Bluffton.5 Therefore, the information that Brenda

objects to in the GAL’s amended report was before the trial court prior to the final

judgment in this case, as a result of Brenda’s own testimony.



5
    Although the date listed for this move was represented to be “approx. 5-16-2011.”

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Case No. 16-11-09


          {¶23} Based on the above, if there was any error in the submission of the

GAL’s supplemental report, we find that it was harmless error and did not provide

any information that was not already substantiated by Brenda prior to the final

judgment entry.       There was no prejudice to Brenda.         See, Mackowiak v.

Mackowiak, 12th Dist. CA 2010-04-001, 2011-Ohio-3013, ¶ 78 (finding that the

juvenile court's failure to permit mother to cross-examine the GAL was not

prejudicial to mother).

          {¶24} Brenda’s complaint that she did not have the opportunity to cross-

examine the GAL as to the accuracy of the supplemental report was rendered moot

when she herself confirmed the accuracy of the report. The first assignment of

error is overruled.

    Second Assignment of Error – Custody to Father Against Manifest Weight

          {¶25} In her second assignment of error, Brenda contends that the trial

court’s decision to name Damian as the residential parent was against the manifest

weight of the evidence and was not in the best interest of the child. Brenda

maintains that when the evidence is applied to the statutory factors, the decision

should have been in favor of Brenda being named the residential and custodial

parent.

          {¶26} R.C. 3109.04(B)(1) requires a trial court to consider a child's best

interests when the trial court allocates parental rights. To determine a child's best


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Case No. 16-11-09


interests, a trial court must consider the non-exclusive list of factors set forth in

R.C. 3109.04(F)(1). Fricke v. Fricke, 3d Dist. No. 1-06-18, 2006-Ohio-4845, ¶ 7.

R.C. 3104.04(F)(1) states that the court shall consider all relevant factors,

including, but not limited to:

       (F)(1) In determining the best interest of a child pursuant to this
       section, whether on an original decree allocating parental rights and
       responsibilities for the care of children or a modification of a decree
       allocating those rights and responsibilities, the court shall consider
       all relevant factors, including, but not limited to:

       (a) The wishes of the child's parents regarding the child's care;

       (b) If the court has interviewed the child in chambers pursuant to
       division (B) of this section regarding the child's wishes and concerns
       as to the allocation of parental rights and responsibilities concerning
       the child, the wishes and concerns of the child, as expressed to the
       court;

       (c) The child's interaction and interrelationship with the child's
       parents, siblings, and any other person who may significantly affect
       the child's best interest;

       (d) The child's adjustment to the child's home, school, and
       community;

       (e) The mental and physical health of all persons involved in the
       situation;

       (f) The parent more likely to honor and facilitate court-approved
       parenting time rights or visitation and companionship rights;

       (g) Whether either parent has failed to make all child support
       payments, including all arrearages, that are required of that parent
       pursuant to a child support order under which that parent is an
       obligor;


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Case No. 16-11-09


       (h) Whether either parent or any member of the household of either
       parent previously has been convicted of or pleaded guilty to any
       criminal offense involving any act that resulted in a child being an
       abused child or a neglected child; * * *

       (i) Whether the residential parent or one of the parents subject to a
       shared parenting decree has continuously and willfully denied the
       other parent's right to parenting time in accordance with an order of
       the court;

       (j) Whether either parent has established a residence, or is
       planning to establish a residence, outside this state.

A trial court is not limited to the listed factors in R.C. 3109.04(F), but may

consider any other relevant factors in making a determination of child custody.

Shaffer v. Shaffer, 3d Dist. No. 11-04-22, 2005-Ohio-3884, ¶ 20.

      {¶27} A trial court has broad discretion in allocating parental rights, and its

decision will not be disturbed on appeal absent an abuse of discretion. Id. at ¶ 10,

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

Siefker, 3d Dist. No. 12–06–04, 2006–Ohio–5154, ¶ 4. An abuse of discretion is

more than an error of judgment; it implies that the trial court's attitude was

unreasonable, arbitrary, or unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d

217, 219 (1983). When applying the abuse of discretion standard, a reviewing

court may not simply substitute its judgment for that of the trial court. Berk v.

Matthews, 53 Ohio St.3d 161, 169 (1990). Furthermore, a reviewing court will not

reverse an award of custody that is supported by a substantial amount of



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competent, credible evidence as being against the weight of the evidence. Bechtol

v. Bechtol, 49 Ohio St.3d 21, 23, (1990).

       {¶28} The magistrate set forth the facts before the trial court and carefully

analyzed    each   applicable    factor   in     3104.04(F)(1)   before   making    her

recommendations. While Brenda is correct in that the facts pertaining to several

of the factors were either neutral, or positive to Brenda, the trial court’s findings as

to the significant factors (e), (f), and (j) weighed heavily against Brenda. The

magistrate’s report stated:

       (5) The mental health of both parents is concerning, with there
       being more concern about [Brenda’s] mental health than [Damian’s].
       [Damian] is an alcoholic, currently sober, without any structured
       support. [Brenda] will not allow the Guardian Ad Litem to talk to
       her longtime counselor, has an invalid MMPI due to invalid
       responses, blames others for all the wrongs in her life, continues to
       enter relationships with “abusive” men. [Brenda] subjects her
       children to these abusive relationships. As a result of the abuse, real
       or imaginary, the children have been uprooted and moved. [Brenda]
       is not truthful [with Dr. McIntyre] * * *. [Brenda] also was
       uncooperative with the Guardian Ad Litem. [Brenda] has told JFS
       that she can smell cancer and she has cured her son of cancer.
       [Brenda] has taken pictures of the child’s genitalia, and of her person
       on numerous occasions. The continuation of this behavior may have
       a negative impact on the emotional well being of the child.

       (6) [Brenda] has denied parenting time to [Damian] prior to the
       Court Order. * * *

       (8) [Brenda] has threatened to move, to Georgia, when she is upset
       with [Damian]. * * *

       (9) [Brenda] moves from relationship to relationship seemingly
       without pause. She has subjected her children to various men, all of

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Case No. 16-11-09


         which [Brenda] claims are abusive. She calls her children
         demeaning names. She gets physical with her children. * * *

(Mar. 22, 2011 Mag. Dec., pp. 19-21)

         {¶29} In determining the best interest of a child under R.C. 3109.04(F)(1),

the court has discretion in determining which factors are relevant. Hammond v.

Harm, 9th Dist. No. 23993, 2008-Ohio-2310, ¶ 51. The factors are merely to

provide guidance for the trial court in determining what is in the child’s best

interest, and each factor may not necessarily carry the same weight or have the

same relevance, depending upon the facts before the trial court.

         {¶30} Given the seriousness of some of the factors that weighed against the

trial court finding that Brenda should be the custodial parent, we do not find that

the trial court abused its discretion, or that the decision was against the manifest

weight of the evidence. Based on the above, the second assignment of error is

overruled.

                     Third Assignment of Error – Parenting Time

         {¶31} Brenda asserts that the trial court erred in analyzing the factors under

R.C. 3109.051 in addressing parenting time for the non-residential parent. Brenda

particularly believes she should have been granted more parenting time with Riley

because she is currently unemployed and is available to watch Riley while Damian

works.



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       {¶32} The trial court’s establishment of a non-residential parent's visitation

rights is within its sound discretion, and will not be disturbed on appeal absent a

showing of an abuse of discretion. Fordham v. Fordham, 3rd Dist. No. 8–08–17,

2009–Ohio–1915, ¶ 18, citing Appleby v. Appleby, 24 Ohio St.3d 39, 41 (1986).

As stated above, an abuse of discretion connotes that the trial court's attitude was

unreasonable, arbitrary or unconscionable.        Blakemore v. Blakemore, supra.

Additionally, the trier of fact is in the best position to observe the witnesses, weigh

evidence, and evaluate testimony. Clark v. Clark, 3d Dist. No. 14-06-56, 2007-

Ohio-5771, ¶ 23, citing In re Brown, 98 Ohio App.3d 337 (1994).

       {¶33} Pursuant to R.C. 3109.051(D), the trial court shall consider the

fifteen factors enumerated in the statute, and in its sound discretion determine

visitation that is in the best interest of the child. Braatz v. Braatz, 85 Ohio St.3d

40, 44, 1999-Ohio-203; See, generally, Booth v. Booth, 44 Ohio St.3d 142, 144

(1989). As it did with the factors in R.C. 3104.04(F) in determining the residential

parent, the trial court again listed the facts that were relevant to the applicable

factors under R.C. 3109.051(D).       Similar to what was found in the previous

assignment of error, some of the factors were neutral or were not applicable.

However, of particular concern to the trial court in this case were the following

factors in R.C. 3109.051(D):

       (7) The health and safety of the child;


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Case No. 16-11-09


       ***

       (9) The mental and physical health of all parties;

       (10) Each parent's willingness to reschedule missed parenting time
       and to facilitate the other parent's parenting time rights, and with
       respect to a person who requested companionship or visitation, the
       willingness of that person to reschedule missed visitation;

       ***

       (14) Whether either parent has established a residence or is planning
       to establish a residence outside this state;

       ***

       (16) Any other factor in the best interest of the child.

       {¶34} The magistrate listed the following concerns as applicable to the

above statutory factors.

       The health and safety of the child is a troubling concern as it relates
       to the mental health of [Brenda]. * * *

       [Brenda] does not appear willing to facilitate a relationship between
       [Damian] and the child. She has called [Damian] the devil, and
       stated God cursed her with a child with [Damian]. [Brenda’s] oldest
       child is filled with hate for his father. There was no indication
       [Brenda] would not encourage Riley to hate her father as well. * * *

       [Brenda] does harmful things to her children when she is mad. She
       calls her teenage son names, like retarded, stupid and a dumb ass,
       and deliberately smokes around them all when she is mad. When
       she was mad at [Damian] she threatened to move his daughter to
       Georgia.

(Mar. 22, 2011 Mag. Dec., pp. 21-22)



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Case No. 16-11-09


       {¶35} While a child’s best interest might sometimes be better served by

spending extra time with a non-working, non-residential parent while the custodial

parent is at work, that is not always the case. Again, given the seriousness of the

negative factors in this case, we do not find that the trial court abused its discretion

in limiting the amount of parenting time Brenda has with the child. Based on the

above, the third assignment of error is overruled.

                  Fourth Assignment of Error – Recusal of Judge

       {¶36} In the final assignment of error, Brenda submits that because Judge

Kathleen Aubry recused herself from Case #11-DR-0026 (see ¶ 11 above) wherein

Damian requested a CPO, she should have recused herself from all companion

cases pending before her between the same parties. Because Brenda claims that

Judge Aubry is “conflicted” from presiding over this case, and Judge Aubry

appoints her magistrate, she contends that Magistrate O’Connell also has a conflict

and lacked jurisdiction to hear the evidence in this case.

       {¶37} Brenda has not provided any specific facts as to why Judge Aubry

might have a conflict with this case, nor does she provide any case law or any

citations to the record indicating that Judge Aubry would have a conflict in this

case. Damian represents that the reasoning behind Judge Aubry’s recusal in the




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companion case was because of a conflict that was of very short duration and not

applicable to the case at bar.6

        {¶38} The statute governing disqualification of a judge of common pleas

court provides the exclusive means by which a litigant may claim that a common

pleas court judge is biased and prejudiced, warranting recusal. R.C. § 2701.03;

Jones v. Billingham, 105 Ohio App.3d 8, 11 (2d Dist.1995). R.C. 2701.03 sets

forth the proper procedures and states that:

        (A) If a judge of the court of common pleas allegedly is interested
        in a proceeding pending before the court, allegedly is related to or
        has a bias or prejudice for or against a party to a proceeding pending
        before the court or a party's counsel, or allegedly otherwise is
        disqualified to preside in a proceeding pending before the court, any
        party to the proceeding or the party's counsel may file an affidavit of
        disqualification with the clerk of the supreme court in accordance
        with division (B) of this section.

The record does not reflect that Brenda has followed the statutory procedures.

        {¶39} Furthermore, an appellate court does not have the authority to review

an assignment of error claiming that a judge is biased or prejudiced. Wiltz v. Clark

Schaefer Hackett & Co., 10th Dist. Nos. 11AP-64, 11AP-282, 2011-Ohio-6664, ¶

9. The Chief Justice of the Supreme Court of Ohio, or his designee, has exclusive

jurisdiction to determine a claim that a common pleas judge is biased or


6
  In his Appellee’s Brief, Damian represents that Brenda filed a complaint against Judge Aubry and Sheriff
Hetzel in the Upper Sandusky Municipal Court under case number CVI 1100029, just prior to Damian
filing his petition for a CPO against Brenda. Damian claims Aubry recused herself from the CPO case due
to the existence of a conflict. However, Brenda’s complaint against the judge and sheriff was dismissed
shortly thereafter on April 6, 2011.

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prejudiced. Id.; Section 5(C), Article IV, Ohio Constitution. Beer v. Griffith, 54

Ohio St.2d 440, 441 (1978); Fazio v. Gruttadauria, 8th Dist. No. 90562, 2008-

Ohio-4586, ¶ 25.

       {¶40} Brenda has not alleged any reasons why the judge in the trial court

should have recused herself, nor has she followed any of the correct procedures to

pursue this matter if there was any basis for her claim. Furthermore, this Court is

without jurisdiction to rule upon this matter. The fourth assignment of error is

overruled.

       {¶41} Having found no error prejudicial to the Appellant herein in the

particulars assigned and argued, we affirm the judgment of the trial court.

                                                               Judgment Affirmed

SHAW, P.J. and ROGERS, J., concur.

/jlr




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