[Cite as Bashale v. Quaicoe, 2013-Ohio-3101.]




                                       COURT OF APPEALS
                                   DELAWARE COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT


PAULINE BANKESHA BASHALE                        :   JUDGES:
                                                :
                                                :   Hon. William B. Hoffman, P.J.
        Plaintiff - Appellant                   :   Hon. Patricia A. Delaney, J.
                                                :   Hon. Craig R. Baldwin, J.
                                                :
-vs-                                            :
                                                :
FRANCIS B. QUAICOE                              :   Case No. 12 CAF 10 0075
                                                :
                                                :
        Defendant - Appellee                    :   OPINION



CHARACTER OF PROCEEDING:                            Appeal from the Delaware County
                                                    Court of Common Pleas, Juvenile
                                                    Division, Case No. 10-03-0076AD




JUDGMENT:                                           Affirmed




DATE OF JUDGMENT:                                   July 12, 2013




APPEARANCES:

For Plaintiff-Appellant                             For Defendant-Appellee

PAMELLA A. LAMMON                                   Francis Quaicoe
Attorney at Law                                     7520 Cook Road, Apt. 1606
103 North Union Street, Suite D                     Houston, TX 77072
Delaware, OH 43015
Delaware County, Case No. 12 CAF 10 0075   2




CELESTE MANNS-BRAMMER
Guardian ad Litem
P.O. Box 2451
Westerville, OH 43086
Delaware County, Case No. 12 CAF 10 0075                                                     3

Baldwin, J.

      {¶1}    Plaintiff-appellant Pauline Bankesha Bashale appeals from the October 3,

2012 Judgment Entry of the Delaware County Court of Common Pleas, Juvenile

Division, designating defendant-appellee Francis B. Quaicoe custodian and residential

parent of the parties’ minor child.

                           STATEMENT OF THE FACTS AND CASE

      {¶2}    Appellant Pauline B. Bashale and appellee Francis B. Quaicoe are the

parents of Masolean Esther Quaicoe (DOB 11/11/05) (hereinafter “Esther”). On March

25, 2010, appellant filed a complaint for the allocation of parental rights and

responsibilities, seeking to be designated Esther’s custodial and residential parent.

Attached to the complaint was a copy of an original petition for divorce that appellee had

filed against appellant on February 2, 2010 in Texas.

      {¶3}    Appellant, on March 26, 2010, filed a motion for emergency temporary

orders, seeking emergency temporary custody of Esther. Appellant, in her motion,

alleged that at the end of January of 2010, appellee had taken Esther to Texas without

her knowledge and consent and had not allowed her to have contact with Esther.

Pursuant to a Magistrate’s Decision filed on April 8, 2010 and approved and adopted by

the court, the court found that the Delaware County Court of Common Pleas, Juvenile

Division, had jurisdiction over Esther and granted appellant temporary emergency

custody. The court further ordered that Esther be immediately returned to appellant’s

physical custody of her. A hearing was scheduled for April 20, 2010.

      {¶4}    Neither appellee nor counsel on his behalf appeared at the April 20, 2010

emergency hearing before the Magistrate. The Magistrate, in her April 26, 2010 decision
Delaware County, Case No. 12 CAF 10 0075                                                   4


that was approved and adopted by the trial court, indicated that appellant’s counsel had

informed the court that appellant had been unable to gain physical custody of Esther,

despite having traveled to Texas. The court once again granted appellant temporary

emergency custody of Esther and ordered that she be immediately returned to Ohio.

     {¶5}    Appellee, on May 7, 2010, filed an answer to the complaint. On May 10,

2010, the court held a continuation of the emergency hearing at which both appellant

and appellee appeared along with appellant’s counsel. The Magistrate, in her May 18,

2010 decision which was approved and adopted by the trial court, found that appellant

had regained custody of Esther on May 9, 2010 and designated appellant her

temporary legal custodian and residential parent. The court also appointed a Guardian

ad Litem.

     {¶6}    On February 13, 2012, the Guardian ad Litem filed her report and

recommendation. The Guardian ad Litem, in her report, recommended that custody of

Esther be granted to appellant and that appellee be granted long distance visitation.

The Guardian ad Litem indicated that she was not sure that appellee had the capacity to

care for Esther because his job required travel and that appellee “goes back and forth

on this issue of if he could be custodian or not.” The Guardian ad Litem, in a

subsequent report and recommendation filed on July 23, 2012, recommended that

appellee have custody and that appellant be granted long distance visitation. The

Guardian ad Litem indicated that she believed that appellee would ensure that the child

had a relationship with both parents and would make sure that the child had a “good

school career.”
Delaware County, Case No. 12 CAF 10 0075                                                       5


      {¶7}    A trial on appellant’s complaint for the allocation of parental rights and

responsibilities was held on July 30, 2012. At the time of the trial, the parties were still

married.

      {¶8}    At the trial, Amy West testified that she was appellant’s former neighbor

and that the two became friends. She testified that she had known appellant and Esther

for approximately one year and that Esther was in her Girl Scout Group. West testified

that she had worked as a Court Appointed Special Advocate for 10 to 11 years before

quitting about two years earlier. West, who has four children of her own and a stepson,

testified that when appellant lived near her, she saw appellant and Esther around a

couple of times a week. She testified that since appellant moved in April or May of 2012,

she saw appellant and Esther about once a week. West also saw Esther independently

due to her work as a substitute teacher and the leader of a Girl Scout Troop. According

to West, appellant was a good mother and never yelled or was mean to her daughter.

West indicated that appellant was very loving and caring and that Esther was always

clean and well-behaved. West further testified that Esther had developed friendships

with other girls in the Girl Scout Troop.

      {¶9}    West testified that she had been over to appellant’s apartment and that it

was nice, clean and in a nice neighborhood. She indicated that Esther had her own

room in the apartment. When asked, West testified that she had never heard appellant

speak negatively about appellee and had never heard Esther say anything negative

about him. West further testified that the Delaware City Schools kindergarten schedule

was confusing because it changed every week. She stated that she had no concerns

about appellant being designated Esther’s custodial parent.
Delaware County, Case No. 12 CAF 10 0075                                                         6


      {¶10}   On cross-examination, West testified that appellant had five children and

that she was aware that appellant had changed residences three (3) times in one year.

West stated that she knew that appellant’s son, Matthew, did not attend school

regularly. Esther, according to West, was late for Girl Scout meetings. Esther was

usually taken to the meetings by either appellant or Matthew.        West also testified that

Esther was social and made friends easily.

      {¶11}   At the trial, appellant testified that she lived in Delaware, Ohio and was still

married to appellee and had been since 2003. She testified that appellee left for good in

2008 and was currently residing in Houston, Texas.            Appellant testified that after

appellee left in 2008, the marital home was foreclosed on. According to appellant,

Esther, who was born in Ohio, stayed with her after the parties separated. Appellant

indicated that she did not believe that appellee, who was born in Ghana, had any family

in the United States. She further testified that appellee had five children in London and

was a citizen of Ghana and the UK.

      {¶12}   Appellant testified that she was born in Burundi and was a United States

citizen. She has been in the United States since 1994 and testified that she was

recently hired as a substitute teacher in a school where she will initially earn $11.50 an

hour. After three months, her salary will be increased to $12.50 an hour for a forty hour

week. Appellant testified that she would be working from 7:30 a.m. to 3:00 p.m. Monday

through Friday. She testified that she intended to drop Esther off at the SAC program

at 7:00 a.m. on school days and that after school, Esther would go back to SAC until

appellant picked her up around 4:00 p.m. Appellant testified that she believed that cost

for SAC would be $280.00 per month.
Delaware County, Case No. 12 CAF 10 0075                                                     7


      {¶13}   Previously, appellant had worked about 40 hours a week at Arbors of

Delaware where she earned $11.05 an hour and received a one dollar an hour shift

differential. She testified that she was paid every two weeks and that her gross pay for

June 25, 2012 was $460.92. During the June 11, 2012 pay period, appellant earned

$1,685.15. Appellant was terminated from such job on or about June 24, 2012.

      {¶14}   When asked, appellant testified that she was not paying or receiving any

spousal or child support. She does not have any additional minor children in her

household. According to appellant, she has been residing at her current address, an

apartment, since March of 2012 and her lease was scheduled to expire in March of

2013. She testified that Esther had her own bedroom in the apartment, that the

neighborhood was quiet and safe and that Esther had made friends at the apartment

complex. Matthew, appellant’s son, also lived there. She testified that appellee had

evicted her from the marital home, which was foreclosed on, and that she then moved

to Virginia to be with family. Appellant testified that she stayed in Virginia for about a

month before returning to Ohio because Matthew refused to go to Virginia.

      {¶15}   Appellant, upon her return to Ohio, struggled for awhile. She testified that

appellee sent her $200.00 in July of 2012, but that he did not send her money on a

regular basis to make sure that Esther was taken care of. According to appellant, both

her health and Esther’s health was good and she had a good relationship with Esther.

Appellant indicated that she was a good mother who was involved with her daughter

and her daughter's schooling. Appellant admitted that Esther had attendance problems

during her kindergarten year. She testified that such problems were due to confusion

over which school Esther was supposed to attend and the school schedule as well as
Delaware County, Case No. 12 CAF 10 0075                                                     8


car issues and sickness. Appellant indicated that the attendance issues had been

remedied. She further testified that she was the primary caregiver when she was still

with appellee and also since their separation and that appellee had not seen Esther on

a consistent basis since they separated in 2008.        Appellant testified that in 2010,

appellee came and got Esther when appellant was not present and took her to Texas

for three months. Appellant testified that she went out to Texas three times to get

Esther until she finally got her back. She further testified that when she got Esther

back, Esther’s lips were cracked, she looked dehydrated and her hair was not cared

for and she was skinny. Appellant took Esther to the doctor and for counseling. She

testified that appellee did not talk to Esther much unless there was a court date.

       {¶16}   During the trial, appellant testified that appellee had threatened to take

Esther to Ghana. She testified that appellee did not exercise his two weeks visitation in

July of 2012. Appellant testified that she should be granted custody because she had

been with Esther since Esther was born, with the exception of the time when appellee

took Esther to Texas for three months. She stressed that she was a good mother.

Appellant voiced concerns that appellee traveled and worked a lot and also testified

that Gigi, her daughter and appellee’s stepdaughter, said that appellee had molested

her.

       {¶17}   Appellant testified that Esther was involved in Girl Scouts, dance and

church activities and that she herself was taking college classes online at the cost of

$11,000.00 a year in order to get a Master’s in Public Health. Appellant took out loans to

pay for the degree and testified that the program would take a year and a half. Appellant

had started taking the classes two months earlier. Appellant testified that she also is
Delaware County, Case No. 12 CAF 10 0075                                                      9


completing an internship that takes approximately 36 hours a year, or a total of 72

hours.

      {¶18}   On cross-examination, appellant testified that she was starting her new job

on August 7, 2012 and that she would be working approximately 35 minutes away. She

admitted that it was fair to say that she had significantly increased her travel costs to

take such job. Appellant admitted that her son, Matthew, had significant problems with

attendance and being tardy while he was in high school. Matthew’s attendance records

were admitted as a stipulated exhibit. During his senior year, he had 62 days when he

was either tardy, unexcused or absent.       Matthew also had serious attendance and

tardiness issues during his 10th and 11th grade years. Appellant also admitted that her

daughter Angela missed 32 days while in the 12th grade and was late 24 times during

her senior year and had attendance and/or tardiness issues during her junior year. In

addition, during her kindergarten year, Esther, who only went to school five out of every

ten days, was unexcused tardy 23 times. Appellant admitted that she had taken Esther

to school on a day when she was not scheduled to be there.

      {¶19}   Appellant also admitted that, at times, her phone was not able to take

messages and also admitted that the Guardian ad Litem had mentioned to her that she

was having a hard time getting hold of appellant because her voice mailbox was full.

She testified that she had told appellee to text her. Appellant also testified that she had

a falling out with her daughter, Gigi, after high school because she thought Gigi was a

witch since she was involved in Wicca. When asked, appellant testified that Gigi was

lying if she testified that appellee had never molested her. The allegation of abuse was

not substantiated by Job and Family Services. Appellant admitted that she missed her
Delaware County, Case No. 12 CAF 10 0075                                                       10


daughter Angela’s high school graduation because she was in Virginia and did not have

the money to go.

      {¶20}    On cross-examination, appellant also admitted that Children’s Services

had been involved with her family voluntarily on and off for the last three years after

numerous calls were made to the police regarding the unruly behavior of Matthew,

Angela and Gigi. Matthew often took appellant’s car without her permission.        At times

when she was working the night shift, appellant would leave Matthew in charge of

Esther.   Appellant also testified that she was an hour or so late for a meeting in

November of 2011 between the Juvenile Court staff and Esther’s school about Esther’s

attendance and that, as a result, the meeting did not take place. She admitted that she

had no family keeping her in Delaware County and that Esther’s school sometimes had

difficulty getting hold of her.

      {¶21}    On redirect, appellant testified that sometimes she prevented Esther from

seeing her older siblings because they used to smoke around Esther.

      {¶22}    The next witness to testify was Bembeleza Bengaia, who is known as Gigi

and is appellant’s daughter and appellee’ stepdaughter who was attending Wright State

University. Gigi testified that her attendance varied when she was in high school

because she was sick and that the family got letters from the Juvenile Court about her

attendance. Gigi testified that she got along pretty well with her stepfather when she

was in high school and that he was a good stepfather and that he brought everyone

together. She testified that appellant talked negatively about Gigi’s biological father, who

was divorced from appellant when Gigi was 10 or 11, and that, as a result, Gigi was not

able to maintain a relationship with him until recently.
Delaware County, Case No. 12 CAF 10 0075                                                      11


      {¶23}   Gigi testified that her relationship with appellant was not good and that

appellant had called her a witch because Gigi liked wearing black clothing and listening

to rock music. Gigi, who denied being involved in witchcraft, testified that appellant does

not allow her to see Esther. According to Gigi, appellee arranged for her to spend some

time with Esther the past summer. She further testified that she sometimes saw Esther

when Matthew was with Esther. Gigi also tested that appellant at times had left Matthew

and Angela, who were underage at the time, alone for about a week with Esther. In

2011, Gigi and Angela stayed with appellee for the summer after Angela, during the end

of her senior year in high school, had a falling out with appellant.

      {¶24}   Gigi testified that all of her siblings had serious attendance problems and

that appellee valued education. She testified that appellee, when they lived together,

told her to make sure that she finished school and that appellee helped her financially.

She testified that she felt more comfortable calling appellee than appellant if she

needed something. Gigi had been to appellee’s place in Texas for the summer and

testified that it was nice and would be a good place for Esther to live. Gigi denied that

appellee had ever molested her and denied telling appellant that he did.

      {¶25}   On cross-examination, Gigi admitted that she had Esther the previous

week when appellee was supposed to have parenting time with her. She testified that

appellee arrived in Ohio on the 28th of July of 2012 and that he got Esther from her on

such date. She further testified that while she was staying with appellee in Texas in

2011, she observed him trying to contact appellant and Esther on the phone. When he

was able to do so, the parties argued and Esther was crying. When asked, Gigi testified

that she witnessed appellee being frustrated in his attempts to contact Esther and that
Delaware County, Case No. 12 CAF 10 0075                                                      12


she felt that appellant stood in the way of appellee being able to talk to Esther. Gigi

further testified that she sometimes had problems getting hold of appellant by phone.

She indicated that she believed that Esther, if she had to relocate to another place,

would manage to do okay in school and make friends and that appellee would allow

Esther to talk to appellant over the phone and to have more visitation and contact with

Esther. Gigi believed that appellee had Esther’s best interests at heart and was a hard

worker. She also testified that appellant, at one point, disowned her and her sister,

Maggie, for about a year. Gigi further testified that she believed that Esther should be in

the custody of both parties.

      {¶26}   Appellee also testified at the trial. He testified that he was residing in

Houston, Texas in a two bedroom apartment. Appellee testified that he drove a cab as

an independent contractor and also did moving and hauling and that he worked from

7:00 a.m. to 6:00 p.m. He testified that he was born in Ghana and completed his

college education there before moving to London. Appellee testified that he had British

citizenship and was in the United States on a green card that expired in 2015 and was

renewable.

      {¶27}   Appellee voiced concerns that Esther would have attendance issues like

her siblings if she resided with appellant and stated that he would make sure that Esther

attended school regularly and on time. He testified that he has an Associate Degree in

electronic engineering and that his attendance and grades when he was in school were

very good. Appellee also indicated that he was worried that if Esther was with appellant,

she would not be able to see and interact with her siblings.     He testified that he had

arranged for Esther to spend time with Gigi and Angela during the summer of 2012
Delaware County, Case No. 12 CAF 10 0075                                                     13


during the first part of his scheduled summer companionship. According to appellee, at

times he has had difficulty contacting appellant because her phone number is either

busy or not working or appellant would not call him back after he left a message. He

also testified that he had trouble scheduling parenting time with Esther because

appellant could not agree on anything.

      {¶28}    Appellee testified that if he was granted custody of Esther, he would allow

appellant to see and talk to her. He testified that if he had Esther, his daycare costs

would be $100.00 to $120.00. When asked, appellee testified that he had provided

appellant with financial assistance various times since the parties’ separation, but that

appellant changed her mind with respect to how she wanted the money sent. He

testified that he took Esther to Houston in 2010 because he was concerned about the

state that she was in. He testified that Esther, who was wearing underclothes, did not

have any clothing and did not know where her clothing was and that she was sick when

he took Esther back to her mother after her visit. Appellee testified that he got an

antibiotic for her.

      {¶29}    Appellee further testified that he sent his stepdaughter, Angela, money for

her graduation cap and gown. Appellee also testified that he believed that discipline was

important and that parents had to agree on the type of discipline. He stated that he

never had to discipline Esther and that, when they were together, they played games

and engaged in educational activities.     Appellee denied that he served an eviction

notice on appellant to vacate the marital residence, which was a rental home, but knew

that she would have to do so because the foreclosure was coming. According to

appellee, he gave appellant $800.00 for a deposit on an apartment.
Delaware County, Case No. 12 CAF 10 0075                                                     14


      {¶30}   Appellee indicated that he got along well with his stepchildren and that he

loved them and helped them. He denied ever molesting Gigi.

      {¶31}   On cross-examination, appellee testified that he had been a British citizen

for 15 or 16 years and had not thought about becoming a U.S. citizen. He indicated that

the fact that Esther was a U.S. citizen was a good reason to become one himself. He

testified that he had not been in Great Britain since approximately 2001 and had a 13

year old son there who he had not seen since 2004 or 2005. The two Skype each

other. He testified he was fine if the court ordered that he could not take Esther out of

the country without appellant’s approval. Appellee also testified that he has no family in

Texas and that he moved there for job purposes. Appellee does not travel outside of

Texas for work.

      {¶32}   On cross-examination, appellee also testified that appellant knew that he

was coming to Ohio in 2010 but that she did not know that he was planning on taking

Esther back to Texas with him because he himself did not know at the time. He stated

that he told appellant the day that he took Esther and denied that appellant had made

trips to Houston to try and get Esther back. Appellee stated that he was willing to move

back to Ohio if the court told him that he had to do so to get custody of Esther. He

admitted that over the last four years, he had seen Esther in Ohio less than ten times

but denied that he threatened to take Esther out of the country.

      {¶33}   Appellee was questioned about his work arrangements. He testified that if

he gained custody of Esther, he would not work nights or weekends. Appellee indicated

that he encouraged appellant’s children to have a relationship with her and that he had

given appellant money more than the three occasions that appellant claimed.
Delaware County, Case No. 12 CAF 10 0075                                                    15


      {¶34}   When questioned by the Guardian ad Litem, appellee testified that he

decided to seek custody of Esther after he had trouble maintaining a relationship with

her over the phone and due to concerns about her school attendance. He also indicated

that he was concerned that Esther did not have contact with her sisters. He also stated

that he would have come to Ohio more often to visit if he had been able to make

arrangements with appellant.

      {¶35}   On redirect, appellee testified that appellant never called him and let him

know when Esther was sick or about any problems that Esther was having. He stated

that he had exercised visitation with his daughter every time that the court said that he

could. He also testified that he had not had contact with Esther’s school because

appellant told him not to interfere. Testimony was adduced that both appellant and

appellee claimed Esther as a dependent for tax purposes in 2011, even though it was

his year to do so.

      {¶36}   The final witness to testify was the Guardian ad Litem. The Guardian ad

Litem testified that appellee had contacted her over the years and indicated that he

could not get hold of appellant and that she believed him because she also was unable

to get hold of appellant. According to the Guardian ad Litem, appellant would either be

late for appointments or miss them altogether. She also testified that Esther’s school

was unable to get hold of appellant. The Guardian ad Litem voiced her concerns that

Esther was unable to maintain contact with her father and over Esther’s school

attendance. According to the Guardian ad Litem, Angela and Matthew did not have

parental guidance while in appellant’s home and appellant was in trouble for not making

sure that they attended school. She further noted that appellant had failed to attend a
Delaware County, Case No. 12 CAF 10 0075                                                     16


meeting with the school about Esther’s attendance issues and that appellant was

alienated from her other daughters. She indicated that she had made recommendations

for appellant to obtain counseling, but did not believe that appellant had one so. The

Guardian ad Litem recommended that appellee receive custody because he was more

willing to follow court orders and would allow appellant to have access to Esther while,

if appellant had custody, appellant would not promote Esther’s relationship with her

father.

      {¶37}   On cross-examination, the Guardian ad Litem testified that she believed

that Esther made friends easily and was going to be starting first grade, so she would

be able to adjust to a new environment. She also noted that appellee’s stepchildren

turned to him rather than appellant, their mother, in times of crisis and that she had not

seen appellant’s new home or any proof of her new job.

      {¶38}   After the trial, both parties filed Closing Arguments and Proposed Findings

of Fact and Conclusions of Law. The trial court, pursuant to a Judgment Entry filed on

October 3, 2012, ordered that appellee be designated Esther’s             custodian and

residential parent and that appellant be granted parenting time.

      {¶39}   Appellant now raises the following assignments of error on appeal:

      {¶40}   WHETHER THE JUDGMENT OF THE TRIAL COURT WAS AN ABUSE

OF DISCRETION.

      {¶41}   WHETHER THE JUDGMENT OF THE TRIAL COURT WAS AGAINST

THE MANIFEST WEIGHT OF THE EVIDENCE.

                                              I, II
Delaware County, Case No. 12 CAF 10 0075                                                               17


      {¶42}        Appellant, in her two assignments of error, argues that the trial court

abused its discretion in granting custody of Esther to appellee and that the decision was

against the manifest weight of the evidence.

      {¶43}        As an initial matter, we note that appellant, in the body of her argument,

alleges that appellee did not file the affidavit required by R.C. 3109.04(M). Such section

provides as follows: “(M) The court shall require each parent of a child to file an affidavit

attesting as to whether the parent, and the members of the parent's household, have

been convicted of or pleaded guilty to any of the offenses identified in divisions (C) and

(F)(1)(h) of this section” However, appellant did not raise this issue as an assignment

of error. See, for example, Carr v. Kaiser, 3rd Dist No. 4-11-11, 2012-Ohio- 2688,

paragraph 34, fn. 4. Moreover, at the trial, appellee, as noted by appellant, testified that,

during his first marriage, his former wife had lied and told the police that appellee had

thrown a baby against a wall and that he was taken to jail. He further testified that he

was granted bail on the condition that he report to the police once a week and not return

home. Such information, therefore, was before the trial court and appellant was not

prejudiced by the lack of an affidavit.

      {¶44}        Because custody issues are some of the most difficult and agonizing

decisions a trial judge must make, he or she must have wide latitude in considering all

the evidence and such decision must not be reversed absent an abuse of discretion.

Davis v. Flickinger, 77 Ohio St.3d 415, 418, 1997–Ohio–260, 674 N.E.2d 1159 (Citation

omitted). “The term ‘abuse of discretion’ connotes more than an error of law or

judgment;     it     implies   that   the   court's   attitude   is   unreasonable,   arbitrary   or

unconscionable.” Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140
Delaware County, Case No. 12 CAF 10 0075                                                      18

(1983). In Bechtol v. Bechtol, 49 Ohio St.3d 21, 550 N.E.2d 178 (1990) the Ohio

Supreme Court held: “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 the weight of the evidence by a reviewing court.” Id. at syllabus. 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.” Davis, supra at 418. “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.” Seasons Coal Co. v. Cleveland, 10 Ohio St.3d 77, 81, 461 N.E.2d

1273 (1984).

      {¶45}    R.C. 2151.23(F)(1) directs that a juvenile court shall exercise its

jurisdiction in child custody matters in accordance with, inter alia, R.C. Section 3109.04.

In determining the best interest of a child in custody matter, the court is to consider all

relevant factors, including, but not limited to those set forth under R.C. 3109.04(F)(1).

However, there is no requirement that a trial court separately address each factor

enumerated in R.C. 3109.04(F)(1). In re Henthorn, 7th Dist. No. 00–BA–37, 2001–

Ohio–3459. Absent evidence to the contrary, an appellate court will presume the trial

court considered all of the relevant “best interest” factors listed in R.C. 3109.04(F)(1).

Id., citing Evans v. Evans , 106 Ohio App.3d 673, 677, 666 N.E.2d 1176 (12th Dist.

1995).
Delaware County, Case No. 12 CAF 10 0075                                                        19


      {¶46}   In allocating parental rights and responsibilities, the trial court must

consider the best interest of the child or children. R.C. 3109.04(F)(1) sets forth the

factors a trial court must consider when making such a determination, and reads, in

pertinent part:

      {¶47}   “In determining the best interest of a child pursuant to this section, * * *,

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; * * * (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.”

      {¶48}   Upon our review of the evidence, we cannot say that the trial court abused

its discretion in awarding custody of Esther to appellee. The trial court’s decision was

not arbitrary, unconscionable or unreasonable. As is set forth in detail in the statement

of facts, there was testimony that appellant’s children, including Esther, had serious
Delaware County, Case No. 12 CAF 10 0075                                                   20


issues with school attendance and that appellee, the Guardian ad Litem and Esther’s

school had trouble getting hold of appellant . In addition, there was testimony that

appellant had thwarted appellee’s attempts to contact and/or visit with his daughter and

prevented Esther from seeing her siblings. While the Guardian ad Litem, in an earlier

report, had recommended that custody be granted to appellant, over time, she changed

her mind due to concerns about Esther’s school attendance and appellant’s

unwillingness to facilitate a relationship between Esther and appellee. Testimony also

was adduced that appellee, the Guardian ad Litem, and Esther’s school all had difficulty

getting hold o appellant and that appellant sometimes missed appointments.

      {¶49}   Based on the foregoing, appellant’s two assignments of error are
overruled.

      {¶50}   Accordingly, the judgment of the Delaware County Court of Common

Pleas, Juvenile Division, is affirmed.


By: Baldwin, J.

Hoffman, P.J. and

Delaney, J. concur.



                                         HON. CRAIG R. BALDWIN



                                         HON. WILLIAM B. HOFFMAN



                                         HON. PATRICIA A. DELANEY


CRB/dr
[Cite as Bashale v. Quaicoe, 2013-Ohio-3101.]


                 IN THE COURT OF APPEALS FOR DELAWARE COUNTY, OHIO

                                   FIFTH APPELLATE DISTRICT


PAULINE BANKESHA BASHALE                           :
                                                   :
        Plaintiff - Appellant                      :
                                                   :
-vs-                                               :       JUDGMENT ENTRY
                                                   :
FRANCIS B. QUAICOE                                 :
                                                   :
        Defendant - Appellee                       :       CASE NO. 12 CAF 10 0075


        For the reasons stated in our accompanying Memorandum-Opinion, the

judgment of the Court of Common Pleas of Delaware County, Ohio is affirmed. Costs

assessed to appellant.




                                                HON. CRAIG R. BALDWIN



                                                HON. WILLIAM B. HOFFMAN



                                                HON. PATRICIA A. DELANEY
