[Cite as Brumfield v. Brumfield, 2016-Ohio-8395.]




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




STEVEN BRUMFIELD,

        PLAINTIFF-APPELLANT,                                   CASE NO. 9-16-26

        v.

MANDI BRUMFIELD,                                               OPINION

        DEFENDANT-APPELLEE.




                 Appeal from Marion County Common Pleas Court
                                  Family Division
                           Trial Court No. 2014DR0308

                                     Judgment Affirmed

                         Date of Decision:          December 27, 2016




APPEARANCES:

        Cassie L. Screngi for Appellant
Case No. 9-16-26


SHAW, P.J.

       {¶1} Father-appellant, Steven Brumfield (“Steven”), brings this appeal from

the April 4, 2016, judgment of the Marion County Common Pleas Court, Family

Division, terminating the previously ordered Shared Parenting Plan, which allocated

parental rights and responsibilities between Steven and mother-appellee, Mandi

Brumfield (“Mandi”). On appeal, Steven challenges the trial court’s decision

designating Mandi as Residential Parent and Legal Custodian of the parties’ three

children and determining that Steven should exercise parenting time pursuant to the

local rule, with some stated modifications.

                       Relevant Facts and Procedural History

       {¶2} Steven and Mandi were married on May 21, 2005. They had two

children together: D.B., born in September of 2006 and C.B. born in December of

2008. Mandi also had one biological daughter that was born outside the marriage

in October of 2003. That daughter, M.B., was adopted by Steven. Thus altogether

the parties had three children.

       {¶3} On December 16, 2014, Steven filed for divorce. On December 31,

2014, Mandi filed an answer and counterclaim also seeking a divorce. Although

there was fairly extensive litigation related to the divorce, the parties ultimately

settled all of their disputed issues resulting in a final decree of divorce and a shared




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parenting plan. The final decree and shared parenting plan was filed August 26,

2015.

        {¶4} Shortly thereafter, on September 14, 2015, Steven filed a motion for

contempt arguing that Mandi was not complying with the shared parenting plan as

Mandi was not sending M.B. for Steven’s parenting time and Mandi was interfering

with Steven’s parenting time with the other children.1

        {¶5} On November 6, 2015, Steven filed a “Motion for Reallocation of

Parental Rights and Responsibilities, Motion for Modification, and Motion for

Contempt.” (Doc. No. 158). Steven requested that he be named residential parent

and legal custodian of the parties’ children.

        {¶6} On November 10, 2015, Mandi filed a motion for contempt against

Steven arguing that he had, inter alia, not abided by the shared parenting plan and

that he had failed to pay spousal support as agreed in the divorce decree.

        {¶7} On March 9, 2016, the trial court held a hearing on the pending motions,

including the motion for reallocation of parental rights and responsibilities. At the

hearing, fourteen witnesses provided testimony, including Steven and Mandi. The

parties agreed on a couple of primary issues in their testimony, namely that they

both wanted the shared parenting plan terminated and that since the final decree and


1
  Steven argued a number of additional issues in contending that Mandi was in contempt, which are unrelated
to this appeal, such as Mandi not cooperating with an insurance claim, Mandi not cooperating in listing the
marital residence for sale, and Mandi improperly allowing the man she was dating, Justin, to stay at her
residence.

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Case No. 9-16-26


the shared parenting plan had been filed, there had been a complete breakdown of

communication between the parties. Essentially the parties were not speaking to

each other at all. Additionally, according to testimony provided at the hearing the

parties’ oldest child, M.B., had not been sent on visitation with Steven since an

incident in early September of 2015.

       {¶8} As to the incident with M.B., Mandi testified that in September of 2015

Steven came to the dance studio where M.B. danced and “jerked her out” of the

class. (Tr. at 58-59). Steven testified that he did not take M.B. out in front of

everyone in the class. Nevertheless, Mandi testified after the dance studio incident

M.B. refused to spend time with Steven despite Mandi punishing M.B. for not going

to Steven’s by doing things such as taking M.B.’s phone away and grounding her.

       {¶9} M.B.’s therapist, Debbie Merold of the Marion Area Counseling

Center, testified at the hearing that M.B. had been “diagnosed” with “PTSD” as a

result of the dance studio incident and other incidents involving Steven. Merold

testified that M.B. was in fear of Steven coming to her school or the dance studio

and “do[ing] something.” (Tr. at 399). Merold testified that nearly all of M.B.’s

ten worst memories involved Steven, which included an alleged domestic violence

that M.B. purportedly witnessed against Mandi and an incident where Steven was

“forceful” with one of the other children. (Tr. at 332). Merold also testified that the




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children informed her of a situation where C.B. was fearful of Steven to the point

where he had “pee[d] his pants.” (Tr. at 333).

        {¶10} A woman named Ms. Cook2 testified at the hearing that after the dance

studio incident Steven refused to allow M.B. to go on a dance trip to California that

Mandi had already paid for. Ms. Cook testified that she attempted to talk to Steven

on the phone about the trip and Steven was cruel to her in that conversation, calling

her a “bitch” and a “fucking cunt.” (Tr. at 373).

        {¶11} There was also testimony of another alleged incident involving Steven

after the divorce decree wherein Steven got into a fight with Mandi’s boyfriend

Justin Carley at a Wal-Mart. As a result of that incident, it seems from the testimony

that Steven was charged with, and convicted of, Disorderly Conduct.

        {¶12} However, Steven testified at the hearing that the incidents referenced

did not occur as alleged and that Mandi had been unreasonable and uncooperative

for a number of reasons since the divorce decree was entered. Steven testified that

Mandi would not let Steven’s mother pick up the children for Steven’s visitation

time, that Mandi’s boyfriend Justin was occasionally present when he picked up the

children, and that Justin had a gun visible on his hip at those exchanges. Steven

testified that Mandi would force the children to change their clothes before they



2
  The transcript actually indicates that for a small portion of time there was no recording of the courtroom
proceedings. Thus we do not have the beginning of “Ms. Cook’s” testimony and we actually only know her
last name because she was addressed by counsel in this manner during questioning.

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came to his residence because she was afraid he would not send the clothes back,

that Mandi had called the police and children’s services on him and that the

investigations led to no charges or substantiated findings, and that Mandi would not

communicate with him. Steven testified that at times Mandi also did not send one

of the other children for his parenting time in addition to not sending M.B.

       {¶13} Steven’s mother, Mary, testified at the hearing that Steven was a good,

loving father. She also testified that Mandi ignored her when she attempted to pick

up the children for Steven’s parenting time. Steven’s aunt, Thelma, testified that

Mandi’s boyfriend Justin Carley had sent her antagonistic messages through

Facebook, including a picture of Justin with his arms around M.B. with a caption

saying, “safe.”

       {¶14} Justin Carley’s wife testified at the hearing. She testified that although

she was still married to Justin, they were separated. She testified that Justin was

violent, had a volatile personality, and that he had hit her and her children before.

       {¶15} James Castle, a retired pastor and neighbor of Mandi’s, testified at the

hearing that he had seen Steven have loving and kind interactions with the children

over the years. Castle testified to an incident where he believed Mandi’s boyfriend

Justin drove through his yard and another incident where Justin got out of his vehicle




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Case No. 9-16-26


with a gun in his hand and was walking around the front yard. Castle testified that

he believed Justin stayed at Mandi’s house multiple nights per week.3

          {¶16} Rhonda Burggraf, a family court services coordinator, testified at the

hearing that she was involved with the parties and their children in this case. She

testified that she had concerns about Steven and that she had concerns about Mandi

not facilitating a relationship between the children and Steven. Although she was

not a GAL speaking for the children, Rhonda recommended terminating the shared

parenting plan and naming Mandi as residential parent because the children would

feel safer with Mandi. Rhonda testified that she recommended counseling for all

parties and that Steven should look into, what she termed, his anger management

issues.

          {¶17} Ultimately, both Steven and Mandi testified that they wanted the

shared parenting plan terminated. Both wanted to be named residential parent. At

the conclusion of the hearing, the matter was submitted to the trial court for a

decision.




3
  Steven was required to pay Mandi spousal support as part of the divorce decree so long as she was not
cohabitating with anyone. There was a significant amount of testimony related to Mandi’s relationship with
Justin, but there was no issue before the trial court seeking to vacate the spousal support award due to
cohabitation. Any testimony related to Mandi’s relationship with Justin seemed directed more toward
contempt, and tangentially to the termination of shared parenting due to Justin’s interactions with the
children.

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       {¶18} On April 4, 2016, the trial court issued its final judgment on the matter.

After stating that it had considered the evidence presented and the credibility of the

witnesses who testified, the trial court conducted the following analysis.

       The evidence is clear. These parents are unable to cooperate and
       communicate with each other in order for them to participate in
       a shared parenting relationship regarding their minor children.
       Less than ten (10) days following the filing of the Shared
       Parenting Plan and Divorce Decree Orders this situation
       disrupted resulting in Plaintiff last seeing his minor daughter,
       [M.B.], for parenting time on September 4, 2015, and continuing
       through the date of this hearing. Both parents testified they
       wanted the Shared Parenting Plan terminated and there was
       absolutely no communication between them. The behavior of
       both parents has been totally inappropriate and contrary to the
       best interest of their minor children. This Court considered the
       removal of the children from both parents and placement in foster
       care, and is not ordering same at this time due to the additional
       trauma it would inflict upon the children. Both parents have and
       continue to include the children in the conflict which exists
       between the parents, and this appears to include family and
       extended relationships of both. The parents have no regard for
       how their behaviors are effecting the children and this behavior
       must stop immediately.

(Doc. No. 179). Based on its reasoning the trial court terminated the shared

parenting plan, stating that it was in the best interests of the children. The trial court

then named Mandi the residential parent for the children and gave Steven parenting

time according to the local rule, with some modifications.

       {¶19} Notably, the trial court also found both parties in contempt of the

divorce decree for various reasons, but neither party appealed the contempt findings.

Rather, Steven appeals the trial court’s decision to designate Mandi as residential

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parent of the parties’ children. He asserts the following assignment of error for our

review.

                    ASSIGNMENT OF ERROR
       THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT
       AWARDED CUSTODY TO APPELLEE.

       {¶20} In his assignment of error, Steven argues that the trial court abused its

discretion in awarding custody to Mandi rather than himself. Specifically, he argues

that Mandi had not been honoring his court-ordered parenting time, that she was

attempting to “poison” the children against him, and that he was more likely to

facilitate parenting time between the parties.

       {¶21} Decisions related to child custody matters rest within the sound

discretion of the trial court and the “utmost deference” must be given to the trial

court’s decision. Barto v. Barto, 3d Dist. Hancock No. 5–08–14, 2008–Ohio–5538,

¶ 25; Krill v. Krill, 3d Dist. Defiance No. 4–13–15, 2014–Ohio–2577, ¶ 26. “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.” Bechtol v. Bechtol, 49 Ohio St.3d 21 (1990),

syllabus; see also Barto v. Barto, 3d Dist. Hancock No. 5–08–14, 2008–Ohio–5538,

¶ 25. Accordingly, an abuse of discretion must be found in order to reverse the trial

court’s award of child custody. Barto at ¶ 25. An abuse of discretion suggests the




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trial court’s decision is arbitrary, unreasonable, or unconscionable. See Blakemore

v. Blakemore, 5 Ohio St.3d 217, 219 (1983).

        {¶22} “Additionally, we note that the trier of fact is in the best position to

observe the witnesses, weigh evidence, and evaluate testimony.” Walton v. Walton,

3d Dist. Union No. 14–10–21, 2011–Ohio–2847, ¶ 20, citing Clark v. Clark, 3d

Dist. Union No. 14–06–56, 2007–Ohio–5771, ¶ 23, citing In re Brown, 98 Ohio

App.3d 337 (3d Dist.1994). “Therefore, ‘[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.’ ” Clark at ¶ 23, quoting Seasons Coal Co., Inc. v.

Cleveland, 10 Ohio St.3d 77, 81 (1984).

        {¶23} In this case both parties expressed their desire to terminate the

previously entered shared parenting plan. When terminating a shared parenting

plan, rather than modifying it, the trial court does not have to find that a change in

circumstances occurred. See Drees v. Drees, 3d Dist. Mercer No. 10-13-04, 2013-

Ohio-5197; Warner v. Thomas, 3d Dist. Shelby No. 17-14-04, 2014-Ohio-3544, ¶¶

9-10.4 Instead, the trial court must find that “shared parenting is not in the best

interest of the children.” R.C. 3109.04(E)(2)(c).


4
  Although the trial court did not have to find a change in circumstances, the trial court did make the
superfluous finding that the circumstances had changed in this case.

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       {¶24} Revised Code 3109.04(F) contains factors for a trial court to consider

when evaluating what custody arrangement is in the children’s best interests. It

reads as follows.

       (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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      (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; * * * whether either
      parent or any member of the household of either parent
      previously has been convicted of or pleaded guilty to a violation
      of section 2919.25 of the Revised Code * * * whether either parent
      or any member of the household of either parent previously has
      been convicted of or pleaded guilty to any offense involving a
      victim who at the time of the commission of the offense was a
      member of the family or household that is the subject of the
      current proceeding and caused physical harm to the victim in the
      commission of the offense; and whether there is reason to believe
      that either parent has acted in a manner resulting 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.

      (2) In determining whether shared parenting is in the best
      interest of the children, the court shall consider all relevant
      factors, including, but not limited to, the factors enumerated in
      division (F)(1) of this section, the factors enumerated in section
      3119.23 of the Revised Code, and all of the following factors:

      (a) The ability of the parents to cooperate and make decisions
      jointly, with respect to the children;

      (b) The ability of each parent to encourage the sharing of love,
      affection, and contact between the child and the other parent;

      (c) Any history of, or potential for, child abuse, spouse abuse,
      other domestic violence, or parental kidnapping by either parent;



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       (d) The geographic proximity of the parents to each other, as the
       proximity relates to the practical considerations of shared
       parenting;

       (e) The recommendation of the guardian ad litem of the child, if
       the child has a guardian ad litem.

       {¶25} In this case the trial court specifically stated that terminating the shared

parenting plan was necessary to serve the children’s best interests. In making that

finding the trial court noted that it was particularly concerned with the lack of

cooperation and communication between the parties.

       {¶26} In arguing against the trial court’s decision on appeal, Steven contends

that R.C. 3109.04(F)(1) factors (a), (b), (d), (e), (g), (h), and (j), were all a “wash”

in this case, not favoring either party. Thus he argues that discussion should focus

on factors (c), (f), and (i), which he feels favor naming him as residential parent.

Steven claims that under factors (f) and (i) he had facilitated parenting time and

Mandi had not, particularly as it related to M.B. As to factor (c), Steven contends

that Mandi’s boyfriend had a negative impact on the children.

       {¶27} While there were indications in the record that Mandi could have

communicated better and done more to facilitate parenting time, and there were

certainly questions raised regarding the temperament of Mandi’s boyfriend, there

were also certainly issues with Steven presented in the testimony that would support

the trial court’s decision.



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       {¶28} Moreover, the caseworker from family services testified that she

believed designating Mandi as residential parent was in the children’s best interest

as it was where they would feel safest, indicating pursuant to factor (e) it was best

for the mental health of the children. This was perhaps furthered by the testimony

of M.B.’s counselor, who indicated that M.B. was in fear of Steven. Additionally,

there was some indication from the family services coordinator that at least one of

the other children may be in some fear of Steven as well.

       {¶29} Furthermore, the trial court was able to see and hear the testimony of

the witnesses and judge their credibility, which should be given particular emphasis

in this case as both parties had conflicting stories related to various events leading

to the utter breakdown in communication. In addition, the trial court was able to

observe the parties themselves, which could be extremely beneficial in evaluating

the demeanor of which parent was appropriate to designate as residential parent, and

we must accord deference to the trial court’s decision.

       {¶30} In sum, there was testimony weighing for and against designating

either party as residential parent in this case. However, both parties desired to

terminate shared parenting as they could not communicate and the shared parenting

plan was not working. Thus the trial court had to exercise its discretion and make a

difficult decision as to what was in the best interest of the children and the trial court

elected to designate Mandi as residential parent of the children. As there is evidence


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in the record to support the trial court’s decision, we cannot find that the trial court

abused its discretion. Accordingly, Steven’s sole assignment of error is overruled.

       {¶31} For the foregoing reasons Steven’s assignment of error is overruled

and the judgment of the Marion County Common Pleas Court, Family Division, is

affirmed.

                                                                  Judgment Affirmed

PRESTON and WILLAMOWSKI, J.J., concur.

/jlr




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