[Cite as Butts v. Hill, 2011-Ohio-5512.]


                                         COURT OF APPEALS
                                       LICKING COUNTY, OHIO
                                     FIFTH APPELLATE DISTRICT


DONALD BUTTS II (Deceased)                    :    JUDGES:
                                              :    Hon. William B. Hoffman, P.J.
     Plaintiff                                :    Hon. Sheila G. Farmer, J.
                                              :    Hon. Julie A. Edwards, J.
v.                                            :
                                              :
REBECCA HILL (FKA Butts)                      :
                                              :
         Defendant-Appellant                  :    Case No. 11-CA-46
                                              :
and                                           :
                                              :
MICHELLE WOOD                                 :
                                              :
     Third Party Defendant-Appellee           :    OPINION



CHARACTER OF PROCEEDING:                           Appeal from the Court of Common
                                                   Pleas, Case No. 06DR01677



JUDGMENT:                                          Affirmed/Reversed in Part & Remanded




DATE OF JUDGMENT:                                  October 27, 2011




APPEARANCES:

For Defendant-Appellant                            For Third Party Defendant-Appellee

DAVID B. STOKES                                    CINDY RIPKO
21 West Church Street                              33 South Park Place
Suite 206                                          Suite 201
Newark, OH 43055                                   Newark, OH 43055
Licking County, Case No. 11-CA-46                                                        2

Farmer, J.

      {¶ 1} On September 8, 2008, appellant, Rebecca Hill, fka Butts, and Donald

Butts, II, were divorced. The parties have four children, one of which was emancipated

at the time of the divorce. Appellant was named sole residential parent of Er.B. and

L.B. The parties entered into a shared parenting plan regarding the youngest child,

Em.B. On September 23, 2009, an agreed judgment entry was filed wherein the parties

agreed to terminate the shared parenting plan and name appellant as the sole

residential parent and legal custodian of Em.

      {¶ 2} On October 5, 2009, Mr. Butts passed away after a long illness.             On

October 7, 2009, Mr. Butts's sister, appellee, Michelle Wood, filed a motion to intervene

as third party defendant in order to seek custody of Er. By judgment entry filed same

date, the trial court added appellee as a third party defendant. Also on same date,

appellee filed a motion for the reallocation of parental rights and responsibilities

regarding Er.   By ex parte order filed same date, the trial court granted temporary

custody of Er. to appellee. A hearing before a magistrate was held on November 4,

2009. By order filed November 5, 2009, the magistrate sustained the ex parte order,

finding it was in Er.'s best interests to continue the temporary custody arrangement.

      {¶ 3} On February 22, 2010, appellee filed a motion for the reallocation of

parental rights and responsibilities regarding Em. By ex parte order filed same date, the

trial court granted temporary legal custody of Em. to appellee. A hearing before a

magistrate was held on March 4, 2010. By order filed March 5, 2010, the magistrate

affirmed the ex parte order, finding it was in Em.'s best interests to remain in appellee's

temporary custody. In addition, appellant's parenting time was suspended.
Licking County, Case No. 11-CA-46                                                     3


       {¶ 4} On March 18, 2010, appellant filed a motion to vacate the February 22,

2010 ex parte order and the magistrate's March 5, 2010 order. By judgment entry filed

April 13, 2010, the trial court denied the motion.

       {¶ 5} A hearing on appellee's two motions for the reallocation of parental rights

and responsibilities was held on April 14, 2010. By decision filed May 25, 2010, the

magistrate recommended the approval of appellee's motions. Appellant filed objections.

By opinion filed November 18, 2010, the trial court overruled the objections.        By

judgment entry filed April 11, 2011, the trial court granted the two motions and named

appellee as the legal custodian of Er. and Em. The trial court also granted appellant

supervised parenting time, and established child support which was offset by the social

security benefits received by the children.

       {¶ 6} Appellant filed an appeal and this matter is now before this court for

consideration. Assignments of error are as follows:

                                              I

       {¶ 7} "THE TRIAL COURT ERRED AND/OR ABUSED ITS DISCRETION BY

FAILING TO INCLUDE A CHILD SUPPORT GUIDELINE WORKSHEET AS PART OF

THE FINAL, APPEALABLE JUDGMENT."

                                              II

       {¶ 8} "THE TRIAL COURT ERRED AND/OR ABUSED ITS DISCRETION IN

GRANTING AN EX PARTE ORDER WHICH CHANGED CUSTODY OF [EM.] FROM

APPELLANT-MOTHER TO NON-PARENT APPELLEE. (I.E. [EM.'S] AUNT)."
Licking County, Case No. 11-CA-46                                                    4


                                          III

      {¶ 9} "THE TRIAL COURT ERRED AND /OR ABUSED ITS DISCRETION IN

AWARDING CUSTODY OF [EM.] TO APPELLEE."

                                          IV

      {¶ 10} "THE TRIAL COURT ERRED AND/OR ABUSED ITS DISCRETION IN

OVERRULING APPELLANT'S OBJECTIONS TO THE MAGISTRATE'S DECISION

FILED MAY 25, 2010."

                                          V

      {¶ 11} "THE TRIAL COURT ERRED AND/OR ABUSED ITS DISCRETION BY

SUSTAINING THE FEBRUARY 22, 2010 EX PARTE ORDER."

                                          VI

      {¶ 12} "THE TRIAL COURT ERRED AND/OR ABUSED ITS DISCRETION BY

PERMITTING APPELLEE TO PRESENT EVIDENCE THAT OCCURRED, IF AT ALL,

PRIOR TO THE 9/23/2009 AGREED JUDGMENT ENTRY."

                                          VII

      {¶ 13} "THE MANIFEST WEIGHT OF THE ADMISSIBLE EVIDENCE DOES

NOT SUFFICIENTLY SUPPORT THE APPEALED-FROM JUDGMENT."

                                           I

      {¶ 14} Appellant claims the trial court erred in not providing a child support

guideline worksheet with the final order. We agree.

      {¶ 15} "***'A child support computation worksheet, required to be used by a trial

court in calculating the amount of an obligor's child support obligation in accordance

with R.C. 3113.215, must actually be completed and made a part of the trial court's
Licking County, Case No. 11-CA-46                                                       5

record.' Marker v. Grimm (1992), 65 Ohio St.3d 139, 601 N.E.2d 496, paragraph one of

the syllabus. Failure to complete and include the worksheet in the record constitutes

reversible error. McClain v. McClain (1993), 87 Ohio App.3d 856, 858, 623 N.E.2d 242.

      {¶ 16} "We first note that Marker addresses prior R.C. 3113.215, which the

General Assembly repealed on March 22, 2001. However, the modern version of the

support guideline statute, R.C. 3119.022, continues to mandate that a court or agency

calculating child support 'shall use a worksheet.' Therefore, we find the rule of Marker

applicable to R.C. 3119.022." Cutlip v. Cutlip, Richland App. No. 02CA32, 2002-Ohio-

5872, ¶ 7-8.

      {¶ 17} The final order was as a result of two motions to reallocate parental rights

and responsibilities, neither of which requested a child support order. However, the trial

court made the following award relative to child support:

      {¶ 18} "The children currently receive $1300.00 per month in social security

benefits as a result of Plaintiff's death. The Court finds it equitable under the current

situation that said social security benefits should be considered a total offset against

Defendant's child support obligation.

      {¶ 19} "***

      {¶ 20} "1. Defendant shall pay Third Party Defendant child support in the amount

of $0.00, per month, plus a processing fee of $0.00 for a total of $0.00 per month. This

is not a deviation but a set-off against child support. The Court makes this finding after

a review of ORC 3119. and Williams v. Williams, 99 Ohio St.3d 441 (2000).

      {¶ 21} "***
Licking County, Case No. 11-CA-46                                                       6


       {¶ 22} "During any time on or after the effective date of this order that private

health insurance is not in effect, the following orders shall apply:

       {¶ 23} "1. Defendant shall pay to Third Party Defendant child support in the

amount of $0.00, per month, plus a processing fee of $0.00 and $139.17 per month in

cash medical support, plus a processing fee of $2.78 per month for a total of $141.95

per month. This is not a deviation but a set-off against child support. The Court makes

this finding after review of ORC 3119. and Williams v. Williams, 99 Ohio St.3d 441

(2000). Case Number 2006 DR 01677." Judgment Entry filed April 11, 2011.

       {¶ 24} Based upon the trial court's decision and Marker, supra, we find the trial

court erred in failing to include a child support guideline worksheet.

       {¶ 25} Assignment of Error I is granted.

                                            II, V

       {¶ 26} Appellant claims the trial court erred in issuing the February 22, 2010 ex

parte order and then denying her motion to vacate said order and the magistrate's

March 5, 2010 order. Specifically, appellant claims there was no finding of unsuitability.

We disagree.

       {¶ 27} We note appellant's arguments relate to the custody of Em. only, as

appellant does not dispute the custody of Er.

       {¶ 28} A trial court has broad discretion in custody proceedings.       Trickey v.

Trickey (1952), 158 Ohio St. 913. In order to find an abuse of that discretion, we must

determine the trial court's decision was unreasonable, arbitrary or unconscionable and

not merely an error of law or judgment. Blakemore v. Blakemore (1983), 5 Ohio St.3d

217.
Licking County, Case No. 11-CA-46                                                         7


       {¶ 29} We note the orders were temporary, preliminary, and interlocutory in

nature.   Schoffner v. Schoffner (1984), 19 Ohio App.3d 208.             In addition, R.C.

3109.04(D)(2) permits a custody award to a relative. Vance v. Vance, 151 Ohio App.3d

391, 2003-Ohio-310.

       {¶ 30} The affidavits presented with the motion set forth the threat of potential

harm to Em. given appellant's actions, Em.'s fear of appellant, and the fact that Em.'s

sister was already residing with appellee.

       {¶ 31} Upon review, we find the trial court did not abuse its discretion in granting

temporary custody to appellee via an ex parte order and denying appellant's motion to

vacate said order.

       {¶ 32} Assignments of Error II and V are denied.

                                             VI

       {¶ 33} Appellant claims the trial court erred in permitting evidence of events that

occurred prior to the September 23, 2009 agreed judgment entry relative to parental

rights and responsibilities. We disagree.

       {¶ 34} The admission or exclusion of evidence lies in the trial court's sound

discretion. State v. Sage (1987), 31 Ohio St.3d 173; Blakemore, supra.

       {¶ 35} The trial court correctly observed that "what was not known to the court" at

the time the custody order was entered into could still be an issue even though the

order was an agreed order:

       {¶ 36} "THE COURT: Well, without making any kind of blanket-ruling, just let me

say that it's my understanding of the statute that the test on the admissibility of evidence

is that it occurred or arose since the most recent custody order or it was not known to
Licking County, Case No. 11-CA-46                                                        8


the Court at the time the custody order was entered; there's two elements to it as I

understand. So we may---I don't know, we'll probably have to deal with that if objections

come up, whether it was known to the Court or not. I---I don't know what else I can say

at this point.

       {¶ 37} "MR. STOKES: I understand.        I guess just as (inaudible) statement, it

would (inaudible) to defendant that anything that could have been brought up was

waived by virtue of the agreed judgment entry. You can't go back and recreate the

wheel and say basically well, we should have brought all those things up before we

agreed to have the defendant be the sole residential parent of [Em.].

       {¶ 38} "THE COURT: Well, I think that's a---that's a point that certainly can and is

argued on a regular basis, but I don't know that the Court's precluded from hearing

evidence that it had no knowledge of, when it signed the entry before. But at the same

time I think that's fair game for cross-examination if for example, the parties agree to a

person being custodian, and then evidence at subsequent hearing is brought up that

shows that there's some alleged deficiencies with respect to that person. I think it's fair

game to say well, why was this entered into in the first place so forth and so on. I think

that goes towards weight as opposed to admissibility, just off the top of my head." April

14, 2010 T. at 11-12.

       {¶ 39} We note appellant has failed to cite to any references in the transcript of

the claimed errors. App.R. 16 governs brief of appellant. Subsection (D) states the

following:

       {¶ 40} "References in the briefs to parts of the record shall be to the pages of the

parts of the record involved; e.g., Answer p. 7, Motion for Judgment p. 2, Transcript p.
Licking County, Case No. 11-CA-46                                                        9


231. Intelligible abbreviations may be used. If reference is made to evidence, the

admissibility of which is in controversy, reference shall be made to the pages of the

transcript at which the evidence was identified, offered, and received or rejected."

       {¶ 41} As noted by the trial court, no testimony was taken regarding the

September 23, 2009 agreed judgment entry. The agreement terminated the previous

shared parenting plan and designated appellant as sole residential parent and legal

custodian.

       {¶ 42} Despite appellant's failure to cite to any transcript references, in her

objections to the magistrate's recommendations, appellant argued the guardian ad

litem's testimony violated R.C. 3109.04(E)(1). Michelle Gramza was the guardian ad

litem during the original divorce proceedings. Ms. Gramza testified certain aspects of

the relationship between Em. and appellant were detrimental to Em's well-being. April

14, 2010 T. at 25. She was very worried about the shared parenting arrangement and

was not optimistic that it would work. Id. at 33. Ms. Gramza had serious concerns

about appellant fostering a positive relationship between Em. and her siblings and Mr.

Butts's family. Id. at 33-34.

       {¶ 43} Given the trial court's consideration of the mandates of the statute, we find

the limited testimony relative to appellant's parenting background was not prejudicial.

Further, the opinions expressed by Ms. Gramza were based upon her knowledge of the

relationship between appellant and Em.

       {¶ 44} Assignment of Error VI is denied.
Licking County, Case No. 11-CA-46                                                       10


                                        III, IV, VII

       {¶ 45} These assignments of error challenge the trial court's final determination in

awarding legal custody of Em. to appellee.        Appellant claims the decision was not

supported by the evidence, and the decision was not made under the standard set forth

in In re Perales (1977), 52 Ohio St.2d 89. We disagree.

       {¶ 46} A judgment supported by some competent, credible evidence will not be

reversed by a reviewing court as against the manifest weight of the evidence. C.E.

Morris Co. v. Foley Construction Co. (1978), 54 Ohio St.2d 279. A reviewing court must

not substitute its judgment for that of the trial court where there exists some competent

and credible evidence supporting the judgment rendered by the trial court. Myers v.

Garson, 66 Ohio St.3d 610, 1993-Ohio-9. "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 v.

Flickinger (1997), 77 Ohio St.3d 415, 418.

       {¶ 47} In Perales at syllabus, the Supreme Court of Ohio held the following:

       {¶ 48} "In an R. C. 2151.23(A)(2) child custody proceeding between a parent and

a nonparent, the hearing officer may not award custody to the nonparent without first

making a finding of parental unsuitability that is, without first determining that a

preponderance of the evidence shows that the parent abandoned the child, that the

parent contractually relinquished custody of the child, that the parent has become totally

incapable of supporting or caring for the child, or that an award of custody to the parent

would be detrimental to the child."
Licking County, Case No. 11-CA-46                                                          11


       {¶ 49} Appellant's argument that the trial court used the improper standard is

without merit. The magistrate's May 25, 2010 decision states the proper standard:

       {¶ 50} "The above conclusions lead the Magistrate to consider the fourth

component of the parental unsuitability test, that is, determining whether it would be

detrimental to the child, in this instance, [Em.], to place her with the defendant.

       {¶ 51} "The Magistrate has found this particular test to be one that is often

difficult to apply. He believes that in deciding this particular test, it is appropriate for a

court to consider the extent and magnitude of the detriment that is likely to be

experienced by a child being placed with his or her natural parent. For example, it may

be detrimental to the social aspirations and material desires of a child for him to be

placed with a parent who has a lower middle class standard of living rather than placing

him with a wealthy uncle. If the child's parent is otherwise suitable, it would be improper

under Ohio law to remove the child and place him with his rich uncle solely on the basis

of this detriment. On the other hand, if it is proved that it would be dangerous to the

child to be placed with his parent, a different outcome would likely result.

       {¶ 52} "After due consideration of the evidence admitted into the record in light of

the above-cited tests, factors, holdings and definitions, the Magistrate determines that

the third party defendant has established by a preponderance of the evidence admitted

into the record that that (sic) it would be detrimental to the child to maintain the

defendant as her residential parent and legal custodian and that the defendant is an

unsuitable parent. The Magistrate therefore determines that it is appropriate for the

Trial Court to enter separate orders GRANTING each of the third party defendant's two

motions."
Licking County, Case No. 11-CA-46                                                        12


       {¶ 53} The magistrate went to great lengths to list the evidence in support of his

conclusion. The magistrate cited the strained relationship between appellant and Em.,

appellant's pattern of emotional and physical abuse toward her other daughters when

they were teens, appellant's recent emotional abuse of Em., an incident of actual

physical abuse on February 10, 2010, the lack of any semblance of a reasonable

relationship with her daughters, changing Em.'s last name after Mr. Butts passed away,

the lack of any fostering of a relationship between Em. and her siblings and Mr. Butts's

family, and appellant's obsession with alienating Em. from Mr. Butts's family has

confounded Em.'s management of the grieving process. See, Magistrate's May 25,

2010 Decision at Findings of Facts a-m.

       {¶ 54} After our review of the testimony given by Em.'s sisters, we find the

magistrate's conclusions are substantiated in the record.         Appellant has steadfastly

denied these allegations in her testimony. However, they were essentially substantiated

by the trial court's "in camera" discussion with Em. Further, it is interesting to note that

the one police report on abuse coincides with the trial court's ex parte order.

       {¶ 55} Given the amount of testimony relative to appellant's apparent lack of

good parenting skills as she deals with her daughters as they enter their teenage years,

we cannot find that the trial court abused its discretion in granting legal custody to

appellee.

       {¶ 56} Assignments of Error III, IV, and VII are denied.
Licking County, Case No. 11-CA-46                                                      13


      {¶ 57} The judgment of the Court of Common Pleas of Licking County, Ohio is

hereby affirmed in part and reversed in part. The matter is remanded to said court to

file a child support guideline worksheet consistent with our ruling in Assignment of Error

I.

By Farmer, J.

Hoffman, P.J. and

Edwards, J. concur.




                                            s/ Sheila G. Farmer___________________



                                            s/ William B. Hoffman_________________



                                            s/ Julie A. Edwards___________________

                                                           JUDGES
[Cite as Butts v. Hill, 2011-Ohio-5512.]


                 IN THE COURT OF APPEALS FOR LICKING COUNTY, OHIO

                                     FIFTH APPELLATE DISTRICT



DONALD BUTTS II (Deceased)                      :
                                                :
     Plaintiff                                  :
                                                :
v.                                              :
                                                :
REBECCA HILL (FKA Butts)                        :       JUDGMENT ENTRY
                                                :
     Defendant-Appellant                        :
                                                :
and                                             :
                                                :
MICHELLE WOOD,                                  :
                                                :
     Third Party Defendant-Appellee             :       CASE NO. 11-CA-46


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

judgment of the Court of Common Pleas of Licking County, Ohio is affirmed in part and

reversed in part. The matter is remanded to said court to file a child support guideline

worksheet consistent with our ruling in Assignment of Error I. Costs to appellant.




                                                s/ Sheila G. Farmer___________________



                                                s/ William B. Hoffman_________________



                                                s/ Julie A. Edwards___________________

                                                            JUDGES
