[Cite as In re M.O.E.W., 2018-Ohio-3512.]




                            IN THE COURT OF APPEALS OF OHIO
                                SIXTH APPELLATE DISTRICT
                                    OTTAWA COUNTY


In re M.O.E.W.                                   Court of Appeals No. OT-17-022

M.W.                                             Trial Court No. 2007-JUV-000035 JUVG

        Appellant

v.

K.M.                                             DECISION AND JUDGMENT

        Appellee                                 Decided: August 31, 2018

                                             *****

        Amanda A. Andrews, for appellant.

        Geoffrey L. Oglesby, for appellee.

                                             *****

        PIETRYKOWSKI, J.

        {¶ 1} This is an appeal from the judgment of the Ottawa County Court of

Common Pleas, Juvenile Division, denying appellant’s, M.W., motion for reallocation of

parental rights and responsibilities. For the reasons that follow, we affirm.
                          I. Facts and Procedural Background

       {¶ 2} Appellant is the father of the minor child, M.O.E.W., who was born in 2006.

Appellee, K.M., is the mother. The litigation between the parties over the custody of the

child began in 2007. Relevant here, on November 20, 2013, the parties agreed to a

consent judgment entry whereby mother was designated the residential parent and legal

custodian of the child, with father to have regular visitation rights in accordance with the

court’s standard schedule.

       {¶ 3} The present matter was initiated two years later, on October 6, 2015, when

father filed a motion for reallocation of parental rights and responsibilities, seeking joint

custody of the child. Thereafter, on April 6, 2016, father filed an amended motion for

reallocation of parental rights and responsibilities. The matter proceeded to a hearing

before a magistrate on September 6, 2016.

       {¶ 4} At the September 6, 2016 hearing, during father’s direct examination of

mother, the magistrate stopped the questioning, and ruled that she was going to find that a

change of circumstances existed, necessitating the appointment of a guardian ad litem for

the child. The magistrate did not permit father to conclude his presentation of evidence,

and did not permit mother to present any evidence at all. The magistrate’s findings were

preliminarily memorialized in an order on September 6, 2016, and an order containing

findings of fact was entered on September 28, 2016.

       {¶ 5} On September 16, 2016, mother filed a motion to set aside the magistrate’s

September 6, 2016 order on the basis that she was not afforded her legal right to



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challenge father’s evidence, or to call any witnesses on her own behalf. On October 13,

2016, the trial court denied that motion, finding that none of the magistrate’s

September 6, 2016 orders were dispositive of a claim or defense of any of the parties, and

that mother failed to state with particularity her reasons to set aside the magistrate’s

orders. Notwithstanding that, on October 24, 2016, the trial court entered its judgment

rejecting the magistrate’s September 28, 2016 decision, and setting the matter for a de

novo hearing on father’s motion for reallocation of parental rights and responsibilities.

        {¶ 6} The de novo hearing on father’s motion was held before the trial court on

April 17, 2017, and May 18, 2017. At the hearing, father called mother as his first

witness. Mother testified to a broad range of issues, beginning with the circumstances of

her older son’s death from a drug overdose, and the impact that death had on M.O.E.W.

Mother testified that her son was living with her for approximately a year, and was in

recovery and was clean at the time. During that time, her son would watch M.O.E.W. by

himself on a handful of occasions. Mother stated that her son moved out because he

thought his presence would be an issue in the custody proceedings over M.O.E.W. When

he left, he relapsed, and overdosed on drugs. Mother testified that M.O.E.W. was present

at the hospital for the three days after her brother overdosed, and was there when he died.

Mother testified that M.O.E.W. was close to her brother, and is now actively involved in

speaking engagements where she talks about the impact of drugs and addiction on

families. Mother stated that M.O.E.W. likes to speak, and that it is a good way for her to

heal.



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       {¶ 7} Mother next was asked about M.O.E.W.’s performance at school, to which

she replied that M.O.E.W. was doing well. Father then produced an exhibit where

M.O.E.W. only received two points on a fractions test. Father also produced evidence of

an instance where M.O.E.W. was caught flipping over another student’s test during an

exam, and evidence that she had received one or two strikes for behavior this year.

Father then asked about M.O.E.W.’s attendance at school, and mother confirmed that

M.O.E.W. had missed 20 days of school, been tardy five times, and was taken out of

school early four times. Mother testified, however, that all of the absences were excused

with a doctor’s note, and that M.O.E.W. had several bouts of strep throat, which required

her to have her tonsils removed. Mother also acknowledged that in the prior school year,

M.O.E.W. was either absent, tardy, or left school early 30 times, but she testified that

each of those were excused as well.

       {¶ 8} The questioning then transitioned to mother’s romantic relationships.

Mother testified to having dated approximately six different men since November 2013.

On occasion, some of the men have watched M.O.E.W. for a day or two, or have

transported M.O.E.W. to and from school or appointments. On at least one occasion, one

of the men who drove M.O.E.W. to or from school had a suspended driver’s license. In

addition, some of the men had previous criminal convictions.

       {¶ 9} Father then asked mother about an incident where mother recorded an

argument that she had with M.O.E.W. before school. The audio recording was played for

the court. On the recording, mother is heard stating that M.O.E.W. is making problems



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for her in court because M.O.E.W. is throwing a fit and refusing to get ready for school

on time. Mother testified that she recorded M.O.E.W. on the advice of her counselor so

that the recording could be played back and be used to constructively teach M.O.E.W.

how to improve her behavior.

       {¶ 10} In addition to those topics, mother also briefly testified regarding her

decision to occasionally leave M.O.E.W. home alone during the daytime for

approximately one hour. Mother was also asked about a picture which shows her riding

in a car that was returning from a festival, and it appears that there was an open container

in the car. Further, mother testified that she has moved three times since the November

2013 order, and that while she has mainly been employed at two jobs, she has had a

number of other side positions. Additionally, mother testified that she is under financial

stress from the issues involving her son as well as her attorney fees from the litigation

regarding the custody of M.O.E.W.

       {¶ 11} Father also testified as his only other witness. He testified that he believed

the change of circumstances included M.O.E.W.’s performance and attendance at school,

her behavior, mother’s ability to effectively parent, and the recent death of mother’s older

son. In particular, father expressed concern with M.O.E.W.’s behaviors in showing a

desire for a boyfriend, and he believes that mother’s lifestyle is negatively influencing

M.O.E.W. in that regard. He also testified that he was concerned that mother’s parenting

style will result in M.O.E.W. travelling down the same path as her older son. Father

additionally testified about the visitation schedule. He stated that shortly after the



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November 2013 order, the parties informally modified the schedule, which resulted in

him having additional time with M.O.E.W. However, approximately one month before

the hearing, mother announced that they would return to the schedule contained in the

court order.

       {¶ 12} For her case, mother called three witnesses. The first was Geoffrey Halsey,

the principal at M.O.E.W.’s school. Halsey verified the number of absences that

M.O.E.W. has had, but stated that she has always been in compliance with the school’s

policies. Halsey also testified that M.O.E.W. does fine in school, has not had any issues

as far as her social or emotional development, and is ready to move on to the middle

school level of education. Further, M.O.E.W. has not had any behavioral issues of note.

       {¶ 13} Mother next called M.O.E.W.’s therapist, Alison Campbell, who was

qualified as an expert witness in the area of child counseling. Campbell testified that

M.O.E.W. was diagnosed with adjustment disorder with anxiety, but commented that she

is a well-adjusted little child. Campbell elaborated that M.O.E.W. is frustrated by the

ongoing conflict between her parents, and M.O.E.W. has expressed her fear that staying

with mother is going to harm her relationship with father. Campbell noted that

M.O.E.W. is a happy little girl, that she is doing well, and that she loves both of her

parents and enjoys spending time with them. Campbell also relayed four things that

M.O.E.W. wanted Campbell to convey on her behalf: “I want to stay with my mom;” “I

want to be able to see my dad when I want to;” “I want them to get along better;” and “I

want my dad to cooperate more, and I want to stay out of court. I’m done with it. I’m



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over it.” Finally, Campbell testified that she has no problem with M.O.E.W. speaking to

heroin groups about her brother’s death, and that she does not see mother’s relationships

having a negative impact on M.O.E.W.

       {¶ 14} Lastly, mother testified on her own behalf. Most of mother’s testimony

provided her perspective on topics that had already been discussed at length during the

hearing. Mother did provide new testimony, however, to a panic attack that she had the

previous week that required her to go to a hospital. She testified that it occurred after a

stressful day dealing with collateral issues relating to her son’s death, but emphasized that

M.O.E.W. was never put in any danger despite father’s suggestion to the contrary.

       {¶ 15} Following the hearing, the trial court entered its order on July 5, 2017,

denying father’s motion for reallocation of parental rights and responsibilities. In its

decision, the trial court found that father had failed to prove that a change in

circumstances had occurred since the court’s prior order in November 2013.

                                 II. Assignments of Error

       {¶ 16} Father has timely appealed the trial court’s July 5, 2017 judgment, and now

asserts two assignments of error for our review:

              1. The trial court erred in allowing appellee to object to magistrate

       Danita Gilbert-Conway presiding over the September 6, 2016 hearing,

       having previously waived same.

              2. The trial court abused its discretion in denying appellant-father’s

       motion to modify the allocation of parental rights and responsibilities.



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                                        III. Analysis

       {¶ 17} In his first assignment of error, father intimates that mother’s motion to set

aside the magistrate’s September 6, 2016 order was based on her belief that the

magistrate was prejudiced against her. Father contends that since mother has not

objected to the magistrate presiding over the proceedings for the past four years, she has

waived her right to remove the magistrate, and her motion to set aside the magistrate’s

decision should have been overruled.

       {¶ 18} We find that father’s argument is based on a faulty premise. First, we note

that mother’s motion to set aside does not allege prejudice or bias, but instead is based on

the grounds that she was not afforded her legal right to present evidence in her favor.

Moreover, the record reflects that mother’s motion to set aside was, in fact, denied by the

trial court. Thus, we find no merit to father’s argument.

       {¶ 19} Even still, the trial court rejected the magistrate’s decision and set the

matter for a de novo hearing, as it was permitted to do under Juv.R. 40(D)(4)(b), which

provides, “Whether or not objections are timely filed, a court may adopt or reject a

magistrate’s decision in whole or in part, with or without modification. A court may hear

a previously-referred matter, take additional evidence, or return a matter to a magistrate.”

In this case, we find no error in the trial court’s decision to set the matter for a new

hearing where the parties were not permitted to present all of their evidence in the

hearing before the magistrate.

       {¶ 20} Accordingly, father’s first assignment of error is not well-taken.



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       {¶ 21} In his second assignment of error, father contends that the trial court abused

its discretion when it found that father failed to prove a change of circumstances.

       {¶ 22} Pursuant to R.C. 3109.04(E)(1)(a),

              {¶ 23} The court shall not modify a prior decree allocating parental

       rights and responsibilities for the care of the children unless it finds, based

       on facts that have arisen since the prior decree or that were unknown to the

       court at the time of the prior decree, that a change has occurred in the

       circumstances of the child, the child’s residential parent, or either of the

       parents subject to a shared parenting decree, and that the modification is

       necessary to serve the best interest of the child. In applying these

       standards, the court shall retain the residential parent designated by the

       prior decree or the prior shared parenting decree, unless a modification is in

       the best interest of the child and one of the following applies:

              ***

              (iii) The harm likely to be caused by a change of environment is

       outweighed by the advantages of the change of environment to the child.

       {¶ 24} Before analyzing whether a modification to the allocation of parental rights

and responsibilities is in the child’s best interest, the court must first determine whether a

change in circumstances has occurred. Perz v. Perz, 85 Ohio App.3d 374, 376, 619

N.E.2d 1094 (6th Dist.1993). “The clear intent of [this requirement] is to spare children

from a constant tug of war between their parents who would file a motion for change of



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custody each time the parent out of custody thought he or she could provide the children

a ‘better’ environment.” Wyss v. Wyss, 3 Ohio App.3d 412, 416, 445 N.E.2d 1153 (10th

Dist.1982).

       {¶ 25} The Supreme Court of Ohio has held that the change in circumstances

“must be a change of substance, not a slight or inconsequential change.” Davis v.

Flickinger, 77 Ohio St.3d 415, 418, 674 N.E.2d 1159 (1997). Further, the phrase

“change in circumstances,” generally denotes “an event occurrence, or situation which

has a material and adverse effect upon a child.” Rohrbaugh v. Rohrbaugh, 136 Ohio

App.3d 599, 604-605, 737 N.E.2d 551 (7th Dist.2000). “In determining whether a

‘change’ has occurred * * * a trial judge must have wide latitude in considering all the

evidence before him or her * * * and such a decision must not be reversed absent an

abuse of discretion.” Flickinger at 418, citing Miller v. Miller, 37 Ohio St.3d 71, 523

N.E.2d 846 (1988).

       {¶ 26} In support of his argument that there was a change of circumstances, father

recites several factors: deplorable living conditions, failing to get the child to school,

fluctuation in the child’s grades, yelling at the child relative to court issues, leaving the

child home alone, leaving the child with questionable men, the death of mother’s older

son, and interference with his parenting time. In its decision, the trial court addressed

many of these factors.

       {¶ 27} First, relating to the “deplorable living conditions,” the trial court found

that although mother owes thousands of dollars for past legal services as a result of



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having to defend against father’s filings and in order to protect her parental rights, she is

planning to pay off those legal bills once she receives an insurance payment relating to

the death of her son. Moreover, the trial court found that M.O.E.W. is well-cared for.

She has appropriate nutrition, clothing, and medical care. She has adequate and safe

housing. She is not deprived or abused, and even enjoys some luxuries such as a cell

phone and being involved in sports.

       {¶ 28} Next, regarding M.O.E.W.’s performance in school, the trial court found

that although M.O.E.W. has missed numerous days, her absences were excused and she

has made up the work that was missed. Further, the court found, based on Halsey’s

testimony, that M.O.E.W. does not have any social issues, is personable and positive, and

is a successful student ready to move on to middle school.

       {¶ 29} The trial court then discussed the audio recording of mother speaking to

M.O.E.W. and telling her that “You’re posing more problems in court than what I need.

This is going to pose a problem now because you want to throw a fit every morning.”

The court found that mother had been encouraged by M.O.E.W.’s counselor to record

those conversations for use in therapy. Further, the court noted that this single reference

to court proceedings did not constitute a change in circumstances.

       {¶ 30} Next, regarding leaving M.O.E.W. home alone, the court found that there

was no evidence that M.O.E.W. was too young or lacked the maturity to be left on her

own for an hour or so after school. There was also no evidence that M.O.E.W. ever hurt

herself or got into trouble when she was home alone.



11.
       {¶ 31} As to mother’s relationship with numerous men, the court found that none

of the men ever hurt or threatened mother or M.O.E.W. Further, the court found that

mother testified that she would never knowingly permit M.O.E.W. to be supervised by

someone with a criminal record, or to be transported by someone without a driver’s

license. In addition, Campbell testified that mother’s romantic life has not had a

deleterious effect on M.O.E.W., and that the most important people in M.O.E.W.’s life

are mother and father, and everyone else is inconsequential.

       {¶ 32} Finally, regarding the death of mother’s son, the trial court found that his

difficulties with substance abuse began prior to the November 2013 order. The trial court

also found that while he was living in mother’s home, the son appeared to have his

addiction under control, and that his drug use was antithetical to mother’s values and

expectations. In addition, the court found that M.O.E.W. was very close with her brother,

and was emotionally impacted by his death. Notably, mother, Halsey, and Campbell all

commented that M.O.E.W.’s presentations regarding the impact of drugs and addictions

are beneficial to her as she works through her grief. The court determined that

M.O.E.W.’s grief was not connected to custodianship, and there was no evidence that she

would have been less impacted had she been living with father when her brother died.

       {¶ 33} As his final factor, father argues that mother has interfered with his

parenting time, and that such interference constitutes a change in circumstances.

However, the record shows that while the parties had at one point mutually agreed to

informally modify the visitation schedule, and that mother no longer wishes to follow the



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modification, father has always had, at a minimum, his court-ordered visitation.

Furthermore, there is no evidence in the record that mother interferes with M.O.E.W.’s

relationship with father, or speaks poorly of father to her. Thus, we do not find that this

factor constitutes a change of circumstances warranting a new custody order.

       {¶ 34} After reviewing all of the evidence, the trial court found that father had

failed to prove a change in circumstances based on the individual factors or as a whole.

Our own review of the record leads us to conclude that none of the purported changes are

a change of substance. Furthermore, we find that the trial court’s detailed analysis was

neither arbitrary, unreasonable, nor unconscionable. Therefore, we hold that the trial

court did not abuse its discretion in finding that father had failed to demonstrate a change

in circumstances.

       {¶ 35} Accordingly, father’s second assignment of error is not well-taken.

                                     IV. Conclusion

       {¶ 36} For the foregoing reasons, we find that substantial justice has been done the

party complaining, and the judgment of the Ottawa County Court of Common Pleas,

Juvenile Division, is affirmed. Father is ordered to pay the costs of this appeal pursuant

to App.R. 24.


                                                                          Judgment affirmed.




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                                                               In re M.O.E.W.
                                                               C.A. No. OT-17-022




       A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.




Mark L. Pietrykowski, J.                       _______________________________
                                                           JUDGE
Thomas J. Osowik, J.
                                               _______________________________
Christine E. Mayle, P.J.                                   JUDGE
CONCUR.
                                               _______________________________
                                                           JUDGE


           This decision is subject to further editing by the Supreme Court of
      Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
           version are advised to visit the Ohio Supreme Court’s web site at:
                    http://www.supremecourt.ohio.gov/ROD/docs/.




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