         [Cite as Hammond v. Hammond, 2019-Ohio-1219.]

                         IN THE COURT OF APPEALS
                 FIRST APPELLATE DISTRICT OF OHIO
                          HAMILTON COUNTY, OHIO




GRANT CHRISTOPHER HAMMOND,                       :       APPEAL NO. C-180292
                                                         TRIAL NO. DR-1002715
        Plaintiff-Appellant,                     :

  vs.                                            :           O P I N I O N.

BRENDA KAY HAMMOND,                   n.k.a.     :
BRENDA KAY LARSON,

     Defendant-Appellee.                         :



Appeal From:        Hamilton County Court of Common Pleas, Domestic Relations
                    Division

Judgment Appealed From Is: Affirmed

Date of Judgment Entry on Appeal: April 3, 2019


Joseph C. Lucas, for Plaintiff-Appellant,

Lindhorst & Dreidame and Jay R. Langenbahn, for Defendant-Appellee.
                       OHIO FIRST DISTRICT COURT OF APPEALS




WINKLER, Judge.

       {¶1}    Plaintiff-appellant Grant C. Hammond appeals from the trial court’s

judgment (1) adopting the magistrate’s decision denying Hammond’s post-divorce decree

motion to modify custody and (2) denying Hammond’s request for a second in-camera

interview of the parties’ oldest child related to the requested custody modification. For the

reasons that follow, we affirm.

       {¶2}     Hammond and defendant-appellee Brenda Kay Larson married in

September 1999 and had two children together, one in 2002 and a second in 2007. The

final decree of divorce, entered in July 2012, named Larson as the sole residential parent

and legal custodian of the children and accorded Hammond parenting time.

       {¶3}    By mid-August of 2016, both parties had decided to move outside of the

Reading School District where the children attended school. Larson enrolled the children

in schools within the Forest Hills School District near her new residence located within

Hamilton County. Hammond filed an emergency motion for a modification of custody

and requested an in-camera interview of the parties’ oldest child, whom he claimed

wished to attend a school in the Little Miami School District near his new residence

located outside of Hamilton County.

       {¶4}    Hammond’s motion for a change of custody was referred to a magistrate.

In August 2017, the magistrate undertook an in-camera interview of the oldest child as

requested by Hammond and then held a trial, over three dates beginning in September

and ending in December 2017, on the threshold question of whether there had been a

change in circumstances sufficient to allow a custody modification. Both Hammond and

Larson testified, and some of the testimony covered events that had taken place in the fall

of 2017, after the magistrate’s in-camera interview of the child.



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        {¶5}   Subsequently, the magistrate issued a decision that set forth various

findings of fact and conclusions of law, including that Hammond had failed to

demonstrate a change in circumstances since the date of the decree that would warrant a

change in custody. The magistrate summarized Hammond’s arguments in support of

finding a change in circumstances, which included the change in schools, maturation of

the children, Larson’s minor contacts with law enforcement, and Larson’s “chaotic”

relationship with the children. The magistrate also noted the evidence he had relied upon

in coming to his determination that no change was demonstrated, including the in-camera

interview of the child.

        {¶6}   Hammond filed objections to the magistrate’s decision, claiming it was

“against the manifest weight of the evidence.” In support of his objections, he filed a

partial transcript of the proceedings that only included some of Hammond’s and Larson’s

testimony. Hammond did not file a transcript of the magistrate’s in-camera interview of

the child.

        {¶7}   One day before the objections hearing, Hammond filed a written motion

requesting that the trial judge undertake an in-camera interview of the child. The trial

judge denied the motion for the in-camera interview, overruled Hammond’s objections,

and adopted the magistrate’s decision as the judgment of the court. Hammond now

appeals, raising two assignments of error.

        {¶8}   In his second assignment of error, which we address first, Hammond

argues that the trial court erred by adopting the magistrate’s decision recommending

the denial of his motion to modify custody.




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       {¶9}   Hammond’s motion to modify custody was governed by R.C.

3109.04(E)(1)(a), which provides in relevant part that the trial court shall not modify

a prior custody determination 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, [or] the child’s residential

       parent, * * * and that the modification is necessary to serve the best

       interest of the child.

R.C. 3109.04(E)(1)(a).

       {¶10} The party seeking to modify custody under R.C. 3109.04 must initially

demonstrate that a change in circumstances has occurred. Bryan v. Bryan, 161 Ohio

App.3d 454, 2005-Ohio-2739, 830 N.E.2d 1216, ¶ 11 (1st Dist.). The change of

circumstances claimed 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). See Bryan at ¶ 11, citing Schaeffer v. Schaeffer, 1st Dist. Hamilton Nos.

C-020721, C-020722, C-020723, C-030255 and C-030385, 2004-Ohio-2032, ¶ 21,

quoting Wyss v. Wyss, 3 Ohio App.3d 412, 416, 445 N.E.2d 1153 (10th Dist. 1982).

The trial court has “wide latitude” in considering the evidence and deciding custody

issues, including determining whether a “change” has occurred to warrant a change

in custody. Flickinger at paragraphs one and two of the syllabus.

       {¶11} Hammond claims the greater weight of the evidence presented to the

magistrate supported a finding that he had demonstrated the requisite change in

circumstances and, therefore, the trial court erred by adopting the magistrate’s

decision. Our review on this issue, however, is hampered by the limited record.




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Although Hammond objected to the magistrate’s decision on the ground that it was

against the manifest weight of the evidence presented, he did not file in the trial

court the entirety of the record upon which the magistrate based his factual findings,

as required by the civil rules.

          {¶12} Where a matter is referred to a magistrate, the proceedings are

governed by the procedures set forth in Civ.R. 53.                   Civ.R. 53(D)(b)(3)(iii), in

pertinent part, states that the party objecting to a magistrate’s finding must file with

the trial court “a transcript of all the evidence submitted to the magistrate relevant to

that finding or an affidavit of that evidence if a transcript is not available.” The rule

further provides that an objecting party may seek leave of court to satisfy its

obligation with other means in lieu of a transcript—“with leave of court, alternative

technology or manner of reviewing the relevant evidence may be considered.” Civ.R.

53(D)(b)(3)(iii).1

          {¶13} Hammond did not comply with the requirements of Civ.R.

53(D)(b)(3)(iii) when he filed only part of the evidence the magistrate relied upon in

finding that there was no substance to Hammond’s assertion of a change of

circumstances. Hammond excluded parts of Hammond’s and Larson’s testimony

and the entire in-camera interview of the child. Certainly the contents of the in-

camera interview of the child were confidential, see R.C. 3109.04(B)(2)(c), but this

did not excuse Hammond, as the objecting party, from providing the trial court with

a sealed record of the contents of that interview.

          {¶14} Because Hammond did not file the necessary evidence for the trial

court to review the factual determinations of the magistrate, the court had to accept



1   We caution that App.R. 9(B)(6) has different requirements than Civ.R. 53(D)(b)(3)(iii).


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the magistrate’s factual findings on the objected-to matters and determine if the

magistrate erred in his legal conclusion that the motion for change in custody should

be denied. See Civ.R. 53(D)(4)(d). This court’s review of the trial court’s decision is

limited to whether the trial court’s application of the law to its factual findings

constituted an abuse of discretion. See State ex rel. Duncan v. Chippewa Twp.

Trustees, 73 Ohio St.3d 728, 730, 654 N.E.2d 1254 (1995); In re Adoption of

S.J.M.H., 1st Dist. Hamilton No. C-130683, 2014-Ohio-3565, ¶ 33.

       {¶15} In this case, the trial court adopted the magistrate’s express finding

that the incidents cited by Hammond “[were] not indicative of a change in

circumstances as contemplated by R.C. 3109.04.” Because the trial court found there

was no substance to Hammond’s assertion of a change in circumstances, a threshold

factor for a change in custody, we cannot say that the trial court’s decision to deny

Hammond’s motion for a change in custody was unreasonable, arbitrary or

unconscionable and, thus, an abuse of its discretion. See Blakemore v. Blakemore, 5

Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983).

       {¶16} Consequently, we overrule the second assignment of error.

       {¶17} In his first assignment of error, Hammond contends that the trial

court violated the mandatory provisions of R.C. 3109.04 when it denied his motion

for a second in-camera interview of the child.       R.C. 3109.04(B)(1) provides in

relevant part:

       When making the allocation of the parental rights and responsibilities

       for the care of the children under this section * * * in any proceeding

       for modification of a prior order of the court making the allocation, the

       court shall take into account that which would be in the best interest of




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        the children. In determining the child’s best interest for purposes of

        making its allocation of the parental rights and responsibilities for the

        care of the child and for purposes of resolving any issues related to the

        making of that allocation, the court, in its discretion, may and, upon

        the request of either party, shall interview in chambers any or all of the

        involved children regarding their wishes and concerns with respect to

        the allocation.

(Emphasis added.)

        {¶18} Hammond moved for the second interview of the child on March 26,

2018.   The trial judge heard argument on the motion the following day, at the

hearing on Hammond’s objections to the magistrate’s decision. Hammond argued

that a second interview was necessary because the magistrate’s August 2017 in-

camera interview did not take into account events that had occurred in the fall of

2017, and because the trial judge did not have a transcript of the interview to review.

        {¶19} The parties assume that R.C. 3109.04(B)(1) applies when, as here, the

proceedings on the motion to modify custody have been bifurcated and the court is

determining only whether there has been a sufficient change in circumstances to

review a prior custody determination.        The issue then is, assuming the statute

applied, did the trial court err by denying Hammond’s motion for a second in-

camera interview of the child in connection with his motion to modify custody?

        {¶20} Hammond argues that that statute requires the trial court to hold an

in-camera interview any time a party requests one. Alternatively, he argues that the

trial court was required to grant his request here because the court did not have a

record of the magistrate’s August 2017 interview to review, and because a second




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interview by the trial court would have allowed the court to obtain the child’s wishes

as they evolved during the course of events in the fall of 2017.

       {¶21} Larson maintains that the trial court fulfilled its mandatory obligation

under the statute for the in-camera interview when the magistrate interviewed the

child earlier in the proceeding to determine whether there had been a sufficient

change in circumstances.

       {¶22} Initially, we reject Hammond’s position that the statute mandated a

second interview of the child merely because Hammond had made a second request.

The statute requires the trial court to consider the best interest of the child when

allocating the parental rights and responsibilities and for purposes of resolving any

issues related to the making of that allocation and, in doing so, requires the court to

interview any or all of the children regarding their wishes and concerns with respect

to the allocation when requested to do so by either party. The statute does not

impose an unlimited duty on the trial court to perform successive interviews of the

same child in a single proceeding for modification of a custody degree, even if

requested by a party, as Hammond suggests. And nothing in R.C. 3109.04(B)(2) or

Civ.R. 53 prevents a magistrate from satisfying the requirements of the statute in a

referred case. See Civ.R. 53(C); see also In re T.M.M., 2017-Ohio-9219, 102 N.E.3d

558, ¶ 29 (7th Dist.) (juvenile court magistrate’s in-camera interview of children

fulfilled the requirement of R.C. 3109.04(B)(2)). Here, the magistrate performed the

in-camera interview of the child in the proceeding as requested by Hammond,

satisfying the requirements of R.C. 3109.04(B)(2).

       {¶23} Further, we reject Hammond’s argument that the court was required

to hold a second in-camera interview of the child in this case because there was no




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filed recording of the magistrate’s interview for the judge to review when ruling on

Hammond’s objections. Civ.R. 53(D)(7) requires all proceedings before a magistrate

to be recorded, unless otherwise provided by law. See Local Rule 8.4 of the Court of

Common Pleas of Hamilton County, Domestic Relations Division. Hammond had

the duty under Civ.R. 53(D)(b)(3)(iii) to present this part of the record to the trial

court in support of his objections. The trial court cannot be said to have erred

because Hammond failed in his duties.

         {¶24} Finally, accepting Hammond’s position, that the trial judge was

required to hold a subsequent interview of the child because the magistrate’s August

2017 interview did not take into account events occurring in the fall of 2017, would

undermine the purposes and procedures of Civ.R. 53. Civ.R. 53(D)(4)(d) allows a

trial court, when ruling on objections, to hear additional evidence, but “the court may

refuse to do so unless the objecting party demonstrates that the party could not, with

reasonable diligence, have produced that evidence before the magistrate.” As Larson

pointed out at the objections hearing, all of the events Hammond refers to were

brought out in the testimony of the parents during the change-of-circumstances trial,

yet Hammond did not ask the magistrate to conduct a supplemental interview of the

child.

         {¶25} Because Hammond’s motion to modify had been referred to the

magistrate, the magistrate had already performed an in-camera interview of the child

as required by statute, and Hammond did not request that the magistrate

supplement that interview, we conclude that Hammond has failed to demonstrate

that the trial court erred by denying his request for a second in-camera interview of




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the child in the proceeding for a change of custody. Accordingly, we overrule the

second assignment of error.

       {¶26} Therefore, the trial court’s judgment is affirmed.

                                                                   Judgment affirmed.

MYERS, P.J., and CROUSE, J., concur.

Please note:

       The court has recorded its own entry on the date of the release of this opinion.




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