[Cite as Phillips v. Phillips, 2014-Ohio-248.]


STATE OF OHIO                       )                      IN THE COURT OF APPEALS
                                    )ss:                   NINTH JUDICIAL DISTRICT
COUNTY OF LORAIN                    )

LISA PHILLIPS                                              C.A. No.     13CA010358

         Appellant

         v.                                                APPEAL FROM JUDGMENT
                                                           ENTERED IN THE
DONALD PHILLIPS                                            COURT OF COMMON PLEAS
                                                           COUNTY OF LORAIN, OHIO
         Appellee                                          CASE No.   00NU057447

                                   DECISION AND JOURNAL ENTRY

Dated: January 27, 2014



         MOORE, Presiding Judge.

         {¶1}     Appellant, Lisa Phillips, appeals the order of the Lorain County Court of

Common Pleas, Domestic Relations Division, that granted custody of her two minor children to

their father, Donald Phillips. This Court affirms in part and reverses in part.

                                                      I.

         {¶2}     Lisa and Donald Phillips dissolved their marriage in 2000, entering into a shared

parenting plan with respect to their two minor children, S.P. and M.P. The shared parenting plan

designated Ms. Phillips as the residential parent. Within a few years, Ms. Phillips relocated to

Kentucky with the children. Mr. Phillips maintained some contact with the children, but the

extent of the contact was limited. Ms. Phillips also has another daughter whose father is not Mr.

Phillips, and while the family lived in Kentucky, her relationship with Ms. Phillips deteriorated.

That daughter, Randi, is now an adult.           Although Randi has no ongoing relationship with Ms.

Phillips, she has maintained relationships with her younger siblings.
                                                2


       {¶3}    In February 2012, Ms. Phillips and her sixteen-year-old daughter S.P. had an

altercation that resulted in S.P.’s detention on charges of assault. Randi learned of the incident

and called Mr. Phillips, who travelled to Kentucky that night, appeared in court the following

day, and was awarded temporary custody of S.P. by the Kentucky court. Mr. Phillips moved the

trial court in Lorain County to terminate the shared parenting agreement and designate him as the

residential parent of S.P. and M.P. and to terminate his child support obligation. Prior to the

hearing on the motion, Mr. Phillips moved the trial court to conduct an in camera interview of

S.P. and M.P. and to appoint a guardian ad litem. Although the trial court interviewed the

children, it did not appoint a guardian ad litem. Ms. Phillips, who represented herself during the

trial court proceedings, did not object.

       {¶4}    The trial court terminated the shared parenting agreement, designated Mr. Phillips

as the residential parent and legal custodian of S.P. and M.P., terminated his child support

obligation, and ordered Ms. Phillips to pay child support based on imputed income. The trial

court permitted visitation between Ms. Phillips and the children provided that she undergo

substance abuse and anger management counseling. Ms. Phillips appealed, and she has asserted

four assignments of error.

                                               II.

                                  ASSIGNMENT OF ERROR I

       THE TRIAL COURT ABUSED ITS DISCRETION WITH REGARD TO
       ALLOCATING PARENTAL RIGHTS AND RESPONSIBILITIES BETWEEN
       THE PARTIES.

       {¶5}    Ms. Phillips’ first assignment of error makes two arguments: first, that the trial

court’s journal entry is deficient because it does not explicitly mention that the trial court

considered all of the factors set forth in R.C. 3109.04 with respect to the best interests of the
                                                3


children, and second, that the trial court’s order evidences bias against Ms. Phillips and

constitutes an abuse of discretion. This Court does not agree.

       {¶6}    Ms. Phillips does not argue that the trial court erred in terminating the shared

parenting plan.   Indeed, she testified at trial that she agreed with Mr. Phillips that shared

parenting did not work for their situation.      Instead, Ms. Phillips’ arguments relate to the

reallocation of parental rights and responsibilities once the shared parenting agreement was

terminated.

       {¶7}    This Court has recently explained the obligations of a trial court under R.C.

3109.04(E)(2)(d), once a shared parenting plan has been terminated:

       After the trial court terminates the prior shared parenting plan, the court shall
       “issue a modified decree for the allocation of parental rights and responsibilities
       for the care of the children * * * as if no decree for shared parenting had been
       granted and as if no request for shared parenting ever had been made.” When
       allocating parental rights and responsibilities, the court must take into account the
       best interest of the children. R.C. 3109.04(B)(1). “To determine what is in the
       best interest of the child[ren] for the purpose of determining how to reallocate
       parental rights, the trial court must consider the factors set forth in R.C.
       3109.04(F)(1).

(Internal citations omitted.) Bentley v. Rojas, 9th Dist. Lorain No. 10CA009776, 2010-Ohio-

6243, ¶ 19. Under R.C. 3109.04(F)(1), a trial court must consider all relevant factors, including,

but not limited to: (1) the wishes of the parents, (2) the wishes of the children expressed during

an in camera interview, if any, (3) the interaction of the children with parents, siblings, and

others who significantly impact their best interests, (4) the children’s adjustment to their home,

school, and community, (5) the mental and physical health of everyone involved, (6) which

parent is more likely to honor and facilitate parenting time for the other parent, (7) the parents’

record of honoring child support obligations, (8) the history of the parents and other household

members regarding child abuse and neglect, as explained by R.C. 3109.04(F)(1)(h), (8) whether
                                                  4


either parent has thwarted parenting time under a court order, and (9) whether either parent

resides outside the state of Ohio.

        {¶8}    Ms. Phillips’ first argument is that the trial court erred by determining this matter

without reference to the best interest factors set forth above. Although R.C. 3109.04(F)(1)

requires a trial court to consider each of these factors, explicit findings need not be reiterated in

the judgment entry unless a party requests findings of fact and conclusions of law under Civ.R.

52. Matis v. Matis, 9th Dist. Medina No. 04CA0025-M, 2005-Ohio-72, ¶ 6. Instead, it must be

apparent from the record that the trial court considered the best interest factors in its decision. In

re M.T., 9th Dist. Wayne No. 11CA0026, 2012-Ohio-534, ¶ 7-9. See also Chelman v. Chelman,

2d Dist. Greene No. 2007 CA 79, 2008-Ohio-4634, ¶ 39 (“[T]he judgment entry must still refer

to some evidence which supports the elements of the applicable statute.”); Hubbard v. Anderson,

4th Dist. Scioto No. 96CA2440, 1998 WL 34150, * 4 (Jan. 21, 1998) (concluding that a

judgment was sufficient under R.C. 3109.04(F)(1) when “[t]he findings set forth in the court’s

decision, while not expressly designated as such, are all quite clearly R.C. 3109.04(F)(1) ‘best

interest’ findings.”).

        {¶9}    In this case, the trial court did not explicitly state that its findings were made

pursuant to R.C. 3109.04(F)(1), but it is clear that the statute formed the foundation for the trial

court’s decision. The trial court’s findings relate to each of the best interest factors relevant to

this case. Of particular note is the considerable detail related to the relationships between Ms.

Phillips and each of her children and the children’s relationships to each other as well as the

relationships between the parents and their respective spouses. Although it is the best practice

for the trial court to specifically reference the factors set forth in R.C. 3109.04(F)(1), we cannot

conclude that the trial court’s analysis was deficient in this case.
                                                 5


       {¶10} Ms. Phillips’ second argument is that the trial court’s decision to designate Mr.

Phillips as residential parent and to award legal custody of S.P. and M.P. to him reflects an abuse

of discretion. Because a trial court exercises discretion in considering the factors set forth in

R.C. 3109.04(F)(1), we will not reverse a decision regarding the allocation of parental rights and

responsibilities in the absence of an abuse of discretion. Bentley, 2010-Ohio-6243, at ¶ 17. See

generally Masters v. Masters, 69 Ohio St.3d 83, 85 (1994) (“It has long been a recognized rule

of law that for a reviewing court to overturn a trial court’s determination of custody, the

appellate court must find that the trial court abused its discretion.”). An abuse of discretion

connotes more than an error of law or judgment, reflecting an attitude on the part of the trial

court that is unreasonable, arbitrary, or unconscionable. Id.

       {¶11} Ms. Phillips has argued that the trial court’s decision is tainted by evident bias

against her. We have reviewed the record in this matter, including the in camera interviews of

the children, which were filed under seal, and we do not agree that the trial court abused its

discretion. The record confirms that S.P. and Ms. Phillips have a strained relationship, at best,

while S.P. enjoys a good relationship with M.P. as well as Mr. Phillips, his current wife, and her

children. As the trial court noted, S.P. has adjusted well to her home, school, and community in

Ohio, while M.P. is well-adjusted to his school in Kentucky.

       {¶12} The trial court made numerous findings with respect to Ms. Phillip’s relationship

with her current husband and her eldest daughter that bear, at least indirectly, on questions of

mental health and substance abuse. The record supports these findings. More specifically, the

evidence established that Ms. Phillips married a man whom she had known only briefly without

knowledge of his criminal history; that their relationship was marked by repeated, horrific

incidents of domestic violence, during which, on at least one occasion, M.P. was in the home;
                                                 6


and that Ms. Phillips’ relationship with Randi was, likewise, marked by physical violence. In

that respect, Randi testified that she had also witnessed incidents of violence between Ms.

Phillips and S.P. that included pushing, hitting, and smacking. Randi also testified that Ms.

Phillips has a “very bad drinking problem.” Although Ms. Phillips denied that characterization,

she confirmed that she had twice been charged with public intoxication. The record also

confirms, as the trial court noted, that S.P. and M.P. have been placed in foster care on more than

one occasion. As the trial court found, the record confirms that Mr. Phillips was current in his

child support obligations at the time of the hearing and that Ms. Phillips has continuously lived

outside of Ohio for many years.        Although the trial court noted communication problems

between Ms. Phillips and Mr. Phillips, it does not appear from the record that honoring visitation

schedules has been an issue between the parties.

       {¶13} Given the trial court’s findings, which are supported by the evidence in the

record, we cannot conclude that it was an abuse of the trial court’s discretion to designate Mr.

Phillips as residential parent and award legal custody to him. While it is clear that Ms. Phillips

disagrees with the testimony of her eldest child, the trial court had the advantage of viewing the

demeanor of the witnesses and judging their credibility. “‘In proceedings involving the custody

and welfare of children the power of the trial court to exercise discretion is peculiarly important.

The knowledge obtained through contact with and observation of the parties and through

independent investigation can not be conveyed to a reviewing court by the printed record.’”

Bechtol v. Bechtol, 49 Ohio St.3d 21, 23 (1990), quoting Trickey v. Trickey, 158 Ohio St. 9, 13

(1952). There is no indication of bias evident from the record in this case. What Mother

references as bias is, in the context of her argument, a complaint that the court chose to credit the

testimony of other witnesses who testified contrary to Mother. Of course, such a determination
                                                  7


is inherent in the responsibilities of a fact finder. See Eastley v. Volkman, 132 Ohio St.3d 328,

2012-Ohio-2179, ¶ 21, quoting Seasons Coal Co., Inc. v. Cleveland, 10 Ohio St.3d 77, 80 (1984)

fn.3.

        {¶14} Ms. Phillips’ first assignment of error is overruled.

                                  ASSIGNMENT OF ERROR II

        THE TRIAL COURT’S ORDER RELATING TO [MS. PHILLIPS’]
        VISITATION RIGHTS IS CONTRADICTORY AND REPRESENTS AN
        ABUSE OF DISCRETION.

        {¶15} Ms. Phillips’ second assignment of error argues that the trial court abused its

discretion with respect to the terms of her visitation with S.P. and M.P. Because the terms of the

trial court’s order are clear, we disagree.

        {¶16} The trial court’s order provides:

        Mother, Lisa Phillips, shall have companionship with the minor children as
        follows, conditioned upon Mother engaging and completing substance abuse
        treatment/counseling and anger management counseling, and providing proof of
        same to the Court of the commencement date of said services[.]

        ***

        If Mother fails to provide verification of the commencement of counseling as
        previously ordered, then visitation is hereby suspended and will not occur until
        Mother provides same.

(Emphasis added.) According to the plain terms of the trial court’s order, the trial court ordered

visitation that may be suspended if Ms. Phillips fails to provide verification that she has

commenced substance abuse counseling. Ms. Phillips has not argued that the trial court erred by

ordering her to participate in counseling. Therefore, because the terms of the order are clear.

Ms. Phillips’ assignment of error is overruled.

                                 ASSIGNMENT OF ERROR III

        THE TRIAL COURT’S CHILD SUPPORT AWARD IS AGAINST THE
        MANIFEST WEIGHT OF THE EVIDENCE.
                                                 8


       {¶17} Ms. Phillips’ third assignment of error argues that the trial court erred by imputing

income to her without expressly finding that she was voluntarily unemployed and, in the

alternative, that the child support award is against the manifest weight of the evidence.

       {¶18} “In determining the appropriate level of child support, a trial court must calculate

the gross income of the parents. When a parent is unemployed, income includes potential

income that may be imputed to the parent by the trial court.” Bajzer v. Bajzer, 9th Dist. Summit

No. 25635, 2012-Ohio-252, ¶ 11, citing R.C. 3119.01(C)(5)/(11) and R.C. 3119.05. This Court

has held that before income can be imputed for purposes of a child support calculation, however,

the trial court must explicitly find that the parent is voluntarily unemployed or underemployed.

Marek v. Marek, 158 Ohio App.3d 750, 2004-Ohio-5556, ¶ 14 (9th Dist.) (construing former

R.C. 3113.215(A)(5)).

       {¶19} The trial court imputed full-time employment at minimum wage to Ms. Phillips,

but did not explicitly find that she is voluntarily unemployed or underemployed. Her third

assignment of error is sustained on this basis, and her arguments regarding the weight of the

evidence supporting her child support obligation are premature.

       {¶20} Ms. Phillips’ third assignment of error is sustained.

                                ASSIGNMENT OF ERROR IV

       THE TRIAL COURT COMMITTED REVERSIBLE ERROR WHEN IT
       FAILED TO APPOINT A GUARDIAN AD LITEM AS REQUIRED BY R.C.
       3109.04(B)(2)(A).

       {¶21} Ms. Phillips’ final assignment of error argues that the trial court erred by failing to

appoint a guardian ad litem in response to Mr. Phillips’ motion.

       {¶22} Under R.C. 3109.04(B), a trial court may conduct an in camera interview of the

children in the course of determining their best interests. If either parent requests an in camera
                                               9


interview, however, the trial court must grant the request. R.C. 3109.04(B)(1). Similarly, if the

trial court conducts an in camera hearing and either parent requests the appointment of a

guardian ad litem, the trial court must grant the request. R.C. 3109.04(B)(2). This Court has

determined that the requirements of R.C. 3109.04(B) are mandatory in nature and must be

strictly followed. Dolub v. Chmielewski, 9th Dist. Summit No. 22405, 2005-Ohio-4662, ¶ 4,

citing Riggle v. Riggle, 9th Dist. Wayne No. 01CA0012, 2001 WL 1133764, * 4 (Sept. 26,

2001). “[I]f a party requests an interview one must be given, and if a parent requests that a

guardian ad litem be appointed the appointment must be made. Only if no request as to one or

both is made by a party may the court use its discretion.” Badgett v. Badgett, 120 Ohio App.3d

448, 452 (7th Dist.1997).

       {¶23} Consequently, we have concluded that “‘[f]ailure to strictly follow the mandates

of the statute is reversible error, even where the trial court has made a thoughtful and

conscientious decision.’” Dolub at ¶ 4, quoting McClanahan v. Willenbrink, 12th Dist. Clermont

No. CA99-11-111, 2000 WL 628229, * 4 (May 15, 2000).              Nonetheless, the doctrine of

forfeiture also applies in this context. See Miracle v. Allen, 9th Dist. Lorain No. 05CA008843,

2006-Ohio-5063, ¶ 6-7. In Miracle, the appellant requested an in camera interview of the child,

but did not mention his request again at trial despite the fact that the interview had not been

conducted. Id. at ¶ 3, 6. This Court acknowledged the mandatory nature of R.C. 3104.09(B), but

applied “‘the fundamental rule * * * that an appellate court will not consider any error which

could have been brought to the trial court’s attention, and hence avoided or otherwise

corrected.’” Id. at ¶ 6, quoting Schade v. Carnegie Body Co., 70 Ohio St.2d 207, 210 (1982).

       {¶24} We are mindful that it was Mr. Phillips who requested the appointment of a

guardian ad litem rather than Ms. Phillips. For purposes of this discussion, we assume without
                                               10


deciding that Ms. Phillips was aggrieved by the trial court’s failure to appoint a guardian ad

litem. Nonetheless, this is not the “extremely rare” situation in which plain error should be

recognized in a civil case. Goldfuss v. Davidson, 79 Ohio St.3d 116 (1997), syllabus. The Ohio

Supreme Court has explained that:

       In appeals of civil cases, the plain error doctrine is not favored and may be
       applied only in the extremely rare case involving exceptional circumstances
       where error, to which no objection was made at the trial court, seriously affects
       the basic fairness, integrity, or public reputation of the judicial process, thereby
       challenging the legitimacy of the underlying judicial process itself.

Id. This is a “very high standard.” Perez v. Falls Financial, Inc., 87 Ohio St.3d 371, 375 (2000).

       {¶25} The trial court interviewed both children in camera and, as reflected in the

judgment entry, considered their wishes with respect to custody. The hearing on this matter was

extensive, and the trial court afforded considerable latitude to Ms. Phillips, who proceeded pro

se. Ms. Phillips cross-examined each witness in detail and presented her own testimony, albeit in

narrative form.   It is evident from the record that the trial court was faced with difficult

determinations of credibility, based in part on the thoroughness with which Ms. Phillips

presented her case. In this respect, we note that the recommendations of a guardian ad litem are

one relevant factor for purposes of the best interest analysis under R.C. 3109.04(F), but they are

not determinative in and of themselves. See Mogg v. McCloskey, 7th Dist. Mahoning No. 12

MA 24, 2013-Ohio-4358, ¶ 23, quoting Collins v. Collins, 12th Dist. Clinton No. CA2000-09-

023, 2001 WL 1218900, * 3 (Oct. 15, 2001).

       {¶26} Using the plain error standard, we cannot agree that the trial court’s failure to

appoint a guardian ad litem at Mr. Phillips’ request impacted the “basic fairness, integrity, or

public reputation of the judicial process” in a way that undermined the legitimacy of the judicial
                                                11


process, thereby challenging the legitimacy of the underlying judicial process itself.          See

Goldfuss at syllabus. Ms. Phillips’ fourth assignment of error is overruled.

                                                III.

       {¶27} Ms. Phillips’ first, second, and fourth assignments of error are overruled. Her

third assignment of error is sustained to the extent that the trial court erred by imputing income

without explicitly finding Ms. Phillips to be voluntarily unemployed or underemployed, but the

remaining arguments in her third assignments of error are premature. This matter is affirmed in

part and reversed in part, and the case is remanded to the trial court for proceedings consistent

with our resolution of Ms. Phillips’ third assignment of error.

                                                                          Judgment affirmed in part,
                                                                                   reversed in part,
                                                                               and cause remanded.




       There were reasonable grounds for this appeal.

       We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Lorain, State of Ohio, to carry this judgment into execution. A certified copy of

this journal entry shall constitute the mandate, pursuant to App.R. 27.

       Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.
                                                 12


       Costs taxed equally to both parties.




                                                      CARLA MOORE
                                                      FOR THE COURT




HENSAL, J.
CONCURS.

BELFANCE, J.
DISSENTING.

       {¶28} I respectfully dissent from the judgment of the majority because I would conclude

that the trial court committed reversible error in failing to appoint a GAL for the children.

       {¶29} R.C. 3109.04(B) provides:

       (B)(1) When making the allocation of the parental rights and responsibilities for
       the care of the children under this section in an original proceeding or 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 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.

       (2) If the court interviews any child pursuant to division (B)(1) of this section, all
       of the following apply:

       (a) The court, in its discretion, may and, upon the motion of either parent, shall
       appoint a guardian ad litem for the child.

(Emphasis added.)

       {¶30} Under the plain language of the statute, if the trial court interviews a child in-

camera and either parent moves for the appointment of a GAL, the trial court is mandated to

appoint a GAL. Custody disputes are frequently contentious and sadly often involve one or both
                                                13


parents putting the children in the middle and coaching them to take sides and/or speak badly

about the other parent. This situation is particularly likely to present itself when the parents

know that the children will be interviewed in-camera by the trial court. The legislature was

clearly aware of this problem, as evidenced by the enactment of R.C. 3109.04(B)(2)(a). R.C.

3109.04(B)(2)(a) provides a mechanism to protect the best interest of the children during an in-

camera interview by obligating the trial court to appoint a GAL when one is requested by one of

the parties. In the face of the tug of war that is often present in custody matters, the GAL

provides the court with a more intimate and balanced picture of the parties and their children

over repeated meetings in their home environment rather than a single snapshot obtained by the

trial court in an unnatural court setting. The record is clear that Mr. Phillips requested that the

trial court interview the children in-camera and requested that a GAL be appointed. Pursuant to

R.C. 3109.04(B)(2)(a), the statute mandated the trial court to appoint a GAL.

       {¶31} This Court has not considered this precise issue. In the context of mandamus

proceedings, the Ohio Supreme Court has observed that R.C. 3109.04(B) plainly requires

appointment of a GAL if the court intends to interview the child. State ex rel v. Papp v. James,

69 Ohio St.3d 373, 375 (1994).         Many of our sister courts have concluded that R.C.

3109.04(B)(2)(a) is mandatory in nature and requires strict compliance. Hence, the failure to

appoint a GAL where a request for appointment and an in-camera interview is made is reversible

error and in some instances plain error. See, e.g., Cochran v. Cochran, 4th Dist. Lawrence No.

10CA15, 2011-Ohio-1644, ¶ 13-14 (finding plain error when court failed to appoint GAL when

appellant requested a GAL be appointment after the in-camera interview); McClanahan v.

Willenbrink, 12th Dist. Clermont No. CA99-11-111, 2000 WL 628229, *2 (May 15, 2000)

(“R.C. 3109.04(B) is mandatory in nature, and the trial court must strictly follow its procedures.
                                                14


Once a motion is made to interview the child and appoint a guardian ad litem for the child, the

trial court is required to conduct such an interview and appoint a guardian ad litem.”); Badgett v.

Badgett, 120 Ohio App.3d 448, 452 (7th Dist.1997) (failure to strictly follow the statute is

reversible error even when trial court has made a thoughtful and conscientious decision).

       {¶32} This Court has previously examined a trial court’s failure to conduct an in-camera

interview after a request was made under R.C. 3109.04(B). We concluded that the “[f]ailure to

strictly follow the mandates of the statute is reversible error, even where the trial court has made

a thoughtful and conscientious decision.” (Internal quotations and citations omitted.) Dolub v.

Chmielewski, 9th Dist. Summit No. 24405, 2005-Ohio-4662, ¶ 4. Subsequent to Dolub, in

Miracle v. Allen, 9th Dist. Lorain No. 05CA008843, 2006-Ohio-5063, this Court concluded that

a party forfeits all but plain error on appeal where a motion for in-camera interview is made and

the trial court fails to take action upon it when the party did not raise the issue subsequently

during the proceedings. Miracle at ¶ 6. Notably, Miracle represented a departure from this

Court’s precedent in Dolub. However, our holding in Dolub was clear and there was nothing in

Dolub to suggest that it was premised upon the appellant renewing her motion subsequent to

requesting the in-camera interview.

       {¶33} Miracle involved the waiver/forfeiture of the right to an in-camera interview, not

the accompanying appointment of a GAL under the statute and so it is distinguishable from this

case on that basis alone. See Miracle at ¶ 6. Regardless, I would not apply the reasoning of

Miracle to the instant matter given the critical difference in the posture of the proceedings.

Dolub and Miracle address the circumstance where the trial court did not take any action under

the statute and thus, an in-camera interview did not influence the decision on the merits. But see

Mangan v. Mangan, 2d Dist. Greene No. 07-CA-100, 2008-Ohio-3622, ¶ 24 (disagreeing with
                                                 15


appellate districts that require a showing of prejudice in order to reverse based on the trial court’s

failure to conduct an in-camera interview upon request). However, once the trial court conducts

an in-camera interview, the court obtains information and a perspective that could be at odds

with the reality of the circumstances when viewed through the lens of mature adults and in

particular, an objective third-party, i.e. the GAL.1 Hence, the information provided by the GAL

can assist the trial court in evaluating the information adduced during the private in-camera

interview of the child and can provide a greater assurance that the trial court will be fully

informed when determining the child’s best interests.

       {¶34} A trial court that must make custody decisions is placed in the unenviable position

of making a decision that will indelibly impact the future of a child as well as the parents and

extended family members. The legislature wisely imposed a mandatory requirement to appoint a

GAL under circumstances where the court interviews a child and a party requests the

appointment of a GAL. R.C. 3109.04(B)(2)(a). Thus, when either of the parties makes a timely

request to appoint a GAL pursuant to R.C. 3109.04(B)(2)(a), I would conclude such a request is

all that is required to put the trial court on notice that it has a nondiscretionary obligation under

the statute. A trial court is expected to understand and follow the law and a failure to perform a

mandatory duty is an error of law reversible on appeal. Mangan at ¶ 6. The statute is plain and

the parties should not be required to have to do anything further to compel the trial court to do its

duty under the statute.2 Moreover, in light of the plain language of the statute, pro se litigants




       1
          Notably, it is likely that the information elicited in an in-camera interview would be
confidential and remain under seal. Thus, even if a child makes a patently false statement in an
in-camera interview, the parents would not be able to challenge it.
        2
          Further, given the language in James, it would appear that Ms. Phillips’ remedy lies
only in an appeal and not in an extraordinary writ. See James, 69 Ohio St.3d at 380-381.
                                                 16


would not know that that there is any obligation (outside the requirements within the statute) to

enforce their rights or how to do so.

       {¶35} Finally, once either party files a request for an in-camera interview and the

appointment of a GAL, given the trial court’s responsibility under the statute, there is no need for

the other party to file a request for the same. See R.C. 3109.04(B). Irrespective of which party

makes the request for appointment of a GAL, the request triggers the court’s duty to appoint a

GAL under the statute. Thus, although the fact that Mr. Phillips filed the motion for an in-

camera interview and a request for appointment of a GAL in this case seems to give the majority

some pause, the legal analysis remains the same given the trial court’s duty under R.C.

3109.04(B).

       {¶36} As this Court and our sister courts have recognized, there may be cases where the

trial court’s decision on the merits of a custody matter appears on its face to be reasonable

notwithstanding its failure to comply with its statutory duties under R.C. 3109.04(B). See, e.g.,

Dolub, 2005-Ohio-4662, at ¶ 4; Badgett, 120 Ohio App.3d at 452.                However, given the

importance of the parent-child relationship and the need for the trial court to have a full and

balanced perspective prior to ruling upon the child’s best interests, I would hold that the trial

court’s failure to comply with R.C. 3109.04(B) after a timely request for appointment of a GAL

has been made should constitute reversible error in and of itself. I would not conclude there has

been forfeiture in this case, and thus, plain error review is inappropriate. Accordingly, I dissent.


APPEARANCES:

JOSEPH P. MCCAFFERTY, Attorney at Law, for Appellant.

JOHN S. HAYNES, Attorney at Law, for Appellee.
