[Cite as Lemasters v. Lemasters, 2019-Ohio-4395.]




                                    IN THE COURT OF APPEALS

                           TWELFTH APPELLATE DISTRICT OF OHIO

                                          MADISON COUNTY




 TIFFANY LEMASTERS,                                 :

         Appellee,                                  :    CASE NO. CA2018-06-018

                                                    :           OPINION
   - vs -                                                       10/28/2019
                                                    :

 DONALD LEMASTERS,                                  :

         Appellant.                                 :




             APPEAL FROM MADISON COUNTY COURT OF COMMON PLEAS
                         DOMESTIC RELATIONS DIVISION
                            Case No. DRA 20140092




Tiffany Lemasters, 401 McDermott St., Apt. 711, Deer Park, Texas 77536, appellee, pro
se

Donald Lemasters, 2027 Irene Ave., Warren, Ohio 44483, appellant, pro se




        M. POWELL, J.

        {¶ 1} Appellant, Donald Lemasters ("Father"), appeals the decision of the Madison

County Court of Common Pleas, denying his motion for custody of his minor child, E.L. For

the reasons set forth below, the trial court's judgment is affirmed.
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      {¶ 2} Father and appellee, Tiffany Lemasters ("Mother"), were married in June

1996. Five children were born issue of the marriage, including S.L., born in December

1999, C.L., born in November 2001, and E.L., born in December 2003. Mother and Father

were divorced in March 2015. At that time, Father was incarcerated and Mother was

awarded custody of the parties' five children. Due to Father's incarceration, he did not

attend the final divorce hearing and was not awarded any visitation time in the divorce

decree.

      {¶ 3} Three months after the parties' divorce, Mother moved with the children to

Texas. Thereafter, in 2017, S.L. and C.L. began living with Father in Ohio. Although E.L.

did not reside with Father in 2017, she visited Father throughout July and August of that

year. In September 2017, E.L. returned to live with Mother in Texas.

      {¶ 4} In August 2017 Father filed a motion for custody of S.L., C.L., and E.L. Mother

did not file a response to Father's motion, despite the trial court granting her an extension

of time to do so. Thereafter, Father moved for default judgment pursuant to Civ.R. 55,

alleging that because Mother failed to respond to his motion for custody, the trial court

should award Father custody of the children. The trial court deferred ruling on Father's

default judgment motion until a hearing was held regarding his motion for custody of the

minor children.

      {¶ 5} In March 2018, the trial court held a hearing regarding Father's motions.

Neither Mother nor E.L. was present at the hearing. Father, S.L., and C.L. testified at the

hearing. Upon consideration of the evidence and the R.C. 3109.04(F)(1) best interest

factors, the trial court awarded Father custody of S.L. and C.L. but denied his motion for

custody of E.L.

      {¶ 6} Father now appeals, raising four assignments of error for this court's review.

For the ease of review, we will address Father's assignments of error out of order.

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       {¶ 7} Assignment of Error No. 2:

       {¶ 8} THE TRIAL COURT ABUSED ITS DISCRETION FOR NOT GRANTING THE

DEFENDANT CUSTODY OF E.L.

       {¶ 9} Father argues the trial court abused its discretion by declining to award him

custody of E.L. Specifically, Father claims that "if the [trial court] had considered the best

interest of the child and all the factors in R.C. 3109.04, * * * [it] could not have denied

[Father's] motion for custody."

       {¶ 10} A trial court's decision regarding custody will not be reversed absent an abuse

of discretion. Bechtol v. Bechtol, 49 Ohio St.3d 21 (1990), syllabus. However, the trial

court's discretion in custody matters, while broad, is not absolute. In determining whether

a modification of custody is warranted, the trial court must follow R.C. 3109.04(E)(1)(a).

Pursuant to that statute, the juvenile court cannot modify a prior decree unless it finds: (1)

that there has been a change in circumstances since the time of the prior decree, and (2)

that the modification is necessary to serve the best interest of the child.

       {¶ 11} If a change in circumstances has occurred, "the trial court can modify custody

only if the modification is necessary to serve the best interest of the child." Hunter-June v.

Pitts, 12th Dist. Butler No. CA2013-09-178, 2014-Ohio-2473, ¶ 14. In determining the best

interest of a child, the trial court is required to consider all relevant factors listed in R.C.

3109.04(F)(1).

       {¶ 12} The trial court found that a change in circumstances had occurred since the

prior custody determination was made. Specifically, the court found that Mother's relocation

to Texas qualified as a change of circumstances.

       {¶ 13} The trial court also considered the relevant best interest factors within R.C.

3109.04(F)(1) and emphasized the R.C. 3109.04(F)(1)(a) and (b) factors. Regarding its

consideration of the wishes of the parents pursuant to R.C. 3109.04(F)(1)(a), the trial court

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found that Mother, unlike her position regarding S.L. and C.L., was not in agreement that

E.L. should reside in Ohio with Father.1 Regarding its consideration of the wishes of the

children pursuant to R.C. 3109.04(F)(1)(b), the trial court noted that while S.L. and C.L.

testified at the hearing regarding their desire to live with Father, the court did not have the

opportunity to have a similar conversation with E.L. However, the trial court indicated that

even if E.L. had testified, it was unsure whether her wishes would have altered the trial

court's decision due to her young age. After weighing each of the best interest factors, the

trial court found that a change in custody was not in E.L.'s best interest.

        {¶ 14} After a review of the record, we find the trial court did not abuse its discretion

in denying Father's motion for custody of E.L. Father initially claims the trial court failed to

consider the unrebutted testimony that E.L. wished to reside with Father. However, the

record indicates that the trial court was presented with differing evidence as to whether E.L.

desired to live with Father. Specifically, although Father and S.L. testified that E.L. wished

to live with Father, E.L. was not present at the hearing and did not testify as to her wishes.

Additionally, the trial court heard testimony from C.L., who indicated that Mother had agreed

to allow the children to live with Father if it would make the children happy. According to

C.L., Mother maintained this opinion for all three children, including E.L., but E.L. remained

in Texas while he and S.L. moved to Ohio. At the hearing, C.L. could not explain why E.L.

did not move to Ohio with her older siblings.

        {¶ 15} We also reject Father's argument that the trial court did not give proper weight

to the testimony regarding Mother's boyfriend, who S.L. and C.L. described as someone

they did not like, and as a person with bad habits who sometimes made the children feel

uncomfortable. While the record reflects that S.L. and C.L. testified that they disliked



1. The trial court based this finding upon Mother's permitting S.L. and C.L to remain with Father in Ohio but
requiring E.L. return to Texas.
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Mother's boyfriend, the trial court found that the children were not afraid of or intimidated by

him. This finding is supported by the record. Specifically, S.L. indicated that she did not

like her Mother's boyfriend because he was mean to her dogs, but that she had returned to

Texas to visit Mother since moving to Ohio. S.L. described the visit as "fun." Similarly, C.L.

testified that although he disliked Mother's boyfriend because of his "weird" habits, he had

been present in the household for a few years and their relationship had only recently

become tense. Considering the children's descriptions of Mother's boyfriend, we find no

error in the weight given by the trial court to their general feelings of dislike.

       {¶ 16} We further reject Father's contention that the trial court did not adequately

consider E.L.'s medical condition and Father's testimony that she was not taking her

medicine while with Mother. While Father indicated he had concerns regarding E.L.'s

medical condition and that she was not taking her medicine while with Mother, E.L. did not

testify at the hearing to confirm whether or not she was taking her medication. Moreover,

despite Father's contention that the trial court did not consider his concerns, the trial court

noted and considered E.L.'s medical condition when rendering its decision, but evidently

gave more weight to Mother's desire for E.L. to remain in Texas and the fact that E.L.'s

wishes were unknown.

       {¶ 17} Regarding all of Father's foregoing contentions, as a reviewing court, we must

keep in mind that "the trial court is better equipped to examine and weigh the evidence,

determine the credibility, attitude and demeanor of witnesses, and make decisions

concerning custody." In re A.B., 12th Dist. Butler No. CA2009-10-257, 2010-Ohio-2823, ¶

21. Accordingly, although some factors may weigh in favor of awarding Father custody of

E.L., the evidence is not so overwhelming as to suggest that the trial court abused its

discretion in concluding to the contrary. As such, Father's second assignment of error is

overruled.

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       {¶ 18} Assignment of Error No. 1:

       {¶ 19} THE TRIAL COURT ABUSED ITS DISCRETION BY NOT GRANTING THE

"MOTION FOR DEFAULT JUDGMENT" FILED BY THE DEFENDANT ON THE PLAINTIFF

FOR NOT COMPLYING WITH THE CIVIL RULES OF PROCEDURE.

       {¶ 20} Father argues the trial court abused its discretion in declining to grant his

motion for default judgment, despite acknowledging that Mother failed to respond to his

motion for custody. Father further argues that Mother has disregarded the Ohio Rules of

Civil Procedure, which the trial court should not tolerate.

       {¶ 21} Father filed for a default judgment pursuant to Civ.R. 55, which states:

              When a party against whom a judgment for affirmative relief is
              sought has failed to plead or otherwise defend as provided by
              these rules, the party entitled to a judgment by default shall
              apply in writing or orally to the court therefore * * *. If, in order
              to enable the court to enter judgment or to carry it into effect, it
              is necessary to * * * establish the truth of any averment by
              evidence or to make an investigation of any other matter, the
              court may conduct such hearings * * * as it deems necessary[.]

       {¶ 22} An appellate court reviews a trial court's decision to grant or deny a motion

for default judgment under an abuse-of-discretion standard. Nix v. Robertson, 12th Dist.

Butler No. CA2012-08-157, 2013-Ohio-777, ¶ 9. "An abuse of discretion is more than an

error of law or judgment; it implies that the court's attitude is unreasonable, arbitrary or

unconscionable."     Id., citing Blakemore v. Blakemore, 5 Ohio St.3d 217, 219 (1983).

Despite this deferential standard of review, courts of appeals and trial courts, alike, must be

mindful that "[g]enerally, the law disfavors default judgments" and "[t]he general policy in

Ohio is to decide cases on their merits whenever possible." Baines v. Harwood, 87 Ohio

App.3d 345, 347 (12th Dist.1993).

       {¶ 23} In this case, the trial court initially deferred ruling on Father's motion for default

judgment until it heard testimony regarding the facts of his motion for custody, as required


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by R.C. 3109.04(E)(1). At the conclusion of the hearing, the trial court orally denied Father's

motion for default judgment as procedurally inappropriate in a child custody case. In doing

so, the trial court explained that the law "is very clear that the Court shall not modify a prior

decree allocating parental rights and responsibilities unless the Court determines that there

has been a change in circumstances * * * and that that modification is necessary to serve

the best interest of the child." Thus, the trial court indicated that granting default judgment

to Father prior to satisfying its duty under R.C. 3109.04 would have been improper.

       {¶ 24} Father argues this was an abuse of discretion because a default judgment in

his favor was warranted, as Mother was served with the motion for custody and there was

no response or answer by Mother. As such, Father appears to argue that Mother's failure

to respond should have resulted in an award of custody to Father, regardless of the trial

court's determination pursuant to R.C. 3109.04(E)(1). We find no abuse of discretion by

the trial court in declining to grant default judgment to Father.

       {¶ 25} Civ. R. 55 specifically permits a trial court to defer ruling upon a motion for

default judgment pending hearing to "establish the truth of any averment by evidence or to

make an investigation of any other matter." There is an obvious necessity for such a hearing

in child custody matters where the primary concern is the best interest of the child. Granting

a default judgment simply upon the request of the moving party without considering the best

interest of the child would have been inappropriate in this proceeding.

       {¶ 26} Accordingly, Father's first assignment of error is overruled.

       {¶ 27} Assignment of Error No. 3:

       {¶ 28} THE TRIAL COURT VIOLATED THE DEFENDANT'S DUE PROCESS

RIGHTS UNDER THE FOURTEENTH AMENDMENT FOR NOT GRANTING HIM

VISITATION RIGHTS AFTER THE TRIAL COURT JUDGE DENIED THE DEFENDANT

CUSTODY OF E.L.

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       {¶ 29} In granting Father's motion for custody of S.L. and C.L., the trial court ordered

that aside from the change in custody and Mother's visitation with S.L. and C.L., the

remaining provisions of the original decree were to remain unchanged. As a result, Father

remained without any visitation rights to E.L. and his youngest two children. Father claims

this is equivalent to a permanent termination of his parental rights to E.L., and therefore

violates his due process rights.

       {¶ 30} Father was not awarded any visitation rights in the original decree due to his

incarceration at the time of the divorce. However, the divorce decree did not preclude

Father from raising the issue when he was no longer incarcerated. We note that Father did

not raise the issue of visitation in his motion for custody or request visitation in the event his

motion for custody was denied. As such, no decision by the trial court in this case is a

"termination of his visitation rights" or precludes Father from being granted visitation in a

future proceeding. As a result, and despite his concerns, Father is not foreclosed from

readdressing the issue of visitation with E.L., or his other two children, in the future.

       {¶ 31} Father's third assignment of error is overruled.

       {¶ 32} Assignment of Error No. 4:

       {¶ 33} THE TRIAL COURT VIOLATED THE DEFENDANT'S DUE PROCESS

RIGHTS UNDER THE FOURTEENTH AMENDMENT FOR DENYING HIM A FAIR

PROCEEDING WHEN HE CONTINUED AND PROCEEDED WITH THE HEARING

WITHOUT THE PLAINTIFF APPEARING IN COURT.

       {¶ 34} In his final assignment of error, Father argues that the trial court violated his

right to due process when it denied his motion for default judgment and proceeded with the

hearing despite Mother's absence. Specifically, Father claims he was not provided a fair

trial because he was unable to cross-examine Mother and the trial court could not interview

E.L. However, as discussed above, the trial court did not abuse its discretion in denying

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Father's motion for default judgment. We further find that Father's due process rights were

not violated simply because Mother was not present at the custody hearing.

       {¶ 35} The fundamental requirements of due process are notice and the opportunity

to be heard at a meaningful time and in a meaningful manner. Mathews v. Eldridge, 424

U.S. 319, 333, 96 S.Ct. 893 (1976), citing Armstrong v. Manzo, 380 U.S. 545, 552, 85 S.Ct.

1187 (1965). Father claims he was not provided a fair trial, and was denied his right to be

heard, because he was unable to cross-examine Mother and the trial court could not

interview E.L. at the custody hearing. However, the record reflects that at the beginning of

the custody hearing, the trial court informed Father and his counsel that Father was required

to establish: (1) there had been a change of circumstances; and (2) that it's in the best

interest of the children to make a custody change. To satisfy this burden, Father elected to

testify and to present the testimony of S.L. and C.L. in support of his motion for custody.

The record does not reflect that Father undertook efforts to compel appearances by Mother

and E.L. or to otherwise obtain their testimony.2 There was no objection from Father or his

counsel regarding Mother's absence at any point during the hearing, nor did Father request

that the hearing be continued.

       {¶ 36} It was Father's responsibility to offer sufficient evidence supporting a change

of custody. Thus, if Father required Mother's and E.L.'s testimony in support of his motion,

it was Father's obligation to obtain the testimony through the means available to him,

including interrogatories, a deposition, or a subpoena. As a result, we find Father was not

precluded from presenting his case to the trial court, and the trial court did not violate due

process by proceeding with the hearing in Mother's absence.

       {¶ 37} Accordingly, Father's fourth assignment of error is overruled.



2. Father acknowledged at oral argument that no subpoenas had been issued by Father to secure the
attendance of either Mother or E.L. at the hearing.
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{¶ 38} Judgment affirmed.


RINGLAND, P.J., and PIPER, J., concur.




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