[Cite as Wright v. Wright, 2013-Ohio-4138.]

COURT OF APPEALS 

STARK COUNTY, OHIO 

FIFTH APPELLATE DISTRICT 

LEESA LLOYD WRIGHT : JUDGES: 

 : 

 : Hon. William B. Hoffman, P.J. 

 Plaintiff-Appellant : Hon. Sheila G. Farmer, J. 

 : Hon. Patricia A. Delaney, J. 

-vs- : 

 : Case No. 2012CA00232 

 : 

STEVEN WRIGHT : 

 : 

 : 

 Defendant-Appellee : O P I N I O N

CHARACTER OF PROCEEDING: Appeal from the Stark County Court of 

Common Pleas, Domestic Relations 

Division, Case No. 2004DR01383 

JUDGMENT: AFFIRMED 

DATE OF JUDGMENT ENTRY: September 9, 2013 

APPEARANCES: 

For Plaintiff-Appellant: For Defendant-Appellee: 

 

PAMELLA A. LAMMON JENNIFER LOWRY-JUERGENSEN 

103 N. Union St., Suite D 116 Cleveland Ave. SW, Suite 800 

Delaware, OH 43015 Canton, OH 44702 

 
Stark County, Case No. 2012CA00232 2 

Delaney, J. 

{¶1} Plaintiff-Appellant Leesa Lloyd Wright appeals the November 14, 2012 

judgment entry of the Stark County Court of Common Pleas, Domestic Relations 

Division. 

FACTS AND PROCEDURAL HISTORY 

{¶2} On June 22, 2005, Plaintiff-Appellant Leesa Lloyd Wright (“Mother”) and 

Defendant-Appellee Steven Wright (“Father”) were granted a divorce. The final decree 

incorporated the parties’ separation agreement wherein the parties agreed to a shared 

parenting plan regarding their child, E.W., born as issue of the marriage on July 31, 

2002. Mother was designated the residential parent and legal custodian. 

{¶3} On January 8, 2009, the parties entered into another shared parenting 

agreement wherein Father was designated the residential parent for school placement 

purposes and medical decisions. 

{¶4} In September 2009, Mother and Father filed separate motions for the 

reallocation of parental rights and responsibilities. Hearings were held before the 

magistrate. By decision filed August 3, 2010, the magistrate terminated the shared 

parenting plan, designated Father as the residential parent and legal custodian, and 

ordered Mother to pay child support in the amount of $50.00 per month. Mother filed 

objections. A hearing was held on March 30, 2011. By judgment entry filed April 18, 

2011, the trial court ordered a limited remand to address the issues of child support, 

health care, and the allocation of the dependency exemption. After a hearing, the 

magistrate issued a decision on those issues on May 5, 2011. The trial court overruled 

Mother’s objections, approved, and adopted the magistrate’s decision on May 9, 2011. 
Stark County, Case No. 2012CA00232 3 

The trial court filed findings of fact and conclusions of law and issued a final order on 

May 16, 2011. 

{¶5} Mother filed an appeal of the May 16, 2011 judgment entry with this Court. 

Mother filed a motion to stay judgment, which the trial court denied on June 13, 2011. 

In Wright v. Wright, 5th Dist. Stark No. 2011CA00129, 2012-Ohio-1560 (“Wright I”), we 

reversed the decision of the trial court and remanded the matter for further 

consideration. We found the trial court was precluded from terminating a shared 

parenting plan and designating Father as the residential parent and legal custodian 

without first making a determination that a change in circumstances had occurred, as 

well as a finding that a modification was in the best interest of the child. 

{¶6} Upon remand, the trial court reappointed the Guardian ad Litem to update 

his report because of the passage of time. The Guardian ad Litem recommended the 

trial court terminate the shared parenting plan and award custody to Father. The trial 

court held a limited evidentiary hearing on October 11, 2012. The trial court held an in 

camera interview with E.W. 

{¶7} On November 4, 2012, the trial court issued its Findings of Fact and 

Conclusions of Law and judgment entry. The trial court based its decision on the 

evidence adduced at the first trial and second trial. The trial court found five changes in 

circumstances had occurred since January 2009: (1) the parents acknowledged the 

shared parenting plan was not working; (2) Mother stopped using the computer 

program, “Our Family Wizard,” to communicate with Father as to E.W.; (3) When E.W. 

entered first grade in August 2009, Mother created conflict with the school that could 

negatively impact E.W.’s education; (4) Mother failed to comply with the parenting time 
Stark County, Case No. 2012CA00232 4 

provisions of the shared parenting plan; and (5) Mother changed E.W.’s name in 

Summit County Probate Court without the Father’s knowledge. The trial court next 

found it was within the child’s best interest that it terminate the shared parenting plan 

and name Father as the residential parent and legal custodian. 

{¶8} It is from this decision Mother now appeals. 

ASSIGNMENTS OF ERROR 

{¶9} Mother raises five Assignments of Error: 

{¶10} “I. THE TRIAL COURTS [SIC] DETERMINATION THAT A ‘CHANGE IN 

CIRCUMSTANCES’ HAS OCCURRED SINCE THE PARTIES WERE LAST IN COURT, 

AS WELL AS FINDING THAT THE MODIFICATION IS IN THE BEST INTEREST OF 

THE CHILD, PURSUANT TO R.C. 3109.04(E)(1)(a) WAS AN ABUSE OF DISCRETION 

AND AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE. THE TRIAL COURTS’ 

[SIC] DECISION IS NOT REFLECTED IN THE TRANSCRIPT. 

{¶11} “II. THE TRIAL COURT ABUSED ITS’ [SIC] DISCRETION WHEN IT 

PROCEEDED WITHOUT REMOVING AND REPLACING THE GUARDIAN AD LITEM, 

IF THE GUARDIAN AD LITEM DID NOT COMPLY WITH THE MINIMUM STANDARDS 

OF PRACTICE, AS SET FORTH IN RULE 48 OF THE RULES OF 

SUPERINTENDENCE. MUST THE GUARDIAN AD LITEM INFORM THE COURT 

WHEN THERE IS A CONFLICT OF INTEREST BETWEEN WHAT A COMPETENT 

CHILD DESIRES AND THE GUARDIAN AD LITEM’S RECOMMENDATION? THE 

TRIAL COURT’S DECISION IS NOT REFLECTED IN THE TRANSCRIPT. 

{¶12} “III. THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT 

DISREGARDED THE CHILD’S DESIRE TO LIVE WITH HIS MOTHER AND FAILED 
Stark County, Case No. 2012CA00232 5 

TO APPOINT SEPARATE COUNSEL FOR THE CHILD, WHEN THE CHILD’S 

WISHES ARE IN CONFLICT WITH THE GUARDIAN AD LITEM’S 

RECOMMENDATION. THE TRIAL COURT’S DECISION IS NOT REFLECTED IN THE 

TRANSCRIPT. 

{¶13} “IV. THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT 

AFFIRMED THE MAGISTRATE’S DECISION OF 8/3/2010, WHICH WAS BASED 

LARGELY UPON THE GUARDIAN AD LITEM’S REPORT OF 1/13/2010, WHICH WAS 

IN TURN LARGELY BASED UPON INADMISSIBLE HEARSAY FROM A 2006 

PSYCHOLOGICAL REPORT BY DR. TULLY. JUDGE JAMES INDICATES IN HIS 

11/4/2012 JUDGMENT ENTRY THAT THIS REPORT SHOULD BE DISREGARD [SIC], 

HOWEVER IT IS CLEAR THAT THIS REPORT FORMED THE BASIS OF BOTH THE 

GUARDIAN AD LITEM’S MULTIPLE REPORTS OVER THE YEARS OF THIS CASE 

AND THE MAGISTRATE’S DECISION OF 8/3/2010. THE TRIAL COURT’S DECISION 

IS NOT REFLECTED IN THE TRANSCRIPT. 

{¶14} “V. THE TRIAL COURT’S DECISION WAS AGAINST THE MANIFEST 

WEIGHT OF THE EVIDENCE WHEN IT TERMINATED THE SHARED PARENTING 

PLAN AND DESIGNATED THE DEFENDANT/APPELLEE THE RESIDENTIAL 

PARENT AND LEGAL CUSTODIAN OF THE PARTIES’ MINOR CHILD. THE TRIAL 

COURT’S DECISION IS NOT REFLECTED IN THE TRANSCRIPT.” 

ANALYSIS 

I., V. 

{¶15} Mother argues in her first Assignment of Error the trial court abused its 

discretion in finding that a change of circumstances had occurred and it was in the best 
Stark County, Case No. 2012CA00232 6 

interests of the child to modify the custody arrangement. Mother argues in the fifth 

Assignment of Error the decision to terminate the shared parenting plan and name 

Father as the residential parent and legal custodian was against the manifest weight of 

the evidence. We consider the first and fifth Assignments of Error together because 

they are interrelated. 

Standard of Review: Modification of Designation of Residential Parent and Legal 

Custodian 

{¶16} A trial court enjoys broad discretion in custody proceedings. Cossin v. 

Holley, 5th Dist. Morrow No. 2006 CA 0014, 2007–Ohio–5258, ¶ 28 citing Davis v. 

Flickinger, 77 Ohio St.3d 415, 674 N.E.2d 1159 (1997), paragraph one of the syllabus. 

A trial court's decision to terminate a shared parenting plan is reviewed under an abuse 

of discretion standard. In re J.L.R., 4th Dist. Washington No. 08CA17, 2009–Ohio–

5812. In order to find an abuse of 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, 5 Ohio St.3d 217, 450 N.E.2d 1140 (1983). 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., 54 Ohio St.2d 279, 376 N.E.2d 578 (1978). 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, 614 N.E.2d 742, 1993–Ohio–9. 

{¶17} R.C. 3109.04 governs modification of parental rights and responsibilities in 

a shared-parenting decree. Fisher v. Hasenjager, 116 Ohio St.3d 53, 2007–Ohio–5589, 

876 N.E.2d 546, ¶ 11. Subsections (E)(2)(c) and (d) state: 
Stark County, Case No. 2012CA00232 7 

(c) The court may terminate a prior final shared parenting decree that 

includes a shared parenting plan approved under division (D)(1)(a)(i) of 

this section upon the request of one or both of the parents or whenever it 

determines that shared parenting is not in the best interest of the children. 

The court may terminate a prior final shared parenting decree that 

includes a shared parenting plan approved under division (D)(1)(a)(ii) or 

(iii) of this section if it determines, upon its own motion or upon the request 

of one or both parents, that shared parenting is not in the best interest of 

the children. If modification of the terms of the plan for shared parenting 

approved by the court and incorporated by it into the final shared 

parenting decree is attempted under division (E)(2)(a) of this section and 

the court rejects the modifications, it may terminate the final shared 

parenting decree if it determines that shared parenting is not in the best 

interest of the children. 

(d) Upon the termination of a prior final shared parenting decree under 

division (E)(2)(c) of this section, the court shall proceed and issue a 

modified decree for the allocation of parental rights and responsibilities for 

the care of the children under the standards applicable under divisions 

(A), (B), and (C) of this section as if no decree for shared parenting had 

been granted and as if no request for shared parenting ever had been 

made. 

{¶18} We held in Wright I that pursuant to Fisher v. Hasenjager, 116 Ohio St.3d 

53, 2007-Ohio-5589, 876 N.E.2d 546, if there is a change in designation of residential 
Stark County, Case No. 2012CA00232 8 

parent and legal custodian of a child, the trial court is required to make a determination 

that a change in circumstances has occurred, as well as finding that a modification is in 

the best interest of the child, pursuant to R.C. 3109.05(E)(1)(a). Wright I, at ¶ 25 citing 

Fisher, at ¶ 37. 

Change in Circumstances 

{¶19} R.C. 3109.04(E)(1)(a) controls when a court modifies an order designating 

the residential parent and legal custodian. The statute requires a court to find a change 

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

subject to a shared parenting decree before modifying a decree allocating parental 

rights and responsibilities. 

{¶20} The trial court is “best able to view the witnesses and observe their 

demeanor, gestures and voice inflections, and use these observations in weighing the 

credibility of the proffered testimony.” Seasons Coal Co. v. Cleveland, 10 Ohio St.3d 

77, 80, 461 N.E.2d 1273 (1984). Therefore, deferential review in a child custody 

determination is especially crucial “where there may be much evident in the parties' 

demeanor and attitude that does not translate to the record well.” Davis v. Flickinger,

77 Ohio St.3d 415, 419, 1997–Ohio–260, 674 N.E.2d 1159.

{¶21} R.C. 3109.04(E)(1)(a), provides, in pertinent part, 

The court shall not modify a prior decree allocating parental rights and 

responsibilities for the care of 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, [or] his residential parent, or either of the 
Stark County, Case No. 2012CA00232 9 

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

necessary to serve the best interest of the child. * * * 

{¶22} “Although R.C. 3109.04 does not provide a definition of the phrase 

‘change in circumstances,’ Ohio courts have held that the phrase is intended to denote 

‘an event, occurrence, or situation which has a material and adverse effect upon a 

child.’“ Lewis v. Lewis, 12th Dist. Butler No. CA2001–09–209, 2002 WL 517991 (April 

8, 2002), citing Rohrbaugh v. Rohrbaugh, 136 Ohio App.3d 599, 604–05, 737 N.E.2d 

551 (7th Dist.2000). In order to warrant the abrupt disruption of the child's home life, the 

change in circumstances must be one “of substance, not a slight or inconsequential 

change.” Flickinger, 77 Ohio St.3d at 418, 674 N.E.2d 1159. “The purpose of requiring 

a finding of a change in circumstances is to prevent a constant re-litigation of issues that 

have already been determined by the trial court. * * * Therefore, the modification must 

be based upon some fact that has arisen since the prior order or was unknown at the 

time of the prior order.” Brammer v. Brammer, 194 Ohio App.3d 240, 955 N.E.2d 453, 

2011–Ohio–2610, ¶ 17 (3rd Dist.), citing R.C. 3109.04(E)(1)(a). 

{¶23} Moreover, and as stated by the Ohio Supreme Court, “a trial judge must 

have wide latitude in considering all the evidence” when making a determination of 

change of circumstances. Flickinger, 77 Ohio St.3d at 418, 674 N.E.2d 1159. If a court 

could not consider events as they continued to unfold once a custody motion is filed, the 

trial court would be perpetually re-addressing new filings alleging a change in 

circumstances due to the inevitable passage of time between the filing of the original 

custody motion and the date of the hearing on the motion. This barrier is meant to 

operate as the “domestic relations version of the doctrine of res judicata,” and is meant 
Stark County, Case No. 2012CA00232 10 

to prevent the “constant relitigation of the same issues” adjudicated in prior custody 

orders. Perz v. Perz, 85 Ohio App.3d 374, 376, 619 N.E.2d 1094 (1993). 

{¶24} The original shared parenting plan adopted in January 2009 named 

Father as the residential parent for school purposes. It provided a rotating schedule 

aligned with Father’s work schedule and a right of first refusal. By September 2009, 

Mother and Father had filed separate motions for reallocation of parental rights and 

responsibilities. In 2011, the trial court terminated the shared parenting plan. Father 

was named the residential parent and legal custodian. The parenting time was 

delineated by a Schedule A. The trial court denied a motion to stay while the 

termination of the shared parenting plan was appealed to this Court, so that the parties 

have been managing the custody arrangement pursuant to the trial court’s order, rather 

than the shared parenting plan. 

{¶25} Upon remand pursuant to Wright I, the trial court held a limited evidentiary 

hearing and reviewed the evidence from the previous hearing. The trial court 

determined the evidence showed five changes of circumstances. First, since the 

shared parenting plan was adopted in 2009, the parents both acknowledged the plan 

was unworkable. The trial court, Guardian ad Litem, and counsel have all described 

this case as a “high conflict case.” In an attempt to reduce the conflict, the trial court 

ordered the parties to use the computer program, “Our Family Wizard,” to aid in 

communication regarding E.W. The trial court found the evidence showed Mother 

stopped using the Family Wizard in February 2012, a second change in circumstances. 

A third change in circumstance was the contentious relationship between Mother and 

E.W.’s elementary school regarding the school’s communication with Mother, which the 
Stark County, Case No. 2012CA00232 11 

trial court held had the potential to negatively impact E.W.’s education. The school 

created a communication policy for students with custodial arrangements to 

accommodate the communication difficulties with Mother. The fourth change in 

circumstance involved the division of parenting time for Father and Mother over the 

Christmas holiday in 2009. Mother did not relinquish physical custody of E.W. to allow 

Father to have his scheduled time with E.W. The trial court found Mother’s failure to 

comply with the parenting time provisions of the shared parenting plan to be a change 

of circumstance. Finally, it was determined that during the pendency of the case, 

Mother changed E.W.’s last name in the Summit County Probate Court without Father’s 

knowledge. The order was reversed by the Summit County Probate Court upon the 

Father’s motion. 

{¶26} A review of the record and the Guardian ad Litem’s reports shows this 

case is indeed a “high conflict case.” Mother argues that while these events may have 

occurred, these events do not constitute changes in circumstances because they were 

not events, occurrences, or situations that have had a material and adverse effect upon 

E.W. Mother argues the evidence upon remand showed that E.W. was a happy and 

well-adjusted child. We note the shared parenting plan was terminated in 2011. Since 

2011, the parties have been conducting their custodial arrangements with Father as the 

residential parent and legal custodian. The Guardian ad Litem’s August 27, 2012 report 

noted the conflict he observed in 2011 had been resolved due to the trial court’s 

previous orders and restrictions. 

{¶27} Mother argues on appeal the trial court erred in finding there were 

changes of circumstances warranting a termination of the shared parenting plan. 
Stark County, Case No. 2012CA00232 12 

Mother, however, originally filed a motion for reallocation of parental rights and 

responsibilities arguing change in circumstances. The record in this case supports the 

trial court’s conclusion that substantial events have occurred that have or may have an 

adverse effect on E.W. We defer to the trial court’s interpretation of the evidence as it 

observed first-hand the witnesses and their demeanor. 

Best Interest of the Children

{¶28} If a change of circumstances is established, the trial court must weigh the 

best interest of the children before modifying a residential-parent designation. R.C. 

3109.04(F) sets forth the factors a trial court must consider in determining the best 

interest of the child: 

R.C. 3109.04(F)(1) requires the trial court consider all relevant factors. These 

factors include, but are not limited to: 

(a) The wishes of the child's parents regarding the child's care; 

(b) If the court has interviewed the child in chambers pursuant to division (B) of 

this section regarding the child's wishes and concerns as to the allocation of 

parental rights and responsibilities concerning the child, the wishes and concerns 

of the child, as expressed to the court; 

(c) The child's interaction and interrelationship with the child's parents, siblings, 

and any other person who may significantly affect the child's best interest; 

(d) The child's adjustment to the child's home, school, and community; 

(e) The mental and physical health of all persons involved in the situation; 

(f) The parent more likely to honor and facilitate court-approved parenting time 

rights or visitation and companionship rights; 
Stark County, Case No. 2012CA00232 13 

(g) Whether either parent has failed to make all child support payments, including 

all arrearages, that are required of that parent pursuant to a child support order 

under which that parent is an obligor; 

(h) Whether either parent or any member of the household of either parent 

previously has been convicted of or pleaded guilty to any criminal offense 

involving any act that resulted in a child being an abused child or a neglected 

child * * *; 

(i) Whether the residential parent or one of the parents subject to a shared 

parenting decree has continuously and willfully denied the other parent's right to 

parenting time in accordance with an order of the court; 

(j) Whether either parent has established a residence, or is planning to establish 

a residence, outside this state. 

R.C. 3109.04(F)(1)(a)-(j). Furthermore, in determining whether shared parenting is in 

the best interest of the child, the trial court shall also consider additional factors 

including, but not limited to: 

(a) The ability of the parents to cooperate and make decisions jointly, with 

respect to the [child]; 

(b) The ability of each parent to encourage the sharing of love, affection, and 

contact between the child and the other parent; 

(c) Any history of, or potential for, child abuse, spouse abuse, other domestic 

violence, or parental kidnapping by either parent; 

(d) The geographic proximity of the parents to each other, as the proximity 

relates to the practical considerations of shared parenting; 
Stark County, Case No. 2012CA00232 14 

(e) The recommendation of the guardian ad litem of the child, if the child has a 

guardian ad litem. 

R.C. 3109.04(F)(2). 

{¶29} The magistrate’s original decision on August 3, 2010 considered the best 

interests of E.W. It weighed the factors and found it was in the best interests of E.W. 

that the shared parenting plan be terminated and Father named the residential parent 

and legal custodian. Upon remand, the trial court reviewed the original decision and 

modified it based on the passage of time. The trial court stated it would not consider as 

evidence a psychological evaluation performed six years ago. The trial court conducted 

an in camera interview with E.W., wherein the child stated he wished to reside with 

Mother and visit Father. The trial court found E.W. did not articulate a reason for his 

wishes. The Guardian ad Litem in this case repeatedly recommended through his 

reports and testimony that the shared parenting plan be terminated and custody be 

awarded to Father. 

{¶30} We find no abuse of discretion in the trial court’s conclusion that it is in the 

best interests of E.W. that Father is named the residential parent and legal custodian. 

The magistrate decision thoroughly analyzed the factors and the findings were 

supported by the record. The most significant factor in this case was the parents’ 

inability to cooperate or make joint decisions for the benefit of E.W. The inability to 

make joint decisions ranged from E.W.’s education to E.W.’s health care. Further, the 

record supports the decision that Father would more likely facilitate the parenting time 

schedule, based on Mother’s previous denial of Father’s parenting time. 

Manifest Weight 
Stark County, Case No. 2012CA00232 15 

{¶31} Mother argues the decision was against the manifest weight of the 

evidence. 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., 54 Ohio St.2d 279, 376 N.E.2d 578 (1978). 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–9,614 N.E.2d 742. 

{¶32} We have reviewed the record and based on our findings above, we find 

the decision to terminate the shared parenting plan was supported by competent and 

credible evidence. 

{¶33} Mother’s first and fifth Assignments of Error are overruled. 

II. 

{¶34} Mother argues in her second Assignment of Error the trial court abused its 

discretion when it failed to remove the Guardian ad Litem for E.W. based on the GAL’s 

failure to comply with Sup.R. 48. We disagree. 

{¶35} Sup.R. 48 governs guardian ad litem standards in Ohio and sets statewide 

standards regarding the appointment, responsibilities, training and reporting 

requirements of guardians ad litem. Mother argues the GAL failed to meet the minimum 

standards set forth by Sup.R. 48 and his evidence should not be considered by the trial 

court. 

{¶36} The GAL was originally appointed on November 11, 2004. The trial court 

reappointed the GAL on September 30, 2008, September 23, 2009, and May 8, 2012. 

The GAL filed reports on March 28, 2005, January 5, 2009, January 11, 2010, May 3, 
Stark County, Case No. 2012CA00232 16 

2012, and August 27, 2012. The reports outline the individuals the GAL interviewed 

including Mother, Father, E.W., and school employees and the records the GAL 

reviewed such as the school records, medical records, police records, Summit County 

Probate Court records, emails, Family Wizard, and tape recordings. Based on his 

investigation, the GAL repeatedly concluded the shared parenting plan should be 

terminated. 

{¶37} The record shows the GAL complied with the requirements of Sup.R. 48 

during the pendency of this case. We find no abuse of discretion for the trial court to 

deny the motion to remove the GAL. 

{¶38} Mother’s second Assignment of Error is overruled. 

III. 

{¶39} Mother argues in her third Assignment of Error the trial court erred in 

failing to appoint a separate attorney for E.W. because the child expressed different 

wishes for his custodial arrangement than that recommended by the Guardian ad Litem. 

{¶40} On August 28, 2012, Mother filed a motion for separate legal counsel to 

be appointed for E.W. She argued pursuant to Sup.R. 48 and Civ.R. 75, the trial court 

should appoint separate legal counsel for the child when the child’s wishes conflict with 

the GAL’s recommendation for custody. The trial court denied the motion on 

September 19, 2012. 

{¶41} Sup.48(D)(8) states: “When a guardian ad litem determines that a conflict 

exists between the child's best interest and the child's wishes, the guardian ad litem 

shall, at the earliest practical time, request in writing that the court promptly resolve the 

conflict by entering appropriate orders.” The GAL reported in his August 27, 2012 
Stark County, Case No. 2012CA00232 17 

updated GAL report that E.W. stated a preference for spending more time with Mother. 

He said he was bored at Father’s home and enjoyed seeing his older sister (who lives 

with Mother). At the time of the GAL interview, E.W. was 10 years old. At the October 

11, 2012 trial, the GAL testified: 

Q. [E.W.] has expressed to you that...his desires are contrary to what your 

report recommends, has he not? 

A. He has expressed inconsistent desires to me. 

Q. (Agreeing). His most recent desire expressed to you, since the time 

the trial ended, is inconsistent with your report, is it not? 

A. He has expressed ... 

Q. The answer is yes or no. 

A. Inconsistent preferences. So, no matter what I recommend, he would 

have some expression of opinion or preference that would be inconsistent. 

It would be impossible to have a recommendation to the Court, that would 

be consistent with the opinion [E.W.] expressed to me. 

Q. So, you don’t, do you believe there’s a conflict with, between um...what 

you recommend and what [E.W.] wants? 

A. No, I don’t. 

(October 11, 2012 Hearing, T. 35-36). 

{¶42} The trial court conducted an in camera interview with E.W. In its 

November 14, 2012 judgment entry, the trial court found: “The Court has also 

considered the wishes of the child as expressed in the in-camera interview and found 
Stark County, Case No. 2012CA00232 18 

him to be competent to express his wishes. [E.W.] expressed a desire to reside with his 

mother and visit his father. [E.W.] was unable to articulate the reasons for his wishes.” 

{¶43} Courts should make a determination, on a case-by-case basis, whether 

the child actually needs independent counsel, taking into account the maturity of the 

child and the possibility of the child's guardian ad litem being appointed to represent the 

child. In re Williams, 101 Ohio St.3d 398, 2004–Ohio–1500, 805 N.E., 2d 1110. In this 

case, the GAL did not feel there was a conflict between what E.W. desired and the GAL 

recommended. The GAL had been with E.W. since 2004 and was knowledgeable of 

the history of the case. The trial court confirmed the GAL’s recommendation with his 

separate in camera interview with E.W. Considering the age of E.W. at the time he 

stated his preference and the history of this case, we find no abuse of discretion in 

denying the motion for appointment of separate counsel. 

{¶44} Mother’s third Assignment of Error is overruled. 

IV. 

{¶45} Mother asserts in her fourth Assignment of Error that the trial court 

erroneously considered the 2006 psychological evaluation of the family by Dr. Tully 

when making its decision to terminate the shared parenting plan. We disagree. 

{¶46} The trial court’s November 14, 2012 judgment entry stated: 

The findings of fact issued in the Magistrate’s Decision are approved, 

adopted and incorporated herein with two exceptions. The court finds that 

any reference or reliance upon Dr. Tully’s psychological evaluation 

performed six years ago should be disregarded in that it is not in evidence 

at this time. * * * 
Stark County, Case No. 2012CA00232 19 

{¶47} The trial court was required not only to consider the best interests of the 

child in making its decision to terminate the shared parenting plan, but also whether 

there was a change in circumstances. The change in circumstances evidence 

presented to the trial court occurred after the 2006 psychological examination. This 

Court has recently held in Nicely v. Weaver, 5th Dist. Stark No. 2012 CA 00134, 2013-

Ohio-1621, ¶ 22, “* * * in a bench trial, a trial court judge is presumed to know the 

applicable law and apply it accordingly. Walczak v. Walczak, Stark 

App.No.2003CA00298, 2004–Ohio–3370, ¶ 22, citing State v. Eley (1996), 77 Ohio 

St.3d 174, 180–181, 672 N.E.2d 640. In this instance, the trial court is thus afforded the 

presumption that it was capable of distinguishing the pre–2007 foundational information 

from the main body of evidence in reaching its decision.” 

{¶48} We likewise afford the trial court the presumption that it did not consider 

the 2006 psychological examination in making its decision. 

{¶49} Mother’s fourth Assignment of Error is overruled. 

 
Stark County, Case No. 2012CA00232 20 

CONCLUSION

{¶50} Based on the above findings, the five Assignments of Error of PlaintiffAppellant Leesa Lloyd Wright are overruled. 

{¶51} The judgment of the Stark County Court of Common Pleas, Domestic 

Relations Division is affirmed. 

By: Delaney, J., 

Hoffman, P.J. and 

Farmer, J., concur. 

HON. PATRICIA A. DELANEY 

HON. WILLIAM B. HOFFMAN 

HON. SHEILA G. FARMER