[Cite as Berry v. Berry, 2014-Ohio-4874.]

 

IN THE COURT OF APPEALS OF OHIO 

THIRD APPELLATE DISTRICT 

HANCOCK COUNTY 

 

KRISTI L. BERRY, 

 PLAINTIFF-APPELLEE, CASE NO. 5-14-06 

 v. 

CLINTON D. BERRY, O P I N I O N 

 DEFENDANT-APPELLANT. 

 

Appeal from Hancock County Common Pleas Court 

Domestic Relations Division 

Trial Court No. 2009 DR 189 

Judgment Affirmed 

Date of Decision: November 3, 2014 

 

APPEARANCES: 

 

John C. Filkins for Appellant 
Case No. 5-14-06 

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SHAW, J. 

{¶1} Defendant-appellant, Clinton D. Berry (“Clinton”), appeals the April 

7, 2014 judgment of the Hancock County Court of Common Pleas, Domestic 

Relations Division, designating plaintiff-appellee, Kristi L. Berry (“Kristi”), as the 

residential parent of their minor child and granting Clinton parenting time as the 

non-residential parent. In a separate decision, the trial court overruled Clinton’s 

objections to the Magistrate’s decision, which recommended that the trial court 

overrule Clinton’s motion to designate him as the child’s residential parent and his 

motion to adopt his shared parenting plan. 

{¶2} The parties were married on September 25, 1999, and had one child, 

Brian, born in April of 2004. On August 5, 2009, the parties divorced. The 

divorce decree stated the following with regard to the custody of the parties’ child. 

“There is no allocation of parental rights and responsibilities as the Hancock 

County Juvenile Court has exercised jurisdiction in two cases: 20830043 and 

20934036. Future modification or allocation of parental rights shall be handled by 

the Juvenile Court.” (Doc. 34 at 2). The record reflects that the Juvenile Court 

cases were dependency and neglect proceedings involving Brian when he was in 

the care of Kristi and his paternal-grandmother while residing in Findlay, Ohio in 

2008. At the time, Clinton remained in Georgia attempting to sell the parties’ 

home and then subsequently relocated to join the family. 
Case No. 5-14-06 

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{¶3} According to certain judgment entries issued by the Juvenile Court 

which were incorporated into the record of the Domestic Relations case, Brian was 

removed from the parties’ custody and placed with his maternal grandmother. 

Both parties underwent psychological evaluations and were ordered to comply 

with the case plan objectives put into place by the Hancock County Children’s 

Protective Services Unit (“CPSU”). 

{¶4} On October 2, 2009, upon consent of the parties, Brian was returned to 

Kristi’s custody under protective supervision by CPSU. Clinton was granted 

parental visitation. CPSU’s protective supervision was terminated several months 

later and jurisdiction over Brian was eventually transferred from the Juvenile 

Court to the Domestic Relations Court. 

{¶5} On July 21, 2011, Clinton filed a motion to designate him as Brian’s 

residential custodian and legal guardian. The parties disputed the appropriate legal 

standard to be applied to Clinton’s motion. Specifically, Clinton argued that 

because the Domestic Relations Court had yet to make an allocation of the parties’ 

parental rights and responsibilities, the trial court must only determine whether 

designating him as the residential parent is in Brian’s best interest since no prior 

allocation was made by the Domestic Relations Court. For her part, Kristi 

maintained that the October 2, 2009 Judgment Entry of the Juvenile Court issued 

during the dependency and neglect proceedings, in which the Juvenile Court 
Case No. 5-14-06 

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returned Brian to Kristi’s custody under protective supervision and granted 

Clinton parental visitation, was a prior allocation of the parties’ parental rights and 

responsibilities. Therefore, Kristi argued that Clinton must establish that a 

“change in circumstances,” as set forth in R.C. 3109.04(E), had occurred since the 

prior Juvenile Court custody order before the Domestic Relations Court could 

modify the parties’ parental rights and responsibilities. 

{¶6} On December 9, 2011, the Magistrate issued an order finding that the 

“change in circumstances” analysis was the appropriate legal standard to be 

applied to the case. 

{¶7} On February 17, 2012, the trial court issued a judgment entry 

journalizing the parties’ agreement for temporary parenting time during the 

pendency of the case. Commencing on January 13, 2012, Clinton was entitled to 

parenting time on alternate weekends and one mid-week overnight every Tuesday. 

The parties also agreed to offer the other parent additional parenting time if either 

party was required to work on their scheduled weekend before engaging another 

child care provider, and further agreed to exercise Holiday parenting time pursuant 

to the local rules of court. 

{¶8} On March 6, 2012, Clinton filed a motion to adopt a shared parenting 

plan and later filed an amended proposed shared parenting plan. 
Case No. 5-14-06 

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{¶9} On March 8, 2012, the Guardian ad litem (“GAL”) assigned to the 

case filed his report with the court. 

{¶10} The case was heard by the Magistrate on March 27, 2012, May 31, 

2012, August 9, 2012, and August 10, 2012. During the proceedings, Clinton’s 

counsel moved to admit the testimony of Dr. Darlene Barnes, a psychologist who 

evaluated Clinton and Kristi three years earlier in 2009 during the dependency and 

neglect cases in the Juvenile Court. Upon inquiring further as to the necessity and 

propriety of Dr. Barnes’ testimony, the Magistrate concluded that Dr. Barnes’ 

testimony regarding her 2009 psychological evaluation of Kristi was not relevant 

to establish a “change in circumstances.” Consequently, the Magistrate ruled that 

Dr. Barnes’ testimony and her 2009 report were inadmissible, except upon Kristi’s 

consent. The Magistrate noted that her ruling was preliminary and subject to 

reconsideration “upon the presentation of additional evidence establishing some 

relevance of the prior evaluation.” (Doc. No. 137 at 4). 

{¶11} During the evidentiary hearings, Clinton presented the testimony of 

numerous witnesses, the majority of which provided evidence related to the 2008 

dependency and neglect cases handled by the Juvenile Court. Notably, several of 

these witnesses provided testimony regarding Dr. Barnes’ 2009 psychological 

evaluation of Kristi and the Magistrate allowed Dr. Barnes’ report to be admitted 

as an exhibit for limited purposes at the hearings. Kristi provided testimony in 
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support of her case. The Magistrate also conducted an in camera interview with 

Brian. 

{¶12} On September 12, 2012, the Magistrate issued a thirty-seven page 

decision thoroughly analyzing the evidence before her and made the following 

recommendations. The Magistrate concluded that it was in Brian’s best interest 

for Kristi to remain the residential parent. The Magistrate also found that the 

temporary custody arrangements the parties implemented during pendency of the 

custody proceedings were appropriate and in Brian’s best interest. The Magistrate 

further recommended expanding Clinton’s parenting time to six weeks in the 

summer. 

{¶13} Clinton filed objections to the Magistrate’s decision with the trial 

court and claimed, in relevant part, that the Magistrate failed to apply the 

appropriate legal standard of “best interest” and instead required a “change in 

circumstances” be established as a threshold matter; that the Magistrate erred in 

failing to order Dr. Barnes to comply with Clinton’s subpoena and in concluding 

that Dr. Barnes’ testimony and her 2009 psychological evaluation of Kristi were 

inadmissible; and that the Magistrate erred as a result of her failure to designate 

Clinton as Brian’s residential parent and legal custodian or to adopt Clinton’s 

shared parenting plan. 
Case No. 5-14-06 

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{¶14} On February 28, 2014, the trial court in its independent review of the 

legal and factual issues presented in the case overruled Clinton’s objections. The 

trial court adopted the Magistrate’s decision and journalized its decision in its 

April 7, 2014 Judgment Entry. 

{¶15} Clinton now appeals, asserting the following assignments of error. 

ASSIGNMENT OF ERROR NO. I

THE TRIAL COURT ERRED WHEN IT REQUIRED PROOF 

OF A CHANGE IN CIRCUMSTANCES WHEN THE 

CORRECT LEGAL STANDARD REQUIRED MERELY 

PROOF OF WHAT WAS IN THE BEST INTEREST OF THE 

MINOR CHILD UNDER § 3109.04. 

ASSIGNMENT OF ERROR NO. II

THE TRIAL COURT ERRED AS A RESULT OF ITS 

REFUSAL TO PERMIT THE DEFENDANT TO CALL DR. 

BARNES AS A WITNESS AND AS A RESULT OF ITS 

FAILURE TO CONSIDER THE EVALUATION OF THE 

APPELLEE CONDUCTED BY DR. BARNES. 

ASSIGNMENT OF ERROR NO. III

THE TRIAL COURT ERRED AS A RESULT OF ITS 

FAILURE TO IDENTIFY THE APPELLANT AS THE 

RESIDENTIAL PARENT AND LEGAL CUSTODIAN OF THE 

MINOR CHILD, BRIAN BERRY, OR TO ADOPT THE 

APPELLANT’S SHARED PARENTING PLAN. 

{¶16} For ease of discussion, we elect to discuss the assignments of error 

together. 
Case No. 5-14-06 

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{¶17} On appeal, Clinton challenges the decision of the Magistrate and the 

trial court designating Kristi as the residential parent and legal custodian of the 

parties’ minor child.1

 We will address each of Clinton’s claims in turn. 

{¶18} Clinton argues that the evidence presented at the hearings 

demonstrates that the trial court erred when it concluded that shared parenting was 

not in Brian’s best interest and that naming Kristi Brian’s residential parent and 

legal custodian was in his best interest. Specifically, Clinton asserts that the 

Magistrate and the trial court misapplied the best interest factors enumerated in 

R.C. 3109.04(F)(1), which state as follows. 

In determining the best interest of a child pursuant to this 

section, whether on an original decree allocating parental rights 

and responsibilities for the care of children or a modification of 

a decree allocating those rights and responsibilities, the court 

shall consider all relevant factors, including, but 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; 

 

1

 We note that Kristi failed to file a brief or otherwise respond to Clinton’s claims on appeal. 
Case No. 5-14-06 

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

the situation; 

(f) The parent more likely to honor and facilitate courtapproved parenting time rights or visitation and companionship 

rights; 

(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; whether either 

parent, in a case in which a child has been adjudicated an 

abused child or a neglected child, previously has been 

determined to be the perpetrator of the abusive or neglectful act 

that is the basis of an adjudication; whether either parent or any 

member of the household of either parent previously has been 

convicted of or pleaded guilty to a violation of section 2919.25 of 

the Revised Code or a sexually oriented offense involving a 

victim who at the time of the commission of the offense was a 

member of the family or household that is the subject of the 

current proceeding; whether either parent or any member of the 

household of either parent previously has been convicted of or 

pleaded guilty to any offense involving a victim who at the time 

of the commission of the offense was a member of the family or 

household that is the subject of the current proceeding and 

caused physical harm to the victim in the commission of the 

offense; and whether there is reason to believe that either parent 

has acted in a manner resulting 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; 
Case No. 5-14-06 

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

planning to establish a residence, outside this state. 

R.C. 3109.04(F)(1). 

{¶19} Custody issues are some of the most difficult decisions a trial judge 

must make. Therefore, those decisions rest within the sound discretion of the trial 

court. Davis v. Flickinger, 77 Ohio St.3d 415, 418, 1997–Ohio–260; Miller v. 

Miller, 37 Ohio St.3d 71, 74 (1988). A court’s decision regarding an award of 

custody is subject to reversal only upon a showing of an abuse of that discretion. 

Id.; Trickey v. Trickey, 158 Ohio St. 9, 13–14 (1952). A trial court will be found 

to have abused its discretion when its decision is contrary to law, unreasonable, 

not supported by the evidence, or grossly unsound. Bruce v. Bruce, 3d Dist. No. 

9–10–57, 2012–Ohio–45, ¶ 13, citing State v. Boles, 187 Ohio App.3d 345, 2010–

Ohio–278, ¶ 17–18 (2d Dist.). “A reviewing court will not overturn a custody 

determination unless the trial court has acted in a manner that is arbitrary, 

unreasonable, or capricious.” Pater v. Pater, 63 Ohio St.3d 393 (1992). 

{¶20} The reason for this standard of review is that the trial judge is in the 

best position to view the demeanor, attitude, and credibility of each witness and to 

weigh the evidence and testimony. Davis, 77 Ohio St.3d at 418. This is especially 

true in a child custody case, since there may be much that is evident in the parties’ 

demeanor and attitude that does not translate well to the record. Id. at 419. 
Case No. 5-14-06 

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[I]t is inappropriate in most cases for a court of appeals to 

independently weigh evidence and grant a change of custody. 

The discretion which a trial court enjoys in custody matters 

should be accorded the utmost respect, given the nature of the 

proceeding and the impact the court’s determination will have 

on the lives of the parties concerned. The knowledge a trial court 

gains through observing the witnesses and the parties in a 

custody proceeding cannot be conveyed to a reviewing court by a 

printed record. * * * 

Miller, 37 Ohio St.3d at 74. (Citations omitted.) 

{¶21} In support of his motion to be designated Brian’s residential parent 

and legal custodian and his motion to adopt his shared parenting plan, Clinton 

presented the testimony of twelve witnesses. Seven of these witnesses only 

provided testimony relevant to the time period involving the 2008 dependency and 

neglect cases in the Juvenile Court. Despite previously ruling that Clinton was 

required to demonstrate a “change in circumstances” had occurred since the 

resolution of the Juvenile Court cases returning Brian to Kristi’s custody, the 

Magistrate permitted these witnesses to testify. The Magistrate also allowed 

Clinton’s counsel considerable leeway to extensively question these witnesses 

regarding the situation giving rise to the dependency and neglect actions. 

{¶22} Specifically, the evidence revealed that in May of 2008, while Brian 

was residing with Kristi and Clinton’s mother, Brian’s paternal grandmother, and 

while Clinton was still living in Georgia, the Findlay Police Department found 

then four-year-old Brian wandering the neighborhood streets unsupervised by an 
Case No. 5-14-06 

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adult. After further investigation, it was revealed that Brian had wandered off 

from his grandmother who was supposed to be watching him while Kristi was at 

work. The responding officer returned Brian to the home and spoke with the 

grandmother. Although Brian appeared to be in good health, the officer observed 

the grandmother to be “very low functioning” and having trouble answering 

simple questions. (Tr. at 131). The officer also noticed the poor condition of the 

home, specifically that the inside was extremely cluttered with trash, rotten food, 

and toys. The officer took photographs of the home which were admitted as 

exhibits at the hearings. The officer stayed at the home until Kristi returned from 

work and requested that child endangerment charges be filed against her. CPSU 

became involved with the case and Kristi eventually pled no contest to the charge. 

Brian remained in Kristi’s care. 

{¶23} In December of 2008, the Findlay Police were called to the home 

regarding the death of Clinton’s mother due to hypothermia. Clinton was still 

living out of state at the time. According to the testimony of the responding 

officer, the condition of the home was deplorable with trash and rotten food 

scattered throughout, burst radiators, and nonfunctional toilets which were filled 

with frozen feces and urine. There was also no running water or heat except for a 

space heater. Photographs taken of the home were admitted as an exhibit at the 

hearings. As noted by the Magistrate, the conditions depicted in the photographs 
Case No. 5-14-06 

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“were, in short, horrible living conditions for children and adults.” (Doc. No. 169 

at 3). CPSU subsequently removed Brian from the parties’ custody and placed 

him with Kristi’s mother. 

{¶24} Both the CPSU caseworker and the GAL assigned to the 2008 

Juvenile Court cases provided testimony in the 2012 Domestic Relations custody 

case. The testimony from these witnesses revealed that as part of the case plan 

during the dependency and neglect proceedings, Clinton and Kristi both 

underwent a psychological evaluation conducted by Dr. Darlene Barnes. Clinton’s 

counsel questioned these witnesses about the content of Dr. Barnes’ 2009 

evaluation of Kristi. The GAL recalled that both parties were diagnosed with 

personality disorders, including obsessive compulsive and schizo-typical traits. 

The testimony revealed that Dr. Barnes recommended that both parties receive 

counseling—specifically, that Kristi engage in “brief counseling” and Clinton 

engage in “individual therapy particularly with grief counseling and for his dealing 

with the loss of his mother and the loss of the marriage.” (Tr. at 448-449). 

Testimony from additional witnesses at the custody hearings revealed that both 

Kristi and Clinton received counseling as a consequence of the Juvenile Court 

proceedings. 

{¶25} Both the CPSU caseworker and the GAL acknowledged their initial 

concerns with Kristi’s ability to provide the appropriate care for Brian based on 
Case No. 5-14-06 

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the condition of her home at the time of Brian’s removal in December 2008. 

However, as the GAL’s testimony established, the condition of Kristi’s home 

greatly improved during the course of the Juvenile Court proceedings. The GAL 

testified that as the case progressed she had no concerns with Kristi’s ability to 

maintain an appropriate home for Brian. The GAL also testified that her last 

contact with the parties was in April of 2010 and that her final recommendation 

was that Brian should remain in Kristi’s custody with Clinton having parental 

visitation. 

{¶26} At the time of the evidentiary hearing in the Domestic Relations case 

in 2012, Clinton lived in Findlay, Ohio, and Kristi and Brian lived nearby in 

Arlington where Brian attended school and had just completed the second grade. 

Brian’s first grade teacher, Lisa Haught, testified that Brian was in her classroom 

during the 2010-2011 school year. She described Brian as a bright child with 

some emotional problems. Specifically, Ms. Haught recalled Brian throwing 

temper tantrums, in which he would pull his own hair, bang his head on the desk, 

and refuse to participate in classroom activities. She testified that Brian was sent 

to the Principal’s office at least a dozen times because of his disruptive behavior 

and that Brian regularly met with the school counselor in an effort to address some 

of his behavioral issues. She noticed that many times Brian appeared to be very 

tired and would put his head down on his desk and not want to do classwork. She 
Case No. 5-14-06 

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also observed that Brian struggled socially and did not have a lot of friends. Ms. 

Haught recalled that near the end of the school year Brian’s behavior began to 

improve. She explained that at that time she had a “transition meeting” with 

Brian’s second grade teacher, Ms. Begg, where they discussed the areas of 

concern with Brian and strategized how to help him improve the following school 

year. 

{¶27} Ms. Haught also remembered both Kristi and Clinton attending 

parent-teacher conferences and they both responded to the notes she wrote on 

Brian’s homework log. She recalled speaking to Clinton on the phone on more 

occasions than with Kristi regarding Brian’s behavior and that Clinton would meet 

with her after school to check on Brian’s progress with his behavior in class. 

{¶28} Bonnie Begg, Brian’s second grade teacher, testified that she was 

Brian’s current teacher at the time of the 2012 Domestic Relations hearings. She 

recalled that Brian had “meltdowns” during the beginning of the school year but 

that he continued to see the school counselor once a week and his behavior greatly 

improved. She testified that the school counselor was working with Brian on his 

socialization and that she noticed Brian has “really come a long way” with forging 

social relationships with the other children. (Tr. at 53). Ms. Begg stated that 

Brian had not been sent to the Principal’s office all year and that he was doing 
Case No. 5-14-06 

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well academically. She testified that overall Brian “has grown a lot” during the 

school year. (Tr. at 68) 

{¶29} Ms. Begg testified that Clinton frequently corresponds with her via email to check on Brian’s progress and that Kristi had participated in parent-teacher 

conferences, reading week, and classroom holiday parties. 

{¶30} Chelsea Bodnarik, the Principal of the elementary school that Brian 

attended, also testified. Ms. Bodnarik recalled that during the 2010-2011 school 

year Brian was in her office for disciplinary reasons on more occasions than the 

average first grader. She relayed her concerns to both Kristi and Clinton regarding 

Brian’s behavior and recommended that they seek outside counseling for him. 

Ms. Bodnarik did not know if the parents followed through with her 

recommendation. However, she stated that she had no ongoing concerns with 

Brian’s behavior as a result of his growth during the 2011-2012 school year. She 

noted that Brian had worked hard to improve his behavior in the classroom and 

that he also showed improvement with appropriately socializing with his 

classmates. She believed that Brian’s regular sessions with the school counselor 

were very beneficial and saw less of a need for Brian to receive outside counseling 

than she did the previous year. 

{¶31} Kristi and Clinton also provided testimony at the hearing. Kristi 

testified that Brian resumed living with her in her apartment in Arlington in 
Case No. 5-14-06 

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September of 2009. She admitted pleading no contest to a child engenderment 

charge as a result of the May 2008 incident. She also acknowledged that the 

conditions of the home giving rise to CPSU’s removal of Brian from her care in 

December 2008 were inappropriate and unsafe and took responsibility for her 

actions in creating the situation. Kristi testified that her housekeeping has 

improved since the 2008 Juvenile Court proceedings. She stated that for the last 

two years she maintained full-time employment at McDonald’s in Bluffton and 

had even been promoted to department manager. She stated that she works forty 

hours a week and her shift begins at 7 a.m. and ends at 3 p.m. She explained that 

during the week while she is at work Brian goes to Good Hope child-care center 

before and after school. The child-care center is located next to the elementary 

school and ensures that Brian gets to and from school. Kristi stated that when she 

works Saturdays, Clinton watches Brian. Brian also stays with Clinton every 

Tuesday overnight and on alternating weekends. 

{¶32} Kristi believed that Brian had adjusted well to the school in 

Arlington and stated that Brian was looking forward for school to resume in the 

Fall. Brian was also involved with the Royal Rangers, which is a church group 

similar to the Boy Scouts. 

{¶33} Kristi stated that she and Clinton talked daily on the telephone. She 

explained that the majority of these phone conversations are initiated by Clinton 
Case No. 5-14-06 

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and that he calls her four to five times a day. She recalled that some content of the 

conversations focuses on Brian, but oftentimes Clinton would ask “irrelevant” 

questions that do not concern Brian. (Tr. at 510). She expressed discomfort with 

some of these conversations and explained that she divulged information just to 

“appease” Clinton. (Tr. at 511). She stated that Clinton’s attitude toward her 

changes negatively if she does not answer all his questions. 

{¶34} Kristi testified that in her opinion shared parenting was not in Brian’s 

best interest because it would be disruptive to his schedule. She also expressed 

uncertainty with the “level of communication” between she and Clinton to be able 

to “facilitate” shared parenting objectives. (Tr. at 201). She believed that Clinton 

should seek counseling for his anger issues toward her and stated that he has a 

tendency of “letting his anger get the best of him in certain conversations” and this 

creates an obstacle in their ability to effectively communicate. (Tr. at 208). 

{¶35} Clinton testified that he lives in a small apartment in Findlay. Much 

of Clinton’s testimony focused on the circumstances surrounding the 2008 

dependency and neglect proceedings in the Juvenile Court. He believed that 

CPSU created a bias against him in handling the cases. Clinton’s testimony also 

focused on Dr. Barnes’ 2009 psychological evaluation of Kristi and his opinion on 

how that assessment continues to affect Kristi’s personality and her ability to 

parent. 
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{¶36} Regarding the evidence of the circumstances contemporary to the 

hearing, Clinton testified that he is employed by a contract security company 

engaged by Marathon Petroleum and works 8 a.m. to 4 p.m., Monday through 

Friday. He stated that he and Kristi communicated well for the most part and he is 

able to discuss parenting matters with her. However, Clinton constantly criticized 

Kristi’s parenting skills on the stand. 

{¶37} Clinton also recalled an instance in November 2010 when Kristi took 

Brian with her to work on a Saturday because she did not have child care 

previously arranged. At that time, Clinton was still working on Saturdays. 

Clinton left work to observe if Kristi could adequately supervise Brian while she 

worked. Clinton arrived to Kristi’s work shortly after she began her shift. He then 

called the Bluffton Police concerned for Brian’s safety. The responding officer 

investigated the situation and discovered that one of Kristi’s co-workers was going 

to take Brian home and determined there was no immediate concern for Brian’s 

safety. When the responding officer declined to get further involved in the 

domestic matter, Clinton lodged a complaint with the Police Department 

expressing his dissatisfaction with the officer’s conduct. Clinton’s letter to the 

Bluffton Police Chief regarding the situation was admitted as an exhibit at the 

2012 Domestic Relations hearing. In this letter, Clinton recounted the conditions 
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preceding the 2008 Juvenile Court cases and claimed the officer failed to view the 

situation “objectively.” (Ex. J). 

{¶38} Clinton testified that he believed that either designating him as 

Brian’s residential parent or adopting his shared parenting plan would be in 

Brian’s best interest because Kristi “freezes” him out of the decision making 

process regarding Brian. (Tr. 297). He also stated that Brian did not get enough 

sleep in Kristi’s care and that he did not get enough socialization. He believed that 

Kristi fed Brian too much junk food and not enough vegetables. Clinton also 

stated that Brian needed a “fresh start” and that enrolling Brian in Findlay schools 

would greatly benefit him. (Tr. 313). 

{¶39} The GAL assigned to the 2012 Domestic Relations case filed a report 

which was admitted as an exhibit of the court. The GAL acknowledged the 

horrendous circumstances giving rise to the 2008 dependency and neglect 

proceedings, but focused his report on the situation relative to the time of the 2012 

Domestic Relations case. The GAL visited both parties’ homes. The GAL 

observed Kristi’s apartment to be cluttered and untidy, but nothing reminiscent of 

the conditions in 2008. He also noted that Clinton’s apartment was extremely 

small and adequate for Brian’s visitations but questionable as a residence for him. 

{¶40} The GAL was struck by the fact that Clinton reminded him of Dr. 

Barnes’ 2009 evaluation of Kristi as a schizophrenic in every interaction he had 
Case No. 5-14-06 

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with Clinton, even providing him literature on certain characteristics of the mental 

illness. The GAL noted that Brian at one point told the school counselor that his 

mother was “crazy” and that “he may be crazy.” (Court’s Ex. A at 9.) The GAL 

surmised that Clinton was “either directly or perhaps inadvertently” the source of 

Brian’s disparaging remarks based on the interactions the GAL had with Clinton. 

(Id.). The GAL observed that, despite Clinton’s focus on her assessment of Kristi, 

Dr. Barnes had made similar diagnoses of both Kristi and Clinton in her 2009 

evaluations. In general, the GAL observed Clinton to be much more negative 

about Kristi than she is about him. The GAL expressed a deep concern regarding 

Brian’s lack of socialization and noted that it appeared to be an issue while he was 

in the care of both parties. The GAL also spoke to Brian’s teachers and the school 

counselor in Arlington and noted Brian’s improvement during the past school 

year. The GAL recommended Kristi remain Brian’s residential parent and legal 

custodian. The GAL specifically stated the following conclusion: 

Based upon all of the foregoing, the Guardian, with a fair 

amount of reluctance, believes that it would be in Brian’s best 

interest to keep Kirsty [sic] as the residential parent. That is 

primarily focused upon that setting as providing the best 

opportunity to further Brian’s social skills when admittedly, this 

home has not worked well to this point to foster. There is no 

concrete plan before the Guardian as to how the father would 

deal with that issue which the Guardian believes is a necessity 

because it would serve Brian’s best interest to remain in the 

Arlington School District. It is the Guardian’s belief that if the 

father was named residential parent and Brian was placed in the 

Findlay City Schools, that would be a setback from [sic] Brian 
Case No. 5-14-06 

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given the limited circle of friends Brian has with less opportunity 

in dad’s setting to socialize with children his age. The situation 

should be monitored because it’s the Guardian’s hope that this 

serves as a wakeup call to mom and perhaps she can mend her 

ways and deal better with her son’s needs and have him interact 

with his peers better than she has to date. If in fact she responds 

to this call, that would indeed serve Brian’s best interest, which 

is ultimately what these proceedings are about. 

(Court’s Ex. A at 12-13.) 

{¶41} After the close of the hearings, the Magistrate interviewed Brian. 

Brian stated that he enjoyed school and his friends there. The Magistrate observed 

that Brian was able to express his general understanding of the dispute between his 

parents and their involvement with the court process. Brian stated that he wanted 

more time with his father to make it more “fair.” (Tr. at 19). Brian acknowledged 

that his father had continued to tell him that the current visitation arrangement was 

not fair. Brian felt he needed to devise an equal time-sharing plan to make it 

“fair” for his father. (Id.) 

{¶42} In applying the best interest factors set forth in R.C. 3109.04(F)(1), 

both the Magistrate and the trial court determined that it was in Brian’s best 

interest to designate Kristi as his residential parent and legal custodian. In support 

of their decisions, the Magistrate and the trial court specifically noted Clinton’s 

negative attitude toward Kristi coupled with his fixation on her mental health 

evaluation conducted three year prior, and his statements to Brian regarding the 

fairness of the current custody arrangement. The Magistrate and the trial court 
Case No. 5-14-06 

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were both struck by the fact that Clinton used the 2012 custody hearings as an 

opportunity to relitigate circumstances involving the 2008 dependency and neglect 

proceedings. 

{¶43} However, both the Magistrate and the trial court observed that 

despite any animosity Clinton may harbor towards Kristi, the parties demonstrated 

that they are able to communicate effectively regarding parenting Brian and 

continued to handle custody exchanges without issue. Both the Magistrate and the 

trial court noted the extremely positive effect the Arlington school had on Brian’s 

socialization and behavioral issues and the fact that since the conclusion of the 

Juvenile Court proceedings Brian’s relationship with Clinton had greatly 

developed as the two were able to spend more time together under the current 

custody arrangement between the parties. Moreover, while acknowledging 

Kristi’s lack of good judgment which precipitated the 2008 dependency and 

neglect actions, the Magistrate and the trial court also noted that Kristi had worked 

to successfully improve upon her parental inadequacies since the culmination of 

the Juvenile Court proceedings. 

{¶44} In addition, it is clear that in her interactions with parties during the 

course of the 2012 Domestic Relations hearings, the Magistrate observed a 

particular dynamic between the two parents and expressed her concern with either 

designating Clinton as Brian’s residential parent and legal custodian or adopting 
Case No. 5-14-06 

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Clinton’s motion for shared parenting. Specifically, the Magistrate found as 

follows: 

Given the Father’s attitude toward the Mother and his 

continued focus on the events of 2008-2009, the Magistrate 

cannot conclude that shared parenting is appropriate or in 

Brian’s best interest. The Mother remains willing to facilitate 

the Father’s parenting time, despite his unsubstantiated claims 

that she “freezes him out.” She has not always initiated contact 

because of the content of communications with him, but she has 

cooperated in the increased parenting time since the temporary 

order was entered on February 17, 2012 and commencing in 

January 2012. That has facilitated child-care during the 

Mother’s work hours. The Father, on the other hand, calls her 

repeatedly to check up on her, requiring her to answer questions 

about their meals and other matters; he continues to call and 

leave messages before she has an opportunity to return his calls. 

These circumstances indicate that placing the parents on legal 

equal footing through shared parenting will result in the 

diminution of the Mother’s role. The Father is demanding and 

distrustful of the Mother and others who have been in contact 

with Brian, filing and lodging complaints, while the Mother is 

passive in her parenting and responses to the Father, which 

characteristics will not permit equal parenting. The Father’s 

conduct indicates his failure to recognize boundaries. Although 

legitimately concerned for his son, with or without the history 

with CPSU, the Father does not recognize boundaries of divorce 

and separate households. He makes repeated calls, stating that 

the parties have talked daily ever since they were married and 

that they should go to counseling “as a family.” 

(Doc. No. 169 at 21-22). 

{¶45} On appeal, Clinton maintains that Brian has not thrived while in 

Kristi’s care and that she is unwilling to allow him to have more parenting time. 

However, we concur with the rulings of the Magistrate and the trial court that the 
Case No. 5-14-06 

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record simply does not support Clinton’s contentions. Rather, the record 

establishes that Brian has greatly improved socially and behaviorally while in 

Kristi’s custody, attributable in large part to the active role the Arlington school 

played, and that both parties have been able to successfully implement a custody 

arrangement which expanded Clinton’s parenting time with Brian. Moreover, we 

would note that the custody order put into place by the trial court further expands 

Clinton’s parenting time with Brian and the evidence in the record of the parties’ 

past conduct suggests that Kristi will accommodate Clinton’s extended parenting 

time without issue. Based on the foregoing discussion, we conclude that the 

Magistrate and the trial court properly applied the best interest factors enumerated 

in R.C. 3109.04(F)(1) and therefore, we find no error with the decision to 

designate Kristi as Brian’s residential parent and legal custodian. 

{¶46} Clinton also argues on appeal that the Magistrate erred in her 

December 9, 2012 ruling when she determined that the 2009 disposition of the 

Juvenile Court in the dependency and neglect proceedings was a prior allocation 

of the parties parental rights and responsibilities and that a “change in 

circumstances” as set forth in R.C. 3109.04(E) needed to be established as a 

threshold matter in order to modify that prior order. Clinton further asserts that 

the trial court erred when it failed to sustain his objection to the Magistrate’s 

decision on this basis. 
Case No. 5-14-06 

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{¶47} We note that despite the Magistrate’s previous ruling that a prior 

allocation of the parties’ parental rights and responsibilities had been made, both 

the Magistrate and the trial court applied only the “best interest” standard which is 

consistent with the analysis to be applied when no prior allocation of parental 

rights and responsibilities has been made. And as noted above, both the 

Magistrate and the trial court properly applied the factors set forth in R.C. 

3109.04(F)(1) in reaching the conclusion that it was in Brian’s best interest to 

designate Kristi as his residential parent and legal custodian. 

{¶48} We would also note that despite ostensibly ruling that a “change in 

circumstances” was a threshold issue, the Magistrate did not specifically conclude 

that a “change in circumstances” was present or absent for purposes of the R.C. 

3109.04(E) analysis, but noted that a “change in circumstance” had occurred in 

Clinton’s and Brian’s relationship—more specifically that in 2009 Clinton had reestablished a relationship with Brian after having very little contact with him the 

preceding two years, which presumably had a positive effect on all parties 

involved. 

{¶49} Moreover, we would note that, despite her prior ruling that she would 

consider only the “change in circumstances” after the return of Brian to Kristi in 

2009, the Magistrate permitted Clinton to present the testimony of nearly all of the 

individuals involved in the 2008 dependency and neglect proceedings. In fact, 
Case No. 5-14-06 

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these witnesses’ testimony comprised the majority of the evidence presented by 

Clinton in support of his 2012 custody case. The Magistrate also allowed 

Clinton’s counsel considerable latitude to question these witnesses regarding the 

circumstances precipitating the 2008 Juvenile Court cases and the parties’ progress 

through those case proceedings. Thus, it is apparent from the record that the 

Magistrate’s previous order regarding the applicability of a “change in 

circumstances” inquiry did not create an obstacle for Clinton to present evidence 

of the circumstances prior to the 2009 disposition of the Juvenile Court returning 

Brian to Kristi’s custody. 

{¶50} For all these reasons, we do not need to address whether the 

Magistrate erred in ruling that a “change in circumstances” standard would be 

applied to this case because the Magistrate and the trial court both fully engaged in 

a “best interest” analysis which Clinton maintains is the appropriate legal standard, 

and Clinton has failed to demonstrate any prejudice to his case as a result of the 

Magistrate’s prior ruling regarding a “change in circumstance” analysis. 

{¶51} Finally, Clinton argues that the trial court erred in failing to sustain 

his objection to the Magistrate’s determination that Dr. Darlene Barnes’ testimony 

was not admissible. The record indicates that Clinton’s counsel filed a subpoena 

for Dr. Barnes to testify at the May 31, 2012 hearing. However, the subpoena was 

for the wrong date of May 21, 2012. Testimony from the assistant to Clinton’s 
Case No. 5-14-06 

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counsel established that the assistant had contacted Dr. Barnes to advise her of the 

error on the subpoena. At this time, Dr. Barnes informed the assistant that she did 

not plan on attending the hearing because she did not feel that she could give “a 

clear consistent recommendation” given the fact that her report was completed 

three years earlier. (Tr. at 406). The assistant also testified that the appearance 

and mileage fees were not tendered to Dr. Barnes with the subpoena. 

{¶52} Clinton’s counsel requested the Magistrate issue an order for Dr. 

Barnes to appear and show cause for failure to appear pursuant to the subpoena. 

In her June 4, 2012 Order, the Magistrate denied this request finding that the 

subpoena did not comport with the requirements of Civ.R. 45(B). Specifically, the 

Magistrate stated that “[b]ased on the erroneous date, the failure to advance fees 

for attendance, and the absence of a return service, the Magistrate concludes that 

the witness cannot be mandated to appear on a ‘show cause’ order.” (Doc. No. 

137 at 2). In the same order, the Magistrate also determined that Dr. Barnes’ 2009 

evaluation of Kristi was inadmissible because there was no proffer of any recent 

psychological evaluation for comparison and the 2009 evaluation was not relevant 

to the “change in circumstances” inquiry set forth in R.C. 3109.04(E). However, 

the Magistrate specifically stated in the order that her ruling was preliminary and 

subject to reconsideration “upon the presentation of additional evidence 

establishing some relevance of the prior evaluation.” (Doc. No. 137 at 4). 
Case No. 5-14-06 

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{¶53} As previously discussed, the Magistrate permitted Clinton’s counsel 

to question several witnesses regarding specific content of Dr. Barnes’ 2009 

evaluation of Kristi. As noted by the trial court in its decision overruling Clinton’s 

objections, “despite refusing to admit the psychological evaluation, the Magistrate 

heard extensive testimony and read numerous pleadings, entries, and orders from 

the parties’ juvenile case to understand that Mother was diagnosed with mental 

illnesses which have affected her ability to properly care for Brian in the past.” 

(Doc. No. 191 at 13). Notably, the Magistrate admitted Dr. Barnes’ 2009 

evaluation of Kristi at the hearings for the limited purpose as a record kept by 

CPSU, and discussed the diagnoses made in that evaluation in addressing the best 

interest factor R.C. 3109.04(F)(1)(e), which directs the factfinder to consider the 

mental health of all persons involved in the situation. 

{¶54} On appeal, Clinton maintains that Dr. Barnes’ 2009 evaluation was 

relevant to demonstrate that the personality disorders Kristi was diagnosed as 

having “are not situational, but rather the symptoms of the personality disorder are 

ongoing and permanent.” (Appt. Brief at 6). Clinton provides no authority or 

expert opinion to support this argument. Nevertheless, we find it compelling that 

the reason Dr. Barnes apparently gave for not being willing to comply with the 

subpoena was that her evaluation was completed three years prior—thus, 

reaffirming the Magistrate’s position that the 2009 evaluation was not relevant to 
Case No. 5-14-06 

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the 2012 custody proceedings absent a more current evaluation for comparison. 

Notwithstanding this fact, the evidence presented at the hearings demonstrated that 

Kristi had made considerable improvements in her ability to recognize and 

maintain a safe, sanitary, and appropriate home for Brian since the 2009 

disposition made by the Juvenile Court, and therefore further disavowing 

Clinton’s contention on appeal that the diagnoses made by Dr. Barnes in 2009 

regarding Kristi’s mental health are somehow permanent in nature and not capable 

of amelioration. Accordingly, we do not find that the trial court erred in failing to 

sustain Clinton’s objection to the Magistrate’s determination regarding the 

admissibility of this evidence. 

{¶55} For all the reasons stated above, the assignments of error are 

overruled and the judgment is affirmed. 

 Judgment Affirmed 

WILLAMOWSKI, P.J. and PRESTON, J., concur. 

/jlr