[Cite as Neckles v. Ruthrauff, 2022-Ohio-3308.]

IN THE COURT OF APPEALS OF OHIO

FOURTH APPELLATE DISTRICT

ATHENS COUNTY

KRISTYN NECKLES, :

Plaintiff-Appellee, : CASE NO. 21CA12

v. :

TERRY RUTHRAUFF, : DECISION AND JUDGMENT ENTRY 

Defendant-Appellant. :

________________________________________________________________ 

APPEARANCES:

Kyle C. Henderson, Logan, Ohio, for Appellant1.

Gary Gottfried, Westerville, Ohio, for Appellee.

________________________________________________________________

CIVIL CASE FROM COMMON PLEAS COURT, DOMESTIC RELATIONS DIVISION

DATE JOURNALIZED:9-14-22

ABELE, J.

{¶1} This is an appeal from an Athens County Common Pleas 

Court judgment that awarded custody of the parties’ child to 

Kristyn Neckles, plaintiff below and appellee herein. Terry 

Ruthrauff, defendant below and appellant herein, assigns two 

errors for review:

FIRST ASSIGNMENT OF ERROR:

“THE TRIAL COURT ERRED BY FAILING TO 

PROPERLY APPLY AND ANALYZE THE BEST INTEREST 

FACTORS ENUMERATED IN ORC 3109.04(A)IN 

1 Different counsel represented appellant during portions of

the trial court proceedings.
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DESIGNATING PLAINTIFF AS LEGAL CUSTODIAN.”

SECOND ASSIGNMENT OF ERROR:

“THE TRIAL COURT ERRED BY ADMITTING AND 

SUBSEQUENTLY PLACING GREAT WEIGHT UPON 

INADMISSIBLE EVIDENCE PURSUANT TO THE OHIO 

RULES OF EVIDENCE.”

{¶2} Appellant and appellee are the biological parents of 

H.R., born August 25, 2015 in Grenada, where the parties married 

on February 14, 2015. The parties divorced on March 14, 2017 in 

Grenada, but the Grenada court made no provision for H.R.’s 

custody. On July 13 and 14, 2020, the trial court held a 

hearing to consider the parties’ separate requests for custody. 

{¶3} At the hearing, appellee testified that she served as 

H.R.’s primary caregiver while in Grenada. Before the divorce, 

appellee stated that appellant isolated himself, withdrew, and 

had limited contact with H.R. At the time of the divorce, M.M., 

appellee’s older child born November 22, 2004, exhibited high 

functioning autism, social anxiety, and dyscalculia, and lived 

with appellant, appellee and H.R. M.M.’s presence in the

household apparently created some difficulties in the 

relationship. For example, appellee testified that when M.M. 

got marker on his sheets, appellant told M.M. “[i]f he couldn’t 

behave himself he would * * * not be able to live with us.” In 

December 2016, M.M. left Grenada to live in Miami, Florida with 
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appellee’s sister because he needed more support for his 

educational needs. 

{¶4} In September 2017, appellee also left Grenada along 

with H.R. and her mother. Appellee left “emergently” because 

her sister could no longer care for M.M. in addition to her own 

children. Before appellee left Grenada, appellant had sporadic 

visits with H.R. and refused to acknowledge appellee’s presence. 

{¶5} In 2017, appellee obtained an H1B Visa to seek 

employment in the United States and took a position as a staff 

psychologist at Ohio University, her Visa sponsor. Appellee 

accepted the Ohio University offer over another offer in 

Washington state because of its proximity to Maryland, where 

appellant’s family lives and where the parties previously 

discussed living if they moved to the United States.

{¶6} Before she arrived in Athens in September 2017, 

appellee visited her sister in Miami. While in Miami, appellee 

received a call from the Miami Shores Police that stated that 

appellant had inquired about H.R.’s well-being. Appellee told 

police she was in transit to Athens for employment and assumed 

they relayed this information to appellant. Also, the day she 

left Grenada appellee emailed appellant to advise him of her 

move and shared her cell phone number. 
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{¶7} A short time after moving to Athens, appellee filed a 

complaint for custody but the complaint was dismissed due to 

appellee’s pending complaint in Grenada. Appellee also stated 

that during March, April, and May 2020, she offered appellant 

in-person and electronic visitation, but he refused. Appellee 

further testified that appellant did not contact H.R. or provide 

presents or cards on his birthday or any other holiday. 

{¶8} Appellee testified that H.R. and M.M. have a “very 

close bond,” doing chores, science experiments, collecting 

rocks, taking walks, and engaging together in other activities. 

H.R. is also very close with his Grenadian maternal grandmother 

and contacts her by phone. H.R. and M.M. are also close with 

their cousins, aunts, and uncles and see them regularly. 

Appellee and her boys attend cultural and other events at Ohio 

University to “build that sense of * * * love, to * * * foster 

that awareness that we are all different, * * * but we can 

coexist.” 

{¶9} Appellee stated that it is important to her, as a 

mother and psychologist, that H.R have a strong relationship 

with his father. Appellee described her relationship with 

appellant as “tense [and] hostile,” and described appellant’s 

passive-aggressive actions like zooming the camera in on H.R. 

during electronic calls so appellee could only see his eye or 
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the top of his head. Appellee also described her difficulty 

communicating with appellant, stating that appellant would not 

look at her during drop-offs and refused to take H.R.’s 

belongings from appellee’s hands, forcing her to set items on 

the ground before appellant would retrieve them. Appellee also 

stated that appellant was financially controlling and asked her 

to “hand over [her] paycheck” more than once.

{¶10} Appellee testified that, although she did not have 

appellant’s consent to leave Grenada with H.R., she did speak to 

him about her plan. Appellee did concede that she did not 

consult appellant about testing H.R. into kindergarten early, 

but appellant did not ask the name of the teacher or school so 

that he could be involved. Appellee further testified:

Over the course of time, * * * you [appellant] have made 

it * * * virtually impossible to collaborate, and 

therefore you of your own behavior * * * have not 

connected with [H.R.], you won’t talk to him [by] video, 

you won’t talk to him on the phone, * * * you don’t 

connect with him for his birthday, whether it’s a 

birthday card, a phone call, Christmas, and that has all 

been you, so I do think your relationship is different, 

and it has impacted your bond. 

{¶11} Appellee stated that her son often “cries for” her 

when he is with appellant and that he returned from his last 

visit with bruises and bites. When asked on cross-examination 

what must happen for appellant to have the bond that appellee 
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has with H.R., appellee replied, “[f]or you to stop putting your 

needs and ego first and consider H.R.” 

{¶12} Kendra Brooks, H.R.’s daycare teacher and babysitter, 

has known H.R. and appellee for approximately two years. Brooks 

stated that H.R. and M.M. have a great relationship and that 

H.R. “talks about his Mother all the time, about how much he 

loves her, bigger than the ocean, and um he’s just very sweet, 

very kind.” Brooks described appellee as a “very present Mother 

* * * “the toys that she brings in, the foods that she brings 

in, everything is very intentional, she wants her kids to grow 

educationally, she wants them to grow * * * to be good 

citizens.” Michelle Monrose, appellee’s former mother-inlaw, testified that M.M. is the son of appellee and Monrose’s 

son, Shervon. Monrose and her son live in Saint Lucia, but 

Monrose frequently talks to M.M. and has “never been kept away 

from [M.M.].” She further testified that appellee has always 

facilitated their relationship. Monrose described appellee as 

“a wonderful parent, very, very very good parent, in spite of 

[M.M.]’s um condition she has, she’s doing an excellent job with 

[M.M.]. I have no complaints when it comes to [appellee] taking 

care of M.M.” 

{¶13} Ohio University Child Development Center Master 

Teacher Matthew Johnson testified that he worked with H.R. for 
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approximately two years. The Center is racially and culturally 

diverse, with children from many countries. Johnson testified 

that H.R has excellent “verbal acuity,” is well adjusted, 

“pretty tight” with his friend group, and enjoys nature walks. 

H.R. often talks about [M.M.], and Johnson stated that appellee 

takes “really good care” of H.R. 

{¶14} Howard Pinnock, Acting Director of Public Prosecution 

in Saint George’s, Grenada, testified that an attorney contacted 

him on appellant’s behalf and inquired whether a mother leaving 

Grenada with a child would be a criminal matter, but Pinnock 

advised that his office is not an investigative body and, 

instead, suggested that the attorney report the matter to 

police. Pinnock later spoke with a detective and learned that 

no investigation or criminal charges arose out of the matter. 

{¶15} Athens Middle School Intervention Specialist Julie 

Mollica testified she has been M.M.’s teacher for two years, 

that M.M. has a good relationship with H.R., and appellee has 

been “very involved, * * * always asking questions, wanting to 

know how he’s doing, always comes to conferences.” 

{¶16} Patton College of Education Stevens Literacy Center 

Director Julie Francis testified that she worked with H.R. and 

M.M. in their after-school reading club, and that H.R. is a 

“very happy child, and he spreads his joy. * * * [H.R.] is one 
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of those kids that * * * learning for him is just second nature, 

cause he’s always thinking, he’s always talking, he’s always 

exploring.” Francis described appellee’s family as an 

“important engaged family.” 

{¶17} Guardian Ad Litem Sonya Marshall testified that she 

spoke with both parties during her investigation and reviewed 

the pleadings and documents. Marshall visited appellee at her 

home, but due to the COVID-19 pandemic conducted a Skype home 

visit with appellant. Marshall stated that the most significant 

challenge is “they struggle to communicate and co-parent 

together * * * for [H.R.].” Both parties have good intentions 

and “want to act in [H.R.]’s best interest.” Marshall believed 

that both residences are safe and stable, and neither has mental 

health or substance abuse issues. 

{¶18} After she concluded her investigation, Guardian Ad 

Litem Marshall recommended the court designate appellee H.R.’s 

residential parent and legal custodian, that H.R. reside 

primarily in Ohio with appellee, and appellant have parenting 

time with H.R. Marshall did not recommend shared parenting due 

to the distance between the parties, and further noted that, if 

appellant became H.R.’s residential parent would be “a drastic 

shift in H.R.’s * * * world,” and “it would be really difficult 

for [H.R.] to adjust to that.” Marshall also recommended that 
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the court hold H.R.’s passport so neither party could take him 

out of the country without the other party’s consent. Marshall 

did acknowledge on cross-examination that when appellee removed 

H.R. from Grenada, it was “like a stick of dynamite” to the 

couple’s divorce proceedings.

{¶19} Appellant testified that appellee kept his son from 

him for 777 days, from September 18, 2017 to November 2, 2019, 

and further accused appellee of the violation of “repeated 

rulings by Ohio courts,” and the Hague Convention. Appellant 

stated that appellee has been “quite aggressive on three or four 

occasions,” that appellant is afraid of appellee and feels 

vulnerable to possible accusations due to his federal 

employment. Appellant testified:

Plaintiff’s Ohio scheme is not working and not in 

[H.R.]’s best interest. * * * Plaintiff’s behavior is 

damaging to my son, and I must protect and position him 

to achieve at his optimal for this precarious human life. 

* * * The Plaintiff has willfully and repeatedly blocked 

my access to my son, pre-birth to the present day. * * 

* [T]his has been a brutal weaponization of a little boy 

for whatever reason we cannot explain, but it’s resulted 

in the most heartbreakingly painful period of my entire 

life by far. 

As for keeping in touch with H.R. electronically, appellant 

stated:

About electronic interaction and phone interaction, it’s 

qualitatively and quantitatively remarkably different, 

it just doesn’t work for me, that’s not the kind of 

Father I wanna be. * * * Why don’t I phone and video 
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conference with [H.R.], it’s heart wrenchingly painful 

to see a little boy that I desperately love so cut off 

from me, I do not value electronic interaction, I simply 

don’t. I want direct daily, in the same physical space 

contact. I’m a humanist, and that’s what we value, you 

know I am not gonna settle for the crumbs of parenthood. 

{¶20} Appellant testified that on October 22, 2017 he first 

became aware of appellee’s and H.R.’s Athens residence, but 

acknowledged that at that time that he did not seek custody or 

visitation. Appellant’s employment with Saint George’s 

University in Grenada ended July 31, 2018, and he left Grenada 

on August 1, 2018 without employment secured in the United 

States. 

{¶21} Appellant maintained that appellee could “very easily 

transition to Shepardstown [West Virginia] or in that area” near 

appellant’s family. When the magistrate asked whether appellant 

could have moved to Athens when he relocated to the United 

States, he replied, “No,” citing his family and higher income 

where he lives. Appellant stated, “I want [H.R.] to experience 

* * * the richness of both sides of the family, both extended 

sides of the family, everyone, this is all about inclusivity, 

this is not about excluding anyone.” Appellant did acknowledge, 

however, that appellee could not move from Ohio to Shepardstown 

without securing an H1B Visa sponsorship in a new location.

{¶22} Appellant also stated his belief that child support is 
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“incredibly unfair” to him, and he does not understand why he 

pays child support when he cannot see his son. Appellant 

complained that the total amount of support he would pay until 

his son reaches the age of majority is over $300,000, and it 

would “cripple my ability to provide for my son and frankly 

because I’m part of this relationship too, it will cripple my 

ability to care for myself * * *.” Appellant acknowledged his 

$133,465 salary, but stated that he will be 60 on his next 

birthday and “I do not have many work years left.” Appellant 

also admitted he did not attend a required Parenting Seminar, 

but said he did not know about the seminar. Appellant did also 

acknowledge that he had been in the Athens area since the 

Saturday prior to the hearing, but declined an opportunity to 

Skype with H.R.

{¶23} Rebecca Gorra testified that she has known appellant 

for 35 years, is a former colleague and described appellant as 

financially responsible, “extraordinary, unique, one of a kind,” 

and “a wonderful father.” Ms. Gorra acknowledged that she once 

had a relationship with appellant, that she had seen appellant 

interact with H.R. for only three days, and that appellant’s 

failure to pay child support until very recently is 

understandable “under these circumstances.” 

{¶24} John Gorra, Jr., Rebecca’s husband, first met 
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appellant in 1997. Appellant has stayed in the Gorras’ home 

many times and they know each other well. Although Mr. Gorra 

observed appellant interact with H.R. for only a few hours, he 

said appellant has had very positive interactions with the 

Gorras’ children over the years. 

{¶25} Alexandra Groody testified that she met appellant in 

1998 at the Antioch University Clinical Psychology Program. 

Groody also visited appellant and appellee in Grenada when H.R. 

was born, and planned to visit H.R. with appellant in Athens, 

but appellee canceled the visit. Groody described appellant as 

peaceful, organized, disciplined, generous, and fair, and that 

his separation from H.R. has ruined appellant’s life, “been 

disastrous, * * * horrible, * * * heartbreaking * * * 

bewildering.” 

{¶26} Jewel Ann Ruthrauff Grossnickle, appellant’s sister, 

has a close relationship with appellant. She has observed 

appellant care for his son, described H.R. as very happy, and 

does not understand why appellant does not have custody of H.R. 

Ms. Grossnickle also expressed admiration for her brother and 

noted that appellant even forgave the man who murdered their 

mother. On cross-examination, Ms. Grossnickle acknowledged 

that, although she had appellee’s email address, she did not 

reach out to appellee to schedule a visit. 
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{¶27} Kevin Grossnickle, appellant’s brother-in-law, has 

known appellant since 2014 and recently spent time with H.R. 

when he visited appellant in June and July 2020. He believes 

H.R. should be in appellant’s care. Mr. Grossnickle did not 

think H.R. should be in appellee’s care because she called his 

wife and made her cry, then he had to contact appellee to ask 

her to stop calling. 

{¶28} Bennett Shouse has known appellant since 1995 when 

they met in the Peace Corps. Shouse also traveled to Athens 

with appellant in November 2019 when appellant visited H.R. for

three hours at the library. Shouse testified that appellant 

should be the residential parent because appellee is 

“vindictive.” Shouse conceded, however, that he has not seen or 

spoken with appellee since the parties’ divorce, and he did not 

know appellant canceled visits with H.R. for March, April, and 

May 2020, and did not financially support H.R. until the court 

ordered support. Shouse also did not know that appellee offered 

appellant the opportunity to video chat or Skype, but appellant 

declined. 

{¶29} Lauri Ricker has known appellant for 30 years and was 

a colleague for four years. Ms. Ricker observed appellant 

interact with H.R. once during a two or three-hour visit at 

appellant’s home and described appellant as an honest and decent 
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person. She agreed that a responsible parent communicates with 

his or her child, acknowledges a child’s birthday, and is 

financially supportive. Patrick Ricker, Lauri’s husband, has 

known appellant since 1990 when they worked together. Mr. 

Ricker testified that appellant is caring, inquisitive, honest 

and, with a large circle of friends. Mr. Ricker did not know 

why appellant should not be H.R.’s residential parent. 

{¶30} Hugo Hoffman has known appellant for 25 years after 

they met in the Peace Corps. Hoffman also accompanied appellant 

in Athens when they visited with H.R. at the library for three 

hours. Hoffman did not know any reason why appellant should not 

be the child’s residential parent, and said that H.R.’s absence 

has been detrimental to appellant’s health and emotional wellbeing. 

{¶31} On November 24, 2020, after reviewing the evidence and 

considering counsels’ arguments, the magistrate recommended a 

custody award to appellee and parenting time to appellant. 

After both parties objected to the magistrate’s decision, the 

trial court directed the magistrate to supplement her November 

24, 2020 decision to address travel arrangements for defendant’s 

monthly visitation and tax credit or dependency benefits. 

Subsequently, the magistrate issued a supplemental written 

recommendation and the trial court overruled the parties’ 
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objections, adopted the magistrate’s decision and entered final 

judgment. This appeal followed. 

I.

{¶32} In his first assignment of error, appellant asserts 

that the trial court failed to properly analyze and apply the

R.C. 3109.04(A) best interest factors when it designated 

appellee the custodian of H.R. 

{¶33} At the outset, we recognize that the case sub judice 

involves a contentious relationship between appellant and 

appellee, H.R.’s biological parents, who both appear to

genuinely love and care about their minor child’s well-being. 

After the trial court heard the evidence and the guardian ad 

litem’s recommendation, the court attempted to decide the 

difficult issue of parental custodial rights, with H.R.’s best 

interest as the court’s paramount consideration. We also 

recognize and emphasize that decisions in child custody matters 

are among “the most difficult and agonizing decisions a trial 

judge must make.” Davis v. Flickinger, 77 Ohio St.3d 415, 418, 

674 N.E.2d 1159 (1997). Again, this is especially true in 

situations when two loving, caring parents are sincere in their 

effort to act in their child’s best interest. Therefore, trial 

judges must have wide latitude in considering all the evidence

and such decision must not be reversed absent an abuse of 
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discretion. Id., citing Miller v. Miller, 37 Ohio St.3d 71, 523 

N.E.2d 846 (1988). The Supreme Court of Ohio has explained:

The reason for this standard of review is that the trial 

judge has the best opportunity to view the demeanor, 

attitude, and credibility of each witness, something 

that does not translate well on the written page. 

* * * 

This is even more crucial in a child custody case, where 

there may be much evident in the parties' demeanor and 

attitude that does not translate to the record well.

Davis, 77 Ohio St.3d 415, at 418-419.

{¶34} To determine if a court has abused its discretion, an 

appellate court must examine the facts and applicable law and 

determine whether the trial court’s decision is unreasonable,

arbitrary or unconscionable. Blakemore v. Blakemore, 5 Ohio 

St.3d 217, 450 N.E.2d 1140 (1983). Thus, when a substantial 

amount of credible and competent evidence supports a custody 

award, a reviewing court will not reverse that determination. 

Bechtol v. Bechtol, 49 Ohio St.3d 21, 550 N.E.2d 178 (1990), 

syllabus. 

In determining the allocation of parental rights and 

responsibilities, courts must consider a child’s best interest. 

R.C. 3109.04(B)(1); In the Matter of J.S., 4th Dist. Meigs No. 

18CA24, 2019-Ohio-4959, ¶ 12, In the Matter of A.B., 2019-Ohio90, 128 N.E.3d 694, ¶ 39 (4th Dist.). R.C. 3109.04(F)(1) provides 

the framework for analysis and states that to determine a child’s 

best interest, a court must “consider all relevant factors, 

including, but not limited to,” the following:

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

(j) Whether either parent has established a residence, 

or is planning to establish a residence, outside this 

state.

{¶35} Appellant contends that, although the magistrate’s 

decision generally considered the R.C. 3109.04(F)(1) factors, 

the trial court erroneously applied those factors to award 

appellee legal custody. In particular, appellant argues that 

the court failed to apply significant factors of subsections 

(f), (i), and (j), despite “substantial evidentiary testimony.” 

{¶36} Once again, we emphasize that in general, and 

especially in contested child custody maters, a trial court is 

in the best position to weigh evidence. Hammond v. Harm, 9th 

Dist. Summit No. 23993, 2008-Ohio-2310, ¶ 51; Blausey v. 

Blausey, 6th Dist. Ottawa No. OT-18-039, 2019-Ohio-4506, ¶ 14. 

Further, a trial court has discretion to determine which factors 

are relevant, and each factor may not necessarily carry the same 

weight or have the same relevance, depending on the facts before 
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the trial court. Krill v. Krill, 3d Dist. Defiance No. 4-13-15, 

2014-Ohio-2577, ¶ 29, citing Brammer v. Brammer, 3d Dist. Marion 

No. 9-12-57, 2013-Ohio-2843, ¶ 41; Hammond at ¶ 51. After our 

review in the case sub judice, we believe that appellant’s 

argument that the trial court failed to properly analyze the 

R.C. 3109.04(A) best interest factors is without merit. 

{¶37} In its decision, the trial court noted that the 

parties separated when H.R. was one-year old. Appellee then 

initiated a divorce and the parties participated in mediation 

and agreed to a parenting schedule for December 27, 2016 to 

January 31, 2017. Later, appellant stated that he was “deeply 

opposed” to a mediation agreement and signed it “under duress.” 

On April 7, 2017, appellee initiated custody proceedings in 

Grenada.

{¶38} The trial court observed that on September 29, 2017, 

appellee left Grenada with H.R. and came to the United States. 

The court noted that throughout the pendency of the case, 

appellant alleged that appellee “kidnapped” or “abducted” H.R. 

and/or “left Grenada with [H.R.] without Defendant’s consent, 

and in breach of the mediation agreement.” The court 

determined, however, that the mediation agreement did not 

prohibit appellee from traveling with H.R. and her other son, 

and actually implied she is the custodial parent as the 
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mediation agreement set forth a parenting schedule for appellant 

and required appellant to retrieve H.R. from appellee. 

{¶39} The trial court also referred to a May 7, 2017 email 

from appellant to appellee in which appellant wrote, “When 

people find my decapitated, headless, shot through, overdosed, 

bled out, drowned and crumpled carcass washed up on a beach 

somewhere, please feel free to take the blame.” Further, in a 

May 8, 2017 email, appellant wrote to appellee, “Does your 

father have a handgun? If so, could I borrow it for just a 

second? I would not make such a request again, as I would only 

need it once.” The court described multiple instances of 

appellant rebuffing appellee’s offers to visit their son and 

referred to appellant’s 96-page pretrial hearing affidavit, 

which, inter alia, states:

Who else on this planet besides the plaintiff would think 

my email messages of May 7 and 8, 2017, conveyed blame 

and suicidal intent and try to use it against me? Her 

misinterpretation clearly illustrates how she 

psychopathologizes my way of being in the world, reaches 

erroneous conclusions about me and then acts on them, 

which includes moving my son around the planet without 

my knowledge or consent. If she really thought I was 

suicidal, why did she later do exactly what supposedly 

put me into that state and separate me from [H.R.]? 

{¶40} The trial court also pointed out that, although 

appellant’s pretrial hearing affidavit denies that he refused to 

spend time with H.R. from August 1 to 25, 2018, appellant’s own 
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email indicates that he would “NEVER come to Athens” and he felt 

reaching a temporary agreement “too risky” for him. The court 

also referenced other examples when appellant claimed he wished 

to visit his son, but refused offers to do so. The court 

further observed that appellant does not send birthday or 

holiday cards or presents and “has chosen not to have any 

contact with [H.R.] outside of his parenting time.” 

{¶41} Regarding the trial court’s legal analysis and 

conclusions of law, the trial court cited R.C. 3109.04(A) and 

reviewed the R.C. 3109.04(F)(1) best interest factors. 

Concerning (F)(1)(a), the wishes of the parents, the court 

observed that both parties sought sole custody. Regarding 

(F)(1)(b), wishes of the child, the court noted that neither 

party requested an in camera interview. Concerning (F)(1)(c), 

the child’s interaction and interrelationship with the child’s 

parents, siblings and other persons, the court noted that:

[H.R.] seems to be a special child. Everyone who comes 

into contact with him, loves him. He radiates joy and 

happiness. He loves both parents but is closer to his 

mom than his dad. To some extent this is due to 

Plaintiff’s actions, specifically, the nature of 

Plaintiff’s departure from Grenada, setting up home 

here, and the resulting lack of contact between 

Defendant and [H.R.], but it’s not all due to that. * * 

* 

Defendant, through his own actions and inactions, has 

contributed to this difference in [H.R.]’s respective 

relationships with his parents. Defendant has 
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absolutely refused to take advantage of technology and 

to video-chat and/or Skype with [H.R.] And he hasn’t 

refused to do so out of any concern for [H.R.], but 

rather because it’s not the relationship he wants. He 

sees no value in it - no value in telling his little boy 

good night, or reading him a bedtime story, or just

seeing how he’s doing, or hearing what they each did 

that day - when he’s unable to be with him. It may be 

of no value to Defendant; but it’s priceless to a child. 

For the months of March, April, and May, 2020, Defendant 

canceled his visits due to COVID, which the Magistrate 

does not fault him for, but he had NO contact with [H.R.] 

during those months and that was entirely his choice. 

So, while Plaintiff is not innocent in creating this 

situation; neither is Defendant. 

[H.R.] is very close to his big brother, [M.M.], 

Plaintiff’s older son who resides with them in Athens.

Defendant has family and friends that reside in the 

Shepherdstown area and these individuals would, no 

doubt, provide a family structure for [H.R.] and family 

support. It’s interesting that Defendant’s family 

described it as ‘heart wrenching’ to have not been able 

to see [H.R.], yet none of them ever contacted her to 

ask about seeing [H.R.]. Defendant’s friends testified 

as to Plaintiff’s ‘bad behavior’ and keeping [H.R.] from 

Defendant, yet none were aware of Defendant’s canceled 

visits, of Defendant declining Plaintiff’s offers of 

additional parenting time, of Defendant’s absolute 

refusal to video-chat with [H.R.], or of Defendant’s own 

‘neglect’ in not observing his son’s birthday.

{¶42} Appellant argues that the trial court (1) minimized 

“the unnoticed move to another country of Mother and the impact 

that has had on the relationship between Father and Child,” and 

(2) placed “significant emphasis on the position of Father to 

not seek video or telephone contact.” We believe, however, that 
ATHENS, 21CA12

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the trial court spent considerable time analyzing and applying 

this factor. The fact that appellant may disagree with the 

outcome is inconsequential, as appellant does not point to 

anything in the record to indicate that the court acted 

unreasonably, arbitrarily or unconscionably. Regarding 

(F)(1)(d), the adjustment to the child’s home, school, and 

community, the trial court found that H.R. is well-adjusted to 

life in Athens, has friends, and enjoys daycare. The court 

recognized that appellant chose to seek employment away from 

Athens to earn greater income and be close to his family, rather 

than proximity to his son. Appellant, however, contends that 

appellee’s presence in Athens is temporary and her work Visa

expires in August 2022, while appellant is a West Virginia 

permanent resident. However, as the trial court observed (1) 

Ohio University extended appellee’s H1B Visa for three years, 

effective August 27, 2019, and (2) the Visa is not transferrable 

to another employer without starting the application process 

anew. Once again, appellant may disagree with the outcome, but 

fails to establish an abuse of discretion.

{¶43} Regarding (F)(1)(e), the mental and physical health of 

all persons, the trial court remarked that appellant appears to 

be a prisoner of the past, while appellee does not. The court 

read every communication between the parties and found appellee 
ATHENS, 21CA12

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to be “polite and courteous,” while appellant “derogatory and 

dismissive, and even insulting.” For example, the court noted a 

comment from one of appellant’s communications, “If you are 

confused about the order, perhaps it would be useful for you to 

consult with your buddy, Attila the Attack Attorney. Junior or 

Senior. Oh wait, I am not entirely convinced that Junior can 

read.” We, recognize, however, that it is not uncommon for the 

disintegration of a marriage to be extremely tumultuous and 

minor indiscretions should not be accorded great weight. 

{¶44} Concerning (F)(1)(f), the parent more likely to honor 

and facilitate court-approved parenting time rights or 

visitation and companionship rights, the trial court found both 

parties equally likely to honor court orders. However, 

appellant points out that appellee had been found in contempt 

for denial of holiday parenting time. Although appellant is 

correct about appellee’s interference with appellant’s Christmas 

2019 parenting time, and established as a purge condition that 

appellant have parenting time Christmas 2020, the trial court 

considered this incident to be “a unilateral mistake” and 

“misunderstanding.” Moreover, even if we consider, for purposes 

of argument, that the trial court erred in applying this 

particular factor, we believe that ample competent, credible 

evidence supports the R.C. 3109.04(F) determination. 
ATHENS, 21CA12

25

{¶45} Regarding (F)(1)(g), whether either parent has failed 

to make all child support payments, and (F)(1)(h), criminal 

offenses, the trial court noted that neither party raised these 

particular issues.

{¶46} Regarding (F)(1)(i), whether the residential parent, 

or one parent subject to a shared parenting decree, has 

continuously and willfully denied the other parent’s right to 

parenting time pursuant to a court order, the trial court did 

not consider evidence as to this factor. Although appellant 

argues that the trial court should consider the contempt finding 

and appellee’s relocation that occurred during the Grenada court 

proceeding to be a willful denial of parenting time, the trial 

court pointed out that no court order prevented appellee from 

leaving Grenada with H.R. 

{¶47} Finally, regarding (F)(1)(j), whether either parent 

has established a residence, or is planning to establish a 

residence, outside this state, the trial court noted that 

neither party raised this issue. Although R.C. 3109.04(F)(1)(j) 

requires a court to consider whether a parent has established a 

residence outside of Ohio, generally “nonresidence alone should 

not deprive a parent of custody.” Ornelas v. Ornelas, 2012-

Ohio-4106, 978 N.E.2d 946, ¶ 13, citing Marshall v. Marshall, 

117 Ohio App.3d 182, 187, 690 N.E.2d 68 (3d Dist.1997). 
ATHENS, 21CA12

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Appellant, however, asserts that this is the most significant 

factor, in view of the fact that appellee is a resident of 

Grenada and living in the U.S. on a temporary work visa. The 

court found: 

Plaintiff’s employment offer from Ohio University was 

conditional upon obtaining a non-immigrant work Visa 

(H1B Visa). To do so, requires a sponsor and Ohio 

University was Plaintiff’s sponsor. This Visa was not 

transferrable to another employer; rather, a new 

employer would need to complete a new Petition for a 

Nonimmigrant Worker and have it approved in order to 

Plaintiff to remain in the United States on an H1B Visa. 

* * * Plaintiff’s H1B Visa was extended for three (3) 

years effective August 27, 2019, again, sponsored by her 

employer, Ohio University. 

Further, the court ordered H.R.’s passport deposited with the 

Athens County Clerk of Court and that:

either party desiring to travel internationally with 

[H.R.} shall need to petition the Court to do so, thereby 

giving notice to the other party of the request. The 

Court shall schedule a hearing on the matter and will 

not order release of the passport without a hearing. 

{¶48} Consequently, although appellee is a Grenadian citizen 

and moved to Athens County, we find nothing in the record to 

suggest that appellee plans to relocate outside Ohio, or that 

the trial court’s judgment does not address international 

travel. Once again, we believe that competent, credible 

evidence supports the trial court’s R.C. 3109.04(F) 
ATHENS, 21CA12

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determination. 

{¶49} It is also important to again emphasize that when a 

court makes a child custody determination, the child’s best 

interest is the primary consideration, not the parents' best 

interests. In the case sub judice, although the distance 

between the parties does create a challenge to formulate a 

reasonable parenting plan, before fashioning the custody order 

the trial court thoroughly reviewed the R.C. 3109.04 factors in 

a comprehensive judgment entry and concluded it is in H.R.’s

best interest to designate appellee the residential parent and 

legal custodian and award appellant parenting time.

{¶50} Therefore, after our review of the record in the case 

at bar, we conclude that the evidence adduced at the hearing 

supports the trial court’s designation of appellee as the 

child’s residential parent. Thus, we do not believe that the 

court’s judgment constitutes an abuse of discretion.

 

{¶51} Accordingly, based upon the foregoing reasons, we 

overrule appellant’s first assignment of error. 

II.

{¶52} In his second assignment of error, appellant asserts 

that the trial court erred by admitting and placing great weight 

on certain inadmissible evidence, including various out-of-court 
ATHENS, 21CA12

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statements.

{¶53} First, appellant argues that the trial court relied 

upon an out-of-court statement contained in an October 7, 2019 

letter from Higher Marks Educational Centre, Grenada, that 

states that the Centre could not meet the needs of M.M. and 

“there is no school on the island with a specialized program 

that could deal effectively with [M.M.]’s academic challenges in 

a way that would help him to self-actualize.” Appellant 

contends that this letter was not subject to cross-examination 

and constitutes hearsay. 

{¶54} “ ‘Hearsay’ is a statement, other than one made by the 

declarant while testifying at the trial or hearing, offered in 

evidence to prove the truth of the matter asserted.” Evid.R. 

801(C). Generally, hearsay is inadmissible unless the statement 

falls under a hearsay exception. Evid.R. 802. “Ordinarily, we 

review a trial court's hearsay rulings for an abuse of 

discretion.” State v. McKelton, 148 Ohio St.3d 261, 2016-Ohio5735, 70 N.E.3d 508, ¶ 97, citing State v. Hymore, 9 Ohio St.2d 

122, 128, 224 N.E.2d 126 (1967). However, because in the case 

sub judice appellant did not object to the admission of these 

items, we must review for plain error. State v. Obermiller, 147 

Ohio St.3d 175, 2016-Ohio-1594, 63 N.E.3d 93, ¶ 72, citing State 

v. Fitzpatrick, 102 Ohio St.3d 321, 2004-Ohio-3167, 810 N.E.2d 
ATHENS, 21CA12

29

927, ¶ 66. Generally, courts recognize plain error “ ‘with the 

utmost caution, under exceptional circumstances and only to 

prevent a manifest miscarriage of justice.’ ” State v. Landrum, 

53 Ohio St.3d 107, 111, 559 N.E.2d 710 (1990), quoting State v. 

Long, 53 Ohio St.2d 91, 372 N.E.2d 804 (1978), paragraph three 

of the syllabus. For plain error to apply, a trial court must 

have deviated from a legal rule, the error must have been an 

obvious defect in the proceeding, and the error must have 

affected a substantial right. State v. Barnes, 94 Ohio St.3d 

21, 27, 759 N.E.2d 1240 (2002). Under the plain error standard, 

appellant must demonstrate that the outcome of the proceedings 

would clearly have been different but for the trial court's 

errors. State v. Waddell, 75 Ohio St.3d 163, 166, 661 N.E.2d 

1043 (1996), citing State v. Moreland, 50 Ohio St.3d 58, 552 

N.E.2d 894 (1990).

{¶55} Although the Centre letter is an out-of-court 

statement, we do not believe the proponent offered the statement 

to prove the truth of the matter asserted. As appellee notes,

appellee offered the letter to provide context for her departure 

from Grenada. The magistrate referred to the letter in 

reference to appellant’s denial that a program in Grenada could 

not meet appellee’s son’s needs. Moreover, appellant did not 

object to the letter’s admission. Here, we cannot conclude that 
ATHENS, 21CA12

30

the outcome of the proceedings would have been different but for 

the letter’s admission. 

{¶56} Second, appellant contends that an affidavit from 

Brendon La Touche, Crown Counsel in the Office of the Director 

of Public Prosecutions, also constitutes hearsay. The 

magistrate’s decision observes: “Defendant has stated, attested 

to, and testified that Plaintiff was the subject of a criminal 

investigation and charges in Grenada for abduction of [H.R.].” 

Further, the court noted that appellant’s September 13, 2019 

affidavit stated: 

On January 24, 2018, when it finally became evident to 

me that Plaintiff had no intention of returning to 

Grenada, or allowing me to visit with [H.R.] in Ohio, I 

pressed criminal charges through Grenada’s Criminal 

Investigation Department of the Royal Grenadian Police 

Force against Plaintiff for abducting [H.R.] and evading 

my parental custody.

The magistrate pointed out that the La Touche affidavit “denies 

such and states that there are/were no such charges or 

investigations and that Defendant made no such report on January 

24, 2018 as he claims.” Also, like the Centre letter, appellant 

did not object to this affidavit. Once again, under the plain 

error standard of review, we cannot conclude that the outcome of 

the proceedings would have been different but for the admission 

of the affidavit. 
ATHENS, 21CA12

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{¶57} Finally, appellant asserts that appellee’s testimony 

regarding an out-of-court statement of an unknown Miami Shores 

Police Department employee regarding H.R.’s location constitutes 

hearsay. At the hearing, appellee testified that she flew to 

Miami in late September 2017, then in early October 2017 arrived 

in Athens to start employment. Appellee stated that, while in 

Florida, a member of the Miami Shores Police Department called 

her for a well-check for H.R. that appellant had requested. 

Appellee testified that she told the police she was in transit 

to Athens to start a new job and “was advised that MSPD 

communicated this” to appellant. Appellant argues that the 

trial court placed significance on this statement and then 

shifted the burden to appellant regarding why, at that point, he 

did not relocate to Athens. 

{¶58} However, as with the other matters mentioned above, 

appellant did not object to appellee’s testimony regarding her 

phone conversation with the police. Under the plain error 

standard of review, we cannot conclude that the outcome of the 

proceedings would have been different but for the admission of 

this testimony. In view of the scope of the issues and evidence 

adduced at the hearing, we do not believe that these alleged 

hearsay matters are not of sufficient importance to impact the 

trial court’s decision. 
ATHENS, 21CA12

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{¶59} Accordingly, based upon the foregoing reasons, we 

overrule appellant’s second assignment of error and affirm the 

trial court’s judgment. 

JUDGMENT AFFIRMED.

JUDGMENT ENTRY

It is ordered that the judgment be affirmed and appellee 

recover of appellant the costs herein taxed. 

The Court finds there were reasonable grounds for this 

appeal.
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It is ordered that a special mandate issue out of this 

Court directing the Athens County Common Pleas Court to carry 

this judgment into execution.

A certified copy of this entry shall constitute that 

mandate pursuant to Rule 27 of the Rules of Appellate Procedure.

Smith, P.J. & Hess, J.: Concur in Judgment & Opinion

For the Court

BY:__________________________ 

 Peter B. Abele, Judge

NOTICE TO COUNSEL

Pursuant to Local Rule No. 14, this document constitutes a 

final judgment entry and the time period for further appeal 

commences from the date of filing with the clerk.