[Cite as S.S. v. F.M. , 2020-Ohio-3827.]

IN THE COURT OF APPEALS OF OHIO SIXTH APPELLATE DISTRICT LUCAS COUNTY

S.S. Court of Appeals No. L-19-1216 Appellant Trial Court No. JC 16254109

v.

F.M. DECISION AND JUDGMENT Appellee Decided: July 24, 2020

* * * * * Angelina Wagner, for appellant. Rebecca E. Shope, for appellee.

* * * * * ZMUDA, P.J.

I. Introduction {¶ 1} Appellant, S.S., appeals the judgment of the Lucas County Court of Common Pleas, Juvenile Division, vacating the magistrate’s deci sion issued in this child custody matter after finding well-taken the objections to the m agistrate’s decision that were filed by appellee, F.M. Finding no error in the trial cou rt’s determination that a2. change of circumstances has not occurred in this case, and thus a modification of the preexisting custody arrangement is unwarranted, we affirm. A. Facts and Procedural Background {¶ 2} This matter originated on March 14, 2016, when appellant filed his complaint seeking the allocation of parental rights and respons ibilities over his son, C.S. After the parties reached an agreement as to the issues raised in appellant’s complaint, the court issued its November 15, 2016 judgment entry approving the parties’ agreement and setting forth the parental rights and responsibilities embodied therein. Under the court’s entry, appellee remained C.S.’s primary residential parent and legal custodian, and appellant was awarded parenting time according to the Court Sch edule that was attached to the court’s entry as an exhibit. {¶ 3} On May 25, 2018, appellant filed a motion to modify the court’s prior award of custody of his son, C.S. In his motion, appellant sought cu stody of C.S., based upon a substantial change in circumstances since the court issued its November 15, 2016 judgment entry, namely that appellee was homeless, unemployed, abusing drugs, and neglecting C.S. Four days later, on May 29, 2018, appellee als o filed a motion to modify the court’s prior custody award. In her motion, appellee asser ted that appellant had “taken custody of the child, * * * and will not let me see or t alk to him.” {¶ 4} After the parties filed their respective motions, the juvenile court set the matter for an emergency hearing. On May 30, 2018, the hearing was conducted,3. culminating in the court’s order continuing the matter for an e xpedited hearing and naming appellant the residential parent with visitation of C.S. awarded to appellee. {¶ 5} On June 4, 2018, the parties appeared before the juvenile court for an expedited hearing on their motions. At the hearing, the partie s agreed as to interim orders, and the court found that C.S.’s best interests were ser ved by an award of temporary custody to appellant with supervised visitation award ed to appellee. At a subsequent hearing on August 30, 2018, the court modified its o rder, granting appellee unsupervised parenting time. {¶ 6} On January 10, 2019, appellee filed a motion for contempt, in w hich she asserted that appellant had violated the court’s orders concern ing her visitation rights with C.S. by denying her access to C.S. “on multiple dates in D ecember 2018 and January 2019 during [her] scheduled parenting time and during t he minor child’s winter break.” In order to make up for her lost visitation time due t o appellant’s alleged interference, appellee requested additional visitation time wit h C.S. A decision on appellee’s motion for contempt is not discernable from the reco rd. {¶ 7} On April 22, 2019, this matter proceeded to trial before a magi strate. At the trial, appellant testified that the concerns that prompted his motion were resolved “in moderation.” Appellant went on to voice concerns regarding app ellee. Specifically, appellant testified that, to his knowledge, appellee was unempl oyed and thus would be unable to support C.S. Appellant acknowledged that appellee co uld provide safe housing for C.S. However, appellant took issue with the school that C. S. would attend were he to4. live with appellee, Ottawa River Elementary, because he believe s C.S.’s cousins, who also attend Ottawa River Elementary, would be a distraction to C.S. {¶ 8} As to the custody arrangement set forth in the juvenile court’s November 15, 2016 entry, appellant testified that C.S. was not doing well wi th splitting his time between appellant and appellee throughout the week. According to appellant, C.S. “gets so worked up, and it’s so hard to get him unworked up” when tra nsferring him from one parent to another parent. Appellant went on to explain that C. S. usually calms down as soon as appellee walks away from the exchange. {¶ 9} On cross-examination, appellant explained that his indication o f appellee’s alleged homelessness was due to the fact that he was unaware of appellee’s living arrangements at the time he filed his motion. Appellant acknow ledged that appellee was currently living with her parents at the time of trial, and thu s was not homeless. {¶ 10} In response to appellant’s claim that appellee was abusing drug s, appellee’s counsel asked appellant about the results of drug screens that he submitted during the pendency of these proceedings. Appellant admitted that he test ed positive for marijuana. Further, appellant acknowledged that he had never observed appe llee using drugs in front

of C.S. {¶ 11} After appellant finished testifying, he called his wife, K.S., to the stand. During her testimony, K.S. stated her belief that appellant sho uld be granted custody of C.S. K.S.’s position was based upon the fact that appellant wa s employed, had his own home, and lived in a school district that was “more beneficial to [C.S.] at this point.” On5. cross-examination, K.S. acknowledged that she was not involved with C.S.’s prior schooling and therefore could not fairly compare C.S.’s perform ance in appellee’s school district to his performance in appellant’s school district. {¶ 12} Following K.S.’s testimony, appellant called N.P. to the stand. N.P. is the father of appellee’s children, with the exception of C.S. Like appellant, N.P. filed a motion seeking an award of custody of his children in May 2018. Ultimately, appellee and N.P. reached an agreement that left appellee’s custody of t he children intact and increased N.P.’s visitation time, thereby resolving the issues that gave rise to N.P.’s filing of his motion. Despite the agreement, N.P. testified that he w as not permitted to see his children due to a molestation complaint that was filed with chi ldren’s services. {¶ 13} For his fourth and final witness, appellant called his mother, K.H. K.H. testified that there was a one-year period of time during which appellee did not permit her to see C.S., having revoked such permission after K.H. took C.S . to see appellant prior to appellant undergoing surgery. According to K.H., she helped ap pellant file his request

for visitation so that she could continue to see C.S. {¶ 14} At the conclusion of K.H.’s testimony, appellant rested. There after, appellee took the stand. Appellee testified as to the allegati ons raised by appellant concerning her alleged homelessness, drug abuse, and lack of em ployment. {¶ 15} As to housing, appellee insisted that she has never been homele ss, and she stated that she and C.S. currently reside at her parents’ home. In terms of the schooling issue appellant raised in his testimony regarding C.S.’s attend ance at Ottawa River6. Elementary, appellee stated that C.S. was “thriving” and C.S.’s teacher reported that C.S.’s cousins had a positive impact on his educational develop ment. {¶ 16} Turning to appellant’s allegation of drug abuse, appellee testi fied that she has never used drugs in front of C.S. Appellee acknowledged th at she submitted two diluted drug screens during the pendency of this case, but note d that her most recent drug screen was negative while appellant’s most recent drug screen w as positive for marijuana. Appellee further committed to remaining drug-free m oving forward. {¶ 17} Later on in appellee’s testimony, she admitted that she was pre sently unemployed. Nonetheless, appellee stated that her unemployment would not impact her ability to care for C.S. {¶ 18} Following appellee’s testimony, C.S.’s guardian ad litem, Micha el Bryant, was called to the stand. In his report submitted to the trial court in this case, Bryant suggested that the court designate appellee the residential par ent and award appellant parenting time according to the court’s local schedule. {¶ 19} At trial, Bryant testified as to the concerns raised by appella nt in his motion. Bryant discussed the concerns with appellant, and lear ned that appellant was primarily troubled that appellee was not spending as much time with C.S. as she suggested. Bryant stated that appellant “made it clear that he didn’t think that [appellee] was a bad mom, that * * * she never did anything * * * to negle ct [C.S.] or * * * harm him or anything like that.” Bryant also testified as to his di scussions with C.S., noting that C.S. “made it clear that he * * * wanted to spend more tim e with mom. He loves7. dad, wants to be with dad, * * * but he enjoys being with mom. Mom makes him feel more comfortable, he’s more comfortable at mom’s house.” {¶ 20} As her final witness, appellee called her mother, M.M., who cor roborated appellee’s testimony that she has never been homeless. Accordi ng to M.M., appellee has been living with her since moving out of N.P.’s home in May 201 8. M.M. further stated that she has never observed appellee using drugs. {¶ 21} At the conclusion of M.M.’s testimony, the magistrate took the matter under advisement. Ultimately, the magistrate determined that a change of circumstances had taken place, justifying the modification of the preexisting custodial arrangement. In a decision journalized on May 7, 2019, the magistrate named app ellant the residential parent of C.S., and granted appellee visitation “on an alternat ing week basis.” {¶ 22} On May 21, 2019, appellee filed objections to the magistrate’s decision, arguing that the magistrate erred by ignoring the guardian ad l item’s recommendation that she remain C.S.’s residential parent. {¶ 23} On September 12, 2019, the juvenile court issued its decision o n appellee’s objections. In its decision, the court found that “the issues giving rise to the instant action (i.e., [appellant] alleging [appellee] is homeless, unemployed, abuses drugs and neglects the minor child; and, [appellee] alleging [appellant] is refusi ng visits with minor child) now appear to be resolved.” Consequently, the court went on to state that “there has not been a change of circumstances in the life of the custodian or the minor child that8. would warrant a modification of custody at this time,” and foun d appellee’s objections

well-taken. The result of the trial court’s decision was a dis missal of the parties’ motions to modify the allocation of parental rights and responsibilitie s, and a reversion “to the November 15, 2016 Judgement Entry, wherein the parties agreed [ appellee] would be named residential parent and legal custodian.” {¶ 24} Following the trial court’s decision reversing the magistrate’s decision, appellant filed his timely notice of appeal. B. Assignments of Error {¶ 25} On appeal, appellant assigns the following assignments of error for our

review: 1. The Court’s determination that there was not a change in circumstances as required under R.C. 3109.04 to support a grant of Legal Custody to the Father was against the manifest weight of the ev idence. 2. The Court’s reversal of the Magistrate’s decision was an ab use of

discretion. Because appellant’s assignments of error are interrelated, we w ill address them simultaneously. II. Analysis {¶ 26} In appellant’s assignments of error, he contends that the trial court erred in reversing the magistrate’s decision and retaining appellee’s st atus as residential parent of

C.S.9. {¶ 27} To justify a change of custody pursuant to R.C. 3109.04(E), the court must find that there has been a change of circumstances for the chil d, the child’s parent or parents, and that modification of parental rights and responsib ilities is in the child’s best

interests. Davis v. Flickinger , 77 Ohio St.3d 415, 417, 674 N.E.2d 1159 (1997). In determining whether such a change is sufficient to warrant a cu stody change, the court

must be afforded wide latitude. Id. at paragraphs one and two of the syllabus. {¶ 28} “A finding of a change of circumstances should not be disturbed absent an

abuse of discretion.” L.W. v. L.B. , 6th Dist. Lucas No. L-09-1309, 2010-Ohio-2796, ¶ 52. Moreover, we review the juvenile court’s decision reversing the magistrate’s decision for

an abuse of discretion. See In re L.M.L. , 11th Dist. Portage No. 2016-P-0069, 2017- Ohio-7451, ¶ 20, quoting In re Wiley , 11th Dist. Portage No. 2008-P-0062, 2009-Ohio290, ¶ 20 (“‘In reviewing a trial court’s decision to adopt or reject a magistrate’s decision, an appellate court looks for abuse of discretion.’”). An abuse of discretion connotes that the court’s attitude was arbitrary, unreasonable or unconscionable.

Blakemore v. Blakemore , 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983). {¶ 29} In its September 12, 2019 judgment entry, the trial court found that appellee had resolved the issues that prompted appellant to see k custody of C.S., namely that appellee was homeless, unemployed, abusing drugs, and negl ecting C.S. Consequently, the trial court found that there was not a change of circumstances warranting a change in the custodial arrangement set forth in t he court’s November 15, 2016 entry.10. {¶ 30} Our review of the record in this case supports the trial court’ s finding of a lack of a change of circumstances. Indeed, by the time of tria l, appellant acknowledged that his concerns were mostly resolved. Although appellee was unemployed, she insisted, and appellant admitted, that she could provide safe h ousing for C.S. Further, appellee had recently submitted a clean drug screen and M.M. te stified that she had never observed appellee abusing drugs. Appellant voiced concerns wit h C.S.’s education, but there was substantial testimony presented by appellee to establ ish that C.S. was progressing well at Ottawa River Elementary. As to appellant’s allegation that appellee was neglectful in her parenting of C.S., appellant admitted to Bryant that appellee “never did anything * * * to neglect [C.S.].” {¶ 31} Given the record before us, we find that the trial court did no t abuse its discretion when it found that appellant failed to establish a c hange of circumstances that would justify a modification of custody in this case. Absent a change of circumstances, the trial court properly reversed the magistrate’s decision mod ifying the preexisting custodial arrangement between the parties. {¶ 32} Accordingly, we find appellant’s assignments of error not well- taken.

III. Conclusion {¶ 33} For the foregoing reasons, the judgment of the Lucas County Cou rt of Common Pleas, Juvenile Division, is affirmed. Appellant is ord ered to pay the costs of this appeal pursuant to App.R. 24. Judgment affirmed.11. S.S. v. F.M. C .A. No. L-19-1216

A certified copy of this entry shall constitute the mandate pur suant to App.R. 27. See also 6th Dist.Loc.App.R. 4.

Thomas J. Osowik, J. _______________________

________ JUDGE Christine E. Mayle, J.

_______________________________ Gene A. Zmuda, P.J. JUDGE CONCUR.

_______________________________ JUDGE

This decision is subject to further editing by the Supreme Cour t of Ohio’s Reporter of Decisions. Parties interested in viewing th e final reported version are advised to visit the Ohio Supreme Court’s web site at: http://www.supremecourt.ohio.gov/ROD/docs/.