[Cite as Castanien v. Castanien, 2013-Ohio-1393.]

IN THE COURT OF APPEALS OF OHIO 

THIRD APPELLATE DISTRICT 

WYANDOT COUNTY 

 

ERIN CASTANIEN, ET AL., 

 PLAINTIFFS-APPELLANTS, CASE N0. 16-12-08 

 v. 

S. MICHAEL CASTANIEN, O P I N I O N 

 DEFENDANT-APPELLEE. 

 

Appeal from Wyandot County Common Pleas Court 

Domestic Relations Division 

Trial Court No. 08-DR-0113 

Judgment Affirmed 

Date of Decision: April 8, 2013 

 

APPEARANCES: 

 

Gary S. Wellbaum for Appellants 

Kevin P. Collins for Appellee 
Case No. 16-12-08 

-2- 

SHAW, J.

{¶1} Plaintiffs-appellants Erin Castanien, Tim Aller, and Jean Aller 

(collectively “appellants”), appeal the April 19, 2012, judgment of the Wyandot 

County Court of Common Pleas, Domestic Relations Division, granting Erin’s exhusband, Michael Castanien, custody of Erin and Michael’s three children. For 

the reasons that follow, we affirm the judgment of the trial court. 

{¶2} Erin and Michael were married April 22, 2003. They had three 

children together: Cole, born in April of 2004, and Macy and Drew, twins, born in 

October of 2006. On November 3, 2008, Erin filed a complaint for divorce. The 

divorce proceedings resulted in numerous hearings which concluded on January 

12, 2010.1

 On February 10, 2010, the Magistrate presiding over the divorce filed a 

decision that, inter alia, granted custody of the parties’ three children to Erin. 

(Doc. 64). Michael was granted parenting time according to the local rule. (Id.) 

On February 25, 2010, the trial court filed an entry stating that it had 

independently reviewed the Magistrate’s decision and that the court adopted and 

approved the Magistrate’s decision. (Doc. 65). The trial court ordered Erin’s 

attorney to prepare an entry consistent with its holding for the court to review.2

 

(Id.) 

 

1

 Other hearings occurred May 4, 2009, August 19, 2009, November 10, 2009. 

2

 That entry was prepared and filed on April 5, 2010. (Doc. 71). 
Case No. 16-12-08 

-3- 

{¶3} Subsequently, on March 5, 2010, a Friday evening, Erin attempted to 

commit suicide. Erin would later state that she made the decision to attempt 

suicide on the very day of her attempt while her children were napping, though she 

did not actually make the attempt until later Friday evening after Michael had 

retrieved the children from Erin’s home for his weekend visitation around 6:00 

P.M. 

{¶4} On the night of the suicide attempt, when the children left Erin’s 

residence with Michael, Erin wrote a suicide note, took some pills, and then went 

to lie down. In her attempt, Erin had to take additional pills more than one time. 

Erin was found by her mother the next day and was life-flighted and hospitalized. 

Erin does not recall any event from Friday evening until Sunday when she woke 

briefly and then went back to sleep. 

{¶5} On March 11, 2010, Michael filed an “Exparte Motion for Emergency 

Custody” of the parties’ three children arguing that Erin was hospitalized from her 

suicide attempt.3

 (Doc. 66). That same day, the motion was granted. (Doc. 69). 

{¶6} While Erin was in the hospital recovering from her suicide attempt, 

cellulitis developed in her leg and she was treated for that. Erin remained in the 

hospital for two weeks, and then moved into the home of her parents where she 

has since resided. Prior to the suicide attempt, Erin had been living independently. 

 

3

 The motion does not actually use the term “suicide,” rather at this point the attempted suicide was referred 

to as an “overdose.” 
Case No. 16-12-08 

-4- 

{¶7} On April 23, 2010, Michael filed a motion to reallocate parental rights 

and responsibilities, requesting that he be designated the legal and residential 

parent of the parties’ three children. (Doc. 72). 

{¶8} On June 9, 2010, a judgment entry was filed regarding temporary 

orders that continued Michael’s temporary custody, but also gave Erin supervised 

visitation of the parties’ children. (Doc. 86). 

{¶9} On June 17, 2010, Erin requested the appointment of Mary Snyder as 

Guardian ad Litem (“GAL”), a private GAL on the court’s approved appointment 

list. (Doc. 87). On June 18, 2010, that motion was granted and Mary Snyder was 

officially appointed. (Doc. 89); (Doc. 93). 

{¶10} On June 22, 2010, Tim and Jean Aller, Erin’s parents who she was 

residing with, filed a motion to intervene to request companionship or visitation 

rights with the parties’ children. (Doc. 91). On July 12, 2010, that motion was 

granted. (Doc. 92). 

{¶11} On August 24, 2010, Erin filed a “Motion for Reallocation of 

Parental Rights and Responsibilities.”4

 (Doc. 97). 

{¶12} On August 24, 2010, Tim and Jean Aller filed a “Motion for 

Grandparent companionship or visitation rights and/or temporary and/or 

permanent parenting time.” (Doc. 98). 

 

4

 This motion actually mischaracterizes Erin as Defendant in this matter, then later refers to her as the 

Plaintiff. (Doc. 97). 
Case No. 16-12-08 

-5- 

{¶13} On August 23, 2010, Mary Snyder filed a notice of filing of GAL 

report. (Doc. 96). The GAL’s report stated, “[a]t this time, the undersigned 

cannot advise the Court as to which parent would make a better residential parent, 

as neither currently seems appropriate for the task. The undersigned suggests that 

the matter be continued for a period of three months and that during that time the 

children be placed in the temporary custody of Tim and Jean Aller.” (Emphasis 

sic) (Plaintiff’s Ex. 28). The GAL further recommended frequent unsupervised 

parenting time for both parents, and that Erin should move out of the Aller’s home 

and establish her own residence. (Plaintiff’s Ex. 28). 

{¶14} A full evidentiary hearing on the post-decree change of custody 

motions pending before the court was conducted before the Magistrate on multiple 

dates: October 12, 2010, December 21, 2010, and February 16, 2011. The 

Magistrate heard testimony from the parties, Cole’s kindergarten teacher, a speech 

therapist that evaluated Drew, an outpatient mental health therapist that worked 

with Erin, Erin’s sister, the GAL, and the mother of each party. In addition, trial 

depositions were taken of medical doctors that worked with the children and Erin. 

Following the hearing on February 16, 2011, the parties were invited to file 

written closing arguments. 

{¶15} On February 9, 2011, just before the last evidentiary hearing, the 

GAL filed a notice of filing a supplemental report. (Doc. 144). In this report, the 
Case No. 16-12-08 

-6- 

GAL argued that no change of circumstances had occurred and thus custody 

should revert back to Erin. (Plaintiff’s Ex. 29). The report did not explicitly 

address the best interests of the children. 

{¶16} On February 24, 2011, Michael filed his closing argument. (Doc. 

151). On February 25, 2011, appellants filed their closing argument. (Doc. 152). 

{¶17} On April 5, 2011, the Magistrate filed a 43 page decision granting 

Michael’s motion for change of custody. (Doc. 153). In the decision, the 

Magistrate made extensive findings of fact based on the testimony and the record. 

The Magistrate then summarized the “change of circumstances” as follows: 

In order to begin an analysis it must first be shown that a change 

in circumstance to the residential parent or the children ha[s] 

occurred. This is uncontroverted by the testimony, although 

Plaintiff fails to recognize the change. Plaintiff tried to kill 

herself. The children had to leave their home and live with 

Defendant. They had to change schools, adjust to a new 

environment, make new friends, and have a new schedule. All 

without any notice. Plaintiff was hospitalized for weeks. She 

now lives with her parents. She is not independent. Plaintiff is 

being supported financially and emotionally by her parents. 

There has been a change of circumstances. 

{¶18} The Magistrate then went on to discuss whether the benefit of the 

change outweighed the harm, specifically addressing each relevant best interest 

factor in R.C. 3109.04(F)(1). Some things the Magistrate found persuasive were 

health and behavioral improvements of the children while in the custody of 

Michael, Erin’s mental health condition (which according to the Magistrate’s 
Case No. 16-12-08 

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decision from the divorce, was not mentioned as an issue when originally 

determining custody), and Michael being more likely to facilitate parenting time. 

The Magistrate went on to discuss how her ultimate conclusion that it was in the 

children’s best interest that Michael be granted custody differed from the GAL and 

why the Magistrate felt that determination was appropriate despite the GAL’s 

recommendation. 

{¶19} On April 19, 2011, appellants filed initial objections to the 

Magistrate’s decision. (Doc. 154). On July 12, 2011, appellants filed 

supplemental objections to the Magistrate’s decision. (Doc. 169). In total, there 

were over 100 objections to the Magistrate’s decision. On July 27, 2011, Michael 

filed a memorandum opposing the objections. (Doc. 174). 

{¶20} On December 1, 2011, the trial court filed a 33 page judgment entry 

after conducting its independent review and analysis of the decision in light of the 

objections.5

 (Doc. 177). In its entry, the court specifically addressed each 

objection, and then the court found that “the findings of fact set forth in the 

magistrate’s decision, and as modified herein by the prior rulings on the 

objections, are supported by the evidence, and the court therefore adopts them in 

their entirety[.]”6

 (Id.) The court then adopted the Magistrate’s award of custody 

 

5

 The pages were not numbered and were hand counted. 

6

 The entry not only dealt with appellants’ objections, but the GAL’s objections as well. In addition, the 

court addressed claims that the Magistrate was biased finding them without support. 
Case No. 16-12-08 

-8- 

of the parties’ three children to Michael. The court did, however, remand the 

matter back to the Magistrate for further consideration of child support. (Id.) 

{¶21} The court’s judgment entry was appealed, but that appeal was 

ultimately dismissed for lack of a final appealable order as the Magistrate still had 

to address the child support issues upon remand. (Doc. 182). 

{¶22} On February 1, 2012, the Magistrate held a hearing on the remanded 

child support issues. On February 27, 2012, a Magistrate’s Decision was filed 

dealing with the remanded child support issues. (Doc. 183). On April 19, 2012, a 

final judgment entry was filed adopting the Magistrate’s Decision, designating 

Michael legal custodian and residential parent of the parties’ three children, and 

addressing the child support issues that had been remanded. (Doc. 186). 

{¶23} It is from this judgment that appellants appeal, asserting the 

following assignment of error for our review. 

ASSIGNMENT OF ERROR 

THE TRIAL COURT ABUSED ITS DISCRETION AND 

ERRED AS A MATTER OF LAW BY DISREGARDING, 

WITHOUT ANY VALID BASIS OR JUSTIFIABLE CAUSE, 

THE GUARDIAN AD LITEM’S REPORTS, 

RECOMMENDATIONS, AND TESTIMONY HEREIN 

THEREBY EFFECTIVELY LEAVING THE BEST 

INTERESTS OF THE CHILDREN HEREIN 

UNREPRESENTED IN THE TRIAL COURT PROCEEDINGS.

{¶24} In their assignment of error, appellants argue that the trial court 

disregarded the GAL’s reports, recommendations, and testimony and thereby 
Case No. 16-12-08 

-9- 

effectively dismissed the GAL. Specifically, appellants argue that four assertions 

by the Magistrate in the Magistrate’s Decision were unfounded and were 

tantamount to dismissal of the GAL. Appellants argue that under the Rules of 

Superintendence, the Magistrate should have appointed another GAL to represent 

the best interests of the children. 

{¶25} At the outset, we would begin by addressing the fact that in their 

brief and reply brief to this court, appellants cite no case law or statutory authority 

supporting their argument. Appellants loosely refer to Rule 48 of the Rules of 

Superintendence as guidelines supporting their argument.7

 However, we have 

previously held that “[t]he Rules of Superintendence ‘do not have the same force 

as a statute or case law, but are rather purely internal housekeeping rules which do 

not create substantive rights in individuals or procedural law.’” Heilman v. 

Heilman, 3d Dist. No. 6-12-08, 2012-Ohio-5133, ¶ 33, quoting Elson v. Plokhooy, 

3d Dist. No. 17-10-24, 2011-Ohio-3009, ¶ 40. Thus, appellants’ reliance on the 

Rules of Superintendence under our own case law is misplaced as the rules do not 

create rights. In Heilman and Elson, this court has overruled assignments of error 

for solely relying on the Rules of Superintendence for support. Based upon our 

prior holdings, appellants cannot maintain their argument. 

 

7

 This is the only “authority” appellants cite in their Table of Authorities in their brief. 
Case No. 16-12-08 

-10- 

{¶26} However, as appellants’ argument is also without merit, we will also 

address it on its factual basis. In their brief, appellants direct us to look at four 

assertions in the Magistrate’s decision that they say were unfounded. The 

particular assertions in the Magistrate’s Decision that appellants refer to are taken 

from a portion where the Magistrate is discussing the GAL. The portion reads as 

follows: 

[1] Given her frequent communication with Plaintiff, [2] her 

association with Plaintiff apart from her Guardian ad Litem 

duties, [3] making a criminal complaint against Defendant, and 

[4] her posture as an advocate for Plaintiff the Guardian ad 

Litem has lost her objectivity and this effects [sic] this 

Magistrate’s acceptance of her report and her testimony.

(Doc. 153).8

{¶27} Appellants argue that this segment illustrates that the Magistrate 

disregarded and effectively dismissed the GAL and that the assertions by the 

Magistrate are not supported by the record. Appellants do concede in their brief 

that the Magistrate is free to disagree with the GAL. Appellants are instead 

arguing that that this segment cited shows the Magistrate effectively dismissed the 

GAL and therefore left the best interests of the children unrepresented. 

{¶28} Despite appellants’ arguments, it is clear from the record that the 

GAL’s testimony and recommendation were thoroughly analyzed and considered 

by the Magistrate and that the GAL was not “effectively dismissed.” By the 

 

8

 Numbers were added for ease of understanding of the four separate assertions appellants argue were 

unfounded. 
Case No. 16-12-08 

-11- 

language of the segment cited above, the Magistrate only stated that the 

considerations affected the acceptance of the GAL’s report and testimony, not that 

they caused the Magistrate to completely disregard the GAL’s opinions. 

{¶29} In fact, the Magistrate’s initial discussion of the GAL covers five 

pages of the Magistrate’s Decision and details areas where the Magistrate 

disagreed with the GAL’s conclusions. The segment appellants cite as improper is 

in the ninth paragraph of eleven consecutive paragraphs of the Magistrate’s 

Decision addressing the GAL’s testimony, reports, and recommendation. The 

following excerpts illustrate some other portions of the Magistrate’s analysis 

through those pages: 

The Guardian ad Litem found Plaintiff to be a prolific 

communicator and the Guardian ad Litem did not find anything 

Plaintiff told her to be untrue. The undersigned found 

differently, as Plaintiff was often inconsistent in her testimony 

and with the testimony of others. 

* * * 

The Guardian ad Litem believes if Plaintiff was mentally unable 

to deal with being custodial parent, that she would show signs in 

other areas, such as being disheveled, not being able to hold 

down a job, fighting with her parents. However, Plaintiff 

showed none of these signs prior to her suicide attempt. 

* * * 

The Guardian ad Litem believes everything Plaintiff told her, 

and did not believe things Defendant told her. Plaintiff told the 

Guardian ad Litem that certain clothing items came to her from 

Defendant in a certain way, and without any verification the 
Case No. 16-12-08 

-12- 

Guardian ad Litem believed Plaintiff. The Guardian ad Litem 

did find Defendant’s house to be immaculate and that Cole 

attends school clean. The Guardian ad Litem was surprised at 

how clean Defendant keeps his house, as she expected something 

consistent with pictures Plaintiff provided her. 

(Doc. 153). 

{¶30} Later in the Magistrate’s decision, as the Magistrate is addressing 

best interests of the children, the Magistrate again discusses the GAL’s testimony, 

reports, and recommendation over four paragraphs spanning another four pages 

further illustrating why the Magistrate disagreed with the GAL. The following is 

an excerpt of that discussion: 

The initial Guardian ad Litem report indicated that the children 

should reside with Third Party Defendant, Allers. The 

Guardian ad Litem also outlined several concerns she felt 

needed addressed. These concerns included Drew’s speech issue 

and his medical issues regarding constipation. Defendant has 

addressed Drew’s speech issues and they no longer are present. 

There was no testimony, outside Plaintiff, that Defendant is 

inappropriately managing Drew’s functional constipation issues. 

Drew has the same issues with Defendant he had with Plaintiff 

and the doctor is not overly concerned with those issues at this 

point. The Guardian ad Litem also has concerns regarding the 

parties ability to effectively communicate. This is a concern for 

the undersigned as well. * * * However, the Third Party 

Defendant that the Guardian ad Litem recommends the children 

live with have such a dislike for Defendant that Jean Aller can 

say NOTHING positive or nice about Defendant. Further 

Plaintiff lives with the Allers, so that recommendation essentially 

places the children with Plaintiff whom the Guardian ad Litem 

initially stated cannot care for them. That is not in the 

children’s best interests. 

(Emphasis sic). (Doc. 153). 
Case No. 16-12-08 

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{¶31} Based on the discussion, there is nothing to suggest that the 

Magistrate wholly disregarded and “effectively dismissed” the GAL as the 

Magistrate went to great lengths to analyze the GAL’s testimony and 

recommendations. The discussion shows that the Magistrate generally disagreed 

with the GAL rather than dismissed the GAL’s conclusions altogether. 

{¶32} Furthermore, we would note that the Magistrate’s criticisms of the 

GAL, which appellants claim are inappropriate in a specific segment and 

tantamount to dismissal of the GAL, could be considered legitimate. In the 

segment appellants cite, the Magistrate points to the frequency of contact between 

Erin and the GAL. It is true from the record that far less contact occurred between 

Michael and the GAL. Also in her decision the Magistrate points out that the 

GAL knew more about the children in this case because her child was in the same 

class as one of the children in this case. The record also illustrates that the GAL 

and her child also happened to be at a birthday party wherein Erin and her child 

were attending. Moreover, it is undisputed that the GAL filed a criminal 

complaint against Michael and contacted children’s services on behalf of Macy. 

No charges were ultimately brought and the children’s services investigation 

found that any alleged wrongdoing on behalf of Michael was unsubstantiated. 

Finally, the trial court addressed the “bias” claim in its review of appellants’ 
Case No. 16-12-08 

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objections, and found the Magistrate’s interpretation to be reasonable. The trial 

court found that, 

A review of both the initial and supplemental reports show that 

the GAL focuses on the change of circumstances issue, which is 

not appropriate in a GAL report and is strong evidence of bias 

towards a party rather than a focus on the best interests of the 

children. * * * The magistrate is free to accept or reject the 

GAL’s recommendation, and to test the GAL’s credibility. 

{¶33} Thus all of the Magistrate’s findings that were cited as inappropriate 

were supported by the record and therefore could be considered to be legitimate 

criticisms made by the Magistrate. 

{¶34} However, even if the criticisms were unfounded, and even if the 

Magistrate had somehow improperly disregarded the GAL’s testimony, there was 

still significant evidence cited in the lengthy decision of the Magistrate supporting 

granting Michael custody. Therefore even if we found the assertions by the 

Magistrate regarding the GAL to be inappropriate and struck the portion of the 

Magistrate’s decision containing them, the record still supports the ultimate 

outcome. 

{¶35} For all of the foregoing reasons, appellants’ assignment of error is 

overruled and the judgment of the Wyandot County Court of Common Pleas, 

Domestic Relations Division, is affirmed. 

Judgment Affirmed 

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

/jlr