[Cite as Malone v. Malone,

.]

-

IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT SENECA COUNTY

PATRICK R. MALONE,

PLAINTIFF-APPELLEE, CASE NO. 13-10-39

v.

WENDY L. MALONE, NKA REESE, OPINION DEFENDANT-APPELLANT.

Appeal from Seneca County Common Pleas Court Domestic Relations Division Trial Court No. 06-DR-0067

Judgment Affirmed

Date of Decision: May 2, 2011

APPEARANCES:

Dale M. Musilli for Appellant

Dean Henry for Appellee Case No. 13-10-39

WILLAMOWSKI, J.

{¶1} Defendant-Appellant, Wendy L. Malone, n.k.a. Wendy Reece

(“Wendy” or “Mother”), appeals the post-divorce decision of the Seneca County

Court of Common Pleas, Domestic Relations Division, modifying parental rights

and responsibilities and designating Plaintiff-Appellee, Patrick R. Malone

(“Patrick” or “Father”), as the residential parent of the parties’ two minor sons.

On appeal, Wendy contends that there was no significant change in circumstances

warranting a change in custody; that the trial court erred in excluding evidence on

the basis of hearsay objections; and that the trial court’s decision was an abuse of

discretion and was against the manifest weight of the evidence. For the reasons

set forth below, the judgment is affirmed.

{¶2} Wendy and Patrick were divorced on December 4, 2006. Wendy was

designated the residential parent of Damian (born in August of 1996) and Dalton

(born in March of 2001). Patrick was granted visitation in accordance with the

local rules, plus Patrick was granted one additional weekend per month.

{¶3} Prior to early 2009, Damian and Dalton enjoyed what was reported as

a “healthy relationship with their father.” (Apr. 28, 2010 J.E., p. 229.) Patrick

enjoyed regular, frequent and uninterrupted parenting time with his sons and both

parties testified that there were very few problems with visitation and parenting

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time. No motions were filed regarding visitation and the boys and their father

enjoyed what was described as a “normal father-son relationship.” (Id.)

{¶4} In June of 2008, Patrick married Terry Malone (“Terry” or “the

stepmother”). In the latter part of 2008, Wendy met Todd Reese (“Todd” or “the

stepfather”). They became engaged, and later married. During the summer of

2009, Wendy and her sons moved from Marion, Ohio, to Todd’s home in Galion,

Ohio, and the boys changed schools. Beginning in the spring and summer of

2009, problems began to occur regarding Patrick’s parenting time with his sons

and the boys allegedly claimed that they no longer wanted to see their father.

{¶5} On April 30, 2009, Wendy filed motions seeking an emergency order

suspending visitation relating to conflicts with Patrick when Damian was

hospitalized with pneumonia and she tried to prohibit Patrick from visiting his son

at the hospital. She also filed a motion to limit parenting time in the future,

claiming that the boys were refusing visits to their Father’s and that the current

parenting schedule needed to be suspended until counseling could address the

issues. Patrick filed a motion to show cause, alleging denial of parenting time. An

attorney guardian ad litem (“GAL”), Kent Nord, was appointed on May 28, 2009.

Both parties filed pretrial discovery and motions relating to parental rights and

responsibilities, child support, and other issues.

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{¶6} Wendy then tried to have visitation with Patrick stopped because the

boys supposedly claimed they had been “inappropriately touched” by the

stepmother’s nieces during their visitation times with Patrick. Visitation

throughout the summer and fall was extremely contentious and numerous motions

and orders were filed. Even when Patrick was allowed to have visitation, Damian

told the GAL that, between phone calls and texts, he talked to his mother over

twenty times a day. (GAL report, p. 6.) On September 4, 2009, Patrick filed a

Motion for Reallocation of Parental Rights and Responsibilities, asking the trial

court to designate him the residential parent of Damian and Dalton. Dalton then

claimed that he had been the victim of serious sexual abuse involving Patrick and

his stepmother.

{¶7} Wendy then sought a Civil Protection Order1 (“CPO”) and visitation

was halted, except for a few supervised sessions at Patchwork House. All of the

allegations of sexual abuse turned out to be completely unfounded and Dalton

eventually recanted his accusations during a second in camera interview following

1 Wendy sought protection from Patrick for the children because of the allegations of sexual abuse, and also for herself, because she claimed Patrick had threatened to kill her. An ex parte CPO was issued by the Crawford County Court of Common Pleas on October 2, 2009, and a full hearing was held a few weeks later. The ruling on the CPO on behalf of the minor children was to be held in abeyance pending a determination by the Seneca County Domestic Relations Court in the matter currently before us. Wendy’s petition for a CPO for herself was dismissed after a finding that Wendy had failed to demonstrate that Patrick had ever placed her in fear of imminent serious physical harm. The magistrate found that Wendy had “engaged in what is, at best, an exaggeration of any level of danger that may have existed.”

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the first day of the hearing.2

{¶8} A hearing on the pending motions was conducted over six days:

December 21st and December 22nd in 2009; and January 7th, January 14th, February

12th, and February 25th in 2010. The trial court heard testimony from many

witnesses from both sides, including the children’s teachers, Wendy, Patrick,

Damian, Dalton, and the GAL. The GAL testified that he had spent over 130

hours on this assignment and conducted approximately forty interviews. He also

submitted his report containing his conclusion and recommendation that “it is in

the best interest of Damian and Dalton Malone that they be placed in the legal

custody of Father, Patrick Malone.” (Pl. Ex. 7, p. 27.) The GAL acknowledged

that Damian’s and Dalton’s stated preference was to live with their mother, but he

also testified that, “[m]y opinion is that these two boys will do and say anything

that their mother wants them to say.” (Tr., p. 1071.) The GAL reported that,

although the boys always indicated that they did not want to go to their Father’s

home and that they never had any fun there, “[t]hat is not what this GAL observed 2 The allegations of inappropriate touching were investigated by the Crawford County Children’s Services, and no evidence of sexual abuse was found. Dr. Smalldon, a forensic psychologist, was also hired to investigate Dalton’s charges of abuse by Patrick and his stepmother. On December 18, 2009, Dr. Smalldon issued his final report stating that he did not find the abuse allegations against Patrick and the stepmother to be reliable, or even plausible. Dalton’s story was continually changing, and his allegations were so outrageous that it was difficult to find them believable. On December 21, 2009, after the first day of the hearings, another in camera interview was held with Darian and Dalton and the boys recanted all of the allegations of sexual abuse and impropriety. During that in camera interview, the boys stated that Wendy had helped them to fabricate the stories. However, at the hearing, both Darian and Dalton testified that no one had helped them make up the allegations, and that they had done it completely on their own.

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when he was present with the boys at Father’s home and what the boys indicated

during their in camera interview.” (Pl. Ex. 7, p. 6-7.)

{¶9} On April 28, 2010, the trial court filed its Journal Entry designating

Patrick as the residential parent of Damian and Dalton. Wendy was designated the

non-residential parent and allocated parenting time. In a lengthy and detailed

decision, the trial court outlined the many significant changes in circumstances

that had occurred since the parties’ divorce in 2006 “which have had a material

adverse effect on Damian and Dalton.” (Apr. 28, 2010 J.E., p. 228.) The trial

court also analyzed how the modification would serve the best interests of Damian

and Dalton pursuant to the relevant factors in R.C. 3109.04(F)(1).

{¶10} On September 21, 2010, the trial court issued its final Journal Entry,

deciding the issues of child support, cash medical support, and the transportation

of the minor children. Wendy was ordered to pay child support pursuant to the

child support worksheet. Wendy now appeals, raising the following four

assignments of error.

First Assignment of Error

The trial court erred as a matter of law by sustaining objections to testimony on the basis of hearsay.

Second Assignment of Error

The trial court abused its discretion by awarding custody to [the Father.]

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Third Assignment of Error

The trial court erred as a matter of law in modifying custody, because there was no significant change in circumstances of the children.

Fourth Assignment of Error

The decision of the trial court was against the manifest weight of the evidence.

{¶11} In order to facilitate our review, we shall address the assignments of

error out of order and combine our discussion of similar issues. The modification

of parental rights and responsibilities is controlled by R.C. 3109.04(E). R.C.

3109.04(E)(1)(a) creates a rebuttable presumption in favor of retaining the

residential parent. Rohrbaugh v. Rohrbaugh (2000),

,

. Therefore, a court shall not modify a parenting decree allocating

parental rights unless it finds that, based on facts that have arisen since the decree,

there has been a change in circumstances of the child or the child’s residential

parent and modification of the decree is necessary to serve the child's best interest.

R.C. 3109.04(E)(1)(a).

{¶12} Additionally, the court must find that one of the factors listed in R.C.

3109.04(E)(1)(a)(i), (ii), and (iii) applies. In this case, the trial court found that

R.C. 3109.04(E)(1)(a)(iii) applied: “[t]he harm likely to be caused by a change of

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environment is outweighed by the advantages of the change of environment to the

child.”

{¶13} 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,

,

,

; Miller v. Miller (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 (1952),

, 13-

14,

. “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 (1992),

,

.

{¶14} 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 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.

{¶15} In applying an abuse of discretion standard, a reviewing court is not

free to substitute its judgment for that of the trial court. Hay v. Shafer, 3d Dist.

No. 10-10-10, 2010-Ohio- 4811, citing Holcomb v. Holcomb (1989), 44 Ohio

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St.3d 128,

. When reviewing a change of child custody

proceedings, an appellate court should be guided by the presumption that trial

court's findings were correct.

.

Third Assignment of Error

{¶16} In her third assignment of error, Wendy asserts that the trial court

erred in modifying custody because she maintains that there was no significant

change in circumstances. Although the trial court found that the visitation

difficulties that had arisen “were the result of deliberate actions on the part of

Wendy to deny Patrick meaningful parenting time with his sons,” (J.E. at p. 229),

Wendy claims that when the boys did not want to go with their father, she coaxed

and encouraged them to go. Furthermore, she contends that there was little

evidence to support the trial court’s conclusion that Todd’s involvement with the

boys had negatively affected their relationship with their father. And finally, she

states that some of the other problems cited by the trial court had existed since the

time of the divorce and did not constitute a change of circumstances.

{¶17} In order for a trial court to modify a prior allocation of parental rights

and responsibilities, it must make a threshold finding that a change in

circumstances has occurred, and, if so, it must then determine that the

modification is in the best interest of the child. R.C. 3109.04(E)(1)(a); Wooten v.

Schwaderer, 3d Dist. No. 14-08-13,

. The statute’s language

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does not require a “substantial” change in order to warrant a change of custody,

but “the change must be a change of substance, not a slight or inconsequential

change.” Davis, 77 Ohio St.3d at 418. While courts must be mindful to avoid

subjecting children to a tug-of-war between two parents continually attempting to

gain custody, the threshold for change must not be set so high as to prevent a trial

judge from modifying custody if it is necessary for the best interest of the child.

Id. at 420-21. See, also, Wyss v. Wyss (1982),

,

. This Court has stated:

“In determining whether a change in circumstances has occurred so as to warrant a change in custody, a trial judge, as the trier of fact, must be given wide latitude to consider all issues which support such a change, including a change in circumstances because of the child’s age and consequent needs, as well as increased hostility by one parent (and that parent’s spouse) which frustrates cooperation between the parties on visitation issues.”

Clark v. Smith (1998),

,

, quoting Davis

at 416-417.

{¶18} The trial court found that there were numerous changes that had

occurred in the lives of the children and their parents. Both parents remarried. A

new residence and new school system created an entirely new environment for the

children. However, the trial court was most disturbed by the changes in attitudes

and behavior exhibited by the children that began around the time Todd entered

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the boys’ lives. In addition to Wendy’s efforts to deny visitation, the trial court

observed:

Damian and Dalton’s respective behaviors and attitude toward their father, even their recognition of Patrick Malone as their father, have suffered to the point that the relationship between these boys and their father has been damaged significantly. *** For example, Dalton fabricated a story alleging unbelievable allegations of sexual abuse at the hands of his father and step- mother. While he later recanted these allegations, questions remain about their source and motive. Damian has, in the past, stated that Todd, and not Patrick, is his real father. Damian has frequently and recently signed his last name as “Reese” rather than “Malone.” He calls his father by his first name, while referring to Todd Reese as his “real dad.” ***

(J.E. at 230.)

{¶19} The trial court was also concerned about the mental and physical

health of Damian and Dalton, which appeared to have deteriorated while they

resided with their Mother. Damian was recently diagnosed with Type II Diabetes.

At thirteen years of age, he weighed 269 pounds, the heaviest he had ever been.

Although Wendy testified that the doctor recommended Damian be put on a diet,

he has actually gained weight and she apparently has done very little to encourage

him to exercise. Both children have mental health issues. Damian’s temper

tantrums have increased from 2006 to 2008, and head-banging behavior began in

April of 2009. Damian was also diagnosed as potentially having Asperger’s

syndrome, and Dalton was recently diagnosed with ADHD.

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{¶20} There was also a substantial negative change in Damian’s

educational and social functioning, including poor grades, poor attitude, lack of

interaction with other students, and similar issues. Wendy had directed the school

authorities to prohibit Patrick from accessing Damian and Dalton’s school records

and from picking them up after school. The court did note that Wendy’s

involvement with the school increased significantly while the hearing was in

progress and the boys were making some recent positive academic progress.

{¶21} The Ohio Supreme Court has stated that “[w]hile a new marriage,

alone, usually does not constitute a sufficient change in circumstances, a new

marriage that creates hostility by the residential parent and spouse toward the

nonresidential parent, frustrating attempts at visitation, may be an unforeseen

change in circumstances warranting further inquiry into the best interest of the

child.” Davis at 420. The record shows most of the changes occurred around the

time Todd came into Wendy and the boys’ lives, and it was replete with instances

of hostility by Wendy toward Patrick.

{¶22} We do not find that the trial court abused its discretion in finding that

there were multiple changes in the lives of the residential parent and the children

that would warrant an examination into what allocation of parental rights and

responsibilities would be in the children’s best interests. Wendy’s third

assignment of error is overruled.

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First Assignment of Error

{¶23} Wendy complains that she was unable to fully explain her reasons for

attempting to restrict the boys’ visitations with Patrick because the trial court

sustained hearsay objections from opposing counsel on at least five occasions and

excluded two exhibits.3 Wendy contends that the intended testimony was not

being offered for the truth of the content, but rather to demonstrate that she was

merely trying to protect the boys and was acting on the advice of counselors and

attorneys when she denied Patrick visitation. Therefore, she claims that the

erroneous exclusion of this testimony was the reason that the trial court found that

Wendy “failed to provide this Court with any evidence that her repeated denials of

parenting time were warranted.” (J.E. at 239.)

{¶24} A trial court has broad discretion in determining the admissibility of

evidence, “so long as such discretion is exercised in line with the rules of

procedure and evidence,” Hocker v. Hocker,

, 2007-Ohio-

1671,

, quoting Rigby v. Lake Cty. (1991),

,

. Accordingly, an appellate court reviewing the trial court's

admission or exclusion of evidence must limit its review to whether the lower

3 Defendant’s Exhibits O and P, which were proffered, were letters from Wendy’s former attorney written to Patrick’s attorney, stating that Wendy would not be allowing the boys to exercise visitation due to a letter from the boys’ counselor concerning inappropriate touching.

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court abused its discretion. Moore v. Moore,

, 2009-Ohio-

2434,

.

{¶25} “Hearsay” is defined as “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). Evid.R. 801(D) also specifies

certain statements which are not considered hearsay, such as when the declarant

testifies at trial or hearing and is subject to cross-examination concerning the

statement. See Evid.R. 801(D)(1). Generally, hearsay is not admissible unless

one of several exceptions to the hearsay rule is applicable. See Evid.R. 802-807.

{¶26} During the hearing, there were frequent instances when some of the

witnesses, especially Wendy, would find it difficult to answer questions without

attempting to relate something that someone else had said, i.e., hearsay. The trial

court was diligent in allowing the attorneys to explain their legal reasoning as to

why the testimony should or should not be allowed and then it carefully and

consistently ruled on the many hearsay objections raised by both sides. The

record demonstrates that the trial court’s rulings were not in any way arbitrary,

unreasonable, or capricious.

{¶27} Contrary to Wendy’s assertion, the letters and testimony were being

offered for the truth of the matter asserted, i.e., that counselors and her attorney

had advised her not to allow visitation. Yet, at trial, Wendy failed to produce any

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witness who provided her with advice to deny Patrick parenting time with his

children. Patrick’s attorney also objected to the lack of foundational basis

providing for the underpinnings of why the two excluded letters (Exhibits O and

P) were written, arguing that the letters may have been written in response to his

client telling him the boys had been sexually abused. (Tr. at p. 708.)

{¶28} Wendy’s attorney argued that the hearsay statements and letters

needed to be admitted to explain her motivation for denying visitation. However,

there were many other times during the hearing when Wendy did have the

opportunity to testify and explain her actions and motivation without invoking a

hearsay objection. For example, during her direct testimony concerning the first

time she took the boys to seek counseling in June 2009, Wendy testified as

follows:

Q. Did you get a copy of Exhibit N from [the counselor]?

A. Yes, I did.

***

Q. Okay. And in response to what was in that Exhibit N, did you do anything in reference to visitation with Patrick?

B. Yes. I quit visitation due to the investigation that was going on due to the allegations Dalton made against the two [nieces].

(Tr. at p. 775-76.)

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{¶29} Furthermore, Exhibit N, which was admitted without objection, was

a June 15, 2009, letter from the boys’ first counselor4 to Wendy’s attorney stating

that she was “hesitant” to have the boys go to their father’s house until some

answers were given for the allegations of inappropriate touching by the nieces and

the matter was investigated. Wendy also had the opportunity to tell the trial court,

on more than one occasion, “I never have stopped [visitation] until the allegations

were made by Dalton, and then I was afraid – I was protecting my boys.” (Id. at p.

867.)

{¶30} Based on the above, the trial court did not abuse its discretion in

sustaining hearsay objections concerning the out-of-court statements and letters

from Wendy’s first attorney. Wendy’s first assignment of error is overruled.

Second and Fourth Assignments of Error

{¶31} In these two assignments of error, Wendy claims that the trial court’s

decision to award custody to Patrick was an abuse of discretion and was against

the manifest weight of the evidence. She argues that the trial court’s omission of

evidence in an unreasonable and arbitrary manner skewed the remaining evidence

against her, and thus, was an abuse of discretion. She also contends that the

decision was against the manifest weight of the evidence because the record

contains considerable evidence that she provided excellent care and 4 At the time of the hearing, testimony revealed that the boys’ currently were each seeing their third counselor.

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encouragement for the boys. She also submits that Patrick is not often available to

the children because of his work, whereas she is not currently working and is

always available to the children.

{¶32} When a trial court’s decision concerning allocation of parental rights

and responsibilities is supported by a substantial amount of credible and

competent evidence, such a decision will not be reversed as being against the

weight of the evidence by a reviewing court. Davis, 77 Ohio St.3d at 418; Bechtol

v. Bechtol (1990),

,

, at the syllabus. The trial

court's discretion in determining parental rights must remain within the confines of

the relevant statutory provisions. Miller,

,

.

{¶33} We have already determined that there were several changes in

circumstances that would satisfy the first requirement of R.C. 3109.04(E)(1)(a).

The trial court then reviewed all of the R.C. 3109.04(F) factors to determine what

was in the children’s best interest. The non-exclusive list of relevant factors in

R.C. 3109.04(F) includes:

(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 * * *, 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;

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

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

(f) The parent more likely to honor and facilitate court- approved parenting time rights or visitation and companionship rights;

(g) Whether either parent has failed to make all child support payments, including all arrearages, that are required of that parent pursuant to a child support order under which that parent is an obligor;

(h) Whether either parent or any member of the household of either parent previously has been convicted of or pleaded guilty to any criminal offense involving any act that resulted in a child being an abused child or a neglected child; * * *

(i) Whether the residential parent or one of the parents subject to a shared parenting decree has continuously and willfully denied the other parent's right to parenting time in accordance with an order of the court;

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

R.C. 3109.04(F)(1)(a)-(j). Although the statute provides a list of factors for the

trial court to consider in determining the best interest of the child, there is no

requirement that the trial court set out an analysis of each factor in its judgment

entry, so long as the judgment entry is supported by some competent, credible

evidence that the best interest of the child was considered. Bunten v. Bunten

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(1998),

,

, citing Masitto v. Masitto

(1986),

,

.

{¶34} In this case, the trial court provided an analysis of the evidence

adduced at trial, applying that evidence to each and every factor in R.C. 3109.04,

setting forth in precise detail its reasons for reallocating parental rights. The

majority of the factors were either neutral in respect to both parties, or weighed

against Wendy and in favor of Patrick.

{¶35} The trial court was particularly concerned with Wendy’s pattern of

denying Patrick parenting time with his sons, and it also found that Patrick was the

parent who would be more likely to honor and facilitate visitation. The GAL’s

recommendation was clearly in favor of naming Patrick as the residential parent,

and the trial court took this recommendation into consideration as well.

{¶36} There was contradictory testimony throughout the hearing on many

occasions, which would mean that either Wendy or Patrick was not telling the

truth. However, the trial court, as the finder of fact, was in the superior position to

observe the witnesses’ demeanor and assess their credibility. It is not our position

to substitute our judgment for that of the trial court on matters of credibility.

Patrick’s testimony appeared to be reasonable and believable and motivated by a

sincere desire to provide what was best for his sons. Much of Patrick’s testimony

was supported by the forensic psychologist’s report and the GAL’s observations.

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And, although Patrick does work full time, he testified that he had made

arrangements for the care of the children by his wife and his parents when he was

unable to be there.

{¶37} In contrast, there were many examples where the trial court found

Wendy’s testimony was not credible or in conflict with the testimony of other

witnesses. For example, the trial court stated that “Wendy’s testimony that she

‘always makes the boys go’ with their father is in direct contradiction to her

testimony that she stopped visitation. Her actions calling for police or sheriff

assistance were not in furtherance of visitation, but to record her feigned pleas to

Damian and Dalton to visit their father.” (Tr. at p. 241.) Wendy also reported

that a parent-teacher conference that she attended with Todd went well and

nothing out of the ordinary occurred, whereas the teacher testified that it was the

worst parent-teacher conference she had ever had in her 36 years of teaching.

{¶38} Furthermore, as stated in our response to the previous assignment of

error, the evidence was not skewed by the exclusion of any evidence. Wendy had

many opportunities throughout the hearing to question her witnesses and to

explain the motivation behind her actions without resorting to inadmissible

hearsay.

{¶39} Based on a thorough review of the record, including more than 1,100

pages of hearing transcripts, the forensic psychologist’s report, the GAL’s report,

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and numerous other exhibits, we do not find that the trial court’s decision was an

abuse of discretion or against the manifest weight of the evidence. Wendy’s

second and fourth assignments of error are overruled.

{¶40} Having found no error prejudicial to the Appellant herein in the

particulars assigned and argued, we affirm the judgment of the trial court.

Judgment Affirmed

SHAW and PRESTON, J.J., concur.

/jlr

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