[Cite as White v. White,

.]

IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT CLARK COUNTY

RONALD C. WHITE : : Appellate Case No. 2013-CA-86 Plaintiff-Appellee : : Trial Court Case No. 07-DR-544 v. : : STACEY L. WHITE, nka McCONNELL : (Civil Appeal from Common Pleas : (Court, Domestic Relations) Defendant-Appellant : : ...........

OPINION

Rendered on the 28th day of March, 2014.

...........

ROBERT N. LANCASTER, JR., Atty. Reg. #0039461, Pavlatos, Catanzaro & Lancaster, Co. L.P.A., 700 East High Street, Springfield, Ohio 45505 Attorney for Plaintiff-Appellee

JENNIFER J. WALTERS, Atty. Reg. #0066610, Huffman, Landis, Weaks & Walters Co., L.P.A., 80 South Plum Street, Troy, Ohio 45373 Attorney for Defendant-Appellant

.............

FAIN, J.

{¶ 1} Defendant-appellant Stacy White appeals from an order of the Clark County

Court of Common Pleas, Domestic Relations Division, denying her motion for a reallocation of 2

parental rights and overruling her motion to show cause regarding her claim that Mr. White

wilfully and wantonly disregarded a prior visitation order.1 She contends that the trial court

improperly permitted the introduction of evidence regarding events occurring prior to the original

allocation of parental rights and that the trial court abused its discretion with regard to opposing

counsel’s questioning of witnesses. She further contends that the evidence supports neither the

trial court’s finding that she failed to demonstrate a change of circumstances necessitating a

reallocation of parental rights, nor its finding that the child’s best interest was met by continuing

the designation of Mr. White as the residential parent. Finally, Ms. McConnell contends that the

trial court’s finding that Mr. White did not wilfully deny visitation is not supported by the

evidence in the record.

{¶ 2} We find no abuse of discretion with regard to the trial court’s decision

regarding the admission of testimony and evidence. We further conclude that the trial court did

not err with regard to any of its findings, and that its decision to deny Ms. McConnell’s motion is

supported by the evidence. Accordingly, the order of the trial court from which this appeal is

taken is Affirmed.

I. The Course of Proceedings

{¶ 3} The parties were married in 2000. They have one minor child as a result of the

marriage. Mr. White filed a complaint for divorce in June 2007 and the parties were granted a

divorce in January 2009. Mr. White was designated residential and custodial parent, and Ms.

1 Stacey White has remarried since this divorce, and is now Stacey McConnell. For ease of reference, we will refer to her as Ms. McConnell. 3

McConnell was awarded parenting time in accordance with the trial court’s standard order of

visitation. Ms. McConnell appealed; we affirmed. White v. White, 2d Dist. Clark No. 2009 CA

17,

.

{¶ 4} In April 2012, Ms. McConnell filed a motion to reallocate parental rights and

responsibilities. She claimed that Mr. White had interfered with her parenting time and

telephone contact with the child. She further claimed that she has remarried and “is residing in a

stable home in Dayton with her current husband.” She also filed a motion to show cause in

which she alleged that Mr. White had wilfully and wantonly disregarded the court’s order

regarding visitation.

{¶ 5} Hearings on the motions were held on four different dates in 2012 and 2013.

Following the hearings, the trial court denied the motion to reallocate, finding that Ms.

McConnell had not demonstrated a change in circumstances. The trial court also overruled the

motion to show cause. Ms. McConnell appeals.

II. Ms. McConnell Has Not Demonstrated that the Trial Court Gave Inappropriate

Consideration to Testimony Concerning Events Preceding the Date of the

Prior Adjudication of Parental Rights and Responsibilities in this Case

{¶ 6} Ms. McConnell’s First Assignment of Error states:

THE TRIAL COURT ERRED BY ALLOWING EVIDENCE INTO THE

RECORD THAT WAS KNOWN TO THE PARTIES AND THAT WAS

REGARDING EVENTS THAT TOOK PLACE PRIOR TO JANUARY 12, 2009,

THE DATE OF THE FILING OF THE JUDGMENT ORDER AND DECREE OF 4

DIVORCE.

{¶ 7} Ms. McConnell contends that the trial court permitted the introduction of

evidence regarding events that occurred prior to the date of the divorce decree. She contends

that the trial court abused its discretion by permitting this evidence, because it was irrelevant to

the issue of reallocation.

{¶ 8} Ms. McConnell has not set forth “[a] statement of facts relevant to the

assignments of error presented for review, with appropriate references to the record in

accordance with division (D) of this rule.” App.R. 16(A)(6). (Emphasis added.) We are not

required to comb through the record on appeal to find the parts of the record that bear upon an

assignment of error when the party assigning the error has failed to direct our attention to the

place in the record demonstrating the error.

{¶ 9} Nevertheless, from our review of the transcript of the hearing with regard to Ms.

McConnell’s manifest-weight-of-the-evidence discussed in Part IV, below, we note two incidents

bearing upon this assignment of error. In the first of these, Ms. McConnell’s adult daughter

testified on her behalf. At one point, the daughter testified to the effect that she and her mother

had always enjoyed a good relationship. On cross-examination, counsel for Mr. White

attempted to impeach this testimony by referring to the daughter’s testimony given during the

original divorce hearing, in which the daughter testified that she and her mother did not have a

good relationship. Ms. McConnell contends that this line of questioning was improper, because

it addressed events occurring prior to the date of the divorce decree in contravention of R.C.

3109.01(E)(1)(a). We disagree. The purpose of the questioning, which was brief and focused,

was not to establish facts regarding a change in circumstances; the purpose was to impeach the 5

daughter’s credibility.

{¶ 10} Next, we note that counsel for Mr. White made one other reference to events

occurring prior to the date of the decree when he asked Ms. McConnell’s mother if she knew why

Ms. McConnell had lost the job she had during the marriage. The mother merely responded that

“the economy” was to blame for the job loss.

{¶ 11} When conducting a bench trial, the trial court is presumed to have considered

only admissible evidence unless the record indicates otherwise. Cleveland v. Welms,

,

,

(8th Dist.). Ms. McConnell does not

claim that the trial court inappropriately considered this testimony, nor does she make any claim

that she was materially prejudiced by the testimony. We find no indication in the record that this

testimony affected the outcome of the trial.

{¶ 12} Finally, in determining whether there has been a change in circumstances since

the last determination of parental rights and responsibilities, some comparison of the

circumstances of the parties after that determination with the circumstances of the parties before

that determination is appropriate, and this may require some evidence concerning the

circumstances of the parties before the prior determination.

{¶ 13} Ms. McConnell’s First Assignment of Error is overruled.

III. Testimony Upon Re-Cross-Examination, to which Ms. McConnell Objected

as Being Beyond the Scope of Re-Direct Examination, Either Was Not Beyond

the Scope of Re-Direct, or Was Not Sufficiently Prejudicial to Merit Reversal

{¶ 14} Ms. McConnell’s Second Assignment of Error is as follows: 6

THE TRIAL COURT ERRED BY ALLOWING APPELLEE’S

COUNSEL TO QUESTION WITNESSES BEYOND THE SCOPE OF

RE-DIRECT.

{¶ 15} Ms. McConnell cites several places in the record where she contends that the trial

court improperly permitted Mr. White’s attorney to inquire, during re-cross-examination, into

matters that were not brought up during re-direct examination.

{¶ 16} With regard to one of the cited passages, Ms. McConnell had testified she had

some medical conditions that prevented her from working and caused her to have difficulty

walking and to need to elevate her legs by the end of the day. During re-direct examination, she

testified that those conditions would not impact her ability to care for the child. On re-cross, she

was asked whether she was performing with a band in the evenings. Counsel for Ms.

McConnell objected, contending that this was beyond the scope of the re-direct examination.

We disagree. During re-direct, Ms. McConnell was asked about her medical conditions, which

she had previously testified affected her ability to walk in the evenings, with regard to her ability

to care for the child. Counsel for Mr. White then asked the questions about her ability to

perform with a band in the evenings despite these claimed medical conditions. We conclude that

this was a valid attempt to determine what effect the medical conditions actually had on her – an

issue that was raised on re-direct with regard to her ability to care for her son. We find no error

by the trial court in permitting this limited line of questioning.

{¶ 17} Next, Ms. McConnell complains that counsel also went beyond the scope of

re-direct examination by asking her questions about her Facebook postings showing pictures of

her “dream home” in Waynesville, Ohio. Counsel asked her whether this indicated that she 7

wanted to move again, to which she responded in the negative. We agree that this went beyond

the scope of the re-direct. However, Ms. McConnell does not state how this prejudiced her.

Furthermore, we find no indication that this question affected the outcome of the proceeding.

The presumption that the trial court, in a bench trial, considered only admissible evidence is not

overcome. Cleveland v.

{¶ 18} In the next cited passage, Ms. McConnell’s counsel, on re-direct, asked Ms.

McConnell’s daughter why she had no communication with her family for an extended period of

time. The daughter attributed it to the fact that she was in an abusive relationship and was not

permitted by her abuser to contact her family. She testified that the only way her mother could

have contacted her during this time was through Facebook. Mr. White’s counsel then asked her

about her access to Facebook, and how she found out that her mother had moved to Texas. The

daughter testified that her sister had sent her a message on Facebook. Counsel then asked how

much contact Ms. McConnell had with the sister, to which counsel objected. After the objection

was overruled, the daughter testified that Ms. McConnell had “probably” seen the other daughter

more than four times in the past two months. We agree that this question about the sister’s

contact with the mother exceeded the scope of re-direct. But again, it is not apparent how Ms.

McConnell could have been prejudiced by this question and answer, and we find no indication

that this question and answer had any effect upon the outcome of the proceeding.

{¶ 19} Finally, Ms. McConnell’s mother was asked, on re-cross, about her contact with

one of Ms. McConnell’s daughters, to which she responded that she had very little contact over a

three-year period. This question exceeded the scope of re-direct. But again, Ms. McConnell

fails to demonstrate prejudice. 8

{¶ 20} We conclude that upon this record, the presumption has not been overcome that

the trial court, as the finder of fact, did not utilize any improper evidence in reaching its decision.

Ms. McConnell’s Second Assignment of Error is overruled.

IV. The Trial Court’s Decisions that: (1) There Was Not a Change of Circumstances

Justifying the Re-allocation of Parental Rights and Responsibilities; (2) Re-allocation of

Parental Rights and Responsibilities

Was Not in the Best Interest of the Child; and (3) Mr. White Did Not

Wilfully and Wantonly Disregard the Court’s Prior Order of Visitation,

Are Not Against the Manifest Weight of the Evidence

{¶ 21} Ms. McConnell’s Third, Fourth and Fifth Assignments of Error provide:

THE TRIAL COURT ERRED AGAINST THE WEIGHT OF THE

EVIDENCE AND ABUSED ITS DISCRETION IN FINDING THAT THERE

HAD NOT BEEN A CHANGE IN CIRCUMSTANCES SINCE THE FILING OF

THE JUDGMENT ORDER AND DECREE OF DIVORCE ON JANUARY 12,

2009.

THE TRIAL COURT ERRED AGAINST THE WEIGHT OF THE

EVIDENCE AND ABUSED ITS DISCRETION IN FINDING THE

REALLOCATION OF PARENTAL RIGHTS AND RESPONSIBILITIES IS

NOT IN THE BEST INTEREST OF THE MINOR CHILD.

THE TRIAL COURT ERRED AGAINST THE WEIGHT OF THE

EVIDENCE AND ABUSED ITS DISCRETION BY FINDING APPELLEE DID 9

NOT WILLFULLY AND WANTONLY DISREGARD THE COURT’S PRIOR

ORDERS CONCERNING APPELLANT’S VISITATION RIGHTS.

{¶ 22} Ms. McConnell contends that the trial court’s order denying her motion to

reallocate parental rights is not supported by the evidence. Specifically, she claims that she

demonstrated a change in circumstances and she demonstrated that a reallocation would be in the

child’s best interest. She further contends that the trial court erred in determining that Mr. White

had not wilfully denied her parenting time and that it thus abused its discretion by overruling her

motion to show cause on that issue.

{¶ 23} R.C. 3109.04(E)(1)(a) states that a:

court shall not modify a prior decree allocating parental rights and responsibilities

for the care of children unless it finds, based on facts that have arisen since the

prior decree or that were unknown to the court at the time of the prior decree, that

a change has occurred in the circumstances of the child, the child's residential

parent, or either of the parents subject to a shared parenting decree, and that the

modification is necessary to serve the best interest of the child.

{¶ 24} “In order to prevail on a motion for reallocation of parental rights, the movant

must demonstrate that (1) there has been a change in the circumstances of the child or the

residential parent, (2) modification of the existing custody decree is necessary to serve the child's

best interest, and (3) the harm likely to be caused to the child by a change of environment is

outweighed by the advantages of the change of environment.” Chaney v. Chaney, 2d Dist.

Montgomery No. 24880,

, citing R.C. 3109.04(E)(1)(a). “A change in

circumstances must be one of substance, not slight or inconsequential, to justify modifying a 10

prior custody order.” Davis v. Flickinger,

,

(1997). We

review a trial court's ruling on a motion for reallocation of parental rights for an abuse of

discretion.

; Musgrove v. Musgrove, 2d Dist. Montgomery No. 24640,

. “The discretion which a trial court enjoys in custody matters should be

accorded the utmost respect.” Miller v. Miller,

,

(1988).

{¶ 25} The trial court found that no change in circumstances had occurred with regard to

the child and Mr. White. They were residing in the same home and the child was attending the

same school. The trial court went on to note that “most of the changes which have taken place

since 2008 involve changes in Ms. McConnell’s life.” Specifically, Ms. McConnell testified

that she had moved approximately eight times since she and Mr. White divorced. She moved in

with an abusive boyfriend in Franklin for a “couple of months.” She also moved to Texas for

nine months, where she resided with a friend for a few months before moving in with Steven

McConnell. Ms. McConnell and Steven McConnell moved back to Ohio in August 2011 and

were married in December 2011.2 From the time they moved back, to the time of the hearing in

November 2012, they had lived in three different residences. Their current residence is in

Centerville, approximately 42 miles from where the child and Mr. White reside. Ms. McConnell

is not employed, and Mr. McConnell works from home for a company located in Chicago.

{¶ 26} The trial court also found that a change of custody would not be in the child’s

best interest. R.C. 3019.04(F)(1) sets forth the following factors to consider in determining the

best interest of a child:

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

2 This is Ms. McConnell’s fourth marriage. 11

(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 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;

***

(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.

{¶ 27} Both parents wish to have custody of the child. While the child was not

interviewed, the Guardian Ad Litem appointed to represent his interests recommended that Mr. 12

White retain custody. The GAL further noted that the child had expressed the wish to retain the

current arrangement. The child, as Ms. McConnell acknowledges, is thriving and well-adjusted

in his father’s home. He makes good grades, is on the honor roll and has friends. The child also

lives near his paternal grandparents, with whom he has a good relationship. The child showed

some reluctance to visit with his mother, and experienced some anxiety following the divorce.

Mr. White enrolled him in therapy, and the child is now doing better with those issues. While

there is evidence that the child is overweight, there is nothing in the record to support a finding

that Mr. White is not properly dealing with that issue. Ms. McConnell had a child-support

arrearage of approximately $1,774 at the time she filed her motion for reallocation, but her

husband had paid that arrearage by the time of the hearing.

{¶ 28} Ms. McConnell claims that Mr. White has attempted to frustrate her

communication and visitation with the child. Ms. McConnell’s mother testified that she was

with her daughter when Mr. White denied visitation, but she also testified that she visits with the

child every other weekend while he is with Ms. McConnell. The GAL noted that he did not find

evidence to support the claim that Mr. White denies visitation. The GAL further noted that Mr.

White appears to encourage a relationship between the child and Ms. McConnell. Mr. White

testified that he has not denied visitation, except for a few times when Ms. McConnell appeared

without notice – during her stay in Texas – and only because he had already scheduled activities

involving the child.

{¶ 29} From our review of the record, there is evidence to support a finding that the

only times Ms. McConnell was denied visitation was when she traveled from Texas and

attempted to exercise visitation, without prior notice to Mr. White. Indeed, Ms. McConnell’s 13

own testimony was somewhat contradictory on this issue. She testified that she has been given

every summer visitation since the divorce. She also admitted that she was given extra time when

she asked for it following a school event.

{¶ 30} In any event, the trial court found that “both of the parties would honor and

facilitate” parenting time and that Mr. White had not wilfully denied Ms. McConnell’s parenting

time. The trial court stated that it found the testimony of Mr. White credible and that Ms.

McConnell’s testimony “for the most part, was not [credible].”

{¶ 31} We agree with the trial court that Ms. McConnell has not demonstrated any

change in the child and Mr. White’s circumstances that would mandate a reallocation of parental

rights. The record supports a finding that the current living arrangement is stable and the child is

doing well. There is evidence in the record that, if believed, belies the claim that Mr. White

wilfully denies visitation. The trial court’s evaluation of the best-interest factors – which

indicates that it is in the child’s best interest for Mr. White to retain custody – has support in the

record. Thus, we find that the trial court’s order is not against the manifest weight of the

evidence.

{¶ 32} We further conclude that, based upon the record, the trial court did not abuse its

discretion or err with regard to its decision overruling Ms. McConnell’s motion to show cause as

she failed to demonstrate that Mr. White wilfully and wantonly interfered with her visitation

rights or disregarded the trial court’s order regarding visitation.

{¶ 33} The Third, Fourth and Fifth Assignments of Error are overruled.

V. Conclusion 14

{¶ 34} All of Ms. McConnell’s Assignments of Error having been overruled, the order

of the trial court overruling Ms. McConnell’s motion for reallocation of parental rights and

responsibilities and her motion to show cause, from which this appeal is taken, is Affirmed.

.............

FROELICH, P.J., and HALL, J., concur.

Copies mailed to:

Robert N. Lancaster, jr. Jennifer J. Walters Hon. Thomas J. Capper