[Cite as Kolleda v. Kolleda,

.]

IN THE COURT OF APPEALS

ELEVENTH APPELLATE DISTRICT

LAKE COUNTY, OHIO

JANE E. KOLLEDA, : OPINION

Plaintiff-Appellant, : CASE NO. 2013-L-069 - vs - :

CHRISTOPHER W. KOLLEDA, :

Defendant-Appellee. :

Civil Appeal from the Lake County Court of Common Pleas, Domestic Relations Division, Case No. 09 DR 000685.

Judgment: Affirmed.

Laura A. DePledge, DePledge Law Office, Inc., 7408 Center Street, Mentor, OH 44060 (For Plaintiff-Appellant).

David E. Lowe and Laura M. Wellen, Thrasher, Dinsmore & Dolan, 100 7th Avenue, Suite 150, Chardon, OH 44024 (For Defendant-Appellee).

John W. Shryock, John Shryock Co., L.P.A., 30601 Euclid Avenue, Wickliffe, OH 44092 (Guardian ad Litem).

DIANE V. GRENDELL, J.

{¶1} Plaintiff-appellant, Jane E. Kolleda nka Fletcher, appeals the judgment of

the Lake County Court of Common Pleas, Domestic Relations Division, granting

defendant-appellee, Christopher W. Kolleda’s, Motion for Change of Custody and

denying her Motion to Show Cause. The issues before this court are whether it is error

for a court to change custody based on the custodial parent’s intention to relocate out of state; whether it is in a child’s best interest to change custody where, despite ongoing

custody issues, there is no substantive change in the situation of the custodial parent or

the minor children; and whether it is error for a court not to hold a parent in contempt

where the parent admittedly fails to facilitate visitation. For the following reasons, we

affirm the decision of the court below.

{¶2} Fletcher and Kolleda are the parents of Patrick Christopher Kolleda,

emancipated during the pendency of this appeal, and Casey Ryan Kolleda, a minor

child.

{¶3} On October 19, 2010, the parties were granted a divorce and a shared

parenting plan was established by the Lake County Court of Common Pleas, Domestic

Relations Division.

{¶4} On May 24, 2012, an Agreed Entry to Terminate Final Shared Parenting

Decree and Modified Decree for the Allocation of Parental Rights and Responsibilities

was filed. The parties agreed that Fletcher would be the “residential parent and legal

custodian of the minor children,” Patrick (dob 10/01/1995) and Casey (dob 6/25/2001).

The parties shared physical custody of the children on alternating weeks.

{¶5} On August 23, 2012, Fletcher filed a Notice of Intent to Relocate and

Motion to Modify the May 24, 2012 Entry Re: Parenting Time. Fletcher expressed her

intent to relocate to Hillsborough County, Florida, which would make it “necessary to

modify the current parenting time schedule, so that the Defendant can still have

significant parenting time with the children.”

2 {¶6} On October 3, 2012, Fletcher filed a Motion to Show Cause and Motion for

Attorney Fees, based on Kolleda’s having “failed and/or refused to provide [her] with her

parenting time with Patrick on the alternating week schedule.”

{¶7} On October 19, 2012, the domestic relations court appointed John W.

Shryock, Esq., as guardian ad litem for the children.

{¶8} On October 30, 2012, Kolleda filed a Motion for Change of Custody.

{¶9} On April 15, 2013, a hearing was held on the Notice of Intent/Motion to

Modify, Motion to Show Cause/Attorney Fees, and the Motion for Change of Custody.

{¶10} On June 14, 2013, the domestic relations court issued a Judgment Entry,

denying Fletcher’s request to relocate the two children to Florida; designating Kolleda

the “sole residential parent of both minor children”; and awarding Fletcher “parenting

time during the school year under a two week repeating cycle.”

{¶11} On July 11, 2013, Fletcher filed a Notice of Appeal. On appeal, Fletcher

raises the following assignments of error:

{¶12} “[1.] The trial court abused its discretion by finding a change of

circumstances pursuant to R.C. 3109[.04](E)(1)(a)(i-iii) after denying appellant’s request

to relocate.”

{¶13} “[2.] The trial court abused its discretion by failing to maintain appellant as

the sole legal custodian of the minor children where no change of circumstances

pursuant to R.C. 3109[.04](E)(1)(a)(i-iii) exists.”

{¶14} “[3.] The trial court abused its discretion by failing to maintain appellant as

the sole legal custodian of the minor children where it is in the best interests of the

3 minor children for appellant to be retained as the legal custodian and residential parent

pursuant to R.C. 3109.04(F)(1)(a-j).”

{¶15} “[4.] The trial court erred by failing to make a finding of contempt against

appellee for violation of the May 24, 2012 court order and award appellant attorney

fees.”

{¶16} In the first two assignments of error, Fletcher challenges that a change of

circumstances had occurred so as to justify the modification of custody.

{¶17} “The 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. In applying these

standards, the court shall retain the residential parent designated by the prior decree or

the prior shared parenting decree, unless a modification is in the best interest of the

child and * * * [t]he harm likely to be caused by a change of environment is outweighed

by the advantages of the change of environment to the child.” R.C. 3109.04(E)(1)(a)(iii);

In re James,

,

,

, paragraph one of

the syllabus; In re S.B., 11th Dist. Ashtabula No. 2010-A-0019,

, ¶ 85

(citations omitted). The change in circumstances necessary to justify a modification of

custody “must be a change of substance, not a slight or inconsequential change.” Davis

v. Flickinger,

,

(1997).

4 {¶18} “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.”

at paragraph two of the

syllabus. The determination that a change in circumstances has occurred for the

purposes of R.C. 3109.04 “should not be disturbed, absent an abuse of discretion.”

at paragraph one of the syllabus. “Abuse of discretion connotes something more than

merely being against the manifest weight of the evidence.” Baxter v. Baxter,

,

(1971). Rather, the decision rendered must be found

arbitrary or unreasonable. Miller v. Miller,

,

(1988).

Nor may the court of appeals substitute its own judgment for that of the lower court.

Trickey v. Trickey,

,

(1952), paragraph two of the

syllabus.

{¶19} In the present case, the domestic relations court determined the following

changes in circumstances had occurred since the May 24, 2012 Agreed Entry to

Terminate Shared Parenting:

Based on the evidence adduced at trial, the Court finds a

change has occurred in the circumstances of both children since

the last order of May 24, 2012. The two brothers have been living

in separate households since August 18, 2012, the first time they

have ever lived separate and apart. The evidence shows, given

Mother’s need to control Patrick’s actions and Mother’s ability to

control Casey’s, the boys are left to deal with the physical and

emotional separations from each other themselves. This change in

5 circumstances has a material and adverse effect upon the

emotional stability of both boys. This is a change of substance, not

a slight or inconsequential change * * *.

Mother’s intended relocation to Florida compounds the

present instability for them. Casey is of the belief he is going to go

to school in Florida. Mother testified Casey is looking forward to

living in Florida. Mother herself instilled the move to Florida in

Casey’s mind as a certainty. However, based on the history of

litigation between the parents, common sense dictates Mother

should have expected Father to oppose a move of the boys. This

Judge must question why Mother would set up a move to Florida as

a “sure thing” to Casey? Mother’s actions show a complete

disregard for the judicial process which is charged with the

allocation of parental rights and responsibilities.

***

This Judge finds the children’s environment with Mother is

emotionally harmful and dangerous to them based on the totality of

the evidence. This also constitutes a change of circumstances

which has a material and adverse effect upon the boys.

{¶20} Fletcher argues that the domestic relations court impermissibly cited her

desire to relocate to Florida as a change in circumstances justifying a modification of

custody. Fletcher relies on the Ohio Supreme Court decision of Masters v. Masters,

,

(1994), which held that it was “unconscionable,” and

6 therefore an abuse of discretion, “for a trial court to modify custody when the only

evidence supporting its conclusion is the filing of a motion to remove the child from the

state, which reflects a desire to leave the state and which must be filed according to

local rule.”

.

{¶21} Fletcher’s reliance on Masters is unavailing. In Masters, the lower court

relied on the mother’s desire to relocate as the “only evidence” of a change in

circumstances to support modifying custody.

In the present case, the domestic

relations court explicitly cited to the fact that Fletcher had created a false expectation in

Casey that their moving to Florida was a certainty. The expectations were fostered

during repeated trips to Florida and Fletcher’s working part-time for a Florida employer

on certain weekends. Accordingly, Fletcher’s filing of a Notice of Intent to Relocate was

not the only evidence cited by the court as a change of circumstances.

{¶22} Just as significant, the domestic relations court identified the fact that

Patrick and Casey had been living in separate households for eight months and the

deteriorating emotional environment created by Fletcher as additional changes in

circumstances.

{¶23} In support of these findings, the domestic relations court noted the

following: On August 18, 2012, an “incident” occurred between Fletcher and Patrick.

Since that time, Patrick has refused to return to Fletcher’s home. Fletcher contacted the

police. Patrick made allegations of abuse against Fletcher to the police. The court did

not credit the veracity of the allegations, but acknowledged that “Patrick’s statements to

the reporting officers as to why he did not wish to return to Mother’s home reflect the

intensity of the anger * * * Mother’s words and actions have created within him.”

7 {¶24} The domestic relations court noted a volatile argument between Fletcher

and Patrick over money in July 2012.

{¶25} The domestic relations court noted that Fletcher retained Patrick’s

temporary driving permit following these incidents as “leverage to have Patrick return to

her home and acquiesce with her demands,” contrary to a court order that “neither party

shall interfere with * * * the minor children from * * * obtaining and maintaining their

driver’s licenses.”

{¶26} The domestic relations court further noted evidence that, in September

2012, Fletcher hung up on Patrick when he tried to call her and did not return a second

call after Patrick had left a message. In December 2012, the court noted that Fletcher

did not attempt to call Patrick, leave a gift, or otherwise acknowledge his birthday.

{¶27} Finally, the domestic relations court noted that, in April 2013, Fletcher took

Casey to the police department to make a report against Patrick, because Patrick had

pushed Casey into a table, causing a bruise. The court found that Fletcher’s conduct

reflected her “anger against her own son, Patrick, when he didn’t acquiesce to her

wishes in July and August 2012,” and questioned “if Mother is trying to turn Casey

against his brother, since Patrick has wanted to spend more time with his Father, and

further, he now wants to reside with Father.”

{¶28} With respect to Casey, the domestic relations court considered various

text messages between Fletcher and him, which the court found “juvenile in nature”:

“Although intended to be reassuring to Casey, the texts are age appropriate for a much

younger child rather than an 11-year-old. The evidence shows Mother has encouraged

Casey’s dependence on her rather than helping him be self-sufficient.”

8 {¶29} Fletcher contends that the domestic relations court’s decision focuses on

“a few insignificant incidents,” which are “not atypical [of] situations that occur in

divorced families.” We disagree. The incidents and situations cited by the court are

substantial enough to constitute a change in circumstances. While the circumstances of

the present case do not necessarily compel that conclusion, such a determination was

well within the court’s discretion.

{¶30} The first two assignments of error are without merit.

{¶31} In the third assignment of error, Fletcher maintains that the best interests

of the children favor her retaining custody.

{¶32} The domestic relations court made the following findings, pursuant to R.C.

3109.04(F)(1), regarding the best interests of the children:

(a) The wishes of the children’s parents regarding the

children’s care: Mother wants to relocate to Florida with both

children; however, she readily agrees to relocate to Florida with

only Casey, if the court so orders. Father requests he be the sole

residential parent of both boys.

(b) In camera interview: Such occurred here. Casey loves

both parents and looks forward to living in Florida. Patrick wishes

to remain in Ohio in Father’s household.

(c) Children’s interaction and interrelationship with the

children’s parents, siblings and any other person who may

significantly affect the child’s best interest: Patrick gets along

well with his Father; the record and the evidence show his

9 relationship with his Mother is seriously damaged due to Mother’s

interference over the years in his relationship with Father. Patrick

did not see his Father for a lengthy period of time after the divorce

due to sexual abuse allegations Mother leveled against Father as to

Casey. * * * Mother’s allegations were investigated by a number of

agencies in Lake County which took a long time to conclude.

Patrick, Casey and Father’s parenting time was greatly reduced for

about 14 months. No charges were filed against Father as a result

of Mother’s accusations.

It is clear Casey is much closer to Mother; he visits with

Father and enjoys same once there. Curiously, there was no

evidence as to the siblings’ relationship with each other over the

years and at present. The only evidence as to the siblings’

relationship was as to the incident at Father’s apartment before trial

which involved the Mentor-on-the-Lake Police Department and

Casey’s police report.

Mother testified as to having no family in northeast Ohio.

She has step-parents, friends, cousins and other family members

throughout Florida. Father testified he has family in northeast Ohio.

To what extent was not in evidence. Neither party provided

evidence as to the depth of the children’s relationships with others

in that parent’s family.

10 (d) Child’s adjustment to home, school and community:

Both boys have IEP’s. Casey has pre-dyslexia; Patrick also has

same, along with a non-verbal learning disability and ADHD.

Patrick’s sports are football and baseball; Casey plays football.

Patrick is more comfortable in Father’s home; Casey is more

comfortable at Mother’s.

(e) Mental and physical health of all persons involved:

Father is 51; Mother is 47. The parents and children are in

satisfactory physical health with no evidence to the contrary.

Mother is a believer in holistic medical remedies * * *; Father

disputes the effectiveness of said remedies. Patrick takes

Risperdal® for his ADHD. This Judge submits each parent has a

critical unmet need for individual counseling by a licensed

professional. The children also need counseling to better

understand the situations they have been put in by their parents.

The brothers have endured intense litigation since their parents’

divorce case was filed on October 27, 2009, almost four years ago.

(f) Parent more likely to honor and facilitate court approved

parenting time or visitation and companionship rights: The

case history shows each parent has difficulty in doing so. Mother

interferes with Casey’s time with Father; Father interferes with

Patrick’s time with Mother. * * * This Judge finds, based on the

11 totality of the evidence * * *, Father is more likely to facilitate Court-

approved parenting time.

***

(j) Whether either parent has established a residence or is

planning to establish a residence outside the state: Pursuant

to the Agreed Judgment Entry filed May 24, 2012, Mother is the

sole residential parent of both children. She filed her intent to

relocate to Florida on August 23, 2012, less than 90 days after she

was designated as the sole residential parent of the boys.

***

Based on the preceding analyses of the factors of Revised

Code 3109.04(F)(1), the Court finds the brothers have been

prevented from developing emotionally, healthy stable relationships

with each other since May 24, 2012 as a result of Mother’s conduct.

Mother has now assisted Casey in bringing law enforcement into

the brothers’ relationships between themselves [sic]. In particular,

Mother’s need to control Patrick’s actions since the last court

hearing and her inability to do so has become quite intense.

***

The Court finds a modification in the designation of the

residential parent is in the best interest of the children. The Court

finds Mother’s interference with her son Patrick since May 24, 2012

and her manipulation of Casey to believe he is moving to Florida is

12 highly dangerous to both children’s present and continued

emotional well being. * * * The Court finds a modification in the

designation of residential parent to Father is necessary to serve the

best interests of the two boys. The Court finds the harm likely to be

caused by a change in environment to Father’s [sic] is outweighed

by the advantages of the change in environment to the children with

Father as their residential parent. The boys will remain in the same

school system; they can participate in their usual sports and keep

their circle of friends and visit extended family in Ohio.

{¶33} Fletcher asserts that the domestic relations court “correctly applied the

best interest test, but * * * incorrectly reached the conclusion that modification was in

the best interests of the minor children.” Fletcher fails to present a convincing argument

that the court’s conclusion was an abuse of its discretion.

{¶34} Fletcher argues that the domestic relations court’s focus on her desire to

relocate to Florida is misguided – since the court denied the request, her desire to

relocate should have been accorded minimal consideration. We disagree. Fletcher’s

conduct went beyond the mere desire to relocate. As noted above, Fletcher took the

children on several lengthy vacations to Florida, began part-time employment in Florida,

and created the expectation in Casey that he would be living in Florida.

{¶35} Fletcher maintains that the siblings’ living in separate homes since August

2012 was the “direct result” of Kolleda’s “repeated and continuous refusals to facilitate

parenting time between Patrick and Appellant.” On the contrary, the domestic relations

court acknowledged that Kolleda has interfered with Fletcher’s parenting time with

13 Patrick. However, the court also recognized that Fletcher herself is primarily

responsible for the deterioration of her relationship with Patrick.

{¶36} Finally, Fletcher argues that the current circumstances affecting the

children, such as Fletcher’s advocacy of holistic medicine and the parties’ inability to

effectively parent the children together, existed prior to the May 2012 Agreed Entry to

Terminate Shared Parenting and, therefore, favor the maintaining of the current

custodial arrangement. Again, we disagree. Having determined that a change in

circumstances existed sufficient to reconsider the custodial arrangement, the domestic

relations court has the ability and obligation to consider all factors that bear on the

children’s best interests, not merely those factors that have arisen since the preceding

custody entry. In re Powell, 11th Dist. Lake No. 2000-L-044,

, 11 (June 8, 2001) (“[o]nce a determination of a change of circumstances has

been made, a trial court may consider prior facts for purposes of determining what is in

the best interest of the child”).

{¶37} The third assignment of error is without merit.

{¶38} In the fourth and final assignment of error, Fletcher asserts that the

domestic relations court erred by not holding Kolleda in contempt and awarding her

attorney fees.

{¶39} It has been noted that the domestic relations court did not render an

express judgment with respect to the contempt motion, although it recognized that the

hearing was being held, inter alia, on Plaintiff’s October 3, 2012 motion to show cause

and for attorney fees.

14 {¶40} This court has held that, “when a trial court enters and journalizes a final

judgment that grants relief adverse to or inconsistent with the relief sought in a pending

motion, it may be presumed that the court intended to deny that motion.” Aurora Loan

Servs., LLC v. Cart, 11th Dist. Ashtabula No. 2011-A-0070,

, ¶ 17. This

presumption has been applied to motions for contempt. Stemple v. Dunina, 2nd Dist.

Miami No. 04CA40,

.

{¶41} In the present case, Fletcher filed a Motion to Show Cause, based on

Kolleda’s purported interference with her visitation rights, and a Motion for Attorney

Fees, based on the same conduct. The domestic relations court expressly ordered

Fletcher to pay her own attorney fees in addition to the costs of the action and found

that Kolleda was “more likely to facilitate Court-approved parenting time.” As these

determinations are inconsistent with finding Kolleda in contempt, it is presumed that

Fletcher’s Motion to Show Cause was denied.

{¶42} A reviewing court “will not reverse the decision of the court below in a

contempt proceeding in the absence of a showing of an abuse of discretion.” State ex

rel. Ventrone v. Birkel,

,

(1981).

{¶43} In the present case, the domestic relations court made the finding that

both parties have interfered with each other’s visitation rights. With respect to Patrick,

Kolleda’s interference consisted of his failure to promote or encourage Patrick to visit

with his mother, rather than affirmative acts hindering visitation from occurring.

Accordingly, the decision not to award attorney fees to either party is within the court’s

discretion.

{¶44} The fourth assignment of error is without merit.

15 {¶45} For the foregoing reasons, the judgment of the Lake County Court of

Common Pleas, Domestic Relations Division, granting Kolleda’s Motion for Change of

Custody and denying Fletcher’s Motion to Show Cause is affirmed. Costs to be taxed

against appellant.

CYNTHIA WESTCOTT RICE, J., concurs,

COLLEEN MARY O’TOOLE, J., concurs in part and dissents in part, with a

Concurring/Dissenting Opinion.

_____________________________

COLLEEN MARY O’TOOLE, J., concurs in part and dissents in part, with a

Concurring/Dissenting Opinion.

{¶46} I concur in the majority’s disposition of the fourth assignment of error.

However, I respectfully find flaws in the proceedings below which convince me the case

should be reversed and remanded. Neither boy was a party to the case. The evidence

at trial revealed the boys rotated weekly between their parents, with mother as

residential parent. The elder, Patrick, evidently did not wish to be with his mother, but

only with his father. The younger, Casey, preferred being with his mother, and wished

to move with her to Florida. Each parent wanted to be residential parent for both

children. The guardian ad litem testified he believed the boys’ best interest would be

served by continuing the custody and visitation schedule which already existed in place.

Based on its in camera interview, the trial court determined, “Casey loves both parents

16 and looks forward to living in Florida [with mother]. Patrick wishes to remain in Ohio in

Father’s household.” However, no recording was made of the in camera interview.

{¶47} In sum, both boys evidently had conceptions of their best interests which

conflicted with that of the guardian ad litem, and, ultimately with the best interest

determination made by the trial court. Under the circumstances, I believe each should

have been made a party to the case, and that each required legal counsel, all pursuant

to Civ.R. 75(B)(2).

{¶48} The U.S. Constitution, Fourteenth Amendment, Section 1 establishes that

no state shall make or enforce any law denying all citizens equal protection and due

process. Article I, Section 2, Ohio Constitution, and Article I, Section 16, Ohio

Constitution, mirror these provisions. These children are citizens of Ohio and the United

States. Neither the federal nor the state constitutional provisions assuring equal

protection and due process differentiate between persons below the age of majority,

and those above. Their vital interests were at stake. I believe their rights to equal

protection and due process were violated, since they were not allowed to participate in

these proceedings to determine which parent would be residential parent.

{¶49} I respectfully do not find the fact that an in camera interview occurred is

sufficient to cure this defect. I am aware that certain of our appellate courts have held

that no recording of an in camera interview conducted pursuant to R.C. 3109.04(B)(2)

must be made, unless a party so moves. Wilson v. Wilson, 4th Dist. Lawrence No.

09CA1,

, ¶8 (collecting cases). However, this court has held that in

camera interviews with minors must always be recorded in visitation and custody

disputes. Guliano v. Guliano, 11th Dist. Trumbull No. 2010-T-0031,

,

17 ¶36; Jackson v. Herron, 11th Dist. Lake No. 2003-L-145,

. Accord

Pedraza v. Collier, 3d Dist. Henry No. 7-06-03,

; Purvis v. Purvis,

4th Dist. Adams No. 00CA703,

, *25 (Feb. 4, 2002);

Donovan v. Donovan,

(12th Dist. 1996). This is so effective

appellate review of custody and visitation disputes can be had. See, e.g.,

. Since we do not have any transcript of the in camera interview in this case, we

cannot consider what the children said.

{¶50} Further, I believe proper interpretation of Civ.R. 75(B)(2), providing that

courts may make children parties to these cases and appoint counsel for them, and

Sup.R. 48(D)(8), requiring that guardians ad litem request appointment of such counsel

when the guardian knows his interpretation of best interest conflicts with that of the

child, mandates reversal. The guardian knew his interpretation of best interest

conflicted with that of the boys, as did the trial court. Ohio case law establishes that in

such situations, the trial court should appoint separate counsel. See, e.g., Walton v.

Walton, 6th Dist. Wood No. WD-06-066,

(appointment of separate

counsel for minors is proper under Civ.R. 75(B)(2) when the recommendations of the

guardian ad litem conflict with the wishes of the children).

{¶51} As the boys were not parties nor represented at trial, and could not

participate effectively in it, I would reverse and remand on that basis.

{¶52} I respectfully concur in part, and dissent in part.

18