Anderson v. Anderson

Decision Date12 March 2002
Docket NumberNo. 01 AP 755.,01 AP 755.
Citation771 N.E.2d 303,147 Ohio App.3d 513,2002 Ohio 1156
PartiesANDERSON, Appellee, v. ANDERSON, Appellant.
CourtOhio Court of Appeals

Joseph I. Tripodi, New Philadelphia, for appellee.

Arnold F. Glantz, Canton, for appellant.

WAITE, Judge.

{¶ 1} This timely appeal arises from the parties' divorce decree. Colleen M. Anderson ("appellant") takes issue with the trial court's decision to award custody of their two children to Robert Keith Anderson ("appellee"), and with the order that no unrelated male companion would be allowed to be present during her visitation periods. Appellant also questions the valuation of the marital residence and the child support computation. As the record before us does not support a finding that there would be a direct adverse impact on the children if an unrelated male was present during visitation, this part of the divorce decree is reversed and remanded for further proceedings. The record does support the trial court's judgment as to the remaining assignments of error.

{¶ 2} The parties were married on July 28, 1990. Two children were born during the marriage: Kourtney Anderson, born on February 11, 1991, and Brandon Anderson, born on December 30, 1994. During the marriage, appellant also had custody of Frank Gairo, a teenage son from a previous marriage.

{¶ 3} On January 4, 2000, appellee filed a complaint in divorce in the Carroll County Court of Common Pleas. Appellee sought custody of Kourtney and Brandon. On February 3, 2000, appellant filed her answer. On April 11, 2000, appellant filed an amended answer, in which she admitted appellee's allegation that she had committed adultery.

{¶ 4} The case came to trial on June 20, 2000, and was continued to July 25, 2000.

{¶ 5} After trial, each party filed a proposed written statement of facts and conclusions of law, including separate copies of the child support calculation worksheet contained in former R.C. 3113.215(E).

{¶ 6} On February 20, 2001, the trial court filed it opinion, judgment entry, and decree of divorce. The court awarded custody of the children to appellee, with standard visitation rights being granted to appellant. The court, though, prohibited Ken Joseph, "or any other unrelated male individual," from being present during visitation. Ken Joseph was appellant's supervisor during her employment as an emergency medical technician.

{¶ 7} The court found that the marital residence was worth $95,000. The court also ordered appellant to pay monthly child support of $155 per child.

{¶ 8} Appellant filed this timely appeal on March 16, 2001.

{¶ 9} Appellant presents four assignments of error in this appeal.

{¶ 10} The first two assignments of error are based on the same legal arguments and will be treated together:

{¶ 11} "The trial court erred in prohibiting Ken Joseph `or any other unrelated male individual' to be present during appellant's companionship with her children.

{¶ 12} "The trial court erred in awarding custody of the children to appellee where the court failed to consider if appellant's extramarital affairs had a `direct adverse impact' on them."

1. Visitation.

{¶ 13} Appellant argues that the trial court overstepped its authority by including the following language in the February 20, 2001 entry: "[Appellant] shall not permit Ken Joseph, or any other unrelated male individual, to be present during her periods of companionship with the children." Appellant contends that this part of the visitation order is the trial court's method of punishing her for the alleged immorality of her relationships with Ken Joseph and other men. Appellant argues that "[a] court's inquiry into the moral conduct or standards of a custodial parent is limited to a determination of the effect of such conduct on the child." Whaley v. Whaley (1978), 61 Ohio App.2d 111, 15 O.O.3d 136, 399 N.E.2d 1270, paragraph three of syllabus. Appellant asserts that a number of Ohio's courts have adopted the "direct adverse impact" test in child custody cases, which states: "The direct adverse impact test allows the court to consider moral principles, but only in relation to the direct or probable effect of the parent's conduct on the child." Rowe v. Franklin (1995), 105 Ohio App.3d 176, 180, 663 N.E.2d 955.

{¶ 14} Appellant argues that Whaley and Rowe also apply to court orders affecting visitation rights. Appellant relies exclusively on cases from foreign jurisdictions in making this contention. See Draper v. Draper (Fla.App.1980), 403 So.2d 989; Gallo v. Gallo (1981), 184 Conn. 36, 440 A.2d 782; In re Marriage of Hanson (1983), 112 Ill.App.3d 564, 68 Ill.Dec. 268, 445 N.E.2d 912. Appellant argues that there is no evidence in the record tending to show that her relationship with Ken Joseph, or with any other man, had any adverse impact on her children. Appellant contends that even the custody evaluation produced by social worker Catherine Ries, which recommended granting custody to appellee, did not recommend any restrictions on male visitors being present during appellant's visitation with her children.

{¶ 15} Appellant further argues that the prohibition on any unrelated male visitors being present during visitation is impossibly broad. Appellant cites two cases from foreign jurisdictions in support. Moreau v. Moreau (La.App.1982), 422 So.2d 734; Dile v. Dile (1981), 284 Pa.Super. 459, 426 A.2d 137. Appellant argues that the effect of the order is that no visitation can take place with male casual friends, ministers, doctors, church members, school teachers, appellant's attorney, or even with appellee, because he is no longer related to appellant after the divorce.

{¶ 16} Appellee presents no arguments directly rebutting appellant's contention that the "direct adverse impact" standard is a proper legal standard to use in evaluating the visitation order. Instead, appellee maintains that (1) visitation determinations are reviewed only for abuse of the trial court's discretion; (2) neither party presented testimony as to "direct adverse impact"; (3) appellant previously agreed to exclude Ken Joseph from visitation (see 3/7/2000 pretrial judgment entry); (4) evidence was presented that appellant was often away from home during the night or for days at a time; and (5) Frank Gairo, appellant's son by a previous marriage, was threatened by Ken Joseph. Appellee concludes that these facts support that the trial court did not abuse its discretion in the visitation order.

{¶ 17} Appellant's assignment of error has merit, in part, because the order prohibiting visitation while any unrelated male visitor is present is not supported by the record and because it is not clear that the proper legal standard was applied.

{¶ 18} The standard of review for matters concerning visitation rights is whether the trial court committed an abuse of discretion. Booth v. Booth (1989), 44 Ohio St.3d 142, 144, 541 N.E.2d 1028; Corple v. Corple (1997), 123 Ohio App.3d 31, 36, 702 N.E.2d 1234. An abuse of discretion connotes that the trial court's attitude was unreasonable, arbitrary or unconscionable. Blakemore v. Blakemore (1983), 5 Ohio St.3d 217, 219, 5 OBR 481, 450 N.E.2d 1140. In order to further the child's best interest, the trial court has the discretion to limit or restrict visitation rights. Jannetti v. Nichol (May 12, 2000), Mahoning App. No. 97 CA239, 2000 WL 652540. "This includes the power to restrict the time and place of visitation, to determine the conditions under which visitation will take place and to deny visitation rights altogether if visitation would not be in the best interests of the child." Id.

{¶ 19} The visitation rights of the non-residential parent are governed by R.C. 3109.051. Braatz v. Braatz (1999), 85 Ohio St.3d 40, 44, 706 N.E.2d 1218. A trial court must consider the fifteen factors listed in R.C. 3109.051(D) and has the discretion to then determine a visitation schedule and visitation restrictions which are in the best interests of the child.

{¶ 20} There are numerous cases adopting the "direct adverse impact" test as appropriate in child custody determinations, and we have applied the test in this appellate district. See, e.g., Layne v. Layne (Nov. 5, 2001), Brown App. No. CA2001-01-001 (12th District), 2001 WL 1359784; Dilworth v. Dilworth (1996), 115 Ohio App.3d 537, 541, 685 N.E.2d 847 (2d District); Rowe, supra, 105 Ohio App.3d at 180, 663 N.E.2d 955 (1st District); Figley v. Figley (Nov. 14, 1990), Columbiana App. No. 90-C-31 (7th District); Whaley, supra, 61 Ohio App.2d at 119, 15 O.O.3d 136, 399 N.E.2d 1270 (4th District). The Ohio Supreme Court has cited the doctrine with approval, but has not yet addressed whether it applies to visitation orders. See In re Adoption of Charles B. (1990), 50 Ohio St.3d 88, 92, 552 N.E.2d 884 ("direct adverse impact" test is relevant in determining whether adoption should be approved where adoptive parent was having homosexual relationship); In re Burrell (1979), 58 Ohio St.2d 37, 39, 12 O.O.3d 43, 388 N.E.2d 738 (in the absence of evidence showing a detrimental impact, the fact that the mother had a live-in boyfriend did not warrant the state in removing the child from parental custody without a showing of detrimental impact).

{¶ 21} We have found only one case in Ohio that has applied the "direct adverse impact" test to a visitation order. Conkel v. Conkel (1987), 31 Ohio App.3d 169, 31 OBR 335, 509 N.E.2d 983. In Conkel, the Fourth District Court of Appeals held that a homosexual father could not be denied overnight visitation with his two sons on the basis of his homosexuality, absent evidence that visitation would be harmful to the boys or that the boys would be psychologically or physically harmed. Id. at 172, 31 OBR 335, 509 N.E.2d 983. "[W]hether the issue is custody or visitation, before depriving the sexually active parent of his...

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