Bechtol v. Bechtol

• Decision Date: 14 February 1990
• Docket Number: No. 88-1922,88-1922
• Citation: 550 N.E.2d 178,49 Ohio St.3d 21
• Parties: BECHTOL, Appellee, v. BECHTOL, Appellant.
• Court: Ohio Supreme Court

Page 21

49 Ohio St.3d 21

550 N.E.2d 178

BECHTOL, Appellee, v. BECHTOL, Appellant.

No. 88-1922.

Supreme Court of Ohio.

Submitted Dec. 6, 1989.

Decided Feb. 14, 1990.

Syllabus by the Court

Where an award of custody is supported by a substantial amount of credible and competent evidence, such an award will not be reversed as being against the weight of the evidence by a reviewing court. (Trickey v. Trickey [1952], 158 Ohio St. 9, 47 O.O. 481, 106 N.E.2d 772, approved and followed.)

Joseph Bechtol, appellant, and Nancy Bechtol, appellee, were married in 1980. Their son, Joseph Patrick, the subject of this custody dispute, was born in 1981. Nancy Bechtol filed a divorce complaint on November 3, 1986. Both Nancy and Joseph Bechtol sought custody of their son, and Nancy was given temporary custody. The domestic relations court issued a divorce decree on October 27, 1987, but the hearing on custody and property division did not take place until December 1987.

Nancy Bechtol testified at the hearing that she is a recovering alcoholic, and that she has not had a drink since 1985. Joseph Bechtol indicated that he has decreased his consumption of alcohol since the early days of the marriage. During the marriage, Nancy was the child's primary caregiver. Joseph Bechtol spent a great deal of time with his son after the marriage broke up. Dr. Charles Handel, a court-appointed psychologist, testified that either party is capable of being the custodial parent. He said his decision was a very close call, but he expressed a preference for Joseph Bechtol.

On February 11, 1988, the trial court awarded custody to Joseph Bechtol and ordered Nancy Bechtol to pay child support. The court also awarded Nancy Bechtol $3,600 in lump-sum sustenance alimony, payable in twelve monthly installments of $300.

Nancy Bechtol appealed the award of custody and the terms of visitation. Joseph Bechtol cross-appealed the award of alimony. The Court of Appeals for Clermont County found that the trial court abused its discretion in granting custody to Joseph Bechtol, because it failed to accord appropriate weight to the mother's role as primary caregiver. The court of appeals maintained that it is in the child's best interests to remain with the parent who has been his primary caregiver.

The court of appeals affirmed the trial court's award of sustenance alimony. In light of the disparity of income between the Bechtols and the trial court's consideration of the factors listed in R.C. 3105.18, the court of appeals found no abuse of discretion.

Joseph Bechtol appeals the court of appeals' reversal of the custody award and its affirmance of the sustenance alimony award.

The cause is now before this court pursuant to the allowance of a motion to certify the record.

Barbeau & Hake and Carol C. Hake, Batavia, for appellee.

Kennedy & Zugelter and Michael A. Kennedy, Bucyrus, for appellant.

WRIGHT, Justice.

As noted in the facts above, the court of appeals indicated the basis for its reversal was the trial court's abuse of discretion in awarding custody to Joseph Bechtol by failing to give proper weight to the fact that Nancy Bechtol was the child's primary caregiver. Our review of the record leads us to a contrary conclusion.

There is no doubt that in this case either parent would be a fit person for custody of the child involved. A finding for either parent could be premised upon this record. Under R.C. 3109.04, the domestic relations court decides to whom the care, custody and control of a minor child shall be awarded, giving paramount consideration to the best interests of the child. See Charles v. Charles (1985), 23 Ohio App.3d 109, 23 OBR 175, 491 N.E.2d 378. In any determination of this nature, the trial court must consider all relevant factors, including but not limited to those enumerated in R.C. 3109.04(C)(1) through (5):

"(1) The wishes of the child's parents regarding his custody;

"(2) The wishes of the child regarding his custody if he is eleven years of age or older;

"(3) The child's interaction and interrelationship with his parents, siblings, and any other person who may significantly affect the child's best interest;

"(4) The child's adjustment to his home, school, and community;

"(5) The mental and physical health of all persons involved in the situation."

The court of appeals properly noted that in Ohio a trial court in forming a custody order should give due consideration to which parent performed the role as primary caregiver. However, the error here is the court of appeals' finding that the trial court did not properly consider this factor. In its findings of fact the trial court specifically noted that " * * * the Plaintiff [Nancy Bechtol] provided services as a homemaker and child caretaker [caregiver] during the marriage. * * * " The trial court also noted that Nancy Bechtol did not work outside the home during the marriage and only recently had become employed.

The court of appeals found that it would be " * * * ill advised and imprudent to disrupt the pattern to which the child has become accustomed." Even assuming this to be the case, this conclusion falls short of the oft-repeated test that a finding of abuse of discretion must imply a decision that is " ' * * *...