Gardini v. Moyer, 90-764

• Decision Date: 21 August 1991
• Docket Number: No. 90-764,90-764
• Citation: 61 Ohio St.3d 479,575 N.E.2d 423
• Parties: , 68 Ed. Law Rep. 801 GARDINI, f.k.a. Moyer, Appellee, v. MOYER, Appellant.
• Court: Ohio Supreme Court

Page 479

61 Ohio St.3d 479

575 N.E.2d 423, 68 Ed. Law Rep. 801

GARDINI, f.k.a. Moyer, Appellee, v. MOYER, Appellant.

No. 90-764.

Supreme Court of Ohio.

Submitted May 14, 1991.

Decided Aug. 21, 1991.

SYLLABUS BY THE COURT

Pursuant to former R.C. 3109.04(B)(1)(c), a party seeking a modification of cus tody must show that some action by the custodial parent presently endangers the child or, with a reasonable degree of certainty, will manifest itself and enda nger the child in the future if the child is not removed from his or her presen t environment immediately.

On March 7, 1985, plaintiff-appellee, Lorraine Gardini, formerly known as Lorraine M. Moyer, and defendant-appellant, Robert J. Moyer, were divorced by a decree and judgment of the Division of Domestic Relations of the Court of Common Pleas of Geauga County which incorporated their separation agreement. Under the terms of the separation agreement, appellee received custody of the parties' three children: Andrew, born December 6, 1976; Audrey, born October 27, 1978; and Brian, born March 31, 1981.

The Moyer children had been enrolled in parochial school when they started kindergarten. They then attended parochial elementary school throughout the first, third, and fifth grades.

On or about October 1, 1987, appellee stopped paying her monthly tuition installments to her children's parochial school, Notre Dame Elementary. Although there appeared to be no delinquency on the appellant's part for child support, ¹ appellee decided it was her "God-given right" to home school her children in order to share time, learn and grow with them. ² Consequently, appellee decided to become unemployed in order to begin teaching her home schooling program.

On or before May 3, 1988, appellee began the process of applying for home schooling certification by receiving papers from the Geauga County School Board of Education ("board"). However, the appellant was not informed of appellee's plans until sometime in August 1988. According to the appellant, he felt that appellee's decision to provide home schooling was wrong and contrary to everything he had been brought up to believe in terms of education.

Appellant thereafter filed a motion for a change of custody. At a December 30, 1988 hearing on the motion, the parties to this action introduced their "[s]tipulations concerning Ray Blair's testimony." Blair, it seems, was the superintendent of the board at the time appellee began her home schooling program. The parties' stipulation stated in part that the Moyer children were participating in home schooling pursuant to the guidelines established by the board. Further, appellee was not qualified to teach within the board's jurisdiction. And, there was no way of evaluating an individual parent's ability to be a home schooling teacher.

Appellee testified that she had only one year of formal education taken at a community college. Also, appellee intended to be her children's only teacher since it was her "God-given right to home school * * * [her] children, to share time with them, learn with them, [and] grow with them."

At the December 30 hearing, psychologists testified concerning the Moyer children's environment and as to any present or potential harm to the children by appellee's decision to conduct her home schooling program. Nancy J. Huntsman, Ph.D., a court-appointed psychologist, versed in the area of child development, testified that the effects upon children, like the Moyer children, in keeping them out of institutionalized schooling are losses in "socialization" and "normalization" development. Furthermore, Dr. Huntsman testified that it was in the best interests of the children to be educated outside the home due to the potential harmful effects on the children caused by their conflicting loyalties to their custodial (appellee) and noncustodial (appellant) parents. Apparently, the children would begin to identify more closely with the custodial parent due to the inordinate amount of time they would be spending with her in the program.

With respect to appellee's motivation for the home schooling program, Dr. Huntsman concluded in her report to the court that:

"I am convinced that this decision is financially motivated, as well as being motivated by a desire/need to construct a close nuclear family that justifies and supports her [Mrs. Gardini's] values around homemaking and motherhood. I view the decision as an aberration, however, since in all other respects, the outcome of Mr. [sic ] Gardini's parenting to date has been excellent. That is to say, all three youngsters are doing well aside from their over-identification with her side of the conflict with their father. In my mind, there is no question that Mrs. Gardini bears the bulk of the responsibility for the conflict, much of which could be resolved by a simple understanding that the children's relationships with their father, which translate into '[t]ime with their father' is inviolate and more important than any other activity. * * * "

Susan Variakojis, a former school psychologist and presently an administrator for Westlake Public Schools, testified that her school system offered a wide range of quality instruction to its pupils.

Dr. Sam Peavey, Professor Emeritus from the School of Education at the University of Louisville, testified that he found appellee's home schooling curriculum to be excellent. Further, Dr. Peavey stated appellee had the necessary foundation to run a very successful home schooling program.

Appellant testified that it was his desire that the children be educated in a school system. And, if he were made custodian of his children they would attend the Westlake school system.

The trial court made the following determinations pertinent to this appeal in its judgment entry:

"5) The mother states that it is her 'God-given' right to teach her children at home. She has not given any other reason for her actions. She has no other qualifications as a teacher.

"6) The defendant-father did not give his permission to take the children out of school.

"7) The plaintiff-mother presented the testimony of one witness (other than her own) who stated that home schooling would benefit the children more than public schooling. The court finds this conclusion to be without basis in fact and, considering its source, quite unreliable.

"8) The children and both parents have been examined by a specialist in the field of child psychology. She believes that the children will lose academically and socially because they have been withdrawn from school and that the loss will be all the more severe for the reason that the parents are divorced and home education will be one-sided. She believes that the decision of the mother to withdraw the children from school is selfishly motivated, inappropriate and unconscionable. The court shares this opinion and finds that the welfare of the children will be adversely affected should they remain in the custody of their mother under these circumstances.

"9) The defendant-husband can provide to the children the love, care and environment they require, and he has the facilities and desire to assume custody.

"Accordingly, the court concludes that a change has occurred in the circumstances of the children and that a change of custody is necessary to serve the best interest of the children; that the children's present environment endangers significantly their mental, emotional and social development; and that the harm likely to be caused by a change of environment is outweighed by the advantages of such change to the children.

"Custody of the children is, therefore, granted to the defendant-father with liberal visitations to the plaintiff-mother. It is so ordered and judgment is entered accordingly."

The court of appeals reversed the trial court's decision and stated, inter alia, that appellant failed to meet his burden of proof in showing that a significant present environmental harm exists with the children in appellee's custody. Accordingly, the appellate court found that the trial court abused its discretion as there was no evidence, as a matter of law, which was presented at trial that would satisfy the dictates of former R.C. 3109.04(B)(1)(c).

This cause is before the court upon the allowance of a motion to certify the record.

Robert R. Melnick, Youngstown, for appellee.

Thomas & Boles and Edgar H. Boles, Chagrin Falls, for appellant.

HOLMES, Justice.

The central issues presented in this case are whether former R.C. 3109.04(B)(1)(c) (now found in R.C. 3109.04[E][a][iii] ) provides for a modification of custody where the child's physical health or his mental, moral, or emotional development will be endangered by an environmental condition presented by the custodial parent. Second, we must determine, upon all facts and circumstances presented to the trial court in this matter, whether or not the trial court abused its discretion in its order changing the custody of these children. For the reasons that follow, we answer the first query in the affirmative and the second in the negative.

Appellant asserts that to warrant a change of custody, former R.C. 3109.04(B)(1)(c) does not require actual present harm inflicted upon a child from his present environment. We agree.

Former R.C. 3109.04(B) provided in pertinent part:

"(1) * * * [T]he court shall not modify a prior custody decree 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...