George Buckingham v. Gail Lee Buckingham, 83-LW-2876
| Decision Date | 04 August 1983 |
| Docket Number | 83-LW-2876,45415 |
| Parties | GEORGE BUCKINGHAM, JR., Plaintiff-Appellant v. GAIL LEE BUCKINGHAM, Defendant-Appellee |
| Court | Ohio Court of Appeals |
Civil appeal from Common Pleas Court Case No. D-126067.
For Plaintiff-Appellant: Joyce E. Barrett, Attorney at Law, 800 Standard Building, Cleveland, Ohio 44113.
For Defendant-Appellee: John A. Demer, Jr., Esq., 75 Public Square, Suite 1414, Cleveland, Ohio 44113.
JOURNAL ENTRY AND OPINION
George Buckingham, plaintiff-appellant, appeals from a divorce decree awarding to defendant-appellee, Gail Buckingham, the custody of the parties' two minor children.
On April 27, 1982, judgment was entered in the case sub judice granting plaintiff a divorce and ordering that custody of Holly and Tamara, eleven and seven years old respectively, be granted to defendant.
Plaintiff appeals assigning three errors.
This assignment of error is without merit.
Plaintiff filed a timely request for findings of fact and conclusions of law on April 13, 1982.
On July 9, 1982, after appellant's notice of appeal had been filed, the trial court ordered counsel for the parties to prepare and submit to the court by July 23, 1982 proposed findings of fact and conclusions of law. The court may so direct counsel pursuant to both Civ. R. 52 and Local Rule 19(B) of the Cuyahoga County Court of Common Pleas.
Civ. R. 52 provides in pertinent part as follows:
"When a request for findings of fact and conclusions of law is made, the court, in its discretion, may require any or all of the parties to submit proposed findings of fact and conclusions of law; however, only those findings of fact and conclusions of law made by the court shall form part of the record."
Local Rule 19(B) sets forth a similar requirement.
It appears from the record that no such proposed findings and conclusions were submitted to the trial court.
This court has held that where a party requesting findings of fact and conclusions of law has failed to prepare proposed findings and conclusions when directed, that party is not entitled to have findings and conclusions entered by the trial court. Keene v. Ohio Title Corporation (Feb. 3, 1972), Cuyahoga App., No. 30972, unreported; see also Smakula v. Smakula (April 14, 1977), Cuyahoga App., No. 36273, unreported. Plaintiff may therefore, by his inaction, be held to have waived any objection to the failure of the court to file findings and conclusions.
However, plaintiff's counsel suggested at oral argument that the trial court was without jurisdiction to order plaintiff to file proposed findings and conclusions because a notice of appeal to this court had already been filed.
While it is the general rule that a trial court is without jurisdiction to take action in a case while an appeal is pending, an exception to this rule is where the action taken is in aid of the appeal. Majnaric v. Majnaric (1975), 46 Ohio App. 2d 157, 159. Furthermore, the trial court retains all jurisdiction which is not inconsistent with the jurisdiction of the appellate court to review, affirm, modify, or reverse the final order from which the appeal was perfected. In re Kurtzhalz (1943), 141 Ohio St. 432, syl. 2; Goode v. Wiggins (1861), 12 Ohio St. 341; State, ex rel. Cullinah, v. Bd. of Elections (1968), 28 Ohio App. 2d 281.
The purpose of requiring a party to file proposed findings and conclusions is to assist the trial court in preparing its own findings and conclusions. Since such an order will serve to clarify issues for appellate review, it clearly must be considered to be an action taken in aid of the pending appeal. Furthermore, such action is not inconsistent with the jurisdiction of the appellate court to review the final order before it. Plaintiff's argument is therefore without merit.
Accordingly, plaintiff's first assignment of error is overruled.
This assignment of error is not well taken.
Plaintiff contends that the award of custody to the defendant was against the manifest weight of the evidence.
In making a custody determination, a court must determine what is in the best interests of the child. In so determining, the court must consider the factors set forth under R.C. 3109.04(C):
Evidence was presented in the court below which would have supported a custody award to either parent.
In plaintiff's favor was the following evidence: testimony that defendant had a difficult time in disciplining the older daughter Holly; Holly's statement to the court that she preferred to live with her father; opinion evidence by Esther Langlois, court psychologist, that it would be better for Holly if she were to remain with her father and that the two girls should not be separated; testimony by Rev. Richard Rustad of the Strongsville United Methodist Church that plaintiff is an avid churchgoer and has desirable paternal characteristics; testimony by Charlene Bolek, Holly's grade school teacher, that plaintiff took an interest in Holly's progress in school and that Holly did not get along well with her mother; and testimony by several witnesses that Holly did not like the fact that her mother has been dating a former male acquaintance.
It should be noted that Ms. Langlois' recommendation that the children live with their father appeared to be based upon the assumption that defendant would be moving to Maryland with the girls. Ms. Langlois concluded that the best arrangement for the children would be for them to live with defendant in the marital home in Strongsville with plaintiff living nearby. (Tr. 149-150).
There was testimony to the effect that defendant projected an eventual move to Maryland where both parties' families resided. However, defendant stated that she would be willing to remain in Strongsville if it would be in the children's best interests.
In defendant's favor was the following evidence: defendant's testimony that when plaintiff is away Holly is a completely different person and not so difficult to discipline (Tr. 476); the opinion testimony of Dr. Daniel Litt, a psychologist who had therapy sessions with Holly on a regular basis, that Holly would be better off living with her mother because Holly needs a female model with whom to identify, that Holly was not mature enough to make a decision as to which parent she would be better off living with, and that Holly had been trying for a long time to work through the struggle she was having with her mother; the testimony of Patricia Monosky, a friend of the parties, that plaintiff expressed to her his belief that a custody battle was imminent and that he therefore intended to behave himself, e.g. by becoming a regular churchgoer and giving up his tennis playing with a female friend (Tr. 343); testimony by defendant and Ms. Monosky that plaintiff was often not at home during the evenings and even into the morning hours, whether because of work demands or tennis-playing activities.
Evidence was adduced from which it could be determined that both parents loved their children.
However, the trial court could have concluded that the plaintiff's social and work demands, which kept him away from home so often, would make him a less desirable custodian of the children than defendant. The trial court could also have accepted the conclusion expressed by Dr. Litt that Holly needed a female role model and that it would be in her best interests to work out her problems with her mother.
Furthermore, the court could have accepted Ms. Langlois' conclusion that the best arrangement would be for the children to live with the defendant, while rejecting that part of her rcommendation to the effect that a move to Maryland should tip the scales in favor of the plaintiff. All of the children's relatives resided in Maryland and such individuals could serve as a means of social support for the children. Moreover, the trial court could have concluded that the children were flexible enough to adapt to a new environment if necessary.
Finally, expert testimony supported the conclusion that the two children should not be separated.
The discretion of the trial court in proceedings to determine custody is very broad. As the Ohio Supreme Court indicated in Trickey v Trickey (1952), 158 Ohio St. 9, 13:
See also Thrasher v. Thrasher (1981), 3 Ohio App. 3d 210.
Where a judgment is supported by some competent credible evidence an appellate court will not reverse it as being against the manifest weight of the evidence. C.E. Morris Co. v. Foley Construction...
To continue reading
Request your trial