In re Lorine C. Longwell Nka, Hurd

• Decision Date: 30 August 1995
• Docket Number: 95-LW-1309,94 CA 006006 and 94 CA 006007
• Parties: IN THE MATTER OF: LORINE C. LONGWELL nka, HURD, Appellant and DONALD G. LONGWELL, Appellee C.A NOS. 94 CA 006006 and 94 CA 006007.
• Court: United States Court of Appeals (Ohio)

IN THE MATTER OF: LORINE C. LONGWELL nka, HURD Appellant

and

DONALD G. LONGWELL, Appellee Nos. 94 CA 006006, 94 CA 006007.

95-LW-1309 (9th)

Court of Appeals of Ohio, Ninth District Lorain

August 30, 1995

APPEALS FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS DOMESTIC RELATIONS DIV. LORAIN COUNTY, OHIO CASE NO. 90NU040969.

These causes were heard upon the record in the trial court. Each error assigned has been reviewed and the following disposition made:

DECISION

HAYES Judge. (fn1)

Appellant Lorine C. Hurd (Hurd) and Appellee Donald G Longwell (Longwell) were married on March 26, 1988. One child, Donald Glen Longwell, Jr (Glen) issued from this marriage. The Lorain County Court of Common Pleas, Domestic Relations Division, per Judge David A. Basinski, granted the parties a divorce on January 3, 1991. Hurd was awarded custody of Glen. The parties' separation agreement provided that the custodial parent would not remove the child from the state of Ohio without the non-custodial parent's consent or an order from the judge granting permission to relocate. Both parties are currently remarried.

Sometime in March of 1994, Hurd and her current husband determined that they would like to relocate to Florida, ostensibly for greater job opportunities. On March 31, 1994, Hurd filed a motion in the Domestic Relations Court seeking an order modifying the prior custody and visitation decree and seeking permission to move Glen to Florida. On April 4, 1994, Longwell filed a motion for a change in custody. On April 18, 1994, Hurd moved the court to interview Glen in order to ascertain his wishes and concerns regarding custody pursuant to R.C. 3109.04(B). The court granted this motion on May 5, 1994. A contested hearing on the matter was held between October 25, 1994, and November 4, 1994. Longwell produced a substantial amount of evidence indicating that Hurd and her new husband both smoked marijuana in front of Glen, repeatedly interfered with Longwell's visitation rights, and that Hurd inadequately supervised the child. Additionally, the court conducted a private, in chambers interview with Glen on October 26, 1994.

In an initial journal entry dated November 4, 1994, Judge Basinski held that: (1) sufficient cause existed to deny Hurd's motion to relocate; and (2) a change of circumstances had occurred such that Longwell's motion be granted. Accordingly, he ordered that Longwell be designated the custodial parent, and he further ordered the transcript of his in-chambers interview with Glen be sealed.

Hurd takes exception to the Judge's various findings and orders, and has appealed. She asserts four assignments of error.

Assignment of Error I

A. "The trial court erred in not determining the reasoning ability of the five year old child as mandated by Ohio Revised Code section 3109.04(B)(2)(b)."

B. In her Brief, Hurd further alleges that the trial court subsequently erred in failing to set forth findings of fact regarding the determination of the child's reasoning ability. We will consider each of these arguments in turn.

A.

Hurd requested that the trial court interview Glen in order to discover which party he most desired to live with. Once the court secluded the child in chambers, R.C. 3109.04(B)(2)(b) sets forth a number of preliminary matters the court was required to resolve before it could actually question Glen as to his preferences. The statute requires that the court immediately determine if Glen, only five years old at the time of the interview, had sufficient reasoning ability with which to formulate and/or express wishes and concerns regarding custody. If, after this preliminary inquiry, the court were to determine that Glen was incapable of intelligently forming or expressing his wishes, then there would be no point to proceed with the interview in a vain attempt to discover them, let alone to use them as a factor in deciding which parent would have custody. In this event, the court would be required to terminate the interview. If, on the other hand, the court found that Glen possessed an adequate level of reasoning, the interview would continue.

Hurd essentially contends that the trial court failed to make the statutorily mandated inquiry into Glen's reasoning abilities, and that this failure constitutes reversible error. Hurd later concedes that "[w]ithout access to the transcript [of the court's in-camera interview with Glen], she is unable to ascertain whether [the] appropriate analysis was rendered." Brief for Appellant, at 7. We have reviewed the transcript and are satisfied that Judge Basinski adequately probed Glen's reasoning abilities by asking him a number of questions appropriate to assessing the mental development of a five year old. Accordingly, Hurd's first argument in support of her first assignment of error lacks merit.

B.

The court did not enter findings of fact regarding its assessment of Glen's reasoning abilities. Hurd contends that this is reversible error. As Longwell has correctly pointed out, R.C. 3109.04(B)(2)(b) only requires written findings of fact when the court determines during the initial phase of the interview that: (1) "special circumstances exist; and (2) those circumstances have convinced the court that it would not be in the bat interest of the child to continue and discover the child's wishes and concerns regarding custody. Here, the court implicitly found that no "special circumstances" exist such that Glen's wishes and concerns regarding custody should be ignored for his own good. In this situation, it was well within the trial court's discretion to allow Glen to testify. Wade v. Wade (1983), 10 Ohio App.3d 167, 461 N.E.2d 30. Hurd has failed to identify, and we have failed to find, an abuse of that discretion warranting reversal. Having properly decided that no "special circumstances" existed, the court was therefore not required under R.C. 3109.04 to enter written findings of fact as to the results of the preliminary in-camera inquiries.

Hurd argues alternatively that Evid. 601, which requires trial courts to determine that a child under ten is competent to testify before allowing the testimony to reach the trier of fact, requires the court to enter written findings of fact and conclusions of law. In the syllabus of State v. Frazier (1991), 61 Ohio St.3d 247, 574 N.E.2d 483, certiorari denied (1992),___ U.S.___ 117 L.E.2d 629, the Supreme Court of Ohio clarified what a trial court must consider in making a competency determination under Evid.R. 601(A):

In determining whether a child under ten is competent to testify, the trial court must take into consideration (1) the child's ability to receive accurate impressions of fact or to observe acts about which he or she will testify, (2) the child's ability to recollect those impressions or observations, (3) the child's ability to communicate what was observed, (4) the child's understanding of truth and falsity and (5) the child's appreciation of his or her responsibility to be truthful.

The Court later explained that "[a] trial court is not required, while making a competency determination, to make express findings on the considerations outlined in Frazier. Such a requirement would unduly burden our trial courts with unnecessary formality. Instead, the trial court is merely required to consider the Frazier factors while making the competency determination." Schulte v. Schulte (4994), 71 Ohio St.3d 41. 43, 641 N.E.2d 719, 721 (emphasis in original).

In light of our analysis of the statute and the Supreme Court's opinion in Schulte, Hurd's second argument in support of her first assignment of error lacks merit. Because Hurd's first argument was shown above to also be meritless, we conclude that no error occurred within the judge's chambers. Hurd's first assignment of error is overruled.

Assignment of Error II

"The trial court erred in sealing the transcript of the in camera interview with the minor child."

We note initially that R.C. 3109.04 does not specifically state whether the parents of a child that is the subject of a custody dispute have a right to obtain a copy of a transcript of an in-camera discussion between the judge and the child. However, certain passages of the Revised Code shed some light on the issue.

The first sentence of R.C. 3109.04(B)(3) reads: "[n]o person shall obtain or attempt to obtain from a child a written or recorded statement or affidavit setting forth the child's wishes and concerns regarding the allocation of parental rights and responsibilities concerning the child." During the in-camera interview, the child supposedly makes known to the judge his or her wishes and concerns regarding custody. A transcript can be seen as a written or recorded statement setting forth the child's wishes and concerns. Hurd's attempt to gain access to the transcript could be interpreted as an attempt to obtain this statement in contravention of R.C. 3109.04(B)(3). If the analysis were to end here, it would appear that the statute expressly denies that parents have a right to obtain the transcript. However this first sentence must be read within the context of the second, which states: "[n]o court, in determining the child's best interest for purposes of making its allocation of the parental rights and responsibilities for the care of the child, or for purposes of resolving any issues related to the making of that allocation, shall accept or consider a written or recorded statement or affidavit that purports to set forth the child's wishes and concerns regarding those matters." It would appear that the legislature intended to prohibit trial courts from relying on potentially fraudulent statements or affidavits produced by the parents. Instead, courts are to obtain the child's wishes and concerns...