In re P.A.R., Case NO. 13CA3550
| Decision Date | 24 February 2014 |
| Docket Number | Case NO. 13CA3550 |
| Parties | IN THE MATTER OF: P.A.R., Minor Child - Custody |
| Court | Ohio Court of Appeals |
DECISION AND JUDGMENT ENTRY
APPEARANCES:
COUNSEL FOR APPELLANT:
Brigham Anderson, Anderson & Anderson, 408 Park
Avenue, Ironton, Ohio 45638
CIVIL APPEAL FROM COMMON PLEAS COURT, JUVENILE DIVISION
{¶ 1} This is an appeal from a Scioto County Common Pleas Court, Juvenile Division, judgment that denied a motion to modify custody of P.R., filed by T.S., the child's biological mother and appellant herein. Appellant raises the following assignments of error for review:
{¶ 2} Shortly after P.R.'s birth, appellees, P.R.'s paternal grandparents, filed a custody petition. When P.R. was born, appellant and P.R.'s father had abused drugs for several years and continued to do so for several years after the birth.
{¶ 3} On August 30, 2006, the trial court entered an agreed entry that awarded custody of the child to the appellees and gave appellant and P.R.'s father "reasonable visitation * * * pursuant to the standard orders of visitation of this Court." Approximately one year later, appellant and P.R.'s father had another child. Appellant has had custody of the second child since his birth.
{¶ 4} On November 7, 2011, appellant filed (1) a motion to modify the 2006 custody order; and (2) a motion to find appellees in contempt. Appellant alleged that the appellees failed to allow her to visit the child and that this failure constituted a change in circumstances. Appellant also requested the court to find appellees in contempt for failing to comply with the 2006 visitation order.
{¶ 5} On October 25, 2012, the court held a hearing to consider appellant's motions. Appellant testified that she believed that when she agreed to give the appellees custody in 2006"that nothing would have changed" regarding her right to see the child. Appellant did not think that she would receive "standard orders of visitation of the Scioto County Juvenile Court," but that she would receive the visitation "under an agreement between her and [appellees] that * * * wasn't filed." Appellant stated that through February 2012, she did not receive standard visitation. Appellant testified that in February 2012, she and the appellees agreed that appellant would have standard visitation and that since that time, she generally has been able to visit the child.
{¶ 6} Appellant further testified that since she began regular visits with the child, they have developed "a good relationship" and the child calls her "mom." She testified that she feels a "void" without the child and that P.R. and P.R.'s younger sibling should be together to eliminate "confusion." Also, P.R.'s younger sibling has "been really emotional" when P.R. leaves the visitations.
{¶ 7} Appellant testified that she believes that circumstances have changed because (1) appellant no longer uses drugs, (2) Mr. Phillips has a new job, and (3) appellees have medical issues. She also stated that the relationship she and P.R.'s younger sibling have developed with P.R. constitutes a change in circumstances.
{¶ 8} After appellant presented her evidence, appellees requested the court to dismiss appellant's motion to modify custody. In particular, the appellees asserted that appellant failed to demonstrate that any change in circumstances had occurred so as to warrant a custody modification. The trial court stated that it would take the matter under advisement.
{¶ 9} On March 29, 2013, the trial court denied appellant's motion. The court determined that the evidence did not show "that the child's or the custodian's circumstances have changed in any significant way since the child's parents agreed to relinquish custody." Thecourt explained:
The court found that the change in appellant's circumstances was "not relevant to the R.C. 3109.04(E)(1)(a) inquiry" and denied appellant's motion to modify custody.
{¶ 10} The trial court also denied appellant's contempt motion as it found the evidence "far more conflicting and confusing than clear and convincing." The court explained: "[F]or the last eight months [appellant] has been getting the standard visitation and before that she did not know what her visitation was and she did not know that she was getting the standard order." The court further found that appellant did not know whether appellees actually knew the visitation schedule. Consequently, the court denied appellant's motion to find appellees in contempt. This appeal followed.
{¶ 11} In her first and second assignments of error, appellant challenges the trial court's finding that a change in circumstances had not occurred. However, the two assignments of error involve different procedural issues. Nevertheless, because they involve the same substantive issue, we address them together.
{¶ 12} In her first assignment of error, appellant asserts that the trial court erred by granting appellees' motion to dismiss because the facts show that a change in circumstance had, in fact, occurred. In her second assignment of error, appellant argues that she established that achange in circumstance had, in fact, occurred, and that the court's denial of her motion to modify custody constitutes an abuse of discretion.
{¶ 13} Appellant argues that the following facts constitute a change in circumstances: (1) appellant has been drug-free for over two years, she maintains full-time employment, and she has a stable home; (2) appellees have "serious health issues;" (3) Mr. Phillips was convicted of theft in 2007; and (4) the child has developed "a strong relationship with both her mother and her brother." Appellant also claims that the appellees consistently denied her visitation with the child and that this denial constitutes a change in circumstances.
{¶ 14} A challenge to a decision to deny a Civ.R. 41(B)(2)1 motion is, in essence, a challenge to the weight of the evidence. Civ.R. 41(B)(2) provides:
After the plaintiff, in an action tried by the court without a jury, has completed the presentation of the plaintiff's evidence, the defendant, * * *, may move for a dismissal on the ground that upon the facts and the law the plaintiff has shown no right to relief. The court as trier of the facts may then determine them and render judgment against the plaintiff or may decline to render any judgment until the close of all the evidence.
When a trial court rules on a Civ.R. 41(B)(2) motion, the court must weigh the evidence, resolve any conflicts, and render judgment in the defendant's favor if the plaintiff has shown no right torelief. Ramco Specialties, Inc. v. Pansegrau, 134 Ohio App.3d 513, 520, 731 N.E.2d 714 (1998). "Where plaintiff's evidence is insufficient to sustain plaintiff's burden in the matter, the trial court may dismiss the case." In re Estate of Fugate, 86 Ohio App.3d 293, 297, 620 N.E.2d 966 (4th Dist. 1993). A reviewing court will not reverse a dismissal pursuant to Civ.R. 41(B)(2) unless the trial court's decision is incorrect as a matter of law or is against the manifest weight of the evidence. Johnson v. Tansky Sawmill Toyota, 95 Ohio App.3d 164, 167, 642 N.E.2d 9 (1994).
{¶ 15} When an appellate court reviews a trial court's custody decision under the manifest weight of the evidence standard of review, the court "'"weighs the evidence and all reasonable inferences, considers the credibility of witnesses and determines whether in resolving conflicts in the evidence, the [fact-finder] clearly lost its way and created such a manifest miscarriage of justice that the [judgment] must be reversed * * *."'" Eastley v. Volkman, 132 Ohio St.3d 328, 2012-Ohio-2179, 972 N.E.2d 517, ¶20, quoting Tewarson v. Simon, 141 Ohio App.3d 103, 115, 750 N.E.2d 176 (9th Dist.2001); State v. Thompkins, 78 Ohio St.3d 380, 387, 678 N.E.2d 541 (1997).
{¶ 16} Furthermore, when reviewing evidence under the manifest weight of the evidence standard, an appellate court generally must defer to the fact-finder's credibility determinations. Eastley at ¶21. As the Eastley court explained:
Id., quoting Seasons Coal Co., Inc. v. Cleveland, 10 Ohio St.3d 77, 80, 461 N.E.2d 1273 (1984), fn.3, quoting 5 Ohio Jurisprudence 3d, Appellate Review, Section 60, at 191-192 (1978).
{¶ 17} Additionally, deferring to the trial court on matters of credibility is "crucial in a child custody case, where there may be...
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