In re Twana G. Stiffler, 94-LW-2596

• Decision Date: 29 September 1994
• Docket Number: 94 CA 841,94-LW-2596
• Parties: IN THE MATTER OF: TWANA G. STIFFLER, Petitioner-Appellant and JOHN R. STIFFLER, Petitioner-Appellee Case
• Court: United States Court of Appeals (Ohio)

IN THE MATTER OF: TWANA G. STIFFLER Petitioner-Appellant

and

JOHN R. STIFFLER, Petitioner-Appellee

No. 94 CA 841.

94-LW-2596 (4th)

Court of Appeals of Ohio, Fourth District Highland

September 29, 1994

COUNSEL FOR APPELLANT: Inza E. Johnson, P.O. Box 8, Wilmington, Ohio 45177.

COUNSEL FOR APPELLEE: Robert J. Judkins, Judkins and Hayes, 303 West Jefferson Street, Greenfield, Ohio 45123.

DECISION

ABELE J.

This is an appeal from a judgment entered by the Highland County Common Pleas Court designating John R. Stiffler, petitioner below and appellee herein, as the residential parent of the parties' minor child, Matthew Stiffler.

Appellant assigns the following errors:

FIRST ASSIGNMENT OF ERROR:

"THE COURT ERRORED [sic] IN FAILING TO RECOGNIZE THAT THE PARTIES HAD ENTERED INTO AN AGREEMENT CHANGING THE TERMS OF THE COURT DECREE. THIS AGREEMENT GAVE CUSTODY TO THE APPELLANT. THIS AGREEMENT CONSTITUTED A MODIFICATION OF THE CUSTODY ARRANGEMENT, THEREFORE, UNDER CURRENT CASE LAW THE COURT WAS REQUIRED TO FOLLOW THE PROVISIONS OF O.R.C. 3109.04(E) AND 3109.04(F)(1)."

SECOND ASSIGNMENT OF ERROR:

"THE COURT ERRORED [sic] IN ALLOWING THE APPELLEE TO PRESENT TESTIMONY AND EVIDENCE CONCERNING THE ABILITY OF THE APPELLANT TO CARE FOR THE MINOR CHILD WHICH OCCURRED PRIOR TO BOTH THE JOINT CUSTODY DECREE AND THE AGREED CHANGE OF CUSTODY."

THIRD ASSIGNMENT OF ERROR:

"IT WAS AN ABUSIVE DISCRETION [sic] OF THE COURT TO CONSIDER HEARSAY, SLANDER AND INNUENDO."

FOURTH ASSIGNMENT OF ERROR:

"THE COURT ERRORED [sic] IN FAILING TO CONSIDER WHO THE PRIMARY CARETAKER OF THE MINOR CHILD WAS."

FIFTH ASSIGNMENT OF ERROR:

"THE COURT[']S DECISION IS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE."

On June 19, 1990, the court issued a shared parenting decree. According to the terms of this decree, appellee and Twana G Stiffler, petitioner below and appellant herein, shared custody of their minor child Matthew equally, i.e., appellee had custody of Matthew Sunday nights through Wednesdays and appellant had custody Wednesday nights through Sundays.

In May 1991, the parties agreed that Matthew would stay with appellant during the week and every other weekend. Matthew would stay with appellee during the other weekends. The parties continued to follow this schedule, however, the parties did not file any motions with the court or seek an order modifying the original shared parenting decree.

On July 27, 1992, appellant filed a motion for sole custody and on December 31, 1992, appellee also filed a motion for sole custody. The court held a hearing and on April 2, 1993, the court entered judgment designating appellee as Matthew's residential parent and granting appellant visitation.

We must bear in mind that when reviewing domestic relations cases, appellate courts should generally apply an "abuse of discretion" standard. In Booth v. Booth (1989), 44 Ohio St.3d 142, 144, 541 N.E.2d 1028, 1030, the court wrote:

"In general, when reviewing the propriety of a trial court's determination in a domestic relations case, this court has always applied the "abuse of discretion" standard. This has been true in cases reviewing an order relating to alimony, see Blakemore v. Blakemore (1983), 5 Ohio St.3d 217, 5 OBR 481, 450 N.E.2d 1140; a division of the marital property, see Martin v. Martin (1985), 18 Ohio St.3d 292, 18 OBR 342, 480 N.E.2d 1112; or a custody proceeding, see Miller v. Miller (1988), 37 Ohio St.3d 71, 523 N.E.2d 846. Since it is axiomatic that a trial court must have discretion to do what is equitable upon the facts and circumstances of each case, see Cherry v. Cherry (1981), 66 Ohio St.2d 348, 355, 20 O.O.3d 318, 322, 421 N.E.2d 1293, 1299, it necessarily follows that a trial court's decision in domestic relations matters should not be disturbed on appeal unless the decision involves more than an error of judgment. * * * As this court has held many times, an "'abuse of discretion' * * * implies that the court's attitude is unreasonable, arbitrary or unconscionable. * * *" See, e.g. Blakemore, supra, at 219, 5 OBR at 482, 450 N.E.2d at 1142."

See, also, Gardini v. Moyer (1991), 61 Ohio St.3d 479, 575 N.E.2d 423; Bechtol v. Bechtol (1990), 49 Ohio St.3d 21, 550 N.E.2d 178.

Thus, when reviewing a trial court's judgment in a domestic relations case, an appellate court's inquiry should focus on whether the trial court abused its discretion. Absent an abuse of discretion in a trial court's decision, a reviewing court may not disturb that decision. Worthington v. Worthington (1986), 21 Ohio St.3d 73, 488 N.E.2d 150; Martin v. Martin (1985), 18 Ohio St.3d 292, 480 N.E.2d 1112; Briganti v. Briganti (1984), 9 Ohio St.3d 220, 459 N.E.2d 896; Koegel v. Koegel (1982), 69 Ohio St.2d 355, 432 N.E.2d 206; and Berish v. Berish (1982), 69 Ohio St.2d 318, 432 N.E.2d 183.

An abuse of discretion connotes more than an error of law or judgment; it implies that the court's attitude is unreasonable, arbitrary or unconscionable. In re Jane Doe 1 (1991)4 57 Ohio St.3d 135, 566 N.E.2d 1181; and Blakemore v. Blakemore (1983), 5 Ohio St.3d 217, 450 N.E.2d 1140. When applying the abuse of discretion standard, a reviewing court is not free to merely substitute its judgment for that of the trial court. In re Jane Doe 1; Berk v. Matthews (1990), 53 Ohio St.3d 161, 559 N.E.2d 1301, citing Buckles v. Buckles (1988), 46 Ohio App.3d 102, 546 N.E.2d 950.

I

In her first assignment of error, appellant asserts the trial court erred in determining the custody issue by using the "best interest of the children" standard rather than the "change in circumstances" standard. Appellant contends that the parties had modified the original shared parenting agreement and had designated appellant as the sole custodial parent. Thus, appellant reasons, the trial court should have considered appellant to be the custodial parent and the court should not have designated appellee as the residential parent absent a finding that "a change in circumstances has occurred and that a modification is in the best interest of the child." See R.C 3109.04(E)(1)(a).^[1]

Appellee disputes the existence of any informal agreement by the parties to modify the joint custody decree. Appellee notes that he did consent to Matthew living with his mother during the school year "to see how it would work out." Appellee further contends that even if such an "agreement" does exist, Ohio law does not permit parents to establish or modify custody by themselves. Appellee notes courts must decide custody issues and that courts are not bound by any agreement unless the court has approved the agreement. Thus, appellee maintains that the court correctly employed the "best interest" standard when making the custody determination.

The trial court's April 2, 1993 judgment entry did not include any reference whatsoever to the parties alleged informal agreement. The court's entry provides in pertinent part:

"The Court received evidence and arguments presented by both parties, and based upon the evidence presented and admitted on March 18, 1993 the court finds the plan for Joint Custody filed April 8, 1990 and later approved by the Court to no longer be in the best interest of the minor child, Matthew Wayne Stiffler. The Court further finds pursuant to O.R.C. 3109.04(E)(2)(d) that said joint custody plan (shared parenting decree) should be terminated and therefore orders the joint custody plan terminated effective April 10, 1993.

The Court had determined that the minor child, Matthew W. Stiffler, has sufficient reasoning ability to express his wishes and concerns with respect to the allocation of parental rights (reference O.R.C. 3109.(B)(2)(b). The Court further finds that it would be in the best interest of the child for the Court to determine the child's wishes and concerns with respect to the allocation of parental rights. The Court has interviewed the child in chambers.

Upon consideration of all relevant criteria set forth in O.R.C. 3109.04(F)(1) and based upon the evidence received on March 18, 1993, the wishes and concerns of the minor child, himself, and the family and home investigation report filed with this Court, it is the finding of this Court that it would be in the best interest of the minor child for John R. Stiffler to be designated the residential parent of said child, and for John R. Stiffler to have sole legal custody of said child. Therefore John R. Stiffler is hereby designated residential parent and sole legal custodian of the minor child. Therefore John R. Stiffler is hereby designated residential parent and sole legal custodian of the minor child effective April 10, 1993."

In the instant case, both parties filed motions asserting that the shared parenting arrangement is no longer viable and requesting the court to determine which party should be designated as Matthew's residential parent. When either parent requests the termination of a shared parenting order and requests sole custody of the child, the court may issued a modified custody decree as if no prior shared parenting decree exists. In Blair v. Blair (1986), 34 Ohio App.3d 345, 518 N.E.2d 950, the court wrote:

"The noble purposes of joint custody can only work so long as both parents continue to hold to the proposition that joint custody is in the mutual best interest of all parties. The legislation recognizes that when either of the parents concludes that joint custody is no longer viable, the court may terminate such custody. * * *

Wisely, the legislature clearly provided that when joint custody is terminated, the parties stand at square one vis-a-vis the issue of custody."

(Citations omitted and emphasis sic.)

R.C. 3109.04(E)(2)(e) provides:

Upon the termination of * * * a final shared parenting decree under division (E)(2)(c) or (d) of this

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