Polhamus v. Robinson

• Decision Date: 09 January 2017
• Docket Number: No. 8–16–11.,8–16–11.
• Citation: 2017 Ohio 39,80 N.E.3d 1142
• Parties: Emily POLHAMUS, Petitioner–Appellee, v. Violet M. ROBINSON, Respondent–Appellee, and Oliver M. Gutierrez, Respondent–Appellant.
• Court: Ohio Court of Appeals

80 N.E.3d 1142

2017 Ohio 39

Emily POLHAMUS, Petitioner–Appellee,

v. Violet M. ROBINSON, Respondent–Appellee,andOliver M. Gutierrez, Respondent–Appellant.

No. 8–16–11.

Court of Appeals of Ohio, Third District, Logan County.

Jan. 9, 2017.

Miranda A. Warren, for Appellant.

Natalie J. Bahan, for Appellee, Emily Polhamus.

OPINION

PRESTON, P.J.

{¶ 1} Respondent-appellant, Oliver M. Gutierrez ("Oliver"), appeals the May 11, 2016 decision of the Logan County Court of Common Pleas, Family Court—Juvenile Division, denying his motion requesting the trial court to award him legal and residential custody of his daughter, M.G. For the reasons that follow, we affirm.

{¶ 2} This case stems from a shared-custody agreement executed between Oliver, respondent-appellee, Violet M. Robinson ("Violet"), M.G.'s mother, and petitioner-appellee, Emily Polhamus ("Emily"), M.G.'s maternal aunt, in which they agreed to share legal custody of M.G. with Emily having residential custody of M.G. M.G. was born in 2004 to Oliver and Violet during their marriage. (Doc. No. 1). In 2007, Violet, who had previously separated from Oliver, was diagnosed with Crohn's disease

. (June 5, 2015 Tr. at 7). Because of Violet's illness and financial instability, Emily offered to care for M.G. (Id. at 8). Violet and Emily could not initially locate Oliver but eventually found him living and working under an assumed alias. (Id. at 83, 89, 127). Emily consulted an attorney who advised her that the parties could privately execute a shared-custody agreement to reflect the parties' agreement regarding the care and custody of M.G. (Id. at 83–84, 126). The parties executed a shared-custody agreement (the "shared-custody agreement") reflecting that Oliver, Violet, and Emily would share legal custody of M.G. with Emily having residential custody of M.G.¹ (See id. at 10, 17, 83); (Feb. 24, 2015 Tr. at 9–10).

{¶ 3} Emily filed with the Russell County, Virginia Juvenile and Domestic Relations Court the out-of-court-shared-custody agreement executed by the parties, and that court issued on March 2, 2007 an agreed order reflecting the shared-custody agreement of the parties. (See Doc. Nos. 1, 3). (See also June 5, 2015 Tr. at 83).

{¶ 4} On June 15, 2010, Emily filed with the Logan County Court of Common Pleas, Family Court—Juvenile Division, a "Petition to Register Foreign Custody Decree." (Doc. No. 1). On November 15, 2010, the trial court granted Emily's petition and registered the foreign custody decree. (Doc. No. 12).

{¶ 5} On June 20, 2011, Oliver filed a "Notice of Submission of Order" and submitted to the trial court a September 7, 2010 order of the Russell County court modifying the March 2, 2007 order regarding Violet's visitation time. (Doc. No. 14).

{¶ 6} On July 13, 2011, Oliver filed a motion to modify Violet's visitation time with M.G. (Doc. No. 15). In that motion, Oliver did "not seek to modify the rights of [Emily] and believe[d] she is a stable and positive influence on [M.G.]" (Id. ). Violet filed on August 11, 2011 an "Objection" to Oliver's motion. (Doc. No. 27).

{¶ 7} On August 22, 2012, the parties entered an "Agreed Judgment Entry" (the "agreed-custody entry") in which, in part, they agreed to continue to share legal custody of M.G. with Emily continuing to have residential custody of M.G. (Doc. No. 62).

{¶ 8} On January 27, 2014, Oliver filed a "Motion for Reallocation of Parental Rights and Responsibilities" asking that the trial court grant him legal and residential custody of M.G. (Doc. No. 65). On February 21, 2014, Emily filed a memorandum in opposition to Oliver's motion. (Doc. No. 79). On February 27, 2014, Violet filed an "Answer and Objection" to Oliver's motion. (Doc. No. 81).

{¶ 9} On June 4, 2014, the trial court appointed a guardian ad litem ("GAL") for M.G. (Doc. No. 109). The GAL filed his report on February 12, 2015. (Doc. No. 126).

{¶ 10} On July 31, 2014, Oliver filed an addendum to his motion, clarifying that he was "requesting that custody of [M.G.] be allocated, not reallocated." (Doc. No. 113).

{¶ 11} After hearings on February 24, 2015 and June 5, 2015, the magistrate issued his decision on December 17, 2015, concluding that Oliver and Violet forfeited their paramount right to custody of M.G.; that no change of circumstances occurred; and that it is in M.G.'s best interest that Emily be M.G.'s "primary caretaker" if Emily can legally fill that role. (Doc. Nos. 137, 142).

{¶ 12} On March 21, 2016, Oliver filed his objections to the magistrate's decision. (Doc. No. 143). On May 11, 2016, the trial court overruled Oliver's objections to the magistrate's decision and adopted the magistrate's decision—namely, that Oliver and Violet forfeited their paramount right to custody of M.G. and that no change in circumstances occurred necessitating a modification of the agreed-custody entry. (Doc. No. 144).

{¶ 13} Oliver filed his notice of appeal on June 6, 2016. (Doc. No. 145). He raises three assignments of error for our review. For ease of our discussion, we first address together Oliver's first and second assignments of error, then his third assignment error.

Assignment of Error No. I

It was an Abuse of Discretion and Against the Manifest Weight of the Evidence When the Trial Court Found that the Appellant Forfeited His Paramount Right of Custody of Their [sic] Child by Contract (Physical Custody) and by Abandonment (Legal Custody).

Assignment of Error No. II

It was an Abuse of Discretion and Against the Manifest Weight of the Evidence When the Trial Court Failed to Apply All Criteria ofIn Re Perales and Denied Custody of the Minor Child to the Appellant.

{¶ 14} In his first and second assignments of error, Oliver argues that the trial court abused its discretion by concluding that he forfeited his paramount right to custody of M.G. Stated differently, Oliver challenges the trial court's parental-suitability conclusion. In particular, he argues that the trial court abused its discretion by concluding that he is an unsuitable parent because he forfeited his paramount right to custody of M.G. by executing the shared-custody agreement and by abandoning M.G. Oliver further argues that the trial court failed to apply the In re Perales criteria in its parental-suitability determination. 52 Ohio St.2d 89, 369 N.E.2d 1047 (1977).

{¶ 15} As an initial matter, we note that "the juvenile court has exclusive original jurisdiction to determine the custody of a child who is not a ward of another Ohio court." Redmond v. Davis, 7th Dist. Columbiana No. 14 CO 37, 2015-Ohio-1198, 2015 WL 1419509, ¶ 33, citing R.C. 2151.23(A)(2). See also Rowell v. Smith, 10th Dist. Franklin No. 12AP–802, 2013-Ohio-2216, 2013 WL 2404814, ¶ 57. A juvenile court is to exercise its jurisdiction in a child-custody matter in accordance with R.C. 3109.04. R.C. 2151.23(F)(1).

{¶ 16} " ‘Decisions concerning child custody matters rest within the sound discretion of the trial court.’ " Krill v. Krill, 3d Dist. Defiance No. 4–13–15, 2014-Ohio-2577, 2014 WL 2700330, ¶ 26, quoting Walker v. Walker, 3d Dist. Marion No. 9–12–15, 2013-Ohio-1496, 2013 WL 1561468, ¶ 46, citing Wallace v. Willoughby, 3d Dist. Shelby No. 17–10–15, 2011-Ohio-3008, 2011 WL 2449009, ¶ 22 and Miller v. Miller, 37 Ohio St.3d 71, 74, 523 N.E.2d 846 (1988). " ‘ "Where an award of custody is supported by a substantial amount of credible and competent evidence, such an award will not be reversed as being against the weight of the evidence by a reviewing court." ’ " Id., quoting Walker at ¶ 46, quoting Barto v. Barto, 3d Dist. Hancock No. 5–08–14, 2008-Ohio-5538, 2008 WL 4694520, ¶ 25 and Bechtol v. Bechtol, 49 Ohio St.3d 21, 550 N.E.2d 178 (1990), syllabus. " ‘Accordingly, an abuse of discretion must be found in order to reverse the trial court's award of child custody.’ " Id., quoting Walker at ¶ 46, citing Barto at ¶ 25 and Masters v. Masters, 69 Ohio St.3d 83, 85, 630 N.E.2d 665 (1994). " ‘An abuse of discretion suggests the trial court's decision is unreasonable or unconscionable.’ " Id., quoting Brammer v. Meachem, 3d Dist. Marion No. 9–1043, 2011-Ohio-519, 2011 WL 378809, ¶ 14, citing Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983).

{¶ 17} In this case, Oliver, M.G.'s parent, disputes the trial court's decision granting Emily, a nonparent, custody of M.G. "It is without question that parents have a constitutionally protected due process right to make decisions concerning the care, custody, and control of their children, and the parents' right to custody of their children is paramount to any custodial interest in the children asserted by nonparents." Rowell at ¶ 27, citing In re Mullen, 129 Ohio St.3d 417, 2011-Ohio-3361, 953 N.E.2d 302, ¶ 11, citing Troxel v. Granville, 530 U.S. 57, 66, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000), and citing In re Murray, 52 Ohio St.3d 155, 157, 556 N.E.2d 1169 (1990) and Clark v. Bayer, 32 Ohio St. 299, 310 (1877). "[A] ‘suitable’ parent has a ‘paramount right’ to the custody of their minor child ‘unless they forfeit that right by contract, abandonment, or by becoming totally unable to care for and support those children.’ " Redmond at ¶ 34, quoting In re Perales, 52 Ohio St.2d at 97, 369 N.E.2d 1047, citing Clark at 310, and citing Masitto v. Masitto, 22 Ohio St.3d 63, 65, 488 N.E.2d 857 (1986).

{¶ 18} "Equally well-settled under Ohio law is the principle that a parent may voluntarily share with a nonparent the care, custody, and control of his or her child through a valid shared-custody agreement." Rowell at ¶ 27, citing Mullen at ¶ 11, citing In re Bonfield, 97 Ohio St.3d 387, 2002-Ohio-6660, 780 N.E.2d 241, ¶ 50 and R.C. 2151.23(A)(2), and citing State ex rel. M.L.G. v. Montgomery, 10th Dist. Franklin No. 12AP–13, 2012-Ohio-3591, 2012 WL 3253193, ¶ 21. "The essence of a voluntary shared custody agreement between a parent and nonparent is the purposeful relinquishment of some portion of the parent's right to exclusive custody of the child." Id., citing Mullen at ¶ 11. " ‘A...