Perrin v. Perrin , 2021 Ohio 2581 ( 2021 )

[Cite as Perrin v. Perrin, 2021-Ohio-2581.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
EVERETT T. PERRIN, III, :
Plaintiff-Appellee, :
No. 109376
v. :
HEATHER R. PERRIN, :
Defendant-Appellant. :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: July 29, 2021
Civil Appeal from the Cuyahoga County Court of Common Pleas
Domestic Relations Division
Case No. DR-15-359951
Appearances:
Baker & Hostetler, L.L.P., and Suzanne M. Jambe; and
Douglas M. Brill, for appellee.
Kronenberg + Belovich Law, L.L.C., Barbara A. Belovich,
and Jacob A.H. Kronenberg, for appellant.
John J. Ready & Associates and John J. Ready, Guardian
ad Litem.
MARY EILEEN KILBANE, J.:
Defendant-appellant Heather R. Perrin, n.k.a. Vescio (“Heather” or
“Mother”) appeals from the denial of her motion to modify the parenting order
concerning her minor child with plaintiff-appellee Everett T. Perrin, III (“Everett”
or “Father”). Heather also appeals from the trial court’s related decisions to grant
three motions filed by Everett: a motion in limine to exclude certain evidence at
trial, a motion for attorney fees, and a motion for litigation fees and expenses. After
a thorough review of the record and law, we affirm the decision of the trial court.
Factual and Procedural History
Heather and Everett were married in December 2010. Both Heather
and Everett had been married to different people prior to their marriage; Heather
had two children from her previous marriage. Heather and Everett had one child
together, a son born on October 12, 2011. On December 9, 2015, Everett filed a
complaint for divorce. On January 8, 2016, Heather filed an answer and
counterclaim. Ultimately, on May 25, 2016, the trial court entered a divorce decree.
In connection with the divorce decree, the parties executed a separation agreement
and a shared parenting plan. The separation agreement provided that Heather
would maintain her ownership of the marital residence located in Bay Village, Ohio.
The shared parenting plan designated Heather as the residential
parent, stating in paragraph three:
The Mother shall be residential parent of the minor child for school
purposes so long as the Mother resides in the Bay Village school
district. If Mother for any reason elects to move her primary residence
from the Bay Village school district, Father, so long as he remains
within the Bay Village school district, shall be designated residential
parent for school district designation purposes, unless otherwise
ordered by the Court. The minor child shall attend Bay Village schools
unless otherwise agreed by the Parties or as ordered by this Court.
Paragraph seven of the shared parenting plan further specified that “[t]he
residential parent shall file a notice of intent to relocate if they intend to move to a
residence other than the one specified in this order.” Further, the plan prohibited
either parent from removing the child from the state of Ohio without the express
written consent of the other parent, or pursuant to a court order. When the parties
entered into the shared parenting plan, both lived in Bay Village, and the plan
provided for each parent to enjoy equal time with the child on a rotating basis.
On May 17, 2017, Heather initiated a post-decree custody proceeding
when she filed a motion to show cause, a motion for attorney fees, and a motion to
terminate the shared parenting plan. Heather requested an order from the court
that Everett show cause as to why he should not be held in contempt “by reason of
his apparent contumacious conduct as evidenced by his failure to comply with the
terms of the parties’ Shared Parenting Plan.”
On June 21, 2017, Heather filed an amended motion to terminate the
shared parenting plan, or in the alternative, to modify the shared parenting plan.
Coincidentally, the same day, Heather submitted a notice of intent to relocate in
accordance with R.C. 3109.051(G). Heather also submitted an affidavit with the
amended motion to terminate. In the affidavit, Heather stated that she became
engaged to be married on May 24, 2017, and that her fiancé lived in Florida. Heather
stated that it was her intention to move to Florida, and that her older children from
her previous marriage would also be moving with her. Heather also stated that she
was scheduled to receive a promotion from her current job with the Federal Bureau
of Investigation, and this promotion would involve filling a position in Orlando,
Florida.
On June 26, 2017, the court appointed a Guardian ad Litem (“GAL”)
for the minor child. On September 15, 2017, the court entered a judgment entry
stating that the parties agreed to the joint appointment of Dr. Mark Lovinger (“Dr.
Lovinger”) as a custody evaluator. Dr. Lovinger was to conduct a full custody
evaluation of the minor child, with full cooperation from Everett and Heather.
On December 21, 2017, Heather filed a second notice of intent to
relocate. On April 2, 2018, the magistrate ordered the parties to report to the court’s
mediation services scheduler to have the case screened for mediation. A mediation
outcome report was filed on June 11, 2018, noting that the parties attempted to
mediate but were unable to reach an agreement.
On July 11, 2018, the GAL submitted his report and recommendation
to the court. The GAL described extensive interviews with numerous individuals
involved in the case, including Everett, Heather, their minor child, Heather’s older
children, Heather’s first husband, Heather’s current husband, other relatives, the
child’s teachers, Everett’s coworker, and Everett’s psychologist. Summarizing his
interactions with Heather, the GAL noted:
Overall, there was a disturbing pattern of unsubstantiated allegations
going back to a time before the marriage which were initially presented
to the Guardian as reasons why Father should not be in [the child’s] life
to the extent that he currently is, therefore justifying, if not mandating
a move away, to the state of Florida. Proof of those allegations, many
of which have been discussed in this report, and some of which have
not been discussed in detail, was never provided, for various reasons.
In the absence of proof of those rather serious charges, there is concern
that those charges are untrue or exaggerated, and being made to justify
a relocation which is otherwise unjustified.
Ultimately, the GAL recommended that the court deny Heather’s motion to
terminate the shared parenting plan and deny Heather’s attempts to relocate out of
state with her child. The GAL further recommended that if Heather relocates
outside of Ohio, the court should award her long-distance parenting time. We note
that although this recommendation was phrased in conditional terms, the GAL
report reflected that Heather married her current husband and moved to Florida in
December 2017. Finally, the GAL recommended that the court appoint a parenting
coordinator to assist Heather and Everett going forward.
On July 17, 2018, Heather voluntarily dismissed her June 2017
motions without prejudice. On July 20, 2018, Heather filed a motion to modify the
current parenting plan. Specifically, the motion requested modification of the
current parenting plan, termination of the shared parenting plan, and designation
of Heather as sole residential parent and legal custodian of the minor child.
On September 26, 2018, Everett filed a motion in limine to exclude
certain evidence. The motion in limine argued that because this was a post-decree
proceeding, pursuant to R.C. 3105.04(E)(1)(a), any evidence that arose or occurred
prior to the journalization of the existing parenting order on May 25, 2016, is
immaterial and should be excluded. On October 3, 2018, Everett filed a motion for
attorney fees and an award of costs and expenses of litigation. On October 4, 2018,
Heather filed a brief in opposition to Everett’s motion in limine.
At a pretrial hearing, the magistrate orally indicated that Everett’s
motion in limine would be granted. Trial began on October 29, 2018. The court
held additional hearings on nine dates through February 22, 2019.
At trial, Heather called Dr. Lovinger, Detective Kathleen Leasure
from the Bay Village Police Department, her current husband, and Megan Langham
(“Langham”), her former coworker. Heather, Everett, and the GAL also testified.
Numerous exhibits were admitted into evidence without objection, and the court
admitted six of Heather’s exhibits into evidence over Everett’s objections.
The court heard testimony that Heather and her current husband met
in 2013, began a romantic relationship shortly before her divorce from Everett was
finalized, and were currently living together in Florida with Heather’s older children.
Heather’s current husband also had children from a previous marriage; the children
were also living in Florida and Heather’s husband and his ex-wife had roughly equal
parenting time.
The court also heard testimony that Heather’s former job at the
Federal Bureau of Investigation has caused her significant stress. Related to this
stress, Heather had been diagnosed with post-traumatic stress disorder. This, along
with her desire to blend her family with her current husband’s family, prompted
Heather to look for a new job in Florida. She found a new job with Disney and was
living and working in Florida at the time of the trial, having relocated in December
2017 while the underlying case was pending.
The court also heard testimony regarding multiple incidents in which
Heather suspected Everett of stalking her, threatening her, and breaking into her
home. Heather testified about these incidents at length, and other witnesses
testified as to their knowledge of these events, which was generally secondhand
knowledge through Heather.
Dr. Lovinger was the court-appointed custody evaluator. He testified
as to the two reports he prepared for the case. In preparing his reports and forming
his recommendations, Dr. Lovinger met with Heather, Everett, their child,
Heather’s current husband, Heather’s first husband, Everett’s mother, and
Heather’s older children. He also administered psychological tests to Heather and
Everett. According to his testimony, certain tests can be helpful in the context of
custody cases because they provide indications as to how a person copes with stress,
whether a person has a thought disorder, and whether a person has misperceptions
of reality, among other things. Dr. Lovinger’s report detailed the individual histories
of each person involved in the case. At the outset of his testimony, the parties again
addressed the motion in limine. The court reminded the parties that it was allowing
Dr. Lovinger to testify as to the context and background that was the basis for his
reports, but was excluding any allegations of domestic violence or criminal conduct.
Dr. Lovinger testified that Heather and Everett had difficulty
communicating and co-parenting with each other. Dr. Lovinger also testified that
Heather had described disturbing behavior exhibited by Everett, including allegedly
breaking into her home after they divorced. In connection with this allegation and
the preparation of his reports generally, Dr. Lovinger looked into Everett’s
background. Over the objection of Everett’s counsel based on the court’s ruling on
the motion in limine, Dr. Lovinger testified that he reviewed records from the early
1990s in which domestic violence charges were brought against Everett.
Dr. Lovinger also testified that Everett had post-traumatic stress
disorder. Everett had been hospitalized in 2015 and was treated by a psychologist
related to that hospitalization, and received intermittent psychological treatment at
the Veterans Administration thereafter. Both Dr. Lovinger and the GAL described
a situation in which Everett suffered extreme stress when Heather allegedly
exhibited suicidal behavior; this stress, in part, led to his 2015 hospitalization. Dr.
Lovinger testified that he found no evidence of Heather currently being suicidal or
depressed.
Throughout the trial hearings, the motion in limine was brought up
and discussed numerous times. Heather’s purported rationale for modifying the
shared parenting plan was a history of what she perceived to be abuse and
inappropriate conduct by Everett during the course of their marriage. In support of
this rationale, Heather’s counsel repeatedly attempted to introduce evidence related
to Everett’s behavior beginning years before their marriage and continuing after
their divorce decree, up to the trial in this case. At various points, the court granted
the parties leeway in direct and cross-examination in order to provide adequate
context for witness testimony and evidence. At other points, the court sustained
objections to predecree testimony and evidence.
Midway through the trial, on January 22, 2019, Heather sought
reconsideration of the court’s ruling on Everett’s motion in limine. The court denied
this motion.
In the magistrate’s decision journalized on April 10, 2019, the court
found that Heather had not shown a change of circumstances for the minor child or
either parent as required by R.C. 3109.04. The court also considered the factors set
forth in R.C. 3109.04(F)(1) pertaining to the best interests of the child and made
extensive findings. The court ultimately concluded that it was in the child’s best
interest that Everett be designated residential parent and sole custodial parent. In
addition, the court terminated the shared parenting plan. The court went on to find
that the aforementioned modification of the parenting order constituted a change of
circumstance warranting a review of child support and medical support.
Subsequently, the court designated Heather as the support obligor and Everett as
the support obligee.
On April 24, 2019, Heather filed objections to the magistrate’s
decision. On August 19, 2019, Heather filed supplemental objections to the
magistrate’s decision. On September 17, 2019, Everett filed a brief in opposition to
Heather’s supplemental objections. On September 23, 2019, the GAL filed a brief in
opposition to Heather’s supplemental objections.
On December 13, 2019, the trial court overruled Heather’s objections
and adopted the magistrate’s decision. On January 10, 2020, Heather appealed,
presenting four assignments of error for review.
Assignment of Error No. 1
The trial court erred, and this court should review de novo, the granting
of Plaintiff’s Motion in Limine to Exclude Certain Evidence, which was
filed on September 26, 2018, by excluding evidence as to both Plaintiff’s
conduct prior to the date of the decree of divorce and as to the parties’
interactions prior to the date of the divorce, especially including, but
not limited to, evidence not learned by or known to the Defendant until
a period of time after the entry of the original divorce, as testified to in
the Defendant’s proffer.
Assignment of Error No. 2
The Trial Court erred, and this Court should review de novo, the
denying [of] Defendant’s Motion for Reconsideration of Plaintiff’s
Motion in Limine to Exclude Certain evidence filed September 26,
2018, which was filed on January 22, 2019, by failing to follow proper
procedure for such a motion in considering the admissibility of
evidence and at each instance when the Defendant sought to introduce
evidence which should have been subject to specific procedures,
particularly in view of the determination it made to terminate the
shared parenting plan, an act which required it to consider any history
[of] Domestic Violence (R.C. 3109.04(F)(2)(c)). Those procedures
would have required a determination of such evidentiary issues,
including but not limited to: a. whether such evidence was hearsay
evidence which may have been within a proper exception to the hearsay
rule and thus admissible; b. whether such evidence would otherwise
properly impact the consideration of whether Defendant had
established appropriate reasons in support of her primary substantive
motion to modify and/or terminate the existing allocation of parental
rights and responsibilities; c. whether such evidence, even though the
underlying events occurred prior to the date of divorce, was or was not
known or knowable by Defendant at the date of the decree of divorce,
supported its being part of a continuing course of conduct by one or
both of the parties.
Assignment of Error No. 3
The Trial Court erred in denying Defendant’s Motion to Modify Current
Parenting Order filed July 20, 2018, seeking either Defendant’s being
named sole residential parent and legal custodian or, alternatively, her
being named residential parent and legal custodian for school
enrollment purposes and modifying the contact schedule consistent
with that designation by: a. determining that there was no change in
circumstances under Revised Code 3109.04(E)(1)(a); and b.
determining that the statutory best interests factors under Revised
Code 3109.04(F)(1) support a determination of the Court’s dissolving
the shared parenting plan and designating Plaintiff as sole residential
parent and legal custodian.
Assignment of Error No. 4
The Trial Court erred in granting, in part, Plaintiff’s Motion for
Attorney’s Fees and Plaintiff’s Motion for Litigation Fees/Expenses,
both filed October 3, 2018.
Everett and the GAL each filed appellee briefs.
Law and Analysis
In her first two assignments of error, Heather argues that the trial
court erred in granting Everett’s motion in limine and denying her motion to
reconsider that decision. Because both of these assignments of error deal with the
trial’s court evidentiary rulings related to Everett’s motion in limine, we will address
them together.
The purpose of a motion in limine “is to avoid injection into [the] trial
of matters which are irrelevant, inadmissible and prejudicial[,] and granting of [the]
motion is not a ruling on evidence.” Orbit Electronics, Inc. v. Helm Instrument Co.,
167 Ohio App.3d 301, 2006-Ohio-2317, 855 N.E.2d 91, ¶ 17 (8th Dist.), quoting State
v. French, 72 Ohio St.3d 446, 449, 650 N.E.2d 887 (1995). “A ruling on a motion in
limine reflects the court’s anticipated treatment of an evidentiary issue at trial and
is a tentative, interlocutory, precautionary ruling.” Id., citing Allgood v. Smith, 8th
Dist. Cuyahoga Nos. 76121 and 76122, 2000 Ohio App. LEXIS 1744, 15 (Apr. 20,
2000). Because finality does not attach to a preliminary ruling, a party must object
to the introduction of testimony or evidence at trial in order to preserve the error for
appeal. Gable v. Gates Mills, 103 Ohio St.3d 449, 2004-Ohio-5719, 816 N.E.2d
1049, ¶ 35, citing State v. Grubb, 28 Ohio St.3d 199, 203, 503 N.E.2d 142 (1986).
Where, as here, the party has preserved the error for appellate review,
we review a trial court’s ruling on a motion in limine for abuse of discretion. United
States Bank v. Amir, 8th Dist. Cuyahoga No. 97438, 2012-Ohio-2772, ¶ 18, citing
Sokolovic v. Hamilton, 195 Ohio App.3d 406, 2011-Ohio-4638, 960 N.E.2d 510 (8th
Dist.). An abuse of discretion suggests unreasonableness, arbitrariness, or
unconscionability in the trial court’s decision. Id., citing Valentine v. Conrad, 110
Ohio St.3d 42, 2006-Ohio-3562, 850 N.E.2d 683, ¶ 9.
The proceedings in this case were governed by R.C. 3109.04, which
states, in relevant part:
The court shall not modify a prior decree allocating parental rights and
responsibilities for the care of children unless it finds, based on facts
that have arisen since the prior decree or that were unknown to the
court at the time of the prior decree, that a change has occurred in the
circumstances of the child, the child’s residential parent, or either of
the parents subject to a shared parenting decree, and that the
modification is necessary to serve the best interest of the child. In
applying these standards, the court shall retain the residential parent
designated by the prior decree or the prior shared parenting decree,
unless a modification is in the best interest of the child and one of the
following applies:
(i) The residential parent agrees to a change in the residential parent or
both parents under a shared parenting decree agree to a change in the
designation of residential parent.
(ii) The child, with the consent of the residential parent or of both
parents under a shared parenting decree, has been integrated into the
family of the person seeking to become the residential parent.
(iii) The harm likely to be caused by a change of environment is
outweighed by the advantages of the change of environment to the
child.
R.C. 3109.04(E)(1)(a). Therefore, the nature of the postdecree proceeding obligated
the trial court to find a change of circumstances, based on new or previously
unknown facts, before modifying the shared parenting plan.
The motion in limine in this case sought to exclude testimony relating
to facts or circumstances “that arose or occurred prior to the existing parenting order
journalized on May 25, 2016.” This motion sought a ruling from the court applying
the terms of R.C. 3109.04(E)(1)(a) described above, and in granting the motion, the
court was merely complying with the statute.
Further, our review of the record reveals that at various points
throughout the trial, evidence of predecree facts and circumstances was admitted by
the trial court. The court appreciated that this case was highly contested and took
steps to ensure that the parties were able to provide context for their evidence and
arguments at trial. Nothing in the record suggests that the court’s evidentiary
rulings were unreasonable, arbitrary, or unconscionable. Because the court did not
abuse its discretion in granting Everett’s motion in limine, we overrule Heather’s
first assignment of error.
Heather’s second assignment of error argues that the trial court erred
by failing to follow the proper procedure for considering a motion in limine.
Specifically, she argues that after issuing its preliminary ruling, the court was
required to have a second hearing to determine the admissibility of particular
evidence when it is introduced at trial.
As discussed above, a ruling on a motion in limine is “tentative” and
reflects the court’s “anticipatory treatment” of the evidentiary issues in question.
Grubb, 28 Ohio St.3d 199, 201, 503 N.E.2d 142 (1986). Following this preliminary
ruling, “should circumstances subsequently develop at trial, the trial court is
certainly at liberty ‘to consider the admissibility of the disputed evidence in its actual
context.’” Id., quoting State v. White, 6 Ohio App.3d 1, 4, 451 N.E.2d 533 (8th
Dist.1982).
Here, the evidentiary issues Heather raises in this appeal were
addressed repeatedly and thoroughly by the trial court. Both parties objected
throughout the trial when a witness or counsel was attempting to testify regarding
predecree facts or circumstances. The trial court followed the appropriate
procedure, and nothing in the trial court’s reconsideration of the motion in limine
constituted an abuse of discretion. Therefore, Heather’s second assignment of error
is overruled.
In her third assignment of error, Heather argues that the trial court
erred in denying her motion to modify the current parenting order and seeking an
order naming her as sole residential parent and legal custodian. Heather argues that
the trial court erred both by finding that there was no change in circumstances
pursuant to R.C. 3109.04(E)(1)(a) and that the statutory best interest factors in R.C.
3109.04(F)(1) supported the designation of Everett as sole residential parent and
legal custodian.
Because custody decisions are “some of the most difficult and
agonizing decisions a trial judge must make[,]” trial courts have wide latitude in
considering all the evidence before them. Saylor v. Saylor, 1st Dist. Hamilton No.
C-190463, 2020-Ohio-3647, ¶ 10. Therefore, we review a trial court’s decision in
child custody matters for abuse of discretion. In re E.O.T., 8th Dist. Cuyahoga No.
107328, 2019-Ohio-352, ¶ 39, citing In re C.M., 8th Dist. Cuyahoga Nos. 99601 and
99602, 2013-Ohio-5427, ¶ 37. “The underlying rationale of giving deference to the
findings of the trial court rests with the knowledge that a trial judge is best able to
view the witnesses and observe their demeanor, gestures and voice inflections, and
use these observations in weighing the credibility of the proffered testimony.” In re
E.S., 4th Dist. Pickaway Nos. 17CA16 and 17CA17, 2018-Ohio-1902, ¶ 23, quoting
Davis v. Flickinger, 77 Ohio St.3d 415, 418, 674 N.E.2d 1159 (1997), quoting Seasons
Coal Co. v. Cleveland, 10 Ohio St.3d 77, 80, 461 N.E.2d 1273 (1984). Such deference
is “even more crucial in a child custody case, where there may be much evident in
the parties’ demeanor and attitude that does not translate to the record well.” Id.After a thorough review of the record, we cannot conclude that the
trial court abused its discretion by designating Everett sole residential parent and
legal custodian or by terminating the shared parenting plan. With respect to the
designation of Everett as sole residential parent, the court correctly determined that
there had not been a change in circumstances that would allow for modification of
the shared parenting plan.
Heather’s primary argument that there was a change in
circumstances warranting modification of the shared parenting plan was that
Everett’s history of domestic violence before, during, and after his marriage to
Heather, had escalated following the journalization of the divorce decree.
Specifically, Heather testified at trial that she agreed to the terms of the separation
agreement and shared parenting plan just to “get [Everett] away from” her because
she needed an escape from their abusive relationship. Heather cites her own trial
testimony and other evidence she presented at trial to support this argument.1
In support of her argument, Heather relies in part on this court’s
decision in M.D. v. M.D., 2018-Ohio-4218, 121 N.E.3d 819 (8th Dist.). In M.D., the
petitioner-appellant appealed from a judgment sustaining the objections of
respondent-appellee and vacating a civil protection order that had protected the
petitioner-appellant and the parties’ two minor children. Id. at ¶ 1. This court held
1 Despite her evidentiary arguments in the first and second assignments of error —
that she was improperly prevented from introducing evidence in support of her motions
— her appellate brief includes an extensive list of citations to the record in which she
testified as to Everett’s alleged abuse.
that the magistrate in that case erred by limiting the testimony to events that
occurred within one year of the petitioner-appellant’s filing the domestic violence
civil protection order. Id. at ¶ 79. The court reasoned that the parties’ history was
relevant to establishing whether the respondent-appellee had committed acts of
domestic violence against the petitioner-appellant, and moreover, that the
magistrate’s time limit on the inquiry was entirely arbitrary. Id.Unlike the proceedings in M.D., the proceedings in the instant case
were governed by a statute that explicitly limits the court’s inquiry to facts and
circumstances that have either arisen since the prior decree or were unknown at the
time of the decree. Therefore, Heather’s reliance on M.D. is misplaced.
Heather also points to a guide from the Ohio Supreme Court, The
Supreme Court of Ohio Domestic Violence and Allocation of Parental Rights and
Responsibilities Court Guide in support of her argument. At trial, custody evaluator
Dr. Lovinger testified that Everett had exhibited numerous risk factors identified by
the guide. We are mindful that domestic violence risk factors are often closely linked
with custody determinations, and the Ohio Supreme Court guide provides helpful
direction in this area. In this case, however, we do not find that this testimony or
the allegations of domestic violence generally indicate that the trial court abused its
discretion.
Our review of the record reveals that this case was highly contested.
Everett and Heather described drastically different versions of events and
circumstances, even with respect to something as fundamental as the appropriate
name for their child. Both were cross-examined extensively about these events and
circumstances. The trial court heard all of this testimony, including Dr. Lovinger’s
testimony regarding the Ohio Supreme Court guide. The trial court also heard
testimony from the GAL, who had spoken with both parties extensively and
ultimately recommended that it was in the child’s best interest to remain in Ohio
with Everett.
In determining the best interest of a child pursuant to a custody
determination, the court is required to consider all relevant factors, including those
enumerated in R.C. 3109.04(F)(1) and (2), such as the wishes of the child’s parents;
the wishes of the child; the child’s interaction and interrelationship with their
parents, siblings, and any other relatives; the child’s adjustment to their home,
school, and community; and the mental and physical health of all persons involved
in the situation. The court in this case heard extensive testimony and received
additional evidence going to all of these factors. The court considered the child’s
relationship with Heather and Everett, as well as his relationship with his siblings,
stepfather, and grandparents. The court also considered that the child was thriving
in Ohio and had significant ties to his school, community, and maternal and paternal
relatives in Ohio. The court also considered the allegations of domestic violence
made against Everett. Our review of the record shows that the court considered all
relevant factors in determining the outcome that was in the child’s best interest as it
was statutorily obligated to do.
We recognize the difficult nature of this case, and we are mindful that
in a highly contested custody case involving relocation, in which the child has strong
and loving relationships with both parents, it is difficult if not impossible to achieve
an outcome that satisfies all parties. In light of the utmost deference we must accord
to the trial court’s determinations, however, we cannot conclude that the trial court’s
decision was unreasonable, arbitrary, or unconscionable. Heather established that
she and Everett had a difficult and contentious relationship, but she did not establish
that there had been a change in circumstances justifying modification of the shared
parenting plan to which she had consented. It is worth noting that after Heather
remarried, she moved with her older children to Florida and began her new life,
leaving her child with Everett in Ohio pursuant to the terms of the shared parenting
plan Heather had agreed to and signed in 2016. Likewise, at the conclusion of the
trial in this case, because Heather had been living in Florida for over a year, the child
had spent the large majority of that time with Everett. Furthermore, as of the date
of this appeal, several more years have passed, during which time the child has
presumably developed even stronger ties to his school, his community, and his
family in Ohio. Because the trial court did not abuse its discretion in designating
Everett the sole residential parent and legal custodian and terminating the shared
parenting plan, we overrule Heather’s third assignment of error.
In Heather’s fourth and final assignment of error, she argues that the
trial court erred in granting Everett’s motion for attorney fees and motion for
litigation fees/expenses in part. We disagree.
R.C. 3105.73(B) provides:
In any post-decree motion or proceeding that arises out of an action for
divorce, dissolution, legal separation, or annulment of marriage or an
appeal of that motion or proceeding, the court may award all or part of
reasonable attorney’s fees and litigation expenses to either party if the
court finds the award equitable. In determining whether an award is
equitable, the court may consider the parties’ income, the conduct of
the parties, and any other relevant factors the court deems appropriate,
but it may not consider the parties’ assets.
We review the domestic relations court’s decision to grant attorney fees for an abuse
of discretion. Hissa v. Hissa, 8th Dist. Cuyahoga Nos. 103493 and 103536, 2016-
Ohio-4714, ¶ 31, citing Dureiko v. Dureiko, 8th Dist. Cuyahoga No. 94393, 2010-
Ohio-5599, ¶ 26.
Here, the magistrate’s decision found that Everett had incurred
$67,844.00 in attorney fees for services in the instant case and had a remaining
balance of $54,694.00. The magistrate’s decision found that the parties stipulated
as to counsel’s expertise, experience, and reasonable hourly rate. Finally, the
magistrate’s decision found that “[t]here were unique issues or procedural
complexities in the case, in that the case was complicated by Defendant/Mother.”
Based on these findings, the magistrate determined that it was equitable for Heather
to pay $5,000 toward Everett’s attorney fees and litigation expenses.
Having reviewed the entire record, and understanding the lengthy
and difficult procedural history of this case, we cannot conclude that this award was
unreasonable, arbitrary, or unconscionable. The award was a small fraction of the
total amount of fees incurred, and the record reflects that the length of the
proceedings below was largely the result of Heather’s actions. Because the court did
not abuse its discretion in granting Everett’s motion for attorney fees and motion
for litigation expenses, we overrule Heather’s fourth assignment of error.
For the foregoing reasons, we affirm the judgment of the domestic
relations court designating Everett as the sole residential parent and legal custodian
and terminating the shared parenting plan.
Judgment affirmed.
It is ordered that appellee recover from appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the
common pleas court to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27
of the Rules of Appellate Procedure.
MARY EILEEN KILBANE, JUDGE
ANITA LASTER MAYS, P.J., and
EILEEN T. GALLAGHER, J., CONCUR