Calhoun v. Calhoun , 2021 Ohio 4551 ( 2021 )

[Cite as Calhoun v. Calhoun, 2021-Ohio-4551.]
IN THE COURT OF APPEALS OF OHIO
SEVENTH APPELLATE DISTRICT
JEFFERSON COUNTY
KEVIN R. CALHOUN,
Plaintiff-Appellee,
v.
KASIE B. CALHOUN,
Defendant-Appellant.
OPINION AND JUDGMENT ENTRY
Case No. 20 JE 0014
Civil Appeal from the
Court of Common Pleas of Jefferson County, Ohio
Case No. 18DR151
BEFORE:
Gene Donofrio, Cheryl L. Waite, David A. D’Apolito, Judges.
JUDGMENT:
Affirmed
Atty. Jane Hanlin, 100 N. Fourth Street, 10th Floor, Steubenville, Ohio 43952, for Plaintiff-
Appellee and
Atty. Elgine H. McArdle, 2139 Market Street, Wheeling, West Virginia 26003, for
Defendant-Appellant.
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Dated
December 13, 2021
Donofrio, J.
{¶1} Defendant-appellant, Kasie Calhoun, appeals from a Jefferson County
Common Pleas Court judgment granting plaintiff-appellee’s, Kevin Calhoun’s, motion to
reallocate parental rights and responsibilities and designating him as the residential
parent of the parties’ three children.
{¶2} The parties were married on May 24, 2013. They share three children:
L.C. (d.o.b. 5/31/12), B.C. (d.o.b. 12/16/14), and C.C. (d.o.b. 12/22/17). On May 15, 2018,
the parties filed a petition for dissolution that included a separation agreement and
parenting plan. On June 25, 2018, the trial court granted the parties a dissolution and
approved their separation agreement and parenting plan. Pursuant to the parenting plan,
appellant was designated the residential parent. Appellee was granted overnight
parenting time three out of four weekends per month.
{¶3} On April 22, 2019, appellee filed a motion for ex parte emergency custody
and a motion to reallocate parental rights and responsibilities. Appellee attached his
affidavit in support. He averred that he had just learned from appellant’s mother that
appellant’s boyfriend had overdosed while at appellant’s apartment with the children
home. Appellant’s mother had then taken the children to her home to get them away from
that environment. Appellee further averred that he believed appellant was using drugs in
the children’s presence. The court granted appellee’s emergency motion, granted him
temporary custody of the children, and set the matter for a hearing.
{¶4} At the May 2, 2019 hearing, the parties agreed that appellee would
continue as the temporary residential parent and appellant would have visitation with the
children that would be supervised by her mother. Additionally, appellant was to submit to
a drug and alcohol assessment with the results to be shared with the court.
{¶5} On July 18, 2019, appellant filed a motion to terminate the temporary order
and to reinstate the parties’ original parenting agreement. She asserted that her drug
assessment revealed that she did not meet the criteria for substance abuse. She further
asserted that she no longer associated with the boyfriend who had overdosed.
Case No. 20 JE 0014
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{¶6} The matter proceeded to a hearing before a magistrate on September 6,
9, and 13, 2019. The magistrate heard testimony from both parties, their significant
others, several family members, and the counselor who administered appellant’s drug
assessment. After hearing all of the evidence, the magistrate sustained appellee’s motion
and designated him the children’s residential parent. He concluded that there had been
a change in circumstances since the dissolution and that the harm caused to the children
by a change of environment was outweighed by the advantages of the change of
environment. The magistrate also analyzed the evidence to demonstrate that a change
in custody was in the children’s best interests. The magistrate stated that appellant was
to have parenting time pursuant to the court’s long distance guidelines whereby she would
have the children three out of four weekends per month. The magistrate also imputed
minimum wage to appellant for child support purposes.
{¶7} Appellant filed objections to the magistrate’s decision. She complained
there was no evidence of harm to the children, no evidence that she used drugs in the
children’s presence, an expert testified that she did not suffer from a drug addiction, the
magistrate abused his discretion in granting appellee’s motion, and the magistrate’s
decision violated her First Amendment Right to freedom of expression.
{¶8} The trial court overruled appellant’s objections on August 13, 2020. The
court stated that it found the magistrate’s decision well founded. It then ordered that the
magistrate’s decision was “approved, incorporated, and attached hereto.” Appellant filed
a notice of appeal with this court.
{¶9} On October 6, 2020, this court put on a judgment entry addressing the trial
court’s August 13, 2020 journal entry. We stated the trial court’s journal entry was not a
final, appealable order because it simply adopted the magistrate’s decision without stating
the rights, duties, and obligations of the parties. Therefore, we decided to hold the appeal
in abeyance and issued a limited remand to the trial court to enter a final, appealable
order. On February 16, 2021, after still not receiving a final judgment from the trial court,
this court put on another judgment entry instructing the trial court to issue a final,
appealable order.
{¶10} In response to this court’s instructions, on March 12, 2021, the trial court
entered a judgment granting appellee’s motion to reallocate parental rights and
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responsibilities and overruling appellant’s objections to the magistrate’s decision. The
court found that there had been a change in circumstances since the dissolution, that any
harm caused to the children by a change of environment was outweighed by the
advantages of the change of environment, and that a change in custody was in the
children’s best interest. The trial court designated appellee as the residential parent. It
granted appellant visitation three weekends per month from Friday at 5:00 p.m. until
Sunday at 5:00 p.m. with holiday and summer vacations governed by the standard
guidelines. The court also imputed minimum wage to appellant and ordered her to pay
monthly child support in the amount of $185.60.
{¶11} We then returned this appeal to our active docket. Appellant now raises
six assignments of error.
{¶12} Appellant’s first assignment of error states:
THE COURT OF COMMON PLEAS FAILED TO MAKE
INDEPENDENT FINDINGS OF FACT AND CONCLUSIONS OF LAW ON
THE OBJECTIONS FILED BY APPELLANT.
{¶13} Appellant argues the trial court was required to make findings of fact
independent from those of the magistrate. She asserts the trial court simply “rubber-
stamped” the magistrate’s decision and failed to make its own determination as to her
objections. She claims this was in violation of Civ.R. 53(D)(4)(d).
{¶14} Pursuant to Civ.R. 53(D)(4)(d) in ruling on objections to a magistrate's
decision, the trial court “shall undertake an independent review as to the objected matters
to ascertain that the magistrate has properly determined the factual issues and
appropriately applied the law.” Thus, the trial court is to apply a de novo review of a
magistrate's decision, not an abuse of discretion standard of review. Francis v.
McDermott, 2d Dist. Darke No. 1744, 2008-Ohio-6723.
{¶15} On review of the trial court's decision to adopt, reject, or modify a
magistrate's decision, an appellate court applies an abuse of discretion standard. RBS
Citizens, NA v. Sharp, 7th Dist. Mahoning No. 13 MA 11, 2015-Ohio-5438, 47 N.E.3d
170, ¶ 9.
{¶16} Pursuant to Civ.R. 53(D)(4)(d):
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If one or more objections to a magistrate's decision are timely filed, the court
shall rule on those objections. In ruling on objections, the court shall
undertake an independent review as to the objected matters to ascertain
that the magistrate has properly determined the factual issues and
appropriately applied the law.
{¶17} Here, the trial court issued a judgment on August 13, 2020, overruling
appellant’s objections and approving the magistrate’s decision. This court determined
that the trial court’s August 13 judgment was not a final, appealable order because it did
not state the rights, duties, and obligations of the parties. Consequently on March 12,
2021, the trial court issued another judgment entry.
{¶18} The trial court’s March 12 judgment entry provides in relevant part:
The Court has considered the record, the transcript from the
Magistrate’s hearing conducted on September 6, 9, and 13th, 2019, and all
evidence admitted.
Based thereon, the Court finds that the Magistrate’s Decision is well
founded upon sufficient facts and consistent with the law and therefore
adopts the same consistent with best interest of the Parties’ minor children.
WHEREFORE, consistent with the Magistrate’s findings, the Court
finds the following:
The court then restates the magistrate’s findings. It follows the findings by stating that
appellee’s motion to reallocate parental rights and responsibilities is granted and
appellant’s objections to the magistrate’s decision are overruled.
{¶19} In examining whether a trial court has complied with Civ.R. 53(D)(4)(d) in
ruling on objections to a magistrate’s decision;
a reviewing court will presume that the trial court conducted an independent
review of the magistrate's decision unless the Appellant affirmatively shows
that the trial court failed to conduct an independent analysis. Rokakis v. W.
Res. Leasing Co., 8th Dist. No. 95058, 2011-Ohio-1926, ¶ 18, citing
McCarty v. Hayner, 4th Dist. No. 08CA8, 2009-Ohio-4540, ¶ 18. Overruling
Case No. 20 JE 0014
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objections to the magistrate's decision and adopting that decision without
any explanation does not show a lack of independent review of the matters.
Millers v. Kasnett, 8th Dist. No. 100448, 2015-Ohio-298, ¶ 21. “[T]he trial
court is not required to ‘comment or reference’ any portion of the record in
undertaking its independent review of the record.” Id., citing Ernsberger v.
Ernsberger, 8th Dist. No. 100675, 2014-Ohio-4470, ¶ 21.
Miklas v. Miklas, 7th Dist. Belmont No. 14 BE 46, 2015-Ohio-3829, ¶ 22.
{¶20} In this case, appellant cannot affirmatively show that the trial court failed
to conduct an independent analysis. This court has upheld similar judgment entries
despite the trial courts’ failure to make independent factual findings or references to
specific objections.
{¶21} In Kennedy v. Milton Twp. Bd. of Trustees, 7th Dist. Mahoning No. 08 MA
263, 2010-Ohio-1405, ¶ 21, for instance, we upheld a judgment entry that stated in its
entirety:
This matter came before the Court on Appellant's Objections to the
Magistrate's Decision filed October 8, 2008, and Appellee, Milton
Township's, Reply. The Court finds that no error of law or other defect
appears on the face of the Magistrate's Decision. Appellant's Objections are
overruled and the Magistrate's Decision is hereby affirmed and made the
action, judgment and order of this Court. Therefore, Judgment is hereby
entered as follows: This Court hereby upholds the decision of Milton
Township Board of Zoning Appeals granting the Appellees, Donald and
Linda Spence, a Variance. Appellant's Appeal to this Court is hereby
dismissed. Costs to be taxed to the Appellant. This being no just cause for
delay, Judgment is entered as above specified. This is a final, appealable
order.
{¶22} We found the appellant did not affirmatively demonstrate that the trial court
failed to consider the objections and that this court should therefore presume the
regularity of the proceedings. Id. at ¶ 23. We pointed out that the trial court stated that
Case No. 20 JE 0014
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the matter came before it pursuant to objections, specifically overruled those objections,
adopted the magistrate's decision, and entered judgment. Id. at ¶ 25.
{¶23} Similarly, in Marafiote v. Estate of Marafiote, 7th Dist. Mahoning No. 14
MA 0130, 2016-Ohio-4809, ¶ 31, we upheld a trial court’s judgment that addressed the
objections to a magistrate’s decision that stated: “The Court finds that there is no reason
for an oral hearing on the issues presented in the objections and therefore declines to
conduct a hearing. Civ.R. 53(4)(d). The Court has undertaken an independent review as
to the objected matters to ascertain that the Magistrate has properly determined the
factual issues and appropriately applied the law in consideration of this matter.” We noted
that we previously found the cutting and pasting of a magistrate's decision into a judgment
entry does not show mere rubber-stamping. Id. at ¶ 32, citing Ramos v. Khawli, 181 Ohio
App.3d 176, 2009-Ohio-798, 908 N.E.2d 495, ¶ 26 (7th Dist.), citing Schmidli v. Schmidli,
7th Dist. Belmont No. 02 BE 63, 2003-Ohio-3274, ¶ 16. And we pointed out that the
appellant failed to present anything to rebut the presumption that the trial court conducted
the required independent analysis. Id. at ¶ 33.
{¶24} Appellant in this case has likewise failed to present any facts to rebut the
presumption that the trial court conducted an independent review of the magistrate’s
decision. Moreover, the trial court stated that in ruling on appellant’s objections it
considered the transcript from the three-day hearing, counsel’s oral arguments, and all
evidence admitted. These considerations indicate an independent review.
{¶25} While the better practice would arguably be for the trial court to specifically
address the objections, we cannot conclude the trial court abused its discretion or failed
to comply with Civ.R. 53(D)(4)(d) in this case.
{¶26} Accordingly, appellant’s first assignment of error is without merit and is
overruled.
{¶27} Appellant’s second and third assignments of error both assert that the
evidence does not support the trial court’s judgment. Thus, we will address them
together.
{¶28} Appellant’s second assignment of error states:
Case No. 20 JE 0014
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THE MAGISTRATE’S DECISION AND COURT OF COMMON
PLEAS AFFIRMATION OF THE DECISION IS [not] FACTUALLY
SUPPORTED BY THE RECORD.
{¶29} Appellant’s third assignment of error states:
THE LOWER COURTS’ RULINGS DRAW CONCLUSIONS
CONTRARY TO THE LAW IN THE STATE OF OHIO.
{¶30} Here appellant contends the trial court’s decision is against the weight of
the evidence. She contends there was no evidence that the children are in danger while
in her care. Appellant notes that until April 2019, the children had been in her care since
birth. She claims there was no evidence that she used drugs around the children, that
the children were exposed to drugs, or that the children witnessed her boyfriend’s
overdose. She asserts the only expert witness to testify indicated that she did not have
a drug addiction. Appellant further asserts there was no evidence that the children were
ever in harm’s way. Appellant claims the record lacks any evidence in support of
modifying custody.
{¶31} R.C. 3109.04 guides a trial court's discretion in a custody modification
proceeding. Miller v. Miller, 37 Ohio St.3d 71, 74, 523 N.E.2d 846 (1988). A trial court's
decision regarding the custody of a child which is supported by competent and credible
evidence will not be reversed absent an abuse of discretion. Bechtol v. Bechtol, 49 Ohio
St.3d 21, 550 N.E.2d 178 (1990), syllabus; Rohrbaugh v. Rohrbaugh, 136 Ohio App.3d
599, 603, 737 N.E.2d 551 (7th Dist. 2000). A trial court has broad discretionary powers
in child custody proceedings. Reynolds v. Goll, 75 Ohio St.3d 121, 124, 661 N.E.2d 1008(1996). This discretion should be accorded the utmost respect by a reviewing court in
light of the gravity of the proceedings and the impact that a custody determination has on
the parties involved. Trickey v. Trickey, 158 Ohio St. 9, 13, 106 N.E.2d 772 (1952).
{¶32} R.C. 3109.04(E)(1)(a)(iii) provides:
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
Case No. 20 JE 0014
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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:
***
(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.
{¶33} In determining a child's best interest either on an original decree allocating
parental rights and responsibilities or on a modification of such a decree, the court shall
consider all relevant factors, including, but not limited to:
(a) The wishes of the child's parents regarding the child's care;
(b) If the court has interviewed the child in chambers pursuant to division
(B) of this section regarding the child's wishes and concerns as to the
allocation of parental rights and responsibilities concerning the child, the
wishes and concerns of the child, as expressed to the court;
(c) The child's interaction and interrelationship with the child's parents,
siblings, and any other person who may significantly affect the child's best
interest;
(d) The child's adjustment to the child's home, school, and community;
(e) The mental and physical health of all persons involved in the situation;
(f) The parent more likely to honor and facilitate court-approved parenting
time rights or visitation and companionship rights;
(g) Whether either parent has failed to make all child support payments,
including all arrearages that are required of that parent pursuant to a child
support order under which that parent is an obligor;
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(h) Whether either parent or any member of the household of either parent
previously has [ever been convicted of certain offenses or had a child
adjudicated abused or neglected];
(i) Whether the residential parent or one of the parents subject to a shared
parenting decree has continuously and willfully denied the other parent's
right to parenting time in accordance with an order of the court;
(j) Whether either parent has established a residence, or is planning to
establish a residence, outside this state.
R.C. 3109.04(F)(1).
{¶34} Appellant’s argument asserts that appellee was required to show that the
children were in harm’s way while in her care in order for the court to order a change of
custody. But that is not the standard. Pursuant to R.C. 3109.04(E)(1)(a)(iii), the trial court
had to find a change in circumstances, that a modification is in the best interest of the
children, and the harm likely to be caused by a change of environment was outweighed
by the advantages of the change of environment.
{¶35} The trial court found a change in circumstances had occurred since the
parties’ dissolution. It found that appellant’s drug usage since the dissolution had clearly
increased. It noted that appellant admitted to using marijuana and experimenting with
methamphetamine. The court found this to be a bad example to set for the children. It
opined that appellant’s life appeared to be spinning out of control and that drug use was
not appropriate, especially with three young children. The court also found that the harm
likely to be caused by the change of environment was outweighed by the advantages of
the change of environment.
{¶36} And while the trial court did not specifically address the best interest
factors by name, it noted that R.C. 3109.04(E)(1) required that it find modification of the
prior parenting order was in the children’s best interest and it made numerous findings
that corresponded with the statutory best interest factors.
{¶37} As to the wishes of the children's parents regarding their care (R.C.
3109.04(F)(1)(a)), the court noted appellant’s objections to the magistrate’s decision
reallocating parental rights and responsibilities.
Case No. 20 JE 0014
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{¶38} As to the children’s interaction and relationship with their parents and other
family members (R.C. 3109.04(F)(1)(c)), the court noted the following. Appellee testified
the children get along well with his brother and family members who live nearby and help
with the children while he is working. Appellee’s girlfriend testified that appellee has a
good relationship with the children. And appellant’s boyfriend described appellant’s
relationship with the children as loving.
{¶39} As to the children's adjustment to the child's home, school, and community
(R.C. 3109.04(F)(1)(d)), the court pointed out that the house appellee shares with his
brother is large and well-kept and that the children have made a good adjustment to his
home. It further found that appellee has enrolled the children in Buckeye Local School
District and they appear to be doing well.
{¶40} As to the mental and physical health of all persons involved in the situation
(R.C. 3109.04(F)(1)(e)), the court found that appellant submitted to a drug and alcohol
assessment. It noted that the counselor who performed the evaluation found no pattern
of abuse and did not observe any behavior indicating a drug addiction.
{¶41} As to the parent more likely to honor visitation and whether either parent
has denied the other parent parenting time (R.C. 3109.04(F)(1)(f) and (i)), the court
observed that appellant had filed for a civil protection order against appellee in West
Virginia. The case was dismissed after a hearing. But while that matter was pending, it
made visitation with the children more difficult. The court also pointed to appellant’s
testimony that she has had difficulty contacting the children by phone while they are with
appellee and that one of her visits had not been made up.
{¶42} As to whether either parent has established a residence outside of Ohio
(R.C. 3109.04(F)(1)(j)), the court failed to specifically mention that appellant now lives in
West Virginia, although the testimony established this.
{¶43} As to the remaining factors, the trial court did not interview the children
(R.C. 3109.04(F)(1)(b)), there was no testimony as to child support payments or
arrearages (R.C. 3109.04(F)(1)(g)), and there was no testimony that either parent or
members of their households has ever been convicted of any crimes or had a child
adjudicated abused or neglected (R.C. 3109.04(F)(1)(h)).
{¶44} The evidence at the hearing supports the trial court’s findings.
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{¶45} Appellee testified that his work schedule is now different than it was at the
time of the dissolution and allows him more time to be with the children. (9/6/19 Tr. 13).
He opined that it was in the children’s best interest that the court designate him as the
residential parent. (9/6/19 Tr. 14).
{¶46} As to the events causing him to the file the emergency motion, appellee
stated that he learned appellant’s boyfriend, Jason Waugh, had overdosed at her
apartment while the children were present. (9/6/19 Tr. 16). He testified that appellant did
not call to inform him of the overdose, but instead her mother notified him of what
happened and that the children were at her house. (9/6/19 Tr. 17).
{¶47} Appellee also testified that in January of the current year, appellant called
him to pick up the children from her. (9/6/19 Tr. 19). He stated that appellant’s brother
had just been murdered and appellant was frantic because she did not know if she and
the children were in danger. (9/6/19 Tr. 19). The murder occurred at appellant’s mother’s
house. (9/6/19 Tr. 20). Appellee testified that appellant told him she was in fear because
her brother kept a record book for his sale/distribution of marijuana and her name and
phone number were in it. (9/6/19 Tr. 21-22). Appellant’s drug use caused appellee
concern. (9/6/19 Tr. 22). Appellee testified that less than a week after the murder, he
was at appellant’s father’s house talking with appellant and she was smoking marijuana
“to take the edge off.” (9/6/19 Tr. 24-25). And he testified that appellant made numerous
posts on social media regarding her drug usage. (9/6/19 Tr. 35-37).
{¶48} Additionally, appellee testified that appellant moved three times in the year
since the dissolution. (9/6/19 Tr. 27). He, on the other hand, has remained in the same
house. (9/6/19 Tr. 27-28). And appellee stated that appellant had multiple phone
numbers, and sometimes even no phone number, so that he had difficulty calling the
children. (9/6/19 Tr. 28). Appellee also testified that appellant had three different
boyfriends whom she introduced to the children in the year since the dissolution. (9/6/19
Tr. 29).
{¶49} As to his home and family, appellee testified that he lives with his brother
and the children love him. (9/6/19 Tr. 56-57). He further stated he has seven family
members who all live nearby who can help him with child care if needed. (9/6/19 Tr. 57-
58). Appellee stated that the children had adjusted to his home and their new school.
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(9/6/19 Tr. 65). He testified that appellant currently lives 45 minutes away from him.
(9/6/19 Tr. 61).
{¶50} Alexandria Dietz is appellee’s girlfriend. She testified that the children are
very close with appellee and appellee takes good care of them. (9/6/19 Tr.109-113). She
gave examples of things they do together like secret handshakes and riding four-
wheelers. (9/6/19 Tr. 110-111).
{¶51} Beth Ross is appellant’s mother. She testified regarding the overdose
incident. Ross stated that on the evening in question, appellant called her and told her
that a friend of hers was unresponsive in her bathroom. (9/6/19 Tr. 129). Ross went to
appellant’s apartment and found Jason Waugh unresponsive in the bathroom. (9/6/19
Tr. 129). She stated she had met Waugh previously at appellant’s home with the children.
(9/6/19 Tr. 134). As to her son who was murdered, Ross testified that her son had been
involved in selling drugs. (9/6/19 Tr. 135).
{¶52} Kylie Smail is appellant’s sister. She testified regarding a series of text
messages between her and her brother Logan (a different brother than the one who was
murdered) about appellant. Smail testified that her brother Logan sent her a message
that read: “I know what shes [sic.] on. I know the delusional thoughts that go through her
mind when she’s on it. . we can all agree that this is not her this is the addiction talking. .
I have been there and I was there for years luckily I got out. . i [sic.] know every person
shes [sic.] around and there’s not a good one in the group. . I’m not saying that she will
do that or that she is a threat i [sic.] am simply saying please at this point do not put
anything past her.” (9/9/19 Tr. 9). Smail stated that her brother sent this message shortly
after the overdose at appellant’s apartment. (9/9/19 Tr. 7). Smail further testified that
after their brother’s murder, appellant began to hang out with the wrong people and use
drugs. (9/9/19 Tr. 14). Smail stated that appellant admitted to her that she used
methamphetamine and that she needed help. (9/9/19 Tr. 14-15).
{¶53} Nancy Orr is the chemical dependency counselor who conducted
appellant’s court-ordered drug and alcohol assessment on July 9, 2019. Orr testified that
she did not categorize appellant as having a pattern of drug abuse. (9/13/19 Tr. 9). She
stated that appellant reported a one-time use of methamphetamine. (9/13/19 Tr. 18).
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She also stated that appellant reported using marijuana for five years but that she had
not used it in the last 30 days. (9/13/19 Tr. 23-24).
{¶54} Morgan Cantwell is appellant’s boyfriend. He testified that appellant is a
loving mother. (9/13/19 Tr. 45). He also testified that he only saw appellant smoke
marijuana once. (9/13/19 Tr. 59-60).
{¶55} Appellant was the final witness. Appellant stated that she currently lives
in West Virginia. (9/13/19 Tr. 62-63). As to Waugh, appellant stated that they knew each
other from high school and reconnected on Facebook. (9/13/19 Tr. 81). She testified
that Waugh’s children are close in age to her children and they began spending a lot of
time together with their children. (9/13/19 Tr. 82). Appellant stated that the relationship
lasted approximately three weeks. (9/13/19 Tr. 83). She testified that they never used
drugs in the children’s presence. (9/13/19 Tr. 84). But appellant admitted she
experimented with methamphetamine with Waugh while her children were with appellee
for the weekend. (9/13/19 Tr. 84).
{¶56} Appellant testified that on April 19, 2019, she was in her car with Waugh
and their children. (9/13/19 Tr. 86, 91). She was making a quick stop at her apartment
to pick something up. (9/13/19 Tr. 86). She pulled into her driveway, left the car running
with Waugh and the children in it, retrieved what she needed from her apartment, and
went back to her car. (9/13/19 Tr. 88). Waugh then told her he needed to use the
restroom. (9/13/19 Tr. 88). He went into her apartment while appellant stayed in the car
with the children. (9/13/19 Tr. 88). After thinking that Waugh was taking a long time, she
went in to check on him. (9/13/19 Tr. 88). Waugh looked “crazy” to her and was falling
into her bathtub. (9/13/19 Tr. 88). She ran back outside, got the children out of the car,
and called her mother. (9/13/19 Tr. 88). She brought the children inside. (9/13/19 Tr.
88). Once her mother arrived, appellant took the children to her neighbor’s house.
(9/13/19 Tr. 89). When she returned the EMTs and police were there. (9/13/19 Tr. 89).
She was told that Waugh had to be revived with Narcan. (9/13/19 Tr. 139). Appellant
stated that the children never saw Waugh in the bathroom. (9/13/19 Tr. 90). Appellant
testified that she has not associated with Waugh since his overdose. (9/13/19 Tr. 96).
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{¶57} Appellant next testified that she wanted to be the children’s residential
parent. (9/13/19 Tr. 98). She stated that she has never been diagnosed with a drug
addiction. (9/13/19 Tr. 102).
{¶58} Appellant also testified regarding her brother who was murdered. She
stated that she knew he sold marijuana and that she smoked marijuana with him. (9/13/19
Tr. 118-119). She admitted that she smoked marijuana during the time she was the
children’s residential parent. (9/13/19 Tr. 123).
{¶59} Appellant also stated that she was currently living in her third residence
since the dissolution, which was approximately 15 months prior, and that she had not filed
a notice of relocation with the court. (9/13/19 Tr. 131). And she stated that she had had
three boyfriends in that same time period. (9/13/19 Tr. 133). She also admitted that her
current boyfriend is still married. (9/13/19 Tr. 138).
{¶60} Finally, appellant admitted that since the dissolution, she got a large
marijuana tattoo on her arm. (9/13/19 Tr. 140, 150). When asked how she would explain
the tattoo to her children when they got older, she stated that marijuana would probably
be legal by then. (9/13/19 Tr. 150).
{¶61} As can be seen from the above cited testimony, there was competent,
credible evidence in support of the trial court’s decision. The evidence demonstrated a
change in appellant’s circumstances since the dissolution. Since the dissolution,
appellant had been smoking marijuana with her drug-dealing brother, experimenting with
methamphetamine, had a large marijuana leaf tattooed on her arm, and spent time with
a man who overdosed in her apartment while their children were outside in the car. Since
the overdose in appellant’s apartment, appellee has had temporary custody of the
children and the testimony indicated that they were well-adjusted to appellee’s home.
Thus, there is no indication that the trial court abused its discretion in granting appellee’s
motion to reallocate parental rights and responsibilities.
{¶62} Accordingly, appellant’s second and third assignments of error are without
merit and are overruled.
{¶63} Appellant’s fourth assignment of error states:
THE LOWER COURTS’ RULINGS VIOLATED DEFENDANT’S
FIRST AMENDMENT RIGHT TO FREEDOM OF EXPRESSION.
Case No. 20 JE 0014
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{¶64} In supporting the finding of a change in circumstances, the magistrate and
the trial court found that appellant acknowledged that she used marijuana and that she
experimented with methamphetamine. The court concluded: “This is not a good example
for the children.” The court went on to find:
When questioned about the large marijuana tattoo [on her arm], she was
not concerned that it was illegal. When asked what she would tell her
children, she said “It will be legal in a couple of years”. And then she stated
that she would tell them “It was a decision I made”. There seems to be no
thought that it was inappropriate and no real concern for what impact it
might have on the children.
(March 12, 2021 JE).
{¶65} In this assignment of error, appellant contends the magistrate imposed his
personal moral judgment on her absent a showing of harm to the children. In particular,
she points to the magistrate’s finding that her choice of a large marijuana leaf tattoo could
have an impact on the children. She claims her tattoo is protected by her right to free
speech. She then makes a lengthy argument about freedom of speech and the First
Amendment.
{¶66} The First Amendment to the United States Constitution provides that
“Congress shall make no law * * * abridging the freedom of speech * * *.” Per the
Fourteenth Amendment, the First Amendment's Free Speech Clause is applicable
against the states. Bey v. Rasawehr, 161 Ohio St.3d 79, 2020-Ohio-3301, 161 N.E.3d
529, ¶ 19, citing Manhattan Community Access Corp. v. Halleck, __ U.S. __, 139 U.S.
1921, 1928, 204 L.Ed.2d 405 (2019).
{¶67} The right to freedom of speech means that government does not have the
power to restrict expression because of the expression’s message, its ideas, its subject
matter, or its content. Bey, at ¶ 20, quoting Ashcroft v. Am. Civil Liberties Union, 535 U.S.
564, 573, 122 S.Ct. 1700, 152 L.Ed.2d 771 (2002), quoting Bolger v. Youngs Drug Prods.
Corp., 463 U.S. 60, 65, 103 S.Ct. 2875, 77 L.Ed.2d. 469 (1983), quoting Police Dept. of
Chicago v. Mosley, 408 U.S. 92, 95, 92 S.Ct. 2286, 33 L.Ed.2d 212 (1972).
Case No. 20 JE 0014
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{¶68} The First Amendment’s right to freedom of speech is not implicated in a
custody proceeding, as appellant seeks to do here. In a custody dispute we are not faced
with the government restricting someone’s expression. In this case, the court did not
restrict appellant’s freedom of expression. It simply observed that appellant’s choice to
tattoo a large drug symbol on her arm might not be the best example to set for her
children.
{¶69} Appellant complains that the court was forcing its morals on her by judging
her marijuana tattoo. But the issue in this case that precipitated appellee filing the motion
for a reallocation of parental rights and responsibilities was appellant’s association with a
man who overdosed on drugs in her apartment with her children nearby. Much of the
evidence at the hearing went to whether appellant had been using drugs or had
associated with drug users since the parties’ dissolution. The fact that she got a large
marijuana leaf tattooed on her arm was evidence in support of her fondness of the drug.
{¶70} In considering the best interests of the children, the trial court shall consider
“all relevant factors.” R.C. 3109.04(F)(1). Evidence of appellant’s marijuana use and
whether she believed a marijuana leaf tattoo was appropriate for her children to see was
relevant evidence in this case.
{¶71} Accordingly, appellant’s fourth assignment of error is without merit and is
overruled.
{¶72} Appellant’s fifth assignment of error states:
THE MAGISTRATE’S RECOMMENDATION AND THE COURT OF
COMMON PLEAS SUA SPONTE IMPLEMENTATION OF THE LONG
DISTANCE COMPANIONSHIP WAS AN ABUSE OF DISCRETION, NOT
SUPPORTED BY THE EVIDENCE, AND IS ACTUALLY HARMFUL TO
THE CHILDREN’S RELATIONSHIP WITH THEIR MOTHER WITH WHOM
THEY HAD SPENT EVERY DAY FROM THEIR BIRTH TO THE
FRIVOLOUS MOTION FILED BY FATHER.
{¶73} Appellant’s argument here is somewhat unclear. She takes issue with the
“Long Distance Guidelines” and asserts there was no evidence these guidelines would
serve the best interest of the children.
Case No. 20 JE 0014
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{¶74} We review a trial court's decision allocating parenting time for an abuse of
discretion. Booth v. Booth, 44 Ohio St.3d 142, 144, 541 N.E.2d 1028 (1988).
{¶75} The parties did not present much evidence as to a visitation schedule.
Appellee testified that the parties live a minimum of 45 minutes away from each other.
(9/6/19 Tr. 61). He did state that if he was the residential parent he would be able to
accommodate visits every other weekend and every other Tuesday to Thursday. (9/6/19
Tr. 61). But if appellant was the residential parent he could not make that schedule work
with his work schedule. (9/6/19 Tr. 62-63).
{¶76} The trial court determined that appellant would have parenting time the first,
second, and fourth weekends of each month from 5:00 p.m. on Friday until 5:00 p.m. on
Sunday. It further stated appellant would have telephone calls with the children three
nights per week. And that holidays and summer vacations would be governed by the
standard county guidelines.
{¶77} The trial court’s visitation order for appellant is substantially similar to the
visitation order the parties had originally agreed to for appellee in the dissolution. In that
order, appellee had visitation for three weekends per month from 8:30 a.m. on Saturday
until 5:30 p.m. on Sunday. Under the trial court’s visitation order for appellant, she
actually gets an additional night of visitation that appellee did not have since her weekend
visits begin on Friday evening instead of Saturday morning.
{¶78} Given the fact that the parties live 45 minutes away from each other, we
cannot conclude the trial court abused its discretion in implementing a weekend visitation
order. This order was similar to the order the parties had already been operating under,
only now with appellee as the residential parent. Moreover, the parties did not present
extensive evidence regarding visitation.
{¶79} Accordingly, appellant’s fifth assignment of error is without merit and is
overruled.
{¶80} Appellant’s sixth assignment of error states:
THE CHILD SUPPORT SHOULD BE REFERRED TO CSEA FOR A
PROPER DETERMINATION OF SUPPORT AFTER A RULING ON THIS
APPEAL.
Case No. 20 JE 0014
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{¶81} In her final assignment of error, appellant simply states that neither party
filed a financial affidavit, support has not been reviewed since the divorce, and a new
child support formula is now in place.
{¶82} In response, appellee points out that the trial court calculated child support
based on appellant earning minimum wage.
{¶83} We review matters concerning child support for abuse of discretion. Pauly
v. Pauly, 80 Ohio St.3d 386, 390, 686 N.E.2d 1108 (1997); Booth v. Booth, 44 Ohio St.3d
142, 144, 541 N.E.2d 1028 (1989).
{¶84} Pursuant to R.C. 3119.02, in any action where a court issues or modifies
a child support order, the court “shall calculate the amount of the parents' child support
and cash medical support in accordance with the basic child support schedule, the
applicable worksheet, and the other provisions of Chapter 3119. of the Revised Code.”
{¶85} Under the old shared parenting plan, appellee was paying child support to
appellant of $750.01 per month plus $156.75 in cash medical support per month since
health insurance was not reasonably available through either parties’ employers.
{¶86} In its judgment entry reallocating parental rights and responsibilities, the
trial court stated that it calculated child support based on appellant earning minimum
wage. It also stated that it gave appellant a ten percent deviation due to her parenting
time. The court ordered appellant to pay $156.46 per month in child support plus $25.50
in cash medical support per month.
{¶87} The trial court stated that it attached a copy of the child support worksheet
to its judgment. But there is no worksheet attached. This is likely because the trial court
copied the language of the magistrate’s decision. There is a worksheet attached to the
magistrate’s decision.
{¶88} In this case, there was minimal evidence presented at the hearing as to the
parties' income, health insurance, or other financial matters. The evidence was focused
on whether there was a change in circumstances and the children’s best interests.
Appellee did testify that he earns approximately $50,000 per year. (96/19 Tr. 13).
Appellant did not testify to her current income. Appellant testified that she currently works
at the West Liberty Town Hall and at an Econo Lodge hotel. (9/13/19 Tr. 75-76).
Case No. 20 JE 0014
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{¶89} The trial court in this case knew that appellant worked at West Liberty Town
Hall and at a hotel. And while appellant did not testify to her earnings, the court only
imputed minimum wage to her. Thus, we cannot conclude the trial court abused its
discretion in ordering child support.
{¶90} Accordingly, appellant’s sixth assignment of error is without merit and is
overruled.
{¶91} For the reasons stated above, the trial court’s judgment is hereby affirmed.
Waite, J., concurs.
D’Apolito, J., concurs.
Case No. 20 JE 0014
[Cite as Calhoun v. Calhoun, 2021-Ohio-4551.]
For the reasons stated in the Opinion rendered herein, the assignments of error
are overruled and it is the final judgment and order of this Court that the judgment of the
Court of Common Pleas of Jefferson County, Ohio, is affirmed. Costs to be taxed against
the Appellant.
A certified copy of this opinion and judgment entry shall constitute the mandate in
this case pursuant to Rule 27 of the Rules of Appellate Procedure. It is ordered that a
certified copy be sent by the clerk to the trial court to carry this judgment into execution.
NOTICE TO COUNSEL
This document constitutes a final judgment entry.