Neckles v. Ruthrauff , 2022 Ohio 3308 ( 2022 )

[Cite as Neckles v. Ruthrauff, 2022-Ohio-3308.]
IN THE COURT OF APPEALS OF OHIO
FOURTH APPELLATE DISTRICT
ATHENS COUNTY
KRISTYN NECKLES, :
Plaintiff-Appellee, : CASE NO. 21CA12
v. :
TERRY RUTHRAUFF, : DECISION AND JUDGMENT ENTRY
Defendant-Appellant. :
________________________________________________________________
APPEARANCES:
Kyle C. Henderson, Logan, Ohio, for Appellant1.
Gary Gottfried, Westerville, Ohio, for Appellee.
________________________________________________________________
CIVIL CASE FROM COMMON PLEAS COURT, DOMESTIC RELATIONS DIVISION
DATE JOURNALIZED:9-14-22
ABELE, J.
{¶1} This is an appeal from an Athens County Common Pleas
Court judgment that awarded custody of the parties’ child to
Kristyn Neckles, plaintiff below and appellee herein. Terry
Ruthrauff, defendant below and appellant herein, assigns two
errors for review:
FIRST ASSIGNMENT OF ERROR:
“THE TRIAL COURT ERRED BY FAILING TO
PROPERLY APPLY AND ANALYZE THE BEST INTEREST
FACTORS ENUMERATED IN ORC 3109.04(A)IN
1
Different counsel represented appellant during portions of
the trial court proceedings.
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DESIGNATING PLAINTIFF AS LEGAL CUSTODIAN.”
SECOND ASSIGNMENT OF ERROR:
“THE TRIAL COURT ERRED BY ADMITTING AND
SUBSEQUENTLY PLACING GREAT WEIGHT UPON
INADMISSIBLE EVIDENCE PURSUANT TO THE OHIO
RULES OF EVIDENCE.”
{¶2} Appellant and appellee are the biological parents of
H.R., born August 25, 2015 in Grenada, where the parties married
on February 14, 2015. The parties divorced on March 14, 2017 in
Grenada, but the Grenada court made no provision for H.R.’s
custody. On July 13 and 14, 2020, the trial court held a
hearing to consider the parties’ separate requests for custody.
{¶3} At the hearing, appellee testified that she served as
H.R.’s primary caregiver while in Grenada. Before the divorce,
appellee stated that appellant isolated himself, withdrew, and
had limited contact with H.R. At the time of the divorce, M.M.,
appellee’s older child born November 22, 2004, exhibited high
functioning autism, social anxiety, and dyscalculia, and lived
with appellant, appellee and H.R. M.M.’s presence in the
household apparently created some difficulties in the
relationship. For example, appellee testified that when M.M.
got marker on his sheets, appellant told M.M. “[i]f he couldn’t
behave himself he would * * * not be able to live with us.” In
December 2016, M.M. left Grenada to live in Miami, Florida with
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appellee’s sister because he needed more support for his
educational needs.
{¶4} In September 2017, appellee also left Grenada along
with H.R. and her mother. Appellee left “emergently” because
her sister could no longer care for M.M. in addition to her own
children. Before appellee left Grenada, appellant had sporadic
visits with H.R. and refused to acknowledge appellee’s presence.
{¶5} In 2017, appellee obtained an H1B Visa to seek
employment in the United States and took a position as a staff
psychologist at Ohio University, her Visa sponsor. Appellee
accepted the Ohio University offer over another offer in
Washington state because of its proximity to Maryland, where
appellant’s family lives and where the parties previously
discussed living if they moved to the United States.
{¶6} Before she arrived in Athens in September 2017,
appellee visited her sister in Miami. While in Miami, appellee
received a call from the Miami Shores Police that stated that
appellant had inquired about H.R.’s well-being. Appellee told
police she was in transit to Athens for employment and assumed
they relayed this information to appellant. Also, the day she
left Grenada appellee emailed appellant to advise him of her
move and shared her cell phone number.
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{¶7} A short time after moving to Athens, appellee filed a
complaint for custody but the complaint was dismissed due to
appellee’s pending complaint in Grenada. Appellee also stated
that during March, April, and May 2020, she offered appellant
in-person and electronic visitation, but he refused. Appellee
further testified that appellant did not contact H.R. or provide
presents or cards on his birthday or any other holiday.
{¶8} Appellee testified that H.R. and M.M. have a “very
close bond,” doing chores, science experiments, collecting
rocks, taking walks, and engaging together in other activities.
H.R. is also very close with his Grenadian maternal grandmother
and contacts her by phone. H.R. and M.M. are also close with
their cousins, aunts, and uncles and see them regularly.
Appellee and her boys attend cultural and other events at Ohio
University to “build that sense of * * * love, to * * * foster
that awareness that we are all different, * * * but we can
coexist.”
{¶9} Appellee stated that it is important to her, as a
mother and psychologist, that H.R have a strong relationship
with his father. Appellee described her relationship with
appellant as “tense [and] hostile,” and described appellant’s
passive-aggressive actions like zooming the camera in on H.R.
during electronic calls so appellee could only see his eye or
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the top of his head. Appellee also described her difficulty
communicating with appellant, stating that appellant would not
look at her during drop-offs and refused to take H.R.’s
belongings from appellee’s hands, forcing her to set items on
the ground before appellant would retrieve them. Appellee also
stated that appellant was financially controlling and asked her
to “hand over [her] paycheck” more than once.
{¶10} Appellee testified that, although she did not have
appellant’s consent to leave Grenada with H.R., she did speak to
him about her plan. Appellee did concede that she did not
consult appellant about testing H.R. into kindergarten early,
but appellant did not ask the name of the teacher or school so
that he could be involved. Appellee further testified:
Over the course of time, * * * you [appellant] have made
it * * * virtually impossible to collaborate, and
therefore you of your own behavior * * * have not
connected with [H.R.], you won’t talk to him [by] video,
you won’t talk to him on the phone, * * * you don’t
connect with him for his birthday, whether it’s a
birthday card, a phone call, Christmas, and that has all
been you, so I do think your relationship is different,
and it has impacted your bond.
{¶11} Appellee stated that her son often “cries for” her
when he is with appellant and that he returned from his last
visit with bruises and bites. When asked on cross-examination
what must happen for appellant to have the bond that appellee
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has with H.R., appellee replied, “[f]or you to stop putting your
needs and ego first and consider H.R.”
{¶12} Kendra Brooks, H.R.’s daycare teacher and babysitter,
has known H.R. and appellee for approximately two years. Brooks
stated that H.R. and M.M. have a great relationship and that
H.R. “talks about his Mother all the time, about how much he
loves her, bigger than the ocean, and um he’s just very sweet,
very kind.” Brooks described appellee as a “very present Mother
* * * “the toys that she brings in, the foods that she brings
in, everything is very intentional, she wants her kids to grow
educationally, she wants them to grow * * * to be good
citizens.” Michelle Monrose, appellee’s former mother-in-
law, testified that M.M. is the son of appellee and Monrose’s
son, Shervon. Monrose and her son live in Saint Lucia, but
Monrose frequently talks to M.M. and has “never been kept away
from [M.M.].” She further testified that appellee has always
facilitated their relationship. Monrose described appellee as
“a wonderful parent, very, very very good parent, in spite of
[M.M.]’s um condition she has, she’s doing an excellent job with
[M.M.]. I have no complaints when it comes to [appellee] taking
care of M.M.”
{¶13} Ohio University Child Development Center Master
Teacher Matthew Johnson testified that he worked with H.R. for
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approximately two years. The Center is racially and culturally
diverse, with children from many countries. Johnson testified
that H.R has excellent “verbal acuity,” is well adjusted,
“pretty tight” with his friend group, and enjoys nature walks.
H.R. often talks about [M.M.], and Johnson stated that appellee
takes “really good care” of H.R.
{¶14} Howard Pinnock, Acting Director of Public Prosecution
in Saint George’s, Grenada, testified that an attorney contacted
him on appellant’s behalf and inquired whether a mother leaving
Grenada with a child would be a criminal matter, but Pinnock
advised that his office is not an investigative body and,
instead, suggested that the attorney report the matter to
police. Pinnock later spoke with a detective and learned that
no investigation or criminal charges arose out of the matter.
{¶15} Athens Middle School Intervention Specialist Julie
Mollica testified she has been M.M.’s teacher for two years,
that M.M. has a good relationship with H.R., and appellee has
been “very involved, * * * always asking questions, wanting to
know how he’s doing, always comes to conferences.”
{¶16} Patton College of Education Stevens Literacy Center
Director Julie Francis testified that she worked with H.R. and
M.M. in their after-school reading club, and that H.R. is a
“very happy child, and he spreads his joy. * * * [H.R.] is one
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of those kids that * * * learning for him is just second nature,
cause he’s always thinking, he’s always talking, he’s always
exploring.” Francis described appellee’s family as an
“important engaged family.”
{¶17} Guardian Ad Litem Sonya Marshall testified that she
spoke with both parties during her investigation and reviewed
the pleadings and documents. Marshall visited appellee at her
home, but due to the COVID-19 pandemic conducted a Skype home
visit with appellant. Marshall stated that the most significant
challenge is “they struggle to communicate and co-parent
together * * * for [H.R.].” Both parties have good intentions
and “want to act in [H.R.]’s best interest.” Marshall believed
that both residences are safe and stable, and neither has mental
health or substance abuse issues.
{¶18} After she concluded her investigation, Guardian Ad
Litem Marshall recommended the court designate appellee H.R.’s
residential parent and legal custodian, that H.R. reside
primarily in Ohio with appellee, and appellant have parenting
time with H.R. Marshall did not recommend shared parenting due
to the distance between the parties, and further noted that, if
appellant became H.R.’s residential parent would be “a drastic
shift in H.R.’s * * * world,” and “it would be really difficult
for [H.R.] to adjust to that.” Marshall also recommended that
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the court hold H.R.’s passport so neither party could take him
out of the country without the other party’s consent. Marshall
did acknowledge on cross-examination that when appellee removed
H.R. from Grenada, it was “like a stick of dynamite” to the
couple’s divorce proceedings.
{¶19} Appellant testified that appellee kept his son from
him for 777 days, from September 18, 2017 to November 2, 2019,
and further accused appellee of the violation of “repeated
rulings by Ohio courts,” and the Hague Convention. Appellant
stated that appellee has been “quite aggressive on three or four
occasions,” that appellant is afraid of appellee and feels
vulnerable to possible accusations due to his federal
employment. Appellant testified:
Plaintiff’s Ohio scheme is not working and not in
[H.R.]’s best interest. * * * Plaintiff’s behavior is
damaging to my son, and I must protect and position him
to achieve at his optimal for this precarious human life.
* * * The Plaintiff has willfully and repeatedly blocked
my access to my son, pre-birth to the present day. * *
* [T]his has been a brutal weaponization of a little boy
for whatever reason we cannot explain, but it’s resulted
in the most heartbreakingly painful period of my entire
life by far.
As for keeping in touch with H.R. electronically, appellant
stated:
About electronic interaction and phone interaction, it’s
qualitatively and quantitatively remarkably different,
it just doesn’t work for me, that’s not the kind of
Father I wanna be. * * * Why don’t I phone and video
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conference with [H.R.], it’s heart wrenchingly painful
to see a little boy that I desperately love so cut off
from me, I do not value electronic interaction, I simply
don’t. I want direct daily, in the same physical space
contact. I’m a humanist, and that’s what we value, you
know I am not gonna settle for the crumbs of parenthood.
{¶20} Appellant testified that on October 22, 2017 he first
became aware of appellee’s and H.R.’s Athens residence, but
acknowledged that at that time that he did not seek custody or
visitation. Appellant’s employment with Saint George’s
University in Grenada ended July 31, 2018, and he left Grenada
on August 1, 2018 without employment secured in the United
States.
{¶21} Appellant maintained that appellee could “very easily
transition to Shepardstown [West Virginia] or in that area” near
appellant’s family. When the magistrate asked whether appellant
could have moved to Athens when he relocated to the United
States, he replied, “No,” citing his family and higher income
where he lives. Appellant stated, “I want [H.R.] to experience
* * * the richness of both sides of the family, both extended
sides of the family, everyone, this is all about inclusivity,
this is not about excluding anyone.” Appellant did acknowledge,
however, that appellee could not move from Ohio to Shepardstown
without securing an H1B Visa sponsorship in a new location.
{¶22} Appellant also stated his belief that child support is
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“incredibly unfair” to him, and he does not understand why he
pays child support when he cannot see his son. Appellant
complained that the total amount of support he would pay until
his son reaches the age of majority is over $300,000, and it
would “cripple my ability to provide for my son and frankly
because I’m part of this relationship too, it will cripple my
ability to care for myself * * *.” Appellant acknowledged his
$133,465 salary, but stated that he will be 60 on his next
birthday and “I do not have many work years left.” Appellant
also admitted he did not attend a required Parenting Seminar,
but said he did not know about the seminar. Appellant did also
acknowledge that he had been in the Athens area since the
Saturday prior to the hearing, but declined an opportunity to
Skype with H.R.
{¶23} Rebecca Gorra testified that she has known appellant
for 35 years, is a former colleague and described appellant as
financially responsible, “extraordinary, unique, one of a kind,”
and “a wonderful father.” Ms. Gorra acknowledged that she once
had a relationship with appellant, that she had seen appellant
interact with H.R. for only three days, and that appellant’s
failure to pay child support until very recently is
understandable “under these circumstances.”
{¶24} John Gorra, Jr., Rebecca’s husband, first met
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appellant in 1997. Appellant has stayed in the Gorras’ home
many times and they know each other well. Although Mr. Gorra
observed appellant interact with H.R. for only a few hours, he
said appellant has had very positive interactions with the
Gorras’ children over the years.
{¶25} Alexandra Groody testified that she met appellant in
1998 at the Antioch University Clinical Psychology Program.
Groody also visited appellant and appellee in Grenada when H.R.
was born, and planned to visit H.R. with appellant in Athens,
but appellee canceled the visit. Groody described appellant as
peaceful, organized, disciplined, generous, and fair, and that
his separation from H.R. has ruined appellant’s life, “been
disastrous, * * * horrible, * * * heartbreaking * * *
bewildering.”
{¶26} Jewel Ann Ruthrauff Grossnickle, appellant’s sister,
has a close relationship with appellant. She has observed
appellant care for his son, described H.R. as very happy, and
does not understand why appellant does not have custody of H.R.
Ms. Grossnickle also expressed admiration for her brother and
noted that appellant even forgave the man who murdered their
mother. On cross-examination, Ms. Grossnickle acknowledged
that, although she had appellee’s email address, she did not
reach out to appellee to schedule a visit.
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{¶27} Kevin Grossnickle, appellant’s brother-in-law, has
known appellant since 2014 and recently spent time with H.R.
when he visited appellant in June and July 2020. He believes
H.R. should be in appellant’s care. Mr. Grossnickle did not
think H.R. should be in appellee’s care because she called his
wife and made her cry, then he had to contact appellee to ask
her to stop calling.
{¶28} Bennett Shouse has known appellant since 1995 when
they met in the Peace Corps. Shouse also traveled to Athens
with appellant in November 2019 when appellant visited H.R. for
three hours at the library. Shouse testified that appellant
should be the residential parent because appellee is
“vindictive.” Shouse conceded, however, that he has not seen or
spoken with appellee since the parties’ divorce, and he did not
know appellant canceled visits with H.R. for March, April, and
May 2020, and did not financially support H.R. until the court
ordered support. Shouse also did not know that appellee offered
appellant the opportunity to video chat or Skype, but appellant
declined.
{¶29} Lauri Ricker has known appellant for 30 years and was
a colleague for four years. Ms. Ricker observed appellant
interact with H.R. once during a two or three-hour visit at
appellant’s home and described appellant as an honest and decent
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person. She agreed that a responsible parent communicates with
his or her child, acknowledges a child’s birthday, and is
financially supportive. Patrick Ricker, Lauri’s husband, has
known appellant since 1990 when they worked together. Mr.
Ricker testified that appellant is caring, inquisitive, honest
and, with a large circle of friends. Mr. Ricker did not know
why appellant should not be H.R.’s residential parent.
{¶30} Hugo Hoffman has known appellant for 25 years after
they met in the Peace Corps. Hoffman also accompanied appellant
in Athens when they visited with H.R. at the library for three
hours. Hoffman did not know any reason why appellant should not
be the child’s residential parent, and said that H.R.’s absence
has been detrimental to appellant’s health and emotional well-
being.
{¶31} On November 24, 2020, after reviewing the evidence and
considering counsels’ arguments, the magistrate recommended a
custody award to appellee and parenting time to appellant.
After both parties objected to the magistrate’s decision, the
trial court directed the magistrate to supplement her November
24, 2020 decision to address travel arrangements for defendant’s
monthly visitation and tax credit or dependency benefits.
Subsequently, the magistrate issued a supplemental written
recommendation and the trial court overruled the parties’
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objections, adopted the magistrate’s decision and entered final
judgment. This appeal followed.
I.
{¶32} In his first assignment of error, appellant asserts
that the trial court failed to properly analyze and apply the
R.C. 3109.04(A) best interest factors when it designated
appellee the custodian of H.R.
{¶33} At the outset, we recognize that the case sub judice
involves a contentious relationship between appellant and
appellee, H.R.’s biological parents, who both appear to
genuinely love and care about their minor child’s well-being.
After the trial court heard the evidence and the guardian ad
litem’s recommendation, the court attempted to decide the
difficult issue of parental custodial rights, with H.R.’s best
interest as the court’s paramount consideration. We also
recognize and emphasize that decisions in child custody matters
are among “the most difficult and agonizing decisions a trial
judge must make.” Davis v. Flickinger, 77 Ohio St.3d 415, 418,
674 N.E.2d 1159 (1997). Again, this is especially true in
situations when two loving, caring parents are sincere in their
effort to act in their child’s best interest. Therefore, trial
judges must have wide latitude in considering all the evidence
and such decision must not be reversed absent an abuse of
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discretion. Id., citing Miller v. Miller, 37 Ohio St.3d 71, 523
N.E.2d 846 (1988). The Supreme Court of Ohio has explained:
The reason for this standard of review is that the trial
judge has the best opportunity to view the demeanor,
attitude, and credibility of each witness, something
that does not translate well on the written page.
* * *
This 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.
Davis, 77 Ohio St.3d 415, at 418-419.
{¶34} To determine if a court has abused its discretion, an
appellate court must examine the facts and applicable law and
determine whether the trial court’s decision is unreasonable,
arbitrary or unconscionable. Blakemore v. Blakemore, 5 Ohio
St.3d 217, 450 N.E.2d 1140 (1983). Thus, when a substantial
amount of credible and competent evidence supports a custody
award, a reviewing court will not reverse that determination.
Bechtol v. Bechtol, 49 Ohio St.3d 21, 550 N.E.2d 178 (1990),
syllabus.
In determining the allocation of parental rights and
responsibilities, courts must consider a child’s best interest.
R.C. 3109.04(B)(1); In the Matter of J.S., 4th Dist. Meigs No.
18CA24, 2019-Ohio-4959, ¶ 12, In the Matter of A.B., 2019-Ohio-
90, 128 N.E.3d 694, ¶ 39 (4th Dist.). R.C. 3109.04(F)(1) provides
the framework for analysis and states that to determine a child’s
best interest, a court must “consider all relevant factors,
including, but not limited to,” the following:
(a) The wishes of the child’s parents regarding the child’s
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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;
(h) Whether either parent or any member of the household
of either parent previously has been convicted of or
pleaded guilty to any criminal offense involving any act
that resulted in a child being an abused child or a
neglected child; whether either parent has been
determined to be the perpetrator of the abusive or
neglectful act that is the basis of an adjudication;
whether either parent or any member of the household of
either parent previously has been convicted of or
pleaded guilty to a violation of section 2919.25 of the
Revised Code or a sexually oriented offense involving a
victim who at the time of the commission of the offense
was a member of the family or household that is the
subject of the current proceeding; whether either parent
or any member of the household of either parent
previously has been convicted of or pleaded guilty to
any offense involving a victim who at the time of the
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commission of the offense was a member of the family or
household that is the subject of the current proceeding
and caused physical harm to the victim in the commission
of the offense; and whether there is reason to believe
that either parent has acted in a manner resulting in a
child being an abused child or a neglected child;
(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.
{¶35} Appellant contends that, although the magistrate’s
decision generally considered the R.C. 3109.04(F)(1) factors,
the trial court erroneously applied those factors to award
appellee legal custody. In particular, appellant argues that
the court failed to apply significant factors of subsections
(f), (i), and (j), despite “substantial evidentiary testimony.”
{¶36} Once again, we emphasize that in general, and
especially in contested child custody maters, a trial court is
in the best position to weigh evidence. Hammond v. Harm, 9th
Dist. Summit No. 23993, 2008-Ohio-2310, ¶ 51; Blausey v.
Blausey, 6th Dist. Ottawa No. OT-18-039, 2019-Ohio-4506, ¶ 14.
Further, a trial court has discretion to determine which factors
are relevant, and each factor may not necessarily carry the same
weight or have the same relevance, depending on the facts before
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the trial court. Krill v. Krill, 3d Dist. Defiance No. 4-13-15,
2014-Ohio-2577, ¶ 29, citing Brammer v. Brammer, 3d Dist. Marion
No. 9-12-57, 2013-Ohio-2843, ¶ 41; Hammond at ¶ 51. After our
review in the case sub judice, we believe that appellant’s
argument that the trial court failed to properly analyze the
R.C. 3109.04(A) best interest factors is without merit.
{¶37} In its decision, the trial court noted that the
parties separated when H.R. was one-year old. Appellee then
initiated a divorce and the parties participated in mediation
and agreed to a parenting schedule for December 27, 2016 to
January 31, 2017. Later, appellant stated that he was “deeply
opposed” to a mediation agreement and signed it “under duress.”
On April 7, 2017, appellee initiated custody proceedings in
Grenada.
{¶38} The trial court observed that on September 29, 2017,
appellee left Grenada with H.R. and came to the United States.
The court noted that throughout the pendency of the case,
appellant alleged that appellee “kidnapped” or “abducted” H.R.
and/or “left Grenada with [H.R.] without Defendant’s consent,
and in breach of the mediation agreement.” The court
determined, however, that the mediation agreement did not
prohibit appellee from traveling with H.R. and her other son,
and actually implied she is the custodial parent as the
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mediation agreement set forth a parenting schedule for appellant
and required appellant to retrieve H.R. from appellee.
{¶39} The trial court also referred to a May 7, 2017 email
from appellant to appellee in which appellant wrote, “When
people find my decapitated, headless, shot through, overdosed,
bled out, drowned and crumpled carcass washed up on a beach
somewhere, please feel free to take the blame.” Further, in a
May 8, 2017 email, appellant wrote to appellee, “Does your
father have a handgun? If so, could I borrow it for just a
second? I would not make such a request again, as I would only
need it once.” The court described multiple instances of
appellant rebuffing appellee’s offers to visit their son and
referred to appellant’s 96-page pretrial hearing affidavit,
which, inter alia, states:
Who else on this planet besides the plaintiff would think
my email messages of May 7 and 8, 2017, conveyed blame
and suicidal intent and try to use it against me? Her
misinterpretation clearly illustrates how she
psychopathologizes my way of being in the world, reaches
erroneous conclusions about me and then acts on them,
which includes moving my son around the planet without
my knowledge or consent. If she really thought I was
suicidal, why did she later do exactly what supposedly
put me into that state and separate me from [H.R.]?
{¶40} The trial court also pointed out that, although
appellant’s pretrial hearing affidavit denies that he refused to
spend time with H.R. from August 1 to 25, 2018, appellant’s own
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email indicates that he would “NEVER come to Athens” and he felt
reaching a temporary agreement “too risky” for him. The court
also referenced other examples when appellant claimed he wished
to visit his son, but refused offers to do so. The court
further observed that appellant does not send birthday or
holiday cards or presents and “has chosen not to have any
contact with [H.R.] outside of his parenting time.”
{¶41} Regarding the trial court’s legal analysis and
conclusions of law, the trial court cited R.C. 3109.04(A) and
reviewed the R.C. 3109.04(F)(1) best interest factors.
Concerning (F)(1)(a), the wishes of the parents, the court
observed that both parties sought sole custody. Regarding
(F)(1)(b), wishes of the child, the court noted that neither
party requested an in camera interview. Concerning (F)(1)(c),
the child’s interaction and interrelationship with the child’s
parents, siblings and other persons, the court noted that:
[H.R.] seems to be a special child. Everyone who comes
into contact with him, loves him. He radiates joy and
happiness. He loves both parents but is closer to his
mom than his dad. To some extent this is due to
Plaintiff’s actions, specifically, the nature of
Plaintiff’s departure from Grenada, setting up home
here, and the resulting lack of contact between
Defendant and [H.R.], but it’s not all due to that. * *
*
Defendant, through his own actions and inactions, has
contributed to this difference in [H.R.]’s respective
relationships with his parents. Defendant has
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absolutely refused to take advantage of technology and
to video-chat and/or Skype with [H.R.] And he hasn’t
refused to do so out of any concern for [H.R.], but
rather because it’s not the relationship he wants. He
sees no value in it - no value in telling his little boy
good night, or reading him a bedtime story, or just
seeing how he’s doing, or hearing what they each did
that day - when he’s unable to be with him. It may be
of no value to Defendant; but it’s priceless to a child.
For the months of March, April, and May, 2020, Defendant
canceled his visits due to COVID, which the Magistrate
does not fault him for, but he had NO contact with [H.R.]
during those months and that was entirely his choice.
So, while Plaintiff is not innocent in creating this
situation; neither is Defendant.
[H.R.] is very close to his big brother, [M.M.],
Plaintiff’s older son who resides with them in Athens.
Defendant has family and friends that reside in the
Shepherdstown area and these individuals would, no
doubt, provide a family structure for [H.R.] and family
support. It’s interesting that Defendant’s family
described it as ‘heart wrenching’ to have not been able
to see [H.R.], yet none of them ever contacted her to
ask about seeing [H.R.]. Defendant’s friends testified
as to Plaintiff’s ‘bad behavior’ and keeping [H.R.] from
Defendant, yet none were aware of Defendant’s canceled
visits, of Defendant declining Plaintiff’s offers of
additional parenting time, of Defendant’s absolute
refusal to video-chat with [H.R.], or of Defendant’s own
‘neglect’ in not observing his son’s birthday.
{¶42} Appellant argues that the trial court (1) minimized
“the unnoticed move to another country of Mother and the impact
that has had on the relationship between Father and Child,” and
(2) placed “significant emphasis on the position of Father to
not seek video or telephone contact.” We believe, however, that
23
ATHENS, 21CA12
the trial court spent considerable time analyzing and applying
this factor. The fact that appellant may disagree with the
outcome is inconsequential, as appellant does not point to
anything in the record to indicate that the court acted
unreasonably, arbitrarily or unconscionably. Regarding
(F)(1)(d), the adjustment to the child’s home, school, and
community, the trial court found that H.R. is well-adjusted to
life in Athens, has friends, and enjoys daycare. The court
recognized that appellant chose to seek employment away from
Athens to earn greater income and be close to his family, rather
than proximity to his son. Appellant, however, contends that
appellee’s presence in Athens is temporary and her work Visa
expires in August 2022, while appellant is a West Virginia
permanent resident. However, as the trial court observed (1)
Ohio University extended appellee’s H1B Visa for three years,
effective August 27, 2019, and (2) the Visa is not transferrable
to another employer without starting the application process
anew. Once again, appellant may disagree with the outcome, but
fails to establish an abuse of discretion.
{¶43} Regarding (F)(1)(e), the mental and physical health of
all persons, the trial court remarked that appellant appears to
be a prisoner of the past, while appellee does not. The court
read every communication between the parties and found appellee
24
ATHENS, 21CA12
to be “polite and courteous,” while appellant “derogatory and
dismissive, and even insulting.” For example, the court noted a
comment from one of appellant’s communications, “If you are
confused about the order, perhaps it would be useful for you to
consult with your buddy, Attila the Attack Attorney. Junior or
Senior. Oh wait, I am not entirely convinced that Junior can
read.” We, recognize, however, that it is not uncommon for the
disintegration of a marriage to be extremely tumultuous and
minor indiscretions should not be accorded great weight.
{¶44} Concerning (F)(1)(f), the parent more likely to honor
and facilitate court-approved parenting time rights or
visitation and companionship rights, the trial court found both
parties equally likely to honor court orders. However,
appellant points out that appellee had been found in contempt
for denial of holiday parenting time. Although appellant is
correct about appellee’s interference with appellant’s Christmas
2019 parenting time, and established as a purge condition that
appellant have parenting time Christmas 2020, the trial court
considered this incident to be “a unilateral mistake” and
“misunderstanding.” Moreover, even if we consider, for purposes
of argument, that the trial court erred in applying this
particular factor, we believe that ample competent, credible
evidence supports the R.C. 3109.04(F) determination.
25
ATHENS, 21CA12
{¶45} Regarding (F)(1)(g), whether either parent has failed
to make all child support payments, and (F)(1)(h), criminal
offenses, the trial court noted that neither party raised these
particular issues.
{¶46} Regarding (F)(1)(i), whether the residential parent,
or one parent subject to a shared parenting decree, has
continuously and willfully denied the other parent’s right to
parenting time pursuant to a court order, the trial court did
not consider evidence as to this factor. Although appellant
argues that the trial court should consider the contempt finding
and appellee’s relocation that occurred during the Grenada court
proceeding to be a willful denial of parenting time, the trial
court pointed out that no court order prevented appellee from
leaving Grenada with H.R.
{¶47} Finally, regarding (F)(1)(j), whether either parent
has established a residence, or is planning to establish a
residence, outside this state, the trial court noted that
neither party raised this issue. Although R.C. 3109.04(F)(1)(j)
requires a court to consider whether a parent has established a
residence outside of Ohio, generally “nonresidence alone should
not deprive a parent of custody.” Ornelas v. Ornelas, 2012-
Ohio-4106, 978 N.E.2d 946, ¶ 13, citing Marshall v. Marshall,
117 Ohio App.3d 182, 187, 690 N.E.2d 68 (3d Dist.1997).
26
ATHENS, 21CA12
Appellant, however, asserts that this is the most significant
factor, in view of the fact that appellee is a resident of
Grenada and living in the U.S. on a temporary work visa. The
court found:
Plaintiff’s employment offer from Ohio University was
conditional upon obtaining a non-immigrant work Visa
(H1B Visa). To do so, requires a sponsor and Ohio
University was Plaintiff’s sponsor. This Visa was not
transferrable to another employer; rather, a new
employer would need to complete a new Petition for a
Nonimmigrant Worker and have it approved in order to
Plaintiff to remain in the United States on an H1B Visa.
* * * Plaintiff’s H1B Visa was extended for three (3)
years effective August 27, 2019, again, sponsored by her
employer, Ohio University.
Further, the court ordered H.R.’s passport deposited with the
Athens County Clerk of Court and that:
either party desiring to travel internationally with
[H.R.} shall need to petition the Court to do so, thereby
giving notice to the other party of the request. The
Court shall schedule a hearing on the matter and will
not order release of the passport without a hearing.
{¶48} Consequently, although appellee is a Grenadian citizen
and moved to Athens County, we find nothing in the record to
suggest that appellee plans to relocate outside Ohio, or that
the trial court’s judgment does not address international
travel. Once again, we believe that competent, credible
evidence supports the trial court’s R.C. 3109.04(F)
27
ATHENS, 21CA12
determination.
{¶49} It is also important to again emphasize that when a
court makes a child custody determination, the child’s best
interest is the primary consideration, not the parents' best
interests. In the case sub judice, although the distance
between the parties does create a challenge to formulate a
reasonable parenting plan, before fashioning the custody order
the trial court thoroughly reviewed the R.C. 3109.04 factors in
a comprehensive judgment entry and concluded it is in H.R.’s
best interest to designate appellee the residential parent and
legal custodian and award appellant parenting time.
{¶50} Therefore, after our review of the record in the case
at bar, we conclude that the evidence adduced at the hearing
supports the trial court’s designation of appellee as the
child’s residential parent. Thus, we do not believe that the
court’s judgment constitutes an abuse of discretion.
{¶51} Accordingly, based upon the foregoing reasons, we
overrule appellant’s first assignment of error.
II.
{¶52} In his second assignment of error, appellant asserts
that the trial court erred by admitting and placing great weight
on certain inadmissible evidence, including various out-of-court
28
ATHENS, 21CA12
statements.
{¶53} First, appellant argues that the trial court relied
upon an out-of-court statement contained in an October 7, 2019
letter from Higher Marks Educational Centre, Grenada, that
states that the Centre could not meet the needs of M.M. and
“there is no school on the island with a specialized program
that could deal effectively with [M.M.]’s academic challenges in
a way that would help him to self-actualize.” Appellant
contends that this letter was not subject to cross-examination
and constitutes hearsay.
{¶54} “ ‘Hearsay’ is a statement, other than one made by the
declarant while testifying at the trial or hearing, offered in
evidence to prove the truth of the matter asserted.” Evid.R.
801(C). Generally, hearsay is inadmissible unless the statement
falls under a hearsay exception. Evid.R. 802. “Ordinarily, we
review a trial court's hearsay rulings for an abuse of
discretion.” State v. McKelton, 148 Ohio St.3d 261, 2016-Ohio-
5735, 70 N.E.3d 508, ¶ 97, citing State v. Hymore, 9 Ohio St.2d
122, 128, 224 N.E.2d 126 (1967). However, because in the case
sub judice appellant did not object to the admission of these
items, we must review for plain error. State v. Obermiller, 147
Ohio St.3d 175, 2016-Ohio-1594, 63 N.E.3d 93, ¶ 72, citing State
v. Fitzpatrick, 102 Ohio St.3d 321, 2004-Ohio-3167, 810 N.E.2d
29ATHENS, 21CA12
927, ¶ 66. Generally, courts recognize plain error “ ‘with the
utmost caution, under exceptional circumstances and only to
prevent a manifest miscarriage of justice.’ ” State v. Landrum,
53 Ohio St.3d 107, 111, 559 N.E.2d 710 (1990), quoting State v.
Long, 53 Ohio St.2d 91, 372 N.E.2d 804 (1978), paragraph three
of the syllabus. For plain error to apply, a trial court must
have deviated from a legal rule, the error must have been an
obvious defect in the proceeding, and the error must have
affected a substantial right. State v. Barnes, 94 Ohio St.3d
21, 27, 759 N.E.2d 1240 (2002). Under the plain error standard,
appellant must demonstrate that the outcome of the proceedings
would clearly have been different but for the trial court's
errors. State v. Waddell, 75 Ohio St.3d 163, 166, 661 N.E.2d
1043 (1996), citing State v. Moreland, 50 Ohio St.3d 58, 552
N.E.2d 894 (1990).
{¶55} Although the Centre letter is an out-of-court
statement, we do not believe the proponent offered the statement
to prove the truth of the matter asserted. As appellee notes,
appellee offered the letter to provide context for her departure
from Grenada. The magistrate referred to the letter in
reference to appellant’s denial that a program in Grenada could
not meet appellee’s son’s needs. Moreover, appellant did not
object to the letter’s admission. Here, we cannot conclude that
30
ATHENS, 21CA12
the outcome of the proceedings would have been different but for
the letter’s admission.
{¶56} Second, appellant contends that an affidavit from
Brendon La Touche, Crown Counsel in the Office of the Director
of Public Prosecutions, also constitutes hearsay. The
magistrate’s decision observes: “Defendant has stated, attested
to, and testified that Plaintiff was the subject of a criminal
investigation and charges in Grenada for abduction of [H.R.].”
Further, the court noted that appellant’s September 13, 2019
affidavit stated:
On January 24, 2018, when it finally became evident to
me that Plaintiff had no intention of returning to
Grenada, or allowing me to visit with [H.R.] in Ohio, I
pressed criminal charges through Grenada’s Criminal
Investigation Department of the Royal Grenadian Police
Force against Plaintiff for abducting [H.R.] and evading
my parental custody.
The magistrate pointed out that the La Touche affidavit “denies
such and states that there are/were no such charges or
investigations and that Defendant made no such report on January
24, 2018 as he claims.” Also, like the Centre letter, appellant
did not object to this affidavit. Once again, under the plain
error standard of review, we cannot conclude that the outcome of
the proceedings would have been different but for the admission
of the affidavit.
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{¶57} Finally, appellant asserts that appellee’s testimony
regarding an out-of-court statement of an unknown Miami Shores
Police Department employee regarding H.R.’s location constitutes
hearsay. At the hearing, appellee testified that she flew to
Miami in late September 2017, then in early October 2017 arrived
in Athens to start employment. Appellee stated that, while in
Florida, a member of the Miami Shores Police Department called
her for a well-check for H.R. that appellant had requested.
Appellee testified that she told the police she was in transit
to Athens to start a new job and “was advised that MSPD
communicated this” to appellant. Appellant argues that the
trial court placed significance on this statement and then
shifted the burden to appellant regarding why, at that point, he
did not relocate to Athens.
{¶58} However, as with the other matters mentioned above,
appellant did not object to appellee’s testimony regarding her
phone conversation with the police. Under the plain error
standard of review, we cannot conclude that the outcome of the
proceedings would have been different but for the admission of
this testimony. In view of the scope of the issues and evidence
adduced at the hearing, we do not believe that these alleged
hearsay matters are not of sufficient importance to impact the
trial court’s decision.
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{¶59} Accordingly, based upon the foregoing reasons, we
overrule appellant’s second assignment of error and affirm the
trial court’s judgment.
JUDGMENT AFFIRMED.
JUDGMENT ENTRY
It is ordered that the judgment be affirmed and appellee
recover of appellant the costs herein taxed.
The Court finds there were reasonable grounds for this
appeal.
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It is ordered that a special mandate issue out of this
Court directing the Athens County Common Pleas Court to carry
this judgment into execution.
A certified copy of this entry shall constitute that
mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
Smith, P.J. & Hess, J.: Concur in Judgment & Opinion
For the Court
BY:__________________________
Peter B. Abele, Judge
NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a
final judgment entry and the time period for further appeal
commences from the date of filing with the clerk.