Benchic v. Skaggs , 2022 Ohio 913 ( 2022 )

[Cite as Benchic v. Skaggs, 2022-Ohio-913.]
IN THE COURT OF APPEALS OF OHIO
FOURTH APPELLATE DISTRICT
SCIOTO COUNTY
CHRISTOPHER R. BENCHIC, :
Plaintiff-Appellant, : Case No. 21CA3942
v. :
SARAH M. SKAGGS, :
DECISION AND JUDGMENT ENTRY
Defendant-Appellee. :
________________________________________________________________
APPEARANCES:
David B. Beck, Portsmouth, Ohio, for appellant.1
________________________________________________________________
CIVIL CASE FROM COMMON PLEAS COURT
DATE JOURNALIZED:3-16-22
ABELE, J.
{¶1} This is an appeal from a Scioto County Common Pleas
Court judgment that denied a motion to modify a prior allocation
of parental rights and responsibilities. Appellant assigns the
following errors for review:
FIRST ASSIGNMENT OF ERROR:
“THE TRIAL COURT ERRED AND ABUSED ITS
DISCRETION BY APPLYING THE DOCTRINE OF RES
JUDICATA AND RESTRICTING APPELLANT’S
OPPORTUNITY TO INTRODUCE PROBATIVE
EVIDENCE.”
1 Appellee did not enter an appearance in this appeal.
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SECOND ASSIGNMENT OF ERROR:
“THE TRIAL COURT ERRED AND ABUSED ITS
DISCRETION BY APPLYING O.R.C.
3109.04(E)(1)(a) TO RESTRICT APPELLANT FROM
PRESENTING EVIDENCE PRIOR TO MARCH 21,
2019.”
{¶2} The unmarried parties are the biological parents of
twin boys born in 2013. Approximately six months after the
children’s birth, the parties terminated their relationship.
Appellant subsequently filed a complaint to establish a father-
child relationship with the twins and request that the court
either (1) designate him the children’s residential parent and
legal custodian, or (2) establish a shared parenting plan.
{¶3} Later, the parties agreed to designate appellee the
residential parent and legal custodian and award appellant
parenting time. On February 23, 2015, the trial court entered a
judgment entry that reflected the parties’ agreement.
{¶4} On January 15, 2016, appellant filed a motion to
modify his parenting time. The parties later entered into an
agreement regarding appellant’s motion and, on June 21, 2016,
the court modified appellant’s parenting time in accordance with
the parties’ agreement.
{¶5} On November 20, 2018, appellee filed an emergency
motion that asked the trial court to suspend the children’s
parenting time with appellant. Appellee alleged that the
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children’s uncle sexually abused the children while in
appellant’s care.
{¶6} The trial court granted appellee’s motion and stated
“that temporary custody” of the children “shall vest with”
appellee until further order of the court. The court also
suspended appellant’s parenting time.
{¶7} On January 9, 2019, the trial court found that,
concerning appellee’s November 20, 2018 motion, the parties
agreed to resume operating under the court’s June 21, 2016
parenting time order. On March 21, 2019, the trial court
entered an order that modified its January 9, 2019 order to add
a provision that the children not have any unsupervised contact
with their uncle, Matthew Benchic.
{¶8} A few weeks later, appellant filed a motion to modify
the prior allocation of parental rights and responsibilities and
asserted that a change in circumstances had occurred since the
court’s prior decree that designated appellee the children’s
residential parent and legal custodian. Appellant thus
requested the court to designate him the children’s residential
parent and legal custodian.
{¶9} On December 15, 2020, appellant filed an ex parte
motion for emergency custody and alleged that appellee “has been
involved in a toxic relationship with her girlfriend” and that
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the girlfriend recently contacted appellant. The girlfriend
alleged that (1) the children had been “exposed to fighting,
violence, drugs and mental illness,” (2) appellee is “an unfit,
mentally ill, drug abuser,” and (3) appellee beat one of the
children with a wooden spoon and slapped the child in the face.
Appellant further claimed that his current wife, Megan, noted
during the last visitation exchange that appellee’s eyes were
“completely glassed over” and appellee “was unsteady on her
feet.” Megan additionally noticed that appellee “stumble[d]”
when appellee approached the children to give them a hug, and
appellee “was unable to communicate with [Megan] because her
speech was so unclear.” The guardian ad litem joined in
appellant’s motion for ex parte emergency custody. The trial
court subsequently granted appellant’s motion and awarded him
temporary emergency custody of the children.
{¶10} On January 6, 2021, the court held a hearing regarding
appellant’s motion for ex parte emergency custody. At the
hearing, Caitlynn Roberts testified that she and appellee had
been in a relationship for approximately one year that ended in
October 2020. Roberts explained that in December 2020, after
the relationship ended, Roberts sent messages to appellant and
Megan that claimed, inter alia, that (1) appellee gave Roberts a
black eye, (2) appellee smoked marijuana in front of the
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children, (3) appellee is “lazy” and sleeps “all day,” (4)
appellee exposed the children to fighting, screaming, and
violence, (5) appellee “is unfit and mentally ill,” and (6)
appellee takes twenty-plus pills each day. Roberts admitted,
however, that she fabricated all of the allegations. Roberts
stated that she was upset at the time and “just kinda wanted to
start drama.”
{¶11} After the hearing, the trial court held another
hearing to consider appellant’s motion to modify the prior
allocation of parental rights and responsibilities. The
guardian ad litem, Christine Scott, testified and recommended
that the court designate appellant the children’s residential
parent. Scott related that one of the twins, Greyson, is
educationally delayed by about two and one-half years. Scott
suggested that appellee did not intervene in Greyson’s education
sooner and did not act quickly enough to ensure that Greyson had
an IEP in place. Scott also indicated that appellee believed
that Matthew abused the boys and that appellee initially sought
counseling. Scott noted that, even though appellee continued to
believe that Matthew had abused the children, appellee did not
continue counseling for the children.
{¶12} Appellant’s counsel attempted to question Scott
regarding the abuse allegations, but appellee’s counsel objected
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and stated that he “believe[s] this is all res judicata.” The
court agreed and stated, “Yeah[,] so why are you going there?”
Appellant’s counsel stated that he believed that the court needs
to “know that [appellee] believes this still occurred” and that
if she believes that it occurred, then “why wasn’t it being
addressed.” Counsel advised the court that he would try to
approach the issue in a different manner, and the court said it
would “hold onto” appellee’s objection.
{¶13} Scott continued her testimony and stated that, if
appellee “truly felt as if her kids had been abused, she was not
addressing that issue.” Scott explained that appellee told
Scott that the children “were still suffering effects from it,
but she had them in no type of mental health counseling.” Scott
also testified that if any individual continued to require their
children to deal with an unfounded and untrue allegation of
sexual abuse, it would not be healthy or beneficial for the
children.
{¶14} During appellant’s testimony, appellant’s counsel
attempted to ask appellant whether he thought that it is in the
children’s best interests for appellee to continue to believe
that Matthew molested the children. The trial court, however,
did not allow counsel to continue with the questioning and
sustained appellee’s objection.
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{¶15} After the hearing, appellant filed a post-hearing
brief regarding the change in circumstances and alleged that
Greyson’s educational deficiencies and appellee’s “complete
fabrication of sexual molestation allegations” against Matthew
constitute changed circumstances. Appellant asserted that the
accusations “have had a significant impact on the children, the
relationship between [the parties], the lack of trust between
the parties, and [appellee]’s act of continuing counseling at
Hope’s Place. [sic]”
{¶16} On February 18, 2021, the trial court overruled
appellant’s motion to modify. The court (1) found that the date
of the last decree was March 21, 2019, when the court entered an
order regarding appellee’s November 2018 emergency motion that
asked the court to suspend appellant’s visitation and (2) did
not agree with appellant that a change in circumstances had
occurred since the date of the court’s last decree. The court
recognized appellant’s argument that appellee’s continued belief
that Matthew sexually molested the children and her decision to
enroll the children in counseling constitutes a change in
circumstances, but determined that neither of these
circumstances was a change of substance so as to warrant
modifying the residential parent. Moreover, the court found
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that appellant “seems to harbor an intense grudge or anger
towards” appellee with respect to the allegations against
Matthew and that appellant appeared to be using his motion to
modify the prior allocation of parental rights and
responsibilities “to prove his brother not guilty of allegations
that were made prior to the last Judgment Entry entered in this
case on March 21, 2019.” The court noted that appellant did not
litigate the issue and, instead, entered into an agreement with
appellee. Ultimately, the court concluded that even if
appellee’s continued belief in the allegations is unjustifiable,
her continued belief does not constitute “an event, occurrence,
or situation that has had a material and adverse effect upon the
children.”
{¶17} The court thus denied appellant’s motion to modify the
prior allocation of parental rights and responsibilities. This
appeal followed.
A
{¶18} Initially, we note that appellee did not file an
appellate brief or otherwise appear in this appeal. When an
appellee fails to file an appellate brief, App.R. 18(C)
authorizes us to accept an appellant’s statement of facts and
issues as correct, then reverse a trial court’s judgment as long
as the appellant’s brief “reasonably appears to sustain such
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action.” In other words, an appellate court may reverse a
judgment based solely on consideration of an appellant’s brief.
E.g., State ex rel. Davidson v. Beathard, ___ Ohio St.3d ___,
2021-Ohio-3125, ___ N.E.3d ___, ¶ 10; Harper v. Neal, 4th Dist.
Hocking No. 15CA25, 2016-Ohio-7179, ¶ 14.
{¶19} In the case sub judice, after our review and as we
explain below, we believe that appellant’s brief reasonably
appears to sustain a reversal of the trial court’s judgment.
B
{¶20} For ease of discussion, we combine our review of
appellant’s two assignments of error. In his assignments of
error, appellant argues, in essence, that the trial court
improperly prohibited him from introducing evidence to establish
that appellee knowingly fabricated the sexual abuse allegations
or recklessly believed them to be true, and that her conduct had
an adverse effect on the children.
{¶21} In his first assignment of error, appellant contends
that the trial court incorrectly applied the doctrine of res
judicata to prevent him from introducing evidence regarding the
allegations. In his second assignment of error, appellant
asserts that the trial court incorrectly construed R.C.
3109.04(E)(1)(a) so as to prohibit him from presenting evidence
that predated the court’s March 21, 2019 order concerning
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appellee’s emergency motion that asked the court to suspend
appellant’s parenting time with the children. Appellant alleges
that the March 21, 2019 order is not a prior order allocating
parental rights and responsibilities. He thus contends that
R.C. 3109.04(E)(1)(a) does not limit his ability to present
evidence regarding a change in circumstances to the time period
between the court’s March 21, 2019 order and the filing of his
motion.
C
{¶22} Appellate courts generally review trial court
decisions regarding the modification of a prior allocation of
parental rights and responsibilities with the utmost deference.
Davis v. Flickinger, 77 Ohio St.3d 415, 418, 674 N.E.2d 1159(1997); Miller v. Miller, 37 Ohio St.3d 71, 74, 523 N.E.2d 846(1988). Consequently, absent an abuse of discretion, we will
generally not disturb a trial court’s decision to modify
parental rights and responsibilities. Davis, 77 Ohio St.3d at
418. “‘Abuse of discretion’ has been defined as an attitude
that is unreasonable, arbitrary or unconscionable.” AAAA Ents.,
Inc. v. River Place Community Urban Redevelopment Corp., 50 Ohio
St.3d 157, 161, 553 N.E.2d 597 (1990), citing Huffman v. Hair
Surgeon, Inc., 19 Ohio St.3d 83, 87, 482 N.E.2d 1248 (1985).
“It is to be expected that most instances of abuse of discretion
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will result in decisions that are simply unreasonable, rather
than decisions that are unconscionable or arbitrary.” Id. “A
decision is unreasonable if there is no sound reasoning process
that would support that decision. It is not enough that the
reviewing court, were it deciding the issue de novo, would not
have found that reasoning process to be persuasive, perhaps in
view of countervailing reasoning processes that would support a
contrary result.” Id.{¶23} In Davis, the court more specifically defined the
standard of review that applies in custody proceedings as
follows:
“‘Where an award of custody is supported by a
substantial amount of credible and competent evidence,
such an award will not be reversed as being against
the weight of the evidence by a reviewing court.
(Trickey v. Trickey [1952], 158 Ohio St. 9, 47 O.O.
481, 106 N.E.2d 772, approved and followed.)’
[Bechtol v. Bechtol (1990), 49 Ohio St.3d 21, 550
N.E.2d 178, syllabus].
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. As we stated in Seasons Coal Co. v. Cleveland
(1984), 10 Ohio St.3d 77, 80–81, 10 OBR 408, 410–412,
461 N.E.2d 1273, 1276–1277:
‘The underlying rationale of giving deference to
the findings of the trial court rests with the
knowledge that the 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.
* * *
* * * *
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* * * A reviewing court should not reverse a
decision simply because it holds a different opinion
concerning the credibility of the witnesses and
evidence submitted before the trial court. A finding
of an error in law is a legitimate ground for
reversal, but a difference of opinion on credibility
of witnesses and evidence is not. The determination
of credibility of testimony and evidence must not be
encroached upon by a reviewing tribunal, especially to
the extent where the appellate court relies on
unchallenged, excluded evidence in order to justify
its reversal.’”
Id. at 418–419.
{¶24} Additionally, deferring to the trial court on matters
of credibility is “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. at 419.
Furthermore, we recognize that “custody issues are some of the
most difficult and agonizing decisions a trial judge must make.
Therefore, a trial judge must have wide latitude in considering
all the evidence.” Id. at 418. As the Ohio Supreme Court long-
ago explained:
In proceedings involving the custody and welfare
of children the power of the trial court to exercise
discretion is peculiarly important. The knowledge
obtained through contact with and observation of the
parties and through independent investigation can not
be conveyed to a reviewing court by printed record.
Trickey, 158 Ohio St. at 13.
{¶25} Thus, this standard of review does not permit us to
reverse the trial court’s decision if we simply disagree with
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the decision. We may, however, reverse a trial court’s custody
decision if the court made an error of law, if its decision is
unreasonable, arbitrary, or unconscionable, or if substantial
competent and credible evidence fails to support it. Davis, 77
Ohio St.3d at 418–419, 421 (explaining “abuse of discretion
standard” and stating that courts will not reverse custody
decisions as against the manifest weight of the evidence if
substantial competent and credible evidence supports it, courts
must defer to fact-finder, courts may reverse upon error of law,
and trial court has broad discretion in custody matters).
{¶26} In the case at bar, appellant’s first assignment of
error asserts that the trial court erred as a matter of law by
inappropriately applying the doctrine of res judicata. In his
second assignment of error, appellant argues that the trial
court erred as a matter of law by misconstruing R.C.
3109.04(E)(1)(a). We first consider appellant’s argument that
the trial court misconstrued R.C. 3109.04(E)(1)(a).
D
{¶27} R.C. 3109.04(E)(1)(a) sets forth the applicable
standard when a court considers a motion to modify a prior
decree allocating parental rights and responsibilities. The
statute prevents a trial court from modifying a prior decree
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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.
Moreover, the statute requires trial courts to
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.
{¶28} The statute thus creates a strong presumption in favor
of retaining the residential parent and precludes a trial court
from modifying a prior parental rights and responsibilities
decree unless the court finds all of the following: (1) a change
occurred in the circumstances of the child, the child’s
residential parent, or a parent subject to a shared-parenting
decree, (2) the change in circumstances is based upon facts that
arose since the court entered the prior decree or that were
unknown to the court at the time of the prior decree; (3) the
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child’s best interest necessitates modifying the prior custody
decree; and (4) one of the circumstances specified in R.C.
3109.04(E)(1)(a)(i)-(iii) applies. In re Brayden James, 113
Ohio St.3d 420, 2007-Ohio-2335, 866 N.E.2d 467, ¶ 14; accord
Sites v. Sites, 4th Dist. Lawrence No. 09CA19, 2010-Ohio-2748,
2010 WL 2391647, ¶ 17. Thus, the threshold question in a
parental rights and responsibilities modification case is
whether a change in circumstances has occurred since the prior
decree allocating parental rights and responsibilities.
{¶29} A decree allocating parental rights and
responsibilities is one that determines which “party or parties
* * * have the right to the ultimate legal and physical control
of a child.” Fisher v. Hasenjager, 116 Ohio St.3d 53, 2007-
Ohio-5589, 876 N.E.2d 546, ¶ 22. In Fisher, the court explained
that when the legislature amended R.C. 3109.04, it “changed the
terms ‘custody and control’ to ‘parental rights and
responsibilities.’” Id. The court stated that “‘“[c]ustody”
resides in the party or parties who have the right to ultimate
legal and physical control of a child.’” Id., quoting Braatz v.
Braatz, 85 Ohio St.3d 40, 44, 706 N.E.2d 1218 (1999), quoting In
re Gibson, 61 Ohio St.3d 168, 171, 573 N.E.2d 1074 (1991). The
court thus concluded that “parental rights and responsibilities”
essentially means “custody and control.” Fisher v. Hasenjager,
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116 Ohio St.3d 53, 2007-Ohio-5589, 876 N.E.2d 546, ¶ 22.
{¶30} In the case sub judice, we agree with appellant that
the trial court should not have determined that appellant could
not present evidence that predated the court’s March 2019 entry
in order to establish that a change in circumstances had
occurred. In our view, the court’s March 2019 entry is not a
“prior decree allocating parental rights and responsibilities
for the care of children” within the meaning of R.C.
3109.04(E)(1)(a). The March 2019 entry did not allocate
custody. Rather, the March 2019 entry added a provision to the
court’s January 2019 order to restore appellant’s parenting time
with the children. The R.C. 3109.04(E)(1)(a) change in
circumstances requirement does not apply to motions to modify
parenting time. Hartman v. Hartman, 8th Dist. Cuyahoga No.
107251, 2019-Ohio-1637, ¶ 16; Banfield v. Banfield, 12th Dist.
Clermont No. CA2010-09-066, 2011-Ohio-3638, ¶ 39. Instead, R.C.
3109.051 governs motions to modify parenting time and does not
require the court to find a change in circumstances before the
court may modify a party’s parenting time. Hartman; Banfield.
{¶31} In the present case, the trial court’s February 23,
2015 order designated appellee the children’s residential parent
and legal custodian. Appellee’s status as the residential
parent remained unchanged through the date appellant filed his
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motion to modify the prior allocation of parental rights and
responsibilities. Thus, the date of the prior decree allocating
parental rights and responsibilities, i.e., custody, is February
23, 2015. The trial court, therefore, should permit appellant
to present evidence that predates the court’s March 2019 entry.
{¶32} Accordingly, based upon the foregoing reasons, we
sustain appellant’s second assignment of error.
E
{¶33} Appellant also contends that the trial court
incorrectly determined that the doctrine of res judicata
prevented appellant from introducing evidence regarding the
sexual abuse allegations.
{¶34} In Ohio, “[t]he doctrine of res judicata encompasses
the two related concepts of claim preclusion, also known as res
judicata or estoppel by judgment, and issue preclusion, also
known as collateral estoppel.” O’Nesti v. DeBartolo Realty
Corp., 113 Ohio St.3d 59, 2007-Ohio-1102, 862 N.E.2d 803, ¶ 6;
accord Baker by Thomas v. Gen. Motors Corp., 522 U.S. 222, 232–
34, 118 S.Ct. 657, 663–64, 139 L.Ed.2d 580 (1998), fn.5
(citations omitted) (explaining that the term, “res judicata,”
traditionally describes both “claim preclusion (a valid final
adjudication of a claim precludes a second action on that claim
or any part of it); and (2) issue preclusion, long called
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‘collateral estoppel’ (an issue of fact or law, actually
litigated and resolved by a valid final judgment, binds the
parties in a subsequent action, whether on the same or a
different claim”).
With regard to claim preclusion, a final judgment
or decree rendered on the merits by a court of
competent jurisdiction is a complete bar to any
subsequent action on the same claim between the same
parties or those in privity with them. [Grava v.
Parkman Twp., 73 Ohio St.3d 379, 381, 653 N.E.2d 226(1995)], citing Norwood v. McDonald, 142 Ohio St. 299,
52 N.E.2d 67 (1943), paragraph one of the syllabus,
and Whitehead [v. Gen. Tel. Co., 20 Ohio St.2d 108,
254 N.E.2d 10 (1969)], paragraph one of the syllabus.
Moreover, an existing final judgment or decree between
the parties is conclusive as to all claims that were
or might have been litigated in a first lawsuit. Id.
at 382, 653 N.E.2d 226, citing Natl. Amusements, Inc.
v. Springdale, 53 Ohio St.3d 60, 62, 558 N.E.2d 1178(1990). “‘The doctrine of res judicata requires a
plaintiff to present every ground for relief in the
first action, or be forever barred from asserting
it.’” Id. at 382, 653 N.E.2d 226, quoting Natl.
Amusements at 62, 558 N.E.2d 1178.
Brooks v. Kelly, 144 Ohio St.3d 322, 2015-Ohio-2805, 43 N.E.3d
385, ¶ 7.
{¶35} Issue preclusion, or collateral estoppel, “‘precludes
the relitigation, in a second action, of an issue that has been
actually and necessarily litigated and determined in a prior
action.’” Warrensville Hts. City School Dist. Bd. of Edn. v.
Cuyahoga Cty. Bd. of Revision, 152 Ohio St.3d 277, 2017-Ohio-
8845, 95 N.E.3d 359, ¶ 9, quoting Whitehead v. Gen. Tel. Co., 20
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Ohio St.2d 108, 112, 254 N.E.2d 10 (1969); accord Lowe’s Home
Centers, Inc. v. Washington Cty. Bd. of Revision, 154 Ohio St.3d
463, 2018-Ohio-1974, 116 N.E.3d 79, ¶ 33; Ft. Frye Teachers
Assn., OEA/NEA v. State Emp. Relations Bd., 81 Ohio St.3d 392,
395, 692 N.E.2d 140 (1998).
While the merger and bar aspects of res judicata
have the effect of precluding the relitigation of the
same cause of action, the collateral estoppel aspect
precludes the relitigation, in a second action, of an
issue that has been actually and necessarily litigated
and determined in a prior action that was based on a
different cause of action. “In short, under the rule
of collateral estoppel, even where the cause of action
is different in a subsequent suit, a judgment in a
prior suit may nevertheless affect the outcome of the
second suit.”
Fort Frye, 81 Ohio St.3d at 395 (citation omitted), quoting
Whitehead, 20 Ohio St.2d at 112.
{¶36} We further note, however, that the doctrine of res
judicata does not limit trial courts from modifying the
allocation of parental rights and responsibilities and parenting
time. Kelm v. Kelm, 92 Ohio St.3d 223, 227, 749 N.E.2d 299(2001). Indeed, “as a practical matter, a custody and
visitation order is never absolutely final.” Id. Thus,
applying the doctrine of res judicata to orders relating to
parental rights and responsibilities and to parenting time is
“impractical.” Id. Instead, “[t]he trial court has a
continuing responsibility under R.C. 3109.04(B)(1) and (E)(1)(a)
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to protect the best interests of the children.” Id.Accordingly, “in the area of custody and visitation, we
sacrifice finality and some of our limited judicial resources in
order to secure a higher value—the best interests of children.”
Id.{¶37} In the case sub judice, we do not believe that the
doctrine of res judicata prevents appellant from introducing
evidence regarding the sexual abuse allegations. First, as the
Ohio Supreme Court stated in Kelm, a trial court has a duty to
protect the children’s best interests. Thus, a trial court
generally should not apply the doctrine of res judicata to limit
evidence that impacts a child’s best interests.
{¶38} Additionally, R.C. 3109.04(E)(1)(a) defines the time
period that a trial court may consider when reviewing a motion
to modify a prior allocation of parental rights and
responsibilities. Under the statute, a court may consider
events that have occurred since the date of the court’s last
decree allocating parental rights and responsibilities. As we
previously stated, in the case at bar that date is February 23,
2015.
{¶39} We also find some merit to appellant’s assertion that
the doctrine of collateral estoppel does not prevent him from
introducing evidence regarding the sexual abuse allegations.
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Here, the parties did not actually litigate the issue. The
parties did not present evidence regarding sexual abuse
allegations, and the court did not hold a hearing to consider
the allegations. Instead, the parties quickly agreed to resolve
appellee’s motion to suspend appellant’s parenting time with the
children. The court’s order that incorporated the parties’
agreement does not indicate that the parties agreed upon the
merits of the sexual abuse allegations raised in appellee’s
motion. We thus conclude that appellant is not collaterally
estopped from presenting evidence regarding the allegations.
{¶40} Accordingly, based upon the foregoing reasons, we
sustain appellant’s first assignment of error.
F
{¶41} In conclusion, we (1) sustain appellant’s first and
second assignments of error; (2) reverse the trial court’s
judgment that denied appellant’s motion to modify the prior
allocation of parental rights and responsibilities and remand
for further proceedings consistent with this opinion.2 We also
leave undisturbed at this juncture the portion of the court’s
2 We hasten to add that our decision should not be construed
as a comment on the merits of appellant’s motion to modify.
Instead, our decision means simply that the trial court must
afford appellant a hearing at which he may present evidence
regarding the allegations and any other relevant evidence to
show that a change in circumstances has occurred since the
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decision that restored appellee’s status as the children’s
residential parent and legal custodian and that granted
appellant parenting time as provided in the court’s previous
order. During the pendency of the motion to modify, the trial
court may, in the exercise of its discretion, allocate parental
rights and responsibilities in the manner it deems to be in the
children’s best interest.
JUDGMENT REVERSED AND CAUSE
REMANDED FOR FURTHER
PROCEEDINGS CONSISTENT WITH
THIS OPINION.
court’s February 23, 2015 decree.
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JUDGMENT ENTRY
It is ordered that the judgment be reversed and this cause
remanded for further proceedings consistent with this opinion.
Appellant shall recover of appellee the 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 Scioto 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.