Badescu v. Badescu , 2020 Ohio 4312 ( 2020 )

[Cite as Badescu v. Badescu, 2020-Ohio-4312.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
Catalin S. Badescu, :
Plaintiff-Appellee, : No. 18AP-947
(C.P.C. No. 16DR-2436)
v. :
(REGULAR CALENDAR)
Veronica V. Badescu, :
Defendant-Appellant. :
D E C I S I O N
Rendered on September 3, 2020
On brief: Kemp Law Group, LLC, and Jacqueline L. Kemp,
for appellee.
On brief: Veronica V. Badescu, pro se.
APPEAL from the Franklin County Court of Common Pleas,
Division of Domestic Relations
BROWN, J.
{¶ 1} Veronica V. Badescu, defendant-appellant ("mother"), appeals from the
judgment entry of the Franklin County Court of Common Pleas, Division of Domestic
Relations, in which the court issued a decision and judgment entry granting a decree of
divorce and allocating parental rights and responsibilities.
{¶ 2} Mother and Catalin S. Badescu, plaintiff-appellee ("father"), were married
in March 2010 in Virginia. Both parties had jobs in the Washington, D.C. area. They
agreed to move to Centerville, Ohio, in January 2011 because father obtained a job in
Dayton, Ohio. In 2012, after failing to find a new job, mother began studying at The Ohio
State University in a combined Masters/Ph.D. program. The parties moved to Galloway,
Ohio, to facilitate the commutes. In December 2014, mother obtained a master's degree
(her second) and discontinued the Ph.D. program at The Ohio State University. Mother's
No. 18AP-947 2
degree is in electrical engineering. Her first master's degree specialty is in space systems
operations and her second master's degree specialty is in system-level engineering, which
means control systems and some signal processing.
{¶ 3} In February 2015, the parties purchased a home in Dublin, Ohio. Mother
testified she did not want to purchase a house and that the parties did not intend to stay in
Ohio long term. The parties had a child, M.B., born in March 2015. The parties' marriage
began to deteriorate, and they had many disagreements especially concerning parenting
styles. These disagreements sometimes disintegrated into emotional and physical abuse
by both parties. Mother searched for employment at first in Ohio, but then widened her
search. She was unemployed from 2011-2016, other than a research assistant position
while pursuing her Ph.D. In April 2016, she received two job offers, one in Dayton and
one in San Diego, California. She accepted the job offer in California. After mother
accepted the job offer in California, father also looked into employment in California.
However, he did not want to move and start over in California. The parties sought
mediation to resolve the parenting issues regarding mother moving to California, but the
mediation was unsuccessful.
{¶ 4} On June 20, 2016, father filed a complaint for divorce in which he sought
custody of M.B. Mother filed a counterclaim for divorce and custody. On July 14, 2016, a
magistrate issued temporary orders granting permission for mother to temporarily take
M.B. with her to San Diego and ordered a parenting-time schedule beginning with
mother's relocation on July 15, 2016. The parties commenced a parenting schedule where
each parent was given alternating 30 days at a time. Also, on July 14, 2016, a guardian ad
litem ("GAL") was appointed.
{¶ 5} On April 13 and August 30, 2018, the parties entered into partial divorce
settlement agreements, agreeing to property division and spousal support, leaving the
allocation of parental rights and responsibilities, visitation, and child support for the trial
court to determine. A trial was held on various dates from August 15 to 24, 2018, with
both parties represented by counsel. On November 28, 2018, the trial court issued a
decision and judgment entry decree of divorce. With regard to the allocation of parental
rights and responsibilities, the trial court discussed the best interest of the child and
analyzed the factors in R.C. 3109.04 and 3109.051. The trial court found that it was in the
best interest of the child that father be named residential parent and legal custodian and
No. 18AP-947 3
found that parenting time should be as the parties agree, but if they could not agree, the
court set forth a parenting-time schedule. The court further set forth orders regarding
travel, communication, emergency decisions, child support, division of assets and
liabilities.
{¶ 6} Mother, pro se, appeals the trial court’s judgment, asserting the following
two assignments of error:
[I.] The trial court erred as a matter of law and abused its
discretion by placing the initial burden on Mother to
demonstrate the necessity of move and placing unfairly
prejudicial weight on Mother's decision to live out of state, in
violation of R.C. § 3109.03.
[II.] The trial court erred in granting sole custody to Father by
failing to assess the best interest of the child properly under
Ohio law, including without undue emphasis on Mother's
decision to move out of state.
{¶ 7} Mother's two assignments of error are related in that she argues the trial
court erred in placing undue emphasis on her decision to move from Dublin, Ohio, to San
Diego, California. Mother argues in her first assignment of error that the trial court erred
when it placed the initial burden on her to demonstrate the necessity of moving and
placed prejudicial weight on her decision to live out of state. Mother argues in her second
assignment of error that the trial court erred when it granted sole custody to father by
failing to assess the best interest of the child properly under Ohio law and placing undue
emphasis on mother's decision to move out of state. Because they are related, we shall
address these assignments of error together.
{¶ 8} In Pallone v. Pallone, 10th Dist. No. 17AP-409, 2017-Ohio-9324,¶ 36, citing
Parker v. Parker, 10th Dist. No. 05AP-1171, 2006-Ohio-4110, ¶ 23, this court stated that a
trial court must follow R.C. 3109.04 when deciding child custody matters but it has broad
discretion when determining what is the appropriate allocation of parental rights and
responsibilities. An appellate court affords a trial court's child custody determinations
with some deference. " 'The discretion which a trial court enjoys in custody matters
should be accorded the utmost respect, given the nature of the proceeding and the impact
the court's determination will have on the lives of the parties concerned. The knowledge a
trial court gains through observing the witnesses and the parties in a custody proceeding
cannot be conveyed to a reviewing court by a printed record.' " Pater v. Pater, 63 Ohio
No. 18AP-947 4
St.3d 393, 396 (1992), quoting Miller v. Miller, 37 Ohio St. 3d 71, 74 (1988). Therefore, an
appellate court will only reverse a trial court's custody determination if the trial court
abused its discretion. Parker at ¶ 23.
{¶ 9} "The term 'abuse of discretion' connotes more than an error of law or
judgment; it implies that the court's attitude is unreasonable, arbitrary or
unconscionable." Blakemore v. Blakemore, 5 Ohio St. 3d 217, 219 (1983). Even under an
abuse of discretion standard, however, " ' "no court has the authority, within its
discretion, to commit an error of law." ' " Shaw v. Underwood, 10th Dist. No. 16AP-605,
2017-Ohio-845, ¶ 25, quoting JPMorgan Chase Bank, N.A. v. Liggins, 10th Dist. No.
15AP-242, 2016-Ohio-3528, ¶ 18, quoting State v. Akbari, 10th Dist. No. 13AP-319, 2013-
Ohio-5709, ¶ 7. Thus, " '[a] court abuses its discretion when its ruling is founded on an
error of law or a misapplication of law to the facts.' " Independence v. Office of the
Cuyahoga Cty. Executive, 142 Ohio St. 3d 125, 2014-Ohio-4650, ¶ 49 (O'Donnell, J.,
dissenting), quoting Doe v. Natl. Bd. of Med. Examiners, 199 F.3d 146, 154 (3d Cir.1999).
See also Hal v. Dept. of Edn., 10th Dist. No. 18AP-301, 2019-Ohio-5081, ¶ 11.
{¶ 10} Mother cites to excerpts of language the trial court used during the pretrial
conference held on October 28, 2016. At the pretrial conference, the trial court stated:
[T]he burden is on [mother] to demonstrate why she's
upsetting the proverbial applecart.
All right. I take this family as I see them, where they started
from, and what decisions were made as a family to be. She's
going to have to show me that she absolutely was not going to
be able to pursue a career before I even get to the step if I'm
going to allow a residential parent to be outside of this
jurisdiction.
***
Again, it's family decisions that I'm going to look at. I'm
starting in that basis here because I've heard from at least one
side that we have two good parents and two involved parents.
This child absolutely needs both of his parents. The reality is if
the parents are going to live in the Midwest and the West
Coast, his relationship with one of his parents is going to be
significantly affected. That's the reality of it.
No. 18AP-947 5
So you have a young child who isn't enmeshed into the
community, so to speak, you know, we don't have him in
school, we don't have him in Boy Scouts, we don't have all of
those other kind of things that we look at, so I am -- you know,
motivation for the move, as it were, is the first place I'm going
to start looking at.
***
All I'm saying is that limited information I still have to pull
from straws, right, because I don't have a representation here.
I feel [mother] starts with the burden, and then we go from
there, because there's no good answers with respect to
relocation.
So, of course, you know, the other things you have to look at is
is there availability for your client to move closer there, that's
going to be of interest to me as well and whether that --
But where I start with the premise that a family made a
decision to follow dad somewhere to get a job and then mom
went to school -- change the pronouns either way, it doesn't
really matter whether it's a mom or dad kind of -- you know, I
don't want to make it sound like, you know, I'm only thinking
you follow a dad. Could be following a mom somewhere for a
job. I think the burden is on the person who's packed up and
moved to demonstrate to me why this jurisdiction is not the
appropriate jurisdiction.
(Oct. 28, 2016 Tr. at 11-14.)
{¶ 11} Initially, we note the trial court quoted R.C. 3109.03, as follows: "When
husband and wife are living separate and apart from each other, or are divorced, and the
question as to the parental rights and responsibilities for the care of their children and the
place of residence and legal custodian of their children is brought before a court of
competent jurisdiction, they shall stand upon an equality as to the parental rights and
responsibilities for the care of their children and the place of residence and legal
custodian of their children, so far as parenthood is involved." The trial court also cited the
14 factors provided in R.C. 3109.051(D) and provided that it "has considered and
addressed all statutory factors and has balanced all in making a determination as to
[M.B.'s] best interest." (Emphasis sic.) (Decision at 5-6.)
No. 18AP-947 6
{¶ 12} Further, we note that " '[i]t is axiomatic that a court speaks only through its
journal entries, and not through mere oral pronouncements.' " State v. Douglas, 10th
Dist. No. 13AP-570, 2014-Ohio-317, ¶ 5, quoting State v. Huddleston, 10th Dist. No.
12AP-512, 2013-Ohio-2561, ¶ 7, quoting In re P.S., 10th Dist. No. 07AP-516, 2007-Ohio-
6644, ¶ 12. Our review of the trial court's decision does not reveal any indication that the
trial court improperly applied the burdens of proof or improperly placed prejudicial
weight on mother's decision to live out of state or improperly applied the best interest of
the child.
{¶ 13} Furthermore, when the entire pretrial transcript is read in context, rather
than the excerpts mother focuses on, it is clear the trial court felt she had limited
information at that point in the proceedings regarding the family unit and was interested
in learning more information before deciding parental rights and responsibilities.
{¶ 14} R.C. 3109.04 provides factors that the trial court must consider in
determining the best interest of the child, as follows:
(A) In any divorce, legal separation, or annulment proceeding
and in any proceeding pertaining to the allocation of parental
rights and responsibilities for the care of a child, upon hearing
the testimony of either or both parents and considering any
mediation report filed pursuant to section 3109.052 of the
Revised Code and in accordance with sections 3127.01 to
3127.53 of the Revised Code, the court shall allocate the
parental rights and responsibilities for the care of the minor
children of the marriage.
***
(B)(1) When making the allocation of the parental rights and
responsibilities for the care of the children under this section
in an original proceeding or in any proceeding for
modification of a prior order of the court making the
allocation, the court shall take into account that which would
be in the best interest of the children.
***
(F)(1) In determining the best interest of a child pursuant to
this section, whether on an original decree allocating parental
rights and responsibilities for the care of children or a
modification of a decree allocating those rights and
responsibilities, the court shall consider all relevant factors,
including, but not limited to:
No. 18AP-947 7
(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;
(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, in a case in which a child has been adjudicated
an abused child or a neglected child, previously 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 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
No. 18AP-947 8
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.
(2) In determining whether shared parenting is in the best
interest of the children, the court shall consider all relevant
factors, including, but not limited to, the factors enumerated
in division (F)(1) of this section, the factors enumerated in
section 3119.23 of the Revised Code, and all of the following
factors:
(a) The ability of the parents to cooperate and make decisions
jointly, with respect to the children;
(b) The ability of each parent to encourage the sharing of love,
affection, and contact between the child and the other parent;
(c) Any history of, or potential for, child abuse, spouse abuse,
other domestic violence, or parental kidnapping by either
parent;
(d) The geographic proximity of the parents to each other, as
the proximity relates to the practical considerations of shared
parenting;
(e) The recommendation of the guardian ad litem of the child,
if the child has a guardian ad litem.
{¶ 15} Further, R.C. 3109.051(C) provides in determining to grant parenting time
rights, a trial court shall consider a mediation report that is filed pursuant to R.C. 3109.11
or 3109.12 and shall consider all other relevant factors, including the factors listed in R.C.
3109.051(D), which provides, as follows:
In determining whether to grant parenting time to a parent
pursuant to this section or section 3109.12 of the Revised
Code or companionship or visitation rights to a grandparent,
relative, or other person pursuant to this section or section
3109.11 or 3109.12 of the Revised Code, in establishing a
specific parenting time or visitation schedule, and in
No. 18AP-947 9
determining other parenting time matters under this section
or section 3109.12 of the Revised Code or visitation matters
under this section or section 3109.11 or 3109.12 of the Revised
Code, the court shall consider all of the following factors:
(1) The prior interaction and interrelationships of the child
with the child's parents, siblings, and other persons related by
consanguinity or affinity, and with the person who requested
companionship or visitation if that person is not a parent,
sibling, or relative of the child;
(2) The geographical location of the residence of each parent
and the distance between those residences, and if the person
is not a parent, the geographical location of that person's
residence and the distance between that person's residence
and the child's residence;
(3) The child's and parents' available time, including, but not
limited to, each parent's employment schedule, the child's
school schedule, and the child's and the parents' holiday and
vacation schedule;
(4) The age of the child;
(5) The child's adjustment to home, school, and community;
(6) If the court has interviewed the child in chambers,
pursuant to division (C) of this section, regarding the wishes
and concerns of the child as to parenting time by the parent
who is not the residential parent or companionship or
visitation by the grandparent, relative, or other person who
requested companionship or visitation, as to a specific
parenting time or visitation schedule, or as to other parenting
time or visitation matters, the wishes and concerns of the
child, as expressed to the court;
(7) The health and safety of the child;
(8) The amount of time that will be available for the child to
spend with siblings;
(9) The mental and physical health of all parties;
(10) Each parent's willingness to reschedule missed parenting
time and to facilitate the other parent's parenting time rights,
and with respect to a person who requested companionship or
visitation, the willingness of that person to reschedule missed
visitation;
No. 18AP-947 10
(11) In relation to parenting time, whether 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, in a case in which a child has been adjudicated an
abused child or a neglected child, previously has been
determined to be the perpetrator of the abusive or neglectful
act that is the basis of the adjudication; 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;
(12) In relation to requested companionship or visitation by a
person other than a parent, whether the person 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 the person, in a case in which a
child has been adjudicated an abused child or a neglected
child, previously has been determined to be the perpetrator of
the abusive or neglectful act that is the basis of the
adjudication; whether either parent previously has been
convicted of or pleaded guilty to a violation of section 2919.25
of the Revised Code 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 previously has been convicted of an
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 and caused physical
harm to the victim in the commission of the offense; and
whether there is reason to believe that the person has acted in
a manner resulting in a child being an abused child or a
neglected child;
(13) 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;
(14) Whether either parent has established a residence or is
planning to establish a residence outside this state;
(15) In relation to requested companionship or visitation by a
person other than a parent, the wishes and concerns of the
child's parents, as expressed by them to the court;
(16) Any other factor in the best interest of the child.
No. 18AP-947 11
{¶ 16} In this case, the trial court specifically considered each factor of R.C.
3109.04(F)(1)(a) through (j), 3109.04(F)(2), and 3109.051, weighed the evidence, and
made determinations. R.C. 3109.04(F)(1)(j) requires the court to consider whether either
parent has established a residence outside the state. Further, R.C. 3109.04(F)(2)(d)
requires the trial court when considering whether shared parent is appropriate to
consider the geographic proximity of the parents. Thus, the trial court was required to
consider the circumstances regarding mother's move to San Diego.
{¶ 17} The trial court thoroughly explored the required factors to determine M.B.'s
best interest. The trial court recognized that both parties wanted to be the legal custodian
and residential parent for M.B. Each party wished the other would move to live in the
same city. The trial court found M.B. was only three years old and too young to express
his wishes. The trial court determined that M.B. is well-bonded with both parents and has
significant relationships with extended family on both sides. The trial court found M.B. is
very adjusted to his home and neighborhood and children in his father's neighborhood
and M.B. is involved in extracurriculars with his daycare. Father limits M.B.'s time on
electronics and instead spends time bike riding, playing with neighborhood children,
going to the park behind their house, the splash park, COSI, and Franklin Park
Conservatory. Father works at keeping M.B. on a schedule.
{¶ 18} With a 30-day visitation schedule, M.B. has also adjusted to mother's home
and pre-school in San Diego. Mother lives in a gated community that has two pools and is
close to the ocean. M.B. has his own room and they have a dog. Mother takes M.B. to
Balboa Park, the beach, the amusement park, the neighboring wildlife preserve, and the
petting zoo. Mother arranges play dates for M.B. Mother plans to stay in the area where
she currently lives.
{¶ 19} The trial court found that both homes are appropriate and adequate for
raising M.B., and both provide wonderful opportunities, excellent infrastructures and
high quality of life, such as parks and recreation, good school systems, and extracurricular
activities. Both parents advocated that each location was able to provide for M.B.'s best
interest. The trial court found that both parents excel in their ability to provide for M.B.'s
basic needs. The trial court did find that father's home and neighborhood were more
familiar for M.B. and filled with neighbors and children M.B.'s age that he has known for
most of his life and will go to the same schools.
No. 18AP-947 12
{¶ 20} The trial court found both parties and M.B. enjoy good physical health.
When examining the mental health of the parties, the trial court acknowledged that both
parties expressed concern about the other party's mental health and emotional stabilities.
The parties had psychological evaluations conducted and the psychologist determined
that both parents had a good relationship with their son, but father should be designated
school placement parent with mother receiving extended visitation time during the
summer. The psychologist suggested it would be best for mother to move back to central
Ohio and, if so, recommended an equally shared parenting plan. Mother argues this
finding by the psychologist demonstrates that the improper burden placed on her to
demonstrate the move to San Diego was necessary was adopted by the psychologist. We
note that the psychologist's report was a joint exhibit submitted by the parties and mother
did not object to its admission and did not call him for cross-examination. The trial court
did carefully consider each party's evaluations, especially the personality profiles and
tendencies to determine which parent was more likely to consistently put M.B.'s best
interest first.
{¶ 21} The trial court observed father was more likely to facilitate parenting rights
and visitation based on the finding that father plans and works hard to facilitate mother's
SKYPE calls and mother did not do the same. The trial court found R.C. 3109.04(F)(1)(g),
(h), and (i) not relevant factors to these facts.
{¶ 22} The trial court acknowledged that mother lives in San Diego and plans to
remain there. Father currently lives in Dublin and plans to remain there until M.B.
graduates from high school. The trial court specifically found mother was not credible
regarding her testimony that she did not agree to purchase a home in Dublin and to raise
her son in Dublin. The trial court stated: "[t]hese parties are extremely intelligent and
intensely thoughtful individuals who clearly value education and as such, [mother's]
contention that she did not fully consent to [father's] desire to purchase this home and
that she/they did not significantly investigate the neighborhood, surrounding daycares
and/or make all such considerations regarding raising and educating their child here is
simply not credible or in line with [mother's] manner of making life decisions." (Decision
at 3-4.) Subsequently the trial court stated: "[t]he [mother] is not credible in her
testimony that she did not fully agree to the choice for the parties to purchase their home
No. 18AP-947 13
in Dublin and to raise their son there or in her (now) criticism of [father's] long work
commute." (Decision at 12.)
{¶ 23} Despite the fact that mother believes it is in M.B.'s best interest for father to
move to San Diego, a vocational expert hired by mother testified that although father
could find a reasonable job opportunity, there would be a loss of benefits and
specialization. The best fit for his experience and qualifications were at Edwards Air
Force Base, approximately three hours outside San Diego. In that situation, father would
still be exercising long-distance parenting.
{¶ 24} The trial court found the parties could not cooperate and make joint
decisions because mother refuses to communicate with father other than through the My
Family Wizard app. Prior to trial, the parties were only communicating via e-mail or text
messages. Mother would not answer father's telephone calls.
{¶ 25} The trial court found that father is the parent most cognizant of M.B.'s need
to share love, affection, and contact with the other parent. Father testified he focuses
M.B. for his SKYPE calls with mother and prepares him emotionally and physically for the
exchanges between the households. Mother argues the SKYPE recordings that father
made without her knowledge should not have been shown at trial. However, mother
failed to object at trial. In Dillon v. Waller, 10th Dist. No. 95APE05-622 (Dec. 26, 1995),
this court stated: "[a]lleged errors which arise during the course of a trial, which are not
brought to the attention of the court by objection or otherwise, are waived and may not be
raised upon appeal." Dillon citing Stores Realty Co. v. Cleveland, 41 Ohio St. 2d 41, 43
(1975). Moreover, the videotapes were not the only evidence that was a basis for the trial
court's decision.
{¶ 26} The trial court found that "it is hard to imagine that [mother's] overt dislike
and distancing from [father] does not (even if unconsciously) spill over to [M.B.]. While
this trier of fact has tried countless high conflict divorces and custody disputes, the
visceral anger and negative reaction of [mother's] body language and voice inflection
when talking about [father] stands out as memorable." (Decision at 14.) The trial court
noted that mother did not include father as a contact when she enrolled M.B. in daycare
in San Diego. Further, the trial court found father credible when he testified that
mother's actions during exchanges with M.B. indicates she does not emotionally prepare
him for transitioning to his father. Pallone at ¶ 26. Such determinations of credibility
No. 18AP-947 14
and the weight to be given to the evidence are for the trial court. Bechtol v. Bechtol, 49
Ohio St. 3d 21, 23 (1990), syllabus corrected, 51 Ohio St. 3d 701 (1990). The trial court as
the factfinder may choose to believe or disbelieve any witness, and " 'court is free to accept
or reject, in whole or in part, the testimony or opinions of any witness, whether accepted
as an expert or not and determine the weight and credibility to be given thereto.' "
Pallone at ¶ 26 quoting Jackson v. Jackson, 5th Dist. No. 03-CA-17, 2004-Ohio-816, ¶ 21,
citing State v. DeHass, 10 Ohio St. 2d 230 (1967), paragraph one of the syllabus. "On the
trial of a case, either civil or criminal, the weight to be given the evidence and the
credibility of the witnesses are primarily for the trier of the facts." DeHass at paragraph
one of the syllabus.
{¶ 27} Regarding whether there is a history or potential for abuse, the trial court
acknowledged these parties admitted they argued frequently. Several times the arguments
escalated and there was mutual inappropriate verbal and inappropriate physical contact.
On one occasion, father kicked mother and broke her tailbone. The trial court found it
notable that father is able to demonstrate self-awareness and is regretful for his actions
and failings during the marriage but there is no sense of that from mother.
{¶ 28} The trial court found the geographic distance between the parties and their
inability to make joint decisions make shared parenting an unworkable plan in this case.
{¶ 29} The GAL recommended the current 30-day on/30-day off parenting
schedule continue until M.B. enters kindergarten and father be named residential parent
and legal custodian and then mother's summer parenting time be extended to two full
months. During trial, the GAL was specifically asked if mother had stayed and father had
moved, whether the GAL would recommend mother as the legal custodian. The GAL
responded: "[i]f all the other facts worked the same way, yes." However, he clarified that
the distinction for him was not that one party had moved but, rather, "it's about the
impact of one parent moving 2,300 miles away on the relationship of the child with the
other parent. It's a subtle, but, to me, a very significant difference." (Tr. Vol. VI at 1008.)
Mother argued the GAL did not do a thorough job in this case. The GAL conducted an
investigation, visited each home, interviewed family members, issued a report and
attended trial, including participating and testifying at trial, subject to cross-examination.
The trial judge, as trier of fact, was entitled to believe or disbelieve the GAL's testimony
and to consider it in the context of all the evidence before the court. In its role as fact
No. 18AP-947 15
finder, a trial court may choose to believe or disbelieve any witness. H.R. v. L.R., 181 Ohio
App.3d 837, 2009-Ohio-665, ¶ 15 (10th Dist.), citing State v. White, 118 Ohio St. 3d 12,
2008-Ohio-1623, ¶ 71. Mother has failed to point to any particular finding that is
unreasonable or otherwise unsupported by the evidence because of improper reliance on
the testimony of the GAL.
{¶ 30} When examining M.B.'s, mother's and father's available time, the trial court
acknowledged that father lives in Dublin and works in Dayton, therefore, he commutes
every day for work, but he does have some ability to adjust his start and stop times to be
available for M.B. Mother has more flexibility regarding her schedule and is within
walking distance of M.B.'s preschool and is in close proximity of the other schools.
{¶ 31} The trial court found that R.C. 3109.051(D)(8), (14), and (15) were not
applicable factors.
{¶ 32} When considering any other factor in the best interest of the child, the trial
court considered that both parties made financial arguments regarding which location
was better. Each party believed his/her employment was a bigger priority over the other
party's employment. The trial court determined that mother's decision to accept
employment across the country from father was a decision made in her best interest, not
M.B.'s best interest. However, the trial court stated that this decision/factor should not be
viewed as the "only or even as the deciding factor, as there are other factors, including but
not limited to the parties' psychological evaluations and as otherwise noted herein which
support this Court's final determination of [M.B.'s] best interest." (Decision at 17.) The
trial court did not find credible that mother was unable to find employment in the central
Ohio area, especially since she had a job offer in Dayton at the time she accepted the job in
San Diego. The trial court stated: "[d]espite her arguments to the contrary, while perhaps
not as 'perfect fit' as her current employment or as desired of career path it pushes
credibility that this intelligent, hard-working, ambitious individual could not have found
sustainable employment in the Central Ohio area if she had really wanted to." (Emphasis
sic.) (Decision at 5.)
{¶ 33} Given the thorough examination of the factors, the GAL report and
testimony, and the psychologist's report and testimony involved in this case, the trial
court did not abuse her discretion in determining what is in M.B.'s best interest. Several
times the trial court found mother's testimony not credible. " 'The choice between credible
No. 18AP-947 16
witnesses and their conflicting testimony rests solely with the finder of fact, and an
appellate court may not substitute its own judgment for that of the finder of fact.' " Doe v.
Vineyard Columbus, 10th Dist. No. 13AP-599, 2014-Ohio-2617, ¶ 24, quoting Cuyahoga
Metro. Housing Auth. v. Davis, 197 Ohio App. 3d 411, 2011-Ohio-6162, ¶ 33 (8th Dist.).
{¶ 34} The trial court made a well-reasoned decision with respect to the custody of
M.B. based on the testimony and evidence produced at trial. The trial court specifically
stated that it "carefully observed each witness's demeanor, gestures, and voice inflections
during his/her testimony in determining the credibility of and weighing the testimony
and evidence presented." (Decision at 3.) The court noted the difficulty it faced in
formulating a reasonable parenting plan because of the distance between the parties. In
making its custody order, the court relied on the best interest factors contained in R.C.
3109.04 and 3109.051. The court concluded and was well within its discretion that it was
in M.B.'s best interest for father to be residential parent and legal custodian. There is no
indication the trial court placed a burden on mother to demonstrate the necessity of
moving or placed unfairly prejudicial weight on her decision to live out of state. While
mother disagrees with the trial court's determination, we have reviewed the record and
cannot say the trial court's decision constitutes an abuse of discretion. Mother's first and
second assignments of error are overruled.
{¶ 35} Accordingly, we overrule mother's two assignments of error and affirm the
judgment of the Franklin County Court of Common Pleas, Division of Domestic Relations.
Judgment affirmed.
KLATT and DORRIAN, JJ., concur.
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