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IN THE SUPREME COURT OF OHIO
DAVID W. BURNIP
Appellee
V.
CHARMAINE L. NICKERSON
Appellant
On Appeal from the ColumbianaCounty Court of Appeals,Seventh Appellate District
Court of Appeals Case No. 07 CO 42
MEMORANDUM IN SUPPORT OF JURISDICTIONOF APPELLANT CHARMAINE L. NICKERSON
FKA CHARMAINE L. BURNIP
Brian J. Macala, Esq.Reg. No. 0059224117 S. Lincoln Ave.Salem, OH 44460Tel: 330-337-7934Fax: 330-337-8012Attorney for Appellee
K. Bret Apple, Esq.Reg. No. 00378641376 E. State St.Salem, OH 44460Tel: 330-337-3253
Faxa330-337-0424---Attorney for Appellee
Christopher P. Lacich, Esq.Reg. No. 062291Roth, Blair, Roberts, Strasfeld & Lodge100 Federal Plaza East Ste 600Youngstown, OH 44503Tel: 330-744-5211Fax: 330-744-3184Attorney for Appellant
i
TABLE OF CONTENTS
PAGE(S)
EXPLANATION OF WHY THIS CASE IS OF PUBLIC OR GREAT GENERAL
INTEREST AND INVOLVES A SUBSTANTIAL CONSTITUTIONAL QUESTION .........
STATEMENT OF THE CASE AND FACTS ..................................................... 4
ARGUMENT IN SUPPORT OF PROPOSITIONS OF LAW ................................... 5
Proposition of Law No. I: The trier of fact has a mandatory duty under ORC3109.04(B)(1), and principles of substantive due process, to interview minorchildren as part of the process in determining whether or not a change ofcircumstances has occurred ............ . .. . .................................. ......................
Proposition of Law II: A guardian ad litem who omits, by admission, positiveaspects of a mother/non-residential parent's involvement with the minorchildren, in an investigative report on whether a change of circumstances hasoccurred so taints the proceedings, that a violation of the mother/non-residential parent's due process rights has occurred under the 14th Amendmentof the Ohio Constitution . ...........................................................................
5
7
CONCLUSION .......... ......................................................................... 9PROOF OF SERVICE ...
APPENDIXOpinion of the Columbiana County Court of Appeals(September 30, 2008) ............................................................................ liJudgment Entry of the Columbiana County Court of Appeals(September 30, 2008) ............................................................................ 11
ii
EXPLANATION OF WHY THIS CASE IS OF
PUBLIC OR GREAT GENERAL INTEREST AND INVOLVES
A SUBSTANTIAL CONSTITUTIONAL QUESTION
This case presents two critical issues as it relates to change of custody cases in the
State of Ohio:
1. Whether the trier of fact has a mandatory duty in a custody case under ORC
§3109.04(B)(1), and under principles of substantive due process, to interview minor children
when requested by Motion, as part of the process in determining whether or not a change of
circumstances has occurred; and
2. Whether a guardian ad litem who, by admission, omits positive aspects of a
mother/non-residential parent's involvement with the minor children in an investigative
report on whether a change of circumstances has occurred so taints the proceedings so as to
violate the mother/non-residential parent's rights to due process under the 14th Amendment
of the Ohio Constitution.
In this case, the court of appeals misinterpreted the mandate of ORC §3109.04(B)(1)
to interview minor children in cases involving the establishment of the best interest of
minor children, or those cases which require the resolving of those issues related to the
making of such an allocation, such as the instant change of custody determination.
The court of appeals also ruled that the Guardian ad Litem's inconsistent
investigative report/testimony and apparent bias on the record did not violate the
Appellant's due process rights.
The decision of the court of appeals on the two issues raised undermines the
legislative intent in having minor children interviewed mandatorily pursuant to ORC
§3109.04(B)(1) in cases involving a change of custody. As the legislature recognized in
drafting ORC §3109.04(B)(1), the trier of fact can use the minor children's interviews to
gather important, objective facts. For example, perhaps the parties involved and the
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guardian ad litem are being misled on a certain fact or facts. The minor children, in their
own way, may reveal certain facts to the trier of fact which otherwise would not be
revealed, and which may ultimately lead to a decision that a change of circumstance has
occurred, thus allowing the Court to move to the best interest standard.
The court of appeals takes the position that a court's mandatory duty only arises
when the threshold change of circumstance test has been met, and the best interest
analysis is underway.
In addition, what does it say about our system of justice when a guardian ad litem
admits on record that positive aspects of a mother/non-residential parent's involvement
with her minor children were omitted in the investigative report, claiming that the same
was not relevant to a guardian ad litem's duty in making a change of circumstances
analysis and recommendation to the court? This type of apparent bias on record would tend
to indicate that the report as to whether or not there was a change of circumstances was
tainted by the guardian ad litem. As this Court is aware, the recommendation of a
guardian ad litem is highly influential to the trier of fact and a biased guardian ad litem
can, in essence, set the stage for failure on the change of circumstances argument, if in fact
there is bias in the report on that issue.
In light of the high percentage of divorce that is occurring in the State of Ohio, the
implications of the decision of the court of appeals on these two issues statistically affects
approximately fifty percent of Ohio's citizens and, in rea&ty, each and every citizen who has
a fifty percent chance, more or less, of ending up in the family domestic relations/family law
court- system directly or indirectly.
If the court of appeals' opinion is allowed to stand on the issue of their interpretation
of ORC 3109.04(B)(1), then we have narrowed the tools available to litigants, as well as the
trier of fact, in trying to ferret out the murky facts surrounding a change of custody case in
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the State of Ohio. If allowed to stand, such a rule would be contrary to the plain language
of ORC 3109.04(B)(1), the legislative intent, and the 14th Amendment of the Ohio
Constitution (substantive due process).
Likewise, the integrity of the Ohio Court system is challenged when a guardian ad
litem can appear to exhibit bias on the record, and yet no due process violation is even
found, suggested, or contemplated by the court of appeals.
If a trier of fact who is biased would not be given such great latitude, why should a
guardian ad litem? The recommendation of a guardian ad litem is oftentimes a pivotal
event, both pretrial and at trial, and a report that is not objective and unbiased certainly
does violate the 14th Amendment due process rights of a mother/non-residential parent, as
in this particular case.
Finally, this case involves a substantial constitutional question. The decision of the
court of appeals undermines the Ohio Constitution's 140' Amendment as it would relate to
substantive due process or fundamental fairness on both propositions of law raised.
Clearly, a mother/nonresidential parent with a biased guardian ad litem is not
afforded the fundamental fairness that Ohio law and the Ohio Constitution requires.
The Appellant asks this Honorable Court to take jurisdiction of this matter so that it
can be made clear once and for all, that the plain language and legislative intent of ORC
§3109.04(B)(1) implores upon the trier of fact a mandatory duty to interview minor children
in any change of custody scenario in a domestic relations court of the State of Ohio,
including that portion of a custody case involving a change of circumstances determination.
In addition, a clear message needs to be sent from this Court to all guardian ad
litems across the State of Ohio that they must be unbiased and objective in rendering their
recommendation reports. Otherwise, the 1411, Amendment of the Ohio Constitution will be
violated.
-3-
This Court must grant jurisdiction to hear this case and review the erroneous
decision of the court of appeals on the two critical issues raised herein.
STATEMENT OF THE CASE AND FACTS
The case arises from the attempt of Appellant Charmaine Nickerson to regain the
status of residential parent and legal custodian of her two minor children, Ty Burnip, born
July 16, 2001; and Leslie Burnip, born July 27, 2002, or, in the alternative, the status of
shared parent.
The parties were granted a dissolution of marriage on June 14, 2005 in which the
Court designated Appellee David Burnip as the children's residential parent and legal
custodian pursuant to the parties' incorporated Separation Agreement.
On August 9, 2006 Appellant filed a Motion to Reallocate Parental Rights and
Responsibilities and alleged that a change of circumstance had occurred since the June 14,
2005 dissolution. On October 18, 2006, the Appellee filed a Motion to Dismiss. A trial was
held before a magistrate on June 25, 2007. Prior to that date, on June 11, 2007, Appellant
filed a Motion for In-Camera interview of the children, who at the time were ages 4 and 5.
The Appellee opposed said Motion. Neither the magistrate nor the trial court (on objections)
ever directly ruled on the motion, and never interviewed the minor children. The issue was
raised again at trial by the Appellant. The Guardian ad Litem's report found no change of
circumstances and recommended no reallocation o parental rights and responsihilities.
The magistrate concluded that while Appellant had demonstrated significant
changes in her life, she had failed to demonstrate any significant changes in the lives of the
Appellee or the children since the dissolution. The magistrate found that the circumstances
of the Appellee and the children had been "absolutely constant." The magistrate concluded
that Appellant's motion should be denied and the Appellee's Motion to Dismiss should be
granted. The trial court subsequently entered Judgment overruling objections to said
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Magistrate's decision, and denying Appellant's Motion to Reallocate Parental Rights and
Responsibilities.
Appellant appealed to the Columbiana County Court of Appeals. The court of
appeals affirmed the Judgment of the court of common pleas and found that (1) the
Appellant's first assignment of error as it would relate to ORC §1309.04(B)(1) was without
merit, reasoning that the trial court had no duty to interview the minor children prior to
determining their best interests inasmuch as Appellant did not demonstrate a change of
circumstances. Thus, by their rationale there was no best interest standard before the trial
court requiring the interview of the minor children to help the trier of fact in determining
whether change of circumstances had occurred; and (2) that the Guardian ad Litem did not
fail in her duties, nor did they find that the Guardian ad Litem was biased against the
Appellant, despite her admission on record that her report was devoid of all positive aspects
of the Appellant's life and interaction with the children, and thus no 1441i Amendment due
process rights were violated.
In a concurring separate opinion, the Court also indicated that they did not believe
that the Guardian ad Litem's report was the end-all and be-all inasmuch as the trial court
reviewed the report, listened to the Guardian ad Litem's testimony as wen as her cross-
examination, and ultimately came up with its own decision.
ARGUMENT IN SUPPORT OF PROPOSITIONS OF LAW
Proposition of Law No. I: The trier of fact has a mandatory dutyunder ORC 3109.04(B)(1), and principles of substantive due process,to interview minor children as part of the process in determiningwhether or not a change of circumstances has occurred.
The plain language of ORC §3109.04(B)(1) provides:
"When making the allocation of parental rights and responsibilities for thecare of the children under this section in an original proceeding formodification of a prior order of the court making the allocation, the courtshall take into account that which would be in the best interest of thechildren. In determining the child's best interest for purposes of making its
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allocation of the parental rights and responsibilities for the care of the childand for purposes of resolving any issues related to the making of thatallocation, the court, in its discretion, may and, upon the request of eitherparty, shall interview in chambers any or all of the involved childrenregarding their wishes and concerns with respect to the allocation."
The case law in the State of Ohio indicates that said interview is mandatory as cited
herein below:
The court in Church v. Church, 2004 Ohio 6215 has held concerning R.C.
3109.04(B)(1) that: "[t]he plain language of this statute absolutely mandates the trial court
judge to interview a child if either party requests the interview." Citing Badeett v. Badgett
(1997), 120 Ohio App. 3d 448, 450. "[T]he state legislature made it abundantly clear that
the judge must attempt to listen to that input when one party so requests." Id. at 452; see
also Riamle v. Riggle, 9t" Dist. No. O1CA0012-Ohio-1376 (Courts must strictly follow the
procedures in R.C. 3109.04(B)(1); King v. Kine (Feb. 20, 2001), 5th Dist. Nos. 2000CA00203,
2000CA00268 (R.C. 3109.04(B)(1) mandates that a trial court conduct an in camera
interview of the children if requested to do so in a child custody proceeding). In Church,
supra, as in Badvett, supra, the trial court failed to hold the required in camera interview.
The appellate court in Church found that the error was not harmless. The trial court's
judgment was reversed in both cases cited.
In addition, it was pointed out to the court of appeals in this instant case on oral
argument, that a close review of the statute indicates that the legislature intended minor
children to be interviewed even in the determination of change of circumstances, or
otherwise why would the phrase would have been added, "... and for purposes of resolving
any issues related to the making of that allocation (allocation of parental rights and
responsibilities)."
In other words, Appellant argues that a court, in determining the children's best
interests for purposes of making its allocation of the parental rights and responsibilities,
-6-
must first resolve issues related to the making of that allocation which includes, but is not
limited to a determination of whether a change of circumstances has occurred. As set forth
herein before, minor children, no matter what age, so long as they are able to communicate
and have competence in light of their respective ages, can lend insight to facts that no one
else can lend insight to, such as details concerning their lives with either parent or personal
details such as overnight guests or the use of illicit drugs or something of that nature which
may perk the trial court's interest and ultimately sway it in a decision when determining
whether or not a change of circumstances has occurred.
The holding of the court of appeals ignores the plain language of ORC §1309.04(S)(1)
legislative intent, and well-settled case law here in the State of Ohio.
Proposition of Law II: A guardian ad litem who omits, by admission,positive aspects of a mother/non-residential parent's involvementwith the minor children, in an investigative report on whether achange of circumstances has occurred so taints the proceedings, thata violation of the mother/non-residential parent's due process rightsoccurred under the 14th Amendment of the Ohio Constitution.
A guardian ad litem in Ohio custody cases is entrusted with a very important duty:
giving the trier of facts an objective investigative report and recommendation to the trier of
fact. A guardian ad litem is to provide unbiased insight and cut through the hyperbole,
smoke, and distortion that may be presented by either party to the trier of fact.
In this case, as in every case, the Guardian ad Litem's report and recommendation
was anxiously awaited, for both sides understood the significance of it: it is a pivotal event
in a change of custody case which then can determine whether or not the parties reach a
settlement, go to trial, or, for the moving party, whether they withdraw their action based
on the fact this objective voice has not found in their favor or suggested some compromise
(e.g. shared parenting).
This is what exactly happened in this instant case, and the court of appeals failed to
grasp the impact of a guardian ad litem with flawed objectivity and apparent bias on the
-7-
proceedings. The Guardian ad Litem then produced a report which found no change of
circumstances. The trier of fact, being quite well aware of that recommendation, ultimately
ruled the same way.
The Guardian ad Litem admitted that the report she prepared was devoid of any
positive aspects concerning Appellant's role as a loving mother of these two minor children
(Transcript p. 218; 219). In fact, the question by Appellant's counsel was posed as this:
Q. So my question to you is, how does your report - the report that youissued on February 1, 2007, how is it devoid of any positive aspectsthat this woman seated to the left of me brings to these children'slives on a day-to-day or week-to-week basis?
A. I guess I - I didn't mean to make it devoid of any positive aspects ofCharmaine.
Q. In fact, that's exactly what you did, correct?A. I guess.
*xx
This is prima facie evidence that the Guardian ad Litem did not present an
objective, diligent report to the Court and instead presented a flawed, biased
recommendation. The whole outcome of the trial was thus tainted, warranting remand.
A guardian ad litem has been described as performing a dual role of (1) advocating
the child's interest, and (2) serving as a fact finder for the Court. See In the Matter of:
Alexis Seitz, 2003 Ohio 5218; 2003 Ohio App. LEXIS 4677, citing Stuckey, Guardian ad
Litem as surrogate parents: Implications for Role Definition and Confidentiality (1996), 64
Fordham Law Review 1785, 1787.
In In re: Alfrev, 2003 Ohio 608, the Second District Court cites another important
principal: "The guardian ad litem is but an officer of the court, one not aligned with any
party on the legal issues presented."
Appellant submits that the threshold for guardian ad litem bias is analogous to that
of a magistrate or judge.
The threshold for proving that an alleged bias existed in a magistrate's or judge's
decision is high. "The terms 'bias' or 'prejudice' refer to a 'hostile feeling or spirit of ill will
on the one hand, or undue friendship or favoritism on the other, toward one of the litigants
or his or her attorneys, with a formation of a fixed anticipatory judgment on the part of a
judge as distinguished from an open state of mind which will be governed by the law and
the facts.' 22 Ohio Jurisprudence 3(d) (1998) 203, Courts and Judges, Section 126." See
also, Mascorro v. Mascorro (June 9, 2000), 2nd Dist. No. 17945; State ex rel. Pratt v.
Weygandt (1956), 164 Ohio St. 463, paragraph 4 of the syllabus.
The appellant in John A. L. v. Sheri B. cited In the matter of: Alexis Seitz, 11th Dist.
No. 2002-T-0097, 2003 Ohio 5218, wherein the court considered the appellant's argument
that "the guardian ad litem had performed such an inadequate investigation into Alexis'
best interests so that the recommendation in her report that appellee be given custody of
Alexis lacked support." Appellant suggests the same occurred in this instant case.
Thus, the court of appeals, to simply disregard the apparent bias on record of the
Guardian ad Litem and the inconsistencies as to her testimony at trial versus what was
placed in her report was clear error, and a violation of the Appellant's 14th Amendment due
process rights under the Ohio Constitution should have been found.
CONCLUSION
P'or the reasons discussed above, this case involves matters of public and great
general interest and involves a substantial constitutional question. The Appellant requests
this Court to accept jurisdiction in the case so that the important issues presented will be
reviewed on their merits.
Respectfully submitted,8
ROTH, BLAIR, ROBERTS, STRASFELD & LODGE
A LEGAL PROFESSIONAL ASSOCIATION
Christopher P. Lacich, Esq. #0062291100 Federal Plaza East Ste 600Youngstown, OH 44503PH: 330-744-5211; FAX: 330-744-3184Email: [email protected] for Appellant
CERTIFICATE OF SERVICE
A copy of the foregoing has been sent by prepaid U.S. mail on the 2°'1 day of
, 2008 to K. Bret Apple, Esq., 1376 E. State St., Salem, OH 44460; to
Brian J. Macala, Esq., 117 S. Lincoln Ave., Salem, OH 44460, Attorneys for Appellee; and
to Theresa Tolson, Esq., 18495 Fifth St., Beloit, OH 44609, Guardian ad Litem.
\1Christopher P. Lacich, Esq. #0062291Attorney for Appellant Charmaine Nickerson
APPENDIX
STATE OF OHIO, COLUMBIANA COU
IN THE COURT OF APPEALS
SEVENTH DISTRICT
DAVID BURNIP,
®L &iw 10
i.®URT C1P APPEALS
SEP 3 0 2008CQLUR96IR@EA Co. OHIQ
tiDarnw ^
PLAINTIFF-APPELLEE,
VS.
CHARMAINE NICKERSON,
DEFENDANT-APPELLANT.
CHARACTER OF PROCEEDINGS:
CASE NO. 07-CO-42
OPINION
Civil Appeal from Court of CommonPleas, Domestic Relations Division,Columbiana County, OhioCase No. 05DR261
JUDGMENT:
APPEARANCES:For Plaintiff-Appellee
Affirmed
Attorney K. Bret AppleWilliams & Apple Co., L.P.A.1376 East State StreetSalem, Ohio 44460-1235
Attorney Brian Macala117 South Lincoln AvenueSalem, Ohio 44460-3101
For Defendant-Appellant Attorney Christopher LacichRoth, Blair, Roberts Strasfeld & Lodge100 Federal Plaza East, Suite 600Youngstown, Ohio 44503
JUDGES:
Hon. Gene DonofrioHon. Cheryl L. WaiteHon. Mary DeGenaro
Dated: September 30, 2008
-1-
DONOFRIO, J.
{11} Defendant-appellant, Charmaine Nickerson, appeals from a
Columbiana County Common Pleas Court judgment dismissing her motion for a
change of custody of the two minor children she shares with plaintiff-appellee, David
Burnip.
{¶2} The parties were married on May 21, 2004. By this time, they already
had tovo children together, Leslie (d.o.b 7/16/01) and Ty (d.o.b. 7/27/02). The parties
were granted a dissolution on June 14, 2005. Per the parties' incorporated
separation agreement, the court designated appellee as the children's residential
parent and appellant was granted companionship rights.
{13} On August 9, 2006, appellant filed a motion to reallocate parental rights
and responsibilities naming her as the children's residential parent, or in the
alternative, to establish a shared parenting plan. She alleged that such a change
was in the children's best interest due to allegations that the children spend most of
their time either in daycare or with their paternal grandparents, that appellee fails to
attend any school activities, and that appellee fails to tend to Leslie's allergy issues.
{14} In response, appellee filed a motion to dismiss, asserting that appellant
could not demonstrate a change in circumstances as required to warrant a change in
custody.
{15} A magistrate appointed a guardian ad litem (GAL) for the children and
set the matter for a hearing.
{116} On June 11, 2007, appellant filed a motion for an in-camera interview of
the children. Appellee opposed this motion, stating that the children, then ages four
and five, were too young to be subjected to an in-camera interview. It appears that
the magistrate and the court never directly ruled on this motion. However, neither
interviewed the children.
{¶7} The magistrate held a hearing on appellant's motion to reallocate
parental rights and responsibilities. The magistrate concluded that while appellant
had demonstrated significant changes in her life, she had failed to demonstrate any
-2-
changes in the lives of appellee or the children since the dissolution. In fact, the
magistrate found that the circumstances of appellee and the children had been
"absolutely constant." Thus, the magistrate concluded that appellant's motion should
be denied and appellee's motion to dismiss should be granted. The trial court
subsequently entered judgment denying appellant's motion and dismissing the
action.
{18} Appellant filed objections to the magistrate's decision taking issue with
numerous factual findings and alleging that she did demonstrate a change in
circumstances. The trial court held a hearing on the motion. It subsequently
overruled appellant's objections.
{19} Appellant filed a timely notice of appeal on November 7, 2007.
{110} Appellant raises four assignments of error, the first of which states:
{111} "THE TRIAL COURT ERRED BY NOT INTERVIEWING THE MINOR
CHILDREN AT THE REQUEST OF DEFENDANT-APPELLANT PURSUANT TO
MOTION AND AT TRIAL, ALL PURSUANT TO O.R.C. §3109.04(B)(1)."
{112} On June 11, 2007, appellant filed a motion for the court to conduct an
in-camera interview with the children, who were four and five years old at the time.
Appellee filed a response in opposition. Appellant also brought the matter of her
motion to the magistrate's attention at the June 25, 2007 hearing. (Tr. 77-78). There
is no indication that the trial court or the magistrate ever ruled on this motion.
However, neither the court nor the magistrate interviewed the children. So we may
presume that the court overruled appellant's motion. Additionally, in her
memorandum in support of her objections to the magistrate's decision, appellant
asserted that it was error for the magistrate to dismiss the case without first
interviewing the children.
{¶13} Appellant now argues that it was error for the magistrate or the trial
court not to interview the children.
{¶14} R.C. 3109.04(B)(1) provides:
-3-
{¶15} "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.
In determining the child's best interest for purposes of making its allocation of the
parental rights and responsibilities for the care of the child and for purposes of
resolving any issues related to the making of that allocation, the court, in its
discretion, may and, upon the request of either party, shall interview in chambers any
or all of the involved children regarding their wishes and concerns with respect to the
allocation." (Emphasis added.)
{¶16} This court has previously held that R.C. 3109.04(B)(1)'s language is
mandatory. Badgett v. Badgett (1997), 120 Ohio App.3d 448, 450, 698 N.E.2d 84.
In fact, we stated: "The plain language of this statute absolutely mandates the trial
court judge to interview a child if either party requests the interview. An interview is
discretionary only if no party requests it; if a party to the allocation hearing makes the
request, the court 'shall' interview the child or children." Id.
{117} But R.C. 3109.04 applies when the court is determining the best
interests of the children. In this case, the court did not get to the step of determining
the best interests of the children. Before the court could even get to a best interest
determination, it first had to find that a change in circumstances had occurred.
{¶18} "The court shall not modify a prior decree allocating parental rights and
responsibilities for the care of children unless it finds, based on facts that have arisen
since the prior decree or that were unknown to the court at the time of the prior
decree, that a change has occurred in the circumstances of the child, the child's
residential parent, or either of the parents subject to a shared parenting decree, and
that the modification is necessary to serve the best interest of the child." R.C.
3109.04(E)(1)(a).
{119} In this case, the court determined that no change in circumstances had
occurred. Therefore, the court never moved on to the step of examining the
-4-
children's best interests. Absent a finding of change in circumstances, there is no
reason for the trial court to consider testimony and evidence as to the best interests
of the children. Venuto v. Pochiro, 7th Dist. No.02-CA-225, 2004-Ohio-2631, at ¶63.
Unless and until the court found a change in circumstances, interviewing the children
would have been premature. Here the magistrate, and then the trial court,
determined that appellant did not present sufficient evidence to demonstrate a
change in circumstances and, therefore, granted appellee's motion to dismiss. This
case never proceeded to the point where appellee presented evidence. Presumably,
had the court overruled appellee's motion to dismiss, appellee would have then
presented evidence and the trial court would also have interviewed the children.
{¶20} Accordingly, appellant's first assignment of error is without merit.
{121} Appellant's second assignment of error states:
{122} "THE TRIAL COURT ERRED IN NOT FINDING THAT THE
DEFENDANT-APPELLANT MET HER BURDEN OF CHANGE OF
CIRCUMSTANCES UNDER CURRENT OHIO LAW (O.R.C. §3109.04(E)(1)(a) BY
THE EVIDENCE/FACTS PRESENTED AT TRIAL AND THROUGH DEPOSITION
TESTIMONY, ALL OF WHICH WARRANTED THAT THE DETERMINATION OF
ALLOCATION OF PARENTAL RIGHTS AND RESPONSIBILITIES BE MADE
UNDER A BEST INTEREST STANDARD."
{123} Appellant argues that the trial court erred in finding that she did not
demonstrate a change in circumstances. She points to such things as the children
spend a substantial amount of time with their paternal grandparents and at daycare
instead of with appellee, appellee's home is not clean or appropriate for the children,
the daycare facility that the children attend has dogs and cats present despite
Leslie's allergy to animals, Ty is not advancing to kindergarten, the children are not
appropriately dressed for school, appellee's smoking may have an adverse affect on
the children, and the children are now two years older than when the parties
divorced. Appellant argues that these changes, when considered together, constitute
the type of change in circumstances contemplated by R.C. 3109.04(E)(1)(a).
-5-
{¶24} When reviewing a trial court's decision in domestic relations matters, an
appellate court must uphold the decision absent an abuse of discretion. Booth v.
Booth ( 1989), 44 Ohio St.3d 142, 144, 541 N.E.2d 1028. Abuse of discretion
constitutes more than an error of law or judgment; it implies that the court's attitude is
unreasonable, arbitrary, or unconscionable. Blakemore v. Blakemore ( 1983), 5 Ohio
St.3d 217, 219, 450 N.E.2d 1140. The appellate court should not independently
review the weight of the evidence in the majority of cases but rather should be guided
by the presumption that the trial court's findings are correct. Miller v. Miller ( 1988), 37
Ohio St.3d 71, 74, 523 N.E.2d 846.
{¶25} As discussed above, before moving on to determine the children's best
interests, the magistrate and the court first had to determine that a change had
occurred in the circumstances of the children or their residential parent, in this case
appellee. R.C. 3109.04(E)(1)(a). To determine whether appellant demonstrated a
change in circumstances, we must examine the evidence presented.
{126} Appellant called four witnesses. The first to testify was appellant's next-
door neighbor, Heather Bronstein. Bronstein testified that she sometimes sees the
children ihappropriately dressed. (Tr. 11). She stated that Leslie is sometimes
dressed in boys' clothing, the children's clothes are too small, and the children are
not always clean. (Tr. 11). Bronstein stated that she has made these observations
when the children have come over straight from their babysitter before appellant has
had a chance to bathe them or change their clothes. (Tr. 11-12).
{127} Appellant was the next witness. She testified as to numerous issues
that she believed constituted a change in circumstances.
{1128} First, appellant testified regarding the children's daycare provider. The
children attend daycare in the home of Tracy Klein. Appellant stated that although
the children have been in daycare with Klein since before the dissolution, she
believed that the quality of Klein's daycare had declined since that time. (Tr. 20).
Appellant stated that Klein had acquired several pets and did not maintain her home
as well as she previously had. (Tr. 20). In fact, appellant stated that she called
-6-
Children's Services and complained because she noticed on one occasion that
Klein's home smelled of cat urine and she saw fleas jumping onto her children when
she picked them up. (Tr. 21). Appellant further stated that Leslie suffers from
allergies and that she was concerned that the dogs and cats at Klein's home
aggravated Leslie's allergies. (Tr. 21-22). However, she also stated that Leslie's
doctor simply stated that if Leslie's allergies worsened, then they should consider a
new daycare provider. (Tr. 22-23). She further admitted that Leslie suffered from
allergies when the parties separated. (Tr. 95).
{129} Second, appellant testified that the condition of appellee's home had
deteriorated since the parties' dissolution. (Tr. 25). Appellee and the children still
reside in the same house the parties shared during the marriage. (Tr. 25). She
stated she returned to appellee's house in late 2005 or early 2006 to pick up some of
her belongings that she had left behind. (Tr. 26). She observed that the house was
messy and that there were animal droppings in the attic. (Tr. 27). She also observed
that Leslie had moved to a different room that had an unfinished ceiling. (Tr. 120).
{130} Third, appellant testified that appellee's parents spent too much time
caring for the children. (Tr. 28). However, she also admitted that the grandparents
now had the same role in the children's lives as they did at the time of the dissolution.
(Tr. 28).
{¶31} Fourth, appellant testified that recently it was determined that Ty should
be held back from advancing to kindergarten. (Tr. 30). She opined that this was a
result of appellee's failure to work with Ty. (Tr. 30). Appellant stated that if she were
awarded custody, she could spend more time working with Ty on school work. (Tr.
31).
{¶32} Fifth, appellant testified that appellee smokes mini-cigars. (Tr. 47).
She stated that she could smell the odor of tobacco in appellee's car when he picked
up the children. (Tr. 48). Appellant stated she was concerned that it irritated Leslie's
allergies. (Tr. 48, 53). But appellant admitted that appellee smoked at the time of the
dissolution too. (Tr. 47).
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{¶33} Sixth, appellant testified that she has noticed that the children's clothes
and shoes are often too small and that they frequently seem as though they have not
bathed in several days. (Tr. 53-54).
{1[34} Finally, appellant testified that when school is in session, the children
spend only two or three hours a day with appellee. (Tr. 57).
{135} Appellant also spent some time testifying about her home with her new
husband, Kurtis Nickerson, and the advantages they could provide to the children.
{136} The next witness to testify was Tracy Klein, the certified daycare
provider. Klein testified that she has been caring for the parties' children since they
were six weeks old. (Tr. 127-28). She further stated that she has been in the same
home, where she provides her daycare service, since almost two years before the
parties' dissolution. (Tr. 126-27). Klein stated that she has always had pets at her
home/daycare facility. (Tr. 129). In fact, she stated that at the time of the parties'
dissolution, she had one dog and four cats in her home. (Tr. 130). Now, Klein stated
that she has two dogs and five cats. (Tr. 131). As to the children's hygiene, Klein
stated that Leslie and Ty always arrive bathed and wearing appropriate clothing. (Tr.
133-34).
{137} Appellant's husband, Kurtis Nickerson, was the next witness to testify.
He stated that Klein's home had smelled of cat urine, but that the situation had
improved. (Tr. 160). He then spent most of his testimony describing the home he
shared with appellant and the things they did with the children.
{1138} The GAL was the last witness to testify. She stated that appellant is a
good mother. (Tr. 214, 219). She also acknowledged that appellee and his parents
shared this opinion. (Tr. 214). While she admitted that she failed to note any positive
aspects of appellant in her report, she stated that this was because she simply
focused on the issues of concern that appellant had raised and whether there had
been a change in circumstances in this case. (Tr. 218-19). The GAL testified that
she inspected appellee's home just prior to the hearing in this case and that she
found it to be "well-kept" and "very clean." (Tr. 221). She also stated that Leslie's
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bedroom had a finished ceiling. (Tr. 221). The GAL opined that the house was more
than adequate to meet the children's needs. (Tr. 252). She did not go into the attic.
(Tr. 221). Next, the GAL testified that she looked into appellee's smoking. (Tr. 224).
She stated that she did not notice the smell of smoke in appellee's car, on his person,
or in his house. (Tr. 224). However, she stated that appellee did admit to occasional
smoking but he informed her that he does not smoke in the children's presence. (Tr.
225). After that, the GAL testified that while appellee's parents are actively involved
in the children's care, this was also the situation when the parties were married. (Tr.
230). Finally, the GAL testified that she was standing by her recommendation in her
report that the children should remain in appellee's custody. (Tr. 255-56).
{139} This evidence supports the magistrate's and the trial court's
determination that no change in circumstances had occurred in the lives of appellee
or the children. While appellant's and her husband's testimony demonstrated that
they could provide a good and loving home for the children, this was not the standard
that they had to meet. Instead, appellant had to first demonstrate a change in
circumstances in the lives of appellee or the children.
{140} Many of the factors appellant relies on to demonstrate a change in
circumstances existed prior to the parties' dissolution. Appellee and the children still
live in the same home. The children still attend the same daycare, which had
numerous animals in the house before the dissolution. They also spend a significant
amount of time with their paternal grandparents, which was also the case before the
dissolution. And appellee smoked prior to the dissolution.
{141} The only real changes appellant can point to, other than the passage of
time, are that Ty is being held back from kindergarten and that the children are
sometimes inappropriately dressed or not bathed. One of these factors was rebutted
by Klein, who testified that the children always arrive at daycare properly dressed and
bathed. The other factor was not linked to appellee. Appellant testified that she
believed that the reason Ty was not advancing to kindergarten was because appellee
did not spend enough time working with him and that she could do a better job.
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However, this was simply her opinion. No teacher or other person corroborated
appellant's opinion.
{142} Given this evidence, we cannot conclude that the trial court abused its
discretion in finding that no change in circumstances had occurred in the lives of
appellee or the children. Accordingly, appellant's second assignment of error is
without merit.
{143} Appellant's third assignment of error states:
{144} "THE TRIAL COURT ERRED IN NOT RECOGNIZING THAT THE
GUARDIAN AD LITEM FAILED TO PERFORM NECESSARY DUE DILIGENCE
AND/OR COMPETENT OBJECTIVITY, RESULTING IN A GUARDIAN AD LITEM
RECOMMENDATION IN STARK CONTRAST TO THE OBJECTIVE FACTS, ALL TO
THE PREJUDICE OF DEFENDANT-APPELLANT AND/OR THE MINOR CHILDREN
AND IN VIOLATION OF THEIR FUNDAMENTAL RIGHTS TO DUE PROCESS
UNDER THE XIV AMENDMENT OF THE U.S. AND OHIO CONSTITUTIONS."
(145) Here appellant argues that the GAL failed to properly perform her
duties. Appellant takes issue with the fact that the GAL failed to include in her report
any positive things regarding appellant. And she points out that the GAL admitted as
much at the hearing. (Tr. 218-19). Thus, she concludes that the GAL's report was
not objective. Appellant also points out that the GAL submitted an initial report prior
to conducting an investigation of the parties' homes. She also takes issue with the
fact that the GAL later found appellee's home to be appropriate for the children.
Appellant contends that this contradicts the evidence at the hearing that Leslie's
bedroom did not have a ceiling, there were rodent droppings in the attic, and the
home was in a state of disrepair.
{146} The GAL testified regarding the matters that appellant now takes issue
with. While the GAL did admit that she failed to include any positive aspects of
appellant in her report, she stated that this was not intentional. (Tr. 218-19). Instead,
the GAL stated that her report focused on whether there was a change in
circumstances, the issues that appellant raised regarding appellee, and whether the
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parties were appropriate for shared parenting. (Tr. 219). She also testified that
appellant is a good mother and a wonderful person. (Tr. 214, 219). And she testified
that both appellant and her husband made a positive impression on her. (Tr. 202).
Thus, while the GAL did not state these things in her report, the evidence was
nonetheless before the magistrate and the court that the GAL found appellant to be a
good mother.
{¶47} Next, the GAL testified as to why her report did not include an
investigation of appellee's home. She stated that she tried on several occasions
between October 23, 2006 and December 31, 2006 to make an unannounced home
visit to appellee, but appellee was never at home. (Tr. 204). She then submitted a
report on February 1, 2007, which did not include any home visits. (Tr. 204). Her
report indicated that if the parties did not settle this matter, she would need to
conduct home visits. (Tr. 204). At a February 17, 2007 pretrial, appellant's counsel
asked her not to do any work on the case for the time being. (Tr. 210, 251). She
eventually conducted the home studies in the week before the hearing, which is
when she was informed that the case was going forward. (Tr. 210). Thus, the home
studies were conducted prior to the hearing on this matter. The GAL testified that
she did not file a supplemental report after completing the home investigations
because she did not find anything during those investigations to change her
recommendation. (Tr. 246).
{¶48} Finally, the GAL found appellee's home to be appropriate for the
children. (Tr. 252). She found it to be well-kept and clean. (Tr. 221). She did not
observe an unfinished ceiling in Leslie's bedroom as appellant had alleged. (Tr.
221). She did not go into the attic, however, so she would have no knowledge
whether animal droppings were present there. (Tr. 221). While this testimony
contradicted appellant's testimony, appellant's testimony was regarding the condition
of appellee's house in late 2005 or early 2006. The GAL inspected the house in mid-
2007. Thus, had the conditions existed that appellant described, appellee could have
likely remedied them by the time the GAL inspected the house.
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{¶49} Based on the above, we do not find that the GAL failed in her duties nor
do we find that the GAL was biased against appellant, as appellant suggests. Thus,
appellant's Fourteenth Amendment rights were not violated. Accordingly, appellant's
third assignment of error is without merit.
{150} Appellant's fourth assignment of error states:
{151} "THE TRIAL COURT ERRED IN IMPOSING AN UNREASONABLE,
UNCONSTITUTIONAL BURDEN ON DEFENDANT-APPELLANT IN ESTABLISHING
'CHANGE OF CIRCUMSTANCES' UNDER HER INSTANT FACTS, AND RULING
AGAINST HER BASED ON THE EVIDENCE PRESENTED BOTH AT TRIAL AND IN
THE DEPOSITIONAL TESTIMONY, VIOLATING HER FUNDAMENTAL DUE
PROCESS RIGHTS AS GUARANTEED UNDER THE XIV AMENDMENT OF THE
U.S. AND/OR OHIO CONSTITUTIONS."
{152} Here appellant argues that R.C. 3109.04(E)(1)(a), which requires a
change in circumstances before a court can grant a change in custody, is
unconstitutional. She argues that the fact that the statute requires a non-residential
parent to demonstrate a change in circumstances in order for the court to modify
custody before the court will consider the children's best interests violates due
process. She contends that such a standard places an unreasonable burden on the
non-residential parent who seeks a change in custody.
{153} R.C. 3109.04(E)(1)(a) provides:
{154} "The court shall not modify a prior decree allocating parental rights and
responsibilities for the care of children unless it finds, based on facts that have arisen
since the prior decree or that were unknown to the court at the time of the prior
decree, that a change has occurred in the circumstances of the child, the child's
residential parent, or either of the parents subject to a shared parenting decree, and
that the modification is necessary to serve the best interest of the child. In applying
these standards, the court shall retain the residential parent designated by the prior
decree or the prior shared parenting decree, unless a modification is in the best
interest of the child and one of the following applies:
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{¶55} "(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.
{156} "(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.
{¶57} "(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."
{158} Appellee argues that appellant failed to properly raise this constitutional
challenge in the trial court and therefore, waived it on appeal. However, whether
appellant waived this issue is immaterial in light of the Ohio Supreme Court's ruling in
In re Brayden James, 113 Ohio St.3d 420, 866 N.E.2d 467, 2007-Ohio-2335. The
Ohio Supreme Court specifically found R.C. 3109.04(E)(1)(a) to be constitutional:
"The provisions of R.C. 3109.04(E)(1)(a) promote stability in the development of
children and are not unconstitutional as applied where a noncustodial parent has not
evidenced that a change has occurred in the circumstances of the child." Id. at
paragraph two of the syllabus. We need not reanalyze the constitutionality of a
statute that the Supreme Court has already determined to pass constitutional muster.
{159} Accordingly, appellant's fourth assignment of error is without merit.
{160} For the reasons stated above, the trial court's judgment is hereby
affirmed.
Waite, J., concurs.
DeGenaro,J., concurs with separate concurring opinion.
APPROVED:
Gene Dohofrio, Judae--I
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DeGenaro, J., concurring, with separate concurring opinion.
I agree with my colleague's analysis and disposition with regard to appellant's
first, second and fourth assignments of error. I write separately because the majority
has failed to address the due process issue raised by appellant.
In her third assignment of error, appellant asserts that she and her children
were denied due process by being denied the benefit of a diligent guardian ad litem.
Appellant argues that the GAL's "biased" report so tainted the proceedings that a fair
trial was rendered impossible. Appellant does not provide any case law or statutory
authority to support her claim of due process violation. App.R.16(A)(7).
The majority opinion engages in a factual analysis to reach the conclusion that
the guardian ad litem ("GAL") did not shirk her duties or act in a biased manner against
appellant, and thus did not create a due process problem for appellant. However, the
issue can be resolved without reaching an analysis of the GAL's performance.
A GAL is appointed to investigate the custody situation in order to make a
recommendation to the court regarding the child's best interest. R.C. 3109.04(C);
Ferrell v. Ferreil, 7th Dist. No. 01AP0763, 2002-Ohio-3019, at ¶43, citing In re Baby
Girl Baxter (1985), 17 Ohio St.3d 229, 232, 479 N.E.2d 257. A GAL advocates for the
best interests of the child, which is different than being a legal advocate for the child or
the parent as an individual. Matter of Duncan/Walker Children (1996), 109 Ohio
App.3d 841, 844-45, 673 N.E.2d 217. A GAL only becomes a direct advocate for the
child upon express dual appointment by the court. Id.; In re Williams, 101 Ohio St.3d
398, 805 N.E.2d 1110, 2004-Ohio-1500, at ¶18. Thus, within the meaning of R.C.
3109.04(C), the GAL is only an investigator, and the recommendation provided by the
GAL is considered along with all other evidence presented to a court. Webb v. Lane
(Mar. 15, 2000), 4th Dist. No. 99CA12, at 2; In re Sherman, 3d Dist. No.05-04-47, 05-
04-48, 05-04-49, 2005-Ohio-5888, at ¶28.
The magistrate, as the trier of fact, is presumed to be capable of both weighing
the credibility of the GAL and disregarding any inadmissible findings in the report. In
re Sypher, 7th Dist. No. 01BA36, 2002-Ohio-1026; In re Stephens, 7th Dist. No.
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2001 C056, 2002-Ohio-3057 at ¶48. The court's consideration of a GAL's report does
not violate any party's due process rights as long as the party had an opportunity to
cross-examine the GAL on issues raised in the report. In re Hoffman, 97 Ohio St.3d
92, 776 N.E.2d 485, 2002-Ohio-5368, at ¶25; Roach v. Roach (1992), 79 Ohio App.3d
194, 202-03, 607 N.E.2d 35.
In this case, Tolson was appointed as the GAL for the children and was not
dually appointed as their attorney. Tolson submitted a report to the magistrate, was
available for examination at the June 25, 2007 hearing, and was in fact cross-
examined by Nidkerson. Nothing in the record reflects that the GAL held an
inappropriate sway on the decision of the magistrate. The magistrate was free to
consider the information provided by the GAL, as well as the testimony elicited from
the examination and cross-examination of the GAL. The magistrate issued written
findings and fully considered all evidence and testimony presented. Thus Nickerson's
due process rights in relation to the GAL's report were not violated, and we should
defer to the magistrate's judgment.
For the foregoing reasons I respectfully concur in judgment only as to the third
assignment of error.
APPROVED:
MARY DeGENARO, Presiding Judge.
^ L q
COURTOFAPPEALB
STATE OF OHIO
SEP 3 0 2003^wOI.UFAMIlsHq CO. OHIO
) IN THE COURT OF APPEALS OF OHIO
COLUMBIANA COUNTY
DAVID BURNIP,
dDa ap,
PLAINTIFF-APPELLEE,
SEVENTH DISTRICT
))))
VS. ) CASE NO. 07-CO-42)
CHARMAINE NICKERSON, ) JUDGMENT ENTRY)
DEFENDANT-APPELLANT.
For the reasons stated in the opinion rendered herein, appellant's four
assignments of error are without merit and are overruled. It is the final judgment and
order of this Court that the judgment of the Common Pleas Court, Columbiana County,
Ohio is affirmed. DeGenaro, J., concurring, with separate concurring opinion.
Costs to be taxed against appellant.
("JUDGES.
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