Summary
emphasizing that the knowledge the trial court obtains at trial cannot be conveyed through a printed record
Summary of this case from In re J.K.Opinion
No. 87-603
Submitted February 2, 1988 —
Decided June 1, 1988.
Domestic relations — Custody — Appellate procedure — Court of appeals' granting of change of custody is inappropriate in most cases — App. R. 12(B) — R.C. 2151.414 inapplicable to changes in custody.
APPEAL from the Court of Appeals for Stark County, No. CA-6984.
Plaintiff-appellee, Patricia A. Miller (hereinafter "wife"), and defendant-appellant, Garry E. Miller (hereinafter "husband"), were married in December 1972. Out of this marriage, two children were born: Ryan in 1977 and Craig in 1978.
In 1982, plaintiff-wife filed a complaint in the court of common pleas to obtain a divorce from defendant-husband, as well as, inter alia, custody of the two minor children. Trial was held, and the court found that the wife had failed to present a prima facie case and dismissed her divorce action. Nevertheless, based on the evidence and testimony presented at the proceeding, the court on October 3, 1983, granted custody of the two minor children to the husband. Upon the wife's appeal, the dismissal of the divorce action and grant of custody to the husband were affirmed.
Subsequently, the husband filed an action for divorce in the court of common pleas. The wife filed her answer along with a cross-complaint praying for a divorce and custody of the children. Thereafter, on August 2, 1985, the court granted the parties a divorce, but held that it was without jurisdiction as to custody since jurisdiction of custody was reserved by the court which had rendered the prior order of custody. The trial court then treated the wife's prayer for custody as a motion for a change of custody, and the matter was referred to a referee.
After several days of testimony, the referee issued his report which contained numerous characterizations and conclusions. Upon reviewing the statutory guidelines governing the modification of a prior custody decree (R.C. 3109.04[B][1]), the referee recommended that the wife's motion for a change of custody be denied since she had failed to meet her burden of proof that a change was warranted. Subsequently, a hearing was held, and in a judgment entry dated July 23, 1986, the trial court adopted the report of the referee while overruling the objections made thereto.
Of relevance to our disposition herein, the report of the referee stated in part:
"The Court, having now allowed the whole case to unravel, concludes that a forceful disruption of the lives of two little boys would, from their standpoint, be draconic and unwarranted, and would serve only to punish them for the pathological behavior of their parents, to which no end is in sight.
"The Court was treated, in testimony, to opposing diatribes of the abysmal stature of each of the opposing parties. Plaintiff, who is a public officeholder, produced in her behalf two of her political friends who described the asinine and adolescent behavior of the Defendant-father at the Renaissance Singles Haunted Hayride, where he had had too much to drink, was foul-mouthed, and made a general ass of himself. More of the same was offered by a floor-guard at a roller-skating rink, where Defendant apparently caused a ruckus by refusing to stop skating backwards in an area where he might endanger child customers. Assuming these incidents to be true, and there is no reason to doubt that they are, no evidence was brought forward to show how these absurdities affected the boys or that they ever heard about them.
"A former township trustee and his wife, friends of Plaintiff's, testified that the boys, when they saw them at visitation, were unkempt, scruffy, and in clothes too small for them. There were charges and countercharges that neither parent would return the children in the clothing in which they had been sent, because it was too dirty, too ill-fitting, too torn, all due, of course, to the neglect and dereliction of the other parent. The Plaintiff-mother, apparently, rarely failed to parade the children before witnesses who could later testify in her behalf, and on more than one occasion brought men of intimidating size with her to the Defendant's house to pick up or drop off the children; one of them was little better than a moron who testified that `nobody messes with him.'
"The Court found previously (October 6, 1983) that the Plaintiff is manipulative and has put her political ambitions ahead of her family to the point where those ambitions have acquired top priority in her life. She did testify in the present proceeding that if she were granted custody of her children she would withdraw her candidacy for Stark County Commissioner. Whether this was merely the irresponsible statement of a woman who would say anything to get her way, or whether she actually intended to repudiate the thousands of people who voted for her, campaigned for her, and raised funds for her, we will fortunately never have to know. In summary, the Plaintiff is an intelligent, articulate, upwardly mobile, but brooding, suspicious and vengeful person; the finding of Clinical Psychologist Charles O. Hunter, M.S., that the Plaintiff-mother `is very effective in expressing hostility in an indirect fashion' is consistent with the Court's own conclusions. Her courtroom conduct, e.g., being unable to sit still for more than a few moments at a time (see also psychological evaluation of Plaintiff by Roger K. Barrett, Ph.D., Clinical Psychologist), blurting out statements and denials when others were testifying, darting about to ensure that her witnesses had the proper physical evidence to identify, did not impress.
"Defendant has remarried; Plaintiff remains single. The new wife, Denise, appeared to be the only one of the lot who was sensible, rational, and straight-forward. There is no doubt in this writer's view that she is a stabilizing influence in the lives of her husband and step-children. She is almost solely responsible, in my view, for keeping the children where they are, and her husband would be wise to appreciate this."
Upon appeal, the court of appeals reversed and granted the wife's motion for a change of custody in a split decision. The appellate court majority found that the referee's report, which was adopted by the trial court, "evidences an abuse of discretion," and that it was offensive, sexist and overstepped the bounds of propriety. Upon noting that the referee's report was overly concerned with the political life of the defendant-wife, the court of appeals stated: "Had the appellant-mother been male, we doubt that the fact that he was politically ambitious would be a negative factor of the magnitude expressed by the report." The majority then held that the "best interest of the child" standard was no longer the law of the state of Ohio in custody proceedings, and that it had been replaced by "`the family reunification law'" embodied in R.C. 2151.414.
The dissenting appellate court judge essentially agreed that the trial court's order adopting the referee's report amounted to an abuse of discretion, but opined that the matter should be remanded for a new trial. It was the opinion of the dissenting appellate judge that it was "* * * inappropriate for this court to independently weigh the evidence and grant a change of custody."
The cause is now before this court pursuant to the allowance of a motion to certify the record.
Ralph W. Ross, for appellee.
Keith McNamara and Kenneth J. Cummings, for appellant.
Preliminarily, we concur in the court of appeals' judgment below that the adoption of the referee's report by the trial court constituted an abuse of discretion. As this court observed in Blakemore v. Blakemore (1983), 5 Ohio St.3d 217, 219, 5 OBR 481, 482, 450 N.E.2d 1140, 1142:
"`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. * * * [Citations omitted.]'"
No doubt, a review of some of the pertinent passages of the referee's report set forth in the footnote, supra, reveals an attitude that can be characterized as sexist, inappropriate, unreasonable, intemperate and prejudicial to the wife. As the court of appeals stated: "* * * The report is offensive and oversteps the bounds of propriety. It lacks the necessary impartiality or proper judicial decorum." While candor is important in calling attention to the problems and issues germane to a case, we believe the appellate court below was correct in finding that the adoption of the referee's report by the trial court constituted an abuse of discretion under the Blakemore standard.
Notwithstanding our concurrence with the appellate court's finding of an abuse of discretion on the part of the trial court as set forth above, the determinative question remains as to whether the court of appeals was correct in granting the wife's motion for a change of custody. The wife essentially argues that the appellate court, acting under the power granted to it by App. R. 12(B), rendered the judgment the trial court should have rendered by granting her motion for a change of custody pursuant to R.C. 3109.04.
While App. R. 12 grants an appellate court the power to reverse trial court judgments and enter those judgments that the court should have rendered, we agree with the dissenting appellate judge below that it is inappropriate in most cases for a court of appeals to independently weigh evidence and grant a change of custody. 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. Trickey v. Trickey (1952), 158 Ohio St. 9, 13, 47 O.O. 481, 483, 106 N.E.2d 772, 774. In this regard, the reviewing court in such proceedings should be guided by the presumption that the trial court's findings were indeed correct. See Seasons Coal Co. v. Cleveland (1984), 10 Ohio St.3d 77, 80, 10 OBR 408, 410, 461 N.E.2d 1273, 1276.
While a trial court's discretion in a custody modification proceeding is broad, it is not absolute, and must be guided by the language set forth in R.C. 3109.04. See Baxter v. Baxter (1971), 27 Ohio St.2d 168, 56 O.O. 2d 104, 271 N.E.2d 873; Palladino v. Palladino (1971), 27 Ohio St.2d 175, 56 O.O. 2d 108, 271 N.E.2d 826; Ross v. Ross (1980), 64 Ohio St.2d 203, 18 O.O. 3d 414, 414 N.E.2d 426. In addition, the trial court's determination in a custody proceeding is, of course, subject to reversal upon a showing of an abuse of discretion. Dailey v. Dailey (1945), 146 Ohio St. 93, 32 O.O. 29, 64 N.E.2d 246; Trickey, supra; Baxter, supra. Since we view the appellate court's decision as erroneous for failing to accord the trial court's decision the presumption of correctness it deserved, we reverse the appellate court's granting of plaintiff's motion for a change of custody and remand the cause to the trial court for further proceedings. In addition, we concur with the dissenting appellate judge below that the trial court is better equipped, in most respects, to make a proper decision regarding custody. Trickey, supra.
Last, we are compelled to reverse the court of appeals' holding that the "best interest of the child" standard is no longer the law of Ohio and that it has been replaced by the "family reunification law" set forth in R.C. 2151.414. First, R.C. 2151.414 has no relevance to the cause sub judice since it deals with matters pertaining to motions for permanent custody of a child by a county department, board or certified organization that has temporary custody of the child. Second, a review of the pertinent language contained in R.C. 3109.04, which governs the instant action requesting a change of custody, reveals that the "best interest of the child" standard continues to be the law of Ohio in these matters.
R.C. 3109.04(B)(1) states in relevant part:
"* * * the court shall not modify a prior custody decree unless it finds, * * * that the modification is necessary to serve the best interest of the child. * * *"
R.C. 3109.04(C) provides:
"In determining the best interest of a child pursuant to this section, whether on an original award of custody or modification of custody, the court shall consider all relevant factors * * *."
Abundant case law also supports the time-honored standard that what is in the "best interest of the child" should be the overriding concern in any child custody case. See Gishwiler v. Dodez (1855), 4 Ohio St. 615; In re Cunningham (1979), 59 Ohio St.2d 100, 13 O.O. 3d 78, 391 N.E.2d 1034; Pruitt v. Jones (1980), 62 Ohio St.2d 237, 16 O.O. 3d 276, 405 N.E.2d 276; In re Palmer (1984), 12 Ohio St.3d 194, 12 OBR 259, 465 N.E.2d 1312. Given the plain language of R.C. 3109.04 and the precedents cited above, it is clear that the appellate court's observation in this regard was clearly erroneous.
Accordingly, the judgment of the court of appeals is reversed, and the cause is remanded to the trial court for further proceedings in accordance with this opinion.
Judgment reversed and cause remanded.
MOYER, C.J., SWEENEY, LOCHER, HOLMES and H. BROWN, JJ., concur.
DOUGLAS, J., concurs separately.
WRIGHT, J., concurs in judgment only.
I concur with the majority in its judgment of reversal. I write separately, however, to make three points.
First, I am at a loss to determine what this court would have the trial judge do upon remand. That court has already awarded custody to appellant and that, in effect, is what the majority opinion herein holds. Obviously the majority would have the trial judge direct the referee to write a more "temperate" opinion. That is easy enough to say if you have not had to sit through one of these proceedings and watch opposing parties literally attempt to tear each other apart. It just could be that the trial judge was moderate in his comments given what he received, both orally and in writing, from the referee.
Be that as it may, the majority has remanded this case to the trial court for "* * * further proceedings in accordance with this opinion." What further proceedings? The same traumatic parade of hostile venom — only updated? The same ultimate finding (custody to appellant) with the exception that the finding be accompanied by a more "moderate" opinion reciting all the usual domestic relations and psychological contradictions that often are, by necessity, found in such opinions, thereby passing appellate muster? It seems obvious from the majority opinion that if the trial judge proceeds in such a manner, then his decision will be approved. But at what price? Such a "proceeding" seems like such an unnecessary charade unless the trial court can just review its previous record and write its new opinion. Unfortunately, the majority opinion gives no direction in this regard. I am grateful that I am not the trial judge who has to determine what this court has mandated his next step to be. Frankly, I would not know.
My second point concerns R.C. 3105.21(A). I recognize there has been nothing previously announced on this point which could have guided the trial judge in this case. I regret that we have not taken the opportunity to do so. R.C. 3105.21(A) states:
"Upon satisfactory proof of the causes in the complaint for divorce, annulment, or alimony, the court of common pleas shall make an order for the disposition, care, and maintenance of the children of the marriage, as is in their best interests, and in accordance with section 3109.04 of the Revised Code." (Emphasis added.)
It is my judgment that the trial judge in this case did have the authority and jurisdiction to make a custody determination because a divorce was involved. Had he done so, then any subsequent move by appellee to change custody would have been governed by R.C. 3109.04(B)(1), which is my third point.
R.C. 3109.04(B)(1) states:
"Except as provided in division (B)(2) of this section, the court shall not modify a prior custody decree 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, [or] his custodian, * * * and that the modification is necessary to serve the best interest of the child. In applying these standards, the court shall retain the custodian * * * designated by the prior decree, unless one of the following applies:
"(a) The custodian * * * agree[s] to a change in custody.
"(b) The child, with the consent of the custodian * * * has been integrated into the family of the person seeking custody.
"(c) The child's present environment endangers significantly his physical health or his mental, moral, or emotional development and the harm likely to be caused by a change of environment is outweighed by the advantages of the change of environment to the child."
Thus, there is a higher standard to be applied and applying that standard, appellee, on the record before us, could not make her case.
With the foregoing comments, I concur in the reversal of the judgment of the court of appeals.