Compton v. Eckman

2012 Ohio 1506

LESLEY COMPTON, PLAINTIFF-APPELLEE,

v.STEVEN ECKMAN, DEFENDANT-APPELLANT.

CASE NO. 11 MA 94

STATE OF OHIO, MAHONING COUNTY IN THE COURT OF APPEALS SEVENTH DISTRICT

Dated: March 30, 2012

OPINION

CHARACTER OF PROCEEDINGS:

Civil Appeal from Common Pleas Court,

Juvenile Division, Case No. 06JI548.

JUDGMENT: Affirmed.

APPEARANCES:

For Plaintiff-Appellee:

Attorney Matthew Giannini

For Defendant-Appellant:

Attorney Lori Shells

JUDGES:

Hon. Joseph J. Vukovich

Hon. Gene Donofrio

Hon. Cheryl L. Waite

VUKOVICH, J.

{¶1} Appellant Steven Eckman appeals the decision of the Mahoning County Juvenile Court which named appellee Lesley Compton as the residential parent of the parties' child. The father argues on appeal that the juvenile court's decision was contrary to the manifest weight of the evidence. Although there is plenty of evidence to support an award of custody to the father, we shall not substitute our judgment for that of the trial court. As the trier of fact occupied the best position from which to judge credibility and weigh the competing evidence, the judgment of the trial court awarding custody to the mother is affirmed.

STATEMENT OF THE CASE

{¶2} The parties dated in 2004. The mother gave birth to a daughter in August of 2005. The child tested positive for cocaine at birth, and a children's services case remained opened for six months. (Tr. 460-461, 528, 631). A judgment entry establishing the father's parentage was entered in June of 2006, and a $50 per month minimum support order was then established. The father visited the child during her first year and a half until the mother became unreachable.

{¶3} Specifically, at the end of 2006, the mother was arrested for fifth-degree felony possession of crack cocaine. She pled to the charge and agreed to participate in drug court. However, a month after the plea, she failed to appear for drug court. A warrant was issued for her arrest in March of 2007, and she did not turn herself in until January 13, 2009. Upon being sentenced to six months in prison, she left the child with the maternal grandfather.

{¶4} On February 23, 2009, the father filed a motion asking to be named the residential parent as the mother was in prison. He named both the mother and the maternal grandfather as parties. Although his sworn UCCJEA declaration provided his Minnesota address, the caption of his filings listed his prior address in Boardman, Ohio.

{¶5} On March 13, 2009, the father filed an emergency motion for interim custody stating that he wanted to insure that the child would receive appropriate medical treatment as the custody hearing was not scheduled until April. On March 17,2009, the court granted the request for interim custody effective immediately. On March 19, 2009, the father went to the maternal grandfather's house with police officers and picked up the child. He then brought her home with him to Minnesota where he lived with his fiancée.

{¶6} On April 7, 2009, the mother filed a motion to show cause as the father failed to file a notice of intent to relocate out of state. In closed sessions, it was argued that a notice was not required because the father did not relocate. The motion was never ruled upon. The custody case was continued for various reasons throughout the next year. The custody trial proceeded before the magistrate on May 27, June 3, and August 13, 2010. In a September 16, 2010 decision, the magistrate recommended that the mother be named the residential parent and that the father receive standard long distance companionship rights.

{¶7} The magistrate opined that the father's motion was misleading because: it did not list his Minnesota address but instead listed a local address where he has not lived in nearly two years; it suggested the child needed medical treatment; and, it did not inform the court that the grandfather received the child through a power of attorney executed by the mother from prison. The magistrate expressed a belief that the way the father removed the child from the grandfather's house was disturbing because he brought police officers with him, took the crying child from the grandfather's arms, and drove her to another state to live with two people she barely knew. The magistrate concluded that these actions showed that the father does not have the best interests of the child at heart and that (despite the mother's past problems) she appeared to be the parent most likely to put the child's best interests first.

{¶8} The father filed timely objections from the magistrate's decision. The juvenile court decided to hold a trial de novo, which was conducted on April 6, 28, and 29, 2011. The father's prior attorney testified that his office mistakenly put the father's old Ohio address on the caption (which it had on record from the prior child support action) and noted that the father's affidavit attached to the motion showed the father's Minnesota address. (Tr. 32-34).

{¶9} The father's fiancée, Ms. Guhl, testified that she has been with the father for nearly six years and that they moved to Minnesota in February of 2008. (Tr. 37,39). She stated that they are engaged to be married in March of 2012. Ms. Guhl testified that she makes $104,000 per year and provides financial support for the father and the child. (Tr. 86, 88). She said the father is a full-time student and works for a temporary agency at $10 per hour. (Tr. 63-65, 113). She noted that she pays for the child's coverage on her employer's health insurance. (Tr. 40, 70).

{¶10} When they first received custody, the three-year-old child was sick with a fever, swollen gums, and an odorous mouth due to her decayed teeth. The child had dental surgery in July of 2009. (Tr. 42). She now has to visit a dentist four times per year. (Tr. 43). The child has been seeing a counselor every two to three weeks since June of 2009; Ms. Guhl and the father participate in some sessions. (Tr. 43-44). Ms. Guhl explained that counseling was initiated because the child had nightmares and made unusual statements. (Tr. 44).

{¶11} At the time of the hearing, the child attended a daycare in the morning and kindergarten in the afternoon. (Tr. 45). The child went to church with them and was in the children's choir. The child was doing well in school and participated in play dates with other children. (Tr. 47). She also participated in ice-skating lessons. (Tr. 95) . When asked if the mother could visit with the child after the hearing, Ms. Guhl expressed concern with allowing this and stated that they had plans. (Tr. 72, 75-76, 96) .

{¶12} The father testified that he visited the child every couple weeks after her birth until Christmas of 2006. Thereafter, he did not know where the child was located. (Tr. 181). He stated that he did not consider filing a motion with the juvenile court during that time because he called the Child Support Enforcement Agency and figured that if that agency and the criminal court in Trumbull County could not find her and his daughter, then neither could the juvenile court. (Tr. 231).

{¶13} He filed for custody after the maternal grandfather called to advise him that the mother had been arrested and that the child was with him. (Tr. 233). The father said that when he removed the child from her grandfather, she calmed down nearly immediately when she realized who he was. (Tr. 183). He testified that nearly every time he came to Ohio for court, he brought the child and let her visit the mother. (Tr. 185). He said that the child stayed with the mother three weeks in the summer of2010 and then he flew her to the mother for Christmas. (Tr. 186). He acknowledged that the child has grandparents, aunts, and cousins living in Ohio and no relatives living in Minnesota. (Tr. 290).

{¶14} Presumably, in response to opinions voiced by the court while questioning Ms. Guhl, the father testified that the child is in daycare at her old preschool for continuity and to prepare her for a full day of school in first grade. (Tr. 187, 365). The father testified that he has two other children. His son was adopted by the paternal grandfather, and he has not spoken to him since he was one years old. (Tr. 190). His seventeen-year-old daughter is also in that grandfather's custody and, although he has the right to visit her, she does not wish to see him. (Tr. 190-191).

{¶15} The father confirmed that he is a full-time student working toward a bachelor's degree with classes two evenings per week, has employment through a temp agency, but has not been able to reach the ninety-day retainment mark lately due to court appearances. (Tr. 191-192). He was receiving $100 per week in unemployment benefits at the time of the hearing. (Tr. 267). He disclosed that he had a 2004 conviction for driving under the influence, a 2006 insurance suspension, and eviction actions from 1998 and 2008. (Tr. 276, 306-307).

{¶16} A letter from the child's therapist was presented where she opined that the child was adjusted to Minnesota and was anxious about staying overnight with her mother. The letter stated that the father disclosed that the child had nightmares and bedwetting issues after speaking to her mother on the telephone. (Tr. 393-394).

{¶17} The child's maternal grandfather testified that the mother has changed in a positive way since 2008. (Tr. 441). He knew his daughter had been avoiding police before she surrendered herself in January of 2009. (Tr. 432, 434). He saw the child every three or four days before she was left with him. (Tr. 446). He testified that after his daughter was arrested, he called the father's attorney to reveal the child's situation. (Tr. 427). The child's father then called multiple times and spoke on the telephone with the child.

{¶18} The grandfather advised the father that if he wanted custody, he would have to go through the proper legal channels at which point the father filed for custody. (Tr. 418). The grandfather asked the father to visit before he exercised the court-ordered...