Opinion
C. A. 30192
06-30-2023
SHANNON KNECE Appellant v. AALIYA SALYERS Defendant and TYLER ARBUISO Appellee
MARY JO HANSON, Attorney at Law, for Appellant. JAMES E. BRIGHTBILL, Attorney at Law, for Appellee.
APPEAL FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF SUMMIT, OHIO CASE No. 2020-03-0749
MARY JO HANSON, Attorney at Law, for Appellant.JAMES E. BRIGHTBILL, Attorney at Law, for Appellee.
DECISION AND JOURNAL ENTRY
DONNA J. CARR, JUDGE
{¶1} Appellant, Shannon Knece ("Grandmother"), appeals the judgment of the Summit County Court of Common Pleas, Domestic Relations Division. This Court affirms.
I.
{¶2} Appellee Tyler Arbuiso ("Father") is the biological father of R.A., who was born on May 10, 2016. Father lived with R.A. and her mother until R.A. was six months old. After moving out, Father had weekly visits with R.A. until that arrangement became untenable due to the fact that R.A.' s mother began living with her new boyfriend. Thereafter, Father had three visits with R.A. before R.A.'s mother ended the visitations. Father subsequently sought parenting time through Hocking County CSEA, unaware that the organization could not assist him with parenting time.
{¶3} Father was invited to R.A.'s third birthday party, which he attended. After the party, R.A. and her mother moved to Akron, which was about two and a half hours away from where Father lived. R.A.' s mother testified that she invited Father to R.A.' s birthday party because she believed Father would not see R.A. after the move to Akron. Father did not see R.A. again until the trial court ordered parenting time in this case.
{¶4} R.A. moved in with Grandmother in November 2019. R.A. did well while living with Grandmother. In January 2020, Grandmother contacted Father and invited him to have video calls with R.A. because she wanted Father to be more involved in R.A.'s life. Father and R.A. spoke on video calls several times.
{¶5} In March 2020, Grandmother filed a complaint for legal custody of R.A. Grandmother alleged that Father was incapable of caring for R.A. due to his schedule and housing situation. At trial, Father testified that he made arrangements for R.A.'s care before and after school. Father also testified about his plan for living arrangements with R.A. The guardian ad litem in this case testified that after a full investigation he found that it was in R.A.'s best interest for Father to have custody of her.
{¶6} The trial court found that Father was not an unsuitable parent and that he had not abandoned R.A. The trial court granted custody to Father on the grounds that a suitable biological parent has a paramount right to custody of their child.
{¶7} On appeal, Grandmother raises two assignments of error.
While Grandmother identifies three assignments of error in her statement of assignments of error in her merit brief, she only sets forth two assignments of error in the body of her brief. See App.R. 16(A)(3),(7).
II.
ASSIGNMENT OF ERROR I
THE SUMMIT COUNTY DOMESTIC RELATIONS COURT ABUSED ITS DISCRETION AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE IN ITS DECISION TO PLACE THE MINOR CHILD INTO THE LEGAL CUSTODY OF THE CHILD'S FATHER.
ASSIGNMENT OF ERROR II
THE SUMMIT COUNTY DOMESTIC RELATIONS COURT ERRED BY DECIDING THE MATTER OF LEGAL CUSTODY OF THE MINOR CHILD AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE PRESENTED AT TRIAL.
{¶8} The Court will address Grandmother's two assignments of error together because they are closely related. While Grandmother's first assignment of error seems to imply that the trial court found that it was in R.A.'s best interest to be placed with Father, the trial court made no such determination in its judgment entry. The trial court applied the suitability test from In re Perales, 52 Ohio St.2d 89 (1977), and determined that Father was not an unsuitable parent and, therefore, had a paramount right to custody of his daughter.
{¶9} Grandmother argues that the trial court ought to have applied a best interest test because she is seeking custody in her capacity as a relative of R.A. Grandmother points to Smith v. Boyd, 3d Dist. Seneca No. 13-05-49, 2006-Ohio-6931, as well as Boyer v. Boyer, 46 Ohio St.2d 83 (1976), in support of her position that the trial court may award custody to a non-parent relative upon determining that it is not in the child's best interest for either parent to retain custody.
{¶10} Grandmother's reliance on Boyer and Boyd is misplaced. Grandmother filed this case pursuant to R.C. 2151.23(A). In Reynolds v. Goll, 80 Ohio App.3d 494, 498 (9th Dist.1992), this Court considered the Boyer decision when confronting the question of whether the trial court must conduct a suitability analysis in proceedings brought pursuant to R.C. 2151.23(A)(2). Reynolds, 80 Ohio App.3d at 496-497. This Court answered that question in the affirmative and concluded that, in R.C. 2151.23(A)(2) proceedings, where there is a custody dispute between a parent and a non-parent, courts should apply the In re Perales suitability test. Id. at 501.
{¶11} Boyd involved a scenario where a set of grandparents moved to be named the residential parents and legal custodians of three children several years after the children's mother had been named the residential parent and legal custodian in a marriage dissolution proceeding. Boyd at ¶ 2, 8. The trial court granted the motion based on a best interest analysis instead of applying the unsuitability test pursuant to In re Perales. Id. at ¶ 51. In reversing the trial court's judgment, the Third District "h[eld] that when a nonparent moves to modify an original custody decree, arising out of a divorce proceeding which granted legal custody to a child's natural parent, the trial court shall not award a nonparent legal custody of the child or children until it has first determined that both parents are unsuitable under In re Perales." Id. at 48. Accordingly, the Boyd decision does not stand for the proposition that the trial court should have applied a best interests test in the case at bar.
{¶12} In In re Perales, the Ohio Supreme Court held that biological parents have a "paramount right" to their own children unless a court finds by a preponderance of the evidence that they forfeited that right by contractually giving up custody, abandoning their children, being wholly incapable of caring for or supporting their children, or being otherwise unsuitable. In re Perales, 52 Ohio St.2d at 97. Here, Grandmother alleges that Father has abandoned R.A. and is therefore unsuitable to have custody.
{¶13} When determining whether a judgment is against the manifest weight of the evidence this Court "weighs the evidence and all reasonable inferences, considers the credibility of witnesses, and determines whether in resolving conflicts in the evidence, the [finder of fact] clearly lost its way and created such a manifest miscarriage of justice that the [judgment] must be reversed and a new trial ordered." (Internal citations and quotations omitted.) Eastley v. Volkman, 132 Ohio St.3d 328, 2012-Ohio-2179, ¶ 20.
Overcoming the Presumption of Abandonment
{¶14} The trial court found that Father presented enough evidence to overcome the presumption of abandonment. This finding was not against the manifest weight of the evidence.
{¶15} Grandmother sought custody on the basis that Father had abandoned R.A. by failing to visit or make contact for more than 90 days. R.C. 2151.011(C) provides that "a child shall be presumed abandoned when the parents of the child have failed to visit or maintain contact with the child for more than ninety days, regardless of whether the parents resume contact with the child after that period of ninety days." This Court has held that once this definition of abandonment is met, it creates a rebuttable presumption of abandonment. See In re B.C.M., 9th Dist. Wayne No. 05CA0001, 2005-Ohio-1818, ¶ 8.
{¶16} In In re B.CM., this Court concluded that a presumption of abandonment was not overcome when the only explanation that the mother gave for failing to visit B.C.M. was her cocaine use. Id. at ¶ 8. In In re A.S., this Court determined that a mother abandoned her children when she made no attempts to visit or contact them during the applicable time period. In re A.S., 9th Dist. Summit No. 23456, 2007-Ohio-2195, ¶ 13.
{¶17} The parties agree that Father failed to maintain contact with R.A. for at least ninety days. At trial, however, Father presented evidence that he attempted to visit R.A. but that the potential visits were halted by R.A.'s mother. Father then initiated child support with Hocking County CSEA in an attempt to get visitation with R.A. Unlike the circumstances in In re A.S., Father took steps to get visitation with R.A. even after R.A.'s mother had disallowed the visits.
{¶18} Accordingly, the trial court's finding that Father overcame the presumption of abandonment was not against the manifest weight of the evidence because Father attempted to have contact with and visit R.A. during the alleged period of abandonment.
Unsuitability
{¶19} The Trial Court further determined that Father was not an unsuitable parent.
{¶20} A finding of unsuitability requires more than finding that another party is a better parent. In re A.C., 9th Dist. Summit No. 23154, 2006-Ohio-6155, ¶ 13. Under circumstances where a grandmother argued that a father was unsuitable solely on the basis that the child lived with the grandmother for two years and the grandmother was more involved in the child's life, this Court upheld the trial court's ruling that the grandmother had failed to demonstrate that father was an unsuitable parent. Id. at ¶ 13, 17.
{¶21} Here, much like the grandmother in In re A.C., most of Grandmother's arguments arise from her having been more involved in R.A.' s day-to-day life than Father. Grandmother also raised concerns about Father's suitability to care for R.A. due to his work schedule and housing situation. Significantly, however, Father presented evidence at trial that he arranged for R.A.'s care while he is at work. Father also presented evidence that he would have stable housing for R.A. at his parents' residence. Father indicated that he understood he made a mistake by not supporting R.A. earlier but he is trying to make up for it. Moreover, the guardian ad litem in this case investigated both parties' living arrangements and recommended that Father should be granted custody. Based on this evidence, the trial court did not err by finding Father was not an unsuitable parent.
{¶22} Grandmother's assignments of error are overruled.
III.
{¶23} Grandmother's assignments of error are overruled. The judgment of the Summit County Court of Common Pleas, Domestic Relations Division is affirmed.
Judgment affirmed.
There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy of this journal entry shall constitute the mandate, pursuant to App.R. 27.
Immediately upon the filing hereof, this document shall constitute the journal entry of judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is instructed to mail a notice of entry of this judgment to the parties and to make a notation of the mailing in the docket, pursuant to App.R. 30.
Costs taxed to Appellant.
HENSAL, P. J., SUTTON, J. CONCUR.