COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 60594 HANEEFAH BOYD : : : PLAINTIFF-APPELLANT : JOURNAL ENTRY : v. : AND : : OPINION RONALD C. BOYD : : : DEFENDANT-APPELLEE : DATE OF ANNOUNCEMENT OF DECISION: MAY 28, 1992 CHARACTER OF PROCEEDING: Civil appeal from Common Pleas Court, Domestic Relations Division, Case No. D-175521. JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-appellant: James L. Hardiman, Esq. Hardiman, Alexander, Buchanan & Howland Co., L.P.A. 1414 Diamond Building 1100 Superior Avenue Cleveland, Ohio 44114-2590 For Defendant-appellee: James M. Stanovic, Esq. 5945 State Road Parma, Ohio 44134 - 2 - SWEENEY, JAMES D., J.: Plaintiff-appellant Haneefah Boyd ("mother") appeals from the court's order surrounding a change in child custody. For the reasons adduced below, we affirm. A review of the record reflects that the mother and defendant-appellee Ronald C. Boyd ("father") were married on November 24, 1983. A daughter, Aneesa J. Boyd, date of birth October 1, 1985, was born during the marriage. The parties were granted a divorce on August 19, 1987. Custody of the daughter was awarded to the mother, and a visitation schedule was supplied to the father. On April 26, 1989, following a hearing and recommendations by a referee, the court found the mother in contempt of court due to her obstruction of visitation by the father. On May 30, 1989, the court again held the mother in contempt of court for failing to abide by the terms of visitation for the father. On August 21, 1989, following a hearing before a referee, the court granted the father's first motion to modify visitation, thereby extending to the father greater visitation with the daughter. On September 26, 1989, following a hearing before a referee, the court granted the father's second motion to modify visitation. On November 1, 1989, the father filed a motion to modify custody of the daughter, alleging via affidavit that a change in circumstances exists and that it is in the best - 3 - interests of the child that he be awarded custody of the child. This motion was amended on December 21, 1989. The mother filed a motion to show cause on January 19, 1990, concerning the father's alleged refusal to return the child to the mother following a period of visitation. On June 19, 1990, father's motion to modify custody and mother's motion to show cause were heard before a referee. The mother was absent from the hearing although she had notice of the hearing date. The referee, noting previous absences by the mother, and a lack of documentation of the reason for the present absence, denied plaintiff counsel's oral motion to continue the hearing. At this hearing, the court referee called Casimir Cudnik ("Cudnik"), a clinical social worker employed by the court's Family Conciliation Service, to testify. Cudnik stated that: (1) he had interviewed the parties and the child and had administered two psychological personality tests to the parents; (2) it was his professional and personal observation that the girl was aloof and non-interactive in the presence of her mother; (3) the girl was very interactive with her father in a natural, comfortable, and sharing way; (4) the father had sole possession of the child from just prior to Christmas, 1989, until the middle of April, 1990; (5) the father expressed some concern about the child's development under the custody of the mother; (6) the mother had difficulty concentrating at the interview and seemed - 4 - to place little importance on the matter of a change of custody; (7) the mother had a history of frequently moving from motel to motel after leaving her mother's home; (8) he had concerns about the mother's ability to provide for the emotional needs of the child. The referee then called Dr. Nancy Huntsman, Ph.D., a consulting psychologist to the court, to testify. Dr. Huntsman testified that: (1) she had never met the parties; (2) she interpreted the responses given by the parties in their psychological personality tests; (3) the mother's scores on these tests indicated a paranoid behavior and that her sense of reality is distorted; (4) the father's scores indicated a fairly well adjusted person, very organized, dutiful, serious, albeit a bit egocentric. The defense then called the father to testify. The father stated that: (1) the mother often obstructed his visitation rights following the divorce; (2) the girl stayed exclusively with him from the week before Christmas, 1989, until April 16, 1990; (3) the girl seemed very withdrawn at the beginning of this four month period; (4) he is presently married to Rhonda Boyd; (5) the mother allowed him to have extended visitation with the girl during the holiday period in 1989; (6) he enrolled the girl in a three-day per week day care school in late January, 1990; (7) he would attend the day care classes at times with the child as well as spend much time interacting with the child; (8) the - 5 - girl's attitude and behavior showed marked improvement during the four-month period; (9) he saw to it that the child attended church on a regular weekly basis; (10) he had to telephone the mother several times during this four-month period to seek an interaction on her part with the child; (11) the girl and Rhonda Boyd have a positive relationship; (12) he doesn't believe that the mother is concerned about the girl's welfare; (13) the girl has several friends in the father's neighborhood and enjoys their company; (14) the mother telephoned about once per month during this four-month period to ask how the girl was doing but never visited the girl; (15) the mother asked for the girl's return in mid-April, 1990, and he complied; (16) following the girl's return, the mother has obstructed visitation with the girl by the father; (17) the mother moved frequently from motel to motel; (18) the girl sees her paternal grandmother several times a week; (19) he has also taken the girl to visit her maternal grandmother; (20) he made sure that the girl obtained prompt medical care when scheduled, absent action by the mother. The second and final witness for the defense was Rhonda Boyd, the present wife of the father and stepmother of the child, who testified that: (1) she married the defendant on February 17, 1989; (2) the girl stayed with the father and herself for periodic extended periods from May, 1989, until April, 1990, at the mother's request; (3) the reason for the request was the mother did not want the girl to live at a motel; (4) during these - 6 - extended periodic stays, she did not recall the mother calling about the child's welfare; (5) as far as she knew, the girl did not see the mother from May, 1989, until April, 1990. The plaintiff had no witnesses to present. Following the report and recommendations of the referee, dated July 24, 1990, the court granted the defendant's motion to modify custody and denied plaintiff's motion to show cause. Journal Vol. 1654, page 826-827, July 25, 1990. This order, in effect, gave custody of the child to the father. Plaintiff filed objections to the referee's report on August 3, 1990. This objection was overruled and a final order entered on September 5, 1990. Plaintiff filed a timely notice of appeal on October 3, 1990. Three assignments of error are presented for review. To maintain a more logical analysis, these assignments will be discussed out of the order raised by appellant. I The second assignment raised by appellant provides: THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION IN PROCEEDING WITH THE HEARING BEFORE THE REFEREE WHEN IT WAS MADE KNOWN THAT APPELLANT COULD NOT BE PRESENT. This court stated the following in Heard v. Sharp (1988), 50 Ohio App. 3d 34, 35: Rulings on continuances are left to the sound discretion of the trial court. Cherry v. Baltimore & Ohio RR. Co. (1972), 29 Ohio St. 2d 158, 58 O.O. 2d 352, 280 N.E. 2d 380. To constitute a sufficient ground for a - 7 - continuance because of the absence of a party, it must appear that the absence is unavoidable and not voluntary, that the party's presence at trial is necessary, that the application is made in good faith, and that the party will be able to attend court at some reasonable future time. State, ex rel. Buck, v. McCabe (1942), 140 Ohio St. 535, 25 O.O. 552, 45 N.E. 2d 763, paragraph two of the syllabus; Curtis v. Chiaramonte (1978), 53 Ohio St. 2d 15, 17, 7 O.O. 3d 61, 62, 371 N.E. 2d 839, 840. See also, Local R. 4(A) of the Court of Common Pleas of Cuyahoga County, Domestic Relations Division (upon nonappearance of a party, the "Court may allow the case to proceed and hear and determine all matters.") In the present case, the absence of the mother appeared to be voluntary. Additionally, there was no evidence presented which would indicate that the mother would be able to attend the hearing at some reasonable future time. Plaintiff also had a history of nonappearance before the court. We cannot say that, under the circumstances, the court abused its discretion in denying plaintiff's oral motion for continuance. Assignment overruled. II Appellant's first assignment of error provides: THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION IN MODIFYING THE CUSTODY OF THE PARTIES' MINOR CHILD BY FAILING TO PROPERLY APPLY THE LAW, I.E., O.R.C. 3109.04, TO THE FACTS. Former R.C. 3109.04(B)(1) (now found in R.C. 3109.04[E][1][a]) provided: - 8 - (B)(1) 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, his custodian, or either joint 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 or both of the joint custodians designated by the prior decree, unless one of the following applies: (a) The custodian or both joint custodians agree to a change in custody. (b) the child, with the consent of the custodian or of both joint custodians, 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. (Emphasis added.) In our analysis of this assignment, we are guided by the following language contained in a recent case involving modification of custody: In construing R.C. 3109.04, this court has previously stated with respect to a modification of custody that "[t]here is no question that the paramount and overriding concern of the * * * statute is the best interests of the child, or in this case children, and that it is the court's function to see that the children's best interests are protected." Birch v. Birch (1984), 11 Ohio St.3d 85, 87, 11 OBR 327, 330, 463 N.E.2d 1254, 1257; see, also, Boyer v. Boyer (1976), 46 Ohio St.2d 83, 87, 75 O.O.2d 156, 158, 346 N.E.2d 286, 288. - 9 - * * * In our inquiry in this case we are cognizant that "[i]n proceedings involving the custody and welfare of children the power of the trial court to exercise discretion is peculiarly important. The knowledge obtained through contact with and observation of the parties and through independent investigation can not be conveyed to a reviewing court by [the] printed record." Trickey v. Trickey (1952), 158 Ohio St. 9, 13, 47 O.O. 481, 483, 106 N.E.2d 772, 774. Moreover, it is for the trial court to resolve disputes of fact and weigh the testimony and credibility of the witnesses. Pasqualone v. Pasqualone (1980), 63 Ohio St.2d 96, 17 O.O.3d 58, 406 N.E.2d 1121. Thus, "[w]here an award of custody is supported by a substantial amount of credible and competent evidence, such an award will not be reversed as being against the weight of the evidence by a reviewing court." Bechtol v. Bechtol (1990), 49 Ohio St.3d 21, 550 N.E.2d 178, syllabus. Gardini v. Moyer (1991), 61 Ohio St. 3d 479, 484. We are also mindful of former R.C. 3109.04(C) (now found in R.C. 3109.04[F][1]) which provides: (C) 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, including: (1) The wishes of the child's parents regarding his custody; (2) The wishes of the child regarding his custody if he is eleven years of age or older; (3) The child's interaction and interrelationship with his parents, siblings, and any other person who may significantly affect the child's best interest; - 10 - (4) The child's adjustment to his home, school, and community; (5) The mental and physical health of all persons involved in the situation. In the present case, we conclude that the court had competent evidence before it sufficient to satisfy former R.C. 3109.04(B)(1)(b), (c), and (C). In summary fashion, the evidence indicated that: the child spent a great deal of time at her father's house from the summer of 1989 through April 16, 1990; the mother was aloof toward the child; the child did not interact well with her mother and others and acted withdrawn under the mother's custody; the child's social and communicative skills improved markedly under the guidance and care of the father; the mother's personality showed signs of chronic paranoia; the mother's arrangements for shelter were unstable and prone to fluctuation; the father was gainfully employed by the Ohio Department of Transportation, whereas the mother is presumably unemployed; the father maintained the child's contact with her relatives and promoted a stable home life and educational environment; the girl had made friends with other children in the father's neighborhood and interacted with them in a positive, normal manner. We find no abuse of discretion in the court's determination granting the change in custody in favor of the father. Assignment overruled. III - 11 - The third and final assignment raised by appellant provides: THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION IN FAILING TO FIND APPELLEE IN CONTEMPT OF COURT FOR VIOLATING THE COURT'S CUSTODY ORDER. The motion to show cause to which this assignment refers surrounds the alleged refusal of the father to return the child to the mother following visitation during the holiday season in December, 1989. The record of the hearing on the motion before the referee does indicate that the father requested, and was granted by the mother, the holiday visitation in late 1989. However, the evidence at the hearing does not indicate that the mother asked for the return of the child prior to April 16, 1990. The record of the hearing does reflect that the mother indicated little interest in the welfare of the child during this four month period and acquiesced in this extended visitation by the father until April 16, 1990, when she reaffirmed her custody right and the child was returned to her according to her request. We find no abuse of discretion by the court in denying plaintiff's motion to show cause under the circumstances of this case. Assignment overruled. Judgment affirmed. - 12 - It is ordered that appellee recover of appellant his costs herein taxed. The court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this court directing the Common Pleas Court to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. Exceptions. ANN DYKE, P.J., and SARA J. HARPER, J., CONCUR. JAMES D. SWEENEY JUDGE N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announcement of decision (see Rule 26). Ten (10) days from the date hereof this document will be stamped to indicate journalization, at which time it will become the judgment and order of the court and time period for review will begin to run. .