COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 71709 LISA S. WILLIAMS : : JOURNAL ENTRY Plaintiff-Appellant : : and -vs- : : OPINION JAMES HINKLE : : Defendant-Appellee : : DATE OF ANNOUNCEMENT SEPTEMBER 11, 1997 OF DECISION: CHARACTER OF PROCEEDING: Civil appeal from Domestic Relations Div. Of Common Pleas Court Case No. D-238891 JUDGMENT: Affirmed. DATE OF JOURNALIZATION: __________________________ APPEARANCE: For Plaintiff-Appellant: For Defendant-Appellee: KEVIN M. SPELLACY, ESQ. ALICE RICKEL, ESQ. HENRY J. HILOW, ESQ. LINDA B. SCHUSTER, ESQ. McGinty, Gibbons & Hilow 3690 Orange Place One Cleveland Center Suite 440 1375 East Ninth St., #1920 Beachwood, Ohio 44122 Cleveland, Ohio 44114 and For Guardian Ad Litem: ROGER D. HELLER, ESQ. 1350 Rockefeller Building CAROL ROGERS HILLIARD, ESQ. 614 Superior Avenue 7055 Engle Road, Bldg.One, #103 Cleveland, Ohio 44113 Middleburg Hts., Ohio 44130 PATRICIA ANN BLACKMON, J.: Lisa Williams, plaintiff-appellant, appeals a decision by the trial court in favor of James Hinkle, defendant-appellee, on his 2 motion for change of custody of the couple's minor child, Kostas. Williams assigns ten errors for our review.1 Having reviewed the record and the legal arguments of the parties, we affirm the decision of the trial court. The apposite facts follow. Lisa Williams and James Hinkle were divorced in Knox County, Ohio on September 9, 1992, after just over two years of marriage. The couple had a daughter, Kostas, born July 16, 1992. The divorce decree granted custody of Kostas to Williams, ordered Hinkle to pay child support and established a visitation schedule. After the divorce, Williams took a part time job as a nanny and moved to Westlake, Ohio to live with her sister. Thereafter, Hinkle moved to Lakewood to be closer to his daughter. On June 2, 1995, Williams filed a motion in Knox County for modification of the child support order. Williams alleged that a substantial change in the earnings of the parties necessitated an increase in the amount of support paid by Hinkle. 1 See Appendix. 3 On September 15, 1995, the Knox County Domestic Relations Court transferred jurisdiction over the case to Cuyahoga County Domestic Relations Court. On October 18, 1995, Hinkle filed a motion to restrain Williams from removing or relocating the couple's child from the jurisdiction of the Cuyahoga County Court. In an affidavit attached to the motion, Hinkle alleged that Williams called him and threatened to terminate or minimize his visitation with Kostas unless he began immediately paying more child support. Hinkle also alleged that Williams told him she was planning to move to Gambier, Ohio within the month. The court granted the restraining order. The following day, Hinkle filed a Motion for Shared Parenting, or in the alternative, for custody. In an affidavit attached to the motion, Hinkle listed several examples of changed circumstances that justified changing the original custody order including Williams' continuous interference with his visitation and relationship with Kostas, Williams' denial of visitation unless he paid additional funds in excess of court ordered child support, Williams' act of moving Kostas from Knox County to Cuyahoga County without notifying him or the domestic relations court, Williams' false accusations of domestic violence, Williams' exclusion of Hinkle from decisions about Kostas' health, education and daycare, Williams' threat to move Kostas to Gambier, Ohio; his recent marriage to Lynn Sells and Kostas' good relationship with his wife and step-daughter, Jennifer. 4 Despite the restraining order, Williams moved Kostas to Gambier, Ohio and, on October 25, 1995, Hinkle filed a motion to show cause why Williams should not be held in contempt for violating the restraining order. On November 29, 1995, Hinkle moved to advance the date for hearing on his motion for shared parenting or for custody. He alleged that Williams accused him of sexually abusing Kostas during a Thanksgiving visit. According to Williams, when Kostas returned from visiting Hinkle, she complained of pain in her vaggies and could not go to the bathroom for over forty-five minutes. Williams noticed blood in her underwear and took her to Children's Hospital. Williams told Hinkle that four doctors examined Kostas and determined that she had been sexually abused. The trial court appointed a guardian ad litem for Kostas and ordered the parties to submit to psychological evaluations. In a May 1995 report, Dr. Sue White concluded there was no evidence that would lead her to believe Kostas was being sexually abused by Hinkle or anyone else. On December 13, 1995, Williams responded to the motion for shared parenting or custody by stating that she did not receive the restraining order until October 20, 1995 and that, at that time, she had already notified her landlord of her intention to move out and had given notice to her employer. She insisted that Hinkle received the same visitation he was awarded under the parties' divorce decree (alternating weekends and a Wednesday mid-week 5 visitation each week) and that she provided total transportation for all visits. She added that, after she became concerned that Hinkle had abused Kostas, she refused to deliver Kostas for the following weekend visitation. She also stated Hinkle refused her offer to allow him supervised visitation. A hearing on the motions for modification of child support and for modification of custody was held before Magistrate Barbara Hall. In a report filed September 25, 1996, Hall awarded custody of Kostas to Hinkle and ordered Williams to pay child support in the amount of $419.17 per month plus poundage. Under Civ.R. 75 and 53(E)(4)(C), Magistrate Hall issued an interim order based upon her decision which was to take effect immediately. On November 21, 1996, the trial court overruled Williams' objections to the magistrate's report and made the magistrate's interim order a final judgment of the domestic relations court. This appeal followed. Williams' assignments of error will be addressed in a different order than presented in her brief. In her second, third, fourth, sixth and seventh assignments of error, Williams challenged the trial court's determination that a change of circumstances warranted revision of the trial court's original custody award and awarding Hinkle custody of the minor child, Kostas. Having reviewed these assignments of error, we hereby overrule them. Under R.C. 3109.04(E)(1)(a), a trial court may modify a prior custody order if it finds, based on facts arising since the prior 6 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 residential parent, or either of the parents subject to a shared parenting decree, and that the modification is necessary to serve the child's best interest. The court must also find one of the following conditions to exist: (1) the residential parent agrees to the change; (2) the child, with the consent of the residential parent, has been integrated into the family of the person seeking to become the residential parent; (3) the harm likely to be caused by the change of environment is outweighed by the advantages of the change to the child. See R.C. 3109.04(E)(1)(a)(i)-(iii); In the Matter of Wright v. Wright kna Jankowski (June 27, 1997), Sandusky App. No. S-96- 010, unreported. In order to justify a modification of a custody order, the change of circumstances must not be slight or inconsequential, but must be a change of substance. Davis v. Flickinger (1997), 77 Ohio St.3d 415, 418. Citing Wyss v. Wyss (1982), 3 Ohio App.3d 412, 416, the Davis court wrote The clear intent of [R.C. 3109.04] is to spare children from a constant tug of war between their parents who would file a motion for change of custody each time the parent out of custody thought he or she could provide the children a `better' environment. The statute is an attempt to provide some stability to the custodial status of the children, even though the parent out of custody may be able to prove that he or she can provide a better environment. Davis at 418. Recognizing the 7 difficult and agonizing nature of custody decisions, the Davis court opined that such decisions will not be reversed absent an abuse of discretion. Id. In her second assignment of error, Williams argues the trial court abused its discretion in adopting the magistrate's opinion despite the magistrate's failure to identify the factors upon which her decision was based. However, the magistrate discussed several factors she determined to constitute a change of circumstances including Williams' emotional instability; the unlikelihood that she would promote visitation between Kostas and Jim Hinkle; Williams' bad personal relationships; her continuing anger for Hinkle; her hypersensitivity to issues of sexual abuse; and her insistence on calling her daughter Kostas Ann Williams or Kostas Ann Hinkle-Williams instead of her given name Kostas Ann Hinkle. The magistrate also noted that four year old Kostas was still sleeping in her mother's bed and still using a pacifier in her mother's home. The magistrate's report sufficiently outlined the factors it deemed to constitute a change of circumstances since the original custody order. Williams' second assignment of error is overruled. In her third assignment of error, Williams also argues the trial court erred by finding that her relocation constituted a change of circumstances. She also argues Hinkle failed to demonstrate that the moves had a `material and adverse' effect on Kostas. However, the testimony of Dr. Michael Leach outlined the negative impact of Williams' relocation to Gambier, Ohio. 8 So that the child has a sense and it is particularly important with the young children that there is a continuity to relationships that people don't vanish from the face of the earth, that things don't just happen suddenly and irrevocably without any pattern, that relationships are not just suddenly lost. Loss is a difficult issue for every person, and children, particularly young children are very sensitive to that. The way that a child is removed from something like a day care facility is a pattern for later relationships. (Tr. 491.) The evidence revealed that, when Williams decided to move to Gambier, Ohio, she removed Kostas from day care without preparing the child for the separation from her friends and playmates. Dr. Leach stated that Williams' lack of preparation showed her parenting skills were deficient with regard to having empathy or an understanding of the needs emotionally of her young daughter. (Tr. 492.) In her fourth assignment of error, Williams argued the trial court erred by finding that her allegations of sexual abuse constituted a change of circumstances sufficient to warrant a modification of custody. Again, Dr. Leach testified about the negative impact of false sexual abuse charges on children. [A]n evaluation of sexual abuse, whether or not there is foundation of abuse, is a traumatic event for a child. If there is no foundation of abuse, then it becomes not only traumatic, but extremely confusing for the child. *** I have to say in general it has a varying effect on children. (Tr. 510.) Williams also argues the trial court erred by considering her role in a wire fraud scheme for which Hinkle was convicted. 9 Although Williams denied participating in the wire fraud scheme, she admitted taking out a loan in her sister's name without her sister's knowledge or consent. She also admitted signing her sister's name on the loan application. Williams also argued the trial court erred by considering factors that pre-dated the original custody order. Specifically, she argues the court improperly considered Williams' mental health and the fact that she was receiving counseling from Psychologist Dr. Rick Stutzman. However, of paramount importance in any child custody situation is the best interest of the child. R.C. 3109.04(F)(1)(e) provides that the mental and physical health of all persons involved in the situation is one of the factors the court shall consider when modifying a decree allocating the rights and responsibilities for the care of children. The magistrate properly considered Williams' mental health in making its determination. In her first assignment of error, Williams argues the trial court erroneously denied her request for a continuance. After the magistrate's report was issued on September 25, 1996, Williams moved the trial court for an extension of time to file her objections to the report because the transcript of the hearing before the Magistrate was not yet available. The trial court granted the motion and gave Williams until November 4, 1996 to file her objections. On November 1, 1996, Williams filed a second motion to extend the time to file her objections. Thereafter, on 10 November 4, 1996, Williams filed her objections to the magistrate's report. Both Hinkle and the guardian ad litem for Kostas Hinkle filed responses to Williams' objections. On November 21, 1996, the trial court overruled Williams' objections and denied her second motion for extension of time as moot. In its journal entry, the trial court noted that, as late as November 21, 1996, Williams was advised that she would give her additional time to file her objections but only if the magistrate's interim order remained in effect during the delay. The court added that, on November 21, 1996, Williams was asked if she wanted to file her transcript, but Williams' trial counsel advised the court she chose to stand on the objections as filed. The trial court offered Williams the option of taking additional time to file her objections but Williams declined the court's offer. The grant or denial of a continuance lies within the sound discretion of the trial court. Bland v. Graves (1994), 99 Ohio App.3d 123, 129. The delay in obtaining a complete transcript was the sole basis for Williams' second request for extension of time to file her objections. Once Williams told the trial court that she opted to stand on her objections despite the absence of a complete transcript, the requested extension of time was no longer necessary. Under the circumstances, the trial court cannot be said to have abused its discretion. Williams' first assignment of error is overruled. In her fifth assignment of error, Williams argues the magistrate erred by relying on the expert's testimony about the 11 parties' credibility. However, a review of the transcript reveals that Williams' trial counsel himself asked Dr. Leach about the credibility of Williams and Hinkle. [I]n this particular case you did make credibility decisions; did you not? *** You determined that Jim was believable; am I correct? So when there was a dispute between what had actually happened was based on the information you obtained from Jim and Lisa, you tended to believe Jim more than you tended to believe Lisa; is that correct? (Tr. 1210-1211.) Generally, an expert witness may not testify to the veracity of another witness because it invades the province of the trier of fact. Shannon v. Waco Scaffolding & Equip. (July 27, 1995), Cuyahoga App. Nos. 67406 and 67604, unreported [citing McKay Machine Co. v. Rodman (1967), 11 Ohio St.2d 77, 82]. Even if the challenged testimony in this case was determined to be improper, Williams has waived her right to assert the testimony as error since she invited it through her questions. However, the testimony by the experts about the credibility of Hinkle and Williams was introduced in connection with testimony about their overall psychologicalprofiles as determined by the experts. The inclusion of this testimony in her report does not indicate that the magistrate relied upon it in making her determinations about whether to believe the testimony given at the hearing by Hinkle and Williams. Williams' fifth assignment of error is overruled. 12 In her eighth and ninth assignments of error, Williams challenges the trial court's modification of child support. She argues the court erroneously imputed $18,000 in income to Williams after her 1995 move to Gambier, Ohio. Williams argues she was forced to move because of Hinkle's refusal to pay for Kostas' day care expenses. From July 1995 until October 1995, Williams was employed at Management Recruiters at an annual salary of $18,000. Williams admitted that, in October 1995, she voluntarily quit her job and that, at the time she moved to Gambier, she did not have a job there. Shortly after her move to Gambier, Williams began working part-time as a nanny. Whether a parent is voluntarily underemployed within the meaning of R.C. 3113.215(A)(5), and the amount of potential income to be imputed to a child support obligor, are matters to be determined by the trial court based upon the facts and circumstances of each case. The determination will not be disturbed on appeal absent an abuse of discretion. Rock v. Cabral (1993), 67 Ohio St.3d 108 at syllabus. [I]n calculating and awarding child support, a trial court must consider the potential income as well as the gross income of a parent the court determines to be voluntarily unemployed or underemployed. The potential income to be imputed to such parent for purposes of calculating his or her support obligation is to be determined based upon the amount the parent would have earned if he or she had been fully employed. R.C. 3113,215(A)(5)(a). That amount is to be determined by the parent's employment potential and probable earnings based on the parent's employment potential and probable 13 earnings based on the parent's recent work history, job qualifications, and the prevailing job opportunities and salary levels in the community in which the parent resides. Id. at 111. Williams' claim that her decision to quit her job at Management Recruiters was due to financial difficulties and her desire for financial and emotional support from her family. However, a parent's subjective motivations for being voluntarily unemployed or underemployed play no part in the determination whether potential income is to be imputed to that parent in calculating his or her support obligation. Id. Because of Williams' decision to voluntarily leave her job, the magistrate properly imputed income in the amount of $18000 to Williams. Williams' eighth assignment of error is overruled. In her ninth assignment of error, Williams argues the magistrate erred by failing to consider the income of Hinkle's second wife, Lynn, when assessing his ability to pay child support. However, R.C. 3113.21.5(B)(5)(e) specifically provides that when calculating the gross income of a parent, the court shall not include the income earned by the spouse of that parent. Under R.C. 3113.215(B)(3)(h), a court may consider benefits that either parent receives from remarriage or sharing living expenses with another person when deviating from the statutory child support guidelines. See Ryan v. Osman (November 22, 1996), Lake County App. No. 95-L- 198, unreported. However, a deviation from the statutory guidelines is only authorized when the statutory amount would be 14 unjust or inappropriate and would not be in the best interest of the child. See R.C. 3113.215(B)(3). The magistrate specifically stated that she took Lynn Hinkle's contribution to Jim Hinkle's household income into consideration. [Williams] continues to request deviation, but the Court's finding in this respect remains unchanged; after consideration of the expenses of Mr. Hinkle's household, the benefit of his present wife's employment in meeting those expenses does not offer them such relief that child support should be set at a higher rate. (Magistrate's Report of 9/25/96 at 12.) The magistrate considered Lynn Hinkle's contribution and rejected Williams' request for deviation from the statutory amount of support. Williams' ninth assignment of error is overruled. In her tenth assignment of error, Williams argues the trial court erred by finding the modification of custody was in Kostas Hinkle's best interest and that the advantages of the change in custody outweighed any danger of harm to the child. Our review of the record reveals the magistrate carefully considered the factors in R.C. 3109.04(F)(1)(a)-(j) and determined that Kostas' interests would best be served by awarding custody to Hinkle. While we do not want to subject children to tug-of-war between two parents continually attempting to gain custody, we must not make the threshold for change so high as to prevent a trial judge from modifying custody if the court finds it is necessary for the best interest of the child. Davis v. Flickinger (1997), 77 Ohio St.3d 415, 420-421. Because trial court has broad discretion in custody proceedings, its decision must be upheld unless the record reveals 15 an abuse of discretion by the trial court. Id. at 421. Because we find no abuse of discretion, we overrule Williams' tenth assignment of error. Judgment affirmed. 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 Domestic Relations Division of 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. DAVID T. MATIA, J., and O'DONNELL, J., CONCUR. PATRICIA ANN BLACKMON PRESIDING JUDGE N.B. This entry is an announcement of the court's decision. See App.R. 22(B), 22(D) and 26(A); Loc.App.R. 27. This decision will be journalized and will become the judgment and order of the court pursuant to App.R. 22(E) unless a motion for reconsideration with supporting brief, per App.R. 26(A), is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court's announcement of decision by the clerk per App.R. 22(E). See, also S.Ct.Prac.R. II, Section 2(A)(1). 17 APPENDIX ASSIGNMENTS OF ERROR I. THE TRIAL COURT ERRED IN DENYING APPELLANT'S REQUEST FOR A CONTINUANCE IN ORDER TO FILE OBJECTIONS TO MAGISTRATE'S DECISION WHEN THE TRANSCRIPT HAD NOT YET BEEN COMPLETED; FURTHER, THE TRIAL COURT ABUSED ITS DISCRETION IN RULING ON SAID MOTION PRIOR TO THE FILING OF THE TRANSCRIPT. II. THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION IN ADOPTING THE MAGISTRATE'S DECISION WHICH FAILED TO IDENTIFY THE FACTORS UPON WHICH IT BASED ITS FINDING THAT A CHANGE OF CIRCUMSTANCE SUFFICIENT TO MODIFY CUSTODY HAD OCCURRED SINCE THE PRIOR DECREE. III. THE TRIAL COURT ERRED AND ABUSED ITS DISCRE- TION IN ADOPTING THE MAGISTRATE'S DECISION WHICH FOUND THAT THE RELOCATION OF APPELLANT CONSTITUTED A CHANGE OF CIRCUMSTANCES SUFFICIENT TO MODIFY A PRIOR CUSTODY DECREE. IV. THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION IN FINDING THAT APPELLANT'S ALLEGATIONS OF SEXUAL ABUSE OF HER DAUGHTER BY APPELLEE CONSTITUTED A CHANGE OF CIRCUM- STANCES SUFFICIENT TO WARRANT A MODIFICATION OF THE PARENTAL RIGHTS AND RESPONSIBILITIES. V. THE CHILD (sic) COURT ABUSED ITS DISCRETION IN ADOPTING THE MAGISTRATE'S REPORT WHEN THE MAGISTRATE COMMITTED PLAIN ERROR IN ALLOWING EXPERT WITNESS TO GIVE AN OPINION AS TO THE CREDIBILITY OF THE PARTIES. VI. THE MAGISTRATE ERRED AND ABUSED HER DISCRETION WHEN PLACING ANY PORTION OF A BLAME FOR APPELLEE'S CRIMINAL CONVICTION FOR WIRE FRAUD ON APPELLANT AND RELYING ON THE SAME FOR EITHER A CHANGE OF CIRCUMSTANCE OR DETERMINING THE BEST INTERESTS OF THE CHILD. VII. THE TRIAL COURT ABUSED ITS DISCRETION AND COMMITTED PREJUDICIAL ERROR BY RELYING ON FACTORS WHICH PRE-DATED THE ORIGINAL CUSTODY ORDER FOR FINDINGS OF A CHANGE OF CIRCUM- 18 STANCE NECESSARY FOR A MODIFICATION OF PARENTAL RIGHTS. VIII THE TRIAL COURT ABUSED ITS DISCRETION IN MODIFYING CHILD SUPPORT AND IMPUTING INCOME TO APPELLANT. IX. THE TRIAL COURT ABUSED ITS DISCRETION IN ADOPTING MAGISTRATE'S DECISIONS WHEN MAGIS- TRATE FAILED TO CONSIDER THE HOUSEHOLD INCOME OF APPELLEE. X. THE COURT ABUSED ITS DISCRETION UPON FINDING THAT THE MODIFICATION WAS NECESSARY TO SERVE THE BEST INTERESTS OF KOSTAS HINKLE AND THAT .