[Cite as Dibble v. Dibble,
2011-Ohio-5803.]
COURT OF APPEALS
STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT
JUDGES:
NANCY DIBBLE, : Hon. W. Scott Gwin, P.J.
: Hon. Sheila G. Farmer, J.
Plaintiff-Appellant, : Hon. Patricia A. Delaney, J.
:
v. :
: Case No. 2011-CA-00072
DANIEL DIBBLE, :
:
Defendant-Appellee. : OPINION
CHARACTER OF PROCEEDING: Civil appeal from the Stark County Court of
Common Pleas, Domestic Relations
Division, Case No. 07DR00291
JUDGMENT: Affirmed in part; Reversed in part and
Remanded
DATE OF JUDGMENT ENTRY: November 7, 2011
APPEARANCES:
For Plaintiff-Appellant For Defendant-Appellee
STEPHEN P. HANUDEL SUSAN PUCCI
326 North Court Street 4429 Fulton Drive N.W., Ste. 100
Medina, OH 44256 Canton, OH 44718
[Cite as Dibble v. Dibble, 2011-Ohio-5803.]
Gwin, P.J.
{¶ 1} Plaintiff-appellant Nancy Dibble appeals a judgment of the Court of
Common Pleas, Domestic Relations Division, of Stark County, Ohio, which sustained
the motion of defendant-appellee Daniel Dibble to dismiss her motions for change of
custody and to modify visitation. The court also modified child and spousal support.
Appellant assigns three errors to the trial court:
{¶ 2} “I. THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT
DETERMINED CHILD SUPPORT AND SPOUSAL SUPPORT WITHOUT HOLDING AN
EVIDENTIARY HEARING.
{¶ 3} “II. THE TRIAL COURT ABUSED ITS DISCRETION AND ERRED AS A
MATTER OF LAW WHEN IT DISMISSED APPELLANT’S MOTION FOR CUSTODY
AND MOTION TO RESTORE VISITATION OF HER CHILDREN.
{¶ 4} “III. THE TRIAL COURT’S DETERMINATION OF CHILD SUPPORT AND
SPOUSAL SUPPORT WITHOUT AN EVIDENTIARY HEARING AND DISMISSALS OF
APPELLANT’S MOTION FOR CUSTODY AND MOTION TO RESTORE VISITATION
VIOLATED APPELLANT’S DUE PROCESS RIGHTS UNDER THE UNITED STATES
CONSTITUTION AND OHIO CONSTITUTION.”
{¶ 5} The record indicates the parties were divorced in June of 2008, and
appellee was named residential parent of the parties’ three children, then age 16 ½, 13,
and 7½. The eldest has subsequently turned 18 and graduated high school; this appeal
involves only the two younger children.
{¶ 6} On October 21, 2009, appellant filed a motion captioned: “Motion for
Further Orders”. It asked the court to restore visitation, which had been modified as to
Stark County, Case No. 2011-CA-00072 3
the youngest child and terminated as to the two older children. It asked the court to
restore spousal support, which had been terminated because appellee was on disability.
The motion raised other issues not relevant to this appeal. In November 2009, the
parties agreed to a visitation schedule with the youngest child.
{¶ 7} In January of 2010, appellant moved the court to conduct an in-camera
interview with each child, separately, to address the issues stated in her Motion for
Further Orders. The court overruled the motion, stating the matter had been set for
hearing. Appellant filed a motion to reconsider, which was also denied.
{¶ 8} In March of 2010, the Stark County Child Support Enforcement Agency
entered an administrative order requiring appellant to pay child support of $445.86 plus
medical insurance or $311.19 plus $73.75 cash medical support if insurance was not
available. Appellee then filed a motion for relief from his obligation to pay spousal
support.
{¶ 9} On August 9, 2010, a magistrate reviewed and ruled on various issues, but
found the financial issues were not ripe, because of appellee’s problems with P.E.R.S.
over his disability payments.
{¶ 10} On November 17, 2010, the magistrate entered a decision finding all the
necessary child support worksheets had been filed. The magistrate directed appellant
to present evidence regarding spousal support within seven days of the order, and
thereafter, appellee would have seven days to respond. In December 2010, the
magistrate reduced the amount of spousal support appellant was to receive and
increased her child support obligation. The following day, appellant moved for a change
of custody.
Stark County, Case No. 2011-CA-00072 4
{¶ 11} Appellee moved to dismiss the motion for custody, and the matter was
heard by a magistrate who found the children’s counselor had not yet filed a report. No
decision was made on the change of custody and visitation pending receipt of the
counselor’s report. One of appellee’s objections to the magistrate’s decision was the
failure of the magistrate to rule on his motion to dismiss.
{¶ 12} On March 9, 2011, the trial court dismissed appellant’s motions for change
of custody and for modification of visitation, finding it did not have jurisdiction over the
matter. The court also found that appellant had not shown a change in circumstances
since the prior order had been entered. Appellant’s objections to the magistrate’s
decision regarding spousal support and child support requested a de novo hearing. The
court adopted the magistrate’s decision regarding spousal and child support without
conducting a hearing, and appellant filed her appeal.
I, II, & III
{¶ 13} Because appellant’s assignments of error are interconnected, we will
address them together. In her first assignment of error, appellant argues the court
abused its discretion in determining child and spousal support without holding an
evidentiary hearing. A portion of her Assignment of Error III also challenges the court’s
decision on Due Process grounds. We find the court did not err in declining to conduct a
hearing on the issues of spousal and child support, and proceeding instead on the
documentary evidence presented to the magistrate.
{¶ 14} Appellant’s original motion for modification of child and spousal support
requested a hearing, but appellant did not renew her request when the magistrate
ordered the parties to submit written arguments and documents. Her objections to the
Stark County, Case No. 2011-CA-00072 5
magistrate’s decision asserted there were discrepancies in the evidence the parties
submitted, and she asked the court to conduct a de novo hearing to resolve the
conflicts. Appellant also attached additional documents about appellee’s employment to
her objections.
{¶ 15} Civ. R. 53(D)(3)(b)(ii) requires parties to state with specificity and
particularity all grounds for an objection to the magistrate’s decision. Assuming,
arguendo, that appellant’s objections met this standard, Civ. R. 53(D)(4)(b) permits the
court to conduct a hearing, to take additional evidence, or to remand the matter to the
magistrate. Subsection (d) provides the court may refuse to take further evidence
unless the objecting party demonstrates the party could not, with reasonable diligence,
have produced the evidence for the magistrate’s consideration.
{¶ 16} Appellant’s objections assert if the court conducted a de novo hearing, she
would present testimony which would demonstrate why appellee was no longer
employed. The documents she attached to the objections outline these circumstances.
Essentially, appellant argued appellee was voluntarily unemployed, despite the fact he
was on PERS disability.
{¶ 17} We find appellant did not demonstrate she could not have presented this
evidence to the magistrate, and the evidence she presented to the magistrate did
include appellant’s allegations and documents regarding appellee’s employment status.
We conclude the court did not err in declining to conduct a de novo hearing on the
issues of child and spousal support.
{¶ 18} We find the court did err in failing to conduct evidentiary hearings on the
motions for custody and to modify visitation. Appellant requested an evidentiary hearing
Stark County, Case No. 2011-CA-00072 6
on her motions for custody and visitation. The court found because she did not file an
affidavit pursuant to RC. 3127.23, it lacked jurisdiction over the matters, and dismissed
the motions.
{¶ 19} In the recent case of Dole v. Dole, Holmes App. No. 10-CA-013, 2011-
Ohio-1314, this court cited the case of In Re: Complaint for Writ of Habeas Corpus for
Goeller: Moore v. Goeller, 103 Ohio St.3d 427, 2004–Ohio–5579,
816 N.E.2d 594,
wherein the Ohio Supreme Court held the failure of a party to file a UCCJA affidavit did
not divest a juvenile court of subject matter jurisdiction to determine custody of a minor
child.
{¶ 20} In Goeller, the Supreme Court found the requirement that the affidavit
must be filed in the first pleading has been “relaxed” by numerous courts of appeals to
allow amended pleadings or subsequent filings to include the required affidavit. Goeller
at paragraphs 9–11, citations deleted. The Court found the purpose of the UCCJA is to
avoid jurisdictional competition and conflict with courts of other jurisdictions. Goeller at
paragraph 12, citing In re: Palmer (1984), 12 Ohio St.3d at 196, 12 OBR 259, 465
N.E.2d 1312. The Supreme Court advised us that Palmer stood for the proposition that
a mechanistic interpretation of the statute would not only contravene the clear intent of
the legislature but could potentially render Ohio’s custody statutes a nullity. Dole at
paragraph nine.
{¶ 21} We conclude the court erred in finding it lacked jurisdiction over these
motions.
Stark County, Case No. 2011-CA-00072 7
{¶ 22} Despite finding it lacked jurisdiction over the matter, the trial court did
review the motion, and found appellant had failed to set forth facts constituting a change
in circumstances since the prior order. We do not agree.
{¶ 23} R.C. 3109.04 requires a showing change in circumstances before a court
may modify custody. In Davis v. Flickinger, 77 Ohio St. 3d 415,
1997-Ohio-260,
674
N.E.2d 1159, the Ohio Supreme Court discussed what the phrase “change in
circumstances” involved. The Court warned the change must not be slight or
inconsequential, because the legislature’s intent was to spare children from being
entangled in a “tug of war” between parents, and requiring a change in circumstances
provides some stability for the children. Id. at p. 418, citation deleted. For this reason,
an appellate court should not reverse a trial court’s decision unless we find the court
abused its discretion. Id.
{¶ 24} The Davis Court listed facts which, taken individually, may or may not
constitute a substantial change in circumstances, but should be considered. The factors
in Davis included remarriage of the residential parent, the maturing of the child over
time, and which parent would facilitate visitation or if there is hostility and resentment
over visitation. The trial court must also consider whether the harm likely to be caused
by a change of environment is outweighed by the advantages of such a change. The
Court reminded us the goal must always be to promote the best interest of the child. Id
at 420.
{¶ 25} The order naming appellee the residential parent was entered in June,
2008, and it is against this order we must compare the allegations of change in
circumstances. Appellant’s affidavit in support of her motion states that most recently
Stark County, Case No. 2011-CA-00072 8
the younger child’s teachers have noted problems with hygiene and failure to complete
work. Appellant alleges the teachers expressed worry about his future performance as
the concepts in his studies build and layer upon one another. Although this has
apparently been of some concern throughout the case, nevertheless as the child
becomes older, his schooling takes on added complexity and importance.
{¶ 26} Appellant alleges appellee and the children live with appellee’s girlfriend
and her two teenage children, which has a detrimental effect on the youngest child, who
is considerably younger than all the others. The record does not show when appellee’s
girlfriend and her children became members of the household. The guardian ad litem
reports submitted to the court in October, 2008, mentions the girlfriend and her sons,
but states they have independent housing.
{¶ 27} In her July, 2010 report the guardian ad litem stated appellee rented a
four bedroom house in August 2009. The report mentions the girlfriend and her two
sons, aged 16 and 17, presently live with appellee and his family, but does not indicate
when they first moved into appellee’s home. The counselor who was working with the
children first refers to the girlfriend and her children living with appellee in her letter of
January 4, 2011. Thus, it appears the girlfriend and her sons did not reside in the same
house as appellee and his children at the time of the original custody order.
{¶ 28} The addition of other persons to the home and/or a change in the structure
or dynamics of the family is a consideration, and may evolve over time as the children
become older. We find appellant has alleged a change in circumstances in this regard.
{¶ 29} Additionally the trial court overruled appellant’s request to interview the
children. In Oyler v. Oyler, Stark App. No. 2011-CA-00065, 2011-Ohio-4390, this court
Stark County, Case No. 2011-CA-00072 9
found R.C. 3109.04 requires a court to conduct an interview in chambers with any or all
the children if requested by either party. Even though the court had reports from the
counselor and the guardian ad litem, it should not have refused to interview the children
in camera.
{¶ 30} We find appellant’s motion meets the threshold requirement of
demonstrating there has been a change in circumstances, sufficient for the court to
review the custody and visitation issues. We find the trial court erred in dismissing the
matters without conducting a hearing and particularly without interviewing the children in
camera. We stress that our opinion is only that the court should have conducted a
hearing and interviews with the children, and we do not address whether there was in
fact a change in circumstances sufficient to satisfy the Davis standard. We have not
reviewed the merits of the motions.
{¶ 31} Finally, appellant argues the court violated her due process rights by
failing to conduct a hearing on her motions for modification of custody and visitation.
“The fundamental requirement of procedural due process is notice and hearing, that is,
an opportunity to be heard.” Korn v. Ohio State Medical Board (1988), 61 Ohio App.3d
677, 684,
573 N.E.2d 1100, citing Luff v. State (1927),
117 Ohio St. 102,
157 N.E. 388.
Here the court stated it dismissed the matters for lack of jurisdiction, but it also reviewed
the motions, finding they did not state a change in circumstances. On the facts of this
case, we cannot find the court’s failure to conduct a hearing rises to the level of a
violation of appellant’s constitutional rights.
{¶ 32} In conclusion, the first assignment of error is overruled. The second
assignment of error is sustained, and the third assignment of error is sustained as it
Stark County, Case No. 2011-CA-00072 10
relates to the motion for custody and to restore visitation, and overruled as it relates to
the issues of child and spousal support.
{¶ 33} For the foregoing reasons, the judgment of the Court of Common Pleas,
Domestic Relations Division, of Stark County, Ohio, is affirmed in part and reversed in
part and the cause is remanded to the court for further proceedings in accord with law
and consistent with this opinion.
By Gwin, P.J.,
Farmer, J., and
Delaney, J., concur
_________________________________
HON. W. SCOTT GWIN
_________________________________
HON. SHEILA G. FARMER
_________________________________
HON. PATRICIA A. DELANEY
[Cite as Dibble v. Dibble, 2011-Ohio-5803.]
IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT
NANCY DIBBLE, :
:
Plaintiff-Appellant, :
:
:
v. : JUDGMENT ENTRY
:
DANIEL DIBBLE, :
:
:
Defendant-Appellee. : CASE NO. 2011-CA-00072
For the reasons stated in our accompanying Memorandum-Opinion, the judgment of
the Court of Common Pleas, Domestic Relations Division, of Stark County, Ohio, is
affirmed in part and reversed in part and the cause is remanded to the court for further
proceedings in accord with law and consistent with this opinion. Costs to be split
between the parties.
_________________________________
HON. W. SCOTT GWIN
_________________________________
HON. SHEILA G. FARMER
_________________________________
HON. PATRICIA A. DELANEY
