IN THE SUPREME COURT OF OHIO

DAVID W. BURNIP

Appellee

V.

CHARMAINE L. NICKERSON

Appellant

On Appeal from the ColumbianaCounty Court of Appeals,Seventh Appellate District

Court of Appeals Case No. 07 CO 42

MEMORANDUM IN SUPPORT OF JURISDICTIONOF APPELLANT CHARMAINE L. NICKERSON

FKA CHARMAINE L. BURNIP

Brian J. Macala, Esq.Reg. No. 0059224117 S. Lincoln Ave.Salem, OH 44460Tel: 330-337-7934Fax: 330-337-8012Attorney for Appellee

K. Bret Apple, Esq.Reg. No. 00378641376 E. State St.Salem, OH 44460Tel: 330-337-3253

Faxa330-337-0424---Attorney for Appellee

Christopher P. Lacich, Esq.Reg. No. 062291Roth, Blair, Roberts, Strasfeld & Lodge100 Federal Plaza East Ste 600Youngstown, OH 44503Tel: 330-744-5211Fax: 330-744-3184Attorney for Appellant

i

TABLE OF CONTENTS

PAGE(S)

EXPLANATION OF WHY THIS CASE IS OF PUBLIC OR GREAT GENERAL

INTEREST AND INVOLVES A SUBSTANTIAL CONSTITUTIONAL QUESTION .........

STATEMENT OF THE CASE AND FACTS ..................................................... 4

ARGUMENT IN SUPPORT OF PROPOSITIONS OF LAW ................................... 5

Proposition of Law No. I: The trier of fact has a mandatory duty under ORC3109.04(B)(1), and principles of substantive due process, to interview minorchildren as part of the process in determining whether or not a change ofcircumstances has occurred ............ . .. . .................................. ......................

Proposition of Law II: A guardian ad litem who omits, by admission, positiveaspects of a mother/non-residential parent's involvement with the minorchildren, in an investigative report on whether a change of circumstances hasoccurred so taints the proceedings, that a violation of the mother/non-residential parent's due process rights has occurred under the 14th Amendmentof the Ohio Constitution . ...........................................................................

5

7

CONCLUSION .......... ......................................................................... 9PROOF OF SERVICE ...

APPENDIXOpinion of the Columbiana County Court of Appeals(September 30, 2008) ............................................................................ liJudgment Entry of the Columbiana County Court of Appeals(September 30, 2008) ............................................................................ 11

ii

EXPLANATION OF WHY THIS CASE IS OF

PUBLIC OR GREAT GENERAL INTEREST AND INVOLVES

A SUBSTANTIAL CONSTITUTIONAL QUESTION

This case presents two critical issues as it relates to change of custody cases in the

State of Ohio:

1. Whether the trier of fact has a mandatory duty in a custody case under ORC

§3109.04(B)(1), and under principles of substantive due process, to interview minor children

when requested by Motion, as part of the process in determining whether or not a change of

circumstances has occurred; and

2. Whether a guardian ad litem who, by admission, omits positive aspects of a

mother/non-residential parent's involvement with the minor children in an investigative

report on whether a change of circumstances has occurred so taints the proceedings so as to

violate the mother/non-residential parent's rights to due process under the 14th Amendment

of the Ohio Constitution.

In this case, the court of appeals misinterpreted the mandate of ORC §3109.04(B)(1)

to interview minor children in cases involving the establishment of the best interest of

minor children, or those cases which require the resolving of those issues related to the

making of such an allocation, such as the instant change of custody determination.

The court of appeals also ruled that the Guardian ad Litem's inconsistent

investigative report/testimony and apparent bias on the record did not violate the

Appellant's due process rights.

The decision of the court of appeals on the two issues raised undermines the

legislative intent in having minor children interviewed mandatorily pursuant to ORC

§3109.04(B)(1) in cases involving a change of custody. As the legislature recognized in

drafting ORC §3109.04(B)(1), the trier of fact can use the minor children's interviews to

gather important, objective facts. For example, perhaps the parties involved and the

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guardian ad litem are being misled on a certain fact or facts. The minor children, in their

own way, may reveal certain facts to the trier of fact which otherwise would not be

revealed, and which may ultimately lead to a decision that a change of circumstance has

occurred, thus allowing the Court to move to the best interest standard.

The court of appeals takes the position that a court's mandatory duty only arises

when the threshold change of circumstance test has been met, and the best interest

analysis is underway.

In addition, what does it say about our system of justice when a guardian ad litem

admits on record that positive aspects of a mother/non-residential parent's involvement

with her minor children were omitted in the investigative report, claiming that the same

was not relevant to a guardian ad litem's duty in making a change of circumstances

analysis and recommendation to the court? This type of apparent bias on record would tend

to indicate that the report as to whether or not there was a change of circumstances was

tainted by the guardian ad litem. As this Court is aware, the recommendation of a

guardian ad litem is highly influential to the trier of fact and a biased guardian ad litem

can, in essence, set the stage for failure on the change of circumstances argument, if in fact

there is bias in the report on that issue.

In light of the high percentage of divorce that is occurring in the State of Ohio, the

implications of the decision of the court of appeals on these two issues statistically affects

approximately fifty percent of Ohio's citizens and, in rea&ty, each and every citizen who has

a fifty percent chance, more or less, of ending up in the family domestic relations/family law

court- system directly or indirectly.

If the court of appeals' opinion is allowed to stand on the issue of their interpretation

of ORC 3109.04(B)(1), then we have narrowed the tools available to litigants, as well as the

trier of fact, in trying to ferret out the murky facts surrounding a change of custody case in

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the State of Ohio. If allowed to stand, such a rule would be contrary to the plain language

of ORC 3109.04(B)(1), the legislative intent, and the 14th Amendment of the Ohio

Constitution (substantive due process).

Likewise, the integrity of the Ohio Court system is challenged when a guardian ad

litem can appear to exhibit bias on the record, and yet no due process violation is even

found, suggested, or contemplated by the court of appeals.

If a trier of fact who is biased would not be given such great latitude, why should a

guardian ad litem? The recommendation of a guardian ad litem is oftentimes a pivotal

event, both pretrial and at trial, and a report that is not objective and unbiased certainly

does violate the 14th Amendment due process rights of a mother/non-residential parent, as

in this particular case.

Finally, this case involves a substantial constitutional question. The decision of the

court of appeals undermines the Ohio Constitution's 140' Amendment as it would relate to

substantive due process or fundamental fairness on both propositions of law raised.

Clearly, a mother/nonresidential parent with a biased guardian ad litem is not

afforded the fundamental fairness that Ohio law and the Ohio Constitution requires.

The Appellant asks this Honorable Court to take jurisdiction of this matter so that it

can be made clear once and for all, that the plain language and legislative intent of ORC

§3109.04(B)(1) implores upon the trier of fact a mandatory duty to interview minor children

in any change of custody scenario in a domestic relations court of the State of Ohio,

including that portion of a custody case involving a change of circumstances determination.

In addition, a clear message needs to be sent from this Court to all guardian ad

litems across the State of Ohio that they must be unbiased and objective in rendering their

recommendation reports. Otherwise, the 1411, Amendment of the Ohio Constitution will be

violated.

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This Court must grant jurisdiction to hear this case and review the erroneous

decision of the court of appeals on the two critical issues raised herein.

STATEMENT OF THE CASE AND FACTS

The case arises from the attempt of Appellant Charmaine Nickerson to regain the

status of residential parent and legal custodian of her two minor children, Ty Burnip, born

July 16, 2001; and Leslie Burnip, born July 27, 2002, or, in the alternative, the status of

shared parent.

The parties were granted a dissolution of marriage on June 14, 2005 in which the

Court designated Appellee David Burnip as the children's residential parent and legal

custodian pursuant to the parties' incorporated Separation Agreement.

On August 9, 2006 Appellant filed a Motion to Reallocate Parental Rights and

Responsibilities and alleged that a change of circumstance had occurred since the June 14,

2005 dissolution. On October 18, 2006, the Appellee filed a Motion to Dismiss. A trial was

held before a magistrate on June 25, 2007. Prior to that date, on June 11, 2007, Appellant

filed a Motion for In-Camera interview of the children, who at the time were ages 4 and 5.

The Appellee opposed said Motion. Neither the magistrate nor the trial court (on objections)

ever directly ruled on the motion, and never interviewed the minor children. The issue was

raised again at trial by the Appellant. The Guardian ad Litem's report found no change of

circumstances and recommended no reallocation o parental rights and responsihilities.

The magistrate concluded that while Appellant had demonstrated significant

changes in her life, she had failed to demonstrate any significant changes in the lives of the

Appellee or the children since the dissolution. The magistrate found that the circumstances

of the Appellee and the children had been "absolutely constant." The magistrate concluded

that Appellant's motion should be denied and the Appellee's Motion to Dismiss should be

granted. The trial court subsequently entered Judgment overruling objections to said

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Magistrate's decision, and denying Appellant's Motion to Reallocate Parental Rights and

Responsibilities.

Appellant appealed to the Columbiana County Court of Appeals. The court of

appeals affirmed the Judgment of the court of common pleas and found that (1) the

Appellant's first assignment of error as it would relate to ORC §1309.04(B)(1) was without

merit, reasoning that the trial court had no duty to interview the minor children prior to

determining their best interests inasmuch as Appellant did not demonstrate a change of

circumstances. Thus, by their rationale there was no best interest standard before the trial

court requiring the interview of the minor children to help the trier of fact in determining

whether change of circumstances had occurred; and (2) that the Guardian ad Litem did not

fail in her duties, nor did they find that the Guardian ad Litem was biased against the

Appellant, despite her admission on record that her report was devoid of all positive aspects

of the Appellant's life and interaction with the children, and thus no 1441i Amendment due

process rights were violated.

In a concurring separate opinion, the Court also indicated that they did not believe

that the Guardian ad Litem's report was the end-all and be-all inasmuch as the trial court

reviewed the report, listened to the Guardian ad Litem's testimony as wen as her cross-

examination, and ultimately came up with its own decision.

ARGUMENT IN SUPPORT OF PROPOSITIONS OF LAW

Proposition of Law No. I: The trier of fact has a mandatory dutyunder ORC 3109.04(B)(1), and principles of substantive due process,to interview minor children as part of the process in determiningwhether or not a change of circumstances has occurred.

The plain language of ORC §3109.04(B)(1) provides:

"When making the allocation of parental rights and responsibilities for thecare of the children under this section in an original proceeding formodification of a prior order of the court making the allocation, the courtshall take into account that which would be in the best interest of thechildren. In determining the child's best interest for purposes of making its

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allocation of the parental rights and responsibilities for the care of the childand for purposes of resolving any issues related to the making of thatallocation, the court, in its discretion, may and, upon the request of eitherparty, shall interview in chambers any or all of the involved childrenregarding their wishes and concerns with respect to the allocation."

The case law in the State of Ohio indicates that said interview is mandatory as cited

herein below:

The court in Church v. Church, 2004 Ohio 6215 has held concerning R.C.

3109.04(B)(1) that: "[t]he plain language of this statute absolutely mandates the trial court

judge to interview a child if either party requests the interview." Citing Badeett v. Badgett

(1997), 120 Ohio App. 3d 448, 450. "[T]he state legislature made it abundantly clear that

the judge must attempt to listen to that input when one party so requests." Id. at 452; see

also Riamle v. Riggle, 9t" Dist. No. O1CA0012-Ohio-1376 (Courts must strictly follow the

procedures in R.C. 3109.04(B)(1); King v. Kine (Feb. 20, 2001), 5th Dist. Nos. 2000CA00203,

2000CA00268 (R.C. 3109.04(B)(1) mandates that a trial court conduct an in camera

interview of the children if requested to do so in a child custody proceeding). In Church,

supra, as in Badvett, supra, the trial court failed to hold the required in camera interview.

The appellate court in Church found that the error was not harmless. The trial court's

judgment was reversed in both cases cited.

In addition, it was pointed out to the court of appeals in this instant case on oral

argument, that a close review of the statute indicates that the legislature intended minor

children to be interviewed even in the determination of change of circumstances, or

otherwise why would the phrase would have been added, "... and for purposes of resolving

any issues related to the making of that allocation (allocation of parental rights and

responsibilities)."

In other words, Appellant argues that a court, in determining the children's best

interests for purposes of making its allocation of the parental rights and responsibilities,

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must first resolve issues related to the making of that allocation which includes, but is not

limited to a determination of whether a change of circumstances has occurred. As set forth

herein before, minor children, no matter what age, so long as they are able to communicate

and have competence in light of their respective ages, can lend insight to facts that no one

else can lend insight to, such as details concerning their lives with either parent or personal

details such as overnight guests or the use of illicit drugs or something of that nature which

may perk the trial court's interest and ultimately sway it in a decision when determining

whether or not a change of circumstances has occurred.

The holding of the court of appeals ignores the plain language of ORC §1309.04(S)(1)

legislative intent, and well-settled case law here in the State of Ohio.

Proposition of Law II: A guardian ad litem who omits, by admission,positive aspects of a mother/non-residential parent's involvementwith the minor children, in an investigative report on whether achange of circumstances has occurred so taints the proceedings, thata violation of the mother/non-residential parent's due process rightsoccurred under the 14th Amendment of the Ohio Constitution.

A guardian ad litem in Ohio custody cases is entrusted with a very important duty:

giving the trier of facts an objective investigative report and recommendation to the trier of

fact. A guardian ad litem is to provide unbiased insight and cut through the hyperbole,

smoke, and distortion that may be presented by either party to the trier of fact.

In this case, as in every case, the Guardian ad Litem's report and recommendation

was anxiously awaited, for both sides understood the significance of it: it is a pivotal event

in a change of custody case which then can determine whether or not the parties reach a

settlement, go to trial, or, for the moving party, whether they withdraw their action based

on the fact this objective voice has not found in their favor or suggested some compromise

(e.g. shared parenting).

This is what exactly happened in this instant case, and the court of appeals failed to

grasp the impact of a guardian ad litem with flawed objectivity and apparent bias on the

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proceedings. The Guardian ad Litem then produced a report which found no change of

circumstances. The trier of fact, being quite well aware of that recommendation, ultimately

ruled the same way.

The Guardian ad Litem admitted that the report she prepared was devoid of any

positive aspects concerning Appellant's role as a loving mother of these two minor children

(Transcript p. 218; 219). In fact, the question by Appellant's counsel was posed as this:

Q. So my question to you is, how does your report - the report that youissued on February 1, 2007, how is it devoid of any positive aspectsthat this woman seated to the left of me brings to these children'slives on a day-to-day or week-to-week basis?

A. I guess I - I didn't mean to make it devoid of any positive aspects ofCharmaine.

Q. In fact, that's exactly what you did, correct?A. I guess.

*xx

This is prima facie evidence that the Guardian ad Litem did not present an

objective, diligent report to the Court and instead presented a flawed, biased

recommendation. The whole outcome of the trial was thus tainted, warranting remand.

A guardian ad litem has been described as performing a dual role of (1) advocating

the child's interest, and (2) serving as a fact finder for the Court. See In the Matter of:

Alexis Seitz, 2003 Ohio 5218; 2003 Ohio App. LEXIS 4677, citing Stuckey, Guardian ad

Litem as surrogate parents: Implications for Role Definition and Confidentiality (1996), 64

Fordham Law Review 1785, 1787.

In In re: Alfrev, 2003 Ohio 608, the Second District Court cites another important

principal: "The guardian ad litem is but an officer of the court, one not aligned with any

party on the legal issues presented."

Appellant submits that the threshold for guardian ad litem bias is analogous to that

of a magistrate or judge.

The threshold for proving that an alleged bias existed in a magistrate's or judge's

decision is high. "The terms 'bias' or 'prejudice' refer to a 'hostile feeling or spirit of ill will

on the one hand, or undue friendship or favoritism on the other, toward one of the litigants

or his or her attorneys, with a formation of a fixed anticipatory judgment on the part of a

judge as distinguished from an open state of mind which will be governed by the law and

the facts.' 22 Ohio Jurisprudence 3(d) (1998) 203, Courts and Judges, Section 126." See

also, Mascorro v. Mascorro (June 9, 2000), 2nd Dist. No. 17945; State ex rel. Pratt v.

Weygandt (1956), 164 Ohio St. 463, paragraph 4 of the syllabus.

The appellant in John A. L. v. Sheri B. cited In the matter of: Alexis Seitz, 11th Dist.

No. 2002-T-0097, 2003 Ohio 5218, wherein the court considered the appellant's argument

that "the guardian ad litem had performed such an inadequate investigation into Alexis'

best interests so that the recommendation in her report that appellee be given custody of

Alexis lacked support." Appellant suggests the same occurred in this instant case.

Thus, the court of appeals, to simply disregard the apparent bias on record of the

Guardian ad Litem and the inconsistencies as to her testimony at trial versus what was

placed in her report was clear error, and a violation of the Appellant's 14th Amendment due

process rights under the Ohio Constitution should have been found.

CONCLUSION

P'or the reasons discussed above, this case involves matters of public and great

general interest and involves a substantial constitutional question. The Appellant requests

this Court to accept jurisdiction in the case so that the important issues presented will be

reviewed on their merits.

Respectfully submitted,8

ROTH, BLAIR, ROBERTS, STRASFELD & LODGE

A LEGAL PROFESSIONAL ASSOCIATION

Christopher P. Lacich, Esq. #0062291100 Federal Plaza East Ste 600Youngstown, OH 44503PH: 330-744-5211; FAX: 330-744-3184Email: clacich@roth-blair.comAttorney for Appellant

CERTIFICATE OF SERVICE

A copy of the foregoing has been sent by prepaid U.S. mail on the 2°'1 day of

, 2008 to K. Bret Apple, Esq., 1376 E. State St., Salem, OH 44460; to

Brian J. Macala, Esq., 117 S. Lincoln Ave., Salem, OH 44460, Attorneys for Appellee; and

to Theresa Tolson, Esq., 18495 Fifth St., Beloit, OH 44609, Guardian ad Litem.

\1Christopher P. Lacich, Esq. #0062291Attorney for Appellant Charmaine Nickerson

APPENDIX

STATE OF OHIO, COLUMBIANA COU

IN THE COURT OF APPEALS

SEVENTH DISTRICT

DAVID BURNIP,

®L &iw 10

i.®URT C1P APPEALS

SEP 3 0 2008CQLUR96IR@EA Co. OHIQ

tiDarnw ^

PLAINTIFF-APPELLEE,

VS.

CHARMAINE NICKERSON,

DEFENDANT-APPELLANT.

CHARACTER OF PROCEEDINGS:

CASE NO. 07-CO-42

OPINION

Civil Appeal from Court of CommonPleas, Domestic Relations Division,Columbiana County, OhioCase No. 05DR261

JUDGMENT:

APPEARANCES:For Plaintiff-Appellee

Affirmed

Attorney K. Bret AppleWilliams & Apple Co., L.P.A.1376 East State StreetSalem, Ohio 44460-1235

Attorney Brian Macala117 South Lincoln AvenueSalem, Ohio 44460-3101

For Defendant-Appellant Attorney Christopher LacichRoth, Blair, Roberts Strasfeld & Lodge100 Federal Plaza East, Suite 600Youngstown, Ohio 44503

JUDGES:

Hon. Gene DonofrioHon. Cheryl L. WaiteHon. Mary DeGenaro

Dated: September 30, 2008

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DONOFRIO, J.

{11} Defendant-appellant, Charmaine Nickerson, appeals from a

Columbiana County Common Pleas Court judgment dismissing her motion for a

change of custody of the two minor children she shares with plaintiff-appellee, David

Burnip.

{¶2} The parties were married on May 21, 2004. By this time, they already

had tovo children together, Leslie (d.o.b 7/16/01) and Ty (d.o.b. 7/27/02). The parties

were granted a dissolution on June 14, 2005. Per the parties' incorporated

separation agreement, the court designated appellee as the children's residential

parent and appellant was granted companionship rights.

{13} On August 9, 2006, appellant filed a motion to reallocate parental rights

and responsibilities naming her as the children's residential parent, or in the

alternative, to establish a shared parenting plan. She alleged that such a change

was in the children's best interest due to allegations that the children spend most of

their time either in daycare or with their paternal grandparents, that appellee fails to

attend any school activities, and that appellee fails to tend to Leslie's allergy issues.

{14} In response, appellee filed a motion to dismiss, asserting that appellant

could not demonstrate a change in circumstances as required to warrant a change in

custody.

{15} A magistrate appointed a guardian ad litem (GAL) for the children and

set the matter for a hearing.

{116} On June 11, 2007, appellant filed a motion for an in-camera interview of

the children. Appellee opposed this motion, stating that the children, then ages four

and five, were too young to be subjected to an in-camera interview. It appears that

the magistrate and the court never directly ruled on this motion. However, neither

interviewed the children.

{¶7} The magistrate held a hearing on appellant's motion to reallocate

parental rights and responsibilities. The magistrate concluded that while appellant

had demonstrated significant changes in her life, she had failed to demonstrate any

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changes in the lives of appellee or the children since the dissolution. In fact, the

magistrate found that the circumstances of appellee and the children had been

"absolutely constant." Thus, the magistrate concluded that appellant's motion should

be denied and appellee's motion to dismiss should be granted. The trial court

subsequently entered judgment denying appellant's motion and dismissing the

action.

{18} Appellant filed objections to the magistrate's decision taking issue with

numerous factual findings and alleging that she did demonstrate a change in

circumstances. The trial court held a hearing on the motion. It subsequently

overruled appellant's objections.

{19} Appellant filed a timely notice of appeal on November 7, 2007.

{110} Appellant raises four assignments of error, the first of which states:

{111} "THE TRIAL COURT ERRED BY NOT INTERVIEWING THE MINOR

CHILDREN AT THE REQUEST OF DEFENDANT-APPELLANT PURSUANT TO

MOTION AND AT TRIAL, ALL PURSUANT TO O.R.C. §3109.04(B)(1)."

{112} On June 11, 2007, appellant filed a motion for the court to conduct an

in-camera interview with the children, who were four and five years old at the time.

Appellee filed a response in opposition. Appellant also brought the matter of her

motion to the magistrate's attention at the June 25, 2007 hearing. (Tr. 77-78). There

is no indication that the trial court or the magistrate ever ruled on this motion.

However, neither the court nor the magistrate interviewed the children. So we may

presume that the court overruled appellant's motion. Additionally, in her

memorandum in support of her objections to the magistrate's decision, appellant

asserted that it was error for the magistrate to dismiss the case without first

interviewing the children.

{¶13} Appellant now argues that it was error for the magistrate or the trial

court not to interview the children.

{¶14} R.C. 3109.04(B)(1) provides:

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{¶15} "When making the allocation of the parental rights and responsibilities

for the care of the children under this section in an original proceeding or in any

proceeding for modification of a prior order of the court making the allocation, the

court shall take into account that which would be in the best interest of the children.

In determining the child's best interest for purposes of making its allocation of the

parental rights and responsibilities for the care of the child and for purposes of

resolving any issues related to the making of that allocation, the court, in its

discretion, may and, upon the request of either party, shall interview in chambers any

or all of the involved children regarding their wishes and concerns with respect to the

allocation." (Emphasis added.)

{¶16} This court has previously held that R.C. 3109.04(B)(1)'s language is

mandatory. Badgett v. Badgett (1997), 120 Ohio App.3d 448, 450, 698 N.E.2d 84.

In fact, we stated: "The plain language of this statute absolutely mandates the trial

court judge to interview a child if either party requests the interview. An interview is

discretionary only if no party requests it; if a party to the allocation hearing makes the

request, the court 'shall' interview the child or children." Id.

{117} But R.C. 3109.04 applies when the court is determining the best

interests of the children. In this case, the court did not get to the step of determining

the best interests of the children. Before the court could even get to a best interest

determination, it first had to find that a change in circumstances had occurred.

{¶18} "The court shall not modify a prior decree allocating parental rights and

responsibilities for the care of children 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, the child's

residential parent, or either of the parents subject to a shared parenting decree, and

that the modification is necessary to serve the best interest of the child." R.C.

3109.04(E)(1)(a).

{119} In this case, the court determined that no change in circumstances had

occurred. Therefore, the court never moved on to the step of examining the

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children's best interests. Absent a finding of change in circumstances, there is no

reason for the trial court to consider testimony and evidence as to the best interests

of the children. Venuto v. Pochiro, 7th Dist. No.02-CA-225, 2004-Ohio-2631, at ¶63.

Unless and until the court found a change in circumstances, interviewing the children

would have been premature. Here the magistrate, and then the trial court,

determined that appellant did not present sufficient evidence to demonstrate a

change in circumstances and, therefore, granted appellee's motion to dismiss. This

case never proceeded to the point where appellee presented evidence. Presumably,

had the court overruled appellee's motion to dismiss, appellee would have then

presented evidence and the trial court would also have interviewed the children.

{¶20} Accordingly, appellant's first assignment of error is without merit.

{121} Appellant's second assignment of error states:

{122} "THE TRIAL COURT ERRED IN NOT FINDING THAT THE

DEFENDANT-APPELLANT MET HER BURDEN OF CHANGE OF

CIRCUMSTANCES UNDER CURRENT OHIO LAW (O.R.C. §3109.04(E)(1)(a) BY

THE EVIDENCE/FACTS PRESENTED AT TRIAL AND THROUGH DEPOSITION

TESTIMONY, ALL OF WHICH WARRANTED THAT THE DETERMINATION OF

ALLOCATION OF PARENTAL RIGHTS AND RESPONSIBILITIES BE MADE

UNDER A BEST INTEREST STANDARD."

{123} Appellant argues that the trial court erred in finding that she did not

demonstrate a change in circumstances. She points to such things as the children

spend a substantial amount of time with their paternal grandparents and at daycare

instead of with appellee, appellee's home is not clean or appropriate for the children,

the daycare facility that the children attend has dogs and cats present despite

Leslie's allergy to animals, Ty is not advancing to kindergarten, the children are not

appropriately dressed for school, appellee's smoking may have an adverse affect on

the children, and the children are now two years older than when the parties

divorced. Appellant argues that these changes, when considered together, constitute

the type of change in circumstances contemplated by R.C. 3109.04(E)(1)(a).

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{¶24} When reviewing a trial court's decision in domestic relations matters, an

appellate court must uphold the decision absent an abuse of discretion. Booth v.

Booth ( 1989), 44 Ohio St.3d 142, 144, 541 N.E.2d 1028. Abuse of discretion

constitutes more than an error of law or judgment; it implies that the court's attitude is

unreasonable, arbitrary, or unconscionable. Blakemore v. Blakemore ( 1983), 5 Ohio

St.3d 217, 219, 450 N.E.2d 1140. The appellate court should not independently

review the weight of the evidence in the majority of cases but rather should be guided

by the presumption that the trial court's findings are correct. Miller v. Miller ( 1988), 37

Ohio St.3d 71, 74, 523 N.E.2d 846.

{¶25} As discussed above, before moving on to determine the children's best

interests, the magistrate and the court first had to determine that a change had

occurred in the circumstances of the children or their residential parent, in this case

appellee. R.C. 3109.04(E)(1)(a). To determine whether appellant demonstrated a

change in circumstances, we must examine the evidence presented.

{126} Appellant called four witnesses. The first to testify was appellant's next-

door neighbor, Heather Bronstein. Bronstein testified that she sometimes sees the

children ihappropriately dressed. (Tr. 11). She stated that Leslie is sometimes

dressed in boys' clothing, the children's clothes are too small, and the children are

not always clean. (Tr. 11). Bronstein stated that she has made these observations

when the children have come over straight from their babysitter before appellant has

had a chance to bathe them or change their clothes. (Tr. 11-12).

{127} Appellant was the next witness. She testified as to numerous issues

that she believed constituted a change in circumstances.

{1128} First, appellant testified regarding the children's daycare provider. The

children attend daycare in the home of Tracy Klein. Appellant stated that although

the children have been in daycare with Klein since before the dissolution, she

believed that the quality of Klein's daycare had declined since that time. (Tr. 20).

Appellant stated that Klein had acquired several pets and did not maintain her home

as well as she previously had. (Tr. 20). In fact, appellant stated that she called

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Children's Services and complained because she noticed on one occasion that

Klein's home smelled of cat urine and she saw fleas jumping onto her children when

she picked them up. (Tr. 21). Appellant further stated that Leslie suffers from

allergies and that she was concerned that the dogs and cats at Klein's home

aggravated Leslie's allergies. (Tr. 21-22). However, she also stated that Leslie's

doctor simply stated that if Leslie's allergies worsened, then they should consider a

new daycare provider. (Tr. 22-23). She further admitted that Leslie suffered from

allergies when the parties separated. (Tr. 95).

{129} Second, appellant testified that the condition of appellee's home had

deteriorated since the parties' dissolution. (Tr. 25). Appellee and the children still

reside in the same house the parties shared during the marriage. (Tr. 25). She

stated she returned to appellee's house in late 2005 or early 2006 to pick up some of

her belongings that she had left behind. (Tr. 26). She observed that the house was

messy and that there were animal droppings in the attic. (Tr. 27). She also observed

that Leslie had moved to a different room that had an unfinished ceiling. (Tr. 120).

{130} Third, appellant testified that appellee's parents spent too much time

caring for the children. (Tr. 28). However, she also admitted that the grandparents

now had the same role in the children's lives as they did at the time of the dissolution.

(Tr. 28).

{¶31} Fourth, appellant testified that recently it was determined that Ty should

be held back from advancing to kindergarten. (Tr. 30). She opined that this was a

result of appellee's failure to work with Ty. (Tr. 30). Appellant stated that if she were

awarded custody, she could spend more time working with Ty on school work. (Tr.

31).

{¶32} Fifth, appellant testified that appellee smokes mini-cigars. (Tr. 47).

She stated that she could smell the odor of tobacco in appellee's car when he picked

up the children. (Tr. 48). Appellant stated she was concerned that it irritated Leslie's

allergies. (Tr. 48, 53). But appellant admitted that appellee smoked at the time of the

dissolution too. (Tr. 47).

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{¶33} Sixth, appellant testified that she has noticed that the children's clothes

and shoes are often too small and that they frequently seem as though they have not

bathed in several days. (Tr. 53-54).

{1[34} Finally, appellant testified that when school is in session, the children

spend only two or three hours a day with appellee. (Tr. 57).

{135} Appellant also spent some time testifying about her home with her new

husband, Kurtis Nickerson, and the advantages they could provide to the children.

{136} The next witness to testify was Tracy Klein, the certified daycare

provider. Klein testified that she has been caring for the parties' children since they

were six weeks old. (Tr. 127-28). She further stated that she has been in the same

home, where she provides her daycare service, since almost two years before the

parties' dissolution. (Tr. 126-27). Klein stated that she has always had pets at her

home/daycare facility. (Tr. 129). In fact, she stated that at the time of the parties'

dissolution, she had one dog and four cats in her home. (Tr. 130). Now, Klein stated

that she has two dogs and five cats. (Tr. 131). As to the children's hygiene, Klein

stated that Leslie and Ty always arrive bathed and wearing appropriate clothing. (Tr.

133-34).

{137} Appellant's husband, Kurtis Nickerson, was the next witness to testify.

He stated that Klein's home had smelled of cat urine, but that the situation had

improved. (Tr. 160). He then spent most of his testimony describing the home he

shared with appellant and the things they did with the children.

{1138} The GAL was the last witness to testify. She stated that appellant is a

good mother. (Tr. 214, 219). She also acknowledged that appellee and his parents

shared this opinion. (Tr. 214). While she admitted that she failed to note any positive

aspects of appellant in her report, she stated that this was because she simply

focused on the issues of concern that appellant had raised and whether there had

been a change in circumstances in this case. (Tr. 218-19). The GAL testified that

she inspected appellee's home just prior to the hearing in this case and that she

found it to be "well-kept" and "very clean." (Tr. 221). She also stated that Leslie's

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bedroom had a finished ceiling. (Tr. 221). The GAL opined that the house was more

than adequate to meet the children's needs. (Tr. 252). She did not go into the attic.

(Tr. 221). Next, the GAL testified that she looked into appellee's smoking. (Tr. 224).

She stated that she did not notice the smell of smoke in appellee's car, on his person,

or in his house. (Tr. 224). However, she stated that appellee did admit to occasional

smoking but he informed her that he does not smoke in the children's presence. (Tr.

225). After that, the GAL testified that while appellee's parents are actively involved

in the children's care, this was also the situation when the parties were married. (Tr.

230). Finally, the GAL testified that she was standing by her recommendation in her

report that the children should remain in appellee's custody. (Tr. 255-56).

{139} This evidence supports the magistrate's and the trial court's

determination that no change in circumstances had occurred in the lives of appellee

or the children. While appellant's and her husband's testimony demonstrated that

they could provide a good and loving home for the children, this was not the standard

that they had to meet. Instead, appellant had to first demonstrate a change in

circumstances in the lives of appellee or the children.

{140} Many of the factors appellant relies on to demonstrate a change in

circumstances existed prior to the parties' dissolution. Appellee and the children still

live in the same home. The children still attend the same daycare, which had

numerous animals in the house before the dissolution. They also spend a significant

amount of time with their paternal grandparents, which was also the case before the

dissolution. And appellee smoked prior to the dissolution.

{141} The only real changes appellant can point to, other than the passage of

time, are that Ty is being held back from kindergarten and that the children are

sometimes inappropriately dressed or not bathed. One of these factors was rebutted

by Klein, who testified that the children always arrive at daycare properly dressed and

bathed. The other factor was not linked to appellee. Appellant testified that she

believed that the reason Ty was not advancing to kindergarten was because appellee

did not spend enough time working with him and that she could do a better job.

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However, this was simply her opinion. No teacher or other person corroborated

appellant's opinion.

{142} Given this evidence, we cannot conclude that the trial court abused its

discretion in finding that no change in circumstances had occurred in the lives of

appellee or the children. Accordingly, appellant's second assignment of error is

without merit.

{143} Appellant's third assignment of error states:

{144} "THE TRIAL COURT ERRED IN NOT RECOGNIZING THAT THE

GUARDIAN AD LITEM FAILED TO PERFORM NECESSARY DUE DILIGENCE

AND/OR COMPETENT OBJECTIVITY, RESULTING IN A GUARDIAN AD LITEM

RECOMMENDATION IN STARK CONTRAST TO THE OBJECTIVE FACTS, ALL TO

THE PREJUDICE OF DEFENDANT-APPELLANT AND/OR THE MINOR CHILDREN

AND IN VIOLATION OF THEIR FUNDAMENTAL RIGHTS TO DUE PROCESS

UNDER THE XIV AMENDMENT OF THE U.S. AND OHIO CONSTITUTIONS."

(145) Here appellant argues that the GAL failed to properly perform her

duties. Appellant takes issue with the fact that the GAL failed to include in her report

any positive things regarding appellant. And she points out that the GAL admitted as

much at the hearing. (Tr. 218-19). Thus, she concludes that the GAL's report was

not objective. Appellant also points out that the GAL submitted an initial report prior

to conducting an investigation of the parties' homes. She also takes issue with the

fact that the GAL later found appellee's home to be appropriate for the children.

Appellant contends that this contradicts the evidence at the hearing that Leslie's

bedroom did not have a ceiling, there were rodent droppings in the attic, and the

home was in a state of disrepair.

{146} The GAL testified regarding the matters that appellant now takes issue

with. While the GAL did admit that she failed to include any positive aspects of

appellant in her report, she stated that this was not intentional. (Tr. 218-19). Instead,

the GAL stated that her report focused on whether there was a change in

circumstances, the issues that appellant raised regarding appellee, and whether the

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parties were appropriate for shared parenting. (Tr. 219). She also testified that

appellant is a good mother and a wonderful person. (Tr. 214, 219). And she testified

that both appellant and her husband made a positive impression on her. (Tr. 202).

Thus, while the GAL did not state these things in her report, the evidence was

nonetheless before the magistrate and the court that the GAL found appellant to be a

good mother.

{¶47} Next, the GAL testified as to why her report did not include an

investigation of appellee's home. She stated that she tried on several occasions

between October 23, 2006 and December 31, 2006 to make an unannounced home

visit to appellee, but appellee was never at home. (Tr. 204). She then submitted a

report on February 1, 2007, which did not include any home visits. (Tr. 204). Her

report indicated that if the parties did not settle this matter, she would need to

conduct home visits. (Tr. 204). At a February 17, 2007 pretrial, appellant's counsel

asked her not to do any work on the case for the time being. (Tr. 210, 251). She

eventually conducted the home studies in the week before the hearing, which is

when she was informed that the case was going forward. (Tr. 210). Thus, the home

studies were conducted prior to the hearing on this matter. The GAL testified that

she did not file a supplemental report after completing the home investigations

because she did not find anything during those investigations to change her

recommendation. (Tr. 246).

{¶48} Finally, the GAL found appellee's home to be appropriate for the

children. (Tr. 252). She found it to be well-kept and clean. (Tr. 221). She did not

observe an unfinished ceiling in Leslie's bedroom as appellant had alleged. (Tr.

221). She did not go into the attic, however, so she would have no knowledge

whether animal droppings were present there. (Tr. 221). While this testimony

contradicted appellant's testimony, appellant's testimony was regarding the condition

of appellee's house in late 2005 or early 2006. The GAL inspected the house in mid-

2007. Thus, had the conditions existed that appellant described, appellee could have

likely remedied them by the time the GAL inspected the house.

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{¶49} Based on the above, we do not find that the GAL failed in her duties nor

do we find that the GAL was biased against appellant, as appellant suggests. Thus,

appellant's Fourteenth Amendment rights were not violated. Accordingly, appellant's

third assignment of error is without merit.

{150} Appellant's fourth assignment of error states:

{151} "THE TRIAL COURT ERRED IN IMPOSING AN UNREASONABLE,

UNCONSTITUTIONAL BURDEN ON DEFENDANT-APPELLANT IN ESTABLISHING

'CHANGE OF CIRCUMSTANCES' UNDER HER INSTANT FACTS, AND RULING

AGAINST HER BASED ON THE EVIDENCE PRESENTED BOTH AT TRIAL AND IN

THE DEPOSITIONAL TESTIMONY, VIOLATING HER FUNDAMENTAL DUE

PROCESS RIGHTS AS GUARANTEED UNDER THE XIV AMENDMENT OF THE

U.S. AND/OR OHIO CONSTITUTIONS."

{152} Here appellant argues that R.C. 3109.04(E)(1)(a), which requires a

change in circumstances before a court can grant a change in custody, is

unconstitutional. She argues that the fact that the statute requires a non-residential

parent to demonstrate a change in circumstances in order for the court to modify

custody before the court will consider the children's best interests violates due

process. She contends that such a standard places an unreasonable burden on the

non-residential parent who seeks a change in custody.

{153} R.C. 3109.04(E)(1)(a) provides:

{154} "The court shall not modify a prior decree allocating parental rights and

responsibilities for the care of children 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, the child's

residential parent, or either of the parents subject to a shared parenting decree, and

that the modification is necessary to serve the best interest of the child. In applying

these standards, the court shall retain the residential parent designated by the prior

decree or the prior shared parenting decree, unless a modification is in the best

interest of the child and one of the following applies:

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{¶55} "(i) The residential parent agrees to a change in the residential parent

or both parents under a shared parenting decree agree to a change in the

designation of residential parent.

{156} "(ii) The child, with the consent of the residential parent or of both

parents under a shared parenting decree, has been integrated into the family of the

person seeking to become the residential parent.

{¶57} "(iii) The harm likely to be caused by a change of environment is

outweighed by the advantages of the change of environment to the child."

{158} Appellee argues that appellant failed to properly raise this constitutional

challenge in the trial court and therefore, waived it on appeal. However, whether

appellant waived this issue is immaterial in light of the Ohio Supreme Court's ruling in

In re Brayden James, 113 Ohio St.3d 420, 866 N.E.2d 467, 2007-Ohio-2335. The

Ohio Supreme Court specifically found R.C. 3109.04(E)(1)(a) to be constitutional:

"The provisions of R.C. 3109.04(E)(1)(a) promote stability in the development of

children and are not unconstitutional as applied where a noncustodial parent has not

evidenced that a change has occurred in the circumstances of the child." Id. at

paragraph two of the syllabus. We need not reanalyze the constitutionality of a

statute that the Supreme Court has already determined to pass constitutional muster.

{159} Accordingly, appellant's fourth assignment of error is without merit.

{160} For the reasons stated above, the trial court's judgment is hereby

affirmed.

Waite, J., concurs.

DeGenaro,J., concurs with separate concurring opinion.

APPROVED:

Gene Dohofrio, Judae--I

-1-

DeGenaro, J., concurring, with separate concurring opinion.

I agree with my colleague's analysis and disposition with regard to appellant's

first, second and fourth assignments of error. I write separately because the majority

has failed to address the due process issue raised by appellant.

In her third assignment of error, appellant asserts that she and her children

were denied due process by being denied the benefit of a diligent guardian ad litem.

Appellant argues that the GAL's "biased" report so tainted the proceedings that a fair

trial was rendered impossible. Appellant does not provide any case law or statutory

authority to support her claim of due process violation. App.R.16(A)(7).

The majority opinion engages in a factual analysis to reach the conclusion that

the guardian ad litem ("GAL") did not shirk her duties or act in a biased manner against

appellant, and thus did not create a due process problem for appellant. However, the

issue can be resolved without reaching an analysis of the GAL's performance.

A GAL is appointed to investigate the custody situation in order to make a

recommendation to the court regarding the child's best interest. R.C. 3109.04(C);

Ferrell v. Ferreil, 7th Dist. No. 01AP0763, 2002-Ohio-3019, at ¶43, citing In re Baby

Girl Baxter (1985), 17 Ohio St.3d 229, 232, 479 N.E.2d 257. A GAL advocates for the

best interests of the child, which is different than being a legal advocate for the child or

the parent as an individual. Matter of Duncan/Walker Children (1996), 109 Ohio

App.3d 841, 844-45, 673 N.E.2d 217. A GAL only becomes a direct advocate for the

child upon express dual appointment by the court. Id.; In re Williams, 101 Ohio St.3d

398, 805 N.E.2d 1110, 2004-Ohio-1500, at ¶18. Thus, within the meaning of R.C.

3109.04(C), the GAL is only an investigator, and the recommendation provided by the

GAL is considered along with all other evidence presented to a court. Webb v. Lane

(Mar. 15, 2000), 4th Dist. No. 99CA12, at 2; In re Sherman, 3d Dist. No.05-04-47, 05-

04-48, 05-04-49, 2005-Ohio-5888, at ¶28.

The magistrate, as the trier of fact, is presumed to be capable of both weighing

the credibility of the GAL and disregarding any inadmissible findings in the report. In

re Sypher, 7th Dist. No. 01BA36, 2002-Ohio-1026; In re Stephens, 7th Dist. No.

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2001 C056, 2002-Ohio-3057 at ¶48. The court's consideration of a GAL's report does

not violate any party's due process rights as long as the party had an opportunity to

cross-examine the GAL on issues raised in the report. In re Hoffman, 97 Ohio St.3d

92, 776 N.E.2d 485, 2002-Ohio-5368, at ¶25; Roach v. Roach (1992), 79 Ohio App.3d

194, 202-03, 607 N.E.2d 35.

In this case, Tolson was appointed as the GAL for the children and was not

dually appointed as their attorney. Tolson submitted a report to the magistrate, was

available for examination at the June 25, 2007 hearing, and was in fact cross-

examined by Nidkerson. Nothing in the record reflects that the GAL held an

inappropriate sway on the decision of the magistrate. The magistrate was free to

consider the information provided by the GAL, as well as the testimony elicited from

the examination and cross-examination of the GAL. The magistrate issued written

findings and fully considered all evidence and testimony presented. Thus Nickerson's

due process rights in relation to the GAL's report were not violated, and we should

defer to the magistrate's judgment.

For the foregoing reasons I respectfully concur in judgment only as to the third

assignment of error.

APPROVED:

MARY DeGENARO, Presiding Judge.

^ L q

COURTOFAPPEALB

STATE OF OHIO

SEP 3 0 2003^wOI.UFAMIlsHq CO. OHIO

) IN THE COURT OF APPEALS OF OHIO

COLUMBIANA COUNTY

DAVID BURNIP,

dDa ap,

PLAINTIFF-APPELLEE,

SEVENTH DISTRICT

))))

VS. ) CASE NO. 07-CO-42)

CHARMAINE NICKERSON, ) JUDGMENT ENTRY)

DEFENDANT-APPELLANT.

For the reasons stated in the opinion rendered herein, appellant's four

assignments of error are without merit and are overruled. It is the final judgment and

order of this Court that the judgment of the Common Pleas Court, Columbiana County,

Ohio is affirmed. DeGenaro, J., concurring, with separate concurring opinion.

Costs to be taxed against appellant.

("JUDGES.

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