Summary
In Gardini, the trial court found that a change in circumstances had occurred when the mother chose to remove the children from parochial school and place them in homeschooling.
Summary of this case from Miller v. ForneyOpinion
No. 90-764
Submitted May 14, 1991 —
Decided August 21, 1991.
APPEAL from the Court of Appeals for Geauga County, No. 89-G-1499.
On March 7, 1985, plaintiff-appellee, Lorraine Gardini, formerly known as Lorraine M. Moyer, and defendant-appellant, Robert J. Moyer, were divorced by a decree and judgment of the Division of Domestic Relations of the Court of Common Pleas of Geauga County which incorporated their separation agreement. Under the terms of the separation agreement, appellee received custody of the parties' three children: Andrew, born December 6, 1976; Audrey, born October 27, 1978; and Brian, born March 31, 1981.
The Moyer children had been enrolled in parochial school when they started kindergarten. They then attended parochial elementary school throughout the first, third, and fifth grades.
On or about October 1, 1987, appellee stopped paying her monthly tuition installments to her children's parochial school, Notre Dame Elementary. Although there appeared to be no delinquency on the appellant's part for child support, appellee decided it was her "God-given right" to home school her children in order to share time, learn and grow with them. Consequently, appellee decided to become unemployed in order to begin teaching her home schooling program.
Tuition for Notre Dame Elementary was never made part of the trial court's original divorce decree; however, appellant did voluntarily provide one half of the tuition until the two years immediately preceding appellee's action to terminate the children's enrollment at the school.
Appellee acknowledged at trial that her financial problems with Notre Dame Elementary School were not a consideration in choosing home schooling as an alternative form of education for her children.
On or before May 3, 1988, appellee began the process of applying for home schooling certification by receiving papers from the Geauga County School Board of Education ("board"). However, the appellant was not informed of appellee's plans until sometime in August 1988. According to the appellant, he felt that appellee's decision to provide home schooling was wrong and contrary to everything he had been brought up to believe in terms of education.
Appellant thereafter filed a motion for a change of custody. At a December 30, 1988 hearing on the motion, the parties to this action introduced their "[s]tipulations concerning Ray Blair's testimony." Blair, it seems, was the superintendent of the board at the time appellee began her home schooling program. The parties' stipulation stated in part that the Moyer children were participating in home schooling pursuant to the guidelines established by the board. Further, appellee was not qualified to teach within the board's jurisdiction. And, there was no way of evaluating an individual parent's ability to be a home schooling teacher.
Appellee testified that she had only one year of formal education taken at a community college. Also, appellee intended to be her children's only teacher since it was her "God-given right to home school * * * [her] children, to share time with them, learn with them, [and] grow with them."
At the December 30 hearing, psychologists testified concerning the Moyer children's environment and as to any present or potential harm to the children by appellee's decision to conduct her home schooling program. Nancy J. Huntsman, Ph.D., a court-appointed psychologist, versed in the area of child development, testified that the effects upon children, like the Moyer children, in keeping them out of institutionalized schooling are losses in "socialization" and "normalization" development. Furthermore, Dr. Huntsman testified that it was in the best interests of the children to be educated outside the home due to the potential harmful effects on the children caused by their conflicting loyalties to their custodial (appellee) and noncustodial (appellant) parents. Apparently, the children would begin to identify more closely with the custodial parent due to the inordinate amount of time they would be spending with her in the program.
With respect to appellee's motivation for the home schooling program, Dr. Huntsman concluded in her report to the court that:
"I am convinced that this decision is financially motivated, as well as being motivated by a desire/need to construct a close nuclear family that justifies and supports her [Mrs. Gardini's] values around homemaking and motherhood. I view the decision as an aberration, however, since in all other respects, the outcome of Mr. [ sic] Gardini's parenting to date has been excellent. That is to say, all three youngsters are doing well aside from their over-identification with her side of the conflict with their father. In my mind, there is no question that Mrs. Gardini bears the bulk of the responsibility for the conflict, much of which could be resolved by a simple understanding that the children's relationships with their father, which translate into `[t]ime with their father' is inviolate and more important than any other activity. * * *"
Susan Variakojis, a former school psychologist and presently an administrator for Westlake Public Schools, testified that her school system offered a wide range of quality instruction to its pupils.
Dr. Sam Peavey, Professor Emeritus from the School of Education at the University of Louisville, testified that he found appellee's home schooling curriculum to be excellent. Further, Dr. Peavey stated appellee had the necessary foundation to run a very successful home schooling program.
Appellant testified that it was his desire that the children be educated in a school system. And, if he were made custodian of his children they would attend the Westlake school system.
The trial court made the following determinations pertinent to this appeal in its judgment entry:
"5) The mother states that it is her `God-given' right to teach her children at home. She has not given any other reason for her actions. She has no other qualifications as a teacher.
"6) The defendant-father did not give his permission to take the children out of school.
"7) The plaintiff-mother presented the testimony of one witness (other than her own) who stated that home schooling would benefit the children more than public schooling. The court finds this conclusion to be without basis in fact and, considering its source, quite unreliable.
"8) The children and both parents have been examined by a specialist in the field of child psychology. She believes that the children will lose academically and socially because they have been withdrawn from school and that the loss will be all the more severe for the reason that the parents are divorced and home education will be one-sided. She believes that the decision of the mother to withdraw the children from school is selfishly motivated, inappropriate and unconscionable. The court shares this opinion and finds that the welfare of the children will be adversely affected should they remain in the custody of their mother under these circumstances.
"9) The defendant-husband can provide to the children the love, care and environment they require, and he has the facilities and desire to assume custody.
"Accordingly, the court concludes that a change has occurred in the circumstances of the children and that a change of custody is necessary to serve the best interest of the children; that the children's present environment endangers significantly their mental, emotional and social development; and that the harm likely to be caused by a change of environment is outweighed by the advantages of such change to the children.
"Custody of the children is, therefore, granted to the defendant-father with liberal visitations to the plaintiff-mother. It is so ordered and judgment is entered accordingly."
The court of appeals reversed the trial court's decision and stated, inter alia, that appellant failed to meet his burden of proof in showing that a significant present environmental harm exists with the children in appellee's custody. Accordingly, the appellate court found that the trial court abused its discretion as there was no evidence, as a matter of law, which was presented at trial that would satisfy the dictates of former R.C. 3109.04(B)(1)(c).
This cause is before the court upon the allowance of a motion to certify the record.
Robert R. Melnick, for appellee.
Thomas Boles and Edgar H. Boles, for appellant.
The central issues presented in this case are whether former R.C. 3109.04(B)(1)(c) (now found in R.C. 3109.04[E][1][a][iii]) provides for a modification of custody where the child's physical health or his mental, moral, or emotional development will be endangered by an environmental condition presented by the custodial parent. Second, we must determine, upon all facts and circumstances presented to the trial court in this matter, whether or not the trial court abused its discretion in its order changing the custody of these children. For the reasons that follow, we answer the first query in the affirmative and the second in the negative.
Appellant asserts that to warrant a change of custody, former R.C. 3109.04(B)(1)(c) does not require actual present harm inflicted upon a child from his present environment. We agree.
Former R.C. 3109.04(B) provided in pertinent part:
"(1) * * * [T]he court shall not modify a prior custody decree unless it finds, based on facts that have arisen since the prior decree or that were unknown to the court at the time of the prior decree, that a change has occurred in the circumstances of the child, [or] his custodian * * * and that the modification is necessary to serve the best interest of the child. In applying these standards, the court shall retain the custodian * * * designated by the prior decree, unless one of the following applies:
"* * *
"(c) The child's present environment endangers significantly his physical health or his mental, moral, or emotional development and the harm likely to be caused by a change of environment is outweighed by the advantages of the change of environment to the child."
Effective April 12, 1990, former R.C. 3109.04(B)(1)(c) was amended and the clause containing the term "present environment" was deleted. As amended and renumbered, R.C. 3109.04(E)(1)(a)(iii) provides: "The harm likely to be caused by a change of environment is outweighed by the advantages of the change of environment to the child."
In construing R.C. 3109.04, this court has previously stated with respect to a modification of custody that "[t]here is no question that the paramount and overriding concern of the * * * statute is the best interests of the child, or in this case children, and that it is the court's function to see that the children's best interests are protected." Birch v. Birch (1984), 11 Ohio St.3d 85, 87, 11 OBR 327, 330, 463 N.E.2d 1254, 1257; see, also, Boyer v. Boyer (1976), 46 Ohio St.2d 83, 87, 75 O.O.2d 156, 158, 346 N.E.2d 286, 288. Consistent with the foregoing approach and a reasonable construction of the statute, we do not read former R.C. 3109.04(B)(1)(c) so narrowly as to require an actual present danger to the child (or children) in his or her present environment in order to establish grounds for a modification of custody. Instead, all that is required is a showing made by the party seeking a modification of custody that some action by the custodial parent presently endangers the child or, with a reasonable degree of certainty, will manifest itself and endanger the child in the future if the child is not removed from his or her present environment immediately. It would be illogical to require the noncustodial party to prove an actual present danger to the child where it is beyond speculation that the child's physical health, mental, moral, or emotional development will be adversely affected in the future by the present actions of the custodial parent.
In our inquiry in this case we are cognizant that "[i]n proceedings involving the custody and welfare of children the power of the trial court to exercise discretion is peculiarly important. The knowledge obtained through contact with and observation of the parties and through independent investigation can not be conveyed to a reviewing court by [the] printed record." Trickey v. Trickey (1952), 158 Ohio St. 9, 13, 47 O.O. 481, 483, 106 N.E.2d 772, 774. Moreover, it is for the trial court to resolve disputes of fact and weigh the testimony and credibility of the witnesses. Pasqualone v. Pasqualone (1980), 63 Ohio St.2d 96, 17 O.O.3d 58, 406 N.E.2d 1121. Thus, "[w]here an award of custody is supported by a substantial amount of credible and competent evidence, such an award will not be reversed as being against the weight of the evidence by a reviewing court." Bechtol v. Bechtol (1990), 49 Ohio St.3d 21, 550 N.E.2d 178, syllabus.
In the case sub judice, our careful review of the record reveals that there was a substantial amount of credible and competent evidence to show that the children are endangered both by their present environment and the inevitable effects of their present environment upon their future development. Therefore, we find that there was a sufficient quantum of evidence to support the trial court's award of custody to appellant.
We wish to make it clear that we need not address, and do not address, the merits of the parties' arguments as to the propriety of home schooling. Rather, we let stand the decision of the trial court that, under the circumstances of this case, it was inappropriate to place the Moyer children in a home schooling program.
Accordingly, for the foregoing reasons, we reverse the judgment of the court of appeals and reinstate the trial court's decision.
Judgment reversed.
MOYER, C.J., SWEENEY, DOUGLAS, H. BROWN and RESNICK, JJ., concur.
WRIGHT, J., dissents.
This is a difficult case. We are asked today, as the lower courts were asked before us, to determine whether a custodial parent may home school her, or his, children over objections from the non-custodial parent. The laws of Ohio grant educational decisions to the custodial parent. Therefore, if the non-custodial parent objects to home schooling, a change of custody appears to be the remedy.
Teaching children in the home predates communal schooling by centuries. Home schooling, however, is a relatively recent innovation since the state took over responsibility for education. With our modern understanding of "socialization" and "normalization" of children, and our now firmly rooted tradition of communal education, many are skeptical of home schooling. This has to be true of judges whose professions make personal and societal interactions an imperative and whose own education was by necessity filled with personal interactions.
This skepticism towards home schooling appears to have carried the day. While I admit to sharing this skepticism, I cannot apply my personal predeliction to the facts of this case.
Under former R.C. 3109.04(B)(1)(c), applicable here, custody modification requires a finding that the "child's present environment endangers significantly his [or her] * * * mental, moral, or emotional development * * *."
The evidence in this case supports a finding of "significant endangerment" only if the opinion of the court-appointed psychologist is accepted without reservation. This opinion is based primarily on the belief that home schooling is inherently harmful to the normal development of children — all children. The psychologist also opined that this effect is even worse where there has been a divorce. The psychologist expressed little concern for these children other than through her general condemnation of home schooling. Therefore, assertions by the majority to the contrary notwithstanding, it appears a trial court can never abuse its discretion in ordering a change of custody where the custodial spouse opts for home schooling.
I consider such a result unwarranted on the basis of the record before us. The evidence in this case is that Mrs. Gardini is a fit and good mother with normal, "delightful" children. The state, which sanctions and regulates home schooling, approved her application for this alternative form of education. No household provides for perfect "normalization" or "socialization," nor are schools perfect at this task. Further, wrenching children from one household to another is also detrimental to them.
I sympathize with Mr. Moyer. I would seek custody, too, if I were in his shoes, based, at least in part, on an inherent distrust of home schooling. However, I cannot condone our indictment today of a state-sanctioned, educational alternative before giving it any chance of success. Likewise, to apply the ultimate sanction of change in custody is far too harsh.
One year from now it may be possible for Mr. Moyer to show specific harm to his children as a result of home schooling. At that time, he has a remedy, such as change of custody. However, that time has not come. Therefore, I respectfully dissent from the judgment of the majority.