author: PYLE, Judge.

text:
    In the matter of the ADOPTION of M.S.; C.L.S., Appellant/Respondent, v. A.L.S., Appellee/Petitioner.
    No. 20A03-1306-AD-217.
    Court of Appeals of Indiana.
    June 13, 2014.

      David W. Stone IV, Stone Law Office & Legal Research, Anderson, IN, Attorney for Appellant.
    Bridgette F. Greene, Elkhart, IN, Attorney for Appellee.
   OPINION

PYLE, Judge.

STATEMENT OF THE CASE

C.S. (“Mother”) appeals the trial court’s order granting A.S.’s (“Stepmother”) petition to adopt Mother’s minor daughter, M.S.

We affirm.

ISSUE

Whether the trial court erred in granting Stepmother’s petition to adopt M.S.

FACTS

Mother married Mi.S. (“Father”) and had two children with him — M.S. and J.S. M.S. was born in July of 2003 and was nine years old at the time of the adoption hearing. Shortly after M.S.’s birth, on August 14, 2003, Mother filed for dissolution of her marriage to Father. The Elkhart Superi- or Court 1 (“divorce court”) approved a decree of dissolution on January 29, 2007, and granted Mother custody of the children.

After a visitation hearing on April 9, 2009, Mother and Father both submitted to drug screens. Father’s results were negative, but Mother tested positive for marijuana, methamphetamines, and amphetamines. As a result, on April 13, 2009, the divorce court entered a finding of direct contempt of court against Mother and granted Father custody of both children, although it granted Mother supervised visitation with the children at Child and Parenting Services (“CAPS”) three times per month. The divorce court also ordered Mother to pay child support in the amount of $50.00 per week, effective April 17, 2009, and directed her to schedule an addictions assessment and to complete any recommended treatments for her addictions.

Following the divorce court’s April 13, 2009 order, Mother participated in a few supervised visits with the children at CAPS. However, at an October 30, 2009 hearing, Mother again tested positive for marijuana, and the divorce court terminated her visitation rights. Mother has not had personal contact with M.S. since that time, although she left messages on the voicemail of M.S.’s guardian ad litem at CAPS, Mary Raatz (“Raatz”), telling Raatz that she wanted to see M.S. However, Raatz felt that Mother had not demonstrated that she had completed the addictions assessment or treatment the divorce court had ordered her to complete before she could resume visitation. At a review hearing on February 12, 2010, Mother requested the divorce court to reinstate parenting time, but the court denied the request. Otherwise, Mother has not made any attempts to reinstate parenting time or contact with M.S.

With respect to her court-ordered services, Mother completed an addictions assessment at the Center for Problem Resolution (“CPR”) on November 17, 2009. CPR recommended inpatient treatment with a program called Women’s Journey and agreed to provide Mother with outpatient treatment until she could be admitted to the program. Mother completed a phone assessment for Women’s Journey but did not meet the program’s criteria for admittance because she denied having an addiction problem. Thereafter, Mother attended two treatment sessions at CPR. After her second session, she claimed to be ill for multiple sessions but was unable to provide a doctor’s note verifying her illness, even though CPR had referred her to a free medical clinic. Mother never attended another session or contacted the program again, and on December 21, 2009, CPR discontinued her treatment with an “unsatisfactory discharge.” (Ex. 6).

During this time, Mother was self-employed and lived in a seven bedroom home with a $1600 per month mortgage payment. To help pay for the mortgage, Mother rented out rooms and ran a dog boarding and grooming business at the residence. However, the residence was ultimately foreclosed, and Mother was forced to close her dog boarding and grooming business.

Beginning in October of 2010, before the property was foreclosed, Mother’s mother (“Grandmother”) began making payments to cover the residence’s mortgage. She also helped Mother consolidate her bills and pay back her debts by opening an account with a credit consolidation company, Elite Financial. Every month Grandmother paid Elite Financial, and in turn Elite Financial allocated money to Mother’s various debts and bills. In exchange for Grandmother’s payments, Grandmother wanted Mother to “rebuild her life.” (Tr. 303).

Mother also began working for Grandmother’s company, All Needs Senior Service, on a flexible basis, and her income from this work went to Elite Financial and to repay Grandmother. Mother’s hours at All Needs Senior Services fluctuated — in part from the nature of her work, which was on a per-project basis, and in part because Mother suffered medical issues that limited her ability to work during periods of 2011. When Mother was suffering from her medical issues, she worked to the extent she was able, including up to fifteen to twenty hours per week while she was hospitalized. Although Mother’s hours varied, Grandmother thought that Mother began “productively working” towards the end of 2011, by which Grandmother meant that Mother was able to begin repaying the money Grandmother had spent on her behalf. (Tr. 309).

In April of 2011, Grandmother purchased a home for Mother on a land contract, and Mother moved from Bristol, Indiana to Cassopolis, Michigan to live in the home. Grandmother made a down payment of $5000 on the house and thereafter paid $468.86 per month for its mortgage. In addition, Grandmother gave Mother money to remodel the house, and Mother did “quite a bit of work” towards that end. (Tr. 189). Grandmother also gave Mother a dog, a cat, and two horses and pays to maintain them.

Meanwhile, in 2010 and 2011, Mother was convicted of a felony and violated her probation for the felony. On February 16, 2010, the State charged Mother with: (1) Class D felony possession of chemical reagents or precursors with the intent to manufacture a controlled substance; (2) Class A misdemeanor possession of marijuana; and (3) Class A misdemeanor possession of paraphernalia. On June 10, Mother pled guilty to Class D felony maintaining a common nuisance pursuant to a plea agreement, and the Elkhart Superior Court 6 (“criminal court”) sentenced her to eighteen (18) months of probation. Subsequently, on August 5, 2011, the criminal court found that Mother had violated her probation by committing Class B misdemeanor cruelty to an animal. As a result, on September 7, 2011, the court revoked her probation and placed her in Community Corrections. However, on September 29, 2011, the court authorized Mother to take a furlough from her sentence due to her medical condition. On March 5, 2012, Mother’s sentence was modified to community corrections on ankle bracelet monitoring, and Mother completed her sentence on October 14, 2012.

Throughout the time that Father maintained custody of M.S., from 2009 until 2013, Mother made inconsistent child support payments. In October of 2009, Mother filed a type-written minute sheet petitioning the divorce court for a modification of its child support order. The divorce court held a hearing on the petition but did not modify Mother’s child support obligations. Instead, it determined that her child support arrearage totaled $1,150. Subsequently, Mother paid her child support sporadically from October 29, 2009 until September 17, 2010 in nine payments, totaling $1,400. After September 17, 2010, she did not make any more payments in 2010 and made only one payment of $300 on January 12, 2011. Thereafter, she did not make another payment until January 18, 2012, over a year later. On January 18, she paid $100. After January 18, she made twenty-three additional payments of $70.00 each in 2012 and one payment of $70.00 at the beginning of 2013.

On June 11, 2011, Father married Stepmother. Approximately six months later, on December 12, 2011, Stepmother filed a petition to adopt M.S. In the petition, Stepmother argued that Mother’s consent was not required for the adoption because she had failed to support M.S. for over a year and had failed to communicate with M.S. for at least a year prior to the petition. On February 29, 2012, Mother filed an amended motion to contest the adoption. The trial court held a hearing on the petition on January 9, 2013 and February 25, 2013, and then took the matter under advisement.

Subsequently, on May 20, 2013, the trial court found that Mother’s consent was not required for the adoption and granted Stepmother’s petition because: (1) Mother failed to pay support for at least one year; (2) Mother failed to communicate with M.S. for at least one year; and (3) the adoption was in M.S.’s best interests. With respect to the issue of whether Mother had failed to support M.S. for over a year, the trial court aggregated the amount of support Mother owed prior to January 12, 2011, which it found totaled $2,900 — the sum of the $1,150 in arrearage Mother had accrued prior to October 30, 2009; $950 in arrearage for the period between October 30, 2009 and September 17, 2010; and $800 in arrearage for the period between September 17, 2010 and January 12, 2011. The trial court divided this total by Mother’s required weekly support amount of $50 and determined that she had not paid support for a total of fifty-eight weeks, or just over one year.

Although the trial court concluded that Mother had not paid support for over a year, it noted that there is a statutory allowance for situations when there is a justifiable cause for the lack of support. Still, the trial court did not find that this allowance applied to Mother. It commented that Mother’s claims that her illness and the loss of her pet grooming business prevented her from paying support were “simply not well taken” in light of the fact that Mother had maintained gainful employment; had lived on land purchased by Grandmother in a large house where she rented out rooms; and had subsequently lived in another home purchased by Grandmother. (App.12). The trial court also noted that it found much of Mother and Grandmother’s testimonies regarding Mother’s income “evasive.” (App.13). It also stated that it did not find Grandmother’s system of equating her payments with Mother’s work credible. Finally, the trial court commented that Mother maintained “animals which she eared for and paid to keep, including dogs, a cat and a horse,” during a time when she was paying little or no child support. (App.13). Based on these factors, the court held that, even in recognition of the times Mother had suffered medical hardships, there was no evidence to demonstrate that she could not make the required support payments — especially during the time period before her medical hardships.

With respect to the issue of whether Mother had failed to communicate with M.S., the trial court found that even though Mother’s lack of contact was court-ordered, the order was based on Mother’s repeated drug screen failures and noncompliance with court orders. Therefore, the divorce court’s suspension of Mother’s parenting time was a result of her own choices and did not excuse her lack of communication. Likewise, the trial court noted that after the divorce court denied Mother’s request for parenting time on February 8, 2010, she never again sought parenting time. Although her reason for failing to seek parenting time was that her attorney had advised her she needed to clear up criminal matters first, the criminal matters were a result of her own actions. Accordingly, the trial court held that it was again Mother’s choices that prevented her from resuming parenting time. Based on this conclusion, the trial court found that that Mother’s consent was not required for the adoption.

Finally, the trial court found that the adoption was in M.S.’s best interests because she has thrived under Stepmother’s care and sees her as a maternal figure. The trial court noted that the testimony that M.S. and Stepmother have a “really close” relationship was credible, and the court also commented that Stepmother provides M.S. with a stable environment because she has full time employment, does not have a criminal history, and has a sound relationship with Father. In light of these factors, the trial court determined that the adoption was in M.S.’s best interests and granted Stepmother’s petition. Mother now appeals the trial court’s order. We will provide additional facts as necessary.

DECISION

On appeal, Mother challenges the trial court’s judgment granting Stepmother’s petition to adopt M.S. without her consent. Generally, a trial court may only grant a petition to adopt a child born in wedlock who is less than eighteen years of age if “each living parent” consents to the adoption. Ind.Code § 31-19-9-1. However, Indiana Code § 31-19-9-8 provides that consent to an adoption is not required from:

(2) A parent of a child in the custody of another person if for a period of at least one (1) year the parent:
(A) fails without justifiable cause to communicate significantly with the child when able to do so; or
(B) knowingly fails to provide for the care and support of the child when able to do so as required by law or judicial decree.

The trial court held that both of these provisions applied to Mother because she had failed to pay the equivalent of over fifty-eight weeks of her court-ordered child support payments and failed to communicate with M.S. for at least a year.

Mother challenges both of these conclusions, arguing that: (1) the trial court erred in holding that she had failed to support M.S. for over a year because the trial court improperly aggregated her ar-rearage so that it was equivalent to a year of missed support payments, whereas the trial court should have determined whether she had failed , to pay support for a consecutive calendar year; (2) the trial court erred in finding that she had the ability to pay support and chose not to do so; and (3) the trial court erred in finding that she had failed to communicate with M.S. because a court order prevented her from communicating. Finally, Mother also argues that the trial court erred in determining that Stepmother’s adoption was in M.S.’s best interests. Because we find that the trial court properly determined that Mother had failed to provide support to M.S., we will not address Mother’s argument regarding her failure to communicate with M.S. However, we will address Mother’s arguments regarding her child support payments and M.S.’s best interests, in turn.

I. Child Support

There are two components to Mother’s child support argument. First, she argues that the trial court erred when it determined that she had failed to support M.S. for a year, because she contends that the term “year” in Indiana Code § 31-19-9-8 should mean a calendar year rather than a year’s worth of arrearage. Second, she argues that even if she did not support M.S. for a year, Indiana Code § 31-19-9-8 only applies to parents who are “able to do so,” and she was not financially able to provide support. See I.C. § 31-19-9-8(a)(2)(B).

In an adoption proceeding, the petitioner is required to prove by clear and convincing evidence that a non-custodial parent’s consent is not required for the adoption. In re Adoption of K.S., 980 N.E.2d 385, 388 (Ind.Ct.App.2012). In reviewing a judgment requiring proof by clear and convincing evidence, we may not impose our view as to whether the evidence is clear and convincing but must determine, by considering only the probative evidence and reasonable inferences supporting the judgment, whether a reasonable trier of fact could conclude that the judgment was established by clear and convincing evidence. In re Adoption of M.A.S., 815 N.E.2d 216, 220 (Ind.Ct.App.2004). Further, we may not reweigh evidence or assess witness credibility. Id.

A. Aggregation of Missed Support Payments

In support of her argument that a trial court may not aggregate missed support payments to find that a parent has failed to support his or her child for over a year, Mother cites to authority from other jurisdictions, including Montana and Colorado. However, we need not address Mother’s argument because even if we were to interpret “year” to mean a continuous calendar year, Mother still failed to support M.S. for over a year. In In re Adoption of J.T. A., which Mother cites for a different purpose, we held that “the relevant time period” for determining whether a non-custodial parent has supported his or her child, “is not limited to either the year preceding the hearing or the year preceding the petition for adoption, but is any year in which the parent had an obligation and the ability to provide support, but failed to do so.” In re Adoption of J.T.A., 988 N.E.2d 1250, 1255 (Ind.Ct.App.2013) (emphasis added), reh’g denied, trans. denied. Here, Mother failed to pay support between January 12, 2011, and January 18, 2012, which is a period longer than a calendar year.

Moreover, this decision is in line with the Indiana Supreme Court’s opinion in Adoption of Infants Reynard, where the Supreme Court interpreted the issue of consent in a prior version of the adoption statute and held that the term “one year” should not be interpreted strictly. See In re Adoption of Infants Reynard, 252 Ind. 632, 251 N.E.2d 413, 416 (1969). The statute at issue in Adoption of Infants Rey-nard was similar to the current adoption statute. It stated that consent was not required from any parent that “ha[d] failed to pay any support money for a period of one year....” Id. The Supreme Court addressed whether a parent’s “token payment” of $75.00 during the year immediately prior to the filing of the petition for adoption was sufficient to comply with the terms of the statute and thus necessitate the father’s consent. Id. The Supreme Court held that this payment was not sufficient, in spite of the fact that it was made in the calendar year prior to the petition. Id. The Court’s reasoning was:

In construing the statute here under consideration which dispenses with consent in adoption proceedings under certain conditions, we are mindful of [the natural right of the parent to his child], but we do not propose to give the statute such a strict interpretation as to make it ineffective and inoperable. To hold that under the statute there must be a complete refusal or failure to pay any sum whatever for one year before consent would be dispensed with would be to disregard completely the obligation which a parent has to provide support and maintenance for his child. Such a holding would permit an unworthy parent, in complete disregard of his obligation to his child, to prevent an adoption which might be to the best interest of the child by making a token payment of a nominal sum once each year insufficient to provide for maintenance and support. Such a strict construction would lead to absurd consequences and make the statute meaningless and ineffective.

Id. at 417. Likewise, we find that construing Indiana Code § 31-19-9-8 here to hold that there must be a complete refusal or failure to pay any sum of money for one year before the filing of a petition could lead to absurd consequences. Therefore, we instead follow the Supreme Court’s more operable interpretation.

Under this interpretation, Mother failed to provide sufficient support for M.S. Between September 17, 2010 and January 18, 2012, she only made one payment of $300. While this amount exceeds the $75.00 payment in Adoption of Infants Reynard, it is only equivalent to six weeks of Mother’s support payments, and it is the only payment Mother made over a period of one year and four months. In this light, it is clear that the $300 was “insufficient to provide for [M.S.’s] maintenance and support.” See Adoption of Infants Reynard, 251 N.E.2d at 417.

B. Ability to Pay

Although Mother failed to support M.S., Indiana Code § 31-19-9-8 specifies that consent is only unnecessary for an adoption petition when a parent “fails to provide for the care and support of the child when able to do so.” (Emphasis added). Mother points to the second half of this provision and contends that she was not able to provide support due to the loss of her pet grooming and boarding business and her medical issues.

In this Court’s opinion denying rehearing in In re Adoption of Augustyniak, 508 N.E.2d 1307, 1308 (Ind.Ct.App.1987), reh’g denied, trans. denied, we held:

A petitioner for adoption must show that the non-custodial parent had the ability to make the payments which he failed to make. This ability cannot be adequately shown by proof of income standing alone. To determine that ability, it is necessary to consider the totality of the circumstances. In addition to income, it is necessary to consider whether that income is steady or sporadic and what the non-custodial parent’s necessary and reasonable expenses were during the period in question.

Here, Mother claims that she spent $80,000 on medical expenses and also suffered financially due to the loss of her business. The trial court noted, though, that Mother maintained consistent gainful employment, first through her business, and then as an employee for Grandmother’s senior care business. While Mother’s hours varied, she was paid $10.00 to $12.00 per hour and even worked fifteen to twenty hours a week while she was hospitalized. Moreover, Mother was able to live in a house purchased and paid for by Grandmother, redecorate that house, and support multiple pets. The trial court concluded that “substantial monies were spent on the home that could have been directed towards child support.” (App.12). The trial court also stated that it found Mother and Grandmother’s testimonies regarding Mother’s income “evasive” and “lack[ing] some credibility.” (App.13). Finally, the trial court commented that, even though Mother had medical expenses, her illness did not account for why she had failed to provide sufficient support prior to August of 2011. As we may not reweigh the evidence or judge the credibility of witnesses, we conclude that this evidence is clear and convincing proof that Mother did not support M.S. when able to do so. As a result, we conclude that the trial court did not err in determining that Mother’s consent was not required for the adoption.

II. Best Interests

Next, Mother challenges the trial court’s conclusion that the adoption was in M.S.’s best interests. The primary concern in every adoption proceeding is the best interests of the child. In re Adoption of M.L., 978 N.E.2d 1216, 1224 (Ind.Ct.App.2012). Even if a court determines that a natural parent’s consent is not required for an adoption, the court must still determine whether adoption is in the child’s best interests. See I.C. § 31-19-11 — 1(a)(1).

The adoption statute does not provide guidance for which factors to consider when determining the best interests of a child in an adoption proceeding, but we have noted that there are strong similarities between the adoption statute and the termination of parental rights statute in this respect. See In re Adoption of M.L., 973 N.E.2d 1216, 1224 (Ind.Ct.App.2012) (holding that the adoption statutes and the termination statutes provide similar balances between parental rights and the best interests of the children; also holding that termination cases provide “useful guidance as to what makes a parent ‘unfit’”). In termination eases, we have held that the trial court is required to look to the totality of the evidence to determine the best interests of a child. In re I.A., 903 N.E.2d 146, 155 (Ind.Ct.App.2009). Relevant factors include, among others, a parent’s historical and current inability to provide a suitable environment for the child, In re J.C., 994 N.E.2d 278, 290 (Ind.Ct.App.2013); the recommendations of the child’s case worker or guardian ad litem; and the child’s need for permanence and stability, see A.J. v. Marion Cnty. Office of Family and Children, 881 N.E.2d 706, 718 (Ind.Ct.App.2008).

When reviewing the trial court’s ruling in an adoption proceeding, we will not disturb that ruling unless the evidence leads to but one conclusion, and the trial court reached the opposite conclusion. In re Adoption of M.L., 973 N.E.2d at 1222. As we stated above, we do not reweigh the evidence on appeal, but instead examine the evidence most favorable to the trial court’s decision, together with reasonable inferences drawn therefrom. Id. Moreover, we generally give considerable deference to the trial court’s decision in family law matters, as we recognize that the trial court is in the best position to judge the facts, determine witness credibility, get a feel for the family dynamics, and get a sense of the parents and their relationship with their children. Id.

Mother’s primary arguments are that the adoption was not in M.S.’s best interests because: (1) Stepmother’s petition to adopt M.S. was based on an unnecessary concern that she would lose custody of M.S. if something happened to Father; (2) the fact that M.S. is thriving in Stepmother’s care does not justify terminating Mother’s parental rights; and (3) a child’s need for stability and permanence may not be the sole reason for terminating a parent-child relationship. With regard to the first argument, Mother does not clarify how Stepmother’s motivations for filing the adoption petition relate to our consideration of M.S.’s best interests, and she has not cited any precedent stating that a petitioner must have a “necessary” concern for filing the petition. Accordingly, we find that Mother’s argument is waived under Appellate Rule 46 for a failure to state a cogent argument, and we will not address her contentions.

With regard to Mother’s second and third arguments, it might be true that neither of those factors alone could indicate that Stepmother’s adoption would be in M.S.’s best interests. However, multiple additional factors support the trial court’s judgment, and its decision did not rest solely on either the fact that M.S. has thrived in Stepmother’s care or the fact that M.S. needs stability and permanence. Instead, the evidence demonstrates that, as we determined above, Mother failed to support M.S. for extended periods of time and also did not communicate with M.S. or make consistent attempts to reinstate her parenting time for several years. Mother also has a criminal history, a history of drug abuse, and a history of failing to follow court orders.

In contrast, Stepmother has a “really close” relationship with M.S., helps her with her homework, and attends M.S.’s activities, including a travel volleyball league and church. (App.15). M.S. is thriving under Stepmother’s care and is an honor roll student. Stepmother has never been convicted of a crime and has full-time employment. She also wants to adopt M.S. and cares for her deeply. M.S.’s guardian ad litem, Raatz, testified that M.S. looks to Stepmother to fulfill the maternal role in her life. According to Raatz, M.S. missed Mother but has settled into the home and feels loved. Finally, Raatz testified that the adoption is in M.S.’s best interests and will give her a sense of peace. As we note above, a guardian ad litem’s recommendation is relevant to support a finding that adoption is in a child’s best interest. See A.J., 881 N.E.2d at 718.

In light of the above factors, we conclude that the trial court did not err in determining that adoption was in M.S.’s best interests. As we have also found that Mother’s consent was not required for the adoption, we likewise conclude that the trial court did not err in granting Stepmother’s petition to adopt M.S.

Affirmed.

MATHIAS, J., and BRADFORD, J., concur.

      . J.S. was nineteen at the time of the adoption hearing, but only the adoption of M.S. is at issue in this case.

      . The child support payment history that is a part of the trial record only details the payments Mother made prior to January 9, 2013.

      . It is not clear why the trial court limited its analysis to the support Mother owed prior to January 12, 2011, and did not include her missed payments after that date.

      .Although this does not change the import of the trial court’s reasoning, we note that Mother testified she owned a dog, a cat, and two horses, rather than “dogs, a cat, and a horse.” (App.13).

      . Mother also challenges the trial court’s conclusion regarding the first prong of Indiana Code § 31-19-9-8, that she failed without justifiable cause to communicate significantly with M.S. when able to do so. However, the provisions of Indiana Code § 31-19-9-8 are written in the disjunctive and each provide independent grounds for dispensing with parental consent. In re Adoption of K.S., 980 N.E.2d 385, 388 (Ind.Ct.App.2012). As we have already found that Mother’s consent was unnecessary as a result of her failure to support M.S., we need not address her second argument regarding her failure to communicate with M.S.


source: Caselaw Access Project

author: RILEY, Judge.

license: Public Domain

text:
    Traci NELSON, Appellant-Petitioner, v. Tony NELSON, Appellee-Respondent.
    No. 41A01-1309-DR-424.
    Court of Appeals of Indiana.
    June 26, 2014.

      Donna Jameson, Greenwood, IN, Attorney for Appellant.
    Robert D. Haas, Blankenship & Haas, Indianapolis, IN, Attorney for Appellee.
   OPINION

RILEY, Judge.

STATEMENT OF THE CASE

Appellant-Respondent, Traci Nelson (Mother), appeals the trial court’s Order denying her motion for relocation and modifying custody of her minor child, T.N. (the Child), in favor of Appellee-Petitioner, Anthony Nelson (Father).

We affirm.

ISSUE

Mother raises two issues on appeal, which we consolidate and restate as the following single issue: Whether the trial court erred by denying Mother’s motion for relocation to South Carolina.

FACTS AND PROCEDURAL HISTORY

On February 28, 2005, Mother and Father were married and established their home in Indiana. On July 19, 2005, the couple welcomed the Child. After only two years of marriage, the couple separated in January 2007, and Father subsequently filed a petition to dissolve marriage. On August 9, 2007, the trial court entered a Decree of Dissolution and adopted the Settlement Agreement reached by the parties. The Decree granted both parties joint legal custody of the Child, with Mother having primary physical custody. In addition, Father was awarded parenting time on alternate weekends, from Friday 6:00 PM through Sunday 6:00 PM, and one overnight during the week.

On November 12, 2010, Mother filed a notice of intent to move to South Carolina, citing she could not obtain employment in her field of work in Indiana. Prior to filing her notice, Mother sold medical equipment for Home Health Depot, Inc., but her employment terminated on October 11, 2010. Mother’s employment contract contained a non-compete clause; therefore, she could not work in a comparable field in Indiana for a period of at least one year.

On February 7, 2011, Father filed an objection to the proposed relocation. On April 19, 2011, Mother filed an amended notice of intent to move citing that she had received an offer from Tuomey Healthcare Systems (Tuomey), located in South Carolina, to work as a physical therapist, on the condition that she passed the National Physical Therapist Assistant Exam. Mother also stated that she intended to move to South Carolina on May 27, 2011. On May 10, 2011, Father filed a verified response and objection to Mother’s amended notice of intent to move, a motion to modify custody and address parenting time, and a motion for a hearing. Prior to the trial court’s approval, Mother relocated to South Carolina. Mother, however, failed the National Physical Therapist Assistant Exam, therefore, she lost the employment opportunity with Tuomey. In need of a job, Mother accepted a medical sales job with Ronco Specialized Systems Inc. in Columbus, South Carolina.

On July 29, 2011, the trial court held an emergency hearing to determine temporary custody of the Child pending a full evidentiary hearing. On August 9, 2011, the trial court issued an Order granting Father temporary custody of the Child and ordered Mother to bring the Child back to Indianapolis. Mother complied and returned the Child to Indiana. On March 5, 2013, and on June 25, 2013, the trial court held an evidentiary hearing on Mother’s motion to relocate, and Father’s objection thereof and Father’s motion to modify custody. On August 3, 2013, the trial court issued its Order concluding:

(1) Mother has not met the burden of proof required of her [with] regard to her relocation request, and the [court] finds the same is not [in] good faith ...; (2) Father has met the burden of proof required of him in regard to his objection to the move [and] that the relocation is not in the best interest of the minor child; (3) Considering the statutory factors relevant to custody, the [court] finds both parties should share joint legal custody of the minor child and [that] Father should be granted sole physical custody with Mother having parenting time; and (4) Child support should be modified herein accordingly.

(Appellant’s App. pp. 19-20).

Mother now appeals. Additional information will be provided as necessary.

DISCUSSION AND DECISION

I. Standard of Review

Here, the parties did not request for specific findings of facts and conclusions pursuant to Indiana Trial Rule 52(A). However, the trial court sua sponte made findings on whether Mother’s relocation request was made in good faith and for a legitimate purpose and whether the proposed relocation would be in the Child’s best interest. As such, we employ a two tiered standard of review:

[W]e must first determine whether the record supports the factual findings, and then whether the findings support the judgment. On appeal, we will not set aside the findings or judgment unless they are clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge the credibility of witnesses. We therefore consider only the evidence favorable to the judgment and the reasonable inferences flowing therefrom, and we will neither reweigh the evidence nor assess "witness credibility. A judgment is clearly erroneous when there is no evidence to support the findings, the findings do not support the judgment, or the trial court applies the wrong legal standard to properly found facts.

T.L. v. J.L., 950 N.E.2d 779, 783 (Ind.Ct.App.2011) (quoting M.S. v.C.S., 938 N.E.2d 278, 281-82 (Ind.Ct.App.2010)).

In addition, our supreme court has articulated an unequivocal policy of “granting latitude and deference to our trial judges in family law matters.” Swadner v. Swadner, 897 N.E.2d 966, 971 (Ind.Ct.App.2008) (quoting In re Marriage of Richardson, 622 N.E.2d 178, 178 (Ind.1993)). “[A]ppellate courts ‘are in a poor position to look at a cold transcript of the record, and conclude that the trial judge, who saw the witnesses, observed their demeanor, and scrutinized their testimony as it came from the witness stand, did not properly understand the significance of the evidence.’” D.C. v. J.A.C., 977 N.E.2d 951, 956-57 (Ind.2012) (quoting Kirk v. Kirk, 770 N.E.2d 304, 307 (Ind.2002)). It is well established that there should be finality in matters concerning the custody of a child. Baxendale v. Raich, 878 N.E.2d 1252, 1258 (Ind.2008). Accordingly, on review, “we ‘will not substitute our own judgment if any evidence or legitimate inferences support the trial court’s judgment.’ ” T.L. v. J.L., 950 N.E.2d 779, 784 (Ind.Ct.App.2011) (quoting Baxendale, 878 N.E.2d at 1257-58), reh’g denied.

II. Relocation

Pursuant to Indiana Code section 31-17-2.2-l(a), “[a] relocating individual must file a notice of the intent to move with the clerk of the court that: (1) issued the custody order or parenting time order; or (2) ... has jurisdiction over the legal proceedings concerning the custody of or parenting time with a child; and send a copy of the notice to any nonrelocating individual.”

A nonrelocating parent may object to relocation in either of two ways: by filing a motion to modify the custody order or by filing, within sixty days of receipt of the notice, a motion to prevent relocation of the child. Upon request of either party, the trial court shall hold a full evidentiary hearing to grant or deny a motion to prevent relocation of the child. “The relocating individual has the burden of proof that the proposed relocation is made in good faith and for a legitimate reason.” If the relocating parent meets that burden, “the burden shifts to the nonrelocating parent to show that the proposed relocation is not in the best interest of the child.”

T.L., 950 N.E.2d at 784. (internal references omitted).

A. Good Faith and Legitimate Reason

The Relocation Statute “requires that a legitimate reason be objectively shown [] and [,] by requiring that the relocation be in good faith, demands that the objective reason be more than a mere pretext.” T.L., 950 N.E.2d at 787. In general, our court has found that employment opportunities, financial considerations, and proximity to family are legitimate reasons to justify a relocation. See id. at 787-88.

Mother argues that her desire to move to South Carolina was in good faith. Mother’s initial notice of her intent to relocate stated that she was unable to obtain employment in a similar field in Indiana; thus, she anticipated she would move to South Carolina if she established employment. The amended notice of intent to relocate stated that she had received a job offer from Tuomey to work as a physical therapist. Father however counters Mother’s grounds for relocation by stating that because Mother was not barred from working in Indiana as a physical therapist, she should have sought employment here, as there were many job openings in that field.

The trial court issued a single finding that the relocation was not made in good faith. Finding 1 stated:

1. The [cjourt finds Mother has not met her burden of proof in that she has not shown good faith or legitimate reason in relocating to South Carolina pursuant to Ind.Code 31-17-2.2-5(c). While the [cjourt recognizes the importance of family ties and family relationships, the [c]ourt finds that there was not a good faith and legitimate reason for Mother to relocate to South Carolina other than her desire to do so without sufficient concern for the effect of the move on the child’s wellbeing. However, even if the [e]ourt were to have found good faith, the [c]ourt finds that Father has met his burden of proof that Mother’s relocation is not in the best interest of the Child.

(Appellant’s App. p. 20). Based on the above, we conclude that the trial court’s finding and the record itself, fails to support the trial court conclusion that the intended move was not in good faith. Rather, notwithstanding the fact that Mother moved to South Carolina prior the trial court’s approval, we find that her reasons for relocation were legitimate and were in good faith.

The record reveals that Mother left home when she was eighteen years old and moved to Indianapolis to attend the University of Indianapolis. She graduated with a Bachelors and Associates of Science degree in 2000. After her graduation, Mother worked as a physical therapist assistant. Mother intended to work in that field, but never passed the licensure exam in Indiana. Fortunately, Mother obtained employment with RoyalMed in Greenfield, Indiana selling medical equipment. Mother took the position because she needed a job. Although it was Mother’s hope to work as a physical therapist, she enjoyed her job in sales and as such, she settled her career in sales and marketing. On September 28, 2007, Mother started working for Home Health Depot, Inc. selling medical equipment. When Mother lost her job in 2010, and due to a non-eompete clause in her contract, Mother could not seek employment in a similar field.

As a result, in November 2010, Mother filed a notice of intent to move to South Carolina and cited various reasons justifying her move. Mother stated that she had no family in Indiana, could not obtain employment, and had a large extended family including — “sixteen [ ] siblings, [ ] approximately [one hundred and fifty] aunts, uncles, and cousins living in South Carolina.” (Appellant’s App. p. 31). The record also reveals that Mother’s mother, Patriciá (Patricia), was a recovering stroke patient. Patricia had suffered repeated strokes since 2005, with the last occurring in 2010. Mother’s parents lived in Kokomo, Indiana, more than one hour away from Indianapolis, thus, it made it difficult for Mother to attend to Patricia’s needs. The record shows that Mother would take time off from work on a regular basis, to respond to Patricia’s medical emergencies. After Mother lost her job in 2010, Mother was unable to pay her debts, and she subsequently filed for bankruptcy. At that point, Mother was broke and could not sustain herself. Mother moved in with her boyfriend, Josh Merrell (Merrell). The record also reveals that Mother’s father, could not secure a job in Indiana, but found one in South Carolina. Mother’s parents were also relocating to South Carolina. Thus, Mother considered that the move on overall, would provide financial security, revive family ties, have her family under one roof, and ultimately have a team that could take care of Patricia.

In sum, in light of our finding that Mother’s move to South Carolina was ultimately to seek employment, be closer to her extended family, explore a new career as a physical therapist, and also to take care of her ailing mother, we conclude that the trial court erred in its conclusion that Mother’s proposed relocation was not made in good faith and for a legitimate reason.

B. Whether Relocation Was in the Best Interest of the Child

Based on our conclusion that Mother’s move to South Carolina was made in good faith and for a legitimate reason, we now have to determine if Father met his burden in proving that relocation was not in the best interest of the Child.

Here, Mother argues that the trial court failed to make a finding on all factors required to be considered under Indiana Code sections 81-17-2.2-1 and 31-17-2-8. Specifically, Mother argues that the trial court failed to make a finding on the following: (1) the hardship and expense involved for Father to exercise parenting; (2) the feasibility of preserving the relationship between Father and the Child through suitable parenting time arrangements; and (8) Mother’s thwarting behavior. Mother is mistaken. As noted above, the trial court was not required to make a finding on all factors enumerated in I.C. § 31 — 17—2.2—1(b). So long as there is evidence on the record to support each of the factors, we will affirm the trial court’s finding. See Wolljung v. Sidell, 891 N.E.2d 1109, 1113 (Ind.Ct.App.2008) (relocation statutes do not require findings of fact, but, at a minimum, there must be evidence in the record on each of the factors listed in I.C. § 31 — 17—2.2—1(b)).

In making its determination, the trial court should have considered: (1) the distance involved in the proposed relocation; (2) the expense involved for the non-relocating parent to exercise visitation; (3) the feasibility of preserving the relationship of the nonrelocating individual and the child through visitation; (4) whether there is an established pattern of conduct by the relocating individual to thwart the non-relocating parent’s contact with the child; (5) the reasons provided by the relocating parent for the relocation; and (6) other factors affecting the best interest of the child. I.C. § 31-17-2.2-1. This statute also incorporates all of the best interests factors considered in making an initial custody determination. Baxendale, 878 N.E.2d at 1256. These factors include: (1) the age and sex of the child; (2) the wishes of the parents; (3) the wishes of the child; (4) the interaction and interrelationship of the child with the parents, siblings, and other people who may significantly affect the child’s best interests; (5) the child’s adjustment to home, school, and community; (6) the mental and physical health of all individuals involved; (7) evidence of domestic abuse; and (8) evidence of care by a defacto custodian. See I.C. § 31-17-2-8. Evidence of a parent’s drug or alcohol use can also be relevant to that parent’s health and the child’s best interests. See Russell v. Russell, 682 N.E.2d 513, 515 (Ind.1997).

Here, the trial court considered that (1) the one-way ten hour drive would diminish the Father-son bond; (2) the move to South Carolina would require the Child to leave his Father, step-mother, and paternal grandparents, all of whom he is very close to; (3) the Child would be required to leave established friends and to leave a routine that he was already accustomed to; (4) the Child desired to reside with Father; (5) the recommendation of the custody evaluators to modify primary custody in favor of Father; (6) Mother’s relocation without the trial court’s approval; and (7) Mother’s indifference towards Father in a number of ways.

Our review of the record shows that Mother’s proposed move was approximately 630 miles away and it was clear that the parent visitation would not occur frequently. In light of the distance factor, we find that the trial court thoughtfully considered the hardship and travel expenses involved. At trial, Father testified that he was unemployed for a period of time before starting his own business mid-2011, as a subcontractor. Father testified that his income varied and was contingent on job offers. Moreover, Mother testified that she was willing to forego child support so that Father “could afford to either drive or fly back and forth to South Carolina at least six times a year.” (Transcript p. 148). Also, Mother testified that she would pay half the ticket cost to enable Father to fly down to South Carolina for the holidays. Based on the fact that Mother was willing to bear the transportation expenses, Mother acknowledged that Father was not in a position to afford the transportation expenses; thus Father would have incurred hardship in exercising parenting time.

As for the feasibility of preserving the relationship between Father and Child and Mother’s thwarting behavior, we find that the following evidence supports the trial court’s denial of Mother’s relocation. First, we note that Mother relocated to South Carolina prior to attaining the trial court’s approval. In addition, the trial court found that the “ten hour drive one-way [would] significantly dimmish the Father-son bond.” (Appellant’s App. p. 3). Furthermore, the Child Custody and Visitation Evaluation, dated November 5, 2011, stated that Mother “presented herself with a sense of entitlement” and that felt that she “should be able to do what she wants to do without reproach.” (Appellant’s App. p. 48). The report further stated that during the evaluation, Mother “related several times that she couldn’t believe [Father] was fighting her moving to South Carolina” as he “never did anything with [the] [C]hild and [that] she was the main parent in [the Child’s] life.” (Appellant’s App. p. 48). In conclusion, the report explained that her statements were “denigrating” and it raised concern whether Father would be able to sustain a relationship with the Child if Mother received primary custody. Id.

Based on the foregoing, we find that feasibility of preserving the relationship between Father and the Child was highly doubtful. Mother, however, draws our attention to evidence indicating that she had no intention of thwarting Father’s contact with the Child. Mother states that although she relocated to South Carolina without the trial court’s approval, she and Father had reached an agreement to have the Child remain with Father beginning May 31, 2011, and to be reunited with Mother around July 12, 2011. As such, Mother argues that this evidence in itself, presents enough proof to suggest that she had no intention to thwart Father’s relationship with the Child. Mother’s request for this court to believe her argument is nothing more than an invitation to reweigh the evidence, which we will not do. See T.L., 950 N.E.2d at 789. In summary, the trial court’s conclusion that the Relocation Statute factors disfavored relocation and merit a change in custody to Father, was clearly not erroneous.

CONCLUSION

We conclude that Mother’s proposed relocation of the Child to South Carolina was in good faith and for legitimate reasons. However, the evidence supports the trial court’s conclusion that relocation was not in the Child’s best interest. For that reason, we affirm the trial court’s decision denying Mother’s request to relocate with the Child to South Carolina.

Affirmed.

ROBB, J. and BRADFORD, J. concur.


author: TIMOTHY P. CANNON, J.

text:
    STATE of Ohio EX REL. Michael DEWINE, Ohio Attorney General, Plaintiff-Appellee, v. OSBORNE CO., LTD., et al., Defendants-Appellants.
    NO. 2016-L-091
    Court of Appeals of Ohio, Eleventh District, Lake County.
    Decided October 23, 2017
    Mike DeWine, Ohio Attorney General; Gregg H. Bachmann, Nicole Candelora-Norman, and Amy Factor, Assistant Attorneys General, State Office Tower, 30 East Broad Street, 25th Floor, Columbus, OH 43215 (For Plaintiff-Appellee).
    Richard N. Selby, II, Dworken & Bernstein Co., 60 South Park Place, Painesville, OH 44077 (For Defendants-Appellants).
   TIMOTHY P. CANNON, J.

{¶ 1} Appellants, Osborne Co., Ltd. and the Executors of the Estate of Jerome T. Osborne, appeal from an August 1, 2016 judgment of the Lake County Court of Common Pleas. The trial court ordered appellants to pay a civil penalty for violating Ohio Revised Code Chapter 6111 and ordered injunctive relief in favor of appellee, State of Ohio ex rel. Michael DeWine, Ohio Attorney General. This judgment is affirmed in part and reversed in part for the reasons that follow.

{¶ 2} On May 29, 2012, appellee filed a complaint, in Case No. 12 CV 001459, against Defendants Jerome T. Osborne ("Mr. Osborne") and Osborne, Inc. Appellee subsequently filed an amended complaint, which substituted Osborne Co., Ltd. ("Osborne Co.") for Osborne, Inc. The trial court denied a motion for partial summary judgment filed by appellee on January 17, 2014. On January 22, 2014, Osborne Co. was voluntarily dismissed from Case No. 12 CV 001459, and appellee filed a complaint against Osborne Co. in Case No. 14 CV 00166. The trial court consolidated the two cases on January 30, 2014. On August 15, 2014, the trial court granted a motion to substitute the Executors of Jerome T. Osborne's Estate as defendants, following Mr. Osborne's death. The executors are identified as Richard M. Osborne, Sr.; Georgeanne Osborne Gorman; Michael E. Osborne; Jacqueline Osborne Fisher; William V. Krug; Jerome T. Osborne, III; William L. Mackey; and Jeremy Cash Osborne.

{¶ 3} The complaints against each appellant-Osborne Co. and Mr. Osborne's estate-set forth three causes of action, each alleging violations of Ohio's Water Pollution Control Laws as found in Revised Code Chapter 6111.

{¶ 4} Count One alleges appellants violated R.C. 6111.04(A) and R.C. 6111.07(A) by failing to obtain a certification from the Ohio Environmental Protection Agency ("Ohio EPA") under Section 401 of the Clean Water Act or a Section 404 permit from the U.S. Army Corps of Engineers before engaging in certain activities within and along the East Branch Chagrin River that resulted in "(1) the placement of dredged or fill material and/or wastes into waters of the State; and (2) degradation of certain portions of the East Branch Chagrin River and the threatened degradation of other portions [of] these waters of the state."

{¶ 5} Count Two alleges appellants violated R.C. 6111.04(A) and R.C. 6111.07(A) by failing to obtain a construction storm water discharge permit before engaging in construction activities that resulted in "disturbing one or more acres of land within and along two miles of stream channel of the East Branch Chagrin River."

{¶ 6} Count Three alleges appellants violated R.C. 6111.04(A) and R.C. 6111.07(A) because they polluted the East Branch Chagrin River, without a permit, by discharging storm water from land within and along two miles of stream channel of the East Branch Chagrin River, and thereby created a public nuisance.

{¶ 7} The parties submitted a joint stipulation of facts with regard to many issues in the case. With regard to remaining disputed facts, the matter ultimately proceeded to a bench trial in January 2016.

{¶ 8} This case arose after an employee of the Ohio EPA observed William Franz, an employee of Osborne Co., operating a track hoe in the middle of the East Branch Chagrin River. In his deposition, Mr. Franz testified that he was removing silt so the river would flow. The parties stipulated that Mr. Osborne instructed Mr. Franz to use the track hoe to remove sand and gravel from the stream bed and relocate this material along the edge of the stream, on the stream banks, and in the middle of the river. The parties also stipulated that, on certain occasions when the track hoe's bucket could not reach the river bank, Mr. Franz would place piles in the river, then relocate the track hoe and move those piles to the bank of the river. Another stipulation was that Mr. Osborne personally observed some of Mr. Franz's work and that he would usually call Mr. Franz the night before or first thing in the morning and tell him what project to work on each day and what to do for the project. After work was completed, Mr. Osborne would usually call Mr. Franz to ask how the work for the day went.

{¶ 9} The parties stipulated that appellants were performing the work on the river pursuant to agreements with the Village of Kirtland Hills, reached in 1983 and 1990, to maintain the river banks. In exchange for the work performed on the river, Mr. Osborne was allowed to farm certain property owned by the Village of Kirtland Hills. The work was done throughout the years from River Mile 4.30 to River Mile 6.15. Most of the work performed in or near the river was on property owned either by the Village of Kirtland Hills or Mr. Osborne.

{¶ 10} The parties stipulated that the East Branch Chagrin River is a "water of the state," as that term is defined in R.C. 6111.01 ; that it was designated as a State Scenic River by the Ohio Department of Natural Resources ("ODNR") on July 2, 1979; that it is designated as an Outstanding State Water for Ecological Value; and that its beneficial use designations are cold water habitat, seasonal salmonid habitat, primary contact recreation, and agricultural/industrial water supply.

{¶ 11} The parties stipulated that Mr. Franz, at the direction of Mr. Osborne, operated the track hoe in the river on 24 separate occasions from 2001 through 2007. Each of these occasions involved dredging the river and placing dredged material along the river bank or in the middle of the river. Evidence was introduced at trial that the dredged material formed nine piles, anywhere from eight- to twenty-feet high, for extended distances along the river bank. At least 25,656 cubic yards of river bottom were dredged. Most of the dredged material was piled on property owned by either the Village of Kirtland Hills or Mr. Osborne. One pile, referred to as "the Oliva pile," was located on private property near St. Hubert's church.

{¶ 12} According to trial testimony, the river had been excavated down to the bedrock in many areas between R.M. 4.30 and R.M. 6.15, which resulted in the river losing access to its floodplain and caused significant bank erosion. The state also introduced testimony that appellants' activities resulted in a loss or degradation of the habitat for fish and macro invertebrates.

{¶ 13} Paul Anderson, an environmental specialist in the surface water division of the Ohio EPA, became aware of the work being done in the river on July 13, 2007, at which time it ordered appellants to cease work in the river. Appellants complied. The Ohio EPA immediately performed a site survey and concluded the site was severely impacted by substrate removal and reworking and by placement of removed material in the floodplain and bankfull area: the habitat was severely simplified, siltation was high, and erosion was potentially high.

{¶ 14} The U.S. Army Corps of Engineers thoroughly inspected the river one week later. The parties stipulated that Mr. Osborne received a letter from the Corps in August 2007, stating the work in the river was an unauthorized activity and in violation of the Federal Clean Water Act. The letter stated, in part:

The inspection found that gravel and natural stone were excessively dredged from the stream at several locations, and disposed or stockpiled in the floodway and below the ordinary high water elevation, and also in the stream channel. No Department of the Army authorization was issued for this activity. Therefore, this work is an unauthorized activity and in violation of the Clean Water Act.

The letter directed Mr. Osborne not to perform any additional activities in the river and advised that any further work would be considered a knowing and willful violation of federal law, subjecting him to civil penalties.

{¶ 15} The parties stipulated that Mr. Osborne also received a notice of violation from the Ohio EPA in August 2007, alleging violations of Ohio Revised Code Chapter 6111. The notice also alleged violations of O.A.C. 3745-1-04. This notice stated, in part:

The illegal activity began upstream of St. Hubert's Church on the East Branch of the Chagrin River and continued downstream approximately 8,700 feet. The inspection team observed that materials had been and were being side cast from the river bed onto various sections of the river bank. This activity constitutes a violation of [R.C.] 6111.04, which prohibits any person from causing pollution to any waters of the State without a valid unexpired permit issued by the Director of Ohio EPA. [R.C.] 6111.07 states that no person shall violate or fail to perform any duty imposed by rules adopted by Ohio EPA. The activities observed caused violations of [O.A.C.] 3745-1-04, which contains criteria applicable to all waters of the State. Please be advised that failure to comply with the above laws may be cause for enforcement action pursuant to [R.C.] Section 6111 and subject you to civil penalties identified in [R.C.] 6111.09(A).
Please inform this office in writing, within ten days of receipt of this notification, of the description of the action(s) proposed to address these violations. Please provide all documentation associated with this activity including the intent of the activity, contracts with others to perform the activity, and a record of when this activity had been previously performed.

{¶ 16} Mr. Osborne responded by letter, through his attorney, on September 10, 2007. Mr. Osborne noted he began utilizing the land located in Kirtland Hills pursuant to an oral agreement in the late 1970s; this oral agreement was confirmed by written agreements in 1983 and 1990. Pursuant to these agreements, Mr. Osborne undertook erosion control and bank stabilization measures on the property on an intermittent basis. He indicated there were no records or documentation associated with said erosion control and bank stabilization measures. The letter ended by stating, "Mr. Osborne proposes no actions at this time to address the alleged violations" and that nothing in the letter shall be deemed an admission as to any unlawful activities; "in fact, for the record, Mr. Osborne denies any unlawful activities[.]"

{¶ 17} On November 1, 2007, Randall Keitz, a floodplain engineer with ODNR, surveyed the disturbed area of the river. He testified that he concluded, as a result of this survey, that the river was highly unstable with considerable ongoing erosion of the river banks due to the limited channel width and increased velocity of the water. Trees along the banks were being undermined, and access to the floodplain was very limited.

{¶ 18} On November 2, 2007, the U.S. Army Corps of Engineers sent a letter to the director of the Ohio EPA, noting the work was done without authorization and in violation of the Clean Water Act. It authorized the Ohio EPA to immediately begin remedial and restoration measures without needing to obtain any further approval or permits from the Corps.

{¶ 19} Over the next two years, the Ohio EPA met with appellants and the Village of Kirtland Hills to negotiate remediation of the river. On April 29, 2009, the Ohio EPA provided a proposed draft of a settlement, titled "Director's Final Findings and Orders," to appellants in an attempt to administratively settle the violations of R.C. Chapter 6111. The draft states, in Paragraph 3 of the Findings, that appellants altered approximately two miles of the stream channel in violation of R.C. Chapter 6111 and the Clean Water Act by dredging from and depositing fill material in the river. Paragraph 8 states that constriction of the floodplain remains a significant concern; lowering of the stream channel elevation and stockpiling of material along the stream banks significantly limits the amount of energy dissipation that can occur during flood events. Paragraphs 9 and 10 state that placement of dredged substrates directly upon the stream bank has increased the risk of flood damage, and lowering of the channel bed has caused bank erosion problems. Paragraph 11 states the river is not meeting certain biocriteria outlined in O.A.C. 3745-1-07 due to habitat modification and disturbance.

{¶ 20} The draft then outlines several Orders directing appellants to implement a plan designed to fully remediate the river. It states that "[t]he Plan shall focus on facilitating the natural recovery of the river. Where appropriate, the plan may include replacement of the stockpiled substrates within the stream channel to provide enhanced habitat, to expedite the stream channel recovery process or to stabilize streambanks at specified locations."

{¶ 21} A section of the draft, titled "Reservation of Rights," provides, in part:

Ohio EPA reserves the right to take any action, including but not limited to any enforcement action for civil or administrative penalties against Respondent for violations specifically cited in these Orders, action to recover costs, or action to recover damages to natural resources, action to compel further remediation pursuant to any available legal authority as a result of past, present, or future violations of state or federal laws or regulations or the common law, and/or as a result of events or conditions arising from, or related to, the Site. Upon termination pursuant to the Termination Section of these Orders, Respondent shall have resolved their liability to Ohio EPA only for the Work performed pursuant to these Orders.

{¶ 22} Larry Reeder, enforcement supervisor of the surface water division at the Ohio EPA, testified that it did not intend to pursue a civil penalty against appellants at the time they were negotiating. Cynthia Paschke also testified regarding these negotiations. Ms. Paschke was qualified as an expert witness, limited to the collection and analysis of habitat data in the river, and she also represented appellants during their negotiations with the Ohio EPA. Ms. Paschke testified that appellants were prepared to move forward with the negotiated restoration project had the Ohio EPA waived its reservation of rights regarding future administrative and civil penalties, as it had done with the Village of Kirtland Hills. The Ohio EPA did not waive its reservation of rights, and Mr. Reeder testified he was notified in May 2009 that appellants would not sign the draft agreement and would not move forward with the restoration project. As a result, on June 25, 2009, the director of the Ohio EPA requested in writing that the Ohio Attorney General initiate civil proceedings against appellants.

{¶ 23} On July 27, 2009, the Village of Kirtland Hills signed a settlement agreement with the Ohio EPA (i.e., the final version of the Director's Final Findings and Orders). The village agreed, in part, to do the following: (1) remove the piles placed on the floodplain and redistribute the material into and along the river channel; (2) develop a plan to construct bank stabilization where appropriate to reduce bank erosion and stress; (3) develop a plan to re-vegetate exposed areas following excavation and construction activities; (4) develop a plan for storm water pollution prevention; (5) provide a schedule for implementing the plans and submitting reports to the Ohio EPA; (6) submit a plan to monitor river channel morphology, habitat quality, and biological water quality; and (7) submit a plan for the creation of a riparian buffer along the river that provides for permanent protection through a conservation easement or environmental covenant. The "Reservation of Rights" section of this agreement, Section XI, simply provided that the "Ohio EPA and Respondent each reserve all rights, privileges and causes of action, except as specifically waived in Section XI of these Orders." Mr. Reeder testified that the Ohio EPA was not seeking a financial penalty against the Village of Kirtland Hills.

{¶ 24} The Village of Kirtland Hills hired Oxbow River and Stream Restoration, Inc. ("Oxbow") to perform the remedial work in the river. In January 2011, Oxbow developed a storm water pollution prevention plan, a stream restoration plan, and a stream restoration project summary of work. The remediation work outlined in the settlement agreement was largely completed by November 2013. Oxbow had redistributed approximately 25,000 cubic yards of previously dredged material into approximately 5,260 linear feet of active channel; stabilized approximately 1,240 feet of stream bank; and planted native grasses, sedges, shrubs, and trees on approximately 11.5 acres of land. Mr. Anderson testified that the river bed had been raised one to two feet in most locations, which improved access to the floodplain. The Oliva pile, however, was not removed and redistributed; apparently, the Village of Kirtland Hills refused to authorize work on property not under its control.

{¶ 25} William Zawiski, a water quality supervisor with the Ohio EPA, testified that he conducted a habitat evaluation on November 19, 2013. The restoration work had improved the habitat, but the river still needed more cover and pools; the river had not fully recovered from the unauthorized activities.

{¶ 26} Mr. Keitz testified that he conducted a stream channel classification survey in December 2013. The river remained moderately entrenched and could barely reach its floodplain; the river remained highly unstable with no bank protection. He recommended planting trees and other vegetation to stabilize the banks and further raising the bed, by adding rocks and other material, to slow river velocity and create habitats.

{¶ 27} The parties submitted post-trial briefs at the conclusion of the bench trial. Appellants repeated the defenses they had raised at various stages throughout the case. First, appellants argued the statutory framework under which the complaint was brought ( R.C. 6111.04 & R.C. 6111.07 ) does not prohibit dredging; thus, the only alleged violations at issue relate to the unauthorized discharge of dredged materials into the river. Second, appellants argued the statutes at issue do not require one to obtain a permit; rather, obtaining a permit "provides a safe harbor, whereby individuals or companies who obtain a permit are exempted from these pollution laws." With regard to the imposition of a civil penalty, appellants argued the State had mischaracterized its failure to perform any remediation on the river as a result of recalcitrance, instead of recognizing it as a result of the Ohio EPA's refusal to waive civil penalties.

{¶ 28} On August 1, 2016, the trial court found in favor of the State of Ohio on all three counts.

{¶ 29} Regarding Count One-which alleged that defendants violated R.C. 6111.04(A) and R.C. 6111.07(A) by failing to obtain Section 401 and Section 404 permits prior to commencing work in the river-the trial court found appellants' activities along the East Branch Chagrin River resulted in the placement of dredged material in the river in excess of one cubic yard, thus triggering the requirement to obtain the permits.

{¶ 30} Regarding Count Two-which alleged appellants violated R.C. 6111.04(A) and R.C. 6111.07(A) by failing to obtain a construction storm water discharge permit before engaging in construction activities-the trial court found the State had shown that appellants disturbed one or more acres of land along the East Branch Chagrin River, thus triggering the requirement to obtain the permit. The trial court stated appellants' claim that the permitting process merely provides a safe harbor exemption from Ohio's water pollution laws has no basis in law.

{¶ 31} Regarding Count Three-which alleged that appellants violated R.C. 6111.04(A) and R.C. 6111.07(A) because they polluted the river by discharging storm water from land within and along two miles of stream channel of the river-the trial court stated it was closely related to Counts One and Two and, "[a]pplying the factors and analysis applied in count two," it found in favor of the State.

{¶ 32} The trial court found that Mr. Osborne was subject to personal liability on all three counts and therefore held his Estate jointly and severally liable along with Osborne Co.

{¶ 33} The trial court found that significant harm to the river environment was caused by appellants' dredging; appellants were aware of the requirement to at least obtain a National Pollutant Discharge Elimination System permit, but failed to do so; appellants avoided the costs of various permits and obtained an economic benefit from farming the land owned by the Village of Kirtland Hills; and the State incurred extraordinary enforcement costs. As a result, the trial court imposed a civil penalty of $404,240.00, plus post-judgment statutory interest.

This amount consists of $180,000 for 24 days of active dredging of the East Branch Chagrin River with each day being assessed a $7,500 penalty. This amount also includes $184,080 for creating a public nuisance by leaving spoil piles along the river from July 13, 2007 to November 1, 2013 (the date the Village of Kirtland Hills completed its portion of remediation) for a total of 2,301 days at $80 per day and an additional $40,160 for creating a public nuisance by allowing the remaining spoil pile to exist from November 2, 2013 to the present (July 29, 2016) for a total of 1,004 days at $40 per day.

{¶ 34} The trial court also ordered extensive injunctive relief, as follows:

(A) Defendants are permanently enjoined from discharging any pollution, other wastes, and dredge and fill material to waters of the State on or from the banks of the East Branch Chagrin River except in compliance with Chapter 6111 and any necessary permits and/or Section 401 certifications issued pursuant to Chapter 6111 and the rules adopted thereunder;
(B) Defendants shall submit a plan to the Ohio EPA to redistribute and/or remove the remaining pile in the East Branch Chagrin River within ninety days from the date of this judgment entry;
(C) Defendants shall implement and execute the approved redistribution and/or removal plan;
(D) Defendants shall submit a monitoring plan to characterize the current channel morphology, habitat quality, and biological water quality in the East Branch Chagrin River within ninety days from the date of this judgment entry;
(E) Defendants shall implement and execute the approved monitoring plan;
(F) Defendants shall submit a plan for the creation of a riparian buffer along the East Branch Chagrin River to bar construction activities and stream channel modifications except as authorized by the Ohio EPA within one hundred and twenty (120) days from the date of this judgment entry;
(G) Defendants shall implement and execute the approved riparian buffer plan; and
(H) Defendants shall submit a post-construction report to the Ohio EPA after completion of the remediation work and creation of the riparian buffer.

{¶ 35} Appellants filed a timely notice of appeal from the trial court's judgment entry and assert four assignments of error for our review. Their first assignment of error states:

{¶ 36} "The trial court erred in interpreting the state of Ohio's statutory claims to encompass all work performed in the East Branch Chagrin River without a permit, as opposed to limiting the state of Ohio's claims to the discharge of dredged materials into the East Branch/Chagrin River."

{¶ 37} All three counts alleged in the complaint are premised on violations of the Water Pollution Control Act, found in Revised Code Chapter 6111. Appellants first assert that the deposit of dredged materials into the East Branch Chagrin River, rather than the excavation of material out of the river, is the only conduct the trial court should have considered in determining whether appellants violated the relevant statutes. They also argue the trial court improperly relied on federal permit requirements to find liability under state statutes.

{¶ 38} Issues of statutory interpretation are questions of law, which we review de novo. Riedel v. Consol. Rail Corp. , 125 Ohio St.3d 358, 2010-Ohio-1926, 928 N.E.2d 448, ¶ 6 (citations omitted).

{¶ 39} The Water Pollution Control Act provides that "[n]o person shall violate or fail to perform any duty imposed by sections 6111.01 to 6111.08 of the Revised Code or violate any order, rule, or term or condition of a permit issued or adopted by the director of environmental protection pursuant to those sections . Each day of violation is a separate offense." R.C. 6111.07(A) (emphasis added).

{¶ 40} Appellants are charged with violating R.C. 6111.04(A), which provides that "[n]o person shall cause pollution or place or cause to be placed any sewage, sludge, sludge materials, industrial waste, or other wastes in a location where they cause pollution of any waters of the state." "Pollution" is defined as "the placing of any sewage, sludge, sludge materials, industrial waste, or other wastes in any waters of the state." R.C. 6111.01(A). "Other wastes" is defined as "garbage, refuse, decayed wood, sawdust, shavings, bark, and other wood debris, lime, sand, ashes, offal, night soil, oil, tar, coal dust, dredged or fill material , or silt, other substances that are not sewage, sludge, sludge materials, or industrial waste, and any other 'pollutants' or 'toxic pollutants' as defined in the Federal Water Pollution Control Act that are not sewage, sludge, sludge materials, or industrial waste." R.C. 6111.01(D) (emphasis added). "Dredged material" means "material that is excavated or dredged from waters of the state." O.A.C. 3745-32-01(H) (formerly (E)). At the time appellants conducted their activity in the river, "discharge of dredged material" was recognized only when it was in excess of one cubic yard in a single or incidental operation. See former O.A.C. 3745-32-01(C).

{¶ 41} Pursuant to R.C. 6111.04(A), any such action is declared to be a public nuisance, except in cases where the director of environmental protection has issued a valid and unexpired permit or renewal thereof, as provided in R.C. 6111.01 to R.C. 6111.08. Although these sections authorize the director to issue permits in certain circumstances, none of them require a permit be obtained.

{¶ 42} While it may have been a violation of other statutory provisions, we agree with appellants that it was not a violation of the statutes alleged in the complaint to dredge the East Branch Chagrin River, nor was it a violation of these statutes to fail to obtain permits. As pled, and under the facts of this case, appellants are only potentially liable under R.C. 6111.04(A) for the discharge of dredged material into the river or any other actions constituting pollution as defined above. Obtaining permits for such discharge would have provided appellants with an affirmative defense to these charges. The complaint filed by the State apparently anticipated appellants' inability to raise this affirmative defense and, in so doing, alleged the same violation in three separate counts. While the State alleges in the complaint a failure to obtain necessary permits, it is clear that the only violation of law properly alleged is the unauthorized pollution of the waters of the state based on R.C. 6111.04(A).

{¶ 43} The State responds that appellants' plan from the beginning was to alter the river by controlling erosion and stabilizing the banks, which in isolation would be a violation of federal and state law if done without a permit. Appellants may well have violated other federal and state laws. See, e.g. , R.C. 3767.13(C) ("No person shall unlawfully obstruct or impede the passage of a navigable river, harbor, or collection of water, or corrupt or render unwholesome or impure, a watercourse, stream, or water, or unlawfully divert such watercourse from its natural course or state to the injury or prejudice of others."); see also 33 U.S.C. 1344(f)(2) ("Any discharge of dredged or fill material into the navigable waters incidental to any activity having as its purpose bringing an area of the navigable waters into a use to which it was not previously subject, where the flow or circulation of navigable waters may be impaired or the reach of such waters be reduced, shall be required to have a permit under this section."). However, the State did not allege violations of any other laws in the complaint.

{¶ 44} The trial court erred to the extent it found appellants liable for activity outside the scope of R.C. 6111.04(A) and R.C. 6111.07(A). Appellants' argument that violations of these sections are the only properly alleged violations is well taken.

{¶ 45} Appellants further assert that the only conduct the trial court should have considered as a violation of R.C. 6111.04(A) is the discharge of dredged materials into the water of the river, not the dredged materials deposited on the river banks. Appellants contend the trial court erred in making a determination that the "waters of the state," as defined in Chapter 6111, includes all areas below the "ordinary high water mark." Appellants argue the concept of utilizing the "ordinary high water mark" to define the "waters of the state," thereby including dry land within the "waters of the state," is not supported by statutory or case law. This is, again, a statutory interpretation issue we review de novo. Riedel , supra , at ¶ 6.

{¶ 46} R.C. 6111.01(H) defines "waters of the state" as follows:

[A]ll streams, lakes, ponds, marshes, watercourses, waterways, wells, springs, irrigation systems, drainage systems, and other bodies or accumulations of water, surface and underground, natural or artificial, regardless of the depth of the strata in which underground water is located, that are situated wholly or partly within, or border upon, this state, or are within its jurisdiction, except those private waters that do not combine or effect a junction with natural surface or underground waters.

{¶ 47} The concept of the "ordinary high water mark" was introduced at trial by Edward Wilk, a Section 401 coordinator at the Ohio EPA. Mr. Wilk testified that in determining its jurisdiction, the Ohio EPA utilizes a December 7, 2005 Regulatory Guidance Letter from the U.S. Army Corps of Engineers. The Letter provides that, for purposes of Section 404 of the Clean Water Act, the lateral limits of jurisdiction over non-tidal water bodies, in the absence of adjacent wetlands, extend to the "ordinary high water mark." Corps regulations define the term at 33 C.F.R. 328.3(c)(6) (formerly (e)), which states:

The term ordinary high water mark means that line on the shore established by the fluctuations of water and indicated by physical characteristics such as a clear, natural line impressed on the bank, shelving, changes in the character of soil, destruction of terrestrial vegetation, the presence of litter and debris, or other appropriate means that consider the characteristics of the surrounding areas.

{¶ 48} We are not aware of any case law that holds the area over which the U.S. Army Corps of Engineers has jurisdiction is synonymous with the term "waters of the state" as used in R.C. 6111.04(A). Nor are we aware of any case law interjecting the concept of an ordinary high water mark into the definition of what constitutes "waters of the state." We agree with the State, however, that to accept appellants' argument would be to ignore the purpose of Ohio's Water Pollution Control Act and the problems it intends to remedy. See, e.g., State v. Conley , 147 Ohio St. 351, 353, 71 N.E.2d 275 (1947) ("It is fundamental in the construction and application of statutes that not only the purpose to be served, but the object to be attained as well as the evil to be remedied, should be considered."). It defies all sense to conclude that the discharge of pollutants into a portion of a river that is fortuitously dry at the time of such discharge, but is at other times filled with water, falls outside the rubric of Ohio's Water Pollution Control Act.

{¶ 49} Further, in determining whether appellants violated R.C. 6111.04(A), it is not necessary to define "waters of the state" in such a way that it equates to or includes the "ordinary high water mark." Again, R.C. 6111.04(A) provides that "[n]o person shall cause pollution or place or cause to be placed any sewage, sludge, sludge materials, industrial waste, or other wastes in a location where they cause pollution of any waters of the state." (Emphasis added.) "Pollution" is defined, in relevant part, as "the placing of * * * other wastes [including dredged material] in any waters of the state." R.C. 6111.01(A)&(D).

{¶ 50} Thus, pollution, in violation of R.C. 6111.04(A), can occur either directly or indirectly. A direct violation occurs by placing dredged material in a water of the state. An indirect violation occurs by placing, or causing to be placed, dredged material in a location where it then causes pollution of a water of the state.

{¶ 51} Here, there is evidence that appellants directly caused pollution by placing dredged materials in the river, which is a water of the state. There is also evidence that appellants indirectly caused pollution by placing dredged materials in a location that resulted in some of that material ending up in the river, in excess of one cubic yard, either due to storm water runoff or due to the river rising up to the location. It is irrelevant, under the terms of the statute, whether that location of placement is above or below any ordinary high water mark.

{¶ 52} Appellants' argument that the trial court should not have considered the depositing of dredged materials on the river banks is not well taken.

{¶ 53} Appellants' first assignment of error is with merit to the extent indicated. We have no question, as previously discussed, that there were violations of numerous statutory and administrative regulations. For whatever reason, however, the State did not charge appellants with violations of those provisions. Appellants proceeded to trial defending the allegations in the complaint. It would be unfair to require them to defend against violations alleged in letters and administrative orders that were not contained in the complaint filed with the trial court.

{¶ 54} Appellants' second and third assignments of error state:

[2.] The trial court erred in assessing a civil penalty against defendants in the amount of $404,200.00.
[3.] The trial court erred in awarding injunctive relief beyond the scope necessary to address the current effects of dredged materials into the East Branch/Chagrin River, as opposed to, any impact of the overall work performed in the river without a permit.

{¶ 55} Based on our disposition of the first assignment of error, we must remand this matter to the trial court to make a finding specifically related to the violations alleged in the complaint, to wit: discharge of materials into the East Branch Chagrin River, as provided in R.C. 6111.04(A), and thereafter limit any civil penalty to the consequences of that conduct and to fashion an order of injunctive relief that addresses only the violations of R.C. 6111.04(A) as alleged in the complaint.

{¶ 56} Appellants' fourth assignment of error states:

{¶ 57} "The trial court erred in finding the Estate of Jerome T. Osborne personally liable."

{¶ 58} Appellants contend in order to find Mr. Osborne personally liable, the State must "pierce the corporate veil." They assert there was no evidence Mr. Osborne conducted any of the unauthorized activity in his personal, rather than corporate, capacity.

{¶ 59} The State responds that Ohio law is clear that individuals may be held liable when a court finds "personal participation" in the unlawful act and that it is not necessary to pierce the corporate veil. The State did not allege in its complaint that Mr. Osborne was responsible as an officer or owner of Osborne Co. It alleged that Mr. Osborne, individually, violated R.C. 6111.04(A) and R.C. 6111.07(A). The State contends the plain language of the statute establishes the personal liability of Mr. Osborne. Appellants argue in response that the State's "personal participation" theory is an attempt to expand its enforcement powers beyond its statutory authority.

{¶ 60} R.C. 6111.04(A)(1) provides that "no person shall cause" a violation of the statute. R.C. 6111.07(A) provides that "no person shall violate or fail to perform any duty" under R.C. 6111.01 to R.C. 6111.08. In the definitions related to this chapter, at R.C. 6111.01(I), the term "person" includes all those set forth in the definition found at R.C. 1.59(C), which defines "person" as including "an individual, corporation, business trust, estate, trust, partnership, and association."

{¶ 61} The parties stipulated that Osborne Co. is a corporation that has been incorporated under the laws of the state of Ohio since 1956 and is currently in good standing with the Ohio Secretary of State. Mr. Osborne was an owner and officer of Osborne Co.

{¶ 62} "A corporation is an artificial person, created by the General Assembly and deriving its power, authority and capacity from the statutes. * * * A corporate officer or shareholder normally will not be held liable for the debts or acts of the corporate entity."

Mohme v. Deaton , 12th Dist. Warren No. CA2005-12-133, 2006-Ohio-7042, 2006 WL 3833923, ¶ 7, citing Worthington City School Dist. Bd. of Educ. v. Franklin Cty. Bd. of Revision , 85 Ohio St.3d 156, 160, 707 N.E.2d 499 (1999) (citation omitted). "An exception to shareholder liability exists where, 'upon piercing the corporate veil,' it appears that a corporation is simply the 'alter ego' of the individual sought to be held liable." Id. at ¶ 8, quoting Inserra v. J.E.M. Bldg. Corp. , 9th Dist. Medina No. 2973-M, 2000 WL 1729480, *4 (Nov. 22, 2000).

{¶ 63} "In addition, a corporate officer can be held personally liable for tortious acts he or she has committed and, under such circumstances, a plaintiff need not pierce the corporate veil to hold individuals liable who have personally committed such acts." Id. at ¶ 9 (citations omitted). This has become known as the "personal participation" theory and has been applied to environmental law violations. See, e.g. , State ex rel. DeWine v. Sugar , 2016-Ohio-884, 60 N.E.3d 735, ¶ 35 (citation omitted); State ex rel. DeWine v. Marietta Indus. Enters., Inc. , 4th Dist. Washington No. 15CA33, 2016-Ohio-7850, 2016 WL 6875425, ¶ 25.

{¶ 64} "A corporate officer, however, 'may not be held liable merely by virtue of his status as a corporate officer.' " Roberts v. RMB Ents., Inc. , 197 Ohio App.3d 435, 2011-Ohio-6223, 967 N.E.2d 1263, ¶ 35 (12th Dist.), quoting Mohme , supra , at ¶ 28. Rather, the evidence presented must indicate that the officer specifically directed the particular act to be done or that the officer participated or cooperated therein. Id. , citing Young v. Featherstone Motors, Inc. , 97 Ohio App. 158, 171, 124 N.E.2d 158 (1954) ; see also Marietta , supra , at ¶ 25 (citations omitted).

{¶ 65} The parties stipulated that Mr. Franz was employed by Mr. Osborne through Osborne Co. since 1991. It was also stipulated that Mr. Osborne directed Mr. Franz to remove material from the stream bed and place it along the edge of the river, on the river banks, and in the middle of the river and that Mr. Osborne personally observed some of this work. The parties further stipulated that Mr. Osborne usually called Mr. Franz the night before or first thing in the morning to instruct him what project to work on each day and what to do for each project, and that Mr. Osborne would usually call Mr. Franz at night to see how the work for the day went. Notably, the stipulations also include the following:

Defendants performed the work on the East Branch Chagrin River pursuant to April 1983 and June 1990 Agreements with the Village of Kirtland Hills to maintain the river banks. * * * In exchange for the work performed on the East Branch Chagrin River pursuant to the April 19, 1983 Agreement, Defendant Jerome T. Osborne was allowed to farm certain property owned by the Village of Kirtland Hills. [Emphasis added.]

{¶ 66} Thus, there is evidence that a personal benefit was conferred on Mr. Osborne and that he acted independent of the corporation, at least to some degree. The record does not contain any evidence that he was acting, at all times material, only in his corporate capacity. The State alleged Mr. Osborne personally violated the statute. The fact that he may have been acting in his corporate capacity is a defense to that claim-a defense that was not established in the record.

{¶ 67} In light of the stipulations and evidence presented, we agree that Mr. Osborne's personal participation in the violations has been established by a preponderance of the evidence. The trial court did not err in finding Mr. Osborne's Estate jointly and severally liable along with Osborne Co.

{¶ 68} Appellants' fourth assignment of error is without merit.

{¶ 69} The judgment of the Lake County Court of Common Pleas is affirmed with regard to holding appellants jointly and severally liable. The judgment is reversed with regard to the finding of liability for activity outside the scope of R.C. 6111.04(A). This matter is remanded for the trial court to make a finding specifically related to the violations alleged in the complaint and thereafter limit any civil penalty and injunctive relief to the consequences of that conduct.

DIANE V. GRENDELL, J., concurs with a Concurring Opinion,

COLLEEN MARY O'TOOLE, J., dissents with a Dissenting Opinion.

DIANE V. GRENDELL, J., concurs with a Concurring Opinion.

{¶ 70} I concur in the decision to reverse the trial court's judgment and remand this matter for a proper determination of damages based on the alleged violations of R.C. 6111.04(A) contained in the complaint, i.e., the "discharge of materials into the East Branch Chagrin River." Supra at ¶ 57. It is evident from the trial court's judgment that its determination of the appellants' liability relied heavily on the dredging of the stream channel and the failure to obtain permits rather than the discharge of materials. See , e.g. , "Anderson testified that the dredging activities significantly degraded fish and macro invertebrate habitat"; "[t]he dredging throughout the river resulted in a loss of riffles, pools and bank vegetation"; and "significant adverse changes in the morphology and habitat of the river were caused by the dredging." July 29, 2016 Opinion and Judgment Entry, at 12, 16, and 18.

{¶ 71} I would also point out the trial court, in its consideration of damages, noted that the appellants "chose not to settle at the administrative level" and, "unlike the Village of Kirtland Hills, * * * did not agree to measures to remediate the river," and also "obtained an economic benefit from being able to farm the extensive lands owned by the Village of Kirtland Hills." Opinion and Judgment Entry, at 19. The import of these findings is compromised by the fact that the appellants were willing to adopt measures to remediate the river if the State would have been willing to waive the right to seek civil penalties as it had done for the Village of Kirtland Hills. The State's failure to make this concession has not been satisfactorily explained, particularly given that all the appellants' dredging activity was done at the behest of the Village. With respect to the economic benefit derived by the appellants, this literally consisted of grass for consumption by appellants' horses. There is little in the record to support a finding of bad faith or self-interest on the part of the appellants.

{¶ 72} Accordingly, I concur in the judgment and opinion of this court.

COLLEEN MARY O'TOOLE, J., dissents with a Dissenting Opinion.

{¶ 73} I respectfully dissent.

{¶ 74} I would uphold the lower court's ruling in toto as the majority disregards the overriding concept of notice pleading. Ohio law does not ordinarily require a plaintiff to plead operative facts with particularity. Civ.R. 8(A) requires only a short and plain statement of the claim that gives the defendant fair notice of the plaintiff's claim and the grounds upon which it is based. A plaintiff is not required to outline the legal theory case at the pleading stage and is required only to give reasonable notice of the claim. It is not required that a complaint contain more than " 'brief and sketchy allegations of fact to survive a motion to dismiss under the notice pleading rule.' " (Internal citations omitted.) Ogle v. Ohio Power Co., 180 Ohio App.3d 44, 2008-Ohio-7042, 903 N.E.2d 1284, ¶ 5 (4th Dist.). Additionally courts must be mindful of the admonition that cases should be decided on their merits, where possible, rather than procedural grounds. Sericola v. Johnson, 2016-Ohio-1164, 61 N.E.3d 643, ¶ 19, citing State ex rel. Lindenschmidt v. Bd. of Commrs. of Butler Cty., 72 Ohio St.3d 464, 466, 650 N.E.2d 1343 (1995).

{¶ 75} Secondly, in the event that the defendants did not understand or could not discern which laws or specific sections of the statute they violated, their remedy in a notice pleading framework would be to file a motion for a more definite statement under Civ.R. 12(E). The defendants in this matter are familiar with commercial contracts and dealing with builders and should have known to inquire as to what permits were needed regarding property that they did not own or control. As such I would affirm the trial court in total.

{¶ 76} I respectfully dissent.

      Testimony at trial explained that a "river mile" is similar to a mile marker on a highway. Here, it is measured by the distance from Lake Erie (R.M. 0) to the source of the river. R.M. 6.15 is upstream of R.M. 4.30 and is just upstream of St. Hubert's Church, located at 8870 Baldwin Road, Village of Kirtland Hills, Ohio. R.M. 4.30 is near the western boundary of property owned by the Village of Kirtland Hills.

      Testimony at trial explained that cold water streams in Ohio are generally small, with small drainage systems. A cold water stream such as the East Branch Chagrin River is unique due to its size. It provides a large cold water habitat the State of Ohio seeks to preserve.

      Testimony at trial explained that the "bankfull area" is the portion of the stream channel that is large enough to contain the stream under most flow conditions. This area is either bare or has aquatic and annual vegetation; perennial vegetation cannot grow there because its roots are too wet or its seedlings get swept away. The floodplain lies above the bankfull area.