Rankin v. Rankin , 2021 Ohio 1967 ( 2021 )

[Cite as Rankin v. Rankin, 2021-Ohio-1967.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
Andrea Rankin, :
Plaintiff-Appellee, : Nos. 20AP-223
and 20AP-304
v. : (C.P.C. No. 17DR-2010)
Andrew Rankin, : (REGULAR CALENDAR)
Defendant-Appellant. :
D E C I S I O N
Rendered on June 10, 2021
On brief: Kuhn Limited, and Ryan D. Kuhn, for appellee.
Argued: Ryan D. Kuhn.
On brief: Petroff Law Offices LLC, Christopher L. Trolinger,
and Ronald R. Petroff, for appellant. Argued: Christopher L.
Trolinger.
APPEALS from the Franklin County Court of Common Pleas,
Division of Domestic Relations, Juvenile Branch
BROGAN, J.
{¶ 1} Defendant-appellant, Andrew Rankin ("Drew"), appeals two judgments
entered by the Franklin County Court of Common Pleas, Division of Domestic Relations,
Juvenile Branch: a April 13, 2020 decision and judgment entry ruling on Drew's motion to
modify a shared parenting plan, and a May 28, 2020 decision and judgment entry ruling
on the Civ.R. 75(H) motion for relief from judgment filed by Drew and request for attorney
fees filed by plaintiff-appellee, Andrea Rankin ("Andrea"). For the following reasons, we
affirm the trial court judgments.
Nos. 20AP-223 & 20AP-304 2
I. FACTS AND PROCEDURAL HISTORY
{¶ 2} Drew and Andrea met while students at The Ohio State University. Following
graduation, they secured jobs in Columbus and in September 2013 they married. The
parties had a child, E.R., in 2016. The following year, the parties petitioned the court to
dissolve their marriage and their marriage was ultimately terminated pursuant to a decree
of dissolution filed June 30, 2017. They further agreed to shared parenting of E.R., the
terms of which were journalized in the shared parenting plan. In pertinent part, the parties
agreed in the shared parenting plan:
The parents shall share in the parenting of the minor child so
that each parent may continue having a full and active role in
providing a sound and loving environment for her.
***
2. RESIDENTIAL PARENT AND LEGAL CUSTODIAN. Each
parent is hereby designated the residential parent and legal
custodian of [E.R.].
The designation in this Plan or in a final Shared Parenting
Decree of the residential parent for purpose of determining
school attendance of the minor child * * * does not affect the
designation of each parent as the "residential parent," the
"residential parent and legal custodian," or the "custodial
parent" of the minor child.
3. SCHOOL PLACEMENT PARENT. Mother is designated the
residential parent for school placement purposes for [E.R.], so
long as she resides in one of the following school districts that
the parties have agreed upon and approved:
o Jackson Local School District (Massillon, Ohio)
o Hilliard City School District
o Dublin City School District
o New Albany-Plain Local School District
o Worthington City School District
If Mother is not residing in one of the above referenced school
districts and Father is residing in one of the above referenced
school districts, then Father shall be designated as residential
parent for school placement purposes. If neither party is
residing in one of the above referenced school districts, then
Mother shall be designated residential parent for school
placement purposes.
Nos. 20AP-223 & 20AP-304 3
4. PHYSICAL LIVING ARRANGEMENTS.
At the time of entering into this Shared Parenting Plan, Mother
resides in Galloway, Ohio and Father resides in Columbus,
Ohio. The parties contemplate that Mother may elect to relocate
with [E.R.], to Jackson Township, Ohio (Canton area) where
Mother grew up and where Mother's family resides, prior to
[E.R.'s] enrollment in kindergarten.
The parents agree that if Mother elects to relocate to Jackson
Township, Ohio, she will not do so until May 1, 2019, at the
earliest. If Mother elects to relocate, she will have a window of
time between May 1, 2019 and the summer immediately prior
to [E.R.'s] enrollment in Kindergarten to do so. If Mother
relocates, she shall give Father at least 90 days', written notice
of her intent to relocate. The parties contemplate that Mother
may reside, temporarily with her parents in Jackson Township,
Ohio following her relocation. However, Mother shall obtain her
own residence within 180 days after her relocation.
It is the present understanding of the parties that Father also
will relocate to the Canton, Ohio area (defined as: Jackson
Township, Ohio, Canton, Ohio or Massillon, Ohio), if Mother
and the child relocate, to be closer to the child, as Father may
have the ability to transfer to the Canton area with his present
employment. Nothing in this section requires Mother to
relocate to Jackson Township, Ohio. Further, nothing in this
section is intended to prevent Mother or Father from relocating
from the Hilliard School District to a residence in Dublin, Ohio,
Worthington, Ohio or New Albany, Ohio. The parents have set
forth alternate parenting time schedules, below, to address
parenting time if they both reside in the same geographical
location (i.e. within 25 miles of one another), and also to
provide for parenting time in the event that Mother relocates to
Jackson Township, Ohio, but Father does not reside in the
Canton area (defined as Jackson Township, Massillon, or
Canton, Ohio).
(May 23, 2017 Shared Parenting Plan at 1-8.) The plan continued to proscribe certain
regular parenting time so long as both parents resided in central Ohio, Jackson Township,
Massillon or Canton, Ohio and another scenario of regular parenting time if Andrea
relocated to Jackson Township, Ohio but Drew resided outside of Jackson Township,
Massillon or Canton. The plan states it "reflects the current agreement of the parents
respecting the care and support of the minor child" and that "[b]oth parents believe that
this Shared Parenting Plan is in the child's best interests." (May 23, 2017 Shared Parenting
Nos. 20AP-223 & 20AP-304 4
Plan at 24.) It also provides leeway for modification: "Both parents recognize the need for
flexibility to meet the child's best interests, as may be necessitated by future circumstances.
To this end, the parents understand that, under Ohio law, they may modify this Plan as may
be necessary or desirable to serve the child's best interests. In addition, the parents agree
that the Court may modify any and all provisions of this Shared Parenting Plan in the event
that they are unable to resolve any dispute." (May 23, 2017 Shared Parenting Plan at 24.)
{¶ 3} The trial court found that shared parenting, in accordance with the shared
parenting plan, was in the best interest of E.R. and incorporated the plan into a Shared
Parenting Decree dated June 30, 2017. According to the decree, the terms of the shared
parenting plan became orders of the court and the parties were ordered to "fulfill each and
every obligation imposed by the [s]hared [p]arenting [p]lan." (June 30, 2017 Shared
Parenting Decree at 2.) The decree further stated the shared parenting plan was subject to
modification by request of either party.
{¶ 4} Both parties remarried and obtained residences, approximately one mile
apart from each other, in the Hilliard school district. E.R. attended preschool in the area
and developed a friendship there. By all accounts, the shared parenting arrangement
generally worked smoothly, and the parents' maintained a positive and healthy
environment for E.R.
{¶ 5} In early February 2019, Andrea provided Drew with written notice of her
intent to relocate to the Canton, Ohio area in the Jackson Local Township school district.
On February 6, 2019, Drew filed a motion to modify the shared parenting plan. In the
motion Drew argued:
[S]ince the contemplation and filing of the parties' Joint Shared
Parenting Plan, Father's work situation has changed.
Specifically, the position with Father's employer that was
previously available in Northeast Ohio no longer exists.
Further, over the past two years, Father has established himself
as a market leader in the Central Ohio area. As such, finding a
new job in the Jackson Township, Ohio area would result in a
significant pay cut.
As Father is currently exercising time on a 50/50 basis,
Mother's relocation to Jackson Township, Ohio is no longer in
the child's best interest as it would result in a significant
decrease in parenting time. Undoubtedly, given the child's
young age, this would seriously hurt the parent-child
Nos. 20AP-223 & 20AP-304 5
relationship that has been established over the past year and a
half. Based on these new circumstances, Father requests that
Mother's request to relocate be denied, or, in the alternative,
that the minor child be ordered to remain in Central Ohio
should Mother choose to proceed with the move.
(Emphasis sic.) (Feb. 6, 2019 Motion to Modify Shared Parenting Plan at 2-3.) Drew also
requested a change to the vacation provision of the shared parenting plan, an issue not
challenged in this appeal.
{¶ 6} A trial on Drew's motion to modify the shared parenting plan commenced
August 19, 2019 in front of a trial court magistrate. At the time of the hearing before the
magistrate, both parties were expecting a child in the fall with their respective new spouses.
Following the trial, the magistrate granted Drew's motion to modify the shared parenting
plan and specified, among other changes, that the school placement section of the plan
should state:
Both parents are designated the residential parent for school
placement purposes for the minor child for so long as they both
continue to reside within the same school district (currently
Hilliard City School District). Should either parent relocate
outside of the current school district (Hilliard City Schools) and
the other parent chooses not to relocate with the other parent
to the same school district, the other parent (the parent
remaining within the Hilliard City School District) shall be
designated the residential parent for school placement
purposes.
(Footnote omitted.) (Nov. 26, 2019 Mag.'s Decision at 16.)
{¶ 7} Andrea filed an objection to the magistrate's decision. Andrea argued in
pertinent part that the magistrate made a number of findings and modifications that were
never requested by either party and that such modifications were not in E.R.'s best interest.
Andrea specifically contended the magistrate erred in failing to enforce or interpret the
shared parenting agreement and that the failure to do so improperly placed the burden on
her instead of Drew. Andrea further believed the magistrate: ignored Andrea's reasons for
relocating entirely, failed to consider Drew's lack of credibility, his desire to relocate outside
of Hilliard, his indecisiveness, and his job prospects in the Canton area, did not consider
E.R.'s young age compared to the weight given to her ties to her community, and found
"hostility" unsupported by the record. (Obj. at 21.)
Nos. 20AP-223 & 20AP-304 6
{¶ 8} A hearing on the objection was held by the trial court judge in February 2020.
By decision filed April 13, 2020, the trial court judge granted, in part, Andrea's objection to
the magistrate's decision. Specifically, the trial court judge found that it is in E.R.'s best
interest for her parents to continue to have shared parenting in accordance with the shared
parenting plan, with modifications to the plan to allow for more out-of-state vacation with
E.R. and to provide Drew with additional parenting time if he remains in Central Ohio after
Andrea moves to Canton.
{¶ 9} Drew filed a notice of appeal of the April 13, 2020 judgment, a motion to stay
the trial court decision, and a motion for an emergency restraining order prohibiting
Andrea from removing E.R. from Franklin County and relocating to Canton. The trial court
denied both motions. Drew then filed a motion for relief pending appeal pursuant to Civ.R.
75(H) asking the trial court to modify Drew's parenting time while the appeal was pending.
Andrea responded contesting the modification and requesting attorney fees she incurred in
defending his various motions. On May 28, 2020, the trial court found the record supported
the partial awarded attorney fees requested by Andrea. Drew filed a notice of appeal from
the May 28, 2020 judgment. This court consolidated the two appeals by judgment entry
dated June 9, 2020.
II. ASSIGNMENTS OF ERROR
{¶ 10} Drew assigns the following eight assignments of error for our review:
[I.] THE TRIAL COURT ERRED IN RELEGATING THE BEST
INTEREST STANDARD FOR MODIFICATION OF A
SHARED PARENTING PLAN TO THAT OF A CONTRACT
INTERPRETATION AND/OR ENFORCEMENT IN
VIOLATION OF THE DOCTRINE OF PARENS PATRIAE AND
R.C. § 3109.04.
[II.] THE TRIAL COURT ERRED IN FAILING TO
DETERMINE THE CHILD'S BEST INTEREST AT THE TIME
OF TRIAL INSTEAD OF THE DATE OF THE ORIGINAL
SHARED PARENTING PLAN.
[III.] THE TRIAL COURT ERRED IN FINDING THAT
MOTHER'S RELOCATION TO BE WITH EXTENDED
FAMILY IS IN THE CHILD'S BEST INTEREST AND THAT
MODIFYING THE SHARED PARENTING PLAN TO HAVE
EQUAL PARENTING TIME WITH BOTH BIOLOGICAL
PARENTS AND SIBLINGS IN THE CHILD'S CURRENT
Nos. 20AP-223 & 20AP-304 7
SCHOOL DISTRICT WAS NOT IN THE CHILD'S BEST
INTEREST.
[IV.] THE TRIAL COURT ERRED IN FAILING TO CONSIDER
THAT THE FACTS AND CIRCUMSTANCES OF THE
PARTIES HAD CHANGED SINCE THE ORIGINAL SHARED
PARENTING PLAN WAS ADOPTED BY THE COURT.
[V.] THE TRIAL COURT ERRED IN FINDING APPELLANT
UNCREDIBLE REGARDING HIS ABILITY OR INABILITY TO
OBTAIN EMPLOYMENT IN CANTON, OHIO.
[VI.] THE TRIAL COURT ERRED IN FINDING THAT
APPELLANT HAD AN INTENTION TO RELOCATE
OUTSIDE THE STATE OF OHIO.
[VII.] THE TRIAL COURT ERRED IN RELYING ON
INFORMATION THAT WERE FACTS NOT IN EVIDENCE OR
TESTIMONY BUT WERE ONLY PRESENTED DURING
ARGUMENT OF COUNSEL ON OBJECTIONS.
[VIII.] THE TRIAL COURT ERRED IN GRANTING AN
ORDER OF ATTORNEY FEES PURSUANT TO R.C. §
3105.73(B) IN ITS MAY 28, 2020 DECISION AND ENTRY
GRANTING 75(H) RELIEF.
III. STANDARD OF REVIEW
{¶ 11} In ruling on objections to a magistrate's decision, the trial court must
undertake an independent review of the matters objected to in order "to ascertain [whether]
the magistrate has properly determined the factual issues and appropriately applied the
law." Civ.R. 53(D)(4)(d). Ramsey v. Ramsey, 10th Dist. No. 13AP-840, 2014-Ohio-1921,
¶ 16-17. Generally, when reviewing an appeal from a trial court's action on a magistrate's
decision under Civ.R. 53(D)(4), an appellate court must determine whether the trial court
abused its discretion in adopting or rejecting the decision. Scott v. Nameth, 10th Dist. No.
16AP-64, 2016-Ohio-5532, ¶ 10. Modifications to a shared parenting plan are likewise
reviewed under an abuse of discretion standard. Ramsey at ¶ 43; Bentley v. Harper, 4th
Dist. No. 18CA3858, 2019-Ohio-5420, ¶ 7. See H.R. v. L.R., 181 Ohio App.3d 837, 2009-
Ohio-1665, ¶ 13 (10th Dist.) (stating that a trial court "has broad discretion in determining
the appropriate allocation of parental rights and responsibilities.") An abuse of discretion
occurs when the court's attitude is unreasonable, arbitrary or unconscionable. Blakemore
Nos. 20AP-223 & 20AP-304 8
v. Blakemore, 5 Ohio St.3d 217, 219 (1983). An appellate court reviews questions of law de
novo. Scott ¶ 10; Ramsey at ¶ 29.
IV. LEGAL ANALYSIS
{¶ 12} Drew's eight assignments of error can be distilled into five main issues: (1) the
trial court's reliance on the shared parenting plan, (2) certain factual findings and
credibility determinations made by the trial court, (3) the trial court's reliance on evidence
presented during the objection stage, (4) the trial court's ultimate best interest of the child
determination, and (5) the trial court's award of attorney fees.
{¶ 13} Prior to addressing Drew's specific arguments in support of his assigned
errors, we note the parties agree this appeal concerns a request to modify the terms of the
parties' shared parenting plan and that R.C. 3109.04(E)(2)(b) governs this case. R.C.
3109.04(E)(2)(b) states:
The court may modify the terms of the plan for shared
parenting approved by the court and incorporated by it into the
shared parenting decree upon its own motion at any time if the
court determines that the modifications are in the best interest
of the children or upon the request of one or both of the parents
under the decree. Modifications under this division may be
made at any time. The court shall not make any modification to
the plan under this division, unless the modification is in the
best interest of the children.
See Bruns v. Green, __Ohio St.3d.__, 2020-Ohio-4787, ¶ 11 (explaining that "[s]ubsection
(E)(2)(b) authorizes the trial court—on its own initiative or at the request of one or both
parents—to modify the terms of the shared-parenting plan when modification is found to
be in the best interest of the child" and a change-in-circumstances determination is not
required); Ramsey at ¶ 32-41 (finding the amount of parenting time to be a term of the
shared parenting plan); Myers v. Wade, 10th Dist. No. 16AP-667, 2017-Ohio-8833, ¶ 12-13
(finding provisions relating to school placement are terms of a shared parenting plan). The
parties further agree that the party to move for modification of the shared parenting plan,
in this case Drew, had the burden of proving the modification of the shared parenting plan
is in the child's best interest. See Johnson-Wooldridge v. Wooldridge, 10th Dist. No. 00AP-
1073 (July 26, 2001) ("[T]he burden of proof is upon the party seeking modification.").
Nos. 20AP-223 & 20AP-304 9
A. Reliance on the Shared Parenting Plan
{¶ 14} Drew first asserts the trial court essentially made a legal error in "rel[ying] on
principles of contract law and interpretation" and "reading principles of contract into R.C.
§ 3109.04 for purposes of modification of a shared parenting plan." (Drew's Brief at ix.)
Drew believes the trial court violated the "doctrine of parens patriae" and "undermine[d]
the best interest standard" by looking to what the parties' had previously agreed to in their
shared parenting plan. (Drew's Brief at ix.) Drew relatedly argues the trial court's "reliance"
on the 2017 shared parenting plan, and the circumstances leading to that agreement, led
the trial court to fail to adequately consider the current circumstances in evaluating the best
interest of E.R. at the time of trial. (Drew's Brief at ix.)
{¶ 15} We disagree. As evidence of the trial court improperly emphasizing the
shared parenting plan, Drew points to the trial court's recitation of Andrea's objection,
which argued that the contractual nature of the shared parenting plan could not be
unilaterally repudiated due to a change of heart. But, contrary to Drew's position, the trial
court did not determine Drew "was bound to [the shared parenting plan] without due
consideration of whether such terms continued to be in the child's best interest as of the
date of trial." (Emphasis sic.) (Drew's Brief at 15.) The trial court stated repeatedly that the
best interest standard applied, examined current circumstances under the statutory best
interest of the child factors in R.C. 3109.04(F)(1) and (2), and concluded that "most
importantly, [the shared parenting plan bargained for by the parties] still remains in
[E.R.'s] best interest" and, again, "the Court finds that the Plan the Rankins carefully
crafted, is still in [E.R.'s] best interest." (Apr. 13, 2020 Decision at 23.) Having reviewed
Drew's contentions, we do not believe the trial court "relegate[d] the best interest standard
* * * to that of a contract interpretation and/or enforcement," or "fail[ed] to determine the
child's best interest at the time of trial." (Drew's Brief at vii, 14, 20.) Drew's assignments of
error that suggest otherwise, including his first and second assignments of error, are
overruled.
B. Factual Findings and Credibility Determinations
{¶ 16} Drew next challenges certain factual findings and credibility determinations
made by the trial court. Specifically, Drew argues the trial court erred by: finding him not
credible regarding his inability to obtain same or similar employment in Canton; finding
Nos. 20AP-223 & 20AP-304 10
that he "had an intention to relocate outside the State of Ohio"; and finding "nothing really
changed from what was fully anticipated" in the shared parenting plan. (Drew's Brief at iii,
29.)
{¶ 17} "The trial court is the ultimate fact finder and issue resolver. It is well
established that the trial court, as the fact finder, is free to believe all, part, or none of the
testimony of each witness." Hrabovsky v. Axley, 5th Dist. No. 2013CA00156, 2014-Ohio-
1168, ¶ 38. "[T]he weight given to a witness's testimony is an issue for the trier of fact; we
do not substitute our judgment concerning credibility of the witness for that of the trial
court." Bentley v. Harper, 4th Dist. No. 18CA3858, 2019-Ohio-5420, ¶ 16.
{¶ 18} In this case, the trial court was "not convinced that [Drew] cannot find
employment in the Canton/Cleveland/Akron area." (Apr. 13, 2020 Decision at 20.) The
trial court continued "[h]e simply does not want to move. * * * Finding new jobs may
certainly not be easy, but is not impossible[.] * * * [Drew] agreed to and can move to Canton,
and remain as active, or close to it, as he presently is. He may have to change employers.
He may not. He said he would never live far from [E.R.]. * * * This comment concludes he
can and will move." (Apr. 13, 2020 Decision at 20-22.) The trial court thought "it is also
important to note that the Court finds [Drew] did not make a good-faith effort to pursue
employment in Canton so his claim that he cannot find meaningful employment in
northeast Ohio is disingenuous." (Apr. 13, 2020 Decision at 22.)
{¶ 19} In coming to this determination, the trial court found the testimony of an
employment expert discounted by the magistrate to be relevant, and noted the proffered
testimony of the expert showed that jobs were available in northeastern Ohio for which
Drew is qualified and would have paid the same or similar wages. The trial court also found
that Drew's quick e-mail response to Andrea after her notice to relocate, stating she would
"hear from his lawyer," showed Drew did not actually make a concerted effort to find
employment in northeastern Ohio. (Apr. 13, 2020 Decision at 21.) The trial court's findings
disputed by Drew here are supported by the record, and we do not find the trial court's
determination regarding Drew's purported inability to find work in northeastern Ohio to
be in error or otherwise inappropriate within the context of an R.C. 3109.04(F) analysis.
See R.C. 3109.04(F)(1) and (2) (stating the court is "not limited to" the listed factors). We
further note that the trial court's discretion as a fact finder is not altered where the trial is
Nos. 20AP-223 & 20AP-304 11
assigned to a magistrate. Williamson v. Williamson, 7th Dist. No. 16 JE 0022, 2017-Ohio-
1082, ¶ 20-21 ("the fact that the magistrate and not the trial court heard the witnesses
testify does not change our review"), citing Davis v. Davis, 5th Dist. No. 2016 AP 05 0031,
2016-Ohio-7205, ¶ 33-34. Drew's fifth assignment of error is overruled.
{¶ 20} We likewise find no error in the trial court's treatment of Drew's
contemplation of moving outside of Ohio. While Drew argues here that the trial court found
he "had an intention to relocate outside the State of Ohio," the trial court's finding was not
so pointed. (Drew's Brief at 32.) The trial court found that Drew "is considering a move to
North Carolina to help care for his critically ill mother" and found that "there is a potential
he could move to North Carolina." (Apr. 13, 2020 Decision at 16-17.) This finding was
based on Drew's testimony in response to being asked whether he had any plans to move
to North Carolina. He testified, "I don't know at this time" and "[t]oday, no * * * I feel like I
have just as much right to be near my family as Andrea has to be near hers." He also testified
that "at the moment" he had not looked at job opportunities in North Carolina, but he did
"plan to at least consider it, to look" and "to at least do some due diligence and look into it."
(Tr. Vol. I at 674-75.) Competent, credible evidence supported the trial court's finding here,
and we again find no issue with the trial court's consideration of the potential move within
the parameters of the R.C. 3109.04(F) analysis. See R.C. 3109.04(F)(1) and (2) (stating the
court is "not limited to" the listed factors). Drew's sixth assignment of error is overruled.
{¶ 21} Lastly, we do not attribute the same meaning to the trial court's comment
"nothing really changed from what was fully anticipated" as does Drew. (Apr. 13, 2020
Decision at 23; Drew's Brief at 29.) Drew cites to evidence of the changes experienced by
the parties—marriages, pregnancies, home purchases, employment—and implies the trial
court did not consider these changes in making its best interest of the child determination.
Contrary to Drew's position, these changes were acknowledged and discussed by the trial
court in its decision. Rather than the trial court literally meaning no changes at all had
occurred to the parties that factor into the best interest analysis, we find in context of the
decision that the trial court considered the changes that occurred in the parties' lives, but
believed such changes did not negate the parameters of the parties' agreed shared parenting
plan or otherwise render it no longer in E.R.'s best interest. We find no error in the trial
court's statement. Drew's fourth assignment of error is overruled.
Nos. 20AP-223 & 20AP-304 12
C. Reliance on Evidence Presented in the Objection Stage
{¶ 22} Drew contends the trial court erred in "relying on additional information that
was presented through argument of counsel instead of sworn testimony or other evidence
in making its decision." (Drew's Brief at 33.) The additional information Drew believes the
trial court errantly relied upon pertains to E.R.'s friend (purportedly) no longer attending
the same preschool as E.R. Andrea counters that, in his memorandum contra Andrea's
objection, Drew acknowledged that E.R.'s friend left the preschool. Moreover, Andrea
contends that even if the court erred by referencing information that was not formally
admitted as evidence, the trial court did not rely on that information in making its decision
and it was otherwise harmless error. We agree with Andrea.
{¶ 23} Before ruling on objections to a magistrate's decision, a trial "court may hear
additional evidence but may refuse to do so unless the objecting party demonstrates that
the party could not, with reasonable diligence, have produced that evidence for
consideration by the magistrate." Civ.R. 53(D)(4)(d). "Civ.R. 53(D)(4)(d) gives the trial
court broad discretion in deciding whether to hear additional evidence." Maddox v.
Maddox, 1st Dist. No. C-140718, 2016-Ohio-2908, ¶ 14.
{¶ 24} Here, Andrea in objecting to the magistrate's decision, requested the court
consider under Civ.R. 53(D)(4)(d) additional evidence, including the friend leaving E.R.'s
preschool. Other than oral argument on the objection, no hearing was held. In the section
of its decision discussing E.R.'s adjustment to home, school, and community, the trial court
stated that E.R. had grown "quite attached" to a peer at her preschool, and E.R. and the
preschool friend have frequent playdates. (Apr. 13, 2020 Decision at 14.) The trial court
continued "[h]owever [the friend] does not live in the Hilliard School District, so it was not
anticipated the [two children] would attend kindergarten together. (At the Objection
hearing level, it was learned that [the friend] no longer attends [the preschool].)." (Apr. 13,
2020 Decision at 14.) The trial court stated "[E.R.] seems to be as connected to the
community as her age allows. * * * Despite these activities, the Court notes this is a three-
year-old, not a teenager in high school who might have strong feelings about moving from
lifelong friends or high school teammates." (Apr. 13, 2020 Decision at 14-15.)
{¶ 25} In our view, the trial court's mention of E.R.'s friend no longer attending the
same preschool as E.R. does not demand reversal. After the trial court mentioned E.R.'s
Nos. 20AP-223 & 20AP-304 13
friend leaving her preschool, the trial court nonetheless still acknowledged E.R.'s
attachment to the friend, but tempered the weight of that attachment to fit the context of
friendships between three-year-olds. Drew does not argue against the trial court's
suggestion that friendships between three-year-olds do not yield the same strong feelings
as older children and does not dispute that the friend would not have attended E.R.'s
kindergarten in Hilliard. Because the trial court did not rely on this additional evidence
and, regardless, because the information about E.R.'s friend leaving her preschool was not
prejudicial, we overrule Drew's seventh assignment of error.
D. Best Interest of the Child Determination
{¶ 26} Drew contends the trial court erred in "finding that [Andrea's] relocation to
be with extended family is in [E.R.'s] best interest and that modifying the shared parenting
plan to have equal parenting time with both biological parents and siblings in [E.R.'s]
current school district was not in [E.R.'s] best interest." (Drew's Brief at vii, 20-21.) We
disagree.
{¶ 27} "A trial court must follow R.C. 3109.04 when deciding child custody matters
but it has broad discretion when determining what is the appropriate allocation of parental
rights and responsibilities." Pallone v. Pallone, 10th Dist. No. 17AP-409, 2017-Ohio-9324,
¶ 36, citing Parker v. Parker, 10th Dist. No. 05AP-1171, 2006-Ohio-4110, ¶ 23. "The
legislature, through R.C. 3109.04, concerning the allocation of parental rights and
responsibilities for the care of children, or "shared parenting," seems to instruct that once
allocation is established, whether by decree (declaring that shared parenting shall occur) or
according to a plan (implementing the decree or order), changing it is presumed to be ill-
advised unless it can be established foremost that the change will be in the best interest of
the children." Myers v. Wade, 10th Dist. No. 16AP-667, 2017-Ohio-8833, ¶ 10. See R.C.
3109.04(E)(2)(b).
{¶ 28} R.C. 3109.04(F)(1) contains a non-exclusive list of factors for the trial court
to consider in determining whether a modification to a shared parenting arrangement is in
the best interests of the child. This list includes:
(a) The wishes of the child's parents regarding the child's care;
(b) If the court has interviewed the child in chambers pursuant
to division (B) of this section regarding the child's wishes and
concerns as to the allocation of parental rights and
Nos. 20AP-223 & 20AP-304 14
responsibilities concerning the child, the wishes and concerns
of the child, as expressed to the court;
(c) The child's interaction and interrelationship with the child's
parents, siblings, and any other person who may significantly
affect the child's best interest;
(d) The child's adjustment to the child's home, school, and
community;
(e) The mental and physical health of all persons involved in
the situation;
(f) The parent more likely to honor and facilitate court-
approved parenting time rights or visitation and
companionship rights;
(g) Whether either parent has failed to make all child support
payments, including all arrearages, that are required of that
parent pursuant to a child support order under which that
parent is an obligor;
(h) Whether either parent or any member of the household of
either parent previously has been convicted of or pleaded guilty
to any criminal offense involving any act that resulted in a child
being an abused child or a neglected child; whether either
parent, in a case in which a child has been adjudicated an
abused child or a neglected child, previously has been
determined to be the perpetrator of the abusive or neglectful
act that is the basis of an adjudication; whether either parent
or any member of the household of either parent previously has
been convicted of or pleaded guilty to a violation of section
2919.25 of the Revised Code or a sexually oriented offense
involving a victim who at the time of the commission of the
offense was a member of the family or household that is the
subject of the current proceeding; whether either parent or any
member of the household of either parent previously has been
convicted of or pleaded guilty to any offense involving a victim
who at the time of the commission of the offense was a member
of the family or household that is the subject of the current
proceeding and caused physical harm to the victim in the
commission of the offense; and whether there is reason to
believe that either parent has acted in a manner resulting in a
child being an abused child or a neglected child;
(i) Whether the residential parent or one of the parents subject
to a shared parenting decree has continuously and willfully
Nos. 20AP-223 & 20AP-304 15
denied the other parent's right to parenting time in accordance
with an order of the court;
(j) Whether either parent has established a residence, or is
planning to establish a residence, outside this state.
Furthermore, "[i]n determining whether shared parenting is in the best interest of the
children, the court shall consider all relevant factors, including, but not limited to, the
factors enumerated in division (F)(1) of this section, the factors enumerated in section
3119.23 of the Revised Code, and all of the following factors:"
(a) The ability of the parents to cooperate and make decisions
jointly, with respect to the children;
(b) The ability of each parent to encourage the sharing of love,
affection, and contact between the child and the other parent;
(c) Any history of, or potential for, child abuse, spouse abuse,
other domestic violence, or parental kidnapping by either
parent;
(d) The geographic proximity of the parents to each other, as
the proximity relates to the practical considerations of shared
parenting;
(e) The recommendation of the guardian ad litem of the child,
if the child has a guardian ad litem.
R.C. 3109.04(F)(2).
{¶ 29} Drew acknowledges the trial court correctly identified and reviewed all
factors contained in R.C. 3109.04(F)(1) and (2) but contends the trial court allowed
Andrea's interest to "overshadow the best interest of the child analysis" and "failed to give
appropriate weight to the relationship between [Drew] and [E.R.] instead of the proximity
of [Andrea's] extended family," especially given Andrea could and does see her family
frequently during her parenting time and that such a move would "uproot" the lives of all
involved. (Drew's Brief at x, 28.) He also believes the trial court "failed to acknowledge that
both parents believed that it would be in [E.R.'s] best interest to have equal time with both
parents and that [Andrea] would not move to Canton, Ohio if the Shared Parenting Plan
was modified." (Drew's Brief at x.) He argues the trial court erred in relying on its credibility
determination regarding his inability to find employment in the Canton area, failed to
address the fact that relocation would negatively impact E.R.'s ability to participate in
Nos. 20AP-223 & 20AP-304 16
extracurricular activities, and generally gave too much weight to the shared parenting plan
particularly given the substantial changes that have occurred since the plan.
{¶ 30} In support of his arguments, Drew cites to Rodkey v. Rodkey, 8th Dist. No.
86884, 2006-Ohio-4373, ¶ 29, as an analogous case that supports his view that relocation
is not in the best interest of E.R. In Rodkey, the shared parenting plan specified that neither
parent could remove the child from Cuyahoga County or an adjacent county without first
obtaining written permission from the other parent or a court order. The mother filed a
motion to remove the child from Cuyahoga County to the Youngstown area. A magistrate
entered a decision that, in pertinent part, denied the mother's motion to relocate with the
child, who, at that time, was in second grade in the mother's school district. The trial court
adopted the magistrate's decision, the mother appealed, and the appellate court affirmed.
Noting "relocation of a child is a substantial factor in any case involving shared parenting,
particularly where a greater distance is placed between the parties," the appellate court
found the record of that case did not support a finding that relocation would be in the child's
best interest. Id.{¶ 31} Rodkey does not demand reversal in this case. The record in Rodkey included
an older, elementary-age child, a father that had a significantly more flexible schedule than
the mother (that ultimately led to the appellate court to designate him as the residential
parent for school purposes), and an expert's opinion that relocation would have a
deleterious effect on the father-child relationship. The record in Rodkey also did not
include any evidence that the father had originally intended to relocate along with the
mother.
{¶ 32} The record evidence in the case at hand supported the trial court's
determination that retaining the relocation related provisions of the shared parenting plan
remained in E.R.'s best interest. Pallone at ¶ 37, quoting C.E. Morris Co. v. Foley Constr.
Co., 54 Ohio St.2d 279 (1978), syllabus ("Judgments supported by some competent,
credible evidence going to all the essential elements of the case will not be reversed by a
reviewing court as being against the manifest weight of the evidence."). The trial court
found it is in E.R.'s best interest to allow relocation so she can be surrounded by extended
family and in a good school system. Drew frames the trial court opinion as placing more
weight on E.R.'s proximity to extended family than to her father and sibling. Drew's
Nos. 20AP-223 & 20AP-304 17
argument in this respect in large part depends on equating Andrea's relocation to the
Canton area as a significant physical barrier between him and E.R. that reduces his
parenting time and involvement, which is not in E.R.'s best interest.
{¶ 33} However, this argument misses the trial court's opinion that distance really
should not be an issue since Drew "can and will move" based on record evidence. (Apr. 13,
2020 Decision at 22.) Drew previously agreed to move to the Canton area to be near E.R. if
Andrea exercised her option to relocate, he testified he would never be far from E.R., and
jobs are available to Drew in the Canton area. As previously discussed, the trial court found
Drew's statements on employment to be disingenuous, and this finding is supported by the
record. As acknowledged by Drew in his own argument, it is the best interest of E.R. that is
dispositive in this analysis, not necessarily the convenience or inconvenience to other
parties.
{¶ 34} The trial court likewise found that, even if Drew chooses to not relocate to be
near E.R., the permissive relocation provisions in the shared parenting plan continue to be
in E.R.'s best interest. Drew previously agreed with this position, including a specific
schedule in a Canton/Columbus parenting scenario. Drew now argues against it. We
acknowledge the significance of the arrival of E.R.'s new siblings, in particular, since Drew's
agreement to the shared parenting plan. However, as the trial court noted, E.R. will still
have frequent and significant contact with the family on Drew's side and we note the trial
court modified the shared parenting plan to give Drew more time than what he previously
believed to be in E.R.'s best interest in this scenario. Drew's testimony that he would look
into a potential move outside of Ohio did not strengthen his position that Andrea should
remain with E.R. in central Ohio.
{¶ 35} Overall, the trial court reviewed the evidence and the best interest factors and
determined that it is in E.R.'s best interest that the relocation and related school provisions
remain as originally agreed to by the parties in their shared parenting plan, with a
modification for more parenting time should Drew choose to remain in the Columbus area.
That determination is supported by the weight of the evidence. Based on the foregoing, we
cannot say the trial court acted unreasonably, arbitrarily or unconscionably in refusing to
modify the shared parenting plan to remove Andrea's ability to relocate to the Canton area.
Accordingly, we overrule Drew's third assignment of error.
Nos. 20AP-223 & 20AP-304 18
E. Attorney Fees
{¶ 36} Finally, Drew contends, specific to the trial court's May 28, 2020 decision and
entry, that the trial court erred in granting an order of attorney fees pursuant to R.C.
3105.73(B), which provides:
In any post-decree motion or proceeding that arises out of an
action for divorce, dissolution, legal separation, or annulment
of marriage or an appeal of that motion or proceeding, the court
may award all or part of reasonable attorney's fees and
litigation expenses to either party if the court finds the award
equitable. In determining whether an award is equitable, the
court may consider the parties' income, the conduct of the
parties, and any other relevant factors the court deems
appropriate, but it may not consider the parties' assets.
An award of attorney fees in a domestic relations action is within the sound discretion of
the trial court and will not be reversed on appeal absent an abuse of discretion. Colombo
v. Chesser, 10th Dist. No. 17AP-278, 2018-Ohio-1477, ¶ 15, citing Settele v. Settele, 10th
Dist. No. 14AP-818, 2015-Ohio-3746, ¶ 51. A trial court is not required to receive expert
testimony in order to award attorney fees under R.C. 3105.73. Long v. Long, 10th Dist.
No. 11AP-510, 2012-Ohio-6254, ¶ 20. Instead, the trial court "may rely on its own
knowledge and experience to determine the reasonableness of the amount claimed." Id.{¶ 37} In this case, following the trial court's decision on the relocation provisions
of the parties' shared parenting plan, Andrea asked for $4,962.50 to cover the amount of
attorney fees she incurred defending against five motions filed by Drew. Within a combined
memorandum in opposition to Drew's second Civ.R. 75 motion and request for attorney
fees, she argued:
[I]n the last eight weeks alone, [Drew] filed five separate
motions requesting adjustment to [the] parenting time
schedule. On March 18, Drew requested equal parenting time
via motion to extend an interim order; it was denied. On
April 1, Drew requested equal parenting time via a 2nd motion
to extend an interim order; it was denied. On April 14, Drew
requested equal parenting time via motion for stay under
Civ.R. 75(H); it was denied; On April 21, Drew sought to
maintain the equal parenting time schedule via motion for
emergency temporary restraining order; it was denied. And
now, in his fifth and latest motion filed April 24, Drew against
requests equal parenting time via Civ.R 75(H).
Nos. 20AP-223 & 20AP-304 19
With each new filing, Drew simply slaps a fresh coat of lipstick
onto the pig. The relief requested is always same - - equal
parenting time; an outcome specifically rejected by the Court
following trial.
Drew acknowledges such in his affidavit:
despite the minor child not being of school age, the court did
not find it pertinent to order an equal parenting time schedule
even if [Drew] could not relocate.
Drew has not petitioned for relief under Civ.R. 59 or 60 and he
has identified no statutory authority which permits alternate
relief to be awarded on an expedited basis, without evidentiary
hearing, during the pendency of an appeal. Drew is simply
asking this Court to reconsider and rewrite its decision. The
Rules provide for no such relief.
(Emphasis sic.) (May 18, 2020 Memo. in Opp. at 3.) Andrea continued that Drew's
requests were unsupported by law, mislead the court, and were an attempt to "delay[,]
obfuscate, compound, and confuse." (May 18, 2020 Memo. in Opp. at 5.) She included an
affidavit attesting to the amount of fees incurred.
{¶ 38} The trial court in a May 28, 2020 decision found the record supported an
award of attorney fees under R.C. 3105.73(B). The trial court found "Andrea's counsel is an
experienced domestic relations attorney" and, "after consideration of the specific facts
herein, and the litigations history of the past month," the trial court concluded that an
award in the amount of $2,000 to Andrea is "reasonable and appropriate." (May 28, 2020
Decision at 5, citing Ward v. Ward, 10th Dist. No. 85AP-61 (June 18, 1985), the trial court
noted it may use its own knowledge and experience to determine the reasonableness of the
amount claimed.)
{¶ 39} Drew argues the trial court erred by ordering him to pay the attorney fees
award without providing specific findings justifying such an award of fees: "There are no
findings as what equitable considerations the court found to justify the award of attorney
fees or for what motions, specifically, the fees were awarded for defending against or why
an award was justifiable." (Drew's Brief at 35.) Drew asserts that in filing his motions, he
"was utilizing the available legal remedies as an attempt to preserve the status quo while
the appeal was pending to avoid the potential for additional upheaval of the family," and
Nos. 20AP-223 & 20AP-304 20
"the trial court's determination that such conduct justifies an award of attorney fees is
inequitable." (Drew's Brief at 36.) Drew additionally asserts "there was no motion filed
requesting attorney fees." (Drew's Reply Brief at 16.)
{¶ 40} Andrea responds that during a five-week span Drew filed five separate
motions with the main aim of gaining equal parenting time, which the trial court had
already rejected, and trying to convince the trial court to rewrite its decision. Andrea notes
that the trial court awarded only 40 percent of the attorney fees she incurred defending
against the five motions.
{¶ 41} At the outset, we note that Drew has not provided this court with any legal
authority to support his argument that a trial court is obligated to state the specific basis
for its award of attorney fees under R.C. 3105.73(B), or that a request for attorney fees must
be made by separate motion. As a result, we find Drew has not demonstrated error on
appeal. J.W. v. D.W., 10th Dist. No. 19AP-52, 2019-Ohio-4018, ¶ 55, citing State v. Smith,
9th Dist. No. 15AP0001n , 2017-Ohio-359, ¶ 22 (noting it is not the duty of an appellate
court to create an argument on an appellant's behalf). Abraham v. BP Exploration & Oil,
Inc., 149 Ohio App.3d 471, 479 (10th Dist.2002) ("Pursuant to App.R. 16(A)(7), an
appellant must present their contentions with respect to each assignment of error
presented for review and the reasons in support of the contentions with citations to the
authorities, statutes, and parts of the record on which they rely.").
{¶ 42} Moreover, after considering the record in this case, we cannot say the trial
court abused its discretion in awarding Andrea $2,000 toward her attorney fees. The trial
court could have reasonably concluded that Drew's filing of multiple motions concerning
similar issues caused Andrea to unnecessarily incur attorney fees. The court had sufficient
evidence of Drew's conduct before it, taken together with its own observations and
experience, on which to conclude that a partial award of attorney fees was reasonable in
this case. See Ramsey at ¶ 52 (noting that a party's behavior in filing repetitive motions
and "extra-curricular activities" may serve as the basis for attorney fees under R.C.
3105.73(B)).
{¶ 43} Accordingly, we overrule Drew's eighth assignment of error.
Nos. 20AP-223 & 20AP-304 21
V. CONCLUSION
{¶ 44} Having overruled Drew's eight assignments of error, we affirm the judgments
of the Franklin County Court of Common Pleas, Division of Domestic Relations, Juvenile
Branch.
Judgments affirmed.
DORRIAN, P.J., and MENTEL, J., concur.
_________________
BROGAN, J., retired, formerly of the Second Appellate District,
Assigned to active duty under authority of the Ohio
Constitution, Article IV, Section 6(C).