Gibson v. Gibson ( 2016 )


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  • [Cite as Gibson v. Gibson, 
    2016-Ohio-4996
    .]
    IN THE COURT OF APPEALS
    TWELFTH APPELLATE DISTRICT OF OHIO
    CLINTON COUNTY
    SHANE GIBSON,                                       :
    CASE NO. CA2016-01-002
    Appellee,                                   :
    OPINION
    :            7/18/2016
    - vs -
    :
    JENIFER LYNN GIBSON,                                :
    Appellant.                                  :
    APPEAL FROM CLINTON COUNTY COURT OF COMMON PLEAS
    DOMESTIC RELATIONS DIVISION
    Case No. DR20130482
    Sharon A. Kornman, 731 South South Street, P.O. Box 1041, Wilmington, Ohio 45177, for
    appellee
    Jason A. Showen, 324 East Warren Street, Lebanon, Ohio 45036, for appellant
    S. POWELL, J.
    {¶ 1} Defendant-appellant, Jenifer Gibson ("Mother"), appeals from a decision of the
    Clinton County Court of Common Pleas, Domestic Relations Division, following her divorce
    from plaintiff-appellee, Shane Gibson ("Father"). For the reasons outlined below, we affirm.
    {¶ 2} Father and Mother were married in Wilmington, Ohio on September 11, 1999.
    Two children were born issue of the marriage, a daughter born August 27, 2001 and a son
    Clinton CA2016-01-002
    born on May 23, 2004. It is undisputed that the parties' daughter has been diagnosed with
    Sanfilippo Syndrome, a rare and fatal genetic disorder that requires extensive medical care.
    {¶ 3} On August 20, 2013, Father filed for divorce from Mother. In response, on
    September 17, 2013, Mother also filed for divorce from Father. Mother was then granted
    temporary custody of the children, whereas Father was awarded parenting time. A guardian
    ad litem was appointed and the parties were ordered to attend family counseling. Thereafter,
    when the parties were unable to agree with respect to the parental responsibilities, the trial
    court ordered the parties to undergo a psychological evaluation. The parties then filed
    several competing motions for contempt, with Mother also filing several motions requesting
    the trial court to provide a credit for payments she had made on the parties' credit card debt,
    as well as payments on their homeowner's insurance during the pendency of the divorce
    proceedings.
    {¶ 4} On July 17, 2014, a hearing was held before a magistrate to address several of
    the parties' various pre-trial motions. As relevant here, Mother argued that she was entitled
    to a credit for payments she had made on the parties' credit card debt. In response, the
    magistrate instructed Mother that the credit card debt as it existed at the time of their
    separation would be split equally so that she would "get credit for the payments eventually
    anyway." Mother also asked for a credit for payments she had made on the parties'
    homeowner's insurance. To this, on July 22, 2014, the magistrate issued a decision ordering
    the payments on their "[h]omeowner's insurance shall be split equally between the parties
    until further Order of the Court." The magistrate then scheduled the matter for a two-day final
    divorce hearing to begin on December 3, 2014.
    {¶ 5} On December 1, 2014, two days before the final divorce hearing was scheduled
    to begin, Mother filed a motion requesting shared parenting and a proposed shared parenting
    plan. The final divorce hearing was then held before the magistrate as scheduled, during
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    Clinton CA2016-01-002
    which time the magistrate heard testimony from both Father and Mother, as well as the
    guardian ad litem, among others.
    {¶ 6} On June 19, 2015, the magistrate issued its decision recommending the parties
    be divorced. As part of that decision, the magistrate concluded that ordering the parties to
    adhere to a shared parenting plan was not in their children's best interest. In so holding, the
    magistrate determined that "[w]ith the history of inability to communicate and make mutual
    decisions regarding the children, it is in their best interest if a specific parenting plan is
    devised which specifically addresses each parent's rights and responsibilities." As a result,
    the magistrate determined that Father should be the residential parent and legal custodian of
    their daughter, whereas Mother should be the residential parent and legal custodian of their
    son. However, the magistrate determined that Mother should be designated residential
    parent for both children for purposes of determining school placement. The magistrate
    further found that the payments Mother made on the homeowner's insurance following the
    parties' separation were not subject to reimbursement.
    {¶ 7} Both Father and Mother then filed objections to the magistrate's decision. As
    relevant here, Father objected to the magistrate's decision designating Mother as residential
    parent for both children for purposes of determining school placement. On the other hand,
    Mother objected to the magistrate's decision designating Father as the residential parent and
    legal custodian of their daughter rather than granting her request for shared parenting.
    Mother also objected to the magistrate's decision to not give her a credit for the payments
    she made towards the parties' credit card debt and homeowner's insurance while this matter
    was pending.
    {¶ 8} On December 29, 2015, after holding a hearing, the trial court issued a decision
    on the parties' objections to the magistrate's decision. Specifically, the trial court overruled
    Mother's objection to the magistrate's decision designating Father as the residential parent
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    Clinton CA2016-01-002
    and legal custodian of their daughter rather than granting her request for shared parenting.
    The trial court also overruled Mother's objections as they related to her request for a credit for
    the payments she made towards the parties' credit card debt and homeowner's insurance.
    However, the trial court sustained Father's objection to the magistrate's decision designating
    Mother as the residential parent for purposes of determining their daughter's school
    placement. In reaching this decision, the trial court stated that because Father is designated
    the residential parent for their daughter, "[Father] shall determine the school district that [their
    daughter] shall attend, not [Mother]."
    {¶ 9} Mother now appeals from the trial court's decision, raising three assignments of
    error for review.
    {¶ 10} Assignment of Error No. 1:
    {¶ 11} THE TRIAL COURT ABUSED ITS DISCRETION IN DENYING APPELLANT'S
    REQUEST FOR SHARED PARENTING.
    {¶ 12} In her first assignment of error, Mother argues the trial court abused its
    discretion by designating Father as the residential parent and legal custodian of their
    daughter rather than granting her request for shared parenting. We disagree.
    {¶ 13} R.C. 3109.04 governs the award of parental rights and responsibilities.
    Albrecht v. Albrecht, 12th Dist. Butler Nos. CA2014-12-240 and CA2014-12-245, 2015-Ohio-
    4916, ¶ 22. In making this determination, the trial court's primary concern is the best interest
    of the child. Rainey v. Rainey, 12th Dist. Clermont No. CA2010-10-083, 
    2011-Ohio-4343
    , ¶
    12. In order to determine the best interest of a child, R.C. 3109.04(F)(1) requires the trial
    court to consider all relevant factors. In re X.B., 12th Dist. Butler No. CA2014-07-168, 2015-
    Ohio-1174, ¶ 19. These factors include, but are not limited to (1) the wishes of the parents,
    (2) the child's interactions and interrelationships with parents, siblings, and other persons
    who may significantly affect the child's best interest, (3) the child's adjustment to home,
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    Clinton CA2016-01-002
    school and community, (4) the mental and physical health of all persons involved in the
    situation, (5) the parent more likely to honor and facilitate visitation, (6) whether one parent
    has denied the other parenting time, (7) whether either parent has failed to make all child
    support payments, (8) and whether either parent has established or is planning to establish a
    residence outside of Ohio. R.C. 3109.04(F)(1)(a), (c) thru (g), and (j). "[N]o single factor is
    determinative of the best interest of a child; rather, the determination should be made in light
    of the totality of the circumstances." Suess v. Suess, 12th Dist. Warren Nos. CA96-01-006
    and CA96-01-008, 
    1996 WL 571362
    , *2 (Oct. 7, 1996).
    {¶ 14} Moreover, with regard to whether shared parenting is in a child's best interest,
    the trial court must consider the additional factors set forth in R.C. 3109.04(F)(2). Evans-
    Dorn v. Dorn, 12th Dist. Clermont No. CA2015-03-031, 
    2015-Ohio-5032
    , ¶ 11. These factors
    include (1) the ability of the parents to cooperate and make decisions jointly, (2) the ability of
    each parent to encourage the sharing of love, affection, and contact between the child and
    the other parent, (3) any history or potential for abuse, (4) the geographic proximity of the
    parents to one another, (5) and the recommendation of the guardian ad litem. R.C.
    3109.04(F)(2)(a) thru (e). "While no factor in R.C. 3109.04(F)(2) is dispositive, effective
    communication and cooperation between the parties is paramount in successful shared
    parenting." Seng v. Seng, 12th Dist. Clermont No. CA2007-12-120, 
    2008-Ohio-6758
    , ¶ 21.
    {¶ 15} An appellate court reviews a trial court's custody determination for an abuse of
    discretion. In re S.K., 12th Dist. Butler No. CA2013-06-108, 
    2014-Ohio-563
    , ¶ 12. An abuse
    of discretion implies that the court's attitude was unreasonable, arbitrary, or unconscionable.
    In re B.K., 12th Dist. Butler No. CA2010-12-324, 
    2011-Ohio-4470
    , ¶ 12, citing Blakemore v.
    Blakemore, 
    5 Ohio St.3d 217
    , 219 (1983). The discretion which a trial court enjoys in
    custody matters "'should be accorded the utmost respect, given the nature of the proceeding
    and the impact the court's determination will have on the lives of the parties concerned.'" In
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    Clinton CA2016-01-002
    re J.M., 12th Dist. Warren No. CA2008-12-148, 
    2009-Ohio-4824
    , ¶ 17, quoting Miller v.
    Miller, 
    37 Ohio St.3d 71
    , 74 (1988). Thus, "an appellate court affords deference to a judge or
    magistrate's findings regarding witnesses' credibility." In re D.R., 12th Dist. Butler Nos.
    CA2005-06-150 and CA2005-06-151, 
    2006-Ohio-340
    , ¶ 12.
    {¶ 16} After a thorough review of the record, we find no abuse of discretion in the trial
    court's decision designating Father as the residential parent and legal custodian of their
    daughter rather than granting Mother's request for shared parenting. Just as the trial court
    found, the parties have a long and troubled history indicating they lack the ability to effectively
    communicate with one another in order to make mutual decisions regarding both of their
    children's needs. As a result, while cooperation and civility between the parties would
    certainly be welcome, developing a specific parenting plan to address both parties' rights and
    responsibilities regarding each of their children has become an unfortunate necessity. This is
    particularly true here when considering their daughter's deteriorating medical condition
    resulting from her diagnosis with Sanfilippo Syndrome, a rare and fatal genetic disorder that
    requires extensive medical care. Therefore, while it is clear both parties love and deeply care
    for their daughter, as the trial court found, designating Father as the residential parent and
    legal custodian serves as "the best approach given the realities this family faces." Although
    Mother claims otherwise, nothing about this decision is unreasonable, arbitrary, or
    unconscionable so as to constitute an abuse of discretion. Accordingly, having found no
    abuse of discretion in the trial court's decision, Mother's first assignment of error is overruled.
    {¶ 17} Assignment of Error No. 2:
    {¶ 18} THE      TRIAL     COURT        ABUSED       ITS     DISCRETION        GRANTING
    PLAINTIFF/APPELLEE THE RIGHT TO DETERMINE SCHOOL PLACEMENT.
    {¶ 19} In her second assignment of error, Mother argues the trial court abused its
    discretion by granting Father, as residential parent, the right to determine what school their
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    daughter would attend. However, as this court has stated previously, "[t]he legal and
    physical control a residential parent has over the child includes the authority to decide the
    school the child attends." Thompson v. Cannon, 12th Dist. Fayette No. CA2015-02-003,
    
    2015-Ohio-2893
    , ¶ 28. Moreover, contrary to Mother's claim otherwise, the fact that the
    magistrate previously determined that she should be designated residential parent for school
    purposes is immaterial for the "ultimate authority and responsibility over the magistrate's
    findings and rulings is vested with the trial court[.]" In re C.S., 12th Dist. Warren No.
    CA2015-05-041, 
    2015-Ohio-3937
    , ¶ 23. The same is true regarding the guardian ad litem,
    for the trial court is "not bound to follow a guardian ad litem's recommendation." Lumley v.
    Lumley, 10th Dist. Franklin No. 09AP-556, 
    2009-Ohio-6992
    , ¶ 46. Therefore, finding no
    abuse in the trial court's decision, Mother's second assignment of error is overruled.1
    {¶ 20} Assignment of Error No. 3:
    {¶ 21} THE TRIAL COURT ERRED IN NOT ADDRESSING OR ALLOCATING
    MARITAL DEBTS OF THE PARTIES.
    {¶ 22} In her third assignment of error, Mother argues the trial court erred by failing to
    give her a credit for the payments she made towards the parties' credit card debt and
    homeowner's insurance during the pendency of their divorce. However, as it relates to the
    payments Mother made on the parties' credit card debt, the magistrate properly determined
    that the debt as it existed at the time of their separation would be split equally so that she
    would "get credit for the payments eventually anyway." In addition, as it relates to the
    payments made on the parties' homeowner's insurance, the magistrate correctly determined
    1. The record indicates that the parties' daughter had been enrolled in the Wilmington City School District since
    pre-school where she had the same personal aide for the past six years. However, without first discussing the
    matter with Father, Mother removed their daughter from the Wilmington City School District and enrolled her in a
    school in the Clinton-Massie School District, the same school where Mother worked as an intervention specialist.
    The trial court's decision would presumably allow Father to enroll their daughter in either school district for the
    upcoming school year.
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    Clinton CA2016-01-002
    that such payments were not subject to reimbursement since Mother had been residing in the
    house after the parties separated. The trial court affirmed and adopted these decisions
    finding Mother's request for a credit was not supported by the record. After a thorough
    review of the record, we find no error in the trial court's decision. Accordingly, Mother's third
    assignment of error is overruled.
    {¶ 23} Judgment affirmed.
    M. POWELL, P.J., and PIPER, J., concur.
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Document Info

Docket Number: CA2016-01-002

Judges: S. Powell

Filed Date: 7/18/2016

Precedential Status: Precedential

Modified Date: 4/17/2021